United Merchants and Manufacturers, Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1976

223 N.L.R.B. 689 (N.L.R.B. 1976)

UNITED MERCHANTS AND MANUFACTURERS, INC.
United Merchants and Manufacturers , Inc. and Rose-
mary P. Mendoza . Case 21-CA-13555
April 6, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On November 3, 1975, Administrative Law Judge
Herman Corenman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief 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 at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge 2 and
to adopt his recommended Order, as modified be-
low.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, United
Merchants and Manufacturers, Inc., Los Angeles,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified.
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
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.
In the absence of exceptions thereto, we adopt pro forma the Administra-
tive Law Judge 's finding that Respondent did not violate Sec. 8(a)(1) of the
Act by its attorney 's interrogation of employees Dungca and Villaneuva.
2 In view of the Administrative Law Judge 's inadvertent failure to attach
a Board notice to his Decision, Respondent shall be required to post the
attached Notice to Employees in accordance with the Administrative Law
Judge's recommendation.
3 Because the discharge of employees in reprisal for engaging in protected
concerted activity strikes at the very root of employee rights safeguarded by
Sec. 7 of the Act, we find that a broad order, requiring Respondent to cease
and desist from infringing in any manner upon the rights guaranteed by Sec.
7 of the Act, is warranted . Versatube Corporation , 203 NLRB 456, 463
(1973).
689
"(a) Threatening to terminate and terminating the
employment of employees who engage in protected,
concerted activities for their mutual aid and protec-
tion within the meaning of Section 7 of the Act.
"(b) In any other manner interfering with, re-
straining, or coercing our employees in the exercise
of their rights under Section 7 of the Act."
2. Post the attached notice in accordance with the
Administrative Law Judge's recommendations.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to terminate or termi-
nate the employment of any of our employees
who engage in protected, concerted activities for
their mutual aid and protection within the
meaning of Section 7 of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
Act.
WE WILL offer to Edgar Basallo, Ester Carin-
gal, Lolita Deduyo-Navalta, Anita Dungca,
Josefina Ereso, Clair Garcia, Thelma Goleco,
Emma Lomboy, Linda Ortega, Amelia Sando-
val, Myrna Solis, Julie Ungos, Lucy Valencia,
Mercedes Vergara, and Bayani Villanueva im-
mediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent positions without preju-
dice to their seniority or other rights previously
enjoyed, and make them whole for any loss of
pay suffered by reason of their April 8, 1975,
terminations from employment, with interest.
UNITED MERCHANTS AND MANUFACTURERS,
INC.
DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Administrative Law Judge: This
matter was heard before me on August 6, 7, and 8, 1975,
upon a charge filed on April 14, 1975, and a complaint, as
amended, issued on May 28, 1975, alleging that the Re-
spondent, United Merchants and Manufacturers, Inc., dis-
charged 15 named employees and coercively interrogated
employees in violation of Section 8(a)(1) of the Act. The
Respondent's answer denied that it discharged the 15
223 NLRB No. 102
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named employees or that it engaged in any unfair labor
practices.
The parties were given full opportunity at the hearing to
introduce relevant evidence , to examine and cross-examine
witnesses, and to argue orally . Briefs filed by the General
Counsel and by the Respondent have been carefully con-
sidered.
Upon the entire record in this proceeding , and from my
observation of the witnesses and their demeanor , I hereby
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The pleadings establish , and I find , that the Respondent
is a New York corporation engaged in the manufacture
and sale of textile goods with a facility located at 742 South
Hill Street , Los Angeles , California . In the normal course
and conduct of its business operations, Respondent annu-
ally purchases and receives goods, supplies, and materials
directly from suppliers located outside the State of Califor-
nia valued in excess of $50,000, and is and has at all times
material herein been an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
On April 8, 1975, 15 of the Respondent's employees en-
gaged in a brief work stoppage and then walked off the job
to protest the discharge of two of their fellow employees.
The General Counsel contends that the employees who en-
gaged in the work stoppage and walked out were engaging
in protected concerted activity and that the Respondent
terminated them at the instant of their walkout , and there-
by violated Section 8(axl) of the Act. The Respondent
defends on the ground that the work stoppage was unpro-
tected and also on the ground that it did not terminate the
15 employees but merely replaced them on the following
day, April 9, 1975.
B. The Course of Events
It had been the practice for years of the approximate 35
to 40 office clerical employees, all Filipinos , in the coding
section of the Respondent, to sign out the timecards of one
or more fellow employees when work ended usually at 9 or
10 o'clock on the evening shift which began at 5 p.m. It
was the practice of the supervisor to announce that work
was ended for the night and he would tell the employees
what quitting time to write on their timecards . This prac-
tice of the employees in the coding section to sign out for
one another was open and notorious and in full view of the
chief clerks in that section, and because it had extended
over such a long period of time , I find, based on the over-
whelming credible testimony of seven of the employees
called as witnesses by the General Counsel, that the Re-
spondent was aware of this practice. It is also established
without dispute by the testimony of the General Counsel's
witnesses, and I find, that the signing out of other employ-
ees' timecards was not intended to and did not cheat the
Respondent out of any money or thing of value. The em-
ployees in the coding section would enter the same quitting
time as instructed by the supervisor, whether the employee
made the entry on his own timecard or some other
employee's timecard.
On April 8, 1975, shortly after employee Rosemary Men-
doza began her work in the coding section at 5 p.m., she
was called by Supervisor Donald Beska into his office
where he discharged her because, as she was told, she had
"falsified a document"; namely that on the previous eve-
ning, April 7, she had asked another employee, Aida Val-
buena to "sign out" her timecard. Miss Mendoza told Mr.
Beska that this was not falsification as she did not steal a
minute of the Company's time . Mendoza told Beska she
would not accept her termination and she returned to her
desk to resume her work . Mr. Beska went to Mendoza's
desk and took her work away from her and told her she
was no longer connected with the Respondent . Other em-
ployees overheard the conversation between Beska and
Mendoza in Beska's office and observed Beska's conduct
in removing the work from Mendoza.
When Mendoza came out of Beska 's office to her desk,
she asked Clarita Garcia if she heard the conversation in
Beska's office . Garcia told Mendoza it was a "shock to
her-it was unfair"-"it had been the practice." Garcia
then spread the word to other employees in the coding
section that "Rosemary Mendoza and Aida Valbuena had
been fired." About nine employees in Garcia's group
agreed that they would ask for a chance for the two dis-
charged employees because "it was unfair."
Mendoza told Beska that she wanted to talk to Mr.
Wronski I and Beska told her to go ahead. Wronski upheld
Beska's decision to discharge Mendoza, who then returned
to the office where , Mendoza testified , "everybody was
standing."
When Garcia heard Mendoza tell Beska that she wanted
to see Mr . Wronski, Garcia told the people in her group
that before appealing to Beska to retract the discharge,
they should wait, because.Mr. Wronski might also give the
two discharged employees another chance. The other peo-
ple agreed to this. Garcia testified credibly that in the
meantime , while the employees waited on what Wronski
would do on Mendoza's appeal to him, they continued
working "while they waited for Rosemary [Mendoza]."
When Rosemary Mendoza returned from Wronski's of-
fice and told them her discharge was final , Garcia was se-
lected by the group to "appeal to Beska-to show him it is
very unfair."
Speaking for the group, Garcia told Beska that the em-
ployees wanted the Respondent to give the two discharged
employees a chance, "because the termination was very
unjust-because we were doing it also [signing out for one
another] every night." Beska replied, "No it is final." Gar-
1 Wronski holds the position of accounts receivable manager and was
Beska's immediate superior. In this connection it is noted that Beska had
been employed by the Respondent in his supervisor's position only since
February 1975 , and it would appear that his unannounced policy on signing
out differed from that of previous supervision.
UNITED MERCHANTS AND MANUFACTURERS, INC.
cia then told Beska that the group wanted to see Wronski.
Beska then went to Wronski's office and shortly returned
and told Garcia that Wronski did not want to see the
whole group. Garcia replied, "how come-we are working
as a group-we are appealing as a group." Garcia said that
she would be the one to talk for the group-she said, "we
want to show Mr. Wronski that everybody is appealing."
Beska then went back to see Wronski again and upon his
return told the employees that they could see Wronski one
by one, that they were hired individually and that Wronski
would see them individually. Beska ordered the group to go
back to work, and told them they were paid to work, not to
stand . Most of the group ignored Beska 's order. The group
asked Garcia to go in first to see Wronski. In Wronski's
office, Garcia told Wronski that she felt bad about the
termination of Rosemary-that there might be a walkout.
Garcia also complained about the new supervisor ( Beska).
Garcia testified credibly that she told Wronski that Aida
and Rosemary need a chance to go back to work-their
termination was unjust. Wronski replied, according to
Garcia's credible testimony, that it was the policy of the
Company to fire employees if they let others sign out their
timecards. Garcia then pointed out to Wronski that all the
employees go home at the same time-that the two dis-
charged employees did not steal anything from the Compa-
ny. According to Garcia's credible testimony, Wronski
said, "you are not affected, why don't you go back to
work." During the discussion, Garcia informed Wronski
that the employees were discussing the possibility of a
walkout. Then, according to Garcia's credible testimony,
Wronski asked her if she would go out with the group and
she replied that she didn't know. At this point, Beska en-
tered Wronski's office while Garcia was still there. Garcia
credibly testified, and I find, that Wronski told Beska,
"Take the cards of those who walk out and terminate
them." 2 At this point Garcia left Wronski's office.
Garcia returned to the employee group and told them "it
was final-there would be no use going in there one by
one." She suggested that the employees take a break to
discuss what final decision should be made as to their
course of action. Garcia then asked Beska for a break. Bes-
ka agreed to this but told the people the time spent in the
break would be deducted from their pay. The employees
agreed.
All of the Filipino employees, in the coding section num-
bering about 35, went to the cafeteria to discuss the prob-
lem. Garcia told the employees about her conversation
with Wronski. She told them, "Let's still show them what
they are doing to Rosemary and Aida is unfair. Let's just
walk out tonight and then come back tomorrow."
While the people were in the cafeteria taking the break
agreed to by Beska, Beska entered the cafeteria and told
them the breaktime would not be deducted from their pay.
At this time, according to Garcia's credible testimony cor-
roborated by several other witnesses, "we had already fi-
nalized that we would walk out." All of the 35 employees
2I do not credit Wronski's denial that he instructed Beska to terminate
those employees who walked out. All of the circumstances which I will
discuss later herein convince me that Beska was authorized to terminate the
employees who walked out.
691
present in the cafeteria except 1 agreed to walk out that
night and to return to work the following evening. Shortly
after Beska left the cafeteria, the employees started gather-
ing their purses and personal effects preparatory to walk-
ing out.
As some of the employees in the group started to leave
for the elevator, according to the credible testimony of
Garcia, substantially corroborated by six other employee
witnesses , Beska kept repeating to them that once they
walked out they would be terminated and "don't come
back." The 15 employees named in the complaint were the
only employees to walk out. It is reasonable to conclude,
and it appears from the record, that notwithstanding the
decision to walk out reached in the cafeteria, Beska's
threats to terminate those who walked out frightened many
who then decided to remain at work rather than walk out 3
After they reached their homes, a number of employees
contacted each other by phone and agreed that they would
go to the building where they worked on the following eve-
ning and that Anita Dungca, who they agreed was a very
good worker, would enter the office alone to return to
work. On the following evening, April 9, Dungca returned
to the office at about 4:15 p.m. and went directly to
Beska 's office. Dungca credibly testified that she asked
Beska if she could work just individually-Beska replied,
"No, he was sorry" and he showed Dungca the list of
names of those who walked out with Dungca the night
before. Dungca credibly testified that Beska told her he
was very sorry, but that effective last night, April 8, she was
terminated because she was one of the group that walked
out. Beska told Dungca he was sorry, but it was an order
from Mr. Wronski.
Dungca then left the building and waited outside for the
other employees and saw about 9 or 10 of them in front of
the building. She told the employees that since Beska did
not let her work, and had told her that she had been termi-
nated last night (April 8), there was no use of the others
coming back, telling them "you are terminated too."
Dungca told the others that Beska had shown her the list of
names of those who walked out, so there was no use com-
ing back .4
C. Analysis and Conclusionary Findings
From the time that Rosemary Mendoza and Aida Val-
buena were discharged by Beska and their discharge up-
held by Wronski, it clearly appears that the emotions
aroused in the other employees in the coding section and
their group action to persuade the Respondent to withdraw
Rosemary's and Aida's discharges resulted in group discus-
sions and a cessation of work while some employees stood
up at their desks or sat on them while discussing the matter
or awaiting the result of employee conferences with Beska
3 In view of the overwhelming testimony of the employees presented by
the General Counsel that Beska repeatedly warned employees that those
who left would be terminated, I do not credit Beska's testimony that he told
them that if they walked out and didn't return to work, they were risking
their jobs. In this connection, it is noted that Beska testified he was not sure
what words he used.
Dungca and three other employees were subsequently rehired by the
Respondent some time on or before June 30, 1975, and at the time of the
hearing in this matter, Dungca was still employed by the Respondent.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Wronski . This action I find was spontaneous concert-
ed activity fully within the protection of Section 7 of the
Act. This conduct lasting about 25 minutes prompted Bes-
ka to tell them to get back to work . Subsequently, it is
noted that Beska , with Wronski's approval, granted the
group a break "to further discuss the problem ." The evi-
dence is clear that the termination of the 15 employees on
April 8 was based solely on their walkout , and was not
based on the temporary work stoppage which I find , never-
theless, was as much protected by Section 7 as the walkout
itself. See American Truck Stop, Inc., 218 NLRB 1038; Pep-
si-Cola Bottling Co. of Miami, Inc., 186 NLRB 477 (1970);
Cone Mills Corp., 169 NLRB 449,67 LRRM 2976 (1968);
Leprino Cheese Co., 424 F.2d 184 (C.A. 10, 1970), enfg. 170
NLRB 601; Pioneer Plastics Corp., 379 F.2d 301 (C.A. 1,
1967), enfg. 159 NLRB 1052; Serv-Air, Inc., 401 F.2d 363
(C.A. 10, 1968), enfg. 162 NLRB 1369; N.LR.B. v. Ken-
nametal, Inc., 182 F.2d 817 (C.A. 3); Union Electric Co.,
219 NLRB 1081; Golay & Co., Inc., 156 NLRB 1252 (1966).
The brief work stoppage during direct negotiations of
the employees' grievance with management cannot, as con-
tended by the Respondent , be analygized to the sitdown
strike that was condemned as illegal in N.LR.B. v. Fansteel
Metallurgical Corp., 306 U.S. 240, where it appeared that
the striking employees seized the factory of their employer
and, without authority of any kind , evicted their foremen
and barricaded the doors , denying the righful owner ad-
mission to his own property. See also Pepsi-Cola Bottling
Co. of Miami, Inc., 186 NLRB 477 (1970) and N.LR.B. v.
Kennameta4 Inc., supra, which support my finding that the
temporary work stoppage was protected.
Even though it was the intention of the 15 employees to
walk out only for that evening to protest the discharge of
Mendoza and Valbuena, and to return to work the follow-
ing evening, the walkout of April 8 was fully protected
under Section 7 of the Act. Leprino Cheese Co., 424 F.2d
184 (C.A. 10, 1970), enfg. 170 NLRB 601; First National
Bank of Omaha v . N.LR.B., 413 F.2d 921, 925 (C.A. 8,
1969); N.LR.B. v. Washington Aluminum Co., 370 U.S. 9
(1962).
Contrary to the position of the Respondent that Beska,
an admitted supervisor within the meaning of the Act, was
nevertheless without authority to terminate the employ-
ment of the 15 strikers, I find that Beska acted within the
scope of his authority in notifying the employees that they
would be terminated if they walked out on the evening of
April 8.5 Circumstances which persuade me to this conclu-
sion are : ( 1) that Respondent's management at no time
repudiated Beska's terminations of Rosemary Mendoza
and Aida Valbuena on April 8 which led to the walkout on
that same date, nor did management repudiate Beska's ter-
mination of the 15 employees who walked out; (2) that
Wronski , Beska's immediate superior, expressly directed
Beska in Garcia's presence on the evening of April 8 to
"take the cards of those who walk out and terminate
them"; and (3) that on the evening following the April 8
5The testimony overwhelmingly shows that Beska kept repeating that
those employees who walked out would be terminated . This threat caused
many of the employees who had agreed to walk out in the cafeteria meeting
to change their minds and not join the walkout.
walkout, Beska refused to permit Dungca to return to
work, telling her that she had been terminated because she
was one of the group that walked out. Beska also told
Dungca that "he was sorry but it was an order from Mr.
Wronski. " 6
Respondent's contention that the 15 employees were
permanently replaced and not terminated does not impress
me. I am satisfied that Respondent's action was vindictive
and in reprisal against these 15 Filipino employees who
dared to press a meritorious grievance with concert of ac-
tion. These employees were well educated and well quali-
fied to perform the office clerical work assigned to them in
the coding section.7 Yet the Respondent with undue haste
replaced these 15 highly qualified and experienced employ-
ees with 25 new and untried employees on April 9, notwith-
standing the fact that they intended to return to work that
evening.
The fact that the Respondent carried these 15 terminat-
ed employees on the April payroll does not persuade me
that the 15 were not terminated on April 8. In this connec-
tion, it is noted that the April payroll was prepared in May,
several weeks after the unfair labor practice charge filed in
this case on April 14, 1975. The charge put the Respond-
nent on notice of the claimed violation. Payroll records
prepared after the fact to bolster the Respondent's position
lack that degree of reliability which is carried by the oppos-
ing and overwhelming testimony of the General Counsel's
witnesses to the effect that those employees who walked
out on April 8 were terminated and told not to return to
work. It is significant that the Respondent was unable to
present even one employee witness of the 20 who changed
their minds and did not walk out to contradict the General
Counsel's witnesses concerning the remarks made by Beska
to the effect that those employees who walked out were to
be terminated. This failure of the Respondent to produce
even one rank-and-file employee witness to contradict the
General Counsel's witnesses is especially noteworthy in
view of the fact that about 20 of the approximate 35 em-
ployees who attended the April 8 cafeteria meeting
changed their minds and did not walk out in the face of
Beska's admonition that those who walked out were termi-
nated. Surely Respondent's counsel, in the course of his
most thorough investigation, must have interviewed some
of these 20.8
In sum, I find that on the evening of April 8, 1975, the 15
6 This finding is based on the credible testimony of Anita Dungca, con-
sidered one of the Respondent 's best employees, who had been employed by
the Respondent 5 years and who was eventually rehired several months
after her termination on April 8. Dungca 's current employment by the Re-
spondent reinforces the credibility of her testimony against the Respondent.
Federal Envelope Company, 147 NLRB 1030, 1036 (1964); Bush Hog, Inc.,
161 NLRB 1575, 1580 ( 1966).
7 For example , Clarita Garcia had been employed by the Respondent 6
years ; Anita Dungca had 15 years of schooling and had been employed by
the Respondnet 5 years; Erlinda Ortega was employed by the Respondent
4-1/2 years; Emma Lomboy was employed by the Respondent 2-1/2 years;
Lucita Valencia employed 1-1/2 years; Bayani Villanueva employed by Re-
spondent 4 years. All had been schooled in English in the Phillipines which
is the medium of instruction from the elementary grades through college.
9 1 do not credit Chief Clerk Linda Holmes' testimony that, at the time of
the walkout, Beska said "go back to work, the work has to be done"-and
"sign out and leave ." It is incongruous that Beska would simultaneously tell
the employees to work and to leave . Even Beska himself gives a much
different version of what was said.
UNITED MERCHANTS AND MANUFACTURERS, INC.
employees walked out to protest the unjust discharges of 2
fellow employees ; the Respondent terminated these 15 em-
ployees on April 8 because they walked out; by walking
out to protest the discharges of the 2 fellow employees, the
15 were engaging in concerted activities for their mutual
aid and protection within the meaning of Section 7 of the
Act; and by terminating the 15 employees on April 8, the
Respondent coerced and restrained employees and en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act. Although the terminations of the 15
were not based on the brief work stoppage which preceded
the walkout , I find , nevertheless , that this brief work stop-
page by most employees in the coding section was also
concerted activity within the protection of Section 7 of the
Act.
The Pretrial Interrogation of Employees
by Respondent's Counsel
At the outset of the hearing in this matter which began
on August 6, 1975, the General Counsel amended the com-
plaint to allege that Respondent by its counsel, Mr. Clark,
violated Section 8(a)(1) of the Act by Clark's coercively
interrogating employees on August 5, 1975. In support of
his contention , counsel for the General Counsel elicited
testimony from two of the employees who had walked out
on April 8 but who had since been rehired by the Respon-
dent.
Anita Dungca testified that shortly after she reported for
work on August 5, 1975 , she was taken by her boss to a
room and introduced to Respondent 's attorney, Mr. Clark.
Dungca testified that Mr. Clark introduced himself and
then asked if he could get some information from her.
Dungca was agreeable and then Clark asked what hap-
pened on the night of April 8. When asked by counsel for
the General Counsel, "Did he [meaning Clark] tell you that
there would be no reprisals for you talking to him, that
nothing would happen to you if you talked to him."
Dungca replied, "nothing was told; he didn't tell me any-
thing." When asked, "Did he tell you that you didn't have
to talk to him if you didn't want to?" Dungca replied, "He
didn' t tell me nothing ." On cross-examination , Dungca
agreed that Mr. Clark did not mistreat her the previous
evening when he interviewed her, that he was pleasant, and
she did not get the idea that the Respondent would take
action against her if she did not cooperate . Dungca agreed
that Attorney Clark told her that he would appreciate it if
she would cooperate and answer his questions ; however,
she denied that Clark told her that she was not required to
give the information . Dungca also denied that Clark told
her that the Respondent would not take any action with
regard to how she answered Clark's questions . Dungca
agreed , however, that she did not feel that Clark was trying
to pressure her or that he was in any manner threatening
her or her job.
Bayani Villanueva , having been returned to work several
months after his termination on April 8, was likewise inter-
viewed by Attorney Clark on the evening of August 5,
1975. Mr. Wronski ushered Villanueva into an enclosed
office where he met Mr. Clark who introduced himself.
Villanueva testified that Clark told him that he was repre-
693
senting the Respondent "for the trial tomorrow, and I
would like to have some information , or some facts, from
you, if you don't mind." Villanueva said, "Okay." Villa-
nueva testified that Clark then asked him if he was one of
those who had been given a subpena , and when Villanueva
replied , "yes," Clark asked , "what do you recall on the
night of April 8th," and Villanueva told him . Villanueva
testified that Clark showed him "the list of names of those
that had been terminated-and he showed it to me, for me
to tell him the names of those who were getting a subpoe-
na."
On cross-examination by Mr. Clark, Villanueva agreed
that he did not feel in any way threatened by Clark and
that Clark was "very nice ." Villanueva denied, among
other things , that Clark told him that his job would not be
affected , whether he talked or not ; and that he was not
required to talk . Villanueva did admit that Clark , in asking
for the information , said to Villanueva, "I hope you don't
mind," and Villanueva answered , "No, I don 't mind." Vil-
lanueva agreed that he had no objection to talking to Clark
on August 5. Subsequently in the cross -examination, Vil-
lanueva conceded that although he did not recall that
Clark told him that even if he did not talk to Clark, that
would have no bearing on his job , he could have said it but
he did not remember it.
Mr. Clark testified that in the course of his prehearing
investigation of this case , he suggested to Respondent's
controller, Mr. Stuart Smith , that he wanted to interview
the four employees whom the Respondent had returned to
work subsequent to the April 8 walkout . When Mr. Smith
demurred to this procedure , Mr. Clark assured him it was
permissible and that he had done this in many cases in the
past. Mr. Clark testified that Mr. Wronski was present dur-
ing all employee interviews conducted by himself with the
exception of the first witness interviewed ; namely, Anita
Dungca . Mr. Clark testified that his procedure in inter-
viewing these four people , inclusive of Dungca and Villa-
nueva , was routine and followed his past practice in the
many instances he has interviewed employee witnesses.
Clark testified that he interviewed the four employees indi-
vidually, first introducing himself as an attorney for the
Respondent in an unfair labor practice case scheduled to
go to trial on the following day, then telling them that he
was seeking information if they wanted to talk to him, that
they were not required to talk if they didn't want to, and
their job would not be affected . They were asked if they
had any objection to talking with him and each of them
said "no." Mr . Clark testified that in the course of the in-
terviews with the four people , including Dungca and Vil-
lanueva, he did not get the impression that they were un-
comfortable or in the least way coerced-that they seemed
very relaxed, and that he tried to make it as pleasant for
them as he could. Mr. Clark testified that during the course
of the discussion , he asked each of them if they had in any
way been mistreated by the Respondent , and each told him
they had not.
Mr. Wronski 's testimony concerning Mr. Clark 's prelim-
inary remarks in the course of his interviews with the peo-
ple substantially corroborates Clark with the exception of
Clark's testimony that the interviewed employees were told
that they were not required to talk if they didn't want to,
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and their jobs would not be affected.
In respect to this last point, Wronski's testimony as elic-
ited by Mr. Clark was as follows:
Q. (By Mr. Clark) Was there anything said with re-
spect to it having no impact on your job.
A. (By Wronski) I don't recall your choice of
words, but-and I don't recall it for all four people,
but I do recall, and you may have said it for all four
people, but I don't know, but I do recall that in one
case with Mr. Villanueva , that he seemed to be some-
what hesitant when he first walked in, like he didn't
know what was happening. You specifically said to
him.
Q. Okay-Do you-strike that.
Mr. Clark: That is all I have at this time, your Hon-
or.
Analysis and Conclusionary Finding
In Johnnie's Poultry Co., 146 NLRB 770, 774-775 (1964),
the Board held that the respondent had gone beyond the
permissible limits in the interrogation of employees in
preparation of its defense to unfair labor practice charges
in the event a complaint issued on the pending charges
which the Board was then investigating. The Board held
that the respondent's interrogation of employees constitut-
ed interference, restraint, and coercion of employees in the
exercise of their Section 7 rights and therefore violated Sec-
tion 8(a)(l) of the Act. The Board stated its policies con-
cerning such pretrial investigation by the respondent as fol-
lows:
Thus, the employer must communicate to the employ-
ee the purpose of the questioning , assure him that no
reprisal will take place, and obtain his participation on
a voluntary basis; the questioning must occur in a
context free from employer hostility to union organi-
zation and must not be itself coercive in nature; and
the questions must not exceed the necessities of the
legitimate purpose of prying into other union matters,
eliciting information concerning an employee 's subjec-
tive state of mind, or otherwise interfering with the
statutory rights of employees. When an employer
transgresses the boundaries of these safeguards, he
loses the benefits of the privilege.
The Board's policy stated in Johnnie's Poultry, supra, has
found substantial support from courts of appeals . Thus in
Consolidated Rendering Co., d/b /a Burlington Rendering
Co., 386 F.2d 699 (C.A. 2, 1967), an employer was held to
have violated the Act by interrogating employees for the
purpose of determining the union's majority status without
advising employees of the employer 's reason for question-
ing.
In Heck's, Inc., 387 F.2d 65 (C.A. 4, 1967), it was held
that the employer violated the Act by polling its employees
to determine if the union had attained a majority, without
giving assurances that there would be no reprisals against
employees regardless of their answers , and in Neuhoff Bros.
Packers, Inc., 375 F.2d 372 (C.A. 5, 1967), the court held
that the Board was warranted in finding that the employer
violated the Act through the action of its attorney in inter-
viewing employees as part of the investigation of charges,
since circumstances justified the Board in requiring the em-
ployer to communicate the purpose of the questioning, to
assure employees against reprisals, and to obtain voluntary
participation, and interviews were conducted in the pres-
ence of management representatives without the employees
having been advised of the purpose of the interviews or of
their right to remain silent. [Emphasis supplied.]
On reviewing the testimony of Dungca, Villanueva,
Clark, and Wronski relating to the pretrial interviews of
Dungca and Villanueva, I have concluded that Clark did
not explicitly tell Dungca and Villanueva that they were
not required to talk to him and that they could leave the
conference room without reprisal from the Respondent.
However, the entire tenor of the testimony by Dungca and
Villanueva shows that they gave their information to Clark
freely and voluntarily without feeling coerced; that Clark
was pleasant; and they had no feeling that the Respondent
would take reprisals against them if they did not cooperate.
It seems obvious that any employee claimant against an
employer, such as Dungca and Villanueva occupied in this
case, by the very nature of their position as a claimant,
would naturally feel some degree of coercion in being sum-
moned by the Respondent to be interviewed on the day
before the trial by Respondent's counsel. This inherent fear
was demonstrated by Villanueva's testimony concerning
his reluctance to tell Attorney Clark the names of those 15
employees who, Mr. Clark inquired, had been subpenaed
by the General Counsel. It is clear, however, that the Re-
spondent may legitimately interrogate an employee in a
noncoercive atmosphere within the limits announced by
the Board in Johnnie's Poultry, supra. While I am satisfied
that Mr. Clark did not emphasize to Dungca or Villanueva
that they did not have to talk to him and could leave the
room without fear of reprisal, I find that inquiry was made
whether they had any "objection" to talking or did they
"mind" talking to Clark, and both said, "no." Note is made
of the fact that Mr. Stuart Smith, the Respondent's control-
ler, questioned the permissibility of interviewing these four
employees who occupied the position of claimants in this
case , and that Attorney Clark quieted his doubts with as-
surances that it was proper. Under all of the circumstances,
namely (1) that the unfair labor practice is charged against
the Respondent and not against Clark who in fact initiated
the interrogation notwithstanding the feeling of
Respondent's management that it might be improper, (2)
the testimony of Dungca and Villanueva that they did not
feel intimidated by the interview, and (3) that there was
reasonable but not strict compliance with the standards set
forth in Johnnie's Poultry, supra, I do not find that Clark's
interrogation of Dungca and Villanueva constituted a vio-
lation of Section 8(a)(1) of the Act by the Respondent.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
UNITED MERCHANTS AND MANUFACTURERS, INC.
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce. They are unfair labor practices within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices warranting a remedial order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that the Respondent, in violation
of Section 8(a)(1) of the Act, interfered with, restrained,
and coerced the 15 employees, named hereinafter in the
Order, in the exercise of their Section 7 rights for their
mutual aid and protection by terminating them on April 8,
1975, the recommended Order shall provide that the Re-
spondent offer the 15 employees immediate reinstatement
to their jobs, if they have not already done so, and make
them whole for loss of earnings within the meaning and in
accord with the Board's decision in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions,
and upon the entire record in this case, I hereby make the
following:
CONCLUSIONS OF LAW
1. The Respondent, United Merchants and Manufactur-
ers, Inc ., is an employer within the meaning of Section 2(2)
of the Act, and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. By the brief work stoppage of employees in the cod-
ing section on the evening of April 8, 1975, such employees
engaged in protected concerted activities for their mutual
aid and protection within the meaning of Section 7 of the
Act.
3. By the April 8, 1975, walkout of the 15 employees
hereinafter named in the Order, such employees engaged in
protected, concerted activities for their mutual aid and pro-
tection within the meaning of Section 7 of the Act.
4. By terminating the employment of the 15 employees
on April 8, 1975, because they walked out on that date, the
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act, and the Respondent thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The Respondent did not violate Section 8(a)(1) of the
Act by reason of its attorney's pretrial interrogation of em-
ployees Dungca and Villanueva on August 5, 1975.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
695
and the entire record in this proceeding , and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDERS
The Respondent, United Merchants and Manufacturers,
Inc., shall:
1. Cease and desist from threatening to terminate and
terminating the employment of employees who engage in
protected, concerted activities for their mutual aid and pro-
tection within the meaning of Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Edgar Basallo , Ester Caringal, Lolita Dedu-
yo-Navalta, Anita Dungca, Josefina Ereso, Claire Garcia,
Thelma Goleco, Emma Lomboy, Linda Ortega, Amelia
Sandoval, Myrna Solis, Julie Ungos, Lucy Valencia, Mer-
cedes Vergara, and Bayani Villanueva immediate and full
reinstatement to their former positions or, if such positions
no longer exist, to substantially equivalent positions with-
out prejudice to their seniority or other rights previously
enjoyed, and make them whole for any loss of pay suffered
by reason of their April 8, 1975, terminations from employ-
ment with interest at the rate of 6 percent, in the manner
described in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of the recommended Order.
(c) Post at Respondent's offices at Los Angeles, Califor-
nia, copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
9In 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.
10 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."