Video Tape Co.

National Labor Relations Board - Board Decisions

Apr 26, 1989

288 N.L.R.B. 646 (N.L.R.B. 1989)

646 DECISIONS OF THE ;NATIONAL LABOR RELATIONS BOARD
Keith Austin, Inc., d/b/a The Video Tape Company
and International Alliance of Theatrical Stage
Employees and Moving Picture Machine Opera-
tors of the United States and Canada, AFL-
CIO, CLC and International Alliance of Theat-
rical Stage Employees and Moving Picture Ma-
chine Operators of the United States and
Canada, AFL-CIO, CLC (I.A.T.S.E.) and Van
Storage Drivers, Packers, Warehousemen &
Helpers, Local 389, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, AFL-CIO, Joint Peti-
tioners. Cases 31-CA-15800 and 31-RC-6023
April 26, 1989
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On May 5, 1987, Administrative Law Judge Joan
Wieder issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
Charging Party/Joint Petitioners filed an answer-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended
Order.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to oven-ule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cu.. 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 No exceptions were filed to the judge's dismissal of the 8(a)(1) allega-
tion concerning the discharge of Beth Ochoa.
We agree with the Respondent that Supervisor Mark's statement to
employee Yore cannot be relied on to set the election aside because there
was no showing that the statement was made during the critical period.
However, we find no merit in the Respondent's contention that the re-
maining two 8(a)(1) violations were de minimis and do not warrant set-
ting the election aside
As the judge pointed out, the Board's general policy is to set aside an
election whenever an unfair labor practice occurs during the critical
period. There is a limited exception to this policy, however, in situations
where the "misconduct is de minimis with respect to affecting the results
of an election." Caron International, 246 NLRB 1120 (1979). Here, the
tally of ballots was 31 for and 41 against the Union; there were 9 chal-
lenged ballots. If the nine individuals whose ballots were challenged were
eligible and voted for the Union, a change in only one vote would have
altered the outcome. The record reveals that at least five employees were
aware of the Respondent's misconduct. During a company-called meet-
ing, the Respondent unlawfully created the impression of surveillance by
informing employees that they were being watched and that the union
supporters were being more closely watched. Immediately thereafter, the
Respondent threatened to enforce company rules more strictly against
union supporters. These statements were not remote in time, but rather
occurred approximately 2 weeks before the election. For these reasons,
we agree with the judge that the de mmimis exception does not apply
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Keith
Austin, Inc., d/b/a The Video Tape Company,
North Hollywood, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
IT IS FURTHER ORDERED that the election held in
Case 31-RC-6023 on May 14, 1986, is set aside and
the case is remanded to the Regional Director for
Region 31 to conduct a new election when he
deems the circumstances permit the free choice of
a bargaining representative.
[Direction of Second Election omitted from pub-
lication.]
, and that the election must be set aside. See, e.g., .Rexall Corp., 272 NLRB
316, 317 (1984).
In light of our conclusion that the election should be set aside, we find
it unnecessary to pass on Objection 8, and we rescind our May 22, 1987
Decision and Order Directing Hearing insofar as it directed a hearing on
Objection 8.
Ann Reid Cronin, Esq., for the General Counsel,
Harold M. Brody, Esq., for the Respondent.
Helena Sunny Wise, Esq., for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JoAN WIEDER, Administrative Law Judge. These con-
solidated cases were tried in Los Angeles, California, on
various dates in August, September, October, and De-
cember 1986. 1 The charge in Case 31-CA-15800 was
originally filed on 14 May, and an amended charge was
filed on 25 June 1986, by International Alliance of Theat-
rical Stage Employees and Moving Picture Machine Op-
erators of the United States and Canada, AFL-CIO,
CLC (the Charging Party or I.A.T.S.E.). The complaint
issued on 3 July and was amended at the hearing. In its
answer, Keith Austin, Inc., d/b/a The Video Tape Com-
pany (Respondent or the Company) denied commission
of any unfair labor practices.
In Case 31-RC-6023 an election was conducted on
May 14 pursuant to a Stipulation for Certification Upon
Consent Election in a unit agreed as appropriate. 2 The
Petitioners for the election were I.A.T.S.E. and Van
Storage Drivers, Packers, Warehousemen & Helpers,
Local 389, a/w International Brotherhood of Teamsters,
All dates are in 1986 unless otherwise stated.
2 The unit is descnbed as follows:
Included: All regular full-time and part-time production, engineer-
ing, operation and maintenance employees involved in the produc-
tion, duplication, distribution and storage of video tapes employed
by the Employer at its North Hollywood, California, facilities.
Excluded: Office clerical employees, confidential employees, sales
employees, guards and supervisors as defined in the Act.
It is undisputed, and I find, that the stated unit constitutes an appropri-
ate unit for the purposes of collective bargaining within the meaning of
Sec. 9(b) of the Act.
288 NLRB No. 72
-
VIDEO TAPE CO. 647
Chauffeurs, Warehousemen & Helpers of America
(Teamsters). The election involved approximately 77 eli-
gible voters, 81 cast ballots, of which 41 were cast
against joint petitioners, 31 cast in favor of the joint peti-
tioners, and 9 ballots were challenged. The petitioners
filed timely objections to conduct affecting the results of
the election, and on July 25 the Regional Director issued
his Report on Objections recommending that all but one
of the objections be overruled, and the one issue be re-
solved on the basis of record evidence. An appeal of the
Regional Director's decision was still pending as of the
date this record closed. The Regional Director, in the
same decision, issued a notice of hearing and order con-
solidating the one objection with the complaint in Case
31-CA-15800 for purposes of hearing, rulings, and deci-
sion by an administrative law judge.
The joint objection referred to me claims that Re-
spondent indicated it would, and did, enforce its rules
more stringently against union supporters and activists.
The issues raised in the complaint as amended include:
whether Respondent created an impression among the
employees ihat their union or other protected concerted
activities were under surveillance; whether Respondent
informed one or more employees that it would engage in
surveillance of their protected concerted activities;3
whether Respondent threatened its employees with more
severe enforcement of the Company's rules, regulations,
or policies for engaging in union support or activity;
whether Respondent discharged Beth Ochoa because she
refused to commit unfair labor practices tnd in order to
discourage its employees from engaging in protected
concerted activity, in violation of Section 8(a)(1) of the
Act.
All parties appeared at the hearing, and were afforded
full opportunity to participate, to intrOduce relevant evi-
dence, to examine and cross-examine witnesses, to argue
orally, and to file briefs. All parties filed timely briefs,
which have been carefully considered.
On the entire record, and from my observation of the
witnesses and their demeanor, and on substantial, reliable
evidence considered along with the consistency and in-
herent probabilities of their testimony, 4 I make the fol-
lowing
FINDINGS OF FACT
L JURISDICTION
Respondent is a California corporation with an office
and principal place of business located in North Holly-
wood, California, where it is engaged in the nonretail du-
plication and distribution of videotapes. The parties
admit, and I find, that during the past calendar year, a
representative period, Respondent purchased and re-
3 Respondent objected to inclusion of this allegation in the complaint.
A motion to amend the complaint to include this allegation was made
during the course of the hearing. The objection was on the basis of preju-
dice, bias, and surprise. Respondent was afforded the opportunitk to sub-
stantiate these claims, but has failed to do so. Also, the allegation was
related to matters alleged in the original complaint. Accordingly, the
complaint, as amended, will be considered in its entirety.
4 See generally NLRB v. Universal Camera Corp., 340 U.S. 474, 496
(1951).
ceived goods or services valued in excess of $50,000 di-
rectly from suppliers located outside the State of Califor-
nia, and thus the Company is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and assertion of jurisdiction over its operations will
effectuate the policies of the Act.
The parties admit, and I find, that I.A.T.S.E. is a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES AND
THE ALLEGED OBJECTIONS CONDUCT
A. Background
All the employee witnesses in this proceeding worked
in Respondent's video tape recording department (VTR).
Hope Cornejo was manager of tape operations and su-
pervised the dubbing operations. Her immediate supervi-
sor was Operations Manager Lee Jordan. Francis Van-
Paemel is the president of the Company. The VTR is a
24-hour operation engaged in the copying (dubbing) of
videotapes in both broadcast quality and VHS and Beta
home videotape recorder formats. The VTR operations
were divided into three shifts: The day shift, supervised
by Mark Shirle, operated from 8 a.m. to 4:30 p.m; the
swing shift, which operated from 4 p.m. to midnight,
was supervised by Richard Marks; and the dawn shift,
which operated from 12 midnight to 8:30 a.m. with Beth
Ochoa as the shift supervisor, as here pertinent. The par-
ties admit, and I find, that shift supervisors are supervi-
sors as defmed in Section 2(11) of the Act. At all times
material, the shift supervisors were to report to work
one-half hour before their shifts were scheduled to com-
mence to ensure the orderly transfer of operations.
The shift supervisors reviewed the work orders as-
signed to their crew, including any work remaining from
the prior shift; assigned work priorities and staff to vari-
ous duties; and supervised the employees, as well as per-
sonally perform hands-on duties. The shift supervisors
also supervised the PAL room 5 operators assigned to
their shift. The shifts varied slightly in their staff comple-
ment. The day-shift supervisor had about eight employ-
ees assigned to the broadcast room, including two edi-
tors. Also working during the day shift were two expedi-
tors who brought in needed work materials, and two
typists who prepared labels. The editors', expeditors',
and typists' work schedules overlapped shifts so that one
or more employees worked a portion of the swing shift.
There were no expeditors, editors, or typists working
during the dawn shift (12 to 8 a.m.). The day shift also
had an employee assigned permanently to the video cas-
sette room, which opened about 20 February. The dawn
shift did not have an employee permanently assigned to
the cassette room. According to Ochoa, whose testimony
on this point is unrefuted, the cassette room work was
the least desirable assignment for the VTR operators.
5 The PAL room was in a separate building across the street from the
main facility. The work done in this operation was the copying of video-
tapes in a format that could be utilized in countries having television op-
erating systems different from those used in the United States. The PAL
operators are more experienced employees who receive little or no super-
vision and work alone or with a coworker.
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Most of the events adduced in evidence arose during a
union organizing campaign at the Company. In mid-Feb-
ruary, Larry Yore, a PAL room operator, got union au-
thorization cards from I.A.T.S.E. and began distributing
them with the help of another PAL room operator, Kurt
Erickson, and his shift supervisor, Beth Ochoa. Erickson
did not appear and testify. Like most of the facts of this
case, it is disputed that another shift supervisor, Richard
Marks, also assisted Yore in his organizing efforts. The
Teamsters-organizing efforts involved other areas of Re-
spondent's operation, and one, if not the chief employee
organizer for the Teamsters, was Regina French. Re-
spondent knew French was active in the Teamsters' or-
ganizing campaign, for she attended a Board proceeding
on behalf of the Teamsters.
Yore solicited the VTR employees to execute union
authorization cards about 12 February, and all three shift
supervisors signed cards on this date, as did a majority of
the employees in the unit. Subsequently, Jim Osborne, an
I.A.T.S.E. business representative, telephoned VanPae-
mel on 4 March to inform her a majority of employees in
the unit signed cards and to request negotiations. Also,
on 4 March, Cornejo was conducting the regular weekly
meeting of shift supervisors at the Mucho Mas Restau-
rant. VanPaemel and David Cox, a management consult-
ant, joined the meeting and indicated that the shift super-
visors were considered management and were to assist
the Company in its campaign to defeat the Union's orga-
nizing effort.
I.A.T.S.E. filed a petition with the Board on 4 March
seeking representational status. This petition was subse-
quently withdrawn and a substitute petition was filed,
which reflected the joint organizing effort of I.A.T.S.E.
and the Teamsters. Joint petitioners assert that certain
events occurred during the organizing campaign, which
led them to file objections to conduct affecting the re-
sults of the election. As noted above, here the only ob-
jection under consideration is whether the Company in-
dicated it would, and did, enforce its rules more strin-
gently against union supporters and activists.
B. Ochoa's Discharge
The issue is whether Ochoa was discharged for good
cause or because she refused to commit unfair labor
practices in conjunction with the Company's campaign
to defeat the Unions' organizing efforts. The resolution
of this issue rests principally on credibility determina-
tions.
1. Ochoa's work history
Ochoa was hired by the Company in December 1983
as a quality control operator. 6 After about 1 year, she
was promoted to VTR operator. In general, a VTR op-
erator sets up master tapes on playback machines that are
routed to other machines that copy the master. There
were other machines that are used by the VTR operators
for duplicating commercials; a mechanism for converting
6 Quality control (QC) involved checking the first and last 30 seconds
of the tapes to ensure that the copied recordings meet certain standards.
This procedure was also referred to as "checking heads and tails."
stereo recordings to monoral; and other special switches
and devices that had to be mastered by VTR operators.
In May or June 1985, 5 or 6 months after promotion
to VTR operator, Ochoa was promoted to lead VTR op-
erator. There is no contention that lead operators are su-
pervisors as defined in the Act. In September 1985,
Ochoa was promoted to shift supervisor. Throughout
Ochoa's tenure with Respondent, she worked the dawn
shift. Ochoa asked for this shift because she had a day-
time job as a sound engineer in the music industry and
needed to be free during the day to pursue this career.
Ochoa's promotion occurred when her immediate su-
pervisor quit to work for Dubbs Incorporated, a compet-
itor of Respondent's. Ochoa also received an offer to
work for Dubbs and tendered her resignation to Re-
spondent. Evidently, almost all the dawn shift resigned;
only Ochoa and Jeff Shafer remained working the dawn
shift when she was promoted. Cornejo, who was a new
employee, said she did not want to accept r Ochoa's letter
of resignation and offered her the shift supervisor posi-
tion.
It is undisputed that Ochoa demanded salary and other
benefits, and these were referred to Jordan, Cornejo's su-
pervisor. It is also undisputed that Jordan agreed to
Ochoa's demand to receive a pay increase from $9 to
$16.50 an hour, including a 10-percent differential for
night work, on condition that she not receive overtime
but should take compensatory time. Jordan also agreed
to let Ochoa arrive for work late on occasion to permit
her to continue her job as a sound engineer. 7 During
Ochoa's employment with Respondent, she had an ar-
rangement permitting her to be late. The remainder of
this conversation is somewhat in dispute. In issue is
Ochoa's claim she told Cornejo she needed to continue
this permissive work schedule as a condition precedent
to her accepting the offered promotion. Ochoa's testimo-
ny that she was permitted to be tardy during her entire
tenure as an employee with Respondent is admitted.
There is a question, however, of the nature and extent of
her tardiness and whether it exceeded her warrant.
Ochoa admitted that when she told Cornejo of her
need to arrive late at times Cornejo replied, "We'll see."
Ochoa was then referred to Jordan to determine the de-
tails of any working arrangements. Jordan gave Ochoa
permission to be late on occasion. Ochoa does not recall
if she informed Cornejo of the arrangement she reached
with Jordan, but asserts that by mid-March Cornejo
knew of the agreement. Ochoa then testified that she in-
formed Cornejo of the need to be tardy at the time Cor-
nejo offered her the shift supervisor position. Demeanor,
shifting testimony, and inherent probabilities lead me to
credit Cornejo's assertion that she did not learn of this
arrangement for Ochoa to be tardy until Jordan informed
her in March. The basis for this credibility finding is dis-
cussed in greater detail below.
At some point, Ochoa and Cornejo developed suspi-
cions concerning each others' work abilities. I find that
in November or December 1985 Cornejo told Ochoa the
"Jordan did not appear and testify. He was an employee of the Com-
pany at the commencement of this proceeding but left Respondent's
employ before the close of the record. His absence was unexplained.
r - L
VIDEO TAPE CO. 649
dawn shift was having many returns of their work and
instructed Ochoa to slow down production because she
felt the shift was rushing its work thereby causing the
problems. Cornejo talked to Ochoa several times in late
1985 and early 1986 about returns and the dawn shift
crew's lack of training in quality control. In February,
Ochoa met with Jordan and complained about what she
perceived as Cornejo's supervisory deficiencies. Jordan
suggested that she arrange for the shift supervisors to
meet with him.
In accordance with Jordan's instructions, Ochoa ar-
ranged a meeting with Jordan and the other shift super-
visors at the Lamplighter Restaurant. Shirle and Marks
did not express much dissatisfaction with Cornejo during
their testimony about this meeting or in general. It is an-
refuted that during the meeting Jordan was told that
shift supervisors should have freer reign because they
had more technical knowledge than Cornejo. Ochoa did
not like the way Cornejo scheduled employees, and com-
plained that when employees talked to Cornejo she did
not really listen to them. I find that these complaints
were principally Ochoa's based on the fact Ochoa initiat-
ed the discussions with Jordan, going to his home one
weekend to discuss the matter with him. Also, when
Jordan related the events of the meeting to Cornejo,
Cornejo met only with Ochoa. Ochoa admitted she said
little at the meeting at the Lamplighter; that Jordan did
most of the talking by relating to the other shift supervi-
sors what Ochoa told him at his home. Ochoa admitted
Shirle said he had no problems with Cornejo and asserts
that Marks concurred with Ochoa that Cornejo's lack of
technical background created difficulties.
Cornejo testified that Jordan told her in February that
Ochoa had lodged numerous complaints regarding Cor-
nejo's management of VTR, causing him some confusion
for he had spoken with the employees and, while they
had some problems with Cornejo, they indicated they
were having major problems with Ochoa. Jordan told
Cornejo he did not want anyone discharged, but he
wanted the problem resolved. Based on demeanor, ad-
mitted complaints by employees discussed later, and in-
herent probabilities, I credit this testimony of Cornejo.
Ochoa and Cornejo met at the Smokehouse Restaurant
about 20 February to discuss the subjects Ochoa raised
with Jordan. Prior to this meeting, Cornejo learned from
other supervisors that Ochoa had told them that Come-
jo's work was inefficient, and Cornejo had denied leave
for an employee to be with his mother who was sick
with cancer. During this meeting, Ochoa reiterated her
complaint about scheduling, and Cornejo agreed she
would give Ochoa greater authority to schedule the em-
ployees on her shift. Ochoa also opined that Cornejo
should have greater interaction with the employees and
that there should be more training seminars. Ochoa be-
lieved there should be a grievance procedure. Cornejo
testified that Ochoa made more suggestions, but she
could not recall what they were.
Cornejo testified that because she was concerned
about Ochoa's performance and knew Jordan wanted to
resolve the problems raised by the dawn-shift employees,
she did not feel that this was the time to discuss these
matters, for the purpose of the meeting was to discuss
Ochoa's critique of Cornejo's performance, and she did
not want to create an adverse atmosphere. Also, Cornejo
had not spoken with any of the shift employees to deter-
mine their complaints about Ochoa. Cornejo further tes-
tified that Ochoa informed her during the meeting that
the employees were discussing acquiring union represen-
tation because they were so dissatisfied. There was no
claim that Cornejo's reaction to this information con-
tained any threats or other indicia of antiunion animus.
Cornejo implemented two of Ochoa's suggestions: To
have supervisors participate in the scheduling, and for
Cornejo begin meeting with employees.
2. Early meetings with employees
,Ochoa's first scheduling change was to alter Jeff
Shafer's days off. Shafer had weekends off, and Ochoa
thought that Shafer was a poor employee and deter-
mined to reward Darwin David Smith the only way
available, by giving him weekends off. Shafer went to
Cornejo and complained bitterly about Ochoa, claiming
Ochoa "had it in for him." Shafer also asserted that the
other employees on the shift had "major problems" with
Ochoa and were unhappy. Shafer did not appear to testi-
fy. He is currently an employee of the Company.
Shafer's was the first employee complaint Cornejo re-
ceived regarding _Ochoa. Cornejo told Shafer to try to
resolve his problems with Ochoa, and she would talk to
the other employees on the shift to see if they concurred
in his assessment of Ochoa. The next day, Cornejo start-
ed speaking individually with the employees on the
dawn shift. Ochoa was informed by Cornejo of Shafer's
complaint about changing his days off. Cornejo suggest-
ed that the problem be resolved by alternating weekends
off between Smith and Shafer. Ochoa met with Shafer
and Smith and resolved the matter as suggested. The
exact dates of these events are not matters of record.
Shortly after this scheduling problem was resolved,
Ochoa asked Cornejo if she could switch days off with
Shafer on one occasion. Cornejo said no, because the
problem in scheduling Shafer's days off was just re-
solved. I find that the denial of Ochoa's request in these
circumstances does not indicate proscribed motive.
In apparent pursuance of Jordan's instructions and
consonant with her agreement with Ochoa, Cornejo
spoke individually with dawn-shift VTR employees
Butler, Fidel°, Smith, and Martinez, Butler was the
shift's leadman. Around the first week of March, Cor-
nejo met with all the dawn-shift employees. These em-
ployees expressed some dissatisfaction with Ochoa as a
supervisor. Some of the employee complaints replicated
Shafer's. Others claimed that the shift was run in a very
disorganized manner, lacking in communication and in-
struction. There were also complaints that they were
treated rudely and without dignity. Ochoa was accused
of having what the employees called a "whipping boy
syndrome"; where she would pick on different individ-
uals. According to Cornejo's unrefuted testimony, the
employees also had individual complaints. Fidelo com-
plained that Ochoa was not completing recap sheets in
the prescribed manner. Butler complained emphatically
about Ochoa's attendance, telling Cornejo that Ochoa
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
came in late so frequently that it adversely impacted on
the shift by leaving it shorthanded at the beginning of
the shift thereby causing them to have to rush at the end
to complete the work schedule. He also complained that
Ochoa did not commence work as soon as she arrived; it
took her time to determine what had to be done and to
schedule production. Some employees also complained
that Ochoa took long lunch hours on occasion, further
adversely impacting on production. Fidelo and Butler
did not appear and testify.
Cornejo further testified that Butler and Fidelo ac-
cused Ochoa of being a liar, and they gave several exam-
ples in support of this allegation. One example is that
Ochoa would tell employees they were doing very well
and then tell other employees that same person was
doing very poorly. The employees would compare notes
w and discover the discrepancies. Cornejo asked the em-
ployees why they waited to tell her about these prob-
lems. Butler and Smith replied they were afraid of
Ochoa; she picked on them so much, and they were also
concerned such action would result in their receiving
poor performance reviews. Cornejo, one evening while
she was observing Ochoa's crew, noticed what she con-
strued as rough treatment of employees. There is a dis-
pute whether the incident was a joke or not, but I fmd
this incident forms a basis for Cornejo to credit Smith's
and Butler's claims of fear. Cornejo told the employees
they should inform Ochoa of these complaints because,
"My management style is that you solve problems at the
lowest possible level." Cornejo again met with the dawn-
shift employees 3 or 4 days later and learned that they
had not yet talked with Ochoa. About the same time,
Cornejo learned that I.A.T.S.E. was going to file the
above-described petition. Thus, it is clear that Ochoa's
job performance was being negatively critiqued prior to
any showing that Cornejo was aware of the union orga-
nizing campaign and before any claimed refusal by
Ochoa to commit an unfair labor practice.
3. The 4 March meeting
On 4 March Jordan informed Cornejo that VanPaemel
received a telephone call from Osborne and wanted to
speak with Cornejo and the shift supervisors at their reg-
ularly scheduled meeting that afternoon. VanPaemel and
Cox joined the meeting in progress. VanPaemel informed
the shift supervisors of the union organizing effort and
introduced Cox. Cox stated that the Company did not
feel unionization was in its best interest and requested
their assistance in the campaign to defeat the organizing
effort. Cox said he felt the shift supervisors were key to
the Company's campaign since they were closest to the
unit employees. According to Ochoa, Cox also asked the
shift supervisors during this and/or other meetings to
bring him information adverse to union adherents so they
"could set them up for discharge."
Ochoa claims that Cox made this request several times
at supervisors' meetings, and she discussed it with Marks.
Marks, according to Ochoa, shared her discomfort at
being asked to do something illegal, but was uncertain
whether he would comply for he had been threatened
with discharge if he did not follow these instructions.
Cox is a personnel human resources consultant. He tes-
tified that he was hired by the Company in late February
1986 to assess employee relations needs and perform
other assistance unrelated to the union-organizing cam-
paign. Several days after he was retained, the Company
became aware of the union-organizing activity, and he
was asked to help with the Company's efforts to defeat
the union organizing campaign. Cox denied Ochoa's alle-
gations and contends that, on the contrary, he very spe-
cifically told the supervisors that they could not make
threats, real, or implied; make promises or engage in
other bribing conduct; interrogate employees about their
union activities, sympathies, or feelings; and not engage
in surveillance of union activity or imply that surveil-
lance had occurred. Cox told the shift supervisors that if
they engaged in such conduct the Company could end
up with either an unfair labor practice charge or objec-
tions to the election being filed.
Cox was not a convincing witness. He exhibited poor
recall, was evasive on cross-examination, and did not
appear to be trying to render assistance in presenting a
complete, accurate, and candid picture of the events. Ac-
cordingly, his testimony is credited only when convinc-
ingly corroborated or constitutes an admission against in-
terest. In this instance, I fmd such convincing corrobora-
tion in the testimony of Shirk and Cornejo. Shine stated
that Cox repeatedly told the supervisors that they could
not threaten, interrogate, promise, or spy on employees.
They were also informed that they could not discipline
union supporters differently from other employees. Ac-
cording to Shirle, Cox did not mention observing the
work habits and conduct of Erickson, French, Yore, or
any other employee for any purpose. Cox went into
great detail about the prohibited activities and informed
them if they failed to follow these dictates, they could
possibly forfeit the right to an election. Shirle's initial
testimony appeared to be candid and forthright com-
pared to his testimony on rebuttal, when he exhibited
poor recall, defensive mannerisms, and a lack of candor.
I find his testimony regarding Con's statement to be
candid and credible. In addition to demeanor, inherent
probabilities extant in these circumstances render
Ochoa's uncorroborated assertion not credible.
4. Events between 5 and 12 March
Yore and Ochoa took Jordan to dinner on 5 March
after a company party celebrating the official opening of
a separate cassette room in the VTR area. The room was
in operation about 2 weeks before the official opening.
This was an impromptu meeting at which Yore and
Ochoa wanted to meet with both Jordan and Cornejo,
but Cornejo was unable to attend. Yore did most of the
talking, informing Jordan that the employees were un-
happy with the Company's wage structure and the lack
of any mechanism for them to lodge grievances. Ochoa
admittedly only addressed the grievance issue and talked
very little durmg the meeting. Ochoa said that employ-
ees on her shift told her that they were tired of going to
Cornejo with grievances, for Cornejo did not resolve
matters; therefore they occasionally brought their prob-
lems to Jordan. No employee on Ochoa's shift informed
VIDEO TAPE CO

651
her that they complained about her to Jordan. There is
no indication if Jordan related the content of this meet-
ing to anyone.
About 6 March, Cox met with Marks. The length of
this meeting is in dispute, but all parties who testified
about it agreed it was lengthy. At the change of shift,
Ochoa commented to Marks that she had heard he had
met with Cox for 3-1/2 hours and inquired about the
contents of the meeting. According to Ochoa, Marks
said that basically nothing had occurred during the meet-
ing. Marks informed Ochoa that she had an appointment
with Cox the next day at 8 a.m. Ochoa claimed that
Marks lack of candor during their discussion made her
suspicious. She also admitted that she did not want to
meet with Cox.
After Ochoa's conversation with Marks, she comment-
ed to employees on her shift that Marks_had "spilled his
guts out to Mr. Cox." 8 She also told them she did not
think that Marks could be trusted because Marks did not
tell her what he told Cox; and it was the first time he
was not communicative with her. According to Ochoa,
Marks also informed her on March 6 Cornejo told him
he had to be antiunion or she would fire him Marks
denied making this comment or discussing union organiz-
ers with Cox.
Ochoa met with Cox for a very short period of time
about 7 March. According to Ochoa, Cox told her he
thought PAL room operators Yore and Erickson were
the employees responsible for soliciting the union author-
ization cards. Ochoa claims she did not respond, and Cox
then asked if she knew who signed cards. Ochoa said she
did not. Cox inquired if she knew who was prounion; she
said she did not. Cox also asked if she knew what the
Union was offering, and she replied she did not. Cox
ended the meeting by asking, "Well, if you hear any-
thing, please let me know."
Cox claimed he did not meet with Ochoa on 6 March,
asserting that they met on 10 March; he had no inde-
pendent recollection of asking Marks to tell Ochoa she
was to meet with him the next morning. Cox could not
relate any details of this meeting; he resorted to surmise
in opining what might have been discussed. Cox sur-
mised that he would have asked Ochoa a little bit about
her background, given some of his background, and then
discussed whatever management concerns Ochoa might
have had. However, Cox explicitly denied asking super-
visors what they had found out about the Union, the
identity of union adherents, and how many employees
were prounion. He did ask what impressions people had
of what the Union was offering to ascertain what matters
the Company had to address to insure that the employees
were fully informed. Cox stated he never had to ask for
details after I.A.T.S.E. meetings because the employees
would detail at work what the Union was representing,
and that information quickly became common knowl-
edge.
8 Ochoa initially testified she told employees Marks had "spilled his
guts out" and later indicated that she did not use those words but that
the concept was accurate, she feared that Marks told Cox the Union's
position and named individuals involved m the union organizing cam-
paign,
Shirle corroborated Con's testimony, stating that his
meeting with Cox lasted about 45 minutes during which
Cox asked him many questions about the technical back-
grounds and experience of the employees he supervised.
Shirle affirmed Cox's claim that he did not ask who
might have signed cards. The entire discussion was relat-
ed to details of the VTR operations. Shirle admitted that
from 4 March on, he never assumed a prounion stance;
he felt "real" pressure to be promanagement. He did not
want to appear prounion during the organizing cam-
paign; he felt dependent on the Company and said he
was concerned if he did not appear promanagement.
Marks claims that he answered Ochoa's questions
about his meeting with Cox by saying all Cox wanted
was background information, such as the identity of the
employees on the different shifts, their duties, and hours.
This testimony corroborates Con's assertions. In general,
Marks was not a credible witness. He did not exhibit
good recall, and he did not appear to be testifying in a
candid and forthright manner. He frequently looked at
Respondent counsel's table for affirmation prior to testi-
fying; appeared to be trying to obfuscate some facts; en-
gaged in hyperbole; volunteered information; made con-
tradictory statements; and exhibited selective recall.
These factors are cojoined with an obvious bias against
Ochoa. He patently tried to make Ochoa look bad at
every opportunity. Also, he violated the sequestration
rule by relating some of Yore's testimony to employees
he supervised, who subsequently testified as witnesses for
the Company. Accordingly, unless his testimony is an
admission against interest or is credibly corroborated, I
will not credit his testimony.
Marks admitted that Cox did ask him about employees
sentiments; what was upsetting them. Marks replied,
"Some people were upset, they feel they weren't getting
paid enough. Some people were upset about not getting
their reviews on time and some people were upset about
the treatment they received." Marks denies informing
Cox about Yore's union organizing activities. Marks ad-
mittedly knew Yore was a leading in-house organizer for
the Union. Marks had signed a union authorization card
on 12 February, and Yore solicited his signature. 8 This
adverse testimony is credited.
9 There was contradictory evidence regarding Marks' mvolvement in
the union-organizing campaign at its inception. I credit Yore's testimony
that Marks was initially in favor of union representation for the Compa-
ny's employees and provided Yore some assistance in soliciting union au-
thorization cards. Yore was admittedly a competent and valued employee
who voluntarily left the Company in May He appeared to be a candid
witness who exhibited fairly good recall. As noted above, Marks, on the
other hand, was not credible. Witnesses who corroborated Marks' dis-
claimer of rendering Yore assistance on 12 March, when Yore got their
signatures on authorization cards, came after two of them, Alexander and
Knapp, prior to,their testifying, were told by Marks of Yore's testimony.
The sequestration rule had been voluntarily Invoked at the commence-
ment of these proceedings and before any witness testified The parties
were informed of their duty to police the rule.
The Charging Party moves to strike the testimony of Alexander and
Knapp because of the asserted breach of the sequestration rule. This
motion is denied. In accordance with the Board's decision in Robin Amer-
ican Corp, 245 NLRB 822 (1979), see generally Gossen Coq , 254 NLRB
339 (1981), and other cases cited therem, I have scrutinized these wit-
nesses and Marks' testimony with great care and find them to be not
Continued
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Marks learned of Ochoa's statements to coworkers
about his lack of trustworthiness and confronted her
about them. Ochoa's reply was to deny making the state-
ments. Ochoa admitted in her testimony that this denial
was a lie. Marks then confirmed with his sources that
Ochoa did make the statements. Before talking with
Ochoa, Marks informed Cornejo that Ochoa was accus-
ing him of going to Cox and telling him the names of
employees who were active in the union organizing cam-
paign, and thus he was not trustworthy. He told Cornejo
he would not stand for such accusations and wanted a
letter of apology. As she, did when the employees com-
plained about Ochoa, Cornejo asked him to speak with
Ochoa to resolve the matter. Marks arranged to speak
with Ochoa the evening of 11 March. Cornejo requested
that Marks report to her the results of the meeting.
When Marks met with Ochoa at the change of shifts,
he asked who was lying; his informants or Ochoa, and
said he would call her shift into the room to fmd out
who was lying. Ochoa did not respond. After calling the
dawn-shift employees into the room, Fidelo repeated her
statement to him that Ochoa told her and several others
that Marks was not to be trusted; that Marks had gone to
Cox "and was naming names and that [Marks] was going
to sell them out." Butler confirmed Fidelo's statement.
Marks requested a letter of apology from Ochoa, and
after some discussion, she agreed to his request.
One or more shift employees then asked Marks to
remain in the room while they met with Ochoa. This is
the meeting that Cornejo suggested they have to air their
complaints with Ochoa. According to Marks, Shafer
started the discussion in apparent anger, saying he was
tired of being a whipping boy and accused Ochoa of ru-
ining his reputation in the Company. Fidel° said that
Ochoa mistreated Shafer. Shafer then said Ochoa yelled
at him in public, which he found humiliating. Shafer also
accused Ochoa of changing his days off with malicious
intent. Fidelo and Butler accused Ochoa of not training
them. The employees also accused Ochoa of not running
the shift well, coming in late, starting work late, and
then rushing them at the end of the shift. Ochoa was ac-
cused of leaving work early and leaving them to do the
pickup work. The employees said Ochoa was making as-
signments in an unfair manner; at times, punishing em-
ployees by assigning them to do the more menial tasks
for weeks on end. Butler said that Ochoa communicated
poorly, explaining she did not give out work assignments
or explain how she wanted the shift run. She left it up to
the employees, who then had to fend for themselves.
Ochoa admitted the correctness of much of Marks' testi-
mony about the employee complaints even though she
credible. Knapp appeared to be trymg to protect the Employer and mini-
mize matters he thought were counter to the Company's interests He
was caught in several glaring misstatements and exhibited poor recall. He
did not appear candid. Alexander appeared to be somewhat recalcitrant
on cross-examination He did not appear forthright when he responded to
questions, often hesitating and appearing to tailor testimony to fit what he
believed was the Company's litigation theory. His testimony contained
several glaring modifications on salient points. ManuOz Sosnowsld, the
leadman on the swing shift, testified in corroboration of Marks, but the
inconsistencies in his testimony cojoined with admitted lack of recall of
key factors; and his demeanor, which appeared to lack candor, requires
that his testimony not be credited.
claimed he did not stay for the entire meeting. I there-
fore credit Marks' testimony.
Pursuant to instructions, Marks called Cornejo imme-
diately after the meeting with employees and related the
employee complaints about Ochoa to her. Marks also
said, according to Cornejo, that Ochoa initially denied
making the accusations against Marks, and only after he
had the employees confront her did Ochoa admit saying
them and agree to give him a letter of apology. Marks
told Cornejo, "the employees on the Dawn shift were
very upset and she had a real problem there that she's
going to have to take care of right away." According to
Cornejo, Marks also indicated that Ochoa's responses to
the employees' complaints were inappropriate, for Ochoa
failed to admit there were problems, and it appeared she
was not dealing with the situation appropriately. Marks
admitted that he also informed Cornejo 5 to 10 times be-
tween 4 March and Ochoa's discharge that Ochoa con-
tinued coming to work late.
After speaking with Marks, Cornejo decided to meet
with Ochoa. They met at the end of the dawn shift on 12
March. Ochoa's initial version of the meeting is much
different than Cornejo's. According to Ochoa, after
being called into Cornejo's office, she was reminded of
the 4 March meeting when she was told she was part of
management and was expected to take an antiunion
stand. Cornejo then inquired why, if she was antiunion,
she was concerned about the length of time Marks spent
with Cox. Ochoa admitted she replied she was interested
since she was to meet with Cox the next day. This was a
patent prevarication; she accused Marks of ratting on
union adherents and admitted throughout her testimony
that she was very prounion and studiously avoided assist-
ing the Company in its campaign to defeat the organiz-
ing effort.
Ochoa also claims that for the first time during her
employment with Respondent, she received a complaint
about her productivity. She stated that this was the first
time she was given a particular directive on how to per-
form her work and how to lay out her shift. Cornejo
told her that the production of the dawn shift was lower
than the other shifts. Previously, she was complimented
on the shift's high productivity. According to Ochoa
Cornejo also said . . . she wanted me to watch
Larry Yore. Kurt Erickson also—but Larry Yore
especially—that because he was helping to organize
the Union within the Company, they wanted to
keep tabs on him . . . . Watch them—also gather
evidence to see if they could possibly be fired if
they were going to cause too much trouble. [Cor-
nejo] said that Erickson and Larry Yore were po-
tential problems; that if the Union got enough mo-
mentum, they need to get rid of them, she wanted
me to watch him, closely—find out if—actually, spy
on him—what he was saying to people; if he had
any infractions that could be used against him. . . .
Spy or gather evidence for the purpose of firing
. . . That [Ochoa] was management and had
better take an anti-Union stand, or I'd be fired.
VIDEO TAPE CO 653
Ochoa was unsure whether Cornejo used the word
"spy" at this meeting, but was positive she said "spy" on
Yore at subsequent meetings. Ochoa claims she was told
to be more cooperative with Cox.
Cornejo, while admittedly knowing Yore was proun-
ion, denies instructing Ochoa to observe his and Erick-
son's work performance or activities, or instructing
Ochoa to gather evidence of infractions. Ochoa's work
performance and the Marks' incident were discussed. Ac-
cording to Cornejo, she told Ochoa there should be no
reprisals against employees who complained about her
for the goal was to solve problems. She also told Ochoa
there were to be no reprisals against union supporters.
One major complaint discussed was Ochoa's attendance.
She told Ochoa that her attendance was a major source
of employee discontent, that she came to work late so
often that it made the shift shorthanded, and employees,
who felt they were ultimately doing Ochoa's work, had
to rush production, which resulted in their doing a
poorer job. Cornejo had spoken with Jordan and under-
stood that Ochoa was permitted to come in late on the
rare occasion she had a special "gig." She told Ochoa
she needed to report for work at 11:30 p.m. and to dis-
cuss with Jordan what was meant by "on occasion."
Ochoa claimed that she told Cornejo she had an agree-
ment she could arrive late for work at the time she was
offered the shift supervisor's position. Cornejo asserts she
first learned of this arrangement when Jordan told her
some time prior to the 12 March meeting. There is no
controversion of Cornejo's referral of the problem to
Jordan, which indicates that Cornejo's version is the
more accurate and credible, and I so find. Principally,
this credibility resolution is based on my observation of
demeanor; Cornejo appeared more forthright when she
testified.
Ochoa was instructed by Cornejo to lay out the shift
in an organized manner as her initial task. She was to
assign employees to their respective tasks initially so they
knew what was to occur throughout the shift and to
avoid confusion.
Cornejo also related the employees' complaints that
when Ochoa did arrive at work she did not commence
working immediately but took some time getting orga-
nized. Ochoa was instructed to start work promptly and
not to take breaks when she arrived or otherwise delay
getting the shift started. Another employee complaint
she related to Ochoa was lack of training; the employees
were not assigned to different duties in a manner that
permitted them to become competent in performing all
VTR tasks. All the employees complained they did not
know what they were doing, and that was one of the
reasons they felt the operation of the shift was disorga-
nized.
As an example of lack of training, a particular order,
one referred to as Iskander, was discussed. There was a
plethora of testimony about the Iskander order. Only
credited relevant evidence will be discussed here, though
the entire record was thoroughly reviewed. In late No-
vember and early December, a large order was received
for the duplication of tapes. The order could not be met
as placed for two tapes were to be copied into one with
little or no black space between the segments. After ii-
tially trying to meet the order without making a new
submaster, all three shifts were unable to meet the cli-
ent's requirements. A special switch was devised to
eliminate the problem. Shirk was instructed how to use
the switch.. Shirle then instructed Marks. Ochoa was not
similarly instructed. All three shifts used the switch im-
properly, and Shirk and thence Marks received further
instructions on how to use the "Iskander" switch proper-
ly. Shirle was not sure he similarly instructed Ochoa or
her crew on how to use the switch. Shirk told Marks to
train Ochoa, but Marks did not testify that he complied
or even informed Ochoa before she left on sick leave
that her shift had been operating the switch improperly.
Shirk did ask a vague question about Ochoa's knowl-
edge of operating the switches. However, subsequently
there was no clear showing that Ochoa knew she had to
modify the manner the "Iskander switch" was used on
her shift. Further, there was no showing that an Iskander
order was run improperly by the dawn shift after Shirk
and Marks learned how to use the switch properly.
Around the same time as the Iskander order was being
filled, Ochoa was out ill for 3 weeks with pneumonia.
The exact dates the Iskander order was filled are not a
matter of record. Ochoa denied discussing her particular
deficiencies in dubbing the Iskander tapes with Cornejo
in December or any time thereafter. Ochoa claims that
during that supervisors' meeting the subject was explored
in late November or early December 1985. She also testi-
fied that when she returned to work after her illness
Cornejo asked her to consult with Shirk or technician
Bill Seider for instructions. This admission indicates the
order was not completed when Ochoa returned to work.
I find Cornejo, perhaps erroneously, believed that Ochoa
did not train herself or her crew in the proper use of the
"Iskander switch" in a timely and responsible manner,
This conclusion is based primarily on demeanor. Cornejo
visibly attempted to present all the facts to the best of
her ability and with candor.
Regarding the treatment of employees, Ochoa was
told that every employee on the shift had been treated
rudely, without dignity, and were regarded as things
rather than people. Ochoa was informed she had to treat
them in a more positive manner; even when they made
errors, they were to be corrected in a positive manner.
They were not to be told what they did wrong, but how
to properly perform the task. Cornejo told Ochoa one of
her problems was a tendency to jump to conclusions
based on only a few facts.
Also discussed were Ochoa's lies, which, she was told,
made it difficult to supervise her shift because she lost
credibility with the crew. Ochoa was instructed not to
lie to the crew but, again, to treat them with dignity.
Cornejo said Ochoa was to act professionally, not to yell
and scream at the employees. Another area discussed at
this meeting was completion of master evaluations at the
time a dub is made. Ochoa admitted completing the form
at the end of the shift from memory. The master evalua-
tions are a method of checking that the copies sent to
broadcast stations are of the requisite quality. Cornejo
told Ochoa she found it difficult to believe that she filled
the forms out from memory since the document could
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
require the recordation of many different pieces of infor-
mation. Cornejo told Ochoa to complete the master eval-
uation form as the tape is played. Cornejo felt Ochoa
was very receptive to these criticisms and said she would
do whatever was asked.
Ochoa was further instructed to give Marks a letter of
apology. Cornejo said Ochoa's statements impaired
Marks' credibility as a supervisor who was conducting a
campaign for the Company, and it was imperative that
his credibility be restored. Ochoa and Cornejo agreed to
meet weekly. Cornejo also continued to meet with the
dawn-shift employees.
Around this time, Cornejo instructed Ochoa and
Butler to check that Yore was covering the PAL room
and, if not, fmd a substitute. If a substitute could not be
found, they were to telephone Cornejo so she could get
a substitute. Yore admittedly had attendance problems,
and as there was only one employee assigned to the
PAL room during the dawn shift, there was a need to
insure that it was covered. Yore did not dispute Come-
jo's testimony that there were evenings that he was late
or failed to show up for work without informing his Em-
ployer. Thus, the supervisors were asked to determine
that the PAL room was covered for the shift. Ochoa and
butler never telephoned her to report Yore absent and
request her help in getting a replacement; so Cornejo as-
sumed the supervisors were able to cover the PAL room
or Yore resolved his attendance problem. Ochoa admit-
ted that she had nominal control over the PAL room
during the dawn shift, and if Yore was absent she would
not know unless he telephoned or she checked during
the shift. Ochoa never reported any rule infractions by
Yore and Erickson, and there was no credible explicit in-
dication that this failure was a basis for Ochoa's dis-
charge. I further fmd Comejo's concern that an admitted
attendance problem was rectified is not indicative of pro-
scribed motive.
I find Cornejo's version of this meeting to be the most
credible based on demeanor and demonstrated recall.
Also, Ochoa admitted that at the end of the meeting,
Cornejo gave her a memorandum noting the areas they
discussed. This memorandum clearly corroborates Cor-
nejo's testimony. Ochoa's failure to mention during her
testimony most of the items discussed until shown the
memorandum on cross-examination indicates a lack of
candor and a willful failure to give full disclosure. Ochoa
claimed she had total recall and, if this claim is credited,
then her failure to disclose the entire ambit of the meet-
ing indicates a tendency to obfuscate. Further, Ochoa ad-
mitted that she lied to Marks. Ochoa admitted, in cor-
roboration of Cornejo's earlier testimony, that crewmem-
bers accused her of lying during her meeting with them
on 12 March. Ochoa claims the reference was to her
comments about Marks, but the basis for this assumption
was not revealed. Her tendency to prevaricate and/or
obfuscate was observed several times, and it was accom-
panied on occasions by lack of responsiveness and the
volunteering of information when attempting to color
her testimony, particularly on cross-examination. Ac-
cordingly, Ochoa's testimony will be credited only when
it is an admission against interest or credibly corroborat-
ed.
5. Events between 12 March and 9 April
After the meeting with Cornejo, Ochoa admitted that
she withdrew from the crew and modified some of her
methods of supervision. Ochoa would make the assign-
ments at the start of the shift, usually assigning herself to
the cassette room, thus she was removed from the em-
ployees she was to supervise. Ochoa explained that the
employees complained they did not like working in the
cassette room. About mid-April, Fidelo and Butler told
Ochoa she was spending too much time in the cassette
room, she was needed in the main room. In mid-April
she implemented the employees' suggestion that they all
take turns in the cassette room. She stopped taking
breaks with the crew. Initially, Ochoa testified that in
accord with Comejo's instructions she made assignments
rather than letting the employees choose. She then modi-
fied her testimony and stated that contrary to Cornejo's
instructions she let the employees choose their duties and
only asked that they report their selection to her. She
again modified her testimony and claimed that the em-
ployees did not report their selections to her. I find that
this method of supervision did not comply with the in-
structions to train the crew, communicate more fully
with them, and ensure good organization at the com-
mencement of the shift. Ochoa also admitted that she
was not always at work on time between 12 March and
9 April. Ochoa's admissions against interest are credited.
According to Ochoa, around April 1 Cornejo instruct-
ed her to make "pick up passes"" in a different manner,
and she claims she complied. Ochoa did not comply with
the instruction that master evaluations be completed as
the program was running.
Shirle, during mid-February, told Cornejo he observed
the dawn shift making more and greater mistakes. He
also noted that Ochoa was less accessible to her shift
after Cornejo spoke to her in March. Shirle told Cornejo
there appeared to be a lot of labeling mistakes on the
dawn shift, which his day shift had to redo. He also re-
ported that shows were put in the wrong boxes, and the
dawn shift was making pickup passes inefficiently, which
caused his shift to pick up the work that put him behind
schedule. It is not asserted Cornejo solicited this infor-
mation.
All the witnesses recognized that Shafer, who worked
on the dawn shift, was a problem employee to whom
many of the above-mentioned problems were ascribed by
Ochoa. Ochoa did admit that she was responsible for the
operation of the shift and never recommended Shafer be
discharged.
Marks reported to Cornejo throughout March and
April, until Ochoa's discharge, that Ochoa continued to
report to work late; she never came in by 11:30 p.m. The
truth of this statement is not dispositive; rather, the ques-
tion is what Cornejo understood based on the facts
before her. There is no evidence that Cornejo was in-
formed that Ochoa's attendance had improved after 12
March. There is no indication Cornejo did not or patent-
'° A pickup pass occurred when the order required snore copies be
produced than could be run at one tune. The additional run(s) was re-
ferred to as a "pickup pass."
VIDEO TAPE CO. 655
ly should not have believed Marks. Marks had previous-
ly complained to Cornejo that he thought Ochoa was
falsifying production records. There is no basis to credit
the accuracy of this statement because I found Marks not
to be a credible witness, but the impact of these state-
ments on Cornejo's assessment of Ochoa's performance
as a shift supervisor will be considered.
Ochoa claims that in late March or early April she
told all the employees on her shift she thought she was
being harassed by the Company because she refused to
report the work errors of union adherents. She also told
the crew that Cornejo was out to get her because of her
failure to make these reports, for Cornejo wanted to fire
union adherents. Ochoa told Fidelo she had been asked
to spy on Yore to gather evidence so he could be fired.
She made this statement to Fidelo more than once.
Ochoa also asserts she made similar comments to Smith
and Shafer around the same time. Smith testified he did
not have a conversation with Ochoa in March or April
in which she told him she had been asked to spy on em-
ployees. Also, Smith testified that Ochoa never told him
she had to spy on Yore. Smith, a current employee of
the Company, is found to be a credible witness based pri-
marily on demeanor. Also considered is Smith's candor.
He readily testified about matters that were clearly
against the Company's best interests in a manner be-
speaking an intent to be forthright. There is no allegation
that these alleged unsubstantiated comments were viola-
tive of the Act. I find the assertion that Ochoa made
these statements to crewmembers an unsuccessful at-
tempt to buttress unsubstantiated testimony that Cox and
Cornejo directed her to spy on Yore and Erickson, and
not credible.
At the shift supervisors' weekly meetings from 11
March on, as here pertinent, Cornejo informed the shift
supervisors that they were expected to assist the Compa-
ny in its campaign by disseminating information for the
Company and to explain its position to their employees.
Cornejo learned that Ochoa was not handing out the
Company's campaign literature or talking to the employ-
ees as instructed. Therefore, Cornejo told Ochoa she had
to disseminate the literature and speak to the employees
about the campaign. Ochoa admitted she continued not
to follow these instructions. Instead of handing out the
literature to each employee as instructed, she left the ma-
terial on a table. She did not talk to the employees about
the Company's position. It was apparent to Cornejo that
Ochoa was not particularly cooperating with the Compa-
ny's request that the shift supervisors take a promanage-
ment stance during the union organizing campaign.
Marks was assigned to hand out the material and talk
with the dawn-shift employees about the campaign.
Ochoa and Cornejo met again on 3 April to discuss
Ochoa's progress in improving her performance as shift
supervisor. Cornejo had learned from the dawn-shift em-
ployees that Ochoa was no longer supervising and talk-
ing to them. The crew said Ochoa would come to work,
arid then withdraw; going into the cassette room and
acting very distant. Ochoa's cessation of performing
normal supervisory duties gave Cornejo cause for grave
concern. Cornejo told Ochoa she had to talk to and us-
pervise her crew. Ochoa was given specific instructions
on how to set up assignments and train the crew.
During this meeting, the dawn shift's productivity
problems were also discussed. Cornejo was not dissatis-
fied with the quantity produced by the shift; in general,
it was the quality of the products that was the problem.
One difficulty Cornejo mentioned was that the shift had
a lot of "redos." For example, a large order of cassettes
were run, and after they were "QC'ed," it was discov-
ered there was one show in the beginning and another at
the end. Another problem involved shows where there
were bars in the middle of the tape.
Another matter discussed on 3 April was the low pro-
ductivity one evening when Cornejo thought the crew
did half of the expected work. Productivity was lower
because a machine, the auto dubber, was not working;
however, Ochoa also loaded and copied the wrong
master tape and did not discover the error until the
entire run was completed. The master slate was to be
checked at the beginning of the tape to prevent such
errors, and Ochoa had failed to follow proper procedure.
Cornejo felt this to be a continuing problem on the dawn
shift. To Cornejo, this was another indication of improp-
er performance. Cornejo also specified how assignments
were to be made and the training the crew was to re-
ceive. Ochoa indicated to Cornejo she would follow in-
structions.
During this meeting, they discussed the dubbing of a
show called, "Fame." The project was assigned to the
dawn shift, but the master tape was not on the shelf
where it should have been if ready for "dubbing." Ochoa
went into the edit room, found the master tape, and ran
the copies. The master was not completely edited, and
the shift wasted the time making the copies. There was
also a risk that the copies, which were missing an adver-
tisement, could have been sent to stations for broadcast,
which would have caused the Company major difficul-
ties. The established operating procedure is that only edi-
tors can bring the master tape out of the edit department
and place it on the setup shelf, for they are the only em-
ployees who know when the tape is ready for dubbing.
Ochoa was told her explanation that the master had a
sticker indicating it was integrated and thus ready to dub
was no excuse because there was no way to tell it was
ready to copy since it was still in edit; and Ochoa had
failed to follow instructions not to take items from edit.
Cornejo had previously told Ochoa that she was not to
take masters out of the edit rooms because of the dangers
inherent in such action. The shift had standing instruc-
tions to go on to the next shift's schedule if there is a
paucity of work.
The manner in which Ochoa ran the material for the
show called "The Price is Right" was also the subject of
criticism. Ochoa explained that the auto dubber was
broken, but she failed to explain why the program had
not been handled consistent with Cornejo's instructions
on how "pickup passes" should be managed.
There was an abundance of evidence regarding the
productivity of the three shifts. The day shift had the as-
sistance of expeditors who could run and get fresh stock
if the stock pulled for their work was inadequate or de-
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fective. Defective or poor stock was a continuing prob-
lem for all three shifts. The dawn shift could, and did, on
occasion use the stock pulled for the day shift when it
needed more stock. This could create a problem for the
day shift, for they could not pull new stock until the
warehouse opened at 9 a.m., an hour after their shift
started. Also, the typists who prepared labels worked
during the day, so that their errors could be readily cor-
rected. Editors also worked during the day so any confu-
sion about a particular editing job could be quickly re-
solved. In early March, a day-shift employee was perma-
nently assigned to the cassette room, further enhancing
their operating advantage. The engineers were available
during the day to repair any broken equipment. These
added personnel were also present for a portion of the
swing shift but were absent from the dawn shift. These
advantages were somewhat offset by the demands on the
day shift to do more rush orders and be subjected to
interruptions from the telephone or other sources. The
dawn shift has a few more machines available for their
dubbing, for during the other shifts editors are using sev-
eral recorders. Also, the dawn shift was given large runs
that made producing large numbers of copies easier.
There was no clear and convincing credible showing
that these operating differences in operations were used
as a pretext for Ochoa's discharge.
Cornejo did not have a strong technical background in
the copying of videotapes, and there is a possibility that
she was incorrect in some of her assessments of Ochoa;
but the record fails to demonstrate that these assessments
were pretexts or used to cover a proscribed motive.
Ochoa admitted many of the errors, did not dispute
much of Cornejo's criticisms during their meetings, and
the General Counsel failed to convincingly demonstrate
the criticisms were mere device and not warranted.
The overall comparative productivity of the shifts did
not change during the union organizing campaign. This
was not given as a basis for Ochoa's discharge. Cornejo
testified credibly that when she commenced working for
the Company, Ochoa's shift seemed to be the most pro-
ductive, but starting around the time of the Iskander
order, Cornejo began to reform her opinion of Ochoa.
One reason Cornejo began to develop questions about
Ochoa's ability is that the dawn shift had an abnormally
high return-reject ratio; i.e., the relative number of times
the broadcast stations reject the Company's product and
return it. The Company must make good on the order so
the program can be aired. Contrary to Ochoa's testimo-
ny, Cornejo credibly testified that she discussed the in-
crease in the dawn shift's return-reject ratio with Ochoa
a number of times and asked Ochoa to slow down to im-
prove quality control. Cornejo did not know the cause of
the problem, but felt the shift was rushing. There was no
diminution in the return-reject ratio for the remainder of
OChoa's employment with the Company.
Other meetings between Cornejo and Ochoa from De-
cember 1985 through April involved other criticisms of
Ochoa's performance. For example, one matter discussed
was that the employees needed better training in quality
control. One of the shift employees was suspended for a
quality control error. Lack of stock caused problems,
and how to deal with this was the subject of one or
more meetings. Cornejo did not give Ochoa any written
warnings about her performance until April. This lack of
written warnings does not indicate proscribed motive,
because it was not established that Cornejo had a prac-
tice of giving written warnings without first counseling
the employee several times. In fact, there is unrefuted
evidence she had the practice of first orally counseling
employees. The evidence indicates that she had an infor-
mal management style. Comejo's testimony that she re-
sorted to issuing memos only as a last resort, or when
the event was deemed very serious, is unrefuted. Other
problems involving the dawn shift, which Cornejo dis-
cussed with Ochoa, included labeling and boxing difficul-
ties.
Also, in early 1986 as well as after 4 March, Cornejo
recalls Ochoa having a recurring problem in dubbing
orders referred to as "Nissan." Nissan is run every 6
weeks, and it is a very large order. Several times, Cor-
nejo recalled, the tapes were run, and there was a toning
problem indicating it was improperly set up. Cornejo re-
calls one of these "Nissan" shows had a video problem;
bars were not properly inserted in the copies. Ochoa
denied this problem was ascribable to her shift, stating
that it was Marks who had the recurring toning problem
with the "Nissan" tapes. In sum, I find that Cornejo's
criticism of Ochoa did commence prior to the com-
mencement of the union organizing campaign. The evi-
dence also supports a fmding that the criticism intensified
from 12 March to the date of Ochoa's discharge.
Admittedly, Marks was not as technically competent
as Shirle and in 1985 and 1986 had difficulties as a super-
visor. Cornejo admits to having criticized Marks for low
productivity in the fall of 1985. Marks was assigned to
observe the dawn shift to determine the procedures it
used to attain high productivity. The exact date of the
assignment was not adduced on the record. There was
no showing Respondent's treatment of Marks was dispar-
ate from that of Ochoa. After Cornejo spoke to him
about his deficiencies, she observed a great improvement
in his performance.
In early April during a shift supervisors' meeting,
Marks and Ochoa asked to attend a union meeting; they
had been invited. Cornejo and Shine credibly testified
that the shift supervisors were instructed to stay away
from the union meeting for their presence could be con-
strued as unlawful surveillance. They also credibly refut-
ed Ochoa's claim that Cox said Erickson, Yore, and
French were
. . . the employees responsible—he also at this
point mentioned Gina French, who was helping the
Teamsters to organize. . . . That they have to
watch very carefully, and at this point they were
getting worried about the Union coming in; that
these people had to be gotten rid of—to see if they
could gather evidence to get them fired. See if there
were any type of infractions. Also that the company
was going to be tightening the rules—they'd be [sic]
lax before, and they weren't going to be lax any
more, and start enforcing rules more stringently.
VIDEO TAPE CO. 657
There was no evidence that the supervisors attending
this meeting had any contact with French, no less an op-
portunity to observe and direct her.
Ochoa's claim that Cornejo correspondingly said that
they should start surveilling prounion employees is simi-
larly chs" credited for the previously mentioned reasons.
Inherent probabilities also render this testimony not cred-
ible. For example, Yore mentioned to Cornejo in April
that he wanted to quit because of the tensions caused by
the union organizing campaign. Cornejo, twice, tried to
dissuade Yore from quitting. This action is antithetical to
the claimed goal of finding basis for Yore's discharge be-
cause he was a union adherent. Analogously, Ochoa's
claim that Cornejo told her to spy on Yore on 3 April
and subsequently to gather evidence to give cause for his
discharge is not credited. Cornejo credibly denied
making the request or asking about Yore's work per-
formance to gather evidence for his discharge at this or
any other time. As noted above, Yore's admitted attend-
an& problem was addressed without threat of discharge
or reprisal because of his union activities.
Cornejo met with Ochoa on 9 April for the express
purpose of determining whether assignments were being
made in a manner consonant with her instructions.
Ochoa said she was only making assignments to the cas-
sette room. Cornejo told her that she was not complying
with instructions; the employees were to receive specific
assignments in a manner that ensures they are trained on
all the machinery used by VTR operators. Ochoa re-
sponded that she thought it worked best by permitting
the employees to choose their own tasks, to operate the
shift democratically. Cornejo told Ochoa that was not
the point; as supervisor, she was to ensure that the work
was organized and the employees trained on all the
equipment; that the shift was still disorganized and,
democratic or not, Ochoa was to make the assignments.
Ochoa testified that during this meeting, Cornejo criti-
cized her for failing to distribute and discuss with em-
ployees the Company's campaign literature. Ochoa told
Cornejo that she was leaving the material on a table.
Cornejo said that was not adequate; she was to read the
material to the employees. Ochoa said she would comply
with this instruction in the future. Ochoa admitted she
once again did not adhere to this promise and failed to
obey instructions. Ochoa was also told during this meet-
ing that she no longer had a flexible work schedule; she
had to start the shift on time.
6. Events occurring about 18 April
Cornejo met with several of the dawn-shift employees
prior to 16 April. Butler, Smith, and Fidel° told her they
were sick and tired of the "Ochoa problem." According
to Cornejo, Fidelo said she was beginning to feel sorry
for Ochoa. Fidelo had been one of Ochoa's most vocal
critics. Also, Fidel° said she felt her job was in jeopardy
because of her lack of training. Butler told Cornejo he
had expected a resolution of the problem by this time; he
felt talking to Ochoa was a waste of time and other
crewmembers concurred. Smith told Cornejo there was
no change in Ochoa, except that she withdrew from the
crew. Smith also said he did not want to discuss the
matter anymore for he was tired of the meetings and
Ochoa did not seem to be taking the situation seriously.
Adding to this appearance was information related by
Butler and Marks that Ochoa still was not arriving to
work on time. Certain production problems continued to
plague the dawn shift; one mentioned frequently at the
trial was labeling errors. Although mislabeling occurred
on other shifts, Cornejo estimated that the problem was
four or five times greater on the dawn shift.
Cornejo was also informed the dawn crew commonly
had to restart the running of orders. Cornejo thought the
restarts were caused by Ochoa's failure to inform the
crew of the program to be dubbed, which machine the
master was to run on, and the number of dubs to be
loaded for the various formats; then starting the master
to run when one of the formats was not properly pre-
pared. This resulted in having to stop the run, rewind
machines, and start over. Although restarts occasionally
occur on other shifts, Cornejo opined the dawn shift ex-
perienced a much higher number, comparatively.
Cornejo concluded that Ochoa was unresponsive and
not following instructions. Accordingly, she prepared a
memorandum on 16 April entitled, "Performance Prob-
lems and Corrective Action." This missive gave a precis
of their 12 March and 3 and 9 April meetings. The
memorandum stated, as follows:
Your failure to make assignments is directly con-
trary to my instructions. This and other problems
reflect directly in the morale of your crew, who
state they are so unhappy with the environment that
they are no longer willing to discuss the problem
with you. Productivity and quality are also being
impacted, as we have discussed. Examples include
extremely low syndication output on 3 April (only
The Price Is Right and 124 cut spots); not checking
masters before dubbing (resulting in running the
wrong master with loss of dub and Q.C. time); inac-
curate labeling and casing (i.e. - the entire episode
of Divorce Court being placed in the wrong cases);
and restarts since crew members are not being told
which masters are going up.
Failure to arrive at work in advance of crew's
rival is also affecting your ability to plan their as-
signments and impacting productivity. We have
previously discussed the need for you to be at work
by 11:30 p.m. and to give your full attention to your
responsibilities here. Timely and regular attendance
is absolutely essential to the performance of respon-
sibilities.
These productivity, quality, attendance and per-
sonnel problems are severe, cannot be tolerated and
must be corrected. Your performance as supervisor
and leader of the dawn shift must show immediate,
significant and sustained improvement if you are to
be allowed to continue in this position. All previous
directions concerning work assignments, quality and
productivity, attendance, communications and em-
ployee treatment must be implemented immediately.
In addition, you should develop plans for long-term
improvement in each of these areas of responsibility
and present them to me by 8:30 a.m. on Friday,
April 25.
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cornejo discussed these problems with Ochoa about
the time she gave her the memorandum about 18
April.11
According to Cornejo, prior to this meeting, Smith
told her Ochoa's performance had improved; she was
not as mean as she used to be. Smith also told her Ochoa
was still spending a lot of time in the cassette room.
Smith testified that about this time he met with the crew
and Cornejo and informed her that Ochoa and the situa-
tion had improved quite a bit. Smith admitted in his testi-
mony there were still problems, including a lack of com-
munication. Cornejo interpreted that as indicating the
employees were happy they were not being harassed as
much and an esprit de corps was redeveloping. Smith
also opined that the production of the shift was not com-
paratively unfavorable. In a separate conversation with
Butler, Cornejo was informed that Ochoa was not treat-
ing the crew as harshly because she had withdrawn to
the cassette room; that not much else had changed, but
at least Ochoa was a lot easier to deal with. Ochoa told
Cornejo she thought relations with the crew had im-
proved, and they were not tired of talking with her;
rather, they were tired of talking with Cornejo.
Ochoa claimed her attendance had improved. Cornejo
responded that improvement was insufficient; she needed
to be there at 11:30 p.m. to organize and start her crew.
It was determined that Ochoa still had not talked to
Jordan about the flexible starting time agreement; Cor-
nejo again instructed Ochoa to resolve the matter and
said she needed to be there on time. Regarding the
boxing and labeling problems, Cornejo holds all shift su-
pervisors responsible for all problems; particularly those
faults she mentions as needing correction. Ochoa failed
to pay the necessary attention to these continuing prob-
lems.
The matter of restarts was discussed. Ochoa claimed
she had improved her communications with the crew.
Cornejo stated the continuing problem of restarts indi-
cates her need to improve communications to avoid re-
starts with the attendant loss of productivity and in-
creased employee dissatisfaction. The loading of wrong
masters continued to be a severe inadequacy on the
dawn shift and was also mentioned. Cornejo felt this
problem occurred much less frequently on the other
shifts. Ochoa admitted that about 3 April she did not
look carefully at a master that she had loaded and
dubbed, and only after the show was completely copied
did she discover it was the wrong episode. It is unrefut-
ed that if Ochoa had read the slate at the beginning of
the show and had filled out the master evaluation form
she would have discovered the discrepancy between the
schedule and the master put on the shelf.
" Ochoa claimed that she signed the memorandum during the meet-
mg, but did not read it until she got home. This attempt to explain away
her failure to refute some assertions m the memorandum during the meet-
mg is not credited for the previously stated reasons. Furthermore, she
admits that Cornejo did discuss the problems mentioned m the memoran-
dum with her about 18 April, yet she failed to present a detailed and rea-
sonable refutation at the time. Ochoa's claim that Cornejo agam inquired
at the meeting whether she was watching Yore is also not credited for
the previously stated reasons. Similarly, her testimony that Cornejo told
her she was still required to take an antiunion stand or suffer the conse-
quences of discharge is not credited.
Ochoa explained the low productivity of that evening
as attributable, at least in part, to the wrong master being
placed on the shelf. She did not testify about the avail-
ability of day-shift work for her crew. There may have
been a plethora of day-shift assignments the shift could
have done, consonant with established practice, as de-
scribed above. Thus, her explanation is incomplete and
unconvincing.
Appended to the memorandum was a work order for
the Larry Jones Show, which is a rehgious program.
The documents attached to the memorandum were not
given to Ochoa but, admittedly, she saw them. The work
order instructs the shift supervisors to make sure that the
telephone number contained in the master copy matches
that on the work order so pledges can be received. On
26 March, a show had been apparently queued by Ochoa
that was dubbed with the wrong telephone number. A
client-representative who works at the Company in-
formed Cornejo there was a problem with the product
supplied that had been caught before being aired, but for
which the Company had to redo the program. If the pro-
gram aired with the wrong telephone number, it could
have cost the Company a great deal of money. Ochoa
said she did not know how the mistake had occurred,
she had just made a mistake. The Company requires that
the religious shows it dubs be done with great care to
avoid just such a mistake. Ochoa tried on occasion
during the trial to deny responsibility for the error, but
admittedly never denied she was the responsible operator
to Cornejo. Thus, the record is clear that Cornejo be-
lieved, without dispute, Ochoa was responsible for this
very serious error.12
Another document attached to the memorandum dealt
with the manner Ochoa continued to run "pickup
passes." Ochoa continued to disregard Cornejo's instruc-
tions on how to run the "pickup passes." Cornejo be-
lieved Ochoa's method of operating was less efficient
and more costly. Another matter discussed was taking a
show out of edit, contrary to prior instructions. This crit-
icism related to the "Fame" master discussed in the sec-
tion above dealing with the events of 3 April. Ochoa ad-
mitted she had been instructed prior to 3 April not to
take masters out of the edit section. Ochoa did not agree
with Cornejo's method of running "pickup passes," but
there is no showing that she convinced Cornejo to
permit her to continue running them in a manner con-
trary to Cornejo's prior instructions. On the contrary,
Cornejo reiterated her instructions.
7. Ochoa's discharge
On April 25 Cornejo had a very brief meeting with
Ochoa pursuant to the last sentence of the memorandum
Cornejo gave Ochoa about 16 April. The content of the
meeting is disputed. For the reasons stated above, Come-
jo's version of the meeting is credited. When Cornejo
asked Ochoa for her plans to improve her performance,
Ochoa replied she thought everything was fine and no
12 Ochoa's claim that Cornejo again asked her if she had any infrac-
tions against Yore, mchcated the Company was eager. discharge him,
and threatened Ochoa if she did not take an antiunion stand is not cred-
ited for the previously stated reasons.
VIDEO lrAPE CO. 659
plans were required. Cornejo told Ochoa she was very
disappointed; she gave Ochoa specific instructions to
bring plans and thought they were required. Although
she expected written plans, she did not require them and
would have accepted an oral presentation.13
Ochoa also stated she felt no long-term improvements
were required; that things were going fine. Cornejo in-
formed Ochoa she waS very upset and disappointed with
Ochoa's failure to comply with her instructions and ter-
minated the meeting. Prior to the meeting, Cornejo tried
to speak with the dawn-shift crew to determine if they
were still dissatisfied, but they did not want to discuss
the matter.
After this meeting Cornejo concluded that Ochoa
should be discharged because, after repeated instructions
to take steps to improve her performance as a supervisor,
Ochoa still refused to follow instructions and cooperate
with Cornejo. These recurrent failures led to Cornejo's
decision to discharge Ochoa rather than impose another
form of discipline, such as suspension. Cornejo discussed
this decision with Jordan about one-half hour after her
rneeting with Ochoa. Cornejo told Jordan that she felt
she could do no more; the problems were not satisfacto-
rily resolved, and she was unable to get Ochoa to follow
instructions. Thus, she concluded Ochoa should be termi-
nated. Jordan concurred in her conclusion but wanted to
discuss the decision with Cox in light of the union orga-
nizing campaign. Cox also gave his imprimatur to the de-
cision to discharge Ochoa.
On 29 April, Ochoa's next workday after Cornejo
spoke to Cox, Cornejo told her she was sorry it did not
work out, handed her a check, a discharge notice, and
told her she was terminated. Ochoa appeared upset and
said, "she thought this was a personal thing on my part.
[Cornejo] told her I'm sorry she felt that way; however,
she was still terminated."
The termination memorandum provided, as follows:
Although we have had several meetings discuss-
ing productivity and personnel problems on your
shift, these problems continue to exist. Since our
last discussion, for example, an order due by 9:00
a.m. was not completed by your shift despite the
fact that two people , advised you of the deadline;
cassette orders are still being run incorrectly; and
tape boxes continue to be mislabeled. In addition,
despite my written request, you failed to bring any
13 Ockoa testified she told Cornejo she had an oral presentation for
long-term improvement prepared, and Cornejo insisted she wanted the
plan in writing Ochoa said the memorandum did not specify a written
plan, and she refused to put anything in writing. Oclioa also claims she
told Cornejo she did not agree with the memorandum. When Ochoa re-
fused to put anything in writing, she claims Cornejo replied she requested
the plan to be written, accused Ochoa of being utterly hopeless, and then
walked out of the room The memorandum merely requests a presenta-
tion. For the heretofore stated reasons, this testimony is not credited. The
testimony does have some significance in Ochoa's admission that she told
Cornejo she did not agree with the memorandum, and her claimed refus-
al to follow a directive to put the plan in writing. Considering the nature
of the memorandum and the criticisms contained therein, it is curious, to
say the least, that Ochoa claims she refused a directive to put her plan in
wntmg. If Ochoa's testimony was believed, it is another admitted blatant
refusal to follow one of Cornejo's directives.
plans for long-term improvement to our meeting of
April 25th.
After many repeated discussions and warnings,
your performance as a supervisor continues to be
unsatisfactory. You are therefore discharged from
the Video Tape Company at the end of your shift
on Tuesday morning, April 29th, 1986. A check for
payroll monies due you is attached.
Ochoa admitted reading the dismissal notice and refus-
ing to sign it. She also testified she told Cornejo that she
did not agree with the notice. Ochoa further admitted
she did not accuse Cornejo of firing her because she re-
fused to spy on any employee. The day before she was
discharged Ochoa did speak with an I.A.T.S.E. repre-
sentative and complained she thought she was receiving
unfair treatment and harassment because of union activi-
ty. Later in her testimony, Ochoa claimed she did not
tell the Union's representative the union organizing cam-
paign was the motive for the harassment. (Compare
Ochoa's testimony Tr. 202 with her testimony of Tr.
206.) This inconsistent testimony is representative of the
recurrent shifts in Ochoa's position throughout the pro-
ceeding and is one basis for not crediting her testimony.
In any event, she did not claim the basis for the asserted
improper treatment was due to her refusal to spy on any
employee. Ochoa claimed she knew she would be fired
when she spoke to the union representative.
Further, Ochoa admitted she told Cornejo she thought
the reason for her discharge was personal. She made no
reference to any alleged instructions requiring spying on
Yore or Erickson. She tried to explain this apparent dis-
crepancy by saying she believed that one reason for her
discharge was personal, and then said she did not go into
the reasons she thought she was being fired. Of course,
this claim is inconsistent 'with her admission that she told
Cornejo she thought she was fired by Cornejo for per-
sonal reasons.
The incidents occurring subsequent to the decision to
discharge Ochoa will be considered only as substantiat-
ing patterns of performance and for assessing credibility.
The reference in the dismissal notice to the item due for
pick up at 9 a.m. was an order for dubs of a show called
"The Gig," which the swing shift had not completed.
The task that was incomplete was to perform a quality
control check of 12 tapes. The dawn shift had two
orders that needed to be done for customer pickup at 8
and 8:30 a.m., respectively. Ochoa testified these orders
took precedence, and difficulties in the PAL room,
where Smith had recently been assigned, required much
of her attention. She left "The Gig" assignment to be
completed by the day shift. The dawn shift did complete
its assigned work and started doing work scheduled for
the day shift. Cornejo's testimony that the day shift's
work started by the dawn shift was not a rush assign-
ment, is undisputed. Also, Ochoa never claimed that all
the employees on the shift were assigned work that took
precedence over "The Gig," a known priority item.
Ochoa admitted that three employees were available to
"QC" "The Gig" by 7:30 a.m., but they commenced
doing the day shift's work. There is no claim that "The
Gig" could not be completed before the end of the shift.
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ochoa's explanation of why her shift failed to com-
plete "The Gig" assignment was deemed inadequate by
Cornejo because one dawn-shift employee could have
finished the order in about 10 minutes; yet one employee
was assigned to do nothing but cut spots all evening
while other employees finished their assignments and
started doing work that had been on the day-shift sched-
ule. Ochoa does not dispute that day-shift work was
started by her crew nor did she claim there was some
reason the day shift's work took precedence over the
quality control of "The Gig,"
Ochoa did testify that Marks' shift had a tendency to
leave "QC" work for the dawn shift in what she consid-
ered unwarranted amounts, and it was a source of dissen-
sion between the shifts. The mislabeling mentioned in the
memo involved putting an order for Redkin Laboratories
in boxes marked "Tales of the Dark Side." Shirle told
Cornejo about this labeling error. Ochoa asserted that
Shafer and another employee were responsible for the
error. Ochoa never claimed she took any steps to elimi-
nate or reduce the labeling errors occurring on her shift.
III. ANALYSIS AND CONCLUSIONS
A. Discharge of Ochoa
It is a violation of Section 8(a)(1) of the Act for an
employer to discharge a supervisor because he or she re-
fused to commit an unfair labor practice for the employ-
er. Parker-Robb Chevrolet, 262 NLRB 402 (1982); Crouse-
Hinds Co., 273 NLRB 333 (1984); and Best Western
Motor Inn, 281 NLRB 203 (1986). The employer must
then show the supervisor would have been discharged
absent the supervisor's refusal to Commit an unfair labor
practice. Wright Line, 251 NLRB 1083 (1980). Counsel
for the General Counsel argues that Ochoa was dis-
charged because she refused to spy on two union activ-
ists, Yore and Erickson. 14
For the aforementioned reasons, I do not credit
Ochoa's testimony that Cornejo repeatedly instructed her
to watch and spy on prounion employees Erickson and
Yore to ascertain if they committed infractions of com-
pany rules that could be used to fire them. I also fmd on
the same ground that Cox did not make similar state-
ments to Respondent's supervisors. I also do not find the
General Counsel's and Charging Party's arguments in
support of this contention persuasive. These arguments
include a claim that Cornejo did not become dissatisfied
with Ochoa's performance until after the commencement
of the union organizing campaign. The tithing of the
14 Ochoa admitted to being active in the LA T.S.E. organizing cam-
paign. It is not alleged that this prounion activity was the basis for her
discharge. To ensure clarity m this decision, I note that an employer is
entitled under the Act to discharge a supervisor who fails to employ
lawful efforts to attempt to persuade employees to stop their protected
concerted activities. Crouse-Hinds Co., supra, citing World Evangelism,
Inc., 261 NLRB 609 (1982); Western Sample Book & Printing Co., 209
NLRB 384,389-390 (1974), and Southwest Shoe Exchange Co., 136 NLRB
247 (1962). Respondent could have disciplined Ochoa for her willful fail-
ure to follow instructions by distributing to each employee on the dawn
shift the Company's campaign literature and discussing the Company's
position with them. Their forebearance of Ochoa's intentionally disobedi-
ent behavior further buttresses my conclusion that the decision to dis-
charge her was not a pretext because she refused to commit unfair labor
practices.
change in Cornejo's attitude toward Ochoa predated
mid-February. In December 1985, Shirle complained to
Cornejo repeatedly about Ochoa, and Cornejo thought
that Ochoa failed to get proper training while dubbing
the Iskander order.
The increased criticism of Ochoa's work around the
time Yore started the union organizing campaign had its
genesis in Ochoa's meetings with Jordan and Cornejo,
which spotlighted their differences and initiated inquiries
into the dawn shift crew's complaints against Ochoa.
Some of these complaints were reiterated to Cornejo by
Shirle. Marks told Cornejo that Ochoa was still coming
in late despite explicit instructions to the contrary. I also
note that Cornejo was consistent in her criticisms of
Ochoa. Therefore, I fmd that the increased criticism of
Ochoa by Cornejo was not induced by Ochoa's failure to
spy on known union adherents.
I also find that the reasons given for Dchoa's dis-
charge were not shown to be pretexts. Cornejo com-
menced discussing Ochoa's performance with the dawn-
shift crew pursuant to directions given by her superior,
Jordan, after Ochoa raised with Jordan issues concerning
Cornejo's supervisory ability and employee dissatisfac-
tion. Comejo's credited testimony is that Jordan in-
formed her dawn-shift employees were complaining
about Ochoa, and he wanted Cornejo to investigate these
complaints.
Ochoa admits that during her meeting with the crew
on 12 March, they lodged complaints against her. These
complaints included a lack of communication and
Ochoa's manner of treating the employees, including
rude and abusive conduct, and that Ochoa was "pushing
the employees too hard." Cornejo, in her meeting with
Ochoa following the employee meeting, discussed these
complaints. Ochoa did not dispute the accuracy of Cor-
nejo's recital of these complaints.
Ochoa did not correct many of the matters raised
during her 12 March meetings with the crew and, subse-
quently, with Cornejo. Cornejo instructed Ochoa to
speak with Jordan about her flexible schedule for she
was to report for work at 11:30 p.m. Ochoa never
claimed she complied with this request. Marks admitted
informing Cornejo several times thereafter that Ochoa
continued to report for work late. Ochoa also admitted
she failed to follow Cornejo's repeated directives of
when to do the master evaluations.
The employees complained that Ochoa's tardiness,
lack of organization, and lack of communication resulted
in their being rushed and poorly trained. Instead of fol-
lowing Cornejo's admonition to train her shift and her-
self, lay out the shift in an organized fashion, and work
out "these problems," Ochoa admittedly withdrew from
the crew and spent most of her time in the cassette
room. Also, Ochoa admitted she did not specifically
assign crewmembers different tasks; instead, she permit-
ted the crewmembers to select which job they wished to
perform. Ochoa failed to explain how this behavior was
designed to meet Cornejo's instructions or improve her
performance as a supervisor.
Other instructions Ochoa apparently ignored included
the manner in which she ran "pick-up passes." Shirle
VIDEO TAPE CO. 661
complained to Cornejo that the dawn shift was making a
lot more errors in mid-February, specifically mentioning
it had a lot of labeling and boxing errors. Ochoa did not
dispute that the labeling errors mentioned by Cornejo in
their meetings did occur; rather, she tried to ascribe the
bulk of the blame to crewmen-111er Shafer. Shafer was ad-
mittedly a poor worker at times, but Ochoa failed to ex-
plain why she did not recommend his discharge or im-
plement measures that were designed to prevent and/or
flag his errors.
Instead of demonstrating that her performance had hue
proved after the first one or two meetings with Cornejo,
Ochoa continued to appear unwilling or incapable of
correcting the problems. The General Counsel argues
that Smith told Cornejo there had been improvement in
Ochoa's performance about 2 weeks before she was dis-
charged. Smith also testified that the employees were
concerned that nothing was happening; the problems
were not being resolved. Cornejo testified without dis-
pute that she met with other crewmembers who told her
the problems were continuing. Assuming, arguendo, that
Smith did mention there had been improvement from his
point of view, the General Counsel failed to clearly
refute the accuracy of Cornejo's criticisms after Smith's
asserted statement, nor was it shown that Cornejo would
have been justified in ignoring Shirle's and Marks' con-
tinning criticisms of Ochoa. Furthermore, the General
Counsel did not show that Cornejo was unjustified in as-
suming the employees felt there was improvement be-
cause they were experiencing less harassment due to
Ochoa's withdrawal from them, rather than relating an
overall improvement in Ochoa's performance. In fact,
there continued to be problems with the dawn shift's
work.
As previously noted in greater detail, the information
Cornejo received as of 16 April of continuing deficien-
cies was related to Ochoa in the memorandum she re-
ceived on 18 April. Ochoa did dispute the accuracy of
most of the allegations contained in the memorandum
with Cornejo when they met. Ochoa merely claimed her
performance had improved, but the deficiencies detailed
in the memorandum were not convincingly refuted. For
example, Ochoa claimed her attendance had improved,
but improvement was not the request; she was told to
start on time and discuss the matter with Jordan. She
failed to speak with Jordan about the flexible time agree-
ment, and Cornejo continued to receive reports Ochoa
was still not reporting to work on time. While the term
"production" was used extensively throughout this pro-
ceeding, contextually; the criticisms of Ochoa related
preponderantly to the quality of her shift's work prod-
uct; not the quantity. The dawn shift admittedly had
very high productivity most of the time. The quantity
the dawn shift produced was criticized only once, about
3 April. The criticisms on this date dealt with Ochoa's
failure to comply with instructions on how to perform
various operations, including how and when to do "pick-
up passes." These and other failures mentioned in the
memorandum, detailed above, were properly considered
serious failures. I find the record supports Respondent's
argument Cornejo was justified in having a continuing
concern about Ochoa's supervisory ability and in decid-
ing to discharge her.
This conclusion is confirmed by the errors detailed in
the discharge memorandum. The dawn shift continued to
have labeling and boxing errors. The General Counsel
failed to adduce any evidence that the other shifts expe-
rienced similar errors with similar frequency. Cornejo
was consistent in her criticisms, which tends to refute
any claim of pretext. These criticisms were not only mir-
rored but fed by Shirle and Marks. Cornejo did not act
hastily; she gave Ochoa notice of specific deficiencies be-
ginning in December 1985. Only after Ochoa raised the
issue of competence of supervision with Jordan did Cor-
nejo commence an inquiry about Ochoa's supervision
with the dawn crew. This inquiry was conducted pursu-
ant to Jordan's directive. There is no indicia Jordan had
an unlawful motive in giving this directive.
Cornejo's discussions with the dawn-shift crew re-
vealed an apparently serious problem, which the crew
also related to Ochoa and Marks on 12 March. Instead of
embarking on a course designed to correct the noted
problems, Ochoa withdrew from the crew, which exas-
perated the problem. She was not discharged for this
conduct but afforded further counseling and opportuni-
ties to improve. Only after approximately 1-1/2 months
of frequent counseling, without marked improvement,
and admitted failures to follow instructions, was Ochoa
discharged. This cannot be characterized as precipitous
cursory action indicative of pretext.
In fact Ochoa was not shown to have made a serious
attempt to meet Cornejo's criticisms; instead, she with-
drew from her crew and her responsibilities as shift su-
pervisor. Ochoa's repeated failures to respond to her su-
pervisor's directives were not convincingly shown to be
warranted. The problems raised by Cornejo did occur;
there were no sham incidents revealed in this proceed-
ing. Counsel for the General Counsel failed to present
persuasive evidence that Ochoa attempted to significant-
ly improve her performance. No reason for this failure
was presented that would indicate futility or any other
mitigation. On the other hand, Respondent, through Cor-
nejo, kept Ochoa informed of her deficiencies and afford-
ed her opportunities to correct them or change Cornejo's
opinion. Respondent has not been proved, by its actions,
to have engaged in disparate treatment. The other shift
supervisors were not shown to have deficiencies similar
in nature or frequency. Respondent's failure to invite
Ochoa to attend almost daily management meetings
about the Company's campaign to defeat the union orga-
nizing effort is similarly not indicative of disparate treat-
ment. These meetings were held during the day, and it
would have been extremely burdensome for Ochoa to
attend and then work from 11:30 p.m. to 8 a.m.
I find counsel for the General Counsel failed to make a
prima facie case. I further fmd that even if the General
Counsel had made a prima facie showing that Ochoa was
asked and refused to spy on Erickson and Yore, that was
not the sole reason for her discharge. Ochoa's demon-
strated supervisory deficiencies cojoined with her failure
to follow directions would have resulted in her dis-
charge, absent any impact of the claimed refusal to
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
commit unfair labor practices. Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
In sum, I find that Ochoa was admittedly recalcitrant
in following her supervisor's instructions, and Cornejo
was justified in her assessment that Ochoa either could
not or would not follow such instructions. I conclude
that counsel for the General Counsel and the Charging
Party failed to adduce by a preponderance of credible
evidence that Ochoa was discharged because she failed
to unlawfully spy on Erickson and Yore, or any other
employee. Accordingly, I recommend that this allegation
in the complaint be dismissed.
B. Alleged Impression of Surveillance and Threat of
More Severe Enforcement of Company Rules
In addition to the testimony of Ochoa, the General
Counsel asserts that remarks by Shirle and Marks gave
the unlawful impression of surveillance." Section 7 of
the Act grants to employees the right "to engage in. . .
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection. . . ." Section
8(aX1) of the Act prohibits an employer from interfering
with, restraining, or coercing its employees in the exer-
cise of their rights in Section 7 of the Act.
Respondent denies that its supervisors made any un-
lawful statements. Again, resolution of these issues rests
on my credibility resolutions, and the parties' arguments
devolve on which of the witnesses should be believed.
1. The "60 Minutes" meeting
Smith testified that about 2 weeks before the union
election, the Company required dawn-shift employees to
attend a meeting. Smith was one of the employees. Other
dawn-shift employees present at the meeting were Butler,
Shafer, Martinez, and Fidelo. Supervisors in attendance
included Cornejo, Shine, and Marks. The meeting was
part of the Company's campaign to defeat the union or-
ganizing efforts. During the meeting, a segment from the
15 Ochoa's assertion that she told employees on her shift she was being
harassed by management was not credited and refuted by Smith. Thus,
even if Ochoa's testimony that Cox and Cornejo told her to engage in
surveillance of union supporters was believed, this would not establish a
violation of the Act because of the dearth of credible evidence she relat-
ed these statements to her crew. The Board held in Resistance Technology,
280 NLRB 1004, 1006 (1986), as follows:
In our view, the Board went too far in Cannon Electric, [151
NLRB 1465, 1468 (1965)]. Clearly, action taken in contemplation of
committing an unfair labor practice is not, without more, itself an
unfair labor practice. The mere issuance of instructions, even if to
perform unlawful acts, to supervisors to find out the identity of
union supporters and the union sympathies of employees cannot in
itself interfere with, restrain, and coerce employees in the exercise of
their statutory rights where those instructions are neither carried out
nor disclosed to the employees. We would not extend the reach of
the Act that far into such intramanagerial activity.
The same reasOning obtains in situations when supervisors are instruct-
ed to engage in surveillance of employees and do not carry out or dis-
close these instructions Ochoa admits she did not follow these instruc-
tions, and no employee credibly testified they were disclosed. Ochoa's
statements to employees that she thought Marks was spying on them 'and
to be careful what they said in his presence was not alleged to be an
unfair labor practice. I find this issue was not fully and fairly tried on this
record.
"60 Minutes" program was presented. Cornejo asked for
questions after the showing. After different aspects of the
segment were discussed, Smith asked what would
happen to the employees if the Union lost the election.
He was concerned about job security. Cornejo said they
had nothing to worry about. Smith then inquired about
what assurances the employees had of job security in
light of the discharges of Erickson and French. He also
claims he mentioned Ochoa's discharge. According to
Smith, Shirle "responded that everybody was being
watched, in particular, those people involved in union
activities were watched, in particular, close. . . . In par-
ticular—Mark Shirle said that everybody was being
watched; in particular, those involved in union activities,
were being watched particularly close." Shine's tone of
voice at this time was a little irritated and he appeared
upset in contrast to his normal "laid back" demeanor.
Erickson was discharged for having other employees
clock him in and out and falsifying his timecard to claim
unearned overtime. The employees who falsified the
timecard were given reprimands in lieu of discharge be-
cause the Company believed that these new employees
had not known any better at the time and did not profit
from their misdeeds. Also, these employees were contrite
when they were confronted by management. Erickson,
on the other hand, was characterized as being evasive
when confronted with his violation of company rule.
Erickson asserted he needed the overtime. The disparity
in the disciplinary action taken against Erickson com-
pared to the employees who clocked him out, under the
circumstances of this case, does not support a finding
that company rules were more stringently enforced
against a proven union activist. The discharge decision
was made by Jordan and Cornejo based on their conclu-
sion that it was a fraudulent use of the timecard, and
they could not be lenient in this instance. Cornejo denied
knowledge that Erickson was active in the union orga-
nizing campaign. There was no evidence indicating that
Cornejo knew or should have known of Erickson's union
activities.
There was no evidence that Marks, Erickson's supervi-
sor, was watching Erickson more closely after the union
organizing campaign commenced. In fact, another em-
ployee informed Cornejo of Erickson's misdeeds. Marks
was not informed of Erickson's activities and did not
participate in the discharge decision. The evidence fails
to indicate Erickson was known to be close to, or work-
ing with, French or Yore. There is no basis presented to
infer Erickson was knowingly engaged in protected con-
certed activity.
French worked in a department other than VTR, and
there were no witnesses from the department concerning
her discharge. She was known to be active in the Team-
sters organizing campaign because she attended, on
behalf of the Teamsters, the representation hearing at the
Board's Regional Office. The uncontroverted testimony
of Cornejo is that she understood French was discharged
for clocking in, immediately leaving the facility to take
her child to day care, and then returning to work. This
claim for payment during the time she was not at work
was the reason for her discharge.
VIDEO TAPE CO. 663
The Charging Party and the General Counsel adduced
evidence that supervisors, on occasions when their shifts
had completed their scheduled work, let all or most of
the employees leave early, and they or their designees
clocked employees out at the end of the shift. The em-
ployees were paid for the entire shift. There was also
evidence some employees punched the thneclock for
others without informing a supervisor. This is easily
done in the PAL room because it is physically removed
from the VTR facility. There was no evidence adduced
indicating Respondent permitted one employee to clock
out another without a supervisor giving his or her impri-
matur. Marks testified that at some unspecified time the
policy of the Company was changed to prohibit employ-
ees from clocking each other in or out if there were no
work to do. He understood shift supervisors could still
punch employees' timecards. The date of this claimed
policy change was not adduced on the record. Further,
Marks was somewhat confused in his testimony and, as
found above, not credible. Assuming, arguendo, Marks'
testimony is correct, there was no evidence demonstrat-
ing a casual nexis between the change in policy and the
union organizing' campaign. Further, there was no evi-
dence Respondent had a practice or policy allowing an
employee to clock in and then leave the premises While
on the clock, without permission from a supervisor. I
conclude that this evidence does not support my finding
a violation of the Act.
There was evidence the day shift clocked in and some
members then left the premises to get a carryout break-
fist. Shine gave permission for this activity on occasion
when their schedule permitted. Cornejo testified, without
refutation, that other shifts similarly clock in, organize
their schedule, start the operation, and then go to nearby
stores to get food to bring back to work. No nonsupervi-
sory day-shift employee testified, and nonsupervisory
swing-shift employees that testified were not questioned
about this practice.
The testimony Cornejo refused to allow Erickson to
attend a union meeting is not convincing of proscribed
behavior toward Erickson or others. The credited evi-
dence of Cornejo was she suggested to Erickson he
should not attend the union meeting during his one-half
hour lunchbreak. She indicated he could not drive to the
meeting, site, attend the meeting, and return to work
without overstaying his lunch period and jeopardizing
Ms work obligations. She never told Erickson he could
not attend the meeting. Cornejo admitted she did not
know where the meeting was to be held. Erickson was
alone in the PAL room; his work would have been left
unattended. Cornejo said Erickson did not tell her he
could get to the meeting, attend it, and return to work in
30 minutes.
The General Counsel and Charging Party disputed
Cornejo's concern that unattended machines could have
the tapes run off the reels possibly damaging the tapes or
the machines. These parties questioned Cornejo's techni-
cal knowledge, which was weak. She was not shown to
have wrongly refused Erickson permission to attend the
union meeting. Her concerns are found to have been
genuine based on her understanding of operating proce-
dures. As indicated above, Cornejo is found to be a cred-
ible witness. Under the circumstances depicted in Come-
jo's unrefuted testimony, her comments to Erickson do
not indicate a change in company policy and/or a viola-
tion of the Act.
Shine's testimony about the "60 Minutes" meeting is
that Smith repeatedly asked questions expressing his con-
cern that employees would be fired if the Union lost the
election. Shirk claims he and Cornejo responded that
there would be no reason to fire employees, especially if
the Union lost. Smith also asked why Erickson was fired
while the others involved were not. Cornejo explained it
was for falsifying a timecard. Shirle asked what Smith
wanted him to do, "fire everybody." When Smith re-
peated the question, Shirk testified, "Hope Cornejo re-
sponded saying that—that everyone is being watched,
that we're watching everyone for the same infractions
and that anyone that would commit an infraction would
be fired—as to the degree of the infraction and I reacted
off [Comejo's1 statement and I said that we're all being
watched, I feel I'm being watched especially close."16
Cornejo admittedly could not remember what was said
by whom in detail. She corroborated Shirle's testimony
that she informed the employees it would make no eco-
nomic sense for the Company to discharge employees if
the Union lost the election. If the Company had won the
election, it had spent "all that money on the election.
Why spend more, retraining new employees? It would
make no economic sense for the Company to do that.
We had well-trained employees. Obviously you would
like to keep them even if we won the election." Smith
indicated dissatisfaction with her response so Shirk and
Marks replied similarly.
Cornejo did corroborate Shirle's statement about
"being watched closely." However, she recalled Shirle
saying the Company was watching everyone to make
sure all the rules were being observed. Also, she said
that the two employees that clocked Erickson out, Os-
trowsky and Kelly, were not getting off without disci-
pline, "they were being watched to see they followed
the time card rule and were prohibited from committing
similar rule infractions." Cornejo also said if she learns
others have committed timecard violations they would
similarly be discharged.
Marks' version of the meeting was that Smith asked if
they were watching Kelly and other employees for simi-
lar infractions and Shirle replied, "Yes, they were being
watched as I'm being watched as we've always been
watched—just like always." Marks denied Shirle said
union supporters were being watched particularly close-
ly. Marks' testimony indicated he did not have very clear
recall of what was said during the meeting. He also vol-
unteered information that was particularly favorable to
Respondent's position. For example, he said Cornejo
commented during the meeting it was her personal posi-
tion that no action would be taken against any union sup-
porter. This does not accurately reflect Cornejo's testi-
mony. As found above, Marks was not a believable wit-
ness, and these comments are not credited.
16 Shirk said he felt VanPaenael and the other managers were watch-
mg his performance during the campaign more closely. He did not claim
he gave the employees this explanation.
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I credit Smith's testimony. He is a current employee of
the Company, and he testified in a clear and forthright
manner, visibly trying to present an accurate picture of
the events. At times, it was apparent during his testimo-
ny that he worked the preceding evening, but lapses
caused by tiredness were not of the nature and quality
that impaired his credibility or brought the accuracy of
his recall into question. Thus, I find that Respondent did
unlawfully create the impression of surveillance by in-
forming employees during a company-called meeting
that they were being watched, and union supporters
were being more closely watched. I find these statements
were reasonably coercive under the circumstances of this
case, including announced employee fears of reprisal
during this meeting where there were at least three su-
pervisors and only about five employees. Shirle's com-
ment appeared to substantiate Smith's fear that Respond-
ent was engaging in an overall pattern of conduct, which
threatened the livelihoods of union adherents.
Cornejo admitted Shirle was very forceful in his re-
sponse, speaking in a loud voice and in a very affirma-
tive manner. Prior to Shirle's comments, according to
Cornejo, Marks told the assembly their jobs were secure.
Marks did not testify he made such a statement. Based
on the testimony of Cornejo, Shirle, and Marks, I fmd
that Shine's comments about employees being watched
came after Cornejo's statements and were not retracted
or refuted by the Company.
At some time after the meeting, Smith admitted hear-
ing Cornejo say that he or other employees had nothing
to worry about because of their union activities. This is
not sufficient repudiation or mitigation of Shine's com-
ments for there was no showing that any of the other
employees at the meeting were informed of their unfet-
tered ability to participate in the union organizing cam-
paign. Also, Shirle's comment was not neutralized, for
Comejo's statement did not specifically and unambig-
uously disavow his prior conduct, and Cornejo did not
give the employee who heard Shirle any assurance the
Employer would not interfere in their future activities,
which were exercises of their Section 7 rights. Pilliod of
Mississippi, 275 NLRB 799 (1985).
Similarly; Yore testified that in mid-March, Marks told
him "I [Yore] should be careful about my conversation
with fellow employees abont unionizing, that the compa-
ny was going to be watching employees." Yore further
claims that Marks said, "I should be careful about what I
say about the union to other people" the Company was
going to be watching employees closely."
Marks denied making the comments. I find Yore more
credible than Marks, primarily based on demeanor. Also,
the similarity between the statements by two different su-
pervisors at two different times to different employees
creates a higher probability the comments were made as
alleged.
I further find these comments were coercive consider-
ing the circumstances surrounding their meeting. Marks
was charged by the Company to actively campaign to
defeat the union organizing effort, and this comment was
" Ochoa admitted telling Yore she was to spy on him, to be careful.
This statement lent credence to Marks' statements.
made after Marks made clear his intent to campaign for
the Company and after Ochoa told Yore he should be
careful of what he said to Marks, who was clearly a
member of management's team. Yore had been very
open in his protected activities and a supervisor telling
him to be careful in the future for the Company was
"watching" is clearly coercive. Warning employees they
are being watched under these circumstances clearly
raises the specter of retaliation for union activities and is
violative of Section 8(a)(1) of the Act. Mac Tools, Inc.,
271 NLRB 254 (1984).
Smith convincingly testified that following the "60
Minutes" meeting he asked Marks for details about
Erickson's discharge. In discussing the discharge, Marks
said the Company had previously been lenient toward
Erickson but "that the Company was playing hard ball
now. They were going to play everything down the line,
and there wasn't going to be any leeway." Marks also
said that they would be following the rules to the letter.
And they would be watching for infractions of any sort,
by everybody, especially those involved with the Union.
Smith then inquired in what areas there would be less
leeway, and Marks replied in job assignments and em-
ployees on-time performance. Marks gave as an example
that employees in VTR would not be as readily permit-
ted to transfer into the edit department.
Marks recalled a conversation in which Smith told him
he thought Erickson was fired for union activity. In
reply, Marks asserted that Smith was wrong, explaining
no company would allow an employee to collect over-
time when they did not even finish their shift. Smith then
reiterated his queries about discharges , if the Union lost
the election. Marks claimed he told Smith if the Union
prevailed in the election and there were contracts "there
would be hard rules to follow on both sides. . . . If the
Union was voted in and if a contract was signed, to re-
member that the rules in that contract would have to be
followed to the letter on both sides, and that there would
be no room for exception to that. . . . That in a post-
union [stet] environment there would be set rules about
time of arrival, working—everything, et cetera, and
those rules could not be varied from." Marks denied
saying the Company would play hardball claiming his
statement was "there would be hard rules to follow and
we would have to follow them." Marks did not detail his
basis for this asserted comment He did not claim to have
any knowledge of contracts with either I.A.T.S.E. or the
Teamsters. Marks did not belong to any union or demon-
strate any predicate for this statement. There was no evi-
dence of standard contracts that contained such clauses
or other industry practices that would support a conclu-
sion that these admitted statements were reasonable pre-
dictions. Any attribution of reasonable foundation for
Marks' comments would be pure speculation.
As previously noted, Marks is not a credible witness. I
find his statements as described by Smith and the admit-
ted "hard rules" description to be in violation of Section
8(a)(1) of the Act under the circumstances of this case.
Marks was Smith's supervisor when the comment was
made. Smith expressed concern that the Company would
react to the unionizing effort in a manner adverse to em-
VIDEO TAPE CO. 665
ployees. During the encounter, Marks admits Smith said
he believed the Company already discharged employees
for their union activities. The conversation immediately
followed a meeting at which company representatives
gave an unlawful impression of surveillance.
Assuming, arguendo, Marks' version of the conversa-
tion is correct, it still would be violative of the Act for
he did not imply the stricter enforcement of attendance
rules or adverse changes in job assignment practices
would be subjects of negotiations and that such changes
might occur as the result of collective bargaining. In
Marks' version of the conversation, he admittedly told
Smith these changes would result, a fortiori, should the
Union come in. Marks' statements were not shown to be
reasonably lawful predictions. Compare, Hempstead
Motor Hotel, 270 NLRB 121 (1984). 18 Cf. Fimco, Inc.,
282 NLRB 65 (1987).
C. The Objection
The single objection referred to me for disposition al-
leges the Company indicated it would, and did, enforce
its rules more stringently against union supporters and
activists. The assertion that the Company indicated it
would enforce its rules more stringently against union
supporters is found to encompass the statements of Shhie
and Marks during and after the "60 Minutes" meeting. I
find that violation supports this objection. Accordingly,
Objection 6 should be sustained.
I further fmd the allegation the Company did enforce
its rules more stringently against union supporters is not
sustained by the evidence. French and Erickson did not
appear and testify. Erickson was fired for inducing
others to falsify his timecard, thereby making a claim to
unearned overtime. The decision to discharge him was
not shown to be based on any knowledge of his union or
other protected concerted activity. I further fmd there is
no convincing evidence the timecard infraction was mere
pretext. French was also fired for a timecard violation.
Neither French nor any of her supervisors testified about
the basis for her discharge. The evidence is uncontro-
verted that French clocked in and then left the premises
to take her child to a day care facility, thus claiming pay
for a period she was not at work. There wat no evidence
she had supervisory authorization for this action. The
record is not clear on how long she was absent from her
job. The Charging Parties try to equate this absence with
the practice of some employees to get carryout food
during working time. The carryout food was acquired
from establishments in close proximity to the VTR facili-
ty. There is no evidence that these employees left the
premises without a supervisor's permission. Further, I
find that Comejo's telling Erickson she was concerned
about his leaving the premises during his meal break to
attend a union meeting-is not probative that the Compa-
ny enforced its rules more strictly against union adher-
ents. There was no probative evidence Erickson was sin-
gled out. Also, there was a reasonable concern expressed
by Cornejo that he would jeopardize his job responsibil-
ities if he attended this meeting. She did not know the
18 The Company's violations of Sec. 8(aX 0 found here are not suffi-
cient to support a finding that Ochoa was unlawfully discharged.
location of the meeting. As it is incumbent on the party
filing objections to provide a prima facie case in their
support, the absence of clear and convincing evidence of
more stringent enforcement of the Company's rules in
these instances requires that I find this allegation in the
objection lacks merit.
In sum, I have found merit to the threat allegation of
Objection 6. This conclusion derives from my unfair
labor practice findings. Since conduct that violates Sec-
tion 8(a)(1) of the Act is a fortiori interference with rep-
resentation elections, I recommend Objection 6 be sus-
tained as described herein. St. Anne's Home, 221 NLRB
839, 848 (1975), and cases cited therein.
D. Recommended Disposition of the Representation
Case
Respondent argues that a finding that Shirle's and
Marks' statements violated Section 8(a)(1) of the Act
does not warrant ,setting aside the election, for the ef-
fects, of these violations were de minimis This argument
is unpersuasive. As Respondent notes, there were about
five employees present at the company-called meeting
where management was presenting its case to defeat the
union organizing efforts. The record is replete with evi-
dence that the employees in the unit frequently talked to
one another and clearly conveyed their fears the Compa-
ny would and did exact reprisals against union activists
and other employees. These offending statements were
made in an atmosphere of known employee apprehension
of reprisals about 2 weeks before the election. The ef-
fects of the statements were not dissipated or mitigated
by any retractions of other efforts in mitigation by the
Company. Only Cornejo made a statement to Smith,
which was not shown to have been related to any other
member of the unit. I conclude that Respondent's unfair
labor practices, which occurred during the critical
period between the filing of the petition and the election,
sufficiently interfered with the employees' freedom to
select a bargaining representative to require setting aside
the election in Case 31-RC-6023, and that the case be re-
manded to the Regional Director for Region 31 with di-
rections to conduct a new election at an appropriate
time. Leas & McVitty, Inc., 155 NLRB 389 (1965).
IV. THE REMEDY
Having found Respondent engaged in unfair labor
practices, I shall recomend that it be ordered to cease
and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act.
I further recommend that the election held on 14 May
1986 be set aside and that Case 31-RC-6023 be remand-
ed to the Regional Director for Region 31 for the pur-
poses of conducting a new election at such time as he
deems that circumstances permit a free choice of bar-
gaining representatives.
Counsel for the General Counsel requests that a visita-
torial clause be imposed on Respondent. I find that under
the circumstances of this case,, a visitatorial clause is not
warranted, and the request should be denied.
On the basis of the above findings of fact and the
entire record in these cases, I make the following
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. The unit set forth here constitutes a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act, and it has thereby en-
gaged in unfair labor practices in violation of Section
8(a)(1) of the Act by:
(a) Coercively creating an impression among its em-
ployees that their protected concerted activities were
under surveillance by Respondent.
(b) Coercively informing employees that it would
engage in surveillance of their protected concerted ac-
tivities.
(c) Coercively threatening its employees with more
severe enforcement of Respondent's rules, regulations,
and policies because they engaged in protected concerted
activities.
5. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
6. The Rcspondent has not otherwise violated the Act.
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed19
ORDER
The Respondent, Keith Austin, Inc., d/b/a Video
Tape Company, North Hollywood, California, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively creating an impression among its em-
ployees that their protected concerted activities were
under surveillance by Respondent.
(b) Coercively informing employees that their union or
other protected concerted activities were under surveil-
lance.
(c) Coercively threatening its employees with more
severe enforcement of Respondent's rules, regulations,
and policies because they engaged in protected concerted
activity.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to engage in or refrain from engaging in any or all
the activities specified in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its North Hollywood, California place of
business copies of the attached notice marked "Appen-
19 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
dix."2° Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that all allegations Con-
tained in the amended complaint found here not to con-
stitute unfair labor practices are hereby dismissed.
IT IS FURTHER RECOMMENDED that the election held in
Case 31-RC-6023 on May 14, 1986, is hereby set aside
and the case be remanded to the Regional Director for
Region 31 for the purposes of conducting a new election.
20 If this Order a enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT do anything that interferes with, re-
strains, or coerces our employees with respect to these
rights.
WE WILL NOT coercively inform employees that we
will engage in surveillance of their union or other pro-
tected concerted activities.
WE will, NOT coercively create an impression among
our employees that their union organizing or other pro-
tected concerted activities are under our surveillance.
WE WILL NOT coercively threaten our employees with
more severe enforcement of our rules, regulations, and
policies because they engaged in organizing a union or
other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in their right to
VIDEO TAPE CO 667
engage in or refrain from engaging in any or all the ac-
tivities specified in Section 7 of the Act.
KEITH AUSTIN, INC., D/B/A THE VIDEO
TAPE COMPANY