Wayne Trophy Corp.

National Labor Relations Board - Board Decisions

May 24, 1978

236 N.L.R.B. 299 (N.L.R.B. 1978)

WAYNE TROPHY CORP.
Wayne Trophy Corp. and Local 404, United Electri-
cal, Radio and Machine Workers of America (UE).
Cases 22-CA-7180 and 22-CA-7347
May 24, 1978
Order of the Administrative Law Judge and hereby
orders that the Respondent, Wayne Trophy Corp.,
Wayne, New Jersey, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION AND ORDER
BY MEMBERS JENKINS. PENELLO. AND MURPHY
On June 24, 1977, Administrative Law Judge Nor-
man Zankel issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative l.aw Judge and
to adopt his recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
'Respondent has excepted to certain creditibility findings made hby the
Administrative Law Judge. It is the Board's established policy not to oser
rule an Administrative Law Judge's resolutions with respect to credibililt
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drv Wall Producrs. Inc., 91
NLRB 544 (1950), enfd. 188 F. 2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
We find merit, however, in certain of Respondent's exceptions to the
Administrative Law Judge's factual findings. Respondent correctly points
out that the Administrative Law Judge erred by finding that discriminatee
Awilda Arroyo testified that she told Susan Acevedo, Respondent's agent,
that Lugo was a union representative. In fact, it was Acevedo who testified
that Arroyo identified Lugo. This error does not alter, however, the ultimate
conclusion as to Arroyo's unlawful discharge. Thus, as Respondent's agent
in connection with various unlawful interrogations and threats during the
Union's organizing campaign, Acevedo's testimony is an admission. Hence.
the inference that Acevedo informed Battaglia. Respondent's president. that
Arroyo was the source of Lugo's identity is fully warranted
In addition, Respondent correctly points out that Acevedo informed Bat-
tagla that she observed the parking lot incident involving Lugo, Teevan.
and Sanchez on September 9. However, we note that Acevedo did not in-
form Battaglia of the incident on the day it occurred, but later
2 The Administrative Law Judge found that Respondent's obligation to
bargain arose on September 9, 1976, the date the Union attained majority
status and Respondent's unfair labor practices began. Inasmuch as the
Union's request for recognition occurred on September 14, 1976. and all of
Respondent's other unfair labor practices are remedied hby our Order herein.
we find that Respondent was obligated to bargain as of September 14, 1976
Trading Por., Inc.. 219 NLRB 298, 301 (1975); Tal or Bros. Inc.. 230 NL RB
861 (1977).
] See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962)
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEI., Administrative Law Judge: These
cases were heard before me on January 31, February
1-4, and March 3 and 4, 1977, in Newark. New Jersey.
Upon a charge filed in Case 22-CA-7180 on September 13,
1976.' and amended on September 16 and 21 and October
21. and a charge filed in Case 22-CA-7347 on December 7,
by Local 404, United Electrical. Radio and Machine
Workers of America (UE), hereinafter the Union, an order
consolidating the above-numbered cases and an amended
complaint were issued on January 14, 1977, by the Region-
al Director for Region 22 of the National Labor Relations
Board, hereinafter the Board, against Wayne Trophy
Corp., hereinafter Respondent, alleging that Repondent
violated Section 8(a)(l), (3), and (5) of the National Labor
Relations Act, as amended, hereinafter the Act. At the
hearing, the complaint was further amended to allege that
an individual formerly alleged only as an agent of Respon-
dent was, in the alternative, its supervisor. Also, the Gener-
al Counsel moved to delete one allegation of individual
8(a)(1) conduct from the complaint by removing paragraph
II. I granted his unopposed motion.
In substance, the consolidated amended complaint alleg-
es that, on various dates between September 10 and De-
cember i, Respondent discriminated against its employees
by unlawfully discharging five named employees; that,
since on or about September 14, it refused to bargain col-
lectively with the Union; and that, by a variety of other
activities, it unlawfully interfered with, restrained, and
coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
Respondent filed a timely answer, which was orally
amended at the hearing, denying the substantive allega-
tions and that it had engaged in any of the alleged unfair
labor practices.
All issues were fully litigated at the hearing; all parties
were represented and were afforded full opportunity to ex-
amine and cross-examine witnesses, to introduce evidence
pertinent to the issues, and to engage in oral argument.
Timely posthearing briefs were filed by the Board's Gener-
al Counsel and by Respondent's representative and have
been considered.
Upon the entire record, my observation of the witnesses
and their demeanor on the witness stand, and upon sub-
stantial reliable evidence, "considered along with the con-
sistency and inherent probability of testimony," 2 I make
the following:
All dates are in 1976 unless otherwise stated
2 Universal C(amera (Corp v N i. R 340 lS. 474 496 (1951.
236 NLRB No. 35
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent, a New Jersey corporation, maintains and,
at all times material herein, maintained its principal office
and place of business at II Railroad Avenue, Wayne, New
Jersey, where it is, and has been, engaged in the manufac-
ture, sale, and distribution of trophies and related prod-
ucts. In the 12-month period immediately preceding the
issuance of the consolidated amended complaint, a repre-
sentative period, Respondent manufactured, sold, and dis-
tributed products valued in excess of $50,000, of which
products exceeding $50,000 in value were shipped from its
Wayne, New Jersey, location directly to States of the
United States other than the State of New Jersey. Respon-
dent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and 17) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The parties agree, the record reflects, and I find that
Local 404, United Electrica!. Radio and Machine Workers
of America (UE), is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. The Sequence of Events 3
The allegations herein emanate from efforts of Respon-
dent's production, maintenance, and shipping and receiv-
ing employees at its Wayne, New Jersey, location, exclud-
ing all office clerical employees, salesmen, professional
employees, guards and supervisors as defined in the Act,4
to organize on behalf of the Union. In August, the employ-
ees spoke among themselves about the possibility of union-
izing. Having earlier visited the Union's office where he
obtained blank authorization cards,5 Luis Torres (hereinaf-
ter L. Torres), distributed the cards to other employees be-
ginning on August 26. His delivery of the authorization
The facts contained in this section are a composite of testimony of the
various witnesses presented by the General Counsel. As will be devseloped
hereinbelow. wherever there are conflicts in the testimony between witness-
es of the General Counsel and those of Respondent, I deem each General
Counsel witness more reliable than any of Respondent's witnesses based
upon my observation of their forthright demeanor and the mutual corroho-
ration and logical consistency of their narrations. In contrast, the record
reflects a multitude of contradictory testimony. inconsistencies, and self-
contradictions among Respondent's own witnesses which will be fuilhcr
explicated below In its brief, Respondent suggests that the hulk of General
Counsel's witnesses should be discredited because they looked at the Span-
ish-speaking translator instead of counsel interrogating them when re-
sponding to questions. I observed that conduct and conclude it was a natiu-
ral reaction to reply directly to the person (the translator) who addressed
them in their native language. Thus. and in view of the constancy of ver-
sions presented by General Counsel's Spanish-speaking and English-speak-
inj witnesses, I reject Respondent's concept.
The parties stipulated that the unit is appropriate
The cards are in evidence and reveal their purpose to be for the signato-
ry to "request and accept membership in" the Union "and authorize it to
represent" and to "negotiate and conclude all agreements as to hours of
labor, wages, and all other conditions of emplosmcnt" in his her behalf
cards on that and each subsequent date of his distribution
was conducted on Respondent's premises. Three employ-
ees, Awilda Arroyo, Richard Redd, and Julio Tejeda, in
addition to L. Torres, signed cards on August 27. Nothing
else relevant herein occurred until the workweek beginning
Tuesday, September 7,6 when Charles Teevan 7 returned to
work from a vacation. During the afternoon of that day,
Respondent's president, Albert Battaglia, asked Teevan to
return a key to the plant.' When this request was made,
Battaglia told Teevan he was having the locks changed on
the front door. Nothing was said by Battaglia to the effect
he was considering Teevan's termination. 9
On Thursday, September 9, Union Business Agent Jose
Lugo visited Respondent's premises. Upon his arrival, dur-
ing the employees' lunch hour, Lugo identified himself as a
union representative to Allen Smith who was standing on
the loading platform. Lugo asked Smith whether he wanted
to sign "a card for the Union," and Smith replied he was a
"foreman." '° Smith confirmed that he was asked to sign a
card but denied he used the word "foreman." Smith testi-
fied he declined to sign a card stating he was "company
personnel." Additionally, Smith recalled it was Union In-
ternational Representative Joseph Miglino, not Lugo, who
asked him to sign. I credit Lugo's testimony that the word
"foreman" was used by Smith and adopt Lugo's testimony
as the more accurate description of what occurred wherev-
er his testimony differs from Smith's because Smith (I) cor-
roborated Lugo in general terms, (2) exhibited an argu-
mentative posture while testifying, (3) was evasive when
questioned concerning his supervisory status; and (4) was
self-contradictory to his prehearing affidavit on the issue of
his conversations with Battaglia about the union activities
of the employees. Lugo. on the other hand, appeared can-
did throughout his testimony which was logically consis-
tent and was corroborated both by documentary evidence
and testimony of various other witnesses." After Smith de-
clined to sign a card, Lugo asked to speak with Teevan,
and Smith went inside the shop to get Teevan. When Tee-
6 Septenmber 6 was celebrated as the Labor Day holiday.
7Teevan's status is contested, the General Counsel claiming him to be an
employee during this week of employment, while Respondent contends he
was a supervisor. This issue will be resolved below in the discussion of
Teevan's termination.
s It was stipulated that Teevan had been a supervisor within the meaning
of the Act at least throughout the summer and until he began the vacation
which ended with his return to work on September 7. During his tenure as
supervisor, Teevan had a key in his possession which he regularly used to
open the shop in the mornings.
9 eevan was discharged on September 10.
10 Smith's status is in dispute. the General Counsel contending he was a
supervisor at this time having replaced feevan during Teevan's late summer
sacation. Respondent contends Smith was not a supervisor. This issue will
be resolved in sec. B,2, hereinbelow. Smith never signed an authorization
card.
m Lugo was called as a witness three times: First, in General Counsel's
case-in-chief; next, during presentation of Respondent's defense: and. final-
ly, during General Counsel's rebuttal. When called by Respondent to testi-
fy, Respondent's representative again requested General Counsel to pro-
duce Lugo's prehearing affidavit which had already been produced at
Respondent's request at the conclusion of Lugo's direct testimony while a
General Counsel witness. The second request to produce was declined by
General Counsel, and I declined to grant Respondent's request for an order
to produce. Respondent then declined to interrogate Lugo as its witness
claiming it had been precluded from "effective cross-examination." No note
iif this claimed prejudice appears in Respondent's brief.
300
WAYNE TROPHY CORP.
van came outside, Lugo gave him an authorization card
which he signed. Another employee, Louis Sanchez. also
signed a card for Lugo during that lunch period.
Throughout the period of Lugo's visit on September 9
(apparently limited to the lunch hour, Lugo had remained
in the parking area immediately in front of, and contiguous
to, the loading dock. Battaglia's office was situated adja-
cent to the loading dock and contained a window from
which at least a partial view of the loading dock was avail-
able. Battaglia testified he saw Lugo in the parking area
and that he observed L. Torres and Sanchez taking an un-
determined number of trophies manufactured by Respon-
dent from boxes in the warehouse area just inside the
building from the loading dock and delivering them to
Lugo. 12 According to L. Torres,)3 no trophies were either
taken from boxes or delivered to Lugo.l4 L. Torres testified
he did give an authorization card to Miglino in the parking
area on August 27. 1 do not credit Battaglia's version of the
alleged theft, although I adopt the admission that he saw
Lugo in the parking area on September 9. As will be seen
below, Battaglia's testimony was pervaded by inherent in-
consistencies, among other factors, diminishing the relia-
bility of his factual narrations. As to the alleged misappro-
priation of trophies. Battaglia admitted no immediate
action was taken either to discipline L. Torres and Sanchez
or make a police complaint about them or Lugo. More-
over, no evidence was presented by Battaglia or any other
Respondent witness to show even that an attempt was
made to determine whether, and how many, trophies were
missing. Another worker, Susan Acevedo.)' testified she
saw Sanchez and L. Torres hand something to I ugo after
she observed them rummaging through warehouse boxes,
believed she witnessed a theft, but did not report the event
to Battaglia. Finally, Battaglia testified he imposed no dis-
cipline whatever on Sanchez, while L. Torres had been dis-
charged for stealing. I conclude the circumspect character
of Battaglia's actions with reference to this incident renders
his version implausible. This conclusion is buttressed by
the events which followed Lugo's visit.
Admitted Supervisor John Fulton testified that, on Sep-
tenhber 9 or 10,il Battaglia told him that he (Battaglia)
would try to get to the bottom ol the union activity and he
would "stop it." Battaglia acknow ledgcd he spoke to Ful-
ton about the .ilion atnd asked s whether Fulton w\vas aware
of L ugio's identity bet ause Battaglia did not know Lugo bh
sight. Accoiding to Battaglia. Fulton could not identify
ugo Fulion also testified that, during the week after l.a-
bor Das, Batta.gia asked him If he knew whether a union
was being organized and what he knew about it. According
to Fulton. Battaglia also told hint he intendcd to ask ;\ce-
cdo to speak to some employees and ask them what they
knew of a union Later on the day of that conversation,
1 Ihis aclmi t is ,.]ini rd br Res,>tc ldeil til he the cauls l I I ,.r s'
dixheri oin Splteimbn er I0t aid , ll he referred io hereint cl.o, dis i l
qloil of thio ein l inatilo
Sanchez idll nil .appear is .a Ilitnce
I lIugo denied evern relervigl Irlophies onl thi : ( i einl other da't
xiIe .: l ic h i e , t r itI , ,11 ulltii i.tIxti x ), lSl If Rc pllll!ii:
1 xcr status wilt hbe I olied in m-e Bl. F n .:
'I Regardless ot who h dale r i ac.iir.lie i , ilear the eernt occurrtd
hcfre nx f 'the aileged i i crillri ler , n :1 J hber d is.charced
Fulton observed Acevedo talking with several employees.
Employee Awilda Arroyo testified that Acevedo, during
the afternoon of September 9, asked her to identify Lugo
and Arroyo and she responded he was a union representa-
tive. Arroyo claimed that on September 10, in the morning,
Acevedo asked her whether she had signed a union card
and warned that her job was in jeopardy because Battaglia
did not want a union in the shop. Arroyo denied to Aceve-
do she had signed a card. According to Arroyo. Acevedo
repeated this inquiry several times that day. Acevedo ad-
mitted she asked Arrovo for Lugo's identity and that she
conveyed Arroyo's response to Battaglia. 7 Employee Julio
Tejeda also testified that Acevedo asked him whether or
not he had signed a union card. That conversation oc-
curred on September 10.'8
The following events occurred during the morning of
September 10.
1. Battaglia asked employee Richard Redd whether Tee-
van gave him a union card to sign. When Redd disclaimed
knowledge of union activity, Battaglia said, "you keep your
f---- mouth shut because this is between me and
OU," 19
2. After having been told by Battaglia that he (Battaglia)
believed that Teevan or L. Torres was promoting the
Union's organizing drive, Fulton told Teevan that Battag-
lia had questioned him about the Union and that Battaglia
knew everything concerning the Union.20
3. Redd told Teevan that Battaglia asked him whether
Teevan gave him a Union card.21
4. Fulton overheard Battaglia tell his (Battaglia's) wife,
who worked in Respondent's office, that he was going to
try to "catch" the Union's representative during the lunch
hour, and Fulton related this incident to Teevan. 22
During the lunch hour on September 10, Teevan saw
Battaglia standing alone for about 15 minutes at the load-
ing area. 23
F ulton testified that, during the afternoon, he heard Bat-
taglia ask Sanchez who had signed authorization cards and
that Sanchez had responded with this information and that
of the organizing efforts in general. Fulton reported this
event to feevan and told Teevan he thought Battaglia was
going to take adverse action.
At ot about 4:30 p.r. on September 10, Teevan went
into Battaglia's office to receive his pay. (Friday was the
regular payday.) L. Torres was already in the office speak-
ing with Battaglia. It is agreed that Battaglia told L. Torres
he had been discharged because Battaglia saw him and
Sanchez stealing trophics and delivering them to a third
party (Lugo). L. Torres denied Battaglia's accusations, the
discussion erupted into an argument, and the discharge re-
mained in force. Battaglia did not mention the Union dur-
Wi H tllaiha adnilcil .cexcdo notilfed r im of uggoIs Identity on Septem-
hbr t, n1 the ifiernoon
' See G. ( I xh 13 par I E\t the hearing. Acexedo asserted the conmer-
iat11i vxxs, olr Seprcmbher I cre dit her prior written version because it is
cone!stcnl ith the loticxal chrinolos of surrounding events and with the
Il[eihilOlls i1 I elcda arid oiher (General (Coinsel vitnesses.
ri rm Reddl's unconr.tadlltecl tesiimnri; of this event
i rlmi ithe nuiltuall] corrohiorariwe Isctlinion ofi Teevan and Fulton
1 rim I clee , ii'* ulnconitradicted tet Tinnon
'I nronm the IlUtitalhi corribhoratl' e lestirmonS if Fulton and Teevan
- x le I\ e n lC riowradit.ed te'ilistrln
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing his discussion with L. Torres. When Teevan requested
his pay, Battaglia discharged him also. Teevan asked the
reason for his discharge, and, according to Teevan, Battag-
lia said "If you want to play big shot go open your own
business." Battaglia testified he responded by simply say-
ing, "Because you let people steal." 24
By letter dated September 11,25 signed by Lugo, the
Union requested recognition and bargaining on behalf of
Respondent's production and maintenance employees. The
letter was dispatched by certified mail, return receipt re-
quested, but was returned to the Union with the envelope
bearing the notation "refused, 9/14/76."
On September 13, the Union filed a representation peti-
tion 26 in the Board's Region 22 office. The petition seeks
an election among Respondent's production and mainte-
nance employees.
Arroyo testified that, upon arriving at the shop, she dis-
covered her timecard was not in its usual position in the
rack. Arroyo asked Acevedo what happened to the card.
Acevedo did not know and suggested Arroyo ask Battaglia.
Arroyo complied, and Battaglia told her she had been dis-
charged on September 10. Battaglia told her he informed
her of the discharge on the date it occurred, but she denied
any recollection of the dismissal claiming she would not
have returned to work on September 13 if she knew of the
discharge. In any event, Arroyo asked Battaglia why he
discharged her, and he told her it was because she had
been disrespectful, was seated while at work, and was very
slow.
On September 17, Battaglia called Redd into his office
and discharged him. According to Redd, who was uncon-
tradicted in his account of this conversation with Battaglia,
he was informed by Battaglia that he wanted no one to
dictate to him. Battaglia accused Redd and Teevan of
"conspiring against him and threatening him with OSHA
and the g---- union." Redd pleaded he needed his job
because he had a family, but Battaglia responded he
"should have thought of that before you started all this s-
" and then advised Redd that he was discharged for
fighting and arguing with fellow employees. Redd suggest-
ed that Sanchez should be discharged, and Battaglia said,
"There you go again, trying to dictate to me." 27
Finally, Tejeda testified that, on September 17, he was
called into Respondent's office where Battaglia told him to
sign a timecard. He did so, without an explanation from
Battaglia, and then left the office and asked Acevedo 28
what it meant. Acevedo went into the office, presumably
spoke with Battaglia, returned to Teieda and told him he
24 As will he ilbsered hereinafter, this is one facet of Respondent's de-
fense to Tleevan's dis,.harge
25 GC. Exh I i(a).
2
0 G(' Exh. 12.
2 Redd had an alicrcation the previous da) with Sanchez. Accildin to,)
Redd, the only witness who testified regarding the "fight." Redd became
upset over Sanchez' examining Redd's work. Battaglia was present and
agreed with Sanchez' evaluation that the particular piece of Redd's work
was not well done and then told Sanchez to remain at his own machine. the
entire incident consumed about 30 seconds. Sanchez was not discharged for
fighting.
' lejela Arroyo, and another employee, Victor Torres (a cousin of i..
Torres), regulariv used Acevedo as a translator of English spoken to them
into Spanish. htlhr naltive language.
had been discharged because he had signed a union au-
thorization card. Battaglia testified he had not discharged
Tejeda.
On November 17, L. Torres and Arroyo were reinstated.
While Arroyo was still employed by Respondent at the
start of the hearing, it is not clear whether L. Torres was so
employed.29 He had been discharged a second time on De-
cember 1. The reason asserted for this latter discharge is
the failure of L. Torres to follow instructions in performing
a special order that day. He was assigned by Battaglia that
morning to thread figurines. Battaglia specifically advised
him of the urgency of his work and that, to expedite the
production process, other employees would pick up the
boxes of his completed work from his work station located
at the rear of Respondent's premises and take the boxes to
the front of the building where the wrapping and packing
area was located. Acevedo testified she saw L. Torres vio-
late those instructions that morning, while Battaglia testi-
fied L. Torres apparently did not breach the instructions
until after lunch. Battaglia claimed, however, that he ob-
served L. Torres talking at length with Arroyo who was
away from her work station. Also, Battaglia testified that
L. Torres spent inordinate amounts of time that day in the
restroom and at the drinking fountain. It is this latter indis-
cretion which constitutes the precipitating cause of the De-
cember 1 discharge, Battaglia's claiming those actions pre-
vented L. Torres from expediting the special order. Both
Battaglia and L. Torres testified that no warnings were giv-
en L. Torres during the morning. Though Battaglia testi-
fied he watched L. Torres throughout that day and kept
notes of his activities, Battaglia also testified that his in-
structions had been followed "only in the morning." Acev-
edo contradicted Battaglia in this regard when she testified
L. Torres had been warned throughout the day by Battag-
lia not to bring the boxes containing his finished work
product from his work station in the rear of the shop to the
front area, but this warning went unheeded. A multitude of
evidence, presented by the General Counsel and by Re-
spondent, appears in the record to describe L. Torres' ac-
tivities which Respondent ascribes as the reason for the
December I discharge. I find Respondent's evidence per-
vaded with contradictions as already noted. What is clear,
however, is that, at or about 2:30 p.m. on December 1,
Battaglia confronted L. Torres, engaged him in an argu-
ment, and told L. Torres that he was discharged. L. Torres
testified that he was given no reason for the discharge,
while Battaglia testified he sought to stop L. Torres from
taking a drink of water so the special order could be com-
pleted. L. Torres testified he had finished the order by
2:30. Acevedo confirmed Battaglia's version, which indi-
cated that, when L. Torres insisted he would take his drink,
Battaglia ordered him to go home. Because of the confused
and contradictory versions of Battaglia and Acevedo rela-
tive to the morning's events and L. Torres' activities at that
time, and because the narration of the argument as pre-
sented by L. Torres was corroborated by Arroyo and Vic-
tor Torres, I conclude L. Torres' testimony, more accurate-
Iy than Battaglia's and Acevedo's. reflects the facts
'9 The parties stipulated only that L. Torres had been reemployed on or
about January 27, 1977.
302
WAYNE TROPHY CORP.
surrounding the December I discharge. Thus, I find that,
whether or not L. Torres followed the work instructions
during the morning, he was not criticized for his perfor-
mance; that L. Torres had finished his special order work
at approximately 2:30 p.m.; that, when L. Torres went for
a drink of water at that time, Battaglia ordered him to go
home and gave no reason for the discharge, except to tell
L. Torres "you f me too much." 30 To complete the
narration of facts, one additional incident should be noted,
L. Torres testified that Allen Smith told him sometime be-
tween September 7-9 that he (Smith) was then the fore-
man, Teevan was no longer functioning in that capacity,
and Battaglia did not want Teevan to be foreman any long-
er. Teevan spoke with Smith during the morning of Sep-
tember 10 and asked Smith whether Battaglia spoke with
him about the Union, and Smith responded Battaglia had
done so. Smith acknowledged that Battaglia asked him
whether he knew anything about the Union but denied he
was a foreman.3i
B. The Alleged Interference, Restraint, and Coercion
The complaint, as amended at the hearing, alleges that
Respondent, by Battaglia, interrogated employees concern-
ing their membership in, activities on behalf of, and sym-
pathy for the Union: 32 and, by "its foreman, Allen Smith
and John Fulton, communicated to certain of its employ-
ees that . . . Battaglia had interrogated other employees
concerning their membership in, activities on behalf of,
and sympathy [for] the Union." 33 These activities are al-
leged as so-called independent violations of Section 8(a)(l)
of the Act. Additionally, in his brief, counsel for the Gen-
eral Counsel sets forth, among the issues to be resolved
herein, "Whether Susan Acevedo was an agent and a sup-
ervisor for Respondent at all times material herein?" 34 The
resolution of Acevedo's status is necessary because of the
evidence implicating her in possible 8(a)( ) violations. De-
spite my belief the complaint might well have been more
artfully drafted to allege specifically that Acevedo had en-
gaged in proscribed conduct, I conclude the complaint is
sufficiently broad as to require my determination of
Acevedo's status and whether any of her activities consti-
tute unfair labor practices for which Respondent is liable.
In this connection, it is noted that all parties participated in
the hearing with full knowledge that Acevedo's activities
would be claimed to impute a violation to Respondent,
fully litigated not only Acevedo's status but also her con-
duct upon which a violation would be urged, and then in-
cluded both matters in each of their briefs with extensive
discussion. In these circumstances, it is proper to resolve
the issues relative to Acevedo and to base conclusions and
findings of violation, if any, upon that resolution.
3° These findings are a summary of L. Torres' testimony which I credit.
"I As will be seen below, I do not credit Smith.
2 G.C Exh. l(n), par. 10.
33 G.C Exh. l(n), par. 12.
'G.C br., p. 2.
See Merchandiser Press. Inc., 115 NL RB 1441 (195 6h)
1. Acevedo's status
As already noted, the General Counsel contends Aceve-
do was a supervisor or, in the alternative, an agent of Re-
spondent during the period material herein. Respondent
denies Acevedo's agency but does not address the supervi-
sory issue.
Fulton provided the following uncontradicted testimony
regarding Acevedo's job. In late August, Fulton told Bat-
taglia he could not effectively supervise the employees who
were packing and performing racking functions and asked
Battaglia to obtain someone to "take over" those opera-
tions. Acevedo had previously been employed by Respon-
dent as a packer at which time she had been "in charge" of
the racking and packing. Thus, in late August. Acevedo
was reemployed. Her principal duty was to be, once again,
in charge of racking and packing. Fulton testified that the
hiring of Acevedo did not relieve him of any supervisor+
responsibility over the area in which she worked. Accord-
ing to Fulton, Acevedo performed manual labor packing
about 99 percent of her time, the remaining worktime
being consumed in instructing and correcting other em-
ployees.3" Both Fulton and Acevedo testified that she di-
rected the activities of the packers and rackers but onl) in
accordance with Fulton's general instructions given to her
daily. The operation in her charge was characterized as
"simple" requiring the use of Acevedo's judgment only in
ascertaining on which racks particular figurines were to be
placed. The figurines were of varying sizes, and the racks
were of corresponding sizes. It was Acevedo swho would tell
the other two employees regularly working with her in the
packing area which racks to use and which figurines were
to be placed on them. Occassionally, Acevedo would re-
ceive her general directions from Battaglia instead of Ful-
ton. In such instances, Acevedo performed her functions
without any other supervision. There is evidence that Ace-
vedo did not grant time off, give reprimands, or become
involved in any type of personnel matters. No evidence
was adduced to the effect she possessed authority to hire,
discharge, promote, or effectively recommend such actions,
or exercise any other supervisory indicia. Tejeda credible
testified that, after Acevedo was hired, he received his
work instructions from her rather than Fulton as had previ-
ously been the case. This is not only consistent with
Acevedo's responsibilities as described by her and Fulton
but clearly demonstrates she was acquired to more readily
communicate with the employees inasmuch as Teleda was
one of the Spanish-speaking employees. I.. Torres and Ar-
royo 3- testified in a vein similar to Fejeda that they oh-
served Acevedo giving them instructions without first con-
sulting Fulton. Arroyo testified that Acevedo told her not
to wear sandals at work. Acevedo admitted this admoni-
tion claiming it was issued to prevent possible injure to
Arroyo from an accidental drop of a heavy figurine. Ai-
royo also was told by Acevedo not to sit while working
because Battaglia did not want anyone sitting Arroyo
complied and nothing further was said or done by Aceve-
3I Acesedo easil. communicaled with the Spanish-,peaklin emploee,
while Fulton could not do so T his fac. in part. contrbhuted ii, Fult n
request for assistance which resulted in the reelnplovmcnt ~,f .\e1 edoi
Each of these emplosees is also Spalisbh- ,peaki
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do. Arroyo said that Acevedo would "pack and give or-
ders."
Significant to the determination of the supervisory con-
tentions regarding Acevedo, and also Smith (to be consid-
ered below), is the size of the employee complement and
the ratio of supervisory personnel in relation to it. Respon-
dent's entire complement of employees totaled 14 employ-
ees, which included Battaglia, his wife, Marilyn, his daugh-
ter, Cynthia, W. Bates, a salesman, and Fulton, an
admitted supervisor." The remainder of the employee
complement consisted of six employees stipulated to be in
the production and maintenance unit plus Teevan, Smith,
and Acevedo, each of whose status must be resolved
herein. Thus, at a maximum, the total production and
maintenance unit would be comprised of but nine employ-
ees.
Upon all the foregoing, I conclude that the evidence re-
veals the operation over which Acevedo was "in charge" is
essentially simple, repetitive, and routine, and find the au-
thority exercised by Acevedo in connection with it also was
routine and derived from her earlier experience. Hence, I
find Acevedo was not a supervisor at times material
herein.39 To hold Acevedo a supervisor herein, especially in
view of my conclusions as to Smith's status,40 would lead to
the existence of an abnormally high ratio of supervisors to
rank-and-file employees.4 '
I conclude, however, there is merit to General Counsel's
contention that Acevedo acted as Respondent's agent with
reference to the conduct urged as 8(a}( 1) violations which
involve her.
The record reveals that Acevedo and Battaglia have
been acquainted with each other for at least 14 years and
that, at times, Acevedo has socialized with other members
of the Battaglia family.4 2 As noted in the recitation of se-
quence of events, after Lugo's presence was observed by
Battaglia on September 9, Battaglia made efforts to de-
termine Lugo's identity and the extent of the employees'
union activity. Thus. Battaglia told Fulton he would re-
quest Acevedo to question other employees about what
they knew of the Union. Although there is no direct evi-
dence that such a request was in fact made, the record
reflects considerable cvidence from which it can be reason-
ably inferred that Battaglia, indeed, did pursue his an-
nounced intention. For example, Arroyo and Tejeda stated
that Acevedo asked each of them whether or not each had
signed an authorization card. In Arroyo's case, Acevedo
also asked (on September 9) for Lugo's identity and the
next day, among other things, informed Arroyo she might
'I Responieni's shol p uas dividlecd approximnately in halft Fulton being the
superxisor of the so-clled fronl" ha!f housing the shipping, receilig.
pantining plating. racking. and hosing areas. in addition to the hand-cast
leua Iocaled in the "back" h if if the shop. teevan. during his stipuliled
teullre as Lpers\lNor sI peCrvised the "hIck" half operiatlions
;'t !he .Si/nier -n/t1arini 711 Ni RtK L v3 (i 9681
4O See sec B,2. injra
See /1'1oa1, Induvtrl tP 'rloa 1, In , 139 N1 RB t1066 (1962).
4G (ienc al ('ounscl argues thai A.ceedo wals accoided .l special statails h
tirlu of these and other consideratins I find that argument unnecessarS
to i determninalion htrein because of tile more probalisic lnid substantial
cxdence (0o hK desrlhed heiraflicr of direct agency ;uthorization. ellnce
I do not lels upon ;lan o(f (iernrtd ('.1unel's evidence adduced to support
the ;'special sta;r" theors in deciding the issue if Acevedo's status
lose her job if she signed a card.
Crucial to the inference which I make is the evidence
that Acevedo communicated the result of her activities to
Battaglia. Acevedo admitted she relayed to Battaglia the
information given her by Arroyo that Lugo was a union
representative. In view of Acevedo's general relationship
with Battaglia, it is plausible that she apprised him of all
her interrogations and other remarks. Moreover, Battaglia
admitted that, during the afternoon of September 9, Aceve-
do told him of Lugo's identity. Thus, although Battaglia
was aware of Acevedo's actions which furthered his objec-
tive announced to Fulton, no evidence whatever was ad-
duced to show any effort by Battaglia to renounce or disa-
vow any of Acevedo's actions; indeed, when coupled with
Battaglia's own subsequent actions, there is cogent evi-
dence that he actually approved of them. In view of
Acevedo's facility in communicating with the Spanish-
speaking employees, she was the logical choice to promote
Battaglia's goal. Accordingly, I infer that Battaglia request-
ed Acevedo to act in his (and Respondent's) behalf in con-
nection with the Union's organizing efforts.
In a case strikingly analogous to the instant case, 43 a
rank-and-file employee was requested to persuade other
Spanish-speaking employees to vote against a union and
make promises of benefits to them to induce a vote favor-
able to the employer. The management representative (the
employer's night manager) admitted having numerous con-
versations with the purported agent about the union and
denied he requested the unlawful activity. Citing N.L.R.B.
v. Fitzpatrick and Weller, Inc.," the trial examiner found
the existence of an agency noting "An employer is respon-
sible for the statements and conduct of a rank-and-file em-
ployee acting at its direction, or as its agent or conduit." 45
In the circumstances herein, I am persuaded that this prin-
ciple is applicable. Accordingly, I find Acevedo was an
agent of Respondent for the purposes relevant herein.46
2. Status of Allen Smith
The General Counsel contends that Smith was a super-
visor between September 7 and at least through September
10 while Respondent takes no posthearing position on this
issue. Based on its evidence and arguments at the hearing,
together with posthearing arguments on other issues, it is
clear Respondent would urge Smith was not a supervisor
during the stated period. The General Counsel's evidence
regarding Smith's status is wholly contested. Although
Smith was presented as a witness by Respondent, and he
normally would be the best source of information concern-
ing his position, I do not credit his testimony. Careful ob-
servation of Smith's demeanor revealed Smith to be eva-
a~ Edir. In(. d h a ti/t lfie'. 159 NlRB 686, 690-692 11966)
44 138 1 .2d 697. 699 (C.A. 2. 19431.
4 Edir. Inn, uprz ait fn. I . adopted by the Board. pro forma.
4t The General Counsel has cited Teledyne Dental Products Corp.. 210
NLRB 435 (19741. in support of his agency theory. I find that case distin-
guishable hecause the alleged agent therein. the secretary to a high-ranking
management official, though not a supervisor. occupied a position of confi-
dentialits to management I dir nlot deem the evidence before me to warrant
the conclusion that Acevedol enjoyed such a position
304
WAYNE TROPHY CORP.
sive,47 self-contradictory '4 8 and argumentative.49 In marked
contrast, the testimony concerning Smith's duties given by
Teevan, L. Torres, Redd, and Tejeda was forthright, con-
stant, and logically consistent. Therefore, the facts I find
immediately below are comprised of the combined narra-
tions of the stated witnesses of the General Counsel in ad-
dition to Smith's admissions.
Smith worked for Respondent for varying periods in the
past 20 years. I find that, from approximately October
1975 until the time of Teevan's hiring in approximately
May,5o Smith was foreman of the rear half of Respondent's
shop. Smith was relieved of his supervisory mantle upon
Teevan's hiring, and those functions devolved upon Tee-
van. During the period of the stipulated supervisory status
of Teevan, Smith worked as a setup man and, on occasion,
assisted Teevan in the performance of his work, but, during
that period, Smith exercised no supervisory functions. Dur-
ing Teevan's supervisory tenure, he engaged in supervisory
activity over employees in the rear of the shop approxi-
mately 50-60 percent of his worktime. That activity con-
sisted of assigning work to employees, directing which ma-
chines were to be used, and reassigning work and machines
to employees in his charge. About 25 percent of Teevan's
time was consumed by him performing jobs as a mainte-
nance mechanic, and the remainder of his time was used to
perform "paper work." On September 7, the day Teevan
returned to work from his late summer vacation, Battaglia
assigned Teevan to work on a machine where he worked
not only that day but the remainder of that week until his
discharge on September 10. Meanwhile, Smith appeared to
be in charge of the operations in the rear of the shop. Jlee-
van testified that all that week he observed Smith perform-
ing Teevan's former activities for approximately 80 percent
of Smith's total worktime. Additionally, Teevan recounted
he chided Smith about his new duties and Smith responded
he (Smith) was "getting too old to do running around as
foreman." Smith conceded he substituted for Feevan dur-
ing Teevan's vacation absence. L. Torres testified that
Smith told him, while Teevan was on vacation. that he
(Smith) had been advised by Battaglia that Teevan would
be foreman no longer, and that after Teevan's return L.
Torres observed it was Smith, not Teevan, who gave the
work orders and job assignments. L. Torres corroborated
Teevan's testimony that Teevan worked on machines all
the week of September 7. Tejeda and Redd similarly testi-
fied that each had observed Teevan's functions had
changed substantially after returning from vacation. they
4ie c lnsiantlk sought toi avoid the term "forenlan" when referring to his
position. Instead. he shaded his functions hs :ppkiing the term "senior
man" to them and excused the few aidmitted examples of his supert islon hs
claiming he merel] "helped out" All this oiccurred In the contlestl i tile
admission in his prehearing affidavit (;.' [Aixh. 171 that he uas "forellmi"
"SSee references to prehealring .ffida.xit G.(. [xh 17 pat 2. In ahich
Smith stalted he was "foreman" from the time of his Ininial emplosment in
late 1975) until Ieevan w as hired in Mat, : par 5 In hivilc he a.id hlc ould
not sign an authorization card because he was "foireman": and par s In
which he indicated that Battaglia had asked him wht h sinedl ilrds, i fi act he
denied during his oral testimony.
4Smith. through his testimonr . was observed cerballs pirlsitig aith
counsel interrogating him. especially counsel for the (iGeneral (Counsel. and
was cautioned from the bench Ihouu this hehaiior.
'O As will he developed helow ill discussing TI ee ill' Septembher I) termi-
nation. Teevan had been rehired in Mas hating prc.iiousl 'a.rked fir Re-
spondent.
then having received their orders and instructions from
Smith instead of Teevan which had been the former prac-
tice. Finally, it is noted that even Battaglia's testimony sup-
ports General Counsel's position. In an effort to extricate
itself from the 8(a)(3) violation as to Teevan, Respondent
claims, through Battaglia's testimony, that, during the
week in question. Teevan was "plant manager" with au-
thoritv over all production employees except Fulton and
Smith. Although, as will be seen below, I do not credit this
assertion as to Teevan's position, it is interesting that the
association of Smith with Fulton (the admitted supervisor)
is made. The effort to associate those two persons is de-
monstratise of how even Respondent viewed Smith's posi-
tion. Although no evidence was adduced to show that
Smith possessed or exercised authority to affect the person-
nel status of other employees. I am convinced that Respon-
dent's operational structure provided for one individual to
supervise the activities in the front of the shop while anoth-
er had supervisory responsibility over the rear half. The
record as a whole dictates such a division. Fulton is ac-
knowledged to have been supervisor of the front, and. be-
fore his late summer vacation, Teevan was supervisor of
the rear. The credited evidence persuades me that Smith
had replaced Teevan during his vacation and that replace-
ment continued through the week of September 7-10. Ac-
cordingly. upon all the foregoing, I find that Smith, at all
times relevant to the complaint allegations, was a supervis-
or within the meaning of the Act. Assuming, arguendo,
Smith was not a supervisor, I would find that, by virtue oi
his independent and responsible direction of other employ-
ees during that time period, his actions, claimed to be in
violation of Section 8(a)( I), may be imputed to Respon-
dent.
3. Concluding findings
A fair evaluation of all the credited facts appearing
above as sequence of events (sec. A). considered in 'he
light of the findings in subsections I and 2. above. inesca-
pably leads to the conclusion that Respondent violated
Section 8(a)( ) of the Act by the following acts and con-
duct, and I so find.
(a) Foreman Smith. on September 10. created an im-
pression that the employees' union activities were under
surveillance when he informed Teevan that Battaglia ques-
tioned him about those activities.5'
lb) Battaglia, on September 9. enlisted the assistance of
a rank-and-file employee. Acevedo. to engage in unlawful
interrogation when he asked her to question employees
about their union activities.
(c) Acevedo, as Respondent's agent, interrogated Ar-
rovo and ITejeda as to whether they signed a union card.
(d) Acevedo. as Respondent's agent, threatened Arroso
with economic reprisal by telling her she would be dis-
charged if Battaglia knew she signed a union card.
(e) Battaglia interrogated Redd as to whether Teevan
gave him a union card.
(f) Fulton created an impression of surveillance when he
HBecauuse I tfind Sltlh repl..ced leelan .ia superxlsor. Smlth's Septenmh er
10 remarks acre mlade hb 1 suipervisor (Smith) to aI ralnk-mnd ftic emplosec
I ee ani i
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Teevan that Battaglia knew everything about the em-
ployees' union activities.
(g) Fulton created an impression of surveillance when
he told Teevan he heard Battaglia asking Sanchez who
signed union cards.
(h) Battaglia interrogated Sanchez regarding who signed
union cards.
52
C(. The Alleged Discrimination
1. Teevan's discharge
As noted above,
53 I have found that Smith was supervis-
or of the rear of the shop between September 7-10. I fur-
ther find that the evidence sustains General Counsel's con-
tention that Teevan no longer possessed or exercised his
former supervisory responsibilities during that time. Ac-
cordingly, I find that Teevan was a rank-and-file employee
during the period in question.
I turn now to the issue of whether or not Teevan's Sep-
tember 10 discharge was discriminatory. As background,
the record reveals that Teevan's employment history with
Respondent was divided into two periods. He had been in
Respondent's employ from July-November 1975. During
the latter month, Fulton had prepared a petition contain-
mng matters of working conditions the employees sought to
be corrected, and he and l'eevan jointly presented the peti-
tiin to Battaglia. The day after the petition was given to
Battaglia, he discharged l eevan telling him the reason was
that 'leevan was trying to bring a union into the plants5
4 In
May, Battaglia contacted Teevan and offered him reem-
ployment a s a maintenance mechanic and thereafter (as
described in sec. B,2 above) Teevan was foreman of the
rear portion of the shop for no longer than to September 6.
It is uncontested that Teevan was discharged by Battaglia
on September 10.
The General Counsel contends Teevan's discharge was
discriminatory in view of Respondent's demonstrated an-
tipathy toward unionization, as described hereinabove, and
particularly in view of its timing, coming but I day follow-
ing Battaglia's observation of Lugo at the shop, I day after
Teevan signed his authorization card, and almost immedi-
ately following Battaglia's interrogation of Sanchez. Re-
spondent contends the discharge was for cause; principal-
ly, that Teevan proved to be an unsatisfactory supervisor.
In testimony reminiscent of Lewis Carroll "looking glass"
characters, Battaglia outlined a variegated conglomerate of
reasons to support Respondent's defense. The necessity to
terminate Teevan became apparent, according to Battaglia,
in July when Teevan returned from an early summer vaca-
:' Although, as noted above, Sanchez did not testify. I find that the credit-
ed tesrimony as a whole sustains the allegations of the complaint and G(en-
erall (Counsel's contention that this interrogation occurred and was unlawful.
See Riley Stoker ('crp-,ration, 223 N.RB 1146 (1976).
See fn. 5, supra.
i'4 For all the reasons preliusly noted, and those yet to follow
relative to
Battaglia's credibility, I do not credit his denial of this occurrence,
espe-
cilly sici.e Fulton corroborated that Battaglia harbored this
suspicion No
findings of violation are based upon this November 1975
incident, but I find
it relevant to the elemenit of Respondent's motisation for
the September 10
discharge
tion. Though that vacation had not been authorized by
Battaglia, Respondent did not claim Teevan's absence
without prior permission contributed to the discharge, but
Battaglia did claim that to be an example of Teevan's poor
general attitude. One reason, Battaglia testified, for the dis-
charge was Teevan's recurrent and excessive coffeebreaks.
Fulton testified he drank as much coffee as Teevan, and
Acevedo testified she overheard Battaglia warn Fulton not
to take such frequent or lengthy coffee sessions. Next, Bat-
taglia asserted Teevan had permitted employees to engage
in pilfering of merchandise and goods from Respondent's
premises. No evidence of specific thefts was adduced,
55 nor
was it demonstrated that the stealing involved any employ-
ees in Teevan's charge. Fulton testified that Battaglia had
addressed this problem to both him and Teevan and even
Battaglia admitted, on cross-examination, that he "did a
lot of yelling and screaming at Mr. Teevan and Mr. Fulton
about the constant stealing that was going on by everyone
at the plant." Fulton said Battaglia spoke to him about the
thefts on at least 10 occasions during the summer, and he
informed Battaglia he would not become a policeman for
Battaglia. Fulton was not reprimanded or disciplined for
this response. Teevan also told Battaglia he would not po-
lice the employees' activities. Finally, Battaglia claimed
that Teevan's inattention to his work was demonstrated by
Teevan's persistent work on his personal swimming pool
filter and his refusal to heat the machines before the regu-
lar start of working hours, although Teevan reported to the
shop premises before that time. Teevan denied that Battag-
lia ever warned him of these matters. Battaglia claimed all
the foregoing problems with Teevan existed throughout the
summer and increased to such an extent that, sometime in
August, Battaglia decided to dismiss Teevan. Admittedly,
no notice of this decision was given Teevan, not even on
September 7 when Battaglia asked Teevan for the return of
his key to the shop. The reason for the delay in implement-
ing the purported decision was asserted by Battaglia as the
unavailability of a locksmith earlier than September 7.56
There is no contention by Respondent that Teevan's, or
any other discharge alleged herein as discriminatory, was
motivated by economic necessity, and, while it is claimed
Teevan's discharge, and Respondent's actions thereupon,
ervisor, his job performance is not otherwise challenged.
Even if viewed in the most favorable light for Respon-
dent, the various reasons associated by Respondent for
Teevan's discharge, and Respondent's actions thereupon,
require that the General Counsel should prevail. Even as-
suming each of the reasons propounded is a legitimate
cause for discharge, it is no defense to an alleged unlawful
discharge where that legitimate reason is not a moving
cause of the discharge. It is abundantly clear herein that
each of the reasons proferred by Respondent was known to
Respondent long before Teevan's termination. All the rea-
"' When asked to be specific, Battaglia referred only to the alleged
theft
by Sanchez and L. Torres on September 9 as previously described herein.
55 Resp. Exh. 10 indicates the locks were changed on September 7 (a fact
undisputed) and that Battaglia's initial contact with the locksmith had been
several weeks before that on some unknown date. In view of the rationale
for my overall conclusions, this apparent corroboration of Battaglia as to
when he decided to discharge Teevan is deemed insufficient to override the
myriad of other objective evidence and the manner of testimony by which
Battaglia is generally discredited.
306
WAYNE TROPHY CORP.
sons existed throughout the summer. Indeed, Fulton was as
derelict as Teevan as to the coffeebreak and theft defenses,
but no adverse action was taken against him. Even conced-
ing a locksmith had been contacted in August does not
necessarily lend credence to the assertion that the decision
to terminate Teevan was made prior to the Union's advent.
It is equally plausible that it was in August that Battaglia,
faced with opposition from his two foremen to police the
employees, simply decided to make Respondent's premises
more secure by changing the locks. I dismiss Respondent's
suggestion that the changing of locks was related to a deci-
sion to discharge Teevan, for, if that were true, the dis-
charge easily could have been effectuated on September 7,
the day the locks were changed and Teevan returned his
key. In short, it appears Battaglia countenanced all of
Teevan's delinquencies until the Union came onto the
scene.
There is ample record evidence to reveal Battaglia's per-
sonal knowledge of the employees' union activity. That he
believed Teevan might have been a union advocate is seen
from his interrogation of Redd as to whether Teevan gave
Redd a union card. On these facts alone, coupled with the
timing of the discharge and 8(a)(1) violations, I would be
justified in concluding Teevan's discharge constitutes a vi-
olation of Section 8(a)(3). Additionally, however, the evi-
dence that Battaglia once before, in November 1975, ex-
pressed his animus to organizational efforts and wrote to
the New Jersey unemployment officials (on September
17) 57 that one of the reasons for Teevan's September 10
discharge was that Teevan threatened Battaglia "with the
OSHA and with a union."
In the foregoing circumstances, I conclude that it was
not one, nor any combination, of the reasons presented by
Respondent which constituted the moving force behind
Teevan's discharge. Rather, I conclude that the Union's
organizing drive and Battaglia's desire to impede it caused
that discharge. Hence, I find that Teevan was discharged
on September 10 in violation of Section 8(a)(l) and (3) of
the Act, 8 and the reasons of Respondent are pretextual.
2. L. Torres' discharge
The complaint alleges, and the General Counsel con-
tends, that both his discharge on September 10 and on
December 1 are violative of Section 8(a)(3). As to the first
discharge, Respondent asserts L. Torres was discharged for
stealing, and, as to the December I discharge, Battaglia
claimed that L. Torres was insubordinate by failing to fol-
57 See G.C. Exh. 2. Also, the parties stipulated that a tape recording (Jt.
Exh. I) could be received in evidence, each party claiming it contains evi-
dence to support their respective positions as to Teevan's supervisory status
and discharge issues. The tape contains Teevan's and Battaglia's testimony
before a heanng officer of the New Jersey unemployment division. My
careful audition of that tape convinces me that it is of no probative value to
me inasmuch as it reveals nothing more than self-serving declarations of the
participants. Thus, I do not rely on the tape in making my findings herein.
51 If it ultimately is found that Teevan was a supervisor on September 10,
then I find his discharge to violate Sec. 8(aX( I) only because the total context
of violations found herein leads me to conclude that his discharge was an
integral part of a scheme resorted to by Respondent to discourage union
activities. See General Nutririon Center. Inc.. 221 NL.RB 850, 858-859 (1975).
and cases cited therein.
low his instructions regarding the special order and by in-
sisting he would take his drink of water rather than com-
plying with Battaglia's order to return to work.?9
L. Torres had been in Respondent's employ for about
1-1/'2 months before his September 10 discharge. He had
operated a variety of machines and also worked in the
packing area. As indicated above, it was 1. Torres who
made initial contact with the Union, and it was he who
solicited the employees' signatures on union authorization
cards. This activity occurred on Respondent's premises.
That Respondent was aware of L. Torres' union activities
is readily understood by the admissions of Battaglia that he
observed L. Torres in close proximity to Lugo on Septem-
ber 9. Additionally, L. Torres was present with Lugo when
Lugo asked Smith to sign a card.
What is crucial to a determination of these discharges is
whether or not Respondent's reasons withstand scrutiny. I
think they do not. The theft, given as the cause for the first
discharge, is that which is supposed to have occurred on
September 9, when both Sanchez and L. Torres were al-
leged to have been observed by Battaglia and Acevedo tak-
ing figurines from warehouse boxes and delivering them
to Lugo. As previously noted, neither Acevedo nor Battag-
lia did anything about that incident that day. It was not
until after Battaglia spoke with Sanchez on September 10
and apparently received information from Sanchez con-
cerning the union activity that L. Torres was discharged. It
is illogical to believe that Battaglia, who vigorously claimed
that the suspected larcenies were of great concern to him in
Teevan's discharge, would not have taken some immediate
action against the wrongdoers. Not only did Battaglia wait
through the full afternoon of September 9. but also
throughout the entire day of September 10 before con-
fronting L. Torres about the theft. This is not to say that an
employer necessarily must seek redress at once. It is rea-
sonable that he might desire time to fully investigate such
situations to avoid wrongful accusations. However, in the
circumstances herein, I conclude Battaglia did not operate
with such an altruistic intention. His greatest apparent con-
cern was to obtain a maximum amount of information
concerning the Union's organizing efforts. It is clear that
Battaglia preoccupied himself with this goal by interrogat-
ing employees himself and enlisting Acevedo's assistance.
Of utmost importance is the fact that, when Sanchez de-
nied he had signed an authorization card, no disciplinary
action was taken against him. Considering that Respon-
dent's version of the September 9 theft implicates Sanchez
and L. Torres as equal malefactors, it is irrational to punish
only one of them.%° Such disparate treatment is accounted
for by Sanchez' renunciation of union affiliation and con-
vinces me that Respondent's asserted reason for the first
discharge is a pretext to disguise its real motivation in
quelling the activity on behalf of the Union. Therefore, I
59 Respondent's brief takes no position. specifically, concerriing the cc
ond discharge.
to Respondent, in its brief. argues that Sanchez was not dsch.alrdeJ lth
L. Torres because Sanchez had "rehabilitateli" himself It is diffcull to
comprehend this argument in the absence of evidence showing ho,s Salnihci
accomplished the rehabilitatlon process I'he unls exlden.e is that o.onir.i-
tion appearing in this record Is ;in announcement he did r11ii wrl .i i11nit1
card Such rehabilitation onl servses to streTngthen the (iener.,l ( sirulcl',
contentions.
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that L. Torres was discharged on September 10 in
violation of Section 8(a)(1) and (3) of the Act.
More difficult is the issue of the December I discharge.
As related above in section A, Torres did have difficulty
conforming to Battaglia's instructions during the afternoon
of December 1. The record reveals that L. Torres had been
an exemplary employee from the time of his rehire on or
about November 17 until December 1. Also, during that
period, there was no ostensible union activity. Thus, in ef-
fect, I am asked to conclude that Battaglia's earlier-demon-
strated union animus extended to December 1, so as to
warrant a finding that the underlying reason for the dis-
charge of that date was causally connected to L. Torres'
union activities and Battaglia's opposition to it. Under or-
dinary circumstances, I would decline to do so because an
employer surely has a right to expect adherence to reason-
able work regulations. What militates in favor of sustaining
the General Counsel's position, however, is the specious
nature of Respondent's supporting evidence and the neces-
sity for maintaining the Act's protection for a reasonable
period of time, the reasonableness of which must be de-
termined on an ad hoc basis. Put another way, the latter
factor addresses itself to the effectiveness of Board authori-
ty and remedies. If, for example, L. Torres had been or-
dered by the Board between September 10 and December
I to be reinstated, and Respondent had complied but
grasped the first opportunity thereafter to again discharge
him, would it be said, without a cogent reason for the sec-
ond discharge, that it should be passed without remedy? I
think not, for to do so would render negatory the Board's
remedial authority. Examination of Respondent's defense
reveals first that it is generalized and informal and not
verbalized anywhere except in the rather confused testi-
mony of Battaglia. Thus, it is not clear whether Battaglia
was upset with L. Torres because he did not follow the
instructions not to carry boxes from the rear to the front of
the shop, to return to his work station without taking a
drink of water, and to complete the special order, or any
combination of these factors. As to the carrying of boxes,
the credited evidence (including Battaglia's admission) is
that L. Torres followed Battaglia's instructions all that
morning. With regard to the water incident, it is clear L.
Torres disregarded Battaglia's instructions, but would a
reasonable employer impose so harsh a discipline as dis-
charge for this offense? I find Battaglia's response to L.
Torres' pursuit of his drink to be excessive particularly be-
cause it appears L. Torres had completed his work on the
special order. I am mindful also Battaglia's parting com-
ments to L. Torres included the exclamation that L. Torres
was "f- -- " Battaglia "too much." Also noteworthy is
the fact Battaglia kept notes of L. Torres' activities that
date. The purpose of such surveillance is unexplained. I am
unable to conclude that the events of December 1, attend-
ed by harmonious work relationships since November 17,
provide a background of such egregious employee conduct
by L. Torres as to be the cogent reason for discharge im-
munizing Respondent from a violation. It is noted that at
this writing (and certainly not on December I) the question
of union representation among Respondent's employees is
not yet resolved. It is not too extreme to believe that, in
December, Battaglia was concerned with L. Torres' organi-
zational efforts of September. As far back as November
1975, Battaglia expressed his antiunion sentiments and, as
shown above, translated them into unlawful action in Sep-
tember. I perceive no cause existed for either the surveil-
lance of L. Torres' work activities on December I or the
very stringent penalty imposed upon him in the above-de-
scribed circumstances. Accordingly, I conclude that the
General Counsel has sustained his burden of proof as to
the December I discharge and find that L. Torres was dis-
charged on that date in violation of Section 8(a)( 1) and (3)
of the Act, and Respondent's asserted reasons for that ter-
mination flow from Respondent's design to subvert the
Union's organizing vitality. 61
3. Redd's discharge
At the time of his discharge on September 17, Redd had
been employed as a machine operator by Respondent for
about 2 months. His regular work station was in the rear of
the shop. In addition to the interrogation involving Redd
(described in sec. A, above) and the fight between Redd
and Sanchez on September 16, one additional incident is
relevant to his discharge. Redd testified, without contradic-
tion, that he had incurred a slight injury from a machine
sometime during his employment and commented, in
Fulton's presence, that OSHA ought to conduct an inspec-
tion of the safety hazards in the shop. As related in section
A, above, Battaglia referred to OSHA when he discharged
Redd. Thus, while it is true that Battaglia told Redd one of
the reasons for his discharge was because of his altercation
with Sanchez, Battaglia also accused Redd of conspiring
with Teevan relative to the Union and OSHA. It is signifi-
cant that the parties stipulated that Sanchez remained in
Respondent's employ after Redd's discharge. If the argu-
ment between Redd and Sanchez warranted Redd's dis-
charge, it is surely the cause for discipline of some sort to
be imposed upon Sanchez. Respondent's failure to take
such action against Sanchez persuades me that the real rea-
son for Redd's discharge was Battaglia's stated belief that
Redd had been engaged in protected activity.6 2 Thus, I find
that Redd's discharge on September 17 constitutes a viola-
tion of Section 8(a)(l) and (3) of the Act.
4. Arroyo's discharge
Arroyo started to work for Respondent in late August
and worked as a packer and racker. Respondent claims
Arroyo was informed of her discharge on September 10;
and Battaglia testified that, when he informed her of it on
that date, he told her the reason was because she had been
disrespectful of him and worked slowly. Although no spe-
cific incident of disrespect was outlined by Respondent,
my review of the record leads me to surmise the reference
is to the warning by Acevedo that Arroyo should neither sit
b This finding is also based upon my conclusion that L. Torres' second
discharge, whereas he had been the principal employee union protagonist
by virture of his card solicitation, is "inherently destructive" of the employ-
ees' rights in the circumstances herein. N. L.R.B. v. Great Dane Trailers, Inc.,
388 U.S. 26 (1967).
62 Filing of OSHA complaints is protected under the Act. Alleluia Cush-
ion ('o, In ., 221 NLRB 999 (1975), in appropriate circumstances.
308
WAYNE TROPHY CORP.
while working nor wear sandals. In view of the surrounding
circumstances, the absence of evidence that Arroyo was
ever warned of a result of failure to comply with Acevedo's
requests, and my conclusion Acevedo was not a supervisor,
I conclude there is no merit to the claim of disrespect.
Inasmuch as Arroyo was not otherwise criticized for work-
ing slowly and considering she had been employed but 2
weeks prior to her discharge, I conclude this reason is
equally without substance. What is of relevance herein is
the undenied fact that Acevedo learned of Lugo's identity
through her interrogation of Arroyo and transmitted that
information to Battaglia. Although no direct evidence ap-
pears in the record to show that Acevedo also informed
Battaglia that Arroyo was the source of Lugo's identity, I
believe it a fair inference that Acevedo had done so in the
context of Battaglia's campaign to learn all he could of the
employees' union activity. Thus armed, Battaglia was in a
position to rid himself of another employee who apparently
was sufficiently acquainted with the union organizer to im-
part the belief that employee was sympathetic to the
Union's cause. Relevant to the preceding analysis is the
reason testified to by Battaglia for discharging Arroyo on
September 10 63 rather than at the time the alleged disre-
spect or slow work was observed. Battaglia claimed he
chose September 10 to tell Arroyo of her discharge because
he knew she rode to work with L. Torres who was being
discharged that date. If one were to credit this assertion, it
follows that Respondent actually is contending yet another
reason for Arroyo's discharge; namely, for Arroyo's conve-
nience. I find this assertion self-defeating. In the face of all
the foregoing, and Respondent's shifting reasons, I con-
clude the General Counsel has sustained his burden of
proof and find that Arroyo was discharged in violation of
Section 8(a)(1) and (3) of the Act.
5. Tejeda's discharge
Tejeda, employed by Respondent during July, worked
on various jobs in the front of the shop. He signed a union
card on August 27. Not reported hereinabove is Tejeda's
uncontradicted testimony that, during the week of Septem-
ber 7, Acevedo asked him whether he signed a union card
and told him that the employees who signed a card would
be dismissed.4 As related above in section A, no explana-
tion was given Tejeda by Battaglia on September 17 for
Battaglia's request of Tejeda that he sign a timecard. Re-
spondent contends that Tejeda was not discharged but vol-
untarily left his employment. I do not accept Respondent's
61 Arroyo claimed she was informed of her discharge on September 13.
the morning following the day Battaglia claims she was discharged I do not
find this discrepancy relevant except as to credibility I credit Arro o's ver-
sion inasmuch as it is unreasonable to believe she would have reported for
work on September 13 if she already knew of her discharge In an? event, all
parties agree that Arroyo had, in fact, been discharged and the remedN I
shall recommend is not affected by the difference in dates because she
worked all of September 10, and there is no indication she worked for ans
time on September 13.
64 Inasmuch as Acesedo did not begin her interrogation activities until
September 9, I find this incident occurred either on that date or September
10. Additionally, and in supplement to my findings in sec. B,3, above, I also
find that this interrogation and threat of reprisal constitute violations of
Sec. 8(aX I) of the Act,
position. As previ6 usly noted, Tejeda was perplexed by
Battaglia's request and requested Acevedo, with whom he
could readily communicate in Spanish, to obtain an expla-
nation of the event for him. She did go to Battaglia's office
and shortly thereafter reported to Tejeda he had been dis-
charged because he signed a union card. Neither Battaglia
nor Acevedo testified to what occurred in Battaglia's of-
fice. There is no question that Tejeda ceased working for
Respondent on September 17. In these circumstances, I
infer that Acevedo told Battaglia that Tejeda requested her
to ascertain the reason why he had to sign his timecard and
that Battaglia informed her what she reported to Tejeda.
Thus, I view this situation as Battaglia having conferred an
agency upon Acevedo for the purpose of advising Tejeda
of the meaning of Battaglia's confrontation. As an agent,
Acevedo's admission that the events were union-related
binds Respondent. That Tejeda was, indeed, discharged is
further established by his reaction which was to cease his
work,
Upon all the foregoing, I find that Tejeda was dis-
charged in violation of Section 8(a)(l) and (3) of the Act.
D. The Alleged Refusal To Bargain
The General Counsel contends that Respondent violated
Section 8(a)(l) and (5) of the Act by refusing to grant rec-
ognition to the Union and engaging in a series of unfair
labor practices (found as violations hereinabove) to under-
mine and destroy the Union's majority.
Inasmuch as certain facts relating to this issue are nar-
rated in section A, above, they will not be recapitulated
hereinafter except where necessary to a cogent comprehen-
sion of events.
1. The appropriate unit
As noted in section A, above (see fn. 4), the parties stipu-
lated the production and maintenance unit alleged in the
complaint is an appropriate unit for collective bargaining.
2. The request to bargain
While the General Counsel contends that the Union's
September II letter 65 constitutes a valid demand to bar-
gain, Respondent claims the contrary because it was not
actually received by Respondent. General Counsel, in the
alternative. relies upon the filing of the Union's representa-
tion petition 6 as satisfying the demand requirement herein
and urges that, in any event, no further action was neces-
sary by the Union because Respondent had refused to ac-
cept the original demand sent by certified mail.
As indicated hereinabove, the Union's September I I let-
ter was returned to the Union bearing the postal notation
to the effect its delivery had been refused. The envelope 6'
contains a clear indication that it emanated from the
Union. there being printed in bold type in the upper left-
hand corner on the face of the envelope the words: "Local
404, United Electrical, Radio & Machine Workers of
h5 See fn 25. ,upral
" See fn. 26. iirur
? (.( '.h i b(h)
309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America. 327 Main Street, Paterson. New Jersey 07505."
Battaglia did not deny he refused delivery.
In Regal Ahluminum Inc.,6 8 the Board adopted, proforma.
the conclusion that, despite a refusal by the employer of
the union's letter requesting bargaining and recognition,
there was effective notice to the employer. In that case
there was evidence that respondent, when refusing to ac-
cept the letter's delivery, had actual notice of its contents,
there having been prior telephonic communication be-
tween the parties relative to recognition. Arguably, that
case is distinguishable from the facts herein but I find it
apposite. Although herein there was no direct contact be-
tween Respondent and union representatives before the
September I I letter could have been received, there can be
no doubt that Respondent's agents reasonably suspected
what was contained therein. This is so because of the ex-
tensive 8(a)( I) conduct which began on September 9. Thus,
I find the instant case analogous to Regal Aluminum, Inc.
I view Respondent's refusal of the demand letter an ex-
tension of its design to thwart and impede the exercise of
the employees' Section 7 rights. It would serve no useful
purpose to engage in protracted discussion in this area, for
it is self-evident that to permit an employer to disclaim
responsibility from an obligation to bargain, where all
other essential elements of that obligation exist, simply by
somehow turning away from a valid demand would lit-
erally vitiate the Act's objectives. There is ample case au-
thority to support my conclusion.6 9 Moreover, it is suffi-
cient that the September II letter, without more, was
mailed and refused. and no further effort was necessary to
constitute a valid demand herein. 70
Accordingly, I find that an adequate demand for bar-
gaining was made by the Union herein in the appropriate
stipulated unit, and that the demand was effective on Sep-
tember 14, the date on which, I take notice, it would have
been delivered to Respondent in the normal course of
events.71
3. The Union's majority
The General Counsel contends that, when the Union re-
quested recognition by its September 11 letter, it enjoyed
support from a majority of employees in the appropriate
unit. To support his position, General Counsel offered six
signed and dated, unambiguous authorization cards, each
of which was received in evidence without objection except
that Battaglia challenged, through his testimony, Sanchez'
card after it had been received in evidence.72 The parties
stipulated the unit,73 on September 9, was comprised of the
be 171 NLRB 1403, 1410 12 (1968).
N I R. B Columbian Enameling & Stamping Company. Inc., 306 1: S
292, 297 (1939): (lt fleliric Company, 164 NLRB 844. 847 848 11967).
Re val Aluminum. Inc'. .upra.
Scobhell ( hni all ( ampan Inc. v. A L.R B. 267 F 2d 922. 925 ((' A 2.
19s9)
" I'he date is taken from the stamped date on the envelope. See C(i
Eictri (Co. supra ait 848X Bens.on Wholesale C(ompanv, Inc., 164 NLRB 536.
551 (1967)
'The challenge wsil be discussed helow.
The follzowing were stipulated as excluded from the unit: A. Battaglia.
president: Marilyn Battaglia. his wife; Cynthia Battaglia. his daughter; WV
Bates. sa;lesman: and J Fulton. foreman
following employees: A. Arroyo, E. Diaz, R. Redd, L. San-
chez, J. Tejeda, and L. Torres.
Additionally, the status of S. Acevedo, A. Smith, and C.
Teevan remained in dispute, the General Counsel contend-
ing that only Teevan should be included in the unit, while
Respondent would exclude Teevan but include Acevedo
and Smith. I have already resolved this dispute in my earli-
er findings regarding the 8(a)(1) and (3) allegations. Ac-
cordingly, Acevedo and Teevan are included in the unit,
while I exclude Smith as foreman of the rear half of the
shop at the time of the demand and the commencement of
unlawful activities. Thus, adding Acevedo and Teevan to
those stipulated unit employees, the unit's total comple-
ment of employees consisted of eight employees. 7 4 As pre-
viously noted in section A, above, on August 27, authoriza-
tion cards were signed by four employees: Arroyo, Redd,
Tejeda, and L. Torres; and an additional two cards were
signed by Teevan and Sanchez on September 9. As noted
above, Battaglia, late in the hearing, sought to challenge
the authenticity of Sanchez' card. The card already had
been authenticated by L. Torres who testified credibly that
he solicited Sanchez' signature, gave the card to Sanchez,
and observed Sanchez sign it. Inasmuch as this testimony
conformed to an acceptable method of authentication,75 I
received Sanchez' card in evidence particularly because
Sanchez was not present at any time during the hearing, 76
During what General Counsel accurately describes as
Battaglia's "re-re-direct examination," Battaglia testified to
what I conclude to be the most flagrant examples of his
heretofore-noted patent perversions of the truth when he
asserted that, in open session of the hearing and in my
direct vision and that of counsel for the General Counsel
and Respondent's own representative, he (Battaglia) saw L.
Torres (who was in the witness chair) and Lugo (seated at
General Counsel's table) motion to one another that each
had actually signed Sanchez' card. Battaglia admitted later
in his testimony that, although he had been sitting next to
Respondent's representative at the time the alleged mo-
tions were made by L. Torres and Lugo, Battaglia did not
call this alleged incident to the attention of Respondent's
representative. Moreover, Battaglia testified that I was fac-
ing the witness, L. Torres, when the motioning was sup-
posed to have occurred. I did indeed carefully observe L.
Torres throughout his testimony, as I did all witnesses, but
saw nothing out of the ordinary. No other person present
in the hearing room during L. Torres' testimony concern-
ing Sanchez' card called my attention to any extraordinary
occurrence. To refute Battaglia's claim, the General Coun-
sel offered a timecard 77 which admittedly bears an authen-
tic signature of Sanchez, together with a W-4 form 78 con-
74 Despite the fact Arroyo. L. Torres. and Teevan were discharged before
the effective date of the Union's demand letter, they are properly included
in the unit for the purpose of determining its size and also the calculation of
the Union's majority in view of my findings that they were discriminatonly
discharged. Pacific Tile and Porcelain Company, 137 NLRB 1358, 1365-66
(1962): Siouxr City Brewing Company. 85 NLRB 1164, 1166 (1949).
7' Don the Beachcomber. 163 NLRB 275. fn. 2 (1967). and cases cited
therein.
76 See Philamon Laboratories, Inc.. 131 NLRB 80, 87 (1961), enfd. 298
F.2d 176 (C.A. 2. 1962).
77 G.C. Exh. 22.
7' GC. Exh. 23,
310
WAYNE TROPHY CORP.
taining his signature. I have carefully studied the various
admitted samples of Sanchez' signature and compared
them carefully with the signature on his authorization card
(G.C. Exh. 10) and conclude no handwriting expert is re-
quired to determine there are numerous positive resem-
blances among the three signatures.7 Accordingly, despite
Battaglia's protestations to the contrary, I find Sanchez'
signature appears on his authorization card and reaffirm its
admissibility in evidence. It will be counted in computing
the Union's majority. Not satisfied with this attack on the
authenticity of Sanchez' card, Battaglia further testified he
overheard a conversation between Lugo and L. Torres dur-
ing a recess in which the two of them were allegedly dis-
cussing which of them signed Sanchez' card. There was no
evidence that Battaglia reported this conversation to Re-
spondent's representative, and both Lugo and L. Torres
specifically testified that no such conversation occurred.
Because I am satisfied with the authenticity of Sanchez'
card and because I have generally credited Lugo and L.
Torres over Battaglia, I place no reliance whatever upon
Battaglia's claim in this regard and consider his testimony
concerning the conversation pure fiction.80
In summary, I have found that, on the date the Union's
demand became effective (September 14), the Union pos-
sessed a majority of six cards (Arroyo, Redd, Sanchez, Tee-
van, Tejeda, and L. Torres) evidencing employee support
in a unit consisting of eight employees (Smith being ex-
cluded). Thus, I find that the Union did represent a majori-
ty of the employees in the appropriate unit as alleged in the
complaint.
4. The refusal to bargain
The General Counsel contends that the commission of
extensive unfair labor practices by Respondent at a time
when the Union enjoyed majority representative status
constitutes a refusal to bargain. Respondent, in its brief.
does not respond to this theory but, instead, argues no
8(a)(5) violation can be found herein because Respondent
cannot be charged with knowledge of union correspon-
dence which it did not accept.
Inasmuch as I have already found the existence of a
valid demand for recognition in subsection 2, above, I con-
clude the Respondent's posthearing argument lacks merit.
The unfair labor practices found herein were pervasive
in that virtually every employee in the unit was the subject
of interrogation by Battaglia and Acevedo. Additionally,
the threats of discharge and impressions of surveillance
touched almost every employee. This activity was then fol-
"
7 This procedure is permissible. See Aero Corporation. 149 NLRB 1283,
1287-88 (1964).
'o For Battaglia's efforts to discredit Sanchez' card in this manner ,lone.
I would be justified in disqualifying Battaglia as a trustworthy witness I
view his activities in this connection as exhibiting a callous disregard for the
truth and disrespect for the administrative process from which the instant
hearing evolved.
8' Even if Acevedo and Teevan were excluded, the unit would consist of
six employees, and the Union's majority would consist of five (Arroo.
Redd, Sanchez. Tejeda, and L. Torres). and, if Sanchez' card had been
disqualified, the majority would be four cards. Thus, the Union had majori
ty support viewing this issue from every possible basis for its computation
lowed by a rapid succession of terminations of the most
active union advocate, those suspected of being associated
with him, and others sympathetic toward the Union. As I
have found above that the General Counsel has proved all
elements of an 8(a)(5) violation, I find, in the circumstanc-
es herein, Respondent violated Section 8(a)(5) and (1) by
failing to recognize and bargain with the Union and, in-
stead, engaged in a course of conduct to undermine and
destroy the Union's majority status.82
I lV tHE EFFti C OF THE LNFAIR LABOR PRACTI(CES LPON
COMMFRRC
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's opera-
tions described in section 1, above. have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Awilda Arroyo, Richard Redd, Charles Teevan,
Julio Tejeda, and Luis Torres in violation of Section 8(aX3)
and (I) of the Act, the recommended Order will provide
that Respondent offer them immediate and full reinstate-
ment to their former jobs or, if such positions no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or any other rights and privileges
previously enjoyed; and to make them whole for any loss
of earning they may have suffered as a result of the dis-
crimination against them by payment of a sum equal to
that which they normally would have earned, absent the
discrimination, from the date of the discrimination to the
date of Respondent's offer of reinstatement, with backpay
and interest computed in accordance with the Board's es-
tablished standards contained in F. /. Woolworth Compa-
nv, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co..,
138 NLRB 716 (1962).83
It having been found that Respondent interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act by having interrogated them, created
impressions of surveillance, and threatened them with eco-
nomic reprisals, the recommended Order will require the
Respondent to cease and desist from such activity.
The General Counsel contends that the unfair labor
practices herein require a bargaining order under the prin-
ciples laid down in the Gissel case,8 and that the effective
s: ? I. R H v (;s tv Placking ( .o Inc 395 t S 575 11969)
X .Although I hase Indicated hereinahboe that certain of these discrimina-
tees had been returned to work. those issues were not fulls litigated before
me In these circumstances. it is unclear whether each had received a bona
fide offer of reinstatement Thus. if a dispute exilsts as to the nature of those
offers, it can he resolved in the compliance stage of these proee. dings.
" See fn 82, mpra
311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of such an order be established according to the ratio-
nale of Trading Port, Inc.85 In Gissel, the Supreme Court
sustained the Board's authority to issue a remedial bargain-
ing order in cases where unfair labor practices which have
been committed are such as to make a fair election an
unlikely possibility. The Court defined two situations
where entry of such an order would be appropriate. The
first is in those exceptional cases which are marked by
"outrageous" and "pervasive" unfair labor practices;
and the second is in "less extraordinary cases marked by
less pervasive practices which nonetheless still have the
tendency to undermine majority strength and impede the
election processes." 87 On the other hand, the Court posed
a third type of situation where a bargaining order would
not be warranted; namely, where "minor or less extensive
unfair labor practices" would have a "minimal impact on
the election machinery." 88
The timing and combination of Respondent's activities I
have found unlawful herein persuade me that, as soon as
the employees herein demonstrated overtly their interest in
unionization, Respondent embarked in a studied and inte-
grated program to erode and frustrate the employees' activ-
ity. The very same afternoon after Lugo was observed at
Respondent's premises strenuous efforts began to de-
termine his identity and the employee's sentiments toward
unionization. The very next day L. Torres, the card solici-
tor, was discharged and the other terminations followed
shortly thereafter. I conceive of no other activity by an
employer which is more outrageous and pervasive than
such actions taken against employees during the height of
their exercise of their rights established in Section 7 of the
Act. Further, there is evidence herein that Respondent
sought to totally impede the election process. This is dem-
onstrated by the refusal of the certified mail recognition
request at a time when Respondent had been aware of the
employees' union activities. Thus, I find it literally inesca-
pable that Respondent's unfair labor practices meet both
postulates of the Gissel doctrine which declares that tradi-
tional Board remedies would not sufficiently rectify the
detrimental effect upon the employees' rights. Accordingly,
having found that Respondent has violated Section 8(a)(5)
and (I) of the Act by refusing to recognize and bargain
collectively with the Union, the recommended Order will
require Respondent to recognize and bargain collectively
with Local 404, United Electrical, Radio and Machine
Workers of America (UE), upon request, concerning wag-
es, hours, and other terms and conditions of employment
of the employees in the bargaining unit found appropriate
herein.89
Inasmuch as the Union had in its possession a majority
of authorization cards on September 9, the date on which
the first interrogation occurred, I deem it proper that the
recommended Order requiring bargaining be retroactive to
80 219 NLRB 298 (1975)
6 395 U.S. at 613.
87 395 U.S. at 614.
88 395 U.S. at 615.
In view of the gravity of the unfair labor practices herein, I find a
bargaining order is appropriate even if no 8(a)(5) violation existed or "as
alleged. See Sleel-Fab, Inc., 212 NLRB 363. 365 (1974): Thurlner flai lreatl-
ing Corp., 226 NLRB 716 (1976).
that date pursuant to the Board's Trading Port decision,
and I will so recommend. Unless such retroactivity is im-
posed herein, the employees' rights will not have been fully
vindicated and Respondent will have been rewarded for its
unlawful tactics. Absent Respondent's gross misconduct, it
is likely the Union would have acceded to its legitimate
representative position at the time it established its majori-
ty status.9°
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and the
entire record in the case, I make the following:
Conclusions of Law
I. Respondent Wayne Trophy Corp. is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 404, United Electrical, Radio and Machine
Workers of America (UE), is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Charles Teevan and Luis Torres on
September 10, Awilda Arroyo on September 13, Richard
Redd and Julio Tejeda on September 17, and Luis Torres
on December 1 because they were engaged in union activi-
ties, Respondent discriminated against employees in viola-
tion of Section 8(a)(3) and (I) of the Act.
4. By interrogating employees concerning their union
activities and those of other employees, by creating the
impression that their union activities were under surveil-
lance, and by threatening employees with discharge be-
cause they engaged in union activities, on September 9 and
10, Respondent interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act.
5. At all times relevant herein, Susan Acevedo was an
agent of Respondent.
6. Between September 7 and 10, inclusively, Allen Smith
was a supervisor of Respondent within the meaning of Sec-
tion 2(1 1) of the Act.
7. Since September 9, the Union has been the majority
representative for purposes of collective bargaining of all
the employees in the appropriate collective-bargaining unit
herein.
8. The appropriate collective-bargaining unit herein is:
All production and maintenance employees, including
shipping and receiving employees, of Wayne Trophy
Corp. at its II Railroad Avenue, Wayne, New Jersey,
location, but excluding all office clerical employees,
salesmen, professional employees, guards and all sup-
ervisors as defined in the Act.
9. By refusing to recognize and bargain with the Union
on September 14, Respondent failed to bargain collectively
in good faith in violation of Section 8(a)(5) and (1) of the
Act.
"See Bea.evR Ener:,/ . Inr., d h a Peaker Run C(oul (Compav,. Ohio Diw-
ion #1. 228 Nl.RB 93. 94 95 (1977).
312
WAYNE TROPHY CORP.
10. By the unfair labor practices found to have been
committed, Respondent made the conduct of a fair elec-
tion among the employees in the above-described unit an
unlikely possibility, and the imposition of a remedial bar-
gaining order requiring Respondent to recognize and bar-
gain with the Union for those employees is warranted.
Upon the above findings of fact, conclusions of law, the
entire record in the case, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 9'
The Respondent, Wayne Trophy Corp., Wayne, New
Jersey, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment or any
term or condition of employment because they engage in
union or protected concerted activities.
(b) Coercively interrogating employees concerning their
union activities or the union activities of other emploNees.
(c) Creating an impression that the union activities of
employees are under surveillance.
(d) Threatening to discharge employees or taking any
other reprisals against them because they engage in union
or protected concerted activities.
(e) Refusing to recognize and/or refusing to bargain
with Local 404, United Electrical, Radio and Machine
Workers of America (UE), as the exclusive collective-bar-
gaining representative of the employees in the unit de-
scribed above in Conclusion of Law 8.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7 rights
except to the extent that such rights might be affected by a
lawful union-security agreement in accord with Section
8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer immediate and full reinstatement, if it has not
already done so in a bona fide manner, to Awilda Arroyo,
Richard Redd, Charles Teevan, Julio Tejeda, and Luis
Torres, to their former jobs or, if such positions no longer
exist, to substantially equivalent jobs. without prejudice to
their seniority or an)' other rights and privileges previously
enjoyed; and make them whole for any loss of pay or other
benefits suffered by reason of the discrimination against
them in the manner described above in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Recognize and bargain collectively in good faith,
upon request, with Local 404. United Electrical, Radio and
Machine Workers of America (UE), as the exclusive collec-
tive-bargaining agent of the employees in the appropriate
unit identified above in Conclusion of Law 8 and, if an
agreement is reached, reduce such agreement to writing, if
requested, and sign in excution thereof. The bargaining
prescribed in this Order shall be conducted retroactive to
September 9.
(d) Post at its location at II Railroad Avenue, Wayne.
New Jersey, copies of the attached notice marked "Appen-
dix." 92 Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that the notices are not altered, de-
faced, or covered by any other material.93
(e) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
~ In the event no exceptions are filed as provided by Sec. 102.46 of the
Btl.lrd's Rules and Regulations, the findings, conclusions. and recom-
mended Order herein shall, as provided in Sec. 102.48 of the Rules and
Regulations. be adopted by the Board and become its findings, conclusions.
and Order. and all objections thereto shall be deemed waived for all pur-
poses.
.2 In the event that this Order is enforced by a Judgment of the United
Stales (Court of Appeals. the words in the notice reading "Posted by Order
of the Natiinal L abor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National L abor Relations Board."
B Because the majorit> of unit employees are Spanish-speaking, it is in-
tended that Ihe notice marked "Appendix" be translated into Spanish by an
appropriate designee of the Regional Director, and that Respondent post
hboth the English and Spanish language versions to the attention of its em-
ple! cc
APPENDIX
NOTIcE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present evidence, it has been decided that we violated the
law. We have been ordered to take certain steps to correct
our violations and have been ordered to post this notice.
We intend to abide by the order and do the following:
First, we notify you that the National Labor Relations
Act, as amended, gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To engage in collective bargaining through a rep-
resentative of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all these things.
WE: it .L NOT question you about your activities for,
or interests in, a union, nor will we ask you whether
you are aware of the union activities of other employ-
ees or ask you to report them to us.
WF WILL NOI threaten to discharge you if you sign a
union card or engage in any other union activities.
WE WILL NOT give you the impression that we are
313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawfully watching your union activities.
WE WILl. NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed under Section 7 of the Act.
WE WILL offer Awilda Arroyo, Richard Redd,
Charles Teevan, Julio Tejeda, and Luis Torres imme-
diate and full reinstatement to their former jobs with
us or, if those jobs no longer exist, to substantially
equivalent jobs, without loss of seniority or other
rights and privileges previously enjoyed; and WE WLI.
pay to each of them all moneys lost as a result of our
discrimination against them.
WE WILL. upon request, recognize and bargain col-
lectively in good faith with Local 404, United Electri-
cal, Radio and Machine Workers of America (UE), as
the exclusive collective-bargaining agent for your wag-
es, hours, terms and conditions of employment, and
all other matters appropriate for collective bargaining;
and, if an agreement is reached, WE WILL put it in writ-
ing, if requested, and sign that written document. The
appropriate unit for collective bargaining is:
All production and maintenance employees, includ-
ing shipping and receiving employees, at our 11
Railroad Avenue, Wayne, New Jersey, location, but
excluding all office clerical employees, salesmen,
professional employees, guards and all supervisors
as defined in the National Labor Relations Act, as
amended.
The collective bargaining which we agree to undertake
will be effective as of September 9, 1976, because of
the seriousness of our violations.
WAYNE TROPHY CORP.
314