Western Sample Book and Printing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1974

209 N.L.R.B. 384 (N.L.R.B. 1974)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Sample Book and Printing Co., Inc. and
United Paperworkers International Union,
AFL-CIO and CLC. Case 21-CA-11449
March 6, 1974
DECISION AND ORDER
By MEMBERS FANNING, KEI'.NEDY, AND
PENELLO
On September 24, 1973, Administrative Law Judge
David E. Davis issued the attached Decision in this
proceeding. Thereafter, Respondent and Counsel for
the General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order only to the
extent consistent herewith.
The complaint alleged that Respondent violated
Section 8(a)(1) of the Act by engaging in surveillance
of its employees' union activities; by interrogating its
employees concerning their union activities; by
instituting and enforcing an unlawful no-solicitation
rule; by directing its supervisors to engage in alleged
interrogations, surveillance, and threats; by promis-
ing and providing its employees with a Christmas
party; by discharging Supervisors Campos, Miraula,
and Stogsdill because of their refusal to commit
unfair labor practices in violation of the Act; and
violated Section 8(a)(3) and (1) of the Act by
discharging employees Olmedo and Zuniga because
they engaged in protected activities.
1. We agree with the Administrative Law Judge's
findings that Respondent did not violate Section
8(a)(1) of the Act by interrogating its employees; by
directing its supervisors to engage in illegal acts; by
promising and providing its employees with a
Christmas party; by discharging Supervisors Cam-
pos, Miraula, and Stogsdill; and did not violate
Section 8(a)(3) and (I) of the Act by discharging
employees Olmedo and Zunigo.
2. Contrary to the Administrative Law Judge. for
the reasons discussed below, we do not find that
Respondent violated Section 8(a)(l) of the Act by
unlawfully instituting and enforcing its no-solicita-
tion rule and by engaging in unlawful surveillance of
its employees.
In October 1972, the United Paperworkers Interna-
tional Union, AFL-CIO and CLC, began an organ-
izing campaign in Respondent's plant. On October
26, 1972, the Union held its first organizing meeting;
several department supervisors and Sparacino, a
more senior experienced employee, attended the
meeting. At the meeting the Union stated that all in
attendance were employees, entitled to participate in
the union campaign. Several department supervisors
signed authorization cards.
On October 30, 1972, Respondent held a meeting
for its department supervisors which was also
attended by Sparacino and at least one other
employee.
At its meeting Respondent directed the department
supervisors not to attend union meetings or to take
any action for or against the Union, including
threatening employees or promising them any bene-
fits with regard to the Union without further
instructions.
On December 4, 1972, the Regional Director, in his
Decision and Direction of Election in Case
21-RC-12976, found that department supervisors
were supervisors within the meaning of the Act, but
he also found that Sparacino was included in the
unit. Preceding the formal hearing in that case the
parties also agreed that Sparacino should be included
in the unit.
On December 14, 1972, Sparacino attended a
union meeting.
Respondent for several years has had a rule against
nonbusiness talking on worktime. The written
version read:
Talking: Talking during working hours should
be restricted to business. Not many days pass that
I [General Manager] don't notice some people
talking and wasting time. I can no longer afford
to be lenient, excessive talking, not related to your
job, during working hours is cause for termination
of employment.
Two supervisors, Stogsdill and Baltazar, informed
two employees, Zuniga and Rincon, that union
discussion during working hours constituted a
ground for discharge.
The Administrative Law Judge found that Sparaci-
no was regarded by employees as a supervisor, was
closely allied with management, participated in
209 NLRB No. 64
WESTERN SAMPLE BOOK AND PRINTING CO.
supervisory meetings, and was intimately involved in
effectuating the Respondent's policies.
Based on the above findings the Administrative
Law Judge then found that Sparacino was an agent
of Respondent within the meaning of Section 2(2)
and (11) of the Act and that his attendance at a
union meeting on December 14, 1972, was surveil-
lance violative of Section 8(a)(1) of the Act.
Contrary to the Administrative Law Judge we do
not find Sparacino an agent of Respondent.)
We do not find that Sparacino was closely allied
with management or was intimately involved in
effectuating Respondent's policies, but was at most a
senior experienced employee.
Only one of the General Counsel's witnesses
considered Sparacino a supervisor; two of the
General Counsel's witnesses and Respondent's gen-
eral manager, all three witnesses credited by the
Administrative Law Judge, testified that Sparacino
was a rank-and-file employee. Sparacino attended
the department supervisor meeting on October 30,
1973, because as the only worker in the machine
cutting department he was an unsupervised employ-
ee; at least one other nonsupervised employee also
attended the meeting.
We also do not adopt the Administrative Law
Judge's findings that Respondent violated Section
8(a)(1) by Supervisors Stogsdill and Baltazar inform-
ing two employees that union discussions during
working hours constituted a ground for discharge.
Any evaluation of these remarks, especially regard-
ing the employees' understanding of them, must take
into account the context in which they were made
which this record discloses. Thus, contemporaneous
with the statements to Zuniga and Rincon there
existed a rule against nonbusiness talk, the posted
version of which is quoted above. On its face, this
rule is unambiguously directed against talking on the
job. There is no indication that it or the unwritten
rule which preceded it was ever enforced against talk
during nonworking time, such as lunch periods or
break periods when the employees were away from
their work areas.2 Indeed, Rincon herself testified
regarding the :ule -against talking as that "we are not
supposed to talk anything besides, you know, the
work we are doing."
Against this backdrop, we do not find that the
warnings to Zuniga and Rincon were intended or
understood to ban union talk during nonwork time.
In view of the foregoing we conclude that Respon-
dent did not violate Section 8(a)(1) of the Act by
enforcing its no-solicitation rule or by engaging in
surveillance of its employees. Accordingly, we shall
dismiss the complaint herein in its entirety.
ORDER
385
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and hereby is, dismissed in its entirety.
I Moreover, even if Sparacino was a supervisor , the Board has
consistently held that an employer is not responsible for the antiunion
conduct of supervisors who are included in the bargaining unit by
stipulation of the parties in the absence of evidence that the employer
encouraged , authorized , or certified the supervisors ' activities or led the
employees to reasonably believe that the supervisors were acting for or on
behalf of management . National Food Stores, Inc, T/A Big Bear Super
Markets, 169 NLRB 94, Hy Plains Dressed Beef Inc, 146 NLRB 1253, and
Montgomery Ward, & Co, Incorporated, 115 NLRB 645.
2 Nor does it appear that such a rule was promulgated for a
discriminatory purpose or enforced discnminatonly.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This case
was tried before me at Los Angeles, California, from May
8 through May 11, 1973, upon the basis of a charge filed by
United Paperworkers International Union, AFL-CIO and
CLC, herein called the Union, against Western Sample
Book and Printing Company, Inc., herein called Respon-
dent or Company, on December 18, 1972,1 amended on
February 5, 1973,2 and a complaint issued on February 8,
1973, in behalf of the General Counsel by the Regional
Director for Region 21 of the National Labor Relations
Board, herein called the Board. The complaint alleged in
substance that on or about October 26, 1972, and on or
about December 14, 1972, Respondent engaged in surveil-
lance of its employees' union activity; that on or about
November 2, 1972, Respondent interrogated its employees
concerning their union activity; that on or about Novem-
ber 3, 1972, Respondent instituted and enforced in its plant
an unlawful, broad rule which forbade employees to
discuss unions during working hours; that on or about
November 3, 1972, employees were threatened with
discharge if they discussed unions during working hours;
that in or about the week commencing November 12, 1972,
Respondent directed its department supervisors to engage
in surveillance of its employees' union activities, to
interrogate employees concerning their union activities and
to threaten its employees with reprisals for engaging in
union activities; that on December 7, 1972, Respondent
solicited its supervisors to engage in surveillance of its
employees' union activities; that on December 23, 1972,
Respondent promised and provided its employees with a
Christmas party; that on or about December 8, 1972,
Respondent discharged supervisors Maria Campos, Jose-
phine Miraula, and Margaret Stogsdill because of their
refusal to commit acts constituting unfair labor practices in
violation of the Act; and that on or about December 15,
1972, Respondent discharged Christina Olmedo and
Inocensia Zuniga because they engaged in union or other
protected activities.
Respondent, on February 15, 1973, filed its answer
i Served on December 12, 1972
2 Served on February 26, 1972.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitting certain allegations of the complaint, but denied
that it had engaged in any unfair labor practices within the
meaning of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
make the following:
FINDINGS
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I find
that Respondent is engaged in the fabrication of textile
sample books at its plant located in Los Angeles,
California; that it sells and ships goods and products
valued in excess of $50,000 to customers located within the
State of California, each of whom in turn annually sells
and ships products valued in excess of $50,000 to
customers located outside the State of California; that
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. I further find that it would
effectuate the purposes of the Act to assert jurisdiction
herein.
Il. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer admitted and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Findings
It is agreed and I find that the following persons held the
listed positions in Respondent's plant:
Stuart Klass President
John Perry Vice President
Douglas H. Skonord General Manager
Andrew Forbis Labor Consultant
In addition it appears that Ben Sparacino was regarded by
employees as a supervisor. I find, based upon the evidence
adduced at the hearing that Sparacino was closely allied
with management and participated in supervisory meet-
ings. Under these circumstances, it is concluded that
Sparacino was intimately involved in effectuating the
Employer's policies. Indeed, at a supervisors' meeting held
on October 30, when Forbis asked how many supervisors
had authority to hire and fire, Sparacino was one of the
two present who raised his hand. Accordingly, I find that
Sparacino should be regarded, for the purposes of this
proceeding, as an agent of Respondent within the meaning
of Section 2(2) and (11) of the Act.3
3 Retail Clerks International Association (Agents and Organizers Assn) 366
F.2d 642 (C.A D C, 1966)
4 The Regional Director in his decision and direction of election in Case
21-RC-12976 involving Respondent issued on December 4, 1972, ruled that
department supervisors were supervisors within the meaning of the Act
There is no dispute in this case concerning the supervisory status of
B. The Discharge of Miraula, Slogsdill, and
Campos
According to the undisputed evidence, the Union some
time in October commenced its attempt to organize
Respondent's employees by the distribution of literature
outside Respondent's plant. On October 26, the Union
held its first meeting for Respondent's employees at
Hallenbeck Park, a park near Respondent's plant. This
meeting was attended by supervisors Miraula, Bobby
Belcher, Eddie Mora, Erlinda Ochoa, and Sparacino. In
total, there were about 25 employees present at this
meeting which was presided over by Daniel Rego,
International representative of the Union. Rego distributed
authorization cards at the meeting, openly solicited the
department supervisors, and encouraged the supervisors to
participate in union activity. He stated that he did not
believe they were supervisors with the meaning of the Act
as they lacked the statutory authonty.4 The evidence shows
that most of the department supervisors signed union
authorization cards about this time.
On the morning of October 30, all supervisors5 were
summoned into the executive offices of Respondent and, in
the presence of Klass, Perry, and Skonord, were addressed
by Forbis. They were told by Forbis that he had learned
some of the supervisors had attended a union meeting. He
informed the gathering that as supervisors they were not to
attend union meetings and any future attendance could
result in their discharge. Forbis also told the supervisors
that they could not threaten or promise employees any
benefits with regard to the Union and they were to take no
action for or against the Union without further instruc-
tions.
Following the above meeting with Forbis, Skonord had
several individual meetings with each of the department
supervisors "to determine their attitude toward the
Company and the Union." Among the first of the
supervisors so interviewed was Miraula. About a week
after Forbis addressed the supervisors, Miraula was
summoned into Skonord's office in the presence of Perry,
Klass, and Skonord. Asked what she knew about union
meetings, Miraula told the executives present that she had
gone to the first union meeting and none thereafter
because Forbis had told them that supervisors were not to
participate in union affairs. According to Miraula's
credited testimony, Perry stated to her that a competitor
company, when threatened with union organization, had
let its employees go and hired new employees, that he did
not want a union in the plant, and that he would do the
same thing as the competitor if a union did come in .6
Miraula further testified that she was told to listen and
report what she could discover from the girls whom she
supervised as to what was going on about the Union, and
to try to discourage them from going union.? Miraula was
again called into the office about 2 weeks later with
Skonord alone present. Skonord asked her what occurred
department supervisors
5 Sparacino was included I credit Miraula , Stogsdill, and Campos in this
regard
6 Perry's denial of these statements is not credited.
7 This evidence was adduced by leading questions . However, I credit
Miraula in this regard as Skonord 's testimony is supportive.
WESTERN SAMPLE BOOK AND PRINTING CO.
at the union meetings and if she knew any more about
them. Miraula repeated that she had attended only one
union meeting and did not participate any longer. Skonord
said that he had heard Miraula was the chief union
protaganist and that a union meeting had been held in her
house. She said it was not true. Called again into the office
about December 1, she had a conversation with Yacullas
which was a repetition of the interview with Skonord about
a week earlier. Shortly thereafter, she was again questioned
by Skonord in his office9 about her knowledge of union
affairs. Miraula reiterated that all she had done was attend
one union meeting. Thereafter, on December 7, Klass
questioned Miraula while she was working at a machine as
to what she knew about the Umon saying he had a nervous
condition and didn't wish to become sick. He also stated
that he did not wish to discharge anyone before Christmas.
Miraula again repeated her statement that she knew
nothing, and that she had but gone to the one meeting. The
next day she was discharged.
On the day of the discharge70 department supervisors
Margaret Stogsdill. Maria Campos, and Miraula were
called into Skonord's office in the presence of Klass and
Perry at the close of the day. Skonord told the three
department supervisors that their vacation and paychecks
were ready and that they had a choice of resigning or being
discharged. Each of the department supervisors was then
interviewed separately. Because of her seniority, Miraula
was the first to he interviewed. Skonord told her that he
had no reason to discharge her except that she was a bad
influence on the employees.
Stogsdill testified that she had been employed by
Respondent since 1958; that she had not attended any
union meetings; that Supervisor Mora had given her a
union authorization card on October 27 which she
completed and returned to Supervisor Belcher; that she
attended the Forbis meeting; that two days later she had a
discussion with Skonord at her request in which she told
Skonord that she had none of the supervisory functions
that Forbis outlined; that Skonord about that time gave all
department supervisors a paper which told them what they
could and could not do; that about a week later Skonord
called her into an office and asked her if she had been to
the union meeting in the park; that she told Skonord that
she had not been there; that Skonord inquired if another
employee, her sister-in-law had gone to the meeting; that
she replied she did not know; that Skonord then asked if
she knew which of the other employees had gone to the
meeting; that she again replied in the negative and added
that no one was talking to her about the Union as the rank-
and-file employees thought that the department supervi-
sors when called into the Forbis' meeting had been given a
raise so that they would be against the Union; Skonord
inquired whether Stogsdill had any idea as to what the
employees wanted from the Union; Stogsdill replied that
they probably wanted more money as many of them had
complained that they had not received a raise for years;
Skonord then advised Stogsdill that she should be with the
Company, to tell the employees the Umon would not be
8 Respondent' s trial counsel.
9 Klass and Perry were present.
10 Friday, December 8, the regular payday was Wednesday
387
good for them and to forget about it, that in the future
Skonord would try to get them raises as at the present time
they were "frozen on account of the Union."
Stogsdill further testified that later she was called in the
office on several occasions. On one occasion, Perry was
present and that at each of the meetings she was asked for
information with regard to the identity of employees who
were attending union meetings and where the meetings
were being held. When she said that she didn't know, Perry
and Skonord expressed surprise. She was repeatedly
admonished to be on the Company's side and to report
anything she discovered concerning the Union. Stogsdill
listened to these admonishments but did not express any
agreement or disagreement as no direct question was
asked. Stogsdill recalled a meeting with Yaculla during
which she was asked about the union meetings and where
they were being held. When she said that she did not know.
Yaculla expressed surprise. She recalled that at this
meeting, Yaculla showed her a document which he said
was a decision by the Board in which department
supervisors were found to be supervisors and therefore
would be unable to vote in an election.
With regard to her discharge, Stogsdill testified that she
was summoned to appear before Skonord, Klass, and Perry
together with Miraula and Campos; that Skonord an-
nounced that he had their checks and that they had to
make a decision immediately whether they would resign
and be given a letter with a good recommendation or
whether they were to be dismissed; that it was translated
by Stogsdill to Campos in Spanish; that Stogsdill asked
why they were being dismissed and Skonord replied, "You
are all good workers. You are doing well, but you are not
doing enough for the Company." Stogsdill then asked if
she could have her husband hear this and Skonord agreed
saying she would talk to each one individually, taking
Miraula first. Thereupon Stogsdill left to fetch her
husband. When she returned both Miraula and Campos
were, gone. Stogsdill asked Skonord to repeat what he had
previously told her and he did. Mr. Stogsdill then said that
he did not understand. Skonord then said that they had
called Mrs. Stogsdill in several times and had told her what
they wanted her to do, but she had failed to carry out the
instructions. Mr. Stogsdill credibly testified that after a
short interchange with Skonord, he said, "I told her not to
be a fink." Skonord replied, "Well, sometimes we want
them to be finks."
Maria Campos, called as a witness by the General
Counsel, testified" that she was employed by Respondent
since 1968 until the date of her discharge, December 8;
that she was the supervisor of the swatching department;
that she attended the first union meeting at Hallenbeck
Park; that she was present at the Forbis meeting; that
Forbis explained to them why they were considered
supervisors, enumerating their duties; that when Forbis
asked how many had the right to hire and fire, the only two
present who raised their hands were Louis Ortega and Ben
Sparacino; that Forbis told them that, as supervisors, they
could not belong to a union; that they could not attend
11 Campos testified through an interpreter. While she displayed a fair
understanding of English, she preferred to testify through an interpreter.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meetings; that some of them had gone to a union
meeting and if they continued, the Company had a right to
fire them. Thereafter Campos had three or four meetings
with Skonord; that the first meeting with Skonord was on
October 31 and was at her request; that the next meeting
was on November 13 about 3:30 p.m.; that Skonord at this
meeting read a warning letter to her, showed it to her and
asked her to sign it; that she signed it and asked what he
meant about overtime; that Skonord said that she should
tell the girls not to come to her table when she was working
overtime; that when she questioned the reference to
arguments with Baltazar in the warning notice, Skonord
replied that it referred to the notes she gave him on
October 31; that in the notes there was a reference to
arguments between her and Baltazar; that he informed her
that Baltazar had authority to make decisions and she
should not forget it; that he then asked her if she had
enough work in her department; that she expressed a fear
that there might be some layoffs; that Skonord said that he
expected a lot of work from new customers; that one
customer in particular was quite happy with the work he
received from the swatching department; that Skonord
then asked her if she knew anything about the Union; that
she replied that she did not; that she had gone to the first
union meeting and that all of the girls in her department
had likewise been there; that Skonord questioned her
whether she told the employees in her department the
reasons for her failure to attend union meetings; that she
replied that she had told the girls that if she went to the
union meetings she would be fired; that Skonord was upset
by this and said she should not have told that to the girls;
that Skonord inquired where the meetings were held and
whether the meetings were held in someone's home or in a
hall; that when she told Skonord that she did not know, he
expressed surprise; that Skonord inquired whether she
asked any of the girls what went on at the meetings, she
replied that when she inquired on one occasion she was
told to come to the meetings if she wanted to know.
On November 16, Campos was collecting money from
employees for a Christmas party; Perry was behind her
when she entered the cutting department and received a
donation from Mora. Shortly thereafter, Campos was
summoned into Skonord's office and asked what she was
doing. She explained that she was collecting for a
Christmas party. Skonord stated that he knew nothing
about it. Campos said that she had told Baltazar about it
and that Baltazar had said that it was much too early.
Skonord then said that it was all right and asked for the
plans for the party. She said that it would be a luncheon
and that she was collecting money to pay for the food
because she planned to have it catered rather than, as in
previous years, when each person brought some food item.
Skonord said that if all the supervisors agreed, the
Company would stage the party and that he would discuss
the matter with Klass. Campos remarked that they had
12 I credit Campos in this regard as I find Campos an extraordinary
witness with ability to recall details of conversations and events. As the
person affected in this meeting , her memory would seem more reliable
especially when consideration is given to the fact that Skonord's three
previous, lengthy interviews with Campos were held without an in terpreter.
Perry's contrary testimony is not credited as I do not regard Perry as a
reliable witness . Hernandez' testimony that she was present and interpreting
never had the Company sponsor the party and asked him
why he wanted to do it. Skonord replied that he wanted to
make all the employees happy. At this point, Skonord
again asked Campos if she knew anything about the
Union. Upon her negative reply, Skonord stated that he
had heard rumors that she was assisting the Union.
Skonord then asked her if she knew the locale of the
meetings of the Union or of any committee. Campos again
denied any knowledge of these matters . Skonord expressed
surprise saying that the girls were her friends and he
believed that one of them would tell her about the
meetings . Upon her assurance that she wasn't being told
anything, Skonord suggested that Campos should select a
girl in whom she had confidence and have her attend the
union meeting, Campos would report to him what this girl
told her about the meeting. Campos said he knew of no
such girl, that what he wanted was a spy and that she could
not ask any of the girls to do that. Skonord also told
Campos that she should tell the girls that better conditions
were coming and that they did not need the Union but that
she was not to tell the girls that this came from Skonord.
Skonord then said that if the employees insisted on the
Union, the same thing that happened 2 years ago at the
American Sample could happen here. When Campos
inquired as to what happened at American Sample 2 years
ago, Skonord said that the Company discharged all the
employees upon the advent of the Union and hired
completely new personnel. Skonord added that he could
hire new employees at $1.65 per hour. Campos replied that
it would be unjust to pay $1.65 per hour to employees with
experience.
About I week later, Campos was again summoned to a
meeting with Klass and Skonord. Again Campos was
questioned by Skonord about her knowledge of the Union
and the identity of any employees in a union committee.
Campos repeated her previous denials of knowledge. Klass
asked her what she thought of the Union and she replied
that she did not know what to think. Asked why she
previously seemed to think the Union was a good thing,
Campos replied that the dues seemed reasonable and it had
a good insurance plan. Klass said this was not true and the
Union people were lying; that the only ones helped by a
union were those who were lazy. On December 8, Campos
was discharged at the same time as Miraula and Stogsdill.
She was not told the reason for her discharge when she
appeared for her individual interview. However, she was
asked by Klass as she was leaving whether she had any
questions. Her reply was, "No, thank you." Campos
testified that she had asked Stogsdill to act as her
interpreter but Stogsdill had gone to fetch her husband,
therefore, she appeared before the executives on this
occasion without an interpreter.12
Skonord, in describing his conversation with department
supervisors, stated that he told them that he would
appreciate any information that would help Respondent's
for Campos at this interview seems contrived and designed to please her
employer. I believe that Skonord was confused and in error on this point
because he testified on this aspect with an air of uncertainty. Moreover, as
Hernandez had served as interpreter for him on numerous occasions with
other employees, he apparently thought that she had been called in at this
time.
WESTERN SAMPLE BOOK AND PRINTING CO.
campaign to dissuade the employees from selecting the
Union; that he exhorted the supervisors to tell him
anything they knew about the Union; that he sincerely
believed that supervisors could and should present the
good aspects of the Company to the employees if and when
they were questioned by employees; that if they found out
something that would be of benefit to Respondent from
conversations in which they engaged in or if they
overheard anything concerning the Union, they were to
inform him ; that to accomplish his purpose he questioned
each of the supervisors as to their opinion of the Union;
that Miraula said she didn' t know , that Stogsdill likewise
said she didn 't know; that Campos hardly told him
anything at all about her feelings , but he gathered that she
was sympathetic to the Union; that he told each of the
supervisors that they were agents of the Company; that as
agents they could not do certain things including asking
any employees about their union activity or whether or not
they belonged to the Union; that if employees came to
them and volunteered information they could transmit that
information to him; that the supervisors were told that he
did not want the Union because he was in a position to do
as much for the employees as anyone ; that what he could
do depended on how well the Company prospered; that he
wanted the supervisors to campaign for the Company and
to feel and believe in what they were doing.
Skonord explained that when he questioned Stogsdill
about her sister-in-law he asked if her sister-in -law went to
a meeting as Stogsdill 's representative . He explained that
when he referred to another company that had discharged
its employees upon the advent of a union , he had added
that he had no intention of following a similar course; 13
that he was shocked when Campos told him that she
revealed to employees that supervisors would be dis-
charged if they attended union meetings ; that he reminded
Campos that Forbis had warned the supervisors that what
had transpired at the supervisor's meeting was confiden-
tial; that he pointed out that telling employees that
supervisors were subject to discharge would arouse
antagonistic feelings and create a hostile atmosphere; that
in his conversations with the supervisors he did not ask
them if they had attended union meetings ; that he merely
invited them to tell him whatever they wished about the
Union; that he never directly asked where or when the
union meetings were held but gave them an opportunity to
tell him ; that with reference to the Christmas party he told
Campos that she should not initiate the party on her own
because management would decide what kind and whether
a party would be held; that Klass approved a party; that he
did tell Campos that the Company was prospering and
intended to expand ; that wages would then be mcreased
but he cautioned her against telling that to employees; that
he did not tell Campos or anyone else that he could fire the
employees and hire new ones at $1 .65 per hour; that
among the chief objectives he sought to accomplish by
interviewing the supervisors was to have them learn of the
employees ' grievances so that the Company could "ad-
dress" itself to them in its campaign against the Union;
that he explained that to Campos and the other supervi-
sors.
389
Skonord's recitation of his aims , policies, and accom-
plishments had the ring of enthusiasm and sincerity. I was
duly impressed by this aspect of his testimony . According-
ly, I extend a high degree of credibility to this testimonial
account of his conversations with Miraula , Stogsdill,
Campos, and other department supervisors with regard to
the information he requested and the limitations he placed
on their methods of securing such information. The
evidence disclosed that Skonord did not employ an
interpreter in his four interviews with Campos . It appears
that because of this, her interviews were quite lengthy,
exceeding 2 hours on at least one occasion . He conceded
that he interviewed Miraula , Stogsdill , and Campos on
more occasions than other supervisors . In addition, I have
credited Miraula , above, with regard to the occasion when
Perry stated to her in Skonord's presence that he did not
want a umon in the plant and that he would do what
another employer did when faced with unionization,
namely , discharge all employees and hire new ones. I also
credit Campos that Skonord during the course of one of
her interviews told her the same thing and added that he
could hire new employees at $1.65 per hour. Such a
statement, I believe , is hardly a subject for misunderstand-
ing. I am convinced , therefore , that Campos truthfully
testified in this regard . However, both of these statements
were made to supervisors and there is no evidence that
these statements were transmitted to employees . Conse-
quently, I make no finding of a violation with regard to
either of these incidents inasmuch as they do not
encompass coercion of employees.
In the light of the foregoing, I find that Miraula,
Stogsdill and Campos were discharged because in Sko-
nord's opinion they were not doing enough for the
Company in its campaign against the Union. Skonord, I
find, regarded their failure to reveal to him substantial
information concerning the Union and the union activities
of the employees whom they supervised as displaying
union sympathy and disloyalty to Respondent . In this
appraisal , it is apparent that Skonord was quite correct.
Nevertheless, I am constrained to conclude that the
discharges of Miraula , Stogsdill , and Campos for the stated
reasons, under current Board law, do not constitute
violations of the Act.
The record shows that Campos alone , of the supervisors
interviewed , testified that Skonord urged upon her a course
of conduct which included violations of the Act. As
indicated above, I do not credit Campos in this regard as I
believe the absence of an interpreter in her interviews with
Skonord caused her to misunderstand the main thrust of
Skonord's discussions with her . Skonord , as the record
shows, often used phraseology that was difficult to follow.
Several witnesses, as appears below , did not understand
much of what he was saying. Nevertheless , I believe
Skonord successfully avoided a direct request to supervi-
sors to engage in any conduct which would be violative of
the Act. It is true that his insistence on information
concerning the Union , his open opposition to union
organization , his references to Respondent 's future and
current benefits , and his admitted calling in Miraula,
Stogsdill , and Campos for repeated interviews in excess of
13 In this regard , I credit Campos' contrary testimony
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other supervisors, may be interpreted as pressure. The
foregoing factors together with the precipitate nature of the
discharges and when added to Skonord's weak attempts to
ascribe some deficiencies in the work of Miraula, Stogsdill,
and Campos, still add up only to a strong suspicion that
Skonord in effect was seeking to enlist the supervisors in an
unlawful attempt to engage in conduct violative of the Act.
Suspicion, however strong, nevertheless, cannot be the
basis of a finding of a violation of the Act.
I have also concluded that Skonord did tell Mr. Stogsdill
that he expected his department supervisors to be "finks"
at times. The term, "fink," is. a common slang expression
for an informer and Skonord readily admitted that he
wished the department supervisors to act as informers in
order to further Respondent's campaign against the Union.
As I view current Board law upheld by the courts, there
has been established a class of employees, meeting the
statutory definition of supervisors, who can be brow
beaten, harassed, threatened, and discharged for failure to
prevent the unionization of the establishment where they
are employed, or, as in the instant case , if the employer
concludes that such supervisors have exerted insufficient
energy in discovering information concerning the union
and thereby failed to assist the employer's antiunion
campaign. Moreover, such supervisors, regardless of their
low status in the hierarchy, cannot form, join, or assist any
union organization without the employer's condonation or
acquiescence. Neither can they engage in any concerted
activities to protect their jobs, income, or status. The
legislative history of the Act shows that Senator Taft made
the following observations:
The bill provides that foremen shall not be considered
employees under the National Labor Relations Act.
They may form unions if they please, or join unions,
but they do not have the protection of the National
Labor Relations Act. They are subject to discharge for
union activity, and they are generally restored to the
basis which they enjoyed before the passage of the
Wagner Act . It is felt very strongly by management
that foremen are part of management; that it is
impossible to manage a plant unless the foremen are
wholly loyal to the management. We tried various in-
between steps, but the general conclusion was that they
must either be a part of management or a part of the
employees. It was proposed that there be separate
foremen's unions not affiliated with the men's unions,
but it was found that that was almost impossible; that
there was always an affiliation of some sort; that
foremen, in order to be successful in a strike, must have
the support of the employees' union.14
C. The Discharge of Olmedo and Zuniga
Inocensia Zuniga, employed by Respondent from 1966
until her discharge on December 15, was one of the more
prominent union advocates. She attended several union
14 Cf Talladega Cotton Factory Inc, 106 NLRB 295, See Southwest Shoe
Exchange Company, 136 NLRB 247, 248, where Board found that
instructions to supervisors to attempt to dissuade employees from
supporting the Union was privileged in the absence of threats of reprisals or
promises of benefits to employees
meetings and signed a union authorization card. In
addition, at least two meetings of the union organizing
committee were held at her home. The evidence leaves no
doubt that management was aware of Zuniga's sympathies
with regard to the Union. Several incidents demonstrate
this knowledge. Shortly after the Forbis meeting , Zuniga
attempted to discuss the Union with Ruth Rincon, a fellow
employee. Rincon said that she understood that employees
were not to discuss the Union during working hours and
called Connie Baltazar, Skonord's assistant, to confirm this
rule. Baltazar stated to them that employees would be fired
if they discussed the Union during working hours and that
Stogsdill, Zuniga's and Rincon's immediate supervisor, was
supposed to have told them that. Rincon in turn testified
that Stogsdill did tell them that they were not supposed to
talk about the Union during working hours. Zuniga
testified that Jonnie Mae Johnson, admitted supervisor,
asked her on one occasion, "off working hours," but at her
work bench, if she favored the Union. Zuniga asked
"Why?" Johnson said she thought the monthly dues were
too high. Zuniga then replied that Johnson was talking to
the wrong person as it was worth $6 per month.
The day after Stogsdill was discharged, December 9, a
Saturday, Stogsdill called Zuniga and informed her that
Skonord was keeping an eye on Nellie Lopez, one of the
older employees; that Zuniga should tell Lopez to work
and move around more to avoid being discharged and that
Lopez' daughter might be discharged because she was
"missing a lot of work." As a result, Zuniga called Lopez
and repeated Stogsdill's warning . The following Tuesday,
Zuniga was called into Skonord's office and was asked if
she knew Nellie Lopez was quitting because she had been
told that he was going to discharge her. Skonord asked
Zuniga if she had told this to Lopez. Zuniga denied that
she called or informed Lopez in this regard, because she
thought Skonord was angry and would discharge her if she
told the truth. Skonord asked the same questions concern-
ing Maria Lopez, the daughter, and Zuniga replied that she
never talked to Maria, only to her mother, Nellie. On
December 14, Zuniga was again called into Skonord's
office. 15 He again asked her if she had called Lopez. Again
Zuniga denied it and commenced crying saying that a lot
of things were happening in the plant. Skonord replied,
according to Zuniga, "We didn't want the Union-you
brought the Union." Zuniga then said, "We need the
Union." At this time, Perry was shouting and Zuniga said,
"Fire me. How come you don't fire me right now?"
Skonord 16 replied that Zuniga was a good worker and he
would not fire her. Again he asked her if she made the
phone call and she denied it. Before she left she remarked
to Skonord that he had fired good workers in the past.
Asked if Skonord had said anything else, Zuniga testified
that Skonord said other things about the Union using
words that she did not understand; that by the time the
interview was concluded it was 4:30 p.m. and Zuniga went
to pick up her purse, she was crying on her way to her car.
She then went to a union meeting in the company
15 Klass and Perry were present on this occasion
16 The transcript does not indicate that Skonord was the speaker.
However, it seems clear that he was the one referred to in Zuniga's
testimony
WESTERN SAMPLE BOOK AND PRINTING CO.
company of Christina Olmeda. When Olmeda saw Zuniga
crying she told Zuniga that she was going to the office and
"tell that man off." After informing Zuniga that she was
going to say that she made the phone call to Lopez,
Olmeda did meet with Skonord on the following day. Later
that day, Zuniga was called again into Skonord's office and
was told that he had found out who had made the
telephone call to Lopez and that he was sorry. Later about
6:30 p.m. that same evening, Skonord called Zuniga on the
telephone and informed her that she was discharged
because he now had proof that it was she who had made
the telephone call to Nellie Lopez.
Christina Olmeda, also discharged on December 15,
attended several union meetings and was a member of the
union organizing committee. On the day before her
discharge, she traveled to the union meeting in the
company of Zuniga. She saw Zuniga crying and apparently
was so emotionally affected that she told Zuniga she would
go into Skonord's office and falsely assume the blame for
the telephone call to Lopez. As a result at 10 a.m. the next
day, Olmeda arranged to go to Skonord's office. She told
Skonord that Zuniga had been crying because he had
accused her of making the phone call to Lopez when it was
she who had made the phone call and not Zuniga. Skonord
said that she could be discharged for that and Olmeda
replied that she did not know it would so upset Lopez.
Skonord then said he never intended to discharge Lopez,
just transfer her to another department because she did not
get along with Stogsdill. In the discussion that followed
Olmeda testified that Skonord said he had good reasons for
the discharges of Stogsdill, Miraula, and Campos; that one
of the reasons he was trying to keep the Union out was that
it wouldn't help the employees; that Skonord said some
other things about the Union that she didn't understand.
Skonord then thanked her for her honesty and sent her
back to work. Later that afternoon he telephoned her at
home and told her he had proof that she had lied about the
telephone call and that she was discharged.
Findings and Conclusions
Although the record shows that Zuniga, particularly, and
Olmeda were quite prominent in the union organizing
drive and that Skonord, prior to their discharge, knew that
they were union adherents, I find that this did not
immunize them against a discharge for cause. When
Skonord received Olmeda's false confession that she was
the person who warned Lopez of her discharge, he did not
discharge her but sent her back to work. It is fair to
conclude, therefore, that Zuniga would not have been
discharged if she had been truthful when she was first
questioned about the telephone call to Lopez. However, as
Zuniga continued to deny her role in relaying Stogsdill's
warning to Lopez and as this conflicted with the informa-
tion that Skonord was receiving, the matter, in Skonord's
view, became quite critical. When Olmeda submitted her
false confession, the incident seemed at rest and Skonord
made his apologies to Zuniga while sending Olmeda back
to work. However, when it was revealed to Skonord by
'T Employees were also given some time off, 1 hour in 1971
is They were given time off equal to that in 1971.
19 Lloyd A Fri' Roofing Company, 123 NLRB 86, The Zeller Corporation,
391
Lopez that Zuniga indeed had been the caller who had
transmitted the information, Skonord, apparently, was
angered and resentful that he had been victimized. He
quickly reacted by discharging Zuniga and Olmeda.
Under these circumstances, I find that Zumga and
Olmeda were discharged for cause and that Respondent
did not violate Section 8(a)(3) and (1) by these discharges.
D. The Christmas Party
The evidence shows that the employees staged a
Christmas party each year at the Respondent's premises.
At the party, management distributed 5-pound hams to
each of the employees. Food and other refreshments,
however, were furnished by the employees.17 In 1972, the
employees planned to secure monetary contributions from
the employees and have food delivered by a caterer.
Customarily, department supervisors participated in the
party and the arrangements. In 1972, Campos apparently
actively participated in the collection of money and the
planning of the party. Skonord learned of the plans from
Campos and suggested that the party for that Christmas
should be sponsored by Respondent in order to make all
the employees happy. To that end, he discussed the matter
with Klass and Perry. As a result, Respondent contributed
$800 for the cost of food and distributed a 3-pound ham.18
Respondent contends that the difference in cost between
the 3-pound ham and 5-pound ham equalled its monetary
contribution and therefore there was no violation of the
Act, citing Fashion Fair Inc., 157 NLRB 1645. As the
evidence shows that the Union was not even mentioned at
the party and the employees did in fact stage the party
themselves, I find that the variations from other years in
the manner in which food and refreshments were provided,
do not add up to a violation of Section 8(a)(1) of the Act.19
Accordingly, this allegation is dismissed.
E. Other Allegations of 8(a)(1)
The evidence shows that supervisors Stogsdill and
Baltazar informed employees Zuniga and Rincon that
union discussions during working hours constituted a
ground for discharge. Such a rule is violative of Section
8(a)(1) of the Act unless special circumstances exist to
justify such a rule. The evidence shows no special
circumstances which would serve to justify the institution
of such a broad rule. Accordingly, [ find that Respondent
violated Section 8(a)(I) of the Act by the establishment
and enforcement of a rule against union discussions during
working hours.
As I have found, above, that Sparacino was a manage-
ment representative, his continued attendance at union
meetings, particularly that of December 14,20 constituted
surveillance in violation of Section 8(a)(1) of the Act. The
evidence shows that as long as Sparacino was present at
the union meeting of December 14, employees were
inhibited from discussing union business and that upon his
departure the union business at hand was disposed of.
Accordingly, I find that Respondent engaged in unlawful
115 NLRB 762.
20 1 credit Zuniga's testimony that Sparacino attended this meeting
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surveillance of its employees' union activity in violation of
Section 8(a)(1) of the Act.
I find no violation of the Act in Zuniga's testimonial
account of Johnson's question whether she favored the
Union. Zuniga did not specify when her conversation with
Johnson took place.21 Clearly, early in the campaign,
department supervisors were solicited to participate in
union activities by the employees. It seems that this
particular conversation more than likely took place during
this period. In this posture, I find that the conversation
between Johnson and Zuniga did not constitute unlawful
or coercive interrogation in violation of Section 8(a)(1) of
the Act.
Finally, I do not regard Klass' inquiry directed to
Miraula while she was at her machine some time early in
December as a request for her to engage in illegal activities
to secure information concerning the Union. I view the
incident as a renewed attempt to secure from Miraula
whatever information she had concerning the Union. Such
a query as found above is not violative of the Act. This
allegation is therefore dismissed.
Respondent, in its brief, intimates that a corrective order
need not be issued if some minor violations of the Act are
found. I disagree. The record shows that management
displayed a strong aversion to union organization which
was well advertised in the plant by department supervisors.
Under these circumstances, it seems to me, that manage-
ment must be restrained in their conduct and employees
should be publicly notified of their right to organize
without being inhibited in this activity by illegal rules and
unlawful surveillance.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. On or about November 3, 1972, Respondent unlaw-
fully instituted and enforced a rule against discussion of
the Union during working hours in violation of Section
8(a)(1) of the Act.
4. On or about December 14, 1972, Respondent,
through Sparacino, engaged in unlawful surveillance of its
employees' union activity in violation of Section 8(a)(1) of
the Act.
5. Respondent did not violate the Act by the discharge
of Miraula, Stogsdill, Campos, Olmeda, and Zuniga.
6. All other allegations in the complaint not found
specifically herein to constitute violations of the Act are
hereby dismissed.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act, I
shall recommend that it be required to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
21 1 credit Zuniga's version of the conversation