Wix Corp.

National Labor Relations Board - Board Decisions

Dec 9, 1976

227 N.L.R.B. 165 (N.L.R.B. 1976)

WIX CORP. 165
Wix Corporation and Warehouse, Mail Order and
Retail Employees, Local Union 853, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America. Cases 20-CA-
10639 and 20-RC-12932
December 9, 1976
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Petitioner's Objections 2, 3, 4, and 5 and the Employer's challenge to the
ballot of George Cudiamat , and ordered consolidation of the representation
case with Case 20-CA-10639 for hearing before an Administrative Law
Judge. No exceptions to the Regional Director 's report were filed.' By order
dated February 10, 1976, the Board adopted the Regional Director's
recommendations as contained in her report.
2 The General Counsel and the Respondent have excepted to certain
credibility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis -for reversing
his findings.
APPENDIX
On August 17, 1976, Administrative Law Judge
James S . Jenson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record' and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Wix Corporation,
San Leandro, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice shall be substituted for that of the Administra-
tive Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not found herein.
IT IS FURTHER ORDERED that the challenge to the
ballot of George Cudiamat be sustained, that Objec-
tions 3 ,and 4 be overruled, that Objections 2 and 5 be
sustained, and that the election held on September
17, 1975, be set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
i The election in Case 20-RC-12932 was conducted pursuant to a
Stipulation for Certification Upon Consent Election . The tally was. two for,
and two against, the Petitioner ; there were two challenged ballots, a
sufficient number to affect the results . Thereafter, the Regional Director for
Region 20 issued a Report on Challenges and Objections in which she
recommended that Petitioner's Objections I and 6 be overruled and that the
challenge to the ballot of Kurt Heinberg be sustained . The Regional Director
further ordered that a hearing be held to resolve the issues raised by
227 NLRB No. 31
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice,
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collective through representa-
tives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any such
activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT tell our employees that we will
not allow a union to represent them.
WE WILL NOT threaten to move or close our
warehouse facility if the Union comes in.
WE WILL NOT threaten to discharge employees
because of their union activities.
WE WILL NOT threaten to change our method of
distribution and eliminate a job because of union
activities.
WE WILL NOT create the impression with our
employees that a fellow employee has been
terminated because of his union activities.
WE WILL NOT interrogate our employees regard-
ing their union activities and sympathies or the
union activities and sympathies of their fellow
employees.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
rights guaranteed them by Section 7 of the Act.
WIX CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. These cases
were heard before me in San Francisco, California, on April
1, 1976. The complaint, which was consolidated with a
hearing on challenge and objections to election, was issued
on January 23, 1976, pursuant to a charge filed on
September 18, 1975.1 The complaint alleges that agents of
Respondent made various statements in violation of
Section 8(a)(1) of the Act, and that Respondent discharged
employee George Cudiamat and reduced the number of
work hours of its employees because of their membership in
or activities on behalf of the Union in violation of Section
8(a)(3) of the Act. The objections to the election, which
were also filed on September 18, allege conduct substantial-
ly similar to that alleged to constitute unfair labor practices
in the complaint. Respondent denies that it engaged in the
conduct alleged to be unlawful and objectionable and
contends that Cudiamat was terminated and the number of
work hours of its employees was reduced, for lawful reasons
which had nothing to do with the Union.
All parties were given full opportunity to appear, to
introduce evidence, to examine and cross-examine witness-
es, to argue orally, and to file briefs. Briefs were filed by
Respondent and the General Counsel and have been
carefully considered.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACTS
1. JURISDICTION
Wix Corporation, herein called Respondent, with its
principal office located in Gastonia, North Carolina, and a
warehouse facility located in San Leandro, California, is
engaged in the manufacture of air filters. During the last
calendar year, Respondent purchased goods and supplies
for its North Carolina facility valued in excess of $50,000
directly from suppliers located outside the State of North
Carolina. On these facts it is found that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse, Mail Order and Retail Employees, Local
Union 853, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. A Picture of Respondent's Operations
Respondent is engaged in the manufacture in Gastonia,
North Carolina, of a variety of filters for combustion
engines which are marketed under the brand names "Wix"
and "NAPA." Wix brand filters are sold directly by
Respondent's own sales organization, while NAPA brand
filters are manufactured for members of the National
Automotive Parts Association and are marketed by Gard
Corporation, a wholly owned subsidiary of Respondent.
The four primary warehouses operated by Respondent in
the United States are located in Los Angeles and San
Leandro, California, Dallas, Texas, and Des Moines, Iowa.
The San Leandro warehouse operation is the only one
involved in these proceedings. The National Automotive
Parts Association, herein called NAPA, has from 35 to 40
distribution centers located throughout the United States,
of which 10 are located on the West Coast and I in Hawaii.
With the exception of shipments to the 10 West Coast and
Hawaii distribution centers , prior to August 1975, Respon-
dent shipped the NAPA brand filters from Gastonia
directly to the NAPA distribution centers on pallets
containing cartons of filters about which had been shrunk a
plastic film or covering, herein called "shrink pack." In
contrast, prior to August 1975, the 10 West Coast and
Hawaii distribution centers were supplied from the San
Leandro warehouse. This meant that the cartons of filters
were shipped via "piggyback" from Gastonia to San
Leandro where they were unloaded by hand, stored, and
then later handpacked, labeled, and reshipped in loose
cartons to the I 1 distribution centers where they were again
unloaded and worked by hand.
The evidence shows that in late 1973 Respondent was
considering shipping filters to all of the NAPA distribution
centers directly from Gastonia, with the possible conse-
quence of completely phasing out the San Leandro ware-
house. Consideration was also given to installing a "shrink
packing" facility at San Leandro. The evidence further
shows that, in early 1975, the western NAPA distribution
centers were complaining about the time and money lost
through unloading, counting, and stocking loose cartons,
and asked that Respondent work out some way of shipping
palletized shrink pack shipments to them directly from
Gastonia as it did to the vast majority of the NAPA
distribution centers. Following cost savings studies, Re-
spondent determined that substantial savings in time and
money' could be made, and service improved, by making
palletized shrink pack shipments directly to the West Coast
NAPA distribution centers from Gastoma. Accordingly,
Respondent made arrangements with B and P Motor Lines,
Inc., a contract carrier, to handle shipments of merchandise
from Gastonia to the West Coast and, on March 18,
application for temporary authority to operate as a contract
carrier was made with the Interstate Commerce Commis-
sion . On June 27, Respondent received a copy of the
temporary authority applied for, and was informed that the
carrier was required to await a telegram from the ICC
I All dates hereafter are in 1975 unless otherwise stated
WIX,CORP.
authorizing the commencement ofoperations, which would
probably be sent about July 30. On August 6, Respondent's,
general sales manager advised the NAPA- distribution
centers in Spokane and Seattle, Washington, and Portland,
Oregon, that Respondent -was ready to,commence shipping
"shrink film pallets" of-NAPA filters directly, from Gasto-
nia with the week of August-18,-and that the first shipment,
which would be shipped on August 21, should arrive on-or
about Monday, August 25. Procedures for- placing, -future
orders were also set forth.? On August 13, Herbert Price,
Respondent's vice president` in charge of manufacturing
and director of outside warehousing, wrote Frey that, since
Spokane, Seattle, and Portland would be-served directly
from Gastonia, the, following, week, the, number of cartons
being shipped to the San Leandro warehouse was being
reduced, `-`since- you won't be', needing, quite as much
inventory." The final paragraph of the letter reads:
Max will be, talking with you about reducing the
allowed inventory levels of NAPA items and these-
reduced figures should be fed- to IBM shortly. In the
meantime , we will have you handle this by hand as
shipments leave Gastonia. Our new contract carrier for
the West Coast has greatly shortened direct time and so
far, our experience with him to Dallas and to Des
Moines has shown this will save us a great deal. Because
of shorter direct time, the trailers he is picking up from
Gastonia this week may be arriving simultaneously with
the piggyback trailers that left here last week. jIf this is
true, you may have an awfully busy week during the
week -beginning 8/18 because the trailers will have
bunched to a great extent. Somewhat offsetting this,
however,- will be the reduction of one trailer load which
we have just created today and will be the fact that you
are no longer serving Spokane, Portland, and Seattle.
After next week's extraordinarily busy week, you-should
find that for the week beginning 8/25 and thereafter,
you will be handling 30-40% less NAPA volume-both
in and out, -and you will have to manage your work
force- accordingly. It is necessary that we continue to
keep our cost per, element shipped as low as possible.
`Thus, during the transition period, it was expected that
there would be some overlap in "piggyback" shipments to
the San Leandro warehouse under the old method, and the
direct,shipments by Band P Motor Lines; Inc., resulting in
more than the usual number of trucks to be unloaded
during the week of August'-25.3'ugust `25 3' Price and Frey had
discussed the effect of the change on the San Leandro
warehouse a few days earlier, and Price told Frey that, since
30 to 40 percent of the NAPA,volume would bypass the San
Leandro warehouse, after the-week of-August 25 he would
have to adjust the work force by cutting out overtime,
eliminating all casual labor, and reducing the work force by
one person . Frey testified that he then made the decision to
terminate Cudiamat since he was the least senior 'employ-
2 A copy of the letter was sent to Roy Frey-, manager of the San Leandro
warehouse -
3 It took 10-14 days for a trailer shipped "piggyback" from Gastonia to
reach San Leandro, whereas Respondent expected B and P Motor Lines to
reduce the time to about 4 days. -
4 Company policy on terminations was to compare the ability and
167
ee.4 Inasmuch as the contract carrier was late a day-or two_
in arriving in San Leandro on the first, week's shipment,
Frey obtained authorization from Price to delay ,the
reduction in the work force until the middle,of the following
week, Frey testified, and Cudiamat denied, that he hadttold
Cudiamat the week-before that he was to be terminated at
the end of the week of August 25 and, on August 29, ,that he
wouldn't be terminated until September 3. -
The evidence :makes it -clear that Cudiamat was the least
senior of Respondent's five permanent employees, having
become-permanent on January 13, 1975.-The next senior
employee, Cutshall, had become permanent approximately
11-1/2-.months earlier. The evidence also shows that two,
casual laborers were eliminated the week ending August, 3,
and David Frey, the warehouse manager's-son, who worked
as a_casual laborer through the summer months of 1975,
worked only 12 hours the week ending September 7, and
did, not work again, until he, returned • the week - ending-
October 12,' after which - he performed janitorial, work
formerly performed by a janitorial service.5 Testimony and
exhibits show- a 91-percent reduction in NAPA, shipments
from San Leandro following institution of direct shipments
from Gastonia to the West • Coast NAPA distribution
centers, which caused a 62-percent decrease in the overall
volume of cartons shipped,from San Leandro. The evidence
also shows a reduction of 45 percent in the average weekly
hours - expended by San Leandro employees . to move
merchandise -after -the change to shipping -directly from
Gastonia to the NAPA distribution centers., -
B. Advent _of the Union-
On the evening, of July 23, employees'Richard Watkins,
John Ortiz, and George Cudiamat.went to the union office
and obtained authorization cards.. The following evening,,
the same three men met at Watkins' home, -along with-one
of Respondent's casual employees, and signed the cards. At
that time Respondent had five permanent employees,
Watkins, Ortiz, Cudiamat, Robert Cutshall,..and, Foreman
Joe Drinkard, and three casual employees, Kurt Humberg,6
Anthony Miller, and David Frey, the son of the warehouse
manager. The authorization cards .were apparently turned
over to the Union, which, on July 28, filed a, representation
petition with the Board in Case 20-RC-12932. The parties
stipulated, that ,a, copy of ^ the petition was received by
Warehouse , Manager , Frey on or. about July '29. Ortiz
testified that he picked up themail_the morning the. petition
was received and, as was -customary, was sittingin Frey's
office while the latter went through the mail. David Frey
was also present. Ortiz testified that, when Frey opened the
letter containing the petition, Frey stated;- without looking
up from the letter, -"What's this, the-men'trying to get the
Union in here again?" Ortiz testified that although he didn't-
know whether' Frey was talking to himself or directing a
question to him, responded, "Yes, we went down the other
day and signed pledge cards for the Union." There is no
performance of all employees and, if 'all things were -equal, to' follow
seniority. Frey testified that he checked the amount of cartons each
warehouseman pulled daily, and they averaged about the same
5 The General Counsel made, no claim that Cudiamat should have been
given the jamtorial work in place of David Frey.
6 The challenge to Humberg's ballot was sustained by the Board
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence in the record that Frey responded or reacted to the
remark . Frey's statement appears to me to have been a
gratuitous remark, as opposed to a question directed to
employee Ortiz. As the complaint fails to allege that Frey's
comment constituted an unlawful interrogation, I make no
unfair labor practice finding with respect thereto.?
Paragraph VI(a) of the complaint alleges that, on or
about August 4, Frey threatened an employee that Respon-
dent would not allow a union to represent the San Leandro
warehouse employees, and that Respondent might close
that facility if the Union were selected as the employees'
collective-bargaining representative. Paragraph VI(d) of the
complaint and Objection 2 allege that Frey threatened to
close and /or move the San Leandro warehouse operation if
the Union won an election . In support of these allegations
Watkins testified that, around the end of July, he had a
conversation with Warehouse Manager Frey in the latter's
office and that Frey stated "that the Company would not
stand for a union being in there, and they might be tempted
to, like move the warehouse out of state, or possibly turn it
- there was some conversation also about possibly turning
to a public warehouse." Ortiz' testimony, corroborating
Watkins, was that, around the end of July, he and Watkins
were standing outside Frey's office discussing the Union
and Frey came out and "he asked us what we thought we
would gain by going union." Ortiz responded by asking
Frey if he wouldn't do the same thing if he got better
benefits, and Frey replied that he would, or else get a job
with a company "already union." Cudiamat testified that,
around the end of July, Frey approached him in the
warehouse and made the statement that, if the Union came
in, the warehouse would move. I credit the more specific
testimony of Watkins, Ortiz, and Cudiamat over Frey's
denial that he made the statements attributed to him in
paragraphs VI(a) and (d) of the complaint and Objection 2.
In this regard, Frey failed to testify with respect to any of
the conversations referred to by the employees.
Paragraph VI(b) alleges that, on or about August 5, Frey
threatened employees with discharge because of their union
activities. Watkins, whose testimony was corroborated by
Cudiamat, testified that about that date he, Cudiamat,
Ortiz, Cutshall, Drinkard, and David Frey were standing in
the "break area," when Frey came out and announced that
he had received notice from the Company that they were
improving the medical plan, but that he didn't have a
"complete rundown on the program." Several questions
were asked regarding the coverage, "then I believe the
conversation got over to it being comparable to the Union
and something about if we didn't . . . knock off the union
talk out there, maybe one of us would have to go." Again, I
credit the specific testimony of Watkins and Cudiamat over
Frey's general denial that he threatened an employee that
he would be discharged because of his union activities.
Paragraph VI(c) alleges that, on or about August 28, Frey
threatened employees that Respondent would change its
method of distribution of products and thereby eliminate
unit work because of the union activities engaged in by its
employees. Ortiz testified that, about August 28, Frey told
him that Respondent was going to start shipping shrink
packs directly from the factory in Gastonia to Spokane,
Seattle, and Portland, which would cut down on the work
"and then he warned me about my absenteeism and told
me that they were going to have to get rid of a man and he
didn't want it to be me." Cudiamat testified that, about
August 22, he, Watkins, and Drinkard were approached by
Frey, who told them the Respondent was "going to start
going shrink pack and Richard [Watkins] asked him why
... and he goes, `It's because of the union activities going
on around here.' " The gist of Watkins' testimony was that
after telling Drinkard, Cudiamat, and him that changing to
shrink pack would reduce the workload, which might
permit a reduction in the output, the subject of the Union
was brought up, and Frey stated that, if the union talk
persisted in the warehouse, this might determine who in the
crew would be "cut back." Again, Frey denied generally
that he ever told employees the Company would change its
method of distribution and thereby eliminate unit work
because of the union activities of its employees. I am
convinced from the testimony of Cudiamat and Watkins,
whom I credit, that, regardless of the precise words used by
Frey, his statement amounted to a veiled threat which was
obviously intended to discourage union activity, and I so
find.
Paragraph VI(e) alleges that, on or about September 3,
Frey told an employee that the available hours were being
reduced because of employee union activities. Paragraph
VII(b) alleges the reduction in the number of work hours on
an unknown date in August because of the Union, and
Objection Number 3 alleges a change in employee working
conditions about August 8 in order to discourage employee
union activities. True motivation always requires consider-
ation of all the relevant factors. Those factors which led up
to the change in Respondent's method of shipping its
products to customers has been set forth heretofore, and
convince me that the change was not unlawfully motivated
because of the union activities of its employees. Union
activity among the employees did not commence until late
July, whereas concrete steps to implement the change to
direct shrink pack shipments from Gastonia had been taken
months before.8 As pointed out before, the West Coast
customers were demanding direct factory shrink pack
shipments which would reduce their expenses, and Respon-
dent had determined the new method of delivery would
result in "tremendous cost savings" to itself and better
service to its customers. The effect of the change was as
anticipated. A 91-percent reduction in NAPA shipments
from San Leandro, and an overall decrease of 62 percent in
the volume of both Wix and NAPA cartons shipped from
San Leandro resulted. As a consequence, there has been a
45-percent reduction in the average weekly hours worked
by the San Leandro warehouse employees. The labor
records show the elimination of all casual labor from the
week ending September 7 until the week ending October 12,
when David Frey commenced doing janitorial work. In
addition, the regular warehouse employee complement was
reduced an additional man when Ortiz was on sick leave
7 Par. VI(g) of the complaint and Objection Number 5 allege that Price 8 See application for temporary authority, dated March 18 [Resp Exh 51,
interrogated employees regarding the Union on or about September 15 That and correspondence of March 28 , April 3 and 21, and June 25 and 27 [Resp
allegation will be dealt with hereafter Exh 6 , 7, 8, 9, and 101, all of which predate organizational activity
WIX CORP. 169
from October 12 until the second week of December, and
the labor records show that he was not replaced during that
time by a casual employee. In light of the foregoing, I find
that the General Counsel has failed to prove by a prepon-
derance of the evidence that the Respondent violated the
Act as alleged in paragraph VII(b) of the complaint, or
engaged in the conduct alleged in Objection 3. _
Resolution of paragraphs VI(e) and VII(a) and Objection
4 depends not only upon a consideration of the foregoing
factors, but also upon individual credibility.
Frey-admitted without hesitation that he knew Watkins
and Ortiz had been active on behalf of the Union, that
Cudiamat "might have possibly" signed an authorization
card, and that Cutshall had not signed a card. He testified
credibly that he and Price had discussed the forthcoming
switch in delivery operations and that he would have to
decrease the permanent work force by one man, and, after
concluding the work performance of all of the permanent
employees was not a significant factor, he " selected, in
accordance with company policy, the least-senior perma-
nent employee who happened to be Cudiamat.9 Frey
testified he told Cudiamat early in the last week of August
that he was going to be terminated at the end of the week,
and that, after getting clearance from Price, he told him on
August 29 that he would not be terminated until the
following Wednesday.10 He further testified that, on
September 3, "1 told him that he was permanently terminat-
ed. That's as far as I left it." He denied he told Cudiamat
the hours had been reduced because of union activities or
that he was being terminated for that reason. Cudiamat
denied he had any warning of his discharge prior to
September 3, and that after lunch on Wednesday, Septem-
ber 3, he was approached by Frey and the following
dialogue took place:
A. He said, "George?" I go, "Yeah." And he goes,
"George, I am going to have to terminate you because
the Company has cut it and the Company has cut down
our workload to something like 45 percent; and, since
you are low man on the totem pole, I am going to have
to let you go." And, I asked him why.
Q. And what did he say?
A. Because of the Union.
When asked to explain the reason for asking Frey, "Why?"
after having already been given a reason for the termina-
tion; Cudiamat testified:
Now, I figured-I figure I wasn't-Well, you know-
in union things, I figured that the person that starts
there first is not the low man on the totem pole. Is not,
you know, less seniority. I figure that the one-I figure,
you know, the one like, say, I started before-I figure I
started before" Bob Cutshall, and I figured he was the
man to be the one to be terminated, not I.
S The General Counsel contends that Cutshall should have been termi-
nated in place of Cudiamat because he was not a good employee and had
worked for Respondent less time than Cudiamat. As shown before, Cutshall
was senior to Cudiamat by 11-1/2 months. Further, the fact he filled in for
Warehouse Manager Frey during the latter's absence due to a heart attack in
early 1975 convinces me that Cutshall was more highly regarded as an
employee than was Cudiamat
Q. All right, and then what did he say after you said
why, and he said because of the Union? Then,. what did
you say then?
A. I just said, Okay. What could I say? There was
nothing I could do.
He admitted he didn't ask Frey why Cutshall wasn't
terminated in his, stead.
I have gone over the testimony of both Cudiamat and
Frey repeatedly and must say that I do not believe the total
testimony of either. While I fmd it inconceivable that Frey
told Cudiamat only that he was being permanently termi-
nated, without giving any further explanation, I find it
equally inconceivable that Cudiamat would have asked
Frey "why" he was being terminated, after having already
been given a reason . Cudiamat's purported reason for
asking "why" is totally unconvincing. Rather, I am con-
vinced it is an afterthought and conceived by him only for
the purpose of establishing a violation in this case. His
reason for asking "why," if true, would most certainly have
been completed by asking: "Why not Bob Cutshall instead
of me because he has less seniority?" In sum, I do not
believe Frey told him on September 3 that available work
hours were being reduced because of employee union
activities as alleged in paragraph VI(e); or that Cudiamat
was terminated because of his union membership or
activities or because he engaged in other concerted activi-
ties, as alleged in paragraph VII(a) and Objection Number
4. In that regard, Cudiamat's only union activity-was the
signing of a union authorization card. Watkins and Ortiz
appear to have been the employees who were vocal for the
Umon.11 Section 8(a)(3) of the Act prohibits discrimination
in regard to tenure or other conditions of employment for
the purpose of discouraging union membership and activi-
ties. A finding of violation of this section normally turns on
the employer's motivation. American Ship Building Co. v.
N.L.R.B., 380 U.S. 300, 316 (1965). The question is not
whether there existed a valid basis for discharge but
whether the stated basis was the real one. J. P. Stevens & Co.
v. N.L.R.B., 380 F.2d 292 (C.A. 2, 1967).
I am convinced and fmd that Respondent herein dis-
charged Cudiamat for the reason it advanced, that such
reason was not sham nor pretextual, and that the discharge
was not motivated in whole or in part by Cudiarr'it's union
or protected activity.
Paragraph VI(f) alleges that on September 8 Frey told
employees that a fellow employee had been fired because of
his union activities. Ortiz testified that on September 8 he
talked to Frey in the warehouse and asked if Frey had
noticed a `slowdown in his work. Frey replied that he
hadn't, but that he had noticed a slowdown in Watkins'
work. On the following day, Ortiz, Watkins, and Cutshall
were unloading a trailer and having "a pretty heated
discussion" about Cudiamat's termination. Frey walked up
and told Watkins that he had been timed pulling an order
the day before, and it had taken him too long. Ortiz then
10 Monday, September 1, was a holiday and no one worked.
11 It is not uncommon "to believe some and not all" of a witness'
testimony. N.LR.B. v. Universal Camera Corporation, 179 F.2d 749, 754
(C A_2,1950)
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified , "And, then at that time , Richard Watkins came
out point blank and told him that the truth behind George
Cudiamat 's termination was not because of lack of work
but was because of his union activities ." Roy Frey said,
"Yes, but there 's nothing we can do about that now."
Watkins ' version was that the three men were talking loudly
about the Union and its benefits while they were unloading
a trailer, when Frey walked up and said he had checked
Watkins the day before, "And that ... since the union talk
and everything was going about , that my efficiency and
output had dropped and he tuned me on this one specific
order and it just wasn' t up to par ; that I had better get on
the stick or something was going to happen and at that time
I told him that as far as I was concerned , the condition of
the warehouse was such that my work couldn't help but be
slowed down . We had so much work piled up, nobody was
able to stock the shelves like they were supposed to; pallets
were in the way and there was obstacle after obstacle and I
wasn 't purposely , to my way of thinking , slowing down just
because of this union thing , and it became a kind of a
heated conversation and then I made the statement myself
that this whole thing was a bunch of B.S . about George
being terminated for the workload . I said, look around us,
it's everywhere . I said, I know, and you know , and we all
know that George was terminated for his union activity and
not for lack of work around here ; he said , Yeah, but there is
nothing we can do about that now and I want this talk
about the Union dropped right now and he wanted us to get
back to work , which we were . I guess we stopped for
something like 10 minutes during this discussion or whatev-
er, to talk." Without testifying concerning this conversa-
tion , Frey denied he ever told any employee that another
employee had been fired because of union activities. While
I am convinced , as stated heretofore , that Cudiamat was
not unlawfully terminated , I am equally convinced that the
conversation reported by Ortiz and Watkins occurred, and
that Frey sought to thwart the Union 's organizational
success by confirming the suspicions of the employees
regarding the reason for Cudiamat's termination. By so
doing, he engaged in conduct violative of Section 8(a)(1) of
the Act.
Paragraph VI(g) and Objection 5 allege that on or about
September 15 Price interrogated employees regarding their
union activities and sympathies . It appears from the record
that on occasions when Price visits the San Leandro
warehouse, he customarily talks to employees on an
individual basis . Ortiz testified that on September 15, 2
days prior to the scheduled election , he and Price had a
conversation in the coffeebreak area . He testified that Price
discussed the new company health plan and "they had so
much more to offer us than the Union did in this new health
plan. He also told me he knew that I felt committed to
Richard Watkins as far as the union activity thing. I told
him no . He told me that when the election took place,
which was only a couple of days after that , that he was
hoping for four votes against the Union , and I reminded
him, then , that there would be five votes including
Cudiamat 's. And , he told me , `Well, Cudiamat's won't
count because we're going to challenge it. This vote will be
challenged .' And he also told me that by looking over the
warehouse, in general , he could see that there was quite a
bit of safety hazard , and what have you, backlog on orders,
backlog on trailers , and he said we might have jumped the
gun by terminating George Cudiamat."
Watkins testified that he had two individual conversa-
tions with Price . The first occurred on September 15 at the
coffeebreak area . According to Watkins, Price stated he
was under the impression that Watkins was the instigator of
the Union , and the other employees appeared to be
following him , which Watkins denied by stating, "It was all
a group decision," that the employees hadn't gotten
anywhere in resolving problems in the past and decided to
try to organize the Union again . He testified that Price went
over the medical benefits program, asked why he felt so
strongly about the Union, and suggested that Watkins find
other employment if he wasn 't satisfied with his present
employment . Watkins testified that Price asked him if he
was going to vote for the Union, that he would like to have
four votes against the Union, and that the Company would
"do everything in our legal power to keep the Union out." It
appears that on September 15 Price told the employees that
he wanted to take them to lunch on September 16. As
Watkins had a toothache that morning , he told Price he
wouldn't be able to go to the luncheon since he had to have
the tooth taken care of. According to Watkins , Pnce stated
he wanted to talk to him again individually , and they went
again to the coffeebreak table where Price "again stated
... probing me about how I would vote . Why I wanted the
Union, things of that nature . . . the Company did not
intend to have a union in the place . They didn 't want an
outside power or an outside force . They wanted to be able
to handle their problems . . . within the Company. But
even if . . . we got the Union in . . . that they would, under
no terms , as far as he was concerned , sign a contract and
without a contract, we had no more than we have right
now."
Price's version of the conversation with Ortiz on Septem-
ber 15 was to the effect that he had three special items
which he had to discuss with each of the employees-one
was a general list of the company benefits for the outside
warehousemen , the second was the "basic thrust" of the
new insurance policy, and the third was the "latest benefit
level and the retirement plan." He testified they also
discussed Ortiz' absenteeism. He denied he asked Ortiz how
he or anyone else intended to vote. With respect to his
September 15 conversation with Watkins, Price stated he
had difficulty getting to the three special items he wanted to
discuss with each of the employees because of Watkins'
concern and questions on the health insurance and retire-
ment plans . He testified he knew Watkins ' feelings about
the Union, because Watkins had expressed them that
morning in a group meeting to the point of being disruptive,
and had reiterated them in the individual meeting. He
denied he asked Watkins who the union leader was, or how
he or anyone else was going to vote . With respect to
September 16, Pnce testified he had a brief conversation
with Watkins in the warehouse and that the primary point
of it was to see if anybody had any questions about matters
covered or not covered in the previous meetings . While not
recalling whether the Union was discussed with Watkins, he
thought it probably was because whenever he talked to
Watkins , "he was very much concerned with this thought."
WIX.CORP. -
I have-carefully reviewed-the testimony. of Ortiz, Watkins,
and Price and note that Ortiz failed to support the
allegation -that, Price ;interrogated _him about his. -union
activities or -those of his,-fellow employees. His testimony
boils down to the fact that Price-expressed the thought the
Respondent's health plan was better than-the Union's, that
he knew. Ortiz felt- committed to Watkins insofar as the
Union was concerned, ' that he hoped everyone voted
against the Union, and that Respondent would challenge
Cudiamat's ballot. Watkins, on the other hand, testified
with preciseness with respect to incidents of interrogation
on both September 15 and 16. While Price testified in great
detail with respect to other facets of this case, his testimony
regarding his conversations with Watkins were vague and
he spoke in generalities, indicating to me that there was
more to be said than he was saying. In these circumstances,
I credit the testimony of Watkins over that of Price and find
that Respondent engaged in the conduct alleged in para-
graph VI(g) of the complaint and Objection 5.
D. The Challenged Ballot
The ballot of George Cudiamat was challenged by
Respondent on the ground that he had been unlawfully
terminated prior to the election. I have found that Respon-
dent did not terminate Cudiamat because of his member-
ship in or activities on behalf of the Union or because he
engaged in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
Accordingly, I recommend that the challenge to his ballot
be sustained.
E. The Objections
I have found that Respondent violated Section 8(a)(1) of
the Act in numerous respects, including the conduct alleged
in Objections 2 and 5. Such conduct having occurred prior
to the election held in Case 20-RC-12932, I find that it
interfered with the employees' free choice of representatives
and was of sufficiently substantial nature to affect the
results of the election and to require that the election be set
aside and a new election be held. As I have found that
Respondent did not engage in the conduct alleged in
Objections 3 and 4, I recommend their dismissal
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
V. THE REMEDY
171
Having .found that Respondent has engaged in, and is
engaging in, certain unfair labor practices, I shall recom-
mend that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
-Upon the basis of the foregoing findings of fact and the
,entire record in,the case, I make the following:
CONCLUSIONS OF LAW
1. By threatening employees that the Company would
not allow a union to represent them, by threatening to move
or close its warehouse facility if the Union came in, by
threatening to discharge employees because of their union
activities, by threatening to change its method of distribu-
tion and eliminate a job because of union activities, by
creating the impression with employees that a fellow
employee had been terminated because of his union
activities, and by interrogating employees regarding their
union activities and sympathies, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Wix Corporation, San Leandro, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that the Company would not
allow a union to represent them, threatening to move or
close its warehouse facility if the Union came in, threaten-
ing to discharge employees because of their union activities,
threatening to change its method of distribution and
eliminate a job because of union activities, creating the
impression with employees that a fellow employee had been
terminated because of his union activities, or interrogating
employees regarding their union activities and sympathies.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its facility in San Leandro, California, copies
of the attached notice marked "Appendix." 13 Copies of
said notice, on forms provided by the Regional Director for
Region 20, after being duly signed by an authorized
representative, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
13 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading, "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 20, in
writing , within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations of the
Act not found herein , specifically paragraphs VI(e), VII (a)
and (b).
IT Is FURTHER RECOMMENDED that the challenge to the
ballot of George Cudiamat in Case 20-RC-12932 be
sustained, that Objections 3 and 4 be dismissed, that
Objections 2 and 5 be sustained, and the election held on
September 17, 1975, be set aside and that a new election be
conducted at such time as the Regional Director deems
appropriate.