Wyco Metal Products

National Labor Relations Board - Board Decisions

Jun 22, 1970

183 N.L.R.B. 901 (N.L.R.B. 1970)

WYCO METAL PRODUCTS 901
Wyco Metal Products and Local 1010 , United Fur-
niture Workers of America , AFL-CIO and Elec-
tronic Cabinet Makers Independent Union'
Wyco Metal Products and Local 1010 , United Fur-
niture Workers of America , AFL-CIO, Petitioner.
Cases 31-CA-1368, 31-CA-1467, and
31-RC-1073
June 22, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 30, 1969, Trial Examiner George
H. O'Brien issued his Decision and Report as to
Disposition of Objection to Conduct Affecting the
Result of Election in the above-entitled con-
solidated proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . The Trial Examiner also found that Respon-
dent had not engaged in certain other unfair labor
practices alleged in the complaint and recom-
mended that such allegations be dismissed. He
further recommended that the election held on
May 6, 1969, be set aside and that the challenged
ballots not be opened and counted.2 Thereafter, the
General Counsel, Respondent, and Charging Party
filed exceptions to the Trial Examiner's Decision
and supporting briefs, and Respondent also filed an
answering brief in opposition to briefs of the
General Counsel and the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,3 conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
The Trial Examiner found that Respondent on
March 124 interrogated employees Hector Padron
and Louis Dupart in violation of Section 8(a)(1) of
the Act. He also found that Respondent on the fol-
lowing day discriminatorily discharged Padron and
David Magana in violation of Section 8(a)(1), (2),
and (3) of the Act because of the activities of these
employees on behalf of Local 1010 and in opposi-
tion to the Independent, the bargaining agent for
Respondent's 38 unit employees. We agree.
The record shows that early in March Padron
and Magana, president and secretary-treasurer,
respectively, of the Independent, met5 at a restau-
rant with Apolinar Espudo, International represent-
ative of Local 1010, from whom they secured
authorization cards. Soon thereafter, Padron dis-
tributed cards "inside and outside" Respondent's
premises to no less than 10 employees.6 Magana
joined Local 1010 about March 5 or 7 and then dis-
tributed cards to three or four employees in the
parking lot adjoining the plant . In addition , Magana
spoke to seven or eight employees during break
periods and told them to see Padron if they wished
to join Local 1010.
On March 11, at least 20 members of the Inde-
pendent met after working hours at Padron's
request at a union hall where he stated that a new
and better contract could be secured if the Inde-
pendent's contract with Respondent were ter-
minated and the employees disbanded the Indepen-
dent and joined Local 1010. After Magana and
other employees voiced their support, the em-
ployees voted unanimously to carry out Padron's
recommendations.
On March 12, employee James Chilton asked
George Stassi,7 Respondent's plant superintendent
and production manager, if the latter had seen a
card. Stassi inquired "which card?" and received
the reply that Dupart had one. Two minutes later,
Stassi asked Dupart if he had seen or had a card.
On being told by Dupart that he had a card which
Padron had given him, Stassi sought out Padron
who denied he had a card.
As indicated by the Trial Examiner, Stassi denied
any knowledge of the campaign for Local 1010 and
against the Independent and testified that his inqui-
ries concerning cards were prompted by a suspicion
that they were discount house cards. However, the
Trial Examiner concluded that Stassi, "a man of
determination" who enjoyed first name relations
' Herein respectively called Local 1010 and Independent
2 Through an inadvertence , the Trial Examiner did not recommend the
holding of a second election
3 The parties except to the Trial Examiner 's credibility findings It is the
Board's established policy not to overrule a Trisl Examiner's resolutions
with respect to credibility unless the preponderance of all the relevant
evidence convinces us that they are incorrect On the entire record, such a
conclusion is not warranted herein Standard Dry Wall Products, Inc v
NLRB.,l88F2d362(CA 3)
4 Unless otherwise indicated , all dates refer to 1969
s They were accompanied by two other employees, namely, Raymond J
Gliha and Chester Whitton, vice president of the Independent
One employee who signed a card was Oscar Heath
r Stassi spent most of the day in the production area
183 NLRB No. 93
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the workmen in the shop, did not rest until he
ascertained that the cards were Local 1010
authorization cards. In view of Stassi's close contact
with the employees and the small size of the plant,
as well as the timing and nature of the interroga-
tion, we find there is an adequate basis for inferring
that Respondent knew or had reason to believe that
the cards were Local 1010 cards and the dis-
criminatees, Padron and Magana, were protagonists
for that organization.8
Contrary to our dissenting colleague, we find, for
the reasons given by the Trial Examiner, that
Respondent further violated Section 8(a)(2) of the
Act when Stassi presented $150 to the Independent
at a meeting on April 4 called by Stassi on Respon-
dent's premises. We also find, contrary to the Trial
Examiner, that Respondent engaged in the follow-
ing additional acts of unlawful support and
assistance to the Independent in violation of Sec-
tion 8(a)(2) of the Act:
On the morning of March 17, Heath returned
from his vacation and, on learning of the "confu-
sion" and "commotion" over Local 1010 and the
Independent, prepared and circulated in the plant9
the following petition, which was signed by 30 em-
ployees, that day and the next:10
Please sign if agreed
I hereby do say in sound mind without any
force or bribe, that I do not want the so-called.
Furniture Union [Local 1010] at Wyco Metal
Product and do still accept the same Cabinet
Maker Union that is now in the Plant. And do
accept to attend a meeting to be held on or
about March 19, 1969 at 4:30 p.m. to decide
on renewal of new contract, on or about the
1st of April, 1969.
At noon on March 17, Heath, who "took it upon
[himself ] to act as acting president" of the Indepen-
dent,11 placed on Respondent's bulletin board a
notice announcing a "Union Meeting for Em-
ployees" at 4:30 p.m.12 on March 19 for election
for president of the Independent.
On March 18, Forrest Norman Weiss, owner and
sole stockholder of Respondent, received and
discussed with Stassi a copy of the charge in Case
13-CA-1368 filed by Local 1010 on March 16
which alleged that Padron and Magana had been
discriminatorily terminated. That same day, about
4:25 or 4:30 p.m., Heath handed his petition with
30 signatures to Stassi who made a copy and sub-
mitted it to Weiss.
The meeting called by Heath for 4:30 p.m. did
not take place because "nobody showed up." As a
consequence, Heath on March 20 asked for and ob-
tained Stassi's permission for the Independent to
have a half hour meeting in the assembly room of
the plant on the following day during an extended
lunch period commencing at 12:30 p.m.13
On March 20, Weiss received a letter signed by
Padron and Magana informing him of the actions
taken at the Independent's March 11 meeting and
advising him that Espudo, Local 1010's representa-
tive, would communicate with Weiss on behalf of
the employees.
On March 21, Local 1010 filed a representation
petition (Case 31-RC-1062) and a copy thereof
was mailed to Respondent by the Regional Office.
On the same day, Respondent received a letter
from Espudo offering to demonstrate Local 1010's
majority and requesting a meeting to negotiate a
contract with Local 1010. At 10:15 a.m., Heath
signed and posted on Respondent's bulletin board
the following notice "To All Union Members," i.e.,
members of the Independent:
There will be a union meeting this afternoon at
12:30 to 1 o'clock in the Assembly Dept.
There will be a lot to discuss and explain con-
cerning the final stages of our new contract.
All personnel must be there and we will have
to make up the 1 /2 hr. this evening . In other
words everyone will have to work until 5 p.m.
instead of 4:30 this is a must. No one will be
Excused.
The meeting of the Independent was held as
scheduled14 and the day shift worked until 5 p.m.15
On March 25, Respondent's counsel, Edwin H.
Franzen, replied to Espudo's letter and refused to
recognize and bargain with Local 1010 for the fol-
lowing reasons : The Independent is not defunct;
Local 1010 does not represent a majority of unit
employees; Respondent has a "current, valid col-
lective bargaining contract" 16 with the Indepen-
dent ; and Respondent interprets Local 1010's peti-
s Century Lumber Company, Inc, 168 NLRB 221, Square Binding and
Ruling Co , Inc, 146NLRB206,219
° Heath was assisted by employees Ted Villa and Henry Perez
10 The Trial Examiner found that the circulation took place " partly dur-
ing working hours "
" As stated above, Padron was president of the Independent at the time
of his discharge on March 13
'= Respondent 's regular working hours for the day shift were 8 a in to
430pin
13 Heath and Stassi agreed that the workday would be lengthened by one-
half hour that day to enable those attending the meeting to make up the lost
time
14 Heath testified without contradiction that, prior to March, no other
meetings of the Independent were held during working hours or inside the
plant
"As Ghha did not work beyond 4 30 p in , a half hour's pay was
deducted from his check
16 The contract provided, inter alia, for automatic renewal in the absence
of written notice by either party on or before April I
WYCO METAL PRODUCTS
tion for an election as a waiver of the demands con-
tained in Espudo 's letter.
On March 26, Respondent received a copy of the
amended charge in Case 31-CA-1369, alleging that
Padron, Magana , and Harry Barr had been dis-
criminatorily discharged.
On March 27, Franzen mailed to the Regional
Office a copy of Heath's petition and a letter from
Weiss explaining the discharges. On the same day, a
new contract, effective for 3 years commencing
March 28, was signed by Heath and three other em-
ployees for the Independent and Weiss for Respon-
dent."
On April 2, Local 1010 filed a second petition
(Case 31-RC-1073) which was mailed by the Re-
gional Director to Respondent on April 4. On the
latter date, Local 1010 requested leave to withdraw
its earlier petition (Case 31-RC-1062) and
withdrawal was approved by the Regional Director
on April 8.18
On April 4, as already noted, Stassi called a
meeting on Respondent' s premises at which the In-
dependent was unlawfully presented with a check
for $150.
On April 5, the employees received with their
paychecks the following notice signed by Weiss:
REGARDING YOUR PAY CHECK: Your hourly rate
for Thursday, March 27, was per your previous
rate. Starting March 28th (last Friday) you
received an eight cents (8) an hour increase.
This increase was given to you because of the
new contract negotiated between and agreed
to by the Electronic Cabinet Makers Indepen-
dent Union and Wyco Metal Products.
On April 27 the Independent, Local 1010, and
Respondent entered into a Stipulation for Certifica-
tion Upon Consent Election (Case 31-RC-1073).
The election was held on May 6.
As noted above, Respondent on March 12 and
13 engaged in unfair labor practices in violation of
Section 8(a)(1), (2), and (3) of the Act when it in-
terrogated employees Dupart and Padron concern-
ing Local 1010 and discriminatorily discharged the
latter and Magana for campaigning on behalf of
Local 1010 and against the Independent. In con-
trast to these hostile and unlawful actions against
Local 1010 adherents, Respondent engaged in the
above-described course of conduct in the next 3
"This contract contained a new wage scale and one additional paid
holiday
IN The Trial Examiner pointed out that under the rule in Leonard
Wholesale Mears, Inc, 136 NLRB 1000, the petition in Case 31-RC-1062
was premature , having been filed more than 90 days before the expiration
date of the Independent 's contract with Respondent , and he stated that it
would have been dismissed by the Trial Examiner if it had not been
withdrawn
" As the Trial Examiner indicated in discrediting Stassi's denial of such
903
weeks which reveals a pattern of disparate treat-
ment favoring the Independent.
Thus, as the Trial Examiner found, Stassi was
aware that the petition opposing Local 1010 and
supporting the Independent was being circulated
for 2 days, partly during working hours, and
acquiesced in that action of Heath and two fellow
employees.19 Although Respondent questions the
Trial Examiner's finding that the petition was circu-
lated partly during working hours,20 the issue is not
whether the petition was circulated during working
or nonworking time . The critical fact is that
Respondent, which had only a few days before en-
gaged in unlawful interrogation and discharged two
employees for soliciting for Local 1010, permitted
Heath to solicit on behalf of the Independent.
While this fact, standing above, might not justify
finding a violation of Section 8(a)(2) of the Act, it
occurred here in the context of widespread
assistance of various kinds.
Respondent rendered further unlawful assistance
to the Independent by permitting that organization
to meet in the plant on March 21 and by rearrang-
ing the workday to the detriment of those em-
ployees who were inconvenienced or unable to
work beyond the usual hours of the day shift.2' In
granting to the Independent the unusual privilege of
holding its meeting in the plant at an hour which
was normally working time, Respondent gave spe-
cial consideration to the Independent that went
beyond the ordinary advantages which may
properly inhere in incumbency.
Confronted by the March 20 letter of Padron and
Magana as to the displacement of the Independent
by Local 1010, Espudo's March 21 letter asking for
recognition of Local 1010, and the latter's petition
(Case 31-RC-1062), Respondent took another
substantial step to strengthen the position of the In-
dependent by prematurely extending its contract
with the Independent on March 26 and granting
thereunder increased wages and an additional paid
holiday. Although Respondent contends there was
no question concerning representation during the
critical period because Local 1010's demand for
recognition and its petition (Case 31-RC-1062)
were untimely filed, we deem it significant that the
premature extension of the contract, which con-
tained additional benefits, took place in a context
knowledge , Stassi must have learned about the circulation of the petition in
view of his close contact with the employees in Respondent 's small plant
S0 Heath himself disclosed his uncertainty as to whether he handed the
petition to Stassi during or after working hours when he testified that he did
so at "425or430pm"
" Although evidence was adduced as to the meeting, the Trial Examiner
denied the General Counsel's motion to amend the complaint to cover such
conduct We find that the 8(a)(2) allegation in the complaint is sufficiently
broad to encompass this subject
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of unlawful interrogation , discharges , and other
assistance to the Independent" in the face of the
demand for recognition by Local 1010. Ac-
cordingly , we conclude that Respondent aided and
assisted the Independent in violation of Section
8(a)(2) of the Act by prematurely extending that
contract with the purpose and intent of counteract-
ing and forestalling Local 1010's organizational
campaign and securing the entrenchment of the In-
dependent as the bargaining representative.23
The Trial Examiner found , and we agree , that the
$150 gift to the Independent interfered with the
election of May 6 and , as noted above , recom-
mended that the election be set aside and the chal-
lenges not be opened and counted . 24 We also find
that a new election is warranted because of the
continuing impact of Respondent 's unlawful
assistance to the Independent at the time of the
election . 25 In view of the appearance on the ballot
of the unlawfully assisted Union at a time when the
unfair labor practices had not been remedied, it
cannot be said that the election was fairly and
properly conducted or that the results of the elec-
tion represent the freely expressed desires of the
employees . We shall therefore order that the elec-
tion be set aside and that the Regional Director
hold another election when he determines that a
free and untrameled election can be held.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent Wyco Metal Products,
North Hollywood, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. In 2(a) of the Recommended Order delete the
words prior to the word "substantially" and sub-
stitute therefor the following: "Offer to Hector
Padron and David Magana immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to".
' See H & F Binch Co , 168 NLRB 929
In view of our reliance on the Binch case, we rind it unnecessary to
pass on the Trial Examiner 's finding that there was no Midwest Piping viola-
tion However , we do find that par 9 ( b) of the complaint, which alleges
that the premature extension of the contract violated Sec 8(a)(2), is suffi-
ciently broad to warrant our finding of such a violation
_' As noted above, we have already adopted the Trial Examiner 's finding
that the gift constituted an 8(a)(2) violation.
' Weather Seal Incorporated, 161 NLRB 1226, 1228
S° In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
2. In the sixth indented paragraph of the notice
delete the words prior to the word " substantially"
and substitute therefor the following : " WE WILL
offer to Hector Padron and David Magana im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to".
IT IS FURTHER ORDERED that ( 1) the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not specifically found herein, and
(2) the election conducted on May 6 , 1969, in Case
31-RC-1073 , be, and it hereby is, set aside, and
said case is hereby remanded to the Regional
Director for Region 31 to conduct a new election.
[Direction of Second Election26 omitted from
publication. ]
MEMBER BROWN, dissenting in part:
I agree with my colleagues in all respects except
insofar as they adopt the Trial Examiner's conclu-
sion that Plant Superintendent Stassi's payment of
the $150 to the treasury of the Independent vio-
lated Section 8(a)(2) and interfered with the elec-
tion which was held on May 6, 1969.
There is no dispute about the facts. In 1968,
many months before the organizational effort of the
Charging Party, the members of the Independent
decided to withdraw the Independent's funds from
the bank and each member could either take his
share in cash or turn it over to Stassi for betting at
the racetrack. As a result, most of the employees
left their shares for betting, and $120 was turned
over to Stassi for that purpose. However, Sassi lost
the money and promised to replace it with interest
if he "ever hit it lucky." This he did at the end of
March or beginning of April 1969, and on April 4
he called the employees together and announced he
had had a winner and handed a check for $150 to
the Independent's treasurer. The election agree-
ment was entered into on April 25.
As I view these facts, the only basis for constru-
ing the payment as unlawful is the timing during the
critical period between the filing of the petition and
date of the election. Notwithstanding that the
record demonstrates Respondent 's union animus,
there is nothing to connect the payment of this
money with that animus. Although it is entirely
conceivable that such a payment could be made as
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
derwear Inc , 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly , it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Regional Director for Region 31 within 7 days of the
date of this Decision and Direction of Election The Regional Director shall
make the list available to all parties to the election No extension of time to
file this list shall be granted by the Regional Director except in extraordina-
ry circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed
WYCO METAL PRODUCTS
a devious means of supporting the Independent,
some evidence would be essential to justify this
conclusion and none appears to be available. Ac-
cordingly, in finding that the Respondent violated
Section 8(a)(1), (2), and (3), 1 would not rely on
this incident.
TRIAL EXAMINER'S DECISION
and
REPORT AS TO DISPOSITION OF OBJECTION
TO CONDUCT AFFECTING THE RESULT OF
ELECTION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner: This con-
solidated proceeding was heard at Los Angeles,
California, on September 2 through 4 and 8
through 12, 1969. In this Decision and Report
Wyco Metal Products is called Respondent; Local
1010, United Furniture Workers of America,
AFL-CIO, is called Local 1010; and Electronic
Cabinet Makers Independent Union is called Inde-
pendent. The consolidated amended complaint is-
sued July 16, 1969, is based on a charge filed by
Local 1010 on March 17, 1969, as amended March
20 and 25 and April 14, 1969, and upon a charge
filed by Local 1010 on June 9, 1969. The com-
plaint alleges, in substance, that Respondent, by
discharging three employees, by coercive interroga-
tion and threats, and by contributing financial and
other support to Independent, violated Section
8(a)( 1), (2), and (3) of the Act. By a further order
of consolidation issued by the Regional Director on
August 15, 1969, one objection by Local 1010 to
conduct of Respondent affecting the results of an
election held May 6, 1969, was placed in issue.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an employer within the meaning of
Section 2 (2) of the Act and is engaged in com-
merce and in business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
Ii. THE LABOR ORGANIZATIONS INVOLVED
Local 1010 and Independent are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE
CONDUCT ALLEGED TO HAVE AFFECTED THE RESULT
OF ELECTION
A. The Issue In Case 31-RC-1073
Pursuant to a Stipulation for Certification Upon
Consent Election under Section 102.62(b) of the
905
Board's Rules and Regulations , Series 8, as
amended, an election was held on May 6, 1969,
with the following result:
Local 1010 13
Independent 18
No union 2
Challenged 4
The challenges being sufficient in number to affect
the result of the election , and timely objections
having been filed by Local 1010, the Regional
Director , on July 23 , 1969, issued his Report on
Objections and Challenges . No exceptions having
been filed , the Board on August 8, 1969 , issued an
order adopting the Regional Director's report
wherein he recommended:
... that the issues raised by Objection 1 and by
the challenges to the ballots of Hector Padron,
Harry Barr and David Magana be consolidated
for hearing with the hearing scheduled to be
held in Cases 31-CA-1368 and 31-CA-1467,
and has recommended that the challenge to
the ballot cast by Warren Kelly be overruled. It
is recommended further that the ballot cast by
Kelly not be opened and counted at this time
but be held pending resolution of the other
challenged ballots and the objections and that
in the event the objections are sustained, a
second election be directed without opening
and counting any challenged ballot.
Objection 1, in its entirety , states as follows:
On or about April 4 , 1969, the Employer
turned over to the Electronic Cabinet Makers
Independent Union the sum of $ 180 [sic].
B. The Issues in Cases 31-CA-1368 and
31-CA-1467
The General Counsel asserts that Padron, Barr,
and Magana were discharged because they joined
or assisted Local 1010 or because they failed and
refused to assist Independent. Respondent answers
that Padron was discharged because of his un-
satisfactory job performance and because he
deliberately refused to obey a direct order of his
immediate superior; that Magana was discharged
for leaving work early without permission in viola-
tion of an established published rule; and that Barr
was discharged for culpable negligence in the
operation of a crane, subjecting himself and fellow
employees to the possibility of serious bodily harm.
The complaint further alleges, and Respondent de-
nies, that Superintendent George Stassi (I) inter-
rogated employees about their union activities, (2)
threatened employees with discharge if they sol-
icited for Local 1010, (3) told employees they
should quit their jobs with Respondent if they sup-
ported Local 1010, and (4) threatened employees
with reprisals and told them to quit their jobs with
Respondent if they would not agree to prematurely
open and extend Respondent's contract with Inde-
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendent; further that (5) a petition prepared and
circulated by employee Oscar Heath was circulated
during working hours with the permission, consent,
and authorization of Respondent; (6) the agree-
ment executed by Independent and Respondent on
March 27, 1969, granting increased wages and
other benefits to employees was a premature open-
ing and extension of Respondent's contract with In-
dependent; and (7) the $150 given by George Stas-
si to Independent constituted unlawful support and
assistance.
C. The Manufacturing Process
Respondent fabricates sheet metal cabinets
designed to house electronic devices. Sheet steel
and sheet aluminum are received at a truck dock
where they are picked up by a traveling crane and
deposited in piles in the steel warehouse, according
to the gauge of the metal. The shear operator, using
the crane, removes sheet metal from a pile and
deposits it on a shear table. The shear operator and
his helper then push the shear table, which rolls on
six wheel casters, to the shear. The shear operator
cuts the metal to dimensions shown on a work
order and illustrated by an accompanying print.
The shear helper then takes the pieces of metal
which have been cut to prescribed size to the punch
presses where holes are punched according to the
work order and the print. The next operation is per-
formed on the power brake. There are five power
brakes of varying sizes and capacities which bend
the sheet metal at a right angle between a ram and
a die. The brake operator checks the guage of the
metal and sets his ram so that when the pressure is
applied, 55 tons on one of the brakes, the metal will
emerge at a perfect right angle. If too much space is
left between the ram and the die, the angle will be
obtuse; if too little space is allowed, the brake will
jam. Before inserting the sheet metal in the brake
the operator is also required to check it against the
work order and the print to see that the shear
operator and the punch press operator have done
their work properly. In March 1969, Ray Gliha was
the leadman over shear, punch press, and brake
and Gliha himself operated brake and punch press.
Harry Barr was the shear operator and James Chil-
ton was his helper. Other brake operators were
Chester "Tex" Whitton, David Magana, and Louis
Joseph Dupart.
The formed parts then pass to the welder and
spot welders. Sides, top, and top moldings are
welded to the frame by heliarc. The spot welder at-
taches the bottom moldings and the unit channels.
In March 1969 Warren Kelly was the heliarc welder
and leadman over spot welders Bridie Geeter and
George Bartel. From welding the cabinets go to
metal finishing, where rough edges are ground off
with machines and the entire subassembly given a
smooth finish in a machine called a "jatterbug."
Metal finishing was under Leadman Henry Perez.
After degreasing, the cabinets enter the paint de-
partment. There are two paint booths-the smaller
is occupied by one spray painter and the larger by
two spray painters. In March the painter leadman
was Luis Sandoval and the other painters were Hec-
tor Padron and Orlando Molina. There were also
three helpers, one of whom was William Molina,
Orlando's brother. The painter inspects the part to
see that it is free of dust or grease , dilutes his paint
with the proper amount of thinner, and sprays the
paint evenly and smoothly over the entire surface.
The painter's helper wipes the part with a cloth be-
fore the paint is applied. He also hangs the painted
article on a rack and wheels the rack to the bake
oven. Gilbert Wagner was in charge of the oven.
Smaller "Wyco" items which require no further
processing are taken directly to the packer, Rose
Padilla. If the item is perfect she packs it; if she ob-
serves an obvious defect in the paint she returns it
to the paint shop for repair. On doubtful items she
asks the advice of the Production Control Super-
visor George Castro Suarez.
Items which require further processing, which in-
clude the larger "Wyco" items and all "Stantron"
items , are delivered by Wagner to Oscar "Dean"
Heath, the leadman in final assembly. Heath super-
vises four assemblers who use screwdrivers and
pliers in their work. Heath is also the final inspector
and after he puts his tag on the completed cabinet
it goes to packing and shipping. As part of his du-
ties Heath inspects the paint before final assembly
and when he finds a defect he sends the part back
to the paint shop for correction. One copy of the
work order has accompanied the work throughout
the manufacturing process. Heath also has a copy
of all pending work orders which he keeps on a
clipboard and he makes frequent trips through the
shop to check the progress of the parts which he
will require in his final assembly.
The entire operation is under the immediate and
close supervision of Plant Superintendent and
Production Manager George Stassi who spends
most of his working time in the production area.
Forrest Norman Weiss, Respondent's president and
sole stockholder, exercises some direct supervision.
Suarez supervises no one. As of March 1, 1969,
there were 38 employees in the bargaining unit. As
of March 13, after the discharges of Padron and
Magana, there were 33 employees in the bargaining
unit. Employees address and refer to Mr. Stassi as
George and to Mr. Weiss as Norm or Norman.
D. Sequence of Events
On July 1, 1955, Respondent and Independent
entered into a 3-year contract, making membership
in the Independent a condition of employment and
providing for automatic renewal for annual periods
in the absence of written notice by either party on
or before April 1, 1958, or any succeeding April 1.
On July 1, 1966, the same parties signed a one-page
amendment of the 1955 agreement changing the
wage schedule and further providing:
WYCO METAL PRODUCTS 907
This contract may be reopened for discussion
of the Wage Schedule by notice in writing
served by either party upon the other at least
30 days before June 30, 1969.
In early 1966 George Stassi , with over 30 years'
experience in all aspects of sheet metal manufac-
ture, accepted a position with Respondent as proto-
type mechanic and 3 months later he was put in
charge of punch press and brake. Shortly thereafter
he was placed in charge of metal finish, weld, spot
weld, and degrease and in September 1967 became
superintendent and production manager responsi-
ble only to Norman Weiss. Stassi is a gregarious in-
dividual and enjoyed talking about sports (he had
been a professional baseball player) and horserac-
ing with Respondent 's employees. It had been the
practice of the Independent in December of each
year to distribute all the money then in the treasury
among the bargaining unit employees then working.
In the summer of 1968 it occurred to Bridie Geeter,
a spot welder, that rather than have $5 or $6 at the
end of the year, the money should be removed from
the bank, where it wasn't doing any good, and put
to work and that Stassi 's expert knowledge of hor-
seracing should be employed. A meeting of the In-
dependent was held at which it was decided that
the Independent's funds should be withdrawn from
the bank and each member would be given the cho-
ice of either taking his share in cash or of giving his
share to Stassi to bet at Hollywood Park. The of-
ficers of the Independent in the summer of 1968
were Chester Whitton, president; Henry Perez,
treasurer; David Magana, vice president; and Oscar
Heath, secretary. Whitton and Perez went to the
bank and drew out the Independent's funds. Each
employee as he left work about 4:30 was asked,
"Do you want it to ride or do you want it?" About
10 employees took their money. The remainder of
the treasury, about $120, was given to Stassi to bet.
He placed this money and "a lot of (his) own" on
the daily double on a Saturday. The following Mon-
day in Respondent's plant he laid down the losing
tickets, stating in Geeter's words: "Look, you guys
don't never give me no more money to go and bet. I
lost too. I can't bet with nobody else's money. I am
going to replace this money if I ever hit it lucky. I'm
going to replace with interest on it."
In October 1968 the Independent elected new of-
ficers. Harry Barr became president; Whitton, vice
president; and David Magana, secretary-treasurer.
Heath had no notice of the meeting and did not
learn util somewhat later that he and Perez had
been replaced. Barr resigned after 2 months and
Hector Pardron was elected president.
Padron called Local 1010 and arranged to meet
with Apolinar Espudo, International representative,
at a restaurant . Padron brought David Magana, Ray
Gliha, and Chester Whitton with him . The next day,
March 5, 1969, at quitting time, Heath signed a
Local 1010 authorization card at Padron 's request.
Heath then left on his vacation and did not return
to the plant until Monday , March 17.
On March 11, 1969, 20 of the then 36 members
of Independent met at the United Automobile Work-
ers union hall. Padron, speaking both in English
and in Spanish, reminded the members that a new
contract could be negotiated if notice were given
prior to April 1, stated that the new contract should
be a better one, and urged that Independent
disband and the employees join Local 1010. Votes
were taken by show of hands and Padron's recom-
mendations were adopted.
On March 12, James Chilton, the shear helper,
asked Stassi if he had seen a card and when Stassi
asked "which card," Chilton replied that Dupart
had one. Stassi then asked Louis Dupart if he had a
card, and Dupart replied that he had received a
card from Padron. Stassi went to Padron and asked
if he had a card. Padron denied having any card
and invited Stassi to search him. Stassi declined the
invitation.
On March 13, Stassi discharged Hector Padron
and David Magana.
On Monday, March 17, Heath arrived at the
plant about 7:30 a.m. (starting time was 8 a.m.).
Heath was told by Bridie Geeter and a few others
about the "confusion" and "commotion" over
Local 1010 and Independent. He heard that it was
going to be necessary for Mr. Weiss to go to the
hospital and that the Independent officers had been
asked to discuss the renewal of the contract at a
meeting but had failed to do so. He also learned
that Padron and Magana had been discharged.
Heath , in an effort "to find out how everyone was
standing ," wrote at the head of a pad of lined yel-
low paper:
Please sign if agreed
I hereby do say in sound mind without any
force or bribe, that I do not want the so-called
Furniture Union at Wyco Metal Product and
do still accept the same Cabinet Maker Union
that is now in the Plant. And do accept to at-
tend a meeting to be held on or about March
19, 1969 at 4:30 p.m. to decide on renewal of
new contract, on or about the 1st of April,
1969.
Heath, attempting to confine this activity to his
lunch period and breaktime, asked individual em-
ployees to read the above statement and to sign if
they agreed. Heath signed on line one. Ted Villa,
an assembler under Heath, accompanied Heath on
part of his rounds and translated the English text
into Spanish for the benefit of the Spanish-speaking
employees. At noon on the 17th Heath, who "took
it on myself to act as acting president," placed on
the company bulletin board (bulletin board rights
are conferred by the 1955 agreement) the following
notice:
Union Meeting for Employees at 4:30 in Eve.
March 19, 1968 for election for Pres.
On March 18 Weiss received in the mail a copy
of the charge in Case 31-CA-1368 filed by Local
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1010 on March 17 which alleged that Padron and
Magana had been terminated "for participation in
union activities," discussed this charge with Stassi,
and wrote a letter to the Regional Director setting
forth his explanation of the discharges. He did not
mail the letter to the Regional Office, but delivered
it to his then counsel, Edwin H. Franzen. Heath
continued to solicit signatures to his petition, using
Leadman Henry Perez as his interpreter. About
4:30 p.m. Heath handed the petition bearing the
signatures of 30 bargaining unit employees to Stassi
who, after making a photocopy, returned the
original to Heath . Stassi gave the photocopy to
Weiss.
The meeting called for 4:30 on March 19 was not
held because "nobody showed up." In some
manner on either March 19, 20, or 21 Independent
acquired the following officers: Oscar Heath, pre-
sident; Warren Kelly, vice president; Louis Dupart,
secretary; and Earl Hopson, treasurer.
On March 20 Heath told Stassi that he would like
to hold a union meeting in the assembly department
for the purpose of discussing negotiations for a new
contract. Stassi gave his permission and agreed that
on the following day the lunch period would be ex-
tended for an additional one-half hour and the
plant would run one-half hour beyond the normal
quitting time to enable those attending the meeting
to make up the lost time. On the same date Weiss
received a letter signed by Padron and Magana stat-
ing in substance that at a regular meeting held on
March 11, 1969, the members of Independent
voted to terminate the contract, to dissolve Inde-
pendent, and to affiliate with Local 1010 advising
him that Apolinar Espudo would communicate with
him on behalf of the bargaining unit employees.
On March 21, 1969, Local 1010 filed a petition
docketed as Case 31-RC-1062 and a copy thereof
was mailed by the Regional Office to Respondent.
On March 21 Respondent received a letter from
Espudo recapitulating the substance of the letter
from Padron and Magana, claiming and offering to
demonstrate majority, and requesting a meeting to
negotiate a contract. At 10:15 a.m. Heath posted
on the bulletin board the following notice to all
union members:
There will be a union meeting this afternoon at
12:30 to 1 o'clock in the Assembly Dept.
There will be a lot to discuss and explain con-
cerning the final stages of our new contract.
All personnel must be there and we will have
to make up the 1/2 hr. this evening. In other
words everyone will have to work until 5 p.m.
instead of 4:30 this is a must . No one will be
Excused.
Thank You
0. Heath
' Under the rule of Leonard Wholesale Meats, Inc, 136 NLRB 1000, the
petition in Case 31-RC-1062 was premature , having been filed more than
The meeting was held as scheduled and the day
shift worked until 5 p.m.
On March 24, Monday, Harry Barr was
discharged by Stassi on the instruction of Weiss.
On March 25 Franzen replied to Espudo's letter
of March 20:
It is our client's understanding that the Elec-
tronic Cabinet Makers Independent Union is
not defunct, that it has officers and is other-
wise functioning as a union, completely
separate and distinct from your Local 1010.
Aside from that, our client's information and
belief is that you do not truly represent a
majority of the employees in an appropriate
bargaining unit.
In addition, Wyco has a current, valid collec-
tive bargaining contract with Electronic
Cabinet Makers Independent Union.
We note that you filed a Petition for Election
with the NLRB and we interpret that as a
waiver of your demands continued in your
March 20, 1969 letter.
For the above and other reasons , we are deny-
ing your requests and demands.
On March 26 Respondent received a copy of the
second amended charge in Case 31-CA-1369, al-
leging that Padron, Magana, and Barr had been
discharged in violation of Section 8(a)(3) of the
Act.
On March 27 Franzen mailed to the Regional Of-
fice, with a covering letter, a copy of the petition
circulated by Heath on March 17 and 18, and the
original letter written and signed by Weiss on
March 18. On the same date, March 27, a new con-
tract was signed by Heath, Kelly, Dupart, and Hop-
son for the Independent and by Weiss for Respon-
dent. The new contract was an exact copy of the
1955 agreement except for the correction of typo-
graphical errors, a different wage scale, the addi-
tion of one paid holiday, and changes in dates. The
new contract runs from March 28, 1969, to March
27, 1972.
On April 2 Local 1010 filed the petition
docketed as Case 31-RC-1073. On April 3 a copy
of the petition was mailed to Respondent by the
Regional Office. On April 4, Local 1010 requested
leave to withdraw Case 31-RC-1062 and
withdrawal was approved by the Regional Director
on April 8.'
To the first April paycheck of each bargaining
unit employee was attached the following notice:
REGARDING YOUR PAY CHECK: Your hourly rate
for Thursday, March 27, was per your previous
rate. Starting March 28th (last Friday) you
received an eight cents (8) an hour increase.
90 days before the expiration date of a valid contract, and would have been
dismissed if not withdrawn
WYCO METAL PRODUCTS 909
This increase was given to you because of the
new contract negotiated between and agreed
to by the Electronic Cabinet Makers Independ-
ent Union and Wyco Metal Products.
Norman Weiss
On Saturday , March 21 , Stassi hit it lucky at Santa
Anita . At a morning break on April 4 he had the
employees called together in the assembly depart-
ment by loudspeaker , announced that he finally had
a winner , and handed a bank cashier 's check for
$ 150 to the Independent 's treasurer , Earl Hopson.
On April 25 the Independent , Local 1010, and
Respondent entered into a Stipulation for Certifica-
tion Upon Consent Election in Case 31-RC-1073.
The election was held May 6, 1969.
E. The Discharge of Hector Padron
Hector Minsel Cohen , who has adopted and is
called by the name of Hector Padron, was born in
Beirut and speaks several languages , including En-
glish and Spanish . Though his English speech is
rapid and fluent and his English comprehension is
excellent , his ability to communicate is impaired by
mispronunciation , by accent, and (possibly) by the
injection of foreign words.
Padron , an experienced spray painter , was hired
in the spring of 1966. The other painters were Luis
Sandoval, who had started with Respondent as a
painter's helper in 1964, and Red, the painter lead-
man. Later, Red quit , Orlando Molina was hired,
and Sandoval was appointed leadman by the then
superintendent , Jack Lannon. About 2 weeks after
Stassi became superintendent in September 1967,
Sandoval complained to him about Padron's con-
duct and he continued to complain to Stassi about
Padron to at least January 1969. Padron also vo-
iced complaints to Stassi , with whom he had been
friendly when both were production workers, about
Sandoval. Padron complained that Sandoval was
taking all the good jobs for himself and Molina was
giving Padron all the difficult ones, and voiced the
somewhat contradictory complaints that Sandoval
would not talk to him and he should not be
required to take instructions from Sandoval
because Padron 's knowledge of painting was so
much greater than that of the leadman . The situa-
tion in the paint department in 1968 was aptly
described by Stassi as: "Nobody liked anybody.
Everybody was mad at everybody ." On several oc-
casions Stassi called all the painters and helpers
into his office " to pacify them as well as I could."
Sandoval testified that at these meetings:
Stassi was telling us that we should be more
companionable among ourselves and try to get
along . Just because we were Latins , we should
have been able to get along much better than
usual . He was advising us to get along in the
best personal way.
At some time in the summer or autumn of 1968
Padron was discharged by Stassi, who testified:
Q. Did you call him into your office?
A. Yes.
Q. And what did you tell him at that time?
A. [ told him I was going to fire him.
Q. What did he say?
A. He wanted to know the reasons for the
dismissal.
0. Did you tell him?
A. Yes, I told him.
Q. What did you tell him?
A. I told him because his rejections were
too high and the fact that he would not take
orders.
Q. And what did he say at that time, if
anything?
A. He asked for another chance.
Q. And did you give him that chance?
A. Yes.
The occurrence is more graphically described by
Padron:
Stassi had some argument with me . I don't
know what its for. Oh, I think something and
they had dirt. And I paint the second time, and
really dirty you know. It's got dirty- it comes
out so dirty, you know .... I tell him , " It's no
my fault ... I don't mix the paint . Tell the
leadman . He the one that mix the paint ......
So I used the same paint Sandoval gave it to
me, and still Stassi didn't like the color, but it
wasn 't really good for the color . So this-Stassi
at this time , I don't know what he had in mind.
Anyhow he is disgust with me , and he said,
"No, you erase." So I raise my voice. So I
discussing-so he got so mad at me he said ...
he said " Ho, ho , ho. Don 't holler at me.
Don't"-he say , "I never say this . This is the
way I talk."
So he say, "You through over here." Just
like that.
So he called take my card , punch me out,
and say "You through." You know fired.
Later the same day Sandoval , Padron, and Molina
were called to Stassi 's office and given a lecture
about cooperation and getting the product out and
Padron testified that he was told : "Come back to
work and forget about it .... Please come back to
work and be all together. Be nice , Forget about it."
On one occasion Padron was called to Weiss' of-
fice by Stassi . Padron placed the date as 2 days fol-
lowing the discharge and rehire by Stassi. Weiss
and Stassi place the date as early January 1969.
Weiss testified:
Mr. Stassi said that Mr . Padron was still not
taking orders or instructions from his leadman,
Mr. Sandoval . Mr. Stassi also stated that
Padron was not giving us the quality ; it was still
marginal.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Padron] said that he would make efforts to
improve the quality of his work and he also
stated that he would take steps to cooperate
with his leadman.
0. Did you say anything at that time?
A. I-at that time, I told Mr. Stassi , in front
of Mr . Padron , that if there were any more oc-
currences in which Padron did not take orders
from his leadman , that he was supposed to be
discharged immediately.
Q. Was there anything else that you said?
A. Not that I recall.
Q. Was there anything said about this warn-
ing being final or not?
A. Yes, I had told Mr. Stassi that this was
the last time that I wanted to hear anything re-
garding the insubordination and not taking or-
ders regarding Padron , and that the next time,
he would have to be discharged.
0. And was Mr. Padron present at the time?
A. He was standing right next to me.
Stassi testified that upon receiving a complaint
from Sandoval that Padron would not take orders
he took Padron to Weiss ' office where he told
Weiss that Padron would not take orders and his
paint work was rejected , that Padron said he was
going to do better, and that Weiss said that this was
Padron 's last chance and the next time to fire him.
Stassi further testified that there was nothing of
value to him in the meeting and "Most everything
else went through me as far as conversation was
concerned."
Padron testified:
Mr. Stassi wanted first to keep all the talking.
He no wanted me to talk . The other way he
told something-I told him-Mr. Norman first.
He wanted to know what I hear.
So he say he asking the other way to give me
a chance to explain . So he said , "Only listen
what Mr. Stassi told me."
So this is what : I came hear all the story
about the-and I don 't like it . You have to go
by the store. I am not talking about that. I
thought it was seniority , and all the overtime,
and like the time my leadman don't talk to
me-I have to find out what job to do or
something.
And Mr. Weiss said to me he no believe in
seniority . And I really said some words at that
time-I am sorry . I don't want to say that here.
So he said , so that way , " I don't believe in
seniority."
So what are you going to do? You see, the
boss told you he don't believe in your seniority
nor nothing. So at the same time I can't-
everybody talk to me-accuse me, and I can't
say a word.
Q. Just relate what was said at the conversa-
tion . Did you say anything at all?
A. No. I tried to talk to him about seniority
about my job and everything. He was just talk-
ing nothing . He was just talking about general
work he wanted to get out.
He had some part he wanted to leave, and he
wanted it to leave.
0. What did Mr. Stassi say?
A. Stassi was-at that time Mr. Weiss was
talking . Mr. Stassi listened.
Q. Now tell us what Mr. Weiss said.
A. First Mr. Weiss talked to me about the
store-go to the store and buy something for
each for $5 and you don 't like. You no like
what you pay $ 5 for so you take and go
another place.
After that he said , " How you like working
here?"
I work here for three years, and I never had
any complaint or trouble with me.
So he said to me-so he said "What do you
want to keep?"
I ask, "How many troubles?"
He said, "No, I never had any troubles and
complaints with you . I want to keep you in that
work . I want you to come back to work, and
we work together" you see-you know what I
mean.
So the only thing I said when I was talking
about my overtime and everything, he say he
no believe in seniority.
Q. Did anyone mention a strike?
A. Yes sir, Mr. Weiss asked me the last
word , " Do you know anything about a strike?"
I say, "No."
Padron specifically denied that he was accused
by either Weiss or Stassi of disobeying any order of
Sandoval , denied that Weiss warned him in any
way, and denied that he was told this was his last
chance or that he would be discharged if work and
conduct did not improve.
On another occasion, which was placed by Stassi
about the end of 1968 and by Heath in early 1969,
Padron and Sandoval were called into Stassi's office
and Heath was called in at Padron's request.
Neither Sandoval nor Stassi described the meeting.
Padron testified that he was accused by Stassi of
having too many rejects , Heath in Padron 's defense
replied that Padron painted just like everybody
else. Heath testified that he told Stassi that while
Padron had quite a few rejects, other painters had
rejects too, though not quite as many as Padron,
and all painters had some good days and some bad
days . The meeting ended with Stassi telling them all
to go back to work and to try to cooperate with
each other.
The paint used by Respondent is quick-drying
metallic enamel . The more expensive items which
are marketed under the "Stantron" brand are
painted in one or more of eight different colors. In-
terior mounting angles in the Stantron product are
WYCO METAL PRODUCTS
painted black. "Wyco" items, a less expensive
product, are painted either black or silver-grey
hammertone. Final assembly of all "Stantron"
items and of the larger "Wyco" items is under the
supervision of Heath, who inspects the paint on
each part before assigning it to an assembler. Heath
returns to the painter for correction every part
which does not come up to Respondent 's standard.
Parts are returned by Heath if the paint is too hard,
too soft, shows a run, shows a bubble, has a mottled
effect, or shows particles of dust on or under the
surface. Since each painter signs his own work,
each painter is required to correct his own errors.
Correction is effected by rubbing the bad spot or
spots with a fine grain sandpaper and repainting.
Each such return is called a "reject."
Six witnesses in this proceeding gave their esti-
mates of the number of rejects in the work of each
of the three painters during the year immediately
preceeding the discharge of Padron. Sandoval's
estimate was: Padron, 70 to 100 percent rejects,
and Molina and Sandoval, 10 to 20 percent rejects.
Padron's estimate was: Padron and Sandoval, 3 to 5
percent rejects, and Molina, 20 percent rejects.
Stassi 's estimate was: Padron, 20 to 40 percent re-
jects, and Sandoval and Molina, 5 to 6 percent re-
jects. Heath's estimate was: Padron, 70 percent re-
jects, Molina, 40 percent rejects, and Sandoval,
fewer rejects than Molina. Suarez testified that
Padron painted only silver-grey hammertone "-
Wyco" items and that 50 to 75 percent were re-
jects. Molina testified: "Almost always they
returned all the majority of the pieces that
[Padron] was painting."
Most of Padron's difficulty occurred with the
blue Stantron products and in mid-January, after
the meeting with Weiss and after the meeting at-
tended by Heath, Stassi instructed Sandoval to
restrict Padron to black enamel . From that time
until the date of his discharge there was no com-
plaint about his work or his conduct.
On Wednesday night, March 12, Sandoval
telephoned Stassi and said that he would not be in
the next day. Stassi testified that on the following
morning , March 13, he gathered Molina, Padron,
and their helpers together and announced that San-
doval was out that day, that Molina would be acting
leadman and to take orders from him as if they
were taking orders from Sandoval. All nodded their
heads. Stassi continued:
Q. Now, what happened during the day
after that?
A. Mr. Molina came into my office and told
me that there were some rush orders that had
to be gotten out, and he had asked Padron to
paint them and he would not take his orders.
0. What did you then do?
A. I immediately went into the paint shop
and I told him that I wanted him to do them,
and he started to give me an argument. And
then, at that time, I says, "O.K., you go ahead
and start on the black."
911
Q. Now when you say he "gave you an argu-
ment," what did he tell you?
A. Just the same thing , that he was a better
painter than Molina or Sandoval and ... he
didn 't think or didn't feel that he should take
orders from an inferior painter.
0. Did you tell him that he should take
those orders?
A. Absolutely.
Q. What did he say?
A. As I said, he gave me a little problem as
to what-and I just walked off on it.
Q. What did you then do?
A. I said, I put him back on the black, and I
went back to my office and decided to let him
go.
Q. And did you talk to him that day, later?
A. No, except for the fact to "See me in my
office."
Q. And when he came into your office, did
you have a conversation with him?
A. No-well the conversation I had with
him was to the fact that I was letting him go
because he would not take orders.
Q. Did he say anything?
A. He said nothing, no.
Orlando Molina testified:
Q. Now in the morning of the day that
Padron was fired, did Mr. Stassi have a talk
with the painters in the paint department?
A. Not that I should remember.
Q. Did he say anything to you and to
Padron?
A. The only thing that Mr. Stassi said was
that I should representing Luis Sandoval,
because he wouldn't be there during that day.
Q. Was Padron present when Mr. Stassi said
that?
A. All of us were there.
0. Now in the course of the day, did you
give Padron any instructions?
A. In the morning.
Q. And what did you tell Padron?
A. There were several parts to be painted,
which they were needing at the assembly. I told
Padron if he could paint those parts which
were needed in the assembly, because I also
was painting other parts which were also
needed in the assembly.
And he told me that there was no reason
why he should be painting that.
Q. Did he say anything further?
A. That he was not going to paint that. He
went out, and he brought in some frames, and
he started painting them.
Q. Now when he said he would not paint it,
did he at all mention Luis Sandoval?
A. He said, "Those parts have been started
to be painted by Luis Sandoval first"-that he
was not going to work on the pieces that had
been started by Luis Sandoval.
0. What did you do then?
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. As they were in need of those parts, I
could not do it at the same time , so I went to
say to Mr. Stassi what I had told Padron, and
that he did not pay attention to what I was
telling him.
Q. Did you tell Mr. Stassi what Padron had
answered you?
A. Yes.
Q. After you told this to Mr. Stassi , what did
you do?
A. I went on painting.
No helper was called to corroborate any of the
foregoing , although at least two and possibly three
helpers should have heard the announcement of
Molina 's new status , and Padron 's helper, at least,
should have heard the conversation which Stassi
had with Padron.
Padron testified on direct examination that at
3:45 p.m. on March 13 Stassi told him to come to
the office after he punched out at 4 : 30. When he
entered the office Stassi was alone and they had the
follwoing conversation:
A. Well, the first thing he said, he said,
"Hector, I really am sorry I have to do that, but
you gave me a lot of trouble . I have to let you
go '
I asked him again, "What for? For union ac-
tivity?"
He said , " You gave me a lot of trouble, and I
have to save myself."
So he take a check and give it to me.
And I asked him again-he was discharging
me for union activity?
He said , " It's not going to be that."
I said, " I see you in court."
I asked him again , " Mr. Stassi , I see you in
court."
He say-again , he gave me the check, and
go.
Q. At the time that Mr. Stassi discharged
you on March 13, did you have any conversa-
tion with him regarding cards?
A. Well,-well, those were union cards?
Q. Yes.
A. I said day before.
Q. Did you have any conversation with Mr.
Stassi at the time he was discharging you about
the cards?
A. No.
On cross -examination Padron testified that on
March 13 Stassi did not tell him that Molina was in
charge , that Molina did not ask him to do anything,
and that Stassi did not speak to him at all about
work on March 13. He also testified that Stassi in
the exit interview told him what Stassi meant by "a
lot of trouble ." Stassi was referring to the fact that
on the day before Padron had lied when he said he
did not have cards. Having some uncertainty about
the testimony , I inquired:
0. On your last day when you were working
for the company- in your last talk with Mr.
Stassi , just that one time , did Mr. Stassi say
anything about the cards?
A. The last day?
Q. The last day , when you were discharged.
A. No sir.
On redirect examination , after his recollection
was refreshed by reading his pretrial statement,
Padron testified that Stassi , in the exit interview,
said " that somebody saw [Padron ] passing the
union card and somebody take one of the cards and
put it on his desk in the office , too, and this is the
way he find out," and that Stassi also asked : "Well,
yesterday, when I asked you about passing cards,
did you lie to me?"
Recalled on rebuttal , Padron testified that on
March 12 he had been assigned by Sandoval to
paint doors and sides of cabinets with blue metalic
enamel and that he continued to work on this as-
signment through March 13. On cross-examination
he testified:
0. Now, you say that except to say "hello,"
or "hi, " to Mr . Stassi , he A. That 's right.
0. Did he discuss your work with you at all
that day?
A. No sir.
Q. Did you discuss your work with him?
A. No, sir. I no talk to him that day.
0. Did he discuss with you anything about
instructions?
A. I say no. I no talk to him.
Q. Nothing?
A. Nothing . I almost say to him that one
time that day-twice.
0. And the one time when you said "Hi"?
A. One time when I told how much I paint
that day and he walk away from me-and the
punch clock.
Q. When was this?
A. The day I got fired . The day he
discharged me.
Q. Did you have a conversation with him
about how much-
A. I told him how much I doing a good job
that day. I got that 14 frame . Yes, I told him
about that that day.
Q. Was this when he discharged you that
you told it to him?
A. That day he discharged me.
0. You told him you did 14 frames that
day?
A. That's right . This was about 12 o'clock. I
told him that this one time I saw him , and I saw
him again , the second time I saw that day, I
said about 3:30 or 4 o'clock when he call me
"Go see me in the office." After 4:30.
Q. So now you tell us you did have a con-
versation with him before 3:30?
WYCO METAL PRODUCTS 913
A. He never answered me or say anything to
me. I talk to him. I told him, "Stassi, this is
what I did." I say, "This is a good work. I did
it." I was thinking I do a good job and I told
him.
Q. And then it is your testimony that after
you told him how much good work you did, he
fired you?
A. (No response)
Q. Is that what you told us?
A. I said I work-what I told him.
Q. Did Molina at any time on March 13th
tell you to do any work?
A. No, sir.
After Padron's discharge, Henry Austin, with
whom he rode to work, reported to Respondent
that about 2 weeks before the discharge, Padron
stated to Austin: " I am going to bust Norman. I
have won two of these cases and I will win this
one." On cross-examination Austin testified that
Padron also told him that Independent was a com-
pany union and that Local 1010 would bring
greater benefits including job classifications,
seniority, and higher wages.
F. The Discharge of David Magana
David Magana was hired as an experienced
power brake operator on April 14, 1967. Sometime
in the fall of 1968 his machine jammed. Prior
thereto a pulley on the machine had suffered a mal-
function, with the result that the machine was not
putting out its full-rated power. This fact had been
reported to Stassi who had ordered a new pulley
and an outside mechanic to install it, telling Gliha
that since the machine was still working to keep on
using it. As soon as the machine jammed, the fact
was reported to Stassi. Shortly thereafter the
mechanic appeared and replaced the defective pul-
ley. Gliha, Whitton, and Magana, in the presence of
the outside mechanic , unjammed the machine,
breaking an essential part in the process, and
putting the machine out of service for a period of
about 2 weeks. It was repaired and restored to
operation by another outside mechanic. When
Weiss received the repair bill in December 1969 he
told Stassi to discharge Magana. Stassi reminded
Weiss that the labor market was very tight and it
might not be possible to obtain a competent
replacement. Weiss then agreed that Magana's
discharge could be deferred, but wrote down the
amount of the repair cost (about $700) on a sheet
of white paper and told Stassi to show it to all per-
sons concerned. Stassi gave the paper to Gliha, with
instructions to show it to Whitton and Magana. In
February 1969 Magana's machine jammed again. It
was released by Stassi and Whitton without
damage.
Magana met with the Local 1010 representative
at the restaurant on March 4 and spoke in favor of
Padron's proposals at the meeting in the Auto Wor-
kers hall on March 11.
At 3:30 p.m. on March 13, Magana punched out,
went to the telephone company where he made a
deposit to obtain a new telephone, and went home.
Prior to punching out he had looked around the
shop for Stassi and, failing to see him, had told
Gliha that he had business to attend to and Gliha
gave him permission to leave. Shortly before 4:30
(quitting time) Stassi asked Gliha where Magana
was "because he wanted to talk to him about
something real important." Gliha told Stassi that he
had given Magana permission to leave. Stassi
replied that Gliha had no such authority.
Stassi had final checks prepared for both Padron
and Magana and presented them to Weiss for signa-
ture. Neither he nor Weiss could remember
whether the checks were presented at the same
time. As to Padron, Stassi stated that Padron had
again refused to follow orders. Stassi gave Weiss no
reason for the discharge of Magana. Stassi at 4:30
p.m. telephoned Magana's home, spoke to his
sister, and left word for Magana to return the call
as soon as he arrived. Magana received the message
about 5:30 p.m. and called Stassi who said there
was an emergency and he had to see Magana right
away. Magana drove directly to the plant where he
was met in the parking lot by Stassi.
Magana testified:
Q. Well as we walked over to his office, I
don't think he started talking right away, but as
soon as we got in the office, he says, "Well,
David, remember that mess we had about
three-four or five months ago about the brake
breaking down?" or something like this.
I said, "Yes."
"Well, Norman just got a bill for an awful lot
of dollars, and he's madder than hell. And I'm
sorry, but I will have to let you go."
And-well, I was stunned. I didn't know.
And he says,-he mentioned something
about, "Look at me. I being a mess. You are in
the act of going now, so I be in a mess."
0. Did you say anything to Mr. Stassi?
A. Well, he mentioned Hector. I knew that
it was something about the Union deal, and
that's what I said to him, "You know this is not
for the brake. This is for the union deal."
And he acted surprised. And he says, I don't
know about the union. I don't know what you
mean.
Q. Did you say anything else to Mr. Stassi?
Did he say anything else to you?
A. Well, not-not-oh, he asked me too,
where was I at quitting time.
I answered that I had to go earlier, and that I
had talked to Ray Gliha about it. He didn't say
anything else.
Stassi testified:
A. I told him I was going to have to let him
go because I did not allow anyone to leave the
premises without my permission-or George
Suarez'.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0. Now had you spoken to George Suarez
that day?
A. Yes.
0. What did Suarez tell you?
A. He said, "No," he hadn't seen him.
0. Now what did Magana say when you told
him that you were going to let him go?
A. He didn't say-what did he say?
I don't recall him saying anything. He kind
of laughed and I handed him his check.
Q. Did he mention anything about having
permission to leave?
A. He said that he had permission from Ray
Gliha.
Q. Did you say anything to him about that?
A. I said Ray Gliha has no authority to give
permission of any kind.
0. Did you make mention of anything else
at that time?
A. I don't recall.
On the same date on which he received a copy of
the charge in Case 31-CA-1368 and an invitation
from the Regional Director to state Respondent's
position, Mr. Weiss replied:
Magana was employed as a power brake
operator. During his employment, he was
directly responsible for damaging a power
brake requiring approximately $1,000 in repair
work. In addition to the damage, this particular
piece of equipment was "down" for over two
weeks. This loss of 2 week production time
cost this company approximately $1,000.
Subsequently, despite instructions and
guidance from our production manager,
Magana "jammed" the same power brake
twice. Fortunately he was intercepted before
he took steps to "un-jam" the brake, so that
additional damage was not incurred. Over and
above the foregoing described damage, the
quality of his work was marginal . This com-
pany (small by all governmental standards)
cannot afford destruction, intentional or unin-
tentional, of its equipment for all the obvious
reasons.
Weiss testified that he first learned from Stassi in
April 1969 that Magana had been discharged for
leaving the shop without Stassi's permission . Stassi
testified and Weiss denied that he and Weiss talked
about the original charge on the day it was
received.
In his brief to me Respondent's counsel states:
"David Magana, a power brake operator, was
discharged by the Respondent on March 13, 1969
for absenting himself from his work during the day
without first obtaining permission."
On May 9, 1967, there was posted on the bulletin
board by the timeclock the following notice:
1. Any employee who incurs an injury, while
on the job, during work hours, and requires
medical attention:
A. Must see Rose Padilla for first treatment.
If Rose Padilla is not present, see George
Suarez.
B. If Medical treatment by a doctor is
required, the employee must receive permission
from the plant superintendent before leaving
the plant to receive medical attention.
C. The first visit required to obtain medical
treatment for an injury incurred on the job will
be "on company time".
D. Any and all visits to the doctor, after the
first visit for an injury incurred on the job, is
on the employee time. If the employee leaves
the plant premises to go to the doctor:
1. He must receive permission from the
plant superintendent or George Suarez.
2. He must "punch-out" and "punch-in"
on his time card.
2. The above must be adhered to-there will
be no exceptions.
3. Any employees who leaves the plant
premises without permission during the work-
ing hours-will be subject to discharge.
Stassi testified that the notice was posted because
prior thereto when employees had an accident they
would just say they didn't feel good and would
leave the job. "They wouldn't ask me. They would
ask their leadmen or just leave, period."
The purpose of posting the notice was to the
fact that no one could leave without my per-
mission, and also the fact that if they had to go
to the clinic for the second time, they would
have to go on their own time.
Stassi further testified that since May 9, 1969, only
two employees had left without his permission and
that both had been discharged. His description of
the incidents demonstrates that both were volunta-
ry quits.
Well, Kimmich walked right out in front of
me, and I told him to do "something." So that
happened right there. As far as Lowe was con-
cerned, he evidently checked out at lunch time
or thereabouts,and never showed up again.
Gliha testified that he had authority .to release
employees and had exercised that authority in the
case of Whitton, Barr , and Bogues. Later he would
tell Mr. Stassi . Whitton testified that in July or Au-
gust 1968 while he was at home for lunch an emer-
gency came up and he returned to the plant and
told Gliha that he had to go back home. He did not
see Stassi . He did not work the remainder of that
afternoon and nothing was said to him. On a Satur-
day toward the end of summer 1968 Whitton got
sick and went home with only the permission of
Gliha. Suarez was in the plant, although Stassi was
not usually there on Saturday. Geeter, a witness for
the Respondent and whose testimony is generally
reliable, testified that in September or October
1968:
I was putting away some stock over there,
because the thing was-I didn't have nothing
to spot weld, so I asked my leadman [Kelly]
could I go home. So he told me to put away
WYCO METAL PRODUCTS
some stock there, and if I wanted to go, I
could go.
Stassi testified that the reason he called Magana's
home at 4 :30 p.m . amd asked him to return to the
plant was to avoid payment of "call in " time the
following morning . Although the same contract
provision was in effect when Kimmich and Lowe
walked out early, neither was recalled by Stassi.
Gliha testified and Stassi denied that on March
14 Stassi stated that Magana had been discharged
for damaging the brake. Whitton testified and Stassi
denied that on March 14 Stassi told Whitton that
Magana had been discharged for damaging the
brake.
G. The Discharge of Harry Barr
Barr was hired October 18 , 1967, as a helper and
became the shear operator in November or
December 1968. He was president of Independent
in November and December 1968. He attended the
March 11 meeting in the Auto Workers hall and
signed a Local 1010 card at the invitation of
Chester Whitton. Barr testified that on March 1 1 or
12, Stassi, holding a Local 1010 card in his hand
and in the presence of Chilton, asked Barr if he had
signed such a card . This testimony was contradicted
by Stassi and by Chilton. Barr testified that on
March 18 , during working time, Heath asked him
to sign Heath 's petition and that Barr refused, ask-
ing Heath how he could do this on company time
and why Local 1010 could not have the same
privilege . Heath and Barr agree that the only thing
Heath said was " sign it if you want to sign it." Barr
did not sign . Barr testified and Stassi denied that as
Heath was walking away Stassi walked up and Barr
inquired.
I asked Mr. Stassi if another employee that was
on working time could come around with a
petition like this during working hours while I
am working on my shear . And Mr . Stassi said
to me, he said something like this-maybe
some kind of wise crack-I don't exactly re-
member what it was, but he said that, "They
are on salary. So it is none of your business."
Barr testified that during breaktime on some date
between March 16 and 19, Stassi, addressing Gliha,
Whitton, and Barr, said "There 's the three
troublemakers, and if you don't like it here, why
don't you go find another job."
One of Barr 's duties was to transport sheet metal
from the steel warehouse to the shear which he
operated. The warehouse is a room about 100 feet
long and 35 feet wide.
One end of the room opens onto a loading and
receiving truck dock. At the other end of the room
is a sliding steel door which gives access to the
production area . A steel " I" beam attached to the
ceiling extends the length of the room from the
truck dock to the wall which is pierced by the door
opening . The crane mechanism contains an electric
motor by which it is propelled from one end of the
915
beam to the other and which operates a winch to
which is attached a steel cable. The crane hook
hangs on a swivel from a pulley block . The pulley
wheel is about 1 foot in diameter and its axis is
parallel to the beam . Thus the hook is free to swing
pendalum fashion parallel to the beam , but cannot
swing in any other direction.
Suspended from the hook by an "eye" bolt is the
sheet hoist . The swivel permits the sheet hoist to be
rotated over 360 degrees , and the hook permits it
to be tipped in any direction.
Directly under the "I" beam are seven piles of 4-
foot by 10 -foot sheet metal . The sheet steel is in
bundles , pound by steel bands to wooden pallets.
The sheet hoist is so designed that it holds the en-
tire bundle in a firm grasp when the lifting
mechanism is activated . Aluminum sheets, on the
contrary , rest loosely on a different type of pallet
called , very appropriately , a "skid board" and
between each two sheets of aluminum is a sheet of
paper . The sheet hoist grasps the sides of the "skid
board" firmly but does not touch the aluminum.
When the "skid board " with its load of aluminum
sheets is raised there is no mechanical restraint to
prevent them from sliding off the end of the "skid
board."
The long axis of the piles of sheet metal is per-
pendicular to the " I" beam . On March 24 Barr at-
tached the sheet hoist to a "skid board " on which
was piled 20 sheets of aluminum. He pushed the
"lift" button to raise the load. He then pushed the
forward button and, steadying the load with one
hand, walked with the crane toward the shear table.
Before the load reached a point directly above the
shear table , he turned the load . Prior to turning the
load the long axis of the metal was perpendicular to
the beam . After the load was turned , its long axis
was parallel to the beam. When the load was
directly above the shear table, Barr removed his
finger from the "forward" button. The mechanism
on the "I" beam stopped. The load, governed by in-
ertia continued to swing forward. On the back
swing of the pendalum , the upper sheets of alu-
minum , governed by their inertia , and insufficiently
restrained by friction, continued to move forward,
changing the center of gravity and causing the
"skid board" to tip. The result was that the sheets of
aluminum descended like a pack of cards onto the
table , across the pedestrian passage , and against the
door. As the load started to fall, Barr, to avoid inju-
ry to himself, jumped back. Weiss, hearing the
noise , emerged from his office, saw the mess, and
told Chilton who was standing nearby to call Stassi.
After telling Stassi to take Barr off the shear, Weiss
returned to his office and shortly thereafter told
Stassi to discharge Barr.
Barr worked on a punch press for the remainder
of the day and was discharged at 4:30 p.m. by Stas-
si.
H. Concluding Findings
1. Respondent's superintendent , George Stassi,
427-258 O-LT - 74 - 59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did on March 12, 1969, interrogate employees con-
cerning their union activities . Interrogation of Du-
part and Padron is admitted . Stassi testified that he
suspected that a contraband item , i.e., discount
house cards , was being distributed . This may be
true , but I am convinced that Stassi , being a man of
energy and determination , enjoying first-name rela-
tions with the workmen in the shop, and suspecting
the existence of contraband , did not abandon his
investigation until he determined what that con-
traband was . By 4:30 p.m. on March 12, George
Stassi knew or suspected that Padron was soliciting
membership in an outside union and that Magana
was implicated in this activity.
2. Respondent did not threaten employees with
discharge if they solicited for Local 1010. The
General Counsel relies on the following testimony
of Leadman Raymond Gliha:
On March 12 or 13, 1969, Stassi came up to the
punch press on which Gliha was working . Stassi had
a local 1010 authorization card in his hand and
asked if Gliha had ever seen one of these cards be-
fore.
And I said , "No." Like I had never seen one.
And he said to me, he said, "Well, if I ever
catch anybody passing these out , I will fire him
on the spot."
Stassi denied ever having made any such state-
ment , and asserted that to the very time of his
testimony in this proceeding , September 11, 1969,
he had not seen a Local 1010 card . I am not per-
suaded either by Gliha's assertion or by Stassi's
denial . Gliha 's testimony on rebuttal , that Stassi
himself had brought discount cards into the shop
and instructed Gliha to " tell the guys they can have
these ," was singularly unpersuasive . I do not be-
lieve that Stassi , with his long and varied ex-
perience in the sheet metal manufacturing industry,
would conceal his unlawful intent not only from all
other employees but from Weiss himself, yet freely
disclose it to Gliha.
3. Stassi did not tell employees that they should
quit their jobs with Respondent if they supported
Local 1010. Stassi freely admitted that on many oc-
casions he has told complaining employees, includ-
ing Gliha , that " if I [Stassi ] didn 't like it , and if it
made me sick working here, if it was me I wouldn't
work . I would leave ." This remark was made in
substance to Gliha , Barr , and Whitton during a
lunch period sometime between March 13 and 24.
Gliha testified that on this occasion Stassi , walking
by and addressing all three, said, "Why don't you
leave if you don't like working here ?" Barr then
said something to Gliha about the Mafia , and Stassi
wheeled around saying , "If you are saying that to
me I say I will punch you in the mouth." Barr
testified that on this occasion Stassi said : "There's
the three trouble makers. And if you don't like it
here, why don't you go find another job some place
else?" Barr turned to Gliha and said , " Well, the
Mafia ." Stassi then looked at Barr and said , " If you
say anything about me , I will punch you right
square in the mouth ." Whitton testified on direct
examination that Stassi said : "Well, I see there is
the Mafia trying to organize . Why don 't you boys
give up . If I was y 'all and I didn't like it here, I
would just quit ." On cross-examination Stassi's
words changed to "if you don't like it here why
don't you quit?" Finally on redirect examination
Whitton added the detail:
Harry Barr said something to Mr. Stassi as he
was walking off and Mr. Stassi turned around
and said , "What? " and Harry Barr said he
didn't say anything . And [Stassi ] said "If you
do, I will come back there and punch you in
the mouth."
I conclude that Stassi 's recollection is the more
reliable , in view of the obvious contradiction in the
testimony of the General Counsel 's witnesses and
the general unreliability of the testimony of Barr
and Whitton . Stassi 's remark , though noncoercive,
does constitute evidence of attitude and motive and
is given weight in the 8 ( a)(2) and ( 3) determina-
tions hereinafter made.
4. Respondent did not threaten employees with
reprisals nor tell them to quit their jobs with Re-
spondent if they did not agree to prematurely open
and extend Respondent's contract with Inde-
pendent. The sole evidence tendered in support of
this allegation is the testimony of Whitton. Whitton
testified that at some time which was either shortly
before or shortly after Heath circulated his petition,
Whitton, noting a difference in the attitude of Weiss,
stopped Stassi on his rounds and inquired whether
Mr. Weiss was mad at him. Somewhere in this
conversation or in some other conversation Stassi
"asked me when I was going to draw up a contract
with Mr. Weiss, and I told him I didn't want to
draw it up because they had laid Mr. Magana and
Mr. Padron off and we didn't have a president or
no secretary or treasurer . . . . He said `Well, if
you don't want to draw up a contract, why don't
you resign and let somebody else take over?'
. . . They just said that Mr. Weiss wanted to draw
up a contract because he was going to the hospital."
Although Stassi's all-embracing denial is less than
convincing-he not only denied that the conversa-
tion occured, he denied that any conversation oc-
curred, denied knowing who any officer of the
Independent was, and denied knowing that the
Independent had a contract- I find Whitton's
recital unconvincing. If Stassi's investigation had
been sufficiently complete to disclose the fact that
Padron and Magana were engaged in union activ-
ities, and I find that it was, that same investigation
would have disclosed Whitton's deep involvement
and rendered such statements highly unlikely.
Further ground for viewing Whitton's testimony
with grave misgivings is supplied by his pretrial
affidavit. This statement signed March 26, 1969,
recites: "Kelly told me that Weiss wanted to
negotiate a new contract with new officers because
WYCO METAL PRODUCTS
Weiss was going into the hospital ." In contains
no reference to the highly significant statement
which , on the witness stand , he attributed to Stassi,
although in the same statement Whitton asserts
that he overheard Stassi ask Dupart whether
(Dupart) had signed a card.
5. Heath did prepare and circulate a petition,
partly during working hours. Stassi was aware
that Heath was circulating a petition and neither
granted nor refused permission , consent, or author-
ization . Respondent has no rule prohibiting union
activity on company time and Heath 's activity
did not interfere in any way with his performance of
his normal duties nor did he interfere with the work
of any other employee . In not forbidding this activ-
ity by Heath , Respondent committed no unfair
labor practice.
Stassi testified that he did not know that the peti-
tion was being circulated , that the first knowledge
he had of it was when it was handed to him by
Heath on the evening of March 18, and that he had
no conversation with Heath on that occasion. The
fact that Heath undertook the project because of
the "confusion " and "commotion" in the plant,
which must also have been apparent to Stassi, and
the fact that Heath carried a clipboard throughout
the plant during four rest periods , when Heath was
not normally working and Stassi was normally
present, must have aroused some curiosity in Stassi.
Weiss on March 18 had received a copy of the
charge filed by Local 1010 , had talked it over with
Stassi , and had composed his reply to the Regional
Director . As found above there was nothing im-
proper or unlawful in Heath 's actions, of this activi-
ty is an additional ground for questioning the
general reliability of his testimony.
6. The contract signed March 27, 1969 , was not
a premature extension of the 1955 agreement. The
1955 agreement would have been automatically
renewed for a period of 1 year , absent notice given
and received prior to April 1. It is true that by the
supplemental agreement of 1966, if the basic con-
tract had been renewed , it could have been
reopened for wages only at least 30 days before
June 30 , 1969, but this did not mean that
renegotiation of the entire contract in March was in
any sense premature.
Counsel for Local 1010 argues that Respondent's
execution of a contract with Independent on March
27, 1969 , violated Section 8(a)(2) on the authority
of the Midwest Piping2 line of cases . This argument
fails on two grounds : ( 1) The complaint does not
allege a Midwest Piping violation ; and (2 ) the peti-
tion in Case 31 -RC-1062 having been filed during
the "insulated period " prescribed in Leonard
Wholesale Meats, supra , it did not create a "real
question concerning representation" as defined in
Shea Chemical Corporation , 121 NLRB 1027.
917
7. The $150 presented to Independent by
George Stassi in April 1969 was a "contribution of
financial and other support" to a labor organization
in clear violation of the specific terms of Section
8(a)(2) of the Act. When Independent in the
summer of 1968 voted to distribute its funds, and
the funds were in fact distributed , that money
became the separate property of specific in-
dividuals . Certain individuals gave their own money
to Stassi to invest . Stassi 's obligation , if any, was to
those individuals. He owed no duty , moral or other-
wise, to Independent or to its treasury . The method
chosen by him to make a present to Independent,
i.e., calling all employees together by loudspeaker
in the department presided over by Independent's
president and publicly presenting a check to Inde-
pendent 's treasurer , was an open demonstration
that this was not the act of an individual but the act
of Respondent itself . This action by Stassi at a time
when Independent was engaged in an election con-
test with Local 1010 is strong evidence that
Respondent was prepared to go to any lengths to
encourage membership in Independent and to
discourage membership in Local 1010.
8. Hector Padron was discharged on March 13,
1969, because of his activities on behalf of Local
1010, and because of his activities against Indepen-
dent , and for no other reason. It is true that Padron
was the least efficient of Respondent ' s three paint-
ers. It is also true that he resented the fact that he
was required to take instructions from Sandoval. It
is true that he had been warned by Weiss that any
refusal to take orders from Sandoval would result in
his immediate dismissal . Padron did not after this
warning refuse to take orders from Sandoval.
Padron 's work , restricted as it was by Stassi and by
Sandoval to black , was entirely satisfactory.
Padron 's attendance was perfect. Stassi, having de-
cided to discharge Padron in an effort to discourage
further activity on behalf of an outside union, took
immediate advantage of the opportune absence of
Sandoval . Stassi told Molina , but told no one else,
that Molina "should be representing" Sandoval.
Although Padron's denials , like Stassi 's, are far
from convincing , in this instance I do credit
Padron's testimony that Stassi did not tell him that
Molina would be in charge . Any such announce-
ment would have provoked an immediate outburst.
Padron would not have meekly bowed his head and
immediately thereafter, with Stassi 's words still
ringing in his ears , deliberately disobey Molina. I
believe that Molina answered truthfully when he
testified that Stassi did not "have a talk with the
painters in the paint department " and that he was
untruthful when two questions later he testified that
"all of us were there " when Stassi said that Molina
should be representing Sandoval . I credit Molina's
testimony that about 9 a.m. he requested Padron to
finish some parts which Sandoval had started, and
2 Midwest Piping and Supply Co., Inc , 63 NLRB 1060.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Padron refused . Padron was carrying out or-
ders which he had received the previous day from
Sandoval . To change jobs on the instruction of a
fellow employee , with neither actual nor ostensible
authority , would have subjected Padron to the risk
of immediate discharge . I credit Stassi 's testimony
to this extent : that when Molina reported that
Padron had refused to obey , Stassi immediately
asked Padron whether this was true . When Padron
began to lecture Stassi to the effect that Molina
should not be giving him orders , Stassi was satisfied
that he had attained his objective . Stassi told
Padron to go on with the black ; i.e., continue with
the work to which he had been assigned by San-
doval . Stassi then had Padron 's check prepared and
gave it to Weiss with the simple comment that
Padron had again refused to obey an order.
While Padron 's testimony on rebuttal that he was
working on blue Stantron products on the day of
his discharge , and told Stassi what a good job he
was doing , is wholly incredible , and tends to cloud
all of his prior testimony , I am also unable to credit
Stassi 's testimony that Padron " said nothing" when
handed his final check or checks . This combined
with Stassi 's too facile denial that he knew anything
about any union activity until he was shown the
letter from Padron and Magana on or after March
20, his denial that he had seen a Local 1010 card
prior to September 11, 1969, his denial that he
knew who were the officers of Independent , and his
denial of knowledge of the very existence of the In-
dependent contract tends to cloud his testimony.
I do credit the testimony of Austin ( denied by
Padron ) that Padron said he would "bust Norman."
Since this was not reported to Respondent until
after Padron's discharge , it could not have
motivated the discharge. I further find that this re-
mark and the attitude that it discloses does not
make Padron ineligible for reinstatement . The re-
mark was made in conjunction with Padron's ef-
forts to persuade Austin of the desirability of ad-
herence to Local 1010, and if meant in the sense of
putting Wyco out of business would have defeated
Padron 's objective of obtaining better working con-
ditions for all employees . I am convinced that
Padron , by the words " bust Norman," meant only
that he intended to break through Weiss ' resistence
to any change in working conditions.
9. David Magana was discharged because
Respondent knew or suspected that Magana was in-
volved in the concerted activity in favor of Local
1010 and opposed to Independent . The contention
that he was discharged for leaving work early
without having obtained permission from Stassi is
an after-invented pretext designed to cover and
conceal the real reason for the discharge.
I find that the primary purpose of the posted rule
was to ensure that some responsible official of
Respondent have immediate notice of any industri-
al accident , and a secondary purpose was to avoid
paying employees for unnecessary trips to the
clinic . There was no inflexible rule that no em-
ployee could leave without the prior permission of
Stassi or Suarez . Stassi 's own description of the cir-
cumstances under which Kimmich and Lowe left
demonstrates that these were voluntary quits. The
contract does provide for call -in pay , but this clause
is not applicable to a discharge for cause. The
casual and offhand manner in which Kelly told
Geeter he could go home is fully corroborative of
the testimony of Gliha and Whitton that leadmen
did have and exercised that authority . Stassi was
"angry " and "mad" (his words ) not because
Magana had left early and not because Magana had
failed to obtain his prior permission . Stassi was
"angry " and "mad " because he had been betrayed
by a man whose job he had saved at considerable
personal risk. Stassi had received clear and specific
orders from Weiss to discharge Magana. If the
jamming of Magana 's machine in February had
resulted in monetary damage , it is certain that
Weiss would have held Stassi personally responsi-
ble.
Since Respondent concedes that Magana was not
discharged for jamming his machine, and since the
preponderance of the evidence demonstrates that
he was not discharged for leaving the shop without
permission , only one explanation remains. Magana
was discharged because of his active participation
with Padron in activities designed to change the
bargaining agent of Respondent 's employees.
10. Barr was discharged for culpable negligence
endangering the bodily safety of himself , Chilton,
Padilla , whose work station was nearby, and
possibly other passersby and for no other reason.
On direct examination Barr testified, I believe
truthfully , that he started to turn the load before it
reached the shear table in a position with its long
axis parallel to the beam . After it was conclusively
demonstrated by testimony , photograph , and dia-
gram that this action positively invited accident,
Barr on rebuttal completely changed his testimony.
On rebuttal Barr testified that he carried the load to
the shear table and brought it to rest in a position
where the long axis was still perpendicular to the
"I" beam , that only then did he turn the load,
which, for some inexplicable reason , began to
teeter and fall. He did refuse to sign Heath 's peti-
tion, but as to the conversation on that occasion I
credit the version of Heath . He had not presented
the petition to Whitton because he knew Whitton
was not interested . He had not presented the peti-
tion to Gliha because he and Gliha did not get
along too well. He did present the petition to Barr
with the same statement that he made to every em-
ployee , " read it , sign it if you want or don 't sign it."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , as set forth above,
occurring in connection with the operations of
Respondent described above have a close, intimate,
and substantial relationship to trade, traffic, and
WYCO METAL PRODUCTS 919
commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It has been found that Respondent has engaged
in certain unfair labor practices. It will therefore be
recommended that it cease and desist therefrom
and take certain affirmative action, as set forth in
the Recommended Order below, designed to effec-
tuate the policies of the Act.
CONCLUSIONS OF LAW
1. Wyco Metal Products is an employer within
the meaning of Section 2(2) of the Act and is en-
gaged in commerce and in business affecting com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 1010, United Furniture Workers of
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Electronic Cabinet Makers Independent
Union is a labor organization within the meaning of
Section 2(5) of the Act.
4. By discharging Hector Padron and David
Magana to discourage membership in Local 1010
and to encourage membership in Independent,
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1), (2), and (3)
of the Act.
5. By contributing financial and other support to
Independent, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1)
and (2) of the Act.
6. By coercive interrogation of employees,
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this proceeding, I recommend that Wyco Metal
Products, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concern-
ing union membership, activities, or sentiments.
(b) Contributing financial or other support to
Electronic Cabinet Makers Independent Union, or
any other labor organization.
(c) Recognizing Electronic Cabinet Makers In-
dependent Union, or any successor thereto, as the
representative of any of its employees for the pur-
pose of collective bargaining, unless and until said
labor organization shall have been certified by the
National Labor Relations Board as the exclusive
bargaining representative of such employees.
(d) Giving effect to, performing, or in any way
enforcing its contract dated March 27, 1969, or any
modifications, extensions, or renewals thereof, or
any other contract, agreement, arrangement, or un-
derstanding entered into with Electronic Cabinet
Makers Independent Union or any successor, relat-
ing to grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of
employment unless and until said labor organiza-
tion shall have been certified by the National Labor
Relations Board as the exclusive representative of
Respondent's employees; provided however, that
nothing in this Decision shall be construed to
require Respondent to vary or abandon any wages,
hours, seniority, or other substantive feature of its
relations with its employees which Respondent has
established in the performance of said contract, or
to prejudice the assertion by employees of any
rights they may have thereunder.
(e) Discouraging membership in or activities on
behalf of Local 1010, United Furniture Workers of
America, AFL-CIO, or any other labor organiza-
tion of its employees, by discharging or otherwise
discriminating against employees in regard to their
hire or tenure of employment, or any term or con-
dition of employment.
(f) In any other manner interfering with,
restraining, or coercing employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to Hector Padron and David Magana
immediate and full reinstatement to their former
or substantially equivalent positions, without preju-
dice to their seniority and other rights and
privileges, and make them whole for any loss of
earnings suffered as a result of the discrimination
against them. Reinstatement shall be effected in the
manner described in Chase National Bank of New
York, 65 NLRB 827, 829. Backpay shall be com-
puted in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest added
thereto in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
(b) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military and Training
Act, as amended, after discharge from the Armed
Forces.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
recommended order.
(d) Withdraw and withhold all recognition from
Electronic Cabinet Makers Independent Union, or
any successor labor organization, as the representa-
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of Respondent's employees for the purposes of
collective bargaining, unless and until said labor or-
ganization shall have been certified by the National
Labor Relations Board as the exclusive representa-
tive of such employees.
(e) Post at its plant in North Hollywood, Califor-
nia, copies of the attached notice marked "Appen-
dix.-3 Copies of said notice, on forms provided by
the Regional Director for Region 31, after being
duly signed by an authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.4
RECOMMENDATION AS TO THE
DISPOSITION OF OBJECTION AND
CHALLENGES
It having been found that Wyco Metal Products
did on April 4, 1969, turn over to Electronic
Cabinet Makers Independent Union the sum of
$150, it is recommended that the Board sustain the
objection of Local 1010 and that the election con-
ducted on May 6, 1969, be set aside. It is further
recommended that the challenged ballots cast by
Kelly, Padron, and Magana on May 6, 1969, not be
opened and counted.
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations, and Recommended Order herein shall, as
provided in Section 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 In the event that the
Board's Order is enforced by a Judgment of a United States Court of Ap-
peals, the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall be changed to read " Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
4 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 31 , in writing, within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Governme t
WE WILL NOT contribute financial or gther
support to Electronic Cabinet Makers Indepen-
dent Union, or any other labor organization.
WE WILL NOT enforce or give effect to our
contract with Electronic Cabinet Makers Inde-
pendent Union, but will not take away any
rights or privileges which the contract gives to
employees.
WE WILL NOT discourage membership in or
activities on behalf of Local 1010, United Fur-
niture Workers of America, AFL-CIO, or any
other labor organization of our employees, by
discharging or otherwise discriminating against
employees in regard to their hire or tenure of
employment, or any term or condition of em-
ployment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed in Section 7 of the
Act.
WE WILL offer to Hector Padron and David
Magana immediate and full reinstatement to
their former or substantially equivalent posi-
tions, without prejudice to their seniority and
other rights and privileges, and make them
whole for any loss of earnings suffered as a
result of the discrimination against them.
WE WILL withdraw and withhold all recogni-
tion from Electronic Cabinet Makers Indepen-
dent Union, or any successor labor organiza-
tion, as the representative of our employees for
the purposes of collective bargaining, unless
and until said labor organization shall have
been certified by the National Labor Relations
Board as the exclusive representative of such
employees.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
Electronic Cabinet Makers Independent Union or
Local 1010, United Furniture Workers of America,
AFL-CIO, or any other labor organization.
WYCO METAL PRODUCTS
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 10th Floor, Bartlett Building, 215
West Seventh Street, Los Angeles, California
90014, Telephone 688-5850.