Yaloz Mold & Die Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1981

256 N.L.R.B. 30 (N.L.R.B. 1981)

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yaloz Mold & Die Co., Inc. and Local 810, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
Local 300, International Production, Service &
Sales Employees Union, Party in Interest.
Cases 29-CA-7341, 29-CA-7341-2, 29-CA-
7341-3, 29-CA-7949, and 29-RC-4601
May 18, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
On February 9, 1981, Administrative Law Judge
Joel P. Biblowitz issued the attached Decision in
this proceeding. Thereafter, Local 300, Internation-
al Production, Service & Sales Employees Union,'
the Party in Interest, filed exceptions and a sup-
porting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the Administrative Law
Judge's rulings, findings, 2 and conclusions,3 and to
adopt his recommended Order, as modified
herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Yaloz Mold & Die Co., Inc., Brooklyn, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
Insert the following as paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act."
IT IS FURTHER ORDERED that the election con-
ducted on June 13, 1979, among the Employer's
Herein called Local 300.
2 Local 300 has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
3 In the absence of exceptions thereto, we adopt pro forma the Admin-
istrative Law Judge's dismissal of the allegation that Respondent violated
Sec. 8(aXl) and (2) of the Act by urging its employees to vote for Local
300 in the election conducted on July 13, 1979.
4 We have modified the Administrative Law Judge's recommended
Order to include the narrow cease-and-desist provision which he inad-
vertently omitted.
The Administrative Law Judge's recommended Order provides that a
second election be conducted "as early as possible." In keeping with
Board policy, we shall order instead that the election be held at such
time as the Regional Director decides that the circumstances permit the
free choice of a bargaining representative.
256 NLRB No. 6
employees be, and it hereby is, set aside, and that
Case 29-RC-4601 be, and it hereby is, severed and
remanded to the Regional Director for Region 29
for the purpose of conducting a new election at
such time as he decides that the circumstances
permit the free choice of a bargaining representa-
tive.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
JOEl. P. BIBLOWITZ, Administrative Law Judge: This
case was heard before me in Brooklyn, New York, on
August 25, 26, and 27, 1980. A consolidated complaint
was issued on September 24, 1979, based on charges filed
on July 18 (29-CA-7341) and July 20 (29-CA-7341-2)
and August 8, 1979 (29-CA-7341-3). On October 31,
1979, the Regional Director for Region 29 issued a
Report on Objections, Order Consolidating Cases, and
Notice of Hearing, in which he ordered that Case 29-
RC-4601 be consolidated with Cases 29-CA-7341, 29-
CA-7341-2, and 29-CA-7341-3, and that a hearing be
held before an administrative law judge on certain of the
objections filed by Local 810, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Local 810. On June 30, 1980, a
complaint was issued in Case 29-CA-7949, based on a
charge filed on April 21, 1980. On July 29, 1980, an
order further consolidating cases and notice of hearing
issued, in which all the above-mentioned cases were con-
solidated.
The allegations are that Yaloz Mold & Die Co., Inc.,
herein called Respondent, violated Section 8(a)(l) of the
Act by threatening its employees with plant closure if
they assisted or supported Local 810, and promised its
employees wage increases and other benefits and im-
provements in their terms and conditions of employment
to induce them to refrain from assisting Local 810; it is
also alleged that Respondent violated Section 8(a)(1) and
(2) of the Act by urging its employees to vote for Local
300, International Production, Service & Sales Employ-
ees Union, herein called Local 300, in an election to be
conducted by the Board, and violated Section 8(a)(1), (2)
and (3) of the Act by continuing to deduct Local 300's
dues from the wages of its employees and transmitting
these dues to Local 300, after the expiration of its collec-
tive-bargaining agreement with Local 300. In addition, it
is alleged that Respondent violated Section 8(a)(l), (2)
and (3) of the Act by its layoff and failure to recall to
employment Aladino Santiago and Miguel Rosario; by its
hiring new employees to replace Santiago and Rosario
and conditioning their hire upon their support for Local
300; and by its layoff and failure to recall to employment
Mohan Singh.
Pursuant to a Stipulation for Certification Upon Con-
sent Election, an election was conducted on July 13,
1979, at which time 33 ballots were cast for Local 300;
18 ballots were cast for Local 810; 2 ballots were cast
YALOZ MOLD & DIE CO., INC. 31
against the participating labor organizations; and there
were 7 challenged ballots. Local 810 filed timely objec-
tions to the election. In his Report on Objections, Order
Consolidating Cases, and Notice of Hearing, the Region-
al Director overruled certain of said objections.
On February 25, 1980, the Board issued a Decision
and Order Directing Hearing on Objections and Re-
manding to Regional Director, in which it ordered the
following objections be heard by an administrative law
judge:
1. (a) The Employer, by its officer, agents and
representatives, on or about June 1, 1979, laid off
bargaining unit employees Miguel Rosario and Ala-
dino Santiago because of their membership in and
activities on behalf of Local 810. Thereafter, the
employer hired replacements for the above named
employees so as to avoid recalling such laid off em-
ployees prior to the holding of the election sched-
uled for July 13, 1979.
(b) The Employer, by its officers, agents and rep-
resentatives, on or about June 1, 1979 through June
20, 1979, hired replacement employees, who prom-
ised to vote for Local 300, International Production
Service and Sales Employees Union, in the election
to be held on July 13, 1979.
2. On or about July 2, 1979, and continuing
thereafter, the employer unlawfully gave assistance
and support to Local 300, International Production,
Service and Sales Employees Union by:
(a) Speaking with bargaining unit employees
and urging them to vote against the petitioner
and to vote for Local 300, International Produc-
tion, Service and Sales Employees Union;
(b) By permitting officers, agents and repre-
sentatives of Local 300, International Production,
Service and Sales Employees Union to enter its
premises during working hours during the week
of July 11th for the purposes of campaigning
with respect to the July 13th election, but exclud-
ing Local 810 from engaging in similar campaign-
ing among bargaining unit employees within the
company's premises.
3. On or about June 1, 1979, and continuing
through July 13, 1979, the above named Employer,
by its officers, agents and representatives, promised
bargaining unit employees that they would be grant-
ed wage increases if they voted for Local 300, In-
ternational Production, Service and Sales Employ-
ees Union, rather than the petitioner in the election
scheduled for July 13, 1979.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after consideration of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation with its princi-
pal office and place of business located at 239 Java
Street, Brooklyn, New York, is engaged in the manufac-
ture, sale, and distribution of metal products, such as dis-
play cases, store fixtures, machine parts, and related
products. During the past year, a period representative
of its annual operations, generally, Respondent, in the
course and conduct of its business, purchased and caused
to be transported and delivered to its Brooklyn plant
goods and materials valued in excess of $50,000 directly
from States other than New York State. Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that Local 300 is a
labor organization within the meaning of Section 2(5) of
the Act. As regards Local 810, Respondent admits that
Local 810 satisfies the standards set forth in Section 2(5)
of the Act, with one exception. That exception, as stated
by counsel for Respondent, is that an employer with a
collective-bargaining agreement with Local 810 wrote to
Local 810 stating that Respondent had an unfair compet-
itive advantage over it because Respondent's employees
were not represented by Local 810. Respondent's posi-
tion appears to be that Local 810 lost its labor organiza-
tion status because it was, in some manner, acting as an
agent of this employer in attempting to organize Re-
spondent's employees. This is not even correct factually
as the letter (not received into evidence because it was
never properly authenticated) was written after Local
810 filed its petition herein. Regardless, I find that Local
810 is a labor organization within the meaning of Section
2(5) of the Act.
111. THE FACTS AND ANALYSIS
In February 1979,1 Local 810's office received a tele-
phone call (from an individual who was never identified)
mentioning Respondent's operation. John Chambers,
business agent for Local 810, was given the message and
went to Respondent's premises. After observing that a
large number of Respondent's employees were Hispanic,
he requested Luther Quinones, field representative of
Local 810, to assist him in the organization of Respond-
ent's employees. After that day, Chambers and Quinones
went to Respondent's premises on a daily basis, observ-
ing and speaking with Respondent's employees on a
corner about four houses from Respondent's plant; after
Local 810 filed its petition in this matter, Chambers and
Quinones began speaking with the employees in front of
Respondent's plant.
On the first day they met an employee named Pedro
who informed them that the Local 300 shop steward at
Respondent's plant was Barbara (at the time, Respondent
and Local 300 were parties to a collective-bargaining
agreement effective August 26, 1976, through August 25,
1979). Barbara met with them and informed them that
Respondent's employees wished to change unions be-
cause they were not receiving any benefits from Local
300. They told her that if a majority of the employees
U tnless otherstise stated, all dates herein are in 1979
YALOZ MOLD & IE CO., INC.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wished to change unions they could do so. Within the
next few weeks, they spoke with employees more regu-
larly, particularly German Ramirez and Mohan Singh,
on the street, on the corner, and, on occasion, at a res-
taurant on the same corner. Chambers and Quinones
gave Local 810 authorization cards to Ramirez and
Singh about March, April, or May; Ramirez returned
about 30 signed authorization cards to Quinones. In addi-
tion, during this period, Chambers and Quinones gave
authorization cards to other employees they met on the
street.
A. Layoff of Santiago and Rosario
Guillermo "Aladino" Santiago began working for Re-
spondent in May as a polisher and grinder. Ramirez
spoke to him about the advantages of Local 810. He
signed an authorization card for Local 810, given to him
by Ramirez.2 On June 8, David Yaloz, a principal and
admitted agent of Respondent, told Foreman Frederico
Gonzales to layoff a few employees for a week or two
since work was slow. Gonzales (who did not testify at
the hearing) chose Santiago as one of the employees.
(Yaloz assumes that Gonzales chose Santiago because he
had little seniority, having only worked for Respondent
for about a month.) Santiago testified that two or three
other employees were laid off at the same time as he
was. At the time of these layoffs, Ramirez (the Local 300
shop steward at the time) was informed by Yaloz that he
was laying off the people because he did not have
enough work for them. Yaloz testified that about a week
later, after work at the plant had picked up, he asked Ra-
mirez to contact Santiago and inform him to return to
work. He testified that he did this because Respondent
did not have Santiago's telephone number, while Ra-
mirez knew Santiago. About a week later Yaloz asked
Ramirez where Santiago was and Ramirez said that he
did not know. Although Ramirez was never specifically
questioned about this incident, he was asked: "When, if
ever, was Santiago recalled to work?" and he answered:
"August." In about October, Yaloz saw Santiago stand-
ing outside the plant and asked him what happened to
him. According to Yaloz's undenied testimony, Santiago
said that he was working when Yaloz asked him if he
wanted a job working for Respondent, Santiago said that
he did; and he has been working for Respondent since
then. Yaloz denies having any knowledge of Santiago's
preference for Local 810.
The only testimony supporting the allegation regard-
ing the alleged discriminatory layoff of Miguel Rosario
was Ramirez's testimony that Rosario was one of the em-
ployees laid off at the same time as Santiago. Ramirez
also testified that he gave Rosario a Local 810 authoriza-
tion card to sign, outside the plant on the corner, and
Rosario signed it and returned it to him. The only other
testimony regarding Rosario was Yaloz's testimony in
answer to a question from me as to whether Miguel Ro-
2 Ramirez testified that he gave Santiago the card ouside the plant. on
the corner, and Santiago signed it there. Santiago's testimnony on the card
signing is confusing, he testified that Ramirez gave im the card at his
machine, where he signed the card, and "[Ramirez] took it back because
everybody signed the same card." ()n cross-exlainiation i he estified that
he received the card at night, outside the plant.
sario was laid off at the same time as Santiago; Yaloz's
answer was: "Miguel had already left by taking a plane a
long time before this."
The evidence of a violation herein is so sparse that I
find it unnecessary to make any credibility determina-
tions. As regards Rosario, even if he had been laid off
there is no evidence that it was done for a discriminatory
reason. His sole action on behalf of Local 810 was his
signing an authorization card for Local 810, and this was
done outside the plant, on the corner. About thirty other
employees had done so as well. As regards Santiago, al-
though it is clear that he was laid off on June 8, he had
only been employed by Respondent for about I month,
and it is not unreasonable to assume that he was one of
the least senior employees. Additionally, the uncontra-
dicted testimony is that a week after Santiago's layoff
Yaloz asked Ramirez to contact him to return. Further,
in October, when Yaloz saw Santiago for the first time
since the layoff, he rehired him on the spot. Finally, San-
tiago's activity on behalf of Local 810 was limited to the
signing of an authorization card for Local 810 (albeit,
this testimony is very confused). I would therefore find
that General Counsel has not sustained his burden of es-
tablishing that Santiago and Rosario were laid off in vio-
lation of Section 8(a)(1) and (3), and I would dismiss this
allegation.
Having dismissed this allegation, I would likewise
overrule the corresponding objection l(a).
B. The June Hiring
General Counsel's main witness regarding this allega-
tion was Keith Lawrence. As there are a number of
credibility questions, herein, Lawrence's testimony will
be examined first: Lawrence testified that while he was
at a game room (a penny arcade with pinball machines)
the owner of the game room ("Joe") told him to return
on June 18 at 8 a.m. at which time there would be a job
for him. On that morning, 15 to 18 other men were pres-
ent, as were Rafael Griffin, delegate and organizer for
Local 300, and Jimmy Robinson, organizer for the inter-
national union that Local 300 is affiliated with. Griffin
informed those present that he had a job for them where
they would earn $2.90 an hour, plus an additional dollar
under the table; that they were to vote for Local 300 in
the upcoming election and inform him of any employee
talking about Local 810. At that time, they all got into
cars and drove to Respondent's plant. These individuals
all went upstairs and were joined by David Yaloz and
Leon Yaloz (the other principal of Respondent) and
Griffin. At that time, Griffin again informed them in the
presence of David and Leon Yaloz that they would be
paid $2.90 an hour, plus an additional dollar under the
table and they were to let him know if anybody in the
shop was going to vote for Local 810. Griffin also said
that after the election they would be laid off for a while,
and then all of those who voted for Local 810 would be
fired and they would then be returned to work. David
Yaloz then informed them that after the election Re-
spondent would lay them off for a short time and rehire
them after Respondent discharged all the employees who
voted for Local 810. They filled out job applications and
YAL.OZ MOLD & DIE CO., INC. 33
were told that they would be paid for that day even
though they were not to commence work until the fol-
lowing day.
3
Lawrence testified further that he worked for Re-
spondent from June 19 to June 29 (with one day off in
between) as a polisher and doing light work. On June 28,
he informed Griffin that he would soon leave Respond-
ent's employ. Griffin first attempted to convince him to
remain in Respondent's employ and, when that failed,
Griffin told Lawrence to return to Respondent's plant on
July 13 to vote in the election. Prior to leaving Respond-
ent's employ, Lawrence informed David and Leon Yaloz
that he was leaving to attend automotive school. David
Yaloz's only reaction was: "alright." Lawrence testified
that he did not vote in the election.
Respondent attempted to use two exhibits in order to
discredit Lawrence's testimony. One was the Excelsior
list for the election, which was conducted on July 13;
this shows that Lawrence's name was checked off by all
the observers, 4 including Local 810's observer. Respond-
ent introduced payroll checks made out to Lawrence
dated July 13 and 20, in addition to his June paychecks;
David Yaloz testified that a July 6 check made out to
Lawrence in the amount of $14.50 could not be located
by Respondent. Lawrence had testified that he did not
work at Respondent after June 29 and General Counsel
introduced into evidence his attendance record at school
which shows that he began attending school on July 2,
was present at school on July 13, and attended the
school through the end of 1979. Although I am not an
expert handwriting analyst, it is clear from an examina-
tion of the checks that the endorsement signatures on the
July checks are different from the signatures on the June
checks made payable to Lawrence.
David Yaloz testified that at the beginning of 1979 Re-
spondent purchased a burned out building across the
street from Respondent's plant, which it planned to re-
build as a warehouse. After receiving bids from contrac-
tors, he and his brother decided in about June to do
some of the reconstruction work themselves with their
own employees in order to save money on the work.
About that time Robinson was in the plant, and Yaloz
told Robinson of his plans and asked him if he knew any
good men that Respondent could use to perform the
work.5 Robinson told him that he would try to get some
people to do the construction work for Respondent.
David Yaloz further testified that around the middle of
June he received a call over the intercom to come up-
stairs to the office (he spends most of the day on the
floor supervising production). When he arrived he saw
about 10 men in the office; he asked them if they were
3 Lawrence testified that he was paid for orking o June 18.
evren
though he did not work that day, but he never received the promised
dollar an hour, "under the table." David Yaloz and Griffin told hint
to
get it from "Joe" in the game room, but he never did
4 Ramirez was the observer for Local 810 On cross-examination, Ra-
mirez was asked to list the names of the emplocees listed on the Ercciltr,
list whom he did not know on the day of the election He lid not list
Lawrence as one of these employees, and he later testified that Lass rence
did not vote at the election and he knev, and recognized him it the tine
5 Yaloz testified that in the past Robinson has called him and iid
t that
he had a good employee if Respondent needed anybody and Responlidelnt
has hired some of these individuals Yalo7 did not ask Robinson to
rier
any production employrees to Respondent in 170
the construction people sent by Robinson and they said
that they were. He told the secretary to give them appli-
cations to fill out and that they would begin work the
next day, and he went back downstairs. Other than
asking who they were, he did not speak to them and he
did not see Robinson or Griffin there at the time. The
next day these individuals reported for work and Leon
Yaloz took them across the street to explain to them the
construction work of the warehouse. That was the first
day for which they were paid. David Yaloz testified that
he never told Lawrence that he would be paid an extra
dollar an hour, and, in fact, he never spoke to Lawrence.
These employees cleaned out the garbage and performed
certain of the construction work on the building; they
spent most of their time on construction, but when they
had to wait for materials or containers he assigned these
employees to production work.
Respondent's secretary-bookkeeper. Marilyn Mobiley,
testified that on June 18 while she was sitting at her desk
upstairs in Respondent's office, she heard a lot of noise
coming from the location where the stairs lead to the
office entrance. She walked around to see what was oc-
curring and counted eight men in the office (with others
standing in the stairway). Some of these men informed
Mobiley that they wanted a job and she told them to
speak to the receptionist; Mobiley returned to her desk,
from which she could not see the reception area where
these events were occurring. She did not see Griffin in
the office that day, and did not see a group of men meet-
ing with David Yaloz in his office that day (her desk is
next to the door leading into Yaloz's office).
Chambers testified that about 3 to 4 weeks prior to the
election he saw 9 or 10 individuals whom he did not rec-
ognize, enter the Respondent's plant; about 15 or 20 min-
utes later he saw Griffin enter the plant. Griffin did not
testify.
Respondent included the names of 12 of these "con-
struction" employees on the Excelsior list for the July 13
election.
The credibility issue herein is a close one; neither
Lawrence nor David Yaloz displayed any characteristics
while testifying, which would be the basis for discredit-
ing them on that account. After carefully examining the
testimony of these witnesses, I have determined to credit
the testimony of Lawrence. Respondent had purchased
the property in question in January; on April 4, it re-
ceived a bid for the reconstruction work, which it decid-
ed was too high. Yet, it was not until 2-1/2 months later
that Respondent decided to hire its own employees to
work on this building. It is extremely suspicious when a
company waits this long before deciding to perform the
work itself and then acts only 3 weeks before the elec-
tion. Adding to this is the fact that even though Re-
spondent knew there would be an election between
Local 810 and Local 300 in the future (the consent elec-
tion agreement was signed 3 days later) it obtained these
employees through ocal 300. Further, Respondent in-
cluded these individuals on its Excelsior list even though
; Those eligible voit in thle electiotn. prsit t the
consent dec-
tion agrcemeint. sere Respodent
'
, produ-ln. nlilaitti.nce. :ald ship-
ping ctIllnpl) tcs
theO MOLD ucio pepl DIEt bOy RobCso
3n3te si
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yaloz testified that they were hired to perform the re-
construction work on the building where they spent a
majority of their time, and only performed production
work when materials or containers were lacking. These
facts convince me that Respondent hired these employ-
ees to "pack the unit" shortly before the election with
pro-Local 300 employees. Having done so, it is unreason-
able to assume that Griffin and Yaloz spoke to the em-
ployees and informed them that they were to vote for
Local 300 in the upcoming election and report on any
employees discussing Local 810. For this reason, I credit
the testimony of Lawrence. It should be noted that I
found the two exhibits questioning Lawrence's credibility
unconvincing; the fact that his name was checked off the
Excelsior list is balanced by General Counsel's exhibit es-
tablishing that he attended school that day. Additionally,
an examination of the two payroll checks in July clearly
shows that the signatures are different from Lawrence's
June checks. It should further be noted that I have not
placed much weight on the testimony of either Cham-
bers or Mobiley. Chambers simply saw Griffin enter Re-
spondent's plant shortly after 9 or 10 individuals he did
not know. Mobiley's only connection with the events in
question was to inform the prospective employees to
speak to the receptionist; her desk did not have a proper
view of the reception area for her to know whether
Griffin spoke to the assembled employees.
I would find that these events constituted violations of
Section 8(a)(l) and (2) in two respects; initially the state-
ments made by Griffin, in the presence of David and
Leon Yaloz, and those by Yaloz himself, tended to
coerce the new employees in their selection of a collec-
tive-bargaining representative in the upcoming election.
By being told that they were to report on any employee
speaking about Local 810, and that any employee who
voted for Local 810 would be discharged, the message
was clear to them that they had better vote for Local
300. Additionally, I would find that the other employees
of Respondent who were eligible to vote in the election
were restrained and coerced within the meaning of Sec-
tion 8(a)(l) and (2) of the Act as their votes in the up-
coming election had lost some strength and meaning be-
cause Respondent purposely hired these pro-Local 300
employees in order to dilute Local 810's strength. Ralco
Sewing Industries, Inc. & Weather Vane Outwear Corpora-
tion, Inc., 243 NLRB 438 (1979).
On the basis of the above, I would likewise sustain the
allegations contained in Objection (b).
C. Threat by Leon Yaloz
Ramirez testified that 3 or 4 days prior to the election
he overheard a conversation between Leon Yaloz (who
did not testify) and two employees-Reynoso and
Garcia-in the machine shop. 7 Ramirez (who is present-
ly employed by Respondent) testified on direct examina-
tion that Leon Yaloz told these employees that if they
voted for Local 300 they would get the same benefits
7 On being shown his affidavit, Ramirez changed the time of this coti-
versation to 2 weeks prior to the election, and the classification of these
employees to welders.
that Local 810 would give them, but if Local 810 won
the election, he would close the plant.
On cross-examination, Ramirez's story slowly changed,
so that, at its conclusion, it was unrecognizable from his
testimony on direct examination. He testified that he was
2 or 3 feet away from where Yaloz was speaking with
Garcia. He then testified that he (Ramirez) was also in-
volved in the conversation.
Q. It was the three of you that were present. Is
that correct?
A. Yes.
Q. I believe on direct examination though, that
you stated that Benito Reynoso was also present at
the time?
A. Yes, he was also there.8
Counsel for Respondent then read to Ramirez from his
affidavit given to the Board, wherein he stated that
Yaloz's statements were made to five or six welders
whose names he could not recall. Ramirez's reaction was
that it was confusing, and that "Everyday he spoke more
or less the same on different occasions." Ramirez was
then asked what Leon Yaloz specifically said to them.
His answer: "We should vote for Local 300. We would
have more increases in benefits. With Local 810 we
would have problems." Ramirez was then asked about
his testimony that Yaloz had said that if Local 810 won
the election he would close the plant and Ramirez testi-
fied that Yaloz had said this to him "many times two
weeks before the election":
Q. And what were the exact words he used?
A. Vote for 300, that if we vote for 810 this
union had a lot of problems, you should stay with
us which is a good union.
Leon Yaloz did not testify.
Ramirez was clearly a pro-Local 810 employee. On
the basis of the changes in his testimony, together with
the discrepancy between his testimony and his affidavit, I
would find that his testimony on direct examination was
an exaggeration of what Leon Yaloz said, a statement
which Ramirez built upon. I would therefore credit Ra-
mirez's final testimony on cross-examination as to what
Yaloz really said-"the exact words he used"-that they
should vote for Local 300, which is a good union, while
there would be a lot of problems with Local 810.
It is well established that an employer need not remain
neutral in an election involving his employees, but may
express a preference for one of the competing labor or-
ganizations, as long as there is no accompanying threat
or promise of benefit.9 The only possible violation herein
is Yaloz's statement that Local 810 had a lot of prob-
lems. Is this an innocent prediction of circumstances out-
side Respondent's control or a threat of reprisals by Re-
spondent should the employees vote for Local 810?O It
' Ramirez's difficulty with the ilumiber of employees present may be
due to coulsel's question a moment earlier "How many welders were
present at that meeting?" Reynoso is not a welder.
s Rold Gold ofd CliJrnia. Incorporported, 123 NLRH 285 (1959)
u"' Fbriko. Incorporured, 227 NLRB 387 (1976) Alley Constructon
Comlpuaiv. Inc, 210 NlRB 999 (1974)
YALOZ MOLD & DIE CO., INC. 35
is very difficult to say, there is really only one important
word-"problems." Did Yaloz mean (and the employees
understand) that he would give the employees and Local
810 problems if they voted for Local 810, or that with
any new union (i.e., any union other than Local 300) be-
coming their collective-bargaining representative, there
were bound to be normal "getting used to each other"
problems? I would find that, based on the entire record,
there is insufficient evidence to support the allegation
that this statement violated Section 8(a)(l) and (2) of the
Act and I would therefore dismiss this allegation. I
would also overrule the corresponding objections-Ob-
jections 2(a) and (3)
D. Singh's Termination
Mohan Singh was employed by Respondent in Febru-
ary 1979 as a polisher. Shortly thereafter, he met Cham-
bers and Quinones on the corner near Respondent's plant
and they informed him of the benefits Local 810 could
provide to Respondent's employees. They gave him au-
thorization cards to hand out to other employees in the
shop, which he did between the middle to end of May.
He testified that he approached five or six employees at
their work station (in answer to a question from me, he
testified that he gave cards to three employees), told
them that they must support Local 810 and handed each
of them, individually, a Local 810 authorization card (al-
though he testified that the employees ignored him or re-
fused to accept the authorization cards). He further testi-
fied that during this entire period that he was speaking to
the employees about Local 810, David Yaloz was ob-
serving him from about 50 feet away. (Singh testified
that there are "alot" of polishing machines, which are
about 3 feet high, in the area.)
Singh also testified that on July 5 he informed Yaloz
that his father had died and he requested a 3-week leave
to go to Guyana for the funeral. Singh showed Yaloz his
plane ticket and Yaloz informed him that he could have
the 3-week leave, and that his job would be waiting for
him when he returned. Yaloz then asked the bookkeeper
to give Singh a paper to sign, which he did. The paper,
Respondent's stationery, dated July 5, states: "This will
confirm that I, Mohan Singh, terminated my employ-
ment at the above on July 5, 1979" and it was signed by
Singh. Singh testified:
Q. You didn't question him?
A. No, I don't question him. Because he told me
I could get my job as soon as I get back in the
country.
Q. Now, did you understand it when you signed
it?
A. Yes, terminating my employment.
Q. You terminated your employment?
A. Yes.
Q. Does it say anything about leave?
A. No, but he told me my job is there.
A moment later Singh was asked:
Q. Did you understand that form when you
signed it?
A. No, I didn't understand it.
JUDGE BIBLOWITZ: Did you read what was on it
before you signed it?
A. No.
Singh needed a letter from Respondent regarding his
employment, in order to bring his mother to the United
States. Therefore, on the following day, he returned to
Respondent's plant and asked David Yaloz for a letter
confirming his employment by Respondent. Yaloz had
the bookkeeper type the following letter, which he gave
to Singh:
American Counsel in Georgetown, Guyana
To Whom It May Concern:
Mr. Mohan Singh has been in the employ of the
above since February 7, 1979. His salary was $3,00
per hour, 40 hour week. He was a general worker.
Singh testified further that he returned to the United
States on Saturday, July 28, but did not report for work
to Respondent until Tuesday, July 31. He testified that
on Monday, "I feel upset." At this point a conflict ap-
pears in Singh's testimony. On direct examination he tes-
tified that when he returned to Respondent's plant on
Tuesday, July 31, he informed Yaloz that he was back in
the country and returned for his job, but that Yaloz told
him to report to work on Thursday, the start of the pay-
roll week. When he returned on Thursday, he worked
for 5 minutes and Yaloz called him from his machine and
said that he could not employ him anymore because he
was laying off people. Singh left.
On cross-examination, in answers to questions from
counsel for Respondent, Singh testified that on Tuesday,
July 31, he arrived for work at 8:30, his timecard was
there, he punched in his timecard and began working.
Five minutes later, Yaloz came up to him at his machine
and told Singh that he could not employ him anymore.
Singh asked why and Yaloz said only that he could not
employ him anymore. On further cross-examination by
counsel for Local 300, Singh returned to the original
version of the incident, that he returned to Respondent's
plant on Tuesday, informed David Yaloz that he was
back in the country and returning to "secure my job
back again," and Yaloz told him to return on Thursday;
when he did so, he punched his timecard and Yaloz in-
formed him that he could not employ him anymore.
David Yaloz testified that he never saw Singh handing
out Local 810 authorization cards to any employees, in
fact he was in Israel between May 15 and 29, nor did he
overhear Singh speaking to employees about Local 810.
Yaloz further testified that he did not know whether
Singh signed an authorization card for, or supported,
Local 810. On July 5, Singh came to speak to him in his
office and said that his family needed him, and that he
was going back to live in his country. Yaloz instructed
the secretary to pay Singh whatever they owed him and
to have Singh sign the termination letter form. Yaloz ob-
served the secretary give Singh the letter to sign, he read
it and signed it. Singh never mentioned a leave of ab-
sence, nor did he show Yaloz his airplane ticket, accord-
ing to Yaloz's testimony. Yaloz testified that commenc-
YALOZ MOLD & IE CO., INC
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing about February 1979, whenever an employee in-
formed him that he was leaving Respondent's employ,
Respondent had the employee sign a termination letter,
just as Singh did; the reason Respondent does this is that
Respondent used to have problems with employees who
quit their employ and later attempted to collect unem-
ployment insurance benefits; with the termination letters,
Respondent had a record that they left its employment
on their own.
Yaloz testified from that time through the summer he
did not see Singh. Shortly thereafter, he met Singh out-
side Respondent's plant, they exchanged pleasantries, but
he never asked Yaloz for his job back.
On September 26, Respondent sent Singh a registered
letter stating:
According to our payroll records you voluntarily
terminated your employment on July 5, 1979, and
have not worked for us since that date, or offered
to return to work. Unless you notify us in writing
within 5 days of receipt of this letter of your intent
to return to work, we shall consider your voluntary
resignation to be a final termination.
Yaloz testified that this letter was sent to Singh on the
advice of counsel; counsel for Respondent makes note of
the fact that this letter was sent by Respondent on re-
ceipt of the consolidated complaint herein, dated Sep-
tember 24, which alleges, inter alia, Singh's discriminato-
ry discharge.
I would first note that in making my determination
herein, I am disregarding Respondent's September 26
letter to Singh. Although first appearing highly suspi-
cious and self-serving, as it was sent to Singh only 2 days
after the issuance of the consolidated complaint, it is not
unreasonable to assume that Respondent sent the letter to
cut its losses, i.e., to toll its backpay should it be found at
the hearing on the consolidated complaint that Singh
was terminated unlawfully.
Although not completely free of doubt, I would dis-
credit Singh herein. His testimony was fluctuating and,
at times, was improbable; he changed his testimony re-
garding his return to work on either July 31 or August
2, and whether he understood the July 5 termination
letter. Additionally, the only proof of knowledge of
Singh's alleged activities on behalf of Local 810 was his
solicitation of Local 810 authorization cards from three
or five or six employees between the middle to the end
of May. However, David Yaloz was out of the country
during the entire period. Additionally, I find it doubtful
that Yaloz, allegedly 50 feet away, and on the same floor
level as Singh could actually see Singh speaking to the
other employees through all of the polishing machines.
Lastly, if Respondent were preparing to discharge Singh
when he returned from Guyana at the end of July, it
would not have had his timecard prepared for that week.
This, together with the fact that there was no credible
proof of any Local 810 activity on the part of Singh
known to Respondent (Ramirez, the known Local 810
adherent was still employed by Respondent) convinces
me that General Counsel has not sustained his burden
herein, and this allegation will therefore be dismissed.
E. Dues Deduction
The facts herein have been stipulated to by the parties:
as stated, supra, Respondent and Local 300 were parties
to a collective-bargaining agreement which expired on
August 25, 1979. This agreement contained a union-secu-
rity clause requiring employees covered to join Local
300 on the 30th day following the effective date of the
agreement, or the 30th day following the beginning of
employment. The dues checkoff cards signed by the em-
ployees for Local 300, entitled "APPLICATION AND
CHECKOFF AUTHORIZATION BLANK" state:
I, the undersigned, hereby apply for membership
in the above Local Union and I authorize it to rep-
resent me for the purpose of collective bargaining,
and I authorize and irrevocably direct my Employ-
er to deduct from my wages, initiation fees and
monthly dues, to become due to it as the periodic
dues and initiation fees uniformly required by said
Local Union as a condition of acquiring or main-
taining membership. The amount deducted each
month shall be forwarded to the Secretary-Treasur-
er of said Local Union.
This checkoff authorization is executed apart
from, and independent of, the existence of the
Union security provisions and the necessity of
paying Union dues contained in and required by the
applicable collective bargaining agreement. It is my
express intent that this checkoff authorization shall
continue in full force and affect, and its continued
validity shall not be affected in any manner whatso-
ever if the said Union security provisions and the
necessity of paying Union dues should become inop-
erative for any reason whatsoever.
Authorization and direction shall be irrevocable
for the period of one (1) year or until the termina-
tion of the collective bargaining agreement between
my Employer and said Local Union, whichever
occurs sooner, and I agree and direct that this au-
thorization and direction shall be automatically re-
newed, and shall be irrevocable for successive peri-
ods of one (1) year each or for the period of each
succeeding applicable collective bargaining agree-
ment between my Employer and said Local Union
whichever shall be shorter, unless written notice by
certified mail is given by me to the Employer not
more than twenty (20) days and not less than ten
(10) days prior to the expiration of each period of
one (1) year or of each applicable collective bar-
gaining agreement between my Employer and said
Local Union, whichever occurs sooner.
For the months of September, October, November,
and December 1979, the Respondent continued to deduct
the dues of its employees pursuant to the checkoff au-
thorizations signed by them, and transmitted these
amounts to Local 300. Beginning in January 1980, Re-
spondent, while continuing to deduct the dues of those
employees who had signed checkoff authorizations,
ceased transmitting these amounts to Local 300 and, in-
stead, placed this money into an escrow account. There-
YALOZ MOLD & DIE CO., INC. 37
after, Respondent ceased making these dues deductions
and returned all the escrowed money deducted since
January 1, 1980, to the employees involved.
The issue therefore is whether Respondent violated
Section 8(a)(l), (2), and (3) of the Act by deducting
Local 300 dues for employees who had signed checkoff
authorizations for the months of September, October,
November, and December 1979, a period after which its
contract with Local 300 had expired. I find that it has
not.
Lowell Corrugated Container Corporation, 177 NLRB
169 (1969), is on point. There the employer and incum-
bent union had a coliective-bargaining agreement set to
expire on March 7. This agreement contained a union-
shop clause and a clause providing for checkoff of dues.
Prior to the expiration of this agreement, a timely peti-
tion for election was filed. At the election conducted on
February 8, the petitioner received a majority of the
votes cast; objections were filed, overruled, and the peti-
tioner was certified on April 3. Regardless, from March
7 through July 1, the employer continued to deduct and
transmit dues from wages of employees who had execut-
ed and never cancelled dues authorization forms to the
incumbent. It was found that these actions did not vio-
late the Act. As stated by the Administrative Law
Judge:
No cases have been cited, and I have been unable
to find any, where the Board has held that it is im-
proper for an employer to continue to honor an un-
cancelled, unabrogated, or unrevoked checkoff after
the contract providing for it has expired, but before
the checkoff has terminated by its own terms.
As no evidence was adduced that any employees
whose dues were deducted and transmitted to Local 300
during this period had revoked their dues-checkoff au-
thorization, I would dismiss this 8(a)(1), (2), and (3) alle-
gation. "
F. Access to Respondent's Premises
Objection 2(b) alleges that during the preelection
period Respondent allowed Local 300 representatives to
enter its premises to engage in campaigning, but ex-
cluded Local 810 representatives from campaigning on
its premises. The evidence establishes that although
Local 300's representatives were present in Respondent's
plant during this preelection period, the Local 810 repre-
sentatives never requested of Respondent that they be al-
lowed access inside Respondent's plant to speak to the
employees.
In Lazzara Products, Inc., Lazzara Products of Northern
Jersey, Inc. Lazzara Products of Central Jersey. Inc., 178
NLRB 204 (1969), cited by Respondent in its brief, one
of the two unions filed objections, one of which alleged
basically what Objection 2(b) alleges herein. The Board
found the objection without merit because the petitioner
II This finding is consistent with the Hoard's finding in rico Productrs
Corporation, 238 NLRB 1306 (1978), where he Board found that the em-
ployer violated Sec 8(a)11), (2), and (3) of the Act h continuing to
deduct dues pursuant to revoked checkoff authorizations after the expira-
tion date of the contract
(the "shut out union") did not request authority from the
employer to enter its premises and there was no evidence
that the intervenor engaged in any electioneering on the
premises. The evidence herein is that Quinones and
Chambers were present outside Respondent's plant on
almost a daily basis during the preelection period and
they observed Griffin and Robinson both inside and out-
side the plant about three or four times a week during
this period. No evidence was adduced, however, that
during this period Griffin and Robinson were engaging
in electioneering inside the plant, and without such evi-
dence I cannot make that finding as Local 300, at that
time, was the collective-bargaining representative of Re-
spondent's employees. As Local 810 also did not request
of Respondent it have access to its plant to speak to the
employees, I find the facts herein fall squarely within
Lazzara, supra, and I would find this objection to be
without merit.
IV. THE EFI:ECT OF SUCH CONDUCT UPON THE
ELECTION
As I have heretofore sustained the allegations con-
tained in Local 810's Objection l(b), I hereby order that
the election conducted on July 13, 1979, be set aside and
a new election be conducted.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above in section
III, B, above, occurring in connection with Respondent's
operations described in section , above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCI.USIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Local 300 and Local 810 are each labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (2) of the
Act by:
(a) Threatening and coercing its employees to vote for
Local 300, rather than Local 810, in a National Labor
Relations Board election.
(b) Hiring employees for the purpose of assisting Local
300, and defeating Local 810, in a National Labor Rela-
tions Board election.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
YALOZ MOLD & DIE CO., INC. 7
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 2
The Respondent, Yaloz Mold & Die Co., Inc., Brook-
lyn, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening or coercing its employees to vote for
Local 300, rather than Local 810, in a National Labor
Relations Board election.
(b) Hiring employees for the purpose of assisting Local
300, and defeating Local 810, in a National Labor Rela-
tions Board election.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at its Brooklyn, New York, plant copies of the
attached notice marked "Appendix."' 3 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by its authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notice is not altered, defaced, or covered
by any other material.
12 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Hoard, the
findings, conclusions, and recommended Order shall, as provided by Sec.
102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
'a In the event that the Board's Order is enforced by a Judgment of
the United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National abor Relations Hoard."
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated com-
plaints be dismissed with respect to the allegations not
specifically found herein to be violative of the Act.
IT IS FURTHER ORDERED that the election conducted
on July 13, 1979, in Case 29-RC-4601 be set aside and a
second election be conducted as early as possible thereaf-
ter.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten or coerce our employees
to vote for Local 300, International Production,
Service and Sales Employees Union, or any other
labor organization, rather than to vote for Local
810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, in a National
Labor Relations Board conducted election.
WE WILL NOT hire employees for the purpose of
assisting Local 300, or any other labor organization,
and defeating Local 810, or any other labor organi-
zation, in a National Labor Relations Board con-
ducted election.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them by Section 7
of the Act.
YALOZ MOLD & DIE Co., INC.