Petitioner for ReHearing — Electri-Flex Co. v. National Labor Relations Board
Supreme Court brief1980
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Bupreme Court, U. &.
FILED
APR 26 1980
In THe
BICHAEL RODAK, JR., CLERR
Supreme Court of the United States
Octoser Term, 1979
No _£9-1698
ELECTRI-FLEX COMPANY,
Petitioner, .
VS.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Tuomas D. BurLacEe
SamvueLt W. Witwer, JR.
R. Dennis CLAESSENS
Attorneys for Petitioners
Of Counsel:
Witwer, Moran, Burtace & ATKINSON
125 South Wacker Drive
Chicago, Illinois 60606
Midwest Law Printing Co., Chicago 60601, Financial 6-3988
58)
——.
III. The Decisions Below
ARGUMENT:
TABLE OF CONTENTS
I
The Board’s Finding That The Company Failed
To Bargain In Good Faith By Making Proposals
Which Were Unacceptable To The Union Consti-
tutes An Abandonment Of The Board’s Role As
Impartial Referee And An Unlawful Intrusion Into
The Collective Bargaining Process In Favor Of
The Union
II.
The Board, In Refusing To Consider The Com-
pany’s Evidence That Its Contract Proposals Were
Reasonable, Has Failed To Adhere To A Prior De-
cision Of This Court
ITT.
Intensive Negotiations Over Important Substan-
tive Provisions Did Occur
Pace
PETITION FOR WRIT OF CERTIORARI ......_. 1
OPINIONS BELOW 2
JURISDICTION 2
QUESTIONS PRESENTED 3
STATUTES INVOLVED 4
STATEMENT OF THE CASE 5
I. Introduction 5
Il. History Of Negotiations 5
7
12
15
li
IV. Pace
In Enforcing The Order Of The Board, The Court
Of Appeals Failed To Consider The Record As A
Whole As Required By The Substantial Evidence a
Rule ,
CONCLUSION 19
tay
APPENDIX PaGE
Decision of Administrative Law Judge .................... 1
Decision and Order of National Labor Relations
Board 65
Order of the United States Court of Appeals for
the Seventh Circuit 71
Order of the United States Court of Appeals for
the Seventh Circuit Denying Rehearing en bane .. 85
Judgment, United States Court of Appeals for the
Seventh Circuit 86
LIST OF AUTHORITIES CITED
Cases Pace
Carbon Fuel Company v. United Mine Workers of
America, et al., 48 U.S.L.W. 4059 (No. 78- 1183, Dee.
10, 1979) 9,19
Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir. 1978),
cert. denied, 439 U.S. 911 {SERRE ONSe nee 7
Gulf States Manufacturers, Inc., 230 NLRB No. 81
(1977) 8, 10, 12
Gulf States Manufacturers, Inc. v. NLRB, 579 F.2d
1298 (5th Cir. 1978), aff’d on rehearing en bane, 598
F.2d 896 (1979) : 3, 8, 10, 11, 14, 16, 19
H. K. Porter Co. v. NLRB, 397 U.S. 99, 25 L.Ed.2d 146
(1970) sichiedeaiaceilacaiane 9, 12, 19
NLRB v. American National Insurance Co., 343 U.S.
395, 96 L.Ed. 1027 (1952) 3, 9, 12, 14, 19
NLRB v. Insurance Agents’ International Union, 361
U.S. 477, 4 L.Ed.2d 454 (1960) 12
NLRB v. Tomco pact Inc., 567 F.2d 871
EP aa Sr 10, 11, 16, 19
NLRB v. Wright Motors, Inc., 603 F.2d 604 — Cir.
1979) .. 8, 15, 16, 17
Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L.
We WO Se ne a ey en 3, 18
Statutes
National Labor Relations Act (as amended), 29 USCA
| I AE ES OCR! FRCS ONT: 4,9, 12, 19
In THE
Supreme Court of the United States
OctToBER Term, 1979
No.
ELECTRI-FLEX COMPANY,
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
To the Honorable Chief Justice and Associate Justices
of the Supreme Court of the United States:
Petitioner Electri-Flex Company* respectfully prays
that a Writ of Certiorari issue to review the Order of the
* Hereinafter Petitioner will be referred to as “the Com-
any”, and District 122, International Association of
achinists and Aerospace Workers, AFL-CIO will be
referred to as “the Union”. Also, the National Labor Relations
Board, will be referred to as “the Board”, and the Ad-
ministrative Law Judge will be referred to as “the ALJ”.
Finally, the National Labor Relations Act (as amended) will
be referred to as “the Act.”
aes
United States Court of Appeals for the Seventh Circuit
in its Cause No. 78-2506, decided November 14, 1979.
OPINIONS BELOW
The unpublished Order of the Court of Appeals in this
cause is set forth in the Appendix to this petition, com-
mencing at page 71, infra.
The Decision and Order of the Board is set forth in
the Appendix to this petition, commencing at page 65,
infra, and is reported at 238 NLRB No. 97 (1978).
The Decision and Order of the ALJ is set forth in the
Appendix to this petition, commencing at page 1, infra.
JUR'SDICTION
The Order of the Court of Appeals for the Seventh
Circuit sought to be reviewed is dated November 14,
1979. By Order dated January 10, 1980 the Court of
Appeals denied the Company’s Petition for Rehearing en
banc. (A-85)* The Judgment of the Court of Appeals is
dated January 28, 1980. (A-86)
Jurisdiction is conferred upon this Court to review the
Decision and Order here in question by Writ of Cer-
tiorari as provided in Title 28 United States Code Par.
1254(1).
* References hereinafter to the Appendix bound with this
Petition are shown as “A...... .” References to the transcript of
the hearing appear as “Tr. ..... .” References to the Company’s
Exhibits appear as “R. Ex. .....,” while references to Counsel
”
.
for General Counsel’s exhibits appear as “G. C. Ex. .....
aS
QUESTIONS PRESENTED
1. Whether the Board, in adopting the decision of the
ALJ abandoned ‘its lawful role as impartial referee of
the bargaining process and assumed the unlawful role of
a partisan in favor of the Union?
2. Whether the Board unlawfully attempted to pass
judgment on and dictate the substantive provisions of
the collective bargaining agreement in an effort to give
the Union what it wanted, rather than that which would
evolve from the normal interplay of economic forces?
3. Whether the finding of the Board that the Com-
pany failed to bargain in good faith by making unaccept-
able proposals to the Union, is in conflict with NLRB v.
American National Insurance Co., 343 U.S. 395 (1952)
and Gulf States Manufacturers, Inc. v. NLRB, 579 F.2d
1298 (5th Cir. 1978), aff'd on rehearing en banc July 10, .
1979, 598 F.2d 896?
4. Whether the Court of Appeals, which expediently
adopted the findings of fact of the Board and failed to
review the record in detail, has “grossly misapplied” the
substantial evidence rule of Universal Camera Corp. v.
NLRB, 340 U.S. 474 (1951)?
5. Whether the Board’s finding that the Company
engaged in surface bargaining and failed to bargain in
good faith in violation of Sections 8(a\5) and (1) of the
Act is supported by law and by substantial evidence on
the record as a whole?
sili
STATUTES INVOLVED
The National Labor Relations Act, Section 8a), Title
29 United States Code Par. 158(a), provides in relevant
part as follows:
(a) It shall be an unfair labor practice for an
employer—
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in section 157 of this title;
* * *
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
provisions of section 15%a) of this title.
The National Labor Relations Act, Section 8d), Title
29 United States Code Par. 158(d), provides in relevant
part as follows:
“(d) for the purposes of this section, to bargain
collectively is the performance of the mutual obliga-
tion of the employer and the representative of the
employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotia-
tion of an agreement, or any question arising
thereunder, and the execution of a written contract
incorporating any agreement reached if requested
by either party, but such obligation does not compel
either party to agree to a proposal or require the
making of a concession * * *” (Emphasis added)
i
STATEMENT OF THE CASE
I. Introduction
This is not a routine substantial evidence case where
the employer disagrees with the weighing of the record
by the Court of Appeals and asks this Court to conduct
its own review. This is a unique case because (i) the ALJ
and Board rejected evidence introduced by the Company
as indicative of good faith bargaining, the form and con-
tent of which evidence has previously been approved by
this Court, and (ii) this error was compounded by the
Court of Appeals by its failure to consider the record.
Although the Company repeatedly directed the court to
this evidence in its Brief, Reply Brief and Petition for
Rehearing, the Court of Appeals stated that such
evidence had not been introduced by the Company.
The Company is not requesting that this Court review
the voluminous record herein in its entirety. By review-
ing the Order of the Court of Appeals (A-71 et seg.) and
only a small portion of the record (Tr. 878-919, R.Ex. 20-
29; Tr. 1045-1058, R.Ex. 44-46), this Court can deter-
mine whether the ALJ and Board improperly rejected
relevant evidence of good faith bargaining contrary to
prior decisions of this Court, whether the Board is im-
properly forcing the Company to make concessions to
the Union and whether the Court of Appeals conducted
the required review of the record.
II. History Of Negotiations
The Company is a manufacturer of flexible, electrical
conduit located in Roselle, Illinois. At all times relevant
to this proceeding, it employed between 60 and 100
employees. Prior to the RC petition filed by the Union
oinliiein
on June 26, 1975, the Company had no experience with
this or any other Union. The Union won the represen-
tational election held August 7, 1975 and was certified
as the collective bargaining representative of the
employees on August 15, 1975. (Tr. 957, 960-961)
Between September 26, 1975 and August 4, 1976,
representatives of the Company and Union held twelve
collective bargaining meetings, each of which generally
consumed the better part of a normal work day. (Tr.
791) The Company met with the Union whenever re-
quested to do so. As the Board admitted in its brief to
the Court of Appeals, the parties negotiated and reached
agreement on numerous proposals such as grievance and
arbitration, seniority, promotion and transfer, lay-off
and recall and over-time; all substantial issues in collec-
tive bargaining. (Board Brief, p. 59) However, the par-
ties were unable to reach agreement on wages, Union
security, management rights and contract duration. The
Union insisted on a general wage increase for all
employees, the amount of which it escalated at the last
meeting of August 4, 1976, its own management rights
clause, a union shop which it modified to maintenance of
membership at the meeting of July 14, 1976 and a con-
tract term of three years. 3
Although the Company was unwilling to grant a
general wage increase it did present an economic
package which would have increased total compensation
for most employees. In addition, the Company adhered
to its management rights proposal, continued its offer of
check-off of union dues and its proposal first offered in
January, 1976, that the contract expire December 31,
1976. The employees struck the plant during the period
of August 16 to August 20, 1976. (Tr. 838) Many
employees returned to work during the strike and all
a
employees returned within a few days after the strike
ended.
During August, 1976, the Union filed an unfair labor
practice charge, and, subsequently, the Regional Direc-
tor issued a complaint charging that the Company had
failed to bargain in good faith because of its adherence
to the disputed proposals, and, in addition, because of its
original proposal concerning union access to the plant.!
In a prior proceeding, the Union filed unfair labor
practice charges alleging violations of Sections &(aX1),
(3), (4) and (5) of the Act. After complaint issued and a
hearing was held, the Board found that such violations
had occurred. The Company filed a Petition for Review,
and the Court of Appeals enforced the Board’s Order.
Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir. 1978)
This Court denied the Company’s Petition for Writ of
Certiorari. 439 U.S. 911 (1978)
III. The Decisions Below
At the hearing before the ALJ, the Company sought to
establish that its proposals on management rights and
union security were not at all unusual, but rather could
be found in many collective bargaining agreements. In
addition, the Company attempted to prove that it had a
reasonable basis for its proposals concerning wages and
contract duration.
' The Company’s position on union access to the pl
cited in the complaint by the Regional Director even thou ugh
the parties had reached agreement on this subject early in
negotiations. Counsel for the General Counsel did not raise
pe se at the negra. However, ~ are of Appeals in-
u is proposal in i rt i
failure to biteata in good faith. (A-83) ——s.
we
Although the ALJ allowed the Company to present
evidence in the form of expert testimony and exhibits
(Tr. 878-919; R.Ex. 20-29) which showed that other un-
ions had accepted the same or similar proposals con-
cerning union security and management rights, he
repeatedly stated on the record that the fact that other
unions had accepted such proposals was not relevant to
the issue of whether the Company had bargained in
good faith. (Tr. 899-902) The ALJ, however, refused to
allow the independently conducted wage surveys of the
geographic area where the plant was located and cover-
ing similar jobs and skills to be admitted into evidence.
The Company had relied on these surveys in deciding
not to grant a general wage increase. (R.Ex. 44-46, Tr.
1045-1058)
The ALJ found that the Company had failed to
bargain in good faith by making contract proposals
which it knew were unacceptable to the Union. (A-56) In
reaching this decision, the ALJ cited Gulf States
Manufacturers, Inc., 230 NLRB No. 81, (1977) which,
subsequently, was refused enforcement in Gulf States
Manufacturers, Inc. v. NLRB, 579 F.2d 1298 (5th Cir.
1978), aff'd on rehearing en banc, 598 F.2d 896 (1979).
The ALJ’s decision was routinely affirmed by the
Board, and the Company petitioned the U.S. Court of
Appeals for the Seventh Circuit to review the Board’s
Order. The Court of Appeals specifically found that the
Company made no attempt to show that its proposals
were reasonable and distinguished Gulf States on the
premise that, in contrast, the employer in that case show-
ed its proposals were reasonable. The court’s previous
decision in NLRB v. Wright Motors, Inc., 603 F.2d 604
(7th Cir. 1979) was cited as precedent for its Order in
the instant case. .
=
ARGUMENT
I
THE BOARD’S FINDING THAT THE COMPANY
FAILED TO BARGAIN IN GOOD FAITH BY MAKING
PROPOSALS WHICH WERE UNACCEPTABLE TO
THE UNION CONSTITUTES AN ABANDONMENT OF
THE BOARD'S ROLE AS IMPARTIAL REFEREE AND
AN UNLAWFUL INTRUSION INTO THE COLLEC-
oN ne PROCESS IN FAVOR OF THE
In adopting Section 8d) of the Act, which states
in relevant part that the obligation to bargain in
good faith “. . . does not compel either party to
agree to a proposal or require the making of a conces-
sion . . .” 29 U.S.C.A. Section 158(d), Congress sought to
promote the policy of free collective bargaining. On
numerous occasions, this Court, in furtherance of that
policy, has interpreted the above statutory provision as
prohibiting the Board from compelling concessions or
otherwise sitting in judgment upon the substantive
terms of collective bargaining agreements. NLRB v.
American National Insurance Co., 343 U.S. 395, 404
(1952); H. K. Porter Company, Inc. v. NLRB, 397 U.S.
99, 104-106 (1970).
Most recently, this Court has interpreted Section &(d)
as making “. . . crystal clear the intention to leave the
parties entirely free of any government compulsion to
agree to a proposal or even reach an agreement.”
(Emphasis added) Carbon Fuel Company v. United Mine
Workers of America, et al., 48 U.S.L.W. 4059 (No. 78-1183,
Dec. 10, 1979). Thus, as the Act is presently drawn, a
union which is weaker than the employer may not be
able to secure what it wants at the bargaining table. H.
K. Porter Company, Inc., 397 U.S. at 108-104, 109.
—10—
In the instant case, the Board did judge the substan-
tive content of contract proposals when it held that the
C>mpany had failed to bargain in good faith because its
proposals concerning wages, union security, manage-
ment rights and contract duration were unacceptable to
the Union. It follows that the Company cannot comply
with the Board’s Order without “improving” its offers on
the several disputed issues, and, therefore, making a
“concession” which under Section &(d) of the Act and the
decisions of this Court it is not required to do.
Further support for the impropriety of the Board
Order herein is the fact that the prior decision on which
the Board relied, Gulf States Manufacturers, Inc., 230
NLRB No. 81 (1977), was denied enforcement in Gulf
States Manufacturers, Inc. v. NLRB, 579 F.2d 1298 (5th
Cir. 1978), aff'd on rehearing en banc July 10, 1979, 598
F.2d 896. The court in Gulf States cited with approval
the decision in NLRB v. Tomco Communications, Inc.,
567 F.2d 871 (9th Cir. 1978). In both cases, the courts
refused to enforce the bargaining orders and chastised
the Board for engaging in blatant partisanship in viola-
tion of previous decisions of this Court.
In Tomco, the parties never were able to agree on
wages, management rights, sick leave, union security,
dues check-off and no-strike and arbitration clauses.
Also, the union repeatedly stated that it would accept
nothing short of a union shop and the company insisted
on an “enumerated” form of management rights clause.
The court found no indication of bad faith by the em-
ployer and stated at 567 F.2d 871, 882:
“While we would accept that some of the terms
are harsh .. . that does not give the Board or the
courts the power to strike them.”
ae son
The court in Tomco, at 567 F.2d 871, 883 disapproved
of the theory underlying the Board’s findings, saying:
“The Board’s approach is best illustrated when it
condemns the company’s final offer as ‘terms which
no self-respecting union could be expected to accept’
- .. (citations omitted) ... The utility and ap-
propriateness of a ‘self-respecting union’ standard
are still doubtful. As an analytic tool, the phrase
seems rather better suited to conclude inquiry than
to advance it... . . Thus, it comes perilously close to
determining what the employer should give by look-
ing at what the employees want.”
The proposals of the union and the company in Gulf
States were similar to those in the instant case. The
court in Gulf States found no evidence of bad faith
bargaining on the part of the employer and, at 579 F.2d
1298, 1321, stated:
“It is evident that, for all practical purposes, the
Board has substituted itself for the (phage, the
bargaining table in the following particulars,
among others. It has approved what the Union
wants and has rejected what the Company is will-
Ing to give ... By its decision, the Board has
attempted to force the Company to make concessions
when the law does not require the Company to do so
... These partisan actions of the Board show that
it has abdicated its role as referee of the bargaining
process and has assumed the role of judge of what
provisions the bargaining agreement should contain
ae . If there is any principle in labor law that is well
settled and firmly established by statute and by the
decisions of the courts it is that the Board has neither
the authority nor the power to determine, decide, or
dictate the substantive terms or conditions of a collec-
tive bargaining agreement.” (Emphasis added)
As in Tomco and Gulf States, the Board in this case
has injected itself as the third party at the bargaining
table, sitting on the Union side of the table. This im-
wnttiies
proper intrusion into the collective bargaining process,
in an effort to aid the Union in obtaining more favorable
contract proposals, has upset the statutory scheme under
which collective bargaining disputes are to be resolved
in accordance with the natural forces of “economic war-
fare” (NLRB v. Insurance Agents’ International Union,
361 U.S. 477, 489 (1960)) and the relative “bargaining
strengths of the parties.” H. K. Porter Co. v. NLRB,
supra, at 108. This Court, once and for all, should in-
form the Board that it does not have the authority to
make such intrusions.
II.
THE BOARD, IN REFUSING TO CONSIDER THE
COMPANY’S EVIDENCE THAT ITS CONTRACT
PROPOSALS WERE REASONABLE, HAS FAILED TO
ADHERE TO A PRIOR DECISION OF THIS COURT.
While an employer cannot obstruct the bargaining
process by proffering extreme contract proposals and
refusing to modify its position, an employer can adhere
to reasonable proposals under Section 8&(d) of the Act
whether or not they are unacceptable to a union. If
challenged, the employer can prove the reasonableness
of its proposals and, therefore, defeat a charge of bad
faith bargaining by (1) showing that the same or similar
proposals have been accepted by other unions, or (2)
other evidence of reasonableness. NLRB v. American
National Insurance Co., 343 U.S. 395, 405-407 (1952).
In the instant case, the Board and the ALJ, apparent-
ly adhering to the Board’s prior decision in Gulf States
Manufacturers, Inc., supra, refused to consider the Com-
pany’s evidence that its proposals were reasonable. At
the hearing, the Company presented John Bacon as an
expert witness. Bacon’s background included work as a
union officer and as an editor of the Bureau of National
akties
Affairs’ collective bargaining publication. He also had
extensive experience in hundreds of collective bargain-
ing negotiations on behalf of various industries. Bacon
testified without any personal remuneration (other than
expenses) or previous relationship with the Company.
The major thrust of his testimony and numerous ex-
hibits introduced into evidence was that the Company’s
bargaining positions in regard to union access, manage-
ment rights, union security and contract duration
could not be considered “unusual” and were the same or
similar to positions taken by many other employers and
accepted by many other unions.2
Although the ALJ allowed Bacon to testify and allow-
ed the documents identified by him to be admitted into
evidence, his reaction to the Company’s attempt to show
the reasonableness and statistical prevalence of its
proposals as evidence of good faith bargaining can only
be described as disdainful. (Tr. 899-902)
Also, the ALJ refused to admit evidence into the
record which showed the reasonableness of the Com-
pany’s decision not to offer a general wage increase.
This evidence consisted of exhibits offered by the Com-
pany containing independently conducted wage surveys
for the geographical area in which the Company’s plant
is located with wage rates for similar jobs and skills. As
Company Vice-President Kinander testified, it was only
after studying these surveys that he concluded that the
Company’s wage rates were comparable to or better
than those paid to similar employees in the area and
that a general wage increase was not warranted. (R.Ex.
44-46) (Tr. 1045-1058)
® These exhibits included portions of collective bargaining
agreements removed from Bacon’s oe files and excerpts
from a publication of the Bureau of National Affairs concern-
ing basic patterns in union contracts. (R.Ex. 20-29)
pe Yee
The ALJ’s decision and the Order of the Board totally
ignored the testimony of Bacon, the exhibits introduced
into evidence and the rejected independent wage sur-
veys. This failure of the ALJ and Board is in direct con-
flict with the test set forth by this Court in American
Nattonal Insurance Co., supra, and applied by the Fifth
Circuit Court of Appeals in Gulf States Manufacturers,
Ine., supra.
In American National Insurance Co., this Court, in
approving a management rights clause offered by the
employer, stated at 343 U.S. 405:
“... A review of typical contract clauses
collected for convenience in drafting labor
agreements shows that management nctions
clauses similar in essential detail to the clause
proposed by respondent have been included in con-
tracts negotiated by national unions with many
employers .. .”
The court in Gulf States noted that the employer in
American National Insurance Co., supra, like the
employers in Gulf States and the instant case, proved its
proposals were reasonable by citing treatises and other
publications on collective bargaining. At 579 F.2d 1320-
1321 the court, in rejecting the position of the Board,
stated:
“... This holding appears to be inconsistent with,
if not contrary to, the holding of the Supreme Court
in NLRB v. American National Insurance Co.,
supra, where the Court approved this method of
showing good faith by an employer .. .”
** *
“Thus, the theory of the Board that no union would
accept the Company’s proposals in the instant case,
is factually incorrect. Jts holding that even if other
unions had accepted them, such acceptance would not
be evidence of good faith appears to be legally in-
correct.” (Emphasis added)
—15—
III.
INTENSIVE NEGOTIATIONS OVER IMPORTANT
SUBSTANTIVE PROVISIONS DID OCCUR.
Although the Board minimizes the importance of the
lengthy negotiations which occurred by stating that such
discussions involved only insignificant proposals, the
record is replete with evidence and even admissions by
Union representatives that meaningful bargaining on
important contract provisions did occur. The following is
a brief summary of this evidence:
—All information requested by the Union in aid of
bargaining was promptly furnished by the Com-
pany. (G.C.Ex. 35, 40, 41)
—Twelve negotiating meetings were held prior to
the strike in August, 1976. The six-month hiatus
which occurred between the meeting of January 28,
1976 and the meeting of July 14, 1976 resulted
because the Union requested no meetings.
—The detailed minutes and the testimony of the
Union’s chief negotiator demonstrate vividly that
the approach of the parties to all issues was in-
depth and far from perfunctory. (G.C.Ex. 32(a)+1);
Tr. 633-784) By November 13, 1975 agreement had
been reached on approximately 80% of all non-
economic issues. (R.Ex. 18g), 19). Similarly, at the
final negotiating session of August 4, 1976, the Un-
ion’s negotiator conceded that there had been “a lot
of give and take on both sides.” (G.C.Ex. 32(1) p. 3)
—The record shows that the proposals upon which
the parties agreed were extensive, and included
such fundamental and substantial provisions as
seniority, layoff and recall and grievance and ar-
bitration, “no strike” by the Union and “no lockout”
by the Company, wage rate progression schedule
and many other non-economic and _ economic
agreements. These agreements by the Company to
initial Union proposais are in striking contrast to
the position of the company in NLRB v. Wright
—16—
Motors, Inc. 63 F.2d 604 (7th Cir. 1979) upon which
the Court of Appeals relies in its Order.
—The minutes of private caucuses of the Company
during the negotiation meetings, subpoenaed by the
Board, establish beyond doubt that the Company
labored over contract provisions and earnestly
sought a satisfactory agreement. (R.Ex. 18(c)-(i))
They are an important clue to the Company’s sub-
jective motivation.’
—Finally, after the meeting of January 28, 1976,
when the Company presented its final proposals, it
had a comprehensive offer on the table for a con-
tract which was open to binding Union acceptance
at any time thereafter. Thus, the Company was not
evading agreement but merely seeking agreement
on the best terms it could obtain.
IV.
IN ENFORCING THE ORDER OF THE BOARD, THE
COURT OF APPEALS FAILED TO CONSIDER THE
RECORD AS A WHOLE AS REQUIRED BY THE
SUBSTANTIAL EVIDENCE RULE.
In its Order the Court of Appeals acknowledges that
the Board may not sit in judgment of the substantive
content of contract proposals. The Court then proceeds
to weigh the proposals itself and distinguishes the
decisions of the Fifth and Ninth Circuits in Gulf States
and Tomco from the instant case by stating (in complete
disregard of the instant record) that the Company
herein introduced no evidence that its proposals were
reasonable and made no concessions during the contract
’ Counsel for the General Counsel introduced minutes of all
of the negotiations into evidence. (G.C. Ex. ee ag ) However,
these exhibits did not include minutes of the Company
caucuses. Therefore, the Company introduced minutes of those
negotiation mene where caucuses were held and which in-
clude minutes of these caucuses, (R.Ex. 18(c)-(j) )
a
negotiations. Instead, the court asserts that the instant
case is more analogous to NLRB v. Wright Motors, Inc.,
supra.
The instant case is not at all analogous to the Wright
Motors case for several reasons: in that case the
employer proposed extremely harsh cortract provisions
unusual to the point of being bizarre such as guaranteed
open-shop with limited check-off, a management rights
clause not subject to grievance and arbitration, a no
strike-no lockout clause providing for fines, injunctions
and forfeiture of cash bond, permissive arbitration of
grievances and complete company discretion in regard
to wages and promotions. Wright Motors, Inc., supra,
603 F.2d at 608, n.5.
Also in Wright Motors, the employer could not and did
not show that its proposals were reasonable. Finally, the
employer in Wright Motors made no concessions during
contract negotiations. In the instant case, the Board
admitted in its brief to the Court of Appeals that the
Company and the Union negotiated and reached agree-
ment on numerous proposals. (Board Brief, p. 59)
The Company’s evidence concerning the reasonable-
ness of its proposals and the concessions made during
collective bargaining were cited repeatedly to the Court
of Appeals in the Company’s Brief, Reply Brief and
Petition for Rehearing. Yet in its Order, (A-82) the court
stated:
“In this case the Company failed to introduce evi-
dence at the hearing that showed its extreme
proposals were not unreasonable or irregular.
Furthermore, the transcripts of the negotiating
sessions reveal that the Company made no signifi-
cant concessions on issues that go to the heart of
collective bargaining contracts.”
1G
The failure of the Court of Appeals to consider the
Company’s evidence as to the reasonableness of its
proposals constitutes a clear violation of the substantial
evidence rule enunciated in Universal Camera Corp. v.
NLRB, 340 U.S. 474 (1951). In defining the duty of the
courts, this Court in Universal Camera, at 340 U.S. 474,
488 stated:
“The substantiality of evidence must take into
account whatever in the record fairly detracts from
its weight. This is clearly the significance of the
requirement in both statutes that courts consider the
whole record.” (Emphasis added)
Since the Court of Appeals erroneously states that
evidence of record was not introduced, it did not
consider “the whole record” and did, in fact, “deem itself
merely the judicial echo of the Board’s conclusion.”
Thus, this case is that “rare instance when the standard
appears to have been misapprehended or grossly mis-
applied” which requires intervention by this Court.
Universal Camzra Corp., supra, 340 U.S. at 491.
59
CONCLUSION
-
/
The Order of the U.S. Court of Appeals for the
Seventh Circuit in the instant case places it in direct
conflict with the Court of Appeals of the Fifth Circuit
(Gulf States Manufacturers, Inc., supra) and the Ninth
Circuit (Tomco Communications, Inc. supra) and the
decisions of this Court in American National Insurance
Co., supra, H. K. Porter Co., Inc., supra and Carbon
Fuel Co., supra. In addition, the Board continues in its
decisions to consistently ignore the mandate of the
Courts of Appeal prohibiting it from compelling con-
cessions by employers and otherwise sitting in judgment
upon the substantive terms of collective bargaining
agreements between employers and unions. The Board’s
defiant attitude also is in direct conflict with Section
8(d) of the Act which states that the obligation to
bargain in good faith “does not compel either party to
agree to a proposal or require the making of a
concession”. 29 USCA § 158(d)
The failure of the Seventh Circuit Court of Appeals to
limit the Board’s improper intrusion into the collective
bargaining process obviously places both employers and
unions in an impossible situation regarding their
bargaining posture because in some Circuits an em-
ployer may engage in “hard bargaining”, whereas in
other Circuits, the employer may be compelled to
engage in “soft bargaining” subject to the whims of an
administrative law judge and the Board who determine
whether Company proposals are unacceptable or even
distasteful to a particular union’s negotiators or mem-
bership.
—20—
In order to resolve the conflict regarding the obliga-
tion of “good faith bargaining” on the part of an
employer as mandated by Section 8(d) of the Act, we
request that this Court issue the Writ of Certiorari to
the U.S. Court of Appeals for the Seventh Circuit as
prayed for by the Company.
Dated this 25th day of April, 1980.
Respectfully submitted,
Tomas D. Buriace
SamvueL W. Wrrwer, Jr.
R. Dennis CLAESSENS
Attorneys for Petitioners
Of Counsel:
Witwer, Moran, Burtace & ATKINSON
125 South Wacker Drive
Chicago, Illinois 60606
APPENDIX
Decision of Administrative Law Judge 1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ELECTRI-FLEX COMPANY Cases Nos.
and see eee
-CA-16353
DISTRICT No. 122, INTERNATIONAL 13-CA-16654
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
Paula Goodgal, Esq. and
Rochelle Golub, Esq.,
for the General Cocina.
Samuel W. Witwer, Jr., Esq. and
R. Dennis Claessens, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
Bruce C. Naspor, Administrative Law Judge: This
case was tried in Chicago, Illinois, on various dates
between May 23, 1977 and August 17, 1977. On August
2, 1976, District No. 122, International Association of
Machinists and Aerospace Workers, AFL-CIO, herein
called the Union or IAM, filed the original charge in
Case No. 13-CA-15687 against Electri-Flex Company,
herein called the Respondent or the Company, alleging a
violation of Section 8(a\(1) and (3) of the Act. On August
11, 1976, the Union filed the first amended charge in
Case No. 13-CA-15687 alleging violations of Sections
8(aX1), (3), and (5) of the Act. On August 20, 1976, the
Union filed a second amended charge in Case No. 13-
CA-15687 alleging violations of Sections 8(aX1), (3), (4)
and (5) of the Act. On August 20, 1976, the Union filed a
second amended charge in Case No. 13-CA-15687
alleging violations of Sections 8(a)1), (3), (4) and (5) of
the Act. Thereafter, on September 1, 1976, and Novem-
ber 3, 1976, respectively, the Union filed a third
2 Decision of Administrative Law Judge
amended charge and a fourth amended charge in Case
No. 13-CA-15687, alleging violations of Sections 8(a)(5),
(4), (8) and (1) of the Act. On February 14, 1977, a
Complaint and Notice of Hearing in Case No. 13-CA-
15687 issued alleging violations of Sections 8(a)1), (3)
and (4) of the Act. On February 24, 1977, the
Respondent filed an Answer in Case No. 13-CA-15687
denying the violations alleged in said Complaint.
On February 28, 1977, an amendment to the Com-
plaint issued in Case No. 13-CA-15687, alleging an
additional violation of Sections 8(a\3) and (4) of the Act.
On March 4, 1977, the Company filed its Answer to the
Amendment denying the violations alleged.
On March 29, 1977, the Union filed the original
charge in Case No. 13-CA-16353, against the Respond-
ent, alleging violations of Section 8(a\1) and (3) of the
Act. On May 3, 1977, a Complaint and Notice of
Hearing issued in Case No. 13-CA-16353, alleging
violations of Sections 8(aX1), 8(aX3), and 8(aX4) of the
Act. On that same date, a second Amendment to the
Complaint in Case No. 13-CA-15687 issued alleging
additional violations of Sections &(a)1), 8(aX3), and
8(aX4) of the Act. Additionally, on that same date, an
Order Consolidating the Cases issued.
Respondent filed its Answer in Case No. 13-CA-16353
on May 9, 1977, denying the violations alleged in the
Complaint. In addition, on the same date, Respondent
filed its Answer to the second Amendment to the
Complaint in Case No. 13-CA-15687 wherein it denied
the violations alleged.
When the hearing commenced on May 23, 1977, the
Complaint, in Case No. 13-CA-15687 was amended to
add to paragraph IV of said Complaint, the name Jesse
Garcia as assistant foreman. The Complaint at para-
graph XI was also amended to add a subsection (2) of
that paragraph, an allegation that on or about May 16,
1977, Respondent unilaterally changed existing terms
and conditions of employment of its employees without
notice to, or bargaining with the Union, by establishing
Decision of Administrative Law Judge 3
a new disciplinary policy for failure to wear safety
glasses in the Plant. Respondent denied Garcia’s super-
visory status. As the hearing progressed, the Complaint
in Case No. 13-CA-15687 was further amended to add to
paragraph IV, the name Lawrence J. Zimmerman as a
personnel consultant, and agent of the Respondent.
Respondent denied Zimmerman’s agency status.
On July 14, 1977, the Union filed the Charge in Case
No. 13-CA-16654 against Respondent, alleging violation
of Sections 8(a\3), (4) and (1) of the Act. On July 22,
1977, a Complaint and Notice of Motion to Consolidate
Cases, in Case No. 13-CA-16654 issued, alleging viola-
tions of Sections 8(a)(1), 8(a)(3), and 8(a)(4) of the Act. In
addition, Counsel for the General Counsel moved to
consolidate all three cases. When the hearing was
resumed on August 1, 1977, I granted the Motion To
Consolidate cases thereby consolidating Case No. 13-CA-
16654 with Cases Nos. 13-CA-15687 and 13-CA-16353.
On August 5, 1977, Counsel for Respondent filed its
Answer in Case No. 13-CA-16654 denying the violations
alleged in the Complaint and setting forth as an
affirmative defense that the Regional Director of Region
13 abused his discretion by assigning Rochelle Golub
who appears as Co-Counsel for the General Counsel
herein, as the investigator of the charge during a recess
in the course of the hearing. At the hearing, Counsel for
the General Counsel made a Motion to strike Respond-
ent's affirmative defense in Case No. 13-CA-16654,
which was denied. In their brief, Counsel for the
General Counsel renewed their Motion to strike Re-
spondent’s affirmative defense. That Motion is denied.
On August 15, 1977, Respondent informed me, and
Counsel for the General Counsel by telegram, that it did
not intend to present a defense in that case, but, would
instead rely on its Answer. Moreover, Counsel for the
Respondent suggested that the hearing be dispensed
with and the record be closed forthwith.
On the last day of hearing, August 17, 1977, the
second amendment to the Complaint in Case No. 13-CA-
15687, was amended to add at paragraph VII, three
4 Decision of Administrative Law Judge
additional allegations of violations of Section 8(a1) of
the Act. Respondent denied the additional alleged viola-
tions.
Based upon the entire record in this case, including
extensive briefs filed by the parties and my observation
and evaluation of the demeanor of the witnesses, I make
the following:
FINDINGS OF FACT
I. Jurisdiction
Electri-Flex Company is an Illinois corporation en-
gaged in manufacturing flexible electrical conduit, with
its principal office and place of business in Roselle,
Illinois, where, during the past year, it purchased and
received goods and materials directly from points out-
side the State of Illinois, which were valued in excess of
$50,000.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Sections 2(6) and (7) of
the Act.
Respondent admits, and I find, that the Union herein,
is a labor organization within the meaning of Sections
2(5) of the Act.
On August 15, 1975, the Union was certified as the
collective bargaining representative of Respondent’s em-
ployees in the unit described below, and by virtue of
Section 9(a) of the Act, is and has been since August 15,
1975, the exclusive collective bargaining representative
of all employees in said unit, for the purpose of collective
bargaining with respect to wages, hours, and other
terms and conditions of employment.
The bargaining unit is: All full-time and regular part-
time production and maintenance employees employed
at the employers facility currently located at 222 West
Central Avenue, Roselle, Illinois, excluding office cleri-
cal employees, professional employees, administrative
Decision of Administrative Law Judge 5
employees, managerial employees, guards and super-
visors as defined in the Act.
II. The Unfair Labor Practices
A. Background
The instant cases are but part of the continuing saga
between Respondent and the IAM. On March 17, 1977,
the Board issued a decision and order affirming the
findings and conclusions of Administrative Law Judge
John M. Dyer, which appears in 228 NLRB No. 79. On
February 14, 1978, the Court of Appeals for the Seventh
Circuit granted the Board’s Petition For Enforcement.
I take administrative notice of the Board’s and Court’s
decision wherein Respondent was found to have inter
alia, engaged in pervasive 8(a)(1) conduct and unilater-
ally instituting and enforcing a written, warning
notice—disciplinary system, without bargaining with the
Union. Furthermore, Respondent was found to have
engaged in 8(a)(1), (3) and (5) of the Act by discrimina-
torily transferring, laying off and discharging union
adherents.
Many of the same employees and supervisors herein,
were also involved in the prior case. The following
should serve to illustrate the cast of characters and the
issues present before me:
Alleged Independent 8(aX1) Conduct
Employee Supervisor Conduct
Ignacio Marrero Mario Colosi Threats
Teofilo Lopez Jesse Garcia! Threats
Atanacio Martinez Luis Caban Promise of benefits
Luciano Colon Luis Caban Promise of benefits
Luciano Colon Luis Caban Threats
Pickets Bob Bily Surveillance
Sergio Perez Luis Caban Threats
Leoncio Gonzales Celestino Hermandez Threats
' Supervisory status denied—all others admitted to be super-
visors within the meaning of the Act.
6 Decision of Administrative Law Judge
Alleged 8(aX3) and (4) Conduct
Employee Incident:
Andrian Velez Failure to report back to work after
bie job-related accident—discharged
Atanacio Martinez Withholding raise, and April, 1977,
suspension
William N n Failure to call in or report to work
eis when strike terminated—discharged
Mario N n Failure to call in or report to work
gai when strike terminated—discharged
Teofilo Lopez Assaulting foreman—discharged
Nelson Acevedo Failure to clean machine—discharged
Martin Ibarra Took a trip to Florida without calling
in absent—discharged
Leoncio Gonzales Absent without calling in—5-day
suspension
The remaining issues to be resolved are whether the
Respondent engaged in bad faith, “surface bargaining”
by inter alia, adherence to “patently _unacceptable
proposals such as wages, management rights, duration
of contract, union security and union access to the plant.
It has also been alleged that the Respondent violated
Section 8(a\(5) of the Act by unilaterally establishing a
new disciplinary policy for failure to wear safety glasses
in the Plant. Respondent is also alleged to have entered
in a new employee’s personnel file, a memorandum
reflecting this employee’s union sentiments.
B. The 8(a})(1) Violations
Ignacio Marrero, shop chairman,’ was approached by
Mario Colosi, plant superintendent, on May 21, 1976.
Colosi told Marrero that employee Martin Ibarra had
accidently cut his hand for the second time, and asked
him what he wanted him (Colosi) to do about it.
* The “incidents” are merely to serve as introductory
guidelines or a frame of reference so as to render the dis-
cussion and analysis more intelligible.
8’ Marrero was found to have been laid-off in violation of
Section 8(a\(1) and (3) in 228, NLRB No. 79.
Decision of Administrative Law Judge 7
According to Marrero’s version, Colosi stated, “What do
you want me to do, give him time off, a warning ticket,
give him a raise or fire the guy?” Marrero asked what
he was going to do, and Colosi responded, “I think I
better fire this guy.” Marrero replied, “Mario if you are
going to fire the guy, I am going to file charges with the
Labor Board,” Colosi countered, “I will tell you what.
You know what I’m going to do. If he still gives me
problems to take charges to the Labor Board, you know,
what I am going to do, we are going to move the plant
out of here.” Marrero replied, “Well Mario, I don’t give a
damn if you are going to move the plant or not because
this is not the only place to work in the State of Illinois.”
Colosi then winked at Enrique Garcia,‘ Slitting Depart-
ment foreman, who was present during the conversation.
Colosi confirmed the incident as related by Marrero,
although he specifically denied that aspect of the
conversation dealing with moving the Plant. Counsel for
the Respondent do not argue that Colosi should be
ree ae rather they aver that Colosi, “obviously was
joking... .”
In support of this proposition they cite, Baker
Machinery Co., 184 NLRB No. 39 and Ingersoll-Rand
Co., 219 NLRB No. 77. In Baker Machinery the
statement, whether made seriously or in jest was not
necessarily related to union activity. In Ingersoll-Rand
Co., the Board reasoned that the Administrative Law
Judge credited a supervisor and found that the remark
was made in “obvious jest.” Those cases are inapposite to
the instant case. Furthermore, I credit Marrero’s
version and specifically discredit Colosi. Therefore, I
conclude that Colosi’s conduct in this regard violates
Section 8(a)(1) of the Act.
Supervisory Status and Conduct of
Jesse Garcia
Respondent contends that Garcia is a rank-and-file
employee, relying inter alia, on the fact that he voted in
* Garcia was not called to testify.
8 Decision of Administrative Law Judge
the election without challenge and participated in the
election as a company observer. Thus, Respondent
considers him a leadman who performs “setup” duties,
although conceding that he has filled in for Luis Caban,
an admitted supervisor, during Caban’s absence from
the Plant, on isolated occasions.
Counsel for the General Counsel allege that Garcia is
an assistant foreman, and as such, is a supervisor within
the meaning of the Act.
Garcia testified that he does not have the authority to
hire, fire,> promote or demote employees but, among his
duties he saw to it that the men he was “in charge of”
correctly recorded their hours, wore safety equipment,
do not loaf, produce, keep the machines in repair and
the area clean.
Record testimony reveals multitudinous examples of
payroll change notices, absence and tardy reports,
separation notices and warning notices® taken from
employee personnel files and signed by Garcia for the
period August, 1975, through April, 1977. Garcia also
testified that he issued these various writings of his own
accord. Moreover, he has, on his own initiative, arranged
employee safety meetings where he presided and he has
appointed set-up men to speak at these meetings. Garcia
and Caban both acted as Company interpreters in
disciplinary meetings. He has effectively recommended
raises and, in Caban’s absence, actually granted raises.
Respondent contends that except when he temporarily
acts as a foreman during Caban’s absence, employees
did not view Garcia as a supervisor. Counsel for
Respondent cites two instances where employees’ atti-
tudes belie Garcia’s supervisory authority. It is my
opinion that these two examples reflect something less
6 Later in his testimony, he admitted specifically firing
employees on two occasions, although it appears that Caban
was not present at the Plant and he may have been acting in
Caban’s absence.
6 Referred to throughout the hearing as warning “tickets.”
Decision of Administrative Law Judge 9
than respect for Garcia, rather than a lack of recogni-
tion of Garcia’s supervisory authority.
Based on the evidence I find and conclude that Garcia
has sufficient authority and has exercised same, to
render him a supervisor within the meaning of the Act.
Sometime during June or July, 1976, Garcia, accord-
ing to the testimony of Lopez, asked Lopez how the
Union was doing and “about the contract.” Lopez
responded that it was going fine. Garcia replied that the
Company had good lawyers and a lot of money and
would move rather than let the contract and the Union
in.
According to Garcia, Lopez asked him what he
thought about the Union and he, Garcia, responded that
he did not know. Lopez asked him what he thought the
Company would do,—if the Company would give in.
Garcia replied, “I know what I would do if I was the
company, I would move before I would give in to them.”
He stated further, “I think that the company’s got a lot
more money than the union, and that the company
would beat it, beat them.”
Respondent contends that Garcia’s version of the con-
versation should be credited and if so it falls within the
“free speech” proviso of Section &(c)’ of the Act. Counsel
for the Respondent argue in effect, that Garcia was not
in any position to participate in any decision the
Respondent might make regarding relocation. Further-
more, by recently adding a large addition to its present
facility, Respondent conspicuously revealed its intent not
to move. I credit Lopez and conclude that his, is the
credible version of the conversation.
Furthermore, I disagree with Respondent’s conten-
tions and find that responsibility for Garcia’s statements
should be imputed to the Respondent. Accordingly, I ¢
find that said statements constitute a violation of Section
8(a1) of the Act. Cf. Valley Oil Co., Inc., 210 NLRB
370.
x ‘iecianeaes in its brief, mistakenly cites the Section as
¢).
10 Decision of Administrative Law Judge
Luis Caban’s Alleged Promise of Benefits
To Antanacio Martinez
Antanacio Martinez, who is presently working for the
Respondent, began his employment on August 18, 1975,
at a wage rate of $3.25 per hour. During the period of
August 1976, he was earning $3.50 per hour.
According to the testimony of Martinez, on August 3,
1976, he was working overtime in the Plant’s interlock
department. Luis Caban, in passing Martinez’ work
station was spoken to by Martinez. Martinez asked
Caban if he could be given a raise in view of the fact
that he was aware of many others at the Plant who were
getting raises. Caban responded, “that is alright,” he
was going to speak to Mario Colosi.
The next day, on August 4, Martinez was driving the
lift-truck in the square lock department. As Caban
walked past Martinez, he commented, “hey brother,
brother-in-law, Mario Colosi agreed to give you the raise
that you have asked me for because he say (sic) that you
are not with these union people.” According to Martinez,
Caban then stated “and if you do not attend tomorrow’s
meeting we are going to give you another quarter.”
The meeting refers to a union meeting which was
scheduled for the following day the purpose of which
was to take a strike vote. Notices of the meeting were
posted for all to see in the Plant cafeteria and near the
door to Mario Colosi’s office.
It is Respondent’s position that when Martinez was
denied the raise he became incensed enough to fabricate
his testimony. Although Respondent admits that a raise
was promised to Martinez, it takes the position that the
promise was not a quid pro quo for failing to participate
in the union meeting.
Caban confirmed Martinez’ testimony that on August
13, Martinez came to him with his paycheck to ask
about his raise and that Caban sent him to see Wolbing
who was the acting foreman at that time.
Decision of Administrative Law Judge 11
Caban repeatedly stated that he did not recall whether
or not he spoke with Martinez about having granted him
the raise on August 4. He eventually testified that
Martinez asked him for the raise but he denied that
portion of Martinez’ testimony dealing with his pro, or
union sentiments and predicating the raise on Martinez’
failure to attend the union meeting.
Having witnessed the demeanor of Caban on the
witness stand and his equivocal responses, I discredit his
testimony and conclude that the testimony of Martinez
should be credited as an accurate version of the events.
Accordingly, I find that Respondent violated Sections
8(aX1) and (3) of the Act.
Caban’s Alleged Promise of Benefits
to Luciano Colon
According to Colon’s testimony, on August 4, 1976,
while at his workplace, Colon was approached by Caban
who broached a discussion about the union meeting to be
held the next day. During the conversation, Colon asked
for a raise and was told by Caban that he could get a
raise if he did not go to the union meeting and that the
Respondent would make him a mechanic and send him
to school.’ Colon, who had been in the Respondent’s
employ for a relatively short period of time asked if new
employees attended the meeting what would happen to
them. Caban allegedly responded that he would not give
any more work to them.
In his direct examination by Respondent’s counsel,
Caban initially testified that he did not remember any
conversation with Colon on that day. He continued
testifying that he did not remember a conversation with
Colon on that day concerning a raise. When asked a
leading question detailing Colon’s testimony, Caban
specifically denied the alleged conversation.
* Record testimony revealed that Respondent conducted a
school” to teach English to foremen and other employees.
12 Decision of Administrative Law Judge
I find Luciano Colon’s testimony to be credible and for
the reasons set forth above, I discredit Caban’s denial.
Accordingly, I conclude that Caban’s promises to Colon
predicated on Colon refusing to engage in union activity
violates Section 8(aX1) of the Act.
Furthermore, I find and conclude that Caban’s
statement to Colon, that if new employees attended the
meeting, Colon would not give anymore work to them, is
tantamount to a threat of discharge for attending a
union meeting and as such, is an additional violation of
Section 8(a)(1) of the Act.
Alleged Surveillance of Picketing
On the morning of the first day of the strike, August
16, 1976, according to Colosi, 25 to 30 strikers congre-
gated in the area of the driveway and the street outside
of the Plant. Colosi testified that he observed two pickets
marching across the driveway and about eight or nine
other employees standing in the driveway preventing
trucks from entering or leaving the Plant. According to
Bily’s estimate, there were 10 to 15 people in the area.
Colosi instructed Bily to take a picture of the activity
from the inside of the building with a polaroid camera.
The glass through which Bily focused the camera was
tinted, thus the photograph came out black. Bily then
left the building and went to the area where the strikers
and pickets were congregating. Colosi and Bily both
testified that when Bily went outside with the camera,
the employees in the driveway dispersed. Bily admitted
that it was after the employees in the driveway
dispersed that he raised the camera and focused it. Bily
ee further that he did not even attempt to snap the
snutter.
In Respondent’s affirmative defense it asserts that
Bily was acting in conformity with the manual which
had been furnished to supervisors by Counsel for the
Respondent, which provided among other things, that
photographs should be taken of violént pickets, mass
picketing or unlawful acts, so as to provide a basis to
Decision of Administrative Law Judge 13
seek an injunction to prevent the picketing. The manual
admonished that peaceful activity should not be photo-
graphed.
The Board held in a myriad of cases, that whether
pictures are taken or not has no bearing on the coercive
effect such conduct has on employees. Indeed, the fact
that Bily did not take a photograph or even trip the
shutter convinces me that his conduct was calculated to
coerce and restrain striking employees by creating fear
in them, that their activities might be used in the future
in a retaliatory manner. Respondent has not adduced
evidence in this record that Bily’s act of taking one
photograph and focusing a camera were for legitimate
purposes such as to provide evidence to get a state court
injunction to enjoin violence or mass picketing. It
appears to me that the picketing was peaceful and there
is no evidence other than a statement from Bily that the
egress of trucks was blocked. See, Russell Sportswear
Corp., 197 NLRB 1116 and cases cited therein.
I find and conclude that Respondent’s conduct de-
scribed above, violated employees’ rights as guaranteed
bd ee 7 of the Act, in violation of Section 8(a\1) of
e Act.
Caban’s Alleged Threats to Perez
Sergio Perez, who has worked for the Respondent for
approximately 11 years, testified against the Respondent
on behalf of the General Counsel in the prior proceeding,
and was credited. Perez participated in the strike in
August, 1976.
During the period, sometime after the strike, Re-
spondent transferred Perez from job-to-job and machine-
to-machine. Apparently, many employees were similarly
—— transferred around the Plant on a continuing
asis.
Perez testified that in September, or October, 1976,
while he was welding at about 11 a.m., Caban, who was
coming from the cafeteria walked past him. Perez
stopped Caban and asked why so many people were
14 Decision of Administrative Law Judge
being transferred from job-to-job. According to Perez,
Caban responded that the people who were being
transferred were all those who had gone to the Labor
Board and that according to the Respondent, those
people were a bunch of trouble makers. Perez countered
that was not his problem because he was doing his job.
Caban then told Perez that after 1 year passed,
everything would be back to normal as it was in the
beginning, and there would be no more problems.
Furthermore, Caban told Perez that if any of those
people who went to the Labor Board quit of their own
accord, or were fired, they would never be able t6 get a
job in the State of Illinois.
Respondent contends that it would be incredible that a
supervisor, i.e., Caban, who was charged with sub-
stantial 8(a)(1) conduct in the previous proceeding,
would make such comments to one of the accusers in
that proceeding.
Based on the demeanor of Perez and his straight-
forward manner of testifying, I credit his testimony in
all respects regarding his conversation with Caban.
Furthermore, I conclude that Perez was unreliable in
his denials, many of which were elicited on direct
examination by leading questions. I therefore, specifical-
ly, discredit Caban’s testimony which related to the
threats made to Perez. Accordingly, I find that Caban’s
conduct violated employees’ rights as guaranteed by
Section 7 of the Act, in violation of Section 8(aX1) of the
Act.
Hernandez’ Threats to Gonzales
Leoncio Gonzales began working for the Respondent
on July 7, 1975. He and other employees participated in
the strike at the Respondent’s Plant in August, 1976. He
performed picket line duty from 4 a.m. to 8 a.m., and
recalled seeing Colosi, Caban, Bily, Detrick and Hernan-
dez, all supervisors, passing through the picket line.
On March 14, 1977, Gonzales was assigned by Caban
to Hernandez’ department, where Hernandez ordered
Decision of Administrative Law Judge 15
Gonzales to repack roles of cable from wire baskets to
cardboard boxes instructing him to utilize the lift-truck
to move the wire baskets. According to the testimony of
Gonzales he had never driven a lift-truck prior to that
day. While attempting to place the forks under the wire
baskets, some of the baskets fell over spilling out cable.
Gonzales reported the accident to Hernandez, who got
Colosi and brought him over to the area of the spilled
baskets. At this time Colosi said nothing to Gonzales,
and Gonzales had everything cleaned up in something
less than in an hour.
At approximately 4:25 p.m. on the same day, Hernan-
dez came up to Gonzales and presented him’ with a
warning ticket. Hernandez stated, “I am giving you this
ticket, I hope you don’t get mad about it because this
ticket, it is not I who give it to you, it is Mario Colosi
who is sending it. Don’t feel resentful about it because
before the union started here they didn’t give these
tickets here. From the union on, is when this thing
happened. For that reason, this ticket is issued.”
Hernandez told Gonzales not to feel bad about him i.e.,
Hernandez, because he handed him the ticket, and that
the Union had spoiled the whole thing and that “the
people who were being fired all had too—all was
because of the union.” Hernandez then told Gonzales
that Colosi had wanted to send him home after the
incident, but, he convinced Colosi to let Gonzales finish
his 8 hours. At the end of Gonzales’ 8-hour shift, he was
suspended for 3 days.
Hernandez was called upon to testify on behalf of the
Respondent and he denied Gonzales’ testimony regard-
ing the March 14 conversation. I find the testimony of
Gonzales to be reliable and I discredit Hernandez?
regarding the conversation which occurred between
Gonzales and Hernandez on March 14, 1977. Accord-
ingly, based on Gonzales’ credible testimony, I find that
Hernandez, by these statements, set forth above, violated
Section 8(a)(1) of the Act.
* The Administrative Law Judge in the prior case arrived at
the same conclusion in assessing Hernandez’ credibility.
16 Decision of Administrative Law Judge
The Discharge of Adrian Velez
Adrian Velez began working for the Respondent in
February, 1975. The Union commenced to organize
Respondent’s employees sometime in June, 1975. Velez
signed a union authorization card and attended most of
the union meetings which were held both before and
after the election.!° On the morning of the election, Velez
distributed union literature in front of the Plant and
acted as the union observer at the election.
On April 15, 1976, Velez testified on his own behalf, in
support of numerous 8(a1) allegations and an allegation
that he was transferred to another job, in violation of
Section 8(a)(3) of the Act. An Administrative Law Judge
found, as affirmed by the Board and Court, that Velez’
transfer was “for the purpose of punishing and dis-
couraging Velez for his union sentiments and in attempt
to get rid of him prior to the union election.” Velez’
testimony in support of alleged 8(aX1) conversations he
had with supervisors was credited and the Respondent
was found to have violated Section 8(a)(1) of the Act in
this regard.
On April 22, a week after Velez had testified, his
foreman in the extruding department, Bily, told him to
get a haircut because his hair was too long. Bily advised
Velez that the order to get a haircut came from Colosi.
Velez told Bily that other employees had long hair, and
they were not told to get a haircut, but, Velez agreed to
get the haircut. Bily responded that he did not care
about any other employees. The next day, Velez got a
haircut.
On the next working day, which was Monday, April
26, Bily asked Velez if he had gotten a haircut and
Velez responded affirmatively. According to Velez, Bily
looked at his head of hair and stated that he was not
pleased with the haircut Velez had gotten. Approxi-
mately % hour later, Velez was called to Colosi’s office.
Present in Colosi’s office, were Colosi, Bily, and union
stewards Rose and Negron. Colosi told Velez he did not
10 The election was held on August 7, 1975.
Decision. of Administrative Law Judge 17
like his haircut and told him to get it cut more, because
of Company rules. Velez requested to see the rules and
Colosi refused. Colosi then instructed Bily to give Velez
a warning ticket. Bily wrote the following warning
ticket and presented it to Velez. “If Adrian Velez does
not come in to work on Tuesday morning, April 27,
1976, with a reasonable haircut, he will be sent home
until the time that he does get a haircut in accordance
with the ruling set by management that all employees
must get a haircut as per a meeting on April 26, 1976,
with Dick Rose, Bob Bily and Mario Colosi.” The
warning notice was signed by Robert E. Bily.
A couple of hours later that day, Bily took Velez back
to Colosi’s office, where again, Negron, Rose, Bily and
Colosi were present. Colosi advised Velez that in keeping
with Company rules Velez had to wear a hair net.
Furthermore, Colosi stated that if Velez refused to wear
the hair net he would have to go home. Velez took the
hair net and left the office. Sometime during the
afternoon, Colosi posted a notice in English" regarding
haircuts and hair nets. The notice which is dated March
22, 1973, reads as follows:
NOTICE TO EMPLOYEES
Effective Monday, March 26, 1973, any employee
who has long hair will be required to wear a hair
net for his own safety.
Long hairs will have a choice of either cutting their
hair to a safe reasonable length or wearing a hair
net.
It will be up to the discretion of the management on
deciding who’s hair is dangerously long.
The notice is signed Management. Ignacio Marrero, an
employee who has been with the Respondent since 1974,
'' During the course of the trial the Spanish-speaking
employees with some few exceptions, testified through an
interpreter. Although most of the employees spoke some
English, they felt that they would be more comfortable and
articulate testifying in their native tongue.
18 Decision of Administrative Law Judge
testified that he saw the notice posted sometime during
the recess of the preceding trial between April 26, and
May 10. He testified further, that he had never seen the
notice posted prior to that time. Additionally, Marrero
testified that employees did not wear hair nets prior to
the time the notice was posted.
Velez testified that he was so embarrassed and
ashamed about having to wear the hair net, that he wore
a wool-knit ski cap over the net. For the next week, on a
daily basis, Bily checked Velez to make sure he had the
hair net on under the cap, insisting on each occasion,
that Velez remove the cap and thereby show Bily that
he was wearing the hair net. On several of these
occasions, Bily threatened to send Velez home if he did
not have the hair net on under the cap. Bily warned
Velez that he did not want to see one single strand of
hair out of the net.
On June 23, Velez was working in the Extruding
department on a piece of equipment known as the NRM
machine. Velez informed Bily that the conveyor on this
machine was not in a fixed stationary position, but,
rather, was moving around because it was not properly
severed to the floor. Bily told Velez to continue working,
that he would have the conveyor repaired later.
The next day, according to the testimony of Velez,
shortly before noon, cable got stuck in the head of the
NRM machine. In trying to free the cable, Velez lost his
balance and fell backward. The conveyor which appar-
ently had not been bolted to the floor, fell toward Velez
who was lying on the floor. Velez caught the conveyor
with his hands supporting it at about chest level.
Several employees lifted the conveyor off of Velez and
helped him to a standing position. Then several foremen,
including Colosi, arrived. Colosi instructed Velez to
demonstrate how the accident occurred, because ac-
cording to Colosi, insurance would not cover Velez and
he would not cover Velez and he would not send Velez to
the hospital. Velez demonstrated how the accident
occurred and Colosi then sent him to the Company
doctor, Dr. Pevsner.
Decision of Administrative Law Judge 19
According to Respondent’s witnesses, Velez fell to the
floor with one section of the conveyor coming to rest
across his shins. Furthermore, the full weight of the
conveyor was not on Velez’ legs, since the section which
fell remained connected to the other sections of the
conveyor which did not fall.
Two foremen, Hernandez and Slad, testified that
Velez got up from the floor immediately and began
flexing his arms and muscles while walking around the
floor, thus indicating that he had not been injured as a
result of what the Respondent characterizes as Velez’
negligence.
After seeing Dr. Pevsner, Velez was released and
returned to perform light-duty work. The doctor gave
Velez a note to take back to the Company stating that he
was to perform light-duty functions, accordingly he was
assigned to make hangers. Sometime in the afternoon of
the day of the accident, Bily called Velez in to Colosi’s
office. Colosi handed Velez a warning notice, cautioning
Velez against further instances of on-the-job injury due
to carelessness. The notice was signed by Mario Colosi as
plant superintendent and Robert Bily, extruding fore-
man. Colosi told Velez he was issuing this warning
because Velez had too many accidents.
At approximately 5 p.m. that same day, Velez
testified that he observed the maintenance man, Tuleja,
bolting down the NRM conveyors.
On June 23, Velez sent West Kinander, president of
Respondent, a registered letter detailing the history of
his past accidents.
Velez visited Dr. Pevsner on three other occasions and
on June 29, Pevsner released Velez, although Velez
insisted that he still had pain in his back. Velez
returned to work on June 29, after his appointment with
Dr. Pevsner and gave Bily the doctor's release slip. Bily
assigned Velez to the grinding machine. Velez stated
that he was in pain, but, Bily told him that the doctor
had certified that he was able to perform normal duties.
Velez tried unsuccessfully, to lift a cable to grind and he
20 Decision of Administrative Law Judge
notified Bily that because of his back pain, he could not
perform functions on the grinding machine. Bily then
assigned Velez to do cutting on the NRM. He worked
there for the rest of the day assisted by a machine
operator and packer.
On July 1, Velez told Bily that he was still suffering
great pain in his back and he wanted to see the
Company doctor. Bily refused and as a basis for this
refusal, stated that Dr. Pevsner had already certified
Velez recovered, and then he assigned Velez back to the
grinding machine. Velez was again unable to lift the
boxes containing the cable to be ground, so Bily
reassigned Velez back to the NRM. Velez’ back
continued to hurt and he complained to Bily that he was
in pain. Bily told Velez in the presence of Marrero and
Negron that there was no more light work for him and
Velez should go home until his back improved. Velez
left at approximately 9:30 a.m.
Later that day, about 3 p.m., Velez learned that a
message had been left for him at his mother-in-law’s
house, he was to call Marrero at the Plant. Velez called
the Plant and first talked to Bily. Bily asked him how he
felt, and Velez responded that he was still in pain and
was attempting to make an appointment with his
personal physician. Then Velez requested to speak to
Marrero. Marrero told Velez that he had been in-
structed to call in and relate to him that Respondent had
found light work for Velez to perform, and if he wanted
to return to work, he would be paid for the entire day.
Velez told Marrero that he was still in pain and trying
to set up a doctor’s appointment, that he would return to
work when his personal physician released him as being
fit. Marrero corroborated Velez’ testimony, adding that
when Marrero communicated to Bily, the contents of his
conversation with Velez, Bily stated that it was alright
and requested Marrero to tell Velez, if he saw him, to
come to work the next day. Marrero told Bily he would
attempt to do such.
Velez arranged an appointment with his doctor for
Tuesday, July 6. On Monday night, July 5, Velez met
Decision of Administrative Law Judge 21
acting foreman, William Negron at a fourth of July
parade in Elgin, Illinois. Velez advised Negron that he
would not be at work the next day. On Wednesday, July
7, Velez called Negron between 8:30 and 9 a.m. to tell
him he would again be absent from work.
Respondent, on Wednesday, July 7, sent a telegram to
Velez’ mother-in-law’s house. The telegram stated,
“Since you have failed to report to work Tuesday, July 6,
and Wednesday, July 7, you are hereby notified if you do
not report to work Thursday, July 8, 1976, at 7 am.,
CDT, you will be terminated.” The telegram was signed
by Electri-Flex Company, Roselle, Illinois. Velez sent a
reply telegram stating:
Mr. Bob Bily sent me home and I not to report to
work until my back is cured. I can’t report to work
on July 8, because of an appointment with the
doctor in Chicago.
On July 8, Velez called the Company and speaking to
Negron, told him he would not be coming to work. On
Friday, July 9, Velez received notice of a telegram
which he picked up on Saturday. The telegram was
signed by Bruce Kinander and stated that Velez was
terminated effective immediately, since he “repeatedly
failed and refused to report as instructed and failed to
follow the Company established rules for reporting
absences.”
Kinander testified that he was not told that Velez
called or contacted the Company between July 1, and
July 9. Later in his testimony, Kinander claimed that he
was told by someone, he did not know who, that Velez
did not come to work on Tuesday or Wednesday, July 6
or 7. Upon further questioning, Kinander said thai the
acting foreman told him. He then stated that he learned
of Velez’ absences from the absence reports and
consulted with the acting foreman to confirm the report.
Kinander then corrected himself and testified that he
talked to Slad, the assistant foreman, or Brilz, the
acting superintendant, but, Kinander did not recall
anything about the alleged conversation.
ies gett pepegience “operas <datian yh bitetniaie ete athe ye ipa byiton oone 5-0 pei ian
-_
PV tet ee POs Mae
22 Decision of Administrative Law Judge
Brilz, in his testimony, denied speaking to Kinander
the week Velez was discharged. Slad testified that he
never spoke to any individual connected with manage-
ment about Velez. Even Colosi testified he did not
discuss Velez with Kinander between June 24, the date
of Velez’ accident, and the time he, Colosi, returned
from vacation which was after the Velez discharge.
Furthermore, Bily testified that he did not know Velez
was going to be terminated before he left for vacation on
July 1, and he did not recommend the discharge or
discuss Velez with anyone including Kinander, prior to
leaving for his vacation.
Kinander testified that he consulted his attorneys
prior to sending Velez the July 7 telegram. Further-
more, according to Kinander’s testimony, before he sent
Velez the discharge telegram on July 9, he reviewed
Velez’ personnel file. When Velez did not respond to the
July 7 telegram, or show up to work, Kinander called
his attorneys again and discharged Velez. Kinander
offered no explanation as to why he discharged Velez in
the face of the fact that Velez’ reply telegram was in
Velez’ file which Kinander acknowledged he had
perused. Kinander further testified that his principle
concern when an employee is absent, is that the
employee give some notice to the Company to intelli-
gently schedule the production.
Although Respondent’s defense to thé discharge of
Velez was his failure to call in or in any other manner,
report to management, his intentions to be absent from
work, Respondent introduced various medical records
and the testimony of two physicians, Dr. Leonard Smith,
and Dr. Leo Pevsner. Both physicians testified, at some
length regarding Velez’ back injury. Dr. Pevsner, the
clinic doctor, both in his testimony and his medical
report, expressed the opinion that Velez was malinger-
ing throughout his examination. His diagnosis was that
at worst, Velez may have had a mild Lumbosacral
sprain. Furthermore, according to this doctor’s report,
the possibility of a contusion was present, but, there was
no evidence of a contusion, and the treatment was for
Decision of Administrative Law Judge 23
what would be considered a mild sprain or perhaps a
mild contusion. At the request of Aetna Life and
Casualty Company, Velez was examined by Dr. Smith
on August 6, 1976. This was some 6 weeks after the
accident, thus, a definitive diagnosis was not possible.
Dr. Smith found no evidence of any bone injury or any
neurological involvement. He stated that it is possible
that Velez may have incurred a sprain, strain or
contusion of his back. He could not rule that out. Smith
stated in the normal course of healing of such injuries,
they would heal in anywhere from 2 to 4 weeks.
Accordingly, whatever soft tissue injury Velez may have
incurred should have been healed by the time of his
examination if indeed, there was an injury, according to
Dr. Smith. Dr. Smith examines a few hundred patients
in a year for various insurance companies and compensa-
tion carriers.
As stated earlier, Velez was the subject of an 8(a\1)
and (3) charge in the earlier proceeding. The Seventh
Circuit Court of Appeals affirmed the Board, in finding
that the transfer of Velez to another job was for the
purpose of discouraging Velez from engaging in union
activity, and an attempt to get rid of him prior to the
election. In my view, and on the basis of all the
testimony, it is apparent that the Respondent has
continued in its pattern of harassment and discrimina-
tory tactics with an aim towards ridding itself of Velez
and discouraging union activity among its employees.
To begin with, Velez was subjected to a most vigorous
harassment regarding his hair and the hair net. Based
on my observation at the hearing, I would not char-
acterize his hair then, as being long and based on his
testimony and description during the period in question,
I would characterize his hair as being the average
length in relation to how men wear their hair today.
But, assuming arguendo, that Velez had long hair and
that it was necessary to have employees wear hair nets
as a safety measure I conclude that the Respondent used
this as a device to demean and embarrass Velez. At the
hearing, Velez demonstrated how he wore his hair net
Poe ot ee ee ok a ie ek ee ee ee he eee
24 Decision of Administrative Law Judge
and the ski cap over the hair net. In spite of this,
Respondent continued to request Velez to remove the ski
cap so that it would reveal whether or not he was
wearing his hair net. This could serve no purpese other
than to embarrass and harass Velez in view of the fact
that the ski cap was more than adequate in keeping his
hair away from any machinery and the hair net was
rendered superfluous. I will not belabor this issue,
sufficed to say, this is simply another indication of
Respondent’s motivation and resolve to rid itself of
Velez, one way or another.
It should be noted that Respondent commenced to
harass Velez about the length of his hair, 1 week after
Velez testified against Respondent in the prior case.
The fact that Velez had an accident on June 24, is
beyond dispute. Respondent attempted to show that the
accident was a result of Velez’ failure to pay attention to
what he was doing, i.e., carelessness. Although the
evidence indicates that the accident was not caused by
carelessness on the part of Velez, in view of the fact
Velez had advised the Respondent that the NRM
machine was not properly bolted down, I fail to see how
this is relevant to Respondent’s defense. Respondent’s
defense as set forth in its discharge telegram, to Velez,
is he Velez failed to adhere to Respondent’s call-in
rule.
The record is rife with circumstances which point to
an unlawful motive in the discharge of Velez and a
typical case of pretext. For example, Bily admitted send-
ing Velez home indefinitely, on July 1, because he had
no light work for Velez. Nevertheless, after Bily con-
sulted with Respondent’s attorneys several hours later
on the same day, he miraculously found light work for
Velez to perform. Bily’s explanation was, “It was just
made clear to me I should call him back to work.”
Respondent devoted much time and effort in elliciting
testimony designed to reveal that the extent of Velez’ in-
jury was minimal. In this regard, the two physicians
who possessed impressive curricula vitae, testified exten-
Decision of Administrative Law Judge 25
sively. It is clear that Dr. Pevsner, in his testimony and
his medical report, expressed the opinion that Velez was
malingering. In this regard, it should also be noted, that
the physician did not rule out the possibility that an
emotional block may have contributed to Velez’ inability
to respond to the examination. Be that as it may, I do
not view the issue as being whether or not Respondent
reasonably called Velez back to work. Nor, can I find
and conclude on the state of the record that Velez was in
fact, malingering. In my view, Respondent intended to
establish a second defense to Velez’ discharge, a defense
raised at the 11th hour. Accordingly, I am in agreement
with Counsel for the General Counsel, that the shift in
defenses is itself, indicative of Respondent’s dis-
criminatory intent.
Kinander testified employees were required to give
notice when they were absent from work, and the pur-
pose of this was so that the Company could intelligently
schedule the work. Negron, whose testimony I credit,
corroborated Velez, that Velez told him in person, on
July 5, that he would be absent on July 6. Furthermore,
Negron testified that Velez called him on the mornings
of July 7 and 8 and gave notice that he would be absent.
Moreover, Negron testified that he told Brilz, acting
superintendent, that Velez had reported his absences,
yet Brilz forced him to sign absence reports, which Brilz
wrote out for Negron. This evidence coupled with Velez’
reply telegram, lead me to the inescapable conclusion
that Velez. responded and continued to respond to
Respondent’s July 7 telegram, in a timely manner.
Accordingly, on the basis of all the testimony and the
documentary evidence, I conclude and find that the
Respondent’s discharge of Velez violated Sections &(a)1),
(3) and (4) of the Act.
Withholding of Raise and April 1977
Suspension of Antanacio Martinez
Earlier in this decision, in the section captioned, “Luis
Caban’s Alleged Promise of Benefits to Antanacio Mar-
tinez,” I conclude that Respondent promised Martinez a
26 Decision of Administrative Law Judge
raise predicated on his refraining from attending a un-
ion meeting at which a strike vote was to be taken. The
rose involved in this issue have heretofore been set
orth.
Upon receiving his paycheck, Martinez realized that
he had not gotten a raise which had been promised to
him. On August 138, 1976, Martinez complained to
Caban, that he had not received the raise. Caban stated
that he had given Martinez the raise and did not know
what happened. He advised Martinez to talk to his
foreman. Martinez went to Donald Wolbing and asked
him why he had not received the raise. Wolbing denied
knowing about it. Martinez stated that if Wolbing was
his foreman, he should be aware of the raise. Thus, Mar-
tinez and Wolbing then went to speak with Caban and
Wolbing told Martinez he would talk to Colosi. Wolbing
returned sometime thereafter and told Martinez he
would not be getting the raise. Martinez responded by
stating to Wolbing that if he did not get the raise, he
would not work overtime that day. Thereafter, Colosi
joined them and told Martinez that he would not get the
raise..When Martinez asked why, Colosi gave him no
reason. Martinez repeated he would not work overtime
and Colosi told him that he should go home and stay
there, and he, Colosi, would consider Martinez to have
quit. Martinez stated he was not quitting and that he
had already put in a 40-hour work-week. Colosi told
Martinez to go home and stay there. Martinez punched
out and left the premises. Respondent’s witness, Wolb-
ing, foreman of the interlock department, testified that
overtime at the Company is not mandatory.
On Monday, August 16, the employees went out on
strike. Martinez participated in the strike by doing
picket line duty from noon to 4 p.m. Later that week,
Martinez went in to the Plant to get his paycheck. He
spoke to Wolbing who told him that the doors were
opened and that he could come back to work. Martinez
inquired how he could return to work after Colosi had
fired him. Wolbing responded that Martinez could come
back to work whenever he wanted.
Decision of Administrative Law Judge 27
When the strike ended on August 20, Martinez called
Caban to see if he could return to work in view of the
fact that he believed Colosi had fired him. Caban told
Martinez that Colosi said he had not fired Martinez and
he could return to work. Martinez did return to work on
August 23, still having not received the raise.
Caban testified that Martinez had caused him trouble
at the union meeting. He admitted as a result of Mar-
tinez raising the alleged “bribe” at the union meeting,
he, Caban told Colosi he wanted to withdraw the raise.
Colosi confirmed the fact that the reason he permitted
Caban to withdraw Martinez’ raise was because Caban
told him Martinez had accused Caban of bribery at the
August 5, union meeting.
I find that the Respondent’s failure to grant Martinez
the raise which was promised to him on August 4,
violates Sections 8(aX1) and (3) of the Act.
On April 25 or 26, 1977, at about 10:30 a.m., Martinez
was approached by Colosi and Rosa, who told him to fix
his hair net. Martinez told Colosi he had on his hair net
and, his hair was short. Rosa then told Martinez to tuck
a piece of hair into his net. Martinez asked Rosa why he
had to fix his net when his hair was short. Rosa warned
Martinez that he should do it because maybe they would
fire him. Martinez responded, “if it is the case they want
to fire me, they don’t have to beat around bothering me
with this, you know, telling me to have the hair net on in
that manner, when my hair is cut short.” The same day,
after lunch, Rosa and Tino Hernandez approached Mar-
tinez at his work station. They advised him that he could
not work if he did not fix his hair net. Martinez asked
what could happen if only a little piece of hair was stick-
ing out, and repeated that he was wearing the net and
his hair was short. Hernandez told Martinez that a few
days before he had sent an employee home because he
did not like his hair cut and that if he were Martinez’
foreman, he would send Martinez home. Martinez stated
that since Hernandez was not his foreman, he should not
come around telling him what to do.
28 Decision of Administrative Law Judge
Later that day, Rosa instructed Martinez to go home.
When Martinez asked why, since he was wearing the net
and doing his work, Rosa stated that these were the
rules of the Company. Colosi and Hernandez then came
to Martinez, and Colosi told him to go home. Martinez
told Colosi to punch his card and Colosi said he would.
Colosi then warned Martinez that if he did not call the
next day, he would get a suspension, and if he did not
call the day after, he would be fired for good. Martinez
asked why he had to call in if he was already fired.
Colosi did not respond to this question.
On the following day, Martinez received a telegram
from Respondent stating that he was subject to a 3-day
suspension pursuant to the progressive disciplinary
system. Martinez returned to work April 29. A few days
after returning to work, Kosa came up to Martinez and
told him he could take off the net because his hair look-
ed shorter, like he had gotten a hair cut over the week
end. Martinez stated that he had not gotten a hair cut,
and that when Rosa gave him the suspension he must
nave been sleeping, not to have noticed his hair was
short.
Martinez, whose testimony I credit, testified that he
had a piece of hair approximately 1 inch square sticking
out of the hair net behind his ear. On the other hand,
Rosa, Colosi and Hernandez, described the hair exten-
ding out from Martinez’ hair net differently. I find their
versions inconsistent and unreliable. Although that
Colosi stated that Martinez was suspended for failure to
wear the hair net, he explained at some length, descrip-
tively, how Martinez’ hair was dangling out from the
net.
Based on the record evidence as a whole, I conclude
that Respondent, in suspending Martinez, violated Sec-
tions 8(aX1) and (3) of the Act. Counsel for the General
Counsel argues that a Section 8(a\4) violation should be
found as well, based on the timing of the suspension. In
my view, the record does not support this inference and
I do not find a violation of Section 8(aX4) of the Act.
Decision of Administrative Law Judge 29
The Discharges of William and Mario Negron
Both William and Mario Negron were active union
supporters before and after the election. They both sign-
ed authorization cards and attended union meetings.
William Negron was elected shop steward for the
production employees, and as such, would deal with
problems between rank-and-file employees and manage-
ment on the average of four or five times per week.
Both brothers appeared and testified as witnesses for
the General Counsel in the prior case. On the basis of
William’s testimony, the Respondent was found to have
committed 8&aX1) conduct by engaging in illegal in-
terrogations and threats.
William Negron worked for the Respondent for 4%
years prior to his discharge on August 24, 1976. Mario
worked for the Respondent for approximately 1% years
prior to his discharge on August 24, 1976.
William and Mario Negron participated in the strike
against the Kespondent during the week of August 16,
1976. Both performed picket line duty for the duration
of the strike from 8 a.m. to 12 noon. On the first morn-
ing of the strike, they observed Bily focusing a camera
and appearing to take pictures of the employees on the
picket line, which is discussed supra.
William and Mario both went to the Plant on separate
occasions to pick up their paychecks. They were each
told by management that the doors were open and they
could return to work whenever they wanted to.
Neither one returned to work on the Friday that the
strike ended because the extruding department, where
they both worked, was not scheduled to work on Friday.
On Tuesday, August 24, William and Mario returned to
the Plant at approximately 4 p.m. to see Bily. William,
on behalf of Mario and himself, told Bily they would
come to work on Wednesday. He was told by Bily that
they should not come to work because they were already
fired. The reason being, was that they did not call to ex-
plain their absences. William told Bily that he had not
PL eT Cee eae
30 Decision of Administrative Law Judge
shown up Monday or Tuesday because he was sick and
he did not call because his telephone was out of order.
William stated that he told Bily he had had problems
with his telephone for some time and he did not use a
pay telephone because he was too ill to walk two blocks
to a pay telephone. He reminded Bily that he had told
him that he could come back to work whenever he
wanted. According to William’s testimony, Bily respond-
ed he didn’t care, that anyway, he was fired.
Louis Menendez, Grand Lodge Representative for the
Union, who participated and assisted in negotiations,
testified on behalf of the General Counsel. According to
his testimony, he had a discussion with Colosi early in the
morning on Friday, August 20. Menendez asked Colosi
if employees were still free to return to the Plant and
Colosi stated, yes. Menendez said he would take care of
notifying people that the strike was officially over, i.e.,
he would notify the union business representative.
Menendez, however, told Colosi that he had no way of
contacting each employee about returning to work.
Colosi responded that he would take the responsibility of
notifying employees when to come back to work. Colosi
denied discussing who would tell employees when to
return. Colosi also testified that he, in fact, never did
contact employees and tell them when to return to work.
I discredit Colosi and credit Menendez’ testimony
relating to Colosi’s responsibility of contacting the
employees.
Bily testified that he decided to terminate Mario on
August 23, the first Monday after the strike, and he
decided to terminate William on Tuesday, August 24,
for his failure to call in Monday or Tuesday. Neither
Bily nor Colosi refute the fact that they did not wait to
find out if the Negrons had valid reasons for not calling
in before they were terminated. Respondent’s defenses to
these discharges is the failure on the part of William
and Mario Negron to report for work on the Monday
and Tuesday following the strike, and their failure to
adhere to the Company’s call-in rule. -The Board, with
the Courts approval, has already-determined in the prior
Decision of Administrative Law Judge 31
case, that the Respondent violated Section 8(a)1) and (5)
by instituting and implementing said call-in rule. It
therefore follows, that if the rule is bad from its incep-
tion, any individuals disciplined by the operation of the
illegal rule must necessarily have been subjected to il-
legal discrimination. Although the Negrons may be en-
titled to a remedy by virtue of the holding in the prior
case, I find that by the discharge of William and Mario
Negron, Respondent has engaged in separate, indepen-
dent violations of the Act.
Respondent introduced testimony by a representative
of the Illinois Bell Telephone Company, to reflect that
William Negron had never, in the past, reported his
telephone to be out of order. In view of my conclusion
that management made no effort to find out why the
Negrons had not called in, I consider this testimony to
be immaterial as to Respondent’s motivation.
Respondent attempted to show that William Negron
worked under an assumed name for the Fox Valley
Company, subsequent to his discharge at Electri-Flex,
in an effort to collect unemployment compensation
benefits although he was employed. In an apparent
further attempt to impeach the testimony of William
Negron, the Respondent recalled Bruce Kinander to
testify. He testified to an alleged encounter between
himself and William Negron in the men’s lavatory on
August 1, 1977, shortly after Negron had testified. Ac-
cording to Kinander, Negron cursed at him and threaten-
ed to kill him. Negron was recalled to the stand and
denied cursing or threatening Kinander, although he did
remember encountering Kinander in the men’s room. In
my opinion, these matters would be more appropriately
disposed of at the compliance stage of these proceedings.
I therefore conclude, that the evidence in total,
demonstrates that Respondent used its call-in rule as a
pretext to discharge William and Mario Negron in viola-
tion of Sections 8(aX1), (3) and (4) of the Act.
32 Decision of Administrative Law Judge
Discharge of Teofilo Lopez
Teofilo Lopez was an employee of Respondent for ap-
proximately 11 years. As such, he was one of the Com-
pany’s most senior, experienced and highest paid
employees. Supervisor Bily praised his work as out-
standing and characterized Lopez as dependable and
reliable. Among his other duties, Lopez, from time to
time, had the responsibility of training other operators
on the equipment. At the time of his discharge, Lopez
was the operator of the NRM machine.
In the prior proceeding, Lopez testified as a govern-
ment witness regarding his union activity and several
8(a)(1) allegations. The record in that proceeding also
reveals that Lopez was one of the three employees who
originally contacted the Union and initiated the organiz-
ing campaign. After the litigation in the prior
proceeding, Lopez continued to attend all of the union
meetings.
In the section captioned “Alleged Independent &(a)1)
Conduct” I found Lopez to have been the subject of
8(aX1) conduct engaged in, by supervisor Jesse Garcia.
Ee facts surrounding that incident will not be repeated
ere.
During the strike that began on August 16, 1976,
Lopez did not work. He returned to work on Monday,
August 24.
On Tuesday, August 25, at approximately 9 a.m.,
while Lopez was checking a problem with the plastic
coating on the cable, Bily came to where he was stand-
ing near the water pump. Bily told Lopez that there
was water on the floor and accused Lopez of not clean-
ing the screen or filter. Lopez told Bily he had cleaned
the screen that morning and it was clean. Bily repeated
several times, that Lopez had not cleaned the screen. Ac-
cording to the Lopez version, Bily took a warning ticket
out of his pocket and held it up close in front of Lopez’
face or eyes. Lopez took the ticket and threw it at Bily,
where it fell on Bily’s chest. Bily told Lopez to leave and
then turned around and left the department. Lopez com-
Decision of Administrative Law Judge 33
menced to go back to work on the machine. Ap-
proximately 10 minutes later, according to Lopez’
testimony, Colosi came to the extruding department
where Lopez was working with two uniformed and one
plain clothes policeman carrying a rifle. Colosi told the
policemen, “That’s him” and they took Lopez to Colosi’s
office. Union stewards Rosa and Marrero, and foreman
Bily were present. Bruce Kinander arrived a short time
later. Lopez stated that when the police asked Bily if he
was going to file a complaint, Bily answered in the affir-
mative. According to Lopez, he was not allowed to ex-
plain his side of the story. The police put Lopez against
the wall, searched him, handcuffed him and took him to
a police station. After posting bond, Lopez was releas-
According to Bily’s version, on the morning of August
25, he had a conversation with his assistant, Larry Slad
near the NRM machine when Slad pointed out that the
screen was clogged and water was spilling over. Bily
testified he then went to the tool room office and wrote
out a warning ticket for Lopez and put it in his shirt
pocket. Bily approached Lopez, told him to clean the
screen and Lopez said that it had already been cleaned.
Bily stated that Lopez would have to clean it as many
times as it needs cleaning, or he would ruin the equip-
ment and the run. According to Bily, Lopez responded
that Bily should fire him, if he wanted to, and Bily
replied that he did not want to fire him, He wants him
to do his job. Bily told Lopez he was going to give him a
warning ticket, took the ticket out of his shirt pocket
and handed it to Lopez. Bily states that Lopez took the
warning ticket with his left hand and hit him with that
hand on the right side of his neck. According to Bily,
Lopez held a guage in his right hand in a threatening
manner. Bily testified he walked past the machine, shut
it off and told Lopez to come oP to the office. According
to Bily, Lopez stood there hollering, “Fire me if you
want” and waving the guage in the air.
The next day, Lopez called Bily and asked if he could
come to work. Bily responded in the negative, and Lopez
34 Decision of Administrative Law Judge
asked why, but Bily again replied in the negative. Lopez
then stated that he would file for unemployment com-
pensation and Bily said that was fine.
Marrero testified that when he was waiting in Colosi’s
office that morning, he overheard Colosi ask Bily if he
had a witness. Bily replied that he thought that the only
one who saw the entire incident was Nelson Accevedo,
but, that he thought Accevedo would not testify against
Lopez. Then, in the presence of Marrero and Bily, Colosi
called the police. Marrero also testified that when the
police asked Bily if he wanted to sign a complaint
against Lopez, Bily looked at Colosi, who indicated,
“Yes” by nodding his head, and then Bily said he did
want to press charges.
Marrero began an independent investigation by
questioning employees as to whether they saw anything.
Accevedo told him he saw Lopez take a paper and throw
it at Bily. According to Marrero, Accevedo swore he did
not see Lopez hit Bily. Marrero reported to Colosi what
he had learned from Accevedo.
Accevedo testified he could not hear the conversation
between Bily and Lo because of the noise from the
machines. He stated that he had a clear view of the two
individuals from where he was working approximately
25 feet away. Accevedo testified that Bily and Lopez
were engaging in loud conversation which drew his
attention to the two men. He saw Bily take a yellow slip
of paper out of his shirt pocket and hold it with two
hands in front of Lopez’ face, close to his eyes. According
to Accevedo, Lopez took the paper with his left hand and
threw it back at Bily where it fell on Bily’s chest.
Accevedo saw Bily then turn his back to Lopez and walk
away. According to Accevedo, he did not see Lopez
holding a guage in his hand or raise his hands over his
head. Additionally, Accevedo testified that none of
Respondent’s management personnel ever asked him
what he had observed or heard. He corroborated
Marrero’s testimony that Marrero asked him if he had
seen what happened between Lopez and Bily to which
Accevedo responded that he had:
Decision of Administrative Law Judge 35
The record amply demonstrates that water on the
floor near the NRM machine has been an on-going
problem of long-standing duration, and a condition that
continues to exist. Employees and supervisors were both
aware of the water problem and testified accordingly. A
document which was received in evidence as General
Counsel’s Exhibit 29 reveals minutes of a safety com-
mittee meeting, dated January 19, 1977, and prepared
by Bily. In the section relating to the extruding depart-
ment, the statement appears, “Extend water grate in
floor on NRM, too much water on floor all the time.”
Bily acknowledged that in the course of his investiga-
tion, he did not at any time, ask Accevedo what he had
observed. Colosi, who was also aware of the fact that
Accevedo was an eye witness to the incident, made no ef-
fort to get Accevedo’s version.
I credit Lopez’ testimony as corroborated by Marrero
and Accevedo. I find Bily’s version of the incident, to be
unreliable, and I specifically discredit him. In my opin-
ion, this is but another attempt to harass a union
adherent, who testified in the prior proceeding. In my
view, Respondent exaggerated a minor incident, all out
of proportion, to set up a pretext. Further, I discredit
Colosi, whose testimony throughout the hearing relating
to this allegation as well as others, is fraught with
vagaries, inconsistencies, and magnifications. It is in-
teresting to note, that Colosi impressed me similarly to
the impression he made on the Administrative Law
Judge in the prior proceeding, who recognized Colosi’s
propensity to exaggerate minor incidents into major
ones, in a situation, not unlike the instant discharge. The
incident was not serious enough to precipitate an im-
mediate discharge of Lopez, rather, Respondent waited
until the next day when Lopez called on the telephone.
Colosi, in head-long haste, called the police, rather
than the security guards, who were on the premises. It
wasn’t as if Lopez followed Bily to the office, intent on
doing him bodily injury or harm, indeed Lopez had to be
called to Colosi’s office.
36 Decision of Administrative Law Judge
In my opinion, Respondent once again seized upon a
minor incident and imbellished upon it with an eye
towards ridding itself of another pro-union supporter.
- Accordingly, I am convinced by the preponderance of
the evidence that Respondent’s defense to the discharge
of Lopez was violative of Sections 8(a)(1), (3) and (4) of
the Act.
Discharge of Nelson Accevedo
Accevedo’s tenure with the Respondent covered ap-
proximately 2% years. For the greater part of his
employment, he worked as a machine operator in the ex-
truding department. Based on his ability and progress,
in August of 1975, Accevedo was selected to learn to
operate the machine on the night shift and unless he was
assigned other work, he was responsible for cleaning the
machine. i
Accevedo signed a union authorization card prior to
the election on August 7, 1975, and he attended union
meetings. In the prior proceeding he was a witness of
the General Counsel and testified about warning tickets
which were issued to him after the Union won the elec-
tion. On the basis of the evidence in the prior
proceeding, the Board and Court found inter alia, that
the warning notice—disciplinary system under which
Accevedo received the warning tickets, violated Sections
8(aX1), (3) and (5) of the Act and ordered that such
system be rescinded and all written warning notices
issued thereunder, and any discipline meted out pur-
suant thereto, be rescinded ana any employees affected
thereby, be made whole by Respondent. Additionally, he
testified to interrogations which the Board found
violative of Section 8(aX1) of the Act, and he further
testified to a conversation in which he was told by super-
visor that the Company knew he was prounion. That
later conversation was also determined to be violative of
Section 8(aX1) of the Act.
On April 28, 1976, Accevedo received a warning ticket
from his supervisor Detrick. The remarks section of the
Decision of Administrative Law Judge 37
warning ticket reflected that on March 4, 1976,
Accevedo was the operator on a No. 5 extruder.
Furthermore, on this date, at least seven cartons of con-
duit were improperly marked and it is the extruder
operator’s job to control his line. Accevedo questioned
Detrick about this because he did not recall ever work-
ing with the packer responsible for the error. Accevedo
requested that Detrick show him the production report,
revealing that on the date in question he was the
operator on the No. 5 extruder. Detrick told Accevedo
he would show him the report the next day, but, Detrick
failed to make the report available.
On June 22, 1976, Detrick presented Accevedo with a
warning ticket because that morning Detrick had found
the lock broken on the back door. Accevedo said he did
not remember breaking the lock, but, Detrick recounted
that on the previous night, he had seen Accevedo use the
forks of a lift truck to raise the back door. Accevedo ad-
mitted using the forklift in the manner described, but,
stated that the door was already raised three inches off
the ground. Accevedo recognized, at the time, as well as
during his testimony that it was a mistake to have used
the forklift in such a manner, but, maintained that he
did not break the lock because the door was raised off
the ground. Accevedo received a 2-day suspension.
Accevedo testified that on the night in question, prior
to his receiving the warning ticket, the regular lift truck
driver was absent, and Detrick assigned him to drive. He
recalled going through the door in question three times.
He testified that the first two times, he raised and
lowered the door by hand. The door was not locked when
he raised it and he did not lock it when he lowered it.
The final time he opened the door, he used a lift truck
approximately 3 to 3:30 a.m. Thereafter, he saw some-
one, although he did not know who, lift truck to take
garbage out through that same door. Prior to the ter-
mination of his shift at 7 a.m., no mention was made of
the broken lock.
Accevedo attended the union meeting on August 5,
1976, and participated in the strike by doing picket line
——-
38 Decision of Administrative Law Judge
duty from mid-night to 4 a.m. He was on the picket line
on the morning of the first day of the strike and
remembered seeing Detrick and Colosi watching the
strikers on the line.
He returned to work on Monday, August 23, after the
strike had ended.
Wednesday, August 25, Accevedo was the individual
who witnessed the incident described earlier, which
resulted in the discharge of Teofilo Lopez.
On the morning of August 27, Bily and his assistant
Slad, approached Accevedo at his work station. Bily
handed Accevedo a warning ticket, stating that the
reason for the ticket was that Accevedo had not cleaned
the line on the NRM on the day before and that since he
had been warned before about such things, he was get-
ting a suspension. After Accevedo read the ticket, he
responded that he had only been told to clean the line on
that occasion and it was three minutes before quitting
time. Slad stated that he had told Accevedo that at some
prior time to clean the top and bottom of the machine.
Accevedo agreed that those were Slad’s instructions, and
that he had in fact cleaned the top and bottom of the
machine. Slad responded that his instructions meant to
clean the whole line. Accevedo explained that that was
not his understanding and that Slad should have ex-
plained that to him. Accevedo left the premises and
returned to work on the night shift after his suspension.
On the evening of October 5, 1976, when he reported
to work, Accevedo learned from another employee that
Detrick had pulled his time card. When Accevedo found
Detrick, according to Accevedo’s version, Detrick hand-
ed him a warning ticket dated October 4, and said,
“Nelson, yesterday you didn’t clean the cutter and the
machine that pushes the cable is dirty too.” Detrick add-
ed that the printer was also dirty. Accevedo responded
that he had cleaned and replaced the printer himself.
Further, he pointed out to Detrick, that Detrick knew he
did not have enough time to clean the machine, because
Detrick had sent him to perform grinding. Before per-
Decision of Administrative Law Judge 39
forming the grinding operations, Accevedo cleaned the
ecbeegpe rape aga eon ee Detrick that he had helped
im clean the grinder ore Accevedo th
October 4. Detrick left the office. Coe ipaaaas
When he returned, he told Accevedo, “I’m sorry that I
can't do anything for you. I know that you’re a good
worker, and a good person, but, I couldn’t do anything
else because the factory has some rules and I have to
comply with those rules. And this is the second time that
you were given a ticket for not cleaning. For this reason
I have to do it.” Accevedo testified credibly, that after
receiving the warning ticket on August 27, he was
careful to seek help to clean the machine in the line. Ac-
cording to his testimony, on October 4, Accevedo had the
least amount of help to perform his job since August 27.
The warning notice which Accevedo received states on
7 face, that it is a final notice and he is being dismiss-
I regard the discharge of Accevedo as but another ex-
ample of Respondent’s continuous efforts to build a case
against active union adherents by using as a vehicle, its
discriminatory warning system. The evidence is un-
refuted that Accevedo was well thought of by manage-
ment and considered a valuable employee. Indeed, he
was chosen to be trained to run the NRM machine to
enable him to work or operate this machine at night.
Furthermore, on a payroll change notice, reflecting a
raise, foreman Bily and superintendent Bonner signed
the payroll change notice and one of these named in-
dividuals made the notation, “This man has been very
instrumental in the training of our night extruder
operators and in keeping the packaging operation run-
ning smoothly.”
I am convinced by the record evidence as a whole, that
Accevedo’s job performance did not warrant the
issuance of the warning tickets nor justify his discharge.
Accevedo impressed me as an extremely credible and
reliable witness and I accept and give credence to the
versions of the incidents giving rise to the warning
tickets and the discharge. On the other hand, the
40 Decision of Administrative Law Judge
testimony of Detrick, I find to be vague and inexact. His
memory was faulty and poor, even when presented with
various exhibits to refresh his recollection. Much of his
testimony was devoted to conjecture and speculation as
to what he would have done or could have done in other
circumstances, rather than what he actually did. I
therefore discredit his testimony, particularly, where it
is inconsistent with the testimony of Accevedo.
Although it is conceivable that Accevedo’s discharge
may be remedied under the Board’s Order in the prior
case with respect to the discriminatory warning system,
I find that Accevedo’s discharge herein, independently
violates Sections 8(aX3) and (4) of the Act.
Discharge of Mariin Ibarra
Ibarra worked for Respondent for approximately 3
years. The last year of his employment was in the slit-
ting department under foreman Gilberto Rosa. Prior to
the union election in August, 1975, Ibarra had been a
set-up man. On the morning of the election, Ibarra was
transferred from set-up man to machine operator. The
Board found in the prior case, that, the transfer was dis-
criminatorily motivated because Ibarra had been seen
by management representatives, including Colosi, dis-
tribution handbills on the morning of the election. The
Board as affirmed by the Circuit Court, concluded that
the transfer was violative of Sections 8(aX1) and (3) of
the Act. In the prior proceedings, Ibarra also testified
about receiving warning tickets, most of them inspired
by Colosi.
A few days after Ibarra testified in the prior
proceeding, he was given the first of three or four warn-
ing tickets. Approximately % hour before presenting
Ibarra with the warning ticket, Garcia, his foreman at
that time, told Ibarra that Ibarra had testified against
him in court, and he had to defend himself against
anybody that attacked or offended him. In the prior
proceeding, Ibarra had testified .that Garcia in-
terrogated him regarding his attendance at union
Decision of Administrative Law Judge 41
meetings. Ibarra was credited and the allegation w -
timately sustained both by the Board and the Const. 4
May 24, 1976, Ibarra was issued another warning ticket
along with a 3-day suspension. This ticket was issued as
a result of an accident Ibarra incurred on May 21. In an
effort to prevent rolls of steel from falling, his hand was
cut. The General Counsel contends that the Respondent’s
motives underlying the issuance of this warning ticket
were revealed by a conversation between Colosi and
Marrero on the day of the accident. Said conversation is
discussed earlier in this Decision under the section
captioned, “Mario Colosi’s conversation with Ignacio
Marrero. I determined that the conversation violated -
Section 8(aX1) of the Act, and I will not endeavor to
reiterate the circumstances surrounding that conversa-
tion or the text of the conversation.
Subsequent to the last hearing, Ibarra continued in
his efforts to support the Union. He attended union
meetings, including the August 5 meeting where the
strike vote was taken, and he performed picket line duty
from 8 p.m. until midnight and also appeared for an
hour each morning of the strike. During the instant
proceeding he testified that on the morning of August
16, 1976, the first day of the strike, he noticed Colosi,
Bily, Hernandez and Garcia observing employees at the
picket line. He testified further, that he saw Bily with a
a and he believed Bily was taking pictures of the
rikers.
When Ibarra went to the plant on August 18, to pick
up his pay check, Colosi asked him theo Caban, we
was interpreting, why he did not come in to work and
stated that the doors were open for him and everybody
else whenever he wanted to return. Ibarra responded he
did not want to go in to work because his fellow workers
were on strike and he did not want to cross the picket
line. Ibarra returned to work after the strike ended on
Friday, August 20.
On Monday, December 6, and Tuesday, December 7
1976, Ibarra did not appear at the Plant to work, as
42 Decision of Administrative Law Judge
did he report his absences. On Wednesday, December 8,
at about sometime prior to noon, Ibarra called the Com-
pany and spoke to his foreman, Rosa. Ibarra told Rosa
that he would be back at work on Thursday, the next
day. Rosa told him he should not report to work because
Colosi had said Ibarra was fired because he was absent
3 days without calling in. Ibarra told Rosa that an
emergency had arisen and he had to go to Florida,
because a friend had called to tell him that his brother
had been in an accident. He stated that in my view of
the fact, he had to be there quickly, he did not have time
to call in. In spite of his conversation with Rosa, Ibarra
went to the plant on Thursday and spoke to Rosa at ap-
proximately 8 a.m., telling him he was ready for work.
Rosa said he had to talk to Colosi first. They both went
to Colosi’s office where Luis Caban acted as a translator.
Colosi told Ibarra that he was discharged for being ab-
sent 3 days without calling in. Ibarra explained that he
learned on Saturday of his brother’s accident and he had
to leave for Florida on the spur of the moment. Ibarra
wanted another chance, but, Colosi said he could not
give him another chance, because then everybody would
ask for the same. Then Colosi told Ibarra to talk to
Marrero and if the Union decided Ibarra could continue
working, it was fine with him.
Ibarra testified that he met with Marrero and ex-
plained the situation to him. Marrero told Ibarra that as
far as the Union was concerned, he saw no problem.
Marrero corroborated his discussion with Ibarra.
Marrero testified that he believed Ibarra had been faced
with an emergency and should be able to keep his job.
Marrero testified that he explained to Colosi and Rosa
what Ibarra had told him and Colosi responded that he
was sorry he knew Ibarra did good work but he can’t
give him a chance because then he would have to do the
same thing for other employees. Marrero responded in
effect, what was the point in Colosi’s calling him into the
office when nothing was accomplished. Colosi responded
that he was sorry but, he has to go by the contract and
Marrero asked what contract, commenting that there is
Decision of Administrative Law Judge 43
no contract. Colosi reiterated, showing Marrero a book
and stating that he has a contract. He didn’t know if
Marrero had one, but, he, Colosi, had a contract and he
goes by that contract.
Ibarra learned when he arrived home that day, that a
telegram dated December 8, 1976, 1:25 p.m., had been
delivered to him. The telegram from Bruce Kinander
stated that Ibarra was being discharged for his absence
on December 6 and 7, and failing to report for work on
December 8, by 12 noon. The telegram further stated,
that Ibarra failed to call or otherwise attempt to notify
the Company of his absence or his reasons for being ab-
sent.
According to Colosi’s testimony, Marrero told him that
Ibarra admitted he was wrong, that he broke the call-in
rule and there was no excuse and that Ibarra would like
his job back. Colosi denied mentioning a contract. First,
Colosi said that Ibarra did not explain why he went to
Florida and Colosi said that he had to ask Ibarra why he
went to Florida. Colosi then recanted that testimony,
and stated he asked Ibarra why he did not call in and
report his absence and Ibarra merely said he had gone
to Florida. Colosi did admit however, that when a dis-
charge telegram was sent to Ibarra, he did not know
why Ibarra had not reported his absences. Colosi then
took the position that Respondent did not discharge
Ibarra until it had an opportunity to learn whether he
had good cause for not calling in.
Respondent presented a witness, Geronimo Covar-
rubias. His testimony was designed to show that
Ibarra went to Florida because he was to be paid money
by a citrus grower, to transport individuals (labor) to
Florida to pick fruit. Covarrubias constantly con-
tradicted his own testimony and could not even
remember when he allegedly told management of
Ibarra’s Florida trip. At another point in his testimony,
he denied ever telling management or furnishing
management with this information. After finally being
pinned down, Covarrubias testified that he talked to
Respondent’s counsel prior to trial, but, not in relation to
44 Decision of Administrative Law Judge
the trial or to his testimony, he only appeared in Court
because he received a subpoena. Several other incon-
sistencies appear in the record. I specifically discredit
this witness’ testimony.
I am convinced by the preponderance of the evidence,
that Respondent discharged Ibarra because of his union
activity and his participation in Board proceedings. The
consent harassment, taking the form of warning tickets
leading up to the pretextual discharge, has been its
modus operandi throughout. The Respondent’s defense to
Ibarra’s discharge is manufactured from the same mold
as its defenses relating to the other individuals, both in
the prior case and the instant case, who were held to be
and are presently determined to be discriminatees.
When Ibarra called the Plant and spoke to Rosa, ad-
vising him he would report to work the next day, Rosa
did not even question him as to the reason for his
absence and why he had not called in. Rather, he was in-
formed by Rosa that he was terminated. The telegram
from Kinander was in error, because uncontradicted
testimony reflects that Ibarra did report for work prior
to noon, on December 8. Furthermore, no one confronted
Ibarra with the alleged purpose of his Florida trip, i.e.,
to act as a transportation service for the citrus growers
in Florida. Obviously, and the record is clear, when
Ibarra was terminated, management had no idea why
he had not called in, or the cause for his absences. In-
deed, Colosi admitted that when the discharge telegram
was sent to Ibarra, he did not know why Ibarra had not
reported his absences. As stated earlier, I discredit the
testimony of Covarrubias, but, even if he were to be
credited, his testimony would be rendered meaningless,
and irrelevant in view of the fact that Respondent had
no idea why Ibarra was absent before deciding to dis-
charge him. There is no dispute that Ibarra was absent
on the days in question. The essential element is whether
Respondent was discriminatorily motivated in the dis-
charge of Ibarra, and I find that it was. I conclude and
find that Respondent’s acts in regard to the discharge of
ees were violative of Sections &(aX1), (3), and (4) of
the Act.
Decision of Administrative Law Judge 45
Suspension of Leoncio Gonzales
At the time he testified, Gonzales had been working
for the Respondent for approximately 2 years. Gonzales
participated in the strike in August 1976, by performing
picket line duty from 4 a.m. to 8 a.m. He testified of
having seen Colosi, Caban, Bily, Detrick and his
foreman Hernandez passing through the picket line.
Gonzales testified that sometime in February, 1977,
between 7 and 9 p.m., he attended a tavern in Elgin, II-
linois, called “Barney’s.” When he arrived at the tavern,
Hernandez, a supervisor, was present and they greeted
each other. Gonzales proceeded to play one of the slot
machines. Hernandez and Gonzales engaged in conver-
sation and Gonzales told Hernandez that he had just
received a 25 cent raise. According to Gonzales, Her-
nandez responded that it was good Gonzales got the
raise because the Union was spoiling everything, and
that before the Union came, raises were always given
and everything was better. Hernandez then made
reference to a paper that any employee could pass
around during free hours and get signatures from co-
workers in order to decide about expelling the Union
from the factory. Hernandez explained that he could not
pass around such a paper because he was a foreman.
Hernandez denied making any of the statements as
testified to by Gonzales. Respondent’s position is that
Gonzales sought to entrap Hernandez.
I conclude that Gonzales’ version of the conversation at
Barney’s tavern is reliable and credible. I discredit Her-
nandez as I have done earlier in this Decision under the
Section captioned “Hernandez’ Threats to Gonzales.”
I find that the statements attributed to Hernandez
violate Section 8(aX1) of the Act.
On March 14, 1977, Gonzales had an accident with the
forklift and received a 3-day suspension. The details and
circumstances surrounding this suspension were related
earlier in the Section of this Decision captioned “Her-
nandez’ Threat to Gonzales,” and will not be repeated.
46 Decision of Administrative Law Judge
Gonzales testified to the above referred-to conver-
sations on May 26, 1977. On June 30, 1977, Gonzales
arrived at work at approximately 1:30 p.m. instead of
his normal starting time which was 7 a.m. Caban asked
him why he had not come to work earlier or called in.
Gonzales stated that his car was out of commission, his
ride to work did not pick him up, he had been feeling ill,
and it was raining so hard he did not want to venture
out to a public telephone to call in. Caban told Gonzales
to go home and report back the next day at 7 a.m., but
not to punch in until the front office determined
whether he was going to get fired or remain on the job.
On the next day, July 1, Gonzales arrived at work at
approximately 6:45 a.m. He asked Caban if he was go-
ing to put him to work or send him home. Caban told
him to wait in the cafeteria for an answer. Gonzales
waited in the cafeteria until approximately 9 a.m. at
which time he decided to leave the cafeteria and find out
what was going on. Gonzales found Caban at the tool
room office and told them he had been waiting a long
time for an answer and asked Caban what he was going
to do. Caban told Gonzales to wait in the office while he
got Jesse Garcia to take notes of their discussion. Even-
tually, a meeting was held in the tool room office attend-
ed by Caban, Brilz, Garcia, Marrero; Gonzales and a
man who Gonzales could not identify. Caban asked Gon-
zales why he missed work, to which Gonzales explained
what he had earlier, with reference to the car being in
the garage and no way to get to work that morning. He
also stated that he was sick and because of the heavy
rain, he did not want to walk the distance to the public
telephone. Gonzales explained that his brother-in-law
came to his house for lunch at noon and then drove him
to the garage where he picked up his automobile. He
then proceeded directly to the Plant. Caban stated that
the Company had rules and that he had to call before
noon, Gonzales could not break the rules. Gonzales asked
Caban what he was going to do with him, give him a job
or “throw him out.” Caban said he was-going to throw
him out. Then Gonzales told Caban that his wife was go-
Decision of Administrative Law Judge 47
ing to have a baby, that he had paid for insurance
through the Company and he was worried about
coverage for his wife. Caban stated that insurance would
cover him for a month after he was fired. Gonzales then
asked Caban for a statement so that he could collect un-
employment, to which Caban refused. Caban told Gon-
zales to go home, they would let him know what they
were going to do with him later.
Several days after this meeting, Gonzales received a
telegram from Colosi as follows:
“Our records indicate that you were previously
suspended for failing to call to report your absence
in accordance with Company rules. Therefore, your
failure to call on June 30, 1977, would subject you
to discharge, if not excused for valid reasons. While
the reason you gave for not calling is sufficient to
prevent your discharge at this time, it is not suf-
ficient to excuse you from any disciplinary action.
You are hereby notified that you are suspended for
5 days and should report back to work on Friday,
July 8, 1977.”
Counsel for Respondent did not cross-examine Gon-
zales in connection with the S&a)1), (8) and (4)
allegations. Nor did Respondent present any witnesses to
rebut Gonzales’ testimony, rather, it relied on its affir-
mative answer which is described earlier.
The record is clear that Respondent conducted an in-
vestigation as to the reasons Gonzales came to work late
without calling in. Indeed, the suspension telegram
Colosi sent to Gonzales is evidence of Respondent’s
recognition that Gonzales had a valid reason and was
justified in not calling the Company to report he would
be late. More ir..portant, is the fact that the Board, with
Court approval in the prior case, found that the call-in
rule was illegal from its inception and that the warning
and disciplinary system was equally invalid and violated
Section 8(a\(5) of the Act. Therefore, putting all else
aside, Gonzales was suspended pursuant to an illegal
rule. Although his suspension may perhaps be remedied
48 Decision of Administrative Law Judge
under the original Board Order and Court Decree, I
nevertheless, conclude that Respondent violated Sections
8(aX1), (3) and (4) of the Act in this regard.
The Surface Bargaining Issue
Counsel for the General Counsel avers that Respon-
dent refused to bargain in good faith with the Union by
offering and insisting upon proposals patently unaccep-
table to the Union, including inter alia: a fixed contract
expiration date, a very short duration, perhaps 5 months
or less, depending on a date of execution of the contract;
an overly broad management’s rights clause; no wage in-
creases for unit employees, other than merit increases
and equalization of wage rates within job classification;
no union security clause unless the Union could prove
' approximately 90 percent of the union employees were
members of the Union’ and the right of a Company of-
ficial to accompany any union representatives while on
Company premises.
The record is replete with testimony reflecting the
dynamics and the nuances of discussions throughout 12
negotiating sessions. The only purpose to be served by
my reiterating the details of the sessions, would be to
lengthen an already long decision. Therefore, I will
attempt to isolate those pertinent factors upon which I
rely in making my decision.
The Parties commenced negotiations on September 26,
1975. At this meeting, a discussion ensued regarding the
discharge of a shop committeeman, Dick Rose and an
employee, Tony Capasso. This issue was not resolved and
the Union proceeded to pass out their proposal. The
Union advised the Company negotiator, that any agree-
ments reached on proposals were tentative, and sub-
ject to ratification of the membership. It was agreed
by the Parties, that language on non economic issues
would be negotiated before wage proposals were
presented. Apparently, after the meeting ended, the
Parties agreed that the two individuals who had been
discharged would be returned to work after a short
suspension without backpay.
Decision of Administrative Law Judge 49
The next session was held on October 16, 1976. During
the interim between the first and second session,
charges had been filed by the Union and much of the
second session was taken up with discussion concerning
the various disciplinary actions taken by Respondent
and the charges filed as a result thereof. Later, in this
meeting, Respondent’s negotiator passed out a Company
proposal.
The third meeting was held on October 24, 1975. At
this time, the Parties agreed to use the Respondent’s
proposals during the negotiation although the chief un-
ion negotiator stated that he wanted to make references
to the union proposal.
Respondent proposed a management rights clause,
which appears to have reserved to itself, authority over
almost all terms and conditions of employment. The Un-
ion’s chief negotiator characterized that proposal as the
harshest management rig’ts clause he had ever seen.
There was no further discussion of the clause at this
meeting.
During the next meeting, Respondent stated that
there was no change in its management rights proposal
and Respondent was unwilling to give a union shop. At
the November 7, 1975 meeting, the union negotiator took
the position that management rights was one of the
main issues to be discussed and submitted a
management’s rights clause based on one it had in
another contract. At the conclusion of this meeting, the
union negotiator stated that since the Respondent still
wanted its management rights clauses and no union
shop, mediation was needed.
The next meeting was held on November 13, 1975,
where the union negotiator again, attempted to discuss
its proposed management rights clause, but, the
Respondent’s negotiator stated there was an impasse on
that issue and on union security. After this meeting, the
Union called in a federal mediator. The federal
mediator was in attendance at the remaining seven
negotiations sessions.
50 Decision of Administrative Law Judge
A meeting was held on December 4, 1975, where the
Respondent rejected the Union’s proposed management’s
right clause and the union negotiator proposed, ex-
cluding union security, management rights, arbitration
and no-strike clauses from the contract. At the
November 13 meeting, the Respondent took the position
that the Union would have to demonstrate, that it had
90 percent of the employees before the Respondent
would give union security. At a meeting on December
11, the Respondent again, took the position that there
was no change on union security.
The Union’s original proposal provided union access to
the plant for administration of the contract to be
arranged through the Industrial Relations department
of the Company, and it not be unreasonably delayed or
denied. Respondent’s counter-proposal altered the
language with respect to the purpose of access to be for
“observing working conditions or assisting in the adjust-
ment of grievances.” Respondent added a clause, re-
serving to itself, the right to accompany any union
representative during his stay on the premises. The
Respondent agreed to insert language, stating that such
permission would not be unreasonably withheld and the
Union accepted the Respondent’s provision with the
revised language.
It was at the January 28, 1976, meeting, that the
Respondent again, rejected any union shop proposal, but,
would agree to dues check-off. Furthermore, the Union’s
management rights clause was again rejected and
Respondent insisted on its own clause.
Respondent proposed, adding three paid holidays to
the six paid holidays it had in the past. It rejected en-
tirely, any general wage increase and would only agree
to its submitted wage progression schedule with the “red
circle” existing rates. Respondent adamantly insisted
upon a l-year contract. The Union took the position that
it had lost on every proposal, and a l-year proposal
would make the contract expire on New Year’s Eve,
Respondent’s slow period. At the meeting on July 14,
1976, Respondent took the position that the proposal for
Decision of Administrative Law Judge 51
l-year contract was now a contract from approximately
January 1, 1976, to expire on December 31, 1976.
Respondent took the position that its current wage
rates, compared favorably with area standards, and ac-
cordingly, it continued to reject the general wage in-
crease.
On July 24, 1976, the Union held a meeting at which
the Respondent’s contract proposal was explained to,
and rejected by, the employees who voted to strike.
Another meeting was held on August 4, 1976, in effort
to avert the strike. The union negotiator read off a
counter-proposals as follows: (1) the management rights
clause as proposed by the Union on July 14; (2) the
maintenance of membership clause as proposed by the
Union on July 14; (8) check-off of dues as proposed by
the Respondent’ (4) Respondent’s no-strike, no lockout
clause if the reference to international representative
were striken; (5) Respondent’s arbitration clause; (6)
Union would drop the demand for super seniority for
the shop committee; (7) Respondent’s proposal on
holidays for the first year of the contract, and the
second year of the contract permit a full day off for
the day before Christmas and the day before New
Years, this would add one more holiday in the second
year of the contract; (8) Respondent’s vacation proposal;
(9) shift premiums of 25 cents for the second shift and
35 cents for the third shift with all employees on those
shifts receiving the premiums; (10) Respondent’s hours
of work proposals; (11) Respondent’s profit-sharing plan
would be discontinued as of January 1, 1977; (12)
Respondent’s present pension plan; (13) Respondent’s
present insurance plan paid in full by Respondent for all
employees and their dependents; (14) a 25 percent wage
increase for all employees as of August 1, 1976. The Un-
ion took the position that inasmuch as the election had
occurred almost a year before, and while a 25 percent
wage increase sounded like a lot, the Union was drop-
ping Respondent’s profit-sharing plan. The _profit-
sharing Ree had paid off 20 percent the prior year,
thus, the Union viewed this as an increased labor cost of 5
52 Decision of Administrative Law Judge
percent; (15) 10 minutes rest periods as proposed by
Respondent without any time set for the rest periods;
(16) wage increase of 40 cents across the board as of
August 1, 1977, and another 40 cents across the board
wage increase as of August 1, 1978, a 3-year contract to
expire on July 31, 1979.
After caucusing, the Respondent’s negotiator repeated
that its July 14 proposal was its final proposal, and
Respondent was willing to take a strike on that proposal.
The union negotiator responded that that proposal of
July 14 was the same proposal Respondent gave last
January.
The employees commenced to strike at 7 a.m., on Mon-
day, August 16, 1976.
The bargaining sessions of July 14 and August 4,
1976, bring into sharp focus, Respondent’s rigid
adherence to proposals which it could have predicted,
would be unacceptable to the Union.
Thus, the last session before January 28, 1976, had
been held more than 6 months prior. Preceding that
meeting, there had been nine negotiating sessions, the
first two, of which had been basically an exchange of
proposals and descriptions of the Union’s insurance
plans. For the next seven sessions, the Parties reviewed
proposals based on Respondent’s proposed contract.
Although Respondent did agree to certain revisions and
tentative agreement was reached on certain of
Respondent’s proposals, these clauses dealt with recogni-
tion and representation, military service, over-time and
discrimination. While not minimizing their importance,
these are hardly items going to the guts of a collective-
bargaining agreement and did not touch on any substan-
tial economic matter. The record of the negotiations, up
until this January session, reveals little progress on
significant issues which had been discussed and little
progress. At the January 28 meeting, the Union, for the
first time, presented its economic proposals among other
things. This, despite the fact, that not all language
proposals had been resolved. The only proposals of the
Decision of Administrative Law Judge 53
Union’s package that Respondent wouid accept, were
dues check-off, the arbitration clause, which the Union
agreed would be Respondent’s clause, and a retention of
the Respondent’s profit-sharing plan. Respondent re-
jected union security, management rights, hours of work
and super seniority, and Respondent wanted to retain its
current practice regarding vacations. Furthermore,
Respondent demanded retention of its no-strike proposal.
The request for two 10-minute rest periods was accepted
by the Respondent, but it did not want the periods to be
specified times during the day. Respondent offered three
additional holidays and a shift premium. It should be
noted that the shift premiums Respondent offered were
less than the Union requested and were to be given only
to employees transferred to the second or third shifts;
not to newly hired employees on those shifts as the Un-
ion requested. Respondent demanded a 1-year contract.
When the Parties met again on July 14, 1976, Respon-
dent repeated its final position of January 28. The
Respondent continued to require that the contract expire
on December 31, 1976, which would be less than 6
months from the date of this bargaining session.
The surface bargaining issue in this case, must be
viewed against a backdrop of antiunion conduct and un-
fair labor practices seldom seen in such imposing array.
Neither a prior Board Order, a Court Decree, or the
pendency of the charges litigated herein, tempered
Respondent’s determined resolve to break the Union by
engaging in flagrant violations of the Act. Thus, the
Respondent, a proven recidivist, continued in its efforts
to undermine the Union’s status before and after the
election, immediately prior to embarking upon
collective-bargaining meetings, during “negotiations”
and after negotiations ceased, immediately prior to the
trial in the instant case, and while trial was actually in
progress.
The passage of time, as evidenced by two more
violative acts of conduct by the Respondent to be dis-
cussed, did not abridge Respondent’s desire and intent to
rid itself of the Union. The personnel file of unit
54 Decision of Administrative Law Judge
employee Elwin Nugent, who was hired on April 28,
1977, contains a note which states inter alia, “has always
been a nonunion man.” A_ personnel consultant,
Lawrence J. Zimmerman, testified that he hired Nugent
and admitted writing the note during a pre-hire inter-
view. Zimmerman testified that he regularly visits the
Plant and his duties include recruitment, screening, and
recommending the hiring of unit employees. He has free
access to the Plant, escorts perspective employees
through the Plant, and at times, uses Kinander’s office
to interview perspective employees. According to
Zimmerman’s testimony Colosi had given him orders to
tell applicants that there was a union in the Plant and
that perspective employees who were not in the unit
were free to join or not join the Union. I discredit
Zimmerman in view of the fact that he was interviewing
Nugent as a unit employee and the progress of
negotiations on union security, was nil i.e., no union
security. I therefore concluded that, Lawrence Zimmer-
man is an agent of Respondent and his conduct is at-
tributable to it. Accordingly, I find that this is but
another independent violation of Section 8(a\1) of the
Act.
As late as May 16, 1977, a week before the trial in the
instant case, Respondent unilaterally promulgated a new
i, arama rule for employees who failed to wear safety
glasses.
In this regard, the record reveals on that date a
meeting was being conducted, a safety meeting for
employees in three of Respondent’s departments. While
the meeting was in progress, Mario Colosi entered the
meeting and stated that in the future, if he saw anyone
anywhere in the Plant, except the cafeteria, without
their safety glasses on, that employee would be suspend-
ed for an entire week without pay. Two employees
testified about this meeting and stated further, that in
the past they only had to wear their safety glasses while
operating machines or actually performing work, and
that they never before had been told they would receive
a 5-day suspension for the failure to wear glasses.
Decision of Administrative Law Judge 55
It is Respondent’s contention that this allegation does
not rise to the level of unlawful unilateral action, and, as
being simply deminimis should be dismissed. Although
there is no evidence that the rule is actually enforced, I
do not view this as dispositive. Rather, the fact that
higher levels of management, neither disavowed or
rescinded the rule and the discipline to be meted out in
furtherance of same, leads me to the conclusion that
Respondent has independently violated Section 8(a)(5) of
the Act, by unilaterally instituting a disciplinary rule
without bargaining with the Union as regards this man-
datory subject. See, Boland Marine and Manufacturing
Company, Inc., 225 NLRB 824, 829.
The pattern of unlawful conduct engaged in, by the
Respondent is similar to the pattern of conduct engaged
in by the Respondents in N.L.R.B. v. Herman Sausage
Co., Inc., 275 F. 2d 229, and Sweeney and Co. Inc., 176,
NLRB 208 enf’d. impertinent part 437 F. 2d 1127 (C.A.
5, 1971), and Albert Oldfield, d/b/a Oldfield Tire Sales,
221 N LRB 1275. In those cases, as here, the employers
engaged in independent violations of Section 8(a)(5) inter
alia, thus, affording extraneous evidence indicative of
an intent to undermine the Union which is contrary to
the concept of good faith bargaining. In Oldfield, the
Board concluded, pursuant to a stipulation, that Respon-
dent had committed numerous violations of Section
8(aX(1) of the Act, both before and after the Union was
certified and bargaining had begun. The issue to be
resolved, was whether Respondent also violated Section
8(aX5) of the Act, although ostensibly engaging in
bargaining. The instant case presents another parallel
with Oldfield, in that Respondent in Oldfield made
remarks after the initial bargaining session reflecting |
an attitude antithetical to good faith bargaining. The
Board and the Courts have long held that previous
relations of the parties and events antecerlent explain
behavior at the bargaining table and the course of
negotiations. This is the criteria used in determining |
good faith. See M.R. & R Trucking Company 178 NLRB
a gi ee v. Truitt Manufacturing Company 351
56 Decision of Administrative Law Judge
Frank Haderly, the Union chief Negotiator testified
about the first 11 negotiation meetings and Louis
Menendez testified regarding the one negotiation
meeting on July 14, 1976, where he was the principal
union negotiator. In their testimony they refer to
Respondent’s minutes and Haderly’s own handwritten
notes. Respondent did not accept subject Harderly to
cross-examination and I accept the testimony of both
Haderly and Menendez as reliable and accurate ac-
counts of what occurred at the negotiation sessions.
Respondent elicited testimony from an expert witness,
John Bacon, who is a vice-president of an employer
association in California. He testified generally as to his
definition of good faith bargaining and how it relates to
the instant case. I recognize that an expert may present
opinion testimony where he is in a position to do so. I
cannot accord his testimony any weight and deem it
irrelevant because Bacon was not familar with the
totality of the negotiations and the circumstances sur-
rounding the same and in effect, he was arriving at
legal conclusions which was not his role. The cases are
legion that no two surface bargaining cases are alike
and good faith can have meaning only as applied to the
particular facts in a particular case. See, American
National Insurance Co., 343 U.S. 395, 410.
The Board has held that where an employer makes
proposals which it could not have believed had any
chance of acceptance and further, which would have re-
quired the Union to abdicate its representational rights
and duties to the employees it represents, is contrary to
the concept of good faith bargaining. Gylf States
Manufacturing Inc., 230 NLRB 81.
The Respondent, herein, by its prevasive unfair labor
practices, including threats of reprisals, unilateral
actions, discharges and other violative conduct, demon-
strates to me that it had no intention of reaching
‘naa See, Bartlett-Collins Company, 230 NLRB
Decision of Administrative Law Judge 57
Furthermore, with regard to the unilateral action
taken by the Respondent, the Board has held that an
impasse is not reached where there was only surface
pereening- See, Neon Sign Corporation, 229 NLRB No.
The Board’s language in Sweeney and Co., Inc., supra,
and Borg-Warner Controls, 198 NLRB 726, is applicable
to the instant case. Respondent, in certain clauses of a
proposed contract, provided for less than the existing
terms and conditions of employment and rigidly held
the line in other areas, for example union security. The
Board concluded, inter alia, that the Respondent could
only have anticipated that the Union would have great
difficulty in accepting its proposals in reaching agree-
ment. The Board stated, and I think the language
applies equally to the instant case, “Based upon our
analysis of Respondent’s proposals, we are persuaded
that they showed rigidity so intense as to warrant an
inference that Respondent was seeking the avoidance,
rather than the obtaining of an agreement.” Moreover,
the Board found in examining Respondent’s totality of
conduct, “The issue is not, as Respondent suggests, that
Respondent did not make enough concessions. Rather,
the issue is whether Respondent’s approach to bargain-
ing demonstrated an unyeilding rigidity during negotia-
tions which made collective bargaining a futility.
Respondent’s unyeilding rigidity is clearly established
both in terms of Respondent’s substantive proposals and
its conduct relative to the procedural considerations of
the bargaining. Accordingly, the totality of Respondent’s
conduct during its bargaining, cOmpels the conclusion
that Respondent only went through the elaborate
motions of bargaining and adapted its tactics to its own
ends with no sincere desire of reaching an agreement.”
Accordingly, viewing the totality of Respondent’s
conduct, I find that it was engaging in surface bargain-
ing without a good faith intention of reaching an agree-
ment in violation of Sections 8(a\5) and (1) of the Act.
58 Decision of Administrative Law Judge
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section {%a) of the Act:
All full-time and regular part-time production and
maintenance employees employed at the employer’s
facility currently located at 222 West Central
Avenue, Roselle, Illinois 60172, excluding office
clerical employees, professional employees, adminis-
trative employees, managerial employees, guards
and supervisors as defined in the Act.
4. As certified by the National Labor Relations
Board on August 15, 1975, the Union is the exclusive
representative of the employees in the aforesaid unit, for
the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment and other
terms and conditions of employment.
5. By interfering with, restraining, and coercing its
employees in the exercise of their rights guaranteed by
Section 7 of the Act, the Respondent engaged in unfair
sang practices within the meaning of Section 8(a\1) of
the Act.
6. By discharging Adrian Velez, William Negron,
Mario Negron, Teofilo Lopez, Nelson Accevedo, and
Martin Ibarra, for reasons of their activity on behalf of,
or their support of the Union, or because they filed
charges and/or participated in National Labor Relations
Board proceedings, the Respondent has engaged in
unlawful conduct within the meaning of Sections 8(a)1),
(3), and (4) of the Act.
7. By withholding a raise and suspending Atanacio
Martinez for reasons of his union activity on behalf of,
or his support of the Union, the Respondent has engaged
in unlawful conduct within the meaning of Sections
8(aX1) and (3) of the Act.
Decision of Administrative Law Judge 59
8. By the suspension of Leoncio Gonzales, by reason
of his activity on behalf of or his support of the Union,
or because he participated in National Labor Relations
Board proceedings, the Respondent has engaged in
unlawful conduct within the meaning of Sections 8(a)1),
(3), and (4) of the Act.
9. By refusing to bargain collectively in good faith,
concerning rates of pay, hours of employment, and other
terms and conditions of employment with the Union, as
the exclusive representative of its employees in the
aforesaid unit, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning
of Sections 8(a\5) and (1) of the Act.
10. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it
cease and desist therefrom, and take certain affirmative
— designed to effectuate the policies of the Act as
ollows:
Having found that the Respondent, by promises of
benefits, threats, interrogation, surveillance and creating
the impression of surveillance, has interfered with,
restrained and coerced employees in violation of Section
8(aX1) of the Act, I shall recommend that the Respond-
ent cease and desist therefrom.
Having found that the Respondent discriminatorily
discharged employees Adrian Velez, William Negron,
Mario Negron, Teofilo Lopez, Nelson Accevedo and
Martin Ibarra, it is recommended that the Respondent
offer them immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
In addition, I recommend that the Respondent make
each of them whole for any loss each may have suffered
by reason of the discrimination against each, by
60 Decision of Administrative Law Judge
payment to each, a sum of money equal to that which
they would normally have earned from the date of
discharge, less net earnings during said period. Backpay
shall be computed according to F. W. Woolworth
Company, 90 NLRB 289 (1950), and with interest
computed in the manner prescribed in Florida Steel
Corporation, 231 NI.RB No. 117 (1977). (See generally,
Isis Plumbing & Heating Co., 1838 NLRB 716, 1962).
Having found further, that Respondent discrimina-
torily suspended Atanacio Martinez and Leoncio Gon-
zales and withheld Martinez’ raise, I recommend that
the Respondent make each of them whole for any loss
they may have suffered, by reason of this discrimination
against. them, by payment to each, a sum equal to what
they would have normally received from the dates of
their suspensions until they were fully reinstated by
Respondent, less any interim net earnings. Backpay is to
be computed as set forth above.
I will also recommend that Respondent expunge from
its personnel or other files, any reference to employees’
union affiliation or lack of same, and that Respondent
cease and desist from asking job applicants their
sentiments or utilizing the services of agents to ask
perspective employees or job applicants their union
sentiments or affiliation. Having also found that Re-
spondent has refused to bargain in good faith with the
Union in violation of Section 8(aX1) and (5) of the Act, I
shall recommend that it cease and desist from such
unlawful conduct, and affirmatively, that Respondent
bargain in good faith with the Union upon request.
So that the employees in the bargaining unit may
enjoy a year of good faith bargaining, and not be
deprived of the services of the Union as their collective
bargaining agent, for the period provided by law, I shall
recommend that the initial period of certification be
construed as beginning on the date Respondent com-
mences to bargain in good faith with the Union as the
recognized burgaining representative in the appropriate
unit. See, Mar-Jac Company, Inc., 186 NLRB 785, King
Radio Corporation, 172 NLRB 1051, Beryl Chevrolete,
Inc., 221 MLRB 810.
Decision of Administrative Law Judge 61
Further, having found that Respondent violated Sec-
tion 8(aX1) and (5) of the Act by unilaterally establish-
ing a new disciplinary policy for failure to wear safety
glasses in the Plant, it is recommended that such policy
be rescinded and withdrawn.
In view of the nature of the unfair labor practices
herein found, including serious, substantial and perva-
sive interference, coercion, restraint, and discrimination,
going to the very heart of the Act, there exist the danger
of commission by the Respondent of other unfair labor
practices prescribed by the Act. Accordingly, I recom-
mend that Respondent be directed to cease and desist
from in any other manner, infringing upon the rights
guaranteed in Section 7 of the Act.
The transcript in the instant proceeding is corrected
in accordance with Counsel for the General Counsel’s
Motion To Correct Transcript and their Erata To
Motion To Correct Transcript with the exception of No.
64, Page 654, Line 6. The Record is correct in that
respect.
On the basis of the foregoing findings of fact, and the
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommendation:!2
ORDER
The Respondent, Electri-Flex Company, of Roselle,
Illinois, its officers, agents, successors and assigns shall:
1. Cease and desist from:
(a) Promising benefits to employees if they refrain
from engaging in union activities.
12 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 nneine. conclusions 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 deemed waived for all purposes.
62 Decision of Administrative Law Judge
(b) Threatening employees with reprisals, for en-
gaging in, union activities.
(c) T
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