L. A. Water Treatment, Division of Chromalloy American Corporation

National Labor Relations Board - Board Decisions

Aug 9, 1982

263 N.L.R.B. 244 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. A. Water Treatment, Division of Chromalloy
American Corporation and Leroy Solder for
Kenneth Freilich, Sr., Manuel Norberto Her-
nandez, and Kenneth Freilich, Sr. Cases 21-
CA-18509, 21-CA-18594, and 21-CA-18925
August 9, 1982
BY MEMBERS FANNING, ZIMMERMAN, AND
HUNTER
DECISION AND ORDER
On December 8, 1980, Administrative Law
Judge Jay R. Pollack issued the attached Decision
in this proceeding. Thereafter, Respondent and
counsel for the General Counsel filed exceptions
and supporting briefs, and Charging Party Hernan-
dez filed exceptions. Counsel for the General
Counsel also filed a brief answering Respondent's
exceptions, as well as an opposition to the receipt
of the exhibit attached to Respondent's exceptions
and supporting brief. '
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
1. We agree with the Administrative Law Judge
that, under N.L.R.B. v. J. Weingarten, Inc., 420
U.S. 251 (1975), Respondent violated Section
8(a)(1) by denying representation to employee
Manuel Hernandez during the interview in which
he was discharged. In doing so, however, we do
not adopt the Administrative Law Judge's analysis
concerning the validity of Hernandez' request for
representation, and we find for the following rea-
sons that Hernandez' request was sufficient to
invoke Weingarten.
The record discloses that on January 14, 1980,3
Hernandez and Shop Superintendent Ernest Tri-
plett became involved in an argument over a work
assignment, and Triplett told Hernandez that he
would "get" him for insubordination. It is undisput-
In view of the result reached herein, we find it unnecessary to reach
the General Counsel's motion.
2 Respondent asserts that the Administrative Law Judge's resolutions
of credibility, findings of fact, and conclusions of law are the result of
bias. After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative Law Judge resolved
important factual conflicts in favor of the General Counlsel's witnesses.
As the Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship Compa-
ny, 337 U.S. 656, 659 (1949): "[T]otal rejection of an opposed view
cannot of itself impugn the integrity or competence of a trier of fact."
Furthermore, it is the Board's established policy not to overrule an ad-
ministrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products Inc, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
I Unless otherwise specified, all dates herein refer to 1980.
263 NLRB No. 22
ed that, when Triplett subsequently told Hernandez
to come to his office, Hernandez asked that Ken
Freilich be allowed to accompany him. Triplett
denied that request, and the two then agreed to
have Assistant Plant Superintendent Oscar Nunez
present at the interview.
Respondent has contended throughout this pro-
ceeding that Hernandez' request was invalid, since
Hernandez asked for a mere fellow employee and
not for an authorized union representative. The
Administrative Law Judge found that Hernandez'
request was sufficient to invoke Weingarten, since
Hernandez was unaware of any change in Frei-
lich's status as union steward, 4 and since Triplett
failed to notify Hernandez that his request was de-
ficient in that respect. The Administrative Law
Judge noted that Respondent's argument might
have some validity if Triplett had notified Hernan-
dez that his request was being denied because Frei-
lich was no longer steward. However, he conclud-
ed that in the absence of such notice Triplett's re-
fusal can be viewed only as a denial of representa-
tion.
Contrary to the Administrative Law Judge, we
find applicable to this case the analysis in Illinois
Bell Telephone Company, 251 NLRB 932 (1980),
where the Board found that under the circum-
stances a request for a fellow employee with no of-
ficial union status was sufficient to invoke Weingar-
ten. There the Board noted that "the right to a rep-
resentative is one grounded in Section 7 of the Act
without reference to whether the employees have a
majority bargaining representative." s Quoting from
Anchortank, Inc., 239 NLRB 430 (1978), the Board
further observed that "[t]he Court and the Board
[in Weingarten] placed the emphasis upon the em-
4 Whether Freilich was still serving as union steward on January 14 is
not entirely clear from the record. The Administrative Law Judge noted,
without crediting, Union Business Representative Fdgar Wiley's testimo-
ny that he terminated Freilich as steward after Freilich filed the decertifi-
cation petition on December 10, 1979. Freilich denied receiving notice
that he was no longer steward. The Administrative Law Judge's analysis
of the Weingarten violation seems to imply a finding that Freilich was no
longer steward, but he found at another point that Freilich served as ste-
ward for the 2 years preceding his discharge on April 8, 1980. As dis-
cussed, infra, we find that Hernandez had a right to have Freilich as his
representative, even assuming that Freilich no longer held an official
union position.
Member Hunter finds, for the reasons set forth by the Administrative
Law Judge, that Hernandez' request for Freilich to accompany him to
the meeting with Triplett was sufficient to invoke Hernandez' Weingarten
rights. Thus, as found by the Administrative Law Judge, Freiiich had
served as the senior ship steward for 2 years; Hernandez was unaware of
any change in Freilich's position when he requested Freilich's attendance;
and Respondent failed to notify Hernandez of anty impediment to his re-
quest. Based on the foregoing, Member Hunter finds no need to con-
clude, as does the majority, that even assuming Freilich no longer was a
union steward, Hernandez was entitled to have Freilich as his representa-
tive merely because Freilich was a fellow employee. Member Hunter
therefore finds it unnecessary to pass on Illinois Bell, infra, which forms
the basis for the majority's conclusion.
5 251 NLRB at 933.
244
L A. WATER TREATMENT
ployee's right to act concertedly for protection in
the face of a threat to job security, and not upon
the right to be represented by a duly designated
collective-bargaining representative." 6 The Board
recognized that there may be occasions when an
individual's Section 7 interests must yield to the
collective decision of his fellow employees, as de-
termined by the majority bargaining representative.
However, where the circumstances present no con-
flict between the employees' Section 7 right to a
representative and a union's status as the employ-
ees' exclusive bargaining representative, the Board
concluded that an employee upon request has the
right to the presence of a fellow employee at an in-
terview, even though the requested representative
has no official union status. The Board found that
the circumstances of that case presented no such
conflict, and we find that the circumstances herein
are sufficiently similar to those of Illinois Bell to
warrant the same finding. Thus, as in Illinois Bell,
there is no evidence here that any other union rep-
resentative or steward was available at the time of
the interview. Further, when Triplett denied Her-
nandez' request that Freilich be present, Triplett
made no attempt to locate a steward and did not
offer to delay the interview until a steward could
be located. Instead he proceeded with the inter-
view in the presence of Supervisor Nunez. Addi-
tionally, as in Illinois Bell, there is no evidence that
the contract required the presence of a union rep-
resentative at interviews, and there is no evidence
that Respondent and the Union had reached an
oral understanding establishing a procedure for
representation at interviews. In these circum-
stances, we therefore find that Hernandez had a
right to Freilich's presence at the interview, even
assuming that Freilich was no longer serving as
union steward.' Consequently, we also find that
Respondent violated Section 8(a)(1) by denying
Hernandez his right to a representative at the inter-
view.
6 Id. at 933. quoting Anchortank. Inc., 219 NLRB 430 (1978).
7 We also finl that the filing (of a decertification petition by Freilich on
December 10. 1979, does not present a conflict between the employees'
Sec. 7 right to a representative and the Union's status as the employees'
exclusive bargaining represenritalive As the Administrative Law Judge
found, Freilich had s*rved as senir shop steward for a substantial period
of time. and had represented the Ulnion in contract negotiations with Re-
spondent in Novemrnhr and December 1979. Ihere is no evidence that
Freilich was no lonrger a union member at the time of the interview, and,
as noted, the parties had not negotiated any limitations as to who could
represent employees in interviews In fact, as the Administrative Law
Judge found. Respondent subsequently permitted Freilich to attend an in-
terview as a repre.entative for enployee Hunt lIreilich filed the decerti-
fication petition 3 days after the parties had reached a new agreement,
because of his displeasure with Unlioin Husiness Representative Wiley's
performance during the negotiations Under these circumstances, we find
that the existence of animosity between Freilich and the Union does not
present the type of conflict silinh which the Board was concerned in Ilh-
nois Bell
2. We also agree with the Administrative Law
Judge that the Board's analysis in Kraft Foods, Inc.,
251 NLRB 598 (1980),s is applicable to this case,
and that the General Counsel has demonstrated the
appropriateness of a make-whole order. We note,
however, that the Administrative Law Judge in-
correctly indicated that under Kraft Foods the Gen-
eral Counsel must establish that an employee was
discharged "for conduct which occurred at the in-
terview" in order to make a prima facie showing
that a make-whole remedy is warranted. What we
stated in Kraft Foods is that the General Counsel
must establish that an unlawful interview occurred
and that the employee whose rights were violated
was subsequently disciplined "for the conduct
which was the subject of the unlawful interview."
When the General Counsel has thus established a
prima facie case, the burden then shifts to the re-
spondent to demonstrate that its decision to disci-
pline the employee was not based on information
obtained at the unlawful interview.9
Applying the Kraft Foods analysis to the instant
case, we note initially that the General Counsel has
established that an unlawful interview occurred.
We find that the conduct which was the subject of
the interview was insubordination, since Triplett
held the interview in order to obtain assurances
from Hernandez that he would not be insubordi-
nate in the future. We also find that the General
Counsel made its prima facie showing and shifted
the burden to Respondent by establishing that Her-
nandez was discharged for failing to provide assur-
ances that he would no longer be insubordinate.10
As the Administrative Law Judge correctly
found, Respondent has not met its burden of dem-
onstrating that the discipline was not based on in-
formation obtained at the unlawful interview. The
information obtained was Hernandez' unwillingness
to give the requested assurances, and Triplett con-
cedes that he relied on this information in deciding
to discharge Hernandez. In fact, Triplett also ad-
mitted that his decision as to what to do with Her-
nandez was contingent upon what occurred at the
meeting. In view of the foregoing, we find, in
agreement with the Administrative Law Judge,
9 See also Illinois Bell, supra, 251 NLRB at 934.
9 Member Jenkins adheres to his position in Kruft Foods that the appro-
priateness of a make-whole remedy is established when the General
Counsel demonstrates that an unlawful interview occurred and that the
emplloyee whose rights were violated was subsequently disciplined for
the conduct which was the subject of the unlawful interview
i' As we have found, the conduct which was the subject of the inter-
view was insubordination In these circumstances, we view the insubordi-
nate conduct and the failure to give the requested assurances as being in-
extricably intertwined Therefore. in finding that Hernandez was dis-
charged for failing to provide those assurances, we are finding that he
was discharged for the conduct which was the subject of the interview
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the appropriateness of a make-whole remedy
has been established.
3. As noted above, we agree with the Adminis-
trative Law Judge that Respondent violated Sec-
tion 8(a)(1) by denying Hernandez a representative
at the interview, and that the General Counsel has
established that a make-whole remedy is appropri-
ate. However, contrary to the Administrative Law
Judge, and in agreement with Respondent's excep-
tions, we find that Respondent did not indepen-
dently violate Section 8(a)(1) by discharging Her-
nandez. As the Board indicated in Kahn's and Com-
pany, Division of Consolidated Food Co., 253 NLRB
25 (1980), "discipline imposed for conduct which is
the subject of a Weingarten interview does not
itself constitute a separate violation of Section
8(a)(1) of the Act, unless the General Counsel
shows that the employee was discharged for re-
questing the presence of his union representative or
for engaging in other protected activity unrelated
to the exercise of the employee's Weingarten
rights."" In the instant case, the General Counsel
presented no evidence that Hernandez was dis-
charged for requesting a union representative or
for engaging in other protected activity. Accord-
ingly, we shall make appropriate modifications to
the Administrative law Judge's Conclusions of
Law and to his recommended Order.
4. The Administrative Law Judge found that Re-
spondent made a valid offer of reinstatement to
Hernandez as of January 21, and that by failing to
accept the offer Hernandez forfeited his right to
further backpay.' 2 We find merit to the General
Counsel's exceptions concerning this issue, and we
find for the reasons below that Respondent did not
make a valid offer of reinstatement.
Hernandez was terminated on Monday, January
14, and on the next day the Union's Business Rep-
resentative Edgar Wiley obtained an agreement
with Respondent whereby Hernandez would be
permitted to return to work on the following
Monday, January 21. Wiley was unable to reach
Hernandez until Wednesday, January 23, when
Hernandez called Wiley from his new place of em-
ployment. Wiley's credited testimony does not dis-
close the manner in which he initially phrased the
offer, and he testified only that Hernandez' first re-
sponse was that he had a good spot and was not
interested in going back to work for Respondent.
Wiley then testified that he subsequently told Her-
' 253 NLRB at 25.
12 The Administrative Law Judge found that, in view of the uncertain-
ty caused by the offer, Hernandez would not be deemed to have waived
his right to unconditional reinstatement. He therefore ordered reinstate-
ment, and provided for backpay from January 14 to January 21, as well
as from 5 days after the date of the order to the date Respondent makes a
valid reinstatement offer.
nandez, "Please consider it very carefully. You will
be going back on the basis that you will go back to
work immediately, and we would arbitrate for
whatever lost days you may have." When Hernan-
dez again declined to return to work, Wiley told
him to think it over for an extra day. Wiley testi-
fied that he spoke with Hernandez on Thursday,
January 24, but again his testimony discloses only
the fact of Hernandez' refusal, which Wiley char-
acterized as "very firm," and not the language
Wiley used in making the offer.
According to the credited testimony of Vice
President and General Manager Richard Scott,
Wiley informed Scott on January 24 of Hernandez'
refusal. Scott responded, "Well, then as far as I am
concerned, the case is closed; we have made an
offer and he refuses to come back, and he will have
to take his next step." Finally, Wiley's credited tes-
timony discloses that Hernandez came into the
union office on February 2. Wiley again talked to
him about employment with Respondent and of-
fered to "take a shot at it again, if you want."
Wiley testified that Hernandez responded "abso-
lutely no."
The Board has often observed that an employer's
offer of reinstatement must be "specific, unequivo-
cal, and unconditional' 3s in order to toll the back-
pay period. It is the employer who carries the
burden of demonstrating a good-faith effort to
communicate the offer to the employees.' 4 An em-
ployer is relieved of his duty to reinstate only
when a proper offer is made and unequivocally re-
jected by the employee. 5 The Board has also re-
quired that an offer of reinstatement must allow the
employee a reasonable time in which to make ar-
rangements to begin work. 6 This requirement
takes on a special significance where, as in the in-
stant case, the employee has obtained other em-
ployment at the time the offer is made. In such cir-
cumstances, the Board requires that the reinstate-
ment offer afford the employee an opportunity to
make a considered choice whether to retain his
present employment or to return to his former job.
The offer must also allow the employee to give
reasonable notice to his current employer should
he choose the latter course. 1'7
' Standard Aggregate Corp., 213 NLRB 154 (1974).
14 Lipman Bros., Inc., et al.. 164 NLRB 850, 853 (1967).
15 Lipman Bros., Inc., supra at 853, and cases cited at fn 22. See also
Don Pizzolato. Inc., 249 NLRB 953, 956 (1980); W. C. McQuaide. Inc., 239
NLRB 671 (1978).
16 Betts Baking Company, 173 NLRB 1018 (1968); larrah's Club, 158
NLRB 758, 759, fn. 1 (1966).
17 Dobbs Houses, a Division of Squibb Beechnur, Inc., 182 NLRB 675,
682 (1970). See also W. C. McQuaide, Inc., supra at 671; Betts Baking
Company, supra at 1018-19; Thermoid Conpany, 90 NLRB 614, 616
(1950).
246
L. A. WATER TREATMENT
In the instant case, as noted above, Wiley ob-
tained an agreement from Respondent that Hernan-
dez could return to work on January 21. However,
Wiley did not speak with Hernandez until January
23, when Hernandez had already obtained other
employment. By phrasing the offer to require that
Hernandez return to work "immediately," Wiley
clearly failed to afford Hernandez sufficient time in
which to make a considered choice concerning his
employment or to give adequate notice to his cur-
rent employer. That Wiley gave Hernandez an
extra day to reflect upon the offer does not alter
our finding, since the Board has previously found
to be inadequate offers requiring acceptance within
4 days. '
We also find that a valid offer was not made to
Hernandez during his encounter with Wiley at the
union office on February 2, even assuming that
Hernandez was no longer employed. 1 9 We note
initially that on January 24, when informed of Her-
nandez' refusal, Scott told Wiley that the "case is
closed." Scott clearly manifested in this statement
an intention to withdraw the offer and to withdraw
Wiley's authority to make any further offers to
Hernandez. Additionally, on February 2, Wiley
merely stated that he would "take a shot" at
having Hernandez return to work. In doing so,
Wiley simply indicated his willingness to intercede
on Hernandez' behalf and was not making a clear
reinstatement offer. Hernandez' rejection of Wiley's
proffered assistance is therefore of no consequence
in this context.
Apart from the above considerations, we are also
not satisfied that Respondent has met its burden of
adducing sufficient evidence to warrant the conclu-
sion that a valid offer of reinstatement was made.
We have found above that Wiley's testimony does
not reveal the manner in which he phrased the
offer to Hernandez, either at the time of the initial
offer on January 23 or at the time of the offer on
January 24. Wiley merely noted the fact of Her-
nandez' refusal on both occasions. Consequently,
the record does not disclose the nature of the com-
munications to which Hernandez was responding at
the time of those refusals. As to the specific terms
of the offer, the record reveals only that, soon after
Hernandez' initial refusal on January 23, Wiley told
"I See Betts Baking Company. supra at 1017-18; Harrah's Club, supra at
759, fn. I and 762, fn. 5, and accompanying text; Thermoid Company.
supra at 616.
'1 The record discloses some confusion as to whether Hernandez was
unemployed as of February 2. Hernandez never affirmatively testified
that he was unemployed. He did testify that he was attempting to get un-
employment compensation, and that the unemployment office had direct-
ed him to obtain some papers from the Union. Wiley at first testified that
Hernandez stated that he was unemployed, hut subsequently testified that
he merely "assume[dl" that Hernandez no longer had a job, since the un-
employment office had directed him to the Union.
him that he would be going "back to work imme-
diately," and that they would go to arbitration con-
cerning the days he had missed.
We find that the absence of testimony concern-
ing the specific terms of the offers made on two
occasions is crucial in this case, in view of the Ad-
ministrative Law Judge's specific finding that the
offer caused uncertainty and that Hernandez be-
lieved that acceptance would have been tanta-
mount to an admission on his part. The Administra-
tive Law Judge's finding in this regard is amply
supported by the record, since Hernandez testified
that he recalled the offer as being conditioned upon
his acceptance of a suspension, and since he also
testified that he told Wiley that "[u]nder those con-
ditions" he would not accept the offer because he
was "not guilty." 2 0
In view of Hernandez' confusion and the insuffi-
ciency of Wiley's testimony, we cannot say that
the record clearly discloses that a proper offer of
reinstatement was made. We shall therefore modify
the Administrative Law Judge's recommended
remedy accordingly.2 1
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 3:
"3. Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(l) of the Act by
threatening to discharge employees if they did not
withdraw a decertification petition; by threatening
to close its plant if employees decertified the Union
or selected a labor organization other than the
Union as their collective-bargaining representative;
and by denying the request of employee Manel
Norberto Hernandez to have representation at an
investigatory interview which he reasonably be-
lieved might result in disciplinary action against
him."
so We discuss Hernandez' testimony here only to emphasize that con-
fusion existed, and not to demonstrate that Wiley actually included these
terms in the offer. Hernandez' testimony, which supports the Administra-
tive Law Judge's finding that the offer caused uncertainty, serves to
highlight the inadequacy of Wiley's testimony concerning the terms of
the offer which he communicated to Hernaldez.
Further, we also find that Hernandez' refusals to return to work,
which were characterized by Wiley at one point as being "very firm"
and which included a statement on February 2 that he "absolutely"
would not return, must be viewed in the context of his confusion as to
the terms of the offer. Because of his confusion, it is clear that by his
refusals Hernandez did not manifest an unequivocal intention not to
return to work under any circumstances.
21 In accordance with our procedure in similar cases, we shall also
modify the Administrative Law Judge's recommended Order to require
that Respondent expunge from its files and records any and all references
to Hernandez' unlawful interview and discharge. We shall make the same
provisions with respect to Kenneth Freilich's discharge.
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent engaged in cer-
tain unfair labor practices, we shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the pur-
poses of the Act.
Having found that Respondent discharged em-
ployee Kenneth Freilich in violation of Section
8(a)(3) and (1) of the Act, and having found that a
make-whole remedy is appropriate for employee
Manuel Hernandez, we shall order Respondent to
offer each employee immediate and full reinstate-
ment to his former position of employment or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously en-
joyed. We shall order Respondent to make Freilich
whole for any loss of earnings he may have suf-
fered by reason of Respondent's discrimination
against him, by paying to him a sum of money
equal to the amount he normally would have
earned in wages from April 8, 1980, the date of his
discriminatory discharge, to the date on which Re-
spondent makes a valid offer of reinstatement to
him, less net earnings during said period, plus inter-
est. We shall order Respondent to make Hernandez
whole for any loss of earnings he may have suf-
fered, by paying to him a sum of money equal to
the amount he normally would have earned as
wages from January 14, 1980, the date of his dis-
charge, to the date on which Respondent makes a
valid offer of reinstatement to him, less net earn-
ings during said period, plus interest. The amount
of backpay due shall be computed in the manner
prescribed in F W. Woolworth Company, 90 NLRB
289 (1950), with interest as prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977). See also
Isis Plumbing & Heating Co., 138 NLRB 716
(1962).22
We shall also order Respondent to expunge and
remove from its records and files all references to
the interview and discharge of Manuel Hernandez,
and all references to the discharge of Kenneth
Freilich. See Sterling Sugars, Inc., 261 NLRB No.
71 (1982).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, L. A. Water
Treatment, Division of Chromalloy American Cor-
a' In accordance with his dissent in Olympic Medical Corporulion, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
poration, City of Industry, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Delete paragraph l(d) and reletter the subse-
quent paragraphs accordingly.
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Expunge and remove from its records and
files all references to the interview and discharge
of Manuel Hernandez on January 14, 1980, and all
references to the discharge of Kenneth Freilich on
April 8, 1980, and notify them in writing that this
has been done and that evidence of these unlawful
disciplinary actions will not be used as a basis for
future personnel actions against them."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
I agree with the majority that Respondent violat-
ed Section 8(a)(1) by denying representation to em-
ployee Manuel Hernandez during the interview
which resulted in his discharge, and that Respond-
ent subsequently failed to make a valid offer of re-
instatement to Hernandez. I also agree with the
majority's finding under Illinois Bell Telephone
Company, 251 NLRB 932 (1980), that Hernandez
was entitled to have employee Kenneth Freilich as
his representative, and with the finding that a
make-whole remedy is appropriate. Contrary to my
colleagues, however, I would adopt the Adminis-
trative Law Judge's finding that Respondent's dis-
charge of Hernandez constituted an independent
violation of Section 8(a)(1).
The Administrative Law Judge found that, after
an argument during which Shop Superintendent
Ernest Triplett threatened to "get" Hernandez for
insubordination, Triplett conducted an interview
with Hernandez for the purpose of obtaining assur-
ances that he would not be insubordinate in the
future. Triplett denied Hernandez' request that
Freilich be permitted to act as his representative,
but subsequently agreed to have Supervisor Oscar
Nunez present. Hernandez failed to p.rovide the re-
quested assurances, and Triplett terminated him at
the meeting.
The majority relies upon Kahn's and Company.
Division of Consolidated Food Co., 253 NLRB 25
(1980), as establishing the prevailing rule regarding
the circumstances in which the Board will find an
independent Section 8(a)(l) violation as to the dis-
cipline imposed in connection with an unlawful in-
terview. 2 3 That case cites Illinois Bell, supra, for
13 Although I participated in the original decision in Kahn's and Corn-
panv, I subsequently clarified my position when the Board denied a
Continued
248
L. A. WATER TREATMENT
the proposition that an independent violation will
not be found unless an employee "was discharged
for requesting the presence of his union representa-
tive or for engaging in other protected activity un-
related to the exercise of the employee's Weingar-
ten rights."2 4 In my view, Illinois Bell does not es-
tablish that proposition. In Illinois Bell, the General
Counsel alleged in his complaint that the respond-
ent violated Section 8(a)(1) by discharging an em-
ployee because she requested representation at an
interview.2 5 The Board merely dismissed the com-
plaint in that respect because the General Counsel
failed to present sufficient evidence in support of
its allegation. At no point did the Board state that
an independent 8(a)(1) violation will be found only
where it is established that an employee was dis-
charged because of a request for a representative
or for engaging in other concerted activity.
Contrary to my colleagues, I would find that the
discipline imposed in connection with an unlawful
interview violates Section 8(a)(1) where the Gener-
al Counsel has affirmatively established that an em-
ployer relied on the tainted information obtained at
the interview in imposing the discipline. 2 6 In
reaching this conclusion, I note that the central
function of a Weingarten representative, as the Su-
preme Court has observed, is to clarify information
and to provide assistance to an employee who may
be "too fearful or inarticulate" to relate accurate
information, or "too ignorant to raise extenuating
factors." 27 Therefore, the employer who denies
representation to an employee during an interview
creates circumstances which are conducive to the
production of inaccurate and incomplete informa-
tion concerning the events which prompted the in-
terview. Consequently, when an employer engages
in misconduct like that involved herein, it acts in
disregard of employees' Section 7 rights in two re-
motion for reconsideration in the same case. See my concurrence in
Kahn's and Company. Division of Consolidated Food Ca, 256 NLRB 930
(1981)
24 253 NLRB at 25.
25 251 NLRB at 934.
26 The General Counsel's burden in this regard can be clarified by
considering it in the context of the various burdens arising in connection
with unlawful interviews. Thus, under Kraft Foodxs Inc., 251 NLRB 598
(1980), the General Counsel can make a prima facie showing of the ap-
propriateness of a make-whole remedy by establishing that an unlawful
interview occurred and that the employee whose rights were violated
was subsequently disciplined for the conduct which was the subject of
the unlawful interview. When a prima facie showing has been made, the
majority analysis in Kraft Foods provides that the burden then shifts to
the employer to prove that it did not rely on information obtained at the
interview in imposing the discipline. Under that analysis, a make-whole
remedy is appropriate if the employer fails to meet its burden. In my
view, the General Counsel can further prove that the discipline itself, and
not simply the interview, violates Sec. 8(aXI) by affirmatively establish-
ing that Respondent relied on the tainted information obtained at the in-
terview in imposing the discipline. This is particularly true where, as
here, the employer concedes that it relied on the information obtained at
the interview.
a? N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 263-264 (1975).
spects. Not only does the employer ignore an em-
ployee's right to a Weingarten representative, but it
exacerbates that initial coercion by disciplining the
employee based on information which, as a result
of the denial of representation, is in all likelihood
incomplete or inaccurate. In my view, the disci-
pline cannot be lawful if it is based on information
which is distorted because of the employer's un-
lawful denial of representation, and I would find
that such discipline violates Section 8(a)(1) and
warrants remedial action by the Board in the form
of a cease-and-desist order and the posting of an
appropriate notice. In similar circumstances, the
Board has always viewed the threat to discharge
an employee for engaging in protected concerted
activity and the resulting discharge for engaging in
such activity as constituting separate violations of
the Act. My colleagues have failed to adequately
explain their rationale for reaching a different
result herein.
Applying this analysis to the instant case, I note,
in agreement with the majority, that the informa-
tion obtained at the interview was Hernandez' un-
willingness to provide assurances that he would no
longer be insubordinate. In view of Triplett's con-
cession that he utilized this information in discharg-
ing Hernandez, I would find that the General
Counsel has met his burden of affirmatively estab-
lishing reliance. Accordingly, I would find that Re-
spondent engaged in an independent violation of
Section 8(a)(1) by discharging Hernandez.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees with dis-
charge if they do not withdraw a decertifica-
tion petition.
WE WILL NOT threaten employees with
plant closure if they decertify the incumbent
Union and/or select a labor organization other
than the incumbent as their collective-bargain-
ing representative.
WE WILL NOT deny the request of union
representation to employees at investigatory
interviews when the employees have reason-
able grounds to believe that the matters to be
discussed may result in their being the subject
of disciplinary action.
WE WILL NOT discharge employees because
of their activities on behalf of a petition to de-
certify International Union of Operating Engi-
neers, Local No. 501, AFL-CIO, as the col-
lective-bargaining representative of our em-
ployees.
WE Wil L NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
WE WILL offer Manuel Norberto Hernandez
and Kenneth Freilich, Sr., immediate and full
reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed; and WE WILL. make them whole for any
loss of earnings they may have suffered by
reason of our discrimination against them, plus
interest.
WE WILL expunge and remove from our
records and files all references to the interview
and discharge of Manuel Norberto Hernandez
on January 14, 1980, and all references to the
discharge of Kenneth Freilich on April 8,
1980, and notify them in writing that this has
been done and that evidence of these unlawful
disciplinary actions will not be used as a basis
for future personnel actions against them.
L. A. WATER TREATMENT, DIVISION
OF CHROMALLOY AMERICAN CORPO-
RATION
DECISION
STATEMENT or THE CASE
JAY R. POLLACK, Administrative Law Judge: This
matter was heard before me at Los Angeles, California,
on August 19 and 20, 1980. Pursuant to a charge filed in
Case 21-CA-18509 against L. A. Water Treatment, Divi-
sion of Chromalloy American Corporation (herein called
Respondent) by Leroy Solder for Kenneth Freilich, Sr.,
on December 18, 1979, and a charge filed in Case 21-
CA-18594 against Respondent by Manuel Norberto Her-
nandez on January 17, 1980, the Regional Director for
Region 21 of the National Labor Relations Board issued
a consolidated complaint against Respondent on Febru-
ary 29, 1980, alleging that Respondent has committed
certain violations of Section 8(a)(1) of the National
Labor Relations Act, as amended (herein called the
Act).' Pursuant to a charge filed in Case 21-CA-18925
against Respondent by Freilich on April 9, 1980, the Re-
gional Director issued an amended consolidated com-
plaint against Respondent which alleges certain viola-
tions of Section 8(a)(l), (3), and (4) of the Act.
The parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Post-trial briefs were
filed on behalf of the General Counsel and Respondent.
Based on the entire record, on the briefs filed by counsel,
and on my observation of the demeanor of the witnesses,
I make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. JURISI)CTION
At all times material herein, Respondent has been a
Delaware corporation engaged in the design and fabrica-
tion of water treatment equipment with a facility located
in the City of Industry, California. In the operation of
said facility, Respondent annually sells and ships goods
and products valued in excess of $50,000 directly to cus-
tomers located outside the State of California.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE t ABOR ORGANIZATION INVOLIVED
The complaint alleges, the answer admits, and I find
that at all times material herein International Union of
Operating Engineers, Local No. 501, AFL-CIO, herein
called the Union, has been a labor organization within
the meaning of Section 2(5) of the Act.
II1. THE ALLEGEI) UNFAIR l.ABOR PRACTICES
A. Background
As discussed above, Respondent is engaged in the
design and manufacture of water treatment equipment.
The Union has represented Respondent's production and
maintenance employees since 1948.
During 1979, Respondent's City of Industry operations
lost in excess of $1 million. In an attempt to improve the
situation, Respondent created a new management posi-
tion, vice president and general manager, to oversee all
i The consolidated complaint included allegations in Case 21-CB-7168
that International Union of Operating Engineers, Local No. 501, AFL-
CIO, had committed certain unfair labor practices in violation of Sec.
8(b)3) of the Act. On June 19, 1980, the Regional Director approved Re-
spondent's request to withdrawn its charge against the Union, and sev-
ered Case 21-CB-7168 from the instant cases. The complaint allegations
pertaining to Case 21-CB-7168 were withdrawn.
250
L. A. WATER TREATMENT
operations. On November 1, 1979, this new position was
filled by Richard Scott. Effective December 17, 1979,
Scott made several changes in Respondent's supervisory
hierarchy in an attempt to achieve more direct supervi-
sion over the production and maintenance employees.
Two changes relevant to these proceedings were that
Daniel Giacoletti was promoted from plant superintend-
ent to plant manager and Ernest Triplett was promoted
to the newly created position of shop superintendent.
Dbring the same period of time that Scott was assum-
ing his position with Respondent, the Union and Re-
spondent were engaged in negotiations for a new collec-
tive-bargaining agreement. In these negotiations, the
Union was represented by Edgar Wiley, business repre-
sentative; Kenneth Freilich, Sr., senior shop steward; and
Bill Hunt, junior shop steward. During the negotiations,
Freilich became displeased with Wiley's performance.
On December 7, Respondent and the Union reached
agreement on a new collective-bargaining agreement. On
December 10, Respondent sent a signed copy of a
memorandum of agreement to the Union for signature.
Also on December 10, Freilich filed a petition for a de-
certification election in Case 21-RD-1663.
It is within this factual framework that the General
Counsel alleges that Respondent threatened Freilich with
termination and plant closure if he did not withdraw the
decertification petition and discharged Freilich because
of his participation in the decertification proceedings
and/or because of his participation in this unfair labor
practice proceedings. Further at issue is whether Re-
spondent violated Section 8(a)(l) of the Act by conduct-
ing an investigatory interview with Hernandez after
denying his request to have Freilich present during the
interview.
B. The Alleged Threats to Freilich
As discussed above, Freilich, unhappy with Wiley's
representation, filed a decertification petition on Decem-
ber 10. According to Freilich, on December 26, he was
told by Dominic Giacoletti, assistant plant superintend-
ent,2 whom I find to be supervisor, that if Freilich did
2 Dominic Giacoletti is the uncle of Daniel Giacoletti, Respondent's
plant manager. As an assistant plant superintendent, Dominic Giacoletti
attends regularly scheduled supervisory meetings and receives higher
wages than the unit employees. Giacoletti's main job function is to expe-
dite production and monitor the safety, quality, and quantity of the work
done by his crew. Glacoletti's crew consists of 2 leadmen and approxi-
mately I 11 employees. He issues work orders to the leadmen, who in turn
direct their crews in the performance of their job functions. Giacoletti
performs no unit work himself Giacoletti has the authority to issue disci-
plinary warnings but does not have the authonty to discharge employees.
His recommendations with respect to discharge are apparently further in-
vestigated by higher management. Giacoletti also has the authonty to
grant time off to employees In the decertification proceedings, the Re-
gional Director found two named assistant plant superintendents to be su-
pervisors within the meaning of the Act, but did not rule on Giacoletti's
status. Giacoletti voted in the decertification election but this ballot was
challenged. No ruling was made on the challenge to Giacoletti's ballot as
his vote did not affect the outcome of the election. In this proceeding,
Daniel Giacoletti testified that all assistant plant superintendents have the
same authority.
On the basis of the above, I find that Dominic Giacoletti is a supervi-
sor within the meaning of Sec. 2(11) of the Act. Flexi- Van Service Center,
a Division of Flexi-Van Cborporation, 228 NLRB 956 (1977); The New
Jersey Famous Amos Chocolate Chip Cookie Corporation, 236 NLRB 1093
(1978). See also Wolverine World U'ide. Inc., 196 NLRB 410 (1972).
not withdraw the decertification petition he would be
fired. Giacoletti further told Freilich that, if the Union
did lose, the employees would have no protection and
eventually would lose their jobs or the plant would close
because Respondent would not accept any other union.
Giacoletti said that he was responsible for bringing in the
Union and the Union would remain-Freilich and the
"rest of the troublemakers" would be the ones to go.
Dominic Giacoletti did not deny making these state-
ments. Giacoletti, a member of the Union, testified that
he was speaking for himself and not Respondent when
he discussed the adverse effects of decertification. Giaco-
letti testified that he believed decertification would cause
the employees and himself to lose health and welfare and
pension benefits secured by the Union's collective-bar-
gainting agreement. Respondent contends that it is not re-
sponsible for Giacoletti's statements to Freilich.
Also on December 26, Freilich had a conversation
with Triplett about the decertification petition. Accord-
ing to Freilich, Triplett asked Freilich if he realized "all
the trouble he was causing" with respect to decertifying
the Union. Triplett told Freilich that, if he continued
with what he was doing, he (Freilich) and the rest of the
troublemakers would be terminated. Triplett further said
that, if Respondent became angry over the events, it
would close the plant and then none of the employees
would have a job. Prior to Triplett's becoming a supervi-
sor, Freilich had approached Triplett and solicited his
support for the decertification petition. Triplett expressed
his opposition to the petition and argued in favor of the
Union and the impending collective-bargaining agree-
ment.
Triplett did not deny making the statements attributed
to him. Triplett testified that it was his opinion that con-
sumation of a collectice-bargaining agreement between
Respondent and the Union was essential to the economic
survival of the Company. He expressed that opinion to
Freilich. Respondent contends that Triplett, on Decem-
ber 26, simply repeated his personal opinion on decertifi-
cation previously expressed to Freilich, when Triplett
was still an employee within the meaning of the Act.
Respondent contends that the statements made to Frei-
lich by Giacoletti and Triplett were expressions of their
personal opinions and not chargeable to Respondent.
While an employer is usually liable for the conduct of its
supervisors, an exception exists where the supervisor is
also a bargaining unit member. The lead case in the area,
Montgomery Ward & Co., Incorporated,3 establishes the
following standard:
Statements made by such a [unit member] supervi-
sor are not considered by employees to be the rep-
resentations of management, but of a fellow em-
ployee. Thus they do not tend to intimidate employ-
ees. For that reason, the Board has generally re-
fused to hold an employer responsible for the an-
tiunion conduct of a supervisor included in the unit,
in the absence of evidence that the employer en-
couraged, authorized, or ratified the supervisor's ac-
115 NLRB 045. 647 (1956), enid 242 F.2d 497 (2d Cir. 1957), cert.
denied 355 U S. 298 (1957).
251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivities or acted in such manner as to lead employ-
ees reasonably to believe that the supervisor was
acting for and on behalf of management.
That rule is equally applicable where supervisors
engage in conduct of a prounion nature. A bargaining
unit supervisor, speaking as an employee rather than as a
representative of management, has the right to express
his opinions as to the identity of his bargaining repre-
sentative and the terms of the bargaining agreement cov-
ering his own conditions of employment. However, Re-
spondent cannot rely on Montgomery Ward to avoid the
consequences of Triplett's statements. On December 26,
Triplett had become a supervisor and was no longer a
member of the Union or the bargaining unit. Thus, on
December 26, Triplett was a management representative
and employees could only assume that he was speaking
on behalf of management. Further, Triplett terminated
Freilich under circumstances which indicate confirma-
tion of the threatening statements. The fact that Triplett
made the same statements to Freilich prior to becoming
a supervisor does not, in my view, excuse Respondent
from liability. Cf. Hy Plains Dressed Beef, Inc., 146
NLRB 1253, 1257, fn. 5 (1964).
The record is unclear as to whether Dominic Giaco-
letti was a member of the bargaining unit. Giacoletti's
job title is not mentioned in the unit description.4 Giaco-
letti has been a member of the Union for over 30 years.
He receives the fringe benefits provided for in the collec-
tive-bargaining agreement. Two other assistant plant su-
perintendents, Oswaldo and Oscar Nunez, were excluded
from the bargaining unit by the Regional Director for
Region 21 on the ground that they are supervisors within
the meaning of the Act. As noted above, the challenge
to Giacoletti's ballot was not ruled on because it did not
affect the outcome of the election. Giacoletti receives 12-
1/2 percent higher wages than the unit employees, as
provided for in the collective-bargaining agreement.
Assuming, arguendo, that Giacoletti was in the unit
and that the rule of Montgomery Ward applies, I would
still find that Respondent acted in such a manner as to
lead employees to reasonably believe that Giacoletti was
acting for and on behalf of management. Giacoletti made
the same threats and on the same day as Plant Superin-
tendent Triplett. Further, Giacoletti was involved in the
discharge of Freilich under circumstances which indicate
confirmation of the threatening statements. Accordingly,
I find that Giacoletti's statements would tend to intimi-
date employees and interfere with their rights guaranteed
by Section 7 of the Act.
Accordingly, I find that Respondent violated Section
8(a)(Xl1) of the Act by threatening to discharge employees
if they did not withdraw the decertification petition and
threatening to close its plant if employees decertified the
Union or selected a labor organization other than the
Union as their collective-bargaining representative.
4 All chief engineers, assistant chief engineers, journeyman mainte-
nance engineers, second-class water treatment engineers, leadmen,
craters, janitors and maintenance engineer trainees employed by the Em-
ployer at its facility located at 17400 Chestnut Street, City of Industry,
California; excluding office clerical employees, design engineers, drafts-
men, salesmen, guards and supervisors as defined in the Act.
C. The Discharge of Hernandez
Manuel Hernandez was employed by Respondent as a
machinist from November 1970 until January 14, 1980.
On January 14, Hernandez was asked by Triplett to
make an orifice plate. Due to the fact that a similar order
had been twice countermanded, Hernandez asked Tri-
plett if he were sure he wanted it done. Triplett became
annoyed and said, "I tell you what, now, I want you do
it now, boy." Next, Hernandez became angry and told
Triplett, "the moment I find a boy I will give it to him
so he can do it." Triplett answered that he would "get"
Hernandez for insubordination.
According to Hernandez, Triplett returned to Hernan-
dez' work station with Oscar Nunez, assistant plant su-
perintendent, and asked Hernandez to come to his office.
Hernandez, fearing that he was about to be discharged, 5
stopped on his way to the office and requested that Frei-
lich accompany him as union steward. Triplett would
not permit Freilich to be at the meeting but allowed
Nunez to accompany Hernandez to the meeting. Having
had his request for Freilich's presence denied, Hernandez
agreed to have Nunez in attendance.
Thus, Hernandez, Nunez, and Triplett met in Triplett's
office. According to Hernandez, Triplett said, "I am
going to prove to you that my word is better than
yours." Hernandez asked for an explanation and was told
by Triplett that he was being fired. Hernandez asked for
a reason but Triplett only repeated that Hernandez was
fired. Herandez then went to see Jerry McCormick, pro-
duction manager. Hernandez told McCormick of Tri-
plett's action and asked if McCormick were going to
accept it. Not receiving an answer to his satisfaction,
Hernandez left the plant.
Triplett testified that he asked Hernandez into his
office for the purpose of obtaining assurances that Hler-
nandez would not be insubordinate in the future. Hernan-
dez requested to have Freilich present at the meeting and
Triplett denied the request. Triplett testified that he
denied the request because Freilich was no longer ste-
ward.6 Hernandez then asked if Nunez would attend the
meeting and Triplett agreed to that request. According
to Triplett, Hernandez said that Triplett could not fire
him because he could not prove anything. Triplett found
Hernandez to be uncooperative and terminated the em-
ployee at the meeting.
D. The Offer of Reinstatement to Hernandez
Edgar Wiley, business representative, filed a grievance
protesting Hernandez' discharge. According to Wiley,
pursuant to a phone call from Hernandez on January 14
he went to Respondent's plant on January 15 to investi-
gate Hernandez' discharge.7 Wiley met with Respond-
' According to Hernandez, Triplett had stated, upon returning with
Nunez, that he was going to fire Hernandez.
6 There is no evidence that Triplett expressed this reason to Hernandez
or Freilich.
' Hernandez did not recall calling Wiley or initiating a gnevance. Her-
nandez testified that he did not speak with Wiley concerning his dis-
charge until January 22. However, Hernandez, in a pretnal statement
given to the Board, stated that he spoke with Wiley the day after his dis-
charge. Wiley's testimony in this regard is credited.
252
L. A. WATER TREATMENT
ent's management and reached an agreement with Scott
that Hernandez could return to work on Monday, Janu-
ary 21. Wiley and Scott further agreed that the parties
would submit to an arbitrator the question of whether
Hernandez was entitled to backpay for the time lost.
Scott testified in substantial accord with Wiley, although
he placed the date of his discussion with Wiley as Janu-
ary 17. Further, according to Scott, it was not until Jan-
uary 21 that the agreement, set forth above, was finally
reached.
According to Wiley, he called Hernandez' home on
January 18 and spoke with Hernandez' wife, Elizabeth.
Wiley left a message for Hernandez to call him. Wiley
had difficulty in reaching Hernandez and, on Monday,
January 21, again spoke with Elizabeth Hernandez and
told her that it was urgent that Hernandez call him. It
was not until Wednesday, January 23, that Hernandez
called Wiley. Wiley told Hernandez of his agreement
with the Company. However, Hernandez said he was
not interested in going back to work for Respondent.
Hernandez took the position that returning without full
backpay was an admission of wrongdoing-an admission
Hernandez was unwilling to make. Wiley asked Hernan-
dez to think the matter over and again called the em-
ployee the following evening. Again, Hernandez stated
he did not want to return to work for Respondent. On
February 2, Wiley approached Hernandez at the Union's
business office and volunteered to try again to get Her-
nandez' job back at Respondent's facility. However, Her-
nandez reaffirmed his refusal to go back to work for Re-
spondent.
Manuel and Elizabeth Hernandez both testified that
the offer relayed to them by Wiley was that Hernandez'
discharge would be converted to a suspension. They fur-
ther testified that Hernandez would not accept such a
settlement because he would not admit any wrongdo-
ing-since he had done nothing wrong. I have credited
Wiley's and Scott's testimony regarding the union-com-
pany settlement of Hernandez' grievance. Further, I
credit Wiley's testimony regarding his conversations
with Hernandez concerning the settlement and the offer
of Respondent to reinstate Hernandez. Both Manuel and
Elizabeth Hernandez were quite emotional concerning
this matter and, in my view, must have misunderstood
Respondent's offer. It was Hernandez' belief that settle-
ment was tantamount to an admission on his part, which
caused him to refuse the offer to return to work.
E. Preliminary Conclusions Regarding the Discharge
of Hernandez
As found above, Triplett asked Hernandez to come to
his office in order to obtain assurances from Hernandez
that he would not be insubordinate in the future. En
route to the office, Hernandez requested Freilich's pres-
ence at the meeting as his steward. Although Triplett
denied the request because Freilich was no longer ste-
ward, no reason or explanation was offered to Hernan-
dez. The meeting was conducted with Triplett, Hernan-
dez, and Oscar Nunez, assistant plant superintendent,
present. Triplett did not obtain the assurances from Her-
nandez that he desired. Rather, Triplett considered Her-
nandez to be uncooperative and decided at that time to
discharge Hernandez. Thus, there can be no doubt that
Hernandez was discharged as a result of his conduct at
the meeting.
In N.L.R.B. v. J. Weingarten, Inc.,8 the United States
Supreme Court held, in agreement with the Board, that
employee insistence upon union representation at an em-
ployer's investigatory interview, which the employee
reasonably believes might result in disciplinary action
against him, is protected concerted activity.
Respondent argues that the Weingarten doctrine does
not apply in this case on the ground that the meeting be-
tween Triplett and Hernandez was not investigatory in
nature. Respondent further argues that Hernandez' re-
quest was not for a union representative but rather a re-
quest for a fellow employee. Respondent contends that
such a request need not be honored where, as here, there
is an exclusive bargaining representative.
As noted, Respondent first argues that the meeting be-
tween Hernandez and Freilich was not investigatory.
However, the Bord has held that "the full purview of
protections accorded employees under Weingarten apply
to both 'investigatory' and 'disciplinary' interviews, save
only those conducted for the exclusive purpose of notify-
ing an employee of previously determined disciplinary
action." Baton Rouge Water Works Company, 246 NLRB
995 (1979). Whether labeled disciplinary or investigatory,
the scope of this meeting went beyond the notification
and explanation of previously determined disciplinary
action. The purpose of the meeting was to obtain certain
assurances from Hernandez that he would not be insub-
ordinate in the future. There can be no doubt that Her-
nandez reasonably believed that the meeting might result
in discipline. In my view this meeting appears to be such
a situation contemplated by the Supreme Court, where
the presence of a responsible steward would be designat-
ed to clarify the issues and bring out the facts and poli-
cies concerned at this stage. Further, a steward might
give assistance to an employee who may lack the ability
to express himself in his case, and who, when his liveli-
hood is at stake, might in fact need the more experienced
kind of counsel which his union steward might represent.
Moreover, a steward might reasonably be expected to be
a factor conducive to the avoidance of confrontation
through the medium of discussion and persuasion. See
Weingarten, supra at 262-263, fn. 7. In my view, Hernan-
dez was an employee in much need of the assistance en-
visioned by the Supreme Court. Thus, I find that Her-
nandez had a Section 7 right to representation at the in-
terview herein.
Respondent next argues that Hernandez' request was
not valid under Weingarten because he requested the
presence of a fellow employee and not an authorized ste-
ward or agent of the collective-bargaining representative.
I reject that argument for the following reasons:
While an employee's right under Weingarten arises
only in situations where the employee requests represen-
tation, there can be no doubt that Hernandez requested
that Freilich be permitted to attend the meeting as his
union steward. Freilich had been senior shop steward for
R 420 U.S 251 (1975)
253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 years and Hernandez was not aware of any change in
that position. I find Hernandez' request sufficient to
invoke Weingarten. Triplett never notified Hernandez of
any deficiency in the request.9 Under such circum-
stances, Hernandez would reasonably construe Triplett's
refusal to permit Freilich to be present as a denial of his
request for representation. Clearly, Hernandez had
sought representation and had not chosen to participate
in the meeting unaccompanied by his union representa-
tive. Respondent's argument might have some validity if
it had given Hernandez notice of the reason for the
denial of his request. But, in the absence of such notice,
Triplett's actions could only be construed as a denial of
representation.
I find no merit in the contention that Oscar Nunez'
presence at the meeting satisfied Hernandez' request.
Nunez was a supervisor and was chosen by Triplett as
his witness. The fact that Hernandez, having been denied
the assistance of his representative, preferred to have
Nunez present rather than meet with Triplett alone, does
not minimize the violation.
Respondent cannot now be heard to argue that there
was no union representative present on its premises at
the time of Hernandez' request. Whether Wiley or any
other union representative or steward was available is
unknown. Respondent, having denied Hernandez' re-
quest, without explanation, did not permit the question-
how Hernandez' request for representation could lawful-
ly be handled-to arise.
In sum, I find that Respondent violated Section 8(a)(l)
of the Act by conducting a meeting with Hernandez
after having denied his request for union representation
and further violated Section 8(a)(1) by discharging Her-
nandez for his conduct at said meeting.
F. Preliminary Conclusions Regarding the Offer of
Reinstatement to Hernandez
Under the Board's recent ruling in Kraft Foods,'0 the
General Counsel has made a prima facie showing that a
make-whole remedy" is warranted by having proven
that Hernandez was discharged for conduct which oc-
curred at the unlawful interview. In order to negate the
prima facie showing of the appropriateness of a make-
whole remedy, Respondent must demonstrate that the
discipline was not based on information obtained at the
unlawful interview. Here, Triplett admits that Hernan-
dez' uncooperative attitude and failure to give the de-
sired assurance were the causes for the discharge. Thus,
the unlawful interview and the discharge are so interre-
lated that a make-whole remedy must be recommended.
However, Respondent offered Hernandez reinstate-
ment as of January 21, 1980. The issue of backpay was to
be resolved later. Apparently, Hernandez was under the
belief that by accepting the offer he was compromising
in some manner his claim to backpay. It is well estab-
9 Cf. Texarkana Memorial Hospital. Inc., d/b/a Wadley Hospital, 238
NLRB 829 (1978), where the fact that a union was newly installed and
had not designated which individuals would serve as shop stewards did
not relieve the employer of its affirmative duty to allow employees repre-
sentation.
io Kraft Foods, Inc., 251 NLRB 598 (1980).
" Such as reinstatement and backpay.
lished that Hernandez had a duty to mitigate Respond-
ent's backpay liability and by failing to accept the offer
Hernandez forfeited his right to further backpay. See,
e.g., National Screen Products Co., 147 NLRB 746, 747-
748 (1964); The Cooper Thermometer Company, 154
NLRB 502, 508 (1965); Ampex Corporation, 168 NLRB
742, fn. 3 (1967). However, due to the uncertainty caused
by such an offer, Hernandez will not be deemed to have
waived his right to unconditional reinstatement. There-
fore, Respondent will be ordered to offer Hernandez re-
instatement. 12 Respondent's backpay liability to Hernan-
dez will be limited to the period from January 14, 1980,
the date of his unlawful discharge, to January 21, 1980,
the date on which Respondent's offer of reinstatement
was effective, and from the date 5 days after the date of
this Order to the date on which Respondent offers him
reinstatement pursuant thereto.
G. The Discharge of Kenneth Freilich
Freilich was employed by Respondent as a journey-
man maintenance engineer from December 1973 until his
discharge on April 8, 1980. During the 2 years preceding
his discharge, Freilich served as senior shop steward for
the Union. As discussed above, during the contract nego-
tiations between Respondent and the Union, Freilich
became disenchanted with the performance of Union
Agent Edgar Wiley. Contemporaneously with the con-
summation of negotiations between Respondent and the
Union, Freilich filed the decertification petition in Case
21-RD-1663 on December 10, 1979. On December 18,
Freilich filed the unfair labor practice charge in Case 21-
CA-18509. Freilich's views on the Union and decertifica-
tion caused him to argue with Supervisors Triplett and
Dominic Giacoletti.
As discussed above, Triplett and Dominic Giacoletti
each told Freilich on December 26 that the decertifica-
tion activities could cause the closing of the plant and
the resultant loss of jobs for all employees. Wiley testi-
fied that, as a result of Freilich's filing of the decertifica-
tion petition, he terminated Freilich's position as steward.
Wiley became acting steward and business representa-
tive. Wiley testified that he announced to the employees
that Freilich was no longer steward and that he would
personally handle grievances.' 3 On April 7, shortly
before the scheduled election in the decertification pro-
ceedings, Triplett called a meeting of employees. In the
presence of Wiley, Triplett told the employees that
Wiley was there to hold an election for a new shop ste-
ward.
Freilich interrupted the meeting and told the employ-
ees that the meeting might be a trick to set aside the de-
certification election. Freilich said the steward election
was not legal because he and junior steward Hunt had
not been voted out and, therefore, no election for ste-
II Nevertheless, if Hernandez does accept reinstatement. Respondent is
not foreclosed from lawfully requinring assurances from Hernandez that
he will not be insubordinate in the future. See Illinois Bell Telephone
Company, 251 NLRB 932 (1980)
'a Freilich denied receiving notice that he was no longer steward Tri-
plett corroborated Wiley's testimony that Freilich was no longer union
steward after the decertification petition was filed
254
L. A. WATER TREATMENT
ward could take place. Freilich and Hunt told the em-
ployees to go back to work. As the employees began to
return to work, Triplett stopped them and ordered them
back to the meeting. The election was then held and em-
ployee Luther Villa was elected steward.
The next day, April 8, Freilich was terminated as a
result of a series of events about which there is conflict-
ing testimony. According to Freilich, between 8 and 9
a.m., Oscar Nunez, assistant plant superintendent, told
him to turn in his pipefitter tools. Nunez told Freilich
that he was being transferred to the paint shop, "as a
form of punishment, because of the union business that
was at hand." Nunez then suggested that Freilich see a
doctor in order to obtain proof that the assignment was
hazardous to Freilich's health. According to Freilich,
Nunez was aware of his respiratory problems.
Nunez, on the other hand, testified that he asked Frei-
lich to help the painter with some grinding work. At that
time, Freilich told Nunez that he had a respiratory prob-
lem and Nunez answered that the only way he would re-
lease Freilich from the assignment was if Freilich had a
doctor's release. Nunez denied telling Freilich that the
assignment was a punishment. Nunez testified that Frei-
lich's assignment that date was routine. However, his tes-
timony was confused as to how Freilich was selected for
this assignment. Triplett also testified that the assignment
was routine and further testified that Freilich was chosen
because he was between assignments. Both Triplett and
Nunez denied any prior knowledge of Freilich's helath
problem.
After his conversation with Nunez, Freilich attended a
meeting in Triplett's office concerning Hunt's work per-
formance. Hunt requested that Freilich attend as shop
steward. Triplett told Hunt that Freilich was not a shop
steward but allowed Freilich to attend the meeting as a
courtesy to Hunt. Freilich advised Hunt not to say any-
thing as it would only harm his case. Hunt was then
given a 3-day suspension without pay. According to Tri-
plett, Freilich said that Triplett was judge, jury, and
hangman. Freilich further said that the whole matter in-
volving Hunt was a frameup and that he (Freillich) was
going to get the Union decertified.
Freilich testified that he informed Triplett of his aller-
gy to spray paint. Triplett answered that Freilich was
going into the paint shop and said, "if you can't cut the
mustard, you are going to be leaving." Freilich asked if
Triplett would allow him to prove his allergy by submis-
sion of a doctor's certificate and Triplett agreed to do so.
Freilich spoke with John Colon, an employee of Re-
spondent who was on leave due to an injury. Colon
made an appointment for Freilich with his doctor and
made arrangements to pick up Freilich so that they
could both visit the doctor. At approximately 10 a.m.,
Colon arrived at Respondent's premises to pick up Frei-
lich. Freilich began to look for Nunez to get permission
to leave for his appointment when he came across Tri-
plett. Freilich testified that Triplett said, "if you go to
the doctor, I will terminate you." Thereafter Triplett
said, "I will give you permission to go to the doctor."
However, because he did not trust Triplett, Freilich con-
tinued to look for another supervisor. Freilich then ob-
tained permission to visit the doctor from Bill Anderton,
assistant plant superintendent. As Freilich walked to-
wards the timeclock to punch out, Triplett shouted to
him, "if you are not careful . . . you may drop dead ...
and you ought to let go of all this union business or you
may have a heart attack." Freilich replied, "don't worry
about my heart attack . . . you better look out for your
buddy over there" (referring to Dominic Giacoletti, 14
who was also present). Freilich then punched out his
timecard and, accompanied by Colon, began to leave the
premises. Dominic Giacoletti followed Freilich and made
derogatory gestures and noises.
Freilich returned to Respondent's plant with a note
saying that he was better suited for work other than
painting because of his reaction to paint fumes. Upon his
return to the plant, Freilich went to Nunez' office.
Nunez had Triplett paged and Triplett came to Nunez'
office. Triplett took the note from Freilich, read the
note, and threw it down. Triplett told Freilich that the
note was not necessary because Freilich was terminated.
Freilich asked Triplett to put the termination in writing
and Triplett said that it was not necessary.
Triplett's version of these events is quite different. Tri-
plett testified that Freilich requested permission to go to
the doctor and he gave Freilich his permission. Howev-
er, Freilich responded that Triplett was a "f- liar" and
that he wanted to obtain permission to leave from an-
other supervisor. Freilich found Anderton and asked An-
derton to witness that Triplett had given him permission
to leave. Unexplainedly, Freilich became agitated, point-
ed his finger at Triplett, and said, "I hope you can take
it." As Dominic Giacoletti walked into the area, Freilich
pointed towards him and said, "I hope he can take it
too." Giacoletti answered, "I can take it." According to
Triplett, Freilich began generally cursing the Company,
the Union, Giacoletti, and Triplett. Freilich continued
cursing as he walked away and Triplett told him to
"simply go to the doctor." At that point, Freilich then
pointed to his posterior and told the supervisors to "kiss
it." Triplett then said, "Ken, you are terminated for in-
subordination." Triplett followed Freilich to the time-
clock and repeated his statement that Freilich was termi-
nated for insubordination. Freilich told him to put it in
writing and left.
At approximately I o'clock, Freilich returned to the
plant. Triplett received a call from Nunez and went to
Nunez' office. Triplett was told that Freilich had a doc-
tor's slip but said that the point was moot because Frei-
lich had been terminated 2 hours previously. Triplett's
testimony with regard to Freilich's discharge is substan-
tially corroborated by that of Dominic Giacoletti.
Colon, still employed by Respondent, 5 testified that
he called Freilich at the plant during the morning of
April 8. Freilich asked Colon to make an appointment
with Colon's doctor. When Colon entered the plant
looking for Freilich, he saw Triplett and Freilich talking.
Colon heard Triplett tell Freilich that, if he went to the
doctor, he would be terminated and heard Freilich reply
that he had a doctor's appointment and was going to see
" Dominic Giacoletti has a history of heart problems.
'5 At the time of the hearing. Colon was still on leave due to a work-
related injury.
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the doctor. As Freilich and Colon walked towards
Colon's car, Dominic Giacoletti followed them making
derogatory gestures and noises. Colon denied that Frei-
lich made any of the statements attributed to him by Tri-
plett and Giacoletti.
Colon testified, contrary to Triplett, Nunez, and Gia-
coletti, that he was present when Freilich returned to the
plant from the doctor's office.16 According to Colon,
Triplett, when handed the doctor's note by Nunez,
threw the note on the floor and told Freilich that he was
terminated. Freilich asked Triplett to put it in writing
and Triplett, declining to do so, walked out of the office.
I credit Colon's testimony regarding these events.
Colon testified in a straightforward and candid manner.
Further, while still in Respondent's employ, Colon testi-
fied adversely to his employer and for that reason his
testimony is not likely to be false. Having credited
Colon's testimony, I credit Freilich's testimony which is
for the most part consistent therewith and discredit the
testimony of Triplett, Nunez, and Giacoletti to the con-
trary.
H. Preliminary Conclusions Regarding the Discharge
of Freilich
In Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980), the Board announced the following
causation test in all cases alleging violation of Section
8(a)(3) of the Act or violations of Section 8(a)(1) turning
on employer motivation. First, the General Counsel must
make a prima facie showing sufficient to support the in-
ference that protected conduct was a "motivating factor"
in the employer's decision. Upon such a showing, the
burden shifts to the employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct. As the issue here is Respond-
ent's motive for discharging Freilich, the Wright Line
test applies.
Based on the credited version of these events, Freilich
was not discharged for pointing to his posterior and tell-
ing his supervisors to "kiss it." On the day in question,
Freilich was transferred to the paint department with the
message that he was being punished because of "the
Union business." Freilich received both permission from
Triplett to visit the doctor and a threat of termination if
he went to the doctor. Upon his return to the plant,
Freilich was discharged without explanation. Respond-
ent's lack of a credible reason for the discharge supports
an inference that it had an unlawful motive for the dis-
charge. See, e.g., Bacchus Wine Cooperative, Inc., and
Bacchus Wine International, 251 NLRB 1552 (1980); Gen-
eral Thermo, Inc., 250 NLRB 1260 (1980); Party Cookies,
Inc., 237 NLRB 612, 623 (1978); see also Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L.R.B., 362
F.2d 466, 470 (9th Cir. 1966). I draw the inference that
the motive of the discharge is one Respondent desires to
conceal-a discriminatory and unlawful motive.
Support for the General Counsel's case is also found in
the statements made by Triplett that if Freilich "contin-
ue Triplett and Giacoletti denied seeing Colon in the plant on April 8.
Nunez testified that he saw Colon during the morning of April 8 but that
Colon did not accompany Freilich into the plant during the afternoon.
ued with [the decertification], he and the rest of the trou-
blemakers would be terminated." Also, Dominic Giaco-
letti, the other supervisor involved in the termination,
told Freilich that if he did not withdraw the decertifica-
tion petition, he would be fired. Further, Giacoletti said
that the Union would remain and that Freilich and the
"rest of the troublemakers" would be the ones to go. An
inference may be drawn from such animus, which the
discharge would gratify, that the animus was the true
reason for the discharge. General Thermo, Inc., supra, fn.
4; Best Products Company, Inc., 236 NLRB 1024, 1026
(1978).
Under all of the circumstances, the General Counsel
has established its prima facie case. Thus, the burden
shifts to Respondent to demonstrate that Freilich would
have been discharged in the absence of his protected
conduct. However, Respondent has failed to rebut the
primafacie case The sole reason for Freilich's discharge
has been discredited, leaving the conclusion that Freilich
was discharged for his protected activities.
Respondent argues that it did not interfere with Frei-
lich's activities, which began on December 10, and that
the period of time in which it permitted such activities
supports its contention that Freilich's protected conduct
did not contribute to the discharge. However, the timing
of the discharge shortly before the scheduled decertifica-
tion election supports an inference that it was intended to
demonstrate to employees the penalty for voting for or
otherwise supporting decertification Cf. Capital Bakers,
Inc., 236 NLRB 1053, 1058 (1978). Further, the record
shows that the discharge occurred shortly after Freilich
voiced opposition to Triplett's holding of an intraunion
election for steward. Finally, Freilich was discharged the
same day that he acted as employee Hunt's representa-
tive, and counseled the employee not to argue with Tri-
plett but rather to file charges with the Board.
Accordingly, for all the reasons noted above, I find
that Respondent's discharge of Freilich violated Section
8(a)(3) and (1) of the Act. In view of the fact that the
remedy would be substantially the same. I find it unnec-
essary to determine whether the discharge also violated
Section 8(a)(4) of the Act.
CONC USIONS 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 mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(l) of the Act by threatening to
discharge employees if they did not withdraw a decertifi-
cation petition; by threatening to close its plant if em-
ployees decertified the Union or selected a labor organi-
zation other than the Union as their collective-bargaining
representative; by denying the request of employee
Manuel Norberto Hernandez to have union representa-
tion at an investigatory interview which he reasonably
believed might result in disciplinary action against him;
and by discharging Hernandez based on his conduct at
said unlawful interview.
256
L. A. WATER TREATMENT
4. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act by unlaw-
fully discharging Kenneth Freilich, Sr., because of his
activities in support of a decertification petition.
5. The unfair labor practices specifically found above
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
Having found that Respondent discharged employee
Manuel Norberto Hernandez in violation of Section
8(a)(1) of the Act and employee Kenneth Freilich, Sr., in
violation of Section 8(a)(3) and (1) of the Act, I shall
order Respondent to offer each discriminatee immediate
and full reinstatement to his former position of employ-
ment or, if that position no longer exists, to a substantial-
ly equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed. I
shall order Respondent to make Freilich whole for any
loss of earnings he may have suffered by reason of Re-
spondent's discrimination against him, by paying to him a
sum of money equal to the amount he normally would
have earned in wages from April 8, 1980, the date of his
discriminatory discharge, to the date of Respondent's
valid offer of reinstatement, less net earnings during said
period. I shall order Respondent to make Hernandez
whole for any loss of earnings he may have suffered by
reason of Respondent's discrimination against him, by
paying to him a sum of money equal to the amount he
normally would have earned as wages from January 14,
1980, the date of his discriminatory discharge, to January
21, 1980, the date on which Respondent offered him re-
instatement, and from the date 5 days after this Order to
the date on which Respondent offers him reinstatement
pursuant thereto, less net earnings during said periods.
The amount of backpay due each discriminatee shall be
computed in the manner prescribed in F. W Woolworth
Company, 90 NLRB 289 (1950), with interest as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977), and Olympic Medical Corporation, 250 NLRB 146
(1980). See also Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:
ORDER "
The Respondent, L. A. Water Treatment, Division of
Chromalloy American Corporation, City of Industry,
11 All outstanding motions inconsistent with this recommended Order
are hereby denied. In the event no exceptions are filed as provided by
Sec. 102.46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes.
California, its officers, agents, successors, and assigns,
shall:
i. Cease and desist from:
(a) Threatening employees with discharge if they do
not withdraw a decertification petition.
(b) Threatening employees with plant closure if they
decertify the incumbent union and/or select a labor orga-
nization other than the incumbent as their collective-bar-
gaining representative.
(c) Denying the request of union representation to em-
ployees at investigatory interviews when the employees
have reasonable grounds to believe that the matters to be
discussed may result in their being the subject of disci-
plinary action.
(d) Discharging any employee on the basis of informa-
tion obtained at an investigatory interview where it has
denied the employee's request to have union representa-
tion at said interview.
(e) Discharging employees because of their activities
on behalf of a petition to decertify International Union of
Operating Engineers, Local No. 501, AFL-CIO, as the
collective-bargaining representative of its employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Offer to Manuel Norberto Hernandez and Kenneth
Freilich, Sr., immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or any other rights and privileges previously en-
joyed.
(b) Make whole Hernandez and Freilich for any loss
of earnings they may have suffered by reason of Re-
spondent's discrimination against them, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to
agents of the Board, for examining and copying, the
records, social security records, timecards, personnel
records, and all other records necessary to analyze the
amount of money due under the terms of this Order.
(d) Post at its City of Industry, California, facility
copies of the attached notice marked "Appendix."18
Copies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
l" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor Relations Board"
257