Berg Product Design

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 92 (N.L.R.B. 1995)

92
317 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s finding that Florentino Manzano was not
shown to be a supervisor within the meaning of Sec. 2(11) of the
Act at the time he was discharged, we rely on the judge’s crediting
of Manzano and his discrediting of Respondent witnesses Berg and
Torrisi on any point as to which their testimony varied from that of
Manzano. With respect to Manzano’s authority to assign work, we
note that on matters as to which employees needed any instructions,
Manzano either obtained his priorities from orders given him from
the office (‘‘the papers in my hand’’) or consultations with Office
Manager Torrisi. Hence, Manzano’s reference to ‘‘special cir-
cumstances’’ in which he directed the work of employees does not
prove the exercise of independent judgment within the meaning of
Sec. 2(11). With respect to the assignment of overtime, we rely on
Manzano’s credited testimony that all employees in his department
routinely stayed as late as necessary to complete job duties on week-
days and that on weekends he consulted Office Manager Torrisi re-
garding the assignment of overtime. Manzano’s testimony regarding
Torrisi’s complaint to him about assigning too much overtime ap-
pears, in context, to amount to a complaint that he and his crew
were not working fast enough. Hence, as Manzano testified, he
promised her that he would ‘‘try to lessen the time and work hard-
er.’’
Member Stephens would not find that Manzano’s testimony con-
cerning his conversation with Ruben Tapia about the signing of
union cards established a coercive interrogation or the conveyance
of an impression of management surveillance of his union activities
in violation of Sec. 8(a)(1) of the Act.
1 All dates are in 1993, unless otherwise indicated.
Berg Product Design, Inc. and Warehouse, Mail
Order, Office Technical and Professional Em-
ployees Union, Local 743, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO.
Case 13–CA–31690
April 28, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On December 16, 1994, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision in light of
the exceptions and brief and has decided to affirm the
judge’s rulings, findings, and conclusions1 and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Berg Product Design, Inc.,
Wheeling, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Denise R. Jackson, Esq., for the General Counsel.
Anthony J. Crement, Esq. (Franczek, Sullivan, Mann,
Crement, Hein, & Relias), of Chicago, Illinois, for the Re-
spondent.
Jose L. Galvan, of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Chicago, Illinois, on March 15 and 16,
1994. The charge was filed on April 26, 1993,1 by the
Charging Party, Warehouse, Mail Order, Office, Technical
and Professional Employees Union, Local 743, affiliated with
the International Brotherhood of Teamsters, AFL–CIO (the
Union). The Union filed an amended charge in this case on
June 14. Upon the charge and the amended charge filed in
this case, the Regional Director for the Board’s Region 13
issued the complaint on July 28.
The complaint alleges that the Company, Berg Product
Design, Inc. violated Section 8(a)(1) of the National Labor
Relations Act (the Act), by interrogating employees about
their union activities and by creating the impression among
its employees that their union activities were under surveil-
lance by the Company. The complaint further alleges that on
or about April 23, the Company laid off employee Florentino
Manzano and has failed to recall him because he engaged in
union activity, and thereby violated Section 8(a)(3) and (1)
of the Act. In a timely answer filed on August 3, the Com-
pany denied committing the alleged unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, manufactures plastic molded
products, and produces molds at its facility in Wheeling, Illi-
nois, where it annually purchases and receives goods valued
in excess of $50,000 directly from points outside the State
of Illinois. The Company admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Company admits and I find
that the Union, Warehouse, Mail Order, Office, Technical
and Professional Employees Union, Local 743, affiliated with
the International Brotherhood of Teamsters, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Company employed Florentino Manzano from 1985
until it laid him off on April 23. At the time of his layoff,
the Company employed Manzano at $7 per hour, among five
or six other individuals in the shipping and receiving depart-
ment, at its Wheeling, Illinois facility. Prior to January,
Manzano regularly worked from 11 a.m. to 7 p.m. and re-
ported to William Cook, who was in charge of the shipping
and receiving department.
In January, the Company’s office manager, Doretta Torrisi,
changed Manzano’s hours to 7 a.m. to 7 p.m. Torrisi told
93BERG PRODUCT DESIGN
2 General Manager Stanley Berg testified that Manzano had perma-
nently transferred an employee from production to order picking at
some time between January and April. Berg was unable to identify
the employee, however, or specify when the transfer had occurred.
Although he testified that the information was available, he did not
offer to provide it. Elsewhere in his testimony, the general manager
repeatedly answered that he did not know, when counsel for the
General Counsel questioned him, regarding specifics of Manzano’s
authority during the 4 months ending on April 23. Yet Berg never
offered to look at the Company’s records or provide another source
for this information, which the Company should have had at hand.
I also noted that, at times, Berg was evasive in responding to ques-
tions from counsel for the General Counsel. In sum, Berg seemed
unwilling to assist in making a full record on the matter of
Manzano’s status. As Manzano seemed to be exercising his memory
to present as much information as resided there, in a frank and forth-
right manner, I have credited him where his testimony regarding his
employment and union activity at the Company conflicted with, or
was inconsistent with, that of Stanley Berg. Accordingly, I have
credited Manzano’s testimony that he did not have authority to trans-
fer employees from one department or job to another.
3 According to Office Manager Torrisi, during his assignment as
William Cook’s temporary replacement, she authorized Manzano to
discharge employees if they did not comply with Manzano’s orders.
Manzano’s testimony neither corroborates nor denies this assertion.
According to Manzano’s credited testimony, Torrisi did not tell the
shipping and receiving employees that Manzano had such authority.
Instead, he testified that Torrisi warned the employees that they
would be fired if they did not obey his orders. Thus, I gather from
Manzano’s testimony that someone in the Company’s management,
not Manzano, would impose such punishment if an employee dis-
obeyed one of his orders. If I credited Torrisi, however, Manzano
had the authority to administer that punishment on his own initiative.
The record casts serious doubt on the reliability of Torrisi’s testi-
mony regarding Manzano’s authority. The General Counsel has
shown that when his agents examined Manzano’s personnel jacket,
which Torrisi provided during the precomplaint investigation, the
word ‘‘supervisor’’ did not appear on it. When the Company made
the same personnel jacket available to the General Counsel at the
hearing before me, however, Torrisi had inscribed ‘‘Supervisor’’ as
the reason for raising Manzano’s hourly wage from $6 to $7 in
1989. Prior to the addition of ‘‘Supervisor,’’ the wage increase had
appeared on the jacket without any explanation. Testifying before
me, Torrisi admitted that she had made this change between the time
of the investigation and the hearing in this case. But she offered no
explanation for waiting about 4 years to write in ‘‘Supervisor’’ as
the reason for Manzano’s 1989 wage increase. The Company is
claiming before me that Manzano was not entitled to the Act’s pro-
tection. Torrisi’s failure to explain the remarkable timing of her ad-
dition of ‘‘Supervisor’’ to his personnel file jacket suggests that she
made this change on the possibility that it would be of some help
to the Company at a hearing involving Manzano’s layoff of April
23.
Torrisi’s failure to present any business reason for waiting 4 years
to write ‘‘Supervisor’’ on Manzano’s personnel jacket caused me to
have serious doubt as to the reliability of her testimony regarding
Manzano’s authority during the 4 months leading up to his layoff.
I was also troubled by my impression that Torrisi was evasive when
asked to identify the employees she spoke to about their failure to
heed Manzano’s instructions. As Manzano seemed to be giving his
full recollection of the details of his employment and union activity
at the Company in an objective manner, I have credited his testi-
mony on those matters. When his testimony either contradicted or
was inconsistent with Torrisi’s, I have credited Manzano. Further, in
view of her treatment of Manzano’s personnel file jacket, I have not
credited her testimony regarding Manzano’s employment status un-
less he corroborated it.
Manzano that his hours were changed and that he, Manzano,
was temporarily in charge of the shipping and receiving em-
ployees and the warehouse due to Cook’s absence. The Com-
pany did not grant a wage increase to Manzano when it
changed his hours and duties in January. From January until
his layoff on April 23, Manzano reported to Office Manager
Torrisi. In mid-January, at a company meeting of assembly
and shipping and receiving employees, Torrisi announced
that Manzano was in charge of shipping and receiving tem-
porarily because of Cook’s absence. During the following
week, Torrisi, at a meeting of the same group of employees,
warned that Manzano was in charge, and that if they did not
listen to Manzano, ‘‘they were fired.’’ At this same meeting,
Torrisi urged the employees ‘‘to work as a team, work to-
gether and let’s make a goal.’’ At neither meeting did Torrisi
give Manzano any opportunity to address the assemblage.
Torrisi admitted that she called the second meeting because
the shipping and receiving employees ‘‘were not listening to
[Manzano].’’
From January until April 23, Manzano played no part in
Company personnel actions. He neither hired new employees
nor interviewed prospective employees. Manzano was never
involved in the permanent transfer of an employee from one
department or job to another department or job.2 If he need-
ed additional help to complete a particular task in shipping
and receiving, he asked Torrisi for it. Manzano never granted
a pay raise to any employee. Nor was there any showing that
he effectively recommended that the Company do so.
Manzano had no authority to give time off from work to em-
ployees or to authorize vacations for employees. He had to
refer both matters to Office Manager Torrisi. Manzano has
never recommended that the Company discharge an em-
ployee.3 Nor has he disciplined or recommended disciplining
an employee. Manzano has neither laid off any employee nor
recommended that the Company lay off any employee.
The shipping and receiving department employees and
Manzano completed each day’s work before going home. If
the department needed overtime to complete a day’s work,
Manzano and the shipping and receiving department employ-
ees continued to work beyond normal quitting time until they
completed it. On these occasions, Manzano did not select
employees for overtime. Manzano never sent an employee
home for lack of work.
Torrisi assigned overtime work when some special need
arose during the week. She discussed the need with
Manzano. On Friday, Manzano would ask Torrisi if there
would be weekend work. Sometimes, Torrisi would send him
to another member of management, Don Marcheschi, for a
decision as to whether there would be overtime and how
many employees would be required. If two or three shipping
and receiving employees were needed, Manzano would chose
himself and one or two others. On other occasions, Torrisi
would decide if Manzano and one other employee should
come in and straighten out the warehouse. On one occasion
between January and April 23, Torrisi complained that
Manzano assigned too much overtime. Manzano told her that
he would reduce the overtime and work harder.
Between January and Manzano’s layoff on April 23, the
Company held management meetings attended by General
Manager Stanley Berg, Office Manager Doretta Torrisi, Don
Marcheschi, and Dave Marcheschi. Manzano did not attend
any of those meetings.
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Stanley Berg testified that on April 23, he explained to Manzano
that he, Berg, ‘‘was not happy with the way things were going, that
the dock was a mess, that overtime was very high, that business was
bad and that I was going to have to make certain changes. And that,
even though he had been with the company a long time, clearly he
was not able to act as a supervisor and run the department. I told
him that he was familiar with the fact that the incoming orders were
not rising, that the amount of work was declining and that I was
going to have to do something to cut back. And that based on his
job performance doing Cook’s job, that I was going to let him go.’’
The quoted account of Berg’s remarks to Manzano omitted ref-
erences to specific errors in treating three shipments, which Berg had
included in his earlier testimony regarding the reasons he gave
Manzano on April 23. This omission did not square with Berg’s
other testimony in which he asserted the seriousness of these errors.
An omission of greater significance was any account in Berg’s testi-
mony of an effort to improve Manzano’s performance by disciplin-
ing him or retraining him. Berg testified that from ‘‘mid-February
through late April,’’ he had ‘‘a continuing impression’’ that
Manzano was not doing an adequate job. Yet, according to Berg’s
testimony, the only corrective action he took was to speak to
Manzano an average of three times weekly. Absent from his testi-
mony was any suggestion that he threatened to punish Manzano for
performing inadequately. Berg did nothing to punish Manzano for
his asserted shortcomings until April 23, 1 week before the Board-
held election, and a few weeks after Manzano had offered a union
card to a company supervisor.
According to Berg’s own testimony he was ‘‘only nominally
upset’’ when he talked to Manzano on April 2 or 3 about a mistake
in handling a shipment of sippers. Berg, also testified that the second
error, involving a shipment of bowls, resulted in his talking to
Manzano in the presence of the customer. Further, according to
From January to April 23, the five or six employees in
shipping and receiving did not require much direction from
Manzano in their daily work. They knew what they had to
do. Only if there were something unusual would Manzano
tell them what had to be done.
Manzano could change an employee’s timecard if the em-
ployee had neglected to punch in or out, and if he knew the
employee had worked. If Manzano did not know that the em-
ployee had worked, and the employee claimed that he or she
had forgotten to punch in or out, Manzano was required to
refer the question to Office Manager Torrisi.
Manzano’s union activity began early in 1993, when he
contacted the Union’s field representative, Jose Galvan.
Manzano asked Galvan if the Union would represent the
Company’s employees, who needed assistance to obtain va-
cations, insurance, and other benefits. The two arranged to
meet.
Manzano and Galvan met at a restaurant on March 1.
Manzano asked if the Union could represent the Company’s
employees. Galvan said yes, began explaining what the
Union was, and asked how many employees worked with
Manzano. Galvan showed an authorization card and said he
would mail similar cards to Manzano. On the following day,
Manzano received the cards.
Beginning on March 3, Manzano took the Union’s author-
ization cards to work. He distributed a little over 60 of them
to his coworkers until April 21. Manzano encouraged em-
ployees to support the Union, telling them that the Union
would obtain salary increases and fringe benefits.
On March 15, the Union filed a representation petition
with the Board’s Region 13 seeking an election in a unit of
the Company’s production and maintenance employees,
warehouse, shipping and receiving employees, at its Wheel-
ing, Illinois plant. The Company received a copy of the peti-
tion in March.
Manzano also attended six union meetings. The first was
at the Union’s office, on March 20. Between five and nine
company employees were present. Manzano notified the
other company employees about the meeting, which lasted 45
minutes. Galvan and Lopez, another union representative,
told the employees about the Union. The second and third
union meetings were at the same office, under the leadership
of Galvan and Lopez. Between 15 and 20 company employ-
ees attended the second meeting. Between 20 and 25 com-
pany employees were at the third meeting. At the second
meeting, the union representatives suggested the need for
more employee support. At the third, Galvan and Lopez said
that the Company’s owner had been notified of the Union’s
campaign. The two union representatives urged the employ-
ees to support each other. Manzano notified the company
employees about the second and third meetings.
The Union held the remaining three meetings in a bus,
parked at a plaza, 1 mile from the Company’s Wheeling fa-
cility. They occurred on April 20, 22, and 23, respectively.
Five to ten employees showed up at the meeting of April 20.
Approximately 10 employees attended on April 22, and only
2 employees, Manzano and Calixto Espinal, were at the final
meeting on April 23. Manzano notified the Company’s em-
ployees about these meetings. On April 20 and 22, the
Union’s representatives, Galvan and Lopez, discussed the
representation election which the Board was to conduct
among the Company’s employees. The record did not dis-
close the content of the last meeting.
In April, prior to Manzano’s layoff, Supervisor Rubin
Tapia approached him and asked if Manzano knew who was
promoting the Union and trying to bring it in. This conversa-
tion occurred as Tapia was leaving the Company’s facility
and Manzano was coming to work. Manzano said he did not
know, but offered a union authorization card to Tapia for
signature. Tapia refused the offer, because he had a good re-
lationship with the Company’s general manager, Stanley
Berg. Tapia remarked that the employees he worked with
might support Manzano, as they needed help. Tapia also said
that someone had seen Manzano handing out union cards.
On April 23, at about 6:55 p.m., as Manzano was leaving,
Don Marcheschi directed him to General Manager Berg’s of-
fice. When Manzano arrived at his destination, Stanley Berg
was there. He said that work was slow and that he was lay-
ing Manzano off. Manzano questioned the layoff, pointing
out that shipping and receiving was very busy, and that there
were other employees with less seniority. Berg replied that
Manzano’s wages were higher than those of the less senior
employees, and asked if Manzano would work for $4.50 per
hour. Manzano said that he had three children to support and
$4.50 was insufficient for him. Berg recommended that
Manzano seek a higher paying job elsewhere. Berg said he
was sorry, but Manzano was laid off. Berg rejected
Manzano’s request for vacation pay. In this same discussion,
Berg said he would pay an additional $150 to Manzano for
taking Cook’s place. To date, the Company has not paid any
additional money to Manzano for replacing Cook. However,
Berg honored Manzano’s request for a letter of recommenda-
tion.4
95BERG PRODUCT DESIGN
Berg’s testimony, the third incident provoked him to yell at
Manzano. Again, none of these incidents motivated Berg to threaten
layoff or any other punishment when he spoke to Manzano about
them, prior to April 23. Finally, I note that the letter of rec-
ommendation, which Berg composed, praises Manzano’s work and
contains not the slightest suggestion that he was other than a valued
employee. These circumstances, coupled with my impression that
Manzano was the more frank and forthright of the two witnesses,
convinced me to reject Berg’s testimony and credit Manzano’s re-
garding their confrontation on April 23. For the same reasons, I have
credited Manzano’s testimony that, prior to April 23, the Company
neither disciplined him nor warned him about his work.
In his letter of recommendation for Manzano, Stanley Berg
asserted that Manzano’s association with the Company dated
from 1985. Berg also wrote that Manzano had ‘‘always done
the work assigned to him in an efficient manner’’ and that
Manzano had ‘‘shown excellent qualities in terms of job
comprehension & helped the Company in many ways.’’ In
conclusion the letter blamed ‘‘lack of orders’’ for the Com-
pany’s inability to retain Manzano, and finally recommended
him ‘‘highly.’’
The Board conducted a representation election among the
Company’s Wheeling employees on April 29 and 30. Man-
zano was a union observer on both dates. The Company has
not offered to reinstate Manzano.
B. Analysis and Conclusions
The General Counsel urges findings that the Company vio-
lated Section 8(a)(1) of the Act by interrogating Manzano
about union activity, and by creating an impression that his
union activity was under surveillance. The General Counsel
also contends that the Company laid Manzano off in reprisal
for his union activity. The Company argues, initially, that
Manzano was a supervisor and thus not entitled to the Act’s
protection. The Company further contends that even if he
was not a supervisor, the General Counsel has not shown by
a preponderence of the evidence that union activity moti-
vated Berg to lay off Manzano.
The Board has consistently recognized that an employer
may discharge a supervisor for union activity. E.g., Daniel
Construction Co., 244 NLRB 704, 719 (1979). In the instant
case, the Company urges that Manzano was a supervisor at
the time of his layoff, and thus not protected by the Act. The
General Counsel disputes this contention. I find that
Manzano was not a supervisor and thus was entitled to the
Act’s protection on April 23, when the Company laid him
off.
In reaching my finding that Manzano was not a supervisor,
I looked first to the Act for guidance. As defined in Section
2(11) of the Act, the term ‘‘supervisor’’ denotes:
Any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or effectively to recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgement.
This section is to be read in the disjunctive; possession of
any one of the enumerated powers establishes supervisory
status. Southern Indiana Gas & Electric Co. v. NLRB, 657
F.2d 878, 883 (7th Cir. 1981). Further, regardless of the spe-
cific supervisory power at issue, Section 2(11) of the Act re-
quires that its exercise involve the use of independent judg-
ment on behalf of the employer, and not in a routine or spo-
radic manner. NLRB v. Lauren Mfg. Co., 712 F.2d 245, 247–
248 (6th Cir. 1983); Juniper Industries, 311 NLRB 109, 110
(1993). As the party contending that Manzano was a super-
visor within the meaning of Section 2(11) of the Act, the
Company bears the burden of proof on that issue. We Can
Inc., 315 NLRB 170 (1994).
The Company has not shown that Manzano was supervisor
within the meaning of Section 2(11) of the Act. The record
shows that Manzano worked in the Company’s warehouse
along with five or six employees. There has been no showing
by credited evidence that Manzano had authority to hire, dis-
charge, discipline, lay off, or to carry out any of the other
functions set forth in Section 2(11) of the Act, using inde-
pendent judgment. Nor has there been any showing that he
effectively recommended any of the enumerated actions. In-
stead, the record shows that he oversaw the loading and un-
loading of trucks by employees who were acquainted with
the work and routinely carried it out, with instructions from
Manzano only when special circumstances required them. As
a matter of routine, Manzano and his colleagues in the ware-
house worked overtime to complete the day’s assignments.
Overtime for weekends and the need for additional employ-
ees in shipping and receiving were matters which Manzano
had to take up with Torrisi, for decision. If a shipping and
receiving employee needed time off for personal reasons,
Manzano referred the request to Torrisi. In view of the fore-
going, I find that the Company has not sustained its burden
of showing that Manzano was a supervisor within the mean-
ing of Section 2(11) of the Act, during the period from Janu-
ary until his layoff on April 23. Quadrex Environmental Co.,
308 NLRB 101, 102 (1992).
The General Counsel contends that the Company laid off
Manzano because of his union activity. The Company denies
that union activity had anything to do with its decision to lay
off Manzano. Instead, the Company claims that economic
reasons motivated its decision to lay him off on April 23. I
find merit in the General Counsel’s contention.
An employer violates Section 8(a)(3) and (1) of the Act
by discharging or otherwise discriminating against employees
for antiunion reasons. When the General Counsel has shown
by a preponderance of the evidence that the employer’s deci-
sion to take adverse action against the employee was moti-
vated in some part by the employee’s union activity, the em-
ployer will be found to have violated Section 8(a)(3) and (1)
of the Act, unless the employer shows, as an affirmative de-
fense, that it would have taken the same action, even in the
absence of the employee’s union activity. NLRB v. Transpor-
tation Management Corp., 462 U.S. 393, 402–403 (1983),
approving Wright Line, 251 NLRB 1083 (1980), enfd. on
other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Accord: NLRB v. Advance Transportation
Co., 965 F.2d 186, 190–191 (7th Cir. 1992). When the em-
ployer’s explanation for its actions are pretextual—that is, if
the reasons either did not exist or were not in fact relied
upon—the employer has not met its burden and the inquiry
is logically at an end. Limestone Apparel Corp., 255 NLRB
722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In response to a leading question asking whether anyone ever
told him that Manzano was involved in union activity, Berg an-
swered: ‘‘No, other than in the hearing yesterday.’’ I have rejected
that testimony, however, and have found it likely that Tapia quickly
communicated with Berg about the union card incident involving
Tapia and Manzano. In arriving at this finding, I have considered the
circumstantial evidence which suggested that Berg’s denial was un-
reliable, I also relied on my impression, discussed in fn. 4, above,
that when testifying about his decision to lay off Manzano, Berg
seemed to be grasping at reasons as he went along. In short, Berg
did not impress me as being a frank and forthright witness when tes-
tifying about his motive for laying off Manzano.
Manzano began his union activity early in 1993 and pur-
sued it even after his layoff on April 23. Indeed, among the
Company’s employees he was the one who contacted the
Union and distributed authorization cards. He also encour-
aged fellow employees to support the Union. He attended all
six union meetings and was the one who notified other com-
pany employees of those meetings. On April 29 and 30,
Manzano was the Union’s observer at the Board-held elec-
tion.
General Manager Berg denied knowledge of Manzano’s
union activity at any time prior to the latter’s layoff. The
record suggests otherwise, however. Thus, in April, prior to
Manzano’s layoff, Supervisor Tapia singled him out and
asked him if he knew who was promoting the Union and try-
ing to bring it into the Company. I find that by this question
Tapia was interrogating Manzano about his union activity
and the union activity of other employees. By singling
Manzano out for such interrogation, Tapia evidenced sus-
picion that Manzano was involved in the Union’s campaign.
While he did not reveal his role in the Union’s organizing
campaign, Manzano left no doubt of his sentiment. He of-
fered a union card to Supervisor Tapia, whose reaction
showed understanding that Manzano was a union activist.
Tapia suggested that Manzano would find support for the
Union among the employees Tapia supervised.
In this same encounter, Tapia said that someone had seen
Manzano handing out union cards. Given that Manzano was
conducting his union activity in plain view of fellow employ-
ees, he would be likely to understand that the ‘‘someone,’’
to whom Tapia referred, was a member of the Company’s
management. I find that by this remark, Tapia gave Manzano
the impression that the Company was keeping Manzano’s
union activity under surveillance and thereby interfered with,
restrained, and coerced him in violation of Section 8(a)(1) of
the Act. I also find that by interrogating Manzano about his
union activity in this context, Tapia again coerced him and
thereby violated Section 8(a)(1) of the Act.
As a member of the Company’s management, Tapia was
likely to report his encounter to his superior, General Man-
ager Stanley Berg. The Company’s assertion in its
posthearing brief that Tapia was assisting in the Union’s
campaign finds no support in the record. Indeed, when
Manzano offered a union card to him, Supervisor Tapia de-
clined because of his good relationship with Stanley Berg. I
find it likely that this good relationship would have moti-
vated Tapia to inform Stanley of Manzano’s solicitation on
the Union’s behalf.
Tapia’s encounter with Manzano, which included unlawful
interrogation and giving the impression that someone in the
Company’s management was keeping an eye on Manzano’s
union activity, suggested that Tapia was acting on behalf of
a management member, who was only seeking to confirm
what he or she already suspected. These circumstances cast
serious doubt upon Stanley Berg’s denial that at the time of
the layoff, April 23, he knew, or had been told, that
Manzano was engaged in union activity. The timing of
Berg’s layoff of Manzano, only 6 days before the Board-held
election was to begin, sheds further doubt on Berg’s credibil-
ity in these regard. For such timing evidences an intent to
use Manzano in a show of company hostility to discourage
other employees from supporting the Union. These factors
suggest that when he decided upon the layoff, Berg was in-
formed of Tapia’s encounter with Manzano and at least sus-
pected that Manzano was the leading employee supporter of
the Union’s organizing campaign among the Company’s em-
ployees. I also find from the foregoing that the General
Counsel has made a prima facie showing that Manzano’s
suspected leading role in the Union’s organizing effort at the
Company provoked General Manager Berg to lay him off on
April 23.5
According to the Company’s posthearing brief, Berg laid
off Manzano for inadequate performance as a supervisor.
This was not the explanation which Berg gave to Manzano
at the time of the layoff, however. On April 23, Berg said
he was laying Manzano off because work was slow. When
Manzano questioned his selection for layoff, arguing that
there was plenty of work in shipping and receiving and that
there were other employees with less seniority who could be
laid off, Berg said that Manzano’s wages were higher than
those of the less senior employees. Before me, however,
Berg testified that one of the reasons he laid Manzano off
was that Manzano was the highest priced employee, and that
laying off the highest priced people is the way to cut wages.
The Company did not present any payroll data showing that
Manzano’s wages were higher than those of less senior em-
ployees. The company records, which the General Counsel
introduced into evidence, however, show that contrary to
Berg’s testimony, as of April 23, other company personnel
were receiving higher wages than was Manzano. For exam-
ple, employee John Kuciemba was receiving an hourly wage
of $8.50, Ruben Tapia’s hourly wage was $9, and Rafael
Garcia’s hourly wage was $10.50. Yet only Manzano was
laid off. From these circumstances, plus my evaluation of
Berg’s credibility in footnotes 4 and 5, above, I find that the
Company has failed to show that Berg selected Manzano for
layoff to save money.
Berg’s attempt to show that he laid Manzano off to save
money has fallen short of the mark. His resort to shifting and
inconsistent explanations shows that he was grasping for an
explanation to mask the real reason for his selection of
Manzano for layoff. I find that Berg’s economic excuse was
a pretext. Accordingly, I find that the General Counsel has
shown by a preponderance of the record evidence that the
Company violated Section 8(a)(3) and (1) of the Act when
Berg laid off Manzano on April 23 in reprisal for the latter’s
suspected leading role in the Union’s organizing campaign.
That Berg asked Manzano if he would accept an hourly
wage reduction from $7 to $4.50 does not rebut the General
Counsel’s showing of unlawful motive. For by singling
Manzano out because of his union activity, to face either a
layoff or a severe wage cut as an alternative, Berg was dis-
criminating against him in violation of Section 8(a)(3) and
97BERG PRODUCT DESIGN
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(1) of the Act. When Manzano rejected the discriminatory
low wage offer, he faced an immediate discriminatory layoff.
CONCLUSIONS OF LAW
1. By interrogating employee Florentino Manzano about
his union activity and the union activity of other employees,
and by creating the impression that Manzano’s union activity
was under surveillance, the Company has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By laying off Florentino Manzano because of his actual
or suspected union activity, the Company violated Section
8(a)(3) and (1) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Company having discriminated against employee
Florentino Manzano by laying him off and failing to recall
him from layoff, the Company must offer him reinstatement
and make him whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from the date of layoff
to the date of a proper offer of reinstatement, less any net
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). I shall also rec-
ommend that the Company be required to remove from its
files any reference to Manzano’s layoff, which I have found
violative of the Act, as set forth above, and notify Manzano
that it has done so and that it will not use the layoff against
him in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Berg Product Design, Inc., Wheeling, Il-
linois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, refusing to reinstate, or other-
wise discriminating against any employee for supporting
Warehouse, Mail Order, Office, Technical and Professional
Employees Union, Local 743, affiliated with the International
Brotherhood of Teamsters, AFL–CIO or any other union.
(b) Coercively interrogating any employee about union
support or union activities of other employees.
(c) Creating the impression among its employees that their
union activities are under surveillance.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Florentino Manzano immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
layoff of Florentino Manzano and notify him in writing that
this has been done and that the layoff will not be used
against him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Wheeling, Illinois, copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Warehouse, Mail Order, Office,
Technical and Professional Employees Union, Local 743, af-
filiated with the International Brotherhood of Teamsters,
AFL–CIO or any other union.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT create the impression among our employees
that their union activities are under surveillance.
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL offer Florentino Manzano immediate and full re-
instatement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL notify Florentino Manzano that we have re-
moved from our files any reference to his layoff and that the
layoff will not be used against him in any way.
BERG PRODUCT DESIGN, INC.