Randall Mfg. of Arizona

National Labor Relations Board - Board Decisions

Aug 26, 2005

345 N.L.R.B. 209 (N.L.R.B. 2005)

RANDALL MFG. OF ARIZONA
345 NLRB No. 12
209
Randell Manufacturing of Arizona, Inc. and Sheet
Metal Workers’ International Association, Local
No. 359, AFL–CIO. Case 28–CA–16207 and 28–
CA–16322
August 26, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 5, 2001, Administrative Law Judge James M.
Kennedy issued the attached decision. The General
Counsel and the Respondent filed exceptions, supporting
briefs, and answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs1 and has decided to affirm the judge’s rulings,
findings,2 and conclusions and to adopt the recom-
mended Order as modified.3

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We adopt the judge’s finding that the complaint allegations of
unlawful solicitation of grievances and threat of replacement are time
barred by Sec. 10(b). We agree with the judge that the allegations are
not closely related to the timely filed charge concerning Perez’ dis-
charge. We do not rely, however, on the judge’s reasoning that the
untimely filed charges did not involve the same legal theory as the
discharge because the allegation that the discharge violated Sec. 8(a)(3)
lacked merit.
We agree with the judge, for the reasons stated in his decision, that
Ross Stores, Inc., 329 NLRB 573 (1999), enf. denied in relevant part
235 F.3d 669 (D.C. Cir. 2001), is distinguishable. Chairman Battista
and Member Schaumber express no opinion on whether Ross Stores
was correctly decided.
We adopt the judge’s finding that the Respondent violated Sec.
8(a)(1) by terminating Luz del Carmen Perez for engaging in protected,
concerted activity when she circulated a petition requesting the removal
of her supervisor, Ismael Garcia. The Respondent’s asserted reason for
discharging Perez was excessive absenteeism. The Respondent con-
tends that Perez incurred her 11th and final absence when she failed to
show up for a scheduled inventory on Saturday, October 30, 1999,
thereby mandating her discharge under the Respondent’s strict atten-
dance policy. The judge rejected this explanation, as do we. The judge
credited Perez’ testimony that she did not commit to work on October
30, and specifically discredited Garcia’s contrary testimony that Perez
agreed unconditionally to work that day. This credibility resolution is
consistent with the record as a whole. When Garcia approached Perez
about working the Friday, October 29 inventory, Perez called her home
to check on her childcare situation and then told Garcia that she could
not work because she did not have a babysitter for her children. Perez’
mother, the children’s usual sitter, left the country on Friday afternoon.
Garcia accepted this response and then asked Perez if she could work
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Randell
Manufacturing of Arizona, Inc., Tucson, Arizona, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(d).
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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
violated Federal labor law and has ordered us to post and
obey this notice.

on Saturday. Perez told Garcia that she could work on Saturday only if
she could get her neighbor to babysit her children. Perez testified that
her husband was unavailable to watch the children on Saturday because
he was working. In light of the uncertainty of Perez’ childcare ar-
rangements, and given that she knew she might face disciplinary action
for an unexcused no-show, we cannot conclude that the judge erred in
crediting Perez’ testimony over Garcia’s.
Additionally, Garcia was not universally rigid in his application of
the Respondent’s attendance policy. Employees Antonio Valencia and
Carlos Chavez were scheduled to work the Friday inventory and Garcia
was instructed to excuse them only if replacements could be found. Yet
even though Garcia knew that Perez could not work on Friday and he
had not lined up other replacements, he did not require Valencia and
Chavez to report. Nor did he discipline them for declining to do so.
The Respondent contends that Garcia strictly and consistently applied
the company’s attendance policy, but fails to explain the leniency ac-
corded to Valencia and Chavez. For these reasons, in addition to those
cited by the judge, we agree the discharge of Perez violated Sec.
8(a)(1).
There are no exceptions to the judge’s dismissal of the allegation
that Perez’ discharge also violated Sec. 8(a)(3).
3 We shall modify the judge’s recommended Order in accordance
with our decision in Ferguson Electric Co., 335 NLRB 142 (2001). We
shall substitute a new notice in accordance with our decision in Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534
(6th Cir. 2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD210
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discharge or otherwise discriminate
against employees who engage in activity for their mu-
tual aid and protection, such as joining with other em-
ployees to ask that their supervisor be replaced.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
order, offer Luz del Carmen Perez full reinstatement to
her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Luz del Carmen Perez whole for any
loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Luz del Carmen Perez and WE WILL,
within 3 days thereafter, notify her in writing that his had
been done and that the discharge will not be used against
her in any way.
RANDELL MANUFACTURING OF ARIZONA, INC.
Richard A. Smith and Mitchell S. Rubin, Esqs., for the General
Counsel.
Tibor Nagy and Robert C. Daum (Snell & Wilmer), of Tucson,
Arizona, for the Respondent.
José P. Otero, Organizer, of Tucson, Arizona, for Sheet Metal
Workers Local No. 359.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Tucson, Arizona, on August 22–24, and October 5,
2000, on a complaint issued on March 31, 2000, by the Re-
gional Director for Region 28. The complaint is based on un-
fair labor practice charges filed by Sheet Metal Workers’ Inter-
national Association, Local No. 359, AFL–CIO, on December
2, 1999,1 and February 9, 2000. It alleges that Respondent,

1 All dates are in 1999, unless otherwise indicated.
Randell Manufacturing of Arizona, Inc.,2 has violated Section
8(a)(5), (3), and (1) of the National Labor Relations Act (the
Act). Respondent denies the allegations.
Issues
This case presents issues under Section 8(a)(1), (3), and (5)
of the Act. All of the conduct is alleged to have occurred
shortly after the Board issued its certification of representative
to the Union on July 27, 1999. That certification concerned a
representation election conducted in February 1995.3 In order
to test the certification, Respondent refused to bargain, the Un-
ion filed unfair labor practice charges, and a summary judg-
ment followed on March 20, 2000.4
Among other things Respondent is alleged to have promul-
gated an overly broad and discriminatory rule prohibiting em-
ployees from talking during working time,5 soliciting employee
grievances during a company meeting to explain why Respon-
dent was challenging the certification, and threatening employ-
ees with replacement. The General Counsel also accused Re-
spondent of unilaterally, without notice to the Union, imple-
menting an incentive for improvement program,6 and increas-
ing its production requirements. Finally, the General Counsel
contends that Respondent discharged its employee Luz del
Carmen Perez (Perez) on November 1, 1999, either because of
her union activities or because she had engaged in the con-
certed protected activity of seeking to replace her supervisor.
Respondent denies the remaining allegations in the complaint
and also asserts that the 8(a)(1) allegations concerning the so-
licitation of grievances and the threat of replacement are time-
barred by Section 10(b) of the Act.
Both the General Counsel and Respondent have filed briefs7
which been carefully considered. Based on the entire record,
including my observation of the demeanor of the witnesses, I
make the following

2 Respondent’s name has been corrected to reflect a name change
prior to the issuance of the complaint. Its previous name was Randell
Warehouse. It remains a subsidiary of Dover Industries.
3 See Randell Warehouse of Arizona, 328 NLRB 1034 (1999).
4 See Randell Warehouse of Arizona, 330 NLRB 914 (2000).
5 The no talking rule was dismissed on the record for lack of evi-
dence.
6 The General Counsel withdrew the allegation concerning the incen-
tive for improvement program at the hearing on August 22, 2000.
7 On January 24, 2001, Respondent filed a copy of a week-old court
decision denying enforcement of a case upon which the General Coun-
sel was relying. The case had been decided 8 days previously and
about 2 months after briefs were filed. The General Counsel filed a
motion to strike asserting Respondent was making an improper effort to
supplement its brief. The motion is denied as legally frivolous. It is
entirely proper for counsel to report on the status of relied-upon prece-
dent at any stage. Indeed, a knowing failure to do so shows a lack of
candor and is unprofessional. Counsel for the General Counsel, rather
than opposing the motion should have been notifying me themselves, or
at the very least not filing an opposition. See fn. 14 for the case in
question.
RANDALL MFG. OF ARIZONA 211
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation operating a manufac-
turing plant in Tucson, Arizona. A subsidiary of Dover Indus-
tries, it is in the business of manufacturing restaurant equip-
ment.8 It admits that during the year preceding December 2,
1999, it purchased and received at its Tucson facility products,
goods, and materials valued in excess of $50,000 directly from
points outside Arizona. Accordingly, it admits, and I find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Furthermore, it admits
that the Union is a labor organization within the meaning of
Section 2(5) of the Act, and I so find.
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Tucson operation has both corporate and local compo-
nents. Albert DeLorenzo is the corporate official located at the
site. He is the vice president for Arizona operations. However,
the plant itself is run by the Plant Manager John Halifax. Hali-
fax makes the day-to-day decisions concerning the operations
of the plant itself. He has a support staff including Lee Free-
man, the human resources manager. He also has a number of
first-line supervisors, including Ismael Garcia. Garcia is in
charge of the refrigeration assembly lines. There are other
supervisors for other departments or work cells. There are
about 70–75 total employees at the plant. One of the areas
which Garcia oversees is the plate chiller department which
normally utilizes two employees to put that product together.9
The two employees who assembled the plate chillers during this
period were Jesus Vazquez and Carmen Perez.
Perez, whose discharge is in issue here, was hired on Febru-
ary 3. She is a Mexican national seeking permanent resident
status in the United States. She speaks and understands very
little English. At the time of her employment she was married
and had three small children. During her employment she be-
came pregnant with her fourth child. She was discharged on
November 1.
With respect to the representation case, insofar as it concerns
the 10(b) issue, the factual sequence is as follows: The election
was held on February 3, 1995, with the tally showing that the
Union had obtained majority status. Respondent filed timely
objections which were not decided until July 27, 1999, almost
4-1/2 years later. Approximately a week after the Board ruled
on the objections, certifying the Union as the 9(a) representa-
tive, Vice President DeLorenzo conducted a series of nearly-
identical meetings with employees. All occurred on August 3
and primarily involved the reading of a notice explaining why
Respondent had chosen to test the certification. DeLorenzo
read (using an overhead projector) the notice which was later
posted on the bulletin board. It is in evidence as General Coun-

8 More specifically, the plant produces refrigeration units such as
beer coolers, reach-in refrigerators, and plate chillers; it also manufac-
tures a variety of hot food tables and a dough roller.
9 A plate chiller is a small refrigerator designed to chill salad plates
which have been placed on a spring loaded tray for pickup by a server
or customer.
sel’s Exhibit 4. The complaint alleges it was during this meet-
ing that DeLorenzo unlawfully solicited employee grievances.
As one of the sections was breaking up, a first-line supervisor
named Mark Gesquiere made a remark to a couple of departing
employees which the complaint alleges to be an unlawful threat
that they would be replaced if they went on strike. The unfair
labor practice charge, Case 28–CA–16322, concerning these
two allegations was not filed until February 9, 2000, and was
not served on Respondent until the following day, February 10,
2000. That charge also included a claim that Respondent had
engaged in some unilateral changes in the terms and conditions
of employment which violated Section 8(a)(5).
An earlier unfair labor practice charge, however, Case 28–
CA–16207, had been filed on December 2, 1999. That charge
alleged only that Perez and another employee had been dis-
charged for their union activities. It did not contain any allega-
tions that Section 8(a)(1) had been independently violated. The
complaint, as issued, alleged in the alternative that Perez had
either been discharged for her union activity or for concerted
protected activity independent of the Union. As shown below,
that discharge was not for her union activity, but because she
had instigated her fellow employees to complain in concert
about their supervisor, Garcia, asking Respondent to replace
him.
I note that the second unfair labor practice charge, relating to
the August 3 conduct, was filed more than 6 months after the
event.10 Thus, the 10(b) period expired on February 5, 2000, 4
days before the charge alleging the specific violation was filed.
It is literally time barred unless circumstances provide an ex-
ception.
B. The 10(b) Defense to the 8(a)(1) Allegations Made
in Case 28–CA–16322
Redd-I, Inc.11 and Nickles Bakery of Indiana12 hold that de-
spite a literal failure to comply with the 6-month limitations
period found in Section 10(b), a complaint may include such an
allegation if it meets a three-part “closely related” test. Specifi-
cally, the Board considers the following factors: (1) whether
the allegations involve the same legal theory; (2) whether the
allegations arise from the same factual circumstances or se-
quence of events; and (3) whether the Respondent would raise
similar defenses to both allegations.
Here, I must conclude that the late-filed charge does not
meet the test. First, the allegations do not involve the same
theory. Perez’ discharge, covered by the initial unfair labor
practice charge, is in the alternative. The viable theory is that
she was discharged because she persuaded the employees on
Garcia’s staff to sign a petition aimed at persuading manage-
ment to replace him, and that Garcia, when given an opportu-
nity for a reprisal, took it. The alternate theory, that she was
discharged for her union activities, was never viable, and the

10 In pertinent part the limitations language of Sec. 10(b) reads: “. . .
no complaint shall issue based upon any unfair labor practice charge
occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom
such charge is made. . . .”
11 290 NLRB 1115, 1118 (1988).
12 296 NLRB 927, 928 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD212
General Counsel knew it. To be viable, the charge required
employer knowledge of her activity and, aside from Perez be-
ing one of many to wear a union T-shirt, there is no real proof
that Respondent was aware of the strength of her feelings, that
the Union had appointed her to be a committee member or that
she had distributed union T-shirts in the parking lot on perhaps
two occasions. She certainly didn’t give testimony about any
such knowledge, nor did anyone else. Second, evidence of
union animus suggestive of a motive to discharge is nonexis-
tent. The General Counsel relies, inappropriately, on Respon-
dent’s invocation of its statutory right to test the certification.
However, using a congressionally approved means of challeng-
ing the certification, refusing to bargain, is not as a matter of
law proof of animus.
And, while later, untimely-filed charges may be used as
background evidence to support the discharge case,13 their va-
lidity here, even as background, is dubious. It seems clear to
me a supposed statement at a meeting in August which is al-
leged to be a solicitation of grievances and a second supposed
statement which may or may not qualify as an accurate state-
ment of law regarding strikers’ replacement rights, have little to
do with supporting a charge/complaint arising out of circum-
stances occurring in a November discharge. There is no real
nexus, for the discharge is only faintly, if at all, connected to
the Company’s response to union organizing. As background,
they certainly can’t be used to bootstrap themselves into inde-
pendent viability in the face of Section 10(b).
Nor do I read the Board’s opinion in Ross Stores, 329 NLRB
573 (1999),14 as a warrant to deny dismissal on 10(b) grounds.
There, a divided Board allowed a late-filed charge to stand,
despite a 10(b) objection, on the ground that the conduct was
part of an overall campaign to thwart union organizing. In that
case the dischargee was also the person to whom the late-filed
coercion was directed, which is not true here. Furthermore, it
cannot be said, at least at this stage, that Respondent has ever
embarked on a campaign, much less an unlawful campaign, to
avoid unionization. The election campaign was over 4-1/2
years before these incidents, the Union won the election and
there is, on this record at least, no cognizable evidence of ille-
gal conduct between then and 1999.15 Moreover, no campaign
of any kind can be seen to have begun or resumed in 1999.
Clearly the same factual circumstances are not present and the
defenses which Respondent must marshal are different as well.
Therefore, Ross simply does not apply.
Accordingly, the 8(a)(1) allegations in the second case, Case
28–CA–16322, will be dismissed on procedural grounds. Sec-
tion 10(b) bars them from being an independent cause of the
complaint.

13 Machinists Local Lodge 1424 v. NLRB, 362 U.S. 411 (1960).
14 Enf. denied 235 F.3d 669, 674–675 (D.C. Cir. 2001).
15 In August 1996, approximately 18 months after the election, Re-
spondent instituted an in-house complaint procedure known as the
“concern process.” No unfair labor practice charges were filed regard-
ing that event. While that may have amounted to an unfair labor prac-
tice, it is now well beyond the ken of the Act and can have no bearing
on the facts before the Board here.
C. The Discharge of Luz del Carmen Perez
1. Postcertification events
Luz del Carmen Perez was hired on February 3 and dis-
charged on November 1. The discharge, ostensibly, was be-
cause she breached the attendance rule, having acquired her
11th unexcused absence in a rolling year. That absence oc-
curred when she did not appear for inventory work on Saturday,
October 30.
Her first assignment after being hired was in the reach-in de-
partment. Shortly after that she was assigned to the refrigera-
tion department and in June was put in the plate chilling area.
There she inserted compressors into the unit after it had been
assembled by her coworker Vazquez.
On August 3, Respondent conducted a meeting (in sections)
of employees during which Vice President DeLorenzo advised
that the Company was going to continue to oppose the NLRB
certification in the courts. According to some witnesses he also
remarked that the employees did not need a union (not alleged
in any complaint or charge), that they would have to renegotiate
their salaries and benefits if the Union came in (accurate), that
employees would be throwing their money away if they joined
the Union (lawful opinion; moreover, Arizona is a right-to-
work-State where compulsory union membership is not permit-
ted), and that employees could approach him with any prob-
lems and that he would attempt to resolve them [consistent with
calling attention to the existence of the “concern process” set
forth in the employee manual, and alleged in the complaint to
be unlawful grievance solicitation; barred by Section 10(b)].
As one section of that meeting was breaking up, according to
employee Albert Gutierrez, a supervisor named Mark Ges-
quiere heard another employee, annoyed with DeLorenzo, re-
mark to Gutierrez that the employees should go on strike.
Gutierrez testified that Gesquiere replied something to the ef-
fect “. . . why don’t you guys do that? All we have to do is
replace you guys.” [Depending on context, this remark may or
may not have constituted an unlawful threat. Eagle Comtron-
ics, 263 NLRB 515 (198[2]). Barred by Section 10(b) here].
2. The petition against Garcia
About Friday, August 13, Perez had become disenchanted
with the supervisory style exhibited by Garcia. She wanted
someone else to take his place. She decided that one way to do
that was to obtain and circulate a signature petition designed for
that purpose. She then created General Counsel’s Exhibit 3. In
its original form, it contained no English language below the
signatures. She signed first at the top of the page, and then
circulated the document for other signatures, explaining that it
was for the purpose of replacing Garcia. Eventually, she ob-
tained the signatures of seven other refrigeration department
employees, all of whom worked on Garcia’s line. She also had
one of them who could write English to write at the bottom:
“These signatures are because we want a change in supervisor,
because we are not comfortable with him.”
A few minutes later, she and another employee, a young man
whose name she does not know but who speaks English,16 took

16 Halifax testified that Perez was accompanied by a female em-
ployee Ana Samoniego. I believe him to be mistaken and credit Perez’
RANDALL MFG. OF ARIZONA 213
the petition to plant manager, John Halifax. Halifax read the
petition and told the young man to tell Perez that if the employ-
ees had something to say to Garcia they should do it when Gar-
cia returned. They left the petition in Halifax’s possession.
Shortly thereafter, Halifax went to the refrigeration area and
gathered the employees for a short meeting. During that talk he
told them “. . . unless there was an issue brought to light in
regard to a supervisor harassing individuals or something where
they would have to go past the supervisor and go[ ] to a man-
ager for assistance in the matter, then each of the people on that
list, if they had an issue with their supervisor, they needed to
utilize the concern process.”
In essence, he told them he wasn’t going to deal with their
problem, that they had best take it up with Garcia, the very
person about whom they had the complaint. That approach
resulted in several of them saying that they had not understood
the purpose of the petition and wanted their names removed
from it.
None were removed and, either later that day or the follow-
ing day, Halifax showed it to Garcia.
When Garcia initially testified about the petition, he twice
said he first saw it in late October, on the Wednesday before the
inventory which ended in Perez’ discharge. He also confirmed
it to me:
JUDGE KENNEDY: You hadn’t seen it [GC Exh. 3] be-
fore that?
THE WITNESS: I don’t recall whether I did or not, but I
was aware of this, I believe when I came back from those
two days [off during the week of October 25].
Later, he said he first saw the petition in August, asserting
that he had somehow become confused earlier, thus, aligning
his testimony with that of Halifax. I do not believe it makes
much difference whether he first saw it in August or in Octo-
ber. He certainly seems to have seen it in October, perhaps for
the second time, as he has a specific recollection of seeing it
when he came back to work after a short absence that week.
Garcia, in describing his first response to seeing the petition,
admits that he was “just shocked to see this.” And, he simulta-
neously became aware that Perez’ was the first signature on the
list and that she was the principal employee behind the petition.
(The young man who had accompanied her had clearly served
as a translator; it is not clear that he was a signer.)
3. Union activity is renewed; Perez’ involvement
The event following the August 13 petition concerning Gar-
cia was an August 17 after-work meeting at a local park be-
tween three union officials and a group of about 22 employees.
At this meeting the union officials explained their view of the
certification as well as the consequences of Respondent’s deci-
sion to challenge it. That was the first union meeting which
Perez had attended. There also appear to have been two other
union meetings which were conducted shortly thereafter. At
one of the meetings the union officials asked Perez and em-

testimony that she asked a young man to go with her. He spoke Eng-
lish and could communicate with Halifax. Perez says Samoniego does
not speak English.
ployee Miguel Parra to serve as the Union’s eyes and ears in
the plant.
At about that time the preelection practice of employees
wearing union T-shirts resumed and Perez, for the first time,
began wearing one. She made it a practice to wear her union T-
shirt each Wednesday. Similarly, her coworker Jesus Vazquez
began wearing his even more frequently. And, many more
employees wore the shirts as well. Twice, after work, she dis-
tributed about 10 T-shirts and union caps in the parking lot after
work. She agrees that she has no knowledge concerning
whether or not any of Respondent’s managerial staff observed
that distribution. Respondent, however, has stipulated, and
both human resources manager, Lee Freeman, and her supervi-
sor, Ismael Garcia, testified that they were aware that she was
wearing the shirt.
There is no evidence, however, that Respondent was aware
that the Union had appointed her as one of its inside people or
that she should be regarded as one of its leading proponents.
Furthermore, there is no evidence that any manager said any-
thing to her about her union views and sentiments. Finally,
there is no evidence that she reported any observations about
the Company to the Union or that company officials thought
she had. It is fair to say that in management’s eyes she was one
of a majority of employees who favored union representation.
In a very real sense, she did not stand out from the crowd.
4. Perez’ attendance record; the inventory absence
Respondent operates its factory under several rules. Its at-
tendance rule on its face appears to be nondiscriminatory. It is
called a “no-fault policy,” and has the shortcomings of most
woodenly applied rules. Without exploring all the nuances, the
policy allows for 10 unexcused absences in a rolling year, with
discharge being the only course available on August 11. Aside
from some very narrow exceptions (death in the family, pre-
scheduled doctor’s appointments, jury duty/court appearances,
illness/injury after the first day, and various statutory require-
ments17) the policy is applied to all absences. This means that
an absence is counted as unexcused no matter how sympathetic.
Worse, the employee may not know that an absence has been
counted as unexcused until the fifth and/or tenth absence when
the supervisor will give him or her written notice that those
milestones have been passed. Depending on the timing, it may
be too late to effectively rebut the demerit, even if it were pos-
sible. Thus, family emergencies (child/spouse taken to the
emergency room) during the workday generally don’t qualify
as an excused absence.18 It has been argued here that a first
line supervisor doesn’t even have the authority to give permis-
sion for an absence of this kind. And, entirely separate from
the absence rule is the tardy/leave early rule.
As of the end of October, Perez had 10 unexcused absences.
The General Counsel argues that three of them were unwar-
ranted and should not have been counted. Aside from whether

17 “Circumstances of a general nature,” usually referring to a situa-
tion affecting a large portion of the citizenry—e.g., floods, tornadoes,
and the like, is another specific exception.
18 Assuming the employee was not protected by the Family Medical
Leave Act which does not apply until the employee has been employed
for a year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD214
or not the Board can substitute its judgment for the employer’s
in these instances, there is no warrant to determine that any of
them fall within the Board’s purview unless they have been
specially pled. Two of them are particularly appealing, how-
ever.
The first of the three, occurring July 6 and well before the
certification, involved an appointment made for her by the Im-
migration and Naturalization Service (INS) for an interview to
grant her permanent resident status. In this case, she promptly
notified both her supervisor and the front office of the appoint-
ment, giving at least 10 days advance notice. Her notice was
nearly identical to the notice which the rules required for a
prescheduled doctor’s appointment. Garcia had told her to go,
Freeman wrote a letter to the INS on her behalf, yet she missed
being considered a “leave-early,” under Respondent’s counting,
by only her 30-minute break period.19 Given Respondent’s
policy toward maintaining a trained work force, one wonders
why the rule was applied so harshly here. This was closely
akin to a court appearance. It was an INS request upon which
her future depended and an appointment which had taken
nearly 3 years to obtain. Such appointments are difficult to
reschedule.
The second occurred on September 7 when her kindergartner
suffered a medical emergency at school. Perez left work with
Garcia’s approval after her mother called her at work saying
that the school nurse had reported the child had become very ill
and needed to be taken to the hospital. Her absence was sup-
ported afterwards by an emergency room slip for the child. The
third absence, less documented, was due to morning sickness
which struck during the second or third hour of her shift on
October 5 rendering her unfit to work. In this case she left after
unsuccessfully trying to find Garcia, and left a message with
Vazquez who did inform Garcia shortly thereafter. No one
actually questions Perez’ veracity, but the incident occurred
without any written notice to the Company that she had become
pregnant with her fourth child, though she had advised Garcia
in August.
Therefore, as of October 29–30 she had reached her limit of
unexcused absences. Garcia well knew it; he had conducted
both a counseling meeting with her on October 6 and on Octo-
ber 8 had fended off her ensuing attempt to get Respondent to
reconsider some of them, particularly the INS absence. He
declined to take her request to the front office, and managed to
halt her effort.
On Monday, October 25, Respondent posted an inventory
work schedule. Because Garcia was off work during the first
part of the week and unavailable for consultation, Halifax as-
signed refrigeration department employees in the same manner
as they had been assigned during the most recent previous in-
ventory. The work was to be done on Friday afternoon, from
3:30 to 6 p.m. and on Saturday from 6:30 a.m. until it was
complete. Although inventory work is mandatory, two refrig-
eration department employees, Antonio Valencia and Carlos
Chavez went to Halifax to tell him that they would be unable to
perform it. He told them to discuss it with Garcia when he
returned. On Wednesday, Halifax told Garcia of the problem,

19 A calculation Perez says was never explained to her.
telling him he needed to have his area covered and if he got
volunteers, that would be fine, but if he did not, those two
needed to be there. Garcia spoke to both separately, telling
them he was going to seek volunteers, but they should be pre-
pared if he couldn’t find any. It seems that this was the first
time Garcia had faced this type of scheduling problem.
Vazquez heard of the search for volunteers and knew that
Perez had been seeking some extra work. On Friday, he alerted
both Garcia and Perez who then had at least two conversations
about working the inventory.
Those conversations principally dealt with the childcare
problem which Perez would have to overcome if she were to
work the hours required by the inventory. At that time Perez
had three small children at home, the eldest being the kinder-
gartner. The children’s maternal grandmother who had been
watching the children was scheduled to return to Mexico that
afternoon and Perez’ husband usually worked in the afternoons.
The obvious problem was finding someone to baby-sit. She
describes the first conversation which occurred about 12:30
p.m. Garcia initiated it by asking:
“Would you like to work in the inventory as a volun-
teer?”
Q. (BY MR. RUBIN) How did you respond?
A. I told him, “Ismael, my mother is going to go to
Mexico as soon as I leave work. She is just waiting for
me. But if you give me a chance to make a phone call and
call home and see if my husband is there and he can take
care of the kids. So he said, “Yes, okay, make a phone
call after the 3:00 o’clock bell.”
Q. Do you recall what else, if anything, was said?
A. No, I don’t.
Q. Do you recall if anything was said about “volun-
tary”?
A. Yes, as I said before, he asked me whether I
wanted to work as a volunteer.
Rather clearly, the first conversation concerned the Friday
afternoon inventory work. Nothing was said about the Satur-
day work. Like the first, the second conversation was in Span-
ish. It occurred about 3 p.m. shortly after the regular shift
ended. Garcia opened the discussion by speaking across some
tables to Perez. He asked:
[WITNESS PEREZ] “What happened did you talk—did
you call home?” But my mother—and I told [him] that
my mother said that she was ready to go on to Mexico and
that my husband had not gotten home yet so I’m not going
to be able to stay, I’m going to have to go.
Then he asked me, “Are you going to be able to come
tomorrow?” And I said, “Ismael, let me speak with my
neighbor and ask her if she can take care of my kids. And
if she can take care of them, yes, I can come in. But if she
cannot look after them, I’m not going to be able to come.”
And then he said, “Well, fine then.”
But then he asked me again, “Are you sure you’re go-
ing to come?” And I answered, “If my neighbor can look
after my kids I surely will come in. If she cannot look af-
ter them then I can’t come in because I can’t leave them
alone.” And then said, “That’s fine. Okay.” And I asked
RANDALL MFG. OF ARIZONA 215
him, “In case I can come in tomorrow, is it at 6:30?” He
said, “Yes, at 6:30.” Then I returned to my work area.
Garcia did not obtain any replacements for Chavez and Va-
lencia for Friday evening; neither did he direct them to work
when Perez opted out despite the instructions given him by
Halifax that the two were to work if replacements could not be
found. In fact, he had told Halifax earlier in the afternoon that
Perez would work the inventory if she could resolve the child-
care issue. After she told him that the problem could not be
resolved, Garcia also reported her Friday unavailability to Hali-
fax. He also told Halifax that Perez would be available for
Saturday.
Garcia denies that Perez ever told him that the babysitting is-
sue was a problem on Saturday and also denies that she used
any conditional language concerning her need for a babysitter.
He says if she had done so, he would have honored the condi-
tion.
In fact, he says that their first conversation about Perez doing
inventory work was at 10 a.m. on Friday. “I approached her to
verify if she was going to work Friday and Saturday.” She
said, “[Y]es.” According to him, it was not until the afternoon
that she said she might have some babysitting problems. His
point is, however, that as early as 10 a.m. on Friday she had
“committed” to working on Saturday, even though he agrees
with her version concerning the Friday afternoon work. He
said, “She didn’t have any issues or any other concerns about
not showing up on Saturday, so I was expecting her to be at
work on Saturday . . .” At one point in his testimony when
answering a hypothetical question from counsel for the General
Counsel, he acknowledged that if Perez had called him on Fri-
day night to explain that she couldn’t come in because of baby-
sitting problems, he said her absence would have been consid-
ered excused. Later, he repudiated that answer, saying that
once she had committed, an absence for any reason would be
considered unexcused. He explained that his earlier testimony
was because he had become tired and was confused and had
simply given an incorrect answer.
In support of his testimony that Perez had committed herself
to Saturday work, Respondent offered the testimony of Rosetta
Reeves née West. Her testimony was that she was present dur-
ing the post-3 p.m. conversation between Perez and Garcia.
She was one of three persons who may have overheard the
colloquy. In one sense, she corroborates Perez, because she
recalled, as Perez testified, that Perez had verified the reporting
time of 6:30 a.m. (“She asked when she was supposed to be
there the following morning and he told her 6:30.”) Yet much
of the conversation was in Spanish, which she does not under-
stand. She says that Garcia commonly translates the Spanish
words into English when there are nearby English-speakers.
Even so, her suggestion that she didn’t hear any translation
concerning Perez conditioning Saturday work on getting a
babysitter does not convince me that Perez didn’t impose such
a condition. [MR. NAGY: Was there anything else that you
overheard during that conversation that you understood?
WITNESS REEVES: Well, no.] Indeed, on cross she conceded “a
good portion of the conversation was in Spanish” and that most
of it preceded the reference to the start time. Moreover, Garcia
would be unlikely to translate what Perez said, though he might
translate his own remarks. Accordingly, I give Reeves’s testi-
mony little weight.
On Friday after work, Perez did check with her neighbor,
Erma Simmons, and learned that she would not be able to take
care of the children. Perez did not attempt to contact Garcia
because she knew she had told him that she would come in on
Saturday only if a sitter had been obtained and that she had
twice explained it to him. Moreover, the same problem had not
been overcome on Friday and she knew he was well aware of
her personal situation, including the fact that her mother was no
longer available and that her babysitting situation had become
more complex. From her point of view, the matter had been
fully explained to Garcia and he could not have misunderstood.
Second, she really had no way to reach Garcia that evening
even if she had thought it appropriate. And, as a relatively new
employee, she didn’t know that the telephones were answered
on Saturdays during inventory. She knew that the Company
was closed Saturdays and the receptionists weren’t there. In
any event, from her perspective, no calls were necessary. She
knew she had not irrevocably committed to work that day.
On Saturday, consistent with her understanding, Perez did
not go to work. Garcia says he considered her absence to be
unexcused and that he immediately advised Halifax. Halifax
actually denies that Garcia told him of Perez’ absence, saying
he had drawn a deer tag and was deer hunting that Saturday.
He says it was Monday morning when he learned Perez had not
worked the inventory.
Before the beginning of work on Monday, November 1, Gar-
cia advised Human Resources Manager Freeman20 that Perez
had missed her inventory assignment on Saturday. He told
Freeman that Perez had had 10 absences and that this was her
11th. He wanted Freeman to be certain that everything was in
order for a discharge. Freeman went through the list of ab-
sences, and agreed with Perez that discharge was appropriate.
No discharge slip was prepared at that stage.
Garcia immediately went to Perez’ station to await her arri-
val at 6:30. She describes what happened:
[WITNESS PEREZ] I got there to my table and Ismael
Garcia called me over with a sign [signal] and told me to
go with him.
Q. [BY MR. RUBIN] Where did you go with Mr. Gar-
cia?
A. Over there to that corner where he was standing.
Q. What was said at that time?
A. And Ismael Garcia asked me why I hadn’t shown
up for work on Saturday.
Q. What did you say?

20 Since Halifax had not attended the inventory, I credit his version
over that of Garcia, meaning that Garcia did not tell Halifax about
Perez’ supposed unexcused absence until early Monday. Therefore, I
accept Halifax’s testimony that Garcia came to him that morning with
the claim that Perez had skipped Saturday work, that discharge was
warranted and that Halifax referred him to Freeman. Freeman, as the
HR manager, was obligated to review the circumstances before the
discharge could be implemented.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD216
A. And I say, “Ismael, because my neighbor had to
work and she wasn’t able to watch my kids.” And he said,
“You gave me your word that you would come.” And I
said, “No, I told you that if she could take care of my kids
I would come, but if she couldn’t, I wouldn’t.” And he
said, “You gave me your word and that’s then your elev-
enth fault and therefore you are fired.”
And I asked him, “Why? You knew that it was likely
that I wasn’t going to be able to come on Saturday. You
had agreed to that.” He said, “Well, that’s all I have to
say, you’re fired.”
She told him that it was an injustice, picked up her bag and
headed to the office to see Freeman. She spoke to Evelyn
Sanders, one of the office specialists. The other, Emma Fre-
goso21 was not there, according to Perez. Fregoso was the of-
fice specialist who spoke good Spanish and Perez preferred
dealing with her. She asked to speak to Freeman and Sanders
told her to wait. At that moment Garcia arrived and told her
that if she wanted to speak to Freeman they would see him
together. She bristled saying, “I don’t want to go talk to him
with you because you’re going to give him your version only.”
At that point Sanders returned saying “Freeman was too busy
and he didn’t have any time to waste on me.” In response,
Perez demanded something in writing explaining the reason for
the discharge. Within moments Sanders gave her a termination
notice. There is some disagreement concerning whether or not
Halifax’s signature was on her copy (Perez says it wasn’t on the
form given her, though it does appear on the copy received in
evidence, GC Exh. 17). Nevertheless, Garcia did sign the one
given to Perez. It is not necessary to determine when Halifax
signed. The slip lists as the reason for the termination: “Ex-
ceeded attendance policy absences.” It also says, incorrectly,
that the day of the discharge was October 29, the preceding
Friday. The discrepancy has not been explained on the record.
5. Analysis and conclusions concerning Perez’ discharge
Based on the foregoing facts, I conclude that the General
Counsel’s 8(a)(1) concerted activity allegation case concerning
Perez’ discharge has been proven, but that the 8(a)(3) union
activity case has not.
With respect to the latter, there are significant elements of
the prima facie case missing. First, and foremost is the fact that
there is really no proof of union animus. Respondent has not
been found guilty of any unfair labor practice save the refusal
to bargain in order to test the Board’s certification of represen-
tative. The issue presented (union photography during the elec-
tion) in the representation case is legitimate and, despite the
Board’s eventual dismissal of the objection, cannot be dis-
missed as legally frivolous or as a delay tactic. Respondent
certainly did not know the Board would take over 4 years to
decide the objection. The only two items which might be evi-
dence of animus have been dismissed on 10(b) grounds, but
even if found to be factually accurate background they would
not be very persuasive of animus connected to Perez’ dis-
charge. They are the claim that Respondent solicited griev-

21 I believe the spelling here to be correct and that the variants found
in the transcript are erroneous.
ances in a meeting after the certification had been issued and a
threat of job loss in the context of responding to employee talk
concerning a strike.
The first was simply a corporate vice president’s reference to
the existence of the so-called “concern policy,” a policy which
is found in the employee manual. That remark is nothing more
than a reference to a preexisting policy whereby employees can
utilize a procedure to be heard about problems. Certainly,
unlike the preelection tactic of soliciting grievances in order to
demonstrate to voters that a union is not needed to resolve
grievances, this reference promised nothing. Furthermore,
there is no suggestion that he was attempting to undermine the
certification by directly bargaining with employees. He did
know that some employees would be unhappy with the decision
to challenge the certification in the courts. No doubt his refer-
ence to the concern process was an effort to sugarcoat that
news. It was not an offer to hear and satisfactorily settle em-
ployment-based complaints. In the final analysis, it was only a
palliative, a reminder to employees that if some problem arose
during the period of the certification test, a procedure was in
place to deal with it. They need only look to the handbook.
However one might view DeLorenzo’s reference, it was not a
remark evidencing the sort of animus needed to support a un-
ion-based discharge.22
The second was first line supervisor Gesquiere’s apparent
taunt to an unknown employee who was muttering about strik-
ing as a response to DeLorenzo’s announcement that the certi-
fication would be challenged. Employee Albert Gutierrez says
Gesquiere responded with something to the effect: “. . . why
don’t you guys do that? All we have to do is replace you
guys.” Taking that remark in its firmest sense might well qual-
ify as a threat to discharge strikers instead of a shorthand cor-
rect statement of law. Taken at its softest, it would be lawful. I
choose to view it as banter. Gutierrez does not suggest that the
employee (who he could not identify) was serious about strik-
ing, only that he was grumbling. The supervisor’s response
may easily be seen as repartee. No doubt most of the employ-
ees and supervisors, after undergoing an election campaign,
were aware (probably from both sides) of the rules concerning
a company’s right to try to operate in the face of a strike and
the right to replace strikers with other workers. The Laidlaw23
rule is well engrained now. Furthermore, the remark was
aimed at strikers, not conventional workers such as Perez.
Finally, there is no evidence that Gesquiere was involved in the
Perez discharge or that he, as a first-line supervisor, was even
speaking for management, for the decisionmakers, when he
made the remark. Moreover, the remark was quite isolated. In

22 Certainly under the Act employees have the statutory right to di-
rectly approach their employer concerning the presentation of griev-
ances, so long as any adjustment is not inconsistent with the Union’s
role or inconsistent with any agreement the Union has made, and so
long as the Union is given the opportunity to be present during the
adjustment. See Sec. 9(a) of the Act and the provisos thereto. Whether
any concern process resolution would have satisfied Sec. 9(a) is purely
speculative at this point.
23 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970); the rule derives from
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
RANDALL MFG. OF ARIZONA 217
a real sense this evidence is neither evidence of union animus
nor evidence supporting a union connection to Perez’ dis-
charge.
Moreover, other elements are missing as well. There is little
more than guesswork insofar as Respondent’s knowledge of
Perez’ union activity is concerned. True, it knew she wore a
union T-shirt on a weekly basis. But she was far from alone. A
large number of employees did so, as well. In fact her co-
worker, Vazquez, wore his shirt much more frequently than
she. There is no evidence at all that Respondent observed her
passing out union T-shirts and caps in the parking lot on two
occasions after work. And, there is absolutely no evidence that
Respondent was aware that she had been appointed to be one of
the Union’s quasi-stewards, assigned to report about matters of
interest. In fact, there is no evidence that she ever reported
such a matter. She was essentially invisible insofar as her un-
ion activity is concerned. Indeed, she never testified that any
supervisor or manager said anything to her about that role.
And, the timing of the discharge occurred more than 2 months
after she accepted the post with the Union.
In sum, there is no evidence that her union activity played
any role in the discharge.
The same cannot be said for the concerted activity theory.
On August 13, she convinced seven refrigeration department
employees to join her in signing a statement saying they wanted
their supervisor (Garcia) to be replaced. She took it to Halifax,
who, seeing a fire, tried to defuse the situation by conducting a
short meeting with the signers. During that event he learned
that many of them had signed a blank paper (though in fact,
they all knew what it was for) and his lack of receptivity per-
suaded some of them to disown their participation. Nonethe-
less, he showed it to Garcia, at least once. He undoubtedly told
Garcia that Perez was the person who initiated the petition; in
any event Garcia saw her signature at the top. Furthermore,
Garcia says he saw it shortly before the inventory of October
29–30. He acknowledges that when he saw it, certainly on the
first time, that he was “shocked.”
Certainly by the time of the inventory Garcia was well aware
that Perez had reached the absence limit under the attendance
policy. He also knew, at least by Friday afternoon, if not be-
fore, that she was having babysitting problems. It was a won-
derful opportunity for him to rid himself of someone who had
persuaded his own staff to oppose him on competence grounds.
Her success in that endeavor was both alarming and fresh in his
memory. He did not wish to be victimized by another such
cabal. What better way to get even than by taking advantage of
the situation?
I do not credit his version that she unconditionally commit-
ted to coming to work on Saturday. That is not something she
would have done. Her regular sitter, the children’s grand-
mother, had left the country. That was a fact that Garcia knew,
and knew it had hamstrung Perez’ ability to get the children
covered. That Perez would try to get the neighbor, Mrs. Sim-
mons, to babysit is eminently reasonable and there is no doubt
in my mind that she told Garcia that she would work only if she
could get the sitter.
The situation was perfect for Garcia. If she could get the sit-
ter, Garcia could tell Halifax that he had obtained a fill-in. If
she didn’t appear for work, he could report that she had failed
to show up and claim, credibly, to his superiors that the ab-
sence-prone Perez had missed again. He knew Halifax would
be both furious and acceptant. It was an easy call. Accord-
ingly, I find Garcia conveniently omitted Perez’ conditional
offer to work when reporting the facts to his superiors. He
clearly caused her discharge.
Moreover, there is no doubt about why. She had engaged in
activity protected by Section 7,24 seeking, together with her
coworkers, to have her supervisor replaced. He was the indi-
vidual who had the most direct impact on their working condi-
tions. The concerted nature is clear as is their protected pur-
pose, mutual aid and protection. As the Board observed in
Hoytuck Corp. 285 NLRB 904 fn. 3 (1987), “. . . employee
Cline’s conduct in preparing and circulating an employee peti-
tion that complained of the conduct of the Respondent’s cook
and kitchen supervisor, Whitaker, towards employees and that
further sought his discharge is protected activity here because it
is evident that Whitaker’s conduct had an impact on employee
working conditions.” Same: Polynesian Hospitality Tours, 297
NLRB 228 (1989); Korea News, 297 NLRB 537 (1990); Cat-
erpillar, Inc., 321 NLRB 1178–1179 (1996) (vacated as moot,
1998); Epilepsy Foundation of Northeast Ohio, 331 NLRB 676
(2000); and FiveCAP, Inc., 331 NLRB 1165 (2000).
I therefore find that Respondent, acting through Garcia, dis-
charged Perez because she had engaged in the concerted pro-
tected activity of seeking to have him replaced.
D. The Alleged Unilateral Changes
Paragraph 7(a) of the complaint alleges that in September
1999 on dates better known to Respondent than to the director,
Respondent, “unilaterally increased its production requirements
for the [bargaining] unit.” The complaint essentially asserts
that Respondent has increased what the General Counsel now
calls “production quotas” since the issuance of the certification
of representative to the Union in August. Unilateral changes of
this sort, occurring at a time when a labor organization has
become the employees’ exclusive collective-bargaining agent,
constitute a refusal to bargain and are barred by Section 8(a)(5)
since they affect employee working conditions, a mandatory
bargaining subject. See generally NLRB v. Katz, 369 U.S. 736
(1962).
The principal problem with the word “requirements” or its
near-synonym “quota” is that the General Counsel’s definition
doesn’t really match what Respondent does. There is no indi-
vidual requirement or quota, although there is a monthly plan
for each department or work cell. That target may or may not
be reached during the month. Furthermore, the target takes into
account several factors, including the number of workdays in
the month, the normal number of employees in that work area
devoted to the product, and the normal time it takes for a profi-
cient employee to complete a unit of work.
This lack of understanding has caused the General Counsel
some difficulty in establishing a baseline to determine what

24 Sec. 7 of the Act states in pertinent part: “Employees shall have
the right to engage in . . . concerted activities for the purpose of . . .
mutual aid or protection, and shall also have the right to refrain from
any or all such activities . . . .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD218
changes, if any, have occurred beginning in September con-
cerning the production requirements. Respondent contends that
no changes were made whatsoever, while the General Counsel
points to some numbers comparing the August plans with those
made for September.
The document on which both rely is the monthly manufac-
turing report, in evidence as General Counsel’s Exhibit 19. This
document consists of one page for each month of 1999. It is
actually created after the month is over, but it does set forth the
number of units planned for that period. It tracks production
for about 19 departments as well as cost information for 10
others. The document is not instantly understood as it contains
a great deal of information. In most respects, it is a tool for
management to determine the current state of affairs. It does
not track any particular employee (unless there is a one person
department) nor does it define a unit of work as that varies from
department to department. Furthermore, if a department is
subdivided into different tasks, the document does not differen-
tiate one task from another. An easy example is the plate chill-
ing department which normally has two employees, each of
whom did something different. Vazquez assembled the frame
and sides while Perez installed the compressor.
In addition to the above relatively stable factors, there is a
question of sales success, i.e., the number of orders needed to
be filled. Obviously, the number varies from month to month
and even if there is a way to forecast the number of orders, it is
problematical at best. Moreover, in some months certain prod-
ucts are in higher demand than others. That difference might
entail adding or subtracting employees or man-hours from each
department as individuals get moved about the plant to fill in as
needed.
Respondent has sought to smooth out this landscape by mak-
ing an educated guess each month to determine what would be
expected of each department. That number is the “planned
unit” column in the “planned capacity” section of the report. It
is the closest item of evidence which approximates “require-
ments” or “quotas.” A review of the monthly reports shows a
range of numbers for each department. I have examined for the
purpose of this decision, the major departments and have de-
termined the range for the 8 months ending on August 31 and
for the 4 months beginning September 1. As might be ex-
pected, planned output and actual output are often different.
The exhibit does show actual output, but those figures are not
relevant to the issues presented and are omitted here.
The chart below shows the pre and postcertification planned
unit numbers. The final number in the first 8 months column is
for August; the initial number in the last 4 months column is for
September. It is true, as the General Counsel notes, that a com-
parison of the August and September planned units shows an
increase for September.25 On the other hand, neither the Sep-
tember numbers nor those found in the succeeding 3 months are
significantly different from those of the first 8 months. The
range appears to be the same throughout the year. Indeed, the

25 General Counsel’s chart on p. 16 of its brief is most misleading as
it omits the first 7 months of the year. It cannot be argued in good faith
that August figures alone establish the normal range of expected pro-
duction.
only numbers in the last 4-month column which is outside the
range established in the first 8 months is September’s 71 found
in Plate Chiller and the 252 found in Sidemount Assembly for
November. Neither of those seems particularly remarkable in
the overview.26
Planned Units
first 8 months
Planned Units
last 4 months
Backmount Assembly 500, 500, 650,
440, 440, 570,
380, 360
530, 400, 252,
420
Sidemount Assembly 192, 194, 248,
200, 200, 250,
190, 180
250, 200, 252,
210
HFT Assembly 204, 209, 223,
140, 140, 185,
57, 90
136, 100, 242,
420
BC/DC Assembly 86, 112, 140,
115, 115, 143,
105, 99
132, 110, 99,
116
Waterstation Assem-
bly
160, 160, 200,
160, 160, 200,
152, 144
192, 160, 144,
168
Beer Cooler 86, 112, 140,
115, 115, 143,
105, 99
132, 110, 99,
116
Reach-In Assembly 220, 220. 275,
240, 210, 260,
152, 144
200, 160, 144,
168
BM Refrigeration 220, 500, 625,
500, 500, 625,
380, 360
525, 400, 252,
420
SM Refrigeration 192, 194, 248,
200, 200, 250,
190, 180
250, 200, 180,
210
RI Refrig 220, 220, 275,
240, 210, 260,
152, 144
200, 160, 144,
168
Tops 778, 806, 1038,
775, 755, 963,
675, 639
912, 710, 531,
746
Plate Chiller 52, 54, 68, 54,
54, 68, 57, 54
71, 60, 54, 63
Virtually all of the postcertification plans are within the pre-
certification ranges. Since the evidence establishing a signifi-
cant baseline is not very strong, and since there is really no
evidence of any significant departure from the ill-defined one
which can be discerned, I am unable to conclude that the Gen-
eral Counsel has established that any change has occurred,
much less a change of the magnitude cognizable by the Katz
rule. More specifically, see Rust Craft Broadcasting of New
York, 225 NLRB 327 (1976). Accordingly, paragraph 7(a) of
the complaint will be dismissed.

26 Dough roller assembly has been omitted, being a one-person de-
partment, and Doors has been omitted as, according to Halifax, those
entries on the document appear to contain errors.
RANDALL MFG. OF ARIZONA 219
REMEDY
Respondent having discriminatorily discharged Perez will be
ordered to offer her immediate reinstatement and make her
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of her discharge to the date of a
proper offer of reinstatement, less any net interim 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). Furthermore, Respondent shall be re-
quired to expunge from Perez’ personnel file any reference to
her illegal discharge. Sterling Sugars, 261 NLRB 472 (1982).
Finally, it shall be directed to post a notice to employees advis-
ing them of their rights and describing the steps it will take to
remedy the unfair labor practice which has been found.
Based on the foregoing findings of fact, legal analysis, and
the record as a whole I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in
an industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Sheet Metal Workers’ International Association, Local
No. 359, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. On November 1, 1999, Respondent violated Section
8(a)(1) of the Act when it discharged its employee Luz del
Carmen Perez.
4. The allegations set forth in paragraphs 9(b) and (c) of the
complaint are barred by Section 10(b) of the Act.
5. The General Counsel has failed to prove any other allega-
tion of the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended27
ORDER
The Respondent, Randell Manufacturing of Arizona, Inc.,
Tucson, Arizona, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Discharging employees who engage in activity for their
mutual aid and protection, such as joining with other employees
to ask that their supervisor be replaced.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(a) Within 14 days from the date of this Order, offer Luz del
Carmen Perez full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Luz del Carmen Perez whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to Perez’ unlawful discharge, and within
3 days thereafter notify her in writing that this has been done
and that the discharge will not be used against her in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its
manufacturing plant in Tucson, Arizona, copies of the attached
notice marked “Appendix.”28 Copies of the notice, on forms
provided by the Regional Director for Region 28 after being
signed by Respondent’s authorized representative, shall be
posted (in both English and Spanish) by Respondent immedi-
ately on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, Respondent has gone out of
business or closed the facility involved in these proceedings, it
shall duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees employed
by it at any time since November 1, 1999.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.

28 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”