Sackett's Welding

National Labor Relations Board - Board Decisions

Dec 19, 1973

207 N.L.R.B. 1030 (N.L.R.B. 1973)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sackett's Welding and Van Storage Drivers, Packers,
Warehousemen , & Helpers Local 389,-International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America. Cases
21-CA-11325 and 21-CA-11525
December 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 5, 1973, Administrative Law Judge Irving
Rogosin issued the attached Decision' in this pro-
ceeding. Thereafter, -the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Deeision'in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein:
We agree with the General Counsel that Respon-
dent's conduct in photographing several of its
employees and the union representative while' they
were picketing Respondent's truck at a construction
site violated Section 8(a)(1) of the Act. We donot
agree with the Administrative Law Judge's conclu-
sion that the photographing probably "was taken to
secure evidence of any possible illegal secondary
picketing activity, rather than to intimidate the
picketing employees ...." Respondent does' not
claim that 'the situs picketing was unlawful. Absent
evidence of illegal conduct -at the picket site, the
Respondent could only have intended to take the
pictures for some other reason, and, as the Board
said in Tennessee Packers, Inc., 124 NLRB 1117, such
conduct necessarily tends to interfere with, restrain,
and coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act, in violation of
Section 8(a)(1) of the Act.'
As to the incident involving Dotson where he
threatened two of the employees with a pistol while
they were on the picket line, the surrounding
circumstances clearly demonstrate that Dotson was
attempting to intimidate Respondent's employees
while they were engaged in lawful picketing. Absent
any evidence that the picketers had damaged
Dotson's car as he alleges, we must assume that
Dotson had other reasons for taking such deliberate
actions . At the same time, all of the picketers were
faced with a very simple set of facts; they had not
done any damage to Dotson's car; there was no
visible evidence that Dotson's car had been .dam-
aged ; Dotson threatened two of them with a gun
within the view of several of the other picketers, who
may or may not have heard the remark about the
car; and Dotson was one of Respondent's supervi-
sors. In the light of these facts, and absent any public
denouncement or repudiation, of Dotson's conduct
by Respondent's officials, 'Dotson's conduct clearly
was- such as to interfere with; restrain, and coerce
Respondent 's employees while they were engaged in
activity protected by Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.2
The record in this case also clearly shows a course
of conduct on the part of Respondent's officials that
was clearly designed to ' destroy 'the employees'
organizational efforts. As established by the record
and found by the Administrative Law Judge,
Respondent initiated its, drive. against its employees',
organizational activities,, first, 'following earlier or-
ganizational meetings , by interrogating its employees
with regard to their union activities and threatening
the employees with loss of work and plant closing,
and then, on October 16, 1972, by discharging two
employees, one of whom was very active in the
organizational drive. The next day, during the
morning break while the employees were considering
protesting the discharges, Respondent's supervisor
threatened the employees that if they did not
immediately ,go back to work they would be
discharged. After several of the employees estab-
lished the picket line to protest the discharges,
Respondent's supervisors' on various occasions again
threatened them that they would lose their jobs, that
they would never get back into the plant, and that
any other employees who joined them would lose
their jobs also. Following the start of the strike,
Respondent's supervisors also made individual offers
to various employees that they could have their jobs
back if they abandoned the Union, while at the same
time telling and emphasizing to other picketing
employees that they would never get their jobs back.
Then, when the Union offered to abandon the strike,
Respondent refused to reinstate any of the strikers
even though, while there were approximately nine
employees engaged in the strike, during the 2 weeks
following the offer to return to work Respondent's
employees then working worked a total of 217 and
253 hours overtime, clearly evidencing the availabili-
ty of work. Additionally, Respondent's officials
frequently dangled the hope of reinstatement in front
1 Chairman Miller does not join in this finding , and instead agrees with would adopt the recommendations of the Administrative Law Judge below
the Administrative Law Judge's recommendation as to this issue. for the reasons set forth in his Decision.
2 Chairman Miller also disagrees with his colleagues on this finding and
207 NLRB No. 155
SACKETT'S WELDING 1031
of several of the employees, only thereafter to crush
such hopes by telling the employees that because of
their union activities they would not be rehired.
Because of the extent and pervasiveness of Respon-
dent's unlawful conduct, we agree with the General
Counsel that merely relying on the Respondent's lack
of a good-faith doubt as to the majority status of the
Union does not place this case in its proper
perspective. The facts of this case show that this
Employer immediately reacted to its employees'
organizational efforts by threatening dire economic
consequences and by discharging the leading union
adherent. Thereafter, this Employer continued its
campaign to establish in the minds of its employees
that it would not, now or in the future, tolerate
employee organizational activities. This Employer
has subjected those of its employees who elected to
engage in organizational activities with abuse,
indignities, threats, intimidation, substantial econom-
ic loss, and threats of continued economic losses and
it has, by the notoriety of its actions, made it clear to
those employees who did not engage in the strike that
the same results would be visited on them if they
joined-those already on _the picket line. In view of
these, circumstances, it is difficult to imagine that the
traditional cease-and-desist remedies would remove
the impression left in the minds of these employees
or rectify the damage done to the statutory rights of
these employees. Accordingly, and for the reasons
here stated, we adopt the Administrative Law
Judge's recommendation that Respondent be or-
dered to bargain with the Union upon request and,
further, we order that if an understanding is reached
Respondent .is to embody such understanding in a
signed agreement .3
As we have found certain additional conduct of the
Respondent to be violative of Section 8(a)(1) of the
Act, and as we agree with the General Counsel that
certain other conclusions of law were inadvertently
omitted from the Administrative Law Judge's Con-
clusions of Law, we shall make new Conclusions of
Law and modify the Order accordingly.4
CONCLUSIONS OF LAW
1. Sackett's Welding, Respondent herein, is, and
at all times material herein has been, 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. Van Storage Drivers, Packers, Warehousemen
& Helpers Local 389, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, the Union herein, is, and at all times
material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging Sotero Lopez and Jorge Banue-
los, on October 16, 1972, and thereafter failing and
refusing to reinstate them because of -their protected
union activities, thereby discriminating in regard to.
their hire and tenure of employment, discouraging
membership in a labor organization,, and interfering
with, restraining, and coercing employees in the
exercise of rights guaranteed in -Section 7 of the Act,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
4. The strike which began on October 17, 1972,
was at all times an unfair labor practice strike.
5. By discriminating in regard to the hire and
tenure of employment of the employees, whose
names are set forth in the Appendix annexed hereto,
because of their protected union activities, and in
order to discourage membership in a labor organiza-
tion, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
6. All production and maintenance employees
employed by Respondent at its El Monte, California,
facility, excluding all other employees, office clerical
employees, professional employees, guards, and
supervisors as defined in the Act, constitute, and at
all times material herein have constituted, a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
7. Van Storage Drivers, Packers, Warehousemen
& Helpers Local 389, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, was, on October, 17, 1972, and at all times
material thereafter has been, the exclusive represent-
ative of all the employees in the aforesaid appropri-
ate unit for the purposes of collective bargaining
within the meaning of Section 9(a) , of the Act.
8. By refusing, on October 17, 1972, and at all
times thereafter to bargain collectively with Van
Storage Drivers, Packers, Warehousemen & Helpers
Local 389, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen ,& Helpers of America,
as the exclusive representative of Respondent's
employees in the aforesaid appropriate unit, Respon-
dent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
3 N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). See also 4 In view of the record showing that from2O-25 percent of Respondent's
Skaggs Drug Centers, Inc. v. N L R.B., 84 LRRM 2384 (C.A. 9, 1973). For employees' basic language is Spanish and that interpreters are needed for in-
the reasons stated in his separate concurrence in United Packing Company of shop communications for these employees, we shall order that the Notice to
Iowa, Inc., 187 NLRB 878, Chairman Miller predicates this remedy solely Employees be printed and posted both in Spanish and English
on the extensive 8(aXl) and (3) violations found.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. By interrogating employees regarding their
union activities, by threatening employees with loss
of jobs and other benefits including plant closure, by
unlawfully photographing employees engaged in
concerted activities, and by promising employees
benefits if they abandon the Union, thereby interfer-
ing with, restraining, and coercing its employees in
the exercise of their rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
10. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National- Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
Sackett's Welding, Los Angeles, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified below:
1. Delete the period and insert the following
language at the end of the sentence in paragraph 1(c)
of the recommended Order: '
"and engaging in surveillance or creating the
impression of engaging in surveillance of their
union activities."
2. Insert the following language at the end of the
sentence, immediately after the -words "in the
appropriate unit described above," in paragraph 2(c)
of the recommended Order:
"and, if an understanding is reached, embody
such understanding in a signed agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that copies of the notice to
employees herein shall be printed in both Spanish
and English and after being signed by the appropri-
ate official posted for the required posting periods in
both Spanish and English.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR -RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Van
Storage Drivers, Packers, Warehousemen &
Helpers Local 389, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, or any other labor organization,
by discriminating in regard to the hire or tenure
or terms and- conditions of employment of our
employees because of their union affiliation or
other protected concerted activities , except to the
extent authorized by the proviso to Section 8(a)(3)
of the Act, as amended.
WE WILL NOT refuse to bargain collectively
with the above-named Union as the exclusive
representative of our employees in the appropri-
ate unit described below.
WE WILL NOT interrogate any of our employees
with regard to their union membership, affilia-
tion, or sentiments , threaten them with discharge
or other reprisals for engaging in union activities,
promise them benefits to renounce their union
affiliation , or engage in surveillance or create the
impression of surveillance of our employees'
union activities.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the right to
self-organization , to form labor organizations, to
join or assist the above-named Union, or any
other labor organization , to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
mutual aid or protection , or to refrain from any
and all such activities , except to the extent that
said right may be affected by an agreement
requiring membership in a' labor organization, as
provided in the proviso to Section 8(a)(3) of the
Act, as amended.
WE WILL offer Sotero Lopez and Jorge Banue-
los immediate and full reinstatement to their
former positions or, if those positions are no
longer available, to substantially equivalent posi-
tions, without prejudice to their seniority and
other rights and privileges , and make each of
them whole for any loss of earnings he may have
suffered by reason of the discrimination against
him.
WE WILL offer the employees whose names are
set forth below, and any other employees who
went on strike on October 17, 1972, and have
made unconditional application for, and have not
been offered , reinstatement, immediate and full
reinstatement to their former positions or, if those
positions are no longer available, to substantially
equivalent positions , dismissing, if necessary, any
employees who were hired to replace said
employees subsequent to October 17, 1972,
without prejudice to their seniority and other
rights and privileges , and make each of said
employees whole for any loss of earnings he may
have suffered by reason of said discrimination
against him.
SACKETT'S WELDING 1033
WE WILL bargain collectively, upon request,
with the above-named Union as the exclusive
representative of all our employees in the bargain-
ing unit described below with respect to rates of
pay, hours of employment, or other conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The appropriate bargaining unit is:
All production and maintenance employees
employed by us at our El Monte, California,
facility; excluding all other employees, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
The employees referred to above are:
Gilberto Alvarado Trinidad Orozco
Miguel Arona Zapian Felix Rocha
Martin Calderon Jose Ruiz
Heriberto Fierro Jose Santana
Salvador Medina Perez
All our employees are free to become and remain,
or refrain from becoming or remaining, members of
the above-named labor organization or any other
labor organization.
SACKETT'S WELDING
(Employer)
Dated By
(Representative) (Title)
reinstate them, because of their union activities; (3) since
about October 17, 1972, has refused to bargain collectively
with the Union as exclusive representative of its employees
in an appropriate unit, despite the Union's majority status;
(4) since on or about November 1, 1972, has failed and
refused to reinstate unit employees,' who concertedly
ceased work and engaged in a strike, on or about October
17, 1972, which was caused or prolonged by Respondent's
unfair labor practices, notwithstanding their unconditional
application for reinstatement; and (5) by all the foregoing
conduct, has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) and Section 2(6)
and (7) of the Act.2
Respondent's answer, dated March 8, 1973, on the
letterhead of Respondent's representative and signed by
him,3 admits the procedural and jurisdictional allegations
of the complaint; admits that Antonio Guervara and
Harold R. Dotson were leadmen, but denies that they were
acting on behalf of Respondent; and denies the substantive
allegations of the complaint. Further answering, Respon-
dent alleges that Jorge Banuelos, one of the alleged
discriminatees , engaged in misconduct, which rendered
him ineligible for employment.
Hearing on the complaint was held before me from
March 13 to March 16, 1972, both inclusive, at Los
Angeles, California. All parties were represented by
counsel, were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce oral
and documentary evidence relevant and material, to the
issues, to argue orally, and to file briefs and proposed
findings of fact and conclusions of law. The parties
declined the opportunity to argue orally, reserving the right
to file briefs. The General Counsel's unopposed motion to
conform the pleadings to the proof was allowed. Respon-
dent, as well as the General Counsel, moved to strike the
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5254.
DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN, Administrative Law Judge: The
consolidated complaint, hereinafter referred to as the
complaint, issued March 1, 1973, alleges that Respondent
(1) on various dates in October and November 1972,
through named supervisors and agents, engaged in speci-
fied acts of interference, restraint, and coercion; (2) on
about October 16, 1972, laid off or discharged Sotero
Lopez and Jorge Banuelos, and thereafter refused to
1 Including
Gilberto Alvarado Trinidad Orozco
*Miguel Arona Zapian Felix Rocha
Martin Calderon Jose Ruiz
Heriberto Fierro Jose Santana
Salvador Medina Perez
* The full names of these employees as disclosed by the record.
2 Designations herein are as follows : The General Counsel, unless
otherwise noted or required by the context, his representatives at the
hearing (Bruce Anticoum appearing for the limited purpose of examining
one witness); Sackett's Welding, Respondent, the Company or the
Employer ; Van Storage Drivers , Packers, Warehousemen & Helpers Local
389, International Brotherhood of Teamsters, Warehousemen & Helpers of
America, the Union or the Charging Party ; the National Labor Relations
Act, as amended (61 Stat. 136, 73 Stat. 519 , 29 U.S.C . § 151, et seq ), the
Act; the National Labor Relations Board, the Board. The original charge in
Case 21-CA-11325 was filed and served on October 18, 1972, the first
amended charge, on November 3, 1972; the second amended charge, on
December 14, 1972. The charge in Case 21 -CA-11525 was filed and served
on February 6, 1973. Unless otherwise stated , all events occurred m 1972.
3 Although not in compliance with the Board's Rules and Regulations,
Sec. 102.21 , providing in pertinent part, "A party who is not represented by
an attorney shall sign his answer and state his address ," counsel for the
General Counsel took no action to require compliance with the rule until
the question was raised by me at the hearing. When the General Counsel
then moved to strike the answer , the motion was denied as untimely.
Respondent's representative was advised, however, to file an amended
answer in proper form , and he indicated that he would do so . No such
amended answer has been filed . Although the answer was not stricken, the
Board may wish to consider appropriate action to enforce compliance with
the rule.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of certain witnesses on stated grounds. Insofar
as they have not previously been ruled on, the motions are
hereby denied. The parties were granted until April 10,
1973, to file briefs, which were timely received. The
General Counsel's unopposed motion to correct the
transcript in specified respects is hereby allowed and made
part of the record.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses and the briefs,
which have been carefully considered, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein,
Sackett's Welding, Respondent herein, has been engaged in
the manufacture, sale, and installation of wrought iron
railings and other iron products at its facility in El Monte,
California.
During its past fiscal year, Respondent performed
services and made sales valued in excess of $50,000 to
customers located within the State of California, each of
whom, in turn, either purchases and receives goods and
materials valued in excess of $50,000 annually directly
from suppliers located outside the State of California or
sells and ships goods and products, and performs services
valued in excess of $50,000 annually directly to customers
located outside the State of California.
The complaint further alleges, Respondent's answer
admits, and it is hereby found that, at all times material
herein, Respondent has been an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Van Storage Drivers, Packers, Warehousemen & Helpers
Local 389, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, the Union
herein, is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Organizational Activities
Late in August or early in September 1972, employees
became dissatisfied with the wage scale in the plant. At the
behest of his fellow employees, Sotero Lopez, a welder in
the miscellaneous department, met with Union Organizer
Edward T. Dietrich at the home of Felix Rocha, a fellow
employee, on Friday, October 13, after work. Dietrich was
accompanied by Ben Amador, organizer for the Western
4 Although Respondent maintains that Guervara and Harold Dotson,
hereinafter referred to , are leadmen , not supervisors within the meaning of
the Act, the record establishes, on the basis of President Frank J. Smith's
own testimony, that , among other supervisory duties, Guervara , as foreman
of the rail building department , exercised authority to make effective
recommendations in regard to hiring and discharging of employees, and the
granting of wage increases, and that , after his promotion, Dotson, as
foreman of the miscellaneous department , exercised similar authority,
Conference of Teamsters. Dietrich explained the alterna-
tive methods of obtaining union recognition, including
possible strike action, but stated that this would necessitate
complete solidarity of the employees. Dietrich supplied
Lopez and Rocha with union literature and authorization
cards.
Shortly afterward, during lunch or rest periods, Lopez
notified the employees of a meeting to be held at a local
restaurant. Five or six employees attended this meeting
and signed union authorization cards . Thereafter, Lopez
distributed union cards among employees at the plant,
during lunch or rest periods, and succeeded in recruiting a
total of 17 employees who signed cards. Rocha obtained
signed cards from three others, which he turned over to
Lopez, who delivered all the signed cards to the Union.
On October 16, Respondent discharged Lopez and
Banuelos, under circumstances related hereinafter. On
October 17, Dietrich demanded recognition, orally, as well
as by letter, dated that day, addressed by the Union's firm
of attorneys to Respondent. The same day, the Union,
through its attorneys, filed a representation petition (Case
21-RC-12940). Next day, Respondent, by its labor
management consultant, refused to recognize the Union,
asserting as a reason doubt of the Union's majority. With
the filing of unfair labor practice charges, action on the
petition was "blocked," and the petition was subsequently
withdrawn.
The same day, October 17, a number of the employees
went on strike.
B. Prestrike Interference, Restraint, and Coercion
Soon after the commencement of the organizational
activities, Banuelos , one of the alleged discriminatees, and
other employees, told Antonio (Tony) Guervara that they
intended to bring a union into the plant because Respon-
dent had failed to keep its promise with regard to wage
increases . Guervara warned these employees that if the
Union were successful they "would have no more work."4
Late in August or early September,5 Salvador Medina
Perez, generally referred to in the record as Medina, was
twice interrogated by Guervara, threatened with loss of
employment, and given the impression that Respondent
was maintaining surveillance of the union activities of the
employees. Guervara told Medina that he knew the
employees were attempting to bring a union into the plant,
and questioned him about his attitude. When Medina
remained noncommittal, Guervara warned him that
conditions would be worse with a union in the plant, and
that if the employees went on strike they would not be
permitted to return to work. On the second occasion, the
day after the meeting at Rocha's house, Guervara made
substantially similar remarks, and advised Medina to think
it over because it would do them no good to obtain higher
wages through the Union if they were out of jobs.
including the right responsibly to direct employees in the performance of
their tasks in more than a routine or clerical manner . It is, therefore, found
that, at all times material , Guervara and Dotson were both supervisors
within the meaning of the Act . Neither Guervara nor Dotson , nor, for that
matter, Plant Superintendent Linder, testified.
5 Medina fixed the date as 2 or 3 weeks before September 15, when
Edward "Lucky" Linder became vice president and plant superintendent.
SACKETT'S WELDING 1035
The same day Plant Superintendent Linder approached
Rocha, who was working overtime, and angrily told him
that he was sending him out in the field. Rocha protested
that he did not know how to do field work. Linder then
asked him whether he had gone to see his union
representative. Rocha said that he had no union represent-
ative, and Linder left.
The following Monday morning, October 16 (the day
Lopez and Banuelos were discharged), Linder sent for
Rocha and questioned him about whether he was trying to
bring the Union into the plant. Rocha denied any
knowledge of the Union, but Linder insisted that Rocha
was involved. Rocha asked Linder whether he was certain
his suspicions were well founded. When Rocha asked
Linder whether he intended to discharge him, Linder said
that he would not because he was a good worker, and
promised him better wages and improved working condi-
tions, presumably, if he renounced the Union. Concluding
the conversation, Linder warned that if Rocha succeeded
in bringing in the Union he would be out of a job because
the owner would close the plant.
Soon after September 15, when he was hired as plant
superintendent, Linder called a meeting of the employees,
addressing them in English, while Guervara translated his
remarks into Spanish. Linder introduced himself to the
employees as new plant manager and announced the
appointment of Dotson as foreman in the miscellaneous
department, and "Woody" Middleton as foreman of the
painters and grinders, assisting Guervara, who would
continue to be in charge of the inside shop and rail
department.
Linder promised the employees wage increases, im-
proved working conditions, more work, and additional
overtime, adding that the Company had obtained a
substantial contract, which would provide abundant work
for all.
C. Discrimination in Regard to Hire and Tenure of
Employment
1. Sotero Lopez
Sotero M. Lopez was employed as a welder in the
miscellaneous iron department from June 16 to October
16, 1972, when he was discharged.
Lopez' activities in attempting to procure union repre-
sentation for the employees have been previously detailed.
He enlisted the union organizers, arranged for meetings
with employees, recruited membership, urged employees to
attend meetings with the union representatives, once, with
respect to the October 13 meeting, in Guervara's presence.
He successfully recruited 17 of the 20 employees who
signed authorization cards. Among the employees whom
Lopez had solicited was Dotson, who later became a
supervisor. At about 9 o'clock, on the morning of the day
Linder addressed the employees, Lopez gave Dotson a
union card in Rocha's presence. About 2 hours later,
Dotson told Lopez that he could no longer sign a card
because he was 'to become a foreman. That afternoon
6 According to these figures, sales rose steadily from a total in excess of
$66,000 in September, to more than' $107,000 in December.
7 Lopez had originally been hired on June 16, and later laid off from July
Linder, in fact, announced Dotson's promotion. Next day
Dotson returned the unsigned authorization card to Lopez.
On October 16, 3 days after Lopez' initial meeting with
the union organizer, at about 3:20 p.m., Dotson notified
Lopez that he was wanted in the office. When he arrived
there, Linder told him, "We have to lay you off because
work is slow ; don't call us, we will call you." The regular
pay period covered Thursday to Wednesday, with payday
on Friday. Lopez was terminated on a Monday in the
middle of the pay period.
2. Jorge Banuelos
Jorge Antonio Banuelos was employed as a painter and
grinder from August 13, 1971, to October 16, when he was
discharged. As has already been related, he was one of the
group of employees who had apprised Guervara of their
union interest, and had been threatened by him with loss of
his job. He signed an authorization card on September 28,
and discussed the advantages of a union with fellow
employees during rest periods- Like Lopez, he was
terminated in the middle of a pay period. Guervara
summoned Banuelos to Linder's office, and there told him
that there was no more work for him and that he would
receive his check in the mail.
Respondent's Contentions Regarding the
Terminations
Respondent's contention that both these men were laid
off for lack of work does not withstand scrutiny. Without
taking into account the testimony of these witnesses that
they had plenty of work, the recapitulation of monthly
sales, prepared by Respondent, indicates a substantial
upward trend after September.6 Respondent's records
further reveal that on October 16, the very day these
employees were terminated, 15 employees worked 29 3/4
hours overtime, principally in the welding department. On
October 14, a Saturday, a number of employees, including
Rocha, were required to work overtime.
It will also be recalled that Linder had informed the
employees, on the day he announced his appointment as
superintendent, that the Company had secured a substan-
tial contract, and that there would be abundant work for
all concerned. There was no showing that this contract had
failed to materialize. It should also be noted that in the
latter part of September Respondent instituted a night
crew, which was still in existence at the time of the hearing,
to keep pace with production.
The fact that both Lopez and Banuelos were terminated
the same day, without prior warning, during the middle of
a pay period, in contrast to Respondent's previous policy
of laying off employees at the end of a pay period, is
further manifestation of Respondent's discriminatory
motive. Furthermore, in contrast to its practice of
following seniority in making layoffs, Respondent disre-
garded that policy in their case.7
Moreover, despite its claim that Lopez and Banuelos
were laid off for lack of work, neither of these employees
12 to August 3. There is no evidence as to whether Lopez retained his
seniority during the layoff. In any event , assuming his seniority was
interrupted, and dated from August 3, Gilberto Alvarado, who worked in
(Continued)
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was recalled, when Respondent later hired a substantial
number of new employees, including strike replacements,
in the same job classifications, at substantial overtime.8
Respondent further contends, with regard to Banuelos,
that he was laid off, in part, for misconduct in leaving his
work station to talk to other employees. Apart from his
convincing denial, Respondent offered no explanation for
the failure to mention this to him at the time of his layoff.
Nor was he ever previously warned that any instances of
such alleged misconduct had been noted in his personnel
file. The appearance of the notations themselves, handwrit-
ten on different nondescript sheets of paper dated
September 21, 28, October 6, 12, and, finally, October 16,
the date of the layoff, spanning the critical period of the
union organizational campaign, suggests that Respondent
was concerned that Banuelos was proselytizing among the
employees, and that Respondent was laying a predicate for
his eventual termination.
It is , therefore, found, on the basis of the foregoing
findings and the timing of the action, that Respondent laid
off or terminated Sotero Lopez and Jorge Banuelos, and
thereafter failed and refused to reinstate them, because of
their union and protected concerted activities to discour-
age membership in a labor organization, in violation of
Section 8(a)(3) and (1) of the Act .9
D. The Strike
1. The events precipitating the strike
Soon after the layoffs , Lopez notified Union Organizer
Dietrich of the action taken by Respondent, as well as of
the interrogation of employees concerning their union
activities . Lopez pressed for an immediate strike . Dietrich
said that he would meet him at the plant next morning and,
in the meantime , directed the union attorneys to prepare
and file a representation petition , as well as an unfair labor
practice charge on behalf of Lopez and Banuelos . This was
done, and the attorneys drafted the letter demanding
recognition as well.
That morning, October 17, Union Representatives
Dietrich and Amador, accompanied by Sten Thoradson,
vice president and business representative of the Union,
met Lopez and Banuelos in front of the plant . At about 9
o'clock , the union representatives went into the plant and
asked for the owner or person in charge . They were met by
Stanley Strasser , corporate secretary and office manager,
who handed them President Smith 's business card, leading
the union representatives to conclude that they were
talking to Smith . Dietrich told Strasser that the Union
represented a majority of Respondent 's employees, and,
handing him the letter which had been prepared by the
union attorneys, demanded recognition. Strasser said that
he would have to consult counsel, and, returning shortly
afterward, told Dietrich that the company attorney
(referring to Norman Jones, Respondent's labor manage-
ment consultant), would arrive at about 11 o'clock to talk
to Dietrich. Dietrich renewed his demand for recognition,
and proposed a card check as a means of establishing
majority. Strasser declined. Neither Jones nor any attor-
ney, nor any other person purporting to act on behalf of
Respondent, arrived to meet with the union representatives
that day. Instead, Jones wrote the union attorneys the
following day, acknowledging the attorneys' demand and
refusing recognition, assertedly on the ground of doubt of
the Union's majority.
As the union representatives were leaving the plant,
employees on their morning break congregated at a
catering truck outside the plant. The break, which usually
begins at 9 or 9:30 a.m., lasts 10 minutes. The union
representatives, as well as Lopez, Banuelos, and Rocha,
spoke to the group of employees (Amador addressing
them in Spanish), urging them to strike in support of Lopez
and Banuelos, and reminding them that they might become
the victims of similar treatment . The union representatives
assured the employees of their right to self-organization,
reported that the Company had refused to recognize the
Union as their bargaining agent, and urged them to unite
to improve their working conditions and obtain better
treatment. Mention was also made that the Union was
filing unfair labor practice charges.
The employees agreed to strike to protest Respondent's
conduct in terminating the employment of Lopez and
Banuelos, as well as Respondent's other conduct, and
Dietrich went to his car to procure picket signs. The
employees, meanwhile, were continuing with their coffee-
break, of which 5 or 6 minutes still remained. Foreman
Guervara, who had been present and had observed what
had transpired, shouted orders to the employees to return
to work. Some of the employees walked back into the
plant. When others showed no inclination to do so,
Guervara angrily threatened that any employees who
remained out on strike would lose their jobs and would
never be rehired. Passing back and forth between the plant
and the area outside, Guervara continued shouting the
same threats at employees inside as well as outside. In
addition to Lopez and Banuelos , nine employees stayed
out on strike that day.10 Dietrich distributed picket signs
bearing the legend, "Sackett's Welding-On Strike-Un-
fair-Teamsters Local 389."
When Guervara finally went inside the plant, he
reiterated to those employees who were still undecided
about joining the strike that if they did not go back to work
the same job classification , and had been hired on August 10, was not laid
off. Similarly, assuming Banuelos' seniority dated from August 2, two
employees, Trinidad Orozco and Martin Calderon , employed in the same
job classifications , were hired on September 5 and October 11, respectively,
yet neither was laid off on October 16.
8 According to a stipulation of the parties, the total number of hours of
overtime worked by welders , painters, and grinders , for the weeks
immediately following October 16 were:
Week No, of
Ending Employees Hours
Oct. 25 13 151-1/4
Nov. 1 15 268-1/2
Nov. 8 19 21'-3/4
Nov. 15 16 253-1/4
Further figures for subsequent pay periods have been omitted. The
sampling is sufficient for the purposes of the conclusions reached.
9 Although Respondent attempted to establish , through cross-examina-
tion of Banuelos, that when he returned to the plant after the strike ended
he was questioned by police about his possible involvement in placing nails
and tacks in the vicinity of the plant premises , Banuelos denied any
participation in such conduct, and was not charged with any offense by the
police. No affirmative evidence was offered regarding this incident and, to
the extent Respondent relies thereon, the evidence offered affords no
justification for denying Banuelos reinstatement.
ro Those named in the complaint. See fn. 1.
SACKETT'S WELDING
they would be discharged . Meanwhile, Rocha entered the
plant, and attempted to keep those employees who had
signed union cards from breaking ranks. The men
expressed the fear that they would lose their jobs.
According to Rocha 's undenied testimony, he observed
Guervara and Linder apparently polling employees as to
whether they intended to remain on the job or support the
strike . Testifying that he saw both men talking to
employees and then making notes, Rocha said that he
heard Guervara question an employee, in Linder's pres-
ence , as to - whether he intended to -remain at work or go
outside, and saw Guervara make a notation. When
Guervara finally asked Rocha whether he intended to go to
work or support the strike, Rocha told him that he was
already on strike , and Guervara ordered him out of the
plant.
Medina, although a union supporter who had signed a
card, faltered when Guervara threatened striking employ-
ees with loss of jobs , and went back- into the plant. There
he heard Guervara repeat his threats, at the same time
promising those who stayed at work and refused to support
the strike continued employment , improved working
conditions, and wage increases . When some of the
employees who had returned to work began taunting and
ridiculing the strikers , Medina left the plant at the
lunchbreak and joined the strikers.
The strike lasted from October 17 until November 1,
when the Union, by telegram and certified mail, made an
unconditional offer on behalf of all striking employees to
return to work . On November 2, Jones , on behalf of
Respondent, notified the Union that all the striking
employees had been replaced and that there was no further
work for them . The letter offered to place any former
striking employees; who had not accepted other employ-
ment, on a preferential hiring list if they would make
application in person.
2. Further interference , restraint, and coercion
during the strike
A day or two after the strike began, Superintendent
Linder approached Rocha on the picket line, and, in the
presence of Lopez, employee Jose Ruiz, and Union
Organizer Dietrich , asked Rocha sarcastically how much
he had earned on the picket line the day before. Rocha
acknowledged that he had not fared well in that regard.
Dietrich interjected that Linder need not be concerned,
that the striking employees would be taken care of. Linder
scoffingly asked Dietrich if he would feed and support the
strikers' families. Dietrich assured the strikers that they
would be working again . Thereupon, Linder exclaimed, in
the presence of the strikers , that he would guarantee that
they would never work for Respondent again and offered
to wager Dietrich "the biggest steak dinner in town" as
evidence of his conviction.
During this interval , Linder, in the presence of Dietrich
and Lopez, solicited Rocha to return to work, and offered
him a wage increase if he would abandon the strike and the
"union nonsense." Rocha expressed his solidarity with his
fellow strikers, but said that he would think it over.
Next day Rocha and Ruiz accompanied Dietrich as they
picketed- Respondent's truck at a construction project at
1037
Mission Viejo. Linder arrived on the scene and, on
previous instructions from President Smith , took photo-
graphs of the pickets . The General Counsel contends that
Linder's conduct in photographing the incident constituted
interference , restraint, and coercion.
Although Linder gave the pickets no reason for taking
the photographs , according to Smith, Respondent had
received complaints 'from some of its customers , construc-
tion firms-at three different jobsites, of picketing activities
by Respondent's employees . The project superintendent at
the Mission Viejo jobsite had expressed concern that the
building trades unions might direct its members to support
the strike at Respondent's plant. After consulting Jones,
the Company's labor adviser, Smith directed Linder to take
the photographs.
It is probable that this action was taken to ' secure
evidence of any possible illegal secondary picketing
activity rather than to intimidate the picketing employees,
and the - other strikers or employees . That the 'pickets,
particularly Dietrich, did not regard this conduct as
coercive or intimidatory, or even seriously, is apparent
from his testimony that, at Linder's request , he mounted
Respondent 's truck and posed so as to display the picket
sign.
In another incident, Linder accused Dietrich of having
prevented a truckdriver of one'of the Company's suppliers
from making a delivery at the plant. Dietrich vehemently
denied this and, according to him , confirmed through the
driver making the delivery the next day that the driver who
was to have made the delivery the day before was a new
man who had missed that stop.
In any case, it is found that Respondent did not, by
taking photographs of the picketing of Respondent's truck
at the construction jobsite, interfere with, restrain, or
coerce employees in the exercise of their self-organizational
rights.
Another, and undoubtedly more serious, incident oc-
curred near the picket line during the second week of the
strike. Rocha and Lopez were picketing on the sidewalk
near a fire hydrant where Dotson's car was parked.
Suddenly, Dotson rushed out of the plant, pulled a weapon
out of the trunk of his car , and brandished it at the two
men. Shouting that the gun was loaded and that he
intended to use it, Dotson warned that they had better take
him seriously.
This outburst apparently resulted from the fact that
Dotson had found some scratches on his car , which he
accused the pickets of having caused . Dotson went back
into the plant but came out soon afterward and concealed
the gun. The union representatives called the police. When
they arrived , both Dotson and Linder denied the existence
of a gun, and attempted to persuade the police that the
pickets had mistaken a wrench from Dotson's ' car for a
gun. Lopez , however, who had seen Dotson hide the gun,
directed the police to the place where it had been
concealed . The weapon was found , and the police officer
unloaded and confiscated the gun. Soon afterward, a
plainclothes officer arrived and entered the plant with
Dotson and Linder . There is no showing what further
action, if any, was taken.
Without minimizing the seriousness of this incident, or
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condoning Dotson's conduct, it is- evident that it was
prompted,:not by a purpose to intimidate the pickets or to
interfere with , restrain, or coerce them in their organiza-
tional activity, but out of a belief, however ill founded, that
the pickets had inflicted damage on Dotson's car. While
Dotson's reaction was grossly out of proportion to the
extent of damage he claimed the pickets had done, it
cannot reasonably be -said that the purpose and reasonable
effect of his,conduct was to interfere with the organization-
al rights of the striking employees. Nor was there any
evidence that the incident had any inhibitory effect on
their picketing activities. It is obvious that Dotson's
conduct, however reprehensible, was directed not at, the
union activities of the striking employees, but at the
damage Dotson claimed the pickets had done to his car.
That this conduct may-have entailed a breach of the peace
was a matter of concern for the police officers, to be
redressed by them rather than through resort to the Act.
Moreover, it is evident that, in engaging in the conduct
described, Dotson was acting, not in his official capacity as
a supervisor, but in his personal capacity in what he
regarded as protection of his personal property. The fact
that Linder, in effect, sought to exonerate Dotson of any
unlawful conduct when the police arrived , does not
constitute a sufficient ground for imputing Dotson's
conduct to Respondent as violative of Section 8(a)(1) of
the Act.
3. The unconditional offer to return to work
As has already been noted, on November 1, the Union,
by certified letter and telegram, notified Respondent of the
strikers' unconditional offer to return to work. None has
been reinstated, assertedly because their jobs had been
filled before the offer was'received.
Three strikers, Medina, Ruiz, and Rocha, also made
independent unconditional offers to return. About a week
after the strike began, Medina asked Guervara if he could
return to work, stating that the strike had adversely
affected his physical and mental health. Guervara told him
in no uncertain terms that he could not return because he
had signed with the Union. Medina, who spoke very little
English, went to Dotson and Smith, and asked Guervara to
interpret for him. When Guervara refused, Medina tried to
explain to Smith whathe had previously told Guervara. As
Medina understood him, Smith told him to obtain a
doctor's certificate, indicating that he was in condition to
return to work, and supplied him with a form for the
purpose. During this interview, Linder, who was present,
questioned Medina as to how he was getting along with the
Union. Later, Medina procured the doctor's certificate,
which he brought to Guervara. Guervara told Medina he
could throw the paper in the trash, that there was no work
for him, and, as he left, according to Medina, told him,
"goodbye forever."
Jose Ruiz, another striker, telephoned President Smith
on October 23, and several times afterward, to ask if he
could return to work. Smith told him that there was
nothing he could do for him and that he, Smith, would
have to talk- to his attorney, presumably alluding to Jones.
On the first occasion, Smith also stated that he could do
nothing for - him because • he had "other boys" there, an
apparent reference to the strike replacements. According to
Respondent's own records, however, Timothy Brooks, the
employee who had allegedly replaced Ruiz,- did not start
work until October 25.
Finally, after the strike terminated, Rocha asked his
aunt, Raphaela Verdines, to call Smith in an effort to
regain his job. On November 11, Verdines called Smith
and asked if Rocha could return to work. Smith asked her
if she was aware that Rocha had been on strike. When she
acknowledged that she was, Smith told her that Rocha had
been a good employee, and that he could use him but that
there was nothing he could do until he consulted his
attorney. Two days later, Verdines again called Smith to
find out if he had spoken to his attorney. He acknowledged
that he had, but said he had been advised that there was
still nothing he could do.
On November 14, Rocha went to the plant in person and
asked Smith for his job. Again Smith told Rocha that there
was nothing he could do until he talked to his attorney
because he was uncertain about-the status of the Union.
He then proceeded to question Rocha about what was
happening with the Union, and asked Rocha what the
Union had promised him. Rocha replied that he had not
been promised anything, but that the Union may have
promised the strikers better wages and care for their
families. Smith asked Rocha who he expected would pay
for that. Finally, Smith said that he would let him know
about his job after talking to his attorney.
Later that month, Rocha, accompanied by his aunt,
returned to the plant, still seeking reinstatement. They saw
Smith, and Verdines carried on most of the conversation
for Rocha. Again, she asked whether Smith had talked to
his attorney and whether Rocha could have his job. Again,
Smith asked her whether she realized that Rocha had been
one of the strikers. She acknowledged that she was aware
of this but pleaded that Rocha needed his job. Smith told
her to ask Rocha whether, if he were reinstated, he would
forget about the Union. Smith stated that other employees
whom he had questioned told him that they did not want a
union, and that he had misgivings about rehiring her
nephew. Smith told Verdines to ask Rocha whether he was
prepared to forget about the Union. Verdines translated
Smith's question, and Rocha told her that he was in a
quandary because he had received a letter from the Union,
a remark not further amplified. Smith told Verdines to
leave her telephone number but remained noncommital
about reinstating Rocha.
About Thanksgiving, Smith called Verdines to find out
whether Rocha would be willing to substitute for 1 day for
an employee who was a friend of Rocha's. Verdines was
unable to reach Rocha, who had no telephone. She called
back and told Smith that she had been unable to reach her
nephew. When she finally reached him, a day or two later,
Rocha went to the plant and again asked for his job, but
was again refused. He finally abandoned any expectation
of being rehired.
E. The Refusal To Bargain
1. The appropriate unit
The complaint alleges, Respondent's answer admits, and
SACKETT'S WELDING
it is hereby found that the following constitutes an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by Respondent at its El Monte, California, facility;
excluding all other employees, office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act.
2. Majority representation
As of October 17, 1972, there were 29 employees in the
appropriate unit described above, of whom 20 had signed
authorization cards by that date.1' No issue has been
raised regarding the authenticity of these authorization
cards. In addition, according to a stipulation of the parties,
nine of the employees who signed cards went on strike on
October 17, and remained on strike until the unconditional
offer to return on November 1. Thus, the record establishes
that, since October 17, the Union has represented a
majority of Respondent's employees in an appropriate
unit. As of that date, when the Union demanded
recognition, it offered to establish its majority by a card
check but, after' ostensibly conferring with its labor
consultant, Respondent advised that its representative
would deal with the matter. Next day, the labor consultant,
on behalf of Respondent, refused to recognize the Union,
allegedly because of its unsupported belief that the Union
did not represent a majority.
It is, therefore, found that Respondent did not, on
October 17, 1972, or at any time thereafter, entertain a
good-faith doubt of the Union's majority, and that the
Union has, since October 17, 1972, represented a majority
of Respondent's employees in an appropriate unit for the
purposes of collectivebargaining, and, by virtue of Section
9(a) of the Act, has been, and is now, the exclusive
representative of all the employees in said unit.
3. Refusal to bargain
On the basis of the foregoing , and upon the entire record,
it is further found that, on October 17, 1972, the Union
requested , and since said date has continued to request,
Respondent to recognize and bargain collectively with the
Union as exclusive representative of all the employees in
the appropriate unit described above, and that since said
date, and at all times thereafter, Respondent has refused to
recognize and bargain collectively in good faith with the
Union with respect to rates of pay, wages , hours of
employment, and ' other terms and conditions of employ-
ment of employees in said appropriate unit.
The record adequately establishes that the strike in
which Respondent's employees engaged on October 17 was
caused, in substantial measure if not altogether, by
Respondent's, discriminatory termination of employment
of Lopez and Banuelos . Both were leading proponents in
11 The total of 29 employees in the production and maintenance unit
includes Guervara and Dotson, shown as leadmen, but found herein to have
been supervisors. Neither signed a union card. The 20 employees who
signed cards include Lopez and Banuelos, the discrimmatees. Excluding
Guervara and Dotson as supervisors, but including the two discruninatees,
the Union represented 20 out of a total of 27 employees in the unit. Even
1039
the organizational activities, and the action taken against
them presaged what other union sympathizers could
expect. In their exhortations to the employees to strike in
support of their fellow employees, the union representa-
tives, as well as the employees who had been terminated,
emphasized that there was no telling who might be the next
victims of Respondent's opposition to the self-organiza-
tional rights of the employees. Moreover, the Union had
that very morning apprised the employees of Respondent's
refusal to recognize the Union despite its clear majority,
which it had offered to establish by a card check. It is,
therefore, found that the strike was caused by Respon-
dent's discriminatory "treatment of Lopez and Banuelos
and its refusal to recognize and bargain with the Union, as
well as by the acts of interference, restraint, and coercion,
previously found.
Moreover, Guervara's threats of discharge to employees
who supported the strike, and his warnings that strikers
would never work for Respondent again, buttressed by
Linder's "guarantee" to the same effect and his offer of a
wager with Dietrich, in the presence of the strikers, as
indication of his earnestness, resulted in prolonging the
strike. Even if it be assumed, for argument's sake, that the
strike actually began as an economic strike, an assumption
not warranted by the record, Guervara's threats to the
strikers contemporaneously with the action taken by the
employees would have immediately converted the strike to
an unfair labor practice strike.12
F. The Refusal To Reinstate the Strikers
Since it has been found that the strike in which the
employees engaged was caused and prolonged by Respon-
dent's unfair labor practices, it follows that they would be
entitled to reinstatement, upon their unconditional applica-
tion, without regard to whether their jobs had been filled
prior to the time of their application. It has been found that
the Union made an unconditional application for reinstate-
ment on behalf of all the striking employees on November
1, and that Medina and Ruiz had previously made such
individual offers earlier. Neither they nor any of the other
striking employees were offered reinstatement.
The law is clear that unfair labor practice strikers are
entitled, upon unconditional application, to reinstatement
even if they have been permanently replaced.13 Thus, it is
evident that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act by failing to offer the striking employees
reinstatement upon their unconditional application.
Respondent's defense to the refusal to reinstate the
striking employees that it had replaced them prior to the
unconditional application for reinstatement can, therefore,
be of no avail. Moreover, -it should be noted that
Respondent produced ' no -probative evidence that there
was no work available for them at the time of their
application. Such data as was produced demonstrated that
without counting the cards of Lopez and Banuelos, the Union still
represented 18 out of 27 employees,'a clear majority.
12 N.LR.B. v. International Van Lines, 409 U .S. 48 (1972); Rental
Uniform Service 167 NLRB 190; Astro Electronics, Inc., 188 NLRB 572.
13 Mastro Plastics Corp. et al. v. N.LRB., 350 U.S. 270, 278 (1956).
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its sales were on the increase , but, instead of recalling the
strikers, it utilized increased overtime to meet its require-
ments. Thus, during the week ending November 8, the first
week after the unconditional application for reinstatement,
19 employees worked a total of 217-3/4 hours overtime, a
condition which prevailed, in varying but substantial
degree , as late as December.
Quite apart from the fact that Respondent's replacement
of unfair labor practice strikers prior to their unconditional
application for reinstatement is no defense to its failure to
offer such strikers reinstatement , the record amply estab-
lishes that Respondent's reason for failing to reinstate the
strikers was not based on the fact that it had already hired
replacements. Thus, it will be recalled that Respondent
repeatedly announced that it would never rehire employees
who went on strike. Guervara, who had issued those
threats at the very inception of the strike, later told
Medina, when Medina applied for reinstatement, that he
would not be hired because of his union sympathy. Smith
himself refused to rehire Rocha because of his misgivings
regarding Rocha 's union allegiance.
Furthermore, considering Smith's concession that it
requires 2 to 3 months to train even experienced employees
to perform the relatively skilled work required, it seems
improbable that Respondent would have permanently
replaced experienced employees at a time when its
production required extensive use of overtime with untried
employees unless it were motivated by a purpose to
retaliate against its employees for engaging in union
activity, as it had threatened to do.
It is, therefore, found that, by failing to offer reinstate-
ment to the striking employees, after they had abandoned
the strike and made ,unconditional application for rein-
statement, thereby discriminating in regard to their hire and
tenure of employment, to discourage membership in a
labor organization, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent, described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, it will be recommended that Respon-
dent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that Respondent laid off or discharged
Sotero Lopez and Jorge Banuelos, on October 16, 1972,
and thereafter failed and refused to reinstate them, because
14 N.LR.B. v. Express Publishing Company, 312 U.S. 426 ( 1941);
N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532 (C.A. 4, 1941); May
they had engaged in protected union activity , to discourage
membership in a labor organization , in violation of Section
8(a)(3) and (1) of the Act. It will, therefore, be recommend-
ed that Respondent cease and desist from such unfair labor
practices, and offer said employees immediate and full
reinstatement to their respective former positions or, if
those positions are not available , to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make each of said employees
whole for any loss of pay he may have suffered as a result
of the discrimination against him from the date of the
discrimination to the date of the offer of reinstatement.
It has also been found that Respondent has discriminat-
ed in regard to the hire and tenure of employment of the
employees , whose names are set forth in the Appendix
annexed hereto , and who had gone on strike on October
17, 1972, as a result of Respondent's unfair labor practices,
by refusing to reinstate them after they had unconditional-
ly offered to return to work on November 1, 1972. It will,
therefore, be recommended that Respondent offer the said
employees immediate and full reinstatement to their
former positions or, if those positions are no longer
available, to substantially equivalent positions , dismissing,
if necessary, any employees who were hired to replace said
employees subsequent to October 17, 1972, without
prejudice to their seniority or other rights and privileges,
and make said employees whole for any loss of pay they
may have suffered by reason of the discrimination against
them, by payment to each of them of a sum of money
equal to that which they would normally have earned from
November 1, 1972, the date on which they unconditionally
offered to return to work (in the case of Medina and Ruiz,
who made earlier individual unconditional applications to
return to work , the date shall commence on October 23,
1972, or the actual date of such earliest application) and
were discriminatorily refused reinstatement , to the date of
the offer of reinstatement . Loss of pay in all instances shall
be computed as provided in F. W. Woolworth Company, 90
NLRB 289, and interest on such backpay shall be
computed at 6 percent per annum, in accordance with the
Board's policy in Isis Plumbing & Heating Co., 130 NLRB
716. Respondent shall make available to the Board or its
agents, upon request, all payroll and other records
necessary to facilitate the determination of backpay.
It has further been found that Respondent has refused to
bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit,
despite the Union's majority status . It will, therefore, be
recommended that Respondent bargain collectively with
said Union upon request.
In view of Respondent 's extensive and pervasive unfair
labor practices, manifesting an attitude of opposition to the
purposes of the Act, it will also be recommended, to
protect the rights of employees generally, that Respondent
be required to cease and desist from in any manner
interfering with , restraining, or coercing employees in the
exercise of rights guaranteed in the Act.14
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
Department Stores v. N.LRB., 326 U.S. 376 (1945); Bethlehem Steel
Company v. N.LItB., 120 F .2d 641 (C.A.D.C., 1941).
SACKETT'S WELDING
CONCLUSIONS OF LAW
1. Sackett's Welding, Respondent herein, is, and at all
times material herein has been, 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. Van Storage Drivers, Packers, Warehousemen &
Helpers Local 389, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
the Union herein, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
3. By discharging Sotero Lopez and Jorge Banuelos, on
October 16, 1972, and thereafter failing and refusing to
reinstate them because of their protected union activities,
thereby discriminating in regard to their hire and tenure of
employment, to discourage membership in a labor organi-
zation, and interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. By discriminating in regard to the hire and tenure of
employment of the employees, whose names are set forth
in the Appendix annexed hereto, because of their protected
union activities, to discourage membership in a labor
organization, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. All production and maintenance employees em-
ployed by Respondent at its El Monte, California, facility;
excluding all other employees, office clerical employees,
professional employees, guards, and supervisors as defined
in the Act, constitute, and at all times material herein have
constituted, a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
6. Van Storage Drivers, Packers, Warehousemen &
Helpers Local 389, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
was, on October 17, 1972, and, at all times material
thereafter has been, the exclusive representative of all the
employees in the aforesaid appropriate unit, for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
7. By refusing, on October 17, 1972, and at all times
thereafter, to bargain collectively with Van Storage
Drivers, Packers, Warehousemen & Helpers Local 389,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of Respondent's employees in the aforesaid
appropriate unit, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
8. By interfering with, restraining, and coercing its
employees, in the manner found herein, in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
1041
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices' affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I issue the following
recommended:
ORDER 15
Sackett's Welding, Respondent herein, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Van Storage Drivers,
Packers, Warehousemen & Helpers Local 389, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, or in any other labor organization
of its employees, by discharging or refusing to reinstate any
of its employees, or in any manner discriminating in regard
to the hire or tenure or terms and conditions of employ-
ment of any of its employees because of their union
affiliation or activities.
(b) Refusing to bargain collectively with Van Storage
Drivers, Packers, Warehousemen & Helpers Local 389,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of all its employees in the appropriate unit
above-described.
(c) Interrogating any of its employees with regard to their
union membership or affiliation or sentiments, threatening
them with discharge or other reprisals for engaging in
union activities, or promising them benefits to renounce
their union affiliation.
(d) In any manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
Van Storage Drivers, Packers, Warehousemen & Helpers
Local 389, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other
protected concerted activities for the purposes of collective
bargaining or other mutual aid or protection, as guaran-
teed in Section 7 of the Act, or to refrain from any or all
such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Offer Sotero Lopez and Jorge Banuelos immediate
and full reinstatement to their former positions, or, if those
positions are no longer available, to substantially equiva-
lent positions, without prejudice to their seniority and
other rights and privileges, and make each of them whole
for any loss of earnings he may have suffered by reason of
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discrimination against him in the manner set forth in
the section herein entitled, "The Remedy."
(b) Offer the employees whose names are set forth in the
Appendix annexed hereto, and any other employees who
went on strike on October 17, 1972, who have made
unconditional application for, and have not been offered,
reinstatement , immediate and full reinstatement to their
former positions, or, if those positions are no longer
available, to substantially equivalent positions, dismissing,
if necessary, any employees who were hired to replace said
employees subsequent to October 17, 1972, without
prejudice to their seniority and other rights and privileges
and make each of said employees whole for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him, in the manner set forth in the section
herein entitled, "The Remedy."
(c) Upon request, bargain collectively with Van Storage
Drivers, Packers, Warehousemen & Helpers Local 389,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of all its employees in the appropriate unit
described above.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
16 In the event that the Board 's 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
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amount of backpay
due these employees under the terms of this recommended
Order.
(e) Post at its place of business in El Monte, California,
copies of the attached notice marked "Appendix," in
Spanish and English.16.Copies of this notice on forms to be
furnished by the Regional Director for Region 21, shall,
after being signed by Respondent's duly authorized
representative, be posted by Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered , defaced, or covered by other
material.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply therewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as to all other allegations not specifically found
to have been sustained.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."