Sem i-Alloys, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1982

260 N.L.R.B. 992 (N.L.R.B. 1982)

9I)FCISI()NS OF NATIONAL LABOR RELATIONS BOARD
Semi-Alloys, Inc. and Local 1783, International
Brotherhood of Electrical Workers, AFL-CIO
and Jorge Colon. Cases 2-CA-16191, 2-CA-
16192, 2-CA-16986, 2-RC-18196, and 2-CA-
16913
March 17, 1982
DECISION AND ORDER
BY MIMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 27, 1981, Administrative Law Judge
James F. Morton issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a brief in sup-
port of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
a Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
over-ule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relen'alnt evidence con-
vinces us that the resolutions are incorrect Stuandurd l)r Wa1ll Prdtiii;.
Inc.. 91 NLRB 544 (1950). enfd 188 F'2d 362 (3d Cir. 1951). We hase
carefully examined the record and find no basis for reversing his findings,
2 In par I(d) of his recommended Order the Administrative Laws
Judge used the broad injunctive language 'i.. s- '- -1anner" Re-
spondent herein has neither demonstrated a proclivity to violate the Act,
nor engaged in conduct so widespread as to demonstrate a general disre-
gard for the employees' fundamental statutory rights Thus in our opin-
ion, the broad injunctive language is not appropriate, and we have modi-
fied the recommended Order accordingly lftickrimlt iHoods. Inc, 242
NLRB 1357 (1979).
The General Counsel has excepted to the Administratise L as Judge',
failure to conform the notice with the proisiton in his recommended
Order requiring Respondent to cease and desist from making discrimina-
tory work assignments Accordingly, we shall amend the recommenrlded
notice to conform to the recommended Order in both respects nroted
herein.
Further, in the absence of exceptions thereto, we: adopt. proJ, frri Ihre
Administrative Lass Judge's recommendation that Case 2- RC 18196 he
severed from the unfair labor practice cases and the Certification of Re-
suits of the Election held on January 10, 1979. he reissued Based on this
finding, it is unnecessary to reach the issue of the merits of the objections
filed in Case 2-RC 18196
In accordance with his dissent in Olvmpir NWedia!ul Corporuliro. 250)
NLRB 146 (1980). Member Jenkins would award interest on the backpay
due based on the formula set forth therein
260 NLRB No. 127
fled below, and hereby orders that the Respondent,
Semi-Alloys, Inc.. Mount Vernon, New York. its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) In any like or related manner interfering
with, restraining, or coercing employees as to their
rights under Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer to Natividad Escudero, Jorge Colon,
and Antonio Lado immediate and full reinstatement
to their former jobs, or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed and make them
whole, with interest, for any loss of benefits suf-
fered by reason of their discharge in the manner set
forth in the section of this Decision entitled 'The
Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPL OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELI.ATIONS BOARD
An Agency of the United States Government
WE Wll . NOT question any of our employ-
ees, or any applicant for employment, as to
their support or sympathies for, or member-
ship in, Local 1783, International Brotherhood
of Electrical Workers, AFL-CIO, or any
other union.
WE WILL NOT warn our employees that our
plant will be closed if our employees vote to
select Local 1783, International Brotherhood
of Electrical Workers, AFL-CIO, as their col-
lective-bargaining representative.
WE ;;::. :r discharge or make discrimi-
natory work assignments to employees to dis-
courage them from joining or supporting the
Union.
WE WIL L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE wlltl offer to Natividad Escudero,
Jorge Colon, and Antonio Lado immediate
and full reinstatement to their former jobs, or
if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or any other rights or privileges pre-
viously enjoyed and WE Wllt. make each
992
SEMI-ALL OYS, INC
whole for any loss of benefits suffered by
reason of their discharge, with interest.
SEMI-AI.LOYS, INC.
DECISION
SrFAJrIINl NT OF t-HI. CASI
JAMES F. MORTON, Administrative Law Judge: The
first issue to be considered is whether the original unfair
labor practice charge in this case, on which the General
Counsel had initially refused to issue a complaint, can be
activated a year after it was filed. Related to that issue is
the reopening of a connected representation case.
On December 12, 1978, Local 1783, International
Brotherhood of Electrical Workers, AFL-CIO (herein
called the Union), filed the petition in Case 2-RC-18196
seeking to represent a unit of all production and mainte-
nance employees employed by Semi-Alloys, Inc. (herein
called Respondent), at its plant in Mount Vernon, New
York. Respondent and the Union executed a Stipulation
for Certification Upon Consent Election which was ap-
proved on December 22, 1978, by the then Acting Re-
gional Director for Region 2 of the Board. The Union
lost the election held on January 10, 1979, pursuant to
that stipulation. On January 15, 1979, it filed 8 objections
to conduct affecting the results of that election which
raised issues, inter alia, as to whether Respondent influ-
enced the election improperly by having (a) interrogated
employees as to the identity of those who signed union
cards, (b) coerced employees into rejecting the Union by
statements made in speeches to them by officials of Re-
spondent, (c) canceled a scheduled Christmas vacation
period for its employees, or (d) discharged a group of 10
employees because of their support for the Union. On
June 13, 1979, the then Acting Regional Director issued
his Report on Objections and Challenged Ballots which
recommended, inter alia, that the Union's objections be
overruled in their entirety and that certain challenged
ballots be opened and counted. In the absence of excep-
tions, those recommendations were adopted, as noted in
an order issued on July 10, 1979, by direction of the
Board. On July 31, 1979, the Regional Director issued
her Certification of Results of the Election. In its brief,
Respondent related that, upon the opening and counting
of the challenged ballots, the revised tally disclosed that
100 votes were cast against the Union and 73 votes were
cast in its favor. As the remaining challenged ballots
could not have affected the result, a certification issued
to the effect that the Union had not been selected by a
majority of the valid votes cast. The representation case
thus was closed on July 31, 1979.
On February 5, 1979, less than a month after the elec-
tion was held as set out above, the Union filed the first
unfair labor practice charge, Case 2-CA-16191. That
charge alleged that Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
(herein called the Act), by (a) interrogating employees
on and since December 1, 1978, respecting their support
for the Union, (b) threatening plant closure, and (c) dis-
charging 10 employees because of their union activity. It
is apparent that those allegations essentially paralleled
certain of the assertions the Union had made in the ob-
jections it filed to the conduct of the January 10, 1979,
election, discussed above. Based on the administrative in-
vestigation, the Regional Director for Region 2 notified
the Union on April 30, 1979, that she was refusing to
issue a complaint respecting the allegations that Re-
spondent unlawfully discharged 10 employees or that it
threatened employees. The Regional Director further ad-
vised that she was processing the case further respecting
the Union's allegations of unlawful interrogation. The
Union filed an appeal respecting the Regional Director's
partial refusal to issue a complaint. On August 16, 1979,
the Regional Director advised the Union that the evi-
dence developed in the investigation of the charge filed
in that case, 2-CA-16191, failed to establish that Re-
spondent violated the Act in any manner encompassed
by the charge and that she was therefore refusing to
issue a complaint. On September 11, 1979, the Acting
Director of the General Counsel's Office of Appeals no-
tified the Union that its appeal from the Regional Direc-
tor's refusal to issue a complaint in Case 2-CA-16191
was denied substantially for the reasons set forth in the
Regional Director's letters of April 30 and August 16,
1979.1
On November 23, 1979, the Union filed the unfair
labor practice charge in Case 2-CA-16912 alleging that
Respondent unlawfully discriminated against Natividad
Escudero. Also, on November 23, an individual, Jorge
Colon, filed the charge in Case 2-CA-16913 alleging
that Respondent discharged him because he attempted to
join the Union. By letters respectively dated January 15
and 16, 1980, the Regional Director for Region 2 advised
the Union and Colon that she was refusing to issue a
complaint in either of these cases because of insufficient
evidence of a violation.
The Union filed an appeal from the Regional Direc-
tor's refusal to issue a complaint in Case 2-CA-16912;
Colon filed no appeal.
On January 7, 1980, the Union filed the unfair labor
practice in Case 2-CA-16986 which alleged that Re-
spondent, in violation of Section 8(a)(1) and (3) of the
Act, discharged Antonio Lado because of his activities
on behalf of the Union. On January 23, 1981, the Union
wrote the Regional Director under a caption for Cases
2-CA-16191, 2-CA-16912, and 2-CA-161932 to request
that the investigations in those cases be reopened. Its
letter noted that it had, on January 23, produced evi-
dence warranting such action. On February 28, 1980, the
Regional Director wrote Respondent that she revoked
the dismissal letters issued on April 30, 1979, and Janu-
ary 15 and 16, 1980, in Cases 2-CA-16191, 2-CA-16912,
and 2-CA-16913, respectively, and that she reopened
those cases pursuant to the authority recognized by the
Board in California Pacific Signs, Inc., 233 NLRB 450
The letter writen bh the Offtice of Appeals refer' to the Regional
i)lrector', "p.tral rIeflal Irf al toiue c,.tmplaint" whereas the Regional Dm-
rector', I' le r tf August 16 stated thai she wa.s refusing to Issue com-
plalill II thte ia' I , ;siurn that her ea:rlier de.islton to process the case
further re'spe'tillrg the IlUton'r s alllegatiitn', of unlaAful Inlerrogation .4as
hlldilt h so)t ill'ei" 1ter.ening \r lti
- I hc latter iso case numlleh'r
~
, on tile' Unillon's ]eletr had t,.o number%
IrnatxertlltJ trill] ,p -owd
993
I)tC SI()NS (): NA II()NAI. I.A()OR REL ATIONS 1()ARD
(1977). Also on February 28, the Regional Director
issued an order consolidating Cases 2-CA-16191, 2-CA-
16912, 2-CA 16913, and 2-CA-16986, a consolidated
complaint and a notice of hearing. :" The complaint al-
leges inter alia, that Respondent discriminatorily dis-
charged 10 employees on or about December 8, 1978,
unlawfully interrogated employees in December 1978,
and that Respondent discriminatorily discharged 3 em-
ployees after the election
On March 14, 1980, the Regional Director issued an
order revoking her Certification of Results of the Elec-
tion in Case 2-RC-18196 and ordered that a hearing be
held respecting Objections I and 8 that the Union had
filed to the conduct of the election held on January 10,
1979. Objections I and 8 pertained to matters of alleged
unlawful interrogation and of the alleged unlawful dis-
charge of 10 employees in December 1978-the same al-
legations involved, inter alia, in the consolidated com-
plaint previously issued. The representation case was
therefore consolidated for hearing with the unfair labor
practices. 4
At the hearing, the General Counsel moved to amend
the order directing a hearing on the objections in order
to reinstate Objections 3 and 6. As that matter was solely
within the province of the Board, the hearing was ad-
journed without date to afford the Regional Director an
opportunity to issue a Supplemental Report on Objec-
tions to the Board and to enable Respondent to file ex-
ceptions thereto. On July 15, 1980, the Regional Director
issued her Second Report on Objections wherein she rec-
ommended that a hearing be held respecting the issues
raised by Objectioniis 1, 3, 6, and 8 filed by the Union on
January 15, 179, in Case 2-RC 18196 and that the
hearing thereon be consolidated before me in connection
with the related matters in Cases 2-CA-16191, 2-CA-
16912, 2 CA-16913, and 2-CA-16986. Respondent filed
exceptions to that Second Report on Objections. O)n
August 18, 1980, an order was issued by direction of the
Board It related that Respondent's exceptions were
denied without prejudice to its right to renew its contein-
tions by filing appropriate exceptions upon issuance of a
decision in the consolidated proceeding. Thereafter, the
hearing in this case resumed.
The hearing had opened initially on June 9, 1980. It
continued through June 13 before being adjourned in-
definitely. It resumed on November 12 and after further
hearing dates it concluded on December 9, 1980, in New
York City.
In the answer it filed to the consolidated complaint in
Cases 2-CA-16191, 2-CA-16912, 2-CA-16913. and 2-
CA-h16986 Respondent pleaded no special or affirmative
defenses. At the hearing, it asserted that Section 10(b)
should bar the matters involved in Cases 2-CA-16191,
2-CA 16912, and 2 CA-16913 as the Regional Director
' () 51.; 20, 1980I' (), tlt ()tliv. ot AI tppeal, Af the1 It;clntal 1wunIli
srot tie r.arlie tilIt tilte I chruali 2 l ttcitr lidtereti the appcil iii c t1s'
22 C'A 1hQ12 i lloot d111 rCllllandcdl thll t 1cas to [i Regional l)lrCCtof
R' cp, l lle ii iled ;i CotIllplil ill tit [i ilted Slatei t)itict (L'-uI l l tll
alto'lllpt tO I(1.111 tilt R gilOllil l )l orehc .o l l ic g'ilt 'n'r-l, palrnipatiiptlig
fUl11r l ill tlCt tast''' tlllc I jlitlec.t 11it' illfliTlllCd 1tll that th1e .1 tl dI-
i'licl t,- I..~l[, .1;l IIIJllliiflial 11nd1 lilt R'l.l.ndcllt
'
nC, a ppeal J'i1ol1 tihat iI-
ICrilllnlill \itl s;Is il1lle1d h\ AtiL L S ('olliT ll Al-pCalJ% tker the S-,'cll n ('1l-
C~lt1
had determined not to proceed further with them and as
those determinations were either not appealed or the ap-
peals were denied. I view Respondent's contentions re-
specting the applicability of Section 10(b) of the Act as a
motion to dismiss the matters involved in Cases 2-CA-
16191, 2 CA-16912 and 2-CA-16913. As the Board's
holding in California Pacific Signs, supra, is controlling,
that motion is denied.
The procedural issues posed in the related representa-
tion case will be considered later in this Decision. It is
appropriate first to consider the factual issues and the al-
leged unfair labor practices.
Upon the entire record,' including my observations of
the demeanor of the witnesses, and after due conside,a-
tion of the briefs filed by the General Counsel, by Re-
spondent, and by the Union, I make the following:
FINIDINCS Oi FACT
1. JURISDICTI ION
The pleadings establish and I find that Respondent,
which manufactures components for integrated circuits
in the electronics industry, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the National Labor Relations Act, as amended
(herein called the Act), and that the Union is a labor or-
ganization as defined in Section 2(5) of the Act.
II. FIlt Al I.t-(tFI) UNIAIR I.ABOR PRACTICES
A. Ihe Questioning of Applicants for Employment as
to Their Union Membership or Union Sympathies
The complaint alleges that Respondent, by means of
polygraph tests, interrogated its employees regarding
their union sympathies. The uncontroverted evidence es-
tablishes the following.
In its manufacturing process, Respondent uses gold
and other precious metals. From about 1975 until March
31, 1979, it required applicants for employment to go to
the office of Industrial Security Analysts, Inc., to be ex-
amined for security reasons, especially as to whether
they used drugs or had previously been discharged from
employment. In particular, each applicant was told by an
examiner employed by Industrial Security Analysts, Inc..
that he or she would be given a lie detector test and was
given a separate job application form to fill out. The ex-
aminer asked the applicant to consent to undergo the lie
detector test. The applicant was also asked whether he
or she was a member of any union. If the answer was in
the affirmative, the applicant was asked the name of that
union. If the applicant stated that he or she was not a
union member, the examiner asked how the applicant felt
about unions. The examiner made notes during the pre-
test interview. Thereupon, the lie detector test was
given. Upon the completion of the test, Respondent's of-
ficials were called by telephone by the president of
Industrial Security Analysts to report on the results of
R l L1uut'ill"'s 1tl-Ollwll itl o)rrL'ct tiLt traliltrlpl is grailltied, cxctp foir
ihe ,l I 1icil I ; lldII , th CC.IttL ltg l i El[ 11 (;cI.t' r ] OLHt ldCI rC~pOllC
I[ Ilil tl1wlo.l The ilodlt.1,:k[ItioI, urged b
5 tit, tictrill (of wwlll, arc ill
1ldLI iltld the Ilarn,,crlS hillA hecii c.-rrected .co dlllgly
994
SEMI -A I I)YS. INC
the interview and test. A written report was mailed to
Respondent as soon thereafter as was feasible. Copies of
some of these reports were received in evidence. These
show that Industrial Security Analysts, Inc.. had routine-
ly reported to Respondent the sympathies of job appli-
cants towards unions as revealed by the questioning
during the pretest interviews.
The Board has held that an employer's asking a job
applicant about union membership or union sympathies
violates the Act. Thus, the questioning of applicants for
employment with Respondent was violative of the Act.
B. .4lleged UonlaKful Layoff of 10 Employees on
December 8. 1978
It will be helpful, at the outset of the discussion of this
allegation and for use also in the succeeding subsection,
to describe briefly the operations of Respondent's plant
and to identify now the officers, managers, supervisors,
former supervisors, and alleged discriminatees who were
involved in the events from late November 1978, to late
1979-the period relevant to the issues in this case, As
noted above, Respondent makes parts used in electronic
circuitry. Its president is Norman Haskoe; John J. Pas-
chall was its production manager and vice president for
manufacturing in the relevant period: and Jose Formoso
was then the assistant production manager and, as of the
hearing, had been promoted to production manager.
Eliot Feldman was in 1978-79 supervisor of the
"combo room" whose operations are described below;
Thomas Nani had been supervisor of the toolroom until
he was replaced by Richard Heinzer in June 1979; Fer-
nando Agostinho was the plating supervisor; Walter
Caudle was the supervisor of the stamping department;
and Jerry Prusan was the supervisor of the cladding
department.
The alleged discriminatees are (1) Natividad Escudero
who worked with about 65 other operators in the combo
room under Eliot Feldman's supervision, (2) 10 other
combo room operators of Portuguese extraction who are
named in the complaint, (3) Antonio Lado, a machinist
in the toolroom who had been supervised by Nani and
then by Heinzer, and (4) Jorge Colon who worked under
Agostinho in the plating department.
Three of Respondent's supervisors in 1978-79 had left
its employ and testified for the General Counsel. They
are Walter Caudle, Thomas, Nani, and Fernando Agos-
tinho. Apparently, it was on the basis of the information
they furnished to the Regional Director for Region 2 in
early 1980 that the Regional Director reopened the
closed unfair labor practice cases and the representation
case too.
To complete the background discussion, a brief de-
scription of the welding procedures utilized by the ap-
proximately 655 combo room operators follows. Those
operators inserted pieces (each from about one-tenth of
an inch by one-tenth of an inch in size to a size slightly
larger than a half inch square) into a device wvhich
pressed the parts together into a single unit. A piece one-
fourth of an inch by one fourth of an inch in size wlas
"C'ntra/ rl n ort Im. r r, r'lcd 244 NI Ri h tl5 tI '4) S.lrU ,,m,, 1)i -
r,,, ,,/ !, 5i'1,, r I te , r ( I '4'1 NI Rll I 0,. 40 1I 1`iSO)
designated as 250. the smallest size was designated "120
x 095" (120 indicates that the long sides of the rectangu-
lar unit were each 120/1(X)0 of an inch in length or
slightly over one-tenth of an inch: 095 indicates that the
short sides of the rectangle were each slightly less than
one-tenth of an inch.
Discussed in this subsection, as indicated by the cap-
tion, is the alleged discriminatory, layoff of 10 combo
room employees early in the Union's organizing cam-
paign. Originally, the consolidated complaint in this case
alleges that Respondent has discharged 10 named em-
ployees on December 8, 1978, and refused to reinstate
them until March 6, 1979, because they supported the
Union. At the hearing, the General Counsel moved to
amend the complaint and add the names of 6 more em-
ployees to that allegation and that motion was granted as
it was represented that all 16 employees were terminated
in "one action." Respondent had objected to that amend-
ment on the ground that it would be able to demonstrate
that the six newly named employees had, in fact, left Re-
spondent's employ on dates earlier than December 8,
1978. Just before the hearing ended, the General Counsel
withdrew the contention that those six additional em-
ployees had been discriminated against by Respondent.
The General Counsel, however, continues to assert that
the 10 employees, named originally, had been discrimina-
torily laid off for a 3-month period beginning December
8, 1978. Respondent maintained that it had no knowledge
of any union activity by any of its employees until De-
cember 10-2 days after those 10 employees were laid
off.
The General Counsel called two witnesses, Natividad
Escudero, and her daughter. Nancy Fajardo, who testi-
fied that they visited the homes of many of Respondent's
employees beginning on November 21, 1978, to obtain
their signatures or authorization cards for the Union.
They obtained such signatures from the 10 employees in-
volved in this section in visits to their homes, for the
most part, between December 3 and 7, 1978. Those 10
employees worked in the combo room and were of Por-
tuguese extraction. They were laid off on December 8.
Along with about 20 other employees of Respondent,
most of those 10 attended the first union meeting which
was held on December 11, 1978, at a church hall in
Mount Vernon, New York.
Two other witnesses for the General Counsel, Antonio
Lado and his wife, Luisa Lado, testified that on Sunday
evening, December 10, 1978 (2 days after the 10 employ-
ees had been laid off), Respondent's assistant production
manager at that time, Jose Formoso, called them at their
home. The Formoso family and the Lado family had
been longtime acquaintances. Luisa Lado testified that
Formoso told her that he wanted to know who were the
people who wanted to bring in a union. She testified that
she told him she did not know and that Formoso then
asked if anybody had approached her to ask her to sign a
union card. She told him she knew nothing about any
union. That ended that phone conversation, according to
her account. She testified also that, in fact, she had
signed a card for the Union on December 5. 1978. Jose
FVormoso, ,cho is now Respondent's production manager,
I)EC tISI()NS ()I NATIONAl I.A()OR REI.Al I()NS BO()ARI)
testified that he had received an anonymous telephone
call earlier on Sunday, December 10, in which the caller
told him that a union was trying to organize Respond-
ent's employees. 7 Formoso testified that he then called
the Lado family as they were friends to find out what
they knew about any union activity. lls account does
not controvert the substance of Luisa Lado's testimony.
Whatever friendship may have existed between the I ado
and Formoso families appears to have been quickly lost
as it is undisputed that Formoso's father, not an employ-
ee of Respondent, came to the Lado apartment a few
minutes after the phone call and warned Mrs. Lado that
she had better tell his son what he wants to knowg. She
informed him that she had told his son all she knew.
Mrs. Lado testified that Jose Formoso refused to greet
her the following day and in fact turned away from her.
The foregoing events disclose that the Llnion's orga-
nizing efforts were conducted in a secretive manner
mostly via visits at night to employees at their homes
and that the first time Respondent evidenced to an em-
ployee any knowledge of those union activities was after
the layoff of the 10 employees. The General Counsel,
however, proffered the testimony of three former super-
visors to show that Respondent was aware, before the
December 8 layoff, of the employees' interest in the
Union and that the layoff was based on a discriminatory
reason.
One of those three, Walter Caudle, had been supervi-
sor of Respondent's stamping department until his dis-
charge on November 14, 1979. Parenthetically, I note
that he has instituted a civil action against Respondent
respecting the circumstances of his own discharge and
that he is seeking substantial monetary damages. Caudle's
testimony respecting the December 8 layoff is as follows.
In mid-November 1978, he was present in a meeting with
about 17 other supervisors (i.e., virtually all of Respond-
ent's supervisors). At that meeting, Respondent's thein as-
sistant production manager, Jose Formoso, stated that a
union was attempting to organize Respondent's employ-
ees, that Respondent might lay off employees because of
that effort, that there had been a meeting on the previous
night of a group of employees at the "Portuguese Club,"
and that Natividad Escudero, Jorge Colon, and Antonio
Lado were the employees who were the main union or-
ganizers.
Three aspects of Caudle's account of such a meeting in
mid-November 1978 were controverted by the testimony
of other witnesses called by the General Counsel. Thus,
two other former supervisors of Respondent placed the
earliest such supervisory meeting as having taken place
in December. Their detailed accounts are set out sepa-
rately below. Secondly, the employee who was the
Union's principal organizer, Natividad Escudero, testified
that there had never been a union meeting of employees
at the Portuguese Club and that the first union meeting
7I 1 liD ll! I o ltllhi I lhal IhC kllferil nlltlo r :a 1 illlnl!lyllpl% 1 (')illl' Io tI
fittd that liet Iold Rt'poni, l'dcn' Jic t prcici ,ll, J;ack Ia';l.,all, On I)c1 ccrl-
her I(), of l t call ()1n cro-ssC( kailllllnllll ll , }:Fo1rII so hilld t' tIoll 1Paha.l l.
tlhil itl it.lie a ltloln r , 11, t IIci pokc 1, Io iI Int I,[ , it g.}I Pil,,,'hait .I of Ihe Union Feldman
deticd this I credit Feidmanl's denial as it is unlikely that he swould have
openly cilteIssed this, it her and as I hasve found that ither testimony she
ga.s c vas 1not suppot red hf riclated docunrlentars e'.idence
I(}0)
SEMI-Al.I.OY S. INC
Escudero was assigned to assemble large size pieces on
August 9 and 10. On August I1I, a Saturday, she obtained
from her doctor a note which recited that she could not
perform "fine work (small objects)." Escudero testified
that she gave this note to her supervisor, Feldman, on
Monday, August 13; Feldman states that she gave it to
him late on August 14 when she asked him for a
"layoff." It is more probable that Escudero turned that
note in to Feldman on Monday, August 13: i.e.. immedi-
ately upon her return to work after having obtained the
note from her doctor. I credit her denial that she asked
to be laid off because of her eyes. The note she submit-
ted sought to have her excused from fine assembly work
only. There is no evidence that she, at any time in the
course of her 6 years' employment with Respondent, had
expressed an unwillingness to perform her normal duties.
On August 13 and 14, she was assigned to assemble
GKLs-pieces almost one-half inch in diameter; i.e.,
larger pieces. At or about 9:30 a.m. on April 15, Feld-
man told her to go to the lunchroom. There, according
to Feldman, Respondent's vice president. Paschall, with
Formoso translating, told her that Respondent could not
give her a layoff because it would be against the law as
there was work for her and as he wanted her to stay.
Feldman testified that she "insisted" on a layoff and that
she objected to not being laid off until Formoso ex-
plained to her that she would get the same money by
collecting disability insurance as she would have collect-
ed for unemployment insurance. From the gestures Feld-
man made while testifying and his apparent attempt to
emulate the actions he attributed to her then, it is clear
that Feldman was testifying that Escudero was happy to
take a leave of absence "until her eyes got better." F'eld-
man testified that she cleared out her locker and left.
Paschall testified that, when Feldman brought to his
attention the doctor's note Escudero had obtained, he
talked to her on August 14. Paschall testified that she
told him that she "can no longer do small parts" and that
he told her that he could not excuse her from such work
as that would cut his flexibility in that other combo
room employees may bring in similar notes. According
to Paschall., she then asked for a layoff, but he offered to
transfer her to the glass cutting department or the in-
spection department. He stated that the employees in
these departments were paid at the minimum wage rate.
Escudero was earning 53.90 per hour. Paschall did not
testify that he told Escudero that her wage rate would
be reduced. He did testify that there was plenty of large
piece work to be done and that the large majority of
combo room employees work the great bulk of their
time assembling the large pieces. Paschall testified that,
on August 15. he had a nice session with her in which
she agreed to be put on disability insurance. Formoso's
account of the events respecting Escudero's leaving Re-
spondent on August 15 was terse and corroborated Pas-
chall's.
Escudero's version of her discussion with Paschall and
Formoso was as follows. Feldman told her, while she
was at work on August 15, to report to the cafeteria.
There, Formoso told her that, in view of the doctor's
note, she could no longer work there and that she had 10
minutes to leave. She was forced to clean out her locker
and was escorted to the door where she was cursed at
by Respondent's officials before exiting. She also testified
that Paschall had offered to pay for a taxi to take her
home.
I find it hard to accept in toto either the version prof-
fered by Escudero or those given by Respondent's wit-
nesses. It is unlikely that Escudero was rushed out of the
plant and cursed at by Respondent when, at the same
time, its vice president offered to pay her taxi fare. I thus
have reservations as to Escudero's account. Paschall's ac-
count is even more improbable. He stated he told Escu-
dero he could not let her perform her normal job (where
she rarely did small work) based on her doctor's note as
IS other combo room employees would then get similar
notes. There is no evidence that any morale problem ex-
isted in the past years when she did relatively little small
piece swork and no evidence that any existed on August
13 or 14 or 15, when she was working on larger pieces.
So far as the record in this case shows, no combo room
employee had complaints thereon. Paschall states that he
nevertheless offered to transfer her to either the inspec-
tion or the glass cutting department, apparently without
any reduction in pay. I do not understand Respondent's
apparent readiness to pay Escudero $3.90 per hour for
performing inspection or glass cutting work which is
normally compensated at the minimum wage rate. I do
not understand why Respondent would so readily offer
to do that for an indefinite period as it seems unlikely
that Respondent would risk creating a morale problem
among the minimum wage employees in the inspection
or glass cutting departments by paying Escudero a much
higher rate for the same work. The offer to transfer her
to those departments also seems to undercut the very
reason on which Respondent contends it could not make
normal work assignments to her. Paschall states that he
declined to relieve Escudero of fine assembly work as-
signments because he felt that 15 other combo room em-
ployees might obtain doctor's notes to secure the same
relief. Instead, he stated, he offered to transfer Escudero
to less demanding work, apparently with no reduction in
pay,. Had such an offer been made and accepted. Pas-
chall could expect to be given doctor's notes from many
more of the combo room employees as they would likely
be seeking a similar favorable arrangement.
More likely, the truth lies somewhere between the two
versions. I find that Escudero presented the note to Feld-
man on Monday, August 13, that she was called from
her work station on the morning of August 15 to the
cafeteria, that she was told there in a businesslike but not
unfriendly way that Respondent could no longer use her
services as she could not do fine assembly work, that she
was not offered a transfer elsewhere, that there was no
discussion of disability or unemployment insurance, and
that she was escorted quietly to her locker and then to
the door where she w as offered taxi fare for a ride
home '"
0ld ut. 11clrt I 'll tt'i\ 1. itl illl 1 et j'a I 1 11,11 u sit i v I l [0 t llt Jh
,aizvi ,exra necdcd h\ heir nll a>1idcltl 1 tot h'. 'IN' Rim 1001i] GilArk I, rftaird
( , d~llb
1001
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
There are two other points that are relevant to the al-
leged discriminatory discharge of Escudero. One, the
evidence is clear that the great majority of the combo
room work consists of the assembly of large pieces, the
work Escudero had done virtually throughout her 6
years with Respondent. Secondly, as discussed in detail
below in the section dealing with the discharge of Jorge
Colon, Respondent's witnesses testified that they made
repeated and exceptional efforts to keep Colon in its
employ despite the alleged abuse and contempt he
heaped in public upon Paschall and Formoso.
It is my finding that Respondent assigned Escudero to
an extraordinarily high amount of fine assembly work in
late July and early August 1979, because of her prior
support of the Union and that Respondent seized on the
doctor's note she presented to it on August 13 as a pre-
text to terminate her employment on August 15 to con-
ceal its discriminatory motivation. In making that deter-
mination, I note that Escudero was the principal support-
er of the Union among Respondent's employees, that
there is independent evidence of Respondent's animus to-
wards the Union in this case, that the credited testimony
is that her supervisor had said he would make such work
assignments to punish her for having supported the
Union, that the assignments to fine assembly work which
he made prior to her discharge were punitive as it was
well knoswn that she did not like to be assigned to fine
assembly work, and that the reason given by Respondent
for not making any effort to accommodate her desire to
be relieved of abnormal assignments to fine assembly
work was clearly pretextual. That reason was found to
be pretextual on the basis of the discussion above. In ad-
dition, I note that the summary treatment accorded Es-
cudero was in contrast to the consideration Respondent
maintained it showed Colon, as discussed hereinafter,
and as there has always been plenty of large piece assem-
bly work in the combo room to which Escudero could
have been assigned to perform aind which she would nor-
mally have performed almost exclusively. The removal
of Escudero from Respondent's plant on August 15 in a
summary manner was tantamount to a discharge.
F. .41eged Discriminatory Discharge of Jorge Colon
Colon had worked for Respondent in its plating
department for about 6 years as of the time of his dis-
charge on October 15, 1979. He was then a leadperson
under the supervision of Fernando Agostinho. Colon had
signed a card for the Union on December 1, 1978, and
had been designated by the Union to be one of its ob-
servers at the election on January 10, 1979. Respondent
had been notified of that designation prior to the elec-
tion. Colon, however, did not serve as the Union's ob-
server but obtained a replacement to serve in his stead.
Colon regularly ate his lunch in the plant cafeteria with
Natividad Escudero, discussed iii the section above.
Colon's supervisor, Agostinho, testified that he had re-
ported to Respondent's vice president, Paschall, during
the preelection period, that Colon was prounion. Former
thereupon determinied that 'hc no hrmgcr qualifried I(r dtabillh S pil-
meits I do not ieLk the ilt fir.going ,t'qtlec' a oir
.
grc:t IgliIti.IliCLe Ihe
f-.ctors dIfsiC U Sr I ahx tI Lrt e I lilIL'd II I nII) 1 l glrIL'I rt.lghfi
Supervisor Nani testified that Plant Manager Formoso
had told him that Colon was one of the employees who
was working with Escudero to bring the Union in. Pas-
chall and Formoso both testified that they had no knowl-
edge as to whether or not Colon favored the Union until
the Union notified Respondent shortly before the elec-
tion that Colon would be the Union's observer at the
election. It is unnecessary to resolve that credibility issue
as it is apparent that Respondent, in either event, was
aware of Colon's prounion sympathies as of early Janu-
ary 1979.
Colon testified that, shortly after the election, his su-
pervisor, Agostinho, told him that he, Agostinho, had
been told that Colon was not returning to work at the
end of the scheduled coffeebreak. Colon testified that he
told Agostinho that he would follow the schedule for
breaks in the future and that he also explained to Agos-
tinho that he had not done so in the past because a previ-
ous supervisor had authorized him to delay the start of
his break whenever the plating job he was working on
required it. Agostinho's testimony corroborates the fore-
going and also Colon's further testimony that Colon's
working schedule caused no problems.
Colon testified that at or about 2 p.m. on Ocotober 15,
1979, Agostinho told him to stop work and to report to
Respondent's vice president, Paschall, and Production
Manager Formoso in the cafeteria. Colon went there, un-
accompanied by Agostinho. According to Colon, he was
informed by Formoso and Paschall that that was his last
day of employment and that, when he asked for an ex-
planation, he was told one would be sent in writing to
him. Coloh's testimony was that subsequently he filed for
unemployment compensation and was informed, appar-
ently by someone at the claims section at an office of the
agency administering the program, that Respondent had
notified the claims office in writing that Colon had been
laid off "for arriving late; for [taking] a longer time for
breaks and for bad behavior."
Colohi's supervisor, Agostinho, who later had resigned
his employment by Respondent, testified that he had
never been consulted by Paschall or Formoso respecting
Colon's discharge. Paschall and Formoso testified that
they did not discuss with Agostinho the matter of
Colon's asserted attendance problems or his discharge.
They said that they had in early 1979 broached the sub-
ject of warning Colon with Agostinho and that Agos-
tinho told them then that he did not want to get in-
volved in such discipline as he was afraid that Colon
would stab him with the knife Colon usually carried.
Agostinho testified that Colon was in the habit of having
a large knife on his person. Agostinho also testified that
Colon had never threatened him, that he had never told
Paschall or Formoso that he was afraid of Colon, and
that Colon was always a cooperative, willing, and friend-
ly employee. I credit Agostinho's account and not that
of Paschall and Formoso for the following reasons.
Colon struck me as a quiet, amiable person. He is appre-
ciably older than Agostinho and did not appear to be
nearly as physically fit as Agostinho. Even more signifi-
cantly, I note that Paschall's overall account appears
highly improbable and even contradictory. Thus, he tes-
()1002
SEMI-ALLOYS. INC.
tified as noted above that Agostinho did not want to be
involved in any discipline of Colon because he feared for
his life; yet, Paschall further testified that he, Paschall.
repeatedly chastised Colon and that Colon each time
became angry, abusive, vicious in the use of racial epi-
thets towards him, and on several occasions pushed a
table forcefully against Paschall. Throughout all this,
Paschall's testimony suggests that he, Paschall, never
even considered the prospect that Colon might attack
him with a knife. I also note that Paschall appears to be
somewhat older than Colon and less physically fit than
Agostinho. (In its brief, Respondent observes that Agos-
tinho was afraid to tell the truth when he testified as
Colon's wife was sitting in the hearing room. I detected
nothing unusual in his demeanor then.) Formoso's testi-
mony tracks Paschall's and indicates that neither he nor
Paschall ever felt any apprehension in dealing with
Colon. It would seem to me that, if Agostinho had really
expressed fear of Colon, Paschall and Formoso would
not have had so many confrontations with Colon but
would have been much more careful. For that matter, it
seems more likely that, had Agostinho told them that he
refused to discharge his duty to supervise Colon. as Pas-
chall and Formoso claim, appropriate remedial steps
would have been taken thereon against Agostinho with-
out delay. It is also unlikely that Agostinho's asserted
fears would have been totally ignored, had they been as
genuine as Paschall's and Formoso's testimony maintains.
Paschall's and Formoso's accounts respecting the dis-
charge of Colon are that Colon willfully ignored their
repeated efforts to induce him to return to work at the
end of his regularly scheduled lunch period and coffee-
break time. They assert that Colon instead frequently re-
mained or returned to the cafeteria after punching back
for work and stayed there for 15 minutes or more
beyond the time he should have been back at work. Re-
spondent paid Colon for all those periods during which
Paschall and Formoso assert he ignored their admoni-
tions. Paschall stated that Colon was paid for those times
because it would have been difficult for him to prove
that Colon was in the cafeteria on those occasions. Yet.
it seems that Respondent relies on the very same conten-
tion to justify its discharge of Colon. Perhaps not entire-
ly, as Respondent alludes to two written warnings it as-
serts had been given to Colon respecting his attendance
record. Colon professed no knowledge of those warnings
and testified also that he had never had any discussion
with any of Respondent's supervisors or managers as to
his attendance, other than the discussion he had with
Agostinho shortly after the election, as set out above. I
credit Colon thereon as Paschall's and Colon's accounts
of the incidents in which they gave Colon written disci-
plinary warnings are most unpersuasive. They testified
that, when they disciplined Colon and asked him to sign
the written warnings, he told them, in the Spanish equiv-
alent of colloquial English, to shove them up their poste-
riors and informed them that they were slave drivers.
that Formoso was a traitor to his race, that Paschall and
Formoso were "bastards," that he, Colon, had a right to
take longer lunch and rest periods than the other enm-
ployees, and that Colon referred to Respondent's officials
in Spanish as (a) "feces," (b) gay persons, (c) "jew has-
tard." and (d) "son-of-bitches." Paschall testified that, at
various points in their conversations, he could sense that
he was "losing his cool and was getting nowhere." It is
unlikely that a vice president, such as Paschall is, in
charge of operations in a highly competitive business,
would himself repeatedly entreat an employee with so
hostile a view to cease delaying his return to work from
his breaktimes. I find, based on the foregoing credibility
resolutions, that Colon was never warned as to overstay-
ing his break periods, that he was discharged summarily
on October 15, 1979, and that the reason given by Re-
spondent was patently a pretext. In view of those find-
ings and as Respondent was aware of Colon's support
for the Union, and as it had demonstrated in other ways
its union animus, I conclude that the General Counsel
has made out a clear prima facie case respecting the dis-
criminatory discharge of Colon and that Respondent has
not rebutted it. "
G. .4lleged Discriminatory Discharge of ,4ntonio Lado
Antonio Lado began working for Respondent in late
1975, in its maintenance department. As of his discharge
on October 22, 1979. he was classified as a machinist, 2d
class. He and his wife, Luisa. signed authorization cards
for the Union in early December 1978X. As recounted
above, Respondent's assistant production manager. For-
moso, was a close family friend of Lado and interrogated
Luisa Lado on December 10, 1978, respecting the extent
of her union activities and, when she professed that she
knew of no such activities, Formoso exhibited hostility
towards her.
Antonio Lado's supervisor, Nani, testified that For-
moso told him to pick on Lado's work in order to clear
the way for Respondent to get rid of him. Nani did noth-
ing toward that end. He, Nani, was discharged by Re-
spondent in June 1979.
Formoso testified that he never discussed Lado's em-
ployment status with Nani. 20 I credit Nani as he im-
pressed me as one who was seeking to recount events
simply as he recalled them2e and as the circumstances of
Lado's discharge, discussed below, indicate that Re-
spondent contrived the procedures it assertedly relied
upon to support the reason it proffered for discharging
Lado.
" ,, irS Ir t mtrur id,,,d ir I, f h ba Bra,,i/,rd l1rntour, (o, rip,nr.
241 NI Rl he43 1979))
" The (lcneral otirusi l c alled ianlther f, irmer mI pcrxil or, ' iA ller
Caudle. i hom Iet'ified he x.a, preeril oi iiei Oc,.c.lir l a hcln e -orrlllio-
old N rii to find a r'ajid n i ro dPichargc I Sado ( audiIc' pr.irial. affiLx it
-, l[illlcld ino rcftcrlic ti such i nc1 dll irlC¢t 11adI! Nar l did 1i0 alludel t ,ill)
-twh dl,,%ilulon ait \.chi. l ('audicle . is presenli I inl ]ifi per,,idted Ih.l
Caudl c', iiCct11lll iU, correct in X Ic of the aho,e illid a, (Ca .lidlc etleli'dl to
he confull d , 1ciJ r ;i gll . 1g t1 lins r he ll 'Uhe te lln g
r' L gi h I rucnol/ [hi rll d Niai cl-,tinoll iorl respecting the ilcgillin
ihoxc tlh.l Re',potldell had disc rlnllll aIi r i lai d oiff 1() cniplo, 'eo, oi I)c-
Cnihc r X. 19}' Nalmll ifll t hen Ifltl Ihait Y:ornmo, ..... edlld hlim ol ai stllldia
III i)c.cicAhir .mid l i, ilcr /di'-xiioii 1iiil.i tcd hitl t/A.[ pret'cl l the li-a
If thir l ai wll Nallll hd i l-,I IctifTcdi thatL il i it sec'k he ',,ai-, precint ix
ilcclllg, dicr, the L iiioii xx. dsl w,,1,eId i1 x.xi xt Ih;le 'l .ild the r.h,loni
I itrct-r T 'khhoouigli xI \a, Irpllre-cd , ciih Nili', deniceanor. I r[eeltcdl that
i[r11 'tl ., i .i .II app tarcd lear Ihmi hi1 r'.l c11'.llon lf i hliose c ', rll ;I,
rlitl prcl,\. 111
1
JIx hC 1t1I. r lie l CITclric iIcli cliiC iii lit' .Suildl 11 q i Ce-
[i ll \k ,, iX c iii er W . Ix' rlr i] i , Itl
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nani testified that Lado was a slow and very careful
worker and that he had no problems with Lado's work.
Nani was replaced in June 1979 by Richard Heinzer22
who prepared a warning notice dated June II1, which
stated that he had verbally warned Lado against working
on a project other than the one Heinzer had assigned to
him. Lado testified that Heinzer never so warned him.
Heinzer also testified that he spoke to Lado on July 27
and stated then that he was warning Lado for refusing to
follow instructions by having worked on an inconsequen-
tial job although he had been instructed to work on a
rush job. Heinzer testified that Lado refused to sign a
written warning notice Heinzer had prepared and that
Lado assured him that the problem would not occur
again. Lado's testimony thereon is that, when Heinzer in-
dicated that Lado had refused to follow orders, he told
Heinzer that his whole background, including his mili-
tary service in Spain, would not permit him to disregard
the orders he is given, that he had never disobeyed any
order Heinzer had given him, that he had complied with
every order, and that, for those reasons, he could not
sign the warning notice, Heinzer had noted on the warn-
ing notice that Lado had refused to sign it.
There was a third warning notice proffered by the
General Counsel and received in evidence. It was signed
by Heinzer and dated October 10, 1979. The notice
stated that Lado would not cooperate in instructing a
new employee and that Lado would not sign the notice.
Lado disclaimed any knowledge of such a discussion
with Heinzer, of such a note, and of any refusal on his
part to train any employee.
I credit Lado's accounts of the events respecting the
warning notes. Lado impressed me as a most truthful
witness. On his direct examination, he refused to identify
a document shown him by the counsel for the General
Counsel as the union card he signed and it was only
when he was satisfied that the document in question was
a photostatic copy of the actual card he signed that he
acknowledged that he had signed such a card. It was ap-
parent to me that, notwithstanding that such evidence
was essential to support his case, he was unwilling to
offer it until he satisfied himself that his testimony was
correct. Heinzer impressed me as a very energetic and
ambitious young man. He has since left Respondent's
employ but maintains contact with his former colleagues
there. It is significant to me that Heinzer did not place
any weight on Lado's asserted refusals to sign the warn-
ing notices and that leads me to believe that Lado's ver-
sion is the accurate one. To my mind, Heinzer is not the
type of person who would tolerate the willful refusal of
a subordinate who had purportedly just disobeyed a
direct order to refuse to acknowledge that fact by sign-
ing a warning notice thereon. Had Lado willfully dis-
obeyed Heinzer's order and refused to sign a warning
thereon, Heinzer would, in my judgment, have taken
direct remedial action thereon and would not simply
!! Walter Caudle teslifircd fir the (enr;lal Couinsel thai. oin he da1;
Heinzer becramt U suptrilr.Ir, hie (Caudle) heard I ;rnio,o i tell Heiller to
gel rid of I.adio becau e (f his ti uniloll Kcll iic, I11 the bhscI1iC ' f llde-
pendent corrohaortion. I ain ri O persiulelcd tlhat C( ludltJe' Id l,.oecile,ot l is
accurate MNy reser.atori's respect ing the reihlhili (il (aitid e',, teItinlltrl?
ha'e been st;lted prcx oitsl,
have noted on the warning notices that Lado "refused to
sign" or "would not sign." There was one other signifi-
cant point. In his testimony, Heinzer asserted that on one
occasion Lado called Heinzer a "liar." Lado just does
not strike me as the type of person who would use such
a term and certainly not to his supervisor. For that
matter, Heinzer is not the easy going type who would
have let such a remark pass without having taken some
action immediately. The General Counsel contends that
Respondent's "progressive discipline" of Lado set the
stage for the following development.
On Saturday, October 20. 1979, Lado was approached
by Eliot Feldman, supervisor of the combo room. Their
accounts differ as to what was said then. Lado testified
that Feldman asked him to work immediately on a part
needed in the combo room that day and that he told
Feldman that he would have to get Heinzer's approval
before he could change his work assignment. Lado testi-
fied that Feldman told him that Heinzer was not in the
plant and that he, Feldman, would take full responsibili-
ty. (Lado's work is related directly to the combo room
functions.) Lado thereupon complied with Feldman's re-
quest and was discharged on Monday, October 22, pur-
portedly for having a "third" time worked on a job
different than the one assigned him.
Feldman testified that he never asked Lado to do a
rush job for him on October 20, but that he merely gave
Lado a part and requested him to have Heinzer put it in
his work schedule sometime in the early part of the next
week. I do not credit Feldman. There does not appear to
have been anv need for Feldman to have made such a
request of Lado then and it is unlikely he would have
chosen Lado to relay that request to Heinzer as Lado
spoke little English then and, 2 ' as Feldman could more
easily have waited until he saw Heinzer or could have
asked other tool-and-die employees nearby who spoke
fluent English to relay such a request or he could have
left a note on Heinzer's desk. It is unlikely, had Lado al-
ready been the recipient of prior written warnings foir ig-
noring Heinzer's orders, that Feldman would have made
such a strange request of Lado and that Lado purposely
seized upon it to flaunt the instructions of Heinzer. Yet,
that is Respondent's basic contention respecting its
reason for discharging Lado. I find no merit in it and
find instead that Lado was effectively "set up" by Feld-
man's assurances that the job was a rush job and that
Feldman would take full responsibility. Coupled with the
other credited evidence, i.e., that Formoso wanted Nani
to invent a reason to conceal the discharge of L ado be-
cause of his support for the Union. I conclude that
Lado's discharge was discriminatorily motivated.
Ill. I'Ht tUNION'S OBJI!CI'IONS IN CASE 2-RC-18196
Objections 1, 3. 6, and 8 which had been filed by the
Union to the conduct of the election on January 10,
1979, have been reinstated for purposes of a hearing and
have been consolidated with the related unfair labor
practice issues discussed above.
-' I t, ha.d l snci beti takilg rigl i',,h o r,,e, ii light class
1004
()hiect ion I
()bjection I stales:
I The conipanl is charged 'it h coercion prior to
the election 1he imdiildual s kas summoned to the
personncl offitce and Ii lltC rgated L t w hethe lllr lihe
had signed a card and if not vho did sign the cards,
and inslruclted to return swith iformanl;ltioll regarding
the signing of the cards l here are t'o affidav it in
support of these charges s, hich I e will submit at
the proper time.
T he original Report on Objections issued on June 13,
1979, It noted that there ,.as some interrogation of em-
ployees respecting union activities, that that interrogation
had occurred a month before the election, and that there
was no evidence that two-thirds of the employees in-
volved vwere subjected to any unlawful interrogation
Based on these considerations, the report recommended
that this objection be overruled No exception thereto
was filed and the Board later adopted that recommenda-
tion.
The interrogations of employees Luisa Lado, Hall, and
Colon prior to the election, as found above, correspond
to the matters set out in that Report on Objections. The
only other area of interrogation of employees respecting
their feelings towards unions is that disclosed by the evi-
dence concerning the questioning of applicants for en-
ployment during their pretest interviews. It is obvious
that the interrogations of Lado, Hall, Colon, and the ap-
plicants for employment were matters which were con-
sidered in the initial Report on Objections or were readi-
ly ascertainable then. Every employee in the unit had un-
dergone such examination before they were hired, The
procedural issue to be considered now is whether it is
appropriate to reopen the representation case investiga-
tion as to those matters. The Union might assert that the
Board already has reopened the matter and that the
merits alone must be considered. Yet, the Board's order
adopting the Supplemental Report on Objections over-
ruled Respondent's exceptions without prejudice. The
procedural issue thus must be considered.
The Board has had occasion to consider substantially
the same procedural issue when it sustained an employ-
er's exceptions which, inter alia, contested the propriety
of a regional director reopening a closed representation
case hearing via a supplemental report on objections
where the reopening pertained to matters uncovered
during the investigation of unfair labor practice charges
filed after the issuance of the first report on objections
and notice of hearing. 2 The supplemental report issued
after the hearing on the original objections had closed;
the supplemental report recommended that that hearing
be reopened. The Board overruled that recommendation
on the ground that inordinate delays in the determination
of representation case matters are not to be encour-
aged. 2" The Board adopted the Hearing Officer's recom-
- .41hunqy 'rquc lPithisng ( ,nri', 241 NI RB 631 (1751 See altso
Heclu MIlning ( m,ntpur , '1S NI RH lSW (1475), cited thereit
25 4/huq'rilqui Pul, shl, mg. upra ar 613
menldatlnt, contaitned in his report which issued after the
supplemental report on objections had issued and certi-
fied the results of the election in that case It seems to
me that the Certification of Results which issued in the
instant case in 1')79 is governed by the same principle as
that set out il the .-lbuquerqu Puhlishing case; the rea-
sons of policy applicable there also apply here and "with
equal, if not greater, force
The same rationale \was used by the Board in a later
case , ,here the Board denied a motion to revoke a certi-
fication of representative 2i In that case, the motion was
filed 7 months after the election had been held and some
2 months into the certification year The Board stated in
that case that. iln the exercise of its discretion, it deemed
it unwise to permit a party to file new objections for an
indefinite period of time "[for to do so would leave
open to continued questioning the validity of a Board
certification." The Board specifically noted in that case
that a valid election must normally be given conclusive
effect for a reasonable period of time.
I recommend that the Board sever Case 2-RC-18136
from the unfair labor practices and reissue the Certifica-
tion of Results of the Election held on January 10, 1979,
based on the principles set out in Albuquerque Publishing
and the other cited cases. 27
ObJection 3
This objection states:
3. There were five meetings called by the employer
on company time at which speeches were made to
the workers about the inadvisability of joining the
union.
The initial Report on Objections summarizes Respond-
ent's campaign propaganda and concludes that it did not
exceed the limits established in Section 8(c). I have, as
noted above, found that the speech of Respondent's
president, Haskoe, on December 13, 1978, particularly
when considered in context with the "plant closed" car-
toon constituted a warning to employees that Respond-
ent would close its plant if they selected the Union as
their representative.
"2 Rei, hart I -rniture Company. 2163 NI.RB Ith9 (197T)
"'his recomnmendation is obviouslt inconsistent with ihe resolutlto I
made earlier respecting the merits of the related unfair lahlxr practices
that earlier recolmlmendation was premised on an entirels different
hasis unfair labor practice cases closed by the (ieneral Counsel as a
result of the administrali e inesfigalion may be, according Io Hoard
precedetr. reopetned by the General Counsel under the authority con-
lfrred upon him under Ihe Act in issuing complaints The mnion and Re-
spondenl hase each asserted that the Board should adopt a uniform ap-
proach Respondeni would ha\c the Board dismiss the unfair labor prac-
tice case o th;llat it resultl ould he In harmony with the representation
case: the Unliion ould have the Board direct a new election based on the
unfair lhbor practices found In its brief, Respondent "urged the Board to
entuncilate a pohlc! llhereh a single standard will hbe applied In the re-
lpelililg of unfair labor practice charges and in cases to reopen a con-
lud i d unfaiir Iabor practice hearing Respondent recognizes that the
tloird holding in (al/! rtlzl Paci/i' Sign Ic, supra, is binding on me
()h s ios,,l Respondenl t call pursue its contenlion hb filing an appropriate
ec epIioI to i is order in the unfair labor practice cases and the Ulilon
Cal d thd'li sll iic the reprcsentation as,
S,'l MI-AI l ()I S IN(
I)FCIlSI()NS ()1 NA I() NAI. I.AH()R REI.A I IONS O()ARI)
Notwithslanding mny ownI1 recommendation respecting
the alleged unfair practices encompassed by Haskoe's
speech and the cartoon, I find that the validity of Board
certificalions, once properly issued, and the need to
avoid uncertainly and a lack of finality in the Board's
election procedures are paramount considerations. 2 Fur-
lher, it appears that the Board had considered the very
same evidence and found it wanting when it adopted the
original Report on Objections. I therefore recommend
that Objection 3 also be overruled.
Objection 6
This objection states, "[V]acations were cancelled over
New Year's and Christmas."
Presumably, the Union was urging that such action
was taken by Respondent to improperly influence the
election results. In any event, no probative evidence
thereon was proffered and the Union did not pursue this
objection in its brief to me. This objection was found to
be without merit in the original report, adopted by the
Board. I find that this objection raises no substantial issue
affecting the election and recommend it be overruled.
Objection 8
Objection 8 recites that "[O]ne whole group of ten
was fired prior to the election because of indicated sym-
pathies for the Union."
The original Report on Objections had recommended
dismissal of this objection as the evidence thereon was
deemed insufficient and that recommendation was adopt-
ed by the Board in the absence of exceptions. My factual
findings above are to the same effect and, in any event,
the December 8 layoff preceded the date of the filing of
the petition and thus may not be considered objection-
able conduct. 2 Based on the foregoing, I recommend
that Objection 8 be overruled.
As I have recommended that all the objections consol-
idated for hearing be overruled, I further recommend
that a Certification of Results of Election be issued that
the Union did not obtain a majority of the valid votes
cast at the election held on January 10, 1978.
CONCI.USIONS oF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating applicants for employment as to
their membership in, and their sympathies for, labor or-
ganizations and by interrogating employees as to their
support for the Union, Respondent has engaged in and is
engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
4. By implicitly warning its employees in its campaign
propaganda that it may close its plant in order to dis-
courage its employees from voting in favor of represen-
tation by the Union, Respondent has engaged in, and is
2 Reichuaf rurntl C'rtnpan. vupra.
29 Ih, Idcl Idihe ctric and MSani u/al ,urcng C(ompany., 134 NItRH 1275
(I61h )
engaging in, unfair labor practices proscribed by Section
8(a)(1) of the Act.
5. By having discharged from employment and by
having failed to reinstate to its employ Natividad Escu-
dero, Jorge Colon, and Antonio Lado, and by having as-
signed Natividad Escudero to perform the work of as-
sembling small units for a protracted period from late
July to early August 1979, because these employees
joined and supported the Union, Respondent has en-
gaged in and is engaging in unfair labor practices pro-
scribed by Section 8(a)(1) and (3) of the Act.
6. Respondent did not violate Section 8(a)(1) and (3)
of the Act when it laid off 10 employees on December 8,
1978.
7. Respondent did not, through its former supervisors,
Walter Caudle or Fernando Agostinho, threaten employ-
ees that its plant would be closed or moved if the em-
ployees selected the Union as their collective-bargaining
representative and thus the alleged violations of Section
8(a)(l) of the Act thereon must be dismissed.
8. Respondent did not violate Section 8(a)(l) and (3)
of the Act in any manner other than as set forth in para-
graphs 3, 4, and 5.
9. The unfair labor practices found above in para-
graphs 3, 4, and 5 affect commerce within the meaning
of Section 2(6) and (7) of the Act.
10. The unfair labor practices committed by Respond-
ent demonstrated that it has a propensity to violate the
Act and therefore a broad remedial order is warranted.30
11. The unfair labor practices committed by Respond-
ent are not so egregious as to warrant the entry of a bar-
gaining order, as requested by the Union in its brief, par-
ticularly in the absence of any showing that the Union
represented at any time a majority of Respondent's em-
ployees and as the election, upon which a Certification
of Results should issue, resulted in a tally of ballots
showing that a majority of the unit employees did not
select the Union as their representative.
12. It is appropriate to certify the results of the elec-
tion held on January 10, 1979, in Case 2-RC-18196 and
to overrule the Union's Objections 1, 3, 6, and 8 to the
conduct of that election.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act. I have found that Respondent discharged Natividad
Escudero, Jorge Colon, and Antonio Lado, for reasons
which offended the provisions of Section 8(a)(3) of the
Act. I shall therefore recommend that the Respondent
make them whole for any loss of pay which they may
have suffered as a result of the discrimination practiced
against them. The backpay provided herein with interest
thereon to be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 3
1"' ttil o dt 'i ,d Inc, 242 NLRB 1357 (1979)
Sct gencrally , Ic I'luhimbing & tleating (,., 138 NLRB 716 (1962)
SEMIl.-Al.0I()YS. INC.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 1((c)
of the National Labor Relations Act, as amlenrded, I
hereby issue the following recommended:
ORDER : '2
The Respondent, Semi-Alloys, Inc., Mt. Vernon. Ne.s
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating applicants for employment as to their
membership in, or sympathy for, any labor organization
and from interrogating its employees as to their member-
ship in, and support for. Local 1783, International Broth-
erhood of Electrical Workers. AFL-CIO, herein called
the Union.
(b) Warning its employees that it may close its plant in
order to discourage them from voting in favor of the
Union.
(c) Discharging or making discriminatory work assign-
ments to employees to discourage employees from join-
ing or supporting the Union.
(d) In any other manner interfering with, restraining,
or coercing employees as to their rights under Section 7
of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to Natividad Escudero, Jorge Colon, and
Antonio Lado immediate and full reinstatement to their
former jobs or, if they no longer exist, to substantially
12 In the esent no enxceptlioin are filed a, pro.ided hb Sec 1()2 4t of
the Rules and Regulalron, o>r Ihe Niational I abor Relatitons Btoard. the
findings, conclusiorns, and recommended ()rder herein shall, as; proilded
in Sec. 102 48 of Ihe Rules and Regulatolns, he adopted by the Board ilid
become its findings. conclusions. and Order, and all ohjeciioils therelo
shall be deemed waived fior all purposes
equivalenrl jobs and make them wrhole for any loss of pay
which they may have suffered as a result of discrimina-
lion practiced against them in the manner set forth in the
section of this Decision entitled "The Remedy'."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records and re-
ports, and all other records necessary to analyze the
amounts of backpay due herein
(c) Post at its Mt. Vernon, New York, plant. copies of
the attached notice marked "Appendix. " :' Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's au-
thorized representatives, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any materials.
(d) Notify the Regional Director for Region 2. in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
All alleged violations of Section 8(a)(1) and (3) set out
in the amended complaint, except for those referred to
above, are dismissed.
Objections 1, 3, 6, and 8 filed by the Union to the elec-
tion held in Case 2-RC-18196 are overruled and a certi-
fication of results shall issue that a majority of the valid
votes counted, plus challenged ballots, were not cast in
favor of representation by the Union.
H In the eent thalt ihis ()rder is enfiorccd hs ;a Judgment of a Lrniled
St;ics e Court of Apperal,. Ihe 'reords In the iiollce rea.ding 'Posted hb
Order of the Natitonal .;abor Rellti ons Hoard" shall read "Po.sted tPursu -
.inl to a Judgment of the Llnited States Court of Appeals Enforcing an
Order of the National L.ahlor R elaliions Boa.rd"