Sound Technology Research

National Labor Relations Board - Board Decisions

Nov 18, 1975

221 N.L.R.B. 496 (N.L.R.B. 1975)

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STR, Inc., d/b/a Sound Technology Research and Art
Mungia and STR Employees Association , Party in
Interest. Case 20-CA-9972
November 18, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On August 7, 1975, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision.
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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions, of the Administrative Law Judge to
the extent consistent herewith.
1. The Administrative Law Judge found that
Respondent violated Section 8(a)(1) of the Act by
interrogating its employees about their union activi-
ty, threatening to close its plant if the Union was
selected as the collective-bargaining representative,
and granting benefits to the employees in order to
dissuade them from supporting the Union. We adopt
these findings, to which no exceptions were filed.
2. The Administrative Law Judge also found that
Respondent violated Section 8(a)(2) of the Act
through its active assistance to the STR Employees
Association, and recommended that Respondent
desist from recognizing and dealing with such
Association until such time as it is certified by the
Board. We believe that the record shows that
Employer not only assisted the Association, but that
its activities were such as to constitute domination of
the organization. Thus, Respondent suggested and
encouraged the formation of the Association, active-
ly participated in the selection of its representatives,
provided a managerial employee to assist in the
organization of the Association, imposed a time limit
for the submission of a proposed agreement, and
allowed the Association to use company facilities
and resources and to meet on company time for the
purpose of accomplishing its purpose. An agreement
with the Association was concluded within the time
limit contemplated by Respondent. The Association
1 Neal is not involved in this case
has no constitution or bylaws and collects no dues.
The Administrative Law Judge himself found:
There is no question , under such circumstances,
but what the employees were influenced by
Respondent 's action and would not have an
association totally their own , free from any
persuasion by their Employer [sec. E , Analysis].
Upon the record as a whole , we find that Respondent
violated Section 8(a)(2) of the Act by assisting and
dominating the STR Employees Association and
shall enter the appropriate remedy of disestablish-
ment.
3. The Administrative Law Judge .found that the
suspension by Respondent of all of its production
employees on August 27 was unlawful and violated
Section 8 (a)(3) of the Act . We also adopt this finding,
to which there was no exception.
All of the employees , except Munguia and Neal,'
were rehired on August 28 so that, as it turned out,
the discrimination against them lasted but I day.
Munguia did not report on August 28 as Respondent
suggested that the suspended employees do, and the
Administrative Law Judge found that the discrimina-
tion against Munguia also lasted but 1 day, that there
was no further discrimination against him, and that
Munguia was not entitled to reinstatement or
backpay after August 27-28. We do not agree with
this treatment of Munguia.
Munguia was unlawfully suspended on August 27,
with all the other employees . Although the employees
were told to report to the plant the following
morning, it was not a certainty that all or any of
them would be returned to work. That was a matter
left to Respondent's discretion to be exercised on an
individual basis. The suspension on August 27 was
therefore one of indefinite duration , giving rise to an
obligation on Respondent 's part to reinstate those
who were thus discriminated against. The nonap-
pearance of Munguia at the plant on August 28 did
not eliminate Respondent's obligation to reinstate
him without loss of seniority and other benefits. And
Respondent has not established that it has yet
fulfilled this obligation . We conclude that , as a result
of Respondent's unlawful suspension of Munguia on
August 27 , Munguia is entitled to reinstatement with
backpay since August 27, 1974.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that STR, Inc., d/b/a
221 NLRB No. 103
SOUND TECHNOLOGY RESEARCH
Sound Technology Research, Sacramento, Califor-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed to
them by Section 7 of the National Labor Relations
Act, in violation of Section 8(a)(1) of said Act, by
interrogating its employees about their and their
fellow employees' union activity; by threatening to
close its business if its employees select a union as
their collective-bargaining representative; and by
granting benefits to its employees in order to
dissuade them from supporting a union.
(b) Dominating, assisting, and contributing to the
support of, or interfering with, STR Employees
Association, or giving effect to the agreement
executed February 21, 1975, by and between Re-
spondent and said Association. Provided however,
that nothing in this Order shall require or authorize
Respondent to vary or abandon any wage, hour,
seniority, or other substantive benefit it has estab-
lished for its employees because of the aforesaid
agreement, or to prejudice the assertion by its
employees of any rights they derived as a result of
said agreement; and further provided, that nothing
herein shall be construed' as prohibiting its employees
from forming, joining, or assisting any labor organi-
zation.
(c) Recognizing STR,Employees Association, or
any successor thereto, as the representative of its
employees concerning wages, rates of pay, hours of
employment, or any other terms and conditions of
employment.
(d) Discriminating against its employees in viola-
tion of Section 8(a)(3) and (1) of the Act by
suspension of employment.
(e) In any other manner interfering with, restrain-
ingr or coercing its employees in exercise of the rights
guaranteed to them in Section 7 of the Act.
21 Take the following affirmative action, which
will effectuate the policies of the Act:
(a) Offer to Art Munguia immediate, full, and
unconditional reinstatement to the job held by him
immediately prior, to August 27, 1974, or, if that
position no longer, exists, to a substantially equiva-
lent one, without prejudice to his seniority or other
rights, privileges, or' working conditions; and make
whole all production employees for their loss of
earnings occasioned by their suspension on, August
27, 1974, in the manner set forth in the section of, the
Administrative Law Judge's Decision entitled "The
Remedy."
(b) Withdraw and,withhold recognition from and
completely disestablish STR Employees Association
or any successor thereto as the representative of its
employees at Sacramento, California, for the purpose
497
of collective bargaining, including the settlement of
grievances.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Sacramento, California, place of
business copies of the attached notice marked
"Appendix." 2 Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by a representative of
Respondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act and hasordered us to post this notice.
We intend to carry out the Order of the Board and to
abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed
to them by Section 7 of the National Labor
Relations Act, by interrogating our employees
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about their and their fellow employees' union
activity; by threatening to close our business if
our employees select a union as their collective-
bargaining representative; and by granting bene-
fits to our employees in order to dissuade them
from supporting a union.
WE WILL NOT assist or contribute to the support
of, dominate, or,interfere with STR Employees
Association, or give effect to the agreement
executed -February 21, 1975, by, and between us
and said Association.
WE WILL NOT vary or abandon any wage, hour,
seniority, or other substantive benefit established
for our employees because of the aforesaid
agreement or -prejudice the assertion by our
employees of any rights they have derived as a
result of said agreement.
WE WILL NOT recognize and will completely
disestablish STR Employees Association, or any
successor thereto, as -the representative of our
employees concerning wages, rates of pay, hours
of employment, or any other terms and condi-
tions of employment. ,
WE WILL NOT discriminate against our employ-
ees by suspension of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed to them in
Section 7 of the Act.
WE WILL make whole all production employees
for their loss of earnings occasioned by their
suspension on August 27, 1974.
WE WILL offer Art Munguia immediate and full
reinstatement to his former position or, if this
position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges.
STR, INC., D/B/A
SOUND TECHNOLOGY
RESEARCH
DECISION
STATEMENT OF'THE CASE
RUSSELL L . STEVENS, Administrative Law Judge: This
matter was heard at Sacramento , California, on June 24
and 25, 1975.1 The complaint ,2 issued May 12, 1975, is
based on an initial charge filed February 19, 1975, and an
amended charge filed April 23, 1975, by Art Munguia, an
individual . The complamt alleges that STR, Inc., d/b/a
Sound Technology Research , hereinafter referred to as
Respondent and sometimes as STR, violated Section
8(a)(1), (2), and (3) of the National Labor Relations Act,
hereinafter referred to as the Act.
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is a California corporation with its principal
-place of business located at Sacramento, California,
engaged in the manufacture of stereo speakers . During the
past calendar year Respondent, in the course and conduct
of its business operations , purchased and received at its
facilities in the State of California goods valued in excess of
$50,000 directly from suppliers located outside the State of
California, and sold goods valued in excess of $50,000 from
its California location directly to customers outside the
State of California . I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
STR Employees Association (hereinafter Association)
and Millmen and Industrial Carpenters Local Union No.
1618, United Brotherhood of Carpenters and Joiners of
America (hereinafter Union), are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
STR is a small corporation organized in 1972. Its
principal business is the manufacture and sale of stereo
speakers. Shareholders include George Platis (hereinafter
Platis) and- Bradford Smith (hereinafter Smith). Officers
include Platis, who is president and general manager, and
Smith, who is vice president. Norman Haffly (hereinafter
Haffly) is personnel manager and Wayne Schumacher
(hereinafter Schumacher) is production manager.3
From the date of its organization until early January
1975 STR was located in leased facilities on La Grande
Avenue in South Sacramento and had about 25 employees.
New investment of capital was made in November 1974,
warranting expansion and a move in January to owned
premises on Orange Grove Avenue, and permittmg a
substantial increase in production. Employees were in-
creased to about 33. Most of the actions involved herein
took place at the first location, between August and
December 1974.
Art Munguia (hereinafter Munguia) was hired by
Respondent in July 1972 as a cabinetmaker. Following
agreement among several employees, Munguia was asked
to solicit an appointment with a union representative and
Munguia visited Local 1618 in July 1974. At Munguia's
request Clarence McNeely, the Union's business represent-
ative, met with employees off-premises after work near the
end of July. Umon authorization cards were signed by all
employees present, and handed to McNeely. Between the
July meeting and August 27 (a date involved herein) two or
'three other meetings were held between the Union and
STR employees.
1 All dates hereinafter are within 1974, unless stated to be otherwise. 3 It is found that Plates, Smith, HalEy, and Schumacher are supervisors
2 As amended June 11, 1975. Amended answer was filed June 12, 1975. within the meaning of the Act.
SOUND TECHNOLOGY RESEARCH 499
On August 27 Platis held two meetings at the plant, one
in the morning and one a little later, possibly about noon.
The first meeting was held in Platis' office and the second
meeting was held in the soundroom. Conversations during
those two meetings form the basis of much of the
controversy herein, and testimony about the meetings is
conflicting, as discussed below. Munguia ceased working
August 27 and contends he was discharged on that date
during the first meeting because of his union activities.
Respondent contends Munguia quit, or failed to report for
work as instructed, as discussed below.
All employees were told at the second meeting on
August 27 that the plant was being closed, and they were
sent home that day with instructions to return the
following day for possible rehire. All were rehired August
28 except Munguia. The reason for closing the 1 day, and
the reason for failing to rehire Munguia, is in dispute as
discussed below.
Based on authorization card signatures, the Union filed a
petition with the National Labor Relations Board on
August 23. The petition was dismissed by letter dated
September 16, for lack of jurisdiction. Thereafter, on a date
not established at hearing but probably in September, a
group of employees engaged for a period of time in
picketing Respondent's plant. Picketing was discontinued,
and sometime thereafter the Association was organized.
Following preparation of, and discussion concerning,
rough drafts, drawn with the assistance of Haffly, a final
proposal for an agreement between the Association and
Respondent was submitted to Platis. On February 21,
1975, the agreement was signed by representatives of the
Association and by Platis. General Counsel contends the
Association was interfered with by Respondent in violation
of the Act, which allegation Respondent denies.
A. Alleged Interrogation
Paragraph VI(a) of the complaint alleges that, on or
about August 27, Platis interrogated employees about their
union activity.
Richard ,Reynolds (hereinafter Reynolds), an employee
of Respondent from May until August 30, testified that he
attended a meeting in Platis' office about 10 a.m. on
August 27.4 Also, present, he said, were three other
employees5 and Platis, Smith, Haffly, and Schumacher
from management. Reynolds said Platis told the group he
received a letter from NLRB and an election was going to
be held; and "he asked of each, or as a group, what we
thought of the union . . . and he asked us individually."
Munguia testified in corroboration of Reynolds' testimo-
ny, but said the meeting was held at 11:10 a.m.
Thomas Brewer testified for Respondent and stated he
did not work August 27, although he went to the plant
about 1 p.m. and talked briefly with Platis and Smith. He
said he left the plant after 50 minutes or an hour, and did
not attend the meeting Reynolds said he attended.
Platis agreed that he called a meeting in his office the
morning of August 27 "for discussing the economic
situation, with my lead people." He said he also "inquired
about the NLRB petition."6 He explained his inquiry by
saying he knew nothing about a possible union election
before receiving the NLRB letter that morning; that he
asked Smith, Haffly, and Schumacher before the meeting if
they knew anything about "the union for our shop"; that
they replied they did not, and he pursued his inquiry
during the meeting to learn if any of the employees then
present knew what the letter involved. He said the
employees replied they knew nothing about the matter.
Platis said he thought there may have been a mistake with
the mail because Respondent's mail in the past had been
confused with that of another company with a similar
name: Sound Technology.
Haffly testified he was present at the meeting, that those
present were asked if they knew anything about the
election possibility, that the subject was "kicked around",
and "I believe, Mr. Reynolds, I believe was one of the ones
that said he knew something about it."
Schumacher testified he was present at the meeting, and
that Platis "said he received the letter that morning and I
had heard before the meeting that he had received a letter,
and he asked the people that were in the meeting if anyone
knew how it came about and nobody really knew."
Smith was not questioned by Respondent concerning
this meeting.?
Analysis
The testimony of Respondent's witnesses relative to the
defense to this allegation is not credited for several reasons,
including discrepancies in such testimony and observed
demeanor on the stand.
Platis testified that, when he asked whether anyone
present at the meeting knew anything about the Union or
the letter from NLRB, "their reaction was, from everybody
including Art Munguia, that they knew nothing about it."
However, Haffly testified that Reynolds "was one of the
ones that said he knew something about it."
Platis' pretrial affidavit differed substantially from his
testimony, as pointed out above.
Platis testified that he called the meeting "for discussing
the economic situation with my lead people." Brewer is a
leadman, and testified he was not at the meeting, but
Munguia and Reynolds testified that Brewer was present.
None of Respondent's witnesses, other than Brewer, said
Brewer was not present.
Finally, Platis testified that, prior to the meeting, he
asked Smith, Haffly, and Schumacher if they knew
anything about "the union for our shop" and they said
they didn't. However, Smith and Haffly did not mention
such a conversation with Platis, and Schumacher only
stated "I had heard before the meeting that he had received
a letter."
4 The first meeting held that day.
5 Art Munguia, Tom Brewer, and Steve Witt, all found not to be
supervisors. All were identified at the hearing as leadmen.
8 In his affidavit given to an investigator March 18, 1975, Platis stated, "I
told them I received a letter from the NLRB and I was surprised. I asked
each person if they knew about the union, had they written to the union, or
did they have any complaints about the business situation , all except
Reynolds said they knew nothing."
r Questioning about the subject on cross-examination therefore was not
allowed.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the foregoing, and from Platis' testimony,
that Plates questioned the employees rather extensively at
the first meeting on August 27 about the possibility of
union activity at the plant. Only the nature of that
questioning is in dispute, but even that factor is made clear
when,Platis' affidavit is considered .8 Haffly acknowledged
that the NLRB matter was "kicked around," and that
employees were asked if they knew anything about an
election possibility. Respondents contention that, in his
questioning, Platis merely was seeking information, is
unrealistic and is not credited. The discrepancies in the
testimony of Respondent' s witnesses, pointed out above,
preclude acceptance of the defense.
The testimony of Reynolds and Munguia relative to this
charge is supported by the testimony (and affidavit
statement) of Platis, and partially by the testimony of
Haffly and Schumacher. Based on such support, the
testimony of Reynolds and Munguia is credited.
It is found that this allegation of the complaint is proved.
B. Alleged Threat to Close
The complaint alleges that, on or about August 27, Platis
threatened to close Respondent's plant if employees
selected the Union as their collective-bargaining represent-
ative.
Reynolds testified that, during the first meeting held by
Platis as discussed above, Platis "mentioned that if the
union came in, that he could not afford the union and that
he would have to close down the shop, because the union
... he just couldn't afford the union."
Munguia testified that, during said first meeting on
August 27, Platis asked "the management people" what
they thought about union organization of Respondent.
Smith said "there was no way he would support a union."
Haffly said nothing. Schumacher said he couldn't believe
that his friends would go behind his back and make such
demands. Platis then said "Well, there is only one thing to
do here and that is to close down the shop." Munguia
further testified that, during the second meeting on August
27, described above, Platis informed all the employees that
"everybody was laid off for the day" and when several
people asked Smith what was going on, Smith replied "due
to union activities, that they couldn't afford the union, 'they
would have to close down." After Platis, Smith, and Haffly
were outside the, room together about 5 minutes, they
returned and Platis said that all who wanted their jobs
back couldhave an interview.
Brewer testified that he did not attend the meeting, and
that Platis did not tell him he was going to close the shop
because of union activity. He also said neither Munguia
nor anyone else told him Platis made such a threat to close
the.plant.
Platis denied the charge, and testified that he told the
employees "I'm going to have to close down until we
receive the check." He explained that the check was one
due from a customer in Canada, and that its receipt was
8 Plates' attempt to explain away his affidavit statements was weak and
unconvincing That part of lus testimony is not credited
9 The complaint alleges that Platis and Smith were present at the
interrogation, whereas the proof established that Platis and Haffly were
involved. This inconsistency is immaterial, since Haffly was the principal, if
expected August 26. Not having that money available for
the payroll, Platis said it was necessary to close. The check
was received August 28, as discussed below:
Smith and Haffly did not testify on this subject.
Schumacher said only 'money problems and the NLRB
letter were discussed at the meeting, and he testified that
Platis did not say anything about closing the shop because
of union activities.
Reynolds and Munguia are credited on this subject, for
the reasons explained in section B, next preceding.
It is found that this allegation of the complaint is proved.
C. Alleged Interrogation
Paragraph VI(c) of the complaint , as amended , alleges
that, on or about August '28, Platis and Smith interrogated
employees about their and their fellow employees' union
activities.
Louis Maglaya (hereinafter Maglaya), a cabinet builder
for Respondent; credibly testified that he was called into
Platis' office August 28. He said Haffly also was there. He
testified Platis asked him, "if I ... knew anything about a
union, or a union being formed,"' and that, after a
discussion of 5 or 10 minutes, Haffly said "never mind, let
him go back to work, he doesn't know anything." Maglaya
further stated Platis "told me, in the future, if I wanted to
keep my job, to keep my nose clean and stay out of trouble
and don't associate too much with the other employees."
Neither Platis nor Haffly denied, or testified about, the
conversation with Maglaya.
It is found that this allegation of the complaint is
proved.9
D. Alleged Granting of Benefits
Paragraph VI(d) of the complaint alleges that, on or
about September 3, Platis granted benefits to employees in
order to dissuade them from supporting the Union.
There is no controversy about the fact that, prior to
September 3, Respondent had no written policy statement
about company "fringe benefits," and that on September 3
Haffly prepared and distributed, pursuant to Platis'
instructions, the policy statements shown in General
Counsel's Exhibits 5 and 6.
Further,,there is no controversy about the fact that some
of the benefits listed on General Counsel's Exhibit 5 were
in effect prior to September 3 (personal projects, purchase
of company materials at,, discount prices, and paid
holidays), and some were,not in effect (birthday day off,
msurance,10 fixed policy on periodic pay raises, it pro-
gressive vacation schedules, profit sharing plan proposal,
and employee association).
Respondent contends General Counsel's Exhibits 5 and
6 were prepared in the normal course of business, without
reference to union or concerted activity.
not the only, person conducting the interrogation. Testimony establishes an
unlawful interrogation, which is the substance of the charge.
io An insurance program was instituted effective in late August
ii G.C Exh. 6, dated September 4, 1974.
SOUND TECHNOLOGY RESEARCH
Analysis
The subject of union activity at Respondent's plant was
discussed by Platis in the meeting between leadmen and
management the morning of August 27. It has been found
(A, B, and C, above) that Platis interrogated and
threatened employees in violation of the Act on August 27
and 28. It is found below that Respondent engaged in
additional violations of the Act on and after August 27.
Respondent had no formal written company policies
relating to the subjects covered in General Counsel's
Exhibits 5 and 6, prior to the date of those exhibits
(September 3 and 4). Some of the items on those exhibits
were in effect prior to September, and Haffly testified that
a possible insurance program was discussed with employ-
ees, July, but for practical purposes substantial benefits,
granted and promised by implication, described in the two
exhibits first became tangible on September 3 and 4. Haffly
testified there was no particular reason to select those dates
for preparing the policy statements. Respondent had been
in business more than 2 years when the statements were
prepared, and the only apparent reason shown by the
record for the decision to issue the statements was the
sudden spurt of union activity in late August.
The fact that Respondent's promises were promises of
benefits is beyond question. They were advantages the
employees did not have prior to promulgation of General
Counsel's Exhibits 5 and 6. Further, even those benefits
listed on the exhibits that the employees enjoyed prior to
September 3 and 4 were of uncertain nature, not having
been reduced to writing or discussed with employees. They
were granted at the whim of Respondent, and could be
withdrawn at will. Their mere reduction to writing
constituted a benefit under such circumstances.
In view of Respondent's union animus, its several
violations of the Act during the period August-November
discussed herein, its encouragement of and assistance to an
in-house association, and the timing of the granting of new
benefits, the conclusion that the benefits were given in
order to discourage union organization is inescapable.
It is found that this allegation of the complaint is proved.
E.' Alleged Interference with Employee Association
Paragraph VII alleges that Respondent illegally dominat-
ed or interfered with STR Employees' Association by
assisting in its organization and by entering into a
collective-bargaining agreement with it.
James Perfetti (hereinafter Perfetti) testified as follows:
In October 1974 he was called into Platis' office, and Platis
said "a union would only mess things up, create a wall
between the employees and management and so instead of
having a union, it would be better just to have an
employees association . . . maybe if we didn't have time to
meet, maybe he could give us some time during work hours
to Meet." As Perfetti was going back to work, Platis told
him he was getting a raise to $2.50 per hour [he had been
receiving $2 per hour] effective the preceding Monday. A
few days later, Perfetti again talked with Platis in the
latter's office, and Platis asked if Perfetti thought an
12 Jimenez said that when this draft was given to the representatives,
Haffly told them he no longer could be their advisor because he was part of
501
employees' association was a good idea. Perfetti replied
yes, and Platis said ". . . well, why haven't you done
anything about it." Platis then told Perfetti to get the
names of the employees from Haf ly and ask the
employees to choose three representatives. When Perfetti
talked with Haf ly the latter said the secretary was running
the names off then, and he gave Perfetti a stack of
mimeographed employee lists. Perfetti circulated the lists,
and the employees circled the names of the representatives
they wanted and dropped the lists in the suggestion box,
used as a ballot box. The following day Haffly or
Schumacher opened the box, and Perfetti and Haffly's son
counted the votes. Perfetti was elected as one of the
representatives. He was terminated 2 or 3 weeks later, for
swearing in the presence of women after previously having
been warned not to do so.
Jack Jimenez (hereinafter Jimenez) testified as follows:
In November 1974 Platis called Jimenez and four other
employees into his office, and told them he had picked the
five as temporary representatives for the Association and
that the five should start to formulate some kind of
proposed agreement with STR. Platis said the five could
inspect company books and records, and that he preferred
an Association to unionization - that ". . . he would
rather lose half his shirt than all of it." Platis again talked
with the five about January 20, 1975 (after the plant was
moved to the new location on Grove Avenue), and asked
why they had not prepared a proposed agreement. Platis
said the employees would have to select permanent
representatives, and he gave the five until February 25 to
submit a proposed agreement. Platis stated that Haffly and
"all the facilities at STR" were at their disposal. After the
meeting with Platis the five met with the employees on
company time. The five temporary representatives were
elected as permanent representatives, and thereafter met in
the evening at Jimenez' home to draft a proposed
agreement. The proposal was given to Haffly, who gave
each of the five a proposed agenda for meetings (G.C. Exh.
8). 'Haffly also showed the five a copy of a letter Haffly had
prepared, showing the names of each of the five as
signatory, to be typed and given to Platis to show that the
Association had been formed, and its purpose (G.C. Exh.
9). The letter thereafter was prepared in final form by
Haffly, signed by each of the five representatives (G.C.
Exh. 10), and given to Platis, who acknowledged its receipt
(G.C. Exh. 11). Haffly also gave the five a proposed
agreement (G.C. Exh. 12) which they reviewed, suggested
changing, and returned to Haffly who again reviewed the
document and had it prepared in draft form.12 Haffly gave
the five a final proposal on February 20, which was
discussed and approved by all the employees. The
agreement was signed February 21. On cross-examination
Jimenez testified that Haffly volunteered his services = the
employees did not ask him to help. During preparation of
drafts of proposals, Haffly suggested some changes and the
representatives suggested others. Two meetings of all
employees about the association were held on company
premises during company time, lasting 30 minutes to 1
hour each,, and meetings of the five representatives were
management. Haffly denied this statement. Jimenez is credited
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held at their homes, on their own time, except when they
met with Haffly in his office. Schumacher and Witt were at
the first of the employee meetings, but they did not talk -
they just "listened." Platis was the first to suggest-an
association - he made the suggestion at the former plant
location, when employees were trying to organize for union
representation.
Haffly testified there had been interest among the
employees "for some time" in forming their own associa-
tion but they had no one to advise them. He said he passed
the word through his wife, who is a shop employee, that he
would be willing "to assist in the preparation of a
document, which they in turn could submit to management
if they wished." He acknowledged preparing General
Counsel's Exhibits 8, 9, 12, and 13, and said he was
uncertain about preparation of General Counsel's Exhibits
10 and 11. Haffly said he was interested in the matter
because his wife and son work in the shop, and that he did
not represent the Company when he met with, and
assisted, the employees in preparing the proposals. He said
all the ideas embodied in the proposals were those of
employees - he only helped with the wording, and with
preparation of an agenda.
Brewer testified for Respondent, and said the idea of an
employees' association first was mentioned by Mike
Thompson, an employee, during a meeting of employees
attended by "management." He said Haffly was "engaged"
to help because "he had access to a copy machine and he
had a few ideas for us . . . and he was familiar with
drawing a contract of that type up...." He stated the
employees asked Haffly to assist them. Brewer said the
meeting at which the association was suggested was not
called for that purpose - it was called primarily to discuss
other matters, including ways to improve production and
tardiness of employees. The meeting was held after moving
to the, new plant, and Brewer knew of no discussions
among employees about an association while the plant was
at the former location. Brewer testified later in his
examination in a different manner. He said he first
discussed the possibility of an association with his brother,
at home, in July 1974, and that he first mentioned the
subject. He said that, so far as he knows, he was the first
person, to suggest the idea of an association to anyone at
the plant. Brewer said he was interested, in the Union in
July, but could not afford the dues.
Platis testified that Mike Thompson asked him about
forming an employees' association, and that Platis said he
did not mind, "my books are open to anyone that wants to
see it."' Platis said he never suggested an association. At
another point in his, examination, Platis gave a different
version of the association. He said Witt, Brewer, and
Jimenez came into his office early in December, represent-
ing the Association, and said they wanted to form an
13 It is recognized that the Board declined jurisdiction over Respondent
about September 16 and dismissed the Union's petition for election.
However, the fact that Respondent thereafter continued to be concerned
about the possibility of union activity at the plant is shown by Plates'
testimony, among other things Platis testified that he talked with Perfetti in
the parking lot about 3 weeks "after the event of the 28th" and that he then
told Perfetti that, if the Union came in, "we would have to have decisions
taken different than the ones we are taking right now, which it might include
layoff of employees before we have to or closing the company." Testimony
does not establish when an association first was seriously discussed, but it
association for better communication and in order to
obtain working benefits.
Analysis
The fact that Platis and Haffly knew about the
Association prior to its formation, and that Haffly actively
assisted its formation, are beyond question, and are
acknowledged by Platis and Haffly. Testimony of all
witnesses shows frequent discussion between Haffly and
the Association's representatives concerning formation of
the Association, exchange of ideas and suggestions as each
draft was discussed, contribution by Haffly of office
equipment, use of company time for discussions and
meetings' relative' to the Association, and management
approval at all phases of formation. Testimony concerning
birth of the idea for an association is contradictory, but
there is a strong inference, and it is found, partially based
on Platis' and Haffly's enthusiastic embracing of the idea,
that one or both of them either originated the idea or
encouraged its first expression.13 And it is not disputed
that completion of organization and execution of an
agreement were memorialized with management's enthusi-
asm and active participation, including picture taking. The
testimony of Perfetti and Jimenez is credited. There is no
question, under such circumstances, but what the employ-
ees were influenced by Respondent's action and would not
have an association totally their own, free from any
persuasion by their Employer. Such action by Respondent
constitutes interference, and is in violation of the Act.
Money Oldsmobile Company, 201 NLRB' 155 (1973); Glover
Packing Company, 191 NLRB 547 (1971); United States
Railway Equipment Company, 172 NLRB 708 (1968);
Goulds Pumps, Inc., 196 NLRB 820 (1972).
Iris found tha;i this allegation of the complaint is proved.
F. Alleged Discharge of Munguia
Paragraph VIII(a) of the complaint alleges that, on or
about August 27, Respondent discharged Munguia be-
cause of his union or concerted activities.
Munguia testified as follows: At the first group meeting
of August 27, Platis asked him what he thought of the
Union, and Munguia said he knew who was trying to
organize and that he would support the Union. Platis said
he would have to close the shop, Smith stated they did not
have to go to that extreme, and Platis replied "I'm ,not
going to lose any money on this . . . well, that means that
we're all fired. Munguia asked why he was being fired,
Platis said Munguia knew the reason, and Munguia replied
he did not know. He asked again and Platis said "because I
didn't have trust in the company and that I would go
behind the company to a union to represent the employees.
does establish (G C. Exh 5) that Respondent's policy on September 3 was to
offer employees fringe benefits that included "an employees association that
represents individual employees at the management level on any matter
concerning employees welfare." Further, the credited testimony of Perfetti
and Jimenez shows; Platis' strong encouragement of an association in
October and November.
It is found that Respondent 's purpose in assisting the Association was to
preclude union activity and union attempts to organize Respondent's
employees.
SOUND TECHNOLOGY RESEARCH 503
That that was a good enough reason to be fired ." During
the second meeting on August 27, attended by all
employees and by members of management , Platis and
Smith announced that the plant was being closed and
"everybody was laid off for the day." A few minutes later
Smith and Haffly said those who wanted to have an
interview about getting their jobs back should wait in the
production area. Munguia waited about a minute, then
went to the union hall . He returned to the plant between
12:30 and 1 and talked with Platis , who told Munguia to
wait . Munguia waited 3 hours, after which Haffly said
other interviews would be taken up the following day from
10 a.m.14 Munguia went to the plant on the 28th between
1130 and 1215 and spoke with Haffly , who told him he
was fired because he came in late. Munguia protested, and
Haffly said most of the employees came in at 9. Munguia
was terminated , and given a check for no amount (G.C.
Exh. 7). 16 After he left Haffly's office, Munguia saw and
spoke with Reynolds and Maglaya. Thereafter , on August
29 and September 10, Munguia spoke with Haffly and
Platis in an effort to get his job back , but he was not
successful . On October 10 Munguia received a registered
letter from Haffly offering reinstatement,17 and after
negotiations about whether Munguia would agree to start
as a -new employee and after Munguia said he would
accept a cut in pay , Haffly did-not pursue the matter and
Munguia never returned to work . Munguia said he owes
the Company $325 for materials he purchased, but that he
left tools at the plant worth about $800.
Platis testified as follows : He did not tell anyone August
27 that they would be fired or laid off because of union
activity . He called a general meeting that day to lay off
employees because a customer's expected check had not
arrived, and told the employees to come back the following
morning at 9. That time was selected because ' Platis was
going to the post office at 8 to see if the check arrived. The
check - arrived the 28th and Platis told Haffly to hire
everybody . Since Platis did not see Munguia on the 28th he
called him on the telephone the 29th, and Munguia said he
did not come to the plant on the 28th because he had to see
his parole officer . Platis asked Munguia to come to work
the 30th, but he did not appear. Munguia's check (G.C.
Exh. 7) was made out the 28th and since Munguiadid not
con^e in , it was sent by mail together with a receipt . 18 Platis
said ', he heard about Munguia's claim concerning the tools
and investigated the matter . He said only some wire was
found, which Munguia left; thereafter he heard no more
about the tools.
Haffly testified as follows: Platis told all the employees
at the second meeting on August 27 that he would have to
lay everyone off at noon that day because of financial
14 On cross-exanunation Munguia said the time was 10.30
15 On cross-examination Munguia said he went to the plant between
10:30 and 11.
16 'The final paycheck was for no amount because Munguia owed
Respondent an amount greater than his accrued wages. Munguia testified
he lost the receipt attached to the check.
17 Munguia testified he lost this letter.
18 This is the receipt Munguia testified he lost.
19 Neal is not involved in this controversy. He was rehired at a later date.
20 This testimony is challenged by General Counsel because of the
possibility Munguia was on the premises during Haynes' lunch hour The
time Munguia allegedly was on the premises varies considerably, from 9:05
problems and that they should come back in the following
morning at 9 to see whether the situation had changed.
Munguia's timecard shows he checked in on the 27th at
8:17 a.m. and checked out that day at 11:53 a.m. No entry
is shown after August 27. Haffly did not see Munguia on
the premises the 27th or the 28th, and no one told Haffly
they saw Munguia on those days. Haffly did not tell
Munguia, personally or by telephone, that he was terminat-
ed. Platis told Haffly to hire all the employees back on the
28th and all were rehired, except Munguia and Al Neal.19
Munguia did not call Haffly on the telephone the 28th,
although Haffly did write Munguia a letter offering
reinstatement, but at $2 per hour rather than the $2.50 he
made when he quit. The next time Haffly'saw Munguia
was several weeks after the 28th, when Munguia was
picketing Respondent.
Reynolds testified he saw Munguia in the office about
noon on the 28th and that he saw him that day about 1
p.m. in the shop, at which time Munguia said he had been
fired. Maglaya also testified that he saw Munguia on the
premises August 28.
Schumacher testified that Munguia was unreliable in his
work hours, and sometimes was half a day late. He said
Platis instructed all the employees on August 27 to come in
the following day at 9, but he did not see Munguia on the
28th. He did see him "a couple of days" after the 27th,
talking'with Haffly in the latter's office.
Smith testified that his office is in the same room as that
of Haffly, and that he did not see Munguia August 28.
Marjorie Haynes, receptionist and bookkeeper, said all
employees come through the front door when they come to
work, but that she did not see Munguia come in August
28.20
Analysis
Munguia contends he was told by Platis in the first
meeting of August 27 that he was being fired because of his
union activity. Reynolds, Brewer,21 and Witt also attended
that meeting, together with Platis, Smith, Haffly, and
Schumacher. No witness, for General Counsel or Respon-
dent, corroborated this contention of Munguia.22 It is
found that Platis did not tell Munguia August 27 that he
was fired.
Munguia also contends he was fired by Haffly on August
28, after reporting later than instructed. Haffly denied that
contention, and said he did not see Munguia on the 28th.
Reynolds testified he saw Munguia in Haffly's office
August 28,23 and Maglaya testified he saw Munguia
outside Haffly's office the 28th.24 However, Platis, Schu-
macher, Smith, and Majorie Haynes (receptionist and
or 9:10 a.m. (Maglaya) to I p.m. (Reynolds). That variance alone gives rise
to doubt about Munguia being at Respondent's plant August 28.
21 Brewer said he did not attend this meeting, but the evidence strongly
infers, and it is found, that he did attend.
22 Witt was not called to testify
23 This statement by Reynolds is not credited.
24 This testimony of Maglaya is not credited. He said he went to work
"early" the 28th, and saw Munguia as soon as he left Platis' office, where he
had been talking with Plans and Haffly, about 5 or 10 minutes after 9 or 10
a in. Yet Munguia said he did not arrive at the'plant until 11 30 or 12 on the
28th and that he saw Maglaya as he was preparing to enter Haffly's office.
(Continued)
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bookkeeper) testified they did not see Munguia on the
28th.
Munguia said the unsigned check (G.C. Exh. 7) was
given to him by Mrs. Platis at the plant on August 28, but
Platis said the check was mailed to Munguia. Munguia's
testimony on this subject was not convincing, and he said
he lost the receipt, which may have been of assistance in
resolution of the controversy.
Munguia's testimony on this subject, and his appearance
and demeanor on the stand, were not impressive. His
statements frequently were self-contradictory and vague.
His story about $800 worth of tools being left at the plant
was not corroborated and is not believable. He said he
"lost" Haffly's letter offering reinstatement. His claim to
having been fired by Haffly for coming in late is not
credited; it is found that Munguia was not on Respon-
dent's premises August 28., Even had he been fired for
reporting late, arguendo, that would be of no concern in
this proceeding unless the real reason for the discharge, or
part thereof, was union or protected activity.25 There is
nothing in the record to show that any member of
management knew of Munguia's union activity prior to
August 27, nor is there anything in the record to show that
Respondent at any time knew that Munguia was any more
active in union organization efforts than other employ-
ees.26 Yet, no other employee is alleged to have been
discharged because of his union activity. Thus, a finding
that Haffly discharged Munguia August 28 for union
activity cannot be supported. It is so found.
In view of the record thus made, the General Counsel
has not met his burden of proof, and it is found that this
allegation of the complaint is not proved.
G. Alleged Suspension of Employees
Paragraph VIII(b) of the complaint alleges that, on or
about August 27, Respondent suspended all its production
employees 1 day because of their union activities.
The fact that all production employees were off work
from about noon of August 27, following the second
meeting held that day, until the morning of August 28 is
not in dispute. The reason for the layoff is in controversy.
No witness testified that Respondent told the employees
they were being laid off because of union activity, nor did
any witness say that Platis mentioned the Union or the
NLRB petition letter during the second meeting of August
27. All witnesses who testified on this subject stated that
Platis gave as the reason for the layoff, either "economic
reasons," or the fact that a customer check did not arrive
on the 26th or 27th as expected. It is not controverted that,
when he announced the layoff, Platis told the employees to
Clearly Haffly could not be in two places at the same time, and the related
times are too far apart to ignore.
25 General Counsel argues that a statement by Platis to Jimenez "months
later" shows Munguia was fired by Platis. The statement by Jimenez was
"he was saying that it would be better to have this kind of agreement than to
go through and have any more hassles again and the people would have to
be fired or laid off like Mr. Munguia and Richard Reynolds." That
statement is highly ambiguous, and it is not probative. Reynolds was laid off
about 1 day with other employees, August 27-28, and later was fired for
cause not controverted herein . Munguia was terminated as discussed herein.
26 To the contrary, it is clear from all the testimony that, as of August 27
and 28 , Respondent believed Reynolds to be the principal union activist.
report the following morning. The time Platis said to report
on the 28th ism dispute, but that time is not determinative
of this issue. It is of interest only to the extent it was
considered in making the findings required in section F
next preceding.27
The defense to this charge is Platis' claim that a
Canadian customer's check in the sum of about $14,500
was expected August 26 or 27 but, did not arrive until
August 28. Because Respondent had a serious cash flow
problem, and the payroll was about $4,000 to $5,000 each
week, Platis found it necessary to suspend operations on
the 27th until an adequate cash balance was restored.
Believing the check may come in the, 28th, he instructed the
employees to report the following morning. The check
arrived August 28, all employees reported the 28th except
Munguia, and all who reported were put back to work.
Respondent's defense is not a logical or reasonable one,
for several reasons. The check story has the appearance of
being contrived. Its timing is too convenient to be
believable, in light of all the facts. Platis called the first
meeting August 27 hard on the heels of receiving the
NLRB petition letter, questioned employees about the
letter28 and union activities at the plant, and threatened to
close the plant because of union activity. A short time later
he called the second meeting and announced the layoff.
Platis testified he called the Canadian customer the week
prior to the layoff, and was 'told the check already had
been sent in the mail.
It may well be that Respondent had a cash flow problem,
but shutting down production and laying off all production
employees a week after having been advised that $14,500
was en route does not seem logical or likely. Rather, it has
the appearance of a convenient excuse to show employees
that the threat made in the first meeting to close the plant
easily could be carried out. It would be a most effective
gesture during union organizational efforts.
Respondent's union animus is clearly shown by the
record, including violations of the Act found herein.
Following the temporary layoff of August 27-28, Respon-
dent granted benefits and assisted an in-house association
in order to discourage union activity. The layoff is
consistent with the earlier threat to close the plant and the
later violations of the Act; taken together, the actions of
Respondent are of one pattern. In such light the defense of
a late check arrival simply appears as a coverup.
It is found that this allegation of the complaint is proved.
The complaint makes no allegation concerning Reynolds, who was
discharged for cause. General Counsel argues that the reason for Reynold's
discharge was a "sham," but the fact remains that the discharge was not
challenged by the General Counsel Certainly, there was no proof at hearing
that Reynolds was discharged in violation of the Act.
27 It is noted that there is wide discrepancy among the witnesses on the
reporting time. The time was stated to be from 9 a.m. to 12.30 p.m.,
depending on who was testifying.
28 Respondent attempted to show that the meeting was called for other
reasons, and that the NLRB letter was mentioned but casually and
parenthetically. That attempt was camouflage, and is so found.
SOUND TECHNOLOGY RESEARCH 505
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
Respondent's activities 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 in violation of Section 8(a)(1), (2), and (3)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unilaterally suspend-
ed all its production employees for approximately 1
working day on August 27 and 28, 1974. I will, therefore,
recommend that Respondent make all said suspended
employees whole for any loss of earnings suffered by
reason of the discrimination against them, by payment to
them of sums of money equal to that which they normally
would have earned, absent the discrimination, less net
earnings during such period, with backpay computed on a
quarterly basis in the manner established in F. W.
Woolworth Company, 90 NLRB 289 (1950), plus interest at
the rate of 6 percent per annum, as set forth in Isis
Plumbing and Heating Co., 138 NLRB 716 (1962). It will be
further recommended that Respondent preserve and make
available to the Board, upon request, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary and
useful to determine the amounts of backpay due and the
rights of reinstatement under the terms of these recommen-
dations.
CONCLUSIONS OF LAW
1. STR, Inc., d/b/a Sound Technology Research is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. STR Employees Association and Millmen and
Industrial Carpenters Local Union No. 1618, United
Brotherhood of Carpenters and Joiners of America, are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By interrogating its employees about their and their
fellow employees' union activity; by threatening to close its
business if its employees selected the Union as their
collective-bargaining representative; and by granting
benefits to its employees in order to dissuade them from
supporting the Union, Respondent interfered with, re-
strained, and coerced its employees in the exercise of their
rights guaranteed to them by Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
4. By suggesting or encouraging establishment of, and
by interfering with the formation of STR Employees
Association and thereafter entering into a collective-
bargaining agreement with said Association, Respondent
violated Section 8(a)(2) and (1) of the Act.
5. By suspending all its production employees for
approximately 1 workday on August 27 and 28, 1974,, in
order to discourage support of the Union, Respondent
discriminated against its employees in violation of Section
8(a)(3) and (1) of the Act.
6. Respondent did not, through alleged conduct,
violate Section 8(a)(3) and (1) of the Act by discharging
Art Munguia because of his union or concerted activities.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]