Vibra-Screw, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1991

301 N.L.R.B. 371 (N.L.R.B. 1991)

371
301 NLRB No. 57
VIBRA-SCREW, INC.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 In our Order we provide that the Respondent shall rescind the unilateral
wage increases granted to its unit employees in June 1989 if requested to do
so by the Union. Nothing in our Order, however, should be construed as re-
quiring the Respondent to rescind any wage increases that may have resulted
from its unilateral changes in employee compensation, without a request from
the Union. Taft Broadcasting Co., 264 NLRB 185 fn. 6 (1982).
Vibra-Screw, Incorporated and International La-
dies’ Garment Workers’ Union, AFL–CIO.
Cases 22–CA–16137, 22–CA–16203, 22–CA–
16259, 22–CA–16267, 22–CA–16278, 22–CA–
16285, 22–CA–16335, and 22–CA–16428
January 25, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 7, 1990, Administrative Law Judge James
F. Morton issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Vibra-
Screw, Inc., Totowa, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Insert the following as paragraphs 2(e) and (f)
and reletter the subsequent paragraphs.
‘‘(e) On request, bargain with the International La-
dies’ Garment Workers’ Union, AFL–CIO, as the ex-
clusive representative of the employees in the above-
described appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
‘‘(f) On request, restore the hours of work of the
employees in the bargaining unit in effect prior to
March 27, 1989, and rescind the unilateral wage in-
crease granted in June 1989 to the employees in the
bargaining unit.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT create the impression among our em-
ployees that we have kept under surveillance their ac-
tivities in support of the International Ladies’ Garment
Workers’ Union.
WE WILL NOT place warnings in employee personnel
files in order to discourage employees from supporting
the Union.
WE WILL NOT discharge any of our employees be-
cause they supported the Union.
WE WILL NOT deprive employees of overtime work
assignments in order to discourage them from joining
or assisting the Union.
WE WILL NOT delay unduly in furnishing the Union
with the names of all it has requested.
WE WILL NOT change the hours of work of our em-
ployees in the above-described unit without bargaining
with the Union.
WE WILL NOT grant wage increases to our employ-
ees in the above-described unit without bargaining
with the Union.
WE WILL NOT refuse to meet and bargain collec-
tively with the Union because of the composition of
the Union’s bargaining committee.
WE WILL NOT transfer employees to positions out-
side the collective-bargaining unit described below, in
order to discourage employees from continuing to sup-
port the Union or without bargaining collectively
thereon with the Union as the exclusive representative
of the employees in this unit:
All full-time and regular part-time production, mainte-
nance, shipping and receiving employees, and electronic
department employees employed by us at our Totowa,
New Jersey facility but excluding all office clerical em-
ployees, test lab employees, salesmen, professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees with respect to
the rights guaranteed them under Section 7 of the Act.
WE WILL offer to Maurice Moncayo, Angel
Bermudez, Hubert Boganegra, Brad Drol, Joseph
Santo, and Obed Rodriguez immediate and full rein-
statement to their former jobs in the unit described
above or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights and privileges previously en-
joyed and make them whole, with interest, for any loss
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 General Counsel’s posthearing motion to correct certain typographical tran-
script errors is granted.
of earnings and other benefits suffered as a result of
the discrimination against them.
WE WILL make whole, with interest, Maurice
Moncayo and Joseph Santo for all wages and other
benefits they lost by reason of our unlawful failure to
assign them overtime work.
WE WILL make whole, with interest, Maurice
Moncayo for all wages and benefits lost by reason of
our having unlawfully transferred him out of the as-
sembly department.
WE WILL remove from the files of the above-named
employees all references to their unlawful discharges,
transfers, and warnings and WE WILL notify them in
writing that this has been done and that none of these
matters will be used against them in any way.
WE WILL, on request, bargain in good faith with the
Union as the exclusive representative of the employees
in the above-described appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, WE WILL, on request, embody the
understanding in a signed agreement.
WE WILL, on request, restore the hours of work of
the employees in the bargaining unit in effect prior to
March 27, 1989, and WE WILL rescind the unilateral
wage increase granted in June 1989 to the employees
in the bargaining unit.
VIBRA-SCREW, INCORPORATED
Gary A. Carlson, Esq., for the General Counsel.
Richard H. Bauch, Esq. (DeMaria, Ellis & Hunt), of New-
ark, New Jersey, for the Respondent.
Joseph A. Finer, Esq. (Reitman, Parsonnet, Maisel &
Duggan), of Newark, New Jersey, for the Union.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
amended consolidated complaint issued on behalf of the Act-
ing General Counsel of the National Labor Relations Board
alleges that Vibra-Screw, Incorporated (Respondent) has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act). The specific issues raised by the answer filed by Re-
spondent are whether it:
(a) Deprived employees, Maurice Moncayo and Joseph
Santo, on and since January 5, 1989, of overtime work as-
signments because they supported the International Ladies’
Garment Workers’ Union, AFL–CIO (the Union).
(b) Transferred Moncayo from its assembly department on
February 13, 1989, to allegedly more onerous work in its test
laboratory, in order to discourage its employees from sup-
porting the Union and in violation of its duty to bargain with
the Union.
(c) Created the impression on February 15, 1989, among
employees that it kept their activities in support of the Union
under surveillance.
(d) Failed to bargain collectively with the Union, after its
certification on February 10, 1989, by not responding to its
requests since February 21 for a list of the names of all unit
employees and for related data.
(e) Placed warnings in employee Moncayo’s file and later
discharged him on February 28, 1989, in order to discourage
employee support for the Union.
(f) Failed to bargain collectively by having unilaterally
changed working hours of unit employees on March 27,
1989.
(g) Discharged Brad Drol, Angel Bermudez, Joseph Santo,
Hubert Boganegra, and Obed Rodriguez in March and April
1989, in order to discourage employee support of the Union.
(h) Granted an across-the-board wage increase to unit em-
ployees on June 16, 1989, without having bargained collec-
tively with the Union.
(i) Refused to bargain collectively with the Union on and
since June 26, 1989, because the Union did not agree to its
demand that certain named individuals be removed from the
Union’s negotiating committee.
The hearing was held before me in Newark, New Jersey,
on 6 days in September 1989.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by counsel for the General Counsel (General
Counsel), the Union, and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The amended pleadings establish that Respondent, in its
operations annually, meets the Board’s nonretail jurisdic-
tional standard and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures equipment used principally to
move dry material, such as flour, from storage areas into
process. Its plant is located in Totowa, New Jersey, where
it has about 50 employees. They had been unrepresented. In
November 1988, the Union began a drive to organize them.
It demanded recognition on December 13, 1988, filed a peti-
tion for certification in Case 22–RC–10057 on December 16,
1988, and was certified in that case on February 10, 1989,
as the representative of the following appropriate unit:
All full-time and regular part-time production, mainte-
nance, shipping and receiving employees and electronic
department employees employed by Respondent at its
Totowa, New Jersey facility, but excluding all office
clerical employees, test lab employees, salesmen, pro-
fessional employees, guards and supervisors as defined
by the Act.
All dates hereafter are for 1989, unless stated otherwise.
373VIBRA-SCREW, INC.
B. The Alleged Unfair Labor Practices
1. Overtime work assignments—Moncayo and Santo
On January 4, the Union’s director of organization, Luis
Fonseca, met with some of Respondent’s employees at a
VFW hall. At this meeting, the employees chose Maurice
Moncayo and Joseph Santo, who worked in the assembly de-
partment, to go with Fonseca to a conference scheduled to
be held at the Board’s Regional Office on January 6 in the
then-pending representation case. On the following morning,
Moncayo and Santo went around Respondent’s plant to tell
most of the unit employees what transpired at that meeting,
including the fact that they had been selected to attend the
representation case conference.
Later that morning, they were told by the supervisor of the
assembly department, John Herman, that they would no
longer be assigned overtime work. Herman also told them
that their timecards showed that they were not working
enough overtime. Moncayo testified that they had been work-
ing overtime every day and not less than the other employees
worked. Santo estimated that he had actually worked more
overtime than the other employees.
Moncayo and Santo have not been given overtime work
since January 5.
Neither Moncayo nor Santo had ever been told previously
to January that they were not working enough overtime.
Respondent’s vice president, Richard Wahl, testified that
towards the end of the fourth quarter of 1988, Production
Manager Karl Goldschmidt informed him that Moncayo and
Santo did not wish to work overtime. Wahl testified that he
reviewed the overtime records and told Goldschmidt to in-
form Moncayo and Santo that they would no longer be as-
signed overtime, an order carried out by Herman on January
5. Wahl explained that Respondent needs to count on one
employee to stay with a job, including overtime, until it is
finished as that person will then be able to do the most effi-
cient work.
Goldschmidt testified at the hearing before me, but did not
refer to any conversation with Richard Wahl concerning any
unwillingness on Moncayo’s part or Santo’s to work over-
time. Herman did not testify. Nor did Respondent produce
any overtime records which Wahl had referred to in his testi-
mony.
The evidence establishes that Moncayo and Santo were
key supporters of the Union and that they had, on the morn-
ing of January 5, gone about Respondent’s plant to inform
the unit employees of the latest developments from the
Union’s standpoint. The evidence also establishes that, al-
most immediately thereafter, they lost their overtime assign-
ments. The reason given them by Herman for their loss is
not supported by the evidence. Moncayo and Santo both tes-
tified that they had worked at least as much overtime as the
other employees and Respondent offered none of the records
that its president testified he used in making the decision that
they would no longer be given overtime. Further, they never
were told that there was any problem with their overtime
work.
In essence, the evidence offered by the General Counsel
demonstrates that Moncayo and Santo were active union sup-
porters, that they were deprived of a long-term benefit very
shortly after having circulated through the plant on January
5 to discuss the Union with their coworkers and that the rea-
son given them for being deprived of overtime work appears
baseless. Their open union activities on January 5, their
being told later that same morning that they were being de-
prived, without any warning, of a material benefit and the
baseless nature of the reason given for that loss are cir-
cumstances from which I infer that they were deprived of
overtime because of their union activities. Respondent has ar-
gued that there is no direct proof that it knew of their union
activities before it acted and has thus urged that it could not
have been motivated thereby. It is well settled however that
direct evidence is not essential to prove an unfair labor prac-
tice and that circumstantial evidence can give rise to a proper
inference of an employer’s prior knowledge of a
discriminatee’s protected activities. See Abbey’s Transpor-
tation Service, 284 NLRB 696 (1987).
As General Counsel has thus met the burden of showing,
prima facie, that Moncayo and Santo have been denied over-
time in order to discourage employee support of the Union,
the burden shifts to Respondent. See Wright Line, 251 NLRB
1083, 1089 (1980).
I further find that Respondent has failed to demonstrate
that its deprival of overtime to them would have resulted ab-
sent their activities in support of the Union. Accordingly, I
conclude that Respondent has denied overtime work assign-
ments to Moncayo and Santo since January 5, in order to
discourage its employees from supporting the Union.
2. Moncayo’s transfer to the laboratory
Moncayo injured his leg while at work on January 15 and
was unable to work while undergoing treatment.
Moncayo served as the Union’s observer at the election
held in Case 22–RC–10057 on February 2. The Union won
and, on Friday, February 10, a certification of representative
was issued to it by the Board’s Regional Office. On Monday,
February 13, Moncayo returned to work in the assembly de-
partment after being cleared to do so by his workers’ com-
pensation doctor. Later that morning, Respondent’s plant
manager, Goldschmidt, told him that he was being trans-
ferred to the laboratory because additional employees were
needed there.
Moncayo testified that, in the test lab, he was assigned to
carry buckets weighing 35 to 45 pounds, up and down lad-
ders and that the work was dirty. Lab employees wear paper
masks and protective clothing in view of the dust generated
when materials are tested. The work there is in contrast to
the easier assembly department work where Moncayo read
blueprints and performed related duties including manual
work in assembling machinery.
On February 15, Moncayo was treated at the workers’
compensation clinic, having aggravated his leg injuries in
going up and down a ladder in the test lab. On February 21
and 27, he again went to the clinic with that problem.
Respondent did not notify the Union of its intent or deci-
sion to transfer Moncayo from the assembly department, to
the test lab, where employees are excluded from the appro-
priate unit, described above.
Respondent’s vice president, Richard Wahl, testified that
he and Goldschmidt talked about Moncayo’s being on leave
because of the injuries he received at work January 15. Wahl
related that they agreed that they had an obligation to bring
him back to work, that Goldschmidt ‘‘seemed to be pretty
staffed up in the assembly area,’’ and that Goldschmidt told
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him that there was an opening in the test lab because Re-
spondent had lost two or three men from the lab.
Goldschmidt testified on other matters but did not refer to
any discussion with Wahl pertaining to Moncayo’s recall.
In analyzing the evidence above, I note at the outset that
the terms of an employee’s transfer clearly affect employ-
ment conditions and are a mandatory subject of bargaining
and that an incumbent union has a statutory right to be con-
sulted as to any change therein. Kansas National Education
Assn., 275 NLRB 638, 639 (1985); and Metropolitan Edison
Co. v. NLRB, 460 U.S. 698 (1983). As the evidence is undis-
puted that Respondent never consulted with the certified
Union as to Moncayo’s transfer, Respondent impinged on
that right and thereby failed in its obligation to bargain col-
lectively with the Union thereon. The fact that Moncayo was
the Union’s election observer and had been discriminated
against since January 5 as to overtime assignments as found
above, the timing of his transfer relative to the issuance of
the certification of representative, the suddenness of his
transfer which occurred during the course of a workday, the
arduous nature of the lab work particularly in view of the in-
juries Moncayo had suffered only weeks earlier and in com-
parison to the work he was accustomed to doing in the as-
sembly department—and Respondent’s almost willful failure
to consult with the Union as to its transfer of a key union
supporter to a nonunit job—all point forcefully to a strong
inference that Moncayo was transferred to the test lab in
order to discourage support of the Union among Respond-
ent’s employees. I thus find that General Counsel has made
out a prima facie case of unlawful discrimination. I place vir-
tually no weight on the uncorroborated, conclusory testimony
given by Respondent’s president in support of the reason it
proferred. I find further then that Respondent has failed to
demonstrate that it would have assigned Moncayo to the test
lab, absent his support for the Union, and thus conclude that
Respondent effected that transfer in order to discourage sup-
port among its employees for its certified representative.
3. LiVecchi’s conversation with Bermudez
The Union had scheduled a meeting for February 15 at the
VFW hall in Totowa, New Jersey, but Fonseca changed the
location to the Union’s headquarters in Passaic, New Jersey.
The employees decided that afternoon to set up a car caravan
to go as a group to Passaic. One of these employees, Angel
Bermudez, was driving his car as part of that caravan but
lost it when he was held back at a traffic light. He was un-
able then to find his way to the Union’s office and went
home instead.
The following morning, according to Bermudez, his super-
visor, Joseph LiVecchi, Respondent’s parts department man-
ager, asked him how did it feel to be abandoned by the
Union. Bermudez testified that he had no idea how LiVecchi
knew that he had gotten lost the previous evening.
LiVecchi testified that he had one conversation in par-
ticular with Bermudez about the Union. He related that he
did not know how the conversation began but that Bermudez
seemed unhappy and told him that he was annoyed at the
union members because they deliberately lost him while he
was following them to a meeting.
I am more persuaded by Bermudez’ account and credit it.
LiVecchi’s remarks to him obviously suggested that he was
being kept informed as to even tangential matters at meetings
of employees held by the Union and Respondent thereby un-
lawfully created the impression that it kept union meetings
under surveillance. See Great Dane Trailers, 293 NLRB 384,
385 fn. 8 (1989).
4. The Union’s requests for information
On February 21, the Union wrote Respondent for a list of
the names of the employees in the unit for which it was cer-
tified, for their job classifications, rates of pay and other re-
lated data. When it received no reply, it reiterated the request
on April 10 and 12 and May 17 and 23. Respondent fur-
nished that requested data in early July.
The Union, as the statutory representative of the unit em-
ployees, is presumptively entitled to the requested data be-
cause the information it sought is clearly necessary and rel-
evant for it in the performance of its representational duties.
Jakel Motors, 292 NLRB No. 58 (Jan. 18, 1989), not re-
ported in bound volumes. Respondent’s delay for over 4
months in supplying the requested material is unlawful.
Globe Business Furniture, 290 NLRB 841 (1988).
5. Moncayo’s discharge and the warnings in his
personnel file
As found above, Moncayo was unlawfully deprived of
overtime assignments on and since January 5 and was unlaw-
fully assigned more onerous duties when he was transferred
to a nonunit job in the test lab upon his return on February
15 from a work-related injury. Also as noted above,
Moncayo, since his return, has made regular visits to the
workers’ compensation clinic for treatment of recurrences of
that injury, which was aggravated by the more onerous work
he was performing in the test lab.
Moncayo testified that each time he had an appointment
at the workers’ compensation clinic he gave his supervisor,
Kevin Galuska, prior notice and showed him the clinic ap-
pointment card to assure Galuska that he was scheduled to
see a doctor there. While at the clinic on February 27, the
examining doctor told him that he was not to work until he
saw a Dr. Cohen. An appointment was scheduled for him the
next day at 3 p.m. Moncayo then returned to Respondent’s
plant and advised Galuska of that development.
On February 28, while Moncayo was attending to his ap-
pointment with Dr. Cohen, Respondent’s president arranged
to have a mailgram sent to Moncayo reading:
This is to advise that your employment with this firm
is terminated as of 2–27–89. After repeated warnings
you again left your work station and the plant and did
not advise your supervisor of your return or intentions.
As of 9 o’clock a.m. this morning you have still not
contacted your supervisor.
Moncayo reported for work on March 1 and was told by
Galuska that he was terminated for not having called in.
Moncayo reminded Galuska that he had showed him that he
had had a doctor’s appointment on February 28. Galuska
asked him for additional verification. Moncayo gave him a
note from Dr. Cohen and asked Galuska to make a photo-
copy of it. Galuska told him that Respondent’s vice president
wanted to meet with Moncayo. Galuska then left to make a
copy of Dr. Cohen’s note. He returned and gave Moncayo
a copy of it. Moncayo asked him for the original and was
375VIBRA-SCREW, INC.
told by Galuska that Respondent’s president had it. Galuska
then told him that Respondent’s vice president no longer
wished to see him and that he was fired.
Respondent’s vice president, Richard Wahl, placed two
notes in Moncayo’s personnel file. One, dated February 16,
stated that Wahl, had spoken to Galuska about one of
Moncayo’s absences and that Moncayo had ‘‘apparently
lied’’ about the reason he gave for that absence. The second,
dated February 21, related that Wahl had spoken again to
Galuska about ‘‘subject’s absence’’ (referring to Moncayo)
and that Galuska ‘‘was not told.’’
Moncayo was never shown either of those notes nor told
of them; he learned of their existence during the course of
the hearing before me.
Richard Wahl testified that the February 16 memorandum
in Moncayo’s file was ‘‘a note to warn Moncayo that he had
been absent without excuse’’ and that that February 21
memorandum had been prepared in order ‘‘to warn him once
again about an absence that was not excused.’’ Wahl testified
that he never spoke to Moncayo about those notes or the
contents thereof. Galuska did not testify before me.
There is simply no factual basis to sustain the reason prof-
fered by Respondent for discharging Moncayo. The insertion
in his personnel file of ‘‘warnings’’ never conveyed to him
further points up the pretextual nature of the reason Respond-
ent has given for discharging him. In sum, General Counsel
has presented an unrebutted clear prima facie showing that
Moncayo’s discharge on February 28 was the culmination of
a series of acts against him which were motivated by Re-
spondent’s desire to discourage support for the Union. Those
discriminatory acts included the insertion in Moncayo’s per-
sonnel file of the February 16 and 21 memoranda prepared
by Richard Wahl. See Chopp & Co., 295 NLRB 1058, 1063
(1989).
6. Change in working hours
On March 21, Respondent posted a notice to unit employ-
ees, stating that ‘‘[e]ffective Monday, March 27, 1989, work
hours are 8:00 a.m. to 4:15 p.m.’’ The employees had been
working a 7 a.m. to 4:15 p.m. shift until March 27. The
change impacted on employees who complained about the
traffic problems they faced coming into work at 8 a.m.
By unilaterally, without notice to or consultation with the
Union, changing the work hours of the unit employees effec-
tive March 27, Respondent has failed and refused to bargain
collectively with the Union. See San Antonio Portland Ce-
ment Co., 277 NLRB 309, 315–316 (1985).
7. Discharge of Angel Bermudez
Bermudez began working for Respondent on November 2,
1988, as a spare parts clerk. As noted above, his supervisor,
Joseph LiVecchi, noted that Bermudez had lost his way, on
the previous evening, to a union meeting. Bermudez has at-
tended other union meetings and had since February 28,
worn a cap and a button while at work, which bore the leg-
end, ‘‘The Union for me. I.L.G.W.U.’’
Bermudez testified that LiVecchi and also Plant Manager
Goldschmidt had told him, prior to the election in the rep-
resentation case discussed above, that he was a good worker.
On March 31, LiVecchi told him that ‘‘they’re going to let
[him] go’’ because he was ‘‘not hustling enough.’’ Bermudez
continued to work until he was summoned about 3 p.m. to
Goldschmidt’s office. There, Goldschmidt told him that he
was going to have to let him go. Bermudez protested that he
always did his work, to which Goldschmidt replied that he
did not make the decision to discharge him and that it was
made ‘‘upstairs,’’ referring to the ‘‘owners’ office.’’
Goldschmidt told him to leave the plant then and that he
would be paid for the full day. Bermudez then left.
Bermudez testified that he never had been warned about
‘‘not hustling enough.’’
LiVecchi, the parts department manager, testified that
Bermudez seemed to be a willing worker when he started his
employment and that LiVecchi has a habit of complimenting
employees as a form of encouragement. He related that
Bermudez progressed slowly, that he never could perform on
his own, and that ‘‘maybe four or five times’’ he spoke to
Bermudez to get him ‘‘to hustle up.’’ LiVecchi further testi-
fied that Bermudez was late 90 percent of the time in ship-
ping parts out and that LiVecchi had to go out and, in effect,
do the work that Bermudez had failed to do.
LiVecchi also testified that he communicated to Produc-
tion Manager Goldschmidt his recommendation that
Bermudez be discharged, but that he never informed
Bermudez that he had done so.
Goldschmidt testified as to other matters but not as to
Bermudez’ discharge.
Respondent has noted in its brief that at no time did
Goldschmidt or LiVecchi discuss Bermudez’ discharge with
either Respondent’s president, Eugene Wahl, or its vice
president, Richard Wahl.
I credit Bermudez’ testimony, including his uncontroverted
account that Goldschmidt told him on the day he was dis-
charged that he did not make that decision to discharge him.
If Goldschmidt had not discussed that matter with the Wahls
as Respondent asserts and if he had received only a rec-
ommendation to discharge from LiVecchi, as LiVecchi re-
lated, I am at a loss, based on the accounts proffered by Re-
spondent, as to who in management made the decision to
discharge Bermudez. The testimony which is more probably
true is that given by Bermudez. That testimony establishes
that he openly and actively supported the Union, that
LiVecchi had directly coerced him in referring to his getting
lost enroute to a union meeting, and particularly that the rea-
son given him for his discharge was obviously a pretext. On
that last point, I note that the credited evidence is that
Bermudez was told by both LiVecchi and Goldschmidt that
he was a good worker, that he had never been told otherwise,
that he was discharged during an ordinary workday by a
plant manager who told him that he did not make the deci-
sion and that, from Respondent’s evidence, apparently no
one ever did.
General Counsel has established a prima facie case that
Bermudez was discharged because of his open support of the
Union and Respondent has failed to rebut it by showing that
he would have been discharged, absent his union activities.
I thus find that Respondent discharged him in order to dis-
courage support for the Union among its employees.
8. Discharge of Hubert Boganegra and Brad Drol
Boganegra began working for Respondent in August 1974
and has worked in the sheet metal department since then and
until his discharge. In November 1988, he made the first
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contact with the Union on behalf of the employees involved
in this case.
Drol began working for Respondent in September 1987
and has worked for it as a heliarc welder. He was chosen
by his coworkers to be a member of the Union’s negotiating
committee.
Boganegra and Drol attended a negotiating session held on
March 29 between the Union and Respondent. Another ses-
sion was scheduled for April 12. That session was postponed
at Respondent’s request. During lunch that day, Boganegra
and Drol, along with other employees discussed Respond-
ent’s discharge of Bermudez, the change in the working
hours and the cancellation of the negotiating session that had
been scheduled for that day. These employees decided that
they would not work overtime that day, as a form of protest.
Overtime assignments are voluntary.
Drol’s supervisor, Harry Cagnina, asked him later that day
if he was going to stay, referring to working overtime. Drol
told him he was not because too many people would be ag-
gravated if he did. Cagnina replied that he understood.
Cagnina also asked Boganegra to work overtime on April
12. Boganegra declined, saying that his wife had an appoint-
ment with her doctor.
On Friday, April 14, Production Manager Goldschmidt
handed Drol and Boganegra identical memorandums signed
by Respondent’s president, reading:
Because of your refusal to work overtime due to the
postponement of the last bargaining session between the
company and the ILGWU, as communicated to your su-
pervisor Harry Cagnina on Wed. April 12, you are
hereby notified that your employment is terminated ef-
fective immediately.
In Jasta Mfg. Co., 246 NLRB 48 (1979), the Board held
that it was unlawful for the employer there to discharge four
of its employees because they declined voluntary overtime
assignments in an attempt to secure certain terms and condi-
tions of employment they sought. The Board held there that
those four employees did not lose the protection of the Act
by their actions. In the instant case, Boganegra and Drol
were clearly engaged in protected activities in similarly de-
clining to work voluntary overtime. Respondent, by dis-
charging them for having engaged in such activity, had
sought to discourage the unit employees from supporting the
Union.
9. Discharges of Joseph Santo and Obed Rodriguez
Santo worked for Respondent for about 16-1/2 years, and
was assigned to the assembly department for about 10 years
before his discharge on April 19. As found above, Respond-
ent had discontinued assigning him overtime in January be-
cause of his support for the Union. After the Union was cer-
tified, Santo was selected by the unit employees to be on the
Union’s negotiating team. On April 17, Santo was handed a
memorandum by General Manager Mike Gulywasz. The
memorandum was signed by Respondent’s vice president and
it read:
You were observed Friday in areas of the shop and
engaging in activities unrelated to your work. You are
again warned that this is not permitted and if continued
will result in your dismissal.
From now on, you are to request permission of your
supervisor, John Herman, or in his absence Mike
Gulywasz when wanting to leave your work area for
any reason.
If you are found outside of your work area for any
reason without permission, you will be dismissed.
Santo testified that he had never been previously warned
about being engaged in activities unrelated to his work while
in areas of the shop.
As to the other alleged discriminatee whose status is dis-
cussed in this subsection, Obed Rodriguez, the testimony is
that he was hired by Respondent in August 1988 as an as-
sembler. He actively supported the Union and was selected
as a member of the Union’s negotiating committee upon its
certification.
On April 19, Santo and Rodriguez were in the assembly
department when Respondent’s president, Eugene Wahl, ap-
proached them and told them that they were fired and that
they had ‘‘five minutes to get the hell out of here.’’ They
then left the premises.
Respondent adduced no evidence to support the assertion
in the memorandum handed Santo on April 17 that it had
given him previous warnings.
General Counsel has made out a prima facie case that
Santo and Rodriguez were discharged on April 19 because
of their support for the Union. The unlawful hostility shown
Santo by Respondent in January is a factor pointing toward
that finding, their serving on the union negotiating com-
mittee, and the animus thereto displayed by Respondent as
to other employees as discussed above is another such factor.
The precipitate outburst by Respondent’s president, without
precedent, to two employees on the work floor further indi-
cates that Respondent’s president harbored a deep resentment
against employees who openly supported the Union.
Respondent contends that Santo and Rodriguez were dis-
charged because they were standing around, wasting time,
doing nothing, for an appreciable period on April 19. Santo
and Rodriguez testified that they were going over blueprints
used in their work. I credit their accounts.
Wahl testified that he had observed Santo and Rodriguez
standing idle for a half hour just before he discharged them.
I am not persuaded by that testimony that Respondent would
have, absent their union activities, discharged them. Wahl
had also testified that he viewed his company as an extension
of his family and its employees as family members. Wahl
did not strike me as the type of person who would impose
discipline on someone close to him without first making a
full inquiry and without consulting others who might assist
in his making a full and fair evaluation. Yet, he did none of
these things with respect to Santo and Rodriguez. He never
even asked their immediate supervisor to look into the mat-
ters or for a recommendation. The evidence is insufficient for
me to find that Respondent would have, absent their union
activities, summarily discharged Santo and Rodriguez on
April 19. Accordingly, I find that it discharged them to dis-
courage its employees from continuing to support the Union.
10. The wage increase
On May 1, Respondent notified its shop employees that it
was ‘‘planning to implement [its] Spring COLA increase, as
scheduled, by the end of May.’’ On June 1, it notified them
377VIBRA-SCREW, INC.
that the ‘‘COLA increase will be effective with this week’s
pay and will be reflected in next week’s pay check.’’
The pleadings before me disclose that, on June 26, Re-
spondent granted a 4-percent wage increase to the unit em-
ployees. The Union was never notified nor consulted about
that increase.
The testimony offered by Respondent to show that it cus-
tomarily granted a COLA increase each spring also discloses
that the amount of the increase is based on ‘‘kind of an aver-
age’’ of various indices it selects. I infer from that testimony
that ultimately the amount of the increase is not based on
wholly objective factors but on subjective evaluations by the
Wahls.
The Board has held that where the amounts of annual
wage increases involve elements of discretion, an employer
must offer the union the opportunity to bargain thereon and
may not continue to unilaterally exercise its discretion with
respect to such increases once an exclusive collective-bar-
gaining representative has been selected. Advertiser’s Mfg.
Co., 280 NLRB 1185, 1195–1196 (1986). Respondent’s uni-
lateral action in the instant case is particularly egregious as
it was on the one hand sending notices to its employees to
indicate that the raise was imminent while it was also, as
found above, withholding from the Union the information
sought and needed by the Union to bargain responsibly as to
wages and other terms and conditions of employment of the
employees in the unit it represents.
11. The composition of the Union’s negotiating
committee
On June 29, the Union was scheduled to hold a negoti-
ating session with Respondent. Its negotiating committee,
which included four employees found above to have been
unlawfully discharged (Drol, Boganegra, Santo, and
Rodriguez), came to Respondent’s plant that day. Respondent
advised the Union’s attorney who was also present that it
would not meet as long as those four individuals were
present.
Respondent, by refusing to negotiate with the Union be-
cause four discharged employees were on its committee, has
failed to bargain collectively with the Union. See Colfor,
Inc., 282 NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by having:
(a) Created the impression among its employees that it has
kept under surveillance their activities in support of the
Union.
(b) Committed the acts described in subparagraphs 4 and
5 below.
4. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act by having:
(a) Placed warnings in employee personnel files in order
to discourage employees from supporting the Union.
(b) Discharged employees because they supported the
Union.
(c) Deprived employees Maurice Moncayo and Joseph
Santo of overtime work assignments in order to discourage
employees from joining or assisting the Union.
(d) Transferred Maurice Moncayo to its test laboratory in
order to discourage employees from continuing to support
the Union.
5. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) of the Act by having:
(a) Transferred an employee out of the collective-bar-
gaining unit described below without bargaining collectively
thereon with the Union as the exclusive representative of the
employees in this unit:
All full-time and regular part-time production, mainte-
nance, shipping and receiving employees, and electronic
department employees employed by Respondent at its
Totowa, New Jersey facility but excluding all office
clerical employees, test lab employees, salesmen, pro-
fessional employees, guards and supervisors as defined
in the Act.
(b) Delayed unduly in furnishing the Union with the
names of all unit employees and related data.
(c) Unilaterally changed the hours of work of the employ-
ees in the above-described unit.
(d) Unilaterally granted across-the-board wage increases to
its employees in the above-described unit.
(e) Refused to meet and bargain collectively with the
Union because it objected to the composition of the Union’s
bargaining committee.
6. Respondent has not engaged in any unfair labor practice
alleged in the amended complaint and not found here.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes of the Act.
Having found that Respondent unlawfully deprived its em-
ployees Maurice Moncayo and Joseph Santo of overtime
work assignments, I shall recommend that they be made
whole for all wages and other benefits they lost thereby, with
interest thereon, as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Having found that Respondent unlawfully placed warnings
in Maurice Moncayo’s file, I shall recommend that it be or-
dered to remove those warnings, and to notify Moncayo in
writing that it has done so and that it will not use those
warnings against him in any way.
Having found that Moncayo has been discriminatorily
transferred to the test laboratory, I shall recommend that Re-
spondent be ordered to offer him full and immediate rein-
statement to his former position of employment in its assem-
bly department or, if it no longer exists, to a substantially
equivalent position within the scope of the collective-bar-
gaining unit represented by the Union.
Having found that Respondent discriminatorily discharged
employees Maurice Moncayo, Angel Bermudez, Hubert
Boganegra, Brad Drol, Joseph Santo, and Obed Rodriguez, I
shall recommend that Respondent be ordered to offer them
immediate and full reinstatement to their former positions of
employment or, if these no longer exist, to substantially
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
3 As noted above, the notices are to be posted in English and in Spanish.
4 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
equivalent positions, and pay them backpay as computed in
New Horizons, supra, from the respective dates of their dis-
charges until they are properly offered reinstatement.
As there are employees in the unit involved who commu-
nicate principally, if not solely in Spanish, I further rec-
ommend that the notice to employees, appended here, also be
translated and posted in Spanish, after being signed by a duly
authorized agent of Respondent.
As requested by General Counsel, I recommend also that
the entire certification year begin anew on Respondent’s
commencement of good-faith bargaining. Glomac Plastics,
Inc., 234 NLRB 1309 fn. 4 (1978).
The General Counsel has further requested that Respond-
ent be directed to ‘‘cease and desist from in any other man-
ner restraining and coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act’’ and has
stated that his request is made ‘‘because Respondent has en-
gaged in so many flagrant unfair labor practices.’’
The Board has, in two cases in recent years, expressly
commented on the scope of its cease-and-desist orders. In
Horizon Foods, 280 NLRB 1174 (1986), it rejected a rec-
ommendation for a narrow cease-and-desist order based on
its findings that the conduct in that case was egregious
enough to warrant the issuance of a broad cease-and-desist
order. In Chopp & Co., 295 NLRB 1058 (1989), the Board
concluded, contrary to the recommendation of the administra-
tive law judge, that a narrow cease-and-desist order is appro-
priate as, in its view, the record there did not establish that
the employer there has a ‘‘proclivity to violate the Act or has
engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for the employees’ funda-
mental statutory rights.’’ The conduct I have found unlawful
in the instant case appears to be more analogous to that
found in Chopp & Co., supra, than to that in Horizon Foods,
supra. Accordingly, I shall not recommend the broad cease-
and-desist order sought by General Counsel.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Vibra-Screw, Incorporated,Totowa, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression among its employees that it
has kept under surveillance their activities in support of
International Ladies’ Garment Workers’ Union, AFL–CIO
(the Union).
(b) Placing warnings in employee personnel files in order
to discourage employees from supporting the Union.
(c) Discharging employees because they supported the
Union.
(d) Depriving its employees of overtime work assignments
in order to discourage its employees from joining or assisting
the Union.
(e) Transferring employees to positions outside the collec-
tive-bargaining unit described below, in order to discourage
employees from continuing to support the Union or without
bargaining collectively thereon with the Union as the exclu-
sive representative of the employees in this unit:
All full-time and regular part-time production, mainte-
nance, shipping and receiving employees, and electronic
department employees employed by Respondent at its
Totowa, New Jersey facility but excluding all office
clerical employees, test lab employees, salesmen, pro-
fessional employees, guards and supervisors as defined
in the Act.
(f) Delaying unduly in furnishing the Union with the
names of all unit employees and the related data it has re-
quested.
(g) Changing the hours of work of the employees in the
above-described unit without bargaining with the Union.
(h) Granting wage increases to its employees in the above-
described unit without bargaining with the Union.
(i) Refusing to meet and bargain collectively with the
Union because it objected to the composition of the Union’s
bargaining committee.
(j) In any like or related manner interfering with, restrain-
ing, or coercing its employees with respect to the rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Maurice Moncayo, Angel Bermudez, Hubert
Boganegra, Brad Drol, Joseph Santo, and Obed Rodriguez
immediate and full reinstatement to their former jobs in the
unit described above or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or any other rights and privileges previously enjoyed,
and make them whole, with interest, for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section
of this decision.
(b) Make whole, with interest, Maurice Moncayo and Jo-
seph Santo for all wages and other benefits they lost by rea-
son of the unlawful failure to assign them overtime work.
(c) Make whole, with interest, Maurice Moncayo for all
wages and benefits lost by reason of having unlawfully trans-
ferred him out of the assembly department.
(d) Remove from the files of the above-named employees
all references to their discharges, transfers, or warnings found
herein to have been unlawfully motivated and notify them
that this has been done and that none of those matters will
be used against them in any way.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post3 at its Totowa, New Jersey facility copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the notice,
on forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
379VIBRA-SCREW, INC.
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
Allegations of unfair labor practices in the amended com-
plaint, which were not found above to have merit, are dis-
missed.