Tampo Manufacturing, Inc.

TAMPO MANUFACTURING, INC. Tampo Manufacturing, Inc. and International Union of Electrical, Radio, and Machine Workers. Case 23-CA-6802 September 28, 1979 DECISION AND ORDER By MEMBERS PENELLO, MURPHY, AND TRUESDALE On March 30, 1979, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions and a support brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge as dis- cussed below, and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Respon- dent violated Section 8(a)(3) of the Act by discharg- ing employee Alberto Rocha for union-related rea- sons. Respondent contends that Rocha's discharge I General Counsel has excepted to the Administrative Law Judge's failure to recommend that interest on backpay should be computed at 9 percent per annum, We find no merit in this contention. See Florida Steel Corporation, 231 NLRB 651 (1977). 2 We find no ment in Respondent's allegation of bias on the part of the Administrative Law Judge. There is no basis for finding that bias or partial- ity existed merely because the Administrative Law Judge resolved important conflicts in favor of the General Counsel's witnesses. As the Supreme Court has stated: '"T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." N. LR.B. v. Pittsburgh Steamship Co., 337 U.S. 656, 659 (1949). Moreover, it is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility, unless the clear preponderance of all the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have examined the record carefully and find no basis for reversing his findings. While we agree with the Administrative Law Judge that several of Re- spondent's foremen engaged in conduct violative of Sec. 8(a)(I) of the Act, be did not specify which conduct was attributable to which supervisor. Thus, for the sake of clarity, we note that Foreman Menchaca threatened employ- ees with loss of employment and loss of benefits, interrogated employees with regard to their own and other employees' union sympathies. and created the impression that he was surveilling the employee's union activities. Foreman Klein made unlawful threats and engaged in unlawful interrogations, Fore- man Garcia unlawfully interrogated employees, and Foreman Chavez threatened employees with loss of benefits. In his recommended Order and notice, the Administrative Law Judge utilized board injunctive language in ordering Respondent to refrain from engaging in future misconduct. Contrary to the Administrative Law Judge, we find that the use of narrow cease-and-desist language is sufficient here. See Hickmott Foods, Inc., 242 NLRB 1357 (1979). We have amended the Order and notice accordingly. Although the Administrative Law Judge found that Respondent com- mitted several violations of Sec. 8(a)( 1) of the Act, he inadvertently neglected to enjoin such conduct in his Order and notice. Accordingly, we will modify his Order and notice and order Respondent to cease and desist from engag- ing in such conduct. was unrelated to his union activity, but rather was the result of his prominent participation in an alleged work slowdown. Upon examination of the record, we agree with the Administrative Law Judge's finding that Rocha's discharge was for unlawful reasons. Rocha originally was employed by Respondent in January 1970 and, for the 3 or 4 years preceding his discharge, had served as hydraulic leadman. Rocha was one of two employees who initially contacted the union and who, in late August 1977, met with Union Representative Martinez to inquire about the Union conducting an organizational campaign at Respon- dent's facility. On September 22, Martinez sent a let- ter to Respondent notifying it of the 23 employees who comprised the inplant organizing committee; Rocha's name was included on the list. From Septem- ber 28 on, Rocha wore a union organizing committee button on his shirt pocket. On October 19, 1977, without prior warning, Re- spondent discharged Rocha. Plant Superintendent Christon informed Rocha that he was being termi- nated because there had been too many mistakes at his machines and because he had engaged in a work slowdown.' Respondent's president, Devine, testified that Rocha had been selected for discharge because of his prominent role in the slowdown. The Administrative Law Judge rejected Respon- dent's alleged reasons for the discharge and found that there was a direct link between Rocha's union activities, commencing in the summer of 1977, and his subsequent dismissial. Upon consideration of the entire record, we agree with the Administrative Law Judge's rejection of Respondent's arguments. Re- spondent admitted that Rocha was one of its best workers and the record reveals that during his tenure, Rocha's work performance had rarely, if ever, been criticized. Respondent contends that Rocha's profi- ciency notwithstanding, his discharge was intended to serve as an example to other employees who, like Ro- cha, were involved in the alleged production slow- down. However, while two of Respondent's officials testified that they had witnessed a slowdown, Rocha's immediate supervisor was unable to explain in what manner Rocha intentionally reduced his work output. Indeed, the record is devoid of evidence of Rocha's participation in any slowdown. Rather, the record suggests that Rocha's public union activities led to his discharge. Thus, as of the date of Martinez' letter of September 22, Respondent was on notice that Rocha was involved actively in the organizational drive. Ro- cha continued to displal his union adherence by wear- ing his committee button, which advertised his par- The Administrative Law Judge noted the absence of any concrete evi- dence that a slowdown in fact occurred. And. assuming. arguendo, there was a slowdown, the Administrative Law Judge pointed out, and we agree, there is no evidence of Rocha's participation or involvement. 245 NLRB No. 103 791 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ticipation in the union campaign. We further note Respondent's hostile attitude toward the Union is general, as evidenced by the several 8(a)(1) violations found by the Administrative Law Judge and dis- cussed in his Decision. The record also reveals that, of all the employees involved in the alleged slowdown, only Rocha, a long-tenured and highly rated em- ployee, was selected for discipline and that such disci- pline was administered without any prior warning. And, finally, we rely on the credited testimony of em- ployee Delgado that Foreman Menchaca had stated that Rocha had been fired because he was one of the leaders in the union campaign. In view of all of the above, we are convinced that Rocha's discharge was the direct result of his activities on behalf of the union and, therefore, as found by the Administrative Law Judge, violated Section 8(a)(3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Tampo Manufacturing, Inc., San Antonio, Texas, its officers, agents, successor, and assigns, shall take the action set forth in the said recommended Order, as so modified: i. Substitute the following for paragraph l(b): "(b) Threatening its employees with loss of jobs and loss of benefits, creating the appearance of sur- veillance of the employees' union meetings, and inter- rogating its employees concerning their own and other employees' union sympathy in violation of Sec- tion 8(a)(1). "(c) In any like or related manner, unlawfully in- terfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that the National Labor Relations Board has found that we violated the Act and has ordered us to post this notice: The Act gives all our employees these rights: To organize themselves To form, join, or help unions To bargain as a group through representa- tives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOr discourage membership in any labor organization by discriminatorily discharg- ing any of our employees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with loss of jobs and loss of benefits; WE WILL NOT create the appearance that we are surveilling our employees' union meetings, and WE WILL NOT interrogate our employees concerning their own and other employees' union sympathies. WE WIL. NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL offer Alberto Rocha immediate and full reinstatement to his former job, or, if such job no longer exists, to a substantially equivalent job, and make him whole for any loss of pay, with interest, that he may have suffered by rea- son of our discrimination against him. All our employees are free to become or remain, or refrain from becoming or remaining, members of a labor organization. TAMPO MANUFACTURING, INC. DECISION KARL H. BUSCHMANN, Administrative Law Judge: This case arises upon a complaint issued on January 6, 1978, as amended, by the National Labor Relations Board, alleging that Tampo Manufacturing Company, Inc., had violated Section 8(a)(1) and (a)(3) of the National Labor Relations Act. In its answer, filed January 11, 1978, and subsequently amended, Respondent admitted the jurisdictional allega- tions in the complaint, but it denied the substantive charges that it had committed any unfair labor practices. The hearing on these charges was held in San Antonio, Texas, on September 18 and 19, 1978. The General Counsel and Respondent were represented by counsel and afforded full opportunity to adduce evidence, to call, examine and cross-examine witnesses, and to file briefs. Upon the entire record in this case, including briefs of counsel and from my observation of the witnesses, I make the following findings of tact and conclusions of law. FINDINGS OF FACT Tampo Manufacturing Company, Inc., is a Texas corpo- ration engaged in the manufacture of road machinery at its San Antonio facility. During a representative period of 12 months, Respondent purchased goods and materials valued in excess of $50,000 from suppliers located outside the State 792 TAMPO MANUFACTURING, INC. of Texas which were shipped directly to its facility located inside the State of Texas. Respondent is admittedly an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party, International Union of Electrical. Radio, and Machine Workers, is a labor organization within the meaning of Section 2(5) of the Act. In September 1977, the Union began an organizational drive among the employees at Respondent San Antonio, Texas plant. During the ensuing 3 months, Respondent is alleged to have engaged in acts and practices in violation of Section 8(a)( ) of the Act, to discourage any support among the employees in favor of the Union. Among such alleged violations were threats of loss of benefits, unlawful interro- gation, and surveillance of union activities. In addition, the complaint charges that one of Respondent's best employ- ees, Albert Rocha, was discharged because of his member- ship in, and active support of, the Union. The discharge is alleged as a violation of Section 8(aX3) and (1) of the Act. A. 8(a)(1) Violations The record shows, as alleged in the complaint, as amended, that several of Respondent's supervisors took part in Section 8(a)( ) violations. The supervisory hierarchy at Respondent's plant consisted of Richard C. Christon, plant superintendent; Moses Menchaca, warehouse fore- man; Felipe Chavez, foreman; Thomas Garcia, foreman; Elias Ramirez, foreman; and James Klein, foreman. Frank- lin Devine was president of Tampo Manufacturing. The General Counsel moved to dismiss, for lack of evidence, the allegations in paragraph 9 of the complaint dealing with certain statements of superintendent Christon and posited as issued only those allegations in the complaint dealing with Supervisors Klein and Menchaca, since the remaining allegations involving Supervisors Chavez, Garcia, and Ra- mirez were not contested by Respondent. Statements by Foreman Menchaca: In this regard, the record shows that in early October 1977, Menchaca spoke with Albert Rocha' and angrily stated that he and the other employees would not get raises because of the union activities. A similar conversation oc- curred on October 1, 1977, when Menchaca told Richard Lopez, a former employee, that pay raises were frozen be- cause of the union activities. On October 15, Menchaca asked Lopez in the warehouse whether he had signed a union card, and on November 7, Menchaca asked Lopez whether he still supported the Union. Although Menchaca in his testimony did not contradict the making of these statements summarized above, he sub- stantially denied his conversations with employee Frank Delgado, who had testified about several conversations with him. For example, on October 1, Menchaca asked him if he had been talking to other employees in the plant about the Union, and he further said that superintendent Christon knew that Delgado had been talking about the Union and that the "front office" wanted him "to pull 100 percent ... for the company, and that [he] could be making more money by December." According to Delgado, Menchaca I Rocha later was discharged as discussed below. also told him and a fellow employee (Ortiz) that Rocha had been fired because he was one of the leaders in the union campaign and that Rocha was known as "godfather." Em- ployees who had problems would seek out Rocha for his assistance. Menchaca also told him that some of the union organizers would be terminated if the Union lost the elec- tion.2 In early November, Menchaca stated that he knew where the union meetings were held. Menchaca conceded this re- mark, but explained that the union meetings were held in a church home. Also, when he picked up his sons after their religion classes held at the church, he necessarily saw other employees there for the union meetings. Statements byl Foreman Klein. Larry Ziegler, a former machine shop employee, testified that he had spoken with his shop foreman, James Klein, at the end of September. He stated that Ziegler would not be eligible for a raise because of the Union's organizing activi- ties. In early October, Klein told him that the Union was not good for the employees and that it would hurt them. In a series of conversations during October, Klein questioned Ziegler about different employees' feelings about the Union. Klein also stated that, during October, Respondent planned to terminate prounion employees. In early Novem- ber, they talked about the National Labor Relations Board election in his office where Klein stated that there would not be any secret ballots and Respondent would know how everyone voted. He stated that the "yes" votes would be replaced with "no" votes. On November 20, Ziegler went to a party that Klein and Chuck Converse, a shipping employee, also attended. He and other employees were discussing the outcome of the recent election. Klein told Converse that Respondent would have gotten rid of Pete Rodriguez, an employee in the ma- chine shop, because he was an organizer. Statements by Foreman Garcia. The testimony of Frank Gonzales, an assembly leadman, shows that he had a conversation with Thomas Garcia, his shop foreman, in mid-November in the assembly shop. Garcia asked him why he wanted to organize a union at the plant and inquired as to the number of employees who had expressed an interest in the Union. Garcia told him that the employees were better off without a union and that their present insurance plan was better than that offered at an- other plant represented by the same Union. Statements by Foreman Ramirez: According to the testimony of Rudy Roberts, an em- ployee in the fabricating department, he had a conversation with his foreman, Elias Ramirez, on November 14. Ramirez had approached him and stated that he did a good job and would not be fired if he voted against the Union. He also stated that it was foolish for him to vote for the Union since he worked for Respondent, not the Union. Respondent showed that Ramirez had suffered a heart attack and could not testify because he was on sick leave.' Statements by Foreman Chavez. Another employee, Thomas Sepuleda, testified with re- gard to certain conversations with his supervisor, Felipe 2 I consider Delgado's testimony to he credible and convinlcing 'I have not based any findings of Sec. (a( I) violations upon the alleged statements by Foreman Ramirez. 793 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chavez, on September 29 and 30. Sepuleda had borrowed money from Respondent in the past, and repaid it through deductions in his pay check. On September 29, he requested another loan through Chavez. The following day, he re- minded Chavez of his request. Chavez replied that all the union organizers' privileges, such as loans, had ended. On October 12, Chavez told him not to join the Union, that it was not any good, and that the employees would go on strike and lose all their benefits. He gave him the example of a nearly plant whose employees went out on strike and thereafter lost their benefits. In sum, Respondent, through various supervisors and foremen, notably Menchaca, Klein, Garcia, and Chavez, made threats of loss of employment and loss of benefits and unlawfully interrogated its employees about their own and other employees' union sympathy. Although Menchaca cannot be found to have violated Section 8(a)(1) for surveil- lance of the employees, since his presence in the church was lawfully motivated, his statements to the employees, that he knew where the meetings were being held, gave the appear- ance of surveillance, in violation of Section 8(a)(1) of the Act. Delgado testified that Respondent sent him a copy of a letter dated November 11, 1977 (G.C. Exh. 5) which con- tained the following paragraph: As I have previously advised you, when the union filed the petition for the election, all wages and work- ing conditions were frozen, in the sense that you could not grant wage increases or make changes. How long does this freeze continue? If the union loses the elec- tion the freeze is ended when the result of the election is officially certified. If the union wins the election, the freeze continues until you and the union can reach an agreement on the terms of the contract. The letter, addressed to Respondent and signed by an attor- ney, was stapled by the company on its bulletin boards for publication to the employees. The language of the letter can reasonably be construed to communicate to the employees that the union-organizing campaign had prevented the granting of a scheduled wage increase. More significantly, the letter represents to the employees that future pay in- creases would be indefinite in the event that the Union should win the election. Such a message certainly tends to restrain and coerce the employees when they cast their votes in an election. Accordingly, the posting of that letter constituted a violation of Section 8(a)(1) of the Act. B. Alleged 8(a)(3) Violalion Alberto Rocha began his employment with Respondent on January 16, 1970. He had been the hydraulic leadman in the assembly shop for about 3 or 4 years. Rocha was one of two employees who initially contacted the Union to start an organizing campaign. They met with Jaimie P. Martinez, the International representative, in late August. On Sep- tember 22, Martinez sent a letter to Respondent's plant su- perintendent, informing him of the members of the inplant organizing committe which included Rocha (G.C. Exh. 3). Since September 28, Rocha wore an organizing committee member button on his shirt pocket every day and was con- sidered by Martinez as a principal union supporter. On October 19, 1977, Respondent summarily discharged him when supervisor Thomas Garcia told him plant super- intendent Christon wanted to see him in his office. Christon told him he was terminated for not performing his job prop- erly. When Rocha stated that no one had ever complained about his work in 8 years, Christon replied that there were too many mistakes on the machines. Rocha told Christon that he thought his termination was caused by his union activities. Christon also told him he was creating a slow- down. Both Respondent's president, Frank Devine, and Rocha's foreman, Thomas Garcia. testified that Rocha was one of their best workers. Devine stated that Rocha was fired "in spite of his union activities," but that he had to set an example to get production back to normal. He chose Rocha for termination "because he was the most prominent in the group of people involved in the slowdown." In short, Devine admitted that Rocha was selected to set an exam- ple. Devine and Christon testified that they witnessed the slowdown because they saw people standing around and because they were able to recognize a slowdown when they see it. However, Respondent offered no concrete evidence, such as production statistics, to support the testimony. Re- spondent also offered testimony that many of its products left the plant in a defective condition, suggesting that the employees had been tampering with the machines or inten- tionally performed improper work on them. However, there was no testimony linking Rocha with the defective prod- ucts. To the contrary, both Devine and Christon testified that they had no idea who was responsible for the defective machinery. Nor was there any testimony which established that Rocha was a leading participant or a ringleader in the slowdown. Rocha's foreman, Garcia, was unable to testify clearly and unequivocally why Rocha was selected for the dis- charge. He stated only that it was related to a slowdown, but was unable to explain in what manner Rocha slowed down or exactly what he did which prompted the termina- tion of his employment. Assuming that a slowdown occurred for Respondent correctly points out that General Counsel failed to rebut Respondent's testimony concerning a slowdown-the rec- ord fails to establish Rocha's culpability as a leader in it or his responsibility for it. Accordingly, Respondent's assigned reasons for Rocha's discharge are suspect and unconvinc- ing. In view of Respondent's antiunion animus established in the Section 8(a)(1) violations and its admitted knowledge of Rocha's prominent role in the Union's organizing activities, the evidence points to an inference that the true motivation for Rocha's discharge was the Union. This conclusion is further buttressed by Rocha's outstanding reputation as a good worker, for an employer would rarely attempt to rid itself of one of its best workers only to make an example of him in a slowdown situation. Finally, there is the testimony of Frank Delgado, who clearly recalled Menchaca's state- ment in November 1977, that Rocha was fired because of his leading role in the union campaign. Accordingly, I have no difficulty in finding that Respondent violated Section 8(a)(3) and (I) of the Act when it fired Alberto Rocha. 794 TAMPO MANUFACTURING. IN(C. CONCLUSIONs ()F LAW 1. Respondent Tampo Manufacturing Co.. Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. By discharging Alberto Rocha because of his union activity, Respondent violated Section 8(a)(3) and (I) of the Act. 3. By threatening its employees with loss ofjobs and loss of benefits and by creating the appearance of surveillance of the employees' union meetings and by interrogating its employees concerning their own and other employees' union sympathy, Respondent violated Section 8(a)(1) of the Act. 4. Other allegations in the complaint have not been sus- tained. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(l) and (3) of the Act. I recommend that Respondent be ordered to cease and desist from its unlawful practices. I further recommend that Re- spondent be ordered to post an appropriate notice and take affirmative action to effectuate the policies of the Act. In addition, I recommend that Respondent offer Alberto Rocha immediate reinstatement, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).4 Upon the basis of the foregoing findings of fact, conclu- sions, of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommended the issuance of the follow- ing recommended: ORDER' The Respondent, Tampo Manufacturing Co., Inc., San Antonio, Texas, its officers, agents, successors, and assigns, shall: 4 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). In the event no exceptions are filed, as provided by Sec. 102.46 of the 1. Cease and desist from: (a) Discouraging membership in any labor organization by discriminatorily discharging its employees or discrimi- nating in any other manner with respect to their hire or tenure of employment or any term or condition of employ- ment in violation of Section 8(a)( 1) and (3) of the Act. (b) In any other manner, unlawfully interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will effec- tuate the policies of the Act. (a) Offer Alberto Rocha immediate and full reinstate- ment to his former position, or if such position no longer exists, to a substantially equivalent position, and make him whole for any loss of pay that he may have suffered by reason of Respondent's discrimination against him in ac- cordance with the recommendations set forth herein under "The Remedy." (b) Post, at its San Antonio, Texas office and plant. cop- ies of the attached notice marked "Appendix." 6 Copies of this notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's autho- rized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places. including all places where notices to employees customarily are posted. Reason- able steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. 6 In the event the Board's Order is enforced by a Judgment of the 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 795