Thomas Spring and Mfg. Corp.

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas Spring and Mfg . Corp. and Production, Maintenance and Service Employees Union, Local 3. Case 29-CA-1 129 June 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 28, 1968, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Ex- aminer's Decision . Thereafter, the Charging Party filed exceptions to the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and hereby is, dismissed in its entirety. ' The Union excepts to the decision on the grounds that the Trial Ex- aminer, in a settlement conference which was not made part of the record, indicated bias against the position of the Union, and therefore prejudged the case We find no merit in the Union's contention Our review of the record reveals that the hearing was conducted fairly TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG, Trial Examiner: Upon a charge filed on October 19, 1967,1 by Production, Maintenance and Service Employees Union, Local 3 (herein called Local 3 or the Union), the com- plaint herein issued on November 30. The com- plaint alleged that Thomas Spring and Mfg . Corp.' (herein called Thomas Spring or the Respondent), had refused to recognize and bargain collectively with the Union in violation of Section 8(a)(5,' ` the National Labor Relations Act, as amended (herein called the Act). Respondent was alleged to have violated Section 8(a)(3) of the Act by the discharge of four employees and by interrogation of employees concerning union activity to have vio- lated Section 8(a)(1) of the Act. Respondent de- nied all the material allegations of the complaint. All parties participated in the hearing in Brooklyn, New York, on January 30 and 31, and February 1, 1968, and were afforded full opportu- nity to be heard, to introduce evidence, to examine and cross-examine witnesses , to present oral argu- ment, and to file briefs. General Counsel argued orally at the close of the hearing and in addition filed a brief. Respondent's motion to dismiss the complaint, on which I reserved ruling, is disposed of according to my findings below. Upon the entire record in the case, from my reading of General Counsel's brief, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I find that Thomas Spring and Mfg. Corp., a New York corporation, is engaged in the manufacture, sale, and distribution of precision springs and re- lated products with its principal office and place of business in Farmingdale, New York. During a representative 12-month period Respondent, in the course and conduct of its business, had a direct in- flow of goods and materials in interstate commerce valued in excess of $50,000 which were shipped to its Farmingdale plant from points outside the State of New York. In addition, during the same 12- month period Respondent shipped manufactured products valued in excess of $50,000 from its plant to points in the United States outside the State of New York. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and meets the Board's standards for asserting jurisdic- tion. II. THE LABOR ORGANIZATION INVOLVED Production, Maintenance and Service Employees Union , Local 3, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Unless otherwise noted all dates herein were in 1967 The Respondent's name appears pursuant to amendment at the hear- ing 172 NLRB No. 67 THOMAS SPRING AND MFG. CORP. 613 III. THE ALLEGED UNFAIR LABOR PRACTICE A. Background At the time of the events herein Respondent had 13 employees in the production and maintenance unit, plus Carlos Rodriguez whose status is discussed below. Additionally, Respondent had three other employees outside that unit who were represented under the terms of a collective-bargain- ing agreement by the Tool, Die and Mold Makers Guild, Independent. In April or May 1966, Local 3 petitioned for a Board-conducted election in the production and maintenance unit but failed to receive a majority of the votes cast. For some period of time prior to the events herein Respondent had been working on an order for springs to be used by the contractor, Spartan Electronics, in the manufacture of sonar buoys, which are employed in antisubmarine detection. B. Carlos Rodriguez Most of Respondent's production employees were Puerto Ricans. The majority of these em- ployees spoke no English and lived in the same neighborhood in Brooklyn . Carlos Rodriguez was Respondent's sole means of communicating orders and directions to these workers. Rodriguez had been employed by Thomas Spring for about 4 years. James Tessitore, Respondent's plant foreman and a part owner of the Company, speaks no Spanish although he is in direct overall charge of the factory. Tessitore described Rodriguez as the bench foreman who sets up jobs for manufacture, makes tools, and inspects jobs and work in process. Tessitore gives instructions to Rodriguez in English , and Rodriguez passes these orders on to the employees in Spanish. Rodriguez clocks in and out on the timeclock, is paid for any overtime he works, and is not compen- sated for any hours he misses. Whereas the pay range for production employees is from $1.50 to $1.80 per hour, a high of $72 for a 40-hour week, Rodriguez receives $124 per week, or $3 an hour. There are no fringe benefits in effect. Rodriguez does not have authority to discharge, but may make recommendations on terminations to Tessitore. He does not decide independently which workers to use on production jobs, this is determined by Tessi- tore, and cannot change employees' shifts or hours without consulting with the plant foreman. When Respondent determines that more produc- tion employees are needed, help is sought in one of two ways, either by newspaper advertising or through recruiting by Rodriguez among his friends and relatives in Brooklyn. In the latter event, Tessi- tore would ask Rodriguez to bring in additional help. On other occasions Rodriguez, knowing of an available unemployed worker in his neighborhood would ask Tessitore if he needed additional work- ers. In either case Rodriguez brings the worker he has recruited to the Farmingdale plant from Brooklyn in his station wagon and puts the new em- ployee to work without an intervening interview or decision by Tessitore or any of the other partners in Thomas Spring.' There is no inquiry as to their prior work experience, education, or like matters before Rodriguez puts the new employees to work. Tessitore testified that "when Mr. Carlos Rodriguez brings people in, I rely on his discretion to bring in people who will be able to do the work for us." The plant foreman explained that his daily routine keeps him in the plant office going over the schedule for the day until about 8:20 a.m. The plant starts work at 8 a.m. Thus, if a new employee has started that day, Rodriguez does not inform Tessitore that the new worker has joined the work force until almost one-half hour after that worker has been on the job. I find that Rodriguez is possessed of and exer- cises the authority to hire employees for Respon- dent's work force.' This is clear evidence of super- visory status.' Accordingly, I find that Rodriguez is a supervisor within the meaning of Section 2(11) of the Act.' C. The Union's Campaign and Majority Late in September the employees expressed an interest in union representation and Rodriguez telephoned Antonio Patino, secretary-treasurer of Local 3 to arrange a meeting with him. Rodriguez knew Patino from the Union's unsuccessful 1966 organizing effort. Two or three days later Rodriguez and Patino, together with Isaac Castaing, met on a Brooklyn street. Following this, Patino called Rodriguez on Saturday, September 30, and arranged for a meeting with the employees to be held on October 4, at 4:30 p.m., after work on the parking lot of a bar near Respondent's plant. Rodriguez in turn told the employees about the ar- rangements for the meeting with the Union. Patino, together with Alfred Cavallaro, president 'This account of the hiring process is based on the credited testimony of James Tessitore Carmen Vazquez, one of the alleged discnmmatees, cor- roborated this testimony when she described the manner in which she was hired She testified that Rodriquez brought her to the plant, showed her the work she was to do, and put her to work No one other than Rodriguez spoke to her Carmen Vazquez' timecard was filled out by Rodriguez who obtained from her and recorded the necessary information for company records ' In addition to Carmen Vazquez, Rodriguez hired Hipolita Vazquez, Dolores Evertsz, Isaac Davila Castaing, and 3 other employees , a total of 7 of the 13 employees in the unit at the time of the events herein ' Sec 2( 1 1) of the Act provides in pertinent part that "The term 'Super- visor' means any individual having authority , in the interest of the em- ployer, to hire or effectively to recommend such action, if in connec- tion with the foregoing the exercise of such authority is not of a merely rou- tine or clerical nature, but requires the use of independent judgment " ' - I TIhe possession of any one of the authorities listed in Section 2(11) [of the Act) places the employee invested with this authority in the super- visory class" for that "section is to be interpreted in the disjunctive " Ohio Power Company v N L R B , 176 F 2d 385, 387 (C A 6), cert denied 338 U S 899 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Local 3, met with the employees on October 4. Cavallaro spoke to the employees in English and his remarks were translated into Spanish by Patino. Thereafter, Cavallaro spoke to employee John Maio, the one English -speaking employee present. Patino then addressed the employees in Spanish. In his own words Patino "told them that in order to represent them, they must authorize Local 3 by sig- ning the card, which will be needed to file a peti- tion with the National Labor Relations Board." Patino explained that the cards were necessary to get an election and translated the card to the em- ployees.' Castaing testified that after Patino explained the benefits under a union contract he signed an authorization card. There were no employee benefits at Thomas Spring, Castaing explained, "and we liked those benefits." Hipolita Vazquez testified that she signed a card to authorize the Union to represent her. The following day, October 5, Castaing obtained signed cards from Carmen Vazquez" and Venancio Martinez when they were all in Rodriquez ' station wagon going home to Brooklyn . Castaing gave these cards to Patino on October 6. On October 4 the Union obtained authorization cards from 6 of the 12 employees in the bargaining unit on that day.' By October 6, the unit had in- creased to 13 with the addition of Carmen Vazquez, and the Union now had a total of 8 cards, a majority.10 However, the record reveals that Rodriguez was the moving force in the Union 's successful cam- paign to solicit authorization cards. Thus, it was Rodriguez who first contacted the Union and, with Castaing, met with Patino, the Union's representa- tive. It was Rodriguez whom Patino contactecd to arrange for the October 4 meeting with the em- ployees and it was Rodriguez who informed the em- ployees that the meeting had been scheduled. At this meeting arranged by Rodriguez and with him present, six employees signed union cards. Rodriguez testified that he observed them sign the authorization cards . Finally, the last two union cards were solicited in Rodriguez ' station wagon, one of the cards being signed by Carmen Vazquez who that very day had been hired by Rodriguez. The cards bear the following language under the name and address of the Union Authorization for Representation f, the undersigned , employed by ( Name of Firm ) (Address of Firm) do hereby authorize Local 3 to represent me and , in my behalf, to negotiate all agreements as to hours, wages and other employment conditions The full power to act for the undersigned as herein described super- sedes any power or authority heretofore given to any person or or- ganization to represent me in such capacity and shall remain in full force and effect for one year from date and thereafter , subject to thirty (30) days written notice of my desire to withdraw such power and authority to act for me in the matters referred to herein Thereafter blanks are provided to be filled in by the employee with his name, address, and other pertinent information Having found that Rodriguez was a supervisor and having found that he was the moving force in getting the Union 's authorization cards signed, I cannot hold that these cards may be used in this proceeding to prove that the Union represented an uncoerced majority of Respondent's employees. Accordingly , I shall recommend dismissal of the al- legation that Respondent violated Section 8(a)(5) of the Act. A.T.I. Warehouse, Inc., 169 NLRB 580; M.C. Inc., d/bla Poca Super Market, 164 NLRB 1080; J. C. Penney Co., Inc., 160 NLRB 279. D. The Discharges 1. Respondent's knowledge of the Union's campaign On October 4 the Union obtained seven signed authorization cards. The following day Patino filed a petition with the Board's Regional Office seeking a representation election." Cavallaro, the Union's president, testified that about 9 a.m. on October 5, he called Respondent's plant and spoke to a person who identified himself as "Aldo." Respondent's president is Aldo Lavalle and Cavallaro claimed to have recognized his voice. Cavallaro testified that he told Aldo the Union represented a majority of his employees and de- manded recognition. The union president stated that Aldo replied he was keeping his fingers crossed and that the Union should prove its majority to the N.L.R.B. Patino corroborated Cavallaro's claim to have called Respondent but did not claim to know to whom Cavallaro spoke. Lavalle testified and de- nied receiving a telephone call from Cavallaro on October 5. 1 credit Lavalle. Lavalle impressed me as an honest witness who was truthfully relating the events as he recalled them. Cavallaro evoked an opposite reaction. Based on his demeanor while tes- tifying and his behavior after he entered an ap- pearance for the charging party and participated in these proceedings, I would not credit Cavallaro un- less corroborated by credible independent witness. Patino , while credible in the main , is not an inde- pendent witness. I find that there was no call by the Union to Thomas Spring on October 5. As earlier noted the Union filed its petition for While the card purports to bind the employee to the Union as his representative for a fixed period of time , something it clearly cannot do, it is nonetheless an unambiguous designation of the Union as the signer's bar- gaining representative , and I so find " October 5 was Carmen Vazquez' first day of work. ° The number and identity of the employees in the unit were stipulated at the hearing . The complaint alleged and the answer admitted that "all production and maintenance employees of Respondent , employed at its Farmingdale plant , exclusive of tool and die employees , office clerical em- ployees, guards and all supervisors as defined in Section 2(1 1) of the Act, constitute a unit appropriate for the purpose of collective bargaining " 10 In these calculations I have excluded Carlos Rodriguez from the unit and have subtracted his card from the total held by the Union on either Oc- tober 4 or 6 ii The petition states that recognition was demanded and refused on Oc- tober 4. Patmo testified that this date was stated in error and f credit his ex- planation THOMAS SPRING AND MFG. CORP. 615 election on October 5. At the instant hearing it developed that on that same day the Regional Of- fice sent a letter to Respondent requesting the Company's position on the petition , enclosing a commerce questionnaire to be completed and returned by Thomas Spring to determine jurisdic- tion and notices for posting in the plant . This letter was sent by ordinary mail. The commerce question- naire was not returned. Lavalle testified that this letter was never received and that he so informed the Board agent who called him on October 11 to advise that an informal conference would be held on October 19 to discuss the Union's petition.12 The Board agent was not called to testify. Lavalle testified without contradiction that the Company had been experiencing difficulties with mail delivery. As a result, Lavalle claimed, Respondent did not receive until October 12 or 13 a copy of a telegram sent by the Union on October 9 demand- ing recognition which was forwarded by Western Union through the mails. Lavalle stated that Western Union had not telephoned the message to Respondent before putting a copy in the mail. Although I alerted General Counsel to the need for proof no evidence was offered which would con- trovert Lavalle's testimony. Western Union's records were neither offered nor subpenaed to show that the telegram was transmitted in a manner other than that testified to by Lavalle. As noted, Lavalle was a credible witness . Based on his uncon- troverted testimony, I find that Respondent did not receive notice of the Union 's activity among its em- ployees until October 1 1.13 2. The events of October 10 On October 10 Respondent discharged four em- ployees. It is alleged that these employees were fired because of their union activity. Respondent denied that its action was motivated by antiunion considerations , justifying the discharge of Juan Baez on the basis of his absenteeism and the separation of three other employees, Hipolita Vazquez, Carmen Vazquez, and Dolores Evertsz because of the unacceptable work they were per- forming. On Saturday, October 7, Lavalle was advised by Respondent's representative in Michigan that Spar- tan Electronics was returning 5,000 rings because of defects in manufacture. Lavalle observed that 10,000 more were on the way and was told that if the additional rings were in the same condition as the previous shipment they would be returned as well. On Tuesday, October 10, Lavalle told Tessitore that the rings were coming back from Spartan and asked him to check the rings in process in the facto- ry.14 Tessitore and Rodriguez inspected the rings then being manufactured and discovered some with rough edges, improperly countersunk drill holes, and others which were misshapen.15 Tessitore reported his findings to Lavalle who told the plant foreman to discharge the people who were doing the bad work. Later Tessitore told Lavalle that three girls were involved. In this same conversation Tessitore brought up Juan Baez' con- tinued absences. Baez had been out on Monday and was away from work again on Tuesday. From the time he was hired Baez had been absent 17 of the 70 working days. Lavalle said to include Baez in the layoff. "s Rodriguez testified that Tessitore told him at the end of the workday to tell the three women, Car- men and Hipolita Vazquez and Evertsz, that they were discharged. Rodriguez informed the women and left the plant to get the station wagon for the trip back to Brooklyn. Carmen Vazquez and Hipolita Vazquez" testified that after being told of their discharges by Rodriguez they had gone to the office indepen- dently of each other and asked Lavalle why the ac- tion had been taken. Each claimed that Lavalle asked if she had signed anything for the Union or knew anything of its activities. Upon their denial of such activity or knowledge Lavalle confirmed the fact of their discharge." 12 That conference was held and the Tool, Die and Mold Makers Guild intervened in the representation proceeding IS In view of the relatively small size of the work force involved, General Counsel urges that a finding be made of company knowledge of union ac- tivity under the presumption postulated in Wiese Plow Welding Co , Inc , 123 NLRB 616 In the circumstances of this case I do not deem such a pre- sumption justified Alone among Respondent 's officers or supervisors (other than Rodriguez ) only Lavalle spoke or understood Spanish and his time was spent in the office The few occasions when he was out on the fac- tory floor were of short duration and his infrequent conversations with the employees were limited to an exchange of pleasantries I do not impute to Respondent Rodriguez ' knowledge of the union activity because he was clearly not acting within the scope of his authority when he was responsible for the Union's organizing efforts Thus, the generally valid assumption that from the very nature of the intimate relationship between management and the employees in a small plant situation the employer would gain knowledge of any union activity can not be applied in the special circum- stances of this case " Lavalle did not explain why he had not on Monday taken up with Tes- sitore the problem of bad work. General Counsel did not examine Lavalle on this point The first of Spartan 's debit memos to Thomas Spring was dated Monday, October 9, and it could well be that Lavalle was waiting confirmation from the customer before cracking down "Tessitore testified credibly that Rodriguez had accompanied him dur- ing this inspection Rodriguez both agreed and disagreed with Tessitore's account of their joint inspection 16 This account of the events leading up to the discharges on October 10 is based on a synthesis of the credited testimony of Lavalle and Tessitore " The two are not related " Evertsz' version of the events surrounding her discharge is totally in- credible Alone among all the witnesses Evertsz denied that Rodriguez had told her of her discharge Instead she claimed that she was taken to the of- fice by Tessitore where, after he had interrogated her about her contacts with the Union , Lavalle had fired her Evertsz also insisted that the union authorization card which she had signed had been written in Spanish When shown her card at the hearing Evertsz pled inability to determine whether at was in English or Spanish because she had left her glasses at home Under examination by Patmo, and much to his surprise , she denied that she had spoken to the Union 's secretary-treasurer after her discharge or had given him a statement I discredit Evertsz ' account of the alleged exit interview 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lavalle flatly denied that he had had any conver- sation with any of the three dischargees on October 10. Rodriguez and Evertsz testified that there was no discussion of the discharges in the car that evening on the trip back to Brooklyn. Instead, Evertsz stated, they talked about "different things, nothing concrete." The denial that the discharges had been discussed is the incredible cap to an incredible structure of events. Three of the passengers had lost their jobs and, if they are to be believed, had just had their first conversation of substance with the boss in which he had questioned them about the Union. Certainly the loss of employment must have warranted some comment by those whose income had come to an end. 19 I credit Lavalle and find that there were no conversations in his office on Oc- tober 10, there was no interrogation of the em- ployees concerning union activity, and there was no violation of Section 8(a)(1) of the Act. Moreover, I do not believe that General Counsel has met the burden of proving that the four em- ployees were discharged in violation of the Act. There is no evidence that, at the time of the discharges, Respondent was aware of union activity among the employees, let alone that the alleged dis- criminatees were among those so involved. Respon- dent's explanation for the discharges stands un- rebutted . Baez' employment record establishes his poor attendance. Debit memos from Spartan Elec- " • It is hard to believe that Rodriguez would have been silent on the discharges These were people he had brought to the Company If the Union had been a factor in their discharge this would have been a matter of concern for him for it was he who had introduced the Union to the scene Indeed , if only because he had just lost three riders who paid him $4 a week each for their transportation Rodriguez must have expressed some con- cern tronics covering return shipments of defective rings provide independent corroboration of credible testimony by Lavalle and Tessitore that the three female employees were discharged because an in- spection of work in process disclosed that they were not doing a satisfactory job. Such an inspec- tion would reasonably follow upon notice from an important customer that a substantial quantity of unacceptable merchandise had been shipped. It is equally reasonable that upon discovering that probationary employees20 were turning out addi- tional unacceptable rings their employment would be terminated. I shall recommend dismissal of the allegation of unlawful discharge.21 CONCLUSIONS OF LAW 1. Thomas Spring and Mfg. Corp. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Production, Maintenance and Service Em- ployees Union, Local 3, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint herein be dismissed. r" Hipolita Vazquez and Evertsz had been hired on September 18 and Carmen Vazquez had commenced work on October 5 y' Thus, even if the authorization cards had been untainted by superviso- ry involvement a finding that Respondent 's refusal to extend recognition to the Union was an unlawful denial of its bargaining obligation would not have been warranted by the facts Aaron Bros Co , 158 NLRB 1077