The Deutsch Co.

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Deutsch Company, Metal Components Division and Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO The Deutsch Company, Metal Components Division and Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, Petitioner. Cases 21-CA-8064 and 21-RC-10863 September 24, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, BROWN, ANL)ZAGORIA On February 5, 1969, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding. finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. The Trial Examiner also found merit in certain objections to the election in Case 21-RC-10863 and recommended that the election he set aside and a new election be directed. Thereafter. the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modified below.' 1. In adopting the Trial Examiner's finding that Respondent's letter of May 20, 1968, soliciting its employees to revoke their union authorization cards violated Section 8(a)(1). we do not rely on the rationale that it was unlawful because it was patently intended to create a false impression of 'The Court of Appeals for the Ninth Circuit recently denied enforcement of the Board's Order in another Deutsch Co case (165 NLRB No 5) on the ground that the violations were "so trivia! that we wnclude the purposes of the Act would not be served by enforcement of the Board's proposed order ' N L R B v Deutsch Co . 408 E 2d 684 (C A 9), rehearing denied August 4, 1969 Although we respectfully disagree with the court s conclusion that the unfair labor practices in the earlier case were "trivial," We are satisfied that continuation of these same unfair labor practices at another plant of the same company takes them completely out of the realm of trivia, and patently requires issuance of a cease and desist order and the posting of an appropriate notice in order to effectuate the policies of the Act coercion which would prejudice the Union's chances in the election. Rather, we conclude that because it solicited employees to revoke their authorization cards, the letter violates Section 8(a)(1) and warrants setting the election aside. 2 The Trial Examiner found that the wage increase of August 5, 1968, was intended to affect the results of the election, violated Section 8(a)(1), and constituted a basis for setting the election aside. In reaching this conclusion he relied on testimony of Philip Holzman, Respondent's president, that he had decided to act on what was best for the company and not on "...whether or not this was considered the right thing to do because there was a union knocking at our gate . . " The Trial Examiner viewed this as an admission that Holzman was not concerned with whether it was the right thing to do ". . with due regard given to the duties of employers and the rights of employees under the Act." We do not agree, as Holzman' s statement is in fact a valid exposition of an employer's duty when faced with an organizing campaign. In such circumstances an employer is required to act as it would normally, absent the presence of the union. Had the Respondent withheld a wage increase it would have granted but for the union, it would have violated the Act.'- In both 1966 and 1967 Respondent had increased wage rate ranges; the Respondent's employee handbook states that it is company policy to maintain wages as high as, or higher than, other companies in the industry, and Respondent's president testified that a decision had been made early in 1968 to watch trends in the industry and to maintain a competitive position. The record establishes that other employers in the aerospace industry in the same locality had just agreed, during contract negotiations, to grant substantial increases and the General Counsel has failed to prove by a preponderance of the evidence that this wage increase by the Respondent was motivated by union animus rather than by valid business considerations. Accordingly. we shall dismiss this allegation of the complaint and overrule the objection. 3. Apart from the unfair labor practices. it is clear, and we find. that the Respondent interfered with the election by soliciting employee withdrawals from the Union. We note, however, that the Trial Examiner inadvertently failed to rule upon Respondent's letter of August 5, 1968, which the Regional Director for Region 21 in his Report on Objections in Case 21-RC-10863 found constituted conduct interfering with the results of the election. The Respondent excepted to this finding. Considering this letter in the context of the record as a whole, we conclude, in agreement with the Regional Director for Region 21, that the tone of the letter vas calculated to convince employees that selection of the Union would he futile. In particular, 'See McCormick Longmeadow Stone Co . 158 NLRB 1237 178 NLRB No. 9-5 THE DEUTSCH CO. We regard the following as virtually tantamount to an anticipatory refusal to bargain: What can I gain by voting for the union? The answer is nothing. The Union can get nothing for you that the company is not willing to give in the first place. Accordingly, we find that Respondent's letter of August 5, 1968, constituted additional conduct warranting setting the election aside. 4. Finally, we take note of Respondent's contention that the Charging Party herein waived its right to object to the election on the basis of conduct which was the subject of an unfair labor practice proceeding pending before the Board at the time the Charging Party executed its request to proceed with the election on May 24, 1968. A "request to proceed" does not constitute a waiver of a union's right to urge postpetition unfair labor practices as conduct affecting the results of an election. Lloyd A Fry Roofing Co., Inc., 142 NLRB 673 at 681; The Great Atlantic & Pacific Tea Company, 101 NLRB 1118 at 1120-21. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and orders that Respondent, The Deutsch Company, Metal Components Division, Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein. 1. Delete from paragraph 1(a) of the Trial Examiner's Recommended Order that part which reads: "granting an invalid wage increase to influence employees against assisting, joining or voting for the Union " 2. Delete from paragraph 1(b) of the Trial Examiner's Recommended Order that part which reads "in any other manner" and substitute "In any like or related manner." 3. Delete from the notice that part of the second indented paragraph which reads "'in any manner" and substitute therefor "in any like or related manner." 4. Delete from the notice attached to the Trial Examiner's Decision that part of the first indented paragraph which reads: (4) granting an invalid wage increase to influence employees not to assist, join or vote for the above named Union." IT IS FURTHER ORDERED that the election held on August 22, 1968. among the Respondent's employees be, and it hereby is, set aside, and that Case 21-RC-10863 be remanded to the Regional Director for Region 21 for the purposes of conducting a new election at such time as he deems 617 that circumstances permit the free choice of a bargaining representative. [Direction of Second Election3omitted from publication ' 156 NLRB 1236, N L R B. v Wyman-Gordon Company, 394 U S 759 Accordingly. it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 21 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID F, DOYLE, Trial Examiner: This proceeding, with the parties represented by the counsel named above, was heard by the Trial Examiner in Los Angeles, California, on September 4-6, 1968, on complaint of the General Counsel and answer of the Respondent. The issues litigated were whether the Respondent had violated Section 8(a)(1) and (3) of the Act by certain conduct of its officers and supervisors.' The complaint in this proceeding was issued on June 11, and is based on a charge filed by an officer of the Union on April 24, and a first amended charge filed on May 6.1 The complaint alleged in substance that the Company (1) had engaged in various acts of intimidation, restraint, and coercion of its employees in violation of Section 8(a)(1) of the Act and (2) had discriminatorily transferred one employee, Ignacio Vasquez, because of his activity on behalf of the Union in violation of Section 8(a)(3) of the Act. In its duly filed answer, the Company denied the commission of any unfair labor practices. On September 4, the proceeding came on regularly to be heard by the Trial Examiner. At the hearing all parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record and to file briefs and proposed findings. At the time of the hearing, certain objections to the conduct of election filed by the Union were pending before the Board in representation Case 21-RC-10863. These objections arose from an election involving the parties and were of a nature similar to the above-mentioned unfair labor practices. On November 5, the Board remanded these objections to the Regional Director for disposition after hearing, and the Regional Director in turn referred the objections for hearing by the Trial Examiner. Thereafter, pursuant to appropriate motions and order the record of the hearing was reopened and such additional testimony was received as to the objections as counsel offered and the Trial Examiner deemed admissible. The reopened hearing was held on December 3 with the same counsel of record participating Thereafter, all parties were afforded an opportunity to file additional briefs which have been considered. Upon the entire record of the case and upon my observation of the witnesses , I make the following- 'In this decision , the Deutsch Company, Metal Components Division, is referred to as the Respondent or the Company , Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, as the Union, the National Labor Relation-, Board, as the Board; the General Counsel of the Board and his representatives at the hearing as the General Counsel, and the Labor Management Relations Act, as amended , as the Act 'All dates in this Decision are in the year 1968 unless specified otherwise 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS Of, FACT 1. THE BUSINESS OPI.RATIONS OF THE COMPANY Upon the pleadings and stipulations of the parties, it is found that the Company is a California corporation with a plant located in Los Angeles, California , where the Company engages in the manufacture and sale of parts and components in the aerospace industry . In the normal course and conduct of its operations , the Company annually sells and ships from its Los Angeles plant, goods valued in excess of S50,000, directly to points located outside the State of California . The Company also purchases annually and causes to be transported to its Los Angeles plant from points located outside the State of California material and supplies valued in excess of $50,000. It is found, therefore , that the Company is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. At the hearing it was stipulated , and I find, that Philip E. Holzman, Peter D . (Pete) Hanly, and Howard (Pat) Whalen are agents of the Company and at all times relevant hereto were supervisors within the meaning of the Act.` The complaint alleged that John Block, John Mancilla. and Harry Saterbo are also agents of the Company and supervisors within the meaning of the Act but the Company denied the supervisory status of these individuals claiming that they are "leadmen" only This is one of the issues to he decided in this proceeding, inasmuch as the General Counsel claims that these three men also engaged in conduct violative of Section 8(a)(1) of the Act. If. THE LABOR ORGA' IZ&TiON INVOLVED It is found upon the pleadings and a stipulation of the parties at the hearing that the Union is a labor organization within the meaning of Section 2(5) of the Act. Iii. rHE UNFAIR LABOR PRACTICES A The Issues It is undisputed that in the spring of 1968, particularly in March. the Union began an organizing campaign in the Company's Los Angeles plant The complaint alleged that in the course of following weeks the Company committed unfair labor practices as follows: (1) It discriminatorily transferred on April 1. employee Ignacio R. Vasquez to the day shift because of his activity on behalf of the Union: (2) by various supervisory officials threatened employees with the closing of the plant it the Union succeeded in its efforts or if the employees joined or supported the Union: (3) by various supervisory officials interrogated employees concerning their union affiliation and activities. (4) solicited employees to revoke their union authorization cards. (5) invoked an invalid no-solicitation rule to hamper the organ17ational efforts of the Union: (6) granted a wage increase to influence employees against choosing to be represented by the Union and to influence the vote of employees in a Board-conducted election which was pending at the time, and (7) oy various officials threatened employees with 'In the testimony the employees frequently referred to these supervisors as "Pete" and "Pat ' economic reprisals or detriments if they voted for the Union. In its duly tiled answer the Company generally denied the commission of unfair labor practices and as affirmative defenses stated that the job transfer effected by the Company was prompted by valid business considerations and not because of any union or protected activities on the part of any employee. As a second affirmative defense the Company alleged that any restriction imposed by the Company upon solicitation on behalf of the Union was motivated solely by considerations of security , safety, cleanliness and production efficiency, and not because any of the employees engaged in union activities As a third affirmative defense the Company asserted that any communications between the Company and its employees were motivated to provide a fair, free and uncoerced judgment by the employees in regard to the choice of a bargaining representative in the election because the employees were subject to "harassment, threats, coercion and intimidation by the Union and its agents." It should be noted that the objections to the conduct of election referred to previously are in general a repetition of some of the allegations of unfair labor practices, and the Company's contentions on the objections are similar in content to its defenses presented in the unfair labor practice aspect of the case. A consideration of all the evidence and a resolution of the issues of unfair labor practices will for all practical purposes decide the issues presented by the objections. As the reader must have noted there are a large number of issues thus presented. If this decision is to have clarity, the unfair labor practices of different kinds and types must he separated and classified under appropriate headings. This will be done, but the Trial Examiner desires that it be understood that in the ultimate decision as to each unfair labor practice, the Trial Examiner has scrutinized the evidence in regard to that specific unfair labor practice and given due consideration to all of the evidence presented. Any compartmentalization which appears in this decision is only for the purpose of organizing the presentation of the evidence. Since there is a multiplicity of issues, reason requires that some be treated more shortly than others if this decision is to be kept within reasonable length. The Trial Examiner also wishes it understood that any disparity in length of treatment does not betoken that the specific issue received less than his full consideration B The Alleged Discriminatory Discharge of Ignacio Vasquez It is undisputed that Ignacio Vasquez and Luis Palacios are both employed by the Company as inspectors and both were employed on the night shift when the union organization campaign began earn in March. It is undisputed that on a night in the first week of March, while both men were on duty , that they had an angry argument . From the testimony of all concerned, it is clear that Vasquez was a union adherent and Palacios had refused to sign an authorization card for the Union According to both Vasquez and Palacios at the end of the shift they went to the parking lot and both men took off their shirts preparatory to engaging in a listfight. Cooler heads among the crowd which gathered finally prevailed and the men went their separate ways without any blows being struck , but without their difference being settled THE DEUTSCH CO. 619 Vasquez called as a witness by the General Counsel testified that on the next shift after the near fight, he was told by his foreman Alverez to report to Pete Hanly, Personnel Director for the Company. When Vasquez talked to Ilanly in his office, Hanly said that he had heard that Vasquez had a near fistfight with Palacios because Vasquez wanted to beat Palactos up, because Palacios had refused to sign a union card. Vasquez denied the truth of that statement. Then Hanly said that he had heard that Vasquez was a troublemaker and that he was going to transfer Vasquez to the day shift. Then Hanly asked Vasquez what he thought about the Union and Vasquez told him that he was neither for or against it. Vasquez then told Ilanly that he had engaged in a personal argument with Palacios off-and-on for over 6 months, and that the cause of the near fight was a "personal" matter between the two men. Luis Palacios testified that some of the employees talked to him about the Union in the month of March. He would not sign a card for the Union and later he was told that Vasquez had said that he was a homosexual. Palacios went to Vasquez and asked Vasquez if he had said that he was a homosexual. Vasquez said that he had said it, and that it was true. Palacios said that he would wait for Vasquez outside the plant at quitting time and they would settle the matter by fighting. When they got outside at the end of their shift, Vasquez took off his shirt and said he was ready to fight Palacios did likewise, but some of the employees pointed out that they were on company property and the men argued with each other about whether they would be in trouble for fighting on company property. After some discussion, they left without fighting On the next day, Palacios told his foreman about the incident, saying that he didn't want to have any more trouble on the job with Vasquez, and that if he was going to have such trouble that he would look elsewhere for employment On the next night, he had a talk with Hanly, Director of Personnel, and told Hanly that he could not understand why Vasquez was making trouble for him. In the course of his testimony, Palacios said that Vasquez had not talked to him personally about the Union but he had heard Vasquez talking to other people about the Union Peter D Hanly, Personnel Director for the Company, testified that the day after the Vasquez-Palactos incident, Alverez, one of the foremen, reported to him that Vasquez and Palactos had gotten into an argument on the night shift and that they had very nearly come to blows in the parking lot after the shift. He sent for Vasquez and informed Vasquez that he had heard about the altercation with Palactos He asked Vasquez what it was about and Vasquez replied that it was a personal matter between him and Palacios. Hanly then told Vasquez that Palactos said that Vasquez had been bothering him because he would not sign a union card. Vasquez replied that there was no truth in that charge. Hanly then told Vasquez that he would have to separate the two men. He said that both were good inspectors and he didn't want to lose either one but he could not have any fights either on or after the shift and that under the circumstances he had decided to transfer Vasquez to the day shift. Vasquez said that was all right with him, as he was going to request a transfer to the day shift anyway. It is undisputed that among the employees the day shift is considered a more desirable job than the night shift, and because of that fact, the men on the night shut receive a differential of 10 cents per hour in pay. lianly said that Vasquez did not complain to him about his loss of the 10-cent differential in pay. However. in June, while Hanly was going through the plant, Vasquez asked Hanly for an opportunity to speak to him privately. Hanly arranged for Vasquez to come to his office. When the two men were alone, Vasquez told him that Albert Matas, one of the most vigorous of the union adherents, had been pestering him continuously to get him to sign a complaint against the Company for being transferred. Hanly told Vasquez to tell Matas "very firmly" that he did not want to sign any complaint. Ilanly advised Vasquez that if he did that, he felt sure that Matas would leave Vasquez alone. Vasquez also told IIanly that at the union meetings the men drank an awful lot of beer and that on one night, when he had been drinking quite a bit, he had signed quite a few papers, of whose significance he was not aware Hanle testified further that he tried to effect some sort of amicable arrangement between the two men. Palacios was willing to forgive and forget. but Vasquez was adamant in his position. Since the name calling by Vasquez was the start of the incident and he seemed to be the more belligerent of the two. Hanle decided that it would he proper for him to transfer Vasquez rather than Palacios. Ilanly stated that the transfer was effected merely to keep peace between these two employees and for no other reason. As to this incident Hanly testified in a forthright and candid manner. I credit his testimony fully. Since both Palacios and Vasquez say the incident was "personal" in nature, started by name calling, I conclude that the transfer of' Vasquez was not discriminatory. Therefore, this allegation of the complaint is dismissed because of insufficient evidence. C. The Alleged Interrogation of Rodriguez by Holzman , President of the C'ompani' , and by Hanlv and Whalen Employee Ray Rodriguez, one of the leaders of the Union. testified that several supervisors questioned him about his union affiliation and talked to him about the Union. Rodriguez testified that in the middle of March on one occasion Ilanly told him that he had heard there was going to be a union meeting and asked Rodriguez if employees were being paid money for signing union cards. Rodriguez denied that anyone was being paid any money. Then Hanly told Rodriguez it was against company rules to solicit anything at any time on company property. Also, according to Rodriguez, in March, Whalen, one of the foremen, told him to report to Hanly's office When lie talked to Hanly, the latter questioned him about employee problems Rodriguez told him that the employees were dissatisfied with the insurance plan which the Company had and with the amount of wages they were paid. Hanly replied there was nothing he could do about the money, but that the Company was working on an improvement in the insurance plan. According to Rodriguez, at this time Hanly also told him that he knew how many cards the Union had gathered from the employees and that he (Hanly) knew that Rodriguez was one of the union organizers passing out union cards. Rodriguez also testified that during the month of March, Holzman, president of the Company, summoned Rodriguez into his office and talked to him about the profit-sharing arrangement of the Company and Rodriguez' retirement rights On this occasion, Holzman told Rodriguez that if the Union ever got in, Alex 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Deutsch, owner of the Company, would close down the plant. Rodriguez also stated that around April 1, Foreman Whalen asked him if he had signed a union card to which Rodriguez replied in the affirmative. Hanly, in the course of his testimony, stated that on an occasion during a lunchbreak in the month of March, he had walked over to Rodriguez and employee Matas and said to them, "Where is the union meeting?" They replied that there was no union meeting. Hanly then told them that he had been informed that they were getting $25 per union card that was signed, and asked if this was true. Matas replied that it was not true and if it were he would be able to retire at that time. Hanly testified that he had no intention of interrogating these employees in this conversation. He explained it was all said in a jesting, joking manner on both sides. Hanly testified that at this time he told the employees they could not solicit the signing of union authorization cards on company property, during working time. Hanly also testified that in mid-March he asked Rodriguez what the major gripes in the plant were. Rodriguez said that the employees were dissatisfied with many things but particularly with the insurance plan and with the wages. Hanly told him that the Company was in the process of reviewing the insurance plan but that he couldn't do anything about the money at that time. Hanly denied that he said that he knew Rodriguez was an organizer for the Union or had been passing out cards. Hanly also denied that he asked Rodriguez how many cards he had. Foreman Pat Whalen testified that Rodriguez worked in his department and that he talked to Rodriguez on many occasions in the course of the day. Whalen said that he didn't know anything about the Union's organizational activity or Rodriguez' part in any of it and that he never discussed the Union or authorization cards with Rodriguez at any time. Whalen also denied that he ever had any conversations with Matas in which Whalen brought up the subject of the Union. Whalen said that on one occasion he noticed that many of the machinists in his department were leaving their machines and gathering in little knots, talking. He told these men and Matas, who was the worst offender, to stay on their machines and he asked Matas why there was so much roaming around and talking. Matas said that a man had told him that he could go around and talk like that and he couldn't be fired for talking. Whalen asked Matas if this was supposed to be the rule, while he was supposed to be operating his machine and when the Company had some work for him to do. Matas said no, that he supposed under those circumstances he was supposed to be working. Whalen then told him to get working. Philip E. Holzman, president of the Company, testified that in approximately mid-March he was informed that Rodriguez wished to talk to him in his office about the profit-sharing arrangement of the Company and Rodriguez' retirement plans. He agreed to talk to Rodriguez. When the men met, Rodriguez said that he was thinking of leaving the Company and wanted to know how much he would receive under the plan as his separation pay. Holzman told Rodriguez that he had accumulated certain rights under the plan and pointed out to him that he would be best served under the plan by not leaving the Company until the month of August, when he would complete an additional stage in the plan and have a larger separation pay. Holzman explained that he thought that by August, Rodriguez might change his mind about leaving the Company. Holzman denied that in the course of this conversation there was any mention of the Union and Holzman denied that he ever said that Alex Deutsch would close the plant if the Union came in. Rodriguez was one of the leading adherents of the Union among the employees and he impressed the Trial Examiner as a witness prone to slant or stretch his testimony in favor of the Union. In my judgment his testimony can be accepted only after careful scrutiny. On reviewing all this testimony, I find that Hanly violated Section 8(a)(1) of the Act by his "jesting" conversation with Rodriguez. Hanly admitted this questioning, and although it might have been "jesting" to Hanly, it was apparently considered nonjocular by Rodriguez. I do not accept Hanly's explanation of the innocence of this conversation. It is also found that Hanly gave a mistakenly restrictive statement of the Company's nonsolicitation rule, when he told Rodriguez that no solicitation could be engaged in, on company property at any time. I do not credit Rodriguez' testimony that Hanly told Rodriguez that he knew Rodriguez was an organizer of employees, passed out cards and that Hanly knew how many cards the Union had obtained. On these points, I credit Hanly's testimony and reject that of Rodriguez. As to the Holzman-Rodriguez conversation in Holzman's office, I accept the testimony of Holzman. I also accept the testimony of Whalen and reject the testimony of Rodriguez. These findings are based entirely on the demeanor of the witnesses and the compatibility of the testimony of each with the totality of the evidence. D. The Supervisory Status of Block, Mancilla, and Saterbo, and Other Leadmen The General Counsel contends that these three employees are supervisors under the Act and that some of their conduct amounts to violations of Section 8(a)(1) of the Act. The Company contends that these men are leadmen, rank-and-file employees, and that the Company is not responsible for anything they may have said to fellow employees. There is not much conflict in the evidence concerning the duties of these three individuals. It is undisputed that there are approximately nine departments in the plant, each of which is headed by a foreman who has that title. The number of employees under each foreman varies from 12 to 30 employees. In each department there is one or more senior employees with the job classification of "leadman" whose primary job is to assist in training new and less skilled employees. When these leadmen are not engaged in training, they themselves perform the standard operations of the department and they spend the majority of their time in actual production work or in setting up machines or assisting others in the setting up of their machines. Only on occasions when the foreman is out of the department, do these men engage in directing other employees. It is undisputed that the only persons who can discipline employees, process grievances, or authorize changes in regular work hours are the foremen. On some occasions, the leadmen may refer matters concerning the competence or proficiency of employees to the foreman for the foreman 's decision . The foremen regularly attend meetings of management personnel but the leadmen do not. Foremen are paid at the highest rate of pay in the department and the leadmen are paid a rate midway between that of the foremen and the rank-and-file employees. Foremen usually work one hour into the THE DEUTSCH CO. second shift while leadmen work only one-half hour into the second shift. This is done to give some continuity to the work in process. In the course of his testimony, employee Matas testified that Saterbo had the power to hire, fire and otherwise affect other employees' tenure of employment, but this was directly contradicted by Hanly who stated that Saterbo had no such supervisory authority. Rodriguez testified that occasionally when Whalen was out of the department, Saterbo assigned work to the men and sometimes when Whalen was present Saterbo directed the men to various machines and shifted them about. Rodriguez said that occasionally he received a gate pass from Saterbo, if he wanted to leave the plant early. While it seems established that Saterho did in fact on occasion instruct employees as to which machine each was to work, it is equally clear that such "assignments " were made pursuant to a detailed written list which was supplied to Saterbo by Whalen, the foreman Saterbo himself, in his testimony, denied that he had authority to discipline the men and this seems to be supported by the testimony of Matas and Rodriquez, who said that Saterbo usually told Whalen, about what the employee had done meriting correction, and Whalen later might correct the employee. Saterbo testified that he did not know if and when an employee was given a raise In short, the principal duty of these men seems to be that they do work that is too difficult for the new or less skilled employees, and that they receive daily instructions as to the duties of themselves and the other men for the shift From these lists they assign work to the men and report employee deficiencies or incompetence or misconduct to the foreman Occasionally they are asked about the performance of employees and give their opinions of the men's competence, but their opinions, when asked may or may not be accepted by the foremen and higher management Upon all the evidence I find that the General Counsel has failed to prove by a preponderance of the evidence that these three employees, Block. Mantilla, and Saterbo, classified as "leadmen" by the Company and paid as such are supervisors as defined in the Act It appears that they exercise no supervisory authority to hire, fire or discipline, or to recommend such action, or to responsibly direct other employees. This finding extends to the other leadmen who voted by challenged ballot in the election of August 22. E The Filing of the Representation Petition and the Scheduled Election It is undisputed that on May 13, the Union filed a petition for certification of representative in Case 21-RC-10863. On July 25, the Board issued a Decision and Direction of Election which directed that an election by secret ballot be conducted by the Regional Office of the Board in a unit of employees described as follows. All production, maintenance , shipping, receiving, production control, and inspection employees and leadmen employed by the Employer at its 14800 South Figueroa Street. Los Angeles, California, plant: excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act Pursuant to the Decision and Direction of Election aforesaid, the Regional Director, Region 21 (Los Angeles, California) on July 25, conducted an election by secret ballot in the representation proceeding. The results of the election were as follows. Approximate number of eligible voters 273 Void ballots 3 Votes cast for petitioner (Union) 54 Votes cast against participating labor organization 167 Valid votes counted 221 Challenged votes 17 Valid votes counted plus challenged ballots 238 621 On August 29, the Union tiled timely objections to the election The Regional Director conducted the usual investigation as to the objections and on September 26, filed his report on objections with the Board. Thereafter, on November 5, the Board issued an order directing that the representation proceeding including the objections to conduct of the election be remanded to the Regional Director for consolidation with Case 21-CA-8064 in order that a resolution of the issues raised by the objections could be found by the Trial Examiner on the basis of sworn testimony in this proceeding. F. The Wage Increases Given to Employees on July 31, Effective August 5 It is undisputed that on July 31, the Company by a letter to each employee announced that to continue the Company's policy "to pay wages equal to or better than wages for like or similar work in our industry and area," that "effective August 5, there will he a general increase in wages for all of our hourly paid factory employees "' The letter did not specify the amount of the raise for each employee, but employees Matas, Zagala, and Vasquez testified that effective August 5, in accordance with the letter, they received an increase in wages from $2.70 to $2.92 per hour. They also testified. while there had been instances of' wages being raised in the past, there had been no prior instance when a wage increase was given generally to all employees at the same time Also all former raises had been limited to 10 cents per hour. The letter of July 31, over the signature of Philip E. Holzman, president of the Company, stated that the wage increase was given for the purpose of maintaining equality of wages with other companies in the aerospace industry. When Holzman was on the witness stand, he testified to the same effect, but when he was asked if he realized that at the time the raise was given. July 31, six days after the Decision and Direction of Election, he was aware of the pendency of the election, Holzman admitted that he was aware of that fact. The election was scheduled for August 22 G. The Company s Letter to Employees Concerning the Revocation of Authorization Cards Given by Employees to the Union It is likewise undisputed that on May 20, the Company sent to each of its employees the following letter. To Deutsch MCD Employees: The union organizers are still asking for cards and you may expect these organizers to step up the campaign and put pressure on you to sign cards Why is it that they are still trying to get cards? One of the reasons is that they are trying to get enough cards so that they can force you to recognize 'Emphasis supplied by Trial Examiner 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them without an election and thus prevent you from deciding your future in a secret election. Another reason is that they are not telling the truth in how many cards they really have and if they don't have enough, even the National Labor Relations Board will tell them to forget it. Remember, you have the right to be free of fear, coercion or threat and our company will always protect these rights. If anyone threatens or intimidates you, either at work or at your home, in any way, please report it to me or Pete Hanly and we will take the necessary action to protect your freedom. For those of you who have signed a union authorization card because you either 1. were misinformed of your right not to sign a card if you so desired, or 2. were coerced and forced to sign a card, or 3. were intimidated or threatened with violence or loss of your job if the union got in, or 4. were told to sign a card to be a "right guy" or 5. believe someone else signed your name to a card, you can withdraw your authorization to the union by signing the enclosed de-authorization card and mailing it to the National Labor Relations Board. This card is being sent to you at your home so you can make your decision without fear, coercion, threat or promise of any kind. Discuss it with your family. In my opinion the relationship as it presently exists at Deutsch is much better than the promises being made by these union organizers which everyone knows will not be kept. To those of you who support my position and continue to do so, and have not signed; a card - many thanks. Yours very truly, /s/ Philip E. Holzman Philip E. Holzman President Attached to this letter was a card which reads as follows: Re: Deutsch Metal Components Division I hereby revoke my card authorizing the Shipbuilders Union to represent me. Employees Name Date The card which the employee could fill out, if he so desired, was addressed to the National Labor Relations Board, Regional Office, Los Angeles, California. Peter D. Hanly, personnel director of the Company, testified that for some weeks prior to May 20, he had received reports from employees that union adherents and organizers were coercing them into signing union authorization cards and in some cases threatening them with reprisals when the employees signified that they did not desire to join the Union. When he heard of these pressure tactics, Hanly conferred with the labor relations consultant for the Company who advised him that, if the employees were in fact being coerced, that he could send them a card allowing them to rescind their authorization cards by notifying the Regional Office in this manner. At that point the Trial Examiner ruled that he would not permit counsel for the Company to have Hanly testify to "reports" of incidents of so-called coercion, unless the employees allegedly coerced testified first-hand to each incident. In support of Hanly's assertion of coercion, the Respondent offered the testimony of various employees. One of these employees was Palacios, whose testimony has previously been recounted. Palacios had told Hanly that Vasquez had challenged him because he would not sign the union card Employee Aldo Montoto testified that Charles West, an officer of the Union, came to his home one evening in the middle of March after dark. Montoto said he lives with his mother, his sister and his grandmother Montoto said that on this occasion West tried to persuade him to sign a card, but he refused to sign, principally because of the fact that at his request the Company had given his mother a job at a time when she needed one badly. On the following day, another employee by the name of Raoul Sans asked him when he was going to sign a card and said that eventually he would have to sign one, so he might as well do it then. Sans also said that if he didn't sign up then, that when the Union came in the plant Montoto wouldn't have a job. Counsel for the Company offered to prove by Armando DeCastro, who runs a janitorial service, that some of his employees were mistaken for employees of the Company by union adherents and organizers and that one of them, Carlos Badilla by name, was harassed by some union adherents. This incident was reported to Hanly Employee Rudy Resch told Hanly that on one occasion he had been approached by employee Diaz and another employee as he drove into the parking lot of the plant. Resch said that he was asked to sign a union authorization card and when he said, "no," he was told that he had better sign it. When he refused to sign on a second request, he was told by one of the men that, "He had better not show up for work " Hanly testified that as a result of having been informed of these incidents by these employees that he decided that the Company should send out the letter of May 20 with the form to rescind authorization cards so that any employee so coerced or harassed could disclaim his authorization card. At the resumed hearing on December 3, the attention of all parties was principally concerned with the objections to the conduct of election with main interest focused on the pay raise given unilaterally by the Company effective August 5. At the hearing, President Philip E. Holzman and Personnel Director Peter D. Hanly again testified. Counsel for the Company proffered in evidence through Holzman many pages of Los Angeles newspapers for late July and early August which had many articles about the labor negotiations between employees and management in the aerospace industry in the Los Angeles area. Counsel for the Company contended that these newspaper articles were read by Holzman and influenced him to make the decision to grant the pay raise. Counsel for the General Counsel objected that these newspaper pages were irrelevant to the issue. The Trial Examiner ruled that the newspaper articles were inadmissible, because they seemed to be too remote to the issue, and added nothing to Holzman's previous testimony that he was conversant with all the current negotiations in the aerospace industry and the general economic situation prevailing at the time, and that these influenced him to give the raise effective August 5 These newspaper exhibits were ordered by the Trial Examiner to be placed in a file of rejected exhibits. (Resp. Exh. 6 for identification - rejected.) In the course of his testimony when recalled, Holzman testified that the wage increase at "the low end of the unskilled was 15 cents; the maximum of 35 cents an hour THE DEUTSCH CO. 623 at the higher end of the highly skilled people " Holzman said that he had discussed this decision with other management officials for a long time and that he was aware of all the raises being granted through the various industries in the East "'against the Government's guidelines ." He pictured the Company as concerned that negotiations were going forward in the aerospace industry and he determined that "in order to maintain a competitive position because we were losing people and we were having difficulty getting skilled people" that they would have to be careful to maintain a competitive position as against the other companies in the aerospace industry At the time the raise was granted there was talk of strikes at Lockheed and McDonald-Douglas. On direct examination he was asked , "'Did the fact that the union had an organizing drive, that there was an election to take place on August 22. affect or determine your decision with regard to the wage increase?" Holzman answered as follows: A. No, it did not. A long time ago and at that time I had already determined, as I said before, Mr. Cooper, that we were going to run this company, because it was a company that had to be run, irrespective of any outside activities that occurred. We had to run the company on an economic competitive basis with others, and that is the basis on which I made my decision. Q Was the wage increase given in order to encourage the employees to vote against the union shop? A It was not. Thereafter the Trial Examiner asked the following questions of Holzman: Q. You were aware when the union started organizing, were you not? A. Yes. Q. And you have a Personnel Director at the company, Mr. Hanly, don't you? A That's right. Q And he advises you on labor matters, does he't A. Yes. Q. And did you discuss with him or anybody else the advisability of giving a raise in pay during the pendency of this union campaign, and when an election was coming up in a couple of weeks? Did you discuss that with him or anybody'' A. Not in those specific terms, no, sir. I had agreed a long time with myself and with my conscience that I was to run this company on the basis of what I thought was best for the company, and I wasn't going to he concerned about whether or not this was considered the right thing to do because there was a union knocking at our gate or not I am certain I was aware of the fact that the union was knocking at our gate. I knew that at the time I gave the raise that there was going to be an election. That didn't have any effect upon my decision. I ran the company the way I thought it should be run, and that is what I did. Q. Let me ask you this: Did you discuss the situation with Mr. Hanly about that? A. I don't know whether I did in specilic terms or not. He is present at most of my conversations where we talk about wages, so I would assume that the subject was discussed on that basis and I am sure that what I say to you now is what I said to him. I cannot operate on the theory that we are going to win or lose an election when we are concerned about the economic facts. going ahead, and running a business. making a profit. Peter D. Hanly also testified at the resumed hearing. His testimony on labor relations at the company and granting of the pay raise is enlightening . Hanly testified as follows. Q. (By Trial Examiner) Now, as I understand it, you and Mr . Holzman worked together on getting out this letter of May 20 with a card attached? A. Uh-huh. Q. Now, on this letter of April I, with Mr. Holzman 's signature , did you talk to him about that, too? A. Mr. Holzman generally wrote the letters himself and gave them to me for any recommendations or changes that might be made in the letter, but that was the extent of it. Q. Now, as Personnel Director. are you also m charge of labor relations for the company? A. Normally, it might be so. Mr. Holzman has had that position ever since he has been with the Deutsch Company, which is some 30 years, and I am more a second man in the labor relations field to Mr Holzman Q. So, in other words, he kind of runs the labor relations'? A That' s right, sir. Q. But you are also engaged in that to some extent? A. That is correct Q. You were the individual who kept track of all the union organizing campaign , did you not9 A. That's right. Q. Did you keep track of the literature they distributed? A. Yes, I did Q. Did you get copies of that9 A. Yes, I did Q. Did you discuss that with Mr. Holzman'? A. Yes, I did. Q. And then you discussed with him the letters that the company was going to send out? A. Yes, we did. Q Now, when it got around to this raise in pay. did you discuss that with Mr. Holzman? A. I was in on the discussions that took place regarding the raise. Q Was anything said about that raise in pay being given at the time that an election was pending amongst the employees? A. We hadtalked about the possibility that there might have to he a raise. This was sometime earlier in the year But we didn't know what was going to happen But as the union organization drive was going along. Mr. Holzman took the position and stated this position to myself to the plant superintendent and the general manager that he was going to run the company as he always had and that he was not going to let the outside activities interfere with his normal direction of activities Q. Was there anyone there who counseled him and suggested at any time that he not give the raise in pay for a couple of more weeks, until the election was held among the employees? A. I don't remember anybody counseling him on that, no. Q. Was there any mention that it might be advisable to postpone the granting of the increase until after the election was held? 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. There was a mention that the timing was not exactly good, but Mr. Holzman referred us back to his original statement that outside activities are not going to interfere with our work situation. The above narration of testimony is not an exhaustive exposition of all the testimony offered by the parties but is a summary of the highlights which presents the main contentions of the parties and affords a basis for review of the Trial Examiner's findings on the issues. Concluding Findings It has been found above that in certain particulars the Company violated Section 8(a)(1) of the Act by certain statements made by its supervisors. It has also been found that some of the allegations of the complaint were not proved by a preponderance of'the evidence by the General Counsel and those allegations have been dismissed. The remaining issues are principally concerned with (1) the letter of May 20 with its attachment of a form whereby the employees could rescind their authorization card and (2) the letter of July 31 announcing a general pay increase effective August 5 during the pendency of the election. As to the letter of May 20 with its rescission form, the Trial Examiner was impressed in the first instance by counsel for the Company's claim that the Union had practiced harassment and coercion against the employees in the procuring of authorization cards and in consequence the letter of May 20, with the rescission form, was a lawful method of protecting the employees in their freedom of choice in the election. Over the objection of the General Counsel, the Trial Examiner permitted counsel for the Company to present the testimony of employees who claimed to be the victims of such coercion or harassment, thinking that such coercion or harassment might justify this unusual letter with form attached. The Company presented the employees who testified to the so-called coercion and harassment. Most of the testimony as to these incidents has been included in the narration of testimony above. The Trial Examiner must conclude that these incidents had no quality of coercion or intimidation and were of a most trivial nature. It would be hard to imagine an election in which there were nearly 300 participating employees, where there occurred less coercion and harassment than in this election. The worst incident of the so-called coercion occurred when two union adherents said to one employee "you had better sign up now, or not go to work." In another single incident a union adherent told an employee that if he didn't sign an authorization card, he might not have a job after the Union won. While such statements should not be made by one employee to another, it must be remembered that these workmen are not lawyers skilled in the niceties of labor law and in their enthusiasm, either for or against the union, employees will make such statements, and if isolated must be considered as unwanted incidents of the elective process. In this case, some of the alleged coercive quality of certain statements appears to have been in the mind of the listener, rather than in the words of the speaker. Here, no one was struck a blow, threatened with a blow or physical violence or threatened with serious reprisal for not signing a card. And indeed, any statement which borders upon coercion must be viewed as an isolated statement by one individual to another. In all the evidence there is not a scintilla of evidence that the Union initiated any pattern or course or plan of conduct to intimidate the employees. Upon a consideration of all the evidence, I find that the Company assembled this trivia as an afterthought and now uses it as a pretext or excuse for sending its letter of May 20. Patently that letter was intended to create a false impression about coercion of employees which would prejudice the Union's chances in the pending election. The evidence discloses no justification for this action of the Company. The very able counsel for the Company presents a case plausible on the surface for the increase of pay given to the employees, effective August 5. Holzman's testimony is to the effect that he wanted to remain competitive in paying wages with the other companies in the aerospace industry. I do not reject that statement, but I regard it as a half truth. From the testimony of Holzman and Hanly, it is perfectly apparent, that they were aware of what the granting of a pay increase would do to the fairness of the election conducted by the Board on August 22. Holzman's pious testimony that he sought only to adhere to his policy of equal wages does not ring true, for it is crystal clear that he and Hanly were fully aware that granting a substantial pay increase prior to the election would torpedo the union election campaign. It is not coincidence in my judgment that Holzman's decision to have equal pay, after months of study of wages in the industry, coincided with the Board's direction of an election among the employees. In my judgment, the secret of Holzman's decision is disclosed in his testimony when he said, "I had agreed a long time ago with myself and with my conscience that I was to run this company on the basis of what I thought was best for the company, and I wasn't going to be concerned about whether or not this was considered the right thing to do because there was a union knocking at our gate or not . . . ." Translated into everyday language, this statement means that he was not concerned with whether this was the "right thing" to do, with due regard given to the duties of employers and the rights of employees under the Act. I find that the letters of May 20 and July 31 and the general wage increase effective August 5 constituted conduct in violation of Section 8(a)(1) of the Act and constitute valid objections to the conduct of election which rendered a fair election impossible. It is recommended, therefore, that the Board by appropriate order shall set aside the results of election in Case 21-RC-10863. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and constitute unfair labor practices which tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the above findings of fact and upon the entire record in the case, the Trial Examiner makes the THE DEUTSCH CO. 625 follow ing: CONCLUSIONS OF LAW 1. The Deutsch Company, Metal Components Division, herein called the Company or the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union affiliation and activity and that of their fellow employees, by soliciting employees to revoke their union authorization cards; by invoking an invalid no-solicitation rule; by granting an invalid wage increase to influence their employees against assisting or joining or voting for the Union, the Company has violated Section 8(a)(1) of the Act. 4. By committing the unfair labor practices found above and by interfering in the election on August 22. 1968, in the manner described above, the Company has unlawfully interfered with the conduct of said election in Case 21-RC-10863. 5. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, it is recommended that The Deutsch Company, Metal Components Division, its officers, agents, successors, and assigns. shall: 1 Cease and desist from- (a) Interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act by interrogating employees concerning their and their fellow employees' union activates; soliciting employees to revoke their authorization cards; invoking an invalid no-solicitation rule; granting an invalid wage increase to influence employees against assisting, joining or voting for the Union. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization. to form labor organizations, to loin or assist the Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant at Los Angeles, California, copies of the attached notice marked "Appendix."5 Copies of said notice to be furnished by the Regional Director for Region 21 shall, after being duly signed by the Company Representative, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive da)s thereafter, in conspicuous places, including all places where notices to employees are customarily posted. The Company shall take reasonable steps that such notices are not altered, defaced, or covered by any other material. 'in the event that this Recommended Order is adopted by the Board, the (b) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision, what steps the Company has taken to comply herewith.' IT IS FLRTIIER RECOMMENDED that, unless the Company shall within 20 days from the date of receipt of this Trial Examiner's Decision notify said Regional Director, in writing, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Company to Lake the action aforesaid. words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order' shall be substituted for the words "a Decision and Order " 'in the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, to writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of The National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that We WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights tinder Section 7 of the Act by (1) interrogating employees concerning their own or their fellow employees union activities and affiliation; (2) soliciting employees to revoke their union authorizations given to Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO; (3) invoking an invalid no-solicitation rule: (4) granting an invalid wage increase to influence employees not to assist, join, or vote for the above-named Union WE WILLNOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join, assist the labor organization named above, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and to retrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, or any other labor organization. Dated By THE DEUTSCH COMPANY, MErAL COMPONENTS DIVISION (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or compliance with its provisions, they may communicate Columbia Building, 849 South Broadway, Los Angeles, directly with the Board's Regional Office, Eastern California 90014, Telephone 688-5229.