Audiovox West Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Audiovox West Corporation and Miscellaneous Ware- housemen, Drivers and Helpers, Local 986, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 21- CA-15267, 21-CA-15356, and 21-RC-14800 January 25, 1978 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 22, 1977, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, the Petitioner filed ex- ceptions and a supporting brief, and the Respondent filed a 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Audiovox West Corporation, Los Angeles, California, its officers, successors, agents, and assigns, shall take the action set forth in the said recommended Order. [Direction of Second Election and Excelsior foot- note omitted from publication.] DECISION STATEMENT OF THE CASE Introduction HAROLD A. KENNEDY, Administrative Law Judge: This consolidated proceeding was heard on April 26-28 and May 17-18, 1977, in Los Angeles, California. The Respondent is a California corporation engaged in the wholesaleing and distribution of automotive sound equipment (i.e., car stereo sets). It has a plant and warehouse facility at Cerritos, California. The pleadings establish that the Respondent sells and ships goods outside I The original charge alleges that the Respondent had violated Sec. 8(aXI), (3), and (5) by (a) unilaterally changing terms and conditions of employment of employees after the election in Case 21-RC-14800 and (b) 234 NLRB No. 59 of the State of California in excess of $50,000 and that it is an "employer" engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended. The Union, Miscellaneous Warehousemen, Drivers and Helpers, Local 986, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization as defined in Section 2(5) of the Act. The Union, on August 23, 1976, filed a petition with the National Labor Relations Board seeking certification as collective-bargaining representative of the Respondent's production and maintenance employees. An election was thereafter held on November 22, 1976, pursuant to direc- tion of the Regional Director of the Board's Region 21. There were twenty employees that voted for the Union, 9 against, and 5 votes were challenged. The Respondent filed objections to the election on the day of the election on two grounds: (1) The Union had disseminated fraudulent propaganda "at an improper time" and (2) the Union had used threats of violence and force in a manner that interfered with employees' free choice. The Regional Office indicated initially that a hearing would be held on the employer's objections but later reversed its position. On February 10, 1977, the Regional Director issued a decision overruling the Respondent's objections and certifying the Union as the collective-bargaining representative of the Respondent's production and maintenance employees. On March 24, 1977, the Board, by telegraphic order, granted the Respondent's "request for review with respect to Employer's Objection 2." Such order, which states that "Objection 2 raises substantial issues," remanded the matter "for hearing on such issues and consolidation with the pending cases 21-CA-15356 and 21-CA-15267." Certi- fication of the Union as the collective-bargaining represen- tative was stayed "pending final disposition of this matter." Case 21-CA-15267 is based on a charge originally filed by the Union on November 29, 1976, and amended on January 7, 1977. The charge, as amended, alleges that the Respondent violated Section 8(aXl1) by interfering with the Section 7 rights of its employees.' Case 21-CA-15356 is based on a charge of the Union filed on January 5, 1977, alleging that the Respondent violated Section 8(aX)(I) and (3) by discharging "Edwardo Cruz because of his union activities on behalf of the charging party." Principals There was testimony from and about a number of the Respondent's officials and employees. Some identifying information concerning certain ones will assist the reader to understand this rather complex proceeding, which was further complicated by the fact that many communicated only in a foreign language (Spanish or Mandarin Chinese). Also, some employees were known under different names. The following persons, all of whom testified, were frequent- ly referred to during the hearing. 1. James W. Wohlberg, general manager of Audiovox West Corporation (Audiovox). by terminating after the election three employees, viz, Felipe (Phillip) E. Gonzalez, Ruben Montoya, and Hilario Macias. 428 AUDIOVOX WEST CORPORATION 2. David Etheridge, Audiovox production manager and supervisor. 3. James Gonzalez Palos, Audiovox warehouse manag- er, who socialized with and supervised many of the Spanish-speaking Audiovox employees. 4. Edwardo Cruz, usually referred to as Eddie Cruz, an alleged discriminatee who was employed in the Respon- dent's "warranty clean-up" department from March 1976, until he was discharged by the Company on January 4, 1977. (His discharge was delayed because of the General Counsel's investigation.) Cruz led the Union's drive to organize the Respondent's employees. He distributed literature and spoke to employees about joining the Union before the election was held on November 22, 1976. Cruz almost always wore dark, "one-way" glasses and carried a knife. He wore a case for the knife on his belt but frequently "played" with the knife by opening and closing it or by throwing it into a box or to the ground. He made threats upon fellow employees Hector Garcia, Ruben Montoya, and at least two Chinese workers. 5. Margarita Cruz was the sister of Eddie Cruz who gave some help to her brother in his organizing activities. She was employed by the Respondent as a warehouse secretary under Jose Palos from November 1975 until January 5, 1977, when she quit voluntarily. 6. Hector Garcia, also known as Carlos Briones, an Audiovox employee who witnessed Eddie Cruz threaten Ruben Montoya and was then threatened himself by Cruz for being "two-faced." Garcia reported Cruz' threats to others, including his supervisor, and gave a statement to Palos and Wohlberg. 7. Hector Martinez, an Audiovox employee who had been a shipping clerk and a union member before being promoted to a supervisory status in September 1976. He was present during the "parking lot incident" and was the object of obscene insults. 8. Renaldo Mejorado an Audiovox supervisor (assis- tant warehouse manager) who came to the aid of Martinez during the parking lot incident and then became the object of insults and aggression himself. 9. Ruben Montoya was employed in the Respondent's shipping department from April until November 1976. He testified that he was told he was fired "because I tried to steal two radios." Montoya lived with Eddie Cruz, along with Gerardo Cervantes, for about a month in the fall of 1976. He sought a loan from the Company to attend his father's funeral, which gave rise to his being called "two- faced" and a threat by Eddie Cruz. Montoya denied knowing of any threat or being the object of the name calling. 10. Hilario Macias was a first cousin of Jose Palos and an Audiovox employee until he was fired on November 23, 1976. He was a principal involved in the parking lot fracas, along with Felipe Gonzalez. He was initially listed as an 8(a)(3) discriminatee, along with Ruben Montoya, in the original charge in Case 21-CA-15267. The General Coun- sel did not proceed on their behalf, and the charge was revised so as to delete such discrimination charges. 2 A charge was filed with the General Counsel in connection with Gonzalez' termination, but its legality is not involved in this proceeding. II11. Felipe (Phillip) Gonzalez was a brother-in-law of Jose Palos and employed by the Respondent from August 20, 1975, until he was terminated on November 23, 1976, after the parking lot fracas for being "disrespectful to two supervisors." He and Hilario Macias were particularly active in the parking lot incident.2 12. Gerardo Cervantes, also known as Tony Cervantes, an Audiovox employee for approximately 1-1/2 years. He lived with Ruben Montoya and Eddie Cruz for 4 months in the fall of 1976. He and Cruz gave Montoya the silent treatment for about 2 weeks for being "a company man," but both Montoya and Cruz denied it. 13. Arturo Leija Gomez, employed by the Respondent from July 1975 until February 16, 1976, when he quit voluntarily. He spoke to Garcia about a threat of Cruz upon Garcia but denied on the stand that he knew about it. 14. Elias Navarro, an Audiovox employee who was present when Garcia, "nervous" and "angry," told Gomez of Cruz' threat; also present when Cruz and Montoya made threats against Palos. 15. Edgar Villa, an Audiovox employee and union supporter of whom at least some of the Chinese workers were afraid. He testified credibly how Cruz played with his knife and of Cruz' menacing gestures and threats to the Chinese workers. 16. Marno Tavarez, employed as a truckdriver by the Respondent since September 1976. He attended the bowl- ing alley meeting and then made inquiry of the Company about the accuracy of information circulated. He also observed Eddie Cruz "play" with his knife while talking to Chinese workers on election day. 17. Luis Vojorquez, an Audiovox employee who wit- nessed the parking lot fracas and the union bowling alley meeting; testified how Cruz "played" with his knife and spoke to the Chinese workers. 18. Joseph Chi-Chiung Chiu, an Audiovox technician who voted in the election. He testified credibly of being threatened by Cruz ("with a fierce look," always wearing dark glasses, with a knife, and hitting the palm of his hand with his fist) several times before the election. Chiu told his wife of Cruz' threat. He also indicated that another employee, Edgar Villa, had pressured him to vote for the Union. 19. Shu-Li Chiu, wife of Joseph Chiu and an Audiovox employee at the time of the election. She testified credibly that she and her husband "were quite frightened" of Eddie Cruz, that he threw an open knife on her work table and told her to "vote union." 20. Shirley S. Fong, an Audiovox bookkeeper (not eligible to vote) who testified that Chinese workers were frightened as a result of threats and being told to "vote union" by Eddie Cruz and Villa. Her testimony was based primarily on conversations with Mrs. Chiu's brother, Hsiao Ling Ho, and his wife, Shih Nan Ho, and Mr. and Mrs. Chiu. 429 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Significant Preelection Incidents The following events occurred during the week or so before the election held on Monday, November 22, 1976: A. The bowling alley meeting: On Tuesday, November 16, approximately a week before the election, the Union held a meeting at the Pioneer Bowling Alley which was attended by a number of the Respondent's employees. 3 Three union officials were present. One of the officials who spoke in English and then Spanish began his speech by saying: "Unfortunately, in the beginning ... there were a few deaths but. . . that the union had gotten stronger." He went on to refer to himself as a "mean son-of-a-bitch" and indicated that he would try to get everything he could for the employees. The official, Rudy Heredia, was present during a part of the hearing but was not called as a witness. One employee, Marno Tavarez, testified that he was "frightened" and that the employees "just kind of sat there." Another employee, Edgar Villa, observed that he "opted to remain quiet." Copies of certain Audiovox documents were distributed at the bowling alley meeting. One of the documents circulated contained a schedule listing the names of Audiovox salesmen. The schedule appeared under an Audiovox letterhead and purported to give the amount of commissions each salesman had earned.4 The question of whether Audiovox plants in other cities, including New York, were unionized was raised and discussed at the bowling alley meeting. B. The Wohlberg speech: On Thursday, November 18, General Manager Wohlberg called a meeting of the unit employees together to contradict statements reportedly circulated and made at the bowling alley meeting. Mr. Wohlberg denied specifically that one of the Respondent's salesmen had received $134,000, contrary to what had been reportedly stated at the bowling alley meeting. Shortly after Wohlberg's speech, David Etheridge asked Eddie Cruz if he had any questions. Cruz said he did not. C. The parking lot incident: On Friday, November 19, 1976, 10 or 12 of the Respondent's employees gathered after work to drink beer on the company parking lot. The beer was furnished by the Respondent. Several employees were identified as being present: Eddie Cruz, Hilario Macias, Felipe Gonzalez, Arturo Leija Gomez, Tony Gerardo Cervantes, Miguel Ibarra, Ruben Montoya, Rafa- el Pasqual, and Luis Vojorquez. Supervisors Hector Marti- nez and Renaldo Mejorado were also present. There came a time when employees in the group encircled Martinez, who had been a union member but only recently promoted to a supervisory position. Some of the employees began to shout insulting and obscene names at Martinez, making 3 Employee Villa testified that there were 21 employees at the bowling alley meeting. 4 The schedule had been offered into evidence in a separate Board hearing. Employee Marno Tavarez presented one of the Audiovox docu- ments circulated at the bowling alley meeting to his supervisor, Jose Palos, and asked whether the information circulated was true or not. Palos turned the document over to Wohlberg. & The record also shows that Macias and Ruben Montoya had com- plained that Martinez had not distributed work fairly. Montoya had expressed a desire earlier on November 19 to meet and fight Martinez. Martinez testified, however, that he treated all employees alike. 6 Gonzalez and Macias were discharged by the Respondent after the karking lot incident. As has been previously noted, charges were filed on behalf of both employees against the Respondent but were later withdrawn. reference to him as being "two-faced." Another supervisor, Renaldo Mejorado, then entered the circle of employees to stand with Martinez. Macias, who had been involved in the name-calling, urged Gonzalez to hit Mejorado. Obscenities were then directed against Mejorado. Mejorado responded in kind to the insults, and soon it became necessary to restrain Macias and Gonzalez as well as Mejorado. Macias and Gonzalez were charging Mejorado, who was "just going to defend himself." Tempers cooled somewhat, and Macias went to his car. Gonzalez and Cervantes joined him, and Mejorado followed to inquire why he had been attacked. It was explained to Mejorado that Macias' complaint was really against Martinez because he had turned against the Union in favor of the Company.5 Mejorado was told, however, that he should not be "butting in." In the meantime Gonzalez had gone to his pickup truck and picked up a beer bottle. Holding the bottle by the neck, he slipped up behind Mejorado. Mejorado saw Gonzalez with the bottle, however, and turned to face him. There was a standoff. Eventually the fracas ended, and the employees left, the two supervisors leaving last. Martinez, undoubtedly aware that he was the main object of the confrontation, was afraid and spent that night and the following one away from his apartment.6 D. Other threats of violence: (1) Against the Chinese: Eddie Cruz came up to Audiovox technician Joseph Chi- Chiung Chiu, who speaks Mandarin Chinese but virtually no English, several times before the election and told Chiu to "vote union, vote union." Cruz, who does not speak Chinese, was able to make it clear to Chiu nevertheless that he must help "elect the labor union's representatives" or he would be out of a job. According to Chiu, Eddie Cruz came very close to him "and manifested his fist"' with a "fierce look on his face." 7 Mr. Chiu said this frightened him, adding that the fact that he "carried a knife with him, of course, augmented my fear." 8 Joseph Chiu informed his wife, Shu-Li Chiu, about being "told to vote union in a threatening manner." Mrs. Chiu, who worked in the Audiovox repair section, became "quite frightened" and "very fearful" of Eddie Cruz, especially after he threw an open knife on her work table. It was a brief moment, she said. Cruz told her to "vote union, vote union," and "then he picked up the knife from the table and he left." Mrs. Chiu, who, like her husband, does not speak English, later told her younger brother, Hsiao Ling I The appearance of Eddie Cruz, who almost always had a knife and wore dark, one-way glasses, has been previously noted. The record indicates Cruz would frequently pound his right fist into the palm of his left hand. Another gesture he used was to draw his right hand across his throat. Joseph Chiu said he took the letter to mean not "that he would kill me ... but ... that I would be without ajob." 8 Edgar Villa, a union supporter called to testify for the Respondent, said he saw Cruz talk to and use threatening gestures to Chinese workers. There was testimony that the Chinese workers were also afraid of Villa, referring to him as "Lao-Chien-Pao," meaning a wicked person. Chiu testified that Villa also threatened him to vote for the Union. 430 AUDIOVOX WEST CORPORATION Ho and his wife, Shih Nan Ho, who also worked at Audiovox,9 about their fear and learned that they, too, had received "similar threats." 10 On the day of the election, November 22, Eddie Cruz stood in line to vote "talking to the Chinese" and "pounding the side of his leg with his knife." (2) Against Garcia (and Montoya): On Friday, November 26, 1976, the day after Thanksgiving and 4 days after the election, Hector Garcia reported that he was "still afraid" and that "I've got to tell somebody." Garcia explained that he had voted for the Union because he had been told 4 days before the election by Eddie Cruz, in the presence of Gonzalez and Cervantes, that "if I didn't vote for the union I was going to get a knife in my belly." According to Palos, "during that time ... it seemed to me like everybody was scared." That same Friday evening, Palos went to Garcia's home, accompanied by Audiovox Manager Wohlberg and his secretary, Sherry Hellman, and obtained a notarized statement (in Spanish) from Garcia concerning threats made by Cruz on Garcia as well as on Ruben Montoya." Garcia testified himself about the threats Cruz had made on him and Montoya. Cruz' threat on Montoya came first. Garcia testified that Cruz had learned that Montoya had sought money from the Company through his supervisor, Jose Palos.x2 Garcia testified as follows about an encounter he observed between Cruz and Montoya: Eddie told him that he was a two-faced; that he had seen him talking on several occasions with Jose and that if he affirmed this that he was going to knife him. And Montoya just moved his head. He turned and left. Cruz made a similar threat the next day against Garcia, with whom he had once been friendly. Cruz first called Garcia a "hypocrite." Cruz continued, according to Gar- cia, as follows: He then told me I was a two-faced; told me I was taking information to the company, and he told me that he had already told Montoya that the same thing that had happened to him was going to happen to me; that he was going to knife me .... Garcia was angered at first but then said he "got scared" as "I have two children and a wife." Garcia related the threats and his fear to coworkers Arturo Leija Gomez and Elia Navarro and then to Supervisor Palos.'3 9 At the time of the hearing Mrs. Ho was no longer working for the Respondent. 10 The Hos, who did not testify, were apparently more concerned about threats of Edgar Villa. Mrs. Shirley Fong, a bookkeeper for the Respondent, testified that she learned of the threats to the Chius from the Hos. Mrs. Fong said Joseph Chiu told her in December 1976, when she contacted him, that "I was really unwilling to tell you about all this because I have a child and a family and I was afraid." Li Montoya, an unreliable witness, testified that he did not know of any threats by Cruz. Gonzalez also testified unconvincingly that he did not know of Cruz' threats. 12 Montoya had asked for a loan of $300 because his father, who had lived in South America, had died. Palos spoke to Wohlberg about the loan, but Wohlberg refused the loan on the basis "it might be considered an unfair labor practice to do something for one particular employee and not for others." 13 Gomez testified, in an unbelievable manner, that he was unaware of any threats by Cruz. Garcia's fear continued well after the election. Fellow employees indicated to him that they thought he had voted against the Union, possibly because he was "in charge of taking the mail to the office." He moved his family from his home temporarily and advised his wife "during those days not to open the door to anyone." He testified that the windows in the building "below and above my home were shot at" during this period, although he had "no proof" as to who was responsible for it. Discussion A. Objection to the Election Under decisions of the Board, the election held on November 22, 1976, must be set aside if there existed at that time "a general atmosphere of. . . confusion and fear of reprisal" for failing to vote for or against the Union. Steak House Meat Company, Inc., 206 NLRB 28 (1973).'4 The burden is on the party who seeks to overturn the election. Also, the objectionable acts are to be viewed "cumulatively" and not "standing alone." Home Town Foods, Inc. d/b/a Foremost Dairies of the South v. N.LR B., 379 F.2d 241, 243 (C.A. 5, 1967). Further, it is not necessary to attribute the objectionable acts to any party, and the results of the election are not controlling. Central Photocolor Company, Incorporated, 195 NLRB 839 (1972); Diamond State Poultry Co., Inc., 107 NLRB 3 (1953). It is sufficient if the threats are directed at only one employee. Steak House Meat Co., supra. It is clear in the case at bar that the election was held in something less than "the laboratory conditions" specified by the Board. Sonoco of Puerto Rico, Inc., 210 NLRB 493 (1974); Home Town Foods, Inc., supra. The "unfortunate ... few deaths" reference, if this had been the only incident, would probably not have any significance. But there were other incidents. When they are considered together, the conclusion is inescapable that an atmosphere of fear and reprisal did exist, and that it interfered with "a free and untrammeled choice of representatives." Poinsett Lumber and Manufacturing Company, 116 NLRB 1732 (1956). There was the Friday afternoon fracas on the company parking lot just before the election. The message was clear that day; an employee known to be against the Union was subject to physical attack or a threat of one. Having a supervisory's status afforded no protection, especially if he had once been a union member. But the aggravated conduct of Eddie Cruz, more than anything, 14 Quoting the Court in Electronic Conyponents Corporation of North Carolina v. N.L R.B., 546 F.2d 1088 (C.A. 4, 1976): The Board's test for whether an atmosphere of fear and coercion exists is whether: the election was held in a general atmosphere of confusion, violence, and threats of violence, such as might reasonably be expected to generate anxiety and fear of reprisal, to render impossible a rational uncoerced expression of choice as to bargaining representation. It is not material that fear and disorder may have been created by individual employees or non-employees and that their conduct cannot probatively be attributed either to the Employer or to the Union. The significant fact is that such conditions existed and that a free election was thereby rendered impossible." AI Long, Inc., 173 NLRB 447, 448 (1968). 431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operated to create an atmosphere of fear and coercion. His threats alone, which were known to many working in the Audiovox plant, were sufficient to invalidate the election. Garcia, a credible witness, was afraid not to vote for the Union. Both Joseph Chiu and his wife, Shu-Li Chiu, were clearly intimidated by Cruz, who had used his knife and menacing gestures in urging them to "vote union." The Chius were also fearful of Villa as apparently were Mr. and Mrs. Ho.'5 B. The Alleged Unfair Labor Practices 1. The discharge of Eddie Cruz Audiovox Manager Wohlberg, whose testimony was persuasive and therefore fully credited, testified that he discharged Cruz "for making threats of physical harm to Chinese and Mexican employees." The evidence of record establishes that Cruz did intimidate his coworkers, and this was the reason for his discharge. There is no probative evidence that he was terminated because of union or other concerted activity protected by the Act. Therefore, para- graph 7 of the General Counsel's consolidated and amend- ed complaint will be dismissed. Contrary to the argument of the General Counsel, N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964), involving the discharge of two employees in the mistaken belief that they had threatened to dynamite the employer's property in connection with the solicitation of union memberships, has no application to the instant matter. The Court in that case held, in effect, that an employer would be in violation of the Act if he were to discharge an employee "for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred." In the case at bar, the discharged employee was in fact engaged in serious misconduct, in no way protected by the Act (Gulf Container Corporation, 161 NLRB 734 (1966)), and this was the sole reason for his discharge. The General Counsel attacks the credibility of Garcia, who testified about Cruz' threats upon him. The evidence, however, is convincing that Cruz did threaten Garcia as well as others. The failure of Cruz and Montoya to fully support Garcia's testimony is of no consequence. Both Cruz and Montoya, who had lived together and were normally close friends, were unreliable witnesses. Both denied, unpersuasively, the fact that Cruz and Cervantes had refused to speak to Montoya for a period while all three lived together because Cruz and Cervantes thought Montoya, who had solicited a loan from the Respondent, was a "company man." Neither Cruz nor Montoya claimed that he could even recall any threats by Cruz upon 15 I have no doubt that Montoya was also intimidated by Eddie Cruz, even though he denied knowing of any threat by Cruz. I disagree with the union counsel's assertion that the "instant proceeding consists solely of mere gestures depicting unity or power to the people." Garcia and both of the Chius, all credible witnesses, testified persuasively of their fear. This is not a case involving "a number of 'heated statements' which showed a clash of personalities," such as was involved in American Wholesalers, Inc., 218 NLRB 292 (1975). Nor is the instant matter like Price Brothers Company, 211 NLRB 822 (1974), involving an alleged threat against an employee's life based on "hearsay testimony twice removed." x' Cruz denied, unconvincingly, that he had ever had a knife when talking with the Chinese or that he ever pounded a fist into the palm of his Montoya. Both testified that they were unaware that Cruz had ever brandished his knife or ever made any use of it except to open a box on company business. Such testimony of these two witnesses was not credible.' 6 Cervantes, a union supporter and friend of Cruz, called by the General Counsel, was a credible witness on most matters, but his testimony did not impeach Garcia, not- withstanding his testimony to the effect that he was unaware that Cruz had threatened to stab an employee referred to as being "two-faced" or "hypocritical." The testimony of Cervantes, with whom Cruz and Montoya had lived for approximately 4 months, effectively discredit- ed much of the testimony of Cruz and Montoya. Cervantes testified convincingly as to how he and Cruz had "got mad" at Montoya and refused to speak to him for about 2 weeks because he was "two-faced" and "a company man." Montoya's and Cruz' claimed ignorance of such silent treatment was not credible to me. Cervantes also gave the lie to the denial by Cruz and Montoya that Cruz did not exhibit his open knife or throw it into boxes or into trash. Garcia's testimony was credible and required no corro- boration.' 7 The supposed "lack of corroboration" by certain other employees is not considered significant in view of their testimony. Elias Navarro, a credible witness, did corroborate Garcia's testimony to the effect that he was afraid after being threatened by Cruz. Arturo Leija Gomez, although present with Navarro at the time, testified unpersuasively for the General Counsel that he did not hear Garcia say he had been threatened. Macias, who was fired by the Company along with Montoya, did testify that he was unaware that Garcia (known to him only as Carlos Briones) claimed he had been threatened, but then he was not a credible witness. Macias also claimed to be unaware that Cruz ever threw his knife or even talked to the Chinese. The General Counsel's suggestion that the record does not support a basis for finding that Cruz in fact used threats against the Chinese is surprising in view of the convincing evidence that he did. I reject the General Counsel's argument that suggests that the Chinese did not really know who Eddie Cruz was or who was intimidating them (which obviously also included Edgar Villa) to "vote union." The timing of Cruz' discharge does not point to an unlawful motivation. The Respondent advised the Region- al Office that Cruz was being kept on the payroll simply because of the Regional Office's investigation. Under- standably, the Respondent did discharge Cruz, and for good reason, when the Regional Office made it clear that it was the Respondent's decision to make, and there was no reason to bring further action on him. The Respondent was other hand in front of them. He even denied hearing that there had been reports that he had threatened Garcia and Lthe Chinese. Such denials were simply not credible. He did testify credibly that he shook his fist in front of a Chinese with the exhortation. "Right On." One witness testified that Cruz had threatened "sooner or later ... to get Jose Palos." Montoya, who was discharged because he was thought to have been stealing and was obviously hostile to the Company, was capable of threats himself. Two or three days after he had been terminated he threatened to get a gun and "shoot Jose Palos and Martinez because ... Martinez was two faced." T Tlhe General Counsel contends that Garcia departed from his sworn affidavit when testifying, but there was no significant deviation that reflects on his credibility. 432 AUDIOVOX WEST CORPORATION not required to make any further investigation of Cruz' misconduct or issue any warning to him. Serious miscon- duct on Cruz' part had occurred, and the Respondent was fully justified in terminating him for that reason. 2. The alleged unlawful statements Paragraphs 8-11 of the amended and consolidated complaint alleges that the Respondent violated Section 8(a)(1) of the Act through interrogation of employees about their union activities and sympathies, by promising benefits to discourage their support for the Union, and by making threats of discharges, layoffs, bribery, and a more restric- tive job transfer policy to discourage support of the Union. These acts were attributed to General Manager James Wohlberg, Production Manager David Etheridge, and Warehouse Manager Jose Palos. It is to be noted that an employer seeking to inform his employees of the unfavorable effect of unionization must be careful not to convey an atmosphere of fear by suggesting that the selection of the Union may be futile. As the Supreme Court said in N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1964): As stated elsewhere, an employer is free only to tell "what he reasonably believes will be the likely econom- ic consequences of unionization that are outside his control," and not "threats of economic reprisal to be taken solely on his own volition." [N.LR.B. v. River Togs, Inc., 382 F.2d 198, 202 (C.A. 2, 1967).] But an employer's messages of this kind are to be evaluated in their "total context" and not in isolation. See Arch Beverage Corporation, 140 NLRB 1385 (1963). Interference with employee's protected rights can, of course, be "accom- plished through allurement rather than coercion," (Western Cartridge Company v. N.LR.B., 138 F.2d 240 (1943)), so the grant of a benefit or promise of one during an election campaign may be unlawful if calculated to influence employees to withdraw their support of a union. Further, interrogation by an employer is unlawful when it is coercive in the light of the surrounding circumstances- considering "the time, place, personnel involved, informa- tion sought, and the employer's known preference." Struksnes Construction Co., Inc., 165 NLRB 1062 (1967). See also Blue Flash Express, Inc., 109 NLRB 591 (1954). Looking at the record in the light of controlling cases, it is apparent that neither James Wohlberg nor David Etheridge made any unlawful statements to the Respon- dent's employees. The allegations of paragraphs 8, 9, and I will therefore be dismissed. Shortly after the election, Wohlberg met with Garcia after the latter had reported to Jose Palos, his supervisor, that he had been threatened by Eddie Cruz. Garcia agreed "s Par. 9 of the amended complaint alleges that Palos participated with Wohlberg in an unlawful interrogation in an employer's home, but the record does not show that the questioning of Garcia by anyone was in any way coercive or illegal. 's Felipe Gonzalez testified that he heard Palos say that some employees would be let go "whether the union got in or didn't." 20 There is no evidence that Palos promised an increase in hours or threatened a more restrictive job transfer policy in order to frustrate unionization of the Audiovox plant. The allegations of par. I 0(c) is repetitive to the questioning voluntarily, it being clear that Garcia knew that he was free to speak or not without fear of any reprisal. The contact was brief, noncoercive, and limited to the subject of the Respondent's objections to the election, a matter the Respondent had a right to investigate. See Paymaster Oil Mill Co., a Division of Anderson, Clayton & Co., Inc., 181 NLRB 396 (1970), and cases cited therein. Wohlberg also met with Tavarez after the latter ap- proached his supervisor, Jose Palos, about the accuracy of certain Audiovox documents (salesmen's earnings) disse- minated at the Union's bowling alley meeting. Tavarez spoke "no more than five or 10 minutes" about the incident in a voluntary manner to Wohlberg, who of course had the right to investigate this matter as well. Paymaster Mill Co., supra.18 Shortly thereafter Wohlberg addressed the Re- spondent's employees at a gathering in an effort to correct what he considered to be misrepresentations about the Company. His comments were in no way illegal. David Etheridge asked Eddie Cruz, with whom he had been friendly, at the conclusion of Wohlberg's remarks if he had any questions. Cruz replied that he had none to ask. Etheridge's question was in no way coercive or unlawful. Cruz himself characterized the statement as "just a ques- tion" and not an "interrogation." According to Margarita Cruz, Jose Palos, her supervisor while working at Audiovox, told her and her assistant that the "company can buy off the union and still fire who they want." Palos denied saying the Company would bribe the Union if it became the employees' bargaining representa- tive but conceded that he gave Miss Cruz and others an article which obviously carried the message that the Teamsters had been, or could be, compromised by employ- ers. Miss Cruz appeared unfriendly toward the Company, whose employ she had left prior to the hearing, but her testimony was credible. The distinction Palos sought to make was too subtle. It seems clear that Palos sought to convey a message that the Union would not fairly represent Audiovox employees if selected to be their bargaining agent. Such representation by Palos operated to discourage support of the Union and was unlawful. Also, Palos did not deny promising to help Miss Cruz get a raise if she were to vote against the Union as she had claimed in her testimo- ny. Nor did Palos deny her statement that he told her that there would be layoffs "if the union came in." 19 Finally, it was not disputed that Palos asked Miss Cruz what she knew about the Union and whether she represented it. Thus, the allegations of subparagraphs (a), (b)-to the extent it alleges a threat of layoffs--10(d), and 10(f) of paragraph 10 of the amended and consolidated complaint were sustained by the evidence. The other allegations of paragraph 10 must be dis- missed.20 It is true that Palos did not dispute employee testimony to the effect that he had inquired about union of 10(b) and merged with the similar allegation contained in 10(b). Par. 10(e), to the extent it refers to a promise of promotions, is repetitive of lO(a) and, therefore, merged with the latter. Pars. 10(i) and 10(j) are also similar and repetitive of 10(a). Par. 10(i) apparently challenges the loan Montoya sought from the Company when his father died. The loan was not promised, according to the credible testimony of Palos, and was in fact refused. The charges contained in subpars. (b), to the extent it refers to a threat of a more restrictive job transfer policy, (c), (e), (g), (h), (i), and (j) will therefore be dismissed. Notwithstanding the dismissal of the allegations contained in (Continued) 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sympathies of certain employees (including Mejorado, Arturo Leija Gomez, and Montoya) while meeting with them socially at Mejorado's house or on the way there and of certain other employees (including Cervantes, Villa, Macias, Gonzalez, and Modesto Palos) on another social occasion in his own home. But, as has been noted, Palos' questioning must be evaluated in light of all the surround- ing circumstances. His comments were made while socializ- ing with friends and relatives, 21 away from the Audiovox plant. It is clear that Palos, who had said himself that "this company needs ... a union," was not seeking to find out who was for the Union so he could inform the Company with respect to the organizing activity. It is apparent that the employees did not regard his questioning as coercive and, although ill-advised, it was not illegal. According to Cervantes, a credible witness, Palos "tried to help us, you know," adding that he did not say "like he fire somebody, or nothing like that." Gonzalez testified that after telling Palos that he was "for the union," Palos replied: "All right, each one does whatever is convenient for himself." The questioning did not occur in a background involving an employer hostile to any unionization. But the most signifi- cant thing about Palos' questioning, apparently initiatcd entirely on his own, was that his position in the manage- ment hierarchy of Audiovox was such that his questions always remained essentially innocuous. 22 Based on the foregoing, and the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening layoffs if the Union were selected as the collective-bargaining representative for its employees, by representing that the Union could be bribed or bought off, by interrogating with respect to employee's union sympathies and activities, and by promising assistance in obtaining a pay increase or promotion for an employee for voting against the Union, the Respondent deprived em- ployees of their statutory rights in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent did not engage in other conduct violative of the Act as alleged. said subpars. (c), (e)--to to the extent it refers to a promise of promotions- (h), (i), and (j), my recommended Order will include prohibitions which will effectively cover the challenged practices because of my findings with respect to subpars. (a), (b), and (f) of par. 10. ii Gonzalez is a brother-in-law of Palos, and Macias is his first cousin. Gonzalez testified that he was once asked in his own home by Palos about the Union and told that those "with the company . . . would progress." Macias said Palos had indicated that the Union was "no good." But both Gonzalez and Macias felt free to express themselves in discussing the issue. Only Montoya, an unpersuasive witness, claimed that he told Palos that he was "for the company, because I didn't want to lose their friendship." Gomez, another unpersuasive witness, claimed Palos said he "could give us bonuses" and inquired "who had started the whole union things." But, as has been noted, my recommended Order will effectively prohibit interroga- tion of employees because of my finding with respect to par. 10(f). THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain action designed to effectuate the policies of the Act. The Objection in Case 21-RC-14800 It was established that threats of violence and force interfered with the employees' free choice in the election held on November 22, 1976. I therefore recommend that Objection 2 be sustained, and that a second election be directed. Upon the foregoing findings of fact, and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 23 The Respondent, Audiovox West Corporation, Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership and activities. (b) Threatening its employees with layoffs or other reprisals should they join, support, or otherwise engage in activities on behalf of Miscellaneous Warehousemen, Drivers and Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (c) Representing that it will bribe or buy off the above- named Union, or any other labor organization, for the purpose of defeating or undermining such organization. (d) Promising or offering wage increases, promotions, or other benefits should they refrain from joining, supporting, or otherwise engaging in activities on behalf of the above- named Union or any other labor organization. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes and policies of the Act: (a) Post at its Cerritos, California, plant copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by the Company's 22 Compare Florida Steel Corporation, 224 NLRB 45 (1976), involving unlawful interrogation by a "close friend" who "was a member of management who had considerable influence over. . .employment status." See also Quernetco, Inc., 223 NLRB 470 (1976), where a shipping manager interrogated an employee over a "friendly" beer but threatened him with the possible loss of his job. 2s In the event no exceptions are filed as provided by Sec. 102.46 of the 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. 24 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 434 AUDIOVOX WEST CORPORATION authorized representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found herein to be violative of the Act be dismissed. IT IS ALSO ORDERED that, in Case 21-RC-14800, Objec- tion 2 be sustained, and that the election be set aside and the case be remanded to the Regional Director for Region 21 for the purpose of conducting a new election at such time that he deems the circumstances permit a free choice of a bargaining representative. Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NoTIcE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees con- cerning their union membership or activities. WE WILL NOT threaten our employees with layoffs or otherwise threaten them with reprisals if they join, support, or otherwise engage in activities on behalf of Miscellaneous Warehousemen, Drivers and Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT represent that we will bribe or buy off the above-named Union, or any other labor organiza- tion, for the purpose of defeating or undermining a labor organization. WE WILL NOT promise or offer our employees wage increases, promotions, or other benefits should they refrain from joining or supporting the above-named Union, or any other labor organization. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. AUDIovox WEST CORPORATION 435