Handling Equipment Corp.

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Handling Equipment Corp . and International Brother- hood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers, AFL-CIO. Case 31--CA-3655 February 14, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October' 18, 1973, Administrative Law Judge Maurice Alexandre issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed an answering brief supporting the Deci- sion. 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 conclusions2 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 Respondent, Handling Equipment Corp.. Torrance, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. i The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 \LRB 544, enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 We agree with the Administrative Law Judge's conclusion that the 12 alleged discriminatecs herein were employees within the meaning of See 2(3) of the Act Therefore, we also conclude that the 12 employees were entitled to the protection of the Act, had they been unlawfully discriminated against Lawrence Rigging, Inc . 202 NLRB 1094 DECISION MAT ?RICE ALEXANDRE, Administrative Law Judge: This case was tried before me in Los Angeles, California, on i Based upon a charge filed March 23. 1973. by International Brotherhood of Boilermakers, Iron Ship Builders. Blacksmiths, Forgers & Helpers, AFL-CIO, hereafter called the Union I No issue of commerce is presented The complaint alleged and the answer admitted facts which, I find, establish that Respondent is an August 21 and 29, 1973, upon a complaint issued on April 27, 1973,1 alleging that Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record, my observation of the witnesses, the brief filed by Respondent, and a letter setting forth the evidence relied on by the General Counsel, I make the following: FINDINGS AND CONCLUSIONS2 1. THE UNFAIR LABOR PRACTICES A. The Violations of Section 8(a)(1) Respondent is a California corporation engaged in the business of manufacturing trash bins. On March 20, 1973,3 a consent election was held among Respondent's shop employees. It is undisputed that Osborn, the shop superintendent, engaged in the following conduct prior to the election' (1) told the shop employees that they would be fired if they voted for the Union; (2),told employee DeLana that Respondent could not afford the Union and hoped that it did not "get in"; (3) told employee Reyes that he would fire him if Reyes voted for, or had anything to do with, the Union; (4) told Reyes that if the Union did not win the election Reyes would be the first employee to be fired: (5) told employee Wellbaum that Respondent would "close the doors" if the Union won the election; (6) told DeLana and other employees that he had heard that they were trying to unionize; (7) asked employee Reyes on a Saturday whether he had come in for a union meeting, and then stated that he had heard that Reyes was a union leader; and (8) asked employee DeLana whether he was in the Union. Presumably, the General Counsel contends that the statements in items (1) through (5) above constituted unlawful threats, the remarks set forth in items (6) and (7) unlawfully created an impression of surveillance of union activities, and the question in item (8) constituted unlawful interrogation. Respondent's brief does not discuss these matters. I agree with the General Counsel. Employee Reyes testified that on the day after the election Osborn told him that he hoped Osborn would become the shop steward and would object to an order given by Osborn to an employee to sweep the floor because Osborn would then hit Reyes over the head with "a 2x4." Osborn denied that he made any threats to employees after the election. Such a generalized conclusion is insufficient to overcome the specific testimony given by Reyes, whom I credit. The General Counsel contends, and I agree, that Osborn's postelection threat was unlawful. I find that by the conduct set forth above, Respondent violated Section 8(a)(1) of the Act. employer engaged in operations affecting commerce within the meaning of the Act I further find that the Union is a labor organization within the meaning of the Act 3 All dates referred to hereafter relate to 1973 209 NLRB No. 15 HANDLING EQUIPMENT CORP. 65 B. Alleged Discrimination The following facts are undisputed. As noted above, a consent election was held among Respondent's employees during the afternoon of March 20, 1973. There were 28 eligible voters in the unit, and 28 ballots were cast. The results show that 16 employees voted for the Union, 8 voted against, and 4 ballots were challenged.' The same evening, Meyer, Respondent's president, instructed Super- intendent Osborn to ask each of the employees whether he was a citizen of the United States or an alien, and to ask each alien to show his green card, which Meyer believed to constitute evidence that the alien was legally in the United States and was permitted to be employed. He further instructed Osborn to discharge any alien who did not have a green ca-d. On the following morning, March 21, Osborn carried out his instructions. At Osborn's direction, two of the employees told the others, in both English and Spanish, that they could go to work as soon as they produced their green cards. A number of employees produced cards at the time, were permitted to go to work, and are not involved in this proceeding. However, 12 employees who were aliens did not produce cards at the time, and were not permitted to go to work. Of those 12, 7 subsequently produced cards and were permitted to go to work on the following dates: March 23 Jose M. Arce March 26 Manuel Ceja Francisco Gonzalez Gregorio Guillen Francisco Vera April 9 Miguel Gonzalez Enrique Lopez Thereafter, four others who did not produce cards were reinstated on the following dates: April 17 Marganto Chaidez Ignacio Mora Encarnarin Ponce April 18 Salvador Ramirez At the hearing, counsel for Respondent stated that the four were reinstated in order to minimize possible backpay a rlie Union was certified on April 4, 1973 Counsel lot Respondent represented, without contradiction. that Respondent and the Union thereafter negotiated and executed a collective-bargaining agreement 5 Respondent alo contends that until they produce green cards, there is a presumption that employed aliens are not legally in the United States and are not permitted to work, and that accordingly, the 12 individuals here involved either were not employees within the meaning of the Act at the time of their discharges. or were not entitled to the protection of the Act at that time It is true that a nonimmigrant alien may not be lawfully employed in the United States without the permission of the Immigration Service liability. Employee Davila was not reinstated. Osborn testified that he was told that Davila had returned to Mexico. Inasmuch as the General Counsel failed to file a brief, his position must be gleaned from the complaint and from his statements made at the hearing. From the complaint, it appears that the General Counsel contends that Respon- dent unlawfully discriminated against the 12 employees from March 21 until the dates they were reinstated. At the hearing, the General Counsel stated that it is his contention "that the reason the discriminatees in this case were discharged was that they more than likely voted for the Union, since the Union won the election." In support of this contention the General Counsel pointed to the 8(a)(1) violations by Respondent and the timing of the alleged discrimination as evidence that Respondent made good its threats to discharge employees who voted for the Union. Respondent contends that the alien employees were not permitted to work solely because they failed to produce green cards.' I find that the record fails to establish unlawful discrimination. There is 'not a shred of evidence that Respondent knew how any of the employees voted. The record establishes that 16 employees voted for the Union, and there is nothing to show that Respondent had any way of ascertaining whether, or could even reasonably suspect that, the 12 alleged discriminatees were among the 16. If Meyer's motive in ordering the discharges was to demon- strate to his employees that those voting for unionization would suffer punishment, that message would hardly have been conveyed to them merely by refusing to permit aliens to work until they produced green cards. It is difficult to understand how Meyer could expect the employees to equate the lack of a green card with voting for the Union. The record further shows that all the alien employees who produced green cards were permitted to go to work on March 21. When the others subsequently produced them, they were promptly reinstated. Such conduct indicates that Respondent was concerned with their alien status rather than with the nature of their vote in the Board election. Finally, I note that Respondent did not discharge employee Reyes, whom Respondent believed to be a union leader. If Respondent intended to punish those who "more than likely" voted for the Union, surely it would have discharged Reyes. With respect to the 8(a)(1) violations found, I deem it worthy of note that they were committed by Osborn and not by Meyer, who ordered the discharges. That fact, although not dispositive, tends to dilute somewhat the significance of the union animus in the case. As for the timing of the discharges, it is adequately explained by Meyer. He testified that he ordered the discharges on March 21 because on the preceding evening, while Matter of Statutes, Fitie 8 Immigration and Naturalization 574 (1960) However, the Board has held that "an alien lacking working papers" is an "employee" within the meaning of the Act Lawrence Rigging, Inc, 202 NLRB 1094. Accordingly, I find that the 12 individuals here involved were such "employees " I further find that the record is insufficient to establish. or even to permit a presumption, that the 12 individuals were not lawfully employed. For that reason, as well as my finding herein that the record fails to establish that the discharges of the 12 employees were discriminatorily motivated, I do not reach the question whether the 12 employees are entitled to the protection of the Act 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussing the election in his shop with a friend, the latter told Meyer that he might be "violating the law" by employing illegal aliens. This explanation is given credence by the fact, of which I take official notice, that in 1971, the California legislature enacted Section 2805 of the Califor- nia Labor Code, effective March 4, 1972, imposing fines upon employers who knowingly employ aliens who are not entitled to lawful residence in the United States, if such employment would have an adverse effect on lawful resident workers. It is true that despite that statute, Respondent subsequently reinstated four employees even though they failed to produce green cards. I note, however, that they were reinstated after the original unfair labor practice charge herein was filed. That fact tends to substantiate the representation by counsel for Respondent that the four were reinstated in order to minimize possible backpay liability. The General Counsel speculates that Respondent discriminated against the 12 employees in the belief that they "more than likely" voted for the Union. One might speculate with equal force that Meyer, faced with an unfair labor practice charge, employed counsels who advised him that a lower court had held Section 2805 unconstitutional? and that the advantages of reinstating the four employees without green cards in order to minimize possible backpay liability exceeded the possible risk of paying the fine provided for in an unconstitutional statute. Speculation aside, I find that the record contains insufficient evidence of unlawful motivation, and that the General Counsel has not met his burden of establishing discrimination violative of the Act. (b) In any like manner interfering with , restraining, or coercing employees in the exercise of any right guaranteed by the Act. 2. Take the following affirmative action: (a) Post at its place of business in Torrance, California, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 31, after being signed by a representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within, 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. 6 The complaint was served on counsel for Respondent on April 27. v 1 take official notice of the decision in Dolores Canning Co., Inc., et al. v. Milias, No. C-16928, Superior Court, Los Angeles, California, July 24, 1972. " 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 obligations thereto shall be deemed waived for all purposes. s 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 Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." III. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary, and recommend, that Respondent be ordered to cease and desist from the unfair labor practices found, and from in any like manner interfering with, restraining, or coercing its employees, and to post the usual notice. CONCLUSIONS OF LAW 1. By unlawfully threatening, interrogating, and creat- ing an impression of surveillance of the union activities of employees, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(I) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. The allegations of the complaint that Respondent discriminated against employees in violation of Section 8(a)(3) and (1) of the Act have not been sustained. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" Respondent, Handling Equipment Corp., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT unlawfully threaten or interrogate our employees. WE WILL NOT unlawfully create the impression of surveillance of the union activities of our employees. (a) Unlawfully interrogating or threatening employees, HANDLING EQUIPMENT or creating the impression of surveillance of the union CORP. activities of its employees. (Employer) HANDLING EQUIPMENT CORP 67 Dated By from the date of posting and must not be altered, defaced, (Representative) (Title) or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be This is an official notice and must not be defaced by directed to the Board's Office, Region 31, Federal Building anyone. Room 12100, 11000 Wilshire Boulevard, Los Angeles, This notice must remain posted for 60 consecutive days California 90024, Telephone 213-824-7351.