Los Angeles Plating Co.

LOS ANGELES PLATING CO. 105 M & F Manufacturing Company, Inc. d/b/a Los An- geles Plating Company and Metal Polishers, Buff- ers, Platers and Allied Workers, International Union, Local No. 67, AFL-CIO. Case 21-CA-13548 its purpose was to encourage Ornelas' support for the decertification effort. Accordingly, we find that Re- spondent promised Ornelas benefits in exchange for withdrawal of support from the Union in violation of Section 8(a)(1) of the Act' January 9, 1976 DECISION AND ORDER BY CHAIRMAN, MURPHY AND MEMBERS FANNING AND PENELLO On September 23, 1975, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions to the Administrative Law Judge's Decision and a brief in support thereof, and the Acting Gener- al Counsel, hereinafter referred to as the General Counsel, filed cross-exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has- considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions 1 of the Administrative Law Judge and to adopt his recommended Order, as modified here- in. The Administrative Law Judge found that Re- spondent did not solicit employee Ornelas to with- draw support from the Union with the promise of a wage increase. General Counsel excepts. We find merit in this exception. A decertification petition was filed with Region 21 of the Board on April 10, 1975. In mid-April 1975,2 Respondent's vice president, William Behrens, gave employee Roberto Ornelas his weekly paycheck. Ornelas inquired as to whether he would be granted a wage increase. Behrens responded by stating that "we would have to wait until the contract is over." Respondent conceded that it could grant its em- ployees wage increases at any time, and that it was unnecessary to wait until its contract with the Union expired. Since 1974, Respondent had received bi- weekly inquiries from Ornelas regarding a wage in- crease, but had always rejected these requests. Beh- rens' response to Ornelas that he should "wait until the contract was over" implied he would receive an increase at that time. The timing of this implied promise of an increase in such close proximity to the filing of the decertification petition, when considered in light of the previous rejections, demonstrates that ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, M & F Manufacturing Company, Inc. d/b/a Los Angeles Plating Company, Los Angeles, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: Insert the following as paragraph 1(c): "(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act." Both the General Counsel and the Respondent have 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 resolu- tions 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 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for revers- ing his findings. According to Ornelas' uncontradicted testimony, Behrens was only able to place the conversation "after the first of the year like maybe February or March. Sometime in there." 3 Our finding that Respondent committed an additional violation of Sec. 8(a)(1) does not require modification of that aspect of the Administrative Law Judge's recommended Order. DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Administrative Law Judge: This matter was heard at Los Angeles, California, on August 5, 1975. The complaint was issued on May 29, 1975, based upon a charge filed on April 11, 1975, by Metal Polishers, Buffers, Platers and Allied Workers, International Union, Local No. 67, AFL-CIO, hereinafter referred to as the Union. The complaint alleges that M & F Manufacturing Company, Inc. d/b/a Los Angeles Plating Company, the Respondent, interrogated employees concerning their union activities, threatened employees with reprisals be- cause they engaged in union activities, and promised em- ployees increased economic benefits in violation of Section 8(a)(1) of the Act.' All parties were given full opportunity to introduce evi- dence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were -filed on behalf of the General Counsel and the Respondent. 222 NLRB No. 35 106 DECISIONS OFNATIONAL LABOR RELATIONS BOARD Upon the record of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The pleadings establish, and I find, that the Respondent, a California corporation, engages in the business of metal finishing, plating, and painting in Los Angeles, California, and annually, in the course and conduct of its business, purchases and receives goods and materials valued in ex- cess of $50,000 from suppliers located in the State of Cali- fornia, each of which purchases those same goods and'ma- terials"directly from suppliers located outside the State of California. It is further established by the pleadings, and I find, that the Respondent is an employer engaged in com- merce and in-'a business affecting commerce within the meaning of Section`2(6) and (7) of the Act. - II. THE LABOR ORGANIZATION The pleadings establish, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background An employee of the Respondent filed a decertification petition (Case 21-RD-1256) with Region 21 of the Board on April 10, 1975. On April 11, 1975, the Union filed the charge herein which has served to block the holding of an election in the _ RD case. The General Counsel contends that the claimed 8(a)(1) violations occurred in April 1975. The parties have had collective-bargaining relations with one another for a number of years. The last collective- bargaining agreement extended from July 8, 1972, until July 8, 1975. The Respondent employs approximately 60 employees. A. The Testimony of Ornelas Roberto Ornelas, still employed by the Respondent as a plater and in the employ, of the. Respondent for 12 years, testified, in behalf of the General Counsel. Mr. Ornelas is Spanish-speaking -and, because of his lack of under- standing of, English, testified through- an interpreter. He testified that in mid-April 1975 his supervisor, William Behrens,' came to Ornelas' work station to give him his paycheck. Ornelas,testified he asked Behrens (in English), "Am I;raised in-the check." Ornelas testified that Behrens replied to him (in English), "Well, when outs the-Union, you are raised." Reciting the conversation, again on direct examination, Ornelas testified that he said -to Behrens, "Mr. Bill, is my raise in the, check." Behrens replied, "I don't know-m a few seconds he [Behrens] said like this, 1 It is admitted that William Behrens is vice president and manager of production and is a supervisor within the meaning of the Act. `Outs union'-again 'when , -outs union-you are raised'-and then I [Ornelas] answered him like this, `How much,' and he said, `Wait."' On redirect examination Ornelas testified as follows: "The part that was in English was when I asked. him [m English], `Bill, is my raise in the check.' He [Behrens] said, `I don't know."' Testifying in Spanish, "And he [Behrens] waited for a few seconds and he said to me [in English], `If union out, you have a raise.' (In Spanish) Then I asked him right away, [in English] `How much?' He said, `Wait' (In Spanish) That's all." Ornelas admitted on cross-examination that he had asked for a raise on a number of- occasions and each time he was told to wait. Ornelas testified that he expected a raise "all the time," that's why he asked Behrens, "Is my raise in the check." Ornelas admitted 'that previously Beh- rens had not promised him a raise , and Behrens would-say "maybe, maybe." It is established without dispute that Ornelas' hourly pay rate -exceeds the contract rate. B. Behrens' Testimony Mr. Behrens does not speak Spanish and he speaks to Ornelas on the job basically with the aid of sign language to supplement his English. When Behrens thinks that Orne- las does not understand him, he will ask one of the girls to interpret if it is something critical and Behrens thinks he needs to make sure that Ornelas understands. Concerning the conversation testified to by Ornelas about a pay -increase, Behrens testified credibly -and'with- out dispute that he passes, out the paychecks every Thurs- day, and on a number of occasions, "About every other week," Ornelas would ask,-in English , about a raise. Beh- rens' version of the conversation testified to by Ornelas is as folows: I don't remember the exact words that Mr. Ornelas asked me, as per usual, about a raise, and this particu- lar time, I said something that we, must, or we would have to wait until the contract is -over, or completed, or finished, or finalized-or something of - this na- ture-I don't remember the exact words. Behrens testified that Ornelas "did not reply just smiled." He places this particular conversation with Orne- las as sometime in February or March 1975 . Behrens de- nied that he told Ornelas that "when-the Union is out or ousted, you will get raised"-"only that when the union contract was over, or something of that nature-but noth- ing about the Union being out.", Behrens testified he re- membered this conversation with Ornelas because it went longer than-the normal conversation regarding a raise- "always I would just shrug my shoulders and-wouldn't an- swer because I didn't know . I would have no jurisdiction aver wages to begin- with." C. Resolution of Conflict in Testimony of Ornelas and Behrens - I am persuaded by - all the circumstances that Behrens did not in this conversation with Ornelas in effect promise him a wage raise if the Union was voted out, Initially, it is LOS ANGELES PLATING CO. 107 noted that Ornelas' difficulty in understanding and con- versing in the English language probably caused him to misunderstand Behrens' remark that he should wait until the union contract was over. I credit Behrens' version of the conversation with Ornelas; among other reasons, be- cause of the likelihood that Ornelas' unfamiliarity with the English language caused him -to misinterpret Behrens' re- marks-as a promise of wage increase when the Union was "out." Additionally, Behrens credibly and without contra- diction testified he told other employees who asked for a raise the same things, namely, to wait until the contract was over. I do not construe Behrens' remarks to Ornelas to constitute a promise of a wage raise if the Union would be voted out. Other circumstances which compel me to this conclusion are the following: namely, that Ornelas initiat- ed the conversation asking about a pay raise, the conversa- tion was, very brief, lasting only seconds; Ornelas admits that Behrens never spoke to him against the Union; and in the past Ornelas received a raise only through the union contract,, according to his own testimony: - - I would therefore find that Behrens' remark- to Ornelas did not violate. Section 9(a)(1) of the Act. D. The Testimony of Mitchell Simpson Mitchell Simpson has been employed by the Respondent about 16 years. He had been employed as a "plater lead- man" until July 1975 when-the Respondent merged the anodyzing and the hard anodyzing and he became a "plat- er." He had held the position of union steward about 5 or 6 years, - Simpson testified, credibly that on or-about April 8, 1975, he -was in the Respondent's washroom about 2:20 p.m.- washing his hands when Behrens entered the -washroom and engaged him in conversation. Simpson credibly testified that Behrens said to him, "Red, you .know that they got a paper going- around to throw the Union out." Simpson replied, "Yeah, I know because the guy named Chuck has done asked me to sign it, and I told him I wouldn't sign it." Behrens replied, "Well, maybe you should have-because we are thinking about taking out the anodyzing.line and putting a chrome line in there-if we do that, you probably will be without a job." Simpson testified -credibly further that then Behrens told him, "You don't make much money as a plater any- way-there's platers, that would make twice as much-al- most twice as much money as you do." Behrens said fur- ther, "If you would sign the paper to help throw the Union out, I will see. that you are put in charge of the chrome line and make more money." Simpson told Behrens he- wouldn't sign the paper. Behrens replied, "Well, it would be to your advantage to sign, it and get the Union out " Simpson testified that about this time he left the wash- room. Prior to this-conversation-in the washroom, Simpson did not know the Respondent was going to make a change or merger of the. lines. - E. Behrens' Testimony .Behrens testified that he--did not recall such a conversa- tion with Simpson in the washroom as testified to by Simp- imp- son. Behrens testified that his conversations with Simpson- son., are normal "chit-chat" of vacations , fishing traps, etc. Beh- rens --testified he did recall a conversation, with Simpson regarding the elimination of a production line around Jan- uary 1, 1975. Concerning this conversation, Behrens testi- fled that his superior , Mr.- Davison, had mentioned that because of the anodyze line being very slow and not pro- ductivewise, it would probably be eliminated in the near future. Behrens testified that because Simpson "being a good worker, I thought, well, I mentioned that we probably would be eliminating the anodyzing line and putting that whole section into a chrome section, a chrome line, and I was asking him on seniority, he had seniority, and he said he did. Well, then, I thought, or suggested that he kind of bone up on chrome plating because that is what we were going to do, and I knew he didn't know anything about chromes, and that was about the extent of the conversa- tion." Behrens testified he initiated this conversation with Simpson because he was a very good worker and Behrens was interested in his welfare. Behrens testified that Simp- son replied that if the Respondent did away with the an- odyzing line, he would probably leave the Respondent and go back to Kentucky. Behrens testified that he did not re- call saying to Simpson in April 1975 that he should sign a paper to decertify the Union-nor remembers saying that if the Union was- gone he would make more money-or that it the Union was gone he would be put in charge of a particular line. Behrens testified he did not say to Simpson at any time that it would be to Simpson's advantage to "get the Union out." F. Resolution of the Conflict in the Testimony of Behrens and Simpson Respondent's counsel argues that it is improbable that Behrens would solicit Union Steward Simpson to sign the decertification petition with a promise of a promotion and pay increase if he would sign. It must be -noted in this instance that Behrens coupled his promise with a threat that if the anodyzing line were discontinued and replaced by a chrome line, Simpson would "probably be without a job," but if he would sign the paper to help throw the Union out Behrens would see to it that Simpson would be placed-in chargeof thechrome.line and make.more money. In the,cir"eumstances of this case, namely,.the fact that Respondent's management freely acknowledged . that Simpson was an excellent employee, that,he and, the Re- spondent were on good terms and enjoyed a cordial- rela-tionship-in-regard to grievance negotiation, I have,conclud- ed that Behrens felt free to approach Simpson with - a proposition which would be beneficial to both the Respon- dent and-Simpson. It is not improbable that-Behrens would approach- Simpson, with whom he was on very good terms and whom he regarded as an' excellent employee, to win him and his probable influence on his fellow- employees, over to--the Respondent's side by, signing the decertification petition. Respondent's counsel,also. argues-that it is im- probable that. Behrens would solicit Simpson to sign the decertification petition when, his superior, General Manag- er Davison, advised him not-to say anything at all, to the employees-not to even mention the word "union" to any 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee. However, it appears from Mr. Behrens' testimo- ny that he received this admonition from Mr. Davison af- ter the decertification petition was filed, whereas his con- versation with Simpson was held a few days before the petition was filed with the Regional Office of the Board. Moreover, I was impressed with-the candor and straight- forward manner in which Simpson testified. Additionally, Behrens' testimony concerning the April 8 washroom con- versation with Simpson was that he could "not recall" it.- This testimony is something less than a denial that the con- versation occurred. Crediting Simpson's testimony concerning the April 8 "washroom" conversation with Behrens, I therefore find that Behrens' remark to Simpson on that occasion coerced and restrained employees in the exercise of rights guaran- teed in Section 7 of the Act and violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and 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 and is engaging in certain unfair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and the entire record in this proceeding, I make the following: ORDER2 Respondent, M & F Manufacturing Company, Inc., d/b/a Los Angeles Plating Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting individual employees to sign a petition to decertify the Union as the exclusive collective-bargaining representative of its employees. (b) Threatening an employee layoff or promising job promotion and wage increase for the purpose of inducing employees to sign a petition to decertify the Union as col- lective-bargaining representative of its employees, or other- wise to withdraw their support from the Union. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its place of business copies of the attached notice marked "Appendix." 3 Copies of said notice to be furnished by the Regional Director for Region 21, after being duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 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. 3In 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within, the meaning of Section 2(5) of the Act. 3. By soliciting Mitchell Simpson to sign a petition to decertify the Union as the exclusive representative of its employees and by threats of reprisal and promises of bene- fits in seeking to induce Simpson to sign such- decertifica-tion petition, the Respondent interfered with, restrained, and coerced employees in the- exercise of rights- guaranteed by Section 7 of the Act, and the Respondent thereby vio- lated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices- are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact,-conclu- sions of law, and the entire record, and pursuant to Section 10(c) of- the Act, I hereby issue the following recommend- ed: APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had an opportunity to present evidence and state their positions, the National La- bor Relations Board has found that we have violated the National Labor Relations Act and has ordered us- to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective-bargaining or other mutual aid or protec- tion LOS ANGELES PLATING CO. 109 To refrain from the exercise of any such activities. WE WILL NOT, by threats of reprisal or promises of benefits or by any other means, solicit employees to decertify Metal Polishers, Buffers, Platers and Allied Workers International Union, Local 67, AFL-CIO, or any other labor organization, or to withdraw their sup- port of the Union. WE WILL NOT m any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form , join, or assist labor organizations, including the above-named orga- nization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. M & F MANUFACTURING COMPANY, INC. d/b/a Los ANGELES PLATING COMPANY