El Monte Tool and Die Casting, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD El Monte Tool and Die Casting, Inc. and Ruben Sosa. Case 21-CA-15287 September 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On June 3, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 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 brief and has decided to affirm the rulings, findings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 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 as modified and hereby orders that the Respondent, El Monte Tool and Die Casting, Inc., El Monte, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as modified below: Substitute the following for footnote 14 of the Administrative Law Judge's Decision: "14 Backpay to be computed in accordance with F W. Woolworlh Company, 90 NLRB 289 (1950), and Florida Steel (orporation, 231 NLRB 651 (1977)." The Respondent 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 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for penods pnor to August 25. 1977. in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was heard before me in Los Angeles, California, on May 10, 1977. The charge was filed December 7, 1976, by Ruben Sosa, acting on his own behalf. The complaint, issued January 5, 1977, was amended during the hearing, 232 NLRB No. 28 and alleges that El Monte Tool and Die Casting, Inc. (herein called Respondent), violated Section 8(aX 1) and (3) of the National Labor Relations Act. The parties were permitted at the hearing to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. A posttrial brief, limited to an evidentiary issue, was filed by Respondent. The General Counsel filed no brief. I. JURISDICTION Respondent is a California corporation engaged in the manufacture of metal products at its plant in El Monte. It annually sells goods of a value exceeding $50,000 to customers in California who in turn annually sell goods of like value directly to customers outside the State. Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1. LABOR ORGANIZATION Sheet Metal Workers' International Association, Local Union 170, AFL-CIO (herein called Union), is a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES The complaint alleges that on or about November 20, 1976, Respondent's plant superintendent, Manuel Ozeta, "threatened employees with discharge and other reprisals in order to discourage said employees from joining or assisting the Union," and "made statements which created among its [Respondent's] employees the impression that Respondent was engaged in the surveillance of their union activities" and "that it was futile for them to support the Union," thereby violating Section 8(a)( ) of the Act in each instance. The complaint further alleges that Respondent dis- charged Sosa on December 3, 1976, and since has refused to reinstate him, "because he engaged in union or other protected concerted activities," thereby violating Section 8(a)(3) and (i). The answer denies any wrongdoing. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Sosa joined Respondent's payroll on July 15, 1976, remaining until his allegedly unlawful discharge on December 3. He was a trim press operator. Previous to the discharge, Sosa had been an active union proponent among Respondent's employees. He initiated organizational stirrings at the plant in late August by seeking out an official of the Union, Joel Jiminez, and reporting that the employees wanted representation. This first contact led to an organizational meeting between Jiminez and some of the employees, Sosa included, in early September. Sosa was prominent in notifying the employees of the meeting. Other organizational activities followed and, on November 3, the Union petitioned for an NLRB 186 EL MONTE TOOL AND DIE CASTING election. A hearing on the issues raised by the petition was held December 2-the day before the discharge.' In addition to his union proponency, Sosa complained to Respondent's plant superintendent, Manuel Ozeta, in October about Respondent's new, more restrictive policies toward absenteeism and use of the restrooms during worktime. Sosa argued that the employees would suffer great hardship in both respects if the new policies were fully enforced, and asked that Ozeta give him a written copy of the new rules. Ozeta refused to comply, but did concede, finally, that Sosa had a point about the restroom matter-"if a man's got to use the bathroom, he's got to use it." After I month with Respondent, Sosa received an "automatic" wage increase from $2.50 to $2.70 an hour. Then, in late November, Ozeta told Sosa that he was "a good worker"; that he could become a leadman or a setup man, which would mean "good money" and a "good, steady job forever." Ozeta then asked how long since Sosa's last raise. To Sosa's reply, Ozeta said he would tell Ray Barry, one of Respondent's officials, "to give you a merit review and give you a raise." Sosa shortly had an interview with Barry, which was quickly followed by another 20-cent hourly raise.2 The discharge decision was made and implemented by Ozeta, reputedly because of Sosa's "obscene gestures and conduct." Sosa and Richard Buffington, the leadman on Sosa's trim press, had been jesting with each other near the machine the morning of December 3. They were close friends. It began when Buffington called Sosa "baboso," a Spanish approximation of "stupid" or "dumb." 3 Sosa replied, "F- you," prompting Buffmgton to make a gesture toward Sosa colloquially known as "the finger." Sosa responded with a like gesture, to the accompaniment of another "f- you." 4 Ozeta, who had observed at least some of the exchange, summoned the two to his office. He addressed himself first to Buffington, saying: Buffington, you being a leadman and overseers [sic] of these people, tomorrow, the next day or so, you may become a foreman. You will gain no respect from your employees carrying on this way. I did not see you do anything. I did Ruben here. But I did not see whether you did or whether you didn't give him the finger. But take this as a verbal warning notice, Buffington. The company cannot and will not tolerate this kind of indecency. You have women working around here and all that. You will never gain any respect from employees carrying on this way. Turning to Sosa, Ozeta commented upon his "immoral, indecent gestures," noting that he had been "verbally t The representation case was docketed as 21-RC-14876. An election was held January 21, 1977, based upon a Decision and Direction of Election that issued December 23. The Union won and was certified as the representative on March 15, 1977. 2 The date of Sosa's second raise is not pinned down with precision. Ozeta testified, however, that his conversation with Sosa preceding the raise occurred "maybe a little before, a little after" the so-called Welch warnings. discussed below. The Welch warnings issued November 30. 3 Although testifying in English, Sosa's primary language is Spanish. 4 Sosa demonstrated the gesture under discussion on the witness stand. It warned about this before" and embellishing that horseplay of that sort around the machines "is an unsafe matter, you know." The break bell rang at about that point. Ozeta instructed Buffington and Sosa to take their breaks, then return. After the break, Ozeta announced that he was not going to give Buffington "a written warning notice or anything like that" because he had not actually seen Buffington do anything objectionable. He directed that Buffington return to his job. Upon Buffington's departure, Ozeta stated to Sosa: "Due to those prior warnings, I am going to have to terminate you." Sosa at first was incredulous, then pleaded for another chance-"I won't do this no more .... [G]ive me a break." Ozeta was unyielding: I have done that. You have not listened. So you know that no company will tolerate this. And I won't either. With that, Ozeta presented a termination slip to Sosa for signing. Sosa at first resisted, objecting to the references to earlier alleged misconduct, but finally signed.5 Ozeta admittedly had known for some time of Sosa's part in the organizational effort-"word got around Ruben was being active." He denied, however, that it was a factor in the discharge decision. Regarding the earlier verbal warnings mentioned by Ozeta in the discharge conversa- tion, he testified that he had admonished Sosa twice before about his language-first around the catering truck during a break, then 2 or 3 weeks later near the timeclock at shift's end. The record does not establish the proximity of these alleged events to the discharge, but leaves the inference that they were quite some time before. Concerning the alleged catering truck incident, Ozeta elaborated that, upon hearing Sosa use "some pretty foul language," he cautioned: "There's women in your pres- ence, you know. Kind of cool it a little bit." Regarding the alleged timeclock incident, Ozeta testified that, having heard Sosa say "f- you" within earshot of those in line to clock out, he remonstrated: Ruben, I have warned you before about this foul language.... Women sometimes talk worse than a drunken sailor. But on the job they will be treated as women.... [T]his company or no company will tolerate this language. So just curb your profanity. 6 Ozeta testified that "a lot of rough men" work for Respondent and that, whenever he hears them use profanity, "I'll let them know about it." He also testified at one point that Respondent's female employees-some 15 out of a complement of about 117-sometimes "use the language" that he "got after Ruben for," and that he reproves them just as he does the men. Ozeta later qualified consists of extending the middle finger upward from an otherwise clenched fist. Ozeta testified that he equates the gesture with the term "f- you." I Sosa is credited over Ozeta's denial that Sosa voiced exception to the contents of the slip. The slip is not in evidence. 6 Contrary to Ozeta, Sosa testified that he was never warned previous to the discharge conversation about his language. He conceded, however, that Ozeta once told him to "behave" around the catering truck and not talk and laugh so much. Sosa denied the timeclock incident totally. For purposes of this Decision, Ozeta's testimony is accepted as concerns these matters. 187 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the women do not use "the 'F' word, just normal cuss words." Ozeta conceded that he himself curses-"like anybody else"-but not "at or in front of women at work." Respondent's vice president of manufacturing, David Welch, testified that the only other profanity-related discharge of which he is aware occurred in April 1977, when an employee abused one of the women in the personnel office with the Spanish terms for "nymphomani- ac" and "whore." Welch is consulted about all of Respondent's discharges. 7 The so-called Welch warnings, mentioned above in footnote 2, issued November 30-4 days before the discharge. Toward the end of the shift that day, Sosa borrowed Buffington's hat to shield his eyes from the sun. A while later, when Buffington asked for its return, Sosa jokingly refused. A good-natured scuffle followed. This was observed by Welch and written warnings to both employ- ees followed. In the fall of 1976, some of Respondent's employees attended a school established by the Society of Die Cast Engineers once a month on Saturdays. At the school on November 20, during a break, Ozeta called Sosa to him. After some preliminary jocularity, this conversation took place: OZETA: I want to talk to you about the Union. SosA: What about it? I don't know nothing about it. OZETA: Come on, now, we all know, we all know about the Union. .... I know that god-damned cheap union will not go in a [sic] company.... [B]ecause people tried it before. It failed.... I know that everybody signed a card for the Union.... And I know that you did. And I know you organized the Union. SosA: Me? How could I organize the Union? I don't know nothing. OZETA: Well, after all this is over, probably all the people that signed up for the Union, they're going to be fired. SosA: How can you prove that, that they all signed up? Nobody-you can't prove they all signed up. You can't prove that I did. OZETA: I know you did. You can never trust your best friend. Ozeta concluded the exchange by saying that Tex Crammer, Respondent's president, "does not want a union" and "would do anything to stop the Union." As 7 The consultation in Sosa's case happened after the discharge. Welch's testimony: "Manny [Ozeta] explained the gesture and the wording that he [Sosa J used, explained where he saw it, where he was standing when he saw it, and it was loud. I said, were there any women around, and he said, yes, there were. So I said, 'Are you sure everything is that way?' He said, 'Positively.' And I said, 'I support your decision.' " I Sosa's version of this conversation is credited. Ozeta testified that Sosa, not he, brought up the subject of the Union, volunteering out of the blue that he had signed a union card. Ozeta responded, according to his testimony: "That is your prerogative. You have the right to vote for a union. You have the right not to vote for it. ... Vote the way you want to. If you want to, that's )our privilege." Ozeta specifically denied saying that those for the Union would be fired. Although both Sosa and Ozeta seemed to testify self-servingly at times, Sosa generally gave the impression of being the more forthright and conscientious of the two. His version of this conversation, moreover, carried greater plausibility than Ozeta's. In Sosa walked away, he heard Ozeta say to a bystander: "This guy tried to put the Union in my company." 8 B. Conclusions The Ozeta remarks: Ozeta's remarks to Sosa during their November 20 conversation at the school contained threats of reprisal for union activity (his saying that card signers probably were "going to be fired ... after all this is over" and that Tex Crammer "would do anything to stop the Union"); created the impression that the employees' union activities were under surveillance (his saying that he knew "that everybody signed a card for the Union" and that he knew that Sosa had signed a card and had "organized the Union," giving as the basis for his knowledge that "you can never trust your best friend"); 9 and imparted the impres- sion that the employees' union activities were a futility (his saying that the god-damned cheap union will not go in a [sic] company" because it had failed before, in juxtaposi- tion with his assertions that the signers probably would be fired and that Crammer would do anything to stop the Union). It is concluded, therefore, that Respondent violated Section 8(a)(l) substantially as alleged. The Discharge: Sosa was prominent in the organizational drive and Ozeta was aware of that prominence. Ozeta, moreover, was troubled by the union threat and by Sosa's contribution to it, as shown by his singling Sosa out for the unlawful remarks on November 20. Further, the discharge followed by only a day the hearing on the election petition-an event that likely aggravated Ozeta's sense of unease over the situation. Beyond that, Sosa recently had received a merit wage increase at Ozeta's behest, belying any suggestion of inadequate performance. Finally, the stated reason for the discharge-"obscene gestures and conduct"-reeks of pretext, given the trifling nature of Sosa's transgressions and the setting in which they took place,'0 the use of profanity by other of Respondent's employees, the lack of other discharges for like conduct," and the absolution of Buffington for his coequal part in the precipitating incident on the transparent hypertechnicality that he was not actually seen in pari delicto. It is concluded, based on this aggregate of circumstances, that the Sosa discharge was prompted by his union activities, violating Section 8(aX3) and (1) as alleged.12 particular, Ozeta's assertion that Sosa broached the union subject by saying he had signed a card did not mesh with the context of their conversation at that time as reported by Ozeta, and thus seemed contrived. 9 See South Shore Hospital, 229 NLRB 363 (1977). i° While not part of the present record, it is recalled that Nelson Rockefeller, our then-vice president, "gave the finger" to a heckler in the fall of 1976-an event causing much merriment among the media. n1 The incident leading to discharge in which an employee called one of Respondent's office workers a nymphomaniac and a whore was incompa- rably more serious. 12 It rmght be wondered why, if Respondent seized upon a pretext to discharge Sosa December 3, it was not likewise disposed on November 30, coincident with the Welch warnings. The likely explanation is that Buffington was a coequal in that incident, too, and the device of "looking the other way" as concerns him, to enable the singling out of Sosa, had not as yet occurred to Respondent. 188 EL MONTE TOOL AND DIE CASTING CONCLUSIONS OF LAW 1. By threatening its employees with discharge for engaging in union activities and by creating the impression that their union activities were under surveillance and a futility, all as found herein, Respondent in each instance violated Section 8(a)(1) of the Act. 2. By discharging Ruben Sosa because of his union activities, as found herein, Respondent violated Section 8(a)(3) and (1) of the Act. 3. These unfair labor practices affect commerce within Section 2(6) and (7) of the Act. 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 ' 3 The Respondent, El Monte Tool and Die Casting, Inc., El Monte, California, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Threatening its employees with discharge or other reprisals for engaging in union activities. (b) Creating the impression that the union activities of its employees are under surveillance. (c) Imparting to its employees the impression that it is a futility for them to engage in union activities. (d) In fact discharging or otherwise discriminating against its employees for engaging in union activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purpose of the Act: (a) Offer to Ruben Sosa immediate and full reinstate- ment to his former job, or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges; and make him whole for any loss of earnings or benefits he may have suffered by reason of the discrimination against him.'4 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay and benefits owing under the terms of this Order. (c) Post at its facility in El Monte, California, the notice which is attached and marked "Appendix." 15 Copies of the notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 13 All outstanding motions inconsistent with this recommended Order hereby are denied. 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. 14 Backpay to be computed in accordance with F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962) i" In the event that this Order is enforced by a Judgment of the 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The hearing held in Los Angeles, California, on May 10, 1977, in which we participated and had a chance to give evidence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(l) and (3) of the National Labor Relations Act, and this notice is posted pursuant to that decision. The National Labor Relations Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective- bargaining agreement which imposes a lawful requirement that employees become union mem- bers. WE WILL NOT threaten our employees with discharge or other reprisals for engaging in union activities. WE WILL NOT create the impression that the union activities of our employees are under surveillance. WE WILL NOT impart to our employees the impres- sion that it is a futility for them to engage in union activities. WE WILL NOT in fact discharge or otherwise discrimi- nate against our employees for engaging in union activities. 189 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them under Section 7 of the Act. WE WILL offer to Ruben Sosa immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges; and make him whole for any loss of earnings or benefits he may have suffered by reason of the discrimination against him. EL MoNTE TOOL AND DIE CASTING, INC. 190