Ahrens Aircraft, Inc.

AHRENS AIRCRAFT, INC. 839 Ahrens Aircraft, Inc. and Asociacion Internacional Judge and to adopt her recommended Order, 4 as de Maquinistas y Trabajadores Aerospaciales, modified herein. AFL-CIO. Case 24-CA-4322 The Administrative Law Judge found, in the December 29, 1981 remedy section of her Decision, that Respondent should be ordered to offer discriminatees Mercado DECISION AND ORDER and Rivera reinstatement to the jobs of which they were unlawfully deprived or, if such jobs no longer BY MEMBERS FANNING, JENKINS, AND exist, to substantially equivalent jobs, when Re- ZIMMERMAN spondent resumes operations, and that Respondent On February 19, 1981, Administrative Law should be ordered to make them whole for any Judge Arline Pacht issued the attached Decision in losses they may have suffered from the date of this proceeding. Thereafter, Respondent filed ex- their discharges, May 21, 1980, to such date as Re- ceptions and a supporting brief. spondent demonstrates during the compliance stage Pursuant to the provisions of Section 3(b) of the of this proceeding that they might have been laid National Labor Relations Act, as amended, the Na- off in the normal course of business. 5 She further tional Labor Relations Board has delegated its au- specified, in her recommended Order, that Re- thority in this proceeding to a three-member panel. spondent be required to offer Mercado and Rivera The Board has considered the record and the at- reinstatement as soon as Respondent resumes its tached Decision in light of the exceptions and aircraft assembly operations or has appropriate brief' and has decided to affirm the rulings, find- jobs, whichever comes first. The recommended ings, 2 and conclusions3 of the Administrative Law remedy and Order would thus appear to assume that Mercado and Rivera would have been laid off * Respondent's motion that the Board remand this case for rehearing a some point prior to the hearing date. We note, that Respondent may present the testimony of Peter Ahrens, president of however, that at the beginning of the hearing coun- Ahrens Aircraft, who was unavailable for the hearing because he was out sel for Respondent stated in arguing in support of a of Puerto Rico and in Washington, D.C., on business, is hereby denied. Although Respondent contends that Peter Ahrens' testimony as to super- motion to dismiss that the issues are moot because visory issues and the appropriateness of the bargaining unit is indispens- Respondent had been forced to lay off over 80 per- able to its case, Respondent did present several witnesses who were inti- cent of its employee work force, and that the plant mately familiar with Respondent's operations and who testified relative to these matters. These witnesses included Respondent's vice president in had been temporarily shut down since late May charge of purchasing, production, and personnel, Edd Ahrens, as well as 1980. Counsel stated at that time that there were its production manager, Carlos Ruiz. Further, when afforded an opportu- nity by the Administrative Law Judge to make an offer of proof with some 35 or 36 employees, which is just really a regard to any testimony which counsel for Respondent might wish to skeleton crew, at the plant to keep the plant some- elicit from witnesses who could not be present, Respondent declined to do so. In any event, the matters which Respondent urges would be estab- what functional for their tax exemption purposes lished through the testimony of Peter Ahrens-specifically, on the super- and to receive mail." Because it is not clear wheth- visory issue, that a high ratio of supervisors is required in the aviation er or not Mercado and Rivera would have been re- industry, and, on the unit issue, that the production of aircraft mandates a wide variety of diverse skills, training, and personnel-would not alter tained by Respondent as part of this skeleton crew our conclusions herein. but for Respondent's discrimination against them, 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to we shall clarify the Administrative Law Judge's overrule an administrative law judge's resolutions with respect to credi- recommended Order by deleting its reference to of- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall roducts fering Mercado and Rivera reinstatement when Re- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have spondent resumes operations or has appropriate carefully examined the record and find no basis for reversing her find- job, so as not to preclude a finding at the compli- ings. ' The Administrative Law Judge's Decision contains several apparent- ance stage of this proceeding that they would not ly inadvertent errors which do not, however, affect the results herein have been laid off absent the discrimination prac- First, the Administrative Law Judge lists in fn. 5 of her Decision the in- dividuals Respondent contends are supervisors, stating that there are 20 ticed against them. We shall also order expunction such persons whose status is in dispute. Only 19 names are listed therein, of any reference in Respondent's files to Mercado's the 20th individual alleged by Respondent to be a supervisor, Juan and Rivera's discharges Martir, having been agreed by both Respondent and the General Counsel to be a supervisor within the meaning of the Act. References in other portions of the Decision adverting to the 20 individuals whose status is in 4 Member Fanning would make the bargaining order prospective in dispute are likewise in error. Second, the Administrative Law Judge nature. See his separate opinion in Beasley Energy. Inc., d/b/a Praker Run refers in fn. 9 to Jt. Exh. l(b) when it is apparent from the record that Coal Company. Ohio Division #1, 228 NLRB 93 (1977). she in fact means Jt. Exh. 2. Finally, in the third paragraph of that sec- Member Jenkins would provide interest on the backpay award in ac- tion of the Decision entitled "Events in January 1980," the statement that cordance with his partial dissent in Olympic Medical Corporation, 250 several employees visited the ADT offices to complain that they had not NLRB 146 (1980). received the contractually promised wage increase of $3.50 an hour 5 The Administrative Law Judge apparently inadvertently failed to cite should in fact state the contractually promised wage increase to $3.50 an Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for the rationale on hour. interest payments. 259 NLRB No. 112 AHRENS AIRCRAFT, INC. 839 Ahrens Aircraft, Inc. and Asociacion Internacional Judge and to adopt her recommended Order, 4 as de Maquinistas y Trabajadores Aerospaciales, modified herein. AFL-CIO. Case 24-CA-4322 The Administrative Law Judge found, in the December 29, 1981 remedy section of her Decision, that Respondent should be ordered to offer discriminatees Mercado DECISION AND ORDER and Rivera reinstatement to the jobs of which they were unlawfully deprived or, if such jobs no longer BY MEMBERS FANNING, JENKINS, AND exist, to substantially equivalent jobs, when Re- ZIMMERMAN spondent resumes operations, and that Respondent On February 19, 1981, Administrative Law should be ordered to make them whole for any Judge Arline Pacht issued the attached Decision in losses they may have suffered from the date of this proceeding. Thereafter, Respondent filed ex- their discharges, May 21, 1980, to such date as Re- ceptions and a supporting brief. spondent demonstrates during the compliance stage Pursuant to the provisions of Section 3(b) of the o f t h i s proceeding that they might have been laid National Labor Relations Act, as amended, the Na- o f f in t h e normal course of business.' She further tional Labor Relations Board has delegated its au- specified, in her recommended Order, that Re- thority in this proceeding to a three-member panel. spondent be required to offer Mercado and Rivera The Board has considered the record and the at- reinstatement as soon as Respondent resumes its tached Decision in light of the exceptions and aircraft assembly operations or has appropriate brief' and has decided to affirm the rulings, find- jobs, whichever comes first. The recommended ings, 2 and conclusions 3 of the Administrative Law remedy and Order would thus appear to assume that Mercado and Rivera would have been laid off *Respondent's motion that the Board remand this case for rehearing so a t s o m e point prior t o t h e hearing d a t e . We note, that Respondent may present the testimony of Peter Ahrens, president of however, that at the beginning of the hearing coun- Ahrens Aircraft, who was unavailable for the hearing because he was out sel for Respondent Stated in arguing in Support of a of Puerto Rico and in Washington, D.C., on business, is hereby denied. Although Respondent contends that Peter Ahrens' testimony as to super- motion tO dismiss that the issues are moot because visory issues and the appropriateness of the bargaining unit is indispens- Respondent had been forced tO lay off Over 80 per- able to its case, Respondent did present several witnesses who were inti- c r t - i^ i r -i a 1- .. ti- i » mately familiar with Respondent's operations and who testified relative to c e n t o f it s employee Work force, and that the plant these matters. These witnesses included Respondent's vice president in had been temporarily shut down since late May charge of purchasing, production, and personnel, Edd Ahrens, as well as 1980. Counsel Stated at that time that there Were its production manager, Carlos Ruiz. Further, when afforded an opportu- nity by the Administrative Law Judge to make an offer of proof with Some 35 Or 36 employees, which is just really a regard to any testimony which counsel for Respondent might wish to skeleton crew, at the plant to keep the plant some- elicit from witnesses who could not be present, Respondent declined to do so. In any event, the matters which Respondent urges would be estab- what functional for their tax exemption purposes lished through the testimony of Peter Ahrens-specifically, on the super- and tO receive mail." Because it is not clear wheth- visory issue, that a high ratio of supervisors is required in the aviation er or not Mercado and Rivera would have been re- industry, and, on the unit issue, that the production ofaircraft mandates a wide variety of diverse skills, training, and personnel-would not alter tained by Respondent as part of this skeleton Crew our conclusions herein. but for Respondent's discrimination against them, 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to We Shall Clarify the Administrative Law Judge's overrule an administrative law judge's resolutions with respect to credi- recommended Order by deleting its reference tO of- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall products fering Mercado and Rivera reinstatement when Re- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have spondent resumes operations or has appropriate carefully examined the record and find no bsis for reversing her find- jobs, so as not tO preclude a finding at the compli- I The Administrative Law Judge's Decision contains several apparent- ance Stage of this proceeding that they would not ly inadvertent errors which do not, however, affect the results herein. have been laid off absent the discrimination prac- First, the Administrative Law Judge lists in fn. 5 of her Decision the in- dividuals Respondent contends are supervisors. stating that there are 20 tic e d against them. We Shall also Order expunction such persons whose status is in dispute. Only 19 names are listed therein, of any reference in Respondent's files tO Mercado's the 20th individual alleged by Respondent to be a supervisor, Juan j D;,~,.'c dichkrr. Martir, having been agreed by both Respondent and the General Counsel a nd Riv e ra 's discharges. to be a supervisor within the meaning of the Act. References in other portions of the Decision adverting to the 20 individuals whose status is in Member Fanning would make the bargaining order prospective in dispute are likewise in error. Second, the Administrative Law Judge nature. See his separate opinion in Beasley Energy. Inc, d/bla Praker Run refers in fn. 9 to Jt. Exh. l(b) when it is apparent from the record that Coal Company. Ohio Division #1, 228 NLRB 93 (1977). she in fact means Jt. Exh. 2. Finally, in the third paragraph of that sec- Member Jenkins would provide interest on the backpay award in ac- tion of the Decision entitled "Events in January 1980," the statement that cordance with his partial dissent in Olympic Medical Corporation, 250 several employees visited the ADT offices to complain that they had not NLRB 146 (1980). received the contractually promised wage increase of $3.50 an hour I The Administrative Law Judge apparently inadvertently failed to cite should in fact state the contractually promised wage increase to $3.50 an Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for the rationale on hour. interest payments. 259 NLRB No. 112 AHRENS AIRCRAFT, INC. 839 Ahrens Aircraft, Inc. and Asociacion Internacional Judge and to adopt her recommended Order, 4 as de Maquinistas y Trabajadores Aerospaciales, modified herein. AFL-CIO. Case 24-CA-4322 The Administrative Law Judge found, in the December 29, 1981 remedy section of her Decision, that Respondent should be ordered to offer discriminatees Mercado DECISION AND ORDER and Rivera reinstatement to the jobs of which they were unlawfully deprived or, if such jobs no longer BY MEMBERS FANNING, JENKINS, AND exist, to substantially equivalent jobs, when Re- ZIMMERMAN spondent resumes operations, and that Respondent On February 19, 1981, Administrative Law should be ordered to make them whole for any Judge Arline Pacht issued the attached Decision in losses they may have suffered from the date of this proceeding. Thereafter, Respondent filed ex- their discharges, May 21, 1980, to such date as Re- ceptions and a supporting brief. spondent demonstrates during the compliance stage Pursuant to the provisions of Section 3(b) of the o f t h i s proceeding that they might have been laid National Labor Relations Act, as amended, the Na- o f f in t h e normal course of business.' She further tional Labor Relations Board has delegated its au- specified, in her recommended Order, that Re- thority in this proceeding to a three-member panel. spondent be required to offer Mercado and Rivera The Board has considered the record and the at- reinstatement as soon as Respondent resumes its tached Decision in light of the exceptions and aircraft assembly operations or has appropriate brief' and has decided to affirm the rulings, find- jobs, whichever comes first. The recommended ings, 2 and conclusions 3 of the Administrative Law remedy and Order would thus appear to assume that Mercado and Rivera would have been laid off *Respondent's motion that the Board remand this case for rehearing so a t s o m e point prior t o t h e hearing d at e . We note, that Respondent may present the testimony of Peter Ahrens, president of however, that at the beginning of the hearing coun- Ahrens Aircraft, who was unavailable for the hearing because he was out sel for Respondent Stated in arguing in Support of a of Puerto Rico and in Washington, D.C., on business, is hereby denied. Although Respondent contends that Peter Ahrens' testimony as to super- motion tO dismiss that the issues are moot because visory issues and the appropriateness of the bargaining unit is indispens- Respondent had been forced tO lay off Over 80 per- able to its case, Respondent did present several witnesses who were inti- c r t - i^ i r -i a 1- .. ti- i » mately familiar with Respondent's operations and who testified relative to c e n t o f it s employee Work force, and that the plant these matters. These witnesses included Respondent's vice president in had been temporarily shut down since late May charge of purchasing, production, and personnel, Edd Ahrens, as well as 1980. Counsel Stated at that time that there Were its production manager, Carlos Ruiz. Further, when afforded an opportu- nity by the Administrative Law Judge to make an offer of proof with Some 35 Or 36 employees, which is just really a regard to any testimony which counsel for Respondent might wish to skeleton crew, at the plant to keep the plant some- elicit from witnesses who could not be present, Respondent declined to do so. In any event, the matters which Respondent urges would be estab- what functional for their tax exemption purposes lished through the testimony of Peter Ahrens-specifically, on the super- and tO receive mail." Because it is not clear wheth- visory issue, that a high ratio of supervisors is required in the aviation er or not Mercado and Rivera would have been re- industry, and, on the unit issue, that the production ofaircraft mandates a wide variety of diverse skills, training, and personnel-would not alter tained by Respondent as part of this skeleton Crew our conclusions herein. but for Respondent's discrimination against them, 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to We Shall Clarify the Administrative Law Judge's overrule an administrative law judge's resolutions with respect to credi- recommended Order by deleting its reference tO of- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products fering Mercado and Rivera reinstatement when Re- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have spondent resumes operations or has appropriate carefully examined the record and find no bsis for reversing her find- jobs, so as not tO preclude a finding at the compli- I The Administrative Law Judge's Decision contains several apparent- ance Stage of this proceeding that they would not ly inadvertent errors which do not, however, affect the results herein. have been laid off absent the discrimination prac- First, the Administrative Law Judge lists in fn. 5 of her Decision the in- dividuals Respondent contends are supervisors. stating that there are 20 tic e d against them. We Shall also Order expunction such persons whose status is in dispute. Only 19 names are listed therein, of any reference in Respondent's files tO Mercado's the 20th individual alleged by Respondent to be a supervisor, Juan j D;,~,.'c dickarr. Martir, having been agreed by both Respondent and the General Counsel a nd Riv e ra 's discharges. to be a supervisor within the meaning of the Act. References in other portions of the Decision adverting to the 20 individuals whose status is in Member Fanning would make the bargaining order prospective in dispute are likewise in error. Second, the Administrative Law Judge nature. See his separate opinion in Beasley Energy. Inc, d/bla Praker Run refers in fn. 9 to Jt. Exh. l(b) when it is apparent from the record that Coal Company. Ohio Division #1, 228 NLRB 93 (1977). she in fact means Jt. Exh. 2. Finally, in the third paragraph of that sec- Member Jenkins would provide interest on the backpay award in ac- tion of the Decision entitled "Events in January 1980," the statement that cordance with his partial dissent in Olympic Medical Corporation, 250 several employees visited the ADT offices to complain that they had not NLRB 146 (1980). received the contractually promised wage increase of $3.50 an hour I The Administrative Law Judge apparently inadvertently failed to cite should in fact state the contractually promised wage increase to $3.50 an Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for the rationale on hour. interest payments. 259 NLRB No. 112 AHRENS AIRCRAFT, INC. 839 Ahrens Aircraft, Inc. and Asociacion Internacional Judge and to adopt her recommended Order, 4 as de Maquinistas y Trabajadores Aerospaciales, modified herein. AFL-CIO. Case 24-CA-4322 The Administrative Law Judge found, in the December 29, 1981 remedy section of her Decision, that Respondent should be ordered to offer discriminatees Mercado DECISION AND ORDER and Rivera reinstatement to the jobs of which they were unlawfully deprived or, if such jobs no longer BY MEMBERS FANNING, JENKINS, AND exist, to substantially equivalent jobs, when Re- ZIMMERMAN spondent resumes operations, and that Respondent On February 19, 1981, Administrative Law should be ordered to make them whole for any Judge Arline Pacht issued the attached Decision in losses they may have suffered from the date of this proceeding. Thereafter, Respondent filed ex- their discharges, May 21, 1980, to such date as Re- ceptions and a supporting brief. spondent demonstrates during the compliance stage Pursuant to the provisions of Section 3(b) of the o f t h i s proceeding that they might have been laid National Labor Relations Act, as amended, the Na- o f f in t h e normal course of business.' She further tional Labor Relations Board has delegated its au- specified, in her recommended Order, that Re- thority in this proceeding to a three-member panel. spondent be required to offer Mercado and Rivera The Board has considered the record and the at- reinstatement as soon as Respondent resumes its tached Decision in light of the exceptions and aircraft assembly operations or has appropriate brief' and has decided to affirm the rulings, find- jobs, whichever comes first. The recommended ings, 2 and conclusions 3 of the Administrative Law remedy and Order would thus appear to assume that Mercado and Rivera would have been laid off *Respondent's motion that the Board remand this case for rehearing so a t s o m e point prior t o t h e hearing d at e . We note, that Respondent may present the testimony of Peter Ahrens, president of however, that at the beginning of the hearing coun- Ahrens Aircraft, who was unavailable for the hearing because he was out sel for Respondent Stated in arguing in Support of a of Puerto Rico and in Washington, D.C., on business, is hereby denied. Although Respondent contends that Peter Ahrens' testimony as to super- motion tO dismiss that the issues are moot because visory issues and the appropriateness of the bargaining unit is indispens- Respondent had been forced tO lay off Over 80 per- able to its case, Respondent did present several witnesses who were inti- c r t - i^ i r -i a 1- .. ti- i » mately familiar with Respondent's operations and who testified relative to c e n t o f it s employee Work force, and that the plant these matters. These witnesses included Respondent's vice president in had been temporarily shut down since late May charge of purchasing, production, and personnel, Edd Ahrens, as well as 1980. Counsel Stated at that time that there Were its production manager, Carlos Ruiz. Further, when afforded an opportu- nity by the Administrative Law Judge to make an offer of proof with Some 35 Or 36 employees, which is just really a regard to any testimony which counsel for Respondent might wish to skeleton crew, at the plant to keep the plant some- elicit from witnesses who could not be present, Respondent declined to do so. In any event, the matters which Respondent urges would be estab- what functional for their tax exemption purposes lished through the testimony of Peter Ahrens-specifically, on the super- and tO receive mail." Because it is not clear wheth- visory issue, that a high ratio of supervisors is required in the aviation er or not Mercado and Rivera would have been re- industry, and, on the unit issue, that the production ofaircraft mandates a wide variety of diverse skills, training, and personnel-would not alter tained by Respondent as part of this skeleton Crew our conclusions herein. but for Respondent's discrimination against them, 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to We Shall Clarify the Administrative Law Judge's overrule an administrative law judge's resolutions with respect to credi- recommended Order by deleting its reference tO of- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products fering Mercado and Rivera reinstatement when Re- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have spondent resumes operations or has appropriate carefully examined the record and find no bsis for reversing her find- jobs, so as not tO preclude a finding at the compli- I The Administrative Law Judge's Decision contains several apparent- ance Stage of this proceeding that they would not ly inadvertent errors which do not, however, affect the results herein. have been laid off absent the discrimination prac- First, the Administrative Law Judge lists in fn. 5 of her Decision the in- dividuals Respondent contends are supervisors. stating that there are 20 tic e d against them. We Shall also Order expunction such persons whose status is in dispute. Only 19 names are listed therein, of any reference in Respondent's files tO Mercado's the 20th individual alleged by Respondent to be a supervisor, Juan j D;,~,.'c dickarr. Martir, having been agreed by both Respondent and the General Counsel a nd Riv e ra 's discharges. to be a supervisor within the meaning of the Act. References in other portions of the Decision adverting to the 20 individuals whose status is in Member Fanning would make the bargaining order prospective in dispute are likewise in error. Second, the Administrative Law Judge nature. See his separate opinion in Beasley Energy. Inc, d/bla Praker Run refers in fn. 9 to Jt. Exh. l(b) when it is apparent from the record that Coal Company. Ohio Division #1, 228 NLRB 93 (1977). she in fact means Jt. Exh. 2. Finally, in the third paragraph of that sec- Member Jenkins would provide interest on the backpay award in ac- tion of the Decision entitled "Events in January 1980," the statement that cordance with his partial dissent in Olympic Medical Corporation, 250 several employees visited the ADT offices to complain that they had not NLRB 146 (1980). received the contractually promised wage increase of $3.50 an hour I The Administrative Law Judge apparently inadvertently failed to cite should in fact state the contractually promised wage increase to $3.50 an Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for the rationale on hour. interest payments. 259 NLRB No. 112 AHRENS AIRCRAFT, INC. 839 Ahrens Aircraft, Inc. and Asociacion Internacional Judge and to adopt her recommended Order, 4 as de Maquinistas y Trabajadores Aerospaciales, modified herein. AFL-CIO. Case 24-CA-4322 The Administrative Law Judge found, in the December 29, 1981 remedy section of her Decision, that Respondent should be ordered to offer discriminatees Mercado DECISION AND ORDER and Rivera reinstatement to the jobs of which they were unlawfully deprived or, if such jobs no longer BY MEMBERS FANNING, JENKINS, AND exist, to substantially equivalent jobs, when Re- ZIMMERMAN spondent resumes operations, and that Respondent On February 19, 1981, Administrative Law should be ordered to make them whole for any Judge Arline Pacht issued the attached Decision in losses they may have suffered from the date of this proceeding. Thereafter, Respondent filed ex- their discharges, May 21, 1980, to such date as Re- ceptions and a supporting brief. spondent demonstrates during the compliance stage Pursuant to the provisions of Section 3(b) of the o f t h i s proceeding that they might have been laid National Labor Relations Act, as amended, the Na- o f f in t h e normal course of business.' She further tional Labor Relations Board has delegated its au- specified, in her recommended Order, that Re- thority in this proceeding to a three-member panel. spondent be required to offer Mercado and Rivera The Board has considered the record and the at- reinstatement as soon as Respondent resumes its tached Decision in light of the exceptions and aircraft assembly operations or has appropriate brief' and has decided to affirm the rulings, find- jobs, whichever comes first. The recommended ings, 2 and conclusions 3 of the Administrative Law remedy and Order would thus appear to assume that Mercado and Rivera would have been laid off *Respondent's motion that the Board remand this case for rehearing so a t s o m e point prior t o t h e hearing d at e . We note, that Respondent may present the testimony of Peter Ahrens, president of however, that at the beginning of the hearing coun- Ahrens Aircraft, who was unavailable for the hearing because he was out sel for Respondent Stated in arguing in Support of a of Puerto Rico and in Washington, D.C., on business, is hereby denied. Although Respondent contends that Peter Ahrens' testimony as to super- motion tO dismiss that the issues are moot because visory issues and the appropriateness of the bargaining unit is indispens- Respondent had been forced tO lay off Over 80 per- able to its case, Respondent did present several witnesses who were inti- c r t - i^ i r -i a 1- .. ti- i » mately familiar with Respondent's operations and who testified relative to c e n t o f it s employee Work force, and that the plant these matters. These witnesses included Respondent's vice president in had been temporarily shut down since late May charge of purchasing, production, and personnel, Edd Ahrens, as well as 1980. Counsel Stated at that time that there Were its production manager, Carlos Ruiz. Further, when afforded an opportu- nity by the Administrative Law Judge to make an offer of proof with Some 35 Or 36 employees, which is just really a regard to any testimony which counsel for Respondent might wish to skeleton crew, at the plant to keep the plant some- elicit from witnesses who could not be present, Respondent declined to do so. In any event, the matters which Respondent urges would be estab- what functional for their tax exemption purposes lished through the testimony of Peter Ahrens-specifically, on the super- and tO receive mail." Because it is not clear wheth- visory issue, that a high ratio of supervisors is required in the aviation er or not Mercado and Rivera would have been re- industry, and, on the unit issue, that the production ofaircraft mandates a wide variety of diverse skills, training, and personnel-would not alter tained by Respondent as part of this skeleton Crew our conclusions herein. but for Respondent's discrimination against them, 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to We Shall Clarify the Administrative Law Judge's overrule an administrative law judge's resolutions with respect to credi- recommended Order by deleting its reference tO of- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products fering Mercado and Rivera reinstatement when Re- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have spondent resumes operations or has appropriate carefully examined the record and find no bsis for reversing her find- jobs, so as not tO preclude a finding at the compli- I The Administrative Law Judge's Decision contains several apparent- ance Stage of this proceeding that they would not ly inadvertent errors which do not, however, affect the results herein. have been laid off absent the discrimination prac- First, the Administrative Law Judge lists in fn. 5 of her Decision the in- dividuals Respondent contends are supervisors. stating that there are 20 tic e d against them. We Shall also Order expunction such persons whose status is in dispute. Only 19 names are listed therein, of any reference in Respondent's files tO Mercado's the 20th individual alleged by Respondent to be a supervisor, Juan j D;,~,.'c dickarr. Martir, having been agreed by both Respondent and the General Counsel a nd Riv e ra 's discharges. to be a supervisor within the meaning of the Act. References in other portions of the Decision adverting to the 20 individuals whose status is in Member Fanning would make the bargaining order prospective in dispute are likewise in error. Second, the Administrative Law Judge nature. See his separate opinion in Beasley Energy. Inc, d/bla Praker Run refers in fn. 9 to Jt. Exh. l(b) when it is apparent from the record that Coal Company. Ohio Division #1, 228 NLRB 93 (1977). she in fact means Jt. Exh. 2. Finally, in the third paragraph of that sec- Member Jenkins would provide interest on the backpay award in ac- tion of the Decision entitled "Events in January 1980," the statement that cordance with his partial dissent in Olympic Medical Corporation, 250 several employees visited the ADT offices to complain that they had not NLRB 146 (1980). received the contractually promised wage increase of $3.50 an hour I The Administrative Law Judge apparently inadvertently failed to cite should in fact state the contractually promised wage increase to $3.50 an Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for the rationale on hour. interest payments. 259 NLRB No. 112 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER To engage in activities together for the Pursuant to Section 10(c) of the National Labor purpose of collective bargaining or other Relations Act, as amended, the National Labor Re- mutual aid or protection lations Board adopts as its Order the recommended To refrain from the exercise of any or all Order of the Administrative Law Judge, as modi-such activities. fied below, and hereby orders that the Respondent, Accordingly, we give employees these assur- Ahrens Aircraft, Inc., Aguadilla, Puerto Rico, its ances: officers, agents, successors, and assigns, shall take WE WILL NOT discharge terminate lay off, the action set forth in the said recommended or refuse or fail to reinstate, recall, or rehire Order, as so modified: employees for engaging in union activity or 1. Substitute the following for paragraph 2(a):employees for engaging in union activity or "(a) Offer Eduardo Mercado and Frederick for exercising any right under the Act. Rivera immediate and full reinstatement to their WE WILL NOT threaten employees with dis- former positions or, if such positions no longer charge, plant closure, or any other reprisals exist, to substantially equivalent positions, without for engaging in union or other protected con- prejudice to their seniority or other rights and certed activity. privileges previously enjoyed, and make them WE WILL NOT create the impression that we whole for any loss of pay they may have suffered are keeping employees' union activities under as a result of the discrimination practiced against surveillance. them in the manner set forth in the section of this WE WILL NOT instruct employees they are Decision entitled 'The Remedy."' ineligible to join a union. 2. Insert the following as paragraph 2(b): WE WILL NOT question employees concern- "(b) Expunge from its files any reference to the ing their interest in or sympathies for the discharges of Eduardo Mercado and Frederick Union. Rivera on May 21, 1980, and notify them in writ- WE WILL NOT reprimand or otherwise disci- ing that this has been done and that evidence of pline employees for engaging in union activi- these unlawful actions will not be used as a basis ties or any activity protected under the Act. for future discipline against them." WE WILL NOT maintain in effect the rule in 3. Insert the following as paragraph 2(c) and re- the Employee Handbook which prohibits the letter the subsequent paragraphs accordingly: distribution of unauthorized material on com- "(c) Preserve and, upon request, make available pany property during nonworking hours. to the Board or its agents, for examination and WE WILL NOT otherwise violate the Act di- copying, all payroll records, social security pay- rectly or indirectly in order to destroy or dissi- ment records, timecards, personnel records and re- pate the collective-bargaining status of the ports, and all other records necessary to determine lawfully designated union representative. the amount of backpay due under the terms of this WE WILL NOT in any other manner interfere Order." with, restrain, or coerce employees in the exer- 4. Substitute the attached notice for that of the cise of any of the rights set forth at the top of Administrative Law Judge. this notice. WE WILL offer Eduardo Mercado and Fred- erick Rivera immediate and full reinstatement NOTICE To EMPLOYEES to their former jobs or, if those jobs no longer POSTED BY ORDER OF THE exist, to substantially equivalent jobs, and WE NATIONAL LABOR RELATIONS BOARD WILL make each of them whole, with interest, An Agency of the United States Government for all moneys lost as a result of their dismissal from work on May 21, 1980. After a hearing at which all sides had an opportu- WE WILL expunge from our files any refer- nity to present evidence and state their positions, ences to the discharges of Eduardo Mercado the National Labor Relations Board found that we and Frederick Rivera on May 21, 1980, and have violated the National Labor Relations Act, as WE WILL notify them both that this has been amended, and has ordered us to post this notice. done and that evidence of these unlawful ac- The Act gives employees the following rights: tions will not be used as a basis for future dis- To engage in self-organization cipline against them. To form, join, or assist any union WE WILL immediately recognize and, upon To bargain collectively through repre- request, bargain with Asociacion Internacional sentatives of their own choice de Maquinistas y Trabajadores Aerospaciales, 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER To engage in activities together for the Pursuant to Section 10(c) of the National Labor purpose o f c o ll e c tiv e bargaining or other Relations Act, as amended, the National Labor Re- mutual aid or protection lations Board adopts as its Order the recommended T o r e fr a in fr o m t h e e x e rc is e o f any o r a ll Order of the Administrative Law Judge, as modi- s u c h activties. fied below, and hereby orders that the Respondent, Accordingly, we give employees these assur- Ahrens Aircraft, Inc., Aguadilla, Puerto Rico, its ances: officers, agents, successors, and assigns, shall take W W discharge, terminate, lay off, the action set forth in the said recommended^ ^^^^^ ^ ^ the acion st fort in te saidrecomendedor refuse or fail to reinstate, recall, or rehire Orderb~ut~the'following for paragrapif2(a):employees for engaging in union activity or 1. Substitute the following for paragraph 2(a):foexringayihtudrheA. "(a) Offer Eduardo Mercado and Frederickfor exercising any right under the Act. Rivera immediate and full reinstatement to their c W E W ILL N O T t h r e a t e n employees with dis- former positions or, if such positions no longer fc h r en pglantg closure, or any other reprisals exist, to substantially equivalent positions, without f o r ^Sgs in union or other protected con- prejudice to their seniority or other rights andWcerted activity. privileges previously enjoyed, and make themaWE WILL NOT create the impression that we whole for any loss of pay they may have suffered a r e ^ '"S employees' union activities under as a result of the discrimination practiced againstsurveillance. them in the manner set forth in the section of this W E WILL NOT instruct employees they are Decision entitled 'The Remedy."' ineligible to join a union. 2. Insert the following as paragraph 2(b): W E WILL NOT question employees concern- "(b) Expunge from its files any reference to the ing their interest in or sympathies for the discharges of Eduardo Mercado and Frederick Union. Rivera on May 21, 1980, and notify them in writ- WE WILL NOT reprimand or otherwise disci- ing that this has been done and that evidence of pline employees for engaging in union activi- these unlawful actions will not be used as a basis ties or any activity protected under the Act. for future discipline against them." WE WILL NOT maintain in effect the rule in 3. Insert the following as paragraph 2(c) and re- the Employee Handbook which prohibits the letter the subsequent paragraphs accordingly: distribution of unauthorized material on com- "(c) Preserve and, upon request, make available pany property during nonworking hours. to the Board or its agents, for examination and WE WILL NOT otherwise violate the Act di- copying, all payroll records, social security pay- rectly or indirectly in order to destroy or dissi- ment records, timecards, personnel records and re- pate the collective-bargaining status of the ports, and all other records necessary to determine lawfully designated union representative. the amount of backpay due under the terms of this WE WILL NOT in any other manner interfere Order." with, restrain, or coerce employees in the exer- 4. Substitute the attached notice for that of the cise of any of the rights set forth at the top of Administrative Law Judge. this notice. WE WILL offer Eduardo Mercado and Fred- erick Rivera immediate and full reinstatement NOTICE To EMPLOYEES to their former jobs or, if those jobs no longer POSTED BY ORDER OF THE exist, to substantially equivalent jobs, and WE NATIONAL LABOR RELATIONS BOARD WILL make each of them whole, with interest, An Agency of the United States Government for all moneys lost as a result of their dismissal from work on May 21, 1980. After a hearing at which all sides had an opportu- WE WILL expunge from our files any refer- nity to present evidence and state their positions, ences to the discharges of Eduardo Mercado the National Labor Relations Board found that we and Frederick Rivera on May 21, 1980, and have violated the National Labor Relations Act, as WE WILL notify them both that this has been amended, and has ordered us to post this notice,.done and that evidence of these unlawful ac- The Act gives employees the following rights: tions will not be used as a basis for future dis- To engage in self-organization cipline against them. To form, join, or assist any union WE WILL immediately recognize and, upon To bargain collectively through repre- request, bargain with Asociacion Internacional sentatives of their own choice de Maquinistas y Trabajadores Aerospaciales, 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER To engage in activities together for the Pursuant to Section 10(c) of the National Labor purpose o f c o ll e c tiv e bargaining or other Relations Act, as amended, the National Labor Re- mutual aid or protection lations Board adopts as its Order the recommended T o r e fr a in fr o m t h e e x e rc is e o f any o r a ll Order of the Administrative Law Judge, as modi- s u c h activities. fied below, and hereby orders that the Respondent, Accordingly, we give employees these assur- Ahrens Aircraft, Inc., Aguadilla, Puerto Rico, its ances: officers, agents, successors, and assigns, shall take W W discharge, terminate, lay off, the action set forth in the said recommended^ ^^^^^ ^ ^ the acion st fort in te saidrecomendedor refuse or fail to reinstate, recall, or rehire Orderb~ut~the'following for paragrapif2(a):employees for engaging in union activity or 1. Substitute the following for paragraph 2(a):foexringayihtudrheA. "(a) Offer Eduardo Mercado and Frederickfor exercising any right under the Act. Rivera immediate and full reinstatement to their c W E W ILL N O T t h r e a t e n employees with dis- former positions or, if such positions no longer fc h r en pglantg closure, or any other reprisals exist, to substantially equivalent positions, without f o r ^Sgs in union or other protected con- prejudice to their seniority or other rights andWcerted activity. privileges previously enjoyed, and make themaWE WILL NOT create the impression that we whole for any loss of pay they may have suffered a r e ^ '"S employees' union activities under as a result of the discrimination practiced againstsurveillance. them in the manner set forth in the section of this W E WILL NOT instruct employees they are Decision entitled 'The Remedy."' ineligible to join a union. 2. Insert the following as paragraph 2(b): W E WILL NOT question employees concern- "(b) Expunge from its files any reference to the ing their interest in or sympathies for the discharges of Eduardo Mercado and Frederick Union. Rivera on May 21, 1980, and notify them in writ- WE WILL NOT reprimand or otherwise disci- ing that this has been done and that evidence of pline employees for engaging in union activi- these unlawful actions will not be used as a basis ties or any activity protected under the Act. for future discipline against them." WE WILL NOT maintain in effect the rule in 3. Insert the following as paragraph 2(c) and re- the Employee Handbook which prohibits the letter the subsequent paragraphs accordingly: distribution of unauthorized material on com- "(c) Preserve and, upon request, make available pany property during nonworking hours. to the Board or its agents, for examination and WE WILL NOT otherwise violate the Act di- copying, all payroll records, social security pay- rectly or indirectly in order to destroy or dissi- ment records, timecards, personnel records and re- pate the collective-bargaining status of the ports, and all other records necessary to determine lawfully designated union representative. the amount of backpay due under the terms of this WE WILL NOT in any other manner interfere Order." with, restrain, or coerce employees in the exer- 4. Substitute the attached notice for that of the cise of any of the rights set forth at the top of Administrative Law Judge. this notice. WE WILL offer Eduardo Mercado and Fred- erick Rivera immediate and full reinstatement NOTICE To EMPLOYEES to their former jobs or, if those jobs no longer POSTED BY ORDER OF THE exist, to substantially equivalent jobs, and WE NATIONAL LABOR RELATIONS BOARD WILL make each of them whole, with interest, An Agency of the United States Government for all moneys lost as a result of their dismissal from work on May 21, 1980. After a hearing at which all sides had an opportu- WE WILL expunge from our files any refer- nity to present evidence and state their positions, ences to the discharges of Eduardo Mercado the National Labor Relations Board found that we and Frederick Rivera on May 21, 1980, and have violated the National Labor Relations Act, as WE WILL notify them both that this has been amended, and has ordered us to post this notice,.done and that evidence of these unlawful ac- The Act gives employees the following rights: tions will not be used as a basis for future dis- To engage in self-organization cipline against them. To form, join, or assist any union WE WILL immediately recognize and, upon To bargain collectively through repre- request, bargain with Asociacion Internacional sentatives of their own choice de Maquinistas y Trabajadores Aerospaciales, 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER To engage in activities together for the Pursuant to Section 10(c) of the National Labor purpose o f c o ll e c tiv e bargaining or other Relations Act, as amended, the National Labor Re- mutual aid or protection lations Board adopts as its Order the recommended T o r e fr a in fr o m t h e e x e rc is e o f any o r a ll Order of the Administrative Law Judge, as modi- s u c h activities. fied below, and hereby orders that the Respondent, Accordingly, we give employees these assur- Ahrens Aircraft, Inc., Aguadilla, Puerto Rico, its ances: officers, agents, successors, and assigns, shall take W W discharge, terminate, lay off, the action set forth in the said recommended^ ^^^^^ ^ ^ the acion st fort in te saidrecomendedor refuse or fail to reinstate, recall, or rehire Orderb~ut~the'following for paragrapif2(a):employees for engaging in union activity or 1. Substitute the following for paragraph 2(a):foexringayihtudrheA. "(a) Offer Eduardo Mercado and Frederickfor exercising any right under the Act. Rivera immediate and full reinstatement to their c W E W ILL N O T t h r e a t e n employees with dis- former positions or, if such positions no longer fc h r en pglantg closure, or any other reprisals exist, to substantially equivalent positions, without f o r ^Sgs in union or other protected con- prejudice to their seniority or other rights andWcerted activity. privileges previously enjoyed, and make themaWE WILL NOT create the impression that we whole for any loss of pay they may have suffered a r e ^ '"S employees' union activities under as a result of the discrimination practiced againstsurveillance. them in the manner set forth in the section of this W E WILL NOT instruct employees they are Decision entitled 'The Remedy."' ineligible to join a union. 2. Insert the following as paragraph 2(b): W E WILL NOT question employees concern- "(b) Expunge from its files any reference to the ing their interest in or sympathies for the discharges of Eduardo Mercado and Frederick Union. Rivera on May 21, 1980, and notify them in writ- WE WILL NOT reprimand or otherwise disci- ing that this has been done and that evidence of pline employees for engaging in union activi- these unlawful actions will not be used as a basis ties or any activity protected under the Act. for future discipline against them." WE WILL NOT maintain in effect the rule in 3. Insert the following as paragraph 2(c) and re- the Employee Handbook which prohibits the letter the subsequent paragraphs accordingly: distribution of unauthorized material on com- "(c) Preserve and, upon request, make available pany property during nonworking hours. to the Board or its agents, for examination and WE WILL NOT otherwise violate the Act di- copying, all payroll records, social security pay- rectly or indirectly in order to destroy or dissi- ment records, timecards, personnel records and re- pate the collective-bargaining status of the ports, and all other records necessary to determine lawfully designated union representative. the amount of backpay due under the terms of this WE WILL NOT in any other manner interfere Order." with, restrain, or coerce employees in the exer- 4. Substitute the attached notice for that of the cise of any of the rights set forth at the top of Administrative Law Judge. this notice. WE WILL offer Eduardo Mercado and Fred- erick Rivera immediate and full reinstatement NOTICE To EMPLOYEES to their former jobs or, if those jobs no longer POSTED BY ORDER OF THE exist, to substantially equivalent jobs, and WE NATIONAL LABOR RELATIONS BOARD WILL make each of them whole, with interest, An Agency of the United States Government for all moneys lost as a result of their dismissal from work on May 21, 1980. After a hearing at which all sides had an opportu- WE WILL expunge from our files any refer- nity to present evidence and state their positions, ences to the discharges of Eduardo Mercado the National Labor Relations Board found that we and Frederick Rivera on May 21, 1980, and have violated the National Labor Relations Act, as WE WILL notify them both that this has been amended, and has ordered us to post this notice,.done and that evidence of these unlawful ac- The Act gives employees the following rights: tions will not be used as a basis for future dis- To engage in self-organization cipline against them. To form, join, or assist any union WE WILL immediately recognize and, upon To bargain collectively through repre- request, bargain with Asociacion Internacional sentatives of their own choice de Maquinistas y Trabajadores Aerospaciales, AHRENS AIRCRAFT, INC. 841 AFL-CIO, as the exclusive representative of I find that Respondent is an employer engaged in corn- all the employees in the unit described below merce within the meaning of Section 2(2), (6), and (7) of with respect to wages, hours, and other terms the Act. and conditions of employment and, if an un- The Union is, and has been at all times material herein, derstanding is reached, WE WILL put such un- a labor organization within the meaning of Section 2(5) derstanding into a written contract which we e will sign. The appropriate unit is: I. SUPERVISORY ISSUES All production and maintenance employees A. The Evience of Ahrens Aircraft, Inc., employed at its plant, exclusive of all other employees, 1. Plant structure office clerical employees, guards and super- visors as defined in Section 2(11) of the Na- The parties stipulated that as of May 23, 1980, 118 em- tional Labor Relations Act, as amended. ployees comprised the Ahrens Aircraft work force, and that, of this number, 113 signed authorization cards, in- cluding 20 persons who Respondent contends and the AHRENS AIRCRAFT, INC. General Counsel denies were supervisors within the n ~DECI~SION~ ~meaning of Section 2(11) of the Act. Respondent's organizational structure was multitiered, STATEMENT OF THE CASE with members of the Ahrens family occupying the most senior positions. Peter Ahrens serves as the Company's ARLINE PACHT, Administrative Law Judge: This case president; his wife Magda Juame is comptroller; one son, was heard in Mayaguez, Puerto Rico, on October 14-16, Edd Ahrens, is vice president in charge of production, 1980, pursuant to a charge filed on May 23, 1980, by purchasing, and personnel; a second son, Kim Ahrens, is Asociacion Internacional de Maguinistas y Trabajadores vice president of engineering. At the next lower rung of Aerospaciales, AFL-CIO, and a complaint which issued responsibility, with daily and immediate oversight over on August 8, and was amended on August 18, 1980. A employees in three operating divisions, as of May 1980, timely answer was filed on August 20, 1980. The ques- was Carlos Ruiz who reported to Edd Ahrens. Jose Mo- tions presented are whether (a) Respondent, Ahrens Air- rales, project engineer, who reported to Kim Ahrens, oc- craft, Inc., violated Section 8(a)(1) of the National Labor cupied a similar position of authority with respect to the Relations Act, as amended, by (1) threatening its em- two other divisions. Each major division was headed by ployees with plant closure if they supported a union or a senior supervisor. Three of these divisions, those under engaged in concerted activities, (2) maintaining and en- John Rodriguez, Anthony Acosta, 2 and Carlos Rivera, forcing an overly broad no-distribution rule, (3) threaten- were divided into some five or six shops.3 Each such ing employees with discharge if they joined the Union, shop was under the direction of a "junior supervisor," as (4) improperly interrogating them about their concerted Respondent referred to them, and several of the shops activities, and (5) creating the impression of surveillance; were subdivided into sections.4 It is the status of the em- (b) violated Section 8(a)(3) and (1) by discharging ployees heading each of the shops and shop sections Freddy Rivera and Eduardo Mercado; (c) Rivera and which is in dispute here. Mercado and 18 other employees were supervisors within the meaning of Section 2(11) of the Act, (d) within the meaning of Section 2(11) of the Act, (d) Respondent neither admitted nor denied that the Union is a labor or- whether the unit defined in the complaint is appropriate, ganization within the meaning of the Act. Accordingly, pursuant to and (e) in the circumstances of this case, a bargaining F.R.C.P. 8(b) and (d), the allegation will be deemed admitted. order is appropriate. I In April 1980, Rodriguez and Acosta became assistant plant managers the record, including the demeanor of the wit- to Ruiz. However, the record does not suggest that their duties changed Upon the record, including the demeanor of the wit- with respect to the management of the shops within their divisions. At nesses, and after due consideration of the briefs filed by the same time that Rodriguez and Acosta received new titles, they and counsel for the General Counsel and for Respondent, I other division chiefs became salaried employees. hereby make the following: 3 The other two major divisions, drafting and quality control, had only eight employees each and, therefore, functioned as single units. 4 The wing shop, under the direction of Senior Supervisor Robert FINDINGS OF FACT McQue. had two sections: Wing I which was headed by Freddy Rivera and wing II by George Montalvo. Similarly, the fuselage shop was di- I. JURISDICTION rected by Jose Christy with two sections led by Hiram Enchautegui and Juan Mendez. Respondent, a Delaware corporation, maintains an 'The 20 men who Respondent contends were supervisors, the shop to office and place of business (hereafter called the plant) in which each was assigned, and the number of employees working with Aguadilla, Puerto Rico, where it is engaged in the them are as follows: Ariel Berrios--horizontal tail (2); Jose Christy-fu- selage; Hiram Enchautegui-fuselage I (5); Juan Mendez-fuselage 11 (5); design, manufacture, and sale of a prototype aircraft. Adalberto Cuadrado- (2); Manuel Lopez-fluid systems (none); Melvin During the 12 months preceding the issuance of the com- Martinez-engine instruments (2); Eduardo Mercado-experimental (I); plaint, a representative period, Respondent purchased Abraham Mora-sponson (2); Nicholas Ramirez-flight deck (2); George and received at its plant goods and materials valued in Montalvo-wing 11(3); Freddy Rivera--wing (5); Luis Rivera-control surfaces (8); Wilfredo Ramos--paris shop I (9): Neftali Rodriguez-parts excess of $50,000 which were transported directly from shop 11 (7); Julio Lopez-parts shop III (7); Juan Salas-tailgate doors points outside Puerto Rico. (5); Alfredo Sosa-drafting (7); Jose Valentin-hydraulics (6). AHRENS AIRCRAFT, INC. 841 AFL-CIO, as the exclusive representative of I find that Respondent is an employer engaged in com- all the employees in the unit described below merce within the meaning of Section 2(2), (6), and (7) of with respect to wages, hours, and other terms the Act. and conditions of employment and, if an un- T h e U n i o n is, and has been at all times material herein, derstanding is reached, WE WILL put such un- a labor organization within the meaning of Section 2(5) derstanding into a written contract which we o e c t. will sign. The appropriate unit is: IL SUPERVISORY ISSUES All production and maintenance employeesA The Eiec of Ahrens Aircraft, Inc., employed at its plant, exclusive of all other employees, 1. Plant structure office clerical employees, guards and super- visors as defined in Section 2(11) of the Na- T h e parties stipulated that as of May 23, 1980, 118 em- tional Labor Relations Act, as amended. ployees comprised th e A h ren s A ircraft wo rk fo rce , and that, of this number, 113 signed authorization cards, in- cluding 20 persons who Respondent contends and the AHRENS AIRCRAFT, INC. General Counsel denies were supervisors within the DECISION meaning of Section 2(11) of the Act. Respondent's organizational structure was multitiered, STATEMENT OF THE CASE with members of the Ahrens family occupying the most senior positions. Peter Ahrens serves as the Company's ARLINE PACHT, Administrative Law Judge: This case president; his wife Magda Juame is comptroller; one son, was heard in Mayaguez, Puerto Rico, on October 14-16, Edd Ahrens, is vice president in charge of production, 1980, pursuant to a charge filed on May 23, 1980, by purchasing, and personnel; a second son, Kim Ahrens, is Asociacion Internacional de Maguinistas y Trabajadores vice president of engineering. At the next lower rung of Aerospaciales, AFL-CIO, and a complaint which issued responsibility, with daily and immediate oversight over on August 8, and was amended on August 18, 1980. A employees in three operating divisions, as of May 1980, timely answer was filed on August 20, 1980. The ques- was Carlos Ruiz who reported to Edd Ahrens. Jose Mo- tions presented are whether (a) Respondent, Ahrens Air- rales, project engineer, who reported to Kim Ahrens, oc- craft, Inc., violated Section 8(a)(l) of the National Labor cupied a similar position of authority with respect to the Relations Act, as amended, by (1) threatening its em- two other divisions. Each major division was headed by ployees with plant closure if they supported a union or a senior supervisor. Three of these divisions, those under engaged in concerted activities, (2) maintaining and en- John Rodriguez, Anthony Acosta,' and Carlos Rivera, forcing an overly broad no-distribution rule, (3) threaten- were divided into some five or six shops. 3 Each such ing employees with discharge if they joined the Union, shop was under the direction of a "junior supervisor," as (4) improperly interrogating them about their concerted Respondent referred to them, and several of the shops activities, and (5) creating the impression of surveillance; were subdivided into sections.4 It is the status of the em- (b) violated Section 8(a)(3) and (1) by discharging ployees heading each of the shops and shop sections Freddy Rivera and Eduardo Mercado; (c) Rivera and which is in dispute here.' Mercado and 18 other employees were supervisors within the meaning of Section 2(11) of the Act, (d) ~., .,.,, . within the meaning of.. Section 2.11' of the Act,( ' Respondent neither admitted nor denied that the Union is a labor or- whether the unit defined in the complaint is appropriate, ganization within the meaning of the Act. Accordingly, pursuant to and (e) in the circumstances of this case, a bargaining F.R.C.P. 8(b) and (d), the allegation will be deemed admitted. order is appropriate. I In April 1980, Rodriguez and Acosta became assistant plant managers Upon the record, including the demeanor of the wit- to Ruiz. However, the record does not suggest that their duties changed Upon te recrd, inludin the dmeano of th wit- with respect to the management of the shops within their divisions. At nesses, and after due consideration of the briefs filed by the same time that Rodriguez and Acosta received new titles, they and counsel for the General Counsel and for Respondent, I other division chiefs became salaried employees. hereby make the following: 3 T h e o t her tw o major divisions, drafting and quality control, had only eight employees each and, therefore, functioned as single units. ' The wing shop, under the direction of Senior Supervisor Robert FINDINGS OF FACT McQue, had two sections: Wing I which was headed by Freddy Rivera and wing II by George Montalvo. Similarly, the fuselage shop was di- 1. JURISDICTION rected by Jose Christy with two sections led by Hiram Enchautegui and Juan Mendez. Respondent, a Delaware corporation, maintains an 'The 20 men who Respondent contends were supervisors, the shop to office and place of business (hereafter called the plant) in w hich each was assigned, and the number of employees working with Aguadilla, Puerto Rico, where it is engaged in the them are as follows: Ariel Berris--horizontal tail (2); Jose Christy-fu- selage; Hiram Enchautegui-fuselage I (5); Juan Mendez-fluselage 11 (5); design, manufacture, and Sale Of a prototype aircraft. Adalberto Cuadrado- (2); Manuel Lopez-fluid systems (none); Melvin During the 12 months preceding the issuance of the com- Martinez-engine instruments (2); Eduardo Mercado-experimental (1); plaint, a representative period, Respondent purchased Abraham Mora-sponson (2); Nicholas Ramirez-fnight deck (2); George and received at its plant goods and materials valued in Montalvo--wing 11(3); Freddy Rivera--wing 1(5); Luis Rivera-zontrol surfaces (8); Wilfredo Ramos--parts shop 1 (9); Neftali Rodriguez--parts excess of $50,000 which were transported directly from shop If (7); Julio Lopez-parts shop III (7); Juan Salas-tailgate doors points outside Puerto Rico. (5); Alfredo Sosa-drafting (7); Jose Valentin-hydraulics (6). AHRENS AIRCRAFT, INC. 841 AFL-CIO, as the exclusive representative of I find that Respondent is an employer engaged in com- all the employees in the unit described below merce within the meaning of Section 2(2), (6), and (7) of with respect to wages, hours, and other terms the A c t. and conditions of employment and, if an un- T h e U n i o n is, and has been at all times material herein, derstanding is reached, WE WILL put such un- a labor organization within the meaning of Section 2(5) derstanding into a written contract which we o e c t. will sign. The appropriate unit is: IL SUPERVISORY ISSUES All production and maintenance employeesA The Eiec of Ahrens Aircraft, Inc., employed at its plant, exclusive of all other employees, 1. Plant structure office clerical employees, guards and super- visors as defined in Section 2(11) of the Na- T h e parties stipulated that as of May 23, 1980, 118 em- tional Labor Relations Act, as amended. ployees comprised th e A h ren s A ircraft wo rk fo rce , and that, of this number, 113 signed authorization cards, in- cluding 20 persons who Respondent contends and the AHRENS AIRCRAFT, INC. General Counsel denies were supervisors within the DECISION meaning of Section 2(11) of the Act. Respondent's organizational structure was multitiered, STATEMENT OF THE CASE with members of the Ahrens family occupying the most senior positions. Peter Ahrens serves as the Company's ARLINE PACHT, Administrative Law Judge: This case president; his wife Magda Juame is comptroller; one son, was heard in Mayaguez, Puerto Rico, on October 14-16, Edd Ahrens, is vice president in charge of production, 1980, pursuant to a charge filed on May 23, 1980, by purchasing, and personnel; a second son, Kim Ahrens, is Asociacion Internacional de Maguinistas y Trabajadores vice president of engineering. At the next lower rung of Aerospaciales, AFL-CIO, and a complaint which issued responsibility, with daily and immediate oversight over on August 8, and was amended on August 18, 1980. A employees in three operating divisions, as of May 1980, timely answer was filed on August 20, 1980. The ques- was Carlos Ruiz who reported to Edd Ahrens. Jose Mo- tions presented are whether (a) Respondent, Ahrens Air- rales, project engineer, who reported to Kim Ahrens, oc- craft, Inc., violated Section 8(a)(l) of the National Labor cupied a similar position of authority with respect to the Relations Act, as amended, by (1) threatening its em- two other divisions. Each major division was headed by ployees with plant closure if they supported a union or a senior supervisor. Three of these divisions, those under engaged in concerted activities, (2) maintaining and en- John Rodriguez, Anthony Acosta,' and Carlos Rivera, forcing an overly broad no-distribution rule, (3) threaten- were divided into some five or six shops. 3 Each such ing employees with discharge if they joined the Union, shop was under the direction of a "junior supervisor," as (4) improperly interrogating them about their concerted Respondent referred to them, and several of the shops activities, and (5) creating the impression of surveillance; were subdivided into sections.4 It is the status of the em- (b) violated Section 8(a)(3) and (1) by discharging ployees heading each of the shops and shop sections Freddy Rivera and Eduardo Mercado; (c) Rivera and which is in dispute here.' Mercado and 18 other employees were supervisors within the meaning of Section 2(11) of the Act, (d) ~., .,.,, . within the meaning of.. Section 2.11' of the Act,( ' Respondent neither admitted nor denied that the Union is a labor or- whether the unit defined in the complaint is appropriate, ganization within the meaning of the Act. Accordingly, pursuant to and (e) in the circumstances of this case, a bargaining F.R.C.P. 8(b) and (d), the allegation will be deemed admitted. order is appropriate. I In April 1980, Rodriguez and Acosta became assistant plant managers Upon the record, including the demeanor of the wit- to Ruiz. However, the record does not suggest that their duties changed Upon te recrd, inludin the dmeano of th wit- with respect to the management of the shops within their divisions. At nesses, and after due consideration of the briefs filed by the same time that Rodriguez and Acosta received new titles, they and counsel for the General Counsel and for Respondent, I other division chiefs became salaried employees. hereby make the following: 3 T h e o t her tw o major divisions, drafting and quality control, had only eight employees each and, therefore, functioned as single units. ' The wing shop, under the direction of Senior Supervisor Robert FINDINGS OF FACT McQue, had two sections: Wing I which was headed by Freddy Rivera and wing II by George Montalvo. Similarly, the fuselage shop was di- 1. JURISDICTION rected by Jose Christy with two sections led by Hiram Enchautegui and Juan Mendez. Respondent, a Delaware corporation, maintains an 'The 20 men who Respondent contends were supervisors, the shop to office and place of business (hereafter called the plant) in w hich each was assigned, and the number of employees working with Aguadilla, Puerto Rico, where it is engaged in the them are as follows: Ariel Berris--horizontal tail (2); Jose Christy-fu- selage; Hiram Enchautegui-fuselage I (5); Juan Mendez-fluselage 11 (5); design, manufacture, and Sale Of a prototype aircraft. Adalberto Cuadrado- (2); Manuel Lopez-fluid systems (none); Melvin During the 12 months preceding the issuance of the com- Martinez-engine instruments (2); Eduardo Mercado-experimental (1); plaint, a representative period, Respondent purchased Abraham Mora-sponson (2); Nicholas Ramirez-fnight deck (2); George and received at its plant goods and materials valued in Montalvo--wing 11(3); Freddy Rivera--wing 1(5); Luis Rivera-zontrol surfaces (8); Wilfredo Ramos--parts shop 1 (9); Neftali Rodriguez--parts excess of $50,000 which were transported directly from shop If (7); Julio Lopez-parts shop III (7); Juan Salas-tailgate doors points outside Puerto Rico. (5); Alfredo Sosa-drafting (7); Jose Valentin-hydraulics (6). AHRENS AIRCRAFT, INC. 841 AFL-CIO, as the exclusive representative of I find that Respondent is an employer engaged in com- all the employees in the unit described below merce within the meaning of Section 2(2), (6), and (7) of with respect to wages, hours, and other terms the A c t. and conditions of employment and, if an un- T h e U n i o n is, and has been at all times material herein, derstanding is reached, WE WILL put such un- a labor organization within the meaning of Section 2(5) derstanding into a written contract which we o e c t. will sign. The appropriate unit is: IL SUPERVISORY ISSUES All production and maintenance employeesA The Eiec of Ahrens Aircraft, Inc., employed at its plant, exclusive of all other employees, 1. Plant structure office clerical employees, guards and super- visors as defined in Section 2(11) of the Na- T h e parties stipulated that as of May 23, 1980, 118 em- tional Labor Relations Act, as amended. ployees comprised th e A h ren s A ircraft wo rk fo rce , and that, of this number, 113 signed authorization cards, in- cluding 20 persons who Respondent contends and the AHRENS AIRCRAFT, INC. General Counsel denies were supervisors within the DECISION meaning of Section 2(11) of the Act. Respondent's organizational structure was multitiered, STATEMENT OF THE CASE with members of the Ahrens family occupying the most senior positions. Peter Ahrens serves as the Company's ARLINE PACHT, Administrative Law Judge: This case president; his wife Magda Juame is comptroller; one son, was heard in Mayaguez, Puerto Rico, on October 14-16, Edd Ahrens, is vice president in charge of production, 1980, pursuant to a charge filed on May 23, 1980, by purchasing, and personnel; a second son, Kim Ahrens, is Asociacion Internacional de Maguinistas y Trabajadores vice president of engineering. At the next lower rung of Aerospaciales, AFL-CIO, and a complaint which issued responsibility, with daily and immediate oversight over on August 8, and was amended on August 18, 1980. A employees in three operating divisions, as of May 1980, timely answer was filed on August 20, 1980. The ques- was Carlos Ruiz who reported to Edd Ahrens. Jose Mo- tions presented are whether (a) Respondent, Ahrens Air- rales, project engineer, who reported to Kim Ahrens, oc- craft, Inc., violated Section 8(a)(l) of the National Labor cupied a similar position of authority with respect to the Relations Act, as amended, by (1) threatening its em- two other divisions. Each major division was headed by ployees with plant closure if they supported a union or a senior supervisor. Three of these divisions, those under engaged in concerted activities, (2) maintaining and en- John Rodriguez, Anthony Acosta,' and Carlos Rivera, forcing an overly broad no-distribution rule, (3) threaten- were divided into some five or six shops. 3 Each such ing employees with discharge if they joined the Union, shop was under the direction of a "junior supervisor," as (4) improperly interrogating them about their concerted Respondent referred to them, and several of the shops activities, and (5) creating the impression of surveillance; were subdivided into sections.4 It is the status of the em- (b) violated Section 8(a)(3) and (1) by discharging ployees heading each of the shops and shop sections Freddy Rivera and Eduardo Mercado; (c) Rivera and which is in dispute here.' Mercado and 18 other employees were supervisors within the meaning of Section 2(11) of the Act, (d) ~., .,.,, . within the meaning of.. Section 2.11' of the Act,( ' Respondent neither admitted nor denied that the Union is a labor or- whether the unit defined in the complaint is appropriate, ganization within the meaning of the Act. Accordingly, pursuant to and (e) in the circumstances of this case, a bargaining F.R.C.P. 8(b) and (d), the allegation will be deemed admitted. order is appropriate. I In April 1980, Rodriguez and Acosta became assistant plant managers Upon the record, including the demeanor of the wit- to Ruiz. However, the record does not suggest that their duties changed Upon te recrd, inludin the dmeano of th wit- with respect to the management of the shops within their divisions. At nesses, and after due consideration of the briefs filed by the same time that Rodriguez and Acosta received new titles, they and counsel for the General Counsel and for Respondent, I other division chiefs became salaried employees. hereby make the following: 3 T h e o t her tw o major divisions, drafting and quality control, had only eight employees each and, therefore, functioned as single units. ' The wing shop, under the direction of Senior Supervisor Robert FINDINGS OF FACT McQue, had two sections: Wing I which was headed by Freddy Rivera and wing II by George Montalvo. Similarly, the fuselage shop was di- 1. JURISDICTION rected by Jose Christy with two sections led by Hiram Enchautegui and Juan Mendez. Respondent, a Delaware corporation, maintains an 'The 20 men who Respondent contends were supervisors, the shop to office and place of business (hereafter called the plant) in w hich each was assigned, and the number of employees working with Aguadilla, Puerto Rico, where it is engaged in the them are as follows: Ariel Berris--horizontal tail (2); Jose Christy-fu- selage; Hiram Enchautegui-fuselage I (5); Juan Mendez-fluselage 11 (5); design, manufacture, and Sale Of a prototype aircraft. Adalberto Cuadrado- (2); Manuel Lopez-fluid systems (none); Melvin During the 12 months preceding the issuance of the com- Martinez-engine instruments (2); Eduardo Mercado-experimental (1); plaint, a representative period, Respondent purchased Abraham Mora-sponson (2); Nicholas Ramirez-fnight deck (2); George and received at its plant goods and materials valued in Montalvo--wing 11(3); Freddy Rivera--wing 1(5); Luis Rivera-zontrol surfaces (8); Wilfredo Ramos--parts shop 1 (9); Neftali Rodriguez--parts excess of $50,000 which were transported directly from shop If (7); Julio Lopez-parts shop III (7); Juan Salas-tailgate doors points outside Puerto Rico. (5); Alfredo Sosa-drafting (7); Jose Valentin-hydraulics (6). AHRENS AIRCRAFT, INC. 841 AFL-CIO, as the exclusive representative of I find that Respondent is an employer engaged in com- all the employees in the unit described below merce within the meaning of Section 2(2), (6), and (7) of with respect to wages, hours, and other terms the A c t. and conditions of employment and, if an un- T h e U n i o n is, and has been at all times material herein, derstanding is reached, WE WILL put such un- a labor organization within the meaning of Section 2(5) derstanding into a written contract which we o e c t. will sign. The appropriate unit is: IL SUPERVISORY ISSUES All production and maintenance employeesA The Eiec of Ahrens Aircraft, Inc., employed at its plant, exclusive of all other employees, 1. Plant structure office clerical employees, guards and super- visors as defined in Section 2(11) of the Na- T h e parties stipulated that as of May 23, 1980, 118 em- tional Labor Relations Act, as amended. ployees comprised th e A h ren s A ircraft wo rk fo rce , and that, of this number, 113 signed authorization cards, in- cluding 20 persons who Respondent contends and the AHRENS AIRCRAFT, INC. General Counsel denies were supervisors within the DECISION meaning of Section 2(11) of the Act. Respondent's organizational structure was multitiered, STATEMENT OF THE CASE with members of the Ahrens family occupying the most senior positions. Peter Ahrens serves as the Company's ARLINE PACHT, Administrative Law Judge: This case president; his wife Magda Juame is comptroller; one son, was heard in Mayaguez, Puerto Rico, on October 14-16, Edd Ahrens, is vice president in charge of production, 1980, pursuant to a charge filed on May 23, 1980, by purchasing, and personnel; a second son, Kim Ahrens, is Asociacion Internacional de Maguinistas y Trabajadores vice president of engineering. At the next lower rung of Aerospaciales, AFL-CIO, and a complaint which issued responsibility, with daily and immediate oversight over on August 8, and was amended on August 18, 1980. A employees in three operating divisions, as of May 1980, timely answer was filed on August 20, 1980. The ques- was Carlos Ruiz who reported to Edd Ahrens. Jose Mo- tions presented are whether (a) Respondent, Ahrens Air- rales, project engineer, who reported to Kim Ahrens, oc- craft, Inc., violated Section 8(a)(l) of the National Labor cupied a similar position of authority with respect to the Relations Act, as amended, by (1) threatening its em- two other divisions. Each major division was headed by ployees with plant closure if they supported a union or a senior supervisor. Three of these divisions, those under engaged in concerted activities, (2) maintaining and en- John Rodriguez, Anthony Acosta,' and Carlos Rivera, forcing an overly broad no-distribution rule, (3) threaten- were divided into some five or six shops. 3 Each such ing employees with discharge if they joined the Union, shop was under the direction of a "junior supervisor," as (4) improperly interrogating them about their concerted Respondent referred to them, and several of the shops activities, and (5) creating the impression of surveillance; were subdivided into sections.4 It is the status of the em- (b) violated Section 8(a)(3) and (1) by discharging ployees heading each of the shops and shop sections Freddy Rivera and Eduardo Mercado; (c) Rivera and which is in dispute here.' Mercado and 18 other employees were supervisors within the meaning of Section 2(11) of the Act, (d) ~., .,.,, . within the meaning of.. Section 2.11' of the Act,( ' Respondent neither admitted nor denied that the Union is a labor or- whether the unit defined in the complaint is appropriate, ganization within the meaning of the Act. Accordingly, pursuant to and (e) in the circumstances of this case, a bargaining F.R.C.P. 8(b) and (d), the allegation will be deemed admitted. order is appropriate. I In April 1980, Rodriguez and Acosta became assistant plant managers Upon the record, including the demeanor of the wit- to Ruiz. However, the record does not suggest that their duties changed Upon te recrd, inludin the dmeano of th wit- with respect to the management of the shops within their divisions. At nesses, and after due consideration of the briefs filed by the same time that Rodriguez and Acosta received new titles, they and counsel for the General Counsel and for Respondent, I other division chiefs became salaried employees. hereby make the following: 3 T h e o t her tw o major divisions, drafting and quality control, had only eight employees each and, therefore, functioned as single units. ' The wing shop, under the direction of Senior Supervisor Robert FINDINGS OF FACT McQue, had two sections: Wing I which was headed by Freddy Rivera and wing II by George Montalvo. Similarly, the fuselage shop was di- 1. JURISDICTION rected by Jose Christy with two sections led by Hiram Enchautegui and Juan Mendez. Respondent, a Delaware corporation, maintains an 'The 20 men who Respondent contends were supervisors, the shop to office and place of business (hereafter called the plant) in w hich each was assigned, and the number of employees working with Aguadilla, Puerto Rico, where it is engaged in the them are as follows: Ariel Berris--horizontal tail (2); Jose Christy-fu- selage; Hiram Enchautegui-fuselage I (5); Juan Mendez-fluselage 11 (5); design, manufacture, and Sale Of a prototype aircraft. Adalberto Cuadrado- (2); Manuel Lopez-fluid systems (none); Melvin During the 12 months preceding the issuance of the com- Martinez-engine instruments (2); Eduardo Mercado-experimental (1); plaint, a representative period, Respondent purchased Abraham Mora-sponson (2); Nicholas Ramirez-fnight deck (2); George and received at its plant goods and materials valued in Montalvo--wing 11(3); Freddy Rivera--wing 1(5); Luis Rivera-zontrol surfaces (8); Wilfredo Ramos--parts shop 1 (9); Neftali Rodriguez--parts excess of $50,000 which were transported directly from shop If (7); Julio Lopez-parts shop III (7); Juan Salas-tailgate doors points outside Puerto Rico. (5); Alfredo Sosa-drafting (7); Jose Valentin-hydraulics (6). 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Responsibilities of junior supervisors Mercado (with 10 years) and Rivera (with 7 years' prior experience in aircraft assembly) were first em- The record establishes that the authority to hire, fire, por experience in aircraft assembly) were first em- suspend, or impose other discipline on employees was ployed by Respondent in 1978 and sent to the Northrop vested in Edd Ahrens. He, with Ruiz, assigned employ- Institute of Technology for technical training. Shortly ees to particular shops based on the work to be done, after returning to the Ahrens plant, Mercado was as- and determined when to transfer particular employees signed to the tail cone boom section with four employees from one group to another. They also mapped out work under his charge and then to the fuselage shop. In Octo- assignments for each shop. Ruiz then transmitted the as- ber 1979, he was transferred to the experimental shop signments to the shop supervisors on a daily basis. where, as the sole employee, he reported directly to Thereafter, the junior supervisor distributed those assign- Ruiz and Kim Ahrens. After 4 months, he requested as- ments to each member of his crew taking into account sistance with the manual installation of the heavy landing the experience of the various employees. A record of gear doors on which he was working. Three employees jobs performed was maintained by each worker. At the were selected by Ruiz to work with Mercado but, in the end of the week, the shop and section leaders initialed latter part of April or early May, Ruiz transferred two of the forms and submitted them to Ruiz. the three assistants back to their original shops. Although the shop supervisors were responsible for in- Rivera's entire career with Respondent was as a junior structing, guiding, and correcting their coworkers, they supervisor in the wing shop. Initially, when there was spent the greater portion of the day performing their only one wing under construction, he served as Senior own manual assignments side by side with their cowork- Supervisor Robert McQue's sole assistant. However, in ers. Shop and section supervisors were paid at an hourly April 1980, when the assembly of a second wing com- rate ranging from 50 cents to $1 to $2 more per hour menced, the shop was divided into two sections. Rivera than other members of the shop. They punched a time- remained a leader of wing I with five employees and clock and worked the same number of hours as other George Montalvo took charge of wing II with three production employees. They had no responsibility for as- other employees. Rivera explained that Ruiz handed out signing or approving overtime; rather, at Ruiz' request, work assignments to McQue who, in turn, relayed them they themselves worked overtime at the standard double to Rivera and Montalvo for distribution to their crews. pay. Requests for excused absences also had to be ap- Rivera estimated that 70 to 75 percent of his workday proved by Ruiz. Although Edd Ahrens testified that the was spent performing his own assignments in contrast to junior supervisors were empowered to reprimand other McQue who was engaged in manual tasks about 30 per- employees orally or in writing, there was no evidence cent of the time. The balance of McQue's workday, ac- that such power, if it existed, ever was exercised.6 cording to Rivera, was devoted to planning and coordi- Ahrens also testified that the shop supervisors were au- nating work, reviewing or preparing written requests for thorized to recommend employee transfers. However, changes in the blueprint designs for various parts of the Abraham Mora, an alleged supervisor, testified that, aircraft, or checking on supplies. when he requested two specific employees to be assigned Both Mercado and Rivera testified that they evaluated to his shop, Ruiz assigned two others. the employees in their shops in March 1980. However, On a semiannual basis, the junior supervisors evaluated Ruiz disregarded Rivera's evaluations believing he was the employees in their groups using forms provided by not sufficiently objective in assessing his coworkers' the Company. Each form listed a number of areas such abilities. Instead, McQue prepared the evaluations of the as attendance or cooperation for which the evaluator employees in the entire wing shop including one for was to assign a number from I (unacceptable) to 5 (ex- Riera. Mercado's evaluations apparently were afforded cellent). The evaluations then were submitted to Ruiz no greater weight than Rivera's for only one of the three who reviewed them and added his own narrative com- evaluation forms completed by him turned up in Re- ments as to the employee's abilities. Ruiz submitted the spondent's files. evaluations to Edd Ahrens who determined whether and In contrast to Edd Ahrens assertions, neither Mercado how much of a pay raise within a 4- to 6-percent range nor Rivera believed they had any authority to reprimand the employee should receive. or discipline other employees. Indeed, Mercado related At irregular intervals, generally every 1 or 2 months, that on one occasion, when he attempted to correct the junior and senior supervisors attended staff meetings work methods of a man in his shop the employee ig- called and conducted by Ruiz. The principal topics of nored Mercado and obtained a transfer to another shop discussion related to the production of the aircraft, but from Ruiz. occasionally other matters such as attendance, tardiness, or observance of safety standards were raised. B. Conclusions 3. Work histories of Mercado and Rivera The burden of proving the supervisory status of em- An examination of the work histories of Eduardo Mer- ployees rests on Respondent as the party asserting that cado and Freddy Rivera provides added insight into the status. Tucson Cas & Electric Company, 241 NLRB 181 role and status of the junior supervisor in Respondent's (1979) After carefully reviewing the relevant evidence plant. and considering the principal factors on which Respond- ent relies in support of its position that the shop supervi- The only documentation of reprimands adduced by Respondent were sors are supervisors under the Act, I find that burden has several memos which Ruiz wrote concerning Mercado. not been met. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Responsibilities of junior supervisors Mercado (with 10 years) and Rivera (with 7 years' prior experience in aircraft assembly) were first em- The record establishes that the authority to hire, fire, Pior bypRende in 1978 assent wete Northrop suspend, or impose other discipline on employees was Ipnsitt by Tecphnolog f ,197 8 an d is en t t or t h e Northrop vested in Edd Ahrens. He, with Ruiz, assigned employ- I n st l t u te of Technology for technical training. Shortly ees to particular shops based on the work to be done, after returning to the Ahrens plant, Mercado was as- and determined when to transfer particular employees signed to the tail cone boom section with four employees from one group to another. They also mapped out work un d e r his charge a n d t h en to the fuselage shop. In Octo- assignments for each shop. Ruiz then transmitted the as- b e r 19 7 9, h e w as transferred to the experimental shop signments to the shop supervisors on a daily basis. w h er e, as t h e s ol e employee, he reported directly to Thereafter, the junior supervisor distributed those assign- R uiz and Kim Ahrens. After 4 months, he requested as- ments to each member of his crew taking into account sistance with the manual installation of the heavy landing the experience of the various employees. A record of gear doors on which he was working. Three employees jobs performed was maintained by each worker. At the w er e selected by Ruiz to work with Mercado but, in the end of the week, the shop and section leaders initialed latter part of April or early May, Ruiz transferred two of the forms and submitted them to Ruiz. the three assistants back to their original shops. Although the shop supervisors were responsible for in- Rivera's entire career with Respondent was as a junior structing, guiding, and correcting their coworkers, they supervisor in the wing shop. Initially, when there was spent the greater portion of the day performing their only one wing under construction, he served as Senior own manual assignments side by side with their cowork- Supervisor Robert McQue's sole assistant. However, in ers. Shop and section supervisors were paid at an hourly April 1980, when the assembly of a second wing com- rate ranging from 50 cents to $1 to $2 more per hour menced, the shop was divided into two sections. Rivera than other members of the shop. They punched a time- remained a leader of wing I with five employees and clock and worked the same number of hours as other George Montalvo took charge of wing II with three production employees. They had no responsibility for as- other employees. Rivera explained that Ruiz handed out signing or approving overtime; rather, at Ruiz' request, work assignments to McQue who, in turn, relayed them they themselves worked overtime at the standard double to Rivera and Montalvo for distribution to their crews. pay. Requests for excused absences also had to be ap- Rivera estimated that 70 to 75 percent of his workday proved by Ruiz. Although Edd Ahrens testified that the was spent performing his own assignments in contrast to junior supervisors were empowered to reprimand other McQue who was engaged in manual tasks about 30 per- employees orally or in writing, there was no evidence cent of the time. The balance of McQue's workday, ac- that such power, if it existed, ever was exercised.' cording to Rivera, was devoted to planning and coordi- Ahrens also testified that the shop supervisors were au- nating work, reviewing or preparing written requests for thorized to recommend employee transfers. However, changes in the blueprint designs for various parts of the Abraham Mora, an alleged supervisor, testified that, aircraft, or checking on supplies. when he requested two specific employees to be assigned Both Mercado and Rivera testified that they evaluated to his shop, Ruiz assigned two others. the employees in their shops in March 1980. However, On a semiannual basis, the junior supervisors evaluated Ruiz disregarded Rivera's evaluations believing he was the employees in their groups using forms provided by not sufficiently objective in assessing his coworkers' the Company. Each form listed a number of areas such abilities. Instead, McQue prepared the evaluations of the as attendance or cooperation for which the evaluator employees in the entire wing shop including one for was to assign a number from I (unacceptable) to 5 (ex- Riera. Mercado's evaluations apparently were afforded cellent). The evaluations then were submitted to Ruiz no greater weight than Rivera's for only one of the three who reviewed them and added his own narrative com- evaluation forms completed by him turned up in Re- ments as to the employee's abilities. Ruiz submitted the spondent's files. evaluations to Edd Ahrens who determined whether and I contrast to Edd Ahrens' assertions, neither Mercado how much of a pay raise within a 4- to 6-percent range nor Rivera believed they had any authority to reprimand the employee should receive. or discipline other employees. Indeed, Mercado related At irregular intervals, generally every 1 or 2 months, that on one occasion, when he attempted to correct the junior and senior supervisors attended staff meetings work methods of a man in his shop, the employee ig- called and conducted by Ruiz. The principal topics of nored Mercado and obtained a transfer to another shop discussion related to the production of the aircraft, but from Ruiz. occasionally other matters such as attendance, tardiness, or observance of safety standards were raised. B. Conclusions 3. Work histories of Mercado and Rivera The burden of proving the supervisory status of em- An examination of the work histories of Eduardo Mer- ployees rests on Respondent as the party asserting that cado and Freddy Rivera provides added insight into the status. T u c son GC s & E le ct r i c Company, 241 NLRB 181 role and status of the junior supervisor in Respondent's (1979 ). A f t e r carefully reviewing the relevant evidence plant. and considering the principal factors on which Respond- ent relies in support of its position that the shop supervi- *The only documentation of reprimands adduced by Respondent were sors are Supervisors Under the Act, I find that burden has several memos which Ruiz wrote concerning Mercado. not been met. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Responsibilities of junior supervisors Mercado (with 10 years) and Rivera (with 7 years' prior experience in aircraft assembly) were first em- The record establishes that the authority to hire, fire, Pior bypRende in 1978 assent wete Northrop suspend, or impose other discipline on employees was Intiut of Technology for 197 8 an d s en t t or t h e Northrop vested in Edd Ahrens. He, with Ruiz, assigned employ- I n st l t u te of Technology for technical training. Shortly ees to particular shops based on the work to be done, after returning to the Ahrens plant, Mercado was as- and determined when to transfer particular employees signed to the tail cone boom section with four employees from one group to another. They also mapped out work un d e r his charge a n d t h en to the fuselage shop. In Octo- assignments for each shop. Ruiz then transmitted the as- b e r 19 7 9, h e w as transferred to the experimental shop signments to the shop supervisors on a daily basis. w h er e, as the sole employee, he reported directly to Thereafter, the junior supervisor distributed those assign- R uiz and Kim Ahrens. After 4 months, he requested as- ments to each member of his crew taking into account sistance with the manual installation of the heavy landing the experience of the various employees. A record of gear doors on which he was working. Three employees jobs performed was maintained by each worker. At the w er e selected by Ruiz to work with Mercado but, in the end of the week, the shop and section leaders initialed latter part of April or early May, Ruiz transferred two of the forms and submitted them to Ruiz. the three assistants back to their original shops. Although the shop supervisors were responsible for in- Rivera's entire career with Respondent was as a junior structing, guiding, and correcting their coworkers, they supervisor in the wing shop. Initially, when there was spent the greater portion of the day performing their only one wing under construction, he served as Senior own manual assignments side by side with their cowork- Supervisor Robert McQue's sole assistant. However, in ers. Shop and section supervisors were paid at an hourly April 1980, when the assembly of a second wing com- rate ranging from 50 cents to $1 to $2 more per hour menced, the shop was divided into two sections. Rivera than other members of the shop. They punched a time- remained a leader of wing I with five employees and clock and worked the same number of hours as other George Montalvo took charge of wing II with three production employees. They had no responsibility for as- other employees. Rivera explained that Ruiz handed out signing or approving overtime; rather, at Ruiz' request, work assignments to McQue who, in turn, relayed them they themselves worked overtime at the standard double to Rivera and Montalvo for distribution to their crews. pay. Requests for excused absences also had to be ap- Rivera estimated that 70 to 75 percent of his workday proved by Ruiz. Although Edd Ahrens testified that the was spent performing his own assignments in contrast to junior supervisors were empowered to reprimand other McQue who was engaged in manual tasks about 30 per- employees orally or in writing, there was no evidence cent of the time. The balance of McQue's workday, ac- that such power, if it existed, ever was exercised.' cording to Rivera, was devoted to planning and coordi- Ahrens also testified that the shop supervisors were au- nating work, reviewing or preparing written requests for thorized to recommend employee transfers. However, changes in the blueprint designs for various parts of the Abraham Mora, an alleged supervisor, testified that, aircraft, or checking on supplies. when he requested two specific employees to be assigned Both Mercado and Rivera testified that they evaluated to his shop, Ruiz assigned two others. the employees in their shops in March 1980. However, On a semiannual basis, the junior supervisors evaluated Ruiz disregarded Rivera's evaluations believing he was the employees in their groups using forms provided by not sufficiently objective in assessing his coworkers' the Company. Each form listed a number of areas such abilities. Instead, McQue prepared the evaluations of the as attendance or cooperation for which the evaluator employees in the entire wing shop including one for was to assign a number from I (unacceptable) to 5 (ex- Riera. Mercado's evaluations apparently were afforded cellent). The evaluations then were submitted to Ruiz no greater weight than Rivera's for only one of the three who reviewed them and added his own narrative com- evaluation forms completed by him turned up in Re- ments as to the employee's abilities. Ruiz submitted the spondent's files. evaluations to Edd Ahrens who determined whether and I contrast to Edd Ahrens' assertions, neither Mercado how much of a pay raise within a 4- to 6-percent range nor Rivera believed they had any authority to reprimand the employee should receive. or discipline other employees. Indeed, Mercado related At irregular intervals, generally every 1 or 2 months, that on one occasion, when he attempted to correct the junior and senior supervisors attended staff meetings work methods of a man in his shop, the employee ig- called and conducted by Ruiz. The principal topics of nored Mercado and obtained a transfer to another shop discussion related to the production of the aircraft, but from Ruiz. occasionally other matters such as attendance, tardiness, or observance of safety standards were raised. B. Conclusions 3. Work histories of Mercado and Rivera The burden of proving the supervisory status of em- An examination of the work histories of Eduardo Mer- ployees rests on Respondent as the party asserting that cado and Freddy Rivera provides added insight into the status. Tucson Gas & Electric Company, 241 NLRB 181 role and status of the junior supervisor in Respondent's (1979 ). A f t e r carefully reviewing the relevant evidence plant. and considering the principal factors on which Respond- ent relies in support of its position that the shop supervi- *The only documentation of reprimands adduced by Respondent were sors are Supervisors Under the Act, I find that burden has several memos which Ruiz wrote concerning Mercado. not been met. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Responsibilities of junior supervisors Mercado (with 10 years) and Rivera (with 7 years' prior experience in aircraft assembly) were first em- The record establishes that the authority to hire, fire, Pior bypRende in 1978 assent wete Northrop suspend, or impose other discipline on employees was Intiut of Technology for 197 8 an d s en t t or t h e Northrop vested in Edd Ahrens. He, with Ruiz, assigned employ- I n st l t u te of Technology for technical training. Shortly ees to particular shops based on the work to be done, after returning to the Ahrens plant, Mercado was as- and determined when to transfer particular employees signed to the tail cone boom section with four employees from one group to another. They also mapped out work un d e r his charge a n d t h en to the fuselage shop. In Octo- assignments for each shop. Ruiz then transmitted the as- b e r 19 7 9, h e w as transferred to the experimental shop signments to the shop supervisors on a daily basis. w h er e, as the sole employee, he reported directly to Thereafter, the junior supervisor distributed those assign- R uiz and Kim Ahrens. After 4 months, he requested as- ments to each member of his crew taking into account sistance with the manual installation of the heavy landing the experience of the various employees. A record of gear doors on which he was working. Three employees jobs performed was maintained by each worker. At the w er e selected by Ruiz to work with Mercado but, in the end of the week, the shop and section leaders initialed latter part of April or early May, Ruiz transferred two of the forms and submitted them to Ruiz. the three assistants back to their original shops. Although the shop supervisors were responsible for in- Rivera's entire career with Respondent was as a junior structing, guiding, and correcting their coworkers, they supervisor in the wing shop. Initially, when there was spent the greater portion of the day performing their only one wing under construction, he served as Senior own manual assignments side by side with their cowork- Supervisor Robert McQue's sole assistant. However, in ers. Shop and section supervisors were paid at an hourly April 1980, when the assembly of a second wing com- rate ranging from 50 cents to $1 to $2 more per hour menced, the shop was divided into two sections. Rivera than other members of the shop. They punched a time- remained a leader of wing I with five employees and clock and worked the same number of hours as other George Montalvo took charge of wing II with three production employees. They had no responsibility for as- other employees. Rivera explained that Ruiz handed out signing or approving overtime; rather, at Ruiz' request, work assignments to McQue who, in turn, relayed them they themselves worked overtime at the standard double to Rivera and Montalvo for distribution to their crews. pay. Requests for excused absences also had to be ap- Rivera estimated that 70 to 75 percent of his workday proved by Ruiz. Although Edd Ahrens testified that the was spent performing his own assignments in contrast to junior supervisors were empowered to reprimand other McQue who was engaged in manual tasks about 30 per- employees orally or in writing, there was no evidence cent of the time. The balance of McQue's workday, ac- that such power, if it existed, ever was exercised.' cording to Rivera, was devoted to planning and coordi- Ahrens also testified that the shop supervisors were au- nating work, reviewing or preparing written requests for thorized to recommend employee transfers. However, changes in the blueprint designs for various parts of the Abraham Mora, an alleged supervisor, testified that, aircraft, or checking on supplies. when he requested two specific employees to be assigned Both Mercado and Rivera testified that they evaluated to his shop, Ruiz assigned two others. the employees in their shops in March 1980. However, On a semiannual basis, the junior supervisors evaluated Ruiz disregarded Rivera's evaluations believing he was the employees in their groups using forms provided by not sufficiently objective in assessing his coworkers' the Company. Each form listed a number of areas such abilities. Instead, McQue prepared the evaluations of the as attendance or cooperation for which the evaluator employees in the entire wing shop including one for was to assign a number from I (unacceptable) to 5 (ex- Riera. Mercado's evaluations apparently were afforded cellent). The evaluations then were submitted to Ruiz no greater weight than Rivera's for only one of the three who reviewed them and added his own narrative com- evaluation forms completed by him turned up in Re- ments as to the employee's abilities. Ruiz submitted the spondent's files. evaluations to Edd Ahrens who determined whether and I contrast to Edd Ahrens' assertions, neither Mercado how much of a pay raise within a 4- to 6-percent range nor Rivera believed they had any authority to reprimand the employee should receive. or discipline other employees. Indeed, Mercado related At irregular intervals, generally every 1 or 2 months, that on one occasion, when he attempted to correct the junior and senior supervisors attended staff meetings work methods of a man in his shop, the employee ig- called and conducted by Ruiz. The principal topics of nored Mercado and obtained a transfer to another shop discussion related to the production of the aircraft, but from Ruiz. occasionally other matters such as attendance, tardiness, or observance of safety standards were raised. B. Conclusions 3. Work histories of Mercado and Rivera The burden of proving the supervisory status of em- An examination of the work histories of Eduardo Mer- ployees rests on Respondent as the party asserting that cado and Freddy Rivera provides added insight into the status. Tucson Gas & Electric Company, 241 NLRB 181 role and status of the junior supervisor in Respondent's (1979 ). A f t e r carefully reviewing the relevant evidence plant. and considering the principal factors on which Respond- ent relies in support of its position that the shop supervi- *The only documentation of reprimands adduced by Respondent were sors are Supervisors Under the Act, I find that burden has several memos which Ruiz wrote concerning Mercado. not been met. AHRENS AIRCRAFT, INC. 843 Respondent points out that the shop supervisors were Respondent submits that the attendance of shop super- responsible for assigning work to members of their re- visors at management meetings also indicates their super- spective groups. However, it is undisputed that the as- visory status. Although under certain circumstances such signments which were planned by Edd Ahrens and Ruiz attendance has identified an employee as a company rep- issued initially from Ruiz and were merely redistributed resentative, I am aware of no case in which such attend- by junior supervisors to their fellow workers according ance, in the absence of other criteria, is sufficient to to their level of experience. Thus, the degree of judg- cloak an individual with supervisory status. It should ment exercised by the shop leaders in allocating jobs was also be noted that attendance at management meetings is very much limited by the direct involvement of their su- not among the supervisory functions identified in Section periors. Put in proper perspective, the shop supervisor 2(11). served as a conduit for management's instructions. The Moreover, in no other area did the men who were al- assignment of work was, therefore, routine in nature and leged to be supervisors possess any characteristics of su- did not depend on the exercise of independent discretion, pervisory authority within the meaning of the Act. It is which is a hallmark of the supervisor. See B-P Custom undisputed that they could not hire, fire, suspend, pro- Building Products, Inc., 241 NLRB 1118 (1980); Cablevi- mote, transfer, reward, discipline, assign overtime, grant sion Systems Development Co., a partnership, 251 NLRB time off, or resolve the grievances of other employees. 1319 (1980); Wirtz Manufacturing Company, Inc., 215 Nor does the evidence establish that they could effec- NLRB 252, 254 (1974). tively recommend such actions. Accordingly, I find that Respondent further asserts that the shop supervisors 19 of the 20 alleged supervisors were, in fact, nonsu- exercised independent responsibility in directing the pervisory group leaders.8 work of the shop employees. As the most experienced The conclusions reached with respect to shop supervi- employees in each group, the shop leaders did train and sors as a class apply with particular force to Freddy guide their fellow workers in the performance of their Rivera and Eduardo Mercado. Each was a seasoned em- jobs. However, they did not display any greater degree ployee, but expertise is not an exclusive property of a su- of authority than any senior, knowledgeable employee pervisor. Nor is it critical that they were called junior would in relation to less experienced juniors. See High supervisors by management and group leaders by others; Performance Tube, Inc., 251 NLRB 554 (1980); Hitchiner what is relevant is the actual authority they possessed, Manufacturing Company, 243 NLRB 927 (1979); Depend- and not the conclusionary assertions of Respondent. able Lists, Inc., 239 NLRB 1304, 1308 (1979); Tom's Ford, In this regard, it is significant that Rivera was at the Incorporated, 233 NLRB 28 (1977). With two and even lowest level in the chain of command, subordinate to three senior supervisors above them who were engaged McQue, Acosta, Ruiz, and Ahrens. Given the extent to in direct daily review of the work in each shop, group which he was subjected to supervision, little room was leaders had little opportunity to exercise genuinely inde- left for Rivera to exercise independent judgment. pendent judgment. Although the shop leaders had the Mercado had only one employee working with him authority to correct the work of their fellow employees, during the last month of his employment, and that was there is no evidence that they could reprimand or other- because it was physically difficult for him to perform the wise discipline employees to an extent which might sig- job alone. For a significant period of time he supervised nificantly affect the employee's job status or work to his no one. The Board frequently has suggested that a low detriment. Thus, the group leader exercised little mean- ratio between the supervised and the supervisor, as was ingful control over his coworkers' performances. Tucson the case here, diminishes the degree of authority exer- Gas & Electric Company, supra. cised by the person in charge.9 See, e.g., Wirtz Manufac- Respondent also suggests that because the shop super- turing Co., supra at 253-254; Spector Freight System, Inc., visors performed evaluations of their fellow employees 216 NLRB 551, 554 (1975). they were in a position to make effective recommenda- Both men testified without controversion that they tions leading to the reward of such employees. However, spent the greatest portion of their workday in manual each evaluation was subject to Ruiz' scrutiny and he was labor, worked the same number of hours, punched a ti- at liberty to agree or disagree with the evaluator. In meclock, received hourly pay, and received no pay more than a dozen instances, Ruiz reduced the numerical when absent due to illness, in precisely the same manner score given by the shop supervisor and on most of the as any other employee. That their hourly rate of pay was forms entered narrative comments which revealed a per- higher than those of many other employees merely re- sonal knowledge of that employee's work habits. What weight, if any, would be given to the initial evaluation 'The record established that, like Robert McQue, Jose Christy had two was completely within Edd Ahrens' discretion. Since the assistants working under him. Further, he made several recommendations evaluations were twice removed from the eventual be- for promotion and evaluated persons alleged to be supervisors. However. stowal of any benefit, and since the evaluation could be the record was barren of any evidence that other functions Christy per- formed may have distinguished him from or aligned him with the other rejected by Respondent without explanation, as they shop supervisors. Accordingly, I draw no conclusions as to Christy's were in Rivera's case, they cannot be regarded as having nonemployee status. However, as discussed, infra, whether or not he is any decisive effect. 7 See Hydro Conduit Corporation, 254 included in the unit does not affect the Union's majority status. NLRB 433 (1981). Respondent included Alfred Sosa and Manuel Lopez among the group of 20 alleged supervisors. However, Jt. Exh. I(b) shows that nei- ther had any subordinate and, therefore, cannot be deemed supervisors Respondent also was unable to produce any evaluations from alleged under the Act. Respondent may not, by the mere imposition of a title, Shop Supervisor Cuadrado. convert workers into supervisors. AHRENS AIRCRAFT, INC. 843 Respondent points out that the shop supervisors were Respondent submits that the attendance of shop super- responsible for assigning work to members of their re- visors at management meetings also indicates their super- spective groups. However, it is undisputed that the as- visory status. Although under certain circumstances such signments which were planned by Edd Ahrens and Ruiz attendance has identified an employee as a company rep- issued initially from Ruiz and were merely redistributed resentative, I am aware of no case in which such attend- by junior supervisors to their fellow workers according ance, in the absence of other criteria, is sufficient to to their level of experience. Thus, the degree of judg- cloak an individual with supervisory status. It should ment exercised by the shop leaders in allocating jobs was also be noted that attendance at management meetings is very much limited by the direct involvement of their su- not among the supervisory functions identified in Section periors. Put in proper perspective, the shop supervisor 2(11). served as a conduit for management's instructions. The Moreover, in no other area did the men who were al- assignment of work was, therefore, routine in nature and leged to be supervisors possess any characteristics of su- did not depend on the exercise of independent discretion, pervisory authority within the meaning of the Act. It is which is a hallmark of the supervisor. See B-P Custom undisputed that they could not hire, fire, suspend, pro- Building Products, Inc., 241 NLRB 1118 (1980); Cablevi- mote, transfer, reward, discipline, assign overtime, grant sion Systems Development Co., a partnership, 251 NLRB time off, or resolve the grievances of other employees. 1319 (1980); Wirtz Manufacturing Company, Inc., 215 Nor does the evidence establish that they could effec- NLRB 252, 254 (1974). tively recommend such actions. Accordingly, I find that Respondent further asserts that the shop supervisors 19 of the 20 alleged supervisors were, in fact, nonsu- exercised independent responsibility in directing the pervisory group leaders." work of the shop employees. As the most experienced The conclusions reached with respect to shop supervi- employees in each group, the shop leaders did train and sors as a class apply with particular force to Freddy guide their fellow workers in the performance of their Rivera and Eduardo Mercado. Each was a seasoned em- jobs. However, they did not display any greater degree ployee, but expertise is not an exclusive property of a su- of authority than any senior, knowledgeable employee pervisor. Nor is it critical that they were called junior would in relation to less experienced juniors. See High supervisors by management and group leaders by others; Performance Tube, Inc., 251 NLRB 554 (1980); Hitchiner what is relevant is the actual authority they possessed, Manufacturing Company, 243 NLRB 927 (1979); Depend- and not the conclusionary assertions of Respondent. able Lists, Inc., 239 NLRB 1304, 1308 (1979); Tom's Ford, In this regard, it is significant that Rivera was at the Incorporated, 233 NLRB 28 (1977). With two and even lowest level in the chain of command, subordinate to three senior supervisors above them who were engaged McQue, Acosta, Ruiz, and Ahrens. Given the extent to in direct daily review of the work in each shop, group which he was subjected to supervision, little room was leaders had little opportunity to exercise genuinely inde- left for Rivera to exercise independent judgment. pendent judgment. Although the shop leaders had the Mercado had only one employee working with him authority to correct the work of their fellow employees, during the last month of his employment, and that was there is no evidence that they could reprimand or other- because it was physically difficult for him to perform the wise discipline employees to an extent which might sig- job alone. For a significant period of time he supervised nificantly affect the employee's job status or work to his no one. The Board frequently has suggested that a low detriment. Thus, the group leader exercised little mean- ratio between the supervised and the supervisor, as was ingful control over his coworkers' performances. Tucson the case here, diminishes the degree of authority exer- Gas <t Electric Company, supra cised by the person in charge. 9 See, e.g., Wirtz Manufac- Respondent also suggests that because the shop super- turing Co., supra at 253-254; Spector Freight System, Inc., visors performed evaluations of their fellow employees 216 NLRB 551, 554 (1975). they were in a position to make effective recommenda- Both men testified without controversion that they tions leading to the reward of such employees. However, spent the greatest portion of their workday in manual each evaluation was subject to Ruiz' scrutiny and he was labor, worked the same number of hours, punched a ti- at liberty to agree or disagree with the evaluator. In meclock, received hourly pay, and received no pay more than a dozen instances, Ruiz reduced the numerical when absent due to illness, in precisely the same manner score given by the shop supervisor and on most of the as any other employee. That their hourly rate of pay was forms entered narrative comments which revealed a per- higher than those of many other employees merely re- sonal knowledge of that employee's work habits. What weight, if any, would be given to the initial evaluation 1he record established that, like Robert McQue, Jose Christy had two was completely Within Edd Ahrens' discretion. Since the assistants working under him. Further, he made several recommendations evaluations were twice removed from the eventual be- for promotion and evaluated persons alleged to be supervisors. However. stowal of any benefit, and since the evaluation could be the r ecor d w as barren of any evidence that other functions Christy per- formed may have distinguished him from or aligned him with the other rejected by Respondent without explanation, as they shop supervisors. Accordingly, I draw no conclusions as to Christy's were in Rivera's case, they cannot be regarded as having nonemployee status. However, as discussed, infra, whether or not he is any decisive effect.' See Hydro Conduit Corporation, 254 included in the unit does not affect the Union's majority status. NLRB 433 (1981). ' Respondent included Alfred Sosa and Manuel Lopez among the group of 20 alleged supervisors. However, Jt. Exh. l(b) shows that nei- ther had any subordinate and, therefore, cannot be deemed supervisors 'Respondent also was unable to produce any evaluations from alleged under the Act. Respondent may not, by the mere imposition of a title, Shop Supervisor Cuadrado. convert workers into supervisors. AHRENS AIRCRAFT, INC. 843 Respondent points out that the shop supervisors were Respondent submits that the attendance of shop super- responsible for assigning work to members of their re- visors at management meetings also indicates their super- spective groups. However, it is undisputed that the as- visory status. Although under certain circumstances such signments which were planned by Edd Ahrens and Ruiz attendance has identified an employee as a company rep- issued initially from Ruiz and were merely redistributed resentative, I am aware of no case in which such attend- by junior supervisors to their fellow workers according ance, in the absence of other criteria, is sufficient to to their level of experience. Thus, the degree of judg- cloak an individual with supervisory status. It should ment exercised by the shop leaders in allocating jobs was also be noted that attendance at management meetings is very much limited by the direct involvement of their su- not among the supervisory functions identified in Section periors. Put in proper perspective, the shop supervisor 2(11). served as a conduit for management's instructions. The Moreover, in no other area did the men who were al- assignment of work was, therefore, routine in nature and leged to be supervisors possess any characteristics of su- did not depend on the exercise of independent discretion, pervisory authority within the meaning of the Act. It is which is a hallmark of the supervisor. See B-P Custom undisputed that they could not hire, fire, suspend, pro- Building Products, Inc., 241 NLRB 1118 (1980); Cablevi- mote, transfer, reward, discipline, assign overtime, grant sion Systems Development Co., a partnership, 251 NLRB time off, or resolve the grievances of other employees. 1319 (1980); Wirtz Manufacturing Company, Inc., 215 Nor does the evidence establish that they could effec- NLRB 252, 254 (1974). tively recommend such actions. Accordingly, I find that Respondent further asserts that the shop supervisors 19 of the 20 alleged supervisors were, in fact, nonsu- exercised independent responsibility in directing the pervisory group leaders." work of the shop employees. As the most experienced The conclusions reached with respect to shop supervi- employees in each group, the shop leaders did train and sors as a class apply with particular force to Freddy guide their fellow workers in the performance of their Rivera and Eduardo Mercado. Each was a seasoned em- jobs. However, they did not display any greater degree ployee, but expertise is not an exclusive property of a su- of authority than any senior, knowledgeable employee pervisor. Nor is it critical that they were called junior would in relation to less experienced juniors. See High supervisors by management and group leaders by others; Performance Tube, Inc., 251 NLRB 554 (1980); Hitchiner what is relevant is the actual authority they possessed, Manufacturing Company, 243 NLRB 927 (1979); Depend- and not the conclusionary assertions of Respondent. able Lists, Inc., 239 NLRB 1304, 1308 (1979); Tom's Ford, In this regard, it is significant that Rivera was at the Incorporated, 233 NLRB 28 (1977). With two and even lowest level in the chain of command, subordinate to three senior supervisors above them who were engaged McQue, Acosta, Ruiz, and Ahrens. Given the extent to in direct daily review of the work in each shop, group which he was subjected to supervision, little room was leaders had little opportunity to exercise genuinely inde- left for Rivera to exercise independent judgment. pendent judgment. Although the shop leaders had the Mercado had only one employee working with him authority to correct the work of their fellow employees, during the last month of his employment, and that was there is no evidence that they could reprimand or other- because it was physically difficult for him to perform the wise discipline employees to an extent which might sig- job alone. For a significant period of time he supervised nificantly affect the employee's job status or work to his no one. The Board frequently has suggested that a low detriment. Thus, the group leader exercised little mean- ratio between the supervised and the supervisor, as was ingful control over his coworkers' performances. Tucson the case here, diminishes the degree of authority exer- Gas <t Electric Company, supra cised by the person in charge. 9 See, e.g., Wirtz Manufac- Respondent also suggests that because the shop super- turing Co., supra at 253-254; Spector Freight System, Inc., visors performed evaluations of their fellow employees 216 NLRB 551, 554 (1975). they were in a position to make effective recommenda- Both men testified without controversion that they tions leading to the reward of such employees. However, spent the greatest portion of their workday in manual each evaluation was subject to Ruiz' scrutiny and he was labor, worked the same number of hours, punched a ti- at liberty to agree or disagree with the evaluator. In meclock, received hourly pay, and received no pay more than a dozen instances, Ruiz reduced the numerical when absent due to illness, in precisely the same manner score given by the shop supervisor and on most of the as any other employee. That their hourly rate of pay was forms entered narrative comments which revealed a per- higher than those of many other employees merely re- sonal knowledge of that employee's work habits. What weight, if any, would be given to the initial evaluation 1he record established that, like Robert McQue, Jose Christy had two was completely Within Edd Ahrens' discretion. Since the assistants working under him. Further, he made several recommendations evaluations were twice removed from the eventual be- for promotion and evaluated persons alleged to be supervisors. However. stowal of any benefit, and since the evaluation could be the r ecor d w as barren of any evidence that other functions Christy per- formed may have distinguished him from or aligned him with the other rejected by Respondent without explanation, as they shop supervisors. Accordingly, I draw no conclusions as to Christy's were in Rivera's case, they cannot be regarded as having nonemployee status. However, as discussed, infra, whether or not he is any decisive effect.' See Hydro Conduit Corporation, 254 included in the unit does not affect the Union's majority status. NLRB 433 (1981). ' Respondent included Alfred Sosa and Manuel Lopez among the group of 20 alleged supervisors. However, Jt. Exh. l(b) shows that nei- ther had any subordinate and, therefore, cannot be deemed supervisors 'Respondent also was unable to produce any evaluations from alleged under the Act. Respondent may not, by the mere imposition of a title, Shop Supervisor Cuadrado. convert workers into supervisors. AHRENS AIRCRAFT, INC. 843 Respondent points out that the shop supervisors were Respondent submits that the attendance of shop super- responsible for assigning work to members of their re- visors at management meetings also indicates their super- spective groups. However, it is undisputed that the as- visory status. Although under certain circumstances such signments which were planned by Edd Ahrens and Ruiz attendance has identified an employee as a company rep- issued initially from Ruiz and were merely redistributed resentative, I am aware of no case in which such attend- by junior supervisors to their fellow workers according ance, in the absence of other criteria, is sufficient to to their level of experience. Thus, the degree of judg- cloak an individual with supervisory status. It should ment exercised by the shop leaders in allocating jobs was also be noted that attendance at management meetings is very much limited by the direct involvement of their su- not among the supervisory functions identified in Section periors. Put in proper perspective, the shop supervisor 2(11). served as a conduit for management's instructions. The Moreover, in no other area did the men who were al- assignment of work was, therefore, routine in nature and leged to be supervisors possess any characteristics of su- did not depend on the exercise of independent discretion, pervisory authority within the meaning of the Act. It is which is a hallmark of the supervisor. See B-P Custom undisputed that they could not hire, fire, suspend, pro- Building Products, Inc., 241 NLRB 1118 (1980); Cablevi- mote, transfer, reward, discipline, assign overtime, grant sion Systems Development Co., a partnership, 251 NLRB time off, or resolve the grievances of other employees. 1319 (1980); Wirtz Manufacturing Company, Inc., 215 Nor does the evidence establish that they could effec- NLRB 252, 254 (1974). tively recommend such actions. Accordingly, I find that Respondent further asserts that the shop supervisors 19 of the 20 alleged supervisors were, in fact, nonsu- exercised independent responsibility in directing the pervisory group leaders." work of the shop employees. As the most experienced The conclusions reached with respect to shop supervi- employees in each group, the shop leaders did train and sors as a class apply with particular force to Freddy guide their fellow workers in the performance of their Rivera and Eduardo Mercado. Each was a seasoned em- jobs. However, they did not display any greater degree ployee, but expertise is not an exclusive property of a su- of authority than any senior, knowledgeable employee pervisor. Nor is it critical that they were called junior would in relation to less experienced juniors. See High supervisors by management and group leaders by others; Performance Tube, Inc., 251 NLRB 554 (1980); Hitchiner what is relevant is the actual authority they possessed, Manufacturing Company, 243 NLRB 927 (1979); Depend- and not the conclusionary assertions of Respondent. able Lists, Inc., 239 NLRB 1304, 1308 (1979); Tom's Ford, In this regard, it is significant that Rivera was at the Incorporated, 233 NLRB 28 (1977). With two and even lowest level in the chain of command, subordinate to three senior supervisors above them who were engaged McQue, Acosta, Ruiz, and Ahrens. Given the extent to in direct daily review of the work in each shop, group which he was subjected to supervision, little room was leaders had little opportunity to exercise genuinely inde- left for Rivera to exercise independent judgment. pendent judgment. Although the shop leaders had the Mercado had only one employee working with him authority to correct the work of their fellow employees, during the last month of his employment, and that was there is no evidence that they could reprimand or other- because it was physically difficult for him to perform the wise discipline employees to an extent which might sig- job alone. For a significant period of time he supervised nificantly affect the employee's job status or work to his no one. The Board frequently has suggested that a low detriment. Thus, the group leader exercised little mean- ratio between the supervised and the supervisor, as was ingful control over his coworkers' performances. Tucson the case here, diminishes the degree of authority exer- Gas <t Electric Company, supra cised by the person in charge. 9 See, e.g., Wirtz Manufac- Respondent also suggests that because the shop super- turing Co., supra at 253-254; Spector Freight System, Inc., visors performed evaluations of their fellow employees 216 NLRB 551, 554 (1975). they were in a position to make effective recommenda- Both men testified without controversion that they tions leading to the reward of such employees. However, spent the greatest portion of their workday in manual each evaluation was subject to Ruiz' scrutiny and he was labor, worked the same number of hours, punched a ti- at liberty to agree or disagree with the evaluator. In meclock, received hourly pay, and received no pay more than a dozen instances, Ruiz reduced the numerical when absent due to illness, in precisely the same manner score given by the shop supervisor and on most of the as any other employee. That their hourly rate of pay was forms entered narrative comments which revealed a per- higher than those of many other employees merely re- sonal knowledge of that employee's work habits. What weight, if any, would be given to the initial evaluation 1he record established that, like Robert McQue, Jose Christy had two was completely Within Edd Ahrens' discretion. Since the assistants working under him. Further, he made several recommendations evaluations were twice removed from the eventual be- for promotion and evaluated persons alleged to be supervisors. However. stowal of any benefit, and since the evaluation could be the r ecor d w as barren of any evidence that other functions Christy per- formed may have distinguished him from or aligned him with the other rejected by Respondent without explanation, as they shop supervisors. Accordingly, I draw no conclusions as to Christy's were in Rivera's case, they cannot be regarded as having nonemployee status. However, as discussed, infra, whether or not he is any decisive effect.' See Hydro Conduit Corporation, 254 included in the unit does not affect the Union's majority status. NLRB 433 (1981). 1 Respondent included Alfred Sosa and Manuel Lopez among the group of 20 alleged supervisors. However, Jt. Exh. l(b) shows that nei- ther had any subordinate and, therefore, cannot be deemed supervisors 'Respondent also was unable to produce any evaluations from alleged under the Act. Respondent may not, by the mere imposition of a title, Shop Supervisor Cuadrado. convert workers into supervisors. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD flects their greater experience and seniority with Re- Rivera drafted a petition requesting that management spondent. Although they had some responsibility for in- issue paychecks on a weekly rather than bimonthly basis. structing and correcting employees in their group, their On the morning of May 12, Rivera gave the petition to guidance appeared to be offered in an informal and coop- George Montalvo who then circulated it among all the erative spirit for they were without power to put any workers. By early afternoon, over 100 employees had bite into a command. It was apparent that Mercado and signed the petition. It was turned over to Eduardo Mer- Rivera identified completely with the employees' inter- cado for presentation to management during a staff meet- ests. They did not regard themselves nor were they ing scheduled later that day. viewed by others as an arm of management, particularly At the staff meeting that afternoon, after certain pro- when they were selected by their coworkers to represent duction problems were discussed, Ruiz invited questions them in forwarding their grievances to Respondent. See from the participants. Mercado took the opportunity to High Performance Tube, Inc., 251 NLRB 1362 (1980). mention the petition and asked Ruiz for his opinion as to whether the employees could be paid weekly. Ruiz III. ALLEGED UNFAIR LABOR PRACTICES reacted with some irritation, stating that he hoped the A. Events in January 1980 petition had not been signed on company time since this would be against company rules. The rule to which Ruiz Respondent commenced its operations in Puerto Rico was referring, as set forth in the employee handbook, in 1976, attracted by the Commonwealth's offer of tax in- made it an offense subject first to a warning and then to centives and grants to underwrite training for both discharge to distribute "written or printed material to skilled and unskilled labor. employees (irregardless [sic] of nature) without prior According to contracts executed between Respondent company approval or authorization." and the Administracion de Derecho al Trabajo (Workers Mercado assured Ruiz that the petition had been Rights Administration, hereinafter referred to as ADT), signed during the lunch period and on breaks. Then, 14-week sheet metal training programs were given at the Kim Ahrens, who also was present at the meeting, com- Aguadilla plant to groups of unskilled employees who mented that it would be too costly for the Company to were referred to Respondent by ADT. Trainees were convert to a weekly pay system and suggested that the promised $2.90 during the training period, $3.26 upon its problem lay in the employees' failure to better budget completion, and $3.50 an hour when the ADT contract their wages. Viewing these statements as a denial of the expired in December 1979. employees' request, Mercado felt it would be futile to In January 1980, several of the ADT employees vis- present the written petition and, instead, returned it to ited the ADT offices to complain that they had not re- another employee. ceived the contractually promised wage increase of $3.50 On Friday morning of the same week, the petition an hour. " An official there advised them that ADT had turned up on Ruiz' desk who then submitted it to Edd no way of compelling Respondent to abide by the terms Ahrens. This prompted Ahrens to call another supervi- of the then-expired contract. Subsequently, Edd Ahrens sory meeting at which time he upbraided those who had met with a delegation representing the discontented em- signed the petition. Ahrens took the position that the ployees and informed them that the terms of the contract junior supervisors owed their loyalties to management with ADT had been revised and that no raise would be and had erred in failing to dissuade the employees from forthcoming until after the next biannual evaluation was signing petitions. He further contended that some of the completed. During the course of the meeting, he men- signatures had been obtained by coercion and intimida- tioned that the Company was cooperating with Puerto tion and that the circulation of the petition was in viola- Rico, and that the only reason it would leave was if a tion of company rules. After Ahrens left the meeting, a union were brought in. He also suggested that the Com- number of those present questioned their status as super- pany could sell the blueprints for the aircraft to another visors. Others made reference to a Puerto Rican law company thereby leaving everyone without jobs. t which required weekly pay as well as sick pay. 2 Freddy B. Events in May 1980 Rivera suggested that the minimum wage and National Labor Relations Board laws should be posted on the Early in May 1980, in response to the wishes of em- company bulletin board. ployees in the wing and quality control shops, Freddy Following Respondent's apparent rejection of the peti- tion, the employees gathered at a community gym after '0 The previous July, after completing the training program, several work on May 16, and elected a committee which was employees visited the ADT offices to inquire why they had not received chared with arin a lit of rievances for nta- the first wage increase provided in their ADT contracts. It is undisputed arge preparing a grievances or prese that, shortly thereafter, Edd Ahrens called these employees to his office tion to management. 3 and told them to direct their questions to him, not to ADT. A week The following day, a Saturday, the committee mem- later, the 16 affected employees received the requisite pay increases retro- bers met at Mercado's home and drafted a letter outlin- active to the date on which their training concludedmber of employee complaints. H My findings in this paragraph are based on a composite of the cred- ing a number of employee complaints. ited testimony of Peter Lugo and Ruben Ferrer whom I found, based on their demeanor, to be trustworthy witnesses. Their descriptions of the 2The Company did not provide for paid sick leave. surprise they felt when Ahrens unexpectedly mentioned a union could 3 Those elected were Peter Lugo, Eduardo Mercado, Nicolas Ra- not have been feigned and lends authenticity to their entire account of mirez, and Freddy Rivera. this meeting. Moreover, having given an uncontradicted account of the " Generally, the complaints related to the matter of weekly pay, addi- first meeting with Ahrens, it is far more likely that Ferrer's version of the tional paid holidays, compensation for sick leave, the relationship be- second meeting, rather than Ahrens', also was accurate. Continued 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD flects their greater experience and seniority with Re- Rivera drafted a petition requesting that management spondent. Although they had some responsibility for in- issue paychecks on a weekly rather than bimonthly basis. structing and correcting employees in their group, their On the morning of May 12, Rivera gave the petition to guidance appeared to be offered in an informal and coop- George Montalvo who then circulated it among all the erative spirit for they were without power to put any workers. By early afternoon, over 100 employees had bite into a command. It was apparent that Mercado and signed the petition. It was turned over to Eduardo Mer- Rivera identified completely with the employees' inter- cado for presentation to management during a staff meet- ests. They did not regard themselves nor were they ing scheduled later that day. viewed by others as an arm of management, particularly At the staff meeting that afternoon, after certain pro- when they were selected by their coworkers to represent duction problems were discussed, Ruiz invited questions them in forwarding their grievances to Respondent. See from the participants. Mercado took the opportunity to High Performance Tube, Inc., 251 NLRB 1362 (1980). mention the petition and asked Ruiz for his opinion as to whether the employees could be paid weekly. Ruiz Ill. ALLEGED UNFAIR LABOR PRACTICES reacted with some irritation, stating that he hoped the A. Events in January 1980 petition had not been signed on company time since this would be against company rules. The rule to which Ruiz Respondent commenced its operations in Puerto Rico was referring, as set forth in the employee handbook, in 1976, attracted by the Commonwealth's offer of tax in- made it an offense subject first to a warning and then to centives and grants to underwrite training for both discharge to distribute "written or printed material to skilled and unskilled labor. employees (irregardless [sic] of nature) without prior According to contracts executed between Respondent company approval or authorization." and the Administracion de Derecho al Trabajo (Workers Mercado assured Ruiz that the petition had been Rights Administration, hereinafter referred to as ADT), signed during the lunch period and on breaks. Then, 14-week sheet metal training programs were given at the Kim Ahrens, who also was present at the meeting, com- Aguadilla plant to groups of unskilled employees who mented that it would be too costly for the Company to were referred to Respondent by ADT. Trainees were convert to a weekly pay system and suggested that the promised $2.90 during the training period, $3.26 upon its problem lay in the employees' failure to better budget completion, and $3.50 an hour when the ADT contract their wages. Viewing these statements as a denial of the expired in December 1979. employees' request, Mercado felt it would be futile to In January 1980, several of the ADT employees vis- present the written petition and, instead, returned it to ited the ADT offices to complain that they had not re- another employee. ceived the contractually promised wage increase of $3.50 On Friday morning of the same week, the petition an hour. "' An official there advised them that ADT had turned up on Ruiz' desk who then submitted it to Edd no way of compelling Respondent to abide by the terms Ahrens. This prompted Ahrens to call another supervi- of the then-expired contract. Subsequently, Edd Ahrens sory meeting at which time he upbraided those who had met with a delegation representing the discontented em- signed the petition. Ahrens took the position that the ployees and informed them that the terms of the contract junior supervisors owed their loyalties to management with ADT had been revised and that no raise would be and had erred in failing to dissuade the employees from forthcoming until after the next biannual evaluation was signing petitions. He further contended that some of the completed. During the course of the meeting, he men- signatures had been obtained by coercion and intimida- tioned that the Company was cooperating with Puerto tion and that the circulation of the petition was in viola- Rico, and that the only reason it would leave was if a tion of company rules. After Ahrens left the meeting, a union were brought in. He also suggested that the Com- number of those present questioned their status as super- pany could sell the blueprints for the aircraft to another visors. Others made reference to a Puerto Rican law company thereby leaving everyone without jobs. which required weekly pay as well as sick pay. 12 Freddy B. Events in May 1980 Rivera suggested that the minimum wage and National Labor Relations Board laws should be posted on the Early in May 1980, in response to the wishes of em- company bulletin board. ployees in the wing and quality control shops, Freddy Following Respondent's apparent rejection of the peti- tion, the employees gathered at a community gym after '0 The previous July, after completing the training program, several work on May 16, and elected a committee which Was employees visited the ADT offices to inquire why they had not received charced with nrparinc a list of crievances for nresfnta- the first wage increase provided in their ADT contracts. It is undisputed charged wit preparing a ISt of grievances for presena that, shortly thereafter, Edd Ahrens called these employees to his office tion to management.3 and told them to direct their questions to him, not to ADT. A week The following day, a Saturday, the committee mem- later, the 16 affected employees received the requisite pay increases retro- bers met at Mercado's home and drafted a letter outlin- active to the date on which their training concluded. 14e o mlye oplit. " My findings in this paragraph are based on a composite of the cred- in a number of employee complaints. ited testimony of Peter Lugo and Ruben Ferrer whom I found, based on their demeanor, to be trustworthy witnesses. Their descriptions of the '2 The Company did not provide for paid sick leave. surprise they fell when Ahrens unexpectedly mentioned a union could '3 Those elected were Peter Lugo, Eduardo Mercado, Nicolas Ra- not have been feigned and lends authenticity to their entire account of mirez, and Freddy Rivera. this meeting. Moreover, having given an uncontradicted account of the " Generally, the complaints related to the matter of weekly pay, addi- first meeting with Ahrens, it is far more likely that Ferrer's version of the tional paid holidays, compensation for sick leave, the relationship be- second meeting, rather than Ahrens', also was accurate. Continued 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD flects their greater experience and seniority with Re- Rivera drafted a petition requesting that management spondent. Although they had some responsibility for in- issue paychecks on a weekly rather than bimonthly basis. structing and correcting employees in their group, their On the morning of May 12, Rivera gave the petition to guidance appeared to be offered in an informal and coop- George Montalvo who then circulated it among all the erative spirit for they were without power to put any workers. By early afternoon, over 100 employees had bite into a command. It was apparent that Mercado and signed the petition. It was turned over to Eduardo Mer- Rivera identified completely with the employees' inter- cado for presentation to management during a staff meet- ests. They did not regard themselves nor were they ing scheduled later that day. viewed by others as an arm of management, particularly At the staff meeting that afternoon, after certain pro- when they were selected by their coworkers to represent duction problems were discussed, Ruiz invited questions them in forwarding their grievances to Respondent. See from the participants. Mercado took the opportunity to High Performance Tube, Inc., 251 NLRB 1362 (1980). mention the petition and asked Ruiz for his opinion as to whether the employees could be paid weekly. Ruiz Ill. ALLEGED UNFAIR LABOR PRACTICES reacted with some irritation, stating that he hoped the A. Events in January 1980 petition had not been signed on company time since this would be against company rules. The rule to which Ruiz Respondent commenced its operations in Puerto Rico was referring, as set forth in the employee handbook, in 1976, attracted by the Commonwealth's offer of tax in- made it an offense subject first to a warning and then to centives and grants to underwrite training for both discharge to distribute "written or printed material to skilled and unskilled labor. employees (irregardless [sic] of nature) without prior According to contracts executed between Respondent company approval or authorization." and the Administracion de Derecho al Trabajo (Workers Mercado assured Ruiz that the petition had been Rights Administration, hereinafter referred to as ADT), signed during the lunch period and on breaks. Then, 14-week sheet metal training programs were given at the Kim Ahrens, who also was present at the meeting, com- Aguadilla plant to groups of unskilled employees who mented that it would be too costly for the Company to were referred to Respondent by ADT. Trainees were convert to a weekly pay system and suggested that the promised $2.90 during the training period, $3.26 upon its problem lay in the employees' failure to better budget completion, and $3.50 an hour when the ADT contract their wages. Viewing these statements as a denial of the expired in December 1979. employees' request, Mercado felt it would be futile to In January 1980, several of the ADT employees vis- present the written petition and, instead, returned it to ited the ADT offices to complain that they had not re- another employee. ceived the contractually promised wage increase of $3.50 On Friday morning of the same week, the petition an hour. "' An official there advised them that ADT had turned up on Ruiz' desk who then submitted it to Edd no way of compelling Respondent to abide by the terms Ahrens. This prompted Ahrens to call another supervi- of the then-expired contract. Subsequently, Edd Ahrens sory meeting at which time he upbraided those who had met with a delegation representing the discontented em- signed the petition. Ahrens took the position that the ployees and informed them that the terms of the contract junior supervisors owed their loyalties to management with ADT had been revised and that no raise would be and had erred in failing to dissuade the employees from forthcoming until after the next biannual evaluation was signing petitions. He further contended that some of the completed. During the course of the meeting, he men- signatures had been obtained by coercion and intimida- tioned that the Company was cooperating with Puerto tion and that the circulation of the petition was in viola- Rico, and that the only reason it would leave was if a tion of company rules. After Ahrens left the meeting, a union were brought in. He also suggested that the Com- number of those present questioned their status as super- pany could sell the blueprints for the aircraft to another visors. Others made reference to a Puerto Rican law company thereby leaving everyone without jobs. which required weekly pay as well as sick pay. 12 Freddy B. Events in May 1980 Rivera suggested that the minimum wage and National Labor Relations Board laws should be posted on the Early in May 1980, in response to the wishes of em- company bulletin board. ployees in the wing and quality control shops, Freddy Following Respondent's apparent rejection of the peti- tion, the employees gathered at a community gym after '0 The previous July, after completing the training program, several work on May 16, and elected a committee which Was employees visited the ADT offices to inquire why they had not received pharced with nrparinc a list of crievances for nresfnta- the first wage increase provided in their ADT contracts. It is undisputed charged wit preparing a ISt of grievances for presena that, shortly thereafter, Edd Ahrens called these employees to his office tion to management.3 and told them to direct their questions to him, not to ADT. A week The following day, a Saturday, the committee mem- later, the 16 affected employees received the requisite pay increases retro- bers met at Mercado's home and drafted a letter outlin- active to the date on which their training concluded. 14e o mlye oplit. " My findings in this paragraph are based on a composite of the cred- in a number of employee complaints. ited testimony of Peter Lugo and Ruben Ferrer whom I found, based on their demeanor, to be trustworthy witnesses. Their descriptions of the '2 The Company did not provide for paid sick leave. surprise they fell when Ahrens unexpectedly mentioned a union could '3 Those elected were Peter Lugo, Eduardo Mercado, Nicolas Ra- not have been feigned and lends authenticity to their entire account of mirez, and Freddy Rivera. this meeting. Moreover, having given an uncontradicted account of the " Generally, the complaints related to the matter of weekly pay, addi- first meeting with Ahrens, it is far more likely that Ferrer's version of the tional paid holidays, compensation for sick leave, the relationship be- second meeting, rather than Ahrens', also was accurate. Continued 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD flects their greater experience and seniority with Re- Rivera drafted a petition requesting that management spondent. Although they had some responsibility for in- issue paychecks on a weekly rather than bimonthly basis. structing and correcting employees in their group, their On the morning of May 12, Rivera gave the petition to guidance appeared to be offered in an informal and coop- George Montalvo who then circulated it among all the erative spirit for they were without power to put any workers. By early afternoon, over 100 employees had bite into a command. It was apparent that Mercado and signed the petition. It was turned over to Eduardo Mer- Rivera identified completely with the employees' inter- cado for presentation to management during a staff meet- ests. They did not regard themselves nor were they ing scheduled later that day. viewed by others as an arm of management, particularly At the staff meeting that afternoon, after certain pro- when they were selected by their coworkers to represent duction problems were discussed, Ruiz invited questions them in forwarding their grievances to Respondent. See from the participants. Mercado took the opportunity to High Performance Tube, Inc., 251 NLRB 1362 (1980). mention the petition and asked Ruiz for his opinion as to whether the employees could be paid weekly. Ruiz Ill. ALLEGED UNFAIR LABOR PRACTICES reacted with some irritation, stating that he hoped the A. Events in January 1980 petition had not been signed on company time since this would be against company rules. The rule to which Ruiz Respondent commenced its operations in Puerto Rico was referring, as set forth in the employee handbook, in 1976, attracted by the Commonwealth's offer of tax in- made it an offense subject first to a warning and then to centives and grants to underwrite training for both discharge to distribute "written or printed material to skilled and unskilled labor. employees (irregardless [sic] of nature) without prior According to contracts executed between Respondent company approval or authorization." and the Administracion de Derecho al Trabajo (Workers Mercado assured Ruiz that the petition had been Rights Administration, hereinafter referred to as ADT), signed during the lunch period and on breaks. Then, 14-week sheet metal training programs were given at the Kim Ahrens, who also was present at the meeting, com- Aguadilla plant to groups of unskilled employees who mented that it would be too costly for the Company to were referred to Respondent by ADT. Trainees were convert to a weekly pay system and suggested that the promised $2.90 during the training period, $3.26 upon its problem lay in the employees' failure to better budget completion, and $3.50 an hour when the ADT contract their wages. Viewing these statements as a denial of the expired in December 1979. employees' request, Mercado felt it would be futile to In January 1980, several of the ADT employees vis- present the written petition and, instead, returned it to ited the ADT offices to complain that they had not re- another employee. ceived the contractually promised wage increase of $3.50 On Friday morning of the same week, the petition an hour. "' An official there advised them that ADT had turned up on Ruiz' desk who then submitted it to Edd no way of compelling Respondent to abide by the terms Ahrens. This prompted Ahrens to call another supervi- of the then-expired contract. Subsequently, Edd Ahrens sory meeting at which time he upbraided those who had met with a delegation representing the discontented em- signed the petition. Ahrens took the position that the ployees and informed them that the terms of the contract junior supervisors owed their loyalties to management with ADT had been revised and that no raise would be and had erred in failing to dissuade the employees from forthcoming until after the next biannual evaluation was signing petitions. He further contended that some of the completed. During the course of the meeting, he men- signatures had been obtained by coercion and intimida- tioned that the Company was cooperating with Puerto tion and that the circulation of the petition was in viola- Rico, and that the only reason it would leave was if a tion of company rules. After Ahrens left the meeting, a union were brought in. He also suggested that the Com- number of those present questioned their status as super- pany could sell the blueprints for the aircraft to another visors. Others made reference to a Puerto Rican law company thereby leaving everyone without jobs. which required weekly pay as well as sick pay. 12 Freddy B. Events in May 1980 Rivera suggested that the minimum wage and National Labor Relations Board laws should be posted on the Early in May 1980, in response to the wishes of em- company bulletin board. ployees in the wing and quality control shops, Freddy Following Respondent's apparent rejection of the peti- tion, the employees gathered at a community gym after '0 The previous July, after completing the training program, several work on May 16, and elected a committee which Was employees visited the ADT offices to inquire why they had not received pharced with nrparinc a list of crievances for nresfnta- the first wage increase provided in their ADT contracts. It is undisputed charged wit preparing a ISt of grievances for presena that, shortly thereafter, Edd Ahrens called these employees to his office tion to management.3 and told them to direct their questions to him, not to ADT. A week The following day, a Saturday, the committee mem- later, the 16 affected employees received the requisite pay increases retro- bers met at Mercado's home and drafted a letter outlin- active to the date on which their training concluded. 14e o mlye oplit. " My findings in this paragraph are based on a composite of the cred- in a number of employee complaints. ited testimony of Peter Lugo and Ruben Ferrer whom I found, based on their demeanor, to be trustworthy witnesses. Their descriptions of the '2 The Company did not provide for paid sick leave. surprise they fell when Ahrens unexpectedly mentioned a union could '3 Those elected were Peter Lugo, Eduardo Mercado, Nicolas Ra- not have been feigned and lends authenticity to their entire account of mirez, and Freddy Rivera. this meeting. Moreover, having given an uncontradicted account of the " Generally, the complaints related to the matter of weekly pay, addi- first meeting with Ahrens, it is far more likely that Ferrer's version of the tional paid holidays, compensation for sick leave, the relationship be- second meeting, rather than Ahrens', also was accurate. Continued AHRENS AIRCRAFT, INC. 845 On Monday morning, May 19, Mercado hand-deliv- Later that morning, Ruiz told Mercado and Rivera ered the letter to Ruiz, telling him that the committee ex- they were fired as of noon that day for having violated pected a response in 24 hours. During the course of the the Company's rules. He further advised them that they day, Johnny Rodriguez, an assistant plant manager, told would receive termination notices by mail. Ruiz pre- Mercado that 24 hours was too short a time for manage- pared such notices and subsequently inserted them in ment to respond. He also asked Rivera what would each man's personnel file but never sent them to the happen if the letter was not answered within 24 hours, to men. Four of the six reasons cited for Mercado's dismiss- which Rivera replied that the employees would have to al had to do with his allegedly argumentative nature and decide by majority vote, but that he doubted that a pro- inability to work well with others. In support of these test could be averted.'5 Later that day, Rodriguez told conclusions, Ruiz alluded to several memos in Mercado's Mercado that the Company's response to the grievance personnel folder documenting three arguments he had letter was negative. with employees in March, May, and June 1979. The last In reaction to the receipt of the grievance letter, Edd two reasons listed in Mercado's termination notice con- Ahrens and Ruiz embarked on a series of meetings with cerned his violating company rules by circulating the the employees in each shop throughout May 20 and 21. May 12 petition on company time and company prem- In describing the meeting which he attended with other ises. employees in the wing shop, Rivera said that Ahrens dis- In addition to his role in circulating the May 12 peti- cussed the various items in the grievance letter with the tion, three other reasons were outlined in the notice justi- assembled group. When Mercado and 15 other employ- fying Rivera's discharge, including an inability to work ees met with Ahrens and Ruiz, Ahrens stated among harmoniously with others and an unwillingness to en- other things that the Company might cease to exist if too courage persons in his crew to engage in productive much was asked of it. ~ much was asked of it. 16 work. By this, Ruiz was referring to an incident in which After work on May 20, Mercado arranged for another an employee Grace Peterson, allegedly accused Rivera mass meeting of the employees at which time, Juan Mal- ' . mass meeting of the employees at which time, Juan Mal- of telling her to look busy when she needed a new as- danado, the Union's business representative, spoke about signment. In fact Peterson testified that she told Ruiz it the procedures involved in organizing and described the Sper ert e h adehe state t rights which workers have. 7 Mercado then asked for a was Supervisor Robert McQue who made the statement rights which kers have" Mercado then asked for a which Ruiz attributed to Rivera. At the hearing, both vote on whether the employees favored joining the Union. By a show of hands, a majority of those attending Edd Ahrens and Ruiz testified that the decisionto term- registered their approval. After the meeting ended, Mer- nate Rivera and Mercado wasmade on either May 19 or cado distributed authorization cards and obtained 37 20 and was based on their belief that the two had origi- signed cards immediately. nated the petition requesting weekly pay, thereby inter- fering with production. C. The Discharges D. Other Alleged Independent Violations The following day, May 21, Mercado arrived at the plant parking lot at 6:30 a.m., one-half hour early, to dis- (a) On a da soon afer employee Juan Mendez signed tribute additional cards to employees before they entered the first petition seeking weekly pay, he was told by the facility. He was joined shortly thereafter by employ- Juan Martir that if he or anyone else became involved in ees Lugo, Rivera, and Enchautegui who also began to union matters they could be fired. circulate union authorization cards and distribute union (b) On May 21, in the parking lot prior to beginning literature. As a large number of employees began to col- work, Mendez handed a signed authorization card to a lect around them, they became aware that a number of fellow employee under the scrutiny of the nearby com- Respondent's chief executives were watching the em- pany officials. Later that morning, Antonio Acosta ap- ployees from the vantage point of a small platform out- preached Mendez at his work station and warned him side the door which management used to enter the plant. that he or anyone else involved in issues such as strikes Ruiz approached Mercado and warned him that he was could be fired."' violating company rules and could be fired for his activi- (c) During the week of May 19, Martir called a special ties. Mercado replied that he was acting lawfully as a meeting of the quality control employees and advised union organizer. Rivera then handed Ruiz a copy of the them that they could not belong to the Union. Some of union literature he had been distributing. Ruiz then the employees reacted by laughing and several others warned him that he too could be fired for violating com- suggested that Martir was incorrect. Martir responded pany rules by distributing union propaganda. by telling the employees he would check with William Black, a Federal Aviation Agency inspector working tween management and the workers, the inadequacy of medical services, closely with Respondent. and sanitary conditions at the plant. 's At one of the after-hours meetings of the employees, a vote was (d) Later that day, Martir summoned the quality con- taken authorizing a strike. However, the exact date was not made known trol employees to another meeting in Kim Ahrens' office. since there was some apprehension that reports of the workers' activities With Martir seated beside him, Inspector Black told the were being relayed to management. group that they shoud not join the Union for they were " Respondent did not deny that Ahrens made this statement. 17 Mercado contacted Maldanado the previous day because he was ap- prehensive that his prominent role in the employees' concerted activities 8 For demeanor reasons, I credit Mendez' testimony in preference to might lead to management reprisals against him. Acosta's denial. AHRENS AIRCRAFT, INC. 845 On Monday morning, May 19, Mercado hand-deliv- Later that morning, Ruiz told Mercado and Rivera ered the letter to Ruiz, telling him that the committee ex- they were fired as of noon that day for having violated pected a response in 24 hours. During the course of the the Company's rules. He further advised them that they day, Johnny Rodriguez, an assistant plant manager, told would receive termination notices by mail. Ruiz pre- Mercado that 24 hours was too short a time for manage- pared such notices and subsequently inserted them in ment to respond. He also asked Rivera what would each man's personnel file but never sent them to the happen if the letter was not answered within 24 hours, to men. Four of the six reasons cited for Mercado's dismiss- which Rivera replied that the employees would have to al had to do with his allegedly argumentative nature and decide by majority vote, but that he doubted that a pro- inability to work well with others. In support of these test could be averted.'" Later that day, Rodriguez told conclusions, Ruiz alluded to several memos in Mercado's Mercado that the Company's response to the grievance personnel folder documenting three arguments he had letter was negative. with employees in March, May, and June 1979. The last In reaction to the receipt of the grievance letter, Edd two reasons listed in Mercado's termination notice con- Ahrens and Ruiz embarked on a series of meetings with cerned his violating company rules by circulating the the employees in each shop throughout May 20 and 21. May 12 petition on company time and company prem- In describing the meeting which he attended with other ises. employees in the wing shop, Rivera said that Ahrens dis- In addition to his role in circulating the May 12 peti- cussed the various items in the grievance letter with the tion, three other reasons were outlined in the notice justi- assembled group. When Mercado and 15 other employ- fying Rivera's discharge, including an inability to work ees met with Ahrens and Ruiz, Ahrens stated among harmoniously with others and an unwillingness to en- other things that the Company might cease to exist if too courage persons in his crew to engage in productive much was asked of it. 16 work. By this, Ruiz was referring to an incident in which After work on May 20, Mercado arranged for another an employee, Grace Peterson, allegedly accused Rivera mass meeting of the employees at which time, Juan Mal- of telling her to look busy when she needed a new as- danado, the Union's business representative, spoke about signment. In fact, Peterson testified that she told Ruiz it the procedures involved in organizing and described the Supervisor Robert McQue who made the statement rights which workers have." Mercado then asked for a wasuprvo attributed to Rivera. At tme hearing, both vote on whether the employees favored joining the whichRiz aibt t Rvra. A the h both Union. By a show of hands, a majority of those attending E d d A h r e ns and Ruiz t es tifi ed t h at t h e d ecisio n t o t er m i- registered their approval. After the meeting ended, Mer- n a t e R iv er a an d M er c a d o w as m a de o n eith e r M a y 19 o r cado distributed authorization cards and obtained 37 20 a nd w as ba sed on t h eir b elief t h at th e t w o h ad origi- signed cards immediately. n a te d t h e petition requesting weekly pay, thereby inter- fering with production. C. The Discharges_ , ,_, , ,.,. D. Other Alleged Independent Violations The following day, May 21, Mercado arrived at the ( O y fen e plant parking lot at 6:30 a.m., one-half hour early, to dis- (a) °" a d ^ so o n a f t e r employee Juan Mendez signed tribute additional cards to employees before they entered t h e first petition seeking weekly pay, he was told by the facility. He was joined shortly thereafter by employ- J u a n Martir that if he or anyone else became involved in ees Lugo, Rivera, and Enchautegui who also began to u"no" matters they could be fired. circulate union authorization cards and distribute union (b) On May 21, in the parking lot prior to beginning literature. As a large number of employees began to col- work, Mendez handed a signed authorization card to a lect around them, they became aware that a number of fellow employee under the scrutiny of the nearby com- Respondent's chief executives were watching the em- pany officials. Later that morning, Antonio Acosta ap- ployees from the vantage point of a small platform out- preached Mendez at his work station and warned him side the door which management used to enter the plant. that he or anyone else involved in issues such as strikes Ruiz approached Mercado and warned him that he was could be fired." violating company rules and could be fired for his activi- (c) During the week of May 19, Martir called a special ties. Mercado replied that he was acting lawfully as a meeting of the quality control employees and advised union organizer. Rivera then handed Ruiz a copy of the them that they could not belong to the Union. Some of union literature he had been distributing. Ruiz then the employees reacted by laughing and several others warned him that he too could be fired for violating com- suggested that Martir was incorrect. Martir responded pany rules by distributing union propaganda,.by telling the employees he would check with William Black, a Federal Aviation Agency inspector working tween management and the workers, the inadequacy of medical services, closely with Respondent. and sanitary conditions at the plant. ()Ltrta aMri umndteqaiycn 'I At one of the after-hours meetings of the employees, a vote was (d) Later that day, Martir summoned the quality con- taken authorizing a strike. However, the exact date was not made known trol employees to another meeting in Kim Ahrens' office. since there was some apprehension that reports of the workers' activities With Martir Seated beside him, Inspector Black told the were being relayed to management. group that they should not join the Union for they were "1 Respondent did not deny that Ahrens made this statement. 17Mercado contacted Maldanado the previous day because he was ap- prehensive that his prominent role in the employees' concerted activities '" For demeanor reasons, I credit Mendez' testimony in preference to might lead to management reprisals against him. Acosta's denial. AHRENS AIRCRAFT, INC. 845 On Monday morning, May 19, Mercado hand-deliv- Later that morning, Ruiz told Mercado and Rivera ered the letter to Ruiz, telling him that the committee ex- they were fired as of noon that day for having violated pected a response in 24 hours. During the course of the the Company's rules. He further advised them that they day, Johnny Rodriguez, an assistant plant manager, told would receive termination notices by mail. Ruiz pre- Mercado that 24 hours was too short a time for manage- pared such notices and subsequently inserted them in ment to respond. He also asked Rivera what would each man's personnel file but never sent them to the happen if the letter was not answered within 24 hours, to men. Four of the six reasons cited for Mercado's dismiss- which Rivera replied that the employees would have to al had to do with his allegedly argumentative nature and decide by majority vote, but that he doubted that a pro- inability to work well with others. In support of these test could be averted.'" Later that day, Rodriguez told conclusions, Ruiz alluded to several memos in Mercado's Mercado that the Company's response to the grievance personnel folder documenting three arguments he had letter was negative. with employees in March, May, and June 1979. The last In reaction to the receipt of the grievance letter, Edd two reasons listed in Mercado's termination notice con- Ahrens and Ruiz embarked on a series of meetings with cerned his violating company rules by circulating the the employees in each shop throughout May 20 and 21. May 12 petition on company time and company prem- In describing the meeting which he attended with other ises. employees in the wing shop, Rivera said that Ahrens dis- In addition to his role in circulating the May 12 peti- cussed the various items in the grievance letter with the tion, three other reasons were outlined in the notice justi- assembled group. When Mercado and 15 other employ- fying Rivera's discharge, including an inability to work ees met with Ahrens and Ruiz, Ahrens stated among harmoniously with others and an unwillingness to en- other things that the Company might cease to exist if too courage persons in his crew to engage in productive much was asked of it. 16 work. By this, Ruiz was referring to an incident in which After work on May 20, Mercado arranged for another an employee, Grace Peterson, allegedly accused Rivera mass meeting of the employees at which time, Juan Mal- of telling her to look busy when she needed a new as- danado, the Union's business representative, spoke about signment. In fact, Peterson testified that she told Ruiz it the procedures involved in organizing and described the Supervisor Robert McQue who made the statement rights which workers have." Mercado then asked for a wasuprvo attributed to Rivera. At tme hearing, both vote on whether the employees favored joining the whichRiz aint t Rvra. A the h both Union. By a show of hands, a majority of those attending E d d A h r e ns and Ruiz t es tifi ed t h at t h e d ecisio n t o t er m i- registered their approval. After the meeting ended, Mer- n a t e R iv er a an d M er c a d o w as m a de o n eith e r M a y 19 o r cado distributed authorization cards and obtained 37 20 a nd w as ba sed on t h eir b elief t h at th e t w o h ad origi- signed cards immediately. n a te d t h e petition requesting weekly pay, thereby inter- fering with production. C. The Discharges_ , ,_, , ,.,. D. Other Alleged Independent Violations The following day, May 21, Mercado arrived at the ( O y fen e plant parking lot at 6:30 a.m., one-half hour early, to dis- (a) °" a d ^ so o n a f t e r employee Juan Mendez signed tribute additional cards to employees before they entered t h e first petition seeking weekly pay, he was told by the facility. He was joined shortly thereafter by employ- J u a n Martir that if he or anyone else became involved in ees Lugo, Rivera, and Enchautegui who also began to u"no" matters they could be fired. circulate union authorization cards and distribute union (b) On May 21, in the parking lot prior to beginning literature. As a large number of employees began to col- work, Mendez handed a signed authorization card to a lect around them, they became aware that a number of fellow employee under the scrutiny of the nearby com- Respondent's chief executives were watching the em- pany officials. Later that morning, Antonio Acosta ap- ployees from the vantage point of a small platform out- preached Mendez at his work station and warned him side the door which management used to enter the plant. that he or anyone else involved in issues such as strikes Ruiz approached Mercado and warned him that he was could be fired." violating company rules and could be fired for his activi- (c) During the week of May 19, Martir called a special ties. Mercado replied that he was acting lawfully as a meeting of the quality control employees and advised union organizer. Rivera then handed Ruiz a copy of the them that they could not belong to the Union. Some of union literature he had been distributing. Ruiz then the employees reacted by laughing and several others warned him that he too could be fired for violating com- suggested that Martir was incorrect. Martir responded pany rules by distributing union propaganda,.by telling the employees he would check with William Black, a Federal Aviation Agency inspector working tween management and the workers, the inadequacy of medical services, closely with Respondent. and sanitary conditions at the plant. ()Ltrta aMri umndteqaiycn 'I At one of the after-hours meetings of the employees, a vote was (d) Later that day, Martir summoned the quality con- taken authorizing a strike. However, the exact date was not made known trol employees to another meeting in Kim Ahrens' office. since there was some apprehension that reports of the workers' activities With Martir Seated beside him, Inspector Black told the were being relayed to management. group that they should not join the Union for they were "1 Respondent did not deny that Ahrens made this statement. 17Mercado contacted Maldanado the previous day because he was ap- prehensive that his prominent role in the employees' concerted activities '" For demeanor reasons, I credit Mendez' testimony in preference to might lead to management reprisals against him. Acosta's denial. AHRENS AIRCRAFT, INC. 845 On Monday morning, May 19, Mercado hand-deliv- Later that morning, Ruiz told Mercado and Rivera ered the letter to Ruiz, telling him that the committee ex- they were fired as of noon that day for having violated pected a response in 24 hours. During the course of the the Company's rules. He further advised them that they day, Johnny Rodriguez, an assistant plant manager, told would receive termination notices by mail. Ruiz pre- Mercado that 24 hours was too short a time for manage- pared such notices and subsequently inserted them in ment to respond. He also asked Rivera what would each man's personnel file but never sent them to the happen if the letter was not answered within 24 hours, to men. Four of the six reasons cited for Mercado's dismiss- which Rivera replied that the employees would have to al had to do with his allegedly argumentative nature and decide by majority vote, but that he doubted that a pro- inability to work well with others. In support of these test could be averted.'" Later that day, Rodriguez told conclusions, Ruiz alluded to several memos in Mercado's Mercado that the Company's response to the grievance personnel folder documenting three arguments he had letter was negative. with employees in March, May, and June 1979. The last In reaction to the receipt of the grievance letter, Edd two reasons listed in Mercado's termination notice con- Ahrens and Ruiz embarked on a series of meetings with cerned his violating company rules by circulating the the employees in each shop throughout May 20 and 21. May 12 petition on company time and company prem- In describing the meeting which he attended with other ises. employees in the wing shop, Rivera said that Ahrens dis- In addition to his role in circulating the May 12 peti- cussed the various items in the grievance letter with the tion, three other reasons were outlined in the notice justi- assembled group. When Mercado and 15 other employ- fying Rivera's discharge, including an inability to work ees met with Ahrens and Ruiz, Ahrens stated among harmoniously with others and an unwillingness to en- other things that the Company might cease to exist if too courage persons in his crew to engage in productive much was asked of it. 16 work. By this, Ruiz was referring to an incident in which After work on May 20, Mercado arranged for another an employee, Grace Peterson, allegedly accused Rivera mass meeting of the employees at which time, Juan Mal- of telling her to look busy when she needed a new as- danado, the Union's business representative, spoke about signment. In fact, Peterson testified that she told Ruiz it the procedures involved in organizing and described the Supervisor Robert McQue who made the statement rights which workers have." Mercado then asked for a wasuprvo attributed to Rivera. At tme hearing, both vote on whether the employees favored joining the whichRiz aint t Rvra. A the h both Union. By a show of hands, a majority of those attending E d d A h r e ns and Ruiz t es tifi ed t h at t h e d ecisio n t o t er m i- registered their approval. After the meeting ended, Mer- n a t e R iv er a an d M er c a d o w as m a de o n eith e r M a y 19 o r cado distributed authorization cards and obtained 37 20 a nd w as ba sed on t h eir b elief t h at th e t w o h ad origi- signed cards immediately. n a te d t h e petition requesting weekly pay, thereby inter- fering with production. C. The Discharges_ , ,_, , ,.,. D. Other Alleged Independent Violations The following day, May 21, Mercado arrived at the ( O y fen e plant parking lot at 6:30 a.m., one-half hour early, to dis-( a) °" a day so o n a f t e r employee Juan Mendez signed tribute additional cards to employees before they entered t h e first petition seeking weekly pay, he was told by the facility. He was joined shortly thereafter by employ- J u a n Martir that if he or anyone else became involved in ees Lugo, Rivera, and Enchautegui who also began to u"no" matters they could be fired. circulate union authorization cards and distribute union (b) On May 21, in the parking lot prior to beginning literature. As a large number of employees began to col- work, Mendez handed a signed authorization card to a lect around them, they became aware that a number of fellow employee under the scrutiny of the nearby com- Respondent's chief executives were watching the em- pany officials. Later that morning, Antonio Acosta ap- ployees from the vantage point of a small platform out- preached Mendez at his work station and warned him side the door which management used to enter the plant. that he or anyone else involved in issues such as strikes Ruiz approached Mercado and warned him that he was could be fired." violating company rules and could be fired for his activi- (c) During the week of May 19, Martir called a special ties. Mercado replied that he was acting lawfully as a meeting of the quality control employees and advised union organizer. Rivera then handed Ruiz a copy of the them that they could not belong to the Union. Some of union literature he had been distributing. Ruiz then the employees reacted by laughing and several others warned him that he too could be fired for violating com- suggested that Martir was incorrect. Martir responded pany rules by distributing union propaganda,.by telling the employees he would check with William Black, a Federal Aviation Agency inspector working tween management and the workers, the inadequacy of medical services, closely with Respondent. and sanitary conditions at the plant. ()Ltrta aMri umndteqaiycn 'I At one of the after-hours meetings of the employees, a vote was (d) Later that day, Martir summoned the quality con- taken authorizing a strike. However, the exact date was not made known trol employees to another meeting in Kim Ahrens' office. since there was some apprehension that reports of the workers' activities With Martir Seated beside him, Inspector Black told the were being relayed to management. group that they should not join the Union for they were "1 Respondent did not deny that Ahrens made this statement. 17Mercado contacted Maldanado the previous day because he was ap- prehensive that his prominent role in the employees' concerted activities '" For demeanor reasons, I credit Mendez' testimony in preference to might lead to management reprisals against him. Acosta's denial. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered a part of management and that in his experi- Section 8(a)(l). Chester Valley, Inc., 251 NLRB 1435 ence such employees were never represented by unions. (1980); Bacchus Wine Cooperative, Inc., and Bacchus Wine (e) Shortly after this meeting concluded, Martir told International, 251 NLRB 1552 (1980).'9 quality control employee Luis Muniz and Linda Santiago I also find that Respondent's overly broad rule prohib- that they could be fired if they became involved with the iting the distribution of any printed material to employ- Union. ees without prior company authorization is illegal on its (f) The day after these two meetings took place, face. Martir instructed employee Rey Mendez that quality Respondent attempted to prove that the rule was not control workers could not join the Union and would be unlawfully applied by showing that, at a staff meeting on discharged if they did so. May 12, Ruiz had limited the invocation of the rule only (g) Prior to the start of the workday on May 25, Peter to the distribution of unauthorized materials on company Lugo was soliciting signatures on a union petition in the time and company premises. However, Respondent was parking lot, when he was told he was being watched. At unsuccessful in disguising the untempered application of 7:30 a.m., he was summoned to Edd Ahrens' office the rule to the distribution of union authorization cards where Ahrens questioned him about what he had been and union literature by Rivera and Mercado on May 21. doing earlier that morning. When Lugo explained that he Although their circulation of union materials took place was soliciting signatures for the Union, Ahrens repri- on the parking lot before working hours, Ruiz an- manded him with a verbal warning for violating compa- nounced in the presence of a large number of employees ny rules. He also asked Lugo why the employees wanted that Rivera and Mercado could be fired for disobeying to bring a union into the plant, and why they could not the Company's rule. Similarly, Respondent held Peter simply discuss their problems with Ruiz. Lugo liable for violating the rule although his activities, (h) On October 6, 1980, just I week before the instant too, occurred prior to the start of the workday. Accord- hearing, Rey Mendez was called to an interview where, ingly, both in its promulgation of and adherence to the with Edd Ahrens present, one of Respondent's attorneys overly broad rule, Respondent has violated Section asked him whether Martir had held a meeting with the 8(a)(l). W. B. Johnson Properties, Inc., d/b/a Olympic quality control staff, whether he had in fact threatened Villas, 241 NLRB 358 (1979); Essex International, Inc., them about joining the Union, and whether FAA Inspec- 211 NLRB 749 (1974). tor Black's remarks were perceived as threats by the em- Ruiz' threats to discharge Mercado and Rivera on ployees. May 21 were particularly pernicious since they were communicated in the presence of a large group of em- iv. DISCUSSIONS AND CONCLUSIONS ployees, and were made with the apparent endorsement A. Independent 8(a)(l) Violations of many of the Company's top management officials who were surveying the scene. Ruiz' testimony at the hearing I find there is substantial and frequently uncontrovert- in this case suggests that he knew the no-distribution rule ed evidence in the record which supports the General should not have been applied to situations in which em- Counsel's allegations that Respondent engaged in an ex- ployees were circulating material during nonworking tensive series of unfair labor practices. Thus, in agree- hours. Thus, his reliance on that rule to outlaw Mercado ment with the General Counsel, I find that Respondent's and Rivera's activities was merely a ruse to disguise a comments in January 1980, to a delegation of employees blatant effort to intimidate them and all the other em- who were pressing for higher wages, that the Company ployees present and to dissuade them from exercising would abandon Puerto Rico if the plant was unionized their protected right to engage in collective activity. and that it would sell its blueprints, leaving the employ- Evidence that Juan Martir, manager of the quality ees jobless, were unequivocal threats of plant closure in control division, threatened employees with discharge violation of Section 8(a)(l). See DRW Corporation d/b/a and attempted to inhibit their union activity was abun- Brothers Three Cabinets, 248 NLRB 828, 839 (1979); dant and uncontradicted. Respondent suggests, however, American Spring Wire Corporation, 237 NLRB 1551, 1553 that Martir should be held blameless because of his (1978). This threat was conveyed months before the honest conviction that quality control employees were Ahrens employees actually began to organize. However, not eligible for union membership. It is well settled that Edd Ahrens' similar remark to a group of employees on subjective motivation, even if innocent, is irrelevant to May 21, that the Company might close if too much pres- finding a respondent liable for the commission of unfair sure was placed on it by employees, came at the height labor practices. That the employees laughed when Martir of the Union's drive. An employer's allegation that em- told them they could not join the Union is equally irrele- ployees' collective activity will lead to plant closure con- vant for employees' subjective reactions to an alleged il- stitutes an unlawful threat rather than a lawful prediction legality may not be taken into account. (El Rancho unless the employer shows that its statement was based Market, 235 NLRB 468, 471 (1978)). Thus, Martir's re- on objective facts which demonstrate probable conse- quences outside its control. N.L.R.B. v. Gissel Packing " Although Ahrens' statement was not alleged as an unfair labor prac- Co., Inc., 395 U.S. 575, 617-619 (1969). Here, Ahrens' tice in the complaint, it was part and parcel of Respondent's antiunion comment was not an objective response to concrete costs campaign and was a matter about which Respondent had ample opportu- attached to specific employee proposals. Rather, it was a nity to offer evidence. Accordingly, I find Respondent's threat to be an- other instance of unlawful conduct in violation of Sec. 8(aXI). Jusiak threat clearly designed to discourage the employees from Brothers and Company, Inc., 253 NLRB 1054 (1980); Ultra-Sonic De-Bur- engaging in collective activity and is per se violative of ring, Inc. of Texas. 233 NLRB 1060, 1068 fn. 12 (1977). quait coto-mloe------ n id Snig ls idta Rsodn' oel ra rl rhb 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered a part of management and that in his experi- Section 8(a)(l). Chester Valley, Inc., 251 NLRB 1435 ence such employees were never represented by unions. (1980); Bacchus Wine Cooperative, Inc., and Bacchus Wine (e) Shortly after this meeting concluded, Martir told International, 251 NLRB 1552 (1980).'9 quality control employee Luis Muniz and Linda Santiago I also find that Respondent's overly broad rule prohib- that they could be fired if they became involved with the iting the distribution of any printed material to employ- Union. ees without prior company authorization is illegal on its (f) The day after these two meetings took place, face. Martir instructed employee Rey Mendez that quality Respondent attempted to prove that the rule was not control workers could not join the Union and would be unlawfully applied by showing that, at a staff meeting on discharged if they did so. May 12, Ruiz had limited the invocation of the rule only (g) Prior to the start of the workday on May 25, Peter to the distribution of unauthorized materials on company Lugo was soliciting signatures on a union petition in the time and company premises. However, Respondent was parking lot, when he was told he was being watched. At unsuccessful in disguising the untempered application of 7:30 a.m., he was summoned to Edd Ahrens' office the rule to the distribution of union authorization cards where Ahrens questioned him about what he had been and union literature by Rivera and Mercado on May 21. doing earlier that morning. When Lugo explained that he Although their circulation of union materials took place was soliciting signatures for the Union, Ahrens repri- on the parking lot before working hours, Ruiz an- manded him with a verbal warning for violating compa- nounced in the presence of a large number of employees ny rules. He also asked Lugo why the employees wanted that Rivera and Mercado could be fired for disobeying to bring a union into the plant, and why they could not the Company's rule. Similarly, Respondent held Peter simply discuss their problems with Ruiz. Lugo liable for violating the rule although his activities, (h) On October 6, 1980, just 1 week before the instant too, occurred prior to the start of the workday. Accord- hearing, Rey Mendez was called to an interview where, ingly, both in its promulgation of and adherence to the with Edd Ahrens present, one of Respondent's attorneys overly broad rule, Respondent has violated Section asked him whether Martir had held a meeting with the 8(a)(l). W. B. Johnson Properties, Inc., d/b/a Olympic quality control staff, whether he had in fact threatened Villas, 241 NLRB 358 (1979); Essex International, Inc., them about joining the Union, and whether FAA Inspec- 211 NLRB 749 (1974). tor Black's remarks were perceived as threats by the em- Ruiz' threats to discharge Mercado and Rivera on ployees. May 21 were particularly pernicious since they were communicated in the presence of a large group of em- Iv. DISCUSSIONS AND CONCLUSIONS ployees, and were made with the apparent endorsement A. Independent 8(a)(l) Violations o f m any o f t h e Company's top management officials who were surveying the scene. Ruiz' testimony at the hearing I find there is substantial and frequently uncontrovert- in this case suggests that he knew the no-distribution rule ed evidence in the record which supports the General should not have been applied to situations in which em- Counsel's allegations that Respondent engaged in an ex- ployees were circulating material during nonworking tensive series of unfair labor practices. Thus, in agree- hours. Thus, his reliance on that rule to outlaw Mercado ment with the General Counsel, I find that Respondent's and Rivera's activities was merely a ruse to disguise a comments in January 1980, to a delegation of employees blatant effort to intimidate them and all the other em- who were pressing for higher wages, that the Company ployees present and to dissuade them from exercising would abandon Puerto Rico if the plant was unionized their protected right to engage in collective activity. and that it would sell its blueprints, leaving the employ- Evidence that Juan Martir, manager of the quality ees jobless, were unequivocal threats of plant closure in control division, threatened employees with discharge violation of Section 8(a)(l). See DR W Corporation d/b/a and attempted to inhibit their union activity was abun- Brothers Three Cabinets, 248 NLRB 828, 839 (1979); dant and uncontradicted. Respondent suggests, however, American Spring Wire Corporation, 237 NLRB 1551, 1553 that Martir should be held blameless because of his (1978). This threat was conveyed months before the honest conviction that quality control employees were Ahrens employees actually began to organize. However, not eligible for union membership. It is well settled that Edd Ahrens' similar remark to a group of employees on subjective motivation, even if innocent, is irrelevant to May 21, that the Company might close if too much pres- finding a respondent liable for the commission of unfair sure was placed on it by employees, came at the height labor practices. That the employees laughed when Martir of the Union's drive. An employer's allegation that em- told them they could not join the Union is equally irrele- ployees' collective activity will lead to plant closure con- vant for employees' subjective reactions to an alleged il- stitutes an unlawful threat rather than a lawful prediction legality may not be taken into account. (El Rancho unless the employer shows that its statement was based Market, 235 NLRB 468, 471 (1978)). Thus, Martir's re- on objective facts which demonstrate probable conse- quences outside its control. N.L.R.B. V. Gissel Packing '* Although Ahrens' statement was not alleged as an unfair labor prac- Co., Inc., 395 U.S. 575, 617-619 (1969). Here, Ahrens' tice in the complaint, it was part and parcel of Respondent's antiunion Comment Was not an objective response to Concrete costs campaign and was a matter about which Respondent had ample opportu- attached to specific employee proposals. Rather, it was a nity to off er ev idence, Accordingly, I find Respondent's threat to be an- other instance of unlawful conduct in violation of Sec. 8(aXl). Jusiak threat clearly designed to discourage the employees from Broters and Company, Inc., 253 NLRB 1054 (1980); Ultra-Sonic De-Bur- engaging in collective activity and is per se violative of ring, Inc. of Texas. 233 NLRB 1060, 1068, fn. 12 (1977). 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered a part of management and that in his experi- Section 8(a)(l). Chester Valley, Inc., 251 NLRB 1435 ence such employees were never represented by unions. (1980); Bacchus Wine Cooperative, Inc., and Bacchus Wine (e) Shortly after this meeting concluded, Martir told International, 251 NLRB 1552 (1980).'9 quality control employee Luis Muniz and Linda Santiago I also find that Respondent's overly broad rule prohib- that they could be fired if they became involved with the iting the distribution of any printed material to employ- Union. ees without prior company authorization is illegal on its (f) The day after these two meetings took place, face. Martir instructed employee Rey Mendez that quality Respondent attempted to prove that the rule was not control workers could not join the Union and would be unlawfully applied by showing that, at a staff meeting on discharged if they did so. May 12, Ruiz had limited the invocation of the rule only (g) Prior to the start of the workday on May 25, Peter to the distribution of unauthorized materials on company Lugo was soliciting signatures on a union petition in the time and company premises. However, Respondent was parking lot, when he was told he was being watched. At unsuccessful in disguising the untempered application of 7:30 a.m., he was summoned to Edd Ahrens' office the rule to the distribution of union authorization cards where Ahrens questioned him about what he had been and union literature by Rivera and Mercado on May 21. doing earlier that morning. When Lugo explained that he Although their circulation of union materials took place was soliciting signatures for the Union, Ahrens repri- on the parking lot before working hours, Ruiz an- manded him with a verbal warning for violating compa- nounced in the presence of a large number of employees ny rules. He also asked Lugo why the employees wanted that Rivera and Mercado could be fired for disobeying to bring a union into the plant, and why they could not the Company's rule. Similarly, Respondent held Peter simply discuss their problems with Ruiz. Lugo liable for violating the rule although his activities, (h) On October 6, 1980, just 1 week before the instant too, occurred prior to the start of the workday. Accord- hearing, Rey Mendez was called to an interview where, ingly, both in its promulgation of and adherence to the with Edd Ahrens present, one of Respondent's attorneys overly broad rule, Respondent has violated Section asked him whether Martir had held a meeting with the 8(a)(l). W. B. Johnson Properties, Inc., d/b/a Olympic quality control staff, whether he had in fact threatened Villas, 241 NLRB 358 (1979); Essex International, Inc., them about joining the Union, and whether FAA Inspec- 211 NLRB 749 (1974). tor Black's remarks were perceived as threats by the em- Ruiz' threats to discharge Mercado and Rivera on ployees. May 21 were particularly pernicious since they were communicated in the presence of a large group of em- Iv. DISCUSSIONS AND CONCLUSIONS ployees, and were made with the apparent endorsement A. Independent 8(a)(l) Violations o f m any o f t h e Company's top management officials who were surveying the scene. Ruiz' testimony at the hearing I find there is substantial and frequently uncontrovert- in this case suggests that he knew the no-distribution rule ed evidence in the record which supports the General should not have been applied to situations in which em- Counsel's allegations that Respondent engaged in an ex- ployees were circulating material during nonworking tensive series of unfair labor practices. Thus, in agree- hours. Thus, his reliance on that rule to outlaw Mercado ment with the General Counsel, I find that Respondent's and Rivera's activities was merely a ruse to disguise a comments in January 1980, to a delegation of employees blatant effort to intimidate them and all the other em- who were pressing for higher wages, that the Company ployees present and to dissuade them from exercising would abandon Puerto Rico if the plant was unionized their protected right to engage in collective activity. and that it would sell its blueprints, leaving the employ- Evidence that Juan Martir, manager of the quality ees jobless, were unequivocal threats of plant closure in control division, threatened employees with discharge violation of Section 8(a)(l). See DR W Corporation d/b/a and attempted to inhibit their union activity was abun- Brothers Three Cabinets, 248 NLRB 828, 839 (1979); dant and uncontradicted. Respondent suggests, however, American Spring Wire Corporation, 237 NLRB 1551, 1553 that Martir should be held blameless because of his (1978). This threat was conveyed months before the honest conviction that quality control employees were Ahrens employees actually began to organize. However, not eligible for union membership. It is well settled that Edd Ahrens' similar remark to a group of employees on subjective motivation, even if innocent, is irrelevant to May 21, that the Company might close if too much pres- finding a respondent liable for the commission of unfair sure was placed on it by employees, came at the height labor practices. That the employees laughed when Martir of the Union's drive. An employer's allegation that em- told them they could not join the Union is equally irrele- ployees' collective activity will lead to plant closure con- vant for employees' subjective reactions to an alleged il- stitutes an unlawful threat rather than a lawful prediction legality may not be taken into account. (El Rancho unless the employer shows that its statement was based Market, 235 NLRB 468, 471 (1978)). Thus, Martir's re- on objective facts which demonstrate probable conse- quences outside its control. N.L.R.B. V. Gissel Packing '* Although Ahrens' statement was not alleged as an unfair labor prac- Co., Inc., 395 U.S. 575, 617-619 (1969). Here, Ahrens' tice in the complaint, it was part and parcel of Respondent's antiunion Comment Was not an objective response to Concrete costs campaign and was a matter about which Respondent had ample opportu- attached to specific employee proposals. Rather, it was a nity to off er ev idence, Accordingly, I find Respondent's threat to be an- other instance of unlawful conduct in violation of Sec. 8(aXl). Jusiak threat clearly designed to discourage the employees from Broters and Company, Inc., 253 NLRB 1054 (1980); Ultra-Sonic De-Bur- engaging in collective activity and is per se violative of ring, Inc. of Texas. 233 NLRB 1060, 1068, fn. 12 (1977). 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered a part of management and that in his experi- Section 8(a)(l). Chester Valley, Inc., 251 NLRB 1435 ence such employees were never represented by unions. (1980); Bacchus Wine Cooperative, Inc., and Bacchus Wine (e) Shortly after this meeting concluded, Martir told International, 251 NLRB 1552 (1980).'9 quality control employee Luis Muniz and Linda Santiago I also find that Respondent's overly broad rule prohib- that they could be fired if they became involved with the iting the distribution of any printed material to employ- Union. ees without prior company authorization is illegal on its (f) The day after these two meetings took place, face. Martir instructed employee Rey Mendez that quality Respondent attempted to prove that the rule was not control workers could not join the Union and would be unlawfully applied by showing that, at a staff meeting on discharged if they did so. May 12, Ruiz had limited the invocation of the rule only (g) Prior to the start of the workday on May 25, Peter to the distribution of unauthorized materials on company Lugo was soliciting signatures on a union petition in the time and company premises. However, Respondent was parking lot, when he was told he was being watched. At unsuccessful in disguising the untempered application of 7:30 a.m., he was summoned to Edd Ahrens' office the rule to the distribution of union authorization cards where Ahrens questioned him about what he had been and union literature by Rivera and Mercado on May 21. doing earlier that morning. When Lugo explained that he Although their circulation of union materials took place was soliciting signatures for the Union, Ahrens repri- on the parking lot before working hours, Ruiz an- manded him with a verbal warning for violating compa- nounced in the presence of a large number of employees ny rules. He also asked Lugo why the employees wanted that Rivera and Mercado could be fired for disobeying to bring a union into the plant, and why they could not the Company's rule. Similarly, Respondent held Peter simply discuss their problems with Ruiz. Lugo liable for violating the rule although his activities, (h) On October 6, 1980, just 1 week before the instant too, occurred prior to the start of the workday. Accord- hearing, Rey Mendez was called to an interview where, ingly, both in its promulgation of and adherence to the with Edd Ahrens present, one of Respondent's attorneys overly broad rule, Respondent has violated Section asked him whether Martir had held a meeting with the 8(a)(l). W. B. Johnson Properties, Inc., d/b/a Olympic quality control staff, whether he had in fact threatened Villas, 241 NLRB 358 (1979); Essex International, Inc., them about joining the Union, and whether FAA Inspec- 211 NLRB 749 (1974). tor Black's remarks were perceived as threats by the em- Ruiz' threats to discharge Mercado and Rivera on ployees. May 21 were particularly pernicious since they were communicated in the presence of a large group of em- Iv. DISCUSSIONS AND CONCLUSIONS ployees, and were made with the apparent endorsement A. Independent 8(a)(l) Violations o f m any o f t h e Company's top management officials who were surveying the scene. Ruiz' testimony at the hearing I find there is substantial and frequently uncontrovert- in this case suggests that he knew the no-distribution rule ed evidence in the record which supports the General should not have been applied to situations in which em- Counsel's allegations that Respondent engaged in an ex- ployees were circulating material during nonworking tensive series of unfair labor practices. Thus, in agree- hours. Thus, his reliance on that rule to outlaw Mercado ment with the General Counsel, I find that Respondent's and Rivera's activities was merely a ruse to disguise a comments in January 1980, to a delegation of employees blatant effort to intimidate them and all the other em- who were pressing for higher wages, that the Company ployees present and to dissuade them from exercising would abandon Puerto Rico if the plant was unionized their protected right to engage in collective activity. and that it would sell its blueprints, leaving the employ- Evidence that Juan Martir, manager of the quality ees jobless, were unequivocal threats of plant closure in control division, threatened employees with discharge violation of Section 8(a)(l). See DR W Corporation d/b/a and attempted to inhibit their union activity was abun- Brothers Three Cabinets, 248 NLRB 828, 839 (1979); dant and uncontradicted. Respondent suggests, however, American Spring Wire Corporation, 237 NLRB 1551, 1553 that Martir should be held blameless because of his (1978). This threat was conveyed months before the honest conviction that quality control employees were Ahrens employees actually began to organize. However, not eligible for union membership. It is well settled that Edd Ahrens' similar remark to a group of employees on subjective motivation, even if innocent, is irrelevant to May 21, that the Company might close if too much pres- finding a respondent liable for the commission of unfair sure was placed on it by employees, came at the height labor practices. That the employees laughed when Martir of the Union's drive. An employer's allegation that em- told them they could not join the Union is equally irrele- ployees' collective activity will lead to plant closure con- vant for employees' subjective reactions to an alleged il- stitutes an unlawful threat rather than a lawful prediction legality may not be taken into account. (El Rancho unless the employer shows that its statement was based Market, 235 NLRB 468, 471 (1978)). Thus, Martir's re- on objective facts which demonstrate probable conse- quences outside its control. N.L.R.B. V. Gissel Packing '* Although Ahrens' statement was not alleged as an unfair labor prac- Co., Inc., 395 U.S. 575, 617-619 (1969). Here, Ahrens' tice in the complaint, it was part and parcel of Respondent's antiunion Comment Was not an objective response to Concrete costs campaign and was a matter about which Respondent had ample opportu- attached to specific employee proposals. Rather, it was a nity to off er ev idence, Accordingly, I find Respondent's threat to be an- other instance of unlawful conduct in violation of Sec. 8(aXl). Jusiak threat clearly designed to discourage the employees from Broters and Company, Inc., 253 NLRB 1054 (1980); Ultra-Sonic De-Bur- engaging in collective activity and is per se violative of ring, Inc. of Texas. 233 NLRB 1060, 1068, fn. 12 (1977). AHRENS AIRCRAFT, INC. 847 marks to Rey Mendez, Juan Mendez, Luis Nunez, and leaves not a shred of doubt that they were fired for rea- Linda Santiago are blatant threats of reprisal against em- sons which are violative of Section 8(aXl) and (3). ployees who may attempt to exercise their Section 7 Respondent clearly had knowledge that Mercado and rights. Moreover, in a plant the size of Respondent's Rivera were profoundly involved in the employees' con- where the work force is homogeneous, such statements certed activities and played an instrumental role in the were certain to receive widespread circulation. Martir's Union's organizational campaign. Neither man took pains representations to all quality control employees that they to conceal his activities. To the contrary, Rivera's signa- could not join the Union are attributable to Respondent ture headed the list of names on the first employee peti- which acknowledged in its answer that he was a "part of tion of May 12. Mercado forthrightly presented the em- the management team." As such, they constitute inde- ployees' position concerning weekly pay at the May 12 pendent violations of Section 8(a)(l). Similarly, Respond- supervisory meeting and just as forthrightly delivered ent also is accountable for the remarks of third parties the second petition to Ruiz on May 19. There was noth- such as William Black when he in Martir's presence and ing covert about Mercado's role in organizing a meeting with his apparent endorsement advised the employees of employees after work at which the union business they should not join the Union. agent spoke, nor did Mercado or Rivera conceal their ef- Based on my observations of the witnesses' demeanor, forts to solicit union authorization cards on the company I further credit Juan Mendez' testimony that Supervisor parking lot just before the start of the workday. Thus, Antonio Acosta warned him that employees who were Respondent had good reason to regard them as the involved with the Union would be fired, and I find this staunchest advocates of the employees' collective inter- statement to be a threat also proscribed by Section ests and among the principal architects of the Union's or- 8(a)(l). ganizational campaign. Given the timing of their dis- Peter Lugo's uncontradicted account of his May 25 in- charges, only hours after they were observed distributing terview with Edd Ahrens gives rise to additional find- union materials by most of the Company's officials, an ings of unlawful conduct. Less than an hour elapsed be- extremely compelling case is presented that Respondent tween the time that Lugo was engaged in union activities terminated them for discriminatory reasons proscribed by and the time he was paged to Ahrens' office thereby sug- the Act. gesting that his conduct was under observation. Creating The rationalizations offered by Respondent in defense the impression of surveillance is forbidden under the Act of its conduct are unconvincing. Respondent claims that for it may tend to inhibit the employee's future union ac- the discharges were motivated by Mercado's and Ri- tivities. Ravenswood Electronics Corp., 232 NLRB 609, vera's misconduct in violating the Company's no-distri- 614-615 (1977). Under the guise of determining whether bution rule. However, Edd Ahrens conceded at the hear- Lugo was engaged in sabotage or espionage, Respondent ing that he had no knowledge that Mercado and Rivera then proceeded to question him about his activities earli- literally walked the petition from one employee to an- er that morning and about his reasons for wanting to other on company time. Indeed, if they had wandered bring a union into the plant. Although Lugo explained throughout the plant, they surely would have been ob- that he was collecting signatures for a union petition and served by Ruiz or one of his assistants. Rather, Ahrens although Ahrens knew that this had occurred prior to only harbored a belief that the two initiated the petition. the start of the workday, he nevertheless issued a verbal The company rule does not prescribe penalties for those warning. In these circumstances, the interrogation and who merely originate petitions. Holding Mercado and the issuance of the warning were unlawful intrusions into Rivera accountable for this reason would, in itself, con- Lugo's right to engage in union activity. That the inter- stitute an unfair labor practice. Moreover, if Respondent view had the inhibiting effect which Ahrens' intended is were concerned about the purported interruption of pro- made clear from Lugo's assurance that he would refrain duction, as it claimed, then all those who signed the peti- from such conduct in the future. tion were equally culpable. Yet, only Mercado and Respondent engaged in another episode of unlawful in- Rivera were singled out for discipline. terrogation when it questioned employee Rey Mendez Further, the rule to which Respondent adverts makes about the meetings which Martir and Black held with the first breach punishable by a warning. Since neither the quality control employees. By failing to assure Mercado nor Rivera had been involved with an alleged Mendez that he was not compelled to participate in the violation of the no-solicitation rule prior to May 12, and interview and that he would suffer no reprisals, Re- if this were, as Respondent contends, the reason for dis- spondent thereby ignored the standards for permissible ciplining them, then they deserved nothing more than a interrogation required by Johnnie's Poultry Co. and John warning. Respondent's failure to abide by the terms of its Bishop Poultry Co., Successor, 146 NLRB 770 (1964), en- own rule by discharging employees for a first offense re- forcement denied 344 F.2d 617 (8th Cir. 1965). veals that its invocation of the rule was a sham used to mask its true motives which were vindictive and discrim- B. Unlawful Dischargesinatory. inatory. Having found that Mercado and Rivera were employ- In an effort to divorce discharges which took place at ees entitled to the protections of the Act, a question still noon on May 21 from the employees' organizational ac- remains as to whether they were terminated on May 21 tivities earlier that day, Edd Ahrens and Ruiz testified because of their involvement in concerted activities. A that the discharge decisions were made on either May 19 review of the circumstances surrounding these discharges or 20. Their testimony is unbelievable. If the decision AHRENS AIRCRAFT, INC. 847 marks to Rey Mendez, Juan Mendez, Luis Nunez, and leaves not a shred of doubt that they were fired for rea- Linda Santiago are blatant threats of reprisal against em- sons which are violative of Section 8(a)(l) and (3). ployees who may attempt to exercise their Section 7 Respondent clearly had knowledge that Mercado and rights. Moreover, in a plant the size of Respondent's Rivera were profoundly involved in the employees' con- where the work force is homogeneous, such statements certed activities and played an instrumental role in the were certain to receive widespread circulation. Martir's Union's organizational campaign. Neither man took pains representations to all quality control employees that they to conceal his activities. To the contrary, Rivera's signa- could not join the Union are attributable to Respondent ture headed the list of names on the first employee peti- which acknowledged in its answer that he was a "part of tion of May 12. Mercado forthrightly presented the em- the management team." As such, they constitute inde- ployees' position concerning weekly pay at the May 12 pendent violations of Section 8(a)(l). Similarly, Respond- supervisory meeting and just as forthrightly delivered ent also is accountable for the remarks of third parties the second petition to Ruiz on May 19. There was noth- such as William Black when he in Martir's presence and ing covert about Mercado's role in organizing a meeting with his apparent endorsement advised the employees of employees after work at which the union business they should not join the Union. agent spoke, nor did Mercado or Rivera conceal their ef- Based on my observations of the witnesses' demeanor, forts to solicit union authorization cards on the company I further credit Juan Mendez' testimony that Supervisor parking lot just before the start of the workday. Thus, Antonio Acosta warned him that employees who were Respondent had good reason to regard them as the involved with the Union would be fired, and I find this staunchest advocates of the employees' collective inter- statement to be a threat also proscribed by Section ests and among the principal architects of the Union's or- 8(a)(l). ganizational campaign. Given the timing of their dis- Peter Lugo's uncontradicted account of his May 25 in- charges, only hours after they were observed distributing terview with Edd Ahrens gives rise to additional find- union materials by most of the Company's officials, an ings of unlawful conduct. Less than an hour elapsed be- extremely compelling case is presented that Respondent tween the time that Lugo was engaged in union activities terminated them for discriminatory reasons proscribed by and the time he was paged to Ahrens' office thereby sug- the Act. gesting that his conduct was under observation. Creating The rationalizations offered by Respondent in defense the impression of surveillance is forbidden under the Act of its conduct are unconvincing. Respondent claims that for it may tend to inhibit the employee's future union ac- the discharges were motivated by Mercado's and Ri- tivities. Ravenswood Electronics Corp., 232 NLRB 609, vera's misconduct in violating the Company's no-distri- 614-615 (1977). Under the guise of determining whether bution rule. However, Edd Ahrens conceded at the hear- Lugo was engaged in sabotage or espionage, Respondent ing that he had no knowledge that Mercado and Rivera then proceeded to question him about his activities earli- literally walked the petition from one employee to an- er that morning and about his reasons for wanting to other on company time. Indeed, if they had wandered bring a union into the plant. Although Lugo explained throughout the plant, they surely would have been ob- that he was collecting signatures for a union petition and served by Ruiz or one of his assistants. Rather, Ahrens although Ahrens knew that this had occurred prior to only harbored a belief that the two initiated the petition. the start of the workday, he nevertheless issued a verbal The company rule does not prescribe penalties for those warning. In these circumstances, the interrogation and who merely originate petitions. Holding Mercado and the issuance of the warning were unlawful intrusions into Rivera accountable for this reason would, in itself, con- Lugo's right to engage in union activity. That the inter- stitute an unfair labor practice. Moreover, if Respondent view had the inhibiting effect which Ahrens' intended is were concerned about the purported interruption of pro- made clear from Lugo's assurance that he would refrain duction, as it claimed, then all those who signed the peti- from such conduct in the future,.tion were equally culpable. Yet, only Mercado and Respondent engaged in another episode of unlawful in- Rivera were singled out for discipline. terrogation when it questioned employee Rey Mendez Further, the rule to which Respondent adverts makes about the meetings which Martir and Black held with the first breach punishable by a warning. Since neither the quality control employees. By failing to assure Mercado nor Rivera had been involved with an alleged Mendez that he was not compelled to participate in the violation of the no-solicitation rule prior to May 12, and interview and that he would suffer no reprisals, Re- if this were, as Respondent contends, the reason for dis- spondent thereby ignored the standards for permissible ciplining them, then they deserved nothing more than a interrogation required by Johnnie's Poultry Co. and John warning. Respondent's failure to abide by the terms of its Bishop Poultry Co., Successor, 146 NLRB 770 (1964), en- own rule by discharging employees for a first offense re- forcement denied 344 F.2d 617 (8th Cir. 1965). veals that its invocation of the rule was a sham used to B. , Unlawful Dischargesmask its true motives which were vindictive and discrim- B. Ulnlawful Dischargesiaoy inatory. Having found that Mercado and Rivera were employ- In an effort to divorce discharges which took place at ees entitled to the protections of the Act, a question still noon on May 21 from the employees' organizational ac- remains as to whether they were terminated on May 21 tivities earlier that day, Edd Ahrens and Ruiz testified because of their involvement in concerted activities. A that the discharge decisions were made on either May 19 review of the circumstances surrounding these discharges or 20. Their testimony is unbelievable. If the decision AHRENS AIRCRAFT, INC. 847 marks to Rey Mendez, Juan Mendez, Luis Nunez, and leaves not a shred of doubt that they were fired for rea- Linda Santiago are blatant threats of reprisal against em- sons which are violative of Section 8(a)(l) and (3). ployees who may attempt to exercise their Section 7 Respondent clearly had knowledge that Mercado and rights. Moreover, in a plant the size of Respondent's Rivera were profoundly involved in the employees' con- where the work force is homogeneous, such statements certed activities and played an instrumental role in the were certain to receive widespread circulation. Martir's Union's organizational campaign. Neither man took pains representations to all quality control employees that they to conceal his activities. To the contrary, Rivera's signa- could not join the Union are attributable to Respondent ture headed the list of names on the first employee peti- which acknowledged in its answer that he was a "part of tion of May 12. Mercado forthrightly presented the em- the management team." As such, they constitute inde- ployees' position concerning weekly pay at the May 12 pendent violations of Section 8(a)(l). Similarly, Respond- supervisory meeting and just as forthrightly delivered ent also is accountable for the remarks of third parties the second petition to Ruiz on May 19. There was noth- such as William Black when he in Martir's presence and ing covert about Mercado's role in organizing a meeting with his apparent endorsement advised the employees of employees after work at which the union business they should not join the Union. agent spoke, nor did Mercado or Rivera conceal their ef- Based on my observations of the witnesses' demeanor, forts to solicit union authorization cards on the company I further credit Juan Mendez' testimony that Supervisor parking lot just before the start of the workday. Thus, Antonio Acosta warned him that employees who were Respondent had good reason to regard them as the involved with the Union would be fired, and I find this staunchest advocates of the employees' collective inter- statement to be a threat also proscribed by Section ests and among the principal architects of the Union's or- 8(a)(l). ganizational campaign. Given the timing of their dis- Peter Lugo's uncontradicted account of his May 25 in- charges, only hours after they were observed distributing terview with Edd Ahrens gives rise to additional find- union materials by most of the Company's officials, an ings of unlawful conduct. Less than an hour elapsed be- extremely compelling case is presented that Respondent tween the time that Lugo was engaged in union activities terminated them for discriminatory reasons proscribed by and the time he was paged to Ahrens' office thereby sug- the Act. gesting that his conduct was under observation. Creating The rationalizations offered by Respondent in defense the impression of surveillance is forbidden under the Act of its conduct are unconvincing. Respondent claims that for it may tend to inhibit the employee's future union ac- the discharges were motivated by Mercado's and Ri- tivities. Ravenswood Electronics Corp., 232 NLRB 609, vera's misconduct in violating the Company's no-distri- 614-615 (1977). Under the guise of determining whether bution rule. However, Edd Ahrens conceded at the hear- Lugo was engaged in sabotage or espionage, Respondent ing that he had no knowledge that Mercado and Rivera then proceeded to question him about his activities earli- literally walked the petition from one employee to an- er that morning and about his reasons for wanting to other on company time. Indeed, if they had wandered bring a union into the plant. Although Lugo explained throughout the plant, they surely would have been ob- that he was collecting signatures for a union petition and served by Ruiz or one of his assistants. Rather, Ahrens although Ahrens knew that this had occurred prior to only harbored a belief that the two initiated the petition. the start of the workday, he nevertheless issued a verbal The company rule does not prescribe penalties for those warning. In these circumstances, the interrogation and who merely originate petitions. Holding Mercado and the issuance of the warning were unlawful intrusions into Rivera accountable for this reason would, in itself, con- Lugo's right to engage in union activity. That the inter- stitute an unfair labor practice. Moreover, if Respondent view had the inhibiting effect which Ahrens' intended is were concerned about the purported interruption of pro- made clear from Lugo's assurance that he would refrain duction, as it claimed, then all those who signed the peti- from such conduct in the future,.tion were equally culpable. Yet, only Mercado and Respondent engaged in another episode of unlawful in- Rivera were singled out for discipline. terrogation when it questioned employee Rey Mendez Further, the rule to which Respondent adverts makes about the meetings which Martir and Black held with the first breach punishable by a warning. Since neither the quality control employees. By failing to assure Mercado nor Rivera had been involved with an alleged Mendez that he was not compelled to participate in the violation of the no-solicitation rule prior to May 12, and interview and that he would suffer no reprisals, Re- if this were, as Respondent contends, the reason for dis- spondent thereby ignored the standards for permissible ciplining them, then they deserved nothing more than a interrogation required by Johnnie's Poultry Co. and John warning. Respondent's failure to abide by the terms of its Bishop Poultry Co., Successor, 146 NLRB 770 (1964), en- own rule by discharging employees for a first offense re- forcement denied 344 F.2d 617 (8th Cir. 1965). veals that its invocation of the rule was a sham used to B. , Unlawful Dischargesmask its true motives which were vindictive and discrim- B. Ulnlawful Dischargesiaoy inatory. Having found that Mercado and Rivera were employ- In an effort to divorce discharges which took place at ees entitled to the protections of the Act, a question still noon on May 21 from the employees' organizational ac- remains as to whether they were terminated on May 21 tivities earlier that day, Edd Ahrens and Ruiz testified because of their involvement in concerted activities. A that the discharge decisions were made on either May 19 review of the circumstances surrounding these discharges or 20. Their testimony is unbelievable. If the decision AHRENS AIRCRAFT, INC. 847 marks to Rey Mendez, Juan Mendez, Luis Nunez, and leaves not a shred of doubt that they were fired for rea- Linda Santiago are blatant threats of reprisal against em- sons which are violative of Section 8(a)(l) and (3). ployees who may attempt to exercise their Section 7 Respondent clearly had knowledge that Mercado and rights. Moreover, in a plant the size of Respondent's Rivera were profoundly involved in the employees' con- where the work force is homogeneous, such statements certed activities and played an instrumental role in the were certain to receive widespread circulation. Martir's Union's organizational campaign. Neither man took pains representations to all quality control employees that they to conceal his activities. To the contrary, Rivera's signa- could not join the Union are attributable to Respondent ture headed the list of names on the first employee peti- which acknowledged in its answer that he was a "part of tion of May 12. Mercado forthrightly presented the em- the management team." As such, they constitute inde- ployees' position concerning weekly pay at the May 12 pendent violations of Section 8(a)(l). Similarly, Respond- supervisory meeting and just as forthrightly delivered ent also is accountable for the remarks of third parties the second petition to Ruiz on May 19. There was noth- such as William Black when he in Martir's presence and ing covert about Mercado's role in organizing a meeting with his apparent endorsement advised the employees of employees after work at which the union business they should not join the Union. agent spoke, nor did Mercado or Rivera conceal their ef- Based on my observations of the witnesses' demeanor, forts to solicit union authorization cards on the company I further credit Juan Mendez' testimony that Supervisor parking lot just before the start of the workday. Thus, Antonio Acosta warned him that employees who were Respondent had good reason to regard them as the involved with the Union would be fired, and I find this staunchest advocates of the employees' collective inter- statement to be a threat also proscribed by Section ests and among the principal architects of the Union's or- 8(a)(l). ganizational campaign. Given the timing of their dis- Peter Lugo's uncontradicted account of his May 25 in- charges, only hours after they were observed distributing terview with Edd Ahrens gives rise to additional find- union materials by most of the Company's officials, an ings of unlawful conduct. Less than an hour elapsed be- extremely compelling case is presented that Respondent tween the time that Lugo was engaged in union activities terminated them for discriminatory reasons proscribed by and the time he was paged to Ahrens' office thereby sug- the Act. gesting that his conduct was under observation. Creating The rationalizations offered by Respondent in defense the impression of surveillance is forbidden under the Act of its conduct are unconvincing. Respondent claims that for it may tend to inhibit the employee's future union ac- the discharges were motivated by Mercado's and Ri- tivities. Ravenswood Electronics Corp., 232 NLRB 609, vera's misconduct in violating the Company's no-distri- 614-615 (1977). Under the guise of determining whether bution rule. However, Edd Ahrens conceded at the hear- Lugo was engaged in sabotage or espionage, Respondent ing that he had no knowledge that Mercado and Rivera then proceeded to question him about his activities earli- literally walked the petition from one employee to an- er that morning and about his reasons for wanting to other on company time. Indeed, if they had wandered bring a union into the plant. Although Lugo explained throughout the plant, they surely would have been ob- that he was collecting signatures for a union petition and served by Ruiz or one of his assistants. Rather, Ahrens although Ahrens knew that this had occurred prior to only harbored a belief that the two initiated the petition. the start of the workday, he nevertheless issued a verbal The company rule does not prescribe penalties for those warning. In these circumstances, the interrogation and who merely originate petitions. Holding Mercado and the issuance of the warning were unlawful intrusions into Rivera accountable for this reason would, in itself, con- Lugo's right to engage in union activity. That the inter- stitute an unfair labor practice. Moreover, if Respondent view had the inhibiting effect which Ahrens' intended is were concerned about the purported interruption of pro- made clear from Lugo's assurance that he would refrain duction, as it claimed, then all those who signed the peti- from such conduct in the future,.tion were equally culpable. Yet, only Mercado and Respondent engaged in another episode of unlawful in- Rivera were singled out for discipline. terrogation when it questioned employee Rey Mendez Further, the rule to which Respondent adverts makes about the meetings which Martir and Black held with the first breach punishable by a warning. Since neither the quality control employees. By failing to assure Mercado nor Rivera had been involved with an alleged Mendez that he was not compelled to participate in the violation of the no-solicitation rule prior to May 12, and interview and that he would suffer no reprisals, Re- if this were, as Respondent contends, the reason for dis- spondent thereby ignored the standards for permissible ciplining them, then they deserved nothing more than a interrogation required by Johnnie's Poultry Co. and John warning. Respondent's failure to abide by the terms of its Bishop Poultry Co., Successor, 146 NLRB 770 (1964), en- own rule by discharging employees for a first offense re- forcement denied 344 F.2d 617 (8th Cir. 1965). veals that its invocation of the rule was a sham used to B. , Unlawful Dischargesmask its true motives which were vindictive and discrim- B. Ulnlawful Dischargesiaoy inatory. Having found that Mercado and Rivera were employ- In an effort to divorce discharges which took place at ees entitled to the protections of the Act, a question still noon on May 21 from the employees' organizational ac- remains as to whether they were terminated on May 21 tivities earlier that day, Edd Ahrens and Ruiz testified because of their involvement in concerted activities. A that the discharge decisions were made on either May 19 review of the circumstances surrounding these discharges or 20. Their testimony is unbelievable. If the decision 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were made in advance, then Ruiz would have no reason and were engaged in a unified enterprise-the production to warn Mercado and Rivera conditionally that they of a prototype aircraft. Thus, they were bonded by could be fired for flouting company rules on the morning having a common technology and somewhat integrated of May 21. tasks requiring related skills. Other reasons for the discharges which were listed in Moreover, although the extent to which the employees Mercado's and Rivera's termination notices and placed in have organized may not be a controlling consideration in their personnel files were equally spurious. The notice unit determinations under Section 9(c)(5) of the Act, which Ruiz prepared regarding Mercado's dismissal some weight may be accorded to their expressed desires. refers to three incidents which occurred in 1979. It is See N.L.R.B. v. Morganton Full Fashioned Hosiery Co. curious that Mercado's argumentative manner and inabil- and Hufman Full Fashioned Hosiery Mills, Inc., 241 F.2d ity to get along with others, as alleged in memos summa- 913 (4th Cir. 1957). Here, all but five of Respondent's rizing these incidents, surfaced as a cause for dismissal production force registered their interest in having the only when he became a union advocate. Ruiz reference Union represent them. to an incident allegedly involving a complaint made by Since Respondent has adduced no cogent reasons Peterson about Rivera was exposed by Peterson's testi- which would refute the presumption attached to a pro- mony as an offensive distortion of the truth. If Mercado duction and maintenance unit at its plant, I find that unit and Rivera were as uncooperative in manner as Re- spondent suggests, it is difficult to explain why their ppropriate. fellow workers chose them as their representatives. In NL.R.B. v. Gissel Packing Co., Inc, 395 U.S. 575 Respondent's attempt to build a case against these em- (1969), the Supreme Court affirmed the Board's authority ployees by resort to a rule which did not fit the deed, by to ssue bargaining orders not only in exceptional cases resurrecting events long since past and by fabricating marked by outrageous and pervasive unfair labor prac- conduct, produces the reverse effect from the one in- tices, but also in less extraordinary cases where there are tended for it raises the inference that the cited reasons fewer "pervasive practices which nonetheless still have for the discharges were not the real reasons. Rather, the tendency to undermine majority strength and impede where, as here, the evidence shows that Respondent was the election processes." In determining whether a bar- strongly opposed to any collective activity among its gaining order is appropriate in the second category of employees and repeatedly threatened them with dis- cases, it is necessary to consider whether the effects of charge if they persisted in such activity, the real reason the past unfair labor practices can be erased by the use for the dismissals of Mercado and Rivera was to purge of traditional remedies and whether there is a likelihood the plant of its most active union proponents. of their reoccurrence. Id. at 614-615 (1969). Applying these principles to the present case, I con- C. A Bargaining Order Is Appropriate clude, in agreement with the General Counsel, that "em- There is no dispute as to the authenticity of the em- ployee sentiment once expressed through cards would, ployees' signatures on 113 authorization cards, including on balance, be better protected by a bargaining order. the cards of 19 employees who, as I found above, are not . Id. at 615. supervisors. Further, it is agreed that Respondent's work Respondent argues that, if it committed any unfair force numbered approximately 118 employees in the rele- labor practices, they were so insignificant as to have no vant time period immediately preceding May 21, the date deleterious effect on the election process. It further on which the Union attained a majority. Thus, the argues that, since any misconduct occurred the most part record shows that the Union had more than majority prior to the date the Union attained a majority, it could support prior to the start of the workday on May 21, have no dissipating effect on that majority. 1980. The Union was assured of majority support by the Respondent contends that the General Counsel failed start of the workday on May 21. The discharges of Mer- to prove that the unit described in the complaint is ap- cado and Rivera came several hours later and thus were propriate. 20 1 find little merit in this contention. a part of Respondent's swift response to the Union's or- "It is well established that a unit of production and ganizational campaign. maintenance employees is presumptively appropriate in The discharge of principal union activists is miscon- the absence of cogent reasons to the contrary." Ultra- duct which the Board and the courts have long regarded Sonic De-Burring, supra at 1067, quoting from Rembrandt as so serious and coercive as to justify a finding without Lamp Corporation, 128 NLRB 905, 906 (1960). More- extensive explication that they are likely to have a lasting over, the Board frequently has asserted the validity of a inhibitive effect on a substantial percentage of the work single plant unit. Id. force. See N.L.R.B. v. Jamaica Towing Co., 632 F.2d 208 Other earmarks of an appropriate unit are also evident (2d Cir. 1980); Faith Garment Company, Division of Dun- here. The employees shared a community of interests in hall Pharmaceutical, Inc., 246 NLRB 299 (1979), affd. 630 that they all were subject to the same terms and condi- F.2d 630 (8th Cir. 1980). tions of employment, worked under the same supervisory The coercive impact of the discharges in this case was structure, were under the same centralized management, augmented by virtue of their timing, coming only several hours after the men had been threatened with discharge a The unit sought is for all production and maintenance employees of for distributing union authorization cards in the presence Respondent employed at its plant, exclusive of all other employees, office clerical employees, guards and supervisors as defined in Sec. 2(11) of the of a large number of other employees. Moreover, be- Act. cause they were the chosen leaders of the work force, 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were made in advance, then Ruiz would have no reason and were engaged in a unified enterprise-the production to warn Mercado and Rivera conditionally that they of a prototype aircraft. Thus, they were bonded by could be fired for flouting company rules on the morning having a common technology and somewhat integrated of May 21. tasks requiring related skills. Other reasons for the discharges which were listed in Moreover, although the extent to which the employees Mercado's and Rivera's termination notices and placed in have organized may not be a controlling consideration in their personnel files were equally spurious. The notice unit determinations under Section 9(c)(5) of the Act, which Ruiz prepared regarding Mercado's dismissal some weight may be accorded to their expressed desires. refers to three incidents which occurred in 1979. It is See N.L.R.B. v. Morganton Full Fashioned Hosiery Co. curious that Mercado's argumentative manner and inabil- and Huffman Full Fashioned Hosiery Mills, Inc., 241 F.2d ity to get along with others, as alleged in memos summa- 913 (4th cir. 1957). Here, all but five of Respondent's rizing these incidents, surfaced as a cause for dismissal production force registered their interest in having the only when he became a union advocate. Ruiz reference Union represent them. to an incident allegedly involving a complaint made by Since Respondent has adduced no cogent reasons Peterson about Rivera was exposed by Peterson's testi- which would refute the presumption attached to a pro- mony as an offensive distortion of the truth. If Mercado d maintenance unit at its plant, I find that unit and Rivera were as uncooperative in manner as Re- spondent suggests, it is difficult to explain why their p p ropriate. fellow workers chose them as their representatives. I n N.L.R.B. v . Gissel Packing Co., Inc, 395 U.S. 575 Respondent's attempt to build a case against these em- (196 9), t h e Supreme Court affirmed the Board's authority ployees by resort to a rule which did not fit the deed, by t o iss u e bargaining orders not only in exceptional cases resurrecting events long since past and by fabricating marked by outrageous and pervasive unfair labor prac- conduct, produces the reverse effect from the one in- t lc e s ' but also in less extraordinary cases where there are tended for it raises the inference that the cited reasons f e w e r "pervasive practices which nonetheless still have for the discharges were not the real reasons. Rather, the tendency to undermine majority strength and impede where, as here, the evidence shows that Respondent was the election processes." In determining whether a bar- strongly opposed to any collective activity among its gaining order is appropriate in the second category of employees and repeatedly threatened them with dis- cases, it is necessary to consider whether the effects of charge if they persisted in such activity, the real reason the past unfair labor practices can be erased by the use for the dismissals of Mercado and Rivera was to purge of traditional remedies and whether there is a likelihood the plant of its most active union proponents. of their reoccurrence. Id. at 614-615 (1969). Applying these principles to the present case, I con- C. A Bargaining Order Is Appropriate elude, in agreement with the General Counsel, that "em- There is no dispute as to the authenticity of the em- ployee sentiment once expressed through cards would, ployees' signatures on 113 authorization cards, includingon balance, be better protected by a bargaining order. the cards of 19 employees who, as I found above, are not .. .* Id. a t 615. supervisors. Further, it is agreed that Respondent's work Respondent argues that, if it committed any unfair force numbered approximately 118 employees in the rele- labor practices, they were so insignificant as to have no vant time period immediately preceding May 21, the date deleterious effect on the election process. It further on which the Union attained a majority. Thus, the argues that, since any misconduct occurred the most part record shows that the Union had more than majority prior to the date the Union attained a majority, it could support prior to the start of the workday on May 21, have no dissipating effect on that majority. 1980. The Union was assured of majority support by the Respondent contends that the General Counsel failed start of the workday on May 21. The discharges of Mer- to prove that the unit described in the complaint is ap- cado and Rivera came several hours later and thus were propriate. 20 I find little merit in this contention. a part of Respondent's swift response to the Union's or- "It is well established that a unit of production and ganizational campaign. maintenance employees is presumptively appropriate in The discharge of principal union activists is miscon- the absence of cogent reasons to the contrary." Ultra- duct which the Board and the courts have long regarded Sonic De-Burring, supra at 1067, quoting from Rembrandt as so serious and coercive as to justify a finding without Lamp Corporation, 128 NLRB 905, 906 (1960). More- extensive explication that they are likely to have a lasting over, the Board frequently has asserted the validity of a inhibitive effect on a substantial percentage of the work single plant unit. Id. force. See N.L.R.B. v. Jamaica Towing Co., 632 F.2d 208 Other earmarks of an appropriate unit are also evident (2d Cir. 1980); Faith Garment Company, Division of Dun- here. The employees shared a community of interests in hall Pharmaceutical, Inc, 246 NLRB 299 (1979), affd. 630 that they all were subject to the same terms and condi- F.2d 630 (8th Cir. 1980). tions of employment, worked under the same supervisory The coercive impact of the discharges in this case was structure, were under the same centralized management, augmented by virtue of their timing, coming only several hours after the men had been threatened with discharge MThe unit sought is for all production and maintenance employees of for distributing union authorization cards in the presence Respondent employed at its plant, exclusive of all other employees, office e i i. rui- i »« i_ clerical employees, guards and supervisors as defined in Sec. 2(11) of the of a large number of other employees. Moreover, be- Act. cause they were the chosen leaders of the work force, 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were made in advance, then Ruiz would have no reason and were engaged in a unified enterprise-the production to warn Mercado and Rivera conditionally that they of a prototype aircraft. Thus, they were bonded by could be fired for flouting company rules on the morning having a common technology and somewhat integrated of May 21. tasks requiring related skills. Other reasons for the discharges which were listed in Moreover, although the extent to which the employees Mercado's and Rivera's termination notices and placed in have organized may not be a controlling consideration in their personnel files were equally spurious. The notice unit determinations under Section 9(c)(5) of the Act, which Ruiz prepared regarding Mercado's dismissal some weight may be accorded to their expressed desires. refers to three incidents which occurred in 1979. It is See N.L.R.B. v. Morganton Full Fashioned Hosiery Co. curious that Mercado's argumentative manner and inabil- and Huffman Full Fashioned Hosiery Mills, Inc., 241 F.2d ity to get along with others, as alleged in memos summa- 913 (4th cir. 1957). Here, all but five of Respondent's rizing these incidents, surfaced as a cause for dismissal production force registered their interest in having the only when he became a union advocate. Ruiz reference Union represent them. to an incident allegedly involving a complaint made by Since Respondent has adduced no cogent reasons Peterson about Rivera was exposed by Peterson's testi- which would refute the presumption attached to a pro- mony as an offensive distortion of the truth. If Mercado d maintenance unit at its plant, I find that unit and Rivera were as uncooperative in manner as Re- spondent suggests, it is difficult to explain why their p p ropriate. fellow workers chose them as their representatives. I n N.L.R.B. v . Gissel Packing Co., Inc, 395 U.S. 575 Respondent's attempt to build a case against these em- (196 9), t h e Supreme Court affirmed the Board's authority ployees by resort to a rule which did not fit the deed, by t o iss u e bargaining orders not only in exceptional cases resurrecting events long since past and by fabricatingi m a r k e d by outrageous and pervasive unfair labor prac- conduct, produces the reverse effect from the one in- t lc e s ' but also in less extraordinary cases where there are tended for it raises the inference that the cited reasons f e w e r "pervasive practices which nonetheless still have for the discharges were not the real reasons. Rather, the tendency to undermine majority strength and impede where, as here, the evidence shows that Respondent was the election processes." In determining whether a bar- strongly opposed to any collective activity among its gaining order is appropriate in the second category of employees and repeatedly threatened them with dis- cases, it is necessary to consider whether the effects of charge if they persisted in such activity, the real reason the past unfair labor practices can be erased by the use for the dismissals of Mercado and Rivera was to purge of traditional remedies and whether there is a likelihood the plant of its most active union proponents. of their reoccurrence. Id. at 614-615 (1969). Applying these principles to the present case, I con- C. A Bargaining Order Is Appropriate elude, in agreement with the General Counsel, that "em- There is no dispute as to the authenticity of the em- ployee sentiment once expressed through cards would, ployees' signatures on 113 authorization cards, includingon balance, be better protected by a bargaining order. the cards of 19 employees who, as I found above, are not .. .* Id. a t 615. supervisors. Further, it is agreed that Respondent's work Respondent argues that, if it committed any unfair force numbered approximately 118 employees in the rele- labor practices, they were so insignificant as to have no vant time period immediately preceding May 21, the date deleterious effect on the election process. It further on which the Union attained a majority. Thus, the argues that, since any misconduct occurred the most part record shows that the Union had more than majority prior to the date the Union attained a majority, it could support prior to the start of the workday on May 21, have no dissipating effect on that majority. 1980. The Union was assured of majority support by the Respondent contends that the General Counsel failed start of the workday on May 21. The discharges of Mer- to prove that the unit described in the complaint is ap- cado and Rivera came several hours later and thus were propriate. 20 I find little merit in this contention. a part of Respondent's swift response to the Union's or- "It is well established that a unit of production and ganizational campaign. maintenance employees is presumptively appropriate in The discharge of principal union activists is miscon- the absence of cogent reasons to the contrary." Ultra- duct which the Board and the courts have long regarded Sonic De-Burring, supra at 1067, quoting from Rembrandt as so serious and coercive as to justify a finding without Lamp Corporation, 128 NLRB 905, 906 (1960). More- extensive explication that they are likely to have a lasting over, the Board frequently has asserted the validity of a inhibitive effect on a substantial percentage of the work single plant unit. Id. force. See N.L.R.B. v. Jamaica Towing Co., 632 F.2d 208 Other earmarks of an appropriate unit are also evident (2d Cir. 1980); Faith Garment Company, Division of Dun- here. The employees shared a community of interests in hall Pharmaceutical, Inc, 246 NLRB 299 (1979), affd. 630 that they all were subject to the same terms and condi- F.2d 630 (8th Cir. 1980). tions of employment, worked under the same supervisory The coercive impact of the discharges in this case was structure, were under the same centralized management, augmented by virtue of their timing, coming only several hours after the men had been threatened with discharge MThe unit sought is for all production and maintenance employees of for distributing union authorization cards in the presence Respondent employed at its plant, exclusive of all other employees, office e i i. rui- i »« i_ clerical employees, guards and supervisors as defined in Sec. 2(11) of the of a large number of other employees. Moreover, be- Act. cause they were the chosen leaders of the work force, 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were made in advance, then Ruiz would have no reason and were engaged in a unified enterprise-the production to warn Mercado and Rivera conditionally that they of a prototype aircraft. Thus, they were bonded by could be fired for flouting company rules on the morning having a common technology and somewhat integrated of May 21. tasks requiring related skills. Other reasons for the discharges which were listed in Moreover, although the extent to which the employees Mercado's and Rivera's termination notices and placed in have organized may not be a controlling consideration in their personnel files were equally spurious. The notice unit determinations under Section 9(c)(5) of the Act, which Ruiz prepared regarding Mercado's dismissal some weight may be accorded to their expressed desires. refers to three incidents which occurred in 1979. It is See N.L.R.B. v. Morganton Full Fashioned Hosiery Co. curious that Mercado's argumentative manner and inabil- and Huffman Full Fashioned Hosiery Mills, Inc., 241 F.2d ity to get along with others, as alleged in memos summa- 913 (4th cir. 1957). Here, all but five of Respondent's rizing these incidents, surfaced as a cause for dismissal production force registered their interest in having the only when he became a union advocate. Ruiz reference Union represent them. to an incident allegedly involving a complaint made by Since Respondent has adduced no cogent reasons Peterson about Rivera was exposed by Peterson's testi- which would refute the presumption attached to a pro- mony as an offensive distortion of the truth. If Mercado d maintenance unit at its plant, I find that unit and Rivera were as uncooperative in manner as Re- spondent suggests, it is difficult to explain why their p p ropriate. fellow workers chose them as their representatives. I n N.L.R.B. v . Gissel Packing Co., Inc, 395 U.S. 575 Respondent's attempt to build a case against these em- (196 9), t h e Supreme Court affirmed the Board's authority ployees by resort to a rule which did not fit the deed, by t o iss u e bargaining orders not only in exceptional cases resurrecting events long since past and by fabricatingi m a r k e d by outrageous and pervasive unfair labor prac- conduct, produces the reverse effect from the one in- t lc e s ' but also in less extraordinary cases where there are tended for it raises the inference that the cited reasons f e w e r "pervasive practices which nonetheless still have for the discharges were not the real reasons. Rather, the tendency to undermine majority strength and impede where, as here, the evidence shows that Respondent was the election processes." In determining whether a bar- strongly opposed to any collective activity among its gaining order is appropriate in the second category of employees and repeatedly threatened them with dis- cases, it is necessary to consider whether the effects of charge if they persisted in such activity, the real reason the past unfair labor practices can be erased by the use for the dismissals of Mercado and Rivera was to purge of traditional remedies and whether there is a likelihood the plant of its most active union proponents. of their reoccurrence. Id. at 614-615 (1969). Applying these principles to the present case, I con- C. A Bargaining Order Is Appropriate elude, in agreement with the General Counsel, that "em- There is no dispute as to the authenticity of the em- ployee sentiment once expressed through cards would, ployees' signatures on 113 authorization cards, includingon balance, be better protected by a bargaining order. the cards of 19 employees who, as I found above, are not .. .* Id. a t 615. supervisors. Further, it is agreed that Respondent's work Respondent argues that, if it committed any unfair force numbered approximately 118 employees in the rele- labor practices, they were so insignificant as to have no vant time period immediately preceding May 21, the date deleterious effect on the election process. It further on which the Union attained a majority. Thus, the argues that, since any misconduct occurred the most part record shows that the Union had more than majority prior to the date the Union attained a majority, it could support prior to the start of the workday on May 21, have no dissipating effect on that majority. 1980. The Union was assured of majority support by the Respondent contends that the General Counsel failed start of the workday on May 21. The discharges of Mer- to prove that the unit described in the complaint is ap- cado and Rivera came several hours later and thus were propriate. 20 I find little merit in this contention. a part of Respondent's swift response to the Union's or- "It is well established that a unit of production and ganizational campaign. maintenance employees is presumptively appropriate in The discharge of principal union activists is miscon- the absence of cogent reasons to the contrary." Ultra- duct which the Board and the courts have long regarded Sonic De-Burring, supra at 1067, quoting from Rembrandt as so serious and coercive as to justify a finding without Lamp Corporation, 128 NLRB 905, 906 (1960). More- extensive explication that they are likely to have a lasting over, the Board frequently has asserted the validity of a inhibitive effect on a substantial percentage of the work single plant unit. Id. force. See N.L.R.B. v. Jamaica Towing Co., 632 F.2d 208 Other earmarks of an appropriate unit are also evident (2d Cir. 1980); Faith Garment Company, Division of Dun- here. The employees shared a community of interests in hall Pharmaceutical, Inc, 246 NLRB 299 (1979), affd. 630 that they all were subject to the same terms and condi- F.2d 630 (8th Cir. 1980). tions of employment, worked under the same supervisory The coercive impact of the discharges in this case was structure, were under the same centralized management, augmented by virtue of their timing, coming only several hours after the men had been threatened with discharge MThe unit sought is for all production and maintenance employees of for distributing union authorization cards in the presence Respondent employed at its plant, exclusive of all other employees, office e i i. rui- i »« i_ clerical employees, guards and supervisors as defined in Sec. 2(11) of the of a large number of other employees. Moreover, be- Act. cause they were the chosen leaders of the work force, AHRENS AIRCRAFT, INC. 849 their dismissals had to receive widespread attention. The by low-level officers but by four of Respondent's chief lesson which Respondent meant to convey to the balance officials and where Respondent has not taken even the of the work force could not have been lost-the price of simple curative step of rescinding its overly broad no-dis- active support for the Union was punishment, immediate tribution rule. See Justak Brothers and Company. Inc., 253 and severe. It was a lesson not easily forgotten. If Re- NLRB 1054 (1980). spondent's antipathy to union activity was so intense that The cases cited in Respondent's brief to support the it was willing to sacrifice two of its most experienced argument that its conduct falls into the third category of and highly trained employees, then certainly, less skilled Gissel-type cases where no bargaining order is warranted workers would have even more reason to fear a similar are factually distinguishable from those in the present fate if they too continued to support the Union. Thus, case. Thus, in White Pine, Inc., 213 NLRB 566 (1974), the unlawful termination of two key union proponents the union actually won a Board election. Walgreen Corn- was calculated to quell the employees' prounion sympa- pany, 221 NLRB 1096 (1975), involved interrogation by thies and thereby thwart the Union's drive, a low-level supervisor, a single unlawful reprimand based In addition to these discharges, Respondent engaged in on an overly broad application of an otherwise valid no- a series of other unfair labor practices which are likely to solicitation rule, and an unlawful wage increase which have a lasting effect in the memories of the workers, was not specifically related to the employer's antiunion Thus, Respondent threatened Juan Mendez, Rey campaign. A bargaining order was denied in Struthers- Mendez, Luis Nunez, and Linda Santiago with discharge Dunn, Inc. v. N.L.R.B., 574 F.2d 796 (3d Cir. 1978), if they became involved in union activities. That such where a sufficient number of employees withdrew their threats may have been made a day or two before the union authorization cards thereby dissipating the union's Union attained its majority does not diminish their chill- majority before the employer's unfair labor practices ing effect where, as here, the employees could observe began. The fourth case relied on by Respondent, Pulley that Respondent was willing to convert similar threats v. N.L.R.B., 395 F.2d 870 (1968), turned on a question of into action by discharging Mercado and Rivera. More- the employer's good faith, which under the Supreme over, the Board has posited that the commission of unfair Court's Gissel decision is no longer a relevant considera- labor practices before the union's attainment of a major- tion, and involved unfair labor practices committed en- ity will not immunize an employer from the issuance of a tirely before the union requested recognition. According- bargaining order since, by its own actions, the employer ly, the cases cited by Respondent have no bearing on the has made it uncertain whether the employees can freely facts in the instant case and, therefore, do not derogate elect a bargaining representative. Merritt Motor Company, from my conclusion that the cumulative effects of Re- 181 NLRB 1099, 1106 (1970); Brookland, Inc. 221 spondent's unfair labor practices are so pervasive and NLRB 35, 40 (1975). severe as to undermine any expectation that a fair elec- Further, as found above, on May 21 Respondent tion could be held. threatened plant closure if employees imposed too many demands on the Company. It is difficult to conceive of a Respo arges that a remedial orer u * .orecalculated than this toed in this case and urges that the complaint should be threat more calculated than this to undermine employees' threat more calultetanhitudemindismissed in its entirety because, for legitimate economic support for a union and by itself is sufficient to vitiate a d s s s ed en be at enoi fair and free election. Ultra-Sonic De-Burring, supra at reasons operations at itsplant have been at a standstill 1068. -since the end of May 1980. On May 25, Respondent persisted in its unlawful be- There is no dispute that a delay in receiving further fi- havior by creating the impression it was surveying the ancial assistance from the Government and other vest- activities of Peter Lugo, by interrogating him about his ment sources compelled Respondent to lay off 80 percent and other employees' interest in the Union, and by issu- of its work force in June 1980 and, to date, it continues ing a warning to him supposedly for violating the Com- to function with only a skeletal staff. However, Respond- pany's no-distribution rule but, in fact, because he was ent stressed in its pleadings that it is making ardent ef- engaging in union activity. Just a week before the hear- forts to obtain a Federal loan and that its negotiations ing was held in this case, Respondent again improperly looked promising. Further, Respondent indicated that interrogated an employee. FAA approval of its aircraft was imminent and that, I do not believe that a make-whole remedy and order with this approval, final sales of planes on order could be would suffice to erase from the employees' memories the culminated. Moreover, Respondent stated that it would indelible imprint of Mercado's and Rivera's discharges. fully reactivate its Aguadilla plant as soon as economi- Reinstatement and backpay, offered months and possibly cally feasible and would then recall its former employ- years after discriminatory discharges, cannot eradicate ees. Indeed, given the Company's need for skilled em- the harm that has been done. See N.L.R.B. v. Jamaica ployees, it would be costly not to rehire them. Thus, al- Towing Co., supra. though it appears at this juncture that Respondent is not Nor is it likely that a cease-and-desist order posted in a position to predict precisely when the anticipated under Board and perhaps judicial compulsion would root funding will materalize or when its doors will reopen, it out the coercive effects on employees of Respondent's also would be premature to suggest that it has shut down threats to discharge them or close the plant if they per- permanently so as to make a bargaining order futile. sisted in their union activities. I also am doubtful that In cases such as this, where the union has not made a such an order would deter Respondent from continuing bargaining demand, the Board has tied the effective date its unfair labor practices when they were committed not of the bargaining order to the date on which the employ- AHRENS AIRCRAFT, INC. 849 their dismissals had to receive widespread attention. The by low-level officers but by four of Respondent's chief lesson which Respondent meant to convey to the balance officials and where Respondent has not taken even the of the work force could not have been lost-the price of simple curative step of rescinding its overly broad no-dis- active support for the Union was punishment, immediate tribution rule. See Justak Brothers and Company, Inc., 253 and severe. It was a lesson not easily forgotten. If Re- NLRB 1054 (1980). spondent's antipathy to union activity was so intense that The cases cited in Respondent's brief to support the it was willing to sacrifice two of its most experienced argument that its conduct falls into the third category of and highly trained employees, then certainly, less skilled Gissel-type cases where no bargaining order is warranted workers would have even more reason to fear a similar are factually distinguishable from those in the present fate if they too continued to support the Union. Thus, case. Thus, in White Pine, Inc., 213 NLRB 566 (1974), the unlawful termination of two key union proponents the union actually won a Board election. Walgreen Com- was calculated to quell the employees' prounion sympa- pany, 221 NLRB 1096 (1975), involved interrogation by thies and thereby thwart the Union's drive,.a low-level supervisor, a single unlawful reprimand based In addition to these discharges, Respondent engaged in on an overly broad application of an otherwise valid no- a series of other unfair labor practices which are likely to solicitation rule, and an unlawful wage increase which have a lasting effect in the memories of the workers, was not specifically related to the employer's antiunion Thus, Respondent threatened Juan Mendez, Rey campaign. A bargaining order was denied in Struthers- Mendez, Luis Nunez, and Linda Santiago with discharge Dunn, Inc. v. N.L.R.B., 574 F.2d 796 (3d Cir. 1978), if they became involved in union activities. That such where a sufficient number of employees withdrew their threats may have been made a day or two before the union authorization cards thereby dissipating the union's Union attained its majority does not diminish their chill- majority before the employer's unfair labor practices ing effect where, as here, the employees could observe began. The fourth case relied on by Respondent, Pulley that Respondent was willing to convert similar threats V. N.L.R.B., 395 F.2d 870 (1968), turned on a question of into action by discharging Mercado and Rivera. More- the employer's good faith, which under the Supreme over, the Board has posited that the commission of unfair Court's Gissel decision is no longer a relevant considera- labor practices before the union's attainment of a major- tion, and involved unfair labor practices committed en- ity will not immunize an employer from the issuance of a tirely before the union requested recognition. According- bargaining order since, by its own actions, the employer ly, the cases cited by Respondent have no bearing on the has made it uncertain whether the employees can freely facts in the instant case and, therefore, do not derogate elect a bargaining representative. Merritt Motor Company, from my conclusion that the cumulative effects of Re- 181 NLRB 1099, 1106 ( 1970); B r o ok la n d, I nc. 2 2 1 spondent's unfair labor practices are so pervasive and NLRB 35, 40 (1975). severe as to undermine any expectation that a fair elec- Further, as found above, on May 21 Respondent tion could be held. threatened plant closure if employees imposed too many Respondent argues that a remedial order is unwarrant- demands on the Company. It is difficult to conceive of a en s d u ta th intshulb threat more calculated than this to undermine employees' d d in its e ntiet be aus e legitimate ecnoIc support for a union and by itself is sufficient to vitiate a re s o s , opentits be en ate standsil fair and free election. Ultra-Sonic De-Burring, supra at r eas o ns, o p e r lt w ns a t lt s p lan t h av e bee n at a st a nd s t M l 9 1068. since the end of May 1980. On May 25, Respondent persisted in its unlawful be- Th e re is no dispute that a delay in receiving further fi- havior by creating the impression it was surveying the na n c ia l assistance from the Government and other ivest- activities of Peter Lugo, by interrogating him about his ment sources compelled Respondent to lay off 80 percent and other employees' interest in the Union, and by issu- of its work force in June 1980 and, to date, it continues ing a warning to him supposedly for violating the Com- t o function with only a skeletal staff. However, Respond- pany's no-distribution rule but, in fact, because he was ent stressed in its pleadings that it is making ardent ef- engaging in union activity. Just a week before the hear- forts to obtain a Federal loan and that its negotiations ing was held in this case, Respondent again improperly looked promising. Further, Respondent indicated that interrogated an employee. F A A approval of its aircraft was imminent and that, I do not believe that a make-whole remedy and order with this approval, final sales of planes on order could be would suffice to erase from the employees' memories the culminated. Moreover, Respondent stated that it would indelible imprint of Mercado's and Rivera's discharges. fully reactivate its Aguadilla plant as soon as economi- Reinstatement and backpay, offered months and possibly cally feasible and would then recall its former employ- years after discriminatory discharges, cannot eradicate ees. Indeed, given the Company's need for skilled em- the harm that has been done. See N.L.R.B. v. Jamaica ployees, it would be costly not to rehire them. Thus, al- Towing Co., supra. though it appears at this juncture that Respondent is not Nor is it likely that a cease-and-desist order posted in a position to predict precisely when the anticipated under Board and perhaps judicial compulsion would root funding will materalize or when its doors will reopen, it out the coercive effects on employees of Respondent's also would be premature to suggest that it has shut down threats to discharge them or close the plant if they per- permanently so as to make a bargaining order futile. sisted in their union activities. I also am doubtful that In cases such as this, where the union has not made a such an order would deter Respondent from continuing bargaining demand, the Board has tied the effective date its unfair labor practices when they were committed not of the bargaining order to the date on which the employ- AHRENS AIRCRAFT, INC. 849 their dismissals had to receive widespread attention. The by low-level officers but by four of Respondent's chief lesson which Respondent meant to convey to the balance officials and where Respondent has not taken even the of the work force could not have been lost-the price of simple curative step of rescinding its overly broad no-dis- active support for the Union was punishment, immediate tribution rule. See Justak Brothers and Company, Inc., 253 and severe. It was a lesson not easily forgotten. If Re- NLRB 1054 (1980). spondent's antipathy to union activity was so intense that The cases cited in Respondent's brief to support the it was willing to sacrifice two of its most experienced argument that its conduct falls into the third category of and highly trained employees, then certainly, less skilled Gissel-type cases where no bargaining order is warranted workers would have even more reason to fear a similar are factually distinguishable from those in the present fate if they too continued to support the Union. Thus, case. Thus, in White Pine, Inc., 213 NLRB 566 (1974), the unlawful termination of two key union proponents the union actually won a Board election. Walgreen Com- was calculated to quell the employees' prounion sympa- pany, 221 NLRB 1096 (1975), involved interrogation by thies and thereby thwart the Union's drive,.a low-level supervisor, a single unlawful reprimand based In addition to these discharges, Respondent engaged in on an overly broad application of an otherwise valid no- a series of other unfair labor practices which are likely to solicitation rule, and an unlawful wage increase which have a lasting effect in the memories of the workers, was not specifically related to the employer's antiunion Thus, Respondent threatened Juan Mendez, Rey campaign. A bargaining order was denied in Struthers- Mendez, Luis Nunez, and Linda Santiago with discharge Dunn, Inc. v. N.L.R.B., 574 F.2d 796 (3d Cir. 1978), if they became involved in union activities. That such where a sufficient number of employees withdrew their threats may have been made a day or two before the union authorization cards thereby dissipating the union's Union attained its majority does not diminish their chill- majority before the employer's unfair labor practices ing effect where, as here, the employees could observe began. The fourth case relied on by Respondent, Pulley that Respondent was willing to convert similar threats V. N.L.R.B., 395 F.2d 870 (1968), turned on a question of into action by discharging Mercado and Rivera. More- the employer's good faith, which under the Supreme over, the Board has posited that the commission of unfair Court's Gissel decision is no longer a relevant considera- labor practices before the union's attainment of a major- tion, and involved unfair labor practices committed en- ity will not immunize an employer from the issuance of a tirely before the union requested recognition. According- bargaining order since, by its own actions, the employer ly, the cases cited by Respondent have no bearing on the has made it uncertain whether the employees can freely facts in the instant case and, therefore, do not derogate elect a bargaining representative. Merritt Motor Company, from my conclusion that the cumulative effects of Re- 181 NLRB 1099, 1106 ( 1970); B r o ok la n d, I nc. 2 2 1 spondent's unfair labor practices are so pervasive and NLRB 35, 40 (1975). severe as to undermine any expectation that a fair elec- Further, as found above, on May 21 Respondent tion could be held. threatened plant closure if employees imposed too many Respondent argues that a remedial order is unwarrant- demands on the Company. It is difficult to conceive of a en s d u ta th intshulb threat more calculated than this to undermine employees' d d in its e ntiet be aus e legitimate ecnoIc support for a union and by itself is sufficient to vitiate a ras n s , operationtits be en ate standsil fair and free election. Ultra-Sonic De-Burring, supra at r eas o ns, o p e r lt w ns a t lt s p lan t h av e bee n at a st a nd s t M l 9 1068. since the end of May 1980. On May 25, Respondent persisted in its unlawful be- Th e re is no dispute that a delay in receiving further fi- havior by creating the impression it was surveying the na n c ia l assistance from the Government and other ivest- activities of Peter Lugo, by interrogating him about his ment sources compelled Respondent to lay off 80 percent and other employees' interest in the Union, and by issu- of its work force in June 1980 and, to date, it continues ing a warning to him supposedly for violating the Com- t o function with only a skeletal staff. However, Respond- pany's no-distribution rule but, in fact, because he was ent stressed in its pleadings that it is making ardent ef- engaging in union activity. Just a week before the hear- forts to obtain a Federal loan and that its negotiations ing was held in this case, Respondent again improperly looked promising. Further, Respondent indicated that interrogated an employee. F A A approval of its aircraft was imminent and that, I do not believe that a make-whole remedy and order with this approval, final sales of planes on order could be would suffice to erase from the employees' memories the culminated. Moreover, Respondent stated that it would indelible imprint of Mercado's and Rivera's discharges. fully reactivate its Aguadilla plant as soon as economi- Reinstatement and backpay, offered months and possibly cally feasible and would then recall its former employ- years after discriminatory discharges, cannot eradicate ees. Indeed, given the Company's need for skilled em- the harm that has been done. See N.L.R.B. v. Jamaica ployees, it would be costly not to rehire them. Thus, al- Towing Co., supra. though it appears at this juncture that Respondent is not Nor is it likely that a cease-and-desist order posted in a position to predict precisely when the anticipated under Board and perhaps judicial compulsion would root funding will materalize or when its doors will reopen, it out the coercive effects on employees of Respondent's also would be premature to suggest that it has shut down threats to discharge them or close the plant if they per- permanently so as to make a bargaining order futile. sisted in their union activities. I also am doubtful that In cases such as this, where the union has not made a such an order would deter Respondent from continuing bargaining demand, the Board has tied the effective date its unfair labor practices when they were committed not of the bargaining order to the date on which the employ- AHRENS AIRCRAFT, INC. 849 their dismissals had to receive widespread attention. The by low-level officers but by four of Respondent's chief lesson which Respondent meant to convey to the balance officials and where Respondent has not taken even the of the work force could not have been lost-the price of simple curative step of rescinding its overly broad no-dis- active support for the Union was punishment, immediate tribution rule. See Justak Brothers and Company, Inc., 253 and severe. It was a lesson not easily forgotten. If Re- NLRB 1054 (1980). spondent's antipathy to union activity was so intense that The cases cited in Respondent's brief to support the it was willing to sacrifice two of its most experienced argument that its conduct falls into the third category of and highly trained employees, then certainly, less skilled Gissel-type cases where no bargaining order is warranted workers would have even more reason to fear a similar are factually distinguishable from those in the present fate if they too continued to support the Union. Thus, case. Thus, in White Pine, Inc., 213 NLRB 566 (1974), the unlawful termination of two key union proponents the union actually won a Board election. Walgreen Com- was calculated to quell the employees' prounion sympa- pany, 221 NLRB 1096 (1975), involved interrogation by thies and thereby thwart the Union's drive,.a low-level supervisor, a single unlawful reprimand based In addition to these discharges, Respondent engaged in on an overly broad application of an otherwise valid no- a series of other unfair labor practices which are likely to solicitation rule, and an unlawful wage increase which have a lasting effect in the memories of the workers, was not specifically related to the employer's antiunion Thus, Respondent threatened Juan Mendez, Rey campaign. A bargaining order was denied in Struthers- Mendez, Luis Nunez, and Linda Santiago with discharge Dunn, Inc. v. N.L.R.B., 574 F.2d 796 (3d Cir. 1978), if they became involved in union activities. That such where a sufficient number of employees withdrew their threats may have been made a day or two before the union authorization cards thereby dissipating the union's Union attained its majority does not diminish their chill- majority before the employer's unfair labor practices ing effect where, as here, the employees could observe began. The fourth case relied on by Respondent, Pulley that Respondent was willing to convert similar threats V. N.L.R.B., 395 F.2d 870 (1968), turned on a question of into action by discharging Mercado and Rivera. More- the employer's good faith, which under the Supreme over, the Board has posited that the commission of unfair Court's Gissel decision is no longer a relevant considera- labor practices before the union's attainment of a major- tion, and involved unfair labor practices committed en- ity will not immunize an employer from the issuance of a tirely before the union requested recognition. According- bargaining order since, by its own actions, the employer ly, the cases cited by Respondent have no bearing on the has made it uncertain whether the employees can freely facts in the instant case and, therefore, do not derogate elect a bargaining representative. Merritt Motor Company, from my conclusion that the cumulative effects of Re- 181 NLRB 1099, 1106 ( 1970); B r o ok la n d, I nc. 2 2 1 spondent's unfair labor practices are so pervasive and NLRB 35, 40 (1975). severe as to undermine any expectation that a fair elec- Further, as found above, on May 21 Respondent tion could be held. threatened plant closure if employees imposed too many Respondent argues that a remedial order is unwarrant- demands on the Company. It is difficult to conceive of a en s d u ta th intshulb threat more calculated than this to undermine employees' d d in its e ntiet be aus e legitimate ecnoIc support for a union and by itself is sufficient to vitiate a ras n s , opentits be en ate standsil fair and free election. Ultra-Sonic De-Burring, supra at r eas o ns, o p e r lt w ns a t lt s p lan t h av e bee n at a st a nd s t M l 9 1068. since the end of May 1980. On May 25, Respondent persisted in its unlawful be- Th e re is no dispute that a delay in receiving further fi- havior by creating the impression it was surveying the nancial assistance from the Government and other ivest- activities of Peter Lugo, by interrogating him about his ment sources compelled Respondent to lay off 80 percent and other employees' interest in the Union, and by issu- of its work force in June 1980 and, to date, it continues ing a warning to him supposedly for violating the Com- t o function with only a skeletal staff. However, Respond- pany's no-distribution rule but, in fact, because he was ent stressed in its pleadings that it is making ardent ef- engaging in union activity. Just a week before the hear- forts to obtain a Federal loan and that its negotiations ing was held in this case, Respondent again improperly looked promising. Further, Respondent indicated that interrogated an employee. F A A approval of its aircraft was imminent and that, I do not believe that a make-whole remedy and order with this approval, final sales of planes on order could be would suffice to erase from the employees' memories the culminated. Moreover, Respondent stated that it would indelible imprint of Mercado's and Rivera's discharges. fully reactivate its Aguadilla plant as soon as economi- Reinstatement and backpay, offered months and possibly cally feasible and would then recall its former employ- years after discriminatory discharges, cannot eradicate ees. Indeed, given the Company's need for skilled em- the harm that has been done. See N.L.R.B. v. Jamaica ployees, it would be costly not to rehire them. Thus, al- Towing Co., supra. though it appears at this juncture that Respondent is not Nor is it likely that a cease-and-desist order posted in a position to predict precisely when the anticipated under Board and perhaps judicial compulsion would root funding will materalize or when its doors will reopen, it out the coercive effects on employees of Respondent's also would be premature to suggest that it has shut down threats to discharge them or close the plant if they per- permanently so as to make a bargaining order futile. sisted in their union activities. I also am doubtful that In cases such as this, where the union has not made a such an order would deter Respondent from continuing bargaining demand, the Board has tied the effective date its unfair labor practices when they were committed not of the bargaining order to the date on which the employ- 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er initiated its campaign of unfair labor practices if, as of majority of employees has signed authorization cards that date, the union obtained majority support. Rodeway designating the Union as its exclusive bargaining agent, Inn of Las Vegas, 252 NLRB 344 (1980); see also Boatel concerning the rates of pay, wages, hours, and working Alaska, Inc., 236 NLRB 1458 (1978); Ultra Sonic De-Bur- conditions of unit employees. ring, Inc., supra at 165. Although some of the unfair 10. The aforesaid unfair labor practices affect com- labor practices which make a bargaining order appropri- merce within the meaning of Section 2(6) and (7) of the ate here occurred prior to the date the Union attained its Act. majority, in accordance with the Board's approach, I conclude that the bargaining order should be retroactive THE REMEDY to May 21, 1980. Having found that Respondent has violated the Act in ~CONCLUSIONS OF LAW certain respects, I shall recommend that Respondent be required to cease and desist therefrom. Because Respond- 1. Respondent is an employer engaged in commerce ent has committed a number of serious and pervasive within the meaning of Section 2(6) and (7) of the Act. violations of the Act through its vice president and other 2. The Union is a labor organization within the mean- top-level supervisors, I conclude that, unless restrained, ing of Section 2(5) of the Act. Respondent is likely to engage in continuing unlawful ef- 3. At all material times, Ariel Berrios, Adalberto Cua- forts in the future to prevent its employees from engag- drado, Hiram Enchautegui, Julio Lopez, Manuel Lopez, ing in union and protected concerted activity. Accord- Melvin Martinez, Juan Mendez, Eduardo Mercado, ingly, Respondent will be required to refrain from in any George Montalvo, Abraham Mora, Nicolas Ramirez, other manner infringing on employees' rights to engage Wilfredo Ramos, Freddy Rivera, Luis Rivera, Neftali in such activity. Hickmott Foods, Inc., 242 NLRB 1357 Rodriguez, Ivan Salas, Alfredo Sosa, and Jose Valentino (1979). were employees within the meaning of the Act. Respondent has stated its intention to resume oper- 4. Commencing on May 21, 1980, and continuing ations when and if it obtains sufficient funding. There- thereafter, the Union was designated by a majority of fore, when Respondent does resume such operations, 21 it Respondent's employees in the unit described above as will be required to offer Eduardo Mercado and Freddy their exclusive bargaining representative. Rivera reinstatement to the jobs of which they were un- 5. Respondent has engaged in unfair labor practices lawfully deprived or, if such jobs no longer exist, to sub- within the meaning of Section 8(a)(l) of the Act by stantially equivalent jobs without prejudice to their se- threatening employees with plant closure; by maintaining niority or other rights and privileges previously enjoyed. and applying an overly broad no-distribution rule; by Franklin Fouts, d/b/a B & F Cartage, 251 NLRB 645 threatening employees with discharge if they joined a (1980). Further, Respondent will be ordered to make union; by instructing employees they could not join a Rivera and Mercado whole forthwith for any loss of pay union; by creating the impression they were engaged in they may have suffered by reason of the discrimination surveillance of an employee's union activity; by interro- against them, less net earnings, from the date of their dis- gating that employee about his and other employees' in- charges, May 21, 1980, to such date as Respondent dem- terest in the union and disciplining him because of his onstrates during the compliance stage of this proceeding participation in union activity; and by interrogating an that they might have been laid off in the normal course employee without proper assurances that his participa- of its business, less net earnings, to be computed in the tion was voluntary and no reprisals would be imposed. manner prescribed in F. W. Woolworth Company, 90 6. The following employees of Respondent constitute a NLRB 289 (1950), with interest as called for in Florida unit appropriate for the purposes of collective bargaining Steel Corporation, 231 NLRB 651 (1977). In addition, Re- within the meaning of the Act: spondent will be required to bargain with the Union on request, such bargaining to be retroactive to May 21, All production and maintenance employees of Re- 1981, the date on which the Union attained a majority spondent employed at its plant, exclusive of all among Respondent's employees. Rodeway Inn of Las other employees, office clerical employees, guards Vegas, 252 NLRB 344 (1980); Beasley Energy, Inc. d/b/a and supervisors as defined in Section 2(11) of the Peaker Run Coal Company, Ohio Division #1, 228 NLRB Act. 93 (1977). Although most of the employees who testified at the 7. Respondent has violated Section 8(a)(3) and (1) of earing in this case were fluent in English, Spanish is the Act by discharging employees Eduardo Mercado and nonetheless the native language of many Ahrens' em- Freddy Rivera on May 21, 1980. ployees. Therefore, Respondent will be required to mail 8. The Union has been at all times since May 21, 1980, to all those employees, including Rivera and Mercado, and still is, the exclusive bargaining representative of who were employed as of May 21, 1980, copies of the such employees within the meaning of Section 9(a) of the notice attached hereto in Spanish as well as English. Re- Act. spondent also shall post said notice in appropriate places 9. By its violations of Section 8(a)(l) and (3) of the at its plant. Act, as reviewed above, Respondent has prevented a free and fair election. Therefore, to best serve the purposes of Respondent shall offer reinstatement to Mercado and Rivera as soon the Act, Respondent is required to recognize and bargain as appropriate positions become available whether or not there has been a with the Union as of May 21, 1980, the date by which a full-scale resumption of its operations. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er initiated its campaign of unfair labor practices if, as of majority of employees has signed authorization cards that date, the union obtained majority support. Rodeway designating the Union as its exclusive bargaining agent, Inn of Las Vegas, 252 NLRB 344 (1980); see also Boatel concerning the rates of pay, wages, hours, and working Alaska, Inc., 236 NLRB 1458 (1978); Ultra Sonic De-Bur- conditions of unit employees. ring, Inc., supra at 165. Although some of the unfair 10. The aforesaid unfair labor practices affect com- labor practices which make a bargaining order appropri- merce within the meaning of Section 2(6) and (7) of the ate here occurred prior to the date the Union attained its Act. majority, in accordance with the Board's approach, I conclude that the bargaining order should be retroactive T H E REMEDY to May 21, 1980. Having found that Respondent has violated the Act in CONCLUSIONS OF LAW certain respects, I shall recommend that Respondent be required to cease and desist therefrom. Because Respond- 1. Respondent is an employer engaged in commerce ent has committed a number of serious and pervasive within the meaning of Section 2(6) and (7) of the Act. violations of the Act through its vice president and other 2. The Union is a labor organization within the mean- top-level supervisors, I conclude that, unless restrained, ing of Section 2(5) of the Act. Respondent is likely to engage in continuing unlawful ef- 3. At all material times, Ariel Berrios, Adalberto Cua- forts in the future to prevent its employees from engag- drado, Hiram Enchautegui, Julio Lopez, Manuel Lopez, ing in union and protected concerted activity. Accord- Melvin Martinez, Juan Mendez, Eduardo Mercado, ingly, Respondent will be required to refrain from in any George Montalvo, Abraham Mora, Nicolas Ramirez, other manner infringing on employees' rights to engage Wilfredo Ramos, Freddy Rivera, Luis Rivera, Neftali in such activity. Hickmott Foods, Inc., 242 NLRB 1357 Rodriguez, Ivan Salas, Alfredo Sosa, and Jose Valentineo (1979). were employees within the meaning of the Act. Respondent has stated its intention to resume oper- 4. Commencing on May 21, 1980, and continuing ations when and if it obtains sufficient funding. There- thereafter, the Union was designated by a majority of fore, when Respondent does resume such operations, 2 1 it Respondent's employees in the unit described above as will be required to offer Eduardo Mercado and Freddy their exclusive bargaining representative. Rivera reinstatement to the jobs of which they were un- 5. Respondent has engaged in unfair labor practices lawfully deprived or, if such jobs no longer exist, to sub- within the meaning of Section 8(a)(l) of the Act by stantially equivalent jobs without prejudice to their se- threatening employees with plant closure; by maintaining niority or other rights and privileges previously enjoyed. and applying an overly broad no-distribution rule; by Franklin Fouls, d/b/a B & F Cartage, 251 NLRB 645 threatening employees with discharge if they joined a (1980). Further, Respondent will be ordered to make union; by instructing employees they could not join a Rivera and Mercado whole forthwith for any loss of pay union; by creating the impression they were engaged in they may have suffered by reason of the discrimination surveillance of an employee's union activity; by interro- against them, less net earnings, from the date of their dis- gating that employee about his and other employees' in- charges, May 21, 1980, to such date as Respondent dem- terest in the union and disciplining him because of his onstrates during the compliance stage of this proceeding participation in union activity; and by interrogating an that they might have been laid off in the normal course employee without proper assurances that his participa- of its business, less net earnings, to be computed in the tion was voluntary and no reprisals would be imposed. manner prescribed in F. W. Woolworth Company, 90 6. The following employees of Respondent constitute a NLRB 289 (1950), with interest as called for in Florida unit appropriate for the purposes of collective bargaining Steel Corporation, 231 NLRB 651 (1977). In addition, Re- within the meaning of the Act: spondent will be required to bargain with the Union on request, such bargaining to be retroactive to May 21, All production and maintenance employees of Re- 1981, the date on which the Union attained a majority spondent employed at its plant, exclusive of all among Respondent's employees. Rodeway Inn of Las other employees, office clerical employees, guards Vegas, 252 NLRB 344 (1980); Beasley Energy, Inc. d/b/a and supervisors as defined in Section 2(11) of the Peaker Run Coal Company, Ohio Division #1, 228 NLRB Act. 93 (1977). 7- Respondent has violated Section 8(a)(3) and ,.^ of Although most of the employees who testified at the 7. Respondent has violated Section 8(a)(3) and (1) of hearing in this case were fluent in English, Spanish is the Act by discharging employees Eduardo Mercado and nonetheless the native language of many Ahrens' em- FreddyRUveraonhMay 21, 1980, ployees. Therefore, Respondent will be required to mail 8. The Union has been at all times since May 21, 1980, to all those employees, including Rivera and Mercado, and still is, the exclusive bargaining representative of who were employed as of May 21, 1980, copies of the such employees within the meaning of Section 9(a) of the notice attached hereto in Spanish as well as English. Re- Act. ~~~~~~~~~~~~~spondent also shall post said notice in appropriate places 9. By its violations of Section 8(a)(l) and (3) of the at its plant. Act, as reviewed above, Respondent has prevented a free and fair election. Therefore, to best serve the purposes of Respondent shall offer reinstatement to Mercado and Rivera as soon the Act, Respondent is required to recognize and bargain as appropriate positions become available whether or not there has been a with the Union as of May 21, 1980, the date by which a full-scale resumption of its operations. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er initiated its campaign of unfair labor practices if, as of majority of employees has signed authorization cards that date, the union obtained majority support. Rodeway designating the Union as its exclusive bargaining agent, Inn of Las Vegas, 252 NLRB 344 (1980); see also Boatel concerning the rates of pay, wages, hours, and working Alaska, Inc., 236 NLRB 1458 (1978); Ultra Sonic De-Bur- conditions of unit employees. ring, Inc., supra at 165. Although some of the unfair 10. The aforesaid unfair labor practices affect com- labor practices which make a bargaining order appropri- merce within the meaning of Section 2(6) and (7) of the ate here occurred prior to the date the Union attained its Act. majority, in accordance with the Board's approach, I conclude that the bargaining order should be retroactive T H E REMEDY to May 21, 1980. Having found that Respondent has violated the Act in CONCLUSIONS OF LAW certain respects, I shall recommend that Respondent be required to cease and desist therefrom. Because Respond- 1. Respondent is an employer engaged in commerce ent has committed a number of serious and pervasive within the meaning of Section 2(6) and (7) of the Act. violations of the Act through its vice president and other 2. The Union is a labor organization within the mean- top-level supervisors, I conclude that, unless restrained, ing of Section 2(5) of the Act. Respondent is likely to engage in continuing unlawful ef- 3. At all material times, Ariel Berrios, Adalberto Cua- forts in the future to prevent its employees from engag- drado, Hiram Enchautegui, Julio Lopez, Manuel Lopez, ing in union and protected concerted activity. Accord- Melvin Martinez, Juan Mendez, Eduardo Mercado, ingly, Respondent will be required to refrain from in any George Montalvo, Abraham Mora, Nicolas Ramirez, other manner infringing on employees' rights to engage Wilfredo Ramos, Freddy Rivera, Luis Rivera, Neftali in such activity. Hickmott Foods, Inc., 242 NLRB 1357 Rodriguez, Ivan Salas, Alfredo Sosa, and Jose Valentineo (1979). were employees within the meaning of the Act. Respondent has stated its intention to resume oper- 4. Commencing on May 21, 1980, and continuing ations when and if it obtains sufficient funding. There- thereafter, the Union was designated by a majority of fore, when Respondent does resume such operations, 2 it Respondent's employees in the unit described above as will be required to offer Eduardo Mercado and Freddy their exclusive bargaining representative. Rivera reinstatement to the jobs of which they were un- 5. Respondent has engaged in unfair labor practices lawfully deprived or, if such jobs no longer exist, to sub- within the meaning of Section 8(a)(l) of the Act by stantially equivalent jobs without prejudice to their se- threatening employees with plant closure; by maintaining niority or other rights and privileges previously enjoyed. and applying an overly broad no-distribution rule; by Franklin Fouls, d/b/a B & F Cartage, 251 NLRB 645 threatening employees with discharge if they joined a (1980). Further, Respondent will be ordered to make union; by instructing employees they could not join a Rivera and Mercado whole forthwith for any loss of pay union; by creating the impression they were engaged in they may have suffered by reason of the discrimination surveillance of an employee's union activity; by interro- against them, less net earnings, from the date of their dis- gating that employee about his and other employees' in- charges, May 21, 1980, to such date as Respondent dem- terest in the union and disciplining him because of his onstrates during the compliance stage of this proceeding participation in union activity; and by interrogating an that they might have been laid off in the normal course employee without proper assurances that his participa- of its business, less net earnings, to be computed in the tion was voluntary and no reprisals would be imposed. manner prescribed in F. W. Woolworth Company, 90 6. The following employees of Respondent constitute a NLRB 289 (1950), with interest as called for in Florida unit appropriate for the purposes of collective bargaining Steel Corporation, 231 NLRB 651 (1977). In addition, Re- within the meaning of the Act: spondent will be required to bargain with the Union on request, such bargaining to be retroactive to May 21, All production and maintenance employees of Re- 1981, the date on which the Union attained a majority spondent employed at its plant, exclusive of all among Respondent's employees. Rodeway Inn of Las other employees, office clerical employees, guards Vegas, 252 NLRB 344 (1980); Beasley Energy, Inc. d/b/a and supervisors as defined in Section 2(11) of the Peaker Run Coal Company, Ohio Division #1, 228 NLRB Act. 93 (1977). 7- Respondent has violated Section 8(a)(3) and ,.^ of Although most of the employees who testified at the 7. Respondent has violated Section 8(a)(3) and (1) of hearing in this case were fluent in English, Spanish is the Act by discharging employees Eduardo Mercado and nonetheless the native language of many Ahrens' em- FreddyRUveraonhMay 21, 1980, ployees. Therefore, Respondent will be required to mail 8. The Union has been at all times since May 21, 1980, to all those employees, including Rivera and Mercado, and still is, the exclusive bargaining representative of who were employed as of May 21, 1980, copies of the such employees within the meaning of Section 9(a) of the notice attached hereto in Spanish as well as English. Re- Act. ~~~~~~~~~~~~~spondent also shall post said notice in appropriate places 9. By its violations of Section 8(a)(l) and (3) of the at its plant. Act, as reviewed above, Respondent has prevented a free and fair election. Therefore, to best serve the purposes of Respondent shall offer reinstatement to Mercado and Rivera as soon the Act, Respondent is required to recognize and bargain as appropriate positions become available whether or not there has been a with the Union as of May 21, 1980, the date by which a full-scale resumption of its operations. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er initiated its campaign of unfair labor practices if, as of majority of employees has signed authorization cards that date, the union obtained majority support. Rodeway designating the Union as its exclusive bargaining agent, Inn of Las Vegas, 252 NLRB 344 (1980); see also Boatel concerning the rates of pay, wages, hours, and working Alaska, Inc., 236 NLRB 1458 (1978); Ultra Sonic De-Bur- conditions of unit employees. ring, Inc., supra at 165. Although some of the unfair 10. The aforesaid unfair labor practices affect com- labor practices which make a bargaining order appropri- merce within the meaning of Section 2(6) and (7) of the ate here occurred prior to the date the Union attained its Act. majority, in accordance with the Board's approach, I conclude that the bargaining order should be retroactive T H E REMEDY to May 21, 1980. Having found that Respondent has violated the Act in CONCLUSIONS OF LAW certain respects, I shall recommend that Respondent be required to cease and desist therefrom. Because Respond- 1. Respondent is an employer engaged in commerce ent has committed a number of serious and pervasive within the meaning of Section 2(6) and (7) of the Act. violations of the Act through its vice president and other 2. The Union is a labor organization within the mean- top-level supervisors, I conclude that, unless restrained, ing of Section 2(5) of the Act. Respondent is likely to engage in continuing unlawful ef- 3. At all material times, Ariel Berrios, Adalberto Cua- forts in the future to prevent its employees from engag- drado, Hiram Enchautegui, Julio Lopez, Manuel Lopez, ing in union and protected concerted activity. Accord- Melvin Martinez, Juan Mendez, Eduardo Mercado, ingly, Respondent will be required to refrain from in any George Montalvo, Abraham Mora, Nicolas Ramirez, other manner infringing on employees' rights to engage Wilfredo Ramos, Freddy Rivera, Luis Rivera, Neftali in such activity. Hickmott Foods, Inc., 242 NLRB 1357 Rodriguez, Ivan Salas, Alfredo Sosa, and Jose Valentineo (1979). were employees within the meaning of the Act. Respondent has stated its intention to resume oper- 4. Commencing on May 21, 1980, and continuing ations when and if it obtains sufficient funding. There- thereafter, the Union was designated by a majority of fore, when Respondent does resume such operations, 2 1 it Respondent's employees in the unit described above as will be required to offer Eduardo Mercado and Freddy their exclusive bargaining representative. Rivera reinstatement to the jobs of which they were un- 5. Respondent has engaged in unfair labor practices lawfully deprived or, if such jobs no longer exist, to sub- within the meaning of Section 8(a)(l) of the Act by stantially equivalent jobs without prejudice to their se- threatening employees with plant closure; by maintaining niority or other rights and privileges previously enjoyed. and applying an overly broad no-distribution rule; by Franklin Fouls, d/b/a B & F Cartage, 251 NLRB 645 threatening employees with discharge if they joined a (1980). Further, Respondent will be ordered to make union; by instructing employees they could not join a Rivera and Mercado whole forthwith for any loss of pay union; by creating the impression they were engaged in they may have suffered by reason of the discrimination surveillance of an employee's union activity; by interro- against them, less net earnings, from the date of their dis- gating that employee about his and other employees' in- charges, May 21, 1980, to such date as Respondent dem- terest in the union and disciplining him because of his onstrates during the compliance stage of this proceeding participation in union activity; and by interrogating an that they might have been laid off in the normal course employee without proper assurances that his participa- of its business, less net earnings, to be computed in the tion was voluntary and no reprisals would be imposed. manner prescribed in F. W. Woolworth Company, 90 6. The following employees of Respondent constitute a NLRB 289 (1950), with interest as called for in Florida unit appropriate for the purposes of collective bargaining Steel Corporation, 231 NLRB 651 (1977). In addition, Re- within the meaning of the Act: spondent will be required to bargain with the Union on request, such bargaining to be retroactive to May 21, All production and maintenance employees of Re- 1981, the date on which the Union attained a majority spondent employed at its plant, exclusive of all among Respondent's employees. Rodeway Inn of Las other employees, office clerical employees, guards Vegas, 252 NLRB 344 (1980); Beasley Energy, Inc. d/b/a and supervisors as defined in Section 2(11) of the Peaker Run Coal Company, Ohio Division #1, 228 NLRB Act. 93 (1977). 7- Respondent has violated Section 8(a)(3) and ,.^ of Although most of the employees who testified at the 7. Respondent has violated Section 8(a)(3) and (1) of hearing in this case were fluent in English, Spanish is the Act by discharging employees Eduardo Mercado and nonetheless the native language of many Ahrens' em- FreddyRUveraonhMay 21, 1980, ployees. Therefore, Respondent will be required to mail 8. The Union has been at all times since May 21, 1980, to all those employees, including Rivera and Mercado, and still is, the exclusive bargaining representative of who were employed as of May 21, 1980, copies of the such employees within the meaning of Section 9(a) of the notice attached hereto in Spanish as well as English. Re- Act. ~~~~~~~~~~~~~spondent also shall post said notice in appropriate places 9. By its violations of Section 8(a)(l) and (3) of the at its plant. Act, as reviewed above, Respondent has prevented a free and fair election. Therefore, to best serve the purposes of Respondent shall offer reinstatement to Mercado and Rivera as soon the Act, Respondent is required to recognize and bargain as appropriate positions become available whether or not there has been a with the Union as of May 21, 1980, the date by which a full-scale resumption of its operations. AHRENS AIRCRAFT, INC. 851 Upon the foregoing findings of fact, conclusions of (a) As soon as Respondent resumes its aircraft assem- law, and the entire record, and pursuant to Section 10(c) bly operations or has appropriate jobs, whichever comes of the Act, I hereby issue the following recommended: first, offer Eduardo Mercado and Frederick Rivera rein- statement to the jobs of which they were unlawfully de- ORDER2 2 prived or, if such jobs no longer exist, to substantially The Respondent, Ahrens Aircraft, Inc., Aquadilla, equivalent jobs, without prejudice to their seniority or Puerto Rico, its officers, agents, successors, and assigns, other rights and privileges previously enjoyed, and make shall: them whole forthwith for any loss of pay they may have 1. Cease and desist from: suffered by reason of the discrimination against them, in (a) Threatening employees with discharge or plant clo- the manner set forth in that part of this Decision entitled sure in order to dissuade them from supporting a union "The Remedy." or otherwise engaging in protected concerted activities. (b) Upon request, recognize and bargain with the (b) Discharging, warning, or otherwise discriminating Union as the exclusive representative of the employees in against employees with regard to any term or condition the appropriate unit and embody in a signed agreement of employment for engaging in activities on behalf of a any agreement reached. labor organization or for engaging in any activity pro- (c) Post at its Aguadilla, Puerto Rico, plant copies of tected by Section 7 of the Act. the attached notice marked "Appendix."2 Copies of said (c) Creating the impression of surveillance of employ- notice in English and Spanish, on forms provided by the ees' union activities, interrogating employees regarding Regional Director for Region 24, after being duly signed their union activities, or instructing employees that they by Respondent's representative, shall be posted by it im- are ineligible to join a union. mediately upon receipt thereof, and be maintained by it (d) Interrogating employees without advising them for 60 consecutive days thereafter, in conspicuous places, that their responses are voluntary and that they will including all places where notices to employees are cus- suffer no reprisals. tomarily posted. Reasonable steps shall be taken by Re- (e) Maintaining and applying an overly braod rule (e) Maintaining and applying an overly braod rule spondent to insure that said notices are not altered, de- which unlawfully prohibits the distribution by employees onde o re a a oties d e of unauthorized materials on company property during faced, or covered by any other material Copies of the nonworking hoursmaterials.on company proper ty during attached notice in English and Spanish also shall be (nonwor In any otherann interfering with, restraining, mailed to the home address of all employees, including (f) In any other manner inefn wh reEduardo Mercado and Freddy Rivera, who were em- or coercing its employees in the exercise of their rights ployed by Respondent as of May 21i 1980. under Section 7 of the Act. ployed by Respondent as of May 21, 1980. under Section 7 of the Act. 2. Take the following affirmative action designed to ef- (d) Notify the Regional Director for Region 24, in fectuate the policies of the Act: writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. " 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 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become it findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." AHRENS AIRCRAFT, INC. 851 Upon the foregoing findings of fact, conclusions of (a) As soon as Respondent resumes its aircraft assem- law, and the entire record, and pursuant to Section 10(c) bly operations or has appropriate jobs, whichever comes of the Act, I hereby issue the following recommended: first, offer Eduardo Mercado and Frederick Rivera rein- statement to the jobs of which they were unlawfully de- ORDER" prived or, if such jobs no longer exist, to substantially The Respondent, Ahrens Aircraft, Inc., Aquadilla, equivalent jobs, without prejudice to their seniority or Puerto Rico, its officers, agents, successors, and assigns, other rights and privileges previously enjoyed, and make shall: them whole forthwith for any loss of pay they may have 1. Cease and desist from: suffered by reason of the discrimination against them, in (a) Threatening employees with discharge or plant clo- the manner set forth in that part of this Decision entitled sure in order to dissuade them from supporting a union "The Remedy." or otherwise engaging in protected concerted activities. (b) Upon request, recognize and bargain with the (b) Discharging, warning, or otherwise discriminating Union as the exclusive representative of the employees in against employees with regard to any term or condition the appropriate unit and embody in a signed agreement of employment for engaging in activities on behalf of a any agreement reached. labor organization or for engaging in any activity pro- (c) post at its Aguadilla, Puerto Rico, plant copies of tected by Section 7 of the Act. the attached notice marked "Appendix."2 Copies of said (c) Creating the impression of surveillance of employ- notice in English and Spanish, on forms provided by the ees' union activities, interrogating employees regarding Regional Director for Region 24, after being duly signed their union activities, or instructing employees that they by Respondent's representative, shall be posted by it im- are ineligible to join a union. mediately upon receipt thereof, and be maintained by it (d) Interrogating employees without advising them for 60 consecutive days thereafter, in conspicuous places, that their responses are voluntary and that they will including all places where notices to employees are cus- suffer no reprisals. tomarily posted. Reasonable steps shall be taken by Re- (e) Maintaining and applying an overly braod rule.* . *, '. (e) aintinin andappling n ovrly raodrule spondent to insure that said notices are not altered, de- which unlawfully prohibits the distribution by employees sfac d, o overe by any other a ter ed te of unauthorized materials on company property during f ac ed. o r c o v er edi by a o t h er In a te ri laL C o p tes o f th e nofunauthorized materials on company property during attached notice in English and Spanish also shall be nonworking hours. mie otehm drs falepoes nldn (f) In any other manner interfering with, restraining, E m a l ed u t o M t h e h o m ea d d r es sdo f aR. whp owere e-g or coercing its employees in the exercise of their rights p E d ua rd o Mercado and Freddy Rivera2 who were em- under Section 7 of the Act.p'^d ^ Respondent as of May 21, 1980. 2. Take the following affirmative action designed to ef- (d) Notify the Regional Director for Region 24, in fectuate the policies of the Act: writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. " 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 In the event that this Order is enforced by a Judgment of a United findings6 conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become it findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." AHRENS AIRCRAFT, INC. 851 Upon the foregoing findings of fact, conclusions of (a) As soon as Respondent resumes its aircraft assem- law, and the entire record, and pursuant to Section 10(c) bly operations or has appropriate jobs, whichever comes of the Act, I hereby issue the following recommended: first, offer Eduardo Mercado and Frederick Rivera rein- statement to the jobs of which they were unlawfully de- ORDER" prived or, if such jobs no longer exist, to substantially The Respondent, Ahrens Aircraft, Inc., Aquadilla, equivalent jobs, without prejudice to their seniority or Puerto Rico, its officers, agents, successors, and assigns, other rights and privileges previously enjoyed, and make shall: them whole forthwith for any loss of pay they may have 1. Cease and desist from: suffered by reason of the discrimination against them, in (a) Threatening employees with discharge or plant clo- the manner set forth in that part of this Decision entitled sure in order to dissuade them from supporting a union "The Remedy." or otherwise engaging in protected concerted activities. (b) Upon request, recognize and bargain with the (b) Discharging, warning, or otherwise discriminating Union as the exclusive representative of the employees in against employees with regard to any term or condition the appropriate unit and embody in a signed agreement of employment for engaging in activities on behalf of a any agreement reached. labor organization or for engaging in any activity pro- (c) post at its Aguadilla, Puerto Rico, plant copies of tected by Section 7 of the Act. the attached notice marked "Appendix."2 Copies of said (c) Creating the impression of surveillance of employ- notice in English and Spanish, on forms provided by the ees' union activities, interrogating employees regarding Regional Director for Region 24, after being duly signed their union activities, or instructing employees that they by Respondent's representative, shall be posted by it im- are ineligible to join a union. mediately upon receipt thereof, and be maintained by it (d) Interrogating employees without advising them for 60 consecutive days thereafter, in conspicuous places, that their responses are voluntary and that they will including all places where notices to employees are cus- suffer no reprisals. tomarily posted. Reasonable steps shall be taken by Re- (e) Maintaining and applying an overly braod rule.* . *, '. (e) aintinin andappling n ovrly raodrule spondent to insure that said notices are not altered, de- which unlawfully prohibits the distribution by employees sfac d, o overe by any other a ter ed te of unauthorized materials on company property during f ac ed. o r c o v er edi by a o t h er In a te ri laL C o p tes o f th e nofunauthorized materials on company property during attached notice in English and Spanish also shall be nonworking hours. mie otehm drs falepoes nldn (f) In any other manner interfering with, restraining, E m a l ed u t o M t h e h o m ea d d r es sdo f aR. whp owere e-dng or coercing its employees in the exercise of their rights p E d ua rd o Mercado and Freddy Rivera2 who were em- under Section 7 of the Act.p'^d ^ Respondent as of May 21, 1980. 2. Take the following affirmative action designed to ef- (d) Notify the Regional Director for Region 24, in fectuate the policies of the Act: writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. " 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 In the event that this Order is enforced by a Judgment of a United findings6 conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become it findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." AHRENS AIRCRAFT, INC. 851 Upon the foregoing findings of fact, conclusions of (a) As soon as Respondent resumes its aircraft assem- law, and the entire record, and pursuant to Section 10(c) bly operations or has appropriate jobs, whichever comes of the Act, I hereby issue the following recommended: first, offer Eduardo Mercado and Frederick Rivera rein- statement to the jobs of which they were unlawfully de- ORDER" prived or, if such jobs no longer exist, to substantially The Respondent, Ahrens Aircraft, Inc., Aquadilla, equivalent jobs, without prejudice to their seniority or Puerto Rico, its officers, agents, successors, and assigns, other rights and privileges previously enjoyed, and make shall: them whole forthwith for any loss of pay they may have 1. Cease and desist from: suffered by reason of the discrimination against them, in (a) Threatening employees with discharge or plant clo- the manner set forth in that part of this Decision entitled sure in order to dissuade them from supporting a union "The Remedy." or otherwise engaging in protected concerted activities. (b) Upon request, recognize and bargain with the (b) Discharging, warning, or otherwise discriminating Union as the exclusive representative of the employees in against employees with regard to any term or condition the appropriate unit and embody in a signed agreement of employment for engaging in activities on behalf of a any agreement reached. labor organization or for engaging in any activity pro- (c) post at its Aguadilla, Puerto Rico, plant copies of tected by Section 7 of the Act. the attached notice marked "Appendix."2 Copies of said (c) Creating the impression of surveillance of employ- notice in English and Spanish, on forms provided by the ees' union activities, interrogating employees regarding Regional Director for Region 24, after being duly signed their union activities, or instructing employees that they by Respondent's representative, shall be posted by it im- are ineligible to join a union. mediately upon receipt thereof, and be maintained by it (d) Interrogating employees without advising them for 60 consecutive days thereafter, in conspicuous places, that their responses are voluntary and that they will including all places where notices to employees are cus- suffer no reprisals. tomarily posted. Reasonable steps shall be taken by Re- (e) Maintaining and applying an overly braod rule.* . *, '. (e) aintinin andappling n ovrly raodrule spondent to insure that said notices are not altered, de- which unlawfully prohibits the distribution by employees sfac d, o overe by any other a ter ed te of unauthorized materials on company property during f ac ecl. o r c o v er edi by a o t h er In a te ri laL C o p tes o f th e nofunauthorized materials on company property during attached notice in English and Spanish also shall be nonworking hours. mie otehm drs falepoes nldn (f) In any other manner interfering with, restraining, E m a l ed u t o M t h e h o m ea d d r es sdo f aR. whp owere e-dng or coercing its employees in the exercise of their rights p E d ua rd o Mercado and Freddy Rivera2 who were em- under Section 7 of the Act.p'^d ^ Respondent as of May 21, 1980. 2. Take the following affirmative action designed to ef- (d) Notify the Regional Director for Region 24, in fectuate the policies of the Act: writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. " 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 In the event that this Order is enforced by a Judgment of a United findings6 conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become it findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."