Igloo Corp.

IGLOO CORPORATION Igloo Corporation and Teamsters Freight, Tank Line & Automobile Industry Employees Local Union 988, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America. Case 23-CA-7482 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On April 8, 1980, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, the General Coun- sel filed limited exceptions and a brief in support thereof and a brief in support of the Administrative Law Judge's Decision, and Respondent filed an an- swering brief in opposition to the exceptions filed by the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Igloo Corporation, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings 2 The Administrative Law Judge recommended that Respondent be or- dered to cease and desist from violating the Act "in any other manner." However, the Board held in Hickmort Foods. Inc., 242 NLRB 1357 (1979), that this broad cease-and-desist language is warranted only in cases where "a respondent is shown to have a proclivity to violate the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights" Considering Respondent's unfair labor practices in light iof hi, standard, we conclude that a broad order is not appropriate in this case Accordingly, we shall order Respondent to cease and desist from violat- ing the Act in "any like or related manner" 254 NLRB No. 78 1. Insert "In any like or related manner" for "In any other manner" in paragraph (c). 2. Substitute the following for paragraph 2(a) and reletter present paragraph (b) as (c): "(a) Offer Cynthia Kuebler and Jesusa Aguilar immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and make them whole, with interest, for any loss of earnings they may have suffered due to the discrimination practiced against them by paying each of them a sum equal to what each would have earned, less any net interim earnings, plus interest, in the manner set forth in the section of this Decision entitled 'The Remedy.' "(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Insert the following as paragraph 2(d): "(d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." IT IS FURTHER ORDERED that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. 641 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT solicit the presentation of grievances from employees in order to dis- courage them from designating Teamsters Freight, Tank Line & Automobile Industry Employees Local Union 988, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, as your bargaining representative. WE WILL NOT discharge employees because of their union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Cynthia Kuebler and Jesusa Aguilar immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole, with interest, for any loss of pay they may have suffered as a result of the discrimination against them. IGLOO CORPORATION DECISION STATEMENr OF THE CASE GERALD A. WACKNOV, Administrative Law Judge: Pursuant to notice a hearing with respect to this matter was held before me in Houston, Texas, on October 30 and 31 and November 5, 1979.' The charge was filed on April 10 by Teamsters Freight, Tank Line & Automobile Industry Employees Local Union 988, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America (herein called the Union). Thereafter, on July 19, a complaint was issued alleging violations by Igloo Corporation (hereinafter called Respondent) of Section 8(a)(3) and (1) of the Na- tional Labor Relations Act, as amended (herein called the Act). The complaint was amended at the hearing to include additional 8(a)(1) allegations. Respondent denies the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel and counsel for Respondent. Upon the entire record and based upon my observa- tion of the witnesses and consideration of the briefs sub- mitted, I make the following: I All dates or ime periods herein are within 1979, unless stated to be otherwise. FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation with its princi- pal office and place of business located in Houston, Texas, where it is engaged in the manufacture and sale of ice chests and coolers. In the course and conduct of its business operations, Respondent has an annual gross volume of business in excess of $500,000 and annually purchases goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Texas. It is admitted, and I find, that Respondent is now, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the pleadings are wheth- er Respondent discharged two individuals in violation of Section 8(a)(3) of the Act, and made various statements to employees violative of Section 8(a)(1) of the Act. B. The Facts Guadalupe Vasquez, pursuant to an assignment by the Union, took a leave of absence from his prior employer in order to obtain employment by Respondent for the purpose of organizing Respondent's employees. He was hired by Respondent as a quality control inspector in early February, and during his tenure with Respondent was also paid by the Union. On March 23, the Union sent a telegram to Respon- dent advising it that Vasquez and another named em- ployee were engaging in lawful union organizational ac- tivity. On the same date the Union sent a letter to Re- spondent stating, inter alia, that many of Respondent's employees had indicated an interest in union representa- tion, and that various employees and representatives of the Union were then engaged in union solicitation. Re- spondent replied by letter dated March 26 advising, inter alia, that Vasquez had been discharged for threatening his supervisor and providing false information on his em- ployment application. 2 Cynthia Kuebler began working for Respondent on September 21, 1977, and Jesusa Aguilar became em- ployed on January 8, 1978. Thereafter, they became quality control inspectors. According to the testimony of Quality Control Supervisor Terry Gifford, both employ- ees were selected from a group of employees to perform a specific quality control job, as they were deemed to be particularly adept at the work. The ability of Kuebler and Aguilar to speak both Spanish and English was a distinct advantage, if not a necessity, as the nature of 2 It is not contended that the discharge of Vasquez, discussed below, w'ls ,illltlV8 Ieof It h Act 642 IGLOO CORPORATION their work frequently involved inspecting machines and products, and it was necessary that these two inspectors communicate with employees throughout the large plant. Gifford testified that he was in the process of training them to become lab assistants, and readily acknowledged that he was well satisfied with their work performance. Both Kuebler and Aguilar, after discussions with Vas- quez, signed union cards and became active on behalf of the Union. On March 22, during lunch, Kuebler asked Gifford what he thought of the Union. Gifford replied that he had been in favor of a union at another company, but implied that his activity had caused his relationship with other employees to suffer. He added, "If you think of going into [the] union, just be careful of what you do and don't let anybody find out, because it can be a pretty sticky deal." Kuebler replied that she believed a union would benefit the employees because of the way they were treated by Respondent. Joseph Decker was quality control manager at times material herein, and was Gifford's immediate supervisor. Decker testified that, on or about March 21, he was walking through the plant and observed that Aguilar and Vasquez were engaged in a conversation at a time when Vasquez, who was also a quality control inspector, was supposed to be performing a very important inspection job. Decker not only believed that the two employees had no work-related reason to be conversing, but that Aguilar should not even have been in that particular area of the plant. Thereupon, Decker reported what he had observed to Supervisor Eloy Gonzales, the immediate su- pervisor of Vasquez. He instructed Gonzales to speak to Vasquez about the matter, and told Gonzales to have Gifford speak to Aguilar about the matter, in accordance with the practice that reprimands should come from the employees' immediate supervisors. Thereafter, Gonzales apparently reprimanded Vasquez. Similarly, Gifford rep- rimanded Aguilar, instructing her not to engage inspec- tors in conversation and thus prevent them from doing their work. Aguilar, according to Gifford, replied that she had merely stopped to say good morning to Vasquez and expressed her displeasure with Gifford's admonition. Decker testified that later that afternoon he received a call from Vasquez, who proceeded to criticize Decker for causing Gonzales to reprimand him, Vasquez, for misconduct, and for Decker's failure to directly confront Vasquez without an intermediary. Further, Vasquez said he would "take care of" Decker if he continued to treat Vasquez or any other inspector in this manner. Decker explained that he was simply following procedure, and Vasquez once again threatened to take care of him and asked whether Decker knew what he meant. Decker said he understood very well. The next morning, March 22, Decker advised Person- nel Manager Sylvia Harper-Ducharme, and Executive Vice President Tom Nickels of the aforementioned inci- dent, and recommended that Vasquez be discharged for threatening him. On March 23, Decker and Harper-Du- charme discharged Vasquez for threatening two supervi- sors and falsifying his employment application.3 3 Harper-Ducharme testified that she had rceied a report hat an- other supervisor had been threatened by Vasquez on the enitg of March 22. while Vasquez was handbilling outside the plant Moreoer, On the same date, March 23, at about 10 a.m., Kuebler and Aguilar were called to a meeting in Decker's office. Gifford, Decker, and Robert McDougall, quality control supervisor, who shared this authority with Gifford but, unlike Gifford, maintained an office in the main office area rather than in the lab, were present on behalf of management. Decker stated that the Union was for truckdrivers, and therefore was not particularly suited to represent the employees of Respondent. He went on to state that cards written in Spanish and distributed by the Union were false or misleading to those employees who were unable to read the English translation, and men- tioned that the leadership of the Union could not be trusted. Decker repeated several times that he did not want to know if Kuebler and Aguilar were for or against the Union, stating that the decision was up to them, and at one point stated that they should be careful in making a decision. Kuebler inquired why, in light of Decker's statement that employees had the freedom to support the Union, Vasquez had been terminated. ' Decker replied that Vas- quez had lied on his employment application, and went on to describe the aforementioned incident involving Aguilar and Vasquez on March 21, stating that he had been threatened by Vasquez as he was in the process of telling Aguilar to leave the area. 5 Decker added that he had a wife and new baby, and would not tolerate such threats. Later that afternoon Respondent held a group meeting attended by about 200 employees. Kuebler and Aguilar were working in the warehouse area and listened to the speech of Jennings Futch, president of Respondent. Futch spoke in English and the speech was translated into Spanish. During the course of the speech Futch stated, according to Kuebler and Aguilar, that the union cards which the employees signed would not be confi- dential because the Union or someone would advise Re- spondent of the names of the card signers. On cross-ex- amination portions of Futch's speech were read to the employees, and both agreed that Futch said, "Despite what the Teamster salesmen say, these cards will not be kept confidential, because they will be given to the Na- tional Labor Relations Board by the Union." At a later point Futch said, apparently after cautioning employees that their signing of a card may also constitute authoriza- tion for a dues checkoff, "Please do not sign these cards. They may not be secret and they may not be confiden- tial. They are not innocent little pieces of paper because they may cost all of us a great deal of time and money." the employment application of Vasquez was found to containl upon Iii- vCstlgalion. false informatiorn Vasquez testified that he made no thrlals to an supervisors and denies making a phone call to Decker on March 21 Further. Vasquez testified that he was discharged at or abhlt 45 a.m on March 23. and that the only reason given for the discharge .as that lie falsified his application. no mention behcig nmade of an\ thr;eatl Vasquez admits falsifying his applicalion regarding prior empli iment lid wages i order to gain emploN)mellt itth Respidetllt I' he record does not reflect h KCaebler had knos ii about the dls- charge f \V asqutc s which I find, occuArred ornk about 15 linule Prior lto the metelnig Dccker acknowls edged that Ktiublcr m;ade hihs ilqtl ill the ' Agiar denied that Dec kcr told her In lea cl the rea. hut "asa , nli qucstioned in dletail about Ihe March 21 ill cat 643 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kuebler and Aguilar also testified that Futch advised the employees that if they ever had a problem they could bring it to him or Tom Nickels or any other repre- sentative of management. On cross-examination it was brought out and agreed that Futch stated: You do not need outside salesmen speaking or trying to speak for you. We have always had an open door policy here at our company, and if any one of you wishes to discuss any problems you have, you are completely free to talk to our people in personnel, your supervisor, your department manager, your superintendent, or you can go to Vince Grebic, our Vice-President of Operations, or you can even come to my office. While Kuebler and Aguilar testified that they had never heard of such a policy, Respondent's supervisors testified that such a policy has always existed. Another meeting was scheduled for another large group of employees immediately thereafter, and as Kuebler and Aguilar had work to perform in the area they decided to remain. At this point Gifford ordered them back to the lab. Kuebler asked why, and Gifford replied, "Joe Decker's giving you girls funny looks." Later that afternoon, immediately after work, Kuebler went outside the gate to talk with Vasquez, who was again handbilling. Supervisors Gifford and Gonzales drove through the gate and said good night to her as she was conversing with Vasquez. Kuebler and Aguiler con- tinued to actively support the Union until their termina- tion on March 30. On the morning of March 30, Respondent received a letter from the Union, by registered mail, in an envelope bearing the Union's name: RE: In Plant Organizing Committee Dear Sir: This letter is to advise you and your Company that the named individuals, as employees of Igloo, have voluntarily agreed to become part of the "In Plant Organizing Committee." Each of these indi- viduals will be exercising their rights under the Na- tional Labor Relations Act. Each of them will be actively soliciting Union support from their fellow workers during non pro- ductive periods, such as before work, after work, during lunch and break periods. Each of them, as well as other employees, will be wearing various items, such as Union buttons, jack- ets, T shirts, as a visual display of their intentions and rights. I would request that you make knowledgeable to each of your supervisory employees the National Labor Relations Act and its meanings and intents; and, instruct them to not harass or attempt to pre- vent any employee from lawfully exercising his rights. If your Company takes any actions against these or other employees for exercising their rights under the National Labor Relations Act, I can assure you that appropriate actions will be taken to protect the employees and their rights. This letter then listed "The Present In-Plant Organizing Committee" consisting of 17 names, including that of Aguilar. Personnel Manager Harper-Ducharme testified that as a direct result of the threats made by Vasquez, coupled with reports that employees were being intimidated by union adherents, the following memo was posted on Re- spondent's bulletin boards6 on the morning of March 30: 30 MARCH 1979 TO: ALI. EMPLOYEES FROM: TOM NICKELS SUBJECT: 'THREATS TO EMPLOYEES IT HAS BEEN CALLI.ED TO OUR ATFENTION THAT SOME OF OUR EMPLOYEES WHO ARE UNION SUP- PORTERS ARE THREATENING OTHER EMPLOYEES IN AN EFFORT TO FORCE THEM TO SIGN UNION CARDS. THESE THREATS ARE BOTH ILLEGAL AND IMMORAL AND IGLOO CORPORATION WILL NOT TOLERATE SUCH CONDUCT. ANY EMPLOYEE WHO THREATENS ANOTHER EM- PLOYEE WIll.. BE TERMINATED). On the morning of March 30, while Kuebler and Aguilar were performing their duties in the lab, Aguilar described the aforementioned memo to Kuebler, which Aguilar had seen posted on the office bulletin board. Shortly thereafter at or about the time the employees customarily took their breaks, Kuebler mentioned that she was going to make some photocopies of a particular laboratory analysis form, a routine and regular practice, and Aguilar said that she would accompany Kuebler to the office to show her the memo. They proceeded to the office area, stopped at the bulletin board, and read the memo. Aguilar then detached the memo from the bulle- tin board, and the two employees walked to the nearby photocopy machine where Aguilar ran off two or three copies of the memo, and Kuebler ran off the necessary copies of the analysis form. The employees observed sev- eral individuals in the area. On their way out Aguilar re- posted the memo on the bulletin board, and gave a copy to Kuebler. That afternoon Quality Control Supervisor McDougall summoned Aguilar to the office area and escorted her into Harper-Ducharme's office. Decker was also present. -I he bulletin board in the office area was uncovered, while the bulle- tin boards located elsewhere were able to be locked he general purpose office bulletin board contains information about available jobs, announce- ments regarding promotions. other miscellaneous items, and notices re- garding the sale of merchandise by employees, which notices would he submitted by he employees to the personnel department for postilg The onlN written rule regarding bulletin hoard use by employees is contained in Responldcnt's cmphloyee manual and soletimes is posted on the bulletin hoard itself. The rule entitled "Bulletin Hoards," which appears under a section of the manual entitiled "()n the Job Ielnefits," is as fllows: BIulletin oards are located in all of the Igloo buildings in Houston for the genleral inforlmatiln o eiployees All utices will be psted on tile boards simultaneously tverything to he posted must he ap- prosed by the I'ersonnel Deparlment Anything which is posted without approval will be promptly removed. 644 IGLOO CORPORATION Aguilar testified that Harper-Ducharme asked if she had taken down the aforementioned memo and had copied it. Aguilar said she had. Harper-Ducharme asked what she had done with the copy and Aguilar replied that she threw it in the trash container in the restroom. Harper- Ducharme then said that she was being terminated for stealing company property, and handed her a final pay- check. Kuebler was summoned to the office shortly there- after. The same individuals were present. Kuebler testi- fied that Harper-Ducharme advised her that she was being terminated, and Kuebler asked why. Harper-Du- charme replied, "For stealing company property .... The notice that was on the bulletin board." Kuebler said she did not take anything, and didn't run off any copies. Harper-Ducharme said, "It doesn't matter. You were with Suzy [Aguilar]." Kuebler asked what difference that made, and Harper-Ducharme "stammered and stut- tered" and replied, "Well, I have my orders," and gave her her paycheck. During the conversation Harper-Du- charme asked if Kuebler had a copy of the memo, and Kuebler replied that she had discarded it. Upon exiting, Kuebler met Gifford who asked where she had been as she had been assigned certain work to complete. Kuebler explained that she and Aguilar had been fired for stealing company property, namely, run- ning off copies of the memo. Gifford expressed suprise and said she must be joking. He added, "Now I told you girls to be very careful with anything that has that five- letter word . . . union." Shortly thereafter, Gifford re- ceived a phone call, and thereupon asked Kuebler and Aguilar for their identification badges, and escorted them outside the plant gate. Harper-Ducharme testified that Dee Roland, executive secretary to Futch, observed the employees in the office area and watched as one of the employees, then unidenti- fied, removed the memo from the bulletin board, made several copies of it on the photocopy, machine, and "sev- eral seconds later" reposted the memo. Roland reported this to Nickels, in the absence of Futch, who was on va- cation, and expressed her "shock." Roland did not know Kuebler or Aguilar, but described their appearance, and Harper-Ducharme recommended to Nickels that the em- ployees be located and discharged. Shortly thereafter Kuebler and Aguilar were identified as a result of Ro- land's description. 7 Harper-Ducharme then summoned Aguilar to the office, and asked her for the copies she had made. Agui- lar replied that she did not have them, and had thrown them away. Harper-Ducharme then advised Aguilar that she was being terminated for leaving her work station, coming into the office without permission, removing the memo from the bulletin board without permission, and photocopying it without permission. Shortly thereafter, Harper-Ducharme had a similar discharge interview with Kuebler. 8 Roland's testimony corroborates that of Harper-Ducharme 8 The testimony of McDougall and Decker regarding these two con- verslations is not entirely consistent with that of Htarper-Ducharme. and both McDougall and Decker "sere unable to recollect with any specific- ity swhal Kutehler said in her defense Harper-Ducharme further testified that after discharg- ing the employees she called Gifford and instructed him to obtain their identification badges and escort them out of the plant. She also instructed an assistant to search for and retrieve the discarded copies. Two copies were found in the women's restroom. They had been folded several times. One copy had been torn up into 26 pieces and was found in the wastebasket in the quality control laboratory. 9 When asked what particular rule Kuebler and Aguilar were violating, Harper-Ducharme acknowledged that Respondent was not concerned with the cost of the pho- tocopying paper, but rather that "What we are con- cerned with is the fact that we need to monitor what is going on and that those notices remain there for all the employees to see, both plant and office employees." Nickels testified that the nature of the particular memo removed from the bulletin board was not material to Re- spondent's decision to discharge the employees. Thus, Nickels acknowledged that if an employee removed a notice for the sale of an automobile from the bulletin board, copied it for the purpose of contacting the party, and immediately replaced it, this too would be cause for automatic discharge. However, if the employee copied it in longhand without removing it from the bulletin board, such conduct would be perfectly permissible. Apparent- ly, the act of removal is the offense. Both Harper-Ducharme and Nickels professed that they were unaware of the union activity of Kuebler and Aguilar at the time of their termination. Moreover, Nick- els testified that the letter from the Union containing Aguilar's name as a member of the organizing committee did not come to his attention until at or about 2:30 or 3 p.m. on March 30, subsequent to the time that Aguilar had been terminated. 0 Gifford testified that he, too, was unaware that Aguilar and Kuebler were actively sup- porting the Union; that he did not observe Kuebler or Aguilar talking to Vasquez at the gate before they were terminated; and that he had nothing to do with the ter- mination of the two employees and never spoke to higher management about their union sympathies. There is a conflict in testimony regarding the matter of when plant employees are permitted to enter or pass through the office area. Thus, various supervisors or managers of Respondent testified that the office area is essentially off limits to plant employees, while various employees testified that they enter and pass through the office area freely for various nonbusiness purposes, in- cluding the purchase of company shirts, use of the pop machine, or merely to exit the premises through the office to the parking lot. Moreover, there is conflicting testimony regarding the extent to which the work of Kuebler and Aguilar requires that they enter the office area. Thus, the two employees testified that photocopy- ing work, obtaining office supplies, conferring with McDougall, or performing other required duties necessi- I hese copies and scraps of paper are included as ehibits herein I' I do not credit Nickel's testimony in this regard It is highly unlike- N that it letter of this nature sent h registered mail and hearing Ihe name of the tInionll on the enelope would not hec hbeen hroughl to the mme- di;e attc it'tlon of Nickels (or olhr nlr.llldia IIl pr-lliCl 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tate their presence in the office area three to five times per day. In contrast, a composite of the testimony of Re- spondent's representatives or managers discloses that while the office area is certainly not off limits to the two employees, the nature of their work would necessitate visits to the office only several times per week, primarily for the purpose of photocopying documents. Employee use of the photocopying machine for non- business purposes is likewise subject to conflicting testi- mony. Harper-Ducharme testified that it was an "unwrit- ten policy" that the photocopy machine was strictly for company business, and that use of the machine for per- sonal matters is forbidden. Nickels testified similarly. However, there is abundant testimony by past and cur- rent employees of Respondent, and by Supervisor J. Ra- mirez who admits participating in certain betting pools, that during times material herein supervisors and em- ployees have conducted football and baseball pools, during working hours, some requiring the sale of 100 chances at $10 each. While cash prizes would sometimes be awarded, it appears that merchandise such as rifles, pistols, automobiles, stereos, and television sets were cus- tomarily awarded the winners. One current employee, Juanita Vargas, estimated that she was aware of some 15 such pools in 1978, and an equal number in 1979. The record amply demonstrates, and I find, that it was stan- dard practice for the individuals conducting each pool to give each participant a copy of the filled-in form, after making the necessary copies on the office photocopying machine. Harper-Ducharme testified that it came "as a very big surprise" to her that this type of gambling, which is contrary to a specific work rule' was being conducted, and Nickels expressed "total shock" upon being confronted with this evidence. Respondent made no effort at the hearing to disprove the nature and extent of the aforementioned pools, but Respondent's managers generally denied any awareness of the pools or of the use of the photocopying machine for such purposes. l 2 Aguilar testified that on or about February 27, during a conversation with Jody Harris, an alleged supervisor, Harris stated that the Union had a reputation for stealing money from its treasury, and asked if she had signed a union card. Aguilar replied that she had signed a card, and Harris replied, "You know that you can be fired for signing the union card." Harris added that the Union was not going to keep these cards confidential, and that Igloo was going to find out about it. Harris denies the conversation. The General Counsel maintains that Jody Harris is a supervisor, and the following record evidence bears on this issue. At times material herein Marty Burnell was an assembly line supervisor over a production line of some 23 employees. In addition, a foreman was assigned to the line, Alonzo Longoria. At the time of the aforemen- " Respondent's employee manual, under the heading "Work Rule Violations" specifies: "(ambling--Any form of gambling or games of chance during normal work shift/day on company property." 12 I do not credit the testimony of Harper-Ducharme or Nickels in this regard. Virtually hundreds of copies of pool forms were run off on the photocopy machine in the office area, which is proximate to the office of Harper-Ducharme and Nickels, over a substantial period of time. and their professed ignorance of such matters is highly unlikely under the cir- cumstances tioned conversation Jody Harris was a foreman-trainee on this particular production line, and, although a new supervisor and foreman have been appointed, Harris' status has not changed. Harris performs the same work as other employees on the line and fills in for absent em- ployees. In the absence of the supervisor, the foreman performs supervisory duties rather than Harris. Indeed, Harris is unable to communicate with the employees as only two or three employees on the line speak English, and Harris, unlike the current supervisor and foreman, speaks no Spanish. The record shows that Harris does not direct employees or evaluate their work. He has no authority to discipline employees but may bring a possi- ble rule infraction by an employee to the attention of a supervisor or foreman. During Respondent's cross-examination of Kuebler, it was brought out that Supervisor Jessie Ramirez, the day following an evening union meeting which had been an- nounced by notice distributed at the plant gate, asked Kuebler, "How was it last night?" Kuebler asked what was he referring to, and Ramirez said, "The meeting of the Union." Kuebler simply ignored the question and did not reply.' 3 C. Analysis and Conclusions 1. The discharges of Kuebler and Aguilar It is abundantly apparent that Kuebler and Aguilar were discharged as a result of their union activity in gen- eral and their related association with union organizer Guadalupe Vasquez. Vasquez was discharged on the very day that Respondent received notification of his union involvement, in part for allegedly making a threat to Quality Control Manager Decker following an inci- dent in which Aguilar was directly involved. Thus, Decker caused Aguilar and Vasquez to be reprimanded by their respective immediate supervisors for allegedly conversing when they should have been working, and, moreover, Decker believed that Aguilar should not have even been in the particular area. Decker thereafter alleg- edly received a phone call from Vasquez who com- plained about such treatment toward himself and "other inspectors" and threatened Decker. 14 Decker reported the incident to higher management. Only about 15 minutes following Vasquez' discharge, Aguilar and Kuebler were summoned to a meeting with Decker and Quality Control Supervisors McDougall and Gifford, during which meeting Kuebler took issue with Decker's statement that the employees were free to sup- port the Union, by inquiring why Vasquez had been dis- charged. Later that afternoon, Gifford observed Kuebler standing outside the plant gate talking to Vasquez who was handbilling, and the day before, March 22, Kuebler T The General Counsel's motion to amend the complaint alleging this as an instance of unlawful interrogation was denied, although Respondent was advised that it would be considered as bearing on the issue of Re- sponldent's knowledge of Kuebler's union activity Ramirez denied that he asked Kuebhler this question " I find it unnecessary to make a credibility finding regarding this matter 646 IGLOO CORPORATION told Gifford that she believed a union could benefit the employees. ' 5 As a result of the foregoing, it is clear, and I find, that prior to March 30 Respondent's representatives knew or strongly suspected the involvement of Kuebler and Aguilar with Vasquez and the Union. No other interpre- tation of the facts appears reasonable, and Respondent has proferred no credible evidence tending to support a different conclusion. Moreover, I have found above that Respondent was aware of the contents of the March 30 letter, naming Aguilar as a member of the Union's orga- nizing committee, prior to the discharge of Aguilar and Kuebler on the same date. The memorandum posted on March 30, involving the union activity at the plant, was a notice specifically di- rected to employees and was placed on a general pur- pose bulletin board. There was no showing that any em- ployee was deprived of an opportunity to read the notice during the short period of time involved between the re- moval and reposting of the notice by Aguilar, and there is no written company rule prohibiting the removal of such notices for the purpose of copying them. There is no showing that Respondent had previously disciplined or discharged employees for removing bulletin board no- tices or for similar conduct which might be deemed to be analogous to the employees' conduct herein. Nor is there any evidence that employees were ever put on notice or warned that Respondent considered such or similar conduct, which on its face appears totally innoc- uous, to warrant any form of discipline, much less dis- missal. Moreover, the employees discharged herein were among the most valuable of Respondent's employees, se- lected from a larger group to perform a particular job because of their abilities, and Respondent acknowledges that they were performing their assigned jobs very well. It would appear that Respondent would be highly reluc- tant to discharge such employees absent some compelling justification, and certainly, absent some ulterior motive, it is highly improbable that Respondent would seek to discharge them for the dubious reason advanced herein. Respondent's employee manual, under the heading of "Dismissal Policy," states: Dismissal is defined as the separation of an employ- ee for just cause. Just Cause shall mean conviction of a felony, intemperance on the job, misappropria- tion of company assets, violation of company work rules, violation of company safety rules and such other breach of integrity and morals that Igloo may deem substantial. An employee will be dismissed only after all facts have been carefully considered and documented and the action is determined to be justified. Notice will not necessarily be given an employee who is dismissed. Severance Pay and Va- cation Pay will be given in accordance with Igloo's Vacation Policy. The facts involving the participation of Kuebler in the memo-removal incident afford Respondent even less "just cause" for her dismissal. Thus, Respondent's "in- 15 I credit Kuebler's testimony regarding these incidents vestigation" of Kuebler's involvement disclosed that Kuebler had compelling business reasons to enter the office area and use the photocopy machine, and that Kuebler did not remove the notice from the bulletin board, photocopy it, or replace it. Indeed, I find that Kuebler mentioned these very matters during her dis- charge conversation," and Harper-Ducharme could only articulate that Kuebler committed the offense of being with Aguilar. Nor has Respondent provided any rationale other than "guilt by association" to justify the dismissal of Kuebler. On the basis of the foregoing, I find that the reasons advanced by Respondent for the discharges of Kuebler and Aguilar are so unpersuasive, unreasonable, and un- natural, and are so far removed from any semblance of justifiability in terms of past practice, as to mandate the conclusion that the assigned reasons for the discharges are pretextual. Such considerations, coupled with Re- spondent's knowledge of the union activity of Kuebler and Aguiar and their relationship to Vasquez, warrant the further finding, which I make, that the two employ- ees were discharged in violation of Section 8(a)(3) and (1) of the Act. See First National Bank of Pueblo, 240 NLRB 184 (1979); Magic Chef, Inc., 181 NLRB 1136 (1970), enfd. 443 F.2d 374 (6th Cir. 1971); Asheville Steel Company, 202 NLRB 146, 153, enfd. 487 F.2d 1398 (4th Cir. 1973). 2. Additional 8(a)(l) allegations The amended complaint alleges, inter alia, that on or about March 23 Jennings Futch told employees at a group meeting that "Igloo will find out who signs a union card," that "[i]f the employees have a problem, they should come to management and get it solved," and that thereby Respondent has violated Section 8(a)(l) of the Act. The record is clear that Futch, during the course of an antiunion speech to large groups of employees, advised them that they did not need outside salesmen to speak for them but rather that employees could discuss their problems individually with various supervisors or manag- ers, ultimately including Futch himself, because of Re- spondent's "open door" policy. There is no credible evi- dence that employees had ever been so advised previous- ly, and there is no mention of such a policy in the em- ployee manual. Moreover, Respondent's managers and supervisors who were questioned about such an open door policy were able to vaguely recall only a few iso- lated instances of employees bringing problems to other than their immediate supervisors. Aguilar and Kuebler credibly testified that they had never been solicited to present grievances or advised of an open door policy, and no employees testified to the contrary. Such an appeal by an employer who has not previously had a practice of soliciting employee complaints, but an- nounces and institutes a policy of this nature in response to an organizational campaign, is violative of the Act. Ring Metals Company, 198 NLRB 1020 (1972); Reliance 1o I credit hoth Kubchler and Aguilar regarding their accounts of the discharge cnvcralilons 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Electric Company, Madison Plant Mechanical Drives Divi- sion, 191 NLRB 44 (1971); Belcher Towing Company, 238 NLRB 446 (1978). The record evidence does not support Respondent's defense that the announcement of the policy by Futch was merely a reiteration of a well-estab- lished policy instituted prior to the advent of the Union. I therefore find Futch's statement to be violative of Sec- tion 8(a)(1) of the Act, as alleged. Under the circumstances, particularly where numerous employees openly engaged in union activity, I find that the record evidence is insufficient to show that Futch's remarks concerning the signing of union cards conveyed the possibility of adverse consequences by Respondent. Moreover, contrary to the complaint allegation, it does not appear that Respondent suggested that it would become aware of the names of card signers, but rather that the National Labor Relations Board would be fur- nished the cards. I shall therefore dismiss this allegation of the complaint. Cf. Fisher Cheese Company, 238 NLRB 626 (1978). Finally, it is clear that Jody Harris is not a supervisor within the meaning of Section 2(11) of the Act, as the record evidence, detailed above, establishes that Harris lacks any authority of a supervisory nature. I shall there- fore dismiss the complaint allegation pertaining to threats or interrogation by Harris. CONC.USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(3) and (1) of the Act by unlawfully discharging employees Cynthia Kuebler and Jesusa Aguilar as a result of their activity on behalf of the Union. 4. Respondent has violated Section 8(a)(1) of the Act by soliciting the presentation of grievances and announc- ing a related open door policy in order to discourage employees from designating the Union as their collec- tive-bargaining representative. 5. Except as found above, Respondent has not engaged in other unfair labor practices as alleged. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it be required to cease and desist therefrom and from any like or related conduct, and to post an appropriate notice, attached hereto as Appendix. Further, as it appears that a majority of Respondent's employees speak and understand only Spanish, it shall be required that the recommended notice to employees, infra, be printed in both Spanish and English. Northridge Knitting Mills, Inc., 225 NLRB 1054 (1976). Moreover, it is recommended that Respondent make whole employees Cynthia Kuebler and Jesusa Aguilar for any loss of pay as a result of the discrimination against them, and reinstate them to their former positions of employment without prejudice to their seniority or other rights and privileges. Said backpay is to be com- puted in the manner prescribed in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 139 NLRB 716 (1962). Based upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 The Respondent, Igloo Corporation, Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees as a result of their union activity. (b) Soliciting the presentation of grievances in order to discourage employees from designating the Union as their collective-bargaining representative. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them under Section 7 of the National Labor Rela- tions Act, as amended. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer reinstatement to employees Cynthia Kuebler and Jesusa Aguilar and make them whole in the manner set forth in the section entitled "The Remedy." (b) Post at its Houston, Texas, facilities copies of the attached notice marked "Appendix."' 8 Copies of said notice, in both Spanish and English, on forms provided by the Regional Director for Region 23, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. : In the evenit no exceptions arc filed as provided by Sec 102.4 of the Rules and Regulations of the National Labor Relations Board, the finldings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes '8 In the event that this Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted P'ur suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 648