American Electro Finishing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1974

212 N.L.R.B. 654 (N.L.R.B. 1974)

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Electro Finishing Company , Inc. and Metal
Polishers, Buffers , Platers & Helpers International
Union Local No. 128. Cases 20-CA-8424, 20-
CA-8493, and 20-RC-11369
July 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 26, 1974, Administrative Law Judge
E. Don Wilson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The facts, as more fully set forth in the Administra-
tive Law Judge's Decision, are briefly as follows:
Respondent is a California corporation engaged in
the business of metal plating and anodizing. In late
March or early April 1973,2 as a result of discussions
concerning working conditions in Respondent's
plant, the employees decided to contact the Metal
Polishers, Buffers, Platers & Helpers International
Union Local No. 128, hereinafter call the Union.
Thereafter, on April 16, employee Thomas Adler
spoke to the Union's business agent, Ray Figueroa,
about organizing Respondent's employees and Fi-
gueroa agreed to meet with the employees.
On or about April 19, employee Jim Downing told
Respondent's president, Floyd Robbins, that he had
heard some talk about a union. Robbins replied that
he could not afford union wages and would close
down if the shop went union. Thereafter, on April 23,
6 of the 10 production and maintenance employees
were given substantial, unscheduled, and unan-
nounced wage increases.
On April 24, 5 of Respondent's 10 production and
maintenance employees met with Figueroa and were
given authorization cards to sign and to distribute
among the remaining employees at the plant. By April
29, 9 of the 10 employees in the appropriate unit had
signed,the cards and returned them to Figueroa.
On April 30, Figueroa, accompanied by the
Union's secretary-treasurer; went to Respondent's
plant and spoke to Floyd Robbins. According to the
credited testimony of Figueroa, he told Robbins that
the Union represented a majority of the production
and maintenance employees and that' he wanted to
negotiate a collective-bargaining agreement covering
the employees in the unit. Robbins said he would
"never go union" and that "if he had to join the union
he would close down his plant." When Robbins asked
to see the authorization cards, Figueroa exhibited the
stack of cards but refused to show him any individual
cards. Figueroa did not offer to have an impartial
third party examine the cards.
Later that day Figueroa told Adler that the employ-
ees should picket rather than report to work the next
day in order to obtain recognition for the Union and
Adler so advised the other employees.
Accordingly, on May 1, 9 of the 10 unit employees
went on strike. The strike lasted until approximately
May 10, when most of the employees returned to
work. Along with several other employees, Adler first
made an unconditional offer to return to work on
May 9. As detailed in the Administrative Law Judge's
Decision, Adler, despite his repeated unconditional
offers to return, was not reinstated until October 2.
On July 27, a representation election was held; of
the nine voters who participated, two voted for, and
five against, the Union. There were two challenged
ballots which were insufficient in number to affect the
election results. The Union filed timely objections to
conduct affecting the results of the election, which are
discussed infra.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A 3, 1951) We have carefully examined the
record and find no basis for reversing his findings.
Respondent has further excepted to the Administrative Law Judge's Deci-
sion on the grounds, inter alia, that the Administrative Law Judge was biased
against Respondent , as shown by his questions of witnesses in the course of
the hearing. We find nothing in the record that suggests that the Administra-
tive Law Judge was doing anything other than attempting to inquire fully into
the facts . Grove Manufacturing Company, 196 NLRB 280 (1972). See Sec
102.35, Board Rules and Regulations , and 5 U S C § 556 (d) Accordingly,
we find Respondent's assertion of bias without merit.
2 All dates herein are in 1973, unless otherwise indicated
1. Alleged violations of Section 8(a)(1)
The Administrative Law Judge found and, for rea-
sons stated by him, we agree that Respondent com-
mitted extensive violations of Section 8(a)(1) by the
conduct of its president, Floyd Robbins, and its vice
president, Lucille Robbins. This conduct included,
inter alia repeated threats to close the plant if the
employees selected the Union to represent them,
threats to discharge striking employees, and the grant-
ing of unannounced and unscheduled pay raises to a
212 NLRB No. 95
AMERICAN ELECTRO FINISHING COMPANY 655
substantial number of unit employees, all in an effort
to dissuade them from joining or assisting the Union.
2. The alleged violation of Section 8(a)(3)
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(3) of the Act by refusing to
reinstate employee Thomas Adler upon his uncondi-
tional offer to abandon the strike and return to work
on May 9. He based this conclusions on his finding
that Adler was an unfair labor practice striker, and,
as such, was entitled to immediate reinstatement upon
his unconditional offer to return to work.
While we agree that Respondent violated Section
8(a)(3) of the Act by refusing to reinstate Adler until
October 2, we do so on other grounds and, hence, find
it unnecessary in the circumstances to determine
whether Adler was an unfair labor practice striker.
The record establishes, and we find, that Adler was
denied prompt reinstatement at the end of the strike
solely because of his leadership role in union activi-
ties. Thus, the record shows that, on at least one occa-
sion during the strike, Robbins told striking
employees that he would not allow Adler to return to
work because he was in the forefront of union activi-
ties. On two other occasions, Robbins told employees
he did not want some of the employees-notably the
union activists of which Adler was one-back be-
cause they were "troublemakers." On the basis of
these facts, we find that Respondent refused to rein-
state Adler until October 2 in reprisal for his activities
on behalf of the Union. By such conduct Respondent
violated Section 8(a)(3) of the Act. Accordingly, we
shall adopt the Administrative Law Judge's recom-
mendation that Respondent be ordered to make
Adler whole for any loss of pay and benefits he may
have suffered by reason of Respondent's unlawful
discrimination against him.
3. The alleged violation of Section 8(a)(5)
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(5) of the Act by refusing to
recognize and bargain with the Union at all times
since April 30, when the Union demanded such bar-
gaining and asserted its majority status on the basis of
authorization cards signed by a majority of
Respondent's employees in an appropriate unit. He
apparently based his conclusion on the fact that
Respondent's refusal was not grounded on a good-
faith doubt of majority. For he found that, even if
Respondent entertained a good-faith doubt of the
Union's majority status on April 30, it certainly could
not claim such doubt on May 1, when 9 of
Respondent's 10 employees went on strike to obtain
recognition of the Union.
The defect in the Administrative Law Judge's con-
clusion as to the 8(a)(5) violation is that it rests on an
inquiry into Respondent's subjective reasons for re-
fusing to extend recognition on the basis of authoriza-
tion cards. An employer's good-faith doubt of a
union's claim to majority status is "largely irrelevant"
to the determination of whether an employer has vio-
lated Section 8(a)(5) by refusing to extend recognition
on the basis of a showing of card majority.' Further,
since the crucial issue in cases such as this is whether
a bargaining order should be granted as a remedy of
an employer's unfair labor practices, we have con-
cluded, for the reasons stated in our decision in Steel-
Fab, Inc., 212 NLRB No. 25 (1974), that it is unneces-
sary to determine whether Section 8(a)(5) has been
violated. Accordingly, we shall dismiss the 8(a)(5)
allegation of the complaint.
Insofar as the issue of the appropriate remedy for
Respondent's violations of Section 8(a)(1) and (3) is
concerned, we agree with the Administrative Law
Judge that a bargaining order is necessary here to
remedy these unfair labor practices. It is utterly im-
probable that a fair election could have been held, or
that such an election can be held in the foreseeable
future where, as here, Respondent has threatened the
entire employee complement with plant closure if the
employees select the Union as their bargaining repre-
sentative, has threatened to discharge the striking em-
ployees and not to rehire the leaders of the union
movement, has promised and granted wage increases
to employees to induce them to abandon the Union,
and has refused to reinstate the leading union advo-
cate because of his union activities. This course of
conduct would, over time, convey to the employees
the belief that further support of the Union would be
a futility. In such circumstances, the authorization
cards executed on behalf of the Union are the more
reliable indicator of the employees' desire to represen-
tation.4
4. The objections to the election of July 27
The Union's objections to the election held in Case
20-RC-11369 alleged that (1) Doug Robbins, son of
Floyd Robbins and acting manager of Respondent,
told employees the week before the election that Re-
spondent would shut down if employees voted for the
Union, and (2) employee Tony Anderson was hired
and paid on a commission basis as an inducement to
3 N L R B v. Gissel Packing Co, Inc, 395 U.S 575, 594 (1969).
4 The parties stipulated at the hearing as to the authenticity of the nine
signed authorization cards . It is not contended, and no evidence was intro-
duced to show, that these cards did not represent the free and uncoerced
expression of employees ' desires.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vote against the Union.
The Regional Director for Region 20, pursuant to
Section 102.69 of the Board's Rules and Regulations,
Series 8, as amended, caused an investigation of the
objections to be made and issued his Report on Ob-
jections, Order Consolidating Cases, and Notice of
Hearing on September 12, 1973. In his report, the
Regional Director recommended that Objection I be
overruled. He further found that Objection 2, along
with the allegations of violations of Section 8(a)(1)
and (3) of the Act found supra, raised material and
substantial issues of fact with respect to the election
held in Case 20-RC-l 1369 which should be resolved
by a hearing. By order dated October 2, 1973, the
Board adopted the Regional Director's recommenda-
tions and ordered that the issues raised with respect
to Objection 2 and "Other Acts and Conduct" be
processed pursuant to his Order Consolidating Cases
and Notice of Hearing. At the hearing, no evidence
was adduced with respect to Objection 2 and the Ad-
ministrative Law Judge inadvertently failed to discuss
the objections in his Decision.
Although not specifically alleged in the objections,
we find, in agreement with the Administrative Law
Judge, that Respondent's violations of Section 8(a)(1)
and (3), which occurred after the filing of the repre-
sentation petition on May 3 and before the election
date of July 27, require that the election be set aside.5
We further find that a fair and free election cannot be
conducted in the forseeable future because Respon-
dent by its conduct has rendered impossible the labo-
ratory conditions which must surround a
Board-conducted election. We shall, therefore, set
aside the election and, as discussed above, issue a
bargaining order to remedy the unfair labor practices
committed by Respondent in violation of Section
8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
American Electro Finishing Company, Inc., Oakland,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discriminating against of any of its employees
because of their support for or assistance to a union
or because they engage in any concerted activities
protected by the Act.
(b) In any other manner interfering with, restrain-
ing, or coercing any employee in his right to join,
assist, or support the Union or any other labor organi-
zation, or engage in any activity protected by the Act,
or to refrain from doing so.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Make Adler whole for any loss of earnings he
may have suffered by reason of Respondent's unlaw-
ful discrimination against him in the manner set forth
in the "Remedy" section of the Administrative Law
Judge's Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and- all
other records necessary to analyze the amount of
backpay due Adler under the terms of this Order.
(c) Upon request, bargain collectively in good faith
respecting wages, hours, and working conditions of its
employees, with the Union as the collective-bargain-
ing representative of all its employees in the appropri-
ate bargaining unit.
(d) Post at its Oakland, California, facility copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
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 material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS HEREBY FURTHER ORDERED that the election held
on July 27, 1973, in Case 20-RC-11369 be, and it
hereby is, set aside.
MEMBER FANNING, dissenting:
For the reasons set forth in my dissent in Steel-Fab,
supra, I find no defects in the reasoning of the Admin-
istrative Law Judge and would affirm his findings in
their entirety.
6 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board " shall read "Posted Pursuant to a Judgment
Domino of California, inc, 205 NLRB 1083 (1973), Pure Chem Corpora- of the United States Court of Appeals Enforcing an Order of the National
Lion, 192 NLRB 681 (1971) Labor Relations Board "
AMERICAN ELECTRO FINISHING COMPANY 657
APPENDIX DECISION
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT in any way or manner or form
discriminate against any of our employees be-
cause of their support for or assistance to Metal
Polishers, Buffers, Platers & Helpers Internation-
al Union Local No. 128, or any other labor orga-
nization, or because they engage in any union
activities or any other activities protected by the
National Labor Relations Act.
WE WILL NOT, in any other manner, interfere
with, restrain, or coerce any of our employees in
their rights to join, assist, or support the above-
named Union, or any other labor organization,
or to engage in any other activity protected by
the Act, or to refrain from so doing.
WE WILL make Tom Adler whole for any loss
of earnings he may have suffered by reason of
our unlawful discrimination against him in that
we unlawfully refused to reinstate him pursuant
to his unconditional offer to abandon the strike
and return to work for us.
WE WILL bargain collectively, upon request, in
good faith, with respect to the wages, hours, and
working conditions of our production and main-
tenance employees with the above-named
Union, and, if an agreement is reached, we will,
on request, reduce it to writing and sign it.
AMERICAN ELECTRO FIN-
ISHING COMPANY, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge : Based on
objections filed August 3, 1973, and charges filed July 12
and August 8, 1973, by Metal Polishers, Buffers, Platers &
Helpers International Union Local No. 128, herein the
Union, the Regional Director for Region 20 of the National
Labor Relations Board, herein the Board, issued a report on
objections, and on behalf of the General Counsel of the
Board, an order consolidating cases and a notice of hearing
on September 12, 1973. A consolidated complaint alleged
American Electro Finishing Company, Inc., herein Respon-
dent, committed various violations of the National Labor
Relations Act, as amended, herein the Act. Respondent
timely denied it had violated the Act in any manner.
Pursuant to due notice, a hearing in this matter was held
before me in San Francisco, California, on December 3 and
4, 1973. The parties fully participated. General Counsel and
Respondent filed briefs on January 11, 1974. They have
been fully considered.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I RESPONDENT 'S BUSINESS
Respondent is a California corporation engaged in the
business of metal plating and anodizing in Oakland, Cali-
fornia. In the past year, it provided services valued in excess
of $50,00 to companies in California, each of which met a
direct standard of the Board for the assertion of jurisdiction.
At all material times , Respondent has been an employer
engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION
At all material times, the Union has been a labor organi-
zation within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES I
A. The Issues 2
There is no issue as to the appropriate unit which the
parties agree includes all Respondent's production and
i Thomas C Adler, Ray Figueroa, James Philip Downing, and Sheldon J
Schoenfeld testified for the General Counsel I found their testimony to be
forthright and honest and their testimonies as a whole were mutually consis-
tent. The testimony of Schoenfeld was not as clear , concise, and delineative
as ought have been most desirable , but having closely studied it, particularly
in light of the testimonies of other witnesses for General Counsel. I credit it,
and note that I am aware one witness may not be as persuasive as another,
considered alone , but is much more persuasive where his testimony gains
support from that of others and is not in any way shown to be false Their
respective demeanors impressed me favorably The testimony of
Respondent's sole witness , Floyd Louie Robbins, shall later be considered in
some detail . Noteworthy is that with no explanation Mrs Robbins did not
testify . Thus, statements attributed to her are not contradicted Unfortunate-
ly, for Respondent , as my findings based on the credited testimony reveal,
Respondent had no credible defense whatsoever . I reject Mr Robbin's testi-
mony as incredible especially in light of his demeanor-
2 The correct name of Respondent's president is Floyd Louie Robbins His
wife's first name is Lucille.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance employees at its Oakland plant There are,
among others, issues as to whether-
1. The Union at all times since the latter part of April
1973 3 represented a majority of Respondent's employees in
an appropriate unit
2. The Union has requested Respondent to bargain with
it as such employees' representative since about April 30
and has Respondent unlawfully refused so to do
3 The employees of Respondent in the above unit did
engage in an unfair labor practice strike from about May I
until about May 9; since about April 16, Respondent,
through its agents, has violated its employees' rights as guar-
anteed by Section 7 of the Act, by a variety of acts of
unlawful interference, restraint, and coercion.
4. On various dates between May 5 and August 2, Re-
spondent did unlawfully bargain directly with employees
about hours of work, wages, and other terms and conditions
of employment.
5. The aforementioned strike was caused and prolonged
by Respondent's unfair labor practices.
6. On or about May 9, Respondent's employees, and
particularly Tom Adler, did unconditionally ask Respon-
dent to reinstate them and was such reinstatement unlawful-
ly refused.
7. Assuming Respondent engaged in some or all of the
activities mentioned above, Respondent, as an appropriate
remedy, should be ordered to bargain with the Union as the
representative of the employees in the above-mentioned ap-
propriate unit.
8. The Union's objections to the election are valid and
should they be sustained.
B. The Facts
Late in March or early in April, Thomas Adler and most
of the employees in the appropriate unit ° discussed working
conditions as employees of Respondent, the conversations
occurring in Respondent's plant. Adler volunteered to get
in touch with the Union. On April 16, Adler spoke on the
phone to Ray Figueroa, a business agent of the Union.
Adler stated a majority of the employees wanted the Union
to represent them. Figueroa agreed to meet with the em-
ployees
About April 19 or 20 about 3 p.m., employee Jim Down-
ing and Floyd Robbins spoke to each other at the
Respondent's receiving desk. Downing said he had heard
some of the "guys" were trying to get a union together.
Robbins replied he would close down if the shop went
union-he couldn't afford union wages and his weekly pay-
roll for tax purposes could not exceed $2,000 Robbins add-
ed that employee Dan Hoover had told him that employee
Tom Adler and Malcolm Merkent were trying to get the
Union in.5
In evidence as General Counsel's Exhibit 10 is a listing of
various wages. On April 23, 6 employees out of 10 received
substantial raises. Of these, one, Merkent, had received a
raise but 2 months earlier Thomas received a raise on that
date having been hired about 3 months earlier. Adler re-
ceived his first raise after being hired some 6 months earlier
Ferling received a $.50 raise about I month after his hire.
Schoenfeld received a $.75 an hour raise about I month
after he had been cut $ 25 per hour 6 Ballard received a $.50
per hour raise I month after he had gotten another 50-cents-
per-hour raise. There were 10 employees in the unit and 6
of them got previously unpromised, unannounced, and
inexplicable raises. This was in the very midst of union
activities
On the next day, April 24, 5 employees met with Figueroa
at a bar 7 The latter told them he would have to get a
majority of the employees to sign cards and then he would
seek recognition by Respondent and if such were unsuccess-
ful he would probably want the employees to picket to
obtain recognition Also mentioned was the possibility of
having a Board election. Each of the 5 employees signed a
card and Merkent was given extra cards to be signed by
absent employees. Nine out of ten employees in the appro-
priate unit signed authorization cards for the Union by
April 29
On April 30, Figueroa and Bob Morales, the Union's
secretary-treasurer, spoke to Robbins at the latter's desk.
They identified themselves as representatives of a majority
of Robbins' employees and said they wanted to negotiate a
collective-bargaining contract. Robbins said he would never
go union and as he had said before and would say again,
he would close the doors before his plant would go union.
Robbins asked to see the authorization cards but Figeroa
showed to him only the stack of and not the individually
signed cards, because of Robbins' obvious antiunion atti-
tude
Later that day, Fugueroa told Adler to tell the employees
to picket rather than report to work the next day. Adler so
advised the employees.
Employees Dale Thomas and Jim Downing arrived at the
plant at 7.30 in the morning of May 1. Figueroa showed up
and told them they should picket rather than go to work.
Downing stayed to advise other employees to that effect
while Thomas and Figueroa went to have some coffee Not
long after 8 a.m. as the employees were gathered across the
street from the plant, not working, Robbins appeared and
shouted across to them, "All right, who wants to get fired?"
There was no reply. After starting to enter the plant, Rob-
bins addressed himself to Downing and told him he should
"think twice about it." 8
I credit the undenied testimony of Schoenfeld that on
May I Lucille Robbins, Respondent's vice president, stood
by the plant door and asked pickets why they had to bother
trying to bring the Union in, adding that, if they wanted to
work in a union shop, they should just go to one
A few days later while Downing was in his car across the
street from the plant, Robbins came to him and asked him
to come back to work saying Downing had been in Robbins'
employ too long to throw it away. He added that he didn't
want the other employees back because they were "trouble-
7
Hereinafter, all dates, unless otherwise stated, refer to 1973 6 In no way do I credit Robbins' reason for the cut
About 10 employees 7 The employees were Adler, Rios, Brindley, Downing, and Merkent
5 This was, of course, a "small shop „ 8 None of Robbins' denials is credited by me
AMERICAN ELECTRO FINISHING COMPANY 659
makers." He again said he'd close the plant if it went union
and if employees wanted a union they should find other jobs
because he would not permit them back in the plant. Down-
ing replied that he'd think about it .9
Also, around May 4, while Ballard and Downing were
picketing near the plant, Lucille Robbins told them she did
not want them back and they could work for a union shop
if they wished, but Respondent would shut down the shop
before it would "go union." On the same day, but later,
Robbins spoke to Downing and Ballard , in the latter's car,
across from the plant . Robbins told them he wanted them
to return to work but not the other employees particularly
Adler and Merkent,10 since they were in the forefront of
union activities. Robbins indicated to Ballard and Downing
that they would receive raises should they return to work.
They said they would think over Robbins' offer.
Not long later about May 8 in the late afternoon, Robbins
again offered raises to Ballard and Downing , saying he
would pay them for wages they had lost that week should
they return to work on the next morning. Downing asked
about the other "strikers" and Robbins replied, in effect,
that he did not want those "troublemakers" back and he
would not go through it again. He repeated he'd close down
the plant before he would have a union.
On May 9 about 1 p.m., Mrs. Robbins came out of the
office and told Downing that Mr. Robbins wanted to speak
to him on the phone. Downing went to the phone in the
plant. Robbins told him that, if he did not then return to
work , Robbins had a permanent replacement for Downing.
That was enough for Downing . He returned to work. After
Downing was through work on May 9, he crossed the street
to speak to Adler, Bob Brinkley , and Ballard and told them
he thought they should apply for their jobs. They and
Downing returned to the plant at that time . Robbins told
Brinkley somebody else was already doing his job and
they'd have to see how he worked out and if he didn't,
Brinkley would get a call. Adler was told Robbins would
call him 'the following day if Adler's foreman, Starkey,
wanted him back. Ballard was told he could return to work.
On May 10, a new employee was hired in the anodizing
department.' 1
Adler called Robbins on May I 1 as Robbins had instruct-
ed. Robbins told him to call again early the following week.
On May 14, Adler phoned and spoke to Lucille Robbins
asking for his job. Mrs. Robbins told him new people were
doing fine and they did not need him. Adler replied he'd
work for Respondent, at any time, and asked her to consider
him for any opening. He told her Respondent could reach
him at the phone number Respondent had for him.
On July 24, Adler received General Counsel's Exhibit 5
from Respondent allegedly "confirming" earlier offers to
reinstate him.12 It continued saying Respondent's doors had
4 Downing was an employee of Respondent when he testified
10 Adler had been most active in starting the Union and Merkent had been
most active in obtaining signatures to union cards
11 Adler had been a "racker" in the anodizing department . As I understand
Robbins' testimony , James Flint was hired to do racking in the anodizing
department About the same time, Robbins hired Valenquela and Markham
to take Adler 's place Robbins, however, testified Valenquela was to report
on May 10, "as a chrome helper"
2 There had been none.
always been open for him to return as jobs became available
but Respondent could not offer him a job without his cur-
rent address and a statement from him that he wanted a job
when one became available . He was asked to advise Re-
spondent if he had another job and did not seek reemploy-
ment. His prompt response was solicited.
Almost immediately, Adler replied by certified mail pro-
viding all information requested . 13 His letter was returned,
marked "Refused."
A N.L.R.B. election was held on July 27. The Union
received two votes. Respondent received five and two votes
were challenged.14
After the election, Adler spoke to Douglas Robbins,
Floyd's son, at the plant about 4 p.m. Adler was told his
earlier letter had been "refused" because it had been ad-
dressed to Mr. Robbins rather than the Respondent. Adler
sent an identical letter to Respondent by "certified mail," but
this also, within a few days, was returned to Adler, marked
"Refused."
It was not until late September that Adler received from
Respondent a letter stating there was a position open in the
anodizing department at $3.75 per hour. He was directed to
reply by "certified mail" should he be interested. Adler
followed instructions and finally Respondent permitted him
to return to his job on October 2.
As noted above, I have credited the testimony of General
Counsel's witnesses and note that in a number of respects
it was supported by documentary evidence, in some respects
undenied, and in almost every aspect the testimony of each
witness found corroborative support in the testimony of at
least another witness . Each of these witnesses impressed me
as determined to state the facts truthfully as he remembered
them. The testimony of Robbins was vague, uncertain and
in many instances self-contradictory. He did not appear to
me as a witness who had a genuine concern for the truth or
falsity of his testimony. With respect to wage increases, he
testified that those for the six on April 23 were the conse-
quence of an extraordinary profit. He later testified Ballard
and Downing got their increases because they had threat-
ened to "quit" if they did not gat the raises. Ballard had
received a 50-cents-per-hour raise on April 13 , and I am
supposed to, but do not, believe that he threatened to quit
his job unless he got a similar raise only 10 days later.
Robbins testified Schoenfeld's record was so bad that his
wages had been cut and his record was so bad "with absenc-
es and so forth" that he would not have pressed for a raise.
Yet Robbins gave him a 75-cents-per-hour raise on April
23.15 He ended up by swearing he gave a very' poor employ-
ee 16 a 75 -cents-an-hour raise on April 23, because he, Rob-
bins, "felt awful good that day." He then said the raises of
April 23 were given to "all new employees." He then , unsuc-
cessfully, tried to duck out of that answer when confronted
with facts as prepared by him. I no doubt have unduly
expanded on this bit of his testimony . But I find that aside
13 G C Exh. 6.
14 The Union had nine freely signed authorization cards by April 30
15 To read his testimony at pp. 201-203 is to react most adversely to his
testimony. I, of course , observed him while he was testifying and was most
adversely affected by his demeanor.
16 Schoenfeld.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from his incredible denials of credited testimony that which
I havejust discussed at some length is typical of his testimo-
ny as a whole.
Concluding Findings With Respect to Allegations of the
Complaint
I need not again go through each fact. It is enough that
I conclude that, beginning April 20 when Robbins spoke to
Downing, Respondent interfered with, coerced, and re-
strained its employees in their union activities. This was a
"small shop" and I have not the slightest doubt that this
virulently antiunion employer knew by at least April 30 that
the Union represented a majority of its employees when it
was refusing to recognize the Union as majority representa-
tive. It certainly had such knowledge on May I when 9 of
its 10 employees were to Robbins' knowledge on strike to
obtain recognition of the Union.' Robbins, on this date
emphasizing his utter disregard of his employees' statutory
rights, threatened them with discharge for striking. Strikers
were repeatedly told to seek work in a union shop if they
wanted a union. Before and during the strike employees
were told by Respondent it would shut down rather than
have a union in the plant. During the strike, particular strik-
ers were named as not being eligible for reemployment be-
cause they were "troublemakers," or had engaged in one or
another form of protected union activity. Respondent en-
gaged in a multitude of illegal activities designed only to
impress its employees with the futility of seeking union rep-
resentation.
Shortly after union activity began, Respondent granted
substantial wage increases to a majority of its employees.
Robbins' false testimony as to why these raises were given
emphasizes that they were intended as the well-known car-
rot. I do not forget that on May 8 Downing and Ballard
were offered backpay and wage increases to abandon what
I find was an unfair labor practice strike and return to work
then and there.
Since April 30, Respondent has unlawfully refused to
recognize and bargain with the Union. In addition to its
numerous violations of Section 8(a)(1) of the Act, as found
above, such unlawful refusal to recognize and bargain vio-
lated Section 8(a)(5) and (I) of the Act.
Respondent violated Section 8(a)(1) of the Act by promis-
ing employees wage increases in order to induce them to
cease protected union activities and by threatening them
with discharge for the same reason.
While offering reinstatement to some unfair labor prac-
tice strikers in order to induce them to abandon the strike,
they were told other strikers would not be reinstated be-
cause of their protected union activities. Similar other
threats were repeatedly made by Robbins in violation of
Section 8(a)(1) of the Act.
I have found above that Respondent granted wage in-
creases on April 23. The record makes clear that such in-
creases were granted as an inducement to employees to
desist from protected union activities. Thereafter, other
wage increases were granted for similar reasons. Robbins
'r Which Robbins continued to refuse
made excellent use of the carrot, the stick, and the club.
Respondent, beginning after May I and continuing at
least through August 2, ignored the employees' collective-
bargaining representative and dealt directly with its em-
ployees concerning wages, hours, and other conditions of
employment.
Respondent's explanations for its refusals to accept com-
munications from Adler after the strike and before his rein-
statement are spurious and were designed only to conceal
the truth. Respondent, in this instance, as well as others, has
unsuccessfully attempted to play games with the Board.
Adler was unlawfully, at least from May 9, refused rein-
statement, because he was an unfair labor practice striker.18
He, much later,19 was reinstated.
The totality of Respondent's unfair labor practices prior
to the election makes it clear that no fair and unbiased and
free election could have been had and the election manifest-
ly should be set aside as permeated not with desirable free-
dom but rather with Respondent's invidious illegal activities
such as to negate any freedom of choice by the employees
in the election.
The widespread, overwhelming, and destructive nature of
Respondent's unfair labor practices as hereinabove found
make mainfest that there is not and cannot in the foreseea-
ble future be a climate where Respondent's employees can,
without dire fear of Respondent, vote their free and honest
desires as to union representation. There can be no effective
remedy here which does not require Respondent to bargain
in good faith with the Union which 9 out of 10 employees
had freely selected by authorization cards until Respondent
entered upon its most virulent and successfully destructive
antiunion campaign.
It has been proven by the credible evidence that Respon-
dent refused to reemploy Adler because he began "the union
thing." Without question, unfair labor practice striker Adler
unconditionally offered to return to work at least on or
about May 9. His offer was refused, I find, because Respon-
dent considered him the leader in the so despised union
activity. Not only as of May 9 but continuing until his
eventual reinstatement,20 Adler proclaimed himself as ready
to work for Respondent with no conditions but he was
unlawfully refused reemployment.21 Mrs. Robbins' letter of
about July 24 is found by me not only to have been self-
serving but also to have been a mere "sham" The "games"
played with Adler concerning his letters to Respondent are
too obvious to require delineation or explication. Robbins'
inconsistent , vague, and contrived testimony as to replace-
ment(s) for Adler is rejected for being what it was. Robbins
simply did not want Adler back in his employ because Adler
started the union "thing" and Robbins simply would not
reinstate Adler because he was a foremost union advocate.
Respondent's violation of Section 8(a)(3) and (l) of the Act
as to Adler is most clear to me.
The Board election herein should be set aside because
18 1 do not consider Bnndly because General Counsel successfully moved
to amend the complaint so as to eliminate him from consideration
19 October 5
20 October 2
21 This would be true even iihe had been an economic striker There is no
probative evidence he was permanently replaced as of May 9
AMERICAN ELECTRO FINISHING COMPANY 661
Respondent so contaminated the atmosphere that the em-
ployees could not freely express their wishes in the election.
I have already found that Respondent so polluted the free
atmosphere which must surround a Board election that such
contamination cannot be eliminated by traditional reme-
dies. The Union had more than a majority of employees
freely signed up by April 30. A fair and free election cannot
be held in the foreseeable future. The wishes of the employ-
ees as expressed in their signed authorization cards are the
only means left for determining their honest and free desires
as to union representation. Respondent must be ordered to
bargain with the Union if there is to be any effective reme-
dy, herein, since the possibility of a "fair election" on this
record significantly is less than "slight." 22 Respondent has
destroyed completely the reliability ordinarily to be at-
tached to a Board election. It has made it most unlikely its
employees can express their choice as to union representa-
tion with freedom from fear that they will incur
Respondent's dire wrath and they will be in fear of
Respondent's next antiunion move.
All production and maintenance employees of Respon-
dent at its Oakland, California, facility, excluding all office
clerical employees, guards and supervisors as defined in the
Act constitute an appropriate unit for collective bargaining.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and
desist therefrom and that it take certain affirmative action
22 N. B. This is a very small unit.
designed to effectuate the policies of the Act.
Having found that at least as of May 9 until on or about
October 2, Respondent refused to reinstate Adler pursuant
to his unconditional request for reinstatement because of his
union and other protected concerted activities, I shall rec-
ommend that Respondent make Adler whole for any loss of
pay he may have suffered by reason of Respondent' s illegal
discrimination against him in violation of Section 8(a)(3)
and (1) of the Act, in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest on
backpay computed in the manner described in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
I shall further recommend an order that Respondent bar-
gain with the Union, upon request, with respect to the hours
of employment, wages, and other working conditions of all
Respondent's employees, included in the above-described
appropriate bargaining unit.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By refusing to reinstate Adler from on or about May
9 until on or about October 2, because of his union and
other protected concerted activities, Respondent has violat-
ed Section 8(a)(3) and (1) of the Act.
4. By threatening to close the plant rather than deal with
the Union as bargaining representative, by granting wage
increases for the purpose of discouraging union activities,
by threatening unfair labor practice strikers with discharge,
and by many similar and other numerous activities, Re-
spondent has interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act.
5. By refusing since April 30 to bargain with the Union
pursuant to its request, Respondent has violated Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
[Recommended Order omitted from publication.]