Anja Engineering Corporation

National Labor Relations Board - Board Decisions

Jul 2, 1981

256 N.L.R.B. 1083 (N.L.R.B. 1981)

ANJA IEN(ilNEERIN( Cf()RP()RA l()N 1083
Anja Engineering Corporation and Southern Califor-
nia Printing Specialties and Paper Products
Union District Council No. 2, affiliated with In-
ternational Printing and Graphic Communica-
tions Union, AFL-CIO. Cases 31-CA-9002,
31-CA-9101, 31-CA-9374, 31-CA-9375, and
31-RC-4513
July 2, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
On January 13, 1981, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions accompanied by a supporting brief,
and Respondent filed cross-exceptions with a sup-
porting and answering brief.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions, cross-exceptions, and briefs and
has decided to affirm the rulings, findings, and con-
clusions' of the Administrative Law Judge only to
the extent consistent herewith. 2
I. The Administrative Law Judge found that
Betty Hoffman was discharged for just cause on
August 31, 1979, and therefore concluded that Re-
spondent did not terminate her in violation of the
Act. The General Counsel has excepted to this
conclusion, claiming that Respondent fired Hoff-
i We adopt the conclusion of the Administrative Law Judge that no
unfair labor practice occurred at the Old California Restaurant in mid-
August 1979 We note, however, that the Administrative I .law Judge
twice emphasized the General Counsel's failure to call employee Smelser
as a witness. Since the record indicates that Smelser has a serious hearing
impairment, we attach no adverse significance to her absence from the
proeedings
We also adopt the conclusion of the Adminislrative aw Judge that
Respondent's promise of wage increases did not constitute a violation of
the Act. However. the Administratie Law Judge incorrectly found that
the wage system had been implemented prior to the ads ent of the Union
The record indicates, to the contrary, that the Union began its organiza-
tional efforts i February 1979, and that Responldent implemented the
new wage system in March 1979. The Adminislrati e I ar, Judge's factu-
al error does not affect his conclusion. however, as the evidence estah-
lishes, as the Administrative Lawa Judge obserxed, that the wage system
"had been established and embodied in detailed wage planning sheets
showing the amount and timing of wage increases for each employee"
before the Union appeared. Thus, in implementing its new wage system
after the Union's advent, Respondent was merely putting into effect a de-
cision made before the Union appeared, and such an action is not iola-
tive of the Act. See. e.g. California Pellet RMill Compan. a ub.ridiary of
Ingersoll-Rand Companv, 219 NLRB 435 (1975). Nor did Respondent io-
late the Act by explaining the existence of lawfully granted benefits to
employees who were unaware of them
2 Respondent has excepted to the issuance of a broad cease-and-desist
order in this case. Particularly in light of our disposition of the alleged
8(aX3) violation relating to the discharge of Betty Hoffman. we are of
the opinion that a broad order is warranted. Respondent's unfair labor
practices include, inter alia, discriminatory layoffs and a discriminatory
discharge on the day of the Union's election, which had a serious impact
on the employee complement Cf.. e g.. Hickmorr Foodi, In., 242 NLRB
1357 (1979).
Member Jenkins would compute the interest due on backpay in ac-
cordance with his partial dissent in Olympic Medical Corporatlon, 250
NLRB 146 (180)
256 NLRB No. 161
man, a known union adherent, to prevent her from
voting in the Board-conducted election. We find
merit in this exception.
Betty Hoffman began working for Respondent in
1973 and, at the time of her discharge, had never
been disciplined in any way. The record reveals
that Hoffman was a good worker and a trusted em-
ployee. 3
In 1977, the Union conducted an unsuccessful
campaign among the employees at Respondent's fa-
cility. Hoffman was at that time an active union
supporter and served on the Union's employee or-
ganizing committee. At the hearing in this proceed-
ing, Respondent's vice president testified that he
knew Hoffman had been a union activist in the first
campaign.
After the Union's 1977 organizing drive failed,
Hoffman served on Respondent's health and safety
committee, a group of employee and management
representatives which met each month to discuss
safety conditions at the plant. Hoffman was an out-
spoken advocate for her fellow employees at these
meetings, at which discussions occasionally became
heated. Hoffman also served on the Christmas
committee and was designated to administer emer-
gency first aid on her shift.
When the Union returned to Respondent's plant
in February 1979, 4 Hoffman again supported its or-
ganizational efforts by handing out authorization
cards and speaking to other employees on its
behalf. Before the campaign gained momentum,
however, Hoffman discovered that she was serious-
ly ill and required an extended medical leave of ab-
sence from work. She applied for leave through
Respondent's personnel supervisor, Scheidt, and ex-
plained that she was suffering from cancer and that
she did not know when she would be able to
return to work. Scheidt authorized the leave and
asked Hoffman, with whom she was friendly, to
call and let the Company know how she was
doing. Neither Scheidt nor any other supervisor
ever explained to Hoffman prior to her discharge
that the medical leave was granted for a limited
duration, that Hoffman was expected to return to
work at a certain date 3 months from the first day
of her sick leave unless she requested and was
granted an extension, or that failure to report
would result in automatic termination. Scheidt
filled out a personnel form noting that Hoffman
had been granted leave and indicating an expected
' Respondent's Personnel Supers isor Scheidt testified, for example,
that she did not request a doctor's statement from Hoffman before grant-
ing the requesled medical lease of ahsence because she trusted Hoffman's
* All dates are in 19791 hereinafter, unless otherwise specified
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return date of August 20, but she did not show the
form to Hoffman or give her a copy.
During that portion of her sick leave in which
she was not hospitalized-late May, June, and
early July-Hoffman communicated frequently
with Respondent's management. On one occasion
she spoke with her supervisor and upon inquiry
told him she felt unwell, was continuing to under-
go treatment, and did not know when she would
be able to return. In July, on a visit to the plant,
she spoke to Supervisor Gregg and again said she
did not know when she would be able to return to
work. Also in July she attended the retirement
party of a coworker, where, according to Violet
Wooliver and Hoffman herself, she was obviously
ill and so weak that she had to be supported by
Vice President Moore, with whom she talked for
quite some time. 5
Hoffman was hospitalized for radium implant
surgery on July 22 and August 1. Her husband
called Scheidt during this period, informed her of
the hospitalization, and asked her to tell the other
employees. Hoffman apparently had no further
contact with supervisory personnel until the day of
the election. She returned home from the hospital
to recuperate and would have been permitted by
her doctor to return to work on October 15.
On August 30, the day before the election, Re-
spondent's management officials met with the
Union's business agents to revise the voter eligibil-
ity list. Vice President Moore informed the Union
that Hoffman was no longer employed and was
therefore ineligible to vote. The Union's agents dis-
agreed, protesting that Hoffman was still on medi-
cal leave of absence. When Hoffman entered the
plant the next day to vote in the election, Sid
Lanier, an official of Respondent's parent corpora-
tion who was coordinating Respondent's campaign
against the Union, informed her that she was fired
for overstaying her medical leave. Hoffman was
quite upset and argued with Lanier. Lanier ex-
plained Respondent's leave policy and asked why
Hoffman had not requested an extension. During
the conversation Lanier told Hoffman she could
vote if she wanted to but that the Government
would challenge her ballot. Hoffman loudly broad-
cast her dismissal to the other employees. After
speaking to a union official, she did vote a chal-
lenged ballot in the election before returning home,
where she found a telegram from Respondent, sent
that morning and delivered that afternoon, inform-
ing her of her immediate termination.
In presenting a prima facie case of wrongful
motive in Respondent's termination of Hoffman,
the General Counsel demonstrated that Hoffman
5 Moore testified that he had no recollection of this incident.
had been an open and active supporter of the
Union in 1977 and again in 1979. Respondent ad-
mitted that it was aware of Hoffman's union activi-
ties in 1979; Vice President Moore so testified.
Moore also testified that he had assumed, because
of her involvement in company committees and
programs, that, since 1977, Hoffman had become
"a company person." Unlike the Administrative
Law Judge, we find that Hoffman's participation
on Respondent's health and safety, first aid, and
Christmas committees does not support Respond-
ent's inference that she had ceased to advocate
union representation. Certainly Hoffman's service
on the company committees was not incompatible
with union sympathies. We therefore find that Re-
spondent had continuing knowledge that Hoffman
was active on behalf of the Union and would
almost certainly vote for union representation in
the election. We also find that Respondent had
knowledge of the prolonged and serious nature of
Hoffman's illness, inasmuch as Scheidt received a
phone call from Hoffman's husband shortly before
the leave of absence was due to expire and was
told that surgery was required.
Moreover, as the General Counsel established,
Respondent harbored animus toward the Union
and the union activists among its employees. Re-
spondent's antiunion activities included the discrim-
inatory layoff of three leading union adherents and
a circular instructing employees to report on the
protected activity of union representatives and
other employees. Respondent repeatedly and
openly avowed its determination to fight the Union
"every inch of the way," and, as the Administra-
tive Law Judge observed, its antiunion campaign
was vigorous and extensive. Perhaps most impor-
tant, Lanier admitted that he received reports from
supervisors estimating the number of votes for and
against the Union among their subordinates, that he
attempted to predict the election results, and that
he knew the vote would be close.6 In this context,
it is particularly relevant that Respondent's deci-
sion to discharge Hoffman was made no earlier
than August 29, only 2 days before the election and
9 days from the expiration of her leave of absence,
and that the discharge itself occurred on election
day. It is equally significant that the termination
decision was made by Lanier, who was the coordi-
nator of Respondent's antiunion campaign, who
was employed not by Respondent but by its parent
corporation, and who did not normally make such
decisions for Respondent.
6 The vote was in fact close Not including Hoffman's ballot, which
was not opened and counted, the final tally was 100 votes cast for and
103 against the Union
ANJA ENGINEERING CORPORATION 1085
We further find that Respondent has not credibly
demonstrated that it would have fired Hoffman had
she not been a union supporter. Respondent argues
that Hoffman was fired for failure to return from
sick leave on the required day and that the dis-
charge was consistent with its established practice.
According to Respondent, medical leaves of ab-
sence were granted in one of two ways: if the em-
ployee knew precisely how much leave time was
required, leave was granted until the date given by
the employee; if, on the other hand, the employee
required leave for an uncertain period, as did Hoff-
man, it was granted for only 3 months. In either
case, the employee was expected to return by the
date specified on the leave-of-absence form unless
he requested and was granted an extension. Exten-
sions were routinely given for valid reasons, ac-
cording to the testimony of Vice President Moore,
and the request need not necessarily have been ac-
companied by a doctor's statement or placed in
writing. A telephone call was normally sufficient.
Failure to return to work on the expected date re-
sulted in automatic termination, although termina-
tion was occasionally delayed for some time be-
cause of Respondent's poor recordkeeping system.
In addition, Respondent allowed a grace period of
3 days before discharging an employee for over-
staying medical leave.
Respondent admitted that its sick leave policy
was not a written rule and that it had no formal
procedure for informing employees of the policy.7
In addition to Hoffman, employees Violet Woo-
liver and Jean Crosmer testified without contradic-
tion that they had never heard of the policy upon
which Respondent purportedly relied in discharg-
ing Hoffman. Scheidt admitted that, when she
completed the necessary paperwork on Hoffman's
leave, she did not explain the policy to Hoffman
and did not give her a copy of the leave form des-
ignating the date by which Hoffman was expected
either to have returned to work or to have secured
an extension. Thus while the record discloses evi-
dence that Respondent had some medical leave
policy such as it claimed at the hearing, we find
that it was at best casually administered.
Moreover, Respondent was unable to demon-
strate a consistent past practice of terminating em-
ployees for overstaying indefinite leaves of ab-
sence. Respondent introduced into evidence its per-
sonnel records of numerous employees discharged
for failing to return from leaves at the expected
time, but, as Vice President Moore admitted, in
each case the employee had given Respondent a
I Moore testified that all policies should have been explained on the
first day of employment, but he was unable to affirm that the procedure
was always followed
date certain for his return and had then failed to
appear. In none of the instances relied on by Re-
spondent had the terminated employee requested
an indefinite leave and then been discharged for
failing to return after 3 months.
We find that Respondent has failed to rebut the
General Counsel's prima facie case of unlawful mo-
tivation in the discharge of Hoffman. In the ab-
sence of a clearly established or uniformly enforced
rule relating to indefinite medical leaves of absence,
we are unable to accept Respondent's justification
for the termination. Particularly when the evidence
demonstrates that Hoffman was an excellent em-
ployee, that Respondent was well aware of the ex-
tremely serious nature of her illness, and that exten-
sions of sick leave were routinely given, we find it
impossible to believe that Respondent would have
discharged Hoffman for the technical breach of an
unwritten rule were it not for her participation in
union activities. Our conclusion is strengthened by
the timing of the discharge, which occurred on
August 31, on the day of the Union's election and
11 days after Respondent claims that Hoffman
should have returned to work.
Accordingly, for the reasons given above, we
find that Respondent discharged Betty Hoffman in
violation of Section 8(a)(3) and (1) of the Act, and
we shall order that she be reinstated to her former
position or, if that position no longer exists, to a
substantially equivalent position at Respondent's fa-
cility and that she be made whole, with interest,
for any loss of earnings she may have suffered as a
result of the discrimination against her.
2. We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(3) and (1) by
its discriminatory layoff of union adherents Ger-
trude Rider, Dorothy Conrady, Jean Crosmer, and
Mary Bowser. Like the Administrative Law Judge,
we are willing to accept Respondent's justification
for transferring its printing and springing oper-
ations to another subsidiary of the parent corpora-
tion, although the issue is not entirely free of
doubt.8 The unlawfulness of Respondent's conduct
lay not in discontinuing the work then performed
by the four discriminatees but in denying them
continuing work opportunities because of their
union activities. Respondent had work available
that the four employees whose printing and spring-
ing jobs had been discontinued were qualified to
perform. The four employees even requested con-
sideration for those jobs. Respondent has advanced
no credible justification for laying off these em-
s Respondent did not produce the documentary evidence ubpenaed by
the General Counsel to estahlhh that the cartridges were actually shipped
to the other facility to he sprung and printed. and oral estimony on this
ploint ' as inconchlillse
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees rather than transferring them to other jobs
at which they were willing and able to perform.
We therefore find that Respondent laid off these
employees because of their union activities instead
of for legitimate business reasons, and we conclude,
with the Administrative Law Judge, that Respond-
ent thereby violated Section 8(a)(3) and (1) of the
Act. Accordingly, we shall adopt the recommend-
ed Order of the Administrative Law Judge with
regard to the remedy owed Conrady, Crosmer,
Bowser, and Rider.
3. The Administrative Law Judge found that Re-
spondent committed no objectionable conduct be-
tween May 21, the day upon which the election
petition was filed, and August 31, the day upon
which the election was held. Accordingly he rec-
ommended that the Board certify the results of the
election.
We disagree. We have concluded that Respond-
ent's dismissal of Betty Hoffman on election day
violated Section 8(a)(3) and (1) of the Act. Re-
spondent's illegal act occurred at its facility during
the election process and was widely broadcast
among the employees. Such conduct therefore
clearly interfered with the conditions necessary to
guarantee the employees' free choice of a repre-
sentative in the election. Accordingly, we shall
order that the election held on August 31, 1979, be
set aside and a second election conducted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Anja Engineering Corporation, Monrovia, Califor-
nia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Instructing employees to report on the union
activity of union representatives or other employ-
ees.
(b) Laying off employees as a result of their
union activity.
(c) Discharging employees as a result of their
union activity.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make employees Jean Crosmer, Dorothy
Conrady, Gertrude Rider, and Mary Bowser whole
in the manner set forth in that section of the Ad-
ministrative Law Judge's Decision entitled "The
Remedy."
(b) Offer Betty Hoffman immediate and full rein-
statement to her former position or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights and privileges previously enjoyed by
her, and make her whole for any loss of earnings
she may have suffered by reason of the discrimina-
tion against her, together with interest thereon,
computed in the manner set forth in that section of
the Administrative Law Judge's Decision entitled
"The Remedy."
(c) Post at its Monrovia, California, facility
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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.
(d) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the election held
on August 31, 1979, in Case 31-RC-4513 be, and it
hereby is, set aside and that said case is hereby re-
manded to the Regional Director for Region 31 for
purposes of conducting a second election, as direct-
ed below. The Regional Director shall post the
Notice of Second Election in both English and
Spanish.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I the event that this Order i enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted b)
Order of the Natioal I abor Relatiotns Board" shall read Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
()rder of the National Labor Relations Board"
APPENDIX
NOTICE TO EMPIOYEES
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:
ANJA ENGINEERING CORPORATION 1087
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives 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.
WE WILL NOT instruct you to report on the
activity of union organizers or on the union
activity of other employees.
WE WILL NOT lay off employees because of
their union activity on behalf of, or interest in,
Southern California Printing Specialties and
Paper Products Union District Council No. 2,
affiliated with International Printing and
Graphic Communications Union, AFL-CIO,
or any other labor organization.
WE WILL NOT discharge employees because
of their union activity on behalf of, or interest
in, Southern California Printing Specialties and
Paper Products Union District Council No. 2,
affiliated with International Printing and
Graphic Communications Union, AFL-CIO,
or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them under Sec-
tion 7 of the National Labor Relations Act.
WE WILL make employees Jean Crosmer,
Dorothy Conrady, Gertrude Rider, and Mary
Bowser whole for any loss of pay suffered as a
result of the discrimination against them, and
we will reinstate them to their former posi-
tions of employment without loss of seniority
or other benefits to the extent that we have
not already done so.
WE WILL offer to Betty Hoffman immediate
and full reinstatement to her former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without loss of
seniority or other rights or privileges previous-
ly enjoyed, and WE WILL make her whole for
any losses she may have suffered on account
of our discrimination against her, with interest.
ANJA ENGINEERING CORPORATION
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Los Angeles, California, on April
29 and 30, May I and 2, and June 2 through 5, 1980. The
cases listed above were filed on various dates on and
subsequent to May 21, 1979, by Southern California
Printing Specialties and Paper Products Union District
Council No. 2, affiliated with International Printing and
Graphic Communications Union, AFL-CIO, herein
called the Union. Thereafter on February 26, 1980, the
Regional Director for Region 31 of the National Labor
Relations Board, herein called the Board, issued a third
consolidated amended complaint and notice of hearing,
consolidating the aforementioned unfair labor practice
cases. On April 29, 1980, the said Regional Director
issued an order consolidating the representation case
(Case 31-RC-4513) with the aforementioned unfair labor
practice cases for the purpose of hearing, ruling, and de-
cision on election objections filed by the Union which
objections are identical to certain unfair labor practice al-
legations herein. The current complaint alleges that Anja
Engineering Corporation, herein called Respondent, has
violated and is violating Section 8(a)(l) and (3) of the
National Labor Relations Act, as amended. Respondent's
answer to the complaint, duly filed, denies the commis-
sion of any unfair labor practices.
The parties were afforded a full opportunity to be
heard, to call, examine and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel, counsel for Respondent, and counsel for the
Union. I
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation engaged in the
business of manufacturing writing implements, with its
principal place of business located in Monrovia, Califor-
nia. In the course and conduct of its business operations
Respondent annually sells and ships goods and services
valued in excess of $50,000 directly to customers located
outside the State of California. It is admitted, and I find,
that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE IABOR ORGANIZATION INVOLVEI)
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Therealfter, colllsel for Respondent filed a motion for leave to file a
repl, brief on the ground, that the General Counsel. in his brief, made
unfoundel arid li l.sarranted accusations concernllilg the professional
ethics. integrity. and honesty of Respondent's counsel Subsequently
upon rflection, the General Counsel modified certain language In his
brief, In effect deleting certain untoward remarks which indeed impugned
the integrit f Responden',s counsel While It sould appear that Re-
spondenll's cnerun herein is justified under the circumstances , it is clear
that the remarks of the General Countsel were made as a result of what
nmia he tfilrl charactri,ed as imprudent overzealousness and were not
designed or itended to constitute purposeful accusaltloi designed to
impugni the elhics and Integrit' of counsel for Responidet As he brief
of the (lleral ( rCounsel has heen modified I deemn it unnecessary to grant
Respoludci. l's i)ot)I)n 1I I, hcrch denied
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES AND ELECTION
OBJECTIONS
A. The Issues
The principal issues raised by the pleadings are wheth-
er Respondent violated Section 8(a)(1) and (3) of the Act
by various instances of interrogation, promises, and
threats, and by discharging employees because of their
union activity; and whether, as result thereof, certain
election objections should be sustained and a new elec-
tion directed.
B. The Facts
1. The August 29, 1979, talk
Respondent's president, Bob Parvin, gave a series of
seven preelection talks to groups of unit employees on
August 28 and 29, 1979.2 The last talk was delivered to
approximately 45 employees and, according to Parvin,
was identical in all material respects to the proceeding 6
talks.
Employees Jean Crosmer, Dorothy Conrady, Ger-
trude Rider, and Violet Wooliver were among the em-
ployees present at the seventh and final meeting. A com-
posite of the abbreviated testimony of these employees
on behalf of the General Counsel is that at some point
during the approximately half-hour meeting, Parvin told
the group that if the Union got in, Respondent would
freeze wages or the wage systems during the course of
negotiations, which would take up to a year or more,
and that the most the employees could hope for would
be a 25-cent increase.4
Parvin testified at length regarding the specifics of his
talks with the groups of employees. During the course of
these talks, Parvin referred to claims the Union was
making regarding wages the Union had negotiated at an-
other company, and remarked that the particular con-
tract negotiated by the Union provided for an annual
wage increase of only 25 cents per hour. He also disput-
ed the Union's claim made during the course of the cam-
paign that if the Union won the election the employees
would thereafter immediately be paid in excess of $5 per
hour, and told the assembled employees that if the Union
won the election the parties would simply sit down to
negotiate and that throughout negotiations, which could
take up to a year, Respondent could not initiate any
wage increases unilaterally. He expressly denied ever
having told the employees that if the Union won their
wages would be "frozen." Two employees who were at
2 All dates or time periods herein are within 1979 unless stated to be
otherwise. The instant representation petition was filed on May 21 and
the election was held on August 31. The vote was 100 for the Union. 98
against the Union, and there were 8 challenged ballots After challenges
to certain ballots were overruled and the ballots counted, the revised
tally of ballots reflects that 100 votes were cast for and 103 votes were
cast against the Union.
3 Conrady testified that Parvin may have used the words "wage
system." Respondent's "wage system" provides for the granting of peri-
odic wage increases on a quarterly basis.
4 Wooliver testified. however, that Parvin "named off about five com-
panies where the particular union had only got the people a quarter
raise," and indicated that this was her understanding of Parvin's remarks
about the 25-cent raise.
the seventh meeting; namely, Rita Navarro and Margaret
Acosta, testified on behalf of Respondent regarding this
issue. Both corroborated Parvin's foregoing testimony
and maintained that Parvin said nothing about wages
being frozen.
2. Attempt to solicit reports of union activity
On May 14, Respondent issued the following memo-
randum to its employees:
SUBJECT: UNION PETITION WITHDRAWN
Recently, you were advised that a union had pe-
titioned Anja seeking an election. Well, that union
withdrew this petition on Friday May I 1th.
The union withdrew the petition because most
employees at Anja do not want a union and there-
fore, did not sign authorization cards. The union has
been campaigning for months trying to get 30% of
the employees to sign cards and, of course, have not
been successful.
This proves that employees at Anja know that
the only thing a union can do, is take their money
from them in the form of big dues. Who wants that?
NOBOD !!
Employees at Anja know that the company cares
about them and is making progress in improving
working conditions, adjusting wages, and improving
communications. With all this and more taking
place, employees understand that there is absolutely
NOTHING a union can do for them that the com-
pany is not already doing.
The union will probably try again to get you to
sign cards. The union is desperate and will try any-
thing. Remember that it is unlawful for any union
agents or organizers to threaten or coerce you into
signing a union card.
If you should be threatened or harassed by union
representatives or other employees, I want you to
report it immediately to me, or to your supervisor.
Don't be misled or pressured into doing something
you don't want to do, or something that is not in
your own best interest. Remember that signing a
union card is like signing a blank check-so don't
be fooled. A union will cost you money. Who wants
that? NOBODY!!
3. Threat to make employees work harder
In mid-August, Robert Oroumieh, manager of manu-
facturing, and Charles Walker, manager of the plastics
department, were having a drink in the bar area of the
Old California Restaurant. Employees Dorothy Conrady
and Joyce Smelser walked up to their table to say hello,
and Oroumieh introduced these employees to Walker,
who had been recently hired by Respondent on July 19,
and invited the two employees to sit down and have a
drink. Conrady testified that during the course of the ap-
proximately -hour conversation, Walker said to her "if
the Union ever got in, he was going to make his girls
work twice as hard as they do now." Conrady testified
that Smelser told her that she, too, had heard Walker
make this statement. However, Smelser, without explana-
ANJA ENGINEERIN( CORPORATI()N 1089
tion, was not called as a witness to corroborate Con-
rady's testimony, although the record shows she has re-
mained an employee of Respondent to the present time.
Walker and Oroumieh categorically deny that such a
statement was made. Oroumieh testified that Conrady
brought up the subject of the Union, stating, "No matter
how . . . the election turns out, let's not hold grudges."
Oroumieh replied, "[W]e're too mature for that. I won't
hold any grudges." During the course of the get-together
the participants engaged in social drinking, Smelser and
Walker made an attempt at dancing and, according to
Oroumieh. Conrady made certain amorous remarks to
him.
4. Promises of wage increase
At a brief 4-minute meeting in August, Emily Gold-
baum, assistant leadlady in the plastic department, was
told by Department Manager Charles Walker, in the
presence of perhaps one or two other employees, that
she was due to get a 5-cent raise the first week of Sep-
tember. During the remainder of the meeting, Walker
generally expressed Respondent's opposition to the
Union, and reminded the employees, according to Gold-
baum, "not to vote just for the union or the company;
whatever we felt was best." Goldbaum had been previ-
ously scheduled to receive a raise in accordance with
Respondent's wage progression schedule which was im-
plemented prior to the advent of the Union. In March,
June, September, and December, Goldbaum received
successive 5-cent increases pursuant to this wage sched-
ule.
Nina Felix testified that in March and June, respective-
ly, she received a 5-cent increase and was told it was her
3-month increase. Further, Felix stated that, apparently
about June, she had been given a sheet of paper by a su-
pervisor or manager indicating how her increases had
been scheduled. Later, according to Felix, at a small
group meeting which apparently occurred in August,
prior to the election, Felix and certain other employees
expressed their interest in the additional raises which
they could expect. Walker responded to this inquiry by
mentioning that they were due for a raise in September.
Thereafter, Felix and certain other employees did re-
ceive this raise as scheduled.
Conrady testified that in early 1979, she attended one
of a series of small group meetings conducted by Orou-
mieh during which meeting Oroumieh explained that be-
ginning in March, the employees would receive a 5-cent
wage increase every 3 months. Respondent's president,
Parvin, testified that on or about March 8, he com-
menced to conduct a series of seven or eight meetings
extending over a period of a week, during which meet-
ings he explained a new wage and job classification
system to approximately 75-85 percent of Respondent's
250 employees, advising them that they would receive
periodic wage increases over a period of I year. The
General Counsel presented no evidence rebutting Par-
vin's testimony in this regard.
5. The May 17 layoff
Jean Crosmer, Dorothy Conrady, Gertrude Rider, and
Mary Bowser worked together in the same department.
Conrady primarily operated a machine which put print-
ing on metal ink cartridges. The three other employees
operated springer machines which placed a spring
around the ink cartridge preparatory to insertion into the
pen. Crosmer, Conrady, and Rider were members of the
union organizing committee and were active on behalf of
the Union throughout the campaign. Both Conrady and
Rider had been members of a similar organizing commit-
tee in 1977 during a prior union campaign. Crosmer and
Conrady had been employed by Respondent since 1975
and Rider since 1972. They attended union meetings and
passed out and solicited signatures on authorization cards
during lunch periods, breaks, and after work. Moreover,
Crosmer and Rider were observers for the Union during
the election on August 31. Parvin testified that he was
aware in March or April that the three aforementioned
employees were in favor of the Union.
On May 17, prior to the filing of the instant represen-
tation petition, Supervisor Tim Pierrie advised Crosmer,
Conrady, Rider, and Bowser that Hal Spurrier, then
plant manager, wanted to talk to them. The employees
assembled in the conference room and were told by
Spurrier that they were being laid off because their work
was to be performed at another plant. The employees
asked whether, as a result of their considerable seniority,
they could be transferred to other jobs. Spurrier replied
that Respondent was not hiring. Apparently deeming his
answer to be unresponsive, the employees again asked
about possibility of being transferred to other jobs. Again
Spurrier replied that Respondent was not hiring and at
some point also stated, "We have no seniority; Anja
doesn't believe in it." Conrady asked whether the layoff
had anything to do with the Union and Spurrier replied,
according to Conrady, "No. Why?" 5
During the course of the conversation, the employees
attempted to point out to Spurrier that jobs were, in fact,
available as indicated by a bulletin board notice which
was then posted in the very department in which the em-
ployees worked. The notice, dated May 8, entitled "Job
Opportunities," was from the personnel department to all
employees and read as follows:
Anja currently has job opportunities in the follow-
ing areas:
(1) Machine Operators
(2) Test Writers
(3) Extrusion Operators
(4) Set-up man-MECHANIC (MOLDING)
(5) Lab Tester
(6) General Trainees
If you know of anyone looking for employment,
please have them contact Billie, in the personnel de-
partment. A $10.00 award will be given to anyone
who refers someone, who is hired and completes 30
days of service.
s According to Rider, Spurrier's repIl to this question was, "Why,
should it?"
1()9( D)IC'ISI()NS OF NA'I()NAl I A()R R A I IONS ()ARI)
Your help is appreciated.
Spurrier apparently did not directly respond to the em-
ployees' reference to the aforementioned notice, but
simply replied that "There are no jobs." Nor, during the
course of the conversation, did Spurrier suggest or imply
that the employees would be recalled, or that the layoff
would be temporary. The meeting was concluded when
the employees were handed their final paychecks.
In addition to seeking employees by means of the
aforementioned bulletin board notice, Respondent had si-
multaneously placed advertisements in several area news-
papers. Certain advertisements, introduced into evidence,
show that on May 13, 14, 16, and 17 sizeable classified
ads under "Employment Opportunities" appeared in the
San Gabriel Valley Tribune, advertising immediate open-
ings for various types of machine operators and setup
mechanics.
An unfair labor practice charge protesting the termina-
tion of the four employees was prepared on May 8 and
filed by the Union on May 21. Shortly thereafter, be-
tween May 24 and 26, the employees were called by
Spurrier and were advised that positions were then avail-
able for them in order of seniority. The four employees
were reemployed on May 29 and were placed in various
departments on the second shift. On or about June 25,
the employees were advised that they were being reas-
signed to their former jobs on the first shift as the trans-
fer of the printing and springing work elsewhere had not
proven to be satisfactory.
Respondent maintains that its decision to discontinue
certain operations performed by the employees in ques-
tion was economically motivated. Parvin testified that on
or about May 3 he began checking into the possibility of
transferring the work of springing and printing cartridges
to an east coast subsidiary, Burnham Products, of Re-
spondent's parent corporation, Scripto Incorporated, as
Respondent had become concerned about losing its larg-
est customers due to poor printing which Respondent
was unable to correct and which had been a problem
since 1978.6
On May 9, Parvin phoned Bob Whitesell, the president
of Burnham Products, regarding the efficacy of transfer-
ring the work in question, and on May 11, Parvin re-
ceived permission from Scripto Incorporated to effectu-
ate the transfer of the work. Following further conversa-
tions between the principal parties to this arrangement,
the details were worked out and the plans were finalized
on May 16, on which date Parvin instructed Plant Man-
ager Spurrier, Manufacturing Manager Oroumieh, and
Sales Manager Petit that the printing and springing oper-
ations were to be immediately shut down and the work
sent to Burnham Products.
e Contrary to the apparent inference of Respondent, I find that the ad-
mittedly poor printing quality 'was not due to any laxness on the part of
the printing machine operator, Dorothy Conrady. Obviously, if Respond-
ent believed that Conrady was even in part responsible for the potential
loss of a significant part of Respondent's business due to poor quality
printing, Respondent would have taken appropriate action to correct this
situation at an early date. Rather, the record shows that Respondent care-
fully examined each part of the printing operation, particularly including
Conrady's proficiency as a machine operator, and did not deem the poor
printing quality to be attributable to Conrady's work performance
Orouniel testified that, apparently on May 16, upon
being advised of this operational change, he thereafter
called the personnel department and spoke to Personnel
Supervisor Billie Scheidt, who interviews and hires all
new employees. Upon ascertaining from Scheidt that
there were no other jobs available for the printing and
springing machine operators, whom he considered to be
good workers, and as Respondent had no bumping pro-
cedure for senior employees, the four employees were
laid off the next day, as described above. Oroumieh testi-
fied that at the time of the layoff he expected that the
employees would be recalled at the earliest opportunity.
Shortly thereafter, as described above, the employees
were recalled to various jobs, and were subsequently re-
turned to their original jobs because, according to
Parvin, Burnham Products was unable to perform the
transferred work in a timely manner. Thus, Parvin ex-
plained that he became aware in early June that Burn-
ham Products was giving its own orders top priority in
anticipation of an annual 2-week vacation shutdown in
June, and that following the shutdown it would be nec-
essary that Burnham Products continue to give prefer-
ence to its own orders before performing the work trans-
ferred to it from Respondent. Therefore, Respondent de-
cided to abort the ill-conceived plan of transferring the
work to Burnham Products and to resume these oper-
ations at its own plant. Since the work has been resumed,
Respondent has not received an inordinate number of
complaints about the quality of the printing.7
Respondent's records show that, of 27 employees hired
during May, 4 were hired on May 15, 4 on May 16, 5 on
May 17, 1 on May 21, and 7 on May 31. There was no
showing that the four laid-off employees involved herein,
who were experienced in various phases of Respondent's
operations, were unable to readily perform any of the
jobs filled by the new employees except perhaps for an
advertised truckdriver position.
6. The warning notice to Conrady
On June 15, Dorothy Conrady was given the follow-
ing warning notice signed by Manufacturing Manager
Oroumieh and Personnel Manager Cardenos:
On Tues. 6/12/79 Dorothy went into Dept 29 at
approximately 3:10 p.m. and was observed talking
to an employee, who was on duty, for approximate-
ly 5-10 minutes. This is contrary to company prac-
tice. Therefore, Dorothy is hereby given a warning
to refrain from any such practices. Any future vio-
lations will result in further disciplinary action.
Millie Candeleria, day-shift leadlady in department 29,
testified that in June she observed Dorothy Conrady and
Jean Crosmer enter department 29 between 3 and 3:30
p.m., and talk to the employees who were on duty prior
to the start of the swing shift which commenced at 3:30
p.m. She observed Conrady do this on three to five oc-
casions and observed Crosmer five or six times. After re-
7 While Respondent would attribute this to a more conscious effort by
quality control employees or by Conrady. I have previously found that
the poor quality printing was in no way attributable to Conrady.
ANJA ENGINEERING CORP()RATION()N 1(91
porting this to Oroumieh and Cardenas, who told her to
keep an eye on these employees, Candelaria observed
that this conduct by Conrady and Crosmer continued.
Moreover, Candelaria testified that, sometime prior to
the May 17 layoff of the employees, she had verbally
warned an employee, in the presence of Conrady, for en-
tering department 29 and speaking with Conrady. Mar-
garet Acosta, an employee in department 29, corroborat-
ed Candelaria's testimony regarding this conduct of Con-
rady and Crosmer in June.
Oroumieh testified that on or about June 12 he ob-
served Conrady in department 29 shortly after 3 p.m.
Having been previously advised by Candelaria that she
had spoken to Conrady about this infraction of company
policy, Oroumieh determined that a warning was appro-
priate. Thereafter, upon clearing the matter with Parvin
because of what Oroumieh described as the "protective
umbrella" or special treatment which these employees
seemed to enjoy, apparently as a result of their union ac-
tivity and the unfair labor practice charge filed on their
behalf, Oroumieh issued the instant warning notice to
Conrady. No similar warning was given to Crosmer be-
cause Oroumieh did not personally observe Crosmer
engage in this rule infraction after the warning to Con-
rady.
Conrady admitted that in June she went into Depart-
ment 29 on several occasions prior to the commencement
of her shift and that on one occasion she saw Oroumieh
there. She acknowledged that Candelaria would give her
a "dirty look" if she entered the Department. Conrady
further testified that on June I she observed Candelaria
approaching her and found it necessary to explain that
she had merely wanted to write a check to an employee
in that department for some Avon products and intended
to leave immediately, adding that on this occasion Can-
delaria "would have given me a warning for being in
there if I had not explained my situation," because, "after
you're told so many times by your lead lady not to talk
and so on and so forth. et cetera, et cetera, you're bound
to know it."
7. The separation of Crosmer and Rider
Crosmer and Rider customarily operated springing ma-
chines adjacent to each other. The day following the
election, Rider was assigned to a different springing ma-
chine in order to prevent what supervision deemed to be
excessive talking between the two employees.
Leadlady Candelaria testified that she observed the
two employees talking continuously for as long as 5 min-
utes and verbally reprimanded them for this on as many
as five or six occasions. Finally, the employees were sep-
arated in order to remedy the problem. Candelaria also
testified that these two employees had been separated on
a previous occasion for excessive talking, apparently
prior to the events material herein, when they were
working together at a packing table.
Woodrow Moore, vice president of Respondent, testi-
fied that prior to the separation of the two employees he
had observed Crosmer and Rider engaging in what he
deemed to be excessive conversation on numerous occa-
sions, and suggested to Oroumieh that the employees be
separated.
Margaret Acosta, who works in packaging and was
able to observe Crosmer and Rider, testified that al-
though all employees talk to each other while working
and while there is no prohibition of such casual conver-
sation, she observed Crosmer and Rider who, according
to Acosta, had always talked more than the other depart-
ment employees, talking excessively as the election date
approached.
Crosmer and Rider testified, in effect, that throughout
their tenure with Respondent they had frequently talked
while working and denied that they conversed to a
greater extent as the election approached. The testimony
of Russell Erickson, a mechanic in department 29. indi-
cates that he did not observe the two employees talking
to a greater extent immediately before or after the clec-
tion. Employee Rita Navarro testified similarly.
8. The discharge of Betty Hoffman
Betty Hoffman began working for Respondent in No-
vember 1973. She was active on behalf of the Union
during an unsuccessful campaign in 1977. Hoffman testi-
fied that she passed out authorization cards on behalf of
the Union during the 1979 organizational campaign.
having obtained the cards from Rider and Conrady. and
that she expressed her prounion sentiments to other em-
ployees. However, there is no evidence of employer
knowledge of such activity in 1979. Hoffman had been a
member of various committees established by Respond-
ent; namely, the Christmas committee, and the health
and safety committee. Also, she volunteered to be the
"First Aider" on her shift, the individual who would be
called upon, if necessary, to administer emergency first
aid.
On or about May 18, Hoffman requested an extended
medical leave of absence from Personnel Supervisor
Billie Scheidt and explained she did not know when she
would be returning to work. Scheidt authorized the
leave and requested that Hoffman call in to let Scheidt
kniow how she was doing. Neither Scheidt nor any' other
supervisor explained to Hoffman that she had been grant-
ed only a 3-month leave of absence. Rather, Hoffman ap-
parently believed that the leave of absence was for an in-
definite period of time.
During the latter part of May, while Hoffman was on
leave of absence, she spoke to Supervisor Tim Pierrie,
who inquired how she was doing. Hoffman said she was
not feeling well and was continuing to undergo treat-
ment for cancer and did not know when she would be
able to return. In July, Hoffman went to the plant to
pick up her vacation check. On this occasion, she spoke
to Vern Gregg, a new supervisor. Gregg, explaining that
the three employees filling in for her were unable to
handle the workload, asked Hoffman when she would be
returning. Again, Hoffman apparently said she did not
know. Also, about the first week of July, Hoffman at-
tended the retirement party for a coworker. On this oc-
casion, she spoke to and was assisted by Respondent's
vice president., Woodrow Moore, but apparently nothing
was mentioned about any prospective date for her return
to work
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, Hoffman was hospitalized on July 22 and
again on August 1. During this period, Hoffman's hus-
band phoned Personnel Supervisor Scheidt and advised
her that his wife was going into the hospital for radium
implant surgery and requested that Scheidt post a notice
on the bulletin board advising the employees of Hoff-
man's hospitalization. Scheidt did so. Hoffman testified
that while in the hospital she received calls from various
employees, one of whom was Setsuko Wyman, who had
previously ridden to work with Hoffman in a carpool.
During the course of this conversation, Wyman told
Hoffman about Wyman's personal experience with
cancer. Also, at one point in the conversation, Wyman
asked whether Hoffman intended to come to the plant on
the day of the election to vote for the Union. Hoffman
said she did not know.8
Hoffman went to the plant to vote on the day of the
election and initially spoke to some coworkers. She was
approached by someone she did not know, who asked
her to come to the office. According to Hoffman,
Scheidt and Sid Lanier, a management official of Scripto
Incorporated who was apparently assigned the job, inter
alia, of coordinating Respondent's election campaign,
were present. Lanier advised Hoffman that she was fired
for overstaying her medical leave. Hoffman argued that
she had not been given a definite date for returning to
work. Lanier explained to her what the policy was, as
discussed below. Some harsh words were exchanged and
Hoffman began crying. She thereupon went back
through the plant and told several employees that "the
son-of-a-bitch has fired me." Then Lanier approached
and told her to "get the hell" out of the plant and escort-
ed her to the exit. However, sometime during the inci-
dent, Lanier told Hoffman that a union official wanted to
talk to her in the front office and ultimately Hoffman
was permitted to vote a challenged ballot. Hoffman testi-
fied that upon returning home from the plant that after-
noon she received a telegram from Respondent notifying
her that she had been terminated.9
Scheidt testified that Hoffman requested a leave of ab-
sence on May 18. Scheidt filled out the appropriate form
granting Hoffman sick leave authorization for the cus-
tomary 3-month period until August 20. Although
Scheidt testified that she did not specifically recall so ad-
vising Hoffman, she believes that she must have told
Hoffman of the standard practice of initially granting a
3-month medical leave of absence when a definite return
date cannot be established. While it is the procedure, ac-
cording to Scheidt, that an employee will be automatical-
ly terminated for overstaying a requested leave of ab-
sence unless the leave is explicitly extended, Scheidt
admits that Hoffman was not advised of this practice on
May 18. Thereafter, sometime during the last week of
8 The significance of this testimony, accordig to the General Counsel,
is to attempt to impute knowledge of Hoffman's prounion synipathies to
Respondent through Wyman Thus, Hoffman further testified that during
the 1977 union campaign, Wyman, who was aware of Htoffman's 1977
union activity, told Hoffman that she did not like the Union and would
have nothing to do with it. Later, apparently in 1977, Hoffman was ad-
vised by several other employees that Wyman was a "stoolie" for the
company
9 Apparently, Hoffman would have been physically able to return to
work on October 15.
July or first week of August, Hoffman's husband phoned
Scheidt, advised her that Hoffman was entering the hos-
pital and requested that Scheidt post a notice to this
effect on the bulletin board. Scheidt did so.
William Hayden is a business representative for the
Union. He attended a preelection conference on August
30 during which conference certain changes in the elec-
tion eligibility list were discussed. During this meeting,
according to Hayden, Lanier stated that Hoffman had
quit and that her name should be deleted from the eligi-
bility list. Hayden replied that he understood Hoffman
was on sick leave and had not quit. Lanier referred this
to Respondent's vice president, Moore, who confirmed
that Hoffman had quit. There were 36 "quits" noted on
Hayden's copy of the eligibility list which he utilized
during the preelection conference.
Lanier testified that at the preelection conference Re-
spondent indicated to the Union that Hoffman was one
of the employees "who had terminated." Upon being so
advised, according to Lanier, the union representative
disagreed, replying that Hoffman was on sick leave.
Thereupon, Moore showed Lanier certain notations and
Lanier replied that Hoffman had been on a medical leave
of absence, but had failed to timely return to work, and
that she was excluded from the eligibility list on that
basis.
Lanier testified that on the day of the election, shortly
before 2 p.m., he was advised that Hoffman was at the
plant. Thereupon, he met with her and Personnel Direc-
tor Cardenas in Cardenas' office. Hoffman appeared to
be very agitated and Lanier asked whether she had re-
ceived a copy of the termination telegram which had
been sent. She said she had not. Lanier explained that if
an employee overstayed a leave of absence and did not
extend the leave of absence in a timely manner this
would be considered a self-termination. Thereupon,
Hoffman directed several epithets to Cardenas and
Lanier. Lanier explained that he had nothing to do with
the established company policy and could do nothing
about it. He further asked why Hoffman, who was visi-
bly upset, had not requested an extension of her leave of
absence; and advised her that it was her legal right to
vote a challenged ballot. During the course of the discus-
sion, Hoffman inquired about her medical insurance and
Lanier then instructed Cardenas to accompany her to
Scheidt's office in order to discuss insurance matters.
'Thereafter, one of the union representatives asked to
speak with Hoffman. Lanier told the representative that
he would have Hoffman wait in the lobby after her con-
versation with Scheidt. Apparently following this, Hoff-
man voted a challenged ballot.
Lanier testified that he did not know whether Hoff-
man supported the Union. Vice President Moore testified
that during the 1977 organizational campaign he had
come to the conclusion that Hoffman was a union sup-
porter. However, Moore testified that since that time
Hoffman had become very involved in company pro-
grams and that this caused him to believe that Hoffman
would not have been supportive of the Union in 1979.
ANJA ENGINEERING CORPORATION 1093
Analysis and Conclusions
1. The August 29 talks
Counsel for the General Counsel maintains, without
citing authority for such a contention, that Parvin's al-
leged August 29 statement to employees that their wages
would be frozen if the Union got in is violative of the
Act. Whether the use of such phraseology constitutes a
threat of adverse consequences is problematical and is
certainly not as axiomatic as the General Counsel ap-
pears to suggest. See Hospital Service Corporation, d/b/a
Blue Cross, 219 NLRB 1 (1975).
However, regardless of the lawfulness of such a
remark, I find that Parvin did not make this statement.
Thus, it is readily apparent from the record that each of
the witnesses proffered by the General Counsel on this
issue had an exceedingly vague and abbreviated recollec-
tion of what actually transpired at the meeting. More-
over, their testimony, limited as it was, was not mutually
corroborative in salient respects. I find Parvin's denial
that he used the word "frozen" to be persuasive, particu-
larly in view of the fact that other employees at the
meeting, whom I credit, corroborated Parvin's version of
his talk, and the additional fact that although Parvin de-
livered similar talks to seven different groups of employ-
ees in a 2-day period, wherein he discussed the same sub-
jects, there is no contention that Parvin exceeded the
proper bounds of preelection campaigning on other than
the one occasion. Moreover, for the reasons stated
above, I do not credit the General Counsel's witnesses. I
shall therefore dismiss this allegation of the complaint.
2. Attempt to solicit reports of union activity
The correspondence to employees complained of
herein is embodied in Respondent's May 14 memoran-
dum to employees, set forth above, which states, inter
alia:
Remember that it is unlawful for any union
agents or organizers to threaten or coerce you into
signing a union card.
If you should be threatened or harassed by union
representatives or other employees, I want you to
report it immediately to me, or to your supervisor.
Don't be misled or pressured into doing something
you don't want to do, or something that is not in
your own best interest.
It has been held that while an employer may lawfully
request employees to report to management what they
perceive to be "threats" by union organizers or employ-
ees, nevertheless a similar request to report "harassment"
or "pressure" upon employees constitutes an unlawful at-
tempt to discern and discourage permissible union activi-
ty. Liberty Nursing Homes, Inc., 245 NLRB 1194 (1979);
J. H. Block & Co, Inc., 247 NLRB 262 (1980); Colony
Printing and Labeling, Inc., 249 NLRB 223 (1980).
In the instant case, Respondent has combined the per-
missible and prohibited terminolgy, instructing employ-
ees to immediately report instances of "threats or harass-
ment." The juxtaposition of similar terminolgy has been
held to be unlawful' ° and Respondent has presented no
justification for its word selection which would warrant
a different conclusion herein. Thus, I find that, by dis-
seminating such an instruction to employees, Respondent
has violated Section 8(a)(1) of the Act as alleged.
3. Threat to make employees work harder
I find the record evidence insufficient to establish that
during the conversation in the bar area of the Old Cali-
fornia Restaurant in mid-August Department Manager
Walker threatened that he would make employees in his
department work harder if the Union got in.
Conrady was able to recall virtually nothing of the
hour-long get-together other than Walker's alleged un-
lawful remark and a remark by Oroumieh that "You
know, if you didn't work for this-vote for the Union,
we could really work good together." According to
Conrady's direct examination testimony, Oroumieh made
this remark at the very end of the conversation and Con-
rady replied, "I don't want to talk about this Union busi-
ness anymore." Thereupon, she and Smelser immediately
got up and left.
Conrady's testimony on cross-examination was quite
different. Thus, at one point she testified that she was
"quite positive" that Oroumieh mentioned the word
"union" in connection with Oroumieh's aforementioned
alleged statement. However, when confronted with her
affidavit given on October 11, which states, "Prior to
Walker's above remark, ' Oroumieh said that if I would
work with him, we could work better with him." Con-
rady at first equivocated by stating that Oroumieh "may
not have" mentioned the Union and later stated that her
affidavit contained an accurate account of Oroumieh's
remark. In justification of this error in recollection, Con-
rady explained that she had been harassed so much about
the Union by Oroumieh that she supposed it was "just
normal" to believe that Oroumieh mentioned the Union.
I credit the mutually corroborative testimony of Man-
agers Oroumieh and Walker and find that Walker did
not make the statement attributed to him by Conrady.
Conrady did not impress me as having an accurate recol-
lection of the meeting. Rather, her testimony demon-
strates that her recollection of the conversation was
vague and inaccurate and that her ability to specifically
recall what transpired was clouded by her strong antipa-
thy toward management. Moreover, it should be noted,
in passing, that Smelser was, without explanation, not
called as a witness to corroborate Conrady's testimony.
4. Promise of wage increases
It is clear that, prior to the advent of the Union, Re-
spondent's wage system, including the progressive 5-cent
increases every 3 months, had not only been established
and embodied in detailed wage planning sheets showing
the amount and timing of wage increases for each em-
ployee, but that employees had been receiving their
"' J P Strven, & Co. Inc. 245 NLRB 198 1979): Rank of St. Louis.
191 NIRB 66t9, 673, enfd 456 F 2d 1234 (8th Cir. 1972)
l Apparently referring to the alleged unlawful remark regarding
Walker', making the emploees it his department "ork harder
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARDI
scheduled wage increases in accordance therewith. Ap-
parently, most employees had been apprised of the fact
that they were to receive such increases periodically.
Thus, Parvin testified, without contradiction, that he per-
sonally explained the system to over 75 percent of the
employees on and after March 8 and even Conrady testi-
fied that she was aware of this progressive wage system
prior to the organizational campaign.
The General Counsel produced two witnesses who
testified that they were not aware that they were due a
wage increase in September, but were apprised of this
fact shortly prior to the election. As a result of this evi-
dence, the General Counsel argues that the holding in
Durango Boot, A Division of U.S. Industries, Inc.,'12 ap-
plies to the instant factual situation. Durango Boot, in my
opinion, could hardly be more inapposite for in that case
the pension plan, although generally decided upon prior
to the union campaign, was neither announced to em-
ployees nor implemented prior thereto.
It is clear that in August Department Manager Walker
merely advised employees that their next wage increase
was due in September. There is no question that such
September wage increases had been planned in early
March and at least generally announced to the majority
of employees shortly thereafter. Although Walker's state-
ments may have come as a revelation to Emily Gold-
baum, Nina Felix, and perhaps other employees, the
General Counsel has cited no precedent which would
preclude an employer from advising employees of exist-
ing benefits, including the timing of their next wage in-
crease, in an effort to influence their choice in a forth-
coming election. I shall, therefore, dismiss this allegation
of the complaint. See American Sunroof Corporation. et
al., 248 NLRB 748 (1980).
5. The May 17 layoff
It is admitted, and the record amply demonstrates, that
Respondent was very strongly opposed to the Union.
Respondent's president, Parvin, succinctly articulated
Respondent's position in a memorandum to all employees
dated April 23 as follows:
I want each of you to know where I stand on this
union issue. To me, the union is an outsider which
gets between the employees and managers. We
intend to fight any outsider, every inch of the way.
It is also admitted that Respondent was well aware of
the extensive involvement of employees Crosmer, Con-
rady, and Rider on behalf of the Union.
The aforementioned employees, along with coworker
Mary Bowser, were summarily laid off on May 17, at a
time when Respondent was actively engaged in a vig-
orous antiunion campaign and was concerned that a new
election petition would be filed.'3 Thus, in memorandum
to employees dated May 14 and 18, Respondent repeat-
edly warned employees about the "desperate" attempts
the Union would be making in an effort to induce em-
12 247 NLRB 361 (1980).
t' As stated illn Respondent's May 14 memorandum, set forth above,
the Union had sithdrawn an earlier petition, apparently for lack of a suf-
ficient showing of interest.
ployees to sign sufficient cards to obtain a 30-percent
showing of interest in order to support a new representa-
tion petition.
According to the uncontradicted testimony of
Crosmer, Conrady, and Rider, their layoff by then-Plant
Manager Spurrier was unaccompanied by any indication
that the layoff was to be temporary pending the avail-
ability of jobs. Moreover, their queries regarding the
availability of other jobs were rebuffed by Spurrier, even
though it was pointed out to Spurrier that, at that very
moment, Respondent was seeking employees in a variety
of areas as demonstrated by a bulletin board notice.
The record evidence abundantly supports the conclu-
sion that on May 16 and 17 jobs were plentiful. Thus, in
addition to the aforementioned bulletin board notice, Re-
spondent was simultaneously advertising the immediate
availability of various jobs in area newspapers. More-
over, although Oroumieh testified that on May 16, upon
being advised of the necessity for the layoff, he contact-
ed the personnel department and spoke to Personnel Su-
pervisor Billie Scheidt, who allegedly advised Oroumieh
that no jobs were available, the record evidence shows
that on May 16 and 17 Respondent hired four and five
employees, respectively. Further, it is highly significant
that Scheidt, who was primarily responsible for inter-
viewing and hiring all new employees and, even accord-
ing to Oroumieh, was most conversant with the availabil-
ity of jobs, was not called upon by Respondent to prof-
fer an explanation which would support Respondent's
apparent position that, despite the bulletin board notice,
the newspaper ads, and the hiring of a total of 11 em-
ployees on May 16 and 17, there were no available posi-
tions for the four laid-off employees, each of whom had
considerable seniority and was able to perform a multi-
tude of jobs. I thus draw the reasonable presumption that
Scheidt's testimony on this point would have been unfa-
vorable to Respondent. See Fred Stark and Jamaica 201
St. Corp., Inc., 213 NLRB 209, 213-214 (1974); Goodyear
'ire & Rubber Company, 190 NLRB 84, 86, fn. 3 (1971).
On the basis of the foregoing, even assuming arguendo
that the temporary discontinuation of the printing and
springing operation was economically motivated, the
conclusion is mandated, and I find, that the four employ-
ees were not immediately transferred to other available
jobs because of their union activity and were thus laid
off in violation of Section 8(a)(3) of the Act as alleged.
Although the union activity of employee Bowser was
not as extensive and visible as that of the other discrimin-
atees it i clear that, at the least, she was the innocent
victim of Respondent's unlawful conduct. Thus, Re-
spondent's failure to transfer Bowser to another position
was essential to give colorable support to Respondent's
claim that no other jobs were available at the time of the
layoff. Under such circumstances, Bowser's layoff is sim-
ilarly violative of the Act. See Hall of Mississippi, Inc.,
249 NLRB 775 (1980); Arnoldware, Inc., 129 NLRB 228
(1960).
The General Counsel also argues that the discontinua-
tion of the printing and springing operation was a mere
subterfuge to rid Respondent of the Union's most active
adherents. This argument is not unpersuasive, particular-
ANJA ENGINE:F.RINCi CORPORATION 1095
ly in light of the shortsightedness of Respondent in fail-
ing to foresee the difficulties which it immediately en-
countered and the fact that the printing and springing
work is now being satisfactorily performed in Respond-
ent's plant as a result, simply, of more stringent quality
control safeguards. However, Respondent presented
abundant evidence indicating that timely complaints from
substantial customers prompted the transfer of the work
which, the record abundantly shows, was of inferior
quality. While hindsight has shown Respondent's busi-
ness decision to have been myopic, nevertheless, it is not
beyond probability that the severity of the problem
which Respondent perceived, and which would have po-
tentially resulted in the loss of a significant portion of
Respondent's business, mandated a hasty business deci-
sion which, as it turned out, was ill-conceived. Nor is it
appropriate to substitute the business judgment of the
trier of fact, necessarily predicated on hindsight, for that
of Respondent. FPC Advertising, Inc., 231 NLRB 1135,
1136 (1977).
6. The warning notice to Conrady
I credit the testimony of leadlady Candelaria and em-
ployee Margaret Acosta and find that on frequent occa-
sions in early June Conrady would enter Department 29
and talk to employees who were on duty. Conrady's tes-
timony indicates that she was well aware that she was
being closely watched. Indeed, Conrady acknowledged
that as early as June I she realized that Candelaria in-
tended to give her a verbal warning for entering the de-
partment and therefore felt it necessary to proffer the
excuse that she intended to leave immediately.
I find that the record evidence fails to establish that
the warning notice to Conrady was discriminatorily mo-
tivated. Rather, it appears that Respondent was exceed-
ingly permissive regarding Conrady's breach of company
policy and that, as her conduct on June I demonstrated,
Conrady was cognizant of the fact that she should not
have been in Department 29. Thus, had Conrady be-
lieved that it was permissible for her to engage in such
conduct, it appears likely that she would not have react-
ed in such a defensive manner as Candelaria approached.
In the absence of convincing evidence that other em-
ployees had been permitted, with impunity, to engage in
conduct similar to that of Conrady and with equal or
greater frequency, I conclude that the General Counsel
has failed to sustain this allegation of the complaint.l4
' At the conclusion of the hearing on June 5, 1980. the General
Counsel, on rebuttal, sought to inquire of Conrady the names, (tales, and
other pertinent data. taken from Conrady's notes which she maintained.
purportedly showing that other employees wsere not given sWarning for
similar or comparable conduct I permitted the General Counsel to make
an offer of proof il this regard, which I rejected, o the basis that the
testimony sought to be adduced from Conrady was ntimely and should
have been properly presented during the General Counsel's case in chief:
and that to permit such evidence would have necessarily resulted in still
another continuance of the hearing in order o permit Respondenli to
rebut such testimony through leadlady Candelaria who was then on laca-
tion and unavailable to testify I find nto merit in the General Counsel's
argument that he was not sufficiently apprised of the reason for the iiu-
ance of the June 15 warning letter to Conrady until Respondent preseitn-
ed its defense, and that herefore such aforementioted rebuttal eidele-
was timely. as the warning letter on its face is explicit
7. The separation of Crosmer and Rider
I find that the separation of Crosmer and Rider was
not discriminatorily motivated. Although Crosmer and
Rider denied that they conversed more than usual imme-
diately before and after the election, I credit the testimo-
ny of Candelaria, Moore, and Acosta who observed the
two employees engaging in what they characterized as
excessive conversation. Upon verbally warning Crosmer
and Rider to no avail, as Candelaria credibly testified, I
find that Respondent's subsequent conduct in separating
the two employees was not violative of the Act and I
shall dismiss this allegation of the complaint.
8. The discharge of Betty Hoffman
It is clear that Betty Hoffman was initially given a
leave of absence from May 18 until August 20, in ac-
cordance with established company policy. Moreover,
the record shows, and I find, that at no time did Hoff-
man or her husband effectively request an extension of
this leave of absence. Further, it is clear that Hoffman
had not been advised that such a request was necessary.
Hoffman was considered to have terminated by failing
to timely return from her leave of absence and the
record shows that Respondent so notified the Union of
this fact during the preelection conference on August 30.
The record evidence discloses that Hoffman's discharge
was occasioned by a strict application of Respondent's
leave of absence policy which, I find, was not discrimin-
atorily applied to Hoffman. Moreover, it is significant,
and I find, that the record fails to demonstrate that, prior
to Hoffman's discharge, Respondent knew or suspected
that Hoffman was a union adherent or intended to vote
in the election. Indeed, during virtually the entire union
campaign, Hoffman had not worked at the plant, and on
the limited occasion she conversed with supervisors or
members of management during her leave of absence,
neither the Union nor the forthcoming election was men-
tioned. While the General Counsel would argue that Re-
spondent was cognizant of Hoffman's union activity in
1977, and therefore that Respondent would necessarily
assume that Hoffman's prounion sympathies would con-
tinue, it is equally probable to conclude that, as Vice
President Moore testified, Hoffman's subsequent involve-
ment in company-sponsored activities evidenced contrary
resolve on the part of Hoffman. Moreover, contrar to
the apparent position of the General Counsel, the record
does not demonstrate that Setsuko Wyman somehow
became aware of Hoffman's prounion sympathies prior
to the election and reported this to Respondent.
On the basis of the foregoing, I find that the record
evidence fails to demonstrate by the requisite preponder-
ance of evidence that Hoffman's discharge was violative
of Section 8(a)(3) of the Act. Therefore, I shall dismiss
this allegation of the complaint.
C. The Election Objections
The election petition herein was filed on May 21, and
objections to the election, held on August 31. were
timely filed. The election objections consolidated for
hearing herein parallel certain complaint allegations dis-
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cussed above. As found herein, the unlawful activity en-
gaged in by Respondent; namely, the unlawful layoff of
four employees on May 17, and the May 14 memoran-
dum to employees instructing them to report on the
union activity of other employees or union representa-
tives, occurred prior to the filing of the petition. There
being no unfair labor practices occurring subsequent to
the filing of the petition, I therefore find the election ob-
jections to be without merit. Accordingly, I shall recom-
mend that the Board certify the results of the election.
CONCLUSIONS 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, by instructing employees to report on
the union activity of union representatives or other em-
ployees, has violated Section 8(a)(1) of the Act.
4. Respondent, by laying off employeee Jean Crosmer,
Dorothy Conrady, Gertrude Rider, and Mary Bowser
has violated Section 8(a)(3) and (1) of the Act.
5. Except as found above, Respondent has not engaged
in other unfair labor practices as alleged.
6. Following the filing of the representation petition
on May 21, Respondent has not engaged in conduct
which would warrant setting aside the election held on
August 31 and the direction of a second election.
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 other unlawful
conduct, and that it post an appropriate notice, attached
hereto as an Appendix.
It is further recommended that Respondent make
whole employees Jean Crosmer, Dorothy Conrady, Ger-
trude Rider, and Mary Bowser for any loss of pay as a
result of the discrimination against them and reinstate
them to their former positions without loss of seniority
or other benefits to the extent that Respondent has not
already done so. Said backpay is to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]