A.P.F. Electronics, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1981

257 N.L.R.B. 488 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A.P.F. Electronics, Inc. and Corso Palenzuela. Case
29-CA-8068
July 31, 1981
DECISION AND ORDER
On April 8, 1981, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and brief and has decided to
affirm the rulings, findings,' and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, A.P.F. Elec-
tronics, Inc., Queens, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law
Judge: This case came on for hearing before me at
Brooklyn, New York, upon an unfair labor practice com-
plaintt issued by the Regional Director for Region 29,
which alleges that Respondent A.P.F. Electronics, Inc.,2
violated Section 8(a)(l) and (3) of the Act. More particu-
larly, the complaint alleges that Respondent directed em-
'The principal docket entries in this case are as follows:
Charge filed herein by Corso Palenzuela, an individual, against Re-
spondent on June 9, 1980: complaint issued by the Regional Director on
July 17, 1980; answer filed by Respondent on August 5. 1980 hearing
held in Brooklyn, New York, on March 2, 1981; briefs filed with me by
the General Counsel and Respondent on or before March 30, 1981.
2 Respondent admits, and I find, that it was a New York corporation
which maintains a place of business in Queens, New York, where it is
engaged in the service and repair of calculators and other related elec-
tronic devices which it manufactures. During the preceding year, it
shipped from its Queens, New York, place of business directly to points
and places outside the State of New York goods valued in excess of
S50,000. Accordingly, Respondent is an employer engaged in commerce
within the meaning of Sec. 2(2), (6), and (71 of the Act. Local 327, Amal-
gamated Clothing and Textile Workers Union. AFL-CIO-CLC, is a
labor organization within the meaning of Sec. 2(5) of the Act.
257 NLRB No. 68
ployees to cease engaging in activities on behalf of Local
327, Amalgamated Clothing and Textile Workers Union,
AFL-CIO-CLC (herein called the Union or Local 327),
placed the concerted protected activities of its employees
under company surveillance, threatened to discharge em-
ployees and to place them under additional supervision
in reprisal for their union and concerted protected activi-
ties, and denied bathroom privileges to the Charging
Party in reprisal for his concerted protected or union ac-
tivities. Respondent points out that it has long been an
organized firm with good relations with the Union repre-
senting its employees, denies the specific conduct attrib-
uted to it, and asserts that Patrick Callendar, to whom
the unlawful activity set forth in the complaint is attrib-
uted, was not a supervisor within the meaning of the Act
until June 6, 1980, before which date much though not
all of the unlawful activity set forth in the complaint
took place. Upon these contentions, the issues herein
were joined.3
I. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent operates a shop in Queens where it serv-
ices electronic calculators and other devices which it
manufactures and has received back from customers for
repair. At the time of the events in this case it employed
about 35 people at this location, all of whom were repre-
sented by Local 327. Until June 6, 1980, Ronald Sartini
was the manager of this shop. Patrick Callendar, whose
status until that date is in issue, was second in command.
On June 6, Sartini left the employ of Respondent and
Callendar took his place as manager.
On or about March 14, 1980, Local 327 concluded a
new collective-bargaining agreement with Respondent,
replacing a previous agreement which had expired. The
Charging Party, employee Jesus Ibarra, incumbent Shop
Steward Bob Simmons, and Union Business Agent
Lionel Otero were on the negotiating committee which
concluded this agreement. Several months before the ne-
gotiations on this contract began, Sartini had occasion to
speak with Palenzuela and Ibarra while they were in the
men's room. Sartini had just discovered that one of the
toilets had been broken. He asked these employees if
they were holding a union meeting and accused them of
being agitators who were trying to incite the other em-
ployees in the shop. Sartini denounced Ibarra as a trou-
blemaker and called Palenzuela a politician. He com-
plained to Ibarra that whatever Palenzuela contrived to
do, Ibarra would go along with, and referred to Ibarra as
Palenzuela's "henchman." He also told Ibarra not to use
the bathroom or else he would be fired and would re-
ceive an unfavorable reference.
A short while before the commencement of negotia-
tions, Palenzuela and Ibarra drew up a typewritten list of
union proposals. They posted copies on the wall and cir-
culated them throughout the shop, obtaining the signa-
tures of about 20 employees in support of their demands.
During negotiations, Respondent Secretary-Treasurer
Martin Lipper inquired of the union negotiating commit-
tee who had circulated the list of union proposals in the
: Errors in the transcript have been noted and corrected
488
A.P.F. ELECTRONICS, INC.
shop and commented that he was going to start "crack-
ing the whip." He was informed that all of the workers
in the shop were involved in formulating these proposals
and that no single individual was responsible.
About 6 weeks after the new contract was approved,
Ibarra and Palenzuela circulated in the shop a petition di-
rected to the Union which requested an election for shop
steward. After receiving the petition in the middle of
May, Otero asked Respondent for permission to conduct
such an election on company premises. Permission was
granted and an election was held on or about May 15.
The incumbent steward, Simmons, was reelected; Palen-
zuela was also a candidate and received about 10 votes.
Palenzuela and Ibarra testified that both before the ne-
gotiations and before the shop steward election, they
would talk from time to time with other employees con-
cerning the proposals which were being circulated or
about the forthcoming steward election. On several occa-
sions, they were told by Callendar to stop politicking.
On one occasion, Callendar told Ibarra that the Compa-
ny was fed up with the trouble that was occurring and
that it was going to "clean house." These instructions
from Callendar were frequently made on occasions when
Palenzuela was talking with Ibarra. Ibarra complained to
Callendar that Simmons was campaigning for reelection
as shop steward on company time and said that if there
was a rule against talking among employees, it should be
applied equally to all employees and not directed par-
ticularly to him and to Palenzuela.
Palenzuela credibly testified that Callendar frequently
followed him to the bathroom, accused him of holding
meetings in the bathroom, and threatened to fire him if
he continued to do so. On June 6, 1980, Callendar's first
day as shop manager, he suspended Palenzuela from
work for a week. On June 9, Palenzuela filed an unfair
labor practice charge, alleging harassment and an unlaw-
ful suspension. While the Regional Director did not find
cause to issue complaint concerning the suspension, the
complaint which he issued in this proceeding emerged
from the other portions of the charge filed on that date.
On July 9, Palenzuela complained to his business agent
that he was not allowed to make or receive any phone
calls at the shop including emergency calls. Otero spoke
to Callendar about this complaint and ironed out the
problem. Late in the day, Callendar came to Palenzuela
at his work station and criticized him for bringing a
seemingly trivial matter to the attention of his business
agent instead of taking it up directly with Callendar. He
told Palenzuela that complaining to the Union would
profit him nothing, that Callendar would decide how
things would be run in the shop, and then told Palen-
zuela that, from that point forward, he would count Pa-
lenzuela's work4 and would fire him if his work did not
measure up to standard. He also told Palenzuela not to
use the bathroom facilities thereafter.
Eventually, both Palenzuela and Ibarra quit their em-
ployment with Respondent. However, no suggestion has
been made that these terminations in any way violated
the Act.
'Palenzuela worked in the s'hipping department packing calculators
which had been repaired and were being returned to customers.
II. ANALYSIS AND DISCUSSION
A. The Supervisory Status of Patrick Callendar
There is no dispute that, after June 6, 1980, Patrick
Callendar, as shop manager, was a supervisor within the
meaning of the Act. Accordingly, any acts and state-
ments by him occurring after that date are legally attrib-
utable to Respondent. However, Respondent denies vi-
carious responsibility for any of Callendar's words and
deeds before June 6, when he was employed as assistant
shop manager. Before January 1980, Callendar was a
bargaining unit employee and a union member. In De-
cember 1979, he wrote a letter to the Union in which he
resigned as a member because he was going to become a
supervisor. Until June 6, 1980, Callendar was paid a
weekly salary of $280 in a plant where unit employees
were hourly rated and were receiving wages ranging
from $3.10 to $4.70 per hour. Upon his promotion to
shop manager, his salary was raised to $336 per week.
Callendar was second in command at the shop, received
no additional compensation for overtime, and did not
punch in and out on the timeclock. I credit testimony in
the record that, during this period of time, Callendar
hired some employees and suspended at least one. He
could and did authorize employees to take time off and
could adjust grievances, such as disputes concerning
errors on timecards. He regularly assigned work to em-
ployees and was empowered to maintain discipline and
order in the shop. Were Callendar not a supervisor
within the meaning of the Act during the period in ques-
tion, there would have been approximately 30-35 em-
ployees. This ratio is extreme and argues strongly that
additional personnel were also supervisors. As Callendar
was second in command, he could hire and fire, enforce
discipline, grant time off, and adjust grievances, and as
he was making an income which far exceeded the high-
est wages paid to bargaining unit personnel and bore the
title of assistant manager, I conclude that he was at all
times material herein a supervisor within the meaning of
Section 2(11) of the Act.
B. The Violations Alleged
There is little doubt that both Palenzuela and Ibarra
had long been regarded by Respondent as activists who
posed a threat to the placid and tranquil relationship
which existed in the shop between Respondent and the
Union. Palenzuela, Ibarra, and the employees who fol-
lowed their lead objected to what they felt was an exces-
sively cozy relationship between Respondent and the
Union. Without delving into the merits of their objec-
tion, it should be noted that they were unhappy about as-
serted failures on the part of the incumbent shop steward
to press grievances in an aggressive manner. The record
also reflects that, after 1-1/2 years of employment, Ibarra
was receiving a wage rate under the union contract
which was no higher than the statutory minimum wage.
Whatever the reason for their discontent, it was clear
that some employees were disenchanted with both the
Company and the Union and that Palenzuela and Ibarra
were regarded by Respondent as the spokesmen for this
faction. For their efforts they were tagged by the former
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant manager with such epithets as "agitator," "trouble-
maker," "henchman," and "politician." By July 9, when
several of the unfair labor practices alleged in this case
took place, Palenzuela had confirmed Respondent's as-
sessment of him as a troublemaker by filing charges with
the Board. Ibarra was threatened with discharge on one
occasion for his activities. Upon learning of the petition
which he and Palenzuela circulated among employees in
support of new collective bargaining demands, Lipper
candidly stated at the negotiations that he would have to
start cracking the whip. This evidence clearly establishes
that Palenzuela and Ibarra were unfavorably regarded by
Respondent and that their poor standing was the result
of their in-house activities on behalf of dissident employ-
ees.
Callendar admits watching both employees when they
went to use the men's room. I credit testimony that he
repeatedly followed them to check up on their activities.
He and his predecessor candidly stated that they suspect-
ed that they were holding union meetings at that spot.
While management has the unquestioned right to insist
that employees devote working time to work, it cannot
indulge certain nonwork related activities of its employ-
ees, such as discussing sports during worktime, and
single out other private on-the-job conversations for cen-
sure or prohibition. Nor can it insist that one candidate
for union office confine his campaign activities on com-
pany premises to personal time while permitting free
reign to his opponent to campaign at will throughout the
shop. I credit the testimony of Palenzuela and Ibarra that
such an uneven application of company-imposed restric-
tions was directed at them. Accordingly, this interfer-
ence with their concerted protected and union activities
violated Section 8(a)(1) of the Act. 5
On July 9, Callendar confronted Palenzuela with the
fact that the latter had contacted his union representative
to voice a grievance about the making and receiving
phone calls on the job.6 Palenzuela had a right under the
Act to lodge such a complaint with his business agent.
When, as a result of this action, Callendar became
piqued, threatened him with increased supervision and
discharge, and then denied him bathroom privileges, he
violated Section 8(a)(1) and (3) of the Act.
Upon consideration of the foregoing findings of fact
and the entire record herein considered as a whole, I
make the following:
I While there is testimony in the record that, during the winter of
1979-80, the Respondent was experiencing vandalism in its men's room,
there was no basis for any suspicion that Palenzuela and Ibarra were re-
sponsible for this damage. Its surveillance of their use of the toilet facili-
ties was long after the vandalism came to an end and was tied to their
expressed fear that they were using this location as the site of "agitation"
for improvements in the shop over and above what their Union was will-
ing to fight for.
6 Respondent attempted to establish that the Company in fact permit-
ted Palenzuela to make and receive phone calls and hence that his com-
plaint to Otero on this score was without merit. The fact that a grievance
may be groundless does not in any way affect the protected right of an
employee to bring it to the attention of his union representative. for the
merits of a grievance in no way affect its character as union activity.
CONCLUSIONS OF LAW
1. Respondent A.P.F. Electronics, Inc., is now, and at
all times material herein has been, an employer engaged
in commerce and within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local 327, Amalgamated Clothing and Textile
Workers Union, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By denying employees bathroom privileges in
reprisal for their union activities, Respondent violated
Section 8(a)(3) of the Act.
4. By the acts and conduct set forth in Conclusion of
Law 3; by directing employees to cease engaging in the
union activity of campaigning for shop steward; by keep-
ing the union activities and the concerted protected ac-
tivities of employees under company surveillance; and by
threatening to discharge employees because of their
union activities and their concerted protected activities,
Respondent violated Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices have a close, in-
timate, and adverse effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has committed unfair
labor practices, I will recommend that it be required to
cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes and policies
of the Act. I will recommend that Respondent be re-
quired to post a notice advising its employees of their
rights and of the results in this case.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I make the following recom-
mended:
ORDER 7
The Respondent, A.P.F. Electronics, Inc., Queens,
New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Directing employees to cease engaging in the union
activity of campaigning for shop steward.
(b) Keeping the union activities and the concerted pro-
tected activities of employees under company surveil-
lance.
(c) Threatening to discharge employees and denying
employees bathroom privileges because they have en-
gaged in union activities or concerted protected activi-
ties.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
490
A.P.F. ELECTRONICS, INC.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Post at its Queens, New York, shops copies in Eng-
lish and in Spanish of the attached notice marked "Ap-
pendix."8 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by a representative of Respondent, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including 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.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity 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 or-
dered us to post this notice.
WE WILL NOT direct employees to cease engag-
ing in the union activity of campaigning for shop
steward.
WE WILL NOT keep the union activities or the
concerted protected activities of our employees
under company surveillance.
WE WILL NOT threaten to discharge employees
and WE WILL NOT deny bathroom privileges to em-
ployees because they have engaged in union activi-
ties or in concerted protected activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of rights guaranteed to them by Section 7
of the National Labor Relations Act. These rights
include the right to form, join, or assist labor orga-
nizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
other concerted activities for their mutual aid and
protection.
A.P.F. ELECTRONICS, INC.
491