Enterplastics Industries, Inc.

National Labor Relations Board - Board Decisions

May 5, 1975

217 N.L.R.B. 742 (N.L.R.B. 1975)

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Enterplastics Industries, Inc. and International Long-
shoremen's and Warehousemen 's Union, Local 6 and
Anthony Currin, andWarehouse, Processing & Al-
lied Workers, Local No. 6, International Long-
shoremen 's and Warehousemen's Union. Cases
20-CA-8634, 20-CA-8834, 20-CA-8842, and
20-RC-11332
May 5, 1975 -
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 25, 1974, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and
conclusions' of the Administrative Law Judge and to
adopt her recommended Order.
Like the Administrative Law Judge, we find the evi-
dence insufficient to establish that Currin was unlaw-
fully discharged.
Currin was hired July 26, 1973, as a probationary
employee, and laid off on August 14 for business rea-
sons. He appeared at the representation hearing on
October 12 and 24, where he sat with the union repre-
sentatives. On October 29, he was called back to work.
He again attended the representation hearing on Octo-
ber 31 at the side of the union representatives. On
November 1, he was made a permanent employee,
which entitled him to a raise in excess of 25 cents an
hour. On November 2, he received notice that he was
to be laid off temporarily on November 8, presumably
for economic reasons. On November 5, he was ter-
minated.
These are the critical facts. If Respondent had any
animosity against Currin for union reasons it would
have had to stem from Currin's appearances at the
representation hearing on the side of the Union be-
I We hereby correct the inadvertent error in fn 8 of the Administrative
Law Judge's Decision by changing "1973" to read "1972 " This error in no
way affects the results in this case
2 Since the Adnumstrative Law Judge found that Respondent had coer-
cively interrogated employees and unlawfully made promises of benefit to
employees and required that Respondent cease and desist from such activi-
ties, we find it unnecessary to consider the issues of whether Cid unlawfully
interrogated employees; whether Turner or Ford unlawfully made promises
of benefit, or whether Lee's remark "Why did you do Turner like that?"
violated the Act since such a finding would not affect our Order
tween October 12 and 31 or for some activity predating
that. Yet, in the face of whatever activity Currin had
engaged in to Respondent's knowledge, Respondent
chose to recall this probationary employee who was on
layoff and give him permanent status and a raise. This
is not the action of an employer who was motivated to
discharge Currin because of his prior demonstrated
union adherence. And no intervening circumstance ap-
pears between November 1, when Currin was given
permanent status and a raise, and November 5, when
he was discharged 'following plans to lay him off for
business reasons, which might give rise to an inference
of an unlawful motivation for the discharge.' Unable
therefore, to find an unlawful motivation for the dis-
charge, we are dismissing the complaint insofar as it
alleges that the discharge violated the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Enterplastics Industries, Inc., San Fran-
cisco, California, its officers, agents, successors, and
assigns, shall take the action set forth in the said recom-
mended Order.
MEMBER FANNING, dissenting in part:
The Administrative Law Judge found that the Gen-
eral Counsel failed to meet its burden of proving that
Currin was discharged because of his union activities.
I find, however, that sufficient evidence was presented
to prove that the discharge was discriminatory.
As stated by the Administrative Law Judge, the evi-
dence adduced in support of the allegation of the dis-
criminatory discharge is (1) Respondent's general anti-
union campaign; (2) Turner's general threat on
September 5 that employees would be laid off if they
selected the Union as their collective-bargaining repre-
sentative; (3) the August 31 interrogation of Currin by
Turner as to his union sympathies; (4) Turner's telling
Currin on August 31, "Don't you vote for the union
and don't you tell nobody I told you that"; (5) Turner's
September 7 threat to Currin, "Well, you know, we're
all going to be out of jobs now"; (6) Currin's visible
assistance given to counsel for the Union at the October
hearings on the challenges herein; (7) Ward's October
29 remark to Currin, as he was making notes on infor-
mation given by Ward, that he didn't have to tell the
Union what she said.
3 The fact that Plant Manager Ward promised to "fix up the list" when
complaints were made on September 24 because seniority had not been
followed in the prior layoff is hardly a meaningful commitment or a signifi-
cant circumstance attending the termination of Currm
217 NLRB No. 98
ENTERPLASTICS INDUSTRIES, INC.
The Administrative Law Judge found that these
facts were "certainly enough" to raise suspicions as to
the discharge that Currin engaged in union activities of
which Respondent had knowledge ; that Respondent
clearly suspected him of engaging in union activity at
an even earlier date; that he was singled out and called
into the office , asked to express an opinion as to Re-
spondent 's antiunion campaign material (found to be
violative of Section 8(a)(1) of the Act); that he was
again singled out as the recipient of Turner's threat that
all employees would be laid off; and that the unex-
plained November 5 termination appears "somewhat
abrupt."
Since Respondent's participation in the proceeding
was limited to the filing of an answer to the con-
solidated complaint and attempts to gain a continuance
of the hearing in this matter , the General Counsel's
evidence stands unrebutted . I find no evidence in the
record of any reason why Currin was discharged other
than the circumstantial evidence which I find sufficient
to establish a prima facie case that the discharge was
in violation of the Act . One can , of course, speculate,
as the Administrative Law Judge has done, that Re-
spondent had some adequate and nondiscriminatory
reasons for "abruptly" changing Currin's employment
status from an employee about to be laid off presuma-
bly for economic reasons to a discharged employee.
Respondent, however, introduced no such evidence,
though it had the burden to do so, if it were to rebut
the General Counsel's prima facie case.' Considering
the fact that Currin was laid off permanently while
other less senior employees were retained, in the light
of Respondent 's promise to Currin and other em-
ployees that seniority would be followed in such mat-
ters, and in the light of the evidence demonstrating
Respondent 's hostility to Currin 's activities and its at-
tempts to discourage and restrain such activities, I am
satisfied that the evidence supports a finding , which I
would make , that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Currin.
4 See, e .g, National Automobile and Casualty Insurance Co., 199 NLRB
91 (1972).
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge: These
consolidated cases were tried before me in San Francisco,
California, on April 4, 1974.' The charge m Case
' Except for the filing of an answer to the consolidated complaint and
attempts to gain a continuance of the hearing in this matter , Respondent did
not participate in the proceedings herein At the outset of the hearing, Garry
Mathiason, Esq., of the law firm of Littler, Mendelson and Fastiff of San
743
20-CA-8634 was filed by International Longshoremen's and
Warehousemen 's Union Local 6, herein called the Union, on
October 1, 1973, and amended on February 21, 1974. The
charge in Case 20-CA-8834 was filed by the Union on
December 18, 1973 , and amended on January 15 , 1974, and
February 21, 1974. The charge in Case 20-CA-8842 was filed
by Anthony Currin , an individual, on December 19, 1973,
and amended on February 26, 1974 . Copies of all charges and
amended charges were timely served on Respondent. The
consolidated complaint issued February 27, 1974, alleging
that Respondent had violated Section 8(a)(1) and (3) of the
National Labor Relations Act. The petition in Case
20-RC-11332 was filed by the Union on April 18, 1973.
Pursuant to a stipulation for certification upon consent elec-
tion approved on August 20, 1973 , an election by secret ballot
was conducted on September 7, 1973 , which resulted in 8
ballots for and 5 against the Union , with 12 challenged bal-
lots. On March 27, 1974, the Regional Director determined
that the challenged ballots of Edna Yvonne Hill, Florizel
Sarmento , 2 Aida (Dominguez) Yagin ,2 Erlinda Cabanilla,2
Robin Caplan Kimeldorf,3 and Jesus Terrado raised sub-
stantial and material issues of fact requiring hearing and
ordered that Case 20-RC-11332 be consolidated for purposes
of hearing with Cases 20-CA-8634, 20-.CA-8834, and
20-CA-8842.
The basic issues in the unfair labor practice cases herein are
(1) whether Hill, Cabanilla, Yagin, Sarmento , Terrado, and
Silfa Maria Acedillo were terminated or "permanently laid
off' because of union activities; (2) whether certain conduct
of Respondent is violative of Section 8(a)(1) of the Act, and
(3) whether Anthony Currin was discharged because he en-
gaged in union activities . As to the representation matter, if
the employees named above are found to have been ter-
minated or permanently laid off because of union activities,
that finding will be dispositive of the challenges to their bal-
lots. If they are found not to have been discriminatorily ter-
minated or laid off, the issue will be whether they were tem-
porarily or permanently laid off. This latter is the sole issue
as to the Robin Kimeldorf challenge.
Upon the entire record , including my observation of the
demeanor of the witnesses, and after due consideration of the
brief filed by the General Counsel, I make the following:
Francisco , California , made a limited appearance on behalf of Respondent
for the sole purpose of moving for a continuance of the hearing to allow
Respondent an opportunity to prepare its defense. Said motion was denied,
and counsel withdrew . Whereupon Respondent 's plant manager made an
appearance on behalf of Respondent, sat through the testimony of General
Counsel's first witness but participated in no manner, and then physically
withdrew from the hearing room ' Counsel for Respondent filed an interim
appeal with the Board from my denial of the motion for continuance, which
appeal was denied subsequent to the closing of the hearing Thereafter, upon
a motion by counsel for Respondent , and for good cause shown, an order
issued herein reopening the record in this matter and setting a further
heanng. Counsel for General Counsel submitted a motion for special per-
mission to appeal to the Board from said order . On May 6,1974, Respond-
ent withdrew its motion to reopen the record, on May 7, 1974 , counsel for
General Counsel withdrew his motion for special permission to appeal from
said order, and on May 14, 1974, an order issued closing the record in this
matter.
2 Name appears as corrected in the consolidated complaint and at the
hearing.
3 Name appears as corrected at hearing
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTION
Respondent is a California corporation with a place of
business in San Francisco, California, where it is engaged in
the manufacture and sale of plastic pens and plastic trays.
During the year preceding the issuance of the complaint
herein, Respondent, in the course and conduct of its business
operations has sold and shipped products valued in excess of
$50,000 directly to purchasers located outside the State of
California.
Upon the foregoing facts, which are admitted by Respond-
ent, I find that Respondent is, and at all times material herein
has been, an employer engaged in commerce and in opera-
tions affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II LABOR ORGANIZATION-
The complaint alleges, Respondent admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
11 Supervisory Status of Sanders Ford and James Lee
The complaint alleges, and Respondent denies,4 that at all
times material Sanders Ford was plant manager and James
Lee was foreman and that both of them were supervisors of
Respondent within the meaning of Section 2(11) of the Act.
The evidence shows that Sanders Ford was the plant
manager immediately preceding Al Turner, an admitted
supervisor . According to the uncontroverted testimony of
Edna Hill, he was superior to Respondent 's other supervisory
personnel . He was in complete charge of the shop and made
the ultimate decisions as to what work would be done on a
given day and he told employees what to do. He was also the
person who laid off pen assembly employees on August 14,
1973.5 In these circumstances , I find that at the time of the
incidents herein in which he was involved , Sanders Ford was
a supervisor of Respondent within the meaning of Section
2(11) of the Act.
Anthony Currin testified that after Al Turner was pro-
moted to plant manager on or about August 17 , 1973, James
Lee became his, foreman . Lee told employees what machines
to use, what work to perform , when to take breaks, and when
to return from breaks . • He was over the three to four em-
ployees in the machine shop on that particular shift. He did
the paper work for the shop , gave employees time off, and was
the person who told Currin he was laid off. Accordingly, I
find that he had the authority to responsibly direct employees
and, at the time of the incidents herein in which he was
4 These supervisory allegations of the complaint are found in subpars.
V(d) and (e). Respondent's answer admits, intera/ia, par IV (the allegation
as to labor organization), and subpars V(a), (b), and (c) The answer denies,
inter aka, subpars IV(d) and (e) Since par. IV was already admitted and
there are no subpars IV(d) and (e), it is apparent that a typographical error
occurred, Respondent having intended to deny subpars. V(d) and (e), I have
so treated it General Counsel was put on notice at the hearing that I deemed
the supervisory status of Ford and Lee to be denied and evidence was
adduced in support of their alleged supervisory status
All dates hereinafter are in 1973 unless otherwise stated
involved , was a supervisor within the meaning of Section
2(11) of the Act.
The Layoff of the Pen Assembly Employees and Related
8(a)(1)
On August 1, the Union signed a request to proceed in- the
representation matter herein. Thereafter in early August at
the end of the shift, Plant Manager Sanders Ford called a
meeting of all the employees in the pen assembly department.
He said it was not true that when the new machines were
received they would be fired. He said when the machinery
arrived, the pen assembly employees would work in three
shifts instead of two and there would be a smaller number of
persons on each shift. He did not say whether the work force
would be larger or smaller. He said some of the employees
had been complaining about a lack of supplies, such as gloves
and aprons, and that some employees wanted a dental plan.
Ford said all of this would be taken care of.
On August 14, Ford laid off all the employees in the pen
assembly department because the supply of pen barrels had
been exhausted.6 Ford said the barrels were on order and
when they arrived, which would be in 2 or 3 days, the em-
ployees would be called back to work.
On August 20 or 21, while Kimeldorf was on layoff status,
she was notified that the plant manager was having a meeting
the next morning. The record is unclear as to all of the
persons present but in response to an inquiry as to whether
other employees from the pen department were present,
Kimeldorf testified that Erlinda (Cabanilla) and Ida (proba-
bly Aida Yagin) were there. Turner spoke to the employees.
He said he was the new plant manager, that they were getting
new equipment in, and that' when it was operative there
would be three shifts and all of the employees would be called
back to work. He further stated that there would be a new
lunchroom, AM/FM radio, and a new medical and dental
plan. Some of the employees who were then working a 37-
1/2-hour week wanted a 40-hour week. Turner said he could
probably get that too. He said if the Union got in there would
be certain job codes, that one would have to take a test in
order to operate a machine or do, a certain job and if one
couldn't pass the test, Respondent would have to get someone
who could. On August 24 and 25, four of the pen assembly
employees, including Hill, were called in to pack trays. Hill
has not worked at Respondent's since August 25.' On Sep-
tember 6, the day before the representation election herein,
Hill was notified by letter that she was permanently laid
off.,
There is no evidence in the record concerning the alleged
termination or permanent layoff of Acedillo, Cabanilla, Ya-
gin, Terrado, and Sarmento. It appears from General Coun-
sel's brief that he is relying upon the following testimony of
Edna Hill to establish these discharges.
6 This is from the testimony of Edna Hill and Robin Kuneldorf. Kimeldorf
testified that she was told of her layoff by a Mr. Taylor whom she referred
to as plant manager. Hill, however, testified that Ford was in charge of the
shop and Taylor, who did the hiring , was in personnel . I credit Hill in this
regard
I There is no evidence in the record as to whether the other five employees
named in par 7 of the consolidated complaint were ever recalled.
6 Hill had been employed by Respondent in the pen assembly department
since November 1973.
11
ENTERPLASTICS INDUSTRIES,-INC.
Q.^ And were you in temporary layoff status on that
date?
A. Well, that date I was-no, it was permanent.
Q. I see. When did it become permanent?
A. September 6.
Q. The day preceding the election?
A. Yes.
Q. And you were informed?
A, By letter, yes.
Q. Did you, nevertheless, attempt to vote in the elec-
tion on the 7th?
A. I did.
Q. And was your ballot accepted, or was it chal-
lenged?
A. It was challenged.
Q. Fine. And did you have any personal knowledge of
whether this occurred to any of the other ladies in the
pen assembly department?
A. Yes, I did have knowledge.
Q. I see. And you were present when this occurred?
A. I didn't hear you.
Q. Never mind. Strike it.
I find this testimony insufficient to establish that Cabanilla,
Yagin, Sarmento, Terrado, and Acedillo were in fact ter-
minated or permanently laid off. Accordingly, I conclude
that General Counsel has failed to make a prima facie show-
ing that they were discharged or permanently laid off on
September 5, in violation of Section 8(a)(3) of the Act. As to
the termination or permanent layoff of Edna Yvonne Hill,
there is no evidence that she engaged in any union activity
prior to her termination nor is there any evidence that Re-
spondent knew or suspected she had engaged in such. It
appears that General Counsel's theory is that all of the em-
ployees in the pen assembly department were permanently
laid off 1 or 2 days before the election in order to undermine
the Union's support and affect the outcome of the election.
That, however, is not the state of the record. The record
shows one employee-Edna Hill-who was permanently laid
off for some unspecified reason and no evidence that she
engaged in any union activity. General Counsel has totally
failed to meet his burden of proof. Accordingly, I conclude
that the permanent layoff of Edna Yvonne Hill did not violate
,Section 8(a)(1) and (3) of the Act. Furthermore, since the
consolidated complaint contains no allegations as to the
above statements by Ford and Turner and in the absence of
Respondent's participation in the hearing herein, it cannot be
found that Respondent was put on notice or that the matter
was fully litigated. Therefore, I make no findings as to these
or other statements not alleged in the complaint.
The Discharge of Anthony Currin, Threats, and Coercion
Anthony J. Currin began his employment with Respond-
ent on July 26, 1973. Shortly thereafter, he was laid off. On
August 31, while he was in layoff status, Currin came in to
Respondent's office to inquire as to when he would be re-
called. He talked to Plant Manager Al Turner. Foreman Roy
Freeman was also present for a portion of the conversation.
Currin was given two letters. One, dated August 28 and
signed by Al Turner, read:
To: ANTHONY CURRIN
745
On Friday, September 7, 1973, you will make a very
important decision regarding whether to be represented
by a union or not. I feel it is my duty to give you some
very frank financial information about Enterplastics
which may help you make that decision. Unions are very
good at making promises about what they will do for
you. However, I am sure you recognize that these pro-
mises are only as good as the company's ability to make
them a reality. Our company has extreme financial prob-
lems. In our financial report of July 31, 1973, we showed
a loss of $300,000.00. Our current income is linked to
contracts with the government which provide a fixed
rate return, while our costs continue to increase. Also,
the fact that we are working on government contracts
makes it impossible for us to change our prices.
Quite frankly, it is impossible for us to remain in
business if our operating costs increase substantially. It
has always been Enterplastics' philosophy to pay each of
you the maximum the company can afford and still re-
main competitive. Certainly, this policy will continue.
Outside pressure from a union cannot create higher
wages or benefits when a company doesn't have the
ability to pay them. This pressure could very well, in my
opinion, cause the company to close down since such
demands could not be met. Another factor each of you
should recognize is that a union brings expenses with it,
such as possible arbitration and attorney's fees which,
apart from compensation, could seriously injure the fi-
nancial position of the company. Again, in my opinion,
these financial pressures could make it difficult for us to
stay in business.
Please don't feel that the future of this company has
no hope. We are working as hard as possible to make
Enterplastics a success and hopefully, our financial posi-
tion will improve in the future. At this time, we would
expect that our employees will share in that growth as
they have in the past. However, a union at this time, in
my opinion, could increase operating costs, which could
put the company out of business.
ENTERPLASTICS' FUTURE IS YOUR FUTURE
VOTE NOON SEPT. 7, 1973.
The other, dated August 31 and signed by Respondent's
president, Dr. Henry Lucas, Jr., read:
To: All Employees
I am sure most of you recognize the need for a
minority owned and operated manufacturing company
within the minority community which could provide
jobs and better the lives of the members of the com-
munity. For the past three years, we have directed our
effort toward building and developing such a business.
During this period, we have faced many problems and
setback for various reasons.
For the first time in the San Francisco area we have
a chance to build a sizeable minority manufacturing
company which could hire black, brown and yellow peo-
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pie, but once again, we are threatened with a possible
setback.
On September 7, 1973, you must decide whether En-
terplastics is to become a union or non-union shop. We
don't know anything about the racial policy of the
ILWU Local 6, but I am sure most of you know the early
history of trade unions in this country. There is no single
institution in this country which has discriminated more
against minorities than trade unions.
Discrimination is the single most cause of the poor
conditions of our communities and the problem we face
in acquiring jobs.
Re-evaluate your own personal experience as it relates
to the white control society we live in and decide your
vote on September 7, 1973.
Turner asked Currin to read the letters. When he finished,
-Turner asked Currin what he thought about it, to which
Currin replied "Right on." Turner then said "Don't you vote
for the Union, and don't you tell nobody I told you that."
Another employee, Duckworth, came into the office. Turner
gave Duckworth the same two letters to read and when
Duckworth finished, Turner asked him "What do you think
about these letters?" Duckworth said "I'm for whatever the
majority wants." Turner said, "Well, how do you know the
majority wants the Union?" Duckworth replied, "Well, you
know, I'm for the majority, anyway. Whatever the majority
wants is cool with me."
Considering the context of the letters, the interrogation of
Currin and Duckworth as to what they thought about the
letters was designed to induce them to reveal their views
regarding the Union. In this circumstance, and in view of
Respondent's strong antiunion campaign, the fact that they
were called into the office, that Turner was the plant
manager, and in the context of Turner's statement to Currin
that he was not to vote for the Union, I find that this interro-
gation had a coercive effect upon these employees and was
violative of Section 8(a)(1) of the Act. Spartus Corporation,
195 NLRB 134 (1972).
On September 5, Respondent had a meeting of its first- and
second-shift employees. Turner and Freeman were there
throughout the meeting. Turner distributed to the employees
some written questions and answers regarding the Union.'
He then said he had been to the union hall, that there were
over 200 people there, and there was no way Respondent's
employees could get a job. At about that time, Dr. Lucas
arrived. Turner said Dr. Lucas wanted to talk to them. Dr.
Lucas said the Union never did anything for him, that he had
been fighting for the black people and had been trying to get
jobs. He also said he had a dental program for everybody and
held up a sheet that had some information on it about a dental
program. 10 Lucas said he had to go and turned the meeting
over to Turner. Turner said, "I bet you if the Union comes
9 The questions and answers indicated Respondent 's opposition to the
Union. There are no allegations that this material was violative of Sec
8(a)(1) of the Act, and I make no findings in this regard.
10 No dental program was then in effect nor is there any evidence that the
possibility of such a program had been announced prior to Respondent's
preelection campaign.
in, I bet you we all get laid off."- Turner also distributed to
the employees some information on Respondent's financial
status.
Lucas' statement regarding a dental program was a clear
promise of benefit. The evidence shows that_a dental program
was not,mentioned by Respondent prior to August 1, when
the Union signed the request to proceed in the representation
matter herein. In these circumstances, and in view of Respon-
dent's antiunion campaign, specifically the context of that
particular meeting which was devoted solely to Respondent's
antiunion propaganda, I find that Lucas' statement that he
had a dental program for everyone constituted interference,
restraint, and coercion in violation of Section 8(a)(1) of the
Act. Mid-Ohio Automotive, Inc., 200 NLRB 680 (1972). I also
find violative of Section 8(a)(1) of the Act Turner's statement
"I bet you if the Union comes in, I bet you we all get laid off."
Swift Produce, Inc., 203 NLRB 360 (1973).
The election was held on September 7. On that same day
after the close of the election, Foreman James Lee walked
over to where Curnn was working and said, "Why did you
do Turner like that?" Currin assuming that he was talking
about the election, said, "You don't know how I voted."
Turner came up at this time and said, "Well, you know, we're
all going to be out of jobs now."
Viewed in its entire context, including the ambiguity of the
statement, I find the evidence insufficient to establish that
Lee's question constitutes interference, restraint, or coercion.
In-so finding, I note that Turner was not present during this
exchange and I therefore do not consider his statement as
part of the context. Therefore, notwithstanding Currin's as-
sumption that Lee was referring to the election, I find nothing
in the evidence to support this assumption. Furthermore,
Turner's appearance and remarks effectively prevented any
attempt Lee might have made to clarify his question so no
inference can be drawn from the fact that Lee said nothing
to negate Currin's expressed assumption that he was referring
to the election or any inference that he was attempting to
induce Currin to reveal how he voted in the election. Accord-
ingly, I conclude that Lee's remark was not violative of Sec-
tion 8(a)(1) of the Act.
In view of the timing-minutes after the ballot
count-the result of the election, eight for and five against the
Union, and my finding that Turner had previously threatened
that employees would be laid off because of their union activi-
ties, I find that Turner's remark that "We're all going to be
out of jobs now" constituted a threat of loss of employment
because employees had shown a preference for union repre-
sentation. Such statement is therefore violative of Section
8(a)(1) of the Act. ff
On September 24,-Currin, along with employees Jordan
and Roy Hirohama, went to the office of Plant Manager
Roberta Ward" and asked why she was not laying off em-
ployees in accordance with seniority. She said she planned to,
that she was going to "fix up the list."
Hearings were held on October 16 and 24 as to the chal-
lenges in the representation matter herein. Currin, along with
Hirohama and Jordan, sat with the Union and suggested
" There was a quick succession of plant managers in August and Septem-
ber. First Ford, then Turner, and finally Ward. Turner and Ward are admit-
ted supervisors
ENTERPLASTICS INDUSTRIES, INC.
certain questions to be asked by the Union's counsel. On
October 29, Currin was called back to work. On that day,
Ward gave him some information about some materials. As
she talked , Currin made notes as was his usual practice. Ward
said to him, "You don't have to go back and tell the Union
that.." Currin replied that he always kept notes. On October
31, another hearing on challenges was held . Again Currin sat
with the Union and suggested questions to counsel.
On November 1, Currin received notice of personnel action
effective October 2612 that he had become a permanent em-
ployee and received a raise in excess of 25 cents an hour. On
November 2, Ward gave Currin a notice that he would be laid
off as of November 8. On November 5, when Currin reported
to work , Ward told him he was terminated and gave him a
letter . There is no evidence in the record as to what reason
he was given, if any, for his termination or as to the contents
of the letter he was given at his termination.
General Counsel contends that Currin was discharged be-
cause of his union activities . In my opinion , General Counsel
has not met his burden of proof in this regard . The evidence
adduced in support of the allegation of discriminatory dis-
charge is (1) Respondent's general antiunion campaign, (2)
Turner's general threat on September 5 that employees would
be ]laid off if they selected the Union as their collective-bar-
gaining representative ; (3) the August 31 interrogation of
Currin by Turner as to his union sympathies; (4) Turner
telling Currin on August 31 "Don't you vote for the Union
and don't you tell nobody I told you that." (5) Turner's
September 7 threat to Currin, "Well, you know, we're all
going to be out of jobs now." (6) Currin's visible assistance
given to counsel for the Union at the October hearing on the
challenges herein; (7) Ward's October 29 remark to Currin,
as he was making notes on information given by Ward, that
he didn't have to tell the Union what she said. This is cer-
tainly enough to raise suspicions as to his discharge . Currin
engaged in union activities of which Respondent had knowl-
edge. Respondent clearly suspected him of engaging in union
activity at an even earlier date. Thus he was singled out and
called into the office and asked toy express an opinion as to
Respondent 's antiunion campaign material , an interrogation
which I have found was designed to induce him to express his
views on the Union and was violative of Section 8(a)(1) of the
Act. He was again singled out as the recipient of Turner's
threat that all employees would be laid off . There are, how-
ever , flaws in General Counsel's case which I deem fatal. One,
the animus directed at Currin and the general threat of layoff
was made by Turner who was no longer plant manager when
Currin was terminated. Two, there is absolutely no evidence
in the record as to what reason, if any, Currin was given for
his termination . The evidence does establish that he was given
a letter of termination . This letter was not introduced into
evidence . In these circumstances I am unwilling to infer that
there existed no good reason for Currin 's discharge . I think'
that in the absence of direct evidence of illegal motivation, it
is incumbent upon General Counsel to either establish that
Currin was given no reason for his termination or that the
reason he was given was pretextual . This General Counsel
has failed to do. Furthermore , the evidence tending to sup-
12 Respondent has a 90-day probationary period.
747
port illegal motivation is weakened , or possibly even negated,
by the fact that the activity, knowledge, and animus all oc-
curred prior to November 1, when Currin was notified that
his status was changed from probationary employee to regu-
lar employee and he received a raise in excess of 25 cents an
hour. On November 2, he was notified that he would be laid
off as of November 8. There is no contention that this tempo-
rary layoff was illegally motivated. It is true that, in the
circumstances , his unexplained November 5 termination ap-
pears somewhat abrupt , but the state of the record does not
permit this lack of explanation to be attributed to Respondent
so no adverse inferences can be drawn therefrom . It would
appear more likely, if Respondent was seeking an excuse to
rid itself of Currin , that he would have been discharged prior
to his conversion from a probationary employee. Permitting
him to become a regular employee and to receive a raise does
not appear to be the action of an employer determined to rid
itself of an unwanted union adherent , and there is no evidence
in the record of an intervening circumstance which would
buttress General Counsel 's contention of illegal motivation.
In all of the circumstances , therefore, I fmd that the evidence
is insufficient to establish that Currin was discharged in viola-
tion of Section 8(a)(1) and (3 ) of the Act.
The Change in Work Schedule
An additional hearing on the challenges in the representa-
tion matter herein was held on November 14. On November
15, the following notice dated November 15 and signed by
Roberta Ward , plant manager, was distributed to all em-
ployees:
TO ALL EMPLOYEES
BECAUSE AN EMPLOYEE STATED IN FRONT OF THE NATIONAL
LABOR RELATIONS BOARD AND THE UNION YESTERDAY AT THE
HEARING THAT IF YOU WORKED SATURDAY IT WOULD BE TIME
AND ONE HALF, WE WILL NOT WORK SATURDAY WE WILL CLOSE
ON THURSDAY MORNING AT 8 OOA M AND REOPEN ON FRIDAY
MORNING AT 8.00A M
YOUR CHECKS WILL STILL BE READY ON WEDNESDAY AT
1 OOA M
I AM SORRY FOR THIS AS I THOUGHT EVERYONE WOULD ENJOY A
FOUR DAY WEEKEND WITH THERE [SIC] FAMILY I ALSO THOUGHT
THAT I WAS TRYING TO DO A FAVOR FOR THE EMPLOYEES AND
GET A BETTER RELATIONSHIP BETWEEN MYSELF AND THE EM-
PLOYEES BUT BECAUSE OF PAST DIFFERENCES I GUESS CERTAIN
PEOPLE DO NOT BELIEVE THIS THIS WAS MY IDEA FULLY AND
WHAT EVER I DECIDE ON THE FLOOR IS MY RESPONSIBILITY AND
-NO ONE ELSES
I WAS GOING TO TRY AND ARRANGE THE SAME SET UP FOR
CHRISTMAS AND NEW YEARS BUT UNDER THE CIRCUMSTANCES
THIS WILL NOT BE POSSIBLE I GUESS EVERYTHING I TRY WILL BE
QUESTIONED, OR CHARGES FILED AGAINST THE COMPANY, SO I
WILL NOT TRY ANY MORE WE WILL GO STRICTLY BY THE BOOK
AND THE RULES
ANYONE WHO DOES NOT WORK THE DAY BEFORE AND THE DAY
AFTER A HOLIDAY WILL NOT BE PAID FOR THE HOLIDAY 13
'748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General'Counsel's theory is that by posting this bulletin
which altered the employees ' work schedule , Respondent at-
tempted to retaliate against its employees for having engaged
in the protected activity of mentioning their employment
conditions at a Board hearing on challenges . In my opinion
the statement "Because an employee stated in front of the
National Labor Relations Board and the Union yesterday at
the hearing that if you worked Saturday it would be time and
one half, we will not work Saturday" is not by itself sufficient
to establish illegal motivation for the change in schedule, and
there is no evidence to place the bulletin in any context. There
is no evidence or contention that Respondent had any general
animus toward employees who testified at the hearing. There
is no evidence as to whether employees normally worked on
Saturdays or whether they were paid time and a half if they
did work on Saturday, nor is there evidence that the sched-
uled Saturday work could be considered as a benefit which
the Respondent decided to withhold. The third paragraph
appears to indicate some previous intention to give employees
a 4-day weekend which would seem to be a benefit; however,
working on Saturday would break up the weekend just as
effectively as working on Friday would . In fact, any finding
that this bulletin itself constituted interference, restraint, and
coercion would have to rest in large part on speculation.
Standing alone, the import of the bulletin would seem to be
that Respondent had not planned to give employees premium
pay for that Saturday's work and was unwilling to risk possi-
ble repercussions from failure to do so. Under some circum-
stances, this might be violative of the Act. Under others it
would not . In these circumstances I find the evidence is insuf-
ficient to establish that by posting these bulletins, Respondent
changed the employees' work schedule in violation of Section
8(a)(1) of the Act.
The Challenged Ballots
In view of my finding that Hill, Cabanilla, Yagin, Sar-
mento, and Terrado were not terminated or permanently laid
off in violation of Section 8(a)(1) and (3) of the Act, the sole
issue as to the challenges is whether the above-named em-
ployees and Robin Caplan Kimeldorf were laid off tem-
porarily or permanently. The critical question in this regard
is whether these employees enjoyed a reasonable expectancy
of recall as of September 7, the date of the election. It is well
settled that this question depends on objective factors, such
as the past experience of the employer, the employer's future
plans, and the circumstances of the layoff, including what the
employees were told as to the likelihood of recall. D. H.
Farms Co., 206 NLRB 111 (1973).
The evidence set forth above in section IV hereof shows
that Hill, Cabanilla, Yagin, Sarmento, Terrado, and Kimel-
dorf were laid off on August 14. All of them worked assem-
bling plastic pens. The supply of pen barrels ran out on
August 14. When it was ascertained that there were no pen
barrels in supply, these employees were told that the barrels
were on order and they would be-recalled as soon as the
barrels arrived. These circumstances establish a clear expect-
13 The letter given to second-shift employees was identical except the time
of closing and reopening reflected the second-shift hours and the last para-
graph was not included
ancy of recall . With the exception of Hill , no intervening
circumstance occurred to negate this expectancy of recall as
of the date of the election, which was only 3 weeks after the
layoff. There were representations by Counsel both as to the
subsequent status of Respondent's business and as to perma-
nent layoffs subsequent to August 14; however, there is no
evidence in support thereof. In these circumstances, I find
that at the time of the election Cabanilla, Yagin, Sarmento,
Terrado, and Kimeldorf were employees on temporary layoff
who enjoyed a reasonable expectancy of recall. Accordingly,
I recommend that the challenge to their ballots be overruled.
On September 6, Edna Hill received a written notice that
she was permanently laid off. There is no evidence , nor con-
tention that as of September 6 and thereafter, she had any
reasonable expectancy of recall. In these circumstances, and
since I have found that her September 6 layoff was not viola-
tive of the Act, I shall recommend that the challenge to her
ballot be sustained.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating employees about their union
activities and sympathies, by threatening employees that
union organization or representation would result in layoffs
and/or discharges , and by promising employees economic
benefits to induce them to withdraw, or withhold, their sup-
port from the Union, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of their
rights under Section 7 of the Act and has thereby engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
4. Respondent has not violated Section 8(a)(1) of the Act
as alleged in subparagraphs VI(a), (b), (c), and (i) of the
consolidated complaint herein or in any respect other than
those specifically found.
5. Respondent has not violated Section 8(a)(1) and (3) of
the Act as alleged in paragraph VII of the consolidated com-
plaint herein.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act, I shall recommend that the Respondent be ordered to
cease and desist therefrom and from infringing in any like or
related manner upon its employees' Section 7 rights, and that
it take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law and the entire record in this proceeding and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby recommend the following:
ENTERPLASTICS INDUSTRIES, INC.
ORDER14
Respondent, Enterplastics Industries, Inc., its officers,
agents, successors and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees about their union
membership, sympathies and desires, threatening employees
that union organization or representation will result in layoffs
and/or discharges and promising employees dental programs
or other economic benefits to induce them to withdraw, or
withhold, their support from the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) Post at its plant in San Francisco, California, copies of
the attached notice marked "Appendix."" Copies of the no-
tice; on forms provided by the Regional Director for Region
20, after being duly signed by the Respondent's representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
][T IS FURTHER ORDERED that the complaint be dismissed in-
sofar as it alleges violations of Section 8(a)(3) of the Act, and
of ,Section 8(a)(1) of the Act other than as specifically found
herein.
l[T IS FURTHER ORDERED that Case 2 0-RC-l 1332 be re-
manded to the Regional Director to open and count the
ballots of Florizel Sarmento, Aida (Dominguez) Yagin, Er-
linda Cabanilla, Robin Caplan Kimeldorf, and Jesus Terrado,
749
to issue a revised tally of ballots and to take such further
action as then becomes appropriate.
14 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 findings,
conclusions, and recommended Order herem 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.
15 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant 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
The National Labor Relation Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things.
WE WILL NOT interrogate you concerning your union
membership, sympathies, or desires.
WE WILL NOT threaten to lay off or discharge you for
engaging in union activities.
WE WILL NOT promise you dental programs or other
benefits to induce you to withhold, or withdraw, your
support from the Union.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these rights.
ENTERPLASTICS INDUSTRIES, INC