Establishment Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1987

284 N.L.R.B. 121 (N.L.R.B. 1987)

ESTABLISHMENT INDUSTRIES 121
Establishment Industries, Inc. and United Automo-
bile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, Local 645,
UAW. Cases 31-CA-15570 and 31-RC-5954
4 June 1987
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 31 October 1986 Administrative Law Judge
Richard J. Boyce issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified 2 and to adopt the recom-
mended Order as modified.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the second para-
graph of Conclusion of Law 3:
"The Company violated Section 8(a)(1) of the
Act by granting pay raises to approximately one-
third of its employee complement in the pay period
ending 8 November 1985."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Establishment Industries, Inc., San Fer-
nando, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 We do not agree with the judge that the Respondent's statement that
"[a]fter the election, the Company would continue to try to do the best
[it] could for the employees" was unlawful or objectionable The judge
concluded that while this type of statement is usually lawful, the recent
unlawful wage increases converted the statement into an unlawful prom-
ise of benefits. Absent statements or other conduct linking the 18 Decem-
ber 1985 statement to the unlawful wage increases, we cannot agree Cf
St, Francis Hospital, 263 NLRB 834, 837 (1982) (supervisor's promise re-
ferred specifically to previous unlawful wage increase). The record estab-
lishes no connection between the 8 November 1985 unlawful wage in-
creases and the 18 December 1985 meeting See Noral Color Corp, 276
NLRB 567, 572 and fn 9 (1985)
Because we agree with the judge that the wage Increases for the week
of 8 November 1985 violated Sec 8(a)(1) of the Act, we fmd It unneces-
sary to pass on whether the increases also violated Sec 8(a)(3).
1. Delete paragraph 1(d) and renumber the sub-
sequent paragraph accordingly.
2. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the election held in
Case 31-RC-5954 is set aside and is remanded to
the Regional Director for Region 31 to conduct a
new election when he deems the circumstances
permit the free choice of a bargaining representa-
tive.
[Direction of Second Election omitted from pub-
lication.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten any employee that
his/her job will be in peril should he/she sign a
union authorization card.
WE WILL NOT interrogate employees about their
union sentiments and the union sentiments of other
employees.
WE WILL NOT grant pay raises to discourage em-
ployee support of any labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
ESTABLISHMENT INDUSTRIES, INC.
David Tajgman, Esq., for the General Counsel.
James T. Winkler, Esq. (Atkinson, Andelson, Loya, Ruud
& Ramo), of Cerritos, California, for the Company.
Jesus E. Quinonez, Esq. (Taylor, Roth & Bush), of Los
Angeles, California, for the Union.
284 NLRB No. 16
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION AND REPORT ON
POSTELECTION OBJECTIONS
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This
consolidated matter was tried before me in Los Angeles,
California, on 13 and 14 May 1986.1
The charge in Case 31-CA-15570 was filed on 3 Feb-
ruary 1986, and amended on 14 March, by United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, AFL-CIO, Local 645, UAW (Union). The
complaint issued on 14 April, was amended during the
trial, and alleges that Establishment Industries, Inc.
(Company) committed various violations of the National
Labor Relations Act (Act) preceding an NLRB-conduct-
ed election held on 20 December 1985 in Case 31-RC-
5954. The complaint alleges, more specifically, that the
Company violated Section 8(a)(3) and by granting
wage increases during the pendency of the election, and
that it further violated Section 8(a)(1) in October and
again in December 1985 by sundry verbal acts.
The election, involving a unit of production and main-
tenance and shipping and receiving employees, derived
from a petition filed by the Union on 15 October 1985
and a Decision and Direction of Election issued by the
Regional Director for NLRB Region 31 on 20 Novem-
ber. The election tally was 61 votes for and 109 against
union representation, with 24 challenged and 2 void bal-
lots. The Union filed objections to the conduct of the
election on 30 December; and, on 29 April 1986, the Re-
gional Director ordered that the objections matter be
consolidated with the complaint matter herein for pur-
poses of hearing and decision because of the congruency
of factual issues.
I conclude below, after an examination of the relevant
evidence and applicable legal principles, that the Compa-
ny violated the Act as alleged in some respects, that it
did not commit other alleged violations, and that the vio-
lations interfered with free voter choice in the election,
requiring that it be set aside and a new election conduct-
ed.
I. JURISDICTION
The Company is a California corporation engaged in
the manufacture of motor homes in San Fernando. Its
nonretail sales to customers outside California exceed
$50,000 annually.
The Company is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5)
of the Act.
1 This manner of setting forth dates comports with the wishes of the
Board.
III. THE ALLEGEDLY UNLAWFUL THREAT ABOUT 16
OCTOBER 1985
A. Allegation
The complaint alleges that about 16 October 1985
Guillermo Salinas, a foreman, "threatened an employee
with discharge if the employee joined the Union," there-
by violating Section 8(a)(1).
B. Evidence
Salinas, an admitted supervisor, oversaw the work of
Lobo Rodriguez, a cabinetmaker. Asked by counsel for
the General Counsel if Salinas had "ever talk[ed] to
[him] about the Union," Rodriguez answered that he
had, "around October 16th, something like that." Rodri-
guez enlarged that Salinas directed that he stop his ma-
chine, then stated:
If you haven't done it . . . don't do it . . . .
[B]ecause, if you sign these papers, what could
happen [is] that they could throw you out or
they're not going to do anything. You're going to
lose your job.
Rodriguez did not identify or describe the "papers" to
which Salinas referred. The record indicates, however,
that the Company by then knew that the procurement of
employee signatures on so-called authorization cards was
central to the Union's organizing effort. Thus, Company
President William Rex testified that he learned about the
organizational ferment before the Union's 15 October
filing of the election petition; and that he then sought "a
little background information" from an official of Vogue
Coach, a rival motor home manufacturer that had had an
ill-fated relationship with the Union in the late seventies,
who told him that "the Union came in, got cards signed,
had a vote, etc."
Rodriguez, whose primary language is Spanish, testi-
fied through an interpreter. Salinas did not testify.
C. Conclusion
While Rodriguez' account of this incident was hardly
pellucid, doubtless due in major part to the language bar-
rier, his palpable sincerity in the telling leaves no doubt
that Salinas bespoke himself substantially as described.
Moreover, the timing of the incident relative to the filing
of the petition, the Company's awareness by then of the
role of signature solicitation in organizational activity,
and the absence of any other suggested or plausible con-
text for Salinas' remarks, in combination, compel the in-
ference that Salinas indeed did tell Rodriguez his job
would be in peril should he sign an authorization card.
By doing so, Salinas violated Section 8(a)(1) as alleged.
IV. THE ALLEGEDLY UNLAWFUL INTERROGATION
ABOUT 21 OCTOBER 1985
A. Allegation
The complaint alleges that, about 21 October 1985,
President William Rex and/or Personnel Manager David
Bocanegra, and/or Sales Coordinator Raul Ortiz, "inter-
ESTABLISHMENT INDUSTRIES 123
rogated employees regarding their union sympathies,"
thereby violating Section 8(a)(1).
B. Evidence
The morning of 17 October, employees Jaime Ar-
guelles, Ana Escanuelas, Marcos Hernandez, and Ernesto
Radiilo were directed by loudspeaker to go to the pro-
duction office. There, they were met by Rex, Ortiz, and
Plant Manager Jack Davis. Rex presided over the ensu-
ing meeting, with Ortiz translating between English and
Spanish. Bocanegra was not present.2
Radiilo testified that Rex began by asking the employ-
ees if they knew that "the people were organizing,"
what they knew "about the Union," and what benefits
they would gain "if [they] had a union." Radillo an-
swered, so he recounted, that he had known nothing
about such matters "until that moment," to which he
added that, "if the people were organizing, surely it was
because of the bad treatment" they were getting— "all
the injustices" and "all the bad benefits." Radillo's ac-
count went on that he cited the failure of his immediate
supervisor to give him a $1-an-hour raise the supervisor
had promised when Raclin° was made leadman several
months earlier, and that he also complained about the
high cost to the employees of obtaining family coverage
under the Company's health insurance plan.
Arguelles testified that Rex asked him, "Jaime, do you
[want] the Union to come into the Company?", after
which he invited the employees to sit down and declared
that he was "not trying to intimidate" them, but wanted
to "know why [they] were organizing." Arguelles asser-
tedly replied that he did not "know anything."
Rex denied generally that he ever interrogated em-
ployees concerning their union activities. Regarding the
17 October meeting, he conceded that the subject of the
Union "did come up," but qualified that he did not "initi-
ate it." Rather, he testified, he had called the employees
in to discuss the "problems" they were having with their
supervisor; and Radillo responded to his opening ques-
tions by declaring that "the Union was in there" because
of the "mistreatment of employees" by two different su-
pervisors.
Rex testified that although Radillo had complained to
him in the past about supervisory abuse, he could not
recall ever before calling a meeting such as this to deal
with the problem. 3 Asked if the recently filed election
petition had prompted the meeting, Rex stated:
I don't recall that being my motive. . . [A]t any-
time I would hear of any problem, I would do
something about it. . . I would go out and find
out what was going on.
2 Rathllo testified that Bocanegra attended Bocanegra and Arguelles
both testified, more convincingly, that he did not Although the com-
plaint alleges that the subject conduct occurred about 21 October, coun-
sel for the General Counsel represented on the record that the allegation
contemplates this 17 October meeting.
3 Rex was notably equivocal on this point, testifying variously: "I can't
say that for a fact, no", "My answer is, I don't know"; and, "I don't
recall doing it before that, but I may have"
Pressed to say what had "specifically prompted" the
meeting, Rex testified:
I can't pinpoint that. . . . If I had to pick some-
thing, it might be the dollar an hour [raise promised
Radillo], I do recall that. . . . I think I may have
heard something [about that] before . . . , and Ra-
dillo brought it up again [in the meeting.]
Rex testified that he "was mostly listening" during the
meeting. He admittedly said he would "look into" the
employees' complaints and "probably" said he would
take appropriate corrective action or "something to that
effect." He further stated, by his own admission, that he
"wouldn't tolerate some of the things" the employees
had attributed to the two supervisors, and that the em-
ployees "would get" raises "if they deserved them."
The record contains no evidence that either Escanue-
las or Hernandez had openly espoused the Union to the
time of this meeting. It is less clear concerning Radillo
and Arguelles, although their renditions of the meeting,
if credited, particularly their professed ignorance of
union activity, indicate that they had not. Rex testified,
but without fixing a time for the first instance, that he
had seen Radillo and Arguelles "just outside our gate"
with union representatives on occasion, and that he also
had seen Radillo, and possibly Arguelles, passing out
campaign literature.
C. Conclusion
Radillo is credited that Rex asked questions approxi-
mating those set forth in his testimony. Arguelles like-
wise is credited. Both displayed a convincing testimonial
demeanor. Although the specific terms of their two ver-
sions were not perfectly consonant, the two did match in
substance. Rex's testimony about this meeting, on the
other hand, including his assertion that he never interro-
gated employees about union activities, was flawed by
equivocation and weak demeanor. Additionally, the
timing, uniqueness, and grievance-seeking purport of the
meeting suggest a union-parrying objective more com-
patible with the Raclin° and Arguelles renditions than
with the Rex alternative.
In Rossmore House, 269 NLRB 1176, 1177-1178 (1984),
the Board declared:
[A]n employer's questioning open and active union
supporters about their union sentiments, in the ab-
sence of threats or promises, [does not] necessarily
[violate] Section 8(a)(1) of the Act.
Elaborating, the Board stated at 1178, fn. 20:
Experience convinces us that there are myriad situa-
tions in which interrogations may arise. Our duty is
to determine in each case whether, under the dic-
tates of Sec. 8(a)(1), such interrogations violate the
Act. Some factors which may be considered in ana-
lyzing alleged interrogations are: (1) the back-
ground; (2) the nature of the information sought; (3)
the identity of the questioner; and (4) the place and
method of interrogation. . . . These and other rele-
vant factors are not to be mechanically applied in
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
each case. Rather, they represent some areas of in-
quiry that may be considered in applying the Blue
Flash test of whether under all the circumstances
the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the
Act. 4
Applying the prescribed totality-of-circumstances test
to the conduct in issue, I conclude that Rex violated Sec-
tion 8(a)(1) as alleged by asking the summoned employ-
ees, in essence, what they knew about the Union, why
the employees were organizing, and what they felt they
would gain by organizing; and, further, by asking Ar-
guelles if he wanted the Union.
The bases for this conclusion are: (1) none of the four
employees involved was an openly declared union sup-
porter at the time; 5 (2) the encounter did not happen by
chance; rather, the four employees were called by loud-
speaker, infusing the event with menacing formality; (3)
the questioning was conducted in the locus of manage-
ment authority, was administered by the company presi-
dent, and was attended by two other ranking manage-
ment officials, Davis and Ortiz, all of which added to the
aura of menacing formality; (4) the questioning was jux-
taposed with other conduct—grievance solicitation and
the promise of redress—plainly designed to undermine
the Union; and (5) the questioning was not accompanied
by assurances against reprisal 6 or any showing of valid
purpose. See generally Baddour, Inc., 281 NLRB 546
(1986); United Artists Communications, 280 NLRB 1056
(1986); Cafe La Salle, 280 NLRB 379 (1986); Well-Bred
Loaf 280 NLRB 306 (1986); Springs Motel, 280 NLRB
284 (1986); Woodcliff Lake Hilton, 279 NLRB 1064
(1986); National Micronetics, 277 NLRB 993 (1985); Mi-
chael's Markets of Canterbury, 274 NLRB 755 (1985); J.
& G. Wall Baking Co., 272 NLRB 1008 (1984).
V. THE ALLEGEDLY UNLAWFUL WAGE INCREASES
A. Allegation
The complaint alleges that, on dates then unknown be-
tween 15 October and 20 December 1985, the Company
"granted employees wage increases . . . because its em-
ployees joined, supported, or assisted the Union. . . and
• . . to discourage employees from engaging in such ac-
tivities," thereby violating Section 8(a)(3) and (1). In his
brief, counsel for the General Counsel narrows the time
of the alleged violations to the 1-week pay period ending
8 November.
4 The Blue Flash reference is to Blue Flash Express, 109 NLRB 591
(1954)
5 Crediting Radillo and Arguelles that they professed ignorance of the
union ferment And, even if they had openly declared their support of
the Union by then, that would not have excused the inclusion of Escan-
uelas and Hernandez in the interrogation process Cafe La Salle, 280
NLRB 379 (1986)
6 Rex's comment that he was "not trying to intimidate" the employees
was not a sufficient assurance. Cf, , Springs Motel, 280 NLRB 284 fn 2
(1986)
B. Evidence
Dunng the pay period ending 8 November 1985, the
Company granted hourly raises of 25 and 50 cents to 60
out of the approximately 180 in the petitioned-for unit at
the time. Otherwise in 1985, the number receiving raises
in a given pay penod never exceeded 18; and, for all of
1985 an average of between 5 and 6 employees per pay
period, representing slightly over 3 percent of the pay-
roll, received raises.
In 1984, the Company once gave raises to 45, out of a
complement of about 168, in a single pay period. In 1984
otherwise, the most to get a raise in any period was 25,
which happened twice. In the average 1984 pay period,
about eight employees, or fractionally less than 5 percent
of the payroll, received raises.
Rex testified that the Company has "no set policy as
far as giving [raises]." In "most cases," he went on, the
employee desiring a raise must "initiate" the process by
going to his/her leadman. The leadman in turn refers the
matter to the plant manager; and the plant manager, if
sympathetic with the request after checking such things
as the employee's tenure and attendance and the date of
his/her last raise, recommends to Rex that a raise be
granted. Rex, by his own depiction, "function[s] largely
as a rubber stamp" in the process.
Rex conceded that "most of the [employee] com-
plaints" in a series of 15 or so small-group meetings held
during the pendency of the election, and "probably the
biggest and most often asked question[s]" in those meet-
ings "were about pay"—"why we didn't give them more
raises and why wasn't there some kind of policy and. . .
how come Johnny working next to me makes more than
me and I've been here longer[?]" The weight of evidence
indicates that these meetings began in October.7
Two of those receiving raises during the pay period
ending 8 November, Ernesto Radillo and Salvador Men-
doza, testified that they had not asked for them. Mendo-
za added that he and two coworkers who received raises
at that time, Ana Escanuelas and Jose Torres, learned of
their pendency simultaneousIV, when told by their
common supervisor. Another employee, Lobo Rodriguez,
among 10 given a raise during the pay period ending 25
October, also testified that he had not asked for it; that,
indeed, it "surprised" him
Rex denied ever granting a raise to discourage union
activity. Bocanegra, said by Rex to be "sometimes in-
volved" in raise decisions, di la likewise. Rex further
denied any awareness that an unusual number of raises
were granted during the pendency of the election. As
this might suggest, the Company advanced no explana-
tion for the high number of raises granted in the 8 No-
vember pay period.
Plant Manager Jack Davis, for whom Rex professedly
"function[s] largely as a rubber stamp" regarding raises,
did not testify.
7 Rex testified that they began "sometime in October or November"
As earlier described, Rex met with four employees as early as 17 Octo-
ber, holding forth the possibility of raises
ESTABLISHMENT INDUSTRIES 125
C. Conclusion
Several factors dictate the inference that the raises
granted during the pay period ending 8 November were
prompted by the Company's desire to blunt employee
support for the Union, thus breaching "the Board's well-
established rule that during the preelection period an em-
ployer must grant or withhold benefits as he would if a
union were not in the picture."8
These factors are: (1) the raises were granted during
the pendency of the election, following small group
meetings in which "the biggest and most often asked
question[s] . . . were about pay;" (2) the raises were un-
precedented in scope; and (3) the weight of evidence in-
dicates that contrary to the usual practice those receiving
the raises were not required to "initiate" the process.
Thus, the burden shifts to the Company to show that
the raises were legitimately grounded, and the Company
having failed to come forth with any legitimizing expla-
nation, I conclude that the raises granted during the pay
period ending 8 November violated Section 8(a)(1) and
(3) as alleged. See generally The Gerkin Co., 279 NLRB
1022 (1986); Payne & Keller, Inc., 258 NLRB 892 (1981);
Lang Feed Co., 227 NLRB 1588 (1977); Great Atlantic &
Pacific Tea Co., 166 NLRB 27 (1967).
VI. THE ALLEGEDLY UNLAWFUL VERBAL ACTS
ABOUT 18 DECEMBER 1985
A. Allegation
The complaint alleges that during an employee meet-
ing about 18 December 1985 "to dissuade employee sup-
port for the Union," Rex and/or Bocanegra "promised
employees wage increases," and "threatened employees:
(1) with terminations; (2) that a strike would result and
strikers would be arrested; (3) with plant closure; (4)
with more onerous working conditions; and (5) with loss
of accrued seniority," thereby violating Section 8(a)(1) in
each instance.
B. Background
Rex, with Bocanegra translating, presided over an em-
ployee meeting, attended by about 175, on the afternoon
of 18 December. The meeting lasted "10 to 15 minutes,"
according to Rex, and "was a condensed version of what
went on" in the approximately 15 small group meetings,
previously mentioned, that had preceded it. The earlier
meetings generally were attended by from 10 to 20 em-
ployees and lasted an hour or more.
C. The Alleged Violations
1. The alleged promise of wage increases
a. Evidence
Raclin° testified that Rex/Bocanegra made remarks of
the following nature during the 18 December meeting:
(1) That the employees "should trust" the Company;
that the Company "couldn't do anything at that moment
8 Gerkin Co., 279 NLRB 1012 (1986), quoting from Great Atlantic &
Pacific Tea Co., 166 NLRB 27, 29 fn 1 (1967).
because it was illegal," but conditions "would be better"
after the election.
(2) That, "if the people supported the Company, after-
wards there were gonna be better things," but that "they
couldn't be done at that moment because it was illegal."
(3) That, whereas the Union "could make promises"
that were "pure lies," the Company "could not make
promises because it was illegal."
(4) That, "after the election, the Company would con-
tinue to try to do the best [it] could for employees."
In evidence is a lawyer-prepared document entitled
"Outline for Meetings," which Rex followed in the
small-group meetings and doubtless used to some extent
in the 18 December meeting, as wel1. 8 Among its entries
are these:
VIII. COMPANY POLICIES
A. Company has always tried to treat employees
fairly and will continue to do so.
B. Company has always paid fair, competitive
wages and employee benefits. Our past practice
has been to regularly improve wages and benefits
as we have been able, and we intend to continue
with that practice in the future.
IX. CONCLUSION
A. Company honestly believes that employees
are better off without Union.
1. Our employees make good wages and have
good fringe benefits and working conditions and we
will continue to regularly improve our wages and
benefits as we have in the past.
Rex and Bocanegra denied that wage increases were
promised during the meeting. Radiilo's testimony on this
issue is uncorroborated, although three other employees
testified about the meeting." He testified through an in-
terpreter.
b. Conclusion
Radillo testified on the one hand that Rex/Bocanegra
said things "were gonna be better" after the election "if
the people supported the Company," and, on the other,
that Rex/Bocanegra said, "[A]fter the election, the Com-
pany would continue to try to do the best [it] could for
employees."
That the latter was said is altogether likely, for it par-
allels certain of the languge extracted from the Outline
for Meetings, most notably this passage: "[W]e will con-
tinue to regularly improve our wages and benefits as we
have done in the past." Regarding the former, however,
one felt as he gave this testimony that Radiilo was com-
9 As was tacitly admitted by Rex's testimony, "I don't think we went
over everything [in the document on 18 December.]"
'° One of the three, Carlos Hernandez, testified that he could recall
nothing being said about a raise being promised, and the testimony of the
other two, Jaime Arguelles and Salvador Mendoza, simply was silent on
the subject.
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mingling that which was said with his subjective impres-
sion of the intended message. The absence of corrobora-
tion elevated that feeling to certitude. Therefore, Radii-
lo's testimony that Rex/Bocanegra made a remark of this
sort is not credited."
Generally, employer statements of the kind credited,
to the effect that past practices will continue after the
election, are permissible campaign propaganda. See Na-
tional Micronetics, 277 NLRB 993 (1985); Noral Color
Corp., 276 NLRB 567 (1985); Agri-International, 271
NLRB 925 (1984); Allied/Egry Business Systems, 169
NLRB 514 (1968). Such remarks are not to be judged in
a vacuum, however, and, as I concluded previously in
this decision, the Company only recently had "sweet-
ened" its past practice as concerns wages by unlawfully
granting a number of raises. That unlawful "sweetening"
necessarily tainted the statement in question, converting
it into an improper promise violating Section 8(a)(1) as
alleged.
2. The alleged threat of termination
a. The General Counsel's theory
Counsel for the General Counsel argues that Rex im-
pliedly threatened the employees with termination, the
"thrust" of his remarks "in conjunction" being that, "if
the Union were selected, a strike would occur, strikers
would be replaced, and replaced strikers would lose their
jobs."
b. Evidence
Rex testified that he "wanted to get the point across
that nothing was automatic if the Union won," and that
he "pressed hard" on the "point" that
if the Union did win, and we went into negotiations
under good faith, which we said we would do, that
if a strike were to occur, that we would feel obli-
gated to hire permanent replacements and that we
would not allow the plant to be closed down be-
cause of a strike and that we would feel morally ob-
ligated to keep it open.
In the course of his presentation, as in perhaps all the
small group meetings as well, Rex cited union-related de-
velopments at Vogue Coach, a nearby manufacturer of
motor homes. The employees at Vogue Coach had
struck in the late 1970s, apparently in support of the
Union's position in contract negotiations. Many were
permanently replaced as a result, never regaining their
jobs. That the Union "lost" this strike is "common
knowledge" in the industry, according to Rex. Rex re-
counted that he pointed to Radillo and Arguelles, both
of whom had lost their jobs at Vogue Coach by being
permanently replaced, and urged their coworkers to
"please look at" them and
" The mixing of subjective with objective likely was attributable at
least in part to the language barrier But, absent exploitation of a lan-
guage barrier to mislead, an employer's words are entitled to their ordi-
nary meaning Cf., Hanover Industrial Machine Cc, 270 NLRB 841, 841
fn 1 (1984); Purolator Products, 270 NLRB 694, 712 (1984)
ask them what went on [at] Vogue, and if every-
thing was so great there, and all of the benefits and
wage increases and everything, and the promise of
job security were so good, why weren't they still
there and why were they working for us? And then
I once again asked all employees, please ask Mr.
Radillo and Mr. Arguelles, if things were so great
there, why aren't they still there?
Rex also discussed the implications to the Company of
an all-employee wage increase of 55 cents per hour,
using calculations to "make the point," as he put it, "that
even a 55-cent raise was a lot to us" and would largely
offset profits. Rex testified: "The feeling was that we
were made of money and we should be paying these
huge wages. And I was just trying to get a point across
that that wasn't the reality of it." Asked why he chose
55 cents, Rex testified that raises of 50 cents were "kind
of basic" for the Company, so he "just went a little
above that for 55."
Radillo testified that Rex/Bocanegra "repeated about
three or four times" that the employees "should ask" Ar-
guelles and him "what had happened at Vogue Coach,"
and exhorted the employees to
remember everything that had happened at Vogue
Coach. Above all, the people who had been unem-
ployed and without help. And the [Union] . . .
didn't do anything for them. That we should think
about it well.
Rex also declared, according to Radillo, that the Compa-
ny "already had people" to replace strikers should it
come to that.
Radillo's testimony just described was more or less
mirrored by that of Arguelles, Carlos Hernandez, and
Salvador Mendoza. Arguelles testified that Rex/-
Bocanegra prompted the employees "two or three times"
to ask Radillo and him "what had happened at Vogue
Coach," admonishing that "the same thing could happen
that had happened" there. Rex/Bocanegra further re-
marked, per Arguelles, that the Company "already had
people to come in to work" if the employees struck.
Hernandez related that, besides telling the employees
to ask Radillo and Arguelles why they no longer worked
at Vogue Coach, Rex/Bocanegra said that "problems"
would follow should the Union win. Rex/Bocanegra
elaborated, according to Hernandez, that "there could be
strikes and . . . the workers that would go on strike
could be replaced immediately";" that "the same thing
was going to happen . . . that would happen to the
people at Vogue Coach." Hernandez corroborated Rex
that Rex said the Company would bargain in good faith.
Mendoza testified that upon recommending that the
employees "ask Jim Arguelles and Ernesto Raclin° why
they weren't working at Vogue Coach," Rex/Bocanegra
announced that
i2 one point, Hernandez attributed to Rex/Bocanegra the statement
that strikers "could be fired automatically" He later conceded that,
"technically, they used the word 'replaced " He explained that, to him,
the two words "are the same."
ESTABLISHMENT INDUSTRIES 127
if the people wanted to support the Union. . they
could run the same luck that they [Arguelles and
Radillo] had being able to lose their jobs. That. . .
if we went out on strike . . . they were going to
put in other people to replace us in our jobs.
Rex/Bocanegra added, according to Mendoza, that the
replacements would have "more rights to our work than
we did."
The previously mentioned Outline for Meetings used
by Rex in the small-group meetings and to some extent
on 18 December states in relevant part:
VI. No Automatic Contracts
A. If the Union wins election, Company must
bargain with them; but nothing is automatic.
B. State that Company will obey the law and will
bargain in good faith, but. . .
C. Negotiations may drag on for months or even
a year.
D. Under the law, Company is not required to
make concessions.
E. Company cannot and will not agree to any-
thing that would push its costs out of line and make
it uncompetitive.
VII. Possibility of Strike
A. If Company and Union cannot agree on con-
tract, Union's only effective weapon is a strike.
B. Company has customers who it must serve
and contracts which it must fulfill; therefore it will
operate if there is a strike.
C. In order to operate, Company would feel mor-
ally obligated to recruit permanent replacements.
D. Strikers do not earn any wages or fringe bene-
fits and are not eligible for unemployment insurance
benefits.
E. More importantly, replacements can take the
jobs of the strikers because law says that:
1. Once striker replaced by permanent replace-
ment, job can belong to replacement.
2. Replacement can keep job on a regular
basis, even after strike is over.
3. Striker has no legal right to job as long as
replacement is working.
Note: Do not state that strikers can be fired or dis-
charged.
IX. Conclusion
A. The Company honestly believes that employ-
ees are better off without Union.
. . . .
3. Our employees should not run the risk of
possibly losing jobs due to strikes.
c. Conclusion
Addressing an issue much like the present in
Allied/Egry Business Systems, 169 NLRB 514 (1968), the
Board observed at 514:
[I]n all cases such as this one, where one must at-
tempt to fathom the meaning of another's words
and assess the impress of such words on employees,
reasonable men may differ. . . .
So it is that I conclude, contrary to the General Counsel,
that the remarks in question did not exceed the bounds
of permissible campaign rhetoric.
To be sure, Rex sought to impress on the employees
the possibility of a strike and the attendant risk of job
loss through permanent replacement, citing the ready
availability of replacements and harping on developments
at Vogue Coach to dramatize the point. Neither he nor
Bocanegra said, however, that a strike was inevitable
should the Union win the election. Rather, while doubt-
less stressing that bargaining might well be protracted,
difficult, and ultimately unfruitful, they said that the
Company would bargain in good faith. Nor did they mis-
represent the job status of strikers vis-a-vis permanent re-
placements; and, as I conclude later in this decision, the
meeting otherwise contained no unlawful threats.
Quoting from Allied/Egry Business Systems, supra, 169
NLRB 514, "an employer's expressed views on the possi-
ble economic disadvantages flowing from strikes is [not]
irrelevant to a reasoned [voter] choice." Similarly, as
stated in Agri-International, 271 NLRB 925, 926 (1984),
an employer is "under no obligation to shield its employ-
ees from the 'cold, hard facts' concerning the detrimental
effects of past strikes by the Union." Finally, extracting
from Eagle Comtronics, 263 NLRB 515, 515-516 (1982):
[A]n employer does not violate the Act by truthful-
ly informing employees that they are subject to per-
manent replacement in the event of an economic
strike. . . . Unless the statement may be fairly un-
derstood as a threat of reprisal against employees or
is explicitly coupled with such threats, it is protect-
ed by Section 8(c) of the Act. . . . 13 As long as an
employer's statements on job status after a strike are
consistent with the law, they cannot be character-
ized as restraining or coercing employees in the ex-
ercise of their rights under the Act.14
The passages just related apply no less to the conduct
in issue than to that in the decisions from which they
came. This allegation therefore is without merit.
13 Sec 8(c) states "The expressing of any views, argument, or opin-
ion, or the dissemination thereof . shall not constitute or be evidence
of an unfair labor practice . if such expression contains no threat of
reprisal or force or promise of benefit."
14 The Board added at 263 NLRB 516 that an employer need not "ex-
plicate all the possible consequences of being an economic striker."
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The alleged threat that a strike would result and

4. The alleged threat of plant closure
strikers would be arrested
a. Evidence
a. Evidence
As noted above, Rex emphasized during the 18 De-
cember meeting that the Company would continue to
operate during a strike, hiring permanent replacements as
needed. Arguelles testified that Rex/Bocanegra added, in
this regard, that the Company "could call the police so
that the [replacement] workers . . . could come in." Sal-
vador Mendoza testified that Rex/Bocanegra said police
"would intervene" if strikers were "blocking people [i.e.,
replacements] from coming in," or were "disturbing
them at the door," or were "in the door and in the
way." Carlos Hernandez recalled that Rex/Bocanegra
said, simply, that the Company "could even call the
police so they could take out the people from inside of
the plant, the people that were on strike." In the same
vein, Radillo testified that Rex/Bocanegra said the Com-
pany was "gonna bring police so that [replacements]
could come in." Radillo would have it, however, that
this occurred on 19 December and that Rex/Bocanegra
spoke instead of plant closure during the meeting on the
18 December.
Rex denied ever saying strikers would be arrested. He
also denied, by implication, that he said anything about
police on 18 December, recalling that the subject instead
came up in one of the small group meetings. Rex testi-
fied:
One of the employees had told me that, if there was
a strike, they [the strikers] wouldn't allow other
workers to come in to work, that they would stop
them. I said you couldn't do that, it would be
against the law, and that, if forced to, we could
bring in the police to allow the . . . permanent re-
placements to come into the plant.
Bocanegra likewise denied ever saying strikers would
be arrested.
b. Conclusion
Synthesizing the testimony on this issue, Rex/-
Bocanegra raised the possibility during an employee
meeting that, were a strike to happen, the Company
would call police to enable striker replacements to come
to work should their access to the plant be impeded by
strikers.
Nothing in these remarks carried the implication that
employees would be arrested for striking or engaging in
other activities protected by the Act. 15 This allegation
therefore is without merit.
" Hernandez' testimony—that Rex/Bocanegra said the Company
"could even call the police so they could take out the people from inside
the plant, the people that were on strike"—arguably supports the General
Counsel's contention to the contrary It also arguably corroborates the
other witnesses' generally consonant recitals, albeit incompletely The
weight of evidence favors the latter construction
Radillo testified that Rex/Bocanegra stated, "almost at
the beginning" of the 18 December meeting, that "the
plant would be closed if the Union won" the election.
The "exact word[s]," Radillo persisted, were that "the
plant would be closed." Similarly, Salvador Mendoza at-
tributed to Rex/Bocanegra the remark that,
if the Union won, . . . they were going to close
[the] Company because the Union was going to
force them to pay more salary, and . . . they
couldn't pay it.
Rex denied saying anything like this. Rather, as earlier
detailed, he testified that the Company would remain
open despite a strike, using permanent replacements, etc.
Bocanegra also denied that a closure threat was made,
In evidence is a note prepared by Rex to serve as "a
little guide"—his depiction—in the 18 December meet-
ing. Among its entries is this: "4. Out of Bus." Rex testi-
fied that, although the note contained "items [he] wanted
to hit on," he could not "remember why [he] wrote that
down" and was "not sure" of its meaning. He speculated
at one point:
I think that was in a statement I made that this
company was virtually out of business before I took
it over three years ago [and its] financial position
was much improved.
He ventured at another point:
I may have said that we would not let the Compa-
ny go out of business if there was a strike, and that
we would hire permanent replacements.
Two employees in addition to Radillo and Mendoza,
Arguelles and Carlos Hernandez, testified about the 18
December meeting. Neither mentioned a threat of clo-
sure.
b. Conclusion
Given Rex's undoubted emphasis during the meeting
on the Company's resolve to stay open, strike notwith-
standing, the testimony of Radillo and Mendoza that Rex
also threatened closure should the Union win simply
does not "compute." Thus, although Rex's testimony
concerning the "Out of Bus" entry was puzzlingly inept,
he and Bocanegra are credited that such a threat was not
made. This allegation therefore is without merit.
5. The alleged threat of more onerous working
conditions
Evidence
Counsel for the General Counsel acknowledges in his
brief that "no evidence was adduced with regard to this
[allegation]."
ESTABLISHMENT INDUSTRIES 129
6. The alleged threat with loss of accrued seniority
a. Evidence
Carlos Hernandez testified that Rex/Bocanegra stated
during the 18 December meeting that "all the employees
were going to start over again, it wouldn't matter how
long [they] had been there at the union start."
Rex denied that he threatened employees with the loss
of seniority, further denying that he said anything about
seniority during the meeting. He admittedly "wanted to
get the point across that nothing was automatic if the
Union won," however, and concededly stated in several
of the earlier small-group meetings that neither wages
nor job security were "automatic" with union representa-
tion. Echoing Rex, Bocanegra denied that he said, as the
translator, that employees engaging in union activities
would lose their seniority.
Of the three employees other than Hernandez to testi-
fy about the 18 December meeting, Salvador Mendoza
stated that he could not recall seniority being mentioned,
and both Raclin° and Arguelles were silent on the sub-
ject.
b. Conclusion
Rex's testimony on this issue was more convincing
than Hernandez' uncorroborated account, and is cred-
ited. Given a fair reading, Rex's statement that "nothing
was automatic if the Union won" was not "a threat to
discontinue existing benefits," but rather was "merely de-
scriptive of the employer's bargaining strategy, designed
to let employees know that unionization does not mean
automatic increases in benefits." Host International, 195
NLRB 348, 348 (1972). This allegation therefore is with-
out merit.
VIII. THE ALLEGEDLY UNLAWFUL VERBAL ACTS
ABOUT 19 DECEMBER 1985
A. Allegation
The complaint alleges that, about 19 December 1985
Rex and/or Bocanegra "stated and/or implied that em-
ployees were being denied benefits because of their sup-
port for the Union," and "threatened employees that if
the Union won the election there would be a strike and
that the Company would retaliate against employees
who supported the Union by imposing more onerous
working conditions," thereby violating Section 8(a)(1) in
each instance.
B. Evidence
Salvador Mendoza testified that he was among about
15 employees attending a meeting in the engineering
office on 19 December. The meeting was conducted by
Rex, with Bocanegra translating, according to Mendoza,
began at about noon, and lasted about 2-1/2 hours. He
was told to attend by his supervisor, as he recalled.
Among the comments made by Rex/Bocanegra, Men-
doza testified, was this:
[B]eginning on the 20th, the people were going to
be divided. . . . [T]he people who voted for the
Union were going to be forced to go out on strike.
Asked then, to recite the "exact words" used by
Rex/Bocanegra, Mendoza testified: "What I didn't un-
derstand well was that the people were going to be di-
vided. I don't know in what way. Well, I don't remem-
ber."
Mendoza continued:
Well, the only thing that I remember is that I said if
I was doing the same work as Ernesto Radillo, why
was he earning more than I was? And so I was told
that if I wasn't happy, why didn't I leave the Com-
pany? And so I said I was going to stay there until
they fired me. And so they went and they brought
back my work file.
The complaint, until amended late in the hearing, al-
leged that the conduct in question occurred on 17 De-
cember. Mendoza's affidavit likewise gives 17 December
as the date. Attempting to explain the discrepancy be-
tween that and his testimony, Mendoza testified that he
told the NLRB investigators that the meeting was on 19
December, but "they confused the dates."
Rex denied threatening employees with more onerous
conditions for supporting the Union. Bocanegra voiced a
similar denial, further denying that he told employees on
about 17 December that a strike would happen should
the Union win the election.
Mendoza's testimony, through an interpreter, was un-
corroborated. 16 He is still employed by the Company.
C. Conclusion
Mendoza's testimony, not only uncorroborated but
tentative and disconnected, lacked the cogency needed
to carry the General Counsel's burden with respect to
this allegation. The allegation therefore is without merit.
CONCLUSIONS OF LAW
The Company violated Section 8(a)(1) of the Act:
1. About 16 October 1985, when Supervisor Gullermo
Salinas told employee Lobo Rodriguez, in substance, that
Rodriguez' job would be in peril should he sign a union
authorization card.
2. About 17 October 1985, when President William
Rex asked employees Jaime Arguelles, Ana Escanuelas,
Marcos Hernandez, and Ernesto Radiilo, in substance,
what they knew about the Union, why the employees
were organizing, and what they felt they would gain by
organizing; and, further, by asking Arguelles if he
wanted the Union.
3. About 18 December 1985, when Rex promised the
employees, in substance, that the Company would con-
tinue its past practices, which included unlawful raises,
to discourage employee support of the Union.
16 Among employees at the meeting, according to Mendoza, were five
whom he identified by name. None testified.
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Company violated Section 8(a)(1) and (3) of the
Act by granting pay raises to approximately one-third of
its complement in the pay period ending 8 November
1985. The Company did not otherwise violate the Act as
alleged.
The Objections
All the Company's misconduct occurred during the
"critical period" after the filing of the election petition
on 15 October 1985 and before the election on 20 De-
cember 1985. I conclude that this misconduct is sufficient
to overturn the election.' 7
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The Respondent, Establishment Industries, Inc., San
Fernando, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening any employee that his/her job would
be in peril should he/she sign a union authorization card.
(b) Interrogating employees about their union senti-
ments and the union sentiments of other employees.
17 As stated Super Thrift Markets, 233 NLRB 409, 409 (1977)
Our normal policy is to direct a new election whenever an unfair
labor practice occurs during the critical period since "conduct viola-
tive of Section 8(a)(1) is, a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an election" Dal-Tex
Optical Co., Inc., 137 NLRB 1782, 1786-87 (1962). The only recog-
nized exception to this policy is where the violations are such that it
is virtually impossible to conclude that they could have affected the
results of the election The exception plainly does not obtain in the
present case.
18 All outstanding motions with this recommended Order hereby are
denied. If no ,exceptions are filed as provided by Sec. 102 46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes.
(c) Granting pay raises to discourage employee sup-
port of any labor organization.19
(d) Promising employees that it will continue past
practices, including unlawful pay raises, to discourage
employee support of any labor organization.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the purposes and policies of the Act.
(a) Post at its facility in San Fernando, California,
English- and Spanish-language versions of the copies of
the attached notice marked "Appendix." 2 ° Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that to the extent I
have found its allegations to lack merit, the complaint is
dismissed.
IT IS ALSO FURTHER RECOMMENDED that the election
of 20 December 1985 be set aside and a new election
conducted.
19 This recommended Order shall not be construed as requiring or li-
censing rescission of the unlawful raises.
20 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"