Fearn International, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1974

209 N.L.R.B. 232 (N.L.R.B. 1974)

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fearn International, Inc., Eggo Foods Division and
Sales Delivery Drivers, Warehousemen & Helpers
Union, Local 296, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers
of America
Fearn International, Inc., Eggo Foods Division and
Linda Hill, Petitioner and Sales Delivery Drivers,
Warehousemen & Helpers Union, Local 2%,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America.
Cases 20-CA-8107 and 20-RD-843
February 25, 1974
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On July 23, 1973, Administrative Law Judge Louis
S. Penfield issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, the General Counsel
filed limited cross-exceptions and a brief in answer to
the Respondent's exceptions and brief, and the
Respondent filed a brief in answer to the General
Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions 1 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint in Case
20-CA-8107 be, and it hereby is, dismissed in its
entirety.
i The Administrative Law Judge found that even if the January 25. 1973,
conversation between Goza (a supervisor as found herein ) and employee
Augustin be deemed coercive , the effect appears minimal and does not
warrant a remedial order and dismissed the complaint. Members Kennedy
and Penello agree that the complaint should be dismissed on the ground
that the single instance of interrogation by Goza does not warrant the
issuance of a remedial order They note that the Administrative Law Judge
found that no similar or related incident occurred thereafter, and that no
other unlawful conduct on Respondent's part with respect to any employee
in the clerical unit was alleged or established In view of these findings they
209 NLRB No. 37
DIRECTION
It is hereby directed that in Case 20-RD-843 the
Regional Director for Region 20 shall, pursuant to
the Rules and Regulations of the Board, within 10
days of this Direction open and count the ballot of
Irene Pacheco, and thereafter prepare and cause to
be served on the parties a revised tally of ballots,
including therein the count of said ballot.
MEMBER FANNING, concurring in part and dissenting
in part:
I agree with Member Penello and the Administra-
tive Law Judge that Irene Pacheco was eligible to
vote and that her ballot should be opened and
counted.
I further agree with the Administrative Law
Judge's finding that Goza's interrogation of Augustin
violated Section 8(a)(1). I do not agree that it was
isolated, insignificant , and not coercive, or that a
remedy is not warranted. As I stated in my dissent in
Walgreen Co., d/b/a Globe Shopping City, 203 NLRB
No. 36:
The Board's mandate is to remedy unfair labor
practices. The courts have held that when the
Board finds unfair labor practices it must provide
a remedy for them.3 The Act does not authorize
the Board to give a respondent two bites of the
apple before it applies its remedial powers. It is
fundamental that to protect the Section 7 rights of
employees, the Board must remedy unfair labor
practices... .
3 See UA W [Omni Spectra, Inc ] v. N L. R. B, 427 F.2d 1330
(C.A 6), and United Steelworkers of America, AFL-CIO [Wagner
Industrial Products] v. N.L.R.B, 386 F 2d 981 (C.A D.C)
In considering the Goza interrogation,2 it must be
noted that employee Augustin was hired by Goza and
considered him to be her supervisor. On January 25,
1973, prior to the filing of the petition but after the
decertification activity had been initiated, Goza dis-
cussed the decertification petition and then asked her
how she would vote, to which she replied that she was
against the Union. Goza had a piece of white paper on
his desk, separated into two columns marked "Yes"
and "No." Goza put Augustin's name under the "No"
column. He then queried Augustin as to her knowl-
edge of the union sympathies of each unit employee
believe that reliance by Member Fanning, who dissents on this issue (see
separate opinion ), on other alleged conversations by Goza is unwarranted
With respect to the challenged ballot of Irene Pacheco, Members
Fanning (as indicated in his separate opinion ) and Penello agree with the
Administrative Law Judge's finding that Pacheco was eligible to vote and
that her ballot should be opened and counted
2 Respondent did not call Goza as a witness even though his supervisory
status was in issue and he was alleged to have committed the 8(a)(l)
violation herein , only one inference can be drawn from Respondent's
failure to call Goza.
FEARN INTERNATIONAL, INC.
and recorded her views as to each individual under the
"Yes" or "No" column. Such an interrogation by a
supervisor is a violation of Section 8(a)(1) and the
cases which so hold are legion.
The Administrative Law Judge noted only the
January 25, 1973, interrogation in finding Goza's
conduct isolated. He inexplicably failed to mention
that, according to uncontradicted testimony,3 Goza
followed up his original interrogation in the second
week of February (after the petition was filed) when
he told Augustin, "You know A] Ferrari (Respon-
dent's comptroller and the supervisor of the clerical
aspects of Respondent's operation) is very interested
in how you are going to vote." Goza then asked
Augustin how she would vote, and she replied
probably for the Union. It is therefore clear that
Goza's activity was not limited to one isolated
incident.4 Of greater significance, however, is the fact
that even if it be assumed, which, I do not (nor does
the record so indicate), that the first interrogation
was friendly or minimal in its effect, presumably
because of Goza's low supervisory status or the fact
that he was a union member, the same cannot be said
with respect to the second interrogation where Goza
indicated he was acting in behalf of Ferrari, one of
Respondent's top management officials. Any doubts,
if in fact Augustin had any, with respect to whom
Goza was acting for, were resolved during the second
interrogation. Goza's interference, in my opinion,
became much more serious when he indicated he was
acting on Ferrari's behalf.
The Administrative Law Judge and my colleagues
find it significant that there is no evidence Augustin
spoke to other unit employees regarding the interro-
gation. Even assuming this to be true, the Adminis-
trative Law Judge's finding is irrelevant in the light
of Board precedent which has refused to attempt a
subjective determination of the effect of 8(a)(1)
conduct on individual employees and instead has
concluded that such conduct need only have a
tendency to restrain or interfere with Section 7 rights.
In addition, the Board has consistently held that the
restraining effect is not limited to the employees
directly involved in such incidents, and particularly
during a critical preelection period.6
I would therefore find the 8(a)(1) violation and
issue the required remedial order.?
3 The Adnunistrative Law Judge made no adverse credibility finding
with respect to Augustin; Goza did not testify
* Further evidence that Goza's activity was not isolated was provided by
employee Conley , who testified , again without contradiction , that Goza
queried her on three occasions as to how she would vote This testimony
was also ignored by the Administrative Law Judge While the Conley
interrogations were not alleged as violative of Sec 8 (a)(1), her testimony
clearly shows that Goza's activity for Respondent of ascertaining how the
employees would vote was not limited to the one incident involving
Augustin
5 On the other hand , there is likewise no evidence Augustin did not
233
MEMBER KENNEDY, concurring in part and dissenting
in part:
I agree with Member Penello that the Administra-
tive Law Judge's dismissal of the complaint is
corrects I am unable to agree with Members
Fanning and Penello that Irene Pacheco was an
employee eligible to vote in the decertification
election.
On the date of the election, March 16, 1973,
Pacheco had not worked for the Employer in over 6
months. She left her job on September 8, 1972, in
anticipation of the birth of a child. According to the
Administrative Law Judge, during the following
weeks Pacheco was not clear in her mind whether she
had quit her job (as she had done in 1969 for the
birth of another child) or whether she wished to
return to work. Pacheco did file a claim for
unemployment compensation which was denied by
the state agency on the grounds that she had
voluntarily quit her job with the Employer for
domestic reasons.
The crucial fact is that the Employer terminated
Pacheco on November 17, 1972. It is undisputed that
despite several inquiries made of her by the Employ-
er, Pacheco refused to file a written request for leave
of absence as required by the collective-bargaining
agreement until November 10. By letter dated
November 17. the Employer denied her request as
untimely and separated her.
Subsequently in mid-December 1972 the Union
interceded on Pacheco's behalf and met with the
Employer in an attempt to secure for Pacheco a
vague qualified leave-of-absence status by which she
waived any contractual right to return but would
retain the right to recall if and when a vacancy
occurred. Apparently, the Employer agreed only that
it would rehire Pacheco as a new employee if and
when a vacancy occurred, a contingency which had
not occurred as of the date of the election. Further-
more, no vacancy had arisen at the time of the
hearing herein on May 3, 1973.
Contrary to the Administrative Law Judge, the
critical test is not whether Pacheco had decided in
her mind to quit or whether the Employer correctly
perceived her subjective state of mind. Rather, the
critical fact is that on November 17 the Employer
discuss the interrogation with other employees.
6 See Intercontinental Manufacturing Company, Inc, 167 NLRB 769;
Leonard Refineries, Inc, 147 NLRB 488 ; Stayer's Johnsonville Meats, Inc,
174 NLRB 693. In this connection , note that Goza s second interrogation of
Augustin occurred after the petition was filed , as did his questioning of
Conley
7 Walgreen Co, d/b/a Globe Shopping City, supra, dissenting opinion:
Leonard Refineries, Inc., supra, Metropolitan Life Insurance Company; 166
NLRB 553.
8 Walgreen Co, d/b/a Globe Shopping City, 203 NLRB No 36.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged Pacheco, and she was not an employee on
the date of the election .9 Furthermore , the mere fact
that she might be rehired at some future time as a
new employee does not give her eligibility to vote in
the election . The Employer's agreement to voluntari-
ly rehire her when and if work might be available for
which she was qualified put her no closer to
employee status than any other separated employee
who is advised that her former employer may
subsequently rehire her if openings arise for which
she is qualified . Inasmuch as Pacheco was not an
employee on the eligibility date or the date of the
election , I would sustain the Board agent's challenge
to her ballot.
For these stated reasons , in addition to dismissing
the complaint , I would issue a Certification of
Results in this case.
9 Otarion Listener Corp and its Subsidiary Audio Electronics Co, 124
NLRB 880
and upon my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation with a place of
business in San Jose, California, where it is engaged in the
processing of food products. In the course and conduct of
such business operations during the past year, Respondent
purchased and received goods and materials valued in
excess of $50,000 directly from outside the State of
California. I find Respondent to be engaged in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act and assertion of jurisdiction to be
appropriate.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
DECISION
STArEM ENT OF THE. CASE
Louis S. PENFIELD, Administrative Law Judge: This
consolidated proceeding was heard before me in San Jose,
California, on May 3 and 4, 1973, with all parties
represented. The complaint is based on a charge filed on
February 23, 1973, by Sales Delivery Drivers, Warehouse-
men & Helpers Union, Local 296, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, herein called the Union. The complaint,
alleging a violation of Section 8(a)(1) of the Act by Fearn
International, Inc., Eggo Foods Division, herein called
Respondent, issued on April 5, 1973.
On April 9, 1973, the Regional Director for Region 20
issued his report on challenged ballots in a representation
proceeding involving Respondent, and an order consoli-
dating Case 20-CA-8107 with Case 20-RD-843. In his
report on challenged ballots the Regional Director noted
that there were three ballots challenged, the determination
of which could affect the results of the election. The
Regional Director also concluded that the challenges
raised substantial and material issues of fact, and that the
alleged unlawful interrogation issue in Case 20-CA-8107
turned on a determination of the supervisory status of one
of the challenged voters. Under the circumstances, the
Regional Director concluded that the proceedings should
be consolidated for the purpose of hearing, and that
thereafter in conjunction with his decision in Case
20-CA-8107 the Administrative Law Judge should issue a
report on the challenges.
All parties were given full opportunity to participate in
the hearing, and after the close thereof Respondent and the
General Counsel filed briefs.
Upon the entire record in this consolidated proceeding,
i The name "Conley" is misspelled throughout the transcript as
"Conlay." It is hereby ordered that the record be corrected wherever this
III. THE CHALLENGED BALLOTS
On March 16, 1973, pursuant to a stipulation for
certification upon consent election, an election was
conducted under the supervision of the Regional Director
for Region 20 in a unit of Respondent's office clerical
employees at its operation in San Jose, California. The
tally of ballots served upon the parties at the conclusion of
the election disclosed that of approximately 14 eligible
voters, 6 cast ballots for and 6 against the Union. There
were no void ballots but three ballots were challenged.
These were the ballots of Geraldine Conley,' Irene
Pacheco, and Ray Goza. Conley's ballot was challenged by
Respondent on the ground that she was a temporary
employee not eligible to vote. Pacheco's ballot was
challenged by a Board agent because her name did not
appear on the eligibility list. Goza's ballot was challenged
by the Union on the ground that he was a supervisor
excluded from the unit. We will first consider the issues
raised by the challenges.
A. The Challenged Ballot of Ray Goza
The Union represents employees of Respondent at its
San Jose operation in four separate units . This proceeding
concerns only a unit comprised of Respondent's clerical
employees. Such employees had been covered by a
collective-bargaining agreement effective May 1, 1970, and
to expire on April 30, 1973.
The general manager of Respondent's San Jose plant is
Robert S. Barton. Alfred A. Ferrari is the comptroller and
has overall supervision of the clerical aspects of Respon-
dent's San Jose operation. The clerical unit is comprised of
approximately 14 employees. The majority of these
employees work in an office performing various clerical
tasks under the direct supervision of Office Manager
Dorothy Williams. Three to four others, also in the clerical
unit, are known as keypunch operators. Their work is
misspelling occurs.
FEARN INTERNATIONAL, INC.
referred to as data processing , and is performed on
machines located in an area which is separated by a glass
wall from the room where the other clerical employees
work . The keypunch operators spend full time at machines
putting a variety of material concerning Respondent's
operation on cards or tapes. The material so processed can
subsequently be fed to a computer located in the same
room, and later can be made into permanent records for
use by Respondent at the San Jose plant or at Respon-
dent 's out-of-state headquarters in Illinois.
Ray Goza is the principal operator of a computer located
in the same area as the keypunch machines , and also helps
in scheduling and programming all the keypunch work in a
manner to be described more fully below . It is claimed by
the Charging Party and the General Counsel that Goza is
the immediate supervisor of the girls employed as key-
punch operators . Respondent claims the supervisory
authority over all clericals, including the keypunch
operators , to be vested in Comptroller Ferran and Office
Manager Dorothy Williams. Two of the keypunch opera-
tors, Geraldine Conley and Georgia Augustin , testified
extensively concerning their duties and the functions of
Goza in relation to them . Ferrari and Williams also
testified in this regard . Goza himself was not called as a
witness.
Goza first came to work for Respondent in its data
processing unit in 1969 . He was hired at that time by Carl
Recktenwald , who was then classified as data processing
manager , and admittedly possessed full supervisory au-
thority over all employees doing data processing work.
Goza was hired principally to do computer work, but he
also assisted Recktenwald in programming and scheduling
the data which was to be fed to the computer. Initially,
Goza was an hourly paid employee who regularly punched
a timeclock in a fashion similar to the keypunch operators.
At some time prior to Recktenwald 's departure from
Respondent's employ in late 1971 , Goza was shifted from
an hourly pay to a salary status. He still retains salary
status, and unlike any other data processing employee, is
not required to punch a timeclock . According to Ferran,
Recktenwald's departure brought about no change of
substance in Goza's duties or responsibilities . Ferran
testified that he undertook to make it clear to boih
Williams and Goza that all the delegated supervisory and
administrative responsibility relating to the clericals,
including those engaged in data processing, was vested in
Williams. At all times Goza, although continuing to
operate the computer in the same room as the keypunch
operators , had an office adjacent to that room in which he
also did a fair amount of work relating to the functioning
of the data processing unit.
While Ferrari 's office was nearby, it does not appear that
in his capacity as the overall supervisor of all clericals he
regularly visited or undertook to oversee the day-to-day
functioning of the keypunch operators . Dorothy Williams
had a desk from which she could see through the glass wall
into the data processing room , but she did not regularly
visit the area or undertake to direct the work of the
keypunch operators . Keypunch operators Conley and
Augustin testified consistently and credibly that it was
Goza alone who gave them directions on a day-to-day
235
basis, and shifted their assignments when priorities
demanded that a particular job be done at a particular
time . They further stated that they would go to Goza in the
first instance when seeking to have their timecards initialed
for correction , or asking permission to take time off. They
testified that other keypunch operators turned to Goza for
the same purposes . Each testified that while Dorothy
Williams would on occasion deliver material to the data
processing unit to be worked on, she had no familiarity
with its technical operation and did not give them
directions in any aspects of the work . They acknowledge
that on occasion when Goza was not available , however,
they would go to Williams to initial timecard corrections or
to ask for time off.
There was also testimony adduced concerning Goza's
role in the hiring of new employees . Conley and Augustin
testified without contradiction that each had received her
first inquiry as to possible employment by way of a
telephone call directly from Goza. Each also testified that
she had subsequently been interviewed by Goza alone
prior to her employment , and that at the conclusion of
such interview she had been told to come to work. While
Goza supplied each girl at the time of the interview with an
application form which was subsequently filled out, filed
and processed by Dorothy Williams , neither one was
interviewed by Williams at any time prior to her coming to
work.
Ferrari acknowledges that he authorized Goza to seek
and interview these employees , but he states that in both
instances it was he who approved their employment after
reviewing the applications and discussing the interviews
with Goza . While admittedly Ferrari undertook no further
interview of either employee before she actually reported
to work, he claims that in addition to Goza 's recommenda-
tion he relied on knowledge obtained from other sources in
approving their employment.
Conley testified that in December 1972 Goza had told
her that he had been given the title of data processing
manager. Ferrari denies that Goza had ever been given
such title , and, as noted above, Goza did not testify.
Section 2( 11) of the Act in pertinent part defines a
supervisor as one with authority "to hire . . . assign .. .
responsibly to direct [employees ] . . . or effectively to
recommend such action . . . if . . . such authority is not
merely routine but requires the use of independent
judgment."
Contrary to the claim of Respondent , I am satisfied that
the record establishes Goza to have authority "responsibly
to direct" employees and "effectively to recommend" their
hire and that he is called upon to use "independent
judgment" in the exercise of such authority.
Goza came to Respondent at a time when its operation
included a data processing manager with full supervisory
authority over the employees in the data processing unit. It
is not shown that with Recktenwald's departure substantial
changes took place in Respondent's data processing. Goza
appears to have been Recktenwald 's principal assistant,
and at some point before the latter's departure his status
had been recognized to the extent that he was put on a
salary, and not required to punch a timeclock. When
Recktenwald left, Respondent did not specifically transfer
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his title to Goza, but the latter continued to function in a
manner that set him apart from other data processing
employees. Thus, Goza remained the only salaried data
processing employee, occupied a separate office, and was
the person to whom the employees turned and from whom
they received directions regarding day-to-day operations.
Although Goza was not called as a witness , the record
indicates that he carried out his role with little or no
consultation or direction from either Williams or Ferrari.
While much of the work of the keypunch operators
followed fixed patterns and required no detailed instruc-
tions, it is a reasonable assumption that the keypunch
operators needed someone to note and correct mistakes
and to determine priorities. Williams lacked technical
knowledge to function in this area and her direct
supervision of employees appears to have been limited to
others in the clerical unit. Ferran had broader concerns
than the day-to-day functioning of the data processing unit
alone. At one time Respondent had regarded the function
of overseeing its data processing operation as of such
significance that despite the availability of Williams and
Ferrari it had employed a full-time supervisor. When
Recktenwald left, Respondent apparently concluded that
the use of a full-time supervisor was no longer essential.
This, however, scarcely obviated the need for a "working
foreman" who in conjunction with other duties would
exercise "responsible direction" calling for the use of
"independent judgment," and I am satisfied and find that
Goza in fact filled such a role in relation to the keypunch
operators.
In addition to Goza's functions in the direction of
keypunch operators, Respondent retied in substantial
measure on Goza when hiring such employees. Ferran
seeks to downgrade the importance in Goza's role in this
regard, but the fact remains that it was Goza alone who
interviewed both Conley and Augustin and told each she
was hired. Ferrari testified that he approved both the hires
after Goza reported the results of his interviews. Conceiva-
bly, he might have vetoed Goza's recommendations but in
both instances he followed them, and there is no showing
that he undertook the sort of independent investigation
that would signify that he was not prepared to attach
substantial if not controlling weight to Goza's recommen-
dations. The conclusion becomes inescapable that by
directing Goza to make the interviews and later following
Goza's recommendations, Ferrari intended to, and did,
cloak Goza with authority "effectively to recommend" the
hire of employees within the data processing unit, and I so
find.
Accordingly, I find Goza to possess authority responsi-
bly to direct the work of the employees in the data
processing unit, and effectively to recommend their hire,
and thus to be a supervisor within the meaning of the Act.
As a supervisor, Goza would fall outside the scope of the
bargaining unit, and it is recommended that the challenge
to his ballot be sustained?
B. The Challenged Ballot of Geraldine Conley
Geraldine Conley was first employed by Respondent on
August 28, 1972, as a senior keypunch operator. At the
time of her employment Respondent had three keypunch
operators in the data processing unit. These were Alice
Sun, Sharon Manzonares, and Georgia Augustin. Alice
Sun had applied for maternity leave . Georgia Augustin had
previously worked with Geraldine Conley in another place
of employment, and advised Ray Goza that she knew
Conley to be a qualified keypunch operator whose current
employment was phasing out. Goza communicated with
Conley by telephone and scheduled and held an interview
at which he told her to report for work on August 28. It
was made clear to Conley at the time of hire that she came
as a temporary employee to fill in while Alice Sun was on
leave, and that her employment would terminate upon
Alice Sun's return.3
Early in February, Alice Sun returned from her leave.
Normally Conley would have been terminated at this time.
Respondent, however, had been advised that keypunch
operator Sharon Manzonares needed to be absent from
work for a number of weeks to undergo an operation. Goza
asked Conley if she would extend her employment until
Manzonares' return, and Conley agreed to do so. Conley
remained on the job until April 20 when her employment
was terminated with the return of Manzonares to work.
This meant that Conley was still on Respondent's payroll
on the March 16 election date, at which time she voted a
challenged ballot.
Conley testified that some time in February Ray Goza
had told her that "he and [Williams] were trying to work
out a job whereby [she] could work 4 hours in the office
and 4 hours in the computer center and cover for vacation
and Easter if not longer. They were trying to keep [her] as
long as possible." Conley further testified that some 2
weeks later Goza had told her "not to rush to get another
job because [she] would probably be there longer than
[she] thought."
As noted above, Conley's original tenure of employment
was extended because of Manzonares' absence. About 1
week before Manzonares' return, Williams told Conley
that Manzonares was coming back and that Conley should
"make [her] plans." Conley was terminated on April 20,
and Manzonares came back on the next workday.
Plant Manager Barton testified that in the course of a
conversation he had with Conley on the day before the
election during which various company benefits were being
discussed, Conley had commented, "that it doesn't really
matter. I'm only temporary." Conley acknowledges that
she made such a remark to Barton. She states that she
changed her position later that same day when she
attended a union meeting and was apprised that because of
the union contract she was not a temporary employee and
was entitled to vote. It was because of such advice that she
appeared at the polls and cast a ballot, although her name
had not been placed on the eligibility list.
I am satisfied that at all times during her employment
2 There is testimony in the record concerning Goza's authority to fire or + On Conley's employment application itself there is a notation in the
discipline employees. I view this testimony as somewhat inconclusive and I handwriting of Comptroller Ferrari reading "to be hired as a temporary
do not rely upon it to reach the conclusion that Goza is a supervisor. replacement in DP [Alice Sun I "
FEARN INTERNATIONAL, INC. 237
Geraldine Conley was a temporary employee, and that
there is nothing in the record to show that in any way her
status was changed before the election . It was clear beyond
all doubt that Conley was hired to fill in for Alice Sun
initially, and that she clearly understood this and expected
to be terminated upon Alice Sun's return. Her extended
tenure came about only by the happenstance of Sharon
Manzonares ' operation . 1 find nothing in the record to
suggest that this had the effect of changing her status, or
that management engaged in conduct that would reason-
ably lead her to believe a change had occurred.
Conley's testimony regarding her conversations with Ray
Goza during Februa ry are inconclusive and suggest only
that Goza viewed her as a good employee who might be
valuable to keep if it could be worked out. Accepting
Goza's statement at face value and making the dubious
assumption that Goza possessed authority as to make
commitment as to Conley 's future, his statements to
Conley are scarcely phrased in terms of commitment, and
there is nothing else in the record to show that Goza or
anyone in management ever considered further or reached
a decision to retain Conley after Manzonares ' return in the
manner suggested as a possibility in Goza's comments to
Conley. Indeed, until the eve of the election Conley herself
continued to view her employment as limited . Although
Conley testified that at that time she was told by the Union
that she was eligible to vote because of provisions in the
union contract , she does not elaborate on this, and I note
nothing in the contract which would suggest or require that
an employee hired for a specific purpose whose employ-
ment was to be terminated upon the return of a regular
employee , should be deemed as having regular employee
status. Accordingly, I find Geraldine Conley to have been
hired as a temporary employee , to have held such status at
the time of the election, and therefore to have been
ineligible to vote . Thus, I recommend that the challenge to
her ballot be sustained.
C. The Challenged Ballot of Irene Pacheco
Irene Pacheco first went to work for Respondent as a
clerical employee in May 1962. She was continuously
employed thereafter until April 1969, at which time she
quit her employment in anticipation of the birth of her first
child . At this time. she did not request nor receive a leave
of absence . She returned to her employment after an
absence of 2 or 3 months , at first on a part-time basis, and
subsequently as a full-time employee , and worked continu-
ously until September 1972.
In late spring 1972, Pacheco informed Dorothy Williams
that she was again pregnant . The union contract in effect
at that time contained a provision that an employee may
be granted a reasonable leave of absence upon written
application. According to Williams, she informed Pacheco
of this provision. and understood from Pacheco that she
intended to apply for such leave . Williams testified to a
further conversation with Pacheco in August in which
Pacheco advised her that she wanted a leave of absence,
and requested aid in making the necessary request.
Pacheco denies having any discussion with Williams
concerning written applications for a leave of absence but
she insists that in all her discussions with Williams she
made it clear that in any event she did not intend to quit
because of the birth of her baby.
On September 8, 1972, Pacheco was granted time off to
see her doctor and, upon returning from this visit , advised
Williams that the doctor had told her that she should have
2 weeks of bed rest. Williams granted this request, and in
the following week received a telephone call from Pacheco
from the hospital reporting that her baby had been born
prematurely . Some 2 weeks later in another telephone
conversation Williams states she asked Pacheco if she was
going to submit a written application for a leave of
absence . She states that Pacheco replied that she did not
wish to at this time because of the somewhat precarious
condition of the baby.
At some point in the middle of October, Pacheco had a
further telephone conversation with Williams . According
to Pacheco, she informed Williams that the baby was now
better and that if there was an opening she would be able
to return reasonably soon . Pacheco testified that Williams
advised her that she would place her in layoff status so that
she might draw unemployment compensation . Williams'
version of this telephone conversation differs in substantial
measure . Williams testified that Pacheco sought her aid in
adjusting her employment status in some manner so that
she might be eligible to receive unemployment compensa-
tion . Williams states that she undertook to explain to
Pacheco that unemployment compensation was not availa-
ble to women who leave work for maternity reasons, that
there was no way in which Pacheco could be placed in
layoff status, and that once again she asked Pacheco if she
intended to file a written application for a leave of absence.
According to Williams , Pacheco replied that she would
prefer to stay at home with the baby and draw unemploy-
ment . Shortly after this, Pacheco filed a claim for
unemployment compensation with a state agency . This was
denied in the ruling by the state agency, a copy of which
was received by Respondent on November 6. The agency
ruled that Pacheco was not entitled to unemployment
compensation because she had voluntarily quit her job
with Respondent , had made no attempt to obtain a leave
of absence , and had quit the job for domestic reasons.
Following the denial of unemployment compensation,
Pacheco had a further conversation with Williams in which
she made an effort to convince Williams that, contrary to
the finding of the state agency , she had not quit her job
and did not intend to do so . Unsuccessful in convincing
Williams on this point , Pacheco sought advice from Union
Business Agent Torrisi. Torrisi advised Pacheco to file a
written request for leave of absence . Thus, on November
10, 1972, Pacheco wrote a letter to Respondent setting
forth that because of the premature birth of her child, she
had been confused as to her rights , and had therefore not
filed such a request, but that by this letter she was
requesting leave of absence and expected to be ready to
return to work by January 1973. On November 17, 1972,
Williams wrote Pacheco advising her that in view of her
failure to file a request for leave of absence at an earlier
point, the Company viewed her as having quit her job and
accordingly would terminate her employment.
At this point Pacheco again sought the aid of Business
Agent Tomsi. Torrisi called Williams to determine why the
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave-of-absence request had not been accepted. Williams
told him that she and Ferran deemed the request to be
untimely and not in accordance with the requirements of
the union contract . Torrisi concluded that a misunder-
standing existed between Pacheco and Respondent, but
that rather than file a grievance under the contract, he
decided to seek a meeting with management to attempt to
work out the problem on an informal basis.
Such a meeting was arranged and held in mid-December
1972, and was attended by Ferran, Williams, Tomsi, and
Pacheco . During the course of the meeting Pacheco
explained that she had not submitted her leave request
earlier because she believed she had an understanding with
Williams which rendered this unnecessary. Williams
denied the existence of any such understanding . According
to Torrisi, he concluded that for a variety of reasons
Pacheco had been confused as to what was required best to
protect her rights and had thus failed to file a more timely
leave request . At the same time Torrisi also concluded that
management was taking an unnecessarily rigid position in
rejecting her late leave request . Since Torrisi viewed both
parties as in some measure at fault , he suggested, and he
believed he had obtained, a compromise whereby Respon-
dent was to put Pacheco back to work on a full- or part-
time basis at such time as a vacancy occurred for which she
was qualified . It developed at the hearing , however, that
Respondent and the Union differ substantially as to the
nature of their purported agreement . Torrisi testified, in
effect, that he viewed the understanding as giving Pacheco
what amounted to a qualified leave of absence in which she
waived the absolute right to return that an ordinary leave
of absence would accord her, but retained employee status
and the right to recall at such point that a vacancy
occurred. Respondent, on the other hand, claims the
agreement to mean only that Pacheco would be rehired as
a new employee if and when a vacancy occurred. It is
conceded that up to the time of the election, and even at
the time of the hearing, no vacancy for which Pacheco
would be eligible had come into being . The Union's view
would accord Pacheco the status of an employee on leave
of absence pending the vacancy and make her eligible to
vote, while Respondent's position would leave Pacheco
with no employment status until such time as the vacancy
occurred and she had actually been rehired, thus rendering
her ineligible to vote.
Pacheco was a long-term and apparently competent and
satisfactory employee. I am satisfied that Respondent
viewed her continued employment favorably, and that
Williams advised her fully and correctly regarding the
contract requirements respecting a leave of absence. Her
delay in applying appears to have been largely her own
fault and it is understandable that management, somewhat
provoked by her failure to follow its advice , might view her
action in applying for unemployment compensation,
together with the ruling of the state agency, as an
expression of an intention to quit. On the other hand, we
should not overlook the fact that the issue arose at a time
when Pacheco had just been through the traumatic
experience of a premature birth, and was still suffering
from anxiety over the survival of the infant. Undoubtedly,
she was experiencing a degree of confusion as to her future,
both at work and at home , and was not capable of
considering available alternatives with appropriate objec-
tivity. I credit her testimony to the effect that whatever else
may have influenced her, and to whatever extent she may
have been confused, she at no time intended to quit
altogether , and she sought unsuccessfully to make this
clear to Williams . Regardless of this , however, the
conclusion Respondent reached , as set forth in its
November 17 letter, is not an unreasonable one, and were
it not for subsequent events it might be deemed dispositive
of the issue regarding Pacheco 's status.
I am of the opinion , however, that the advent of the
Union into the picture at this point gave the controversy a
new perspective . At the time the issue arose there was no
election pending, and insofar as this record shows a
mutually satisfactory bargaining relationship existed be-
tween Respondent and the Union. I have every reason to
believe that Torrisi entered the controversy with the aim to
bring about an adjustment fair to both sides . He found in
Pacheco a long-term employee who in a period of stress
and strain , perhaps influenced by the hope that she could
"have her cake and eat it too" by getting both unemploy-
ment compensation and leave status , had not used contract
procedures in a timely fashion . At the same time
Respondent's apparently unyielding stand on the time
issue could have the effect of denying a long-term,
satisfactory employee , employee status.
We must assume that had Pacheco made her leave
request in a timely fashion, it would have been granted. If
so, she would have preserved continuing employee status
together with the right to return to her job in accordance
with the terms of the leave grant. If she were deemed to
have quit , however , she would retain neither employee
status nor any assurance of reemployment. It is reasonable
to assume , however , that as a former satisfactory employee
Respondent would have given her a job when a vacancy
occurred and she applied . Thus, its commitment to do so
would offer her little that would not likely be forthcoming
anyway. Reemployment as a new employee would obvi-
ously be far less advantageous to Pacheco than retention of
continuing employee status. It is , therefore , reasonable that
the Union, even though willing to forego her right to return
until a vacancy occurred, should seek retention of
continuing employee status. Respondent 's claim that the
agreement was limited to a commitment to rehire Pacheco
as a new employee seems of doubtful validity. Not only
would this add little to Pacheco 's then existing status, but it
is almost certain that the Union would have deemed it
insufficient and have taken the issue up formally as a
grievance . Neither side was as explicit as might be
desirable as to the precise terms of the understanding, and
unfortunately the agreement was not memorialized in
writing . The advantages of retaining continuing employee
status for a long-term employee , however , are so obvious
and the existing equities in favor of according Pacheco
such status so clear, that I find it unlikely that at the time
the issue came up either party believed that the agreed
compromise would foreclose Pacheco's right to remain an
employee . I view Respondent's position taken later as more
likely to be an afterthought arising when it became clear
that it would render Pacheco an ineligible voter . Accord-
FEARN INTERNATIONAL, INC.
ingly, I find that as a result of the December meeting the
parties reached an agreement that, while Pacheco was not
to be granted a full leave of absence, she was to be given
what amounted to a qualified leave status which entitled
her to maintain continuing employee status until such time
as a vacancy for which she was qualified occurred.
Respondent makes the further claim that even if Pacheco
be accorded employee status, she had no reasonable
expectation of recall in the near future, and therefore
should be deemed ineligible to vote. I disagree. It is not
appropriate in all instances for an employee not working to
retain his employee status indefinitely. In situations where
the general business prospects render it unlikely that the
work that the employee had been doing is to be resumed in
the foreseeable future, such status might be lost. Here,
however, the work in the clerical unit was going on as
before. A vacancy might have come about at any time. The
election took place less than 3 months after Pacheco
indicated her availability to return. Surely for this long at
least she should be considered as having a reasonable
expectation of employment, and I so find.
Since Pacheco had continuing employee status as of the
eligibility date, she should be permitted to vote with others
in the clerical unit. Accordingly, I recommend that the
challenge to Pacheco's ballot be overruled and that her
ballot be counted.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that in January 1973 Respondent,
acting through Ray Goza, engaged in conduct violative of
Section 8(a)(1) "by mterrogating an employee concerning
the union sympathies of its employees."
The evidence shows that in late January a petition was
being circulated among Respondent's clencal employees
seeking their signatures to support a petition for decertifi-
cation. On January 25, Goza asked Georgia Augustin to
come into his office. Goza commented on the likelihood of
an election in the near future, and wrote on a piece of
paper separate columns headed "yes" and "no." He
questioned Augustin as to her voting intentions, and when
she replied that she expected to vote against the Union, he
wrote her name in the "no" column. Following this Goza
queried Augustin as to her knowledge of the union
sympathies of each of the employees in the unit. When
Augustin expressed her views as to each individual, Goza
would write her name in the "yes" or "no" column as the
case might be. This is the sole evidence of unlawful
interrogation alleged or proved. It was not shown that
subsequent to the questioning Augustin discussed the
matter with any other employee in the unit, or that the
incident came to the attention of the other employees in
any other manner. Inasmuch as Goza did not testify,
Augustin's testimony with respect to the interrogation
stands undemed.
Respondent claims the interrogation to have been
4 Walgreen Co., d/b/a Globe Shopping City, 203 NLRB No. 36; Howell
Refining Company, 163 NLRB 18: Metropolitan Life Insurance Company, 166
NLRB 533.
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations cf the National Labor Relations Board, the findings,
239
isolated in nature and where, as here, it is not found
coupled with other unlawful acts, it is asserted to be
insufficient to support a Board order. I agree.
No other unlawful conduct on Respondent's part with
respect to any employee in the clencal unit has either been
alleged or established. Although I have found Goza to be a
supervisor, his place in Respondent's supervisory hierarchy
is at the lowest level. Goza himself was a union member
who apparently spoke freely with the other data processing
employees. The interrogation took place before the
decertification petition was filed and a month and a half
before the election. No similar or related incident occurred
thereafter. While Goza did not specifically assure Augustin
that her answers would not result in reprisals, neither did
he threaten or suggest to her that such might occur. The
employees were all aware that management had not only
bargained with the Union for a clerical unit in the past, but
that the same Union represented and had contracts for
three other units in the same plant. The Union filed the
charge before the election was held, but did not deem
anything occurring in relation to the conduct to the
election itself to be of sufficient significance to support
objections, and no claim is made that this sole incident of
interrogation is grounds for setting aside the election.
While all interrogation, and especially that occurring in a
preelection period, must be viewed with suspicion as
having a possible coercive effect upon the freedom of
choice of the employees, it is appropriate to consider the
scope of such interrogation and the context and circum-
stances in which it takes place before determining if, in any
given situation, it will suffice to support a remedial order. I
regard it as significant that the one employee questioned as
to the union sympathies of her fellow employees is not
shown to have spoken to others in the unit regarding such
interrogation. Thus, even if the interrogation be deemed
coercive in nature, the effect here appears minimal.
Considering this and the surrounding circumstances set
forth above, I view the isolated nature of this incident as of
such scant significance that I am of the opinion that no
sufficient statutory purpose will be served by the issuance
of a remedial order. Accordingly, I shall recommend that
the complaint be dismissed in its entirety.4
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
It is hereby recommended that the complaint herein be,
and it hereby is, dismissed in its entirety.
IT IS FURTHER RECOMMENDED to the Board that in Case
20-RD-843 the challenges to the ballots of Ray Goza and
Geraldine Conley be sustained, and that the challenge to
the ballot of Irene Pacheco be overruled, and her ballot be
counted with appropriate procedures thereafter followed.
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes