Gabriel Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1973

201 N.L.R.B. 1015 (N.L.R.B. 1973)

GABRIEL MFG. CO. 1015
Gabriel Mfg. Co., Inc . and Textile Workers Union of
America, AFL-CIO. Cases 2-CA-12565 and
2-RC-15716
February 26, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 6, 1972, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the Union filed exceptions
and a supporting brief, and the Respondent filed a
brief in reply to the Union's 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 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 Respondent, Gabriel Mfg. Co.,
Inc., its officers, agents, successors, and assigns, shall
take the action set forth in said recommended Order.
IT IS FURTHER ORDERED that the election conducted
on December 2, 1971, in Case 2-RC-15716 be, and it
hereby is, set aside, and that Case 2-RC-15716 be,
and it hereby is, remanded to the Regional Director
for Region 2 for the purpose of conducting a new
election at such time as he deems the circumstances
permit the free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF , Administrative Law Judge: This
matter was heard in Haverstraw, New York, on August 22
and 23, 1972. The complaint issued on April 28, 1972,'
based on a charge filed on January 31, 1972, by the Textile
1 All events took place in 1972 unless otherwise indicated.
z The testimony of all witnesses has been considered . In evaluating the
testimony of each witness , demeanor was relied on . In addition, inconsisten-
cy and conflicting evidence were considered . The absence of a statement of
resolution of a conflict in specific testimony or, of an analysis of such
testimony , does not mean that such did not occur . See Bishop & Malco, Inc.,
Workers Union of America , AFL-CIO, hereinafter known
as the Union . The charges allege in substance that the
Respondent unlawfully interrogated its employees in an
effort to find out why they wanted a union to represent
them ; notified certain employees that they were entitled to
participate in a profit-sharing plan shortly before an
NLRB election ; threatened to discontinue said plan, and
to discontinue a hospitalization plan if the Union was
elected; granted a 5-percent across-the -board increase
effective December 17, 1971, which event occurred 15 days
after the Union lost the election and during the pendency
of timely filed objections to the election . The cases were
consolidated since much of the alleged 8(a)(1) activity
encompassed the subject matter included in the objections.
Respondent's answer denies the commission of the unfair
labor practices alleged , but admits allegations of the
complaint sufficient to support the assertion of jurisdiction
under current standards of the Board ($50,000 annual
interstate inflow and outflow). Respondent stipulated at
the hearing that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
Upon the entire record in this case , upon the observation
of the witnesses ,2 and after due consideration of the briefs
submitted , the Administrative Law Judge makes the
following:
FINDINGS AND CONCLUSIONS
During the course of the hearing some questions were
raised by the General Counsel concerning the Company's
payroll records . Subsequent to the close of the hearing I
received a written stipulation signed by all the parties to
this proceeding which was captioned "Respondent's
Payroll and Personnel Records" which was received in
evidence as General Counsel's Exhibit 13. The General
Counsel also submitted a two-page statement which
consists of a number of changes in the record . If this
document is being offered in the form of a motion to
correct the record , it is unopposed and I hereby grant the
motion.
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Violations of Section 8(a)(1)
The General Counsel produced five witnesses all of
whom testified in Spanish which was translated into
English by the official interpreter . Cipriana DeJesus
testified that he knew about Respondent's profit-sharing
plan before the meeting with the Company's president,
Edmond Gabriel, which took place about 3 days before the
NLRB-conducted election . This testimony is directly
counter to the allegation in the complaint that the
employees were informed for the first time of the existence
of this plan immediately prior to the date when the election
took place . DeJesus said that he was instructed to leave his
machine and report to Mr . Gabriel in his office. When he
d/b/a Walker's, 159 NLRB 1159, 1161. Further , to the extent that the
witnesses were credited only in part , this is done upon the evidentiary rule
that it is not uncommon "to believe some and not all the witnesses'
testimony." N.LR.B. v. The Universal Camera Corporation, 199 F.2d 749,
754 (C.A. 2).
201 NLRB No. 151
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
got there he found Gabriel, his supervisor Torres, and
another employee , Jose Cruz was also present . Cruz said he
needed more money . Gabriel replied that for the time
being he couldn 't give him any increase until after the
election . He also said that after the election he would talk
to all the employees.
Gabriel had a piece of paper in front of him. He said you
have some money here but that if the Union won he would
not be able to continue depositing money in that account.
DeJesus went on to say that Gabriel also remarked that he
was paying "for an insurance for the employees but that if
the Union won it was the Union that would have to pay the
insurance ." After the meeting was over DeJesus testified
that he saw Torres go over and take employees Manuel
Martinez , Carmelo Cosine , and Gilberto Rivera into
Gabnel 's office. After the election was over , DeJesus saw a
notice posted on the bulletin board telling the employees
that they were getting an increase in pay. DeJesus received
a 10-cent-per-hour increase.
Cosine testified that about 3 days before the election he
was conducted to Gabriel 's office where he was spoken to
about the profit-sharing plan. Cosine said he did not know,
prior to this discussion , that he was participating in the
plan. Gabriel also asked Cosine if he wanted a union.
Cosme replied that he did not want a union. Some 5
minutes later another employee , Miguel Martinez, was
brought into Gabriel's office . Cosme testified that Gabriel
told Martinez that if the Union was selected he would lose
his job.
Miguel Martinez testified that about 3 days before the
election he was brought to Gabriel's office . Martinez said
Gabriel told him that if the Union came in he would not
give the employees an increase in pay . Martinez also said
Gabriel asked him if he was going to vote for the Union.
Further that if Martinez voted for the factory he would get
a raise.
Manuel Martinez testified that he and an employee
named Rivera were called into Gabriel's office. Torres
acted as interpreter . Martinez said Gabriel asked both
these employees why they wanted a union. They told him
they wanted to receive benefits . Martinez went on to say he
had been working for the Respondent for 10 years, was
earning only $2.30 an hour, and had only a 1-week
vacation . Gabriel also allegedly told the men "Why do you
want a union since you have here hospitalization and profit
sharing plan?" With respect to the profit-sharing plan
Gabriel did not say whether he had to take it off or not, but
he said he was not obliged to have it.
Jose Cruz appeared as a witness for the General Counsel
who was called into Gabriel's office about 3 days before
the election. When he reached the office he found Torres
and DeJesus there. According to Cruz, Gabriel told him he
(Cruz) was included in the profit-sharing plan but he would
lose it if the Union came in. Gabriel also told DeJesus that
he too would lose the money in the profit-sharing plan if
the Union came in . Further, Cruz testified that Gabriel
told him that the Company was paying for insurance but if
the Union came in that money would have to be paid by
the men.
Alpidio Tones was called as Respondent's first witness.
Tones said that although he understands English quite well
he prefers to give his testimony through the interpreter
because he does not speak English very well. Torres acted
as the interpreter for the employees during their conversa-
tion with Gabriel. Torres said Gabriel told the men the
profit-sharing plan had been in effect long before the
Union came into the picture . Further, that the Union could
say nothing about it because Gabriel was "giving this out
of his own good heart ." Torres then testified without
equivocation that Gabriel did not threaten to take either
the profit-sharing plan or hospitalization insurance away if
the Union came in. Torres also flatly denied that Gabriel
said anything to DeJesus about losing his job if the Union
came in. So far as wages are concerned Gabriel only stated
that after the election the people could go and talk to them
about wages . Further, Tones testified that Gabriel said the
same things to Manuel Martinez that he had said to
DeJesus . Similarly, Tones reiterated the fact that Gabriel
said the same things to Cruz. Tones said he has been a
supervisor for the past 2 years. Tones did state that
Gabriel asked all the employees to whom he spoke why
they wanted a union.
Respondent then called Hans Baehne as a witness. He
testified that he has worked for the Company for
approximately 20 years. He is a toolmaker, Baehne said he
heard that there was a union trying to get into the plant.
He, on his own, called a meeting at lunch-time at which he
discussed what he thought would happen if the Union got
into the plant. He said , "If something happens here we
might lose the money that is in the profit sharing plan. Also
we have hospitalization , Blue Cross and Blue Shield, which
is quite high right now and we might have to pay that on
our own later on. Also I said that everyone was working
overtime , but if the Union comes in and the boss has to
pay more wages we might have to cut out the overtime."
Baehne said he is not a supervisor , he is just a toolmaker
and he receives overtime pay. He earns $3.94 an hour.
About six to eight employees heard his remarks . Sometime
later on the same day Baehne told Gabriel what he had
said to the employees . Gabriel told Baehne that as long as
the remarks came from me I can say anything . Gabriel did
not authorize me to make these statements.
There is no question that Gabriel called certain employ-
ees into his office 3 days before the election took place.
Gabriel admitted this fact . There is considerable difference
between what transpired while the employees were in the
office as related by the employees from the version given
by Gabriel. All five of the employees testified that Gabriel
asked them why they were interested in the Union. The
witnesses also said that Gabriel had a piece of paper in
front of him and, although the language used to describe
what Gabriel said differed , the sum of his statements was
to let the men know that there was a profit-sharing plan in
effect and remarks were made to the effect that if the
Union won he would not be able to continue depositing
money in that account . DeJesus stated that Gabriel said
"he was paying for an insurance for the employees but that
if the Union came in it was the Union that would have to
pay the insurance."
Torres, the Respondent's supervisor who acted as the
interpreter , testified that Gabriel did not threaten to
terminate the profit-sharing plan or the insurance . Accord-
GABRIEL MFG. CO. 1017
ing to Torres, Gabriel told the men the profit-sharing plan
had been in effect long before the Union appeared on the
scene . Torres flatly denied that Gabriel said anything to
DeJesus about losing his job if the Union came in. It was
not denied by Torres that Gabriel did in fact ask all the
employees why they wanted a union. Gabriel's testimony
corroborated the version given by Torres. It was also not
denied that about 2 weeks after the Union lost the election
an across-the-board wage increase of 5 percent was given
to all the employees.
Even if only the admissions made by Gabriel are
accepted it is clear that he interrogated his employees as to
why they wanted a union . The fact that this occurred in
Gabriel's private office to which the employees had been
summoned and where they had previously never been
before constitutes a violation of Section 8(a)(1). The cases
are legion that such action by an employer is coercive and
a violation of the Act. I so find. With respect to the
granting of a wage increase after the election but during
the pendency of objections this too is violative of the Act.
All-Tronics, Inc., 71 LRRM 1621, states: The Employer vio-
lated the LMRA when, following the Union's defeat in
an election and during the pendency of the Union's
objections to the election, it granted a general wage
increase. [175NLRB644.] This is so because the general
wage increase was granted at a time when the employer
faced the possibility of a second election. From this fact it
can be reasonably inferred that the general wage increase
was designed to erode union support among the employees.
As part of its defense Respondent called Hans Baehne as
a witness. Baehne testified that he is a toolmaker who has
worked for the Company for 20 years. He is not a
supervisor. He said he heard that a union was trying to get
into the plant. Entirely on his own initiative he called a
meeting at lunchtime at which he discussed what he
thought would happen if the Union got into the plant. He
said, inter alia, "If something happens here we might lose
the money that is in the profit sharing plan. Also we have
hospitalization, Blue Cross and Blue Shield, which is quite
high right now and we might have to pay that on our own
later on ." Also he said that everyone was working
overtime, "but if the Union comes in and the boss has to
pay more wages we might have to cut out the overtime."
About six or eight employees heard his remarks. Sometime
later on during the same day Baehne told Gabriel what he
had told the employees. It is clear from further testimony
by Baehne that Gabriel did not authorize him to make
these remarks nor was he under an obligation to disavow
them since Baehne was not a supervisor.
It is interesting to note that Baehne's admitted state-
ments closely parallel the testimony of the five employees
which they attributed to Gabriel. However, there is nothing
in the record to explain the fact that Baehne spoke to the
men in English and nothing was said about having
someone translate these comments . While it might be
argued that the men were confused and attributed
Baehne's statements to Gabriel since they were similar in
content to the testimony of the employees. No such
argument was advanced by Respondent.
I do not credit the testimony of Miguel Martinez that
Gabriel told him if the Union came in there would be no
increase in wages for the employees ; Gabriel asked him if
he was going to vote for the Union ; and if Martinez voted
for the factory he would get a raise . These statements made
by Martinez were not made with conviction and they
differed from the testimony of the other witnesses. It is
reasonable to suppose that Gabriel followed a fairly
consistent pattern and this is borne out by the testimony
offered by the other witnesses . None of the others
corroborated what Martinez said.
B. The Objections to the Election
The Respondent having been found to have coercively
interrogated its employees concerning their union sympa-
thies and activities I find it necessary to order the
Respondent to cease and desist from such activities by the
posting of an appropriate notice.
Such activities also constitute interference with the
election in Case 2-RC-15716 and I therefore will order
that the results of said election be set aside and a new
election will be ordered at a time when the Regional
Director of Region 2 has concluded that a fair election can
be conducted.
C. Credibility Resolutions
I do not credit Gabriel's flat denial that he did not
coercively interrogate the employees who were summoned
to his office. The mere fact that he asked each of the five
employees why they wanted a union constitutes coercive
questioning into an area that was none of his business.
Whatever his intentions may have been, this type of
interrogation, which admittedly occurred only 3 days
before the election , had an inhibitory effect upon them. It
should also be remembered that these employees were all
Spanish-speaking men who, in the ordinary course of
events , were unfamiliar with their rights under the Act. For
the most part the demeanor of the General Counsel made a
favorable impression on me and I cannot believe that they
fabricated in concert a tissue of lies.
Analysis and Concluding Findings
As stated supra I have credited the testimony of the
General Counsel's witnesses insofar as this testimony with
respect to the question asked of each of them as to why
they wanted a union . Under the circumstances of this case,
and in the light of the fact that all these men were called
into the president's office where they had never been
before, the question asked each of them was coercive and
violative of Section 8(a)(1) of the Act . I so find.
The granting of a general wage increase during the
pendency of objections filed by the Union is also an
additional violation of the Act.
11. REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The granting of a plantwide wage increase during the
pendency of objections to the election has also been found
to be a violation of Section 8(axl) of the Act. The
Respondent will also be ordered to include in its notice to
all employees language designed to dissipate the effects of
this unfair labor practice.
CONCLUSIONS OF LAW
1. By coercively interrogating five employees 3 days
before a scheduled NLRB election , Respondent has
violated Section 8(a)(1) and has thereby engaged in unfair
labor practices affecting commerce within the meaning of
the Act.
2. Having granted a plantwide increase during the
pendency of objections filed by the Union after it lost the
election also constitutes an additional violation of Section
8(a)(1) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act , I hereby issue the following recommended:3
ORDER
Respondent , Gabriel Mfg. Co., Inc., its officers , agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Questioning employee concerns and union activities
or union sympathies or any manner violative of law.
(b) Granting across-the-board general wage increases at
a time when there is pending before the Board objections
to an election.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at Respondent 's premises at the Haverstraw,
New York, plant copies of the attached notice marked
"Appendix."4 Copies of said notice, to be furnished by the
Regional Director for Region 2, after being signed by a
duly authorized representative of the Respondent involved,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily displayed . Reasonable steps
shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 2, in writing,
within 20 days from receipt of this Decision , what steps
have been taken to comply herewith .5
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
3 In the event no exceptions are filed as provided by Sec. 102 46 of the
Board 's Rules and Regulations of the National Labor Relations Board, the
findings, 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.
4 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
s In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read-
"Notify the Regional Director for Region 2, in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the National Labor Relations Act gives all
employees these rights:
To organize themselves
To form, join , or help unions
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things
WE WILL NOT do anything to interfere with our
employees in the exercise of the aforementioned rights.
WE WILL NOT grant general wage increases with the
intention of undermining union support.
WE WILL NOT interrogate any of our employees
concerning their union sentiments or activities.
All our employees are free to belong , or not to belong to
the Textile Workers Union of America, AFL-CIO.
GABRIEL MFG. CO., INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office , 36th Floor, Federal
Building, 26 Federal Plaza , New York, New York 10007,
Telephone 212-264-3311.