Georgia-Pacific Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1961

132 N.L.R.B. 612 (N.L.R.B. 1961)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into a discriminatory action , I shall also recommend that the Respondent make avail-
able to the Board , upon request , payroll and other records to facilitate the de-
termination of the amount due under this recommended remedy.
In view of the nature of the unfair labor practices committed , the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon the rights guaranteed to its employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in respect to the hire and tenure of employment of Arthur
Paradis, Mary Carter, Alma Mitchell, Claudetta Sadler, Constance Arendell, and
Ruby Burke, thereby discouraging membership in Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, Local No. 246, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
2. By the foregoing conduct, by interrogating employees with respect to the
activities of the Union and their affiliations with it, and by threatening its employees
with economic reprisals should they select the Union as their bargaining represent-
ative or participate in its organizational campaign , the Respondent has interfered
with, restrained , and coerced employees in the exercise of their rights guaranteed
in Section 7 of the Act, and, thereby the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
[Recommendations omitted from publication.]
Georgia-Pacific Corporation and International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America, Local 657. Case No. 93-CA-1078. July 31, 1961
DECISION AND ORDER
On March 28,1961, Trial Examiner George J. Bott issued his Inter-
mediate Report in this case, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the Intermediate Report attached hereto. The
Trial Examiner further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that they be dismissed. Thereafter, the Respondent and
the General Counsel both filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and the briefs, and the entire record in the
case, and hereby adopts the findings, -conclusions, and recommenda-
tions of the Trial Examiner.
132 NLRB No. 41.
GEORGIA-PACIFIC CORPORATION
ORDER
613
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Georgia-Pacific
Corporation, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Threatening its employees with reprisals if they engage in
union activity.
(b) Making statements designed to give its employees the impres-
sion that Respondent is keeping their union activities under sur-
veillance.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant at San Antonio, Texas, copies of the notice
attached hereto marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Twenty-third Region,
shall, after being duly signed by Respondent's representative, be
posted by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered,- defaced, or covered by any other
material.
(b) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated against
Salvador Silva as to his hire and tenure of employment.
1 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT threaten our employees with reprisals because of
their union activities.
WE WILL Not make statements to our employees designed to give
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'them the impression that we are keeping their union activities
under surveillance.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act.
GEORGIA-PACIFIC CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed , the General Counsel of the National Labor Relations
Board , through the Regional Director for the Twenty -third Region , issued a com-
plaint dated October 6 , 1960, alleging that Georgia-Pacific Corporation , herein called
the Respondent or Company , had engaged in unfair labor practices in violation of
Section 8 ( a)(1) and ( 3) of the National Labor Relations Act, as amended. The
answer of Respondent admitted certain allegations of the complaint but denied the
commission of any unfair labor practices . Pursuant to notice a hearing was held
before the duly designated Trial Examiner at San Antonio, Texas , on November 14,
1960 . Respondent and General Counsel were represented at the hearing and were
afforded opportunity to adduce evidence , to examine and cross -examine witnesses,
to present oral arguments , and to file briefs . Oral argument was waived but briefs
were filed.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS-OF FACT
1. THE BUSINESS OF RESPONDENT
Georgia-Pacific Corporation is, and has been at all times material herein , a Georgia
corporation with its principal office in Portland , Oregon, and operates sales offices
and manufacturing plants in several States and foreign countries , including a plant at
San Antonio, Texas. The San Antonio , Texas, plant is engaged in the wholesale dis-
tribution of plywood . During the calendar year 1959 , Respondent in the course and
conduct of its business operations shipped goods of an amount in excess of $ 1,000,000
from points located outside the State of Texas to its San Antonio, Texas, plant. Re-
spondent concedes , and I find, that Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, Local 657, herein called the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The setting and the issues
The Union began to organize Respondent's drivers and warehouse employees in
early July 1960 and on August 15, 1960 , won a Board election among the approxi-
mately 10 employees involved . On August 19 Respondent discharged warehouse-
man Salvador Silva and his discharge is claimed by the General Counsel to be dis-
criminatory . Respondent is also alleged to have otherwise interfered with, restrained,
and coerced its employees by, for example, threats of reprisal, improper interrogation,
and the adoption of a no-solicitation rule. Silva's discharge and the no-solicitation
rule are the principal issues, for the rule was invoked against Silva.
GEORGIA-PACIFIC CORPORATION 615
B. The no-solicitation rule
On July 8, 1960, the Respondent posted the following rule which was still in effect
at the time of the hearing:
NOTICE TO ALL EMPLOYEES
It is a violation of company policy and rules for anyone to solicit another person
for any purpose or in any manner during working hours except where the matter
has been explicitly approved by the management. Violations of this rule will
not be tolerated.
L. TRAMMEL.
Trammel, branch manager of the Company, testified that the Respondent adopted
and posted the rule because he had noticed, and it also had been called to his attention
by other management people, that groups of employees in the warehouse were talking
and would break up when a member of management approached. The General
Counsel takes the position that the rule is invalid in that it was posted to hamper the
Union and was unfairly enforced. In support of his position he presented evidence
to show that the rule was adopted when the union activity began and that in practice
solicitation for other causes was permitted. In Walton Manufacturing Company,
126 NLRB 697, the Board held that rules prohibiting solicitation by employees during
working hours are presumptively valid as to their promulgation and enforcement but
that these presumptions may be overcome by evidence establishing a "discriminatory
purpose" in the adoption of the rule, or by evidence establishing an "unfair" appli-
cation of the rule. In Star-Brite Industries, Inc., 127 NLRB 1008, the Board addressed
itself to a contention that promulgation of a rule during a union organizing cam-
paign limited to union solicitation established a "discriminatory purpose" in adopt-
ing the rule and an "unfair" application of it. The Board held that such factors
alone did not warrant such findings and in that connection said:
Since the criterion as stated in Walton gives presumptive validity to no-solici-
tation rules like that at issue here, it is not controlling that the prohibition of
the Respondent's rule may have been limited to union solicitation and not
have embraced other types of solicitation as well. With respect to the timing
of and the circumstances under which the rule was announced, we are unable
to conclude that because the Respondent may not have formulated the rule
prior to, but did so at the time of, the advent of the Union, that this alone
evidences a "discriminatory purpose." It would be an anomaly to recognize
that an employer may lawfully adopt such a rule, yet to hold that he may
not do so when the occasion for its use arises.
Although the timing of a no-solicitation rule and its limitation to union solicitation i
does not destroy its presumptive validity other Respondent conduct or circumstances
might in a proper case support a finding that Respondent committed an unfair labor
practice by enforcing the rule.2 In that connection General Counsel urges that Re-
spondent itself violated the rule, particularly through Foreman Barrera's activities.
Employee Guerrero testified that sometime in September 1960 during working hours
while the rule was in effect he asked Foreman Barrera's advice about joining the Union
and was told that he would have to use his own judgment. Sometime in October, after
Guerrero had finished his run but during working hours, he noticed a newspaper
article unfavorable to the Union on Barrera's desk and was told he could have it.
Employee Gallardo testified that during working hours he heard Barrera say "the
union was no good." It appears that this remark was made by Barrera in response to
a question asked him by a truckdriver for another company who had just delivered
material to Respondent. I consider the above incidents insignificant on their face.
Of greater importance in considering whether the rule was fairly applied, however,
is Barrera's statement to employee Gallardo that all employees who signed for the
Union would be fired, and his alleged interrogation of Silva accompanied by threats
to stop the Company's loans to employees and eliminate the catering services and
smoking breaks if the employees joined the Union. In Gallardo's case, however, it
appears that the alleged remark was made to him on Saturday morning while he
was at the warehouse on personal business and could hardly fall under the rule even
if the rule applies to management. In Silva's case the alleged remarks, if made,
I The rule on its face was not restricted to union solicitation and the evidence that it
did not apply to other matters, was trivial During the last world's series the employees
had a baseball pool and at one time a flower collection was taken up.
N.L R B. v. United Steelworkers of America, 070 (Nutone, Ino.), N.L.R.B. v. Avon-
dale Mills, 357 U S. 257, 364
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were made during working hours. In my treatment of Silva's discharge I find that
his testimony cannot be credited in several important instances. In any event,
assuming he was interrogated and threatened, I do not think such acts would of
themselves support a finding that the no-solicitation rule was improperly motivated
or unfairly applied in the absence of a showing "that the enforcement of the rule
was an `unreasonable impediment' to the Union's organizational efforts., 13
General Counsel also contends that the rule covered periods of nonworking time
and was illegal on that ground? He supports his position by Branch Manager Tram-
mel's testimony that the general hours at the Company were from 7:30 a.m. to
5:30 p.m. and that the no-solicitation rule covered that entire period "other than
lunch hours." From this unembellished statement, which was not pursued by General
Counsel, he argues that the rule must have applied to "periods of time when the em-
ployees were on water breaks, smoking breaks and when they made trips to the men's
room." In the first place there is no evidence in the record that there is any fixed
formal period when the employees are free to smoke or rest or otherwise refresh
themselves, and the record contains no evidence indicating that the rule was ever
applied to any employee during times which are normally considered his own whether
he is being paid or not. Foreman Barrera testified, as a matter of fact, that such is
not the case and that ordinary conversations for a short period while an employee was
getting a drink of water would not be interfered with I do not on this record con-
strue Respondent's rule as applicable to rest periods and the like.5
I conclude that the General Counsel has not established that the presumptively
valid no-solicitation rule was adopted with a discriminatory purpose or was unfairly
applied.
C. The discharge of Salvador Silva
Silva was employed by Respondent as a warehouseman and worked for about a
year before his discharge on August 19, 1960. Silva's principal duty was to operate
a forklift with which he loaded lumber into trucks.
Silva was active in the Union and Respondent knew it. He was an observer for
the Union in the Board election of August 15, acted as a conduit in relaying in-
formation back and forth between the Union and the employees, and obtained a
number of employee applications for the Union.
On August 19, 1960, Silva solicited employees Menchaca for the Union during
working hours and that fact was reported to Manager Trammel who instructed
Foreman Barrera to discharge Silva. The General Counsel takes the position that
the no-solicitation rule was illegal and that since Silva was discharged for violating
it his termination was unlawful and, in the alternative, that if the rule was proper
Silva was not in fact discharged because of his breach of it but actually because
he was an active union member. The Respondent's position is that Silva was dis-
charged for violation of the rule and because of a long series of derelictions which
the Company described as "insubordination" and that the rule violation was the
"straw that broke the camel's back." 6
I have already found that the no-solicitation rule was valid and Silva's undenied
violation of it would seem to be sufficient basis for his discharge. General Counsel's
contention, however, that reliance on the rule was only a pretext to conceal Re-
spondent's real motive and Respondent's argument that Silva's violation of the rule
was only the last in a long series of infractions require some analysis of Silva's
history as an employee.
As stated above, Silva's job was to load trucks with plywood for delivery to
customers and the loads would be put on the truck according to the order of the
loading tickets. The first plywood delivery would be the last put on and the
plywood at the bottom should be that to be delivered at the last stop along the
N L.R.B. v. United SteeZworkers , supra; Star-Brite Industries , Inc., supra.
''N.L R.B . v. Armstrong Tire and Rubber Company, Test Fleet Branch , 262 F. 2d 812
(C.A. 5).
Is If the rule applied to rest periods, if there are such , it would probably be illegal but,
in addition to my finding that the rule does not actually apply during such periods, I also
feel that the issue was not clearly in the case . The complaint did not raise it in so many
words but merely alleged the promulgation of an "illegal no-solicitation rule." There was
no request for a bill of particulars and so, technically , in the light of Respondent's denial,
of the allegation of illegality all aspects of the rule were in issue. But actually , as I have
indicated , the issue was not pointed up or fully explored at the hearing. My ruling, how-
ever, that I do not construe the rule to apply to rest periods and the like disposes of the
issue.
0 Respondent's brief.
GEORGIA-PACIFIC CORPORATION 617
driver's route. If this were not done deliveries would be delayed and extra work
required of the drivers who had to shift the plywood by hand. Silva frequently mis-
loaded trucks causing inconvenience to drivers and they complained to Foreman
Barrera about it. Drivers Gallardo and Guerrero asked Barrera not to allow Silva
to load their trucks. Silva's errors increased during July and August and became
more frequent after the Labor Board election. In employee Clemente's words, "I
don't (know) if he had his mind on his work or some place else. He started making
more mistakes after the election than before." Gallardo also testified that Silva
seemed to have his mind on something other than his work after the election?
Drivers also complained to Barrera about Silva damaging plywood. Guerrero
testified that once or twice Silva, in loading his truck, ran the material forcefully
into four steel bars attached to the cab of the vehicle to protect the driver from
sudden shifts in loads. Gallardo recounted a similar incident which happened about
2 weeks before Silva was discharged.
Silva was warned by Barrera about careless driving of the forklift and reprimanded
for destroying a case of wood stain . The latter incident happened in late July or
early August and Silva admitted the offenses.
By his own admission Silva was reprimanded by Barrera because of his careless
work habits on more than one occasion and he also admitted that on August 4
Barrera told him that if he did not correct his ways he would be discharged. Robert
Hogan, an inside salesman and onetime warehouse foreman, testified without
contradiction, that on August 4 he and Barrera spoke to Silva about damaging
plywood, improper loading, and the loss of the wood stain. Silva exhibited an
attitude during the conversation with his superiors which can only be described
as strange. He appeared disinterested and walked away before the conclusion
of the meeting making some remark about wanting to be fired.8
On August 5, Silva, without permission, attempted to remove certain memorandum
books of little value from the warehouse and was apprehended. When confronted
by company representatives during the incident Silva described the Company as a
"chicken ___ outfit." Silva did not recall the expression, but did not deny it and
thought, on the other hand, that he had called Foreman Barrera a "dirty" name.
Silva continued to make mistakes in his work and sometime between the Board
election on August 15 and his dischaige he again misloaded a truck. Foreman
Barrera and employee Leos had to work overtime reloading the shipment. Again
Barrera warned Silva that he would lose his job if he, in employee Clemente's words,
"didn't pay attention to what he was dong."
Foreman Barrera testified credibly about a general display of disinterest by Silva
in his work, in Barrera's suggestions for improving it, and his warnings about what
would happen if he did not. Barrera also described, and Silva admitted, an incident
during the summer of 1960 when Silva drew an unopened pocketknife during an
argument with employee Gallardo.
Plant Manager Trammel was aware of Silva's poor work record and attitude, as
set forth above, but made no decision to terminate him until August 19. On August
17, Barrera saw Silva, for the second time that day, talking to employee Trevino.
Silva had finished work but Trevino was still on duty. Barrera checked first with
Trammel and, with his permission, told Silva to go home and stop bothering Tre-
vino. At that time Barrera called Silva's attention to the no-solicitation rule. On
the morning of August 19 employee Menchaca told Barrera that Silva had stopped
him at his work and asked him to sign a union card. Barrera reported Menchaca's
information to Trammel who made the decision to discharge Silva after first dis-
cussing the matter with the Company's labor relations adviser, Mr. Shawd. Trammel
instructed Barrera to discharge Silva for violating the rule against solicitation and
for insubordination. Barrera, accompanied by one Mischer, who was asked to wit-
ness the discharge by Trammel, discharged Silva at the end of the day.
General Counsel tacitly concedes that Silva had a work record which would justify
his discharge but argues that there are certain weaknesses or inconsistencies in Re-
spondent's position regarding Silva which indicate that Silva's record, or the alleged
violation of the no-solicitation rule, were not the real reasons for his discharge. He
points, for example, to certain apparent inconsistencies in the reasons given Silva
when he was terminated. Trammel testified flatly that Silva was discharged because
4 Gallardo , Clemente , and Guerrero were all called as witnesses for the General Counsel.
8 In evaluating such qualities as "attitude ," management may sometimes equate employee
interest in the Union to disinterest in the Company. Silva admitted, however, that another
fellow employee , one Davilla , might have told him that if he kept on "goofing up" the way
he was doing he would get fired. Silva would not deny that he had made a bet of a case
of beer with Davilla that the Company could not fire him.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of violation of the rule and insubordination. Mischer, who witnessed the discharge,
testified that Barrera told Silva that he was going to fire him for soliciting on
company time and "for insubordination, going against some of the things I have
asked you not to do and not doing some of the things I have asked you to do."
Barrera, however, did not support Mischer completely but testified that he merely
told Silva that the reasons for his separation were soliciting during working hours
and "insubordination." Barrera stated on the stand that he could not pronounce
the word "insubordination" and later in the hearing Manager Trammel testified
that the word was his. In addition, Barrera, in an affidavit given the Board during
the investigation of this case, failed to state that insubordination was a reason for
Silva's discharge and it appears that Trammel did not mention it to the Board
agent during the investigation. The difficulty with, and I think the fatal defect, in
this circumstantial evidence is that Silva himself testified that Barrera told him he
was being "fired for insubordination." Regardless of what Barrera put in an affidavit,
or what the Respondent told the Board at a later date, it would appear that Silva
knew that the Company's position at the time of his discharge was that he was being
terminated for insubordination as well as violation of the no-solicitation rule. It
cannot be said, therefore, on these facts that the Respondent's defense on that score
is an afterthought.
General Counsel argues also, in effect, that "insubordination" is not related to
quality of work performance, that Silva had not been "insubordinate" in any sense
just prior to his discharge, and since nothing was said to him about bad work
performance on the day of his discharge, then the defense of "insubordination" is an
afterthought on those grounds. The trouble here is in the expectation that the wit-
nesses should be expected to use words as precisely as lawyers are thought to use
them. Insubordination implies a mutinous attitude, a deliberate flouting of authority,
but my examination of the record convinces me that Trammel might very well have
believed on the basis of information he had about Silva that he was deliberately
failing to carry out his superior's order .9 In any event, it is clear to me that Re-
spondent's officials considered Silva's repeated failure to do his work properly, and
his attitude about it when reprimanded, as tantamount to insubordination. In this
view, Silva's work was mentioned to him at the time of discharge when he was told
he was "insubordinate" and, in fact, he had' recently been "insubordinate" in mis-
loading a truck (after repeated warnings to be careful), in addition, to his insubordina-
tion in deliberately violating the no-solicitation rule
In further support of his argument that Respondent's reliance on Silva's bad
work record and violation of the no-solicitation rule conceal Respondent's real
motive in discharging the employee, General Counsel contends that if Silva's record
was as bad as the evidence indicates he would have been discharged prior to Au-
gust 18, and the belated discharge for violation of a rule, which General Counsel
contends was never enforced, indicates that something else must have motivated
the discharge. The reasoning here escapes me. The record shows that Silva's work
got progressively worse and his attitude did not improve. It is also clear that the
no-solicitation rule was enforced when the Company knew that it was violated, as
in Silva's case , 1e and the fact that ordinary talk which did not interfere with work
was permitted during working hours does not show that the rule was not enforced
but rather than it was enforced reasonably. Because Respondent had reason to
discharge Silva during July and August and did not choose to do so did not give
Silva a status which would prevent his discharge for cause. In any event, Barrera
testified, and I credit him, that if it were up to him, he would have fired Silva earlier
but had been instructed by higher officials to take no action regarding Silva with-
out clearing with them. Manager Trammel explained his inaction in Silva's case
on the ground that the Company had had a previous unfair labor practice charge
filed against it and did not want another After learning of Silva's violation of the
no-solicitation rule on August 19, Trammel consulted the Company's labor relations
adviser who was still concerned about a possible charge. After reviewing Silva's
work record, however, Trammel decided that he could no longer put up with the
employee and decided to fire him When it is considered that a union campaign
had been in progress since early July culminating in a Board election just a few
days before Silva's discharge, the timing of the discharge loses its significance. If
Silva had been fired before the election Respondent might have been accused, not
only of an unfair labor practice in the discharge, but of interference with the em-
9 Although Respondent did not know it when it discharged Silva, it appears that at one
time he deliberately misloaded Gallardo's truck. Trevino, a witness called by the General
Counsel, so testified
iu Silva was the only employee , according to the union representative , who signed up
employees for the Union at Respondent.
GEORGIA-PACIFIC CORPORATION 619
ployees` free choice in the election. I consider Trammel's explanation of his delay
in, making a final decision to fire Silva reasonable under all of the circumstances
and, in any case, not so questionable that it counteracts the strong evidence of
Silva's poor work record.
The General Counsel also stresses the fact that there is evidence in the record
that Respondent unduly interested itself in Silva's union activities and threatened to
discharge him for such. Silva testified that on specific dates, from June 29 to
July 26, inclusive , he had conversations with Barrera about the Union. In the first
conversation Barrera asked him if he was a member of the Union and told him if
the Union won the election "every man would be fired or replaced" in 6 months.
In the next conversation Barrera, according to Silva, repeated the remark about
firing or replacing the men in 6 months and again inquired if Silva was a member of
the Union. In the third conversation (July 20) Barrera is asserted to have repeated
the identical threat and in the last (July 26) to have made the same remark and
inquired again if Silva "were running the men for the union." Silva added that
in the conversation of July 26 Barrera said that one Flores had been fired for union
activity but "the No Smoking rule was used as the main reason" and that Silva
would be the first to be fired if Barrera found out that Silva was active in the Union.
Barrera denied that he had made statements to employees that all would be fired
in 6 months if the Union won the election or that he had made any similar re-
marks. Employee Gallardo, however, also testified that Barrera had made that
statement to him in early August and thus corroborated Silva in that respect. I have
no reason to discredit Gallardo His demeanor was good and he testified in a sin-
cere and honest manner and , although called by the General Counsel as his witness,
gave very damaging testimony against Silva. Barrera, on the other hand, although
he testified articulately and intelligently about matters such as Silva's work record,
was not as impressive in his denials of the alleged threats. I discredit Barrera in
this instance and credit Gallardo and Silva. I do not believe, however, that Barrera
told Silva that he would see to it that Silva was fired as Flores had been. Silva's
story, in essence, was that on specific dates from June 29 to July 26, inclusive,
Barrera thoroughly questioned him trying to find out if he was active in the Union,
that Barrera told him if he discovered Silva was leading the men he would fire him,
and, at that point, Silva admitted his affiliation. The story is difficult to believe not
only on its face, but because of other evidence in the record From early July Silva
made no attempt to conceal his interest in the Union but, on the contrary, went out
of his way to let Barrera know about it. In the first part of July Silva began chang-
ing his shirt before work and would fold the shirt and place it about 2 or 3 feet
away from Barrera's desk with a union pin affixed to the front of the shirt where
Barrera could easily see it. Silva left the shirt in the same place every day of
some weeks and finally began to wear the shirt with the pin on it. Under cross-
examination he did not deny that he told other employees that he left his shirt with
the union pin in open sight so those "bastards" could see it. Silva admitted that
Barrera could see the union badge, but he did not care if he did, that Barrera might
have known in early July that he was an active unionman, and that Barrera saw
the union pin on his apparel quite often. Considering Silva's complete unconcern
about whether the Company knew that he was a union adherent, and Barrera's ad-
mitted knowledge of Silva's activity, I cannot believe that Barrera would have needed
to engage in the persistent interrogation that Silva says he did. More difficult to
believe is Silva's testimony that he finally broke down and told Barrera on July 26
that he was active just after Barrera had told him that he would fire the leader
if he found out who it was
In addition to the internal inconsistencies in Silva's 'testimony about interroga-
tion and threats to him specifically he was generally a poor witness in his own be-
half and I have credited him only when corroborated where his testimony was de-
nied . Silva seemed to be candid when it came to admitting his own deficiencies as
a worker but became vague, forgetful, and evasive with respect to other issues.
Silva, for example , excused his conversation with Trevino in the boxcar during
Trevino's working time as a conversation about work problems initiated by Trevino.
Trevino's account did not jibe with Silva's with respect to the time, place , or content
of the conversation. He, for example, testified that the conversation was about
personal matters such as girl friends . I do not believe that either witness was telling
the truth but that, in fact, Silva was attempting to sell the Union to Trevino at the
time."
n Some other examples bearing on my evaluation of Silva's credibility are • Silva denied'
that he had told anyone that he had deliberately misloaded Gallardo's truck but Trevino
testified that he did. Silva had some difficulty in remembering being reprimanded by
Barrera about misloading but finally remembered it Similarly, with respect to the no-
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude upon the foregoing and the entire record in the case that General
Counsel has not established by a preponderance of the evidence that Silva was
discharged in violation of Section 8 (a) (3) of the Act.
D. Other acts of interference, restraint, and coercion
The complaint alleged that Respondent interrogated employees in violation of the
Act. Employee Clemente testified that a week after Silva was discharged he was
questioned by Trammel and Shawd, the Respondent's labor relations adviser, in the
company office about the Union. Clemente testified that "They asked me about
Silva, how he was acting during working hours, did he damage on [sic] material or
talked about union meetings or things like that," and that he was asked the same
question about other employees. Under examination by Respondent's counsel
Clemente repeated that Shawd asked him whether Silva was soliciting for the Union
during working hours. Trammel testified that Respondent interviewed a number of
employees after the Board election to obtain information and affidavits to support its
protest of the election which it had filed with the Regional Director of the Board and
I credit Trammel's testimony. Moreover, since Respondent had a rule against solicit-
ing during working hours it could legally inquire of its employees whether that rule
was being violated. I find, therefore, that Respondent did not engage in improper
interrogation of its employees.12
The complaint also alleged that Respondent had made certain threats to its em-
ployees in violation of the Act. Previously I have found in the discussion of Silva's
case that Barrera told Silva and Gallardo that employees would be fired if the Union
won the election 'and this threat of reprisal was, of course, improper. I have, however,
been unable to credit Silva's testimony that he was threatened by Barrera and find
that such threat was not made. Silva also testified that Barrera told him that if the
men joined the Union the Company would stop lending money to its employees, the
catering service would be discontinued, and smoking breaks eliminated. Barrera
denied the statement attributed to him and again I discredit Silva in the absence of
corroboration because of the credibility problem in Silva's case. Similarly, and for
the same reasons, I discredit Silva's testimony which Barrera refuted that Barrera
said that Trammel would not sign a contract with the Union.
The General Counsel also alleged that Respondent through Foreman Barrera en-
gaged in surveillance of 'a union meeting. Gallardo, whom I have previously credited
and credit here, testified that on August 6 he was asked by Barrera, "How was the
union meeting last night?" Barrera added that Gallardo was supposed to take em-
ployees Lopez and Sanchez to the meeting. There was in fact a union meeting the
night before. These remarks of Barrera were made at the same time he told Gallardo
that those who joined the Union would be fired or replaced in 6 months.. I find that
Barrera made the remarks and that in that context Barrera was deliberately creating
the impression of surveillance in order to discourage union activity.
I find that Respondent threatened its employees with discharge or replacement if
they joined the Union and made statements designed to create an impression of sur-
veillance of employee union activity. I also find contrary to the allegations of the
complaint that Respondent has engaged in no other acts in violation of Section
8(a)(1) of the Act.
N. THE REMEDY
In accordance with the foregoing findings, I shall recommend dismissal of the
allegation of the complaint alleging a violation of Section 8(a)(3) of the Act. I
have found, however, that Respondent threatened its employees with reprisals and
attempted to create the impression of union surveillance but has not otherwise violated
Section 8(a)(1) of the Act. The Board has in some cases withheld remedial relief
where it appeared that the violation of Section 8(a) (1) is isolated or insignificant in
nature. I consider Respondent's threat to fire or replace its employees if they voted
for the Union, uttered during the middle of the union campaign , and coupled with a
statement indicating awareness of those attending union meetings too serious to be
ignored. I shall, therefore, recommend that Respondent cease and desist from the
unlawful conduct found in that regard and that the complaint be dismissed in all
other respects.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
solicitation rule, it took some pressing to get him to-admit that he was aware of it
although he had signed a copy of it with other employees when it was adopted.
12 Star-Brite Industries, Inc., supra.
ERIE RESISTOR CORPORATION 621
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the-meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local 657, is • a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening its employees with reprisals because of their union activities and
by making statements designed to give the impression that Respondent had their
union activities under surveillance , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not violated Section 8 (a)(3) of the Act, or Section
$(a)(1) except as specifically found above.
[Recommendations omitted from publication.]
Erie Resistor Corporation and International Union of Electrical,
Radio and Machine Workers , Local 613, AFL-CIO. Case No.
6-CA-1790. July 31, 1961
DECISION AND ORDER
On October 18, 1960, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report
.attached hereto. Thereafter, the General Counsel and the Charging
Party, International Union of Electrical, Radio and Machine Work-
ers, Local 613, AFL-CIO, herein called the Union, filed exceptions
to the Intermediate Report, together with supporting briefs. Re-
spondent filed a brief in support of the Intermediate Report. On
May 4, 1961, the Board heard oral argument in Washington, D.C.,
in which all parties appeared and participated.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, the oral argument, and the
entire record in the case, and finds merit in the exceptions of the
General Counsel and the Charging Party. Accordingly, the Board
adopts the findings of the Trial Examiner only to the extent they are
consistent with the decision herein.
The essential facts of the case are not in dispute. The Union,
which had been certified in 1951 as representative of Respondent's
production and maintenance employees, called a strike on March 31,
1959. The strike was concededly economic in its inception, the parties
having been unable to come to terms on a.new agreement."' All em-
132 NLRB No. 51.