Great American Products

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 962 (N.L.R.B. 1993)

962
312 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the judge’s findings.
2 The Respondent did not file exceptions to the judge’s findings
that the Respondent’s admitted supervisors engaged in many unlaw-
ful acts in violation of Sec. 8(a)(1).
3 Member Raudabaugh agrees with his colleagues’ conclusion
(infra) that Frias had apparent authority to act on behalf of the Re-
spondent, and finds it unnecessary to decide whether he is a super-
visor.
Great American Products and International Ladies
Garment Workers Union, Local No. 76, AFL–
CIO. Cases 13–CA–29766, 13–CA–29875, 13–
CA–29905, and 13–RC–18091
September 30, 1993
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 23, 1993, Administrative Law Judge Har-
old Bernard Jr. issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act by threatening em-
ployees with discharge, deportation, black-balling, and
death, and physically assaulting employees in an effort
to discourage the employees’ union activities.
The Respondent excepts to the judge’s decision on
the basis that some of the acts found unlawful by the
judge were performed by individuals Marta Gomez,
Gilberto Vargas, and Armando Frias, whom the judge
found to be statutory supervisors, but who the Re-
spondent contends are merely leadpersons with no su-
pervisory authority or status.2 For the reasons stated
below, we adopt the finding that Vargas is a super-
visor, and we conclude that Frias is not a supervisor
but that he nonetheless possessed apparent authority to
engage in the conduct at issue on behalf of the Re-
spondent. We find it unnecessary to pass on the super-
visory status of Gomez because the complaint does not
allege, nor did the judge find, that she engaged in any
unlawful conduct.
1. Vargas is a leadman in the assembly and buffing
areas of the production department. According to cred-
ited testimony, he was held out by management as a
supervisor and the employees working under his direc-
tion so viewed him. Based on further credited testi-
mony, the judge found that Vargas assigned work,
issued oral warnings, transferred employees among
machines and to other departments, granted time off,
and effectively recommended that employees be tried
in other departments. Because we agree with the
judge’s further findings that Vargas exercised inde-
pendent judgment in the performance of those func-
tions and that they were not merely sporadic but occu-
pied a significant portion of his time, we adopt the
conclusion that Vargas is not just a skilled leadman,
but is a supervisor within the meaning of Section 2(11)
of the Act. See, e.g., Cannon Industries, 291 NLRB
632 (1988).3
2. We agree with the judge that the Respondent is
responsible for employee Frias’ unlawful activities,
even though we are not persuaded that the record sup-
ports the judge’s finding that Frias is a statutory super-
visor. An individual may be deemed a supervisor with-
in the meaning of Section 2(11) of the Act if it is
shown that he or she possesses the authority to engage
in any one or more of the functions enumerated there
and uses independent judgment in exercising such au-
thority. Performance of those functions in a merely
routine, clerical, perfunctory, or sporadic manner will
not suffice. See, e.g., Bowne of Houston, 280 NLRB
1222, 1223 (1986).
Frias is a leadman in the casting department. Unlike
the case of Vargas, there is no evidence that Frias had
independent authority to grant time off, give oral warn-
ings, assign overtime, effectively recommend trying
employees in other departments, or transfer employees
to other departments. Based on the testimony of one
employee, the judge found that Frias instructed the em-
ployee to fulfill production or be discharged, assigned
new tasks as jobs were completed, gave breaks,
checked employees’ time in and out, and moved em-
ployees from machine to machine. Because, as ex-
plained below, Frias exercised this authority within
narrow constraints, we do not agree that it is sufficient
to establish that Frias is a statutory supervisor.
The record establishes that: the work assigned by
Frias was prioritized by management in the daily pro-
duction schedule; Frias gave routine and normal
breaks; Frias moved employees from machine to ma-
chine based on fatigue and on production needs; and
employees punched a timeclock. With respect to an
employee’s testimony that Frias told him that he could
be fired if he did not meet production goals, the evi-
dence does not show that this observation was a warn-
ing of any action that Frias had the power to take or
that the admonition itself amounted to discipline. Nei-
ther this testimony nor any other record evidence sup-
ports a finding that Frias had the authority to discharge
963GREAT AMERICAN PRODUCTS
or effectively recommend the employee’s discharge.
Unlike the authority exercised by Vargas, Frias’ au-
thority was exercised in a routine manner and is insuf-
ficient to support a finding that he was a statutory su-
pervisor. Bowne of Houston, supra; Blue Star Ready-
Mix Concrete Corp., 305 NLRB 429 (1991) (Member
Devaney dissenting on other grounds).
Although the record does not sufficiently establish
that Frias is a statutory supervisor, the record does
show that Frias acted as an agent of the Respondent
and that his acts are therefore attributable to the Re-
spondent. The Board applies common law principles
when examining whether an employee is an agent of
the employer. Apparent authority results from a mani-
festation by the principal to a third party that creates
a reasonable basis for the latter to believe that the prin-
cipal has authorized the alleged agent to perform the
acts in question. See generally Dentech Corp., 294
NLRB 924 (1989); Service Employees Local 87 (West
Bay), 291 NLRB 82 (1988). The test is whether, under
all the circumstances, the employees ‘‘would reason-
ably believe that the employee in question (alleged
agent) was reflecting company policy and speaking
and acting for management.’’ Waterbed World, 286
NLRB 425 (1987) (citations omitted). As stated in
Section 2(13), when making the agency determination,
‘‘the question of whether the specific acts performed
were actually authorized or subsequently ratified
should not be controlling.’’
In this case, the Respondent introduced Frias to the
plant employees as a supervisor and instructed new
hires in the casting department to direct their questions
and problems to Frias. Although he handled his tasks
in a routine manner, the casting department employees
looked to Frias for job assignments, breaks, informa-
tion about production quotas, and requests for time off.
In addition, Frias was the only bilingual employee in
the casting department and was one of only four bilin-
gual individuals in a 150-member work force. See,
e.g., Cream of the Crop, 300 NLRB 914 (1990). Fi-
nally, Frias’ discouragement of union activity was not
contrary to the message and acts of the Respondent’s
admitted supervisors and of Supervisor Vargas. In
these circumstances, it is evident that the employees
would reasonably believe that Frias was reflecting
company policy and acting for management when
Frias committed the acts found unlawful by the judge.
Thus, we find that Frias acted as an agent of the Re-
spondent with respect to that conduct and that his acts
are attributable to the Respondent.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Great American Products,
Broadview, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the election in Case
13–RC–18091 is set aside and the case is remanded to
the Regional Director for Region 13 to conduct a new
election when he deems the circumstances permit the
free choice of a bargaining representative, as directed
below.
[Direction of Second Election omitted from publica-
tion.]
Deborah Schrock, Esq., for the General Counsel.
Bennett L. Epstein, Esq., of Chicago, Illinois, for the Re-
spondent.
Martin P. Barr, Esq., of Chicago, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrative Law Judge. I heard
the consolidated unfair labor practice and representation
cases in Chicago, Illinois, on February 27 and 28 and March
16 and 17, 1992, pursuant to complaint issued July 17, 1991,
and the Regional Director’s order consolidating the represen-
tation and unfair labor practice cases issued on January 27,
1992. Charges underlying the complaint were filed the pre-
vious October, November, and December 1990. The rep-
resentation election conducted herein was held on October 5,
1990, with the results being 43 votes cast against and 34
votes cast in favor of representation. The Union filed timely
objections to conduct affecting the election on October 12,
1990, asserting that Respondent engaged in numerous imper-
missible acts of interference with the employees’ freedom of
choice in the election, which require that a new election be
held. (G.C. Exh. 1j, No. 1.)
The complaint with which said objections case is consoli-
dated for hearing before me alleges that Respondent engaged
in threatening conduct against employees because of their
support for the Union, including threats of causing employee
death or discharge, threats of employees being deported and
blackballed to prevent their employment elsewhere, interro-
gation, unlawful promises, and other forms of coercion in
violation of Section 8(a)(1) of the Act.
Based on the entire record, including briefs filed by the
parties and the witnesses’ demeanor while testifying on the
stand, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent produces and distributes a line of giftware in-
cluding belt buckles, keychains, and decorative glassware
fabricated at its plant located in Broadview, Illinois, from
which it annually sells and ships products valued in excess
of $50,000 directly to points outside Illinois. As is
uncontested, I find that Respondent is an employer engaged
in commerce within the meaning of the Act, and that the
Union is a labor organization as therein defined.
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. UNFAIR LABOR PRACTICES
Counsel for the General Counsel (General Counsel), in
support of her complaint allegations, attributes unlawful con-
duct to Respondent via its former president, John Licht
(Licht), Plant Manager Robert C. Stivanson (Stivanson), and
Assistant Plant Manager Andres Sarquis (Sarquis), admitted
supervisors, as well as to Supervisors Gilberto Vargas
(Vargas) and Armando Frias (Frias), whose supervisory sta-
tus is denied by Respondent. Counsel for Charging Party
(Charging Party), alleges further that Marta Gomez (Gomez),
leadperson in the color fill department, is also a supervisor
as defined by the Act, and that her service along with Vargas
as election observers for the Company is objectionable con-
duct as asserted in union Objection 11.
Supervisory Status
Respondent’s work force ranges in size from between 80
to 150 largely Spanish-speaking unskilled employees. Neither
Licht nor Stivanson speak Spanish and part of Sarquis’ func-
tion was to translate for them.
Vargas testified he was in charge of maintenance, and ad-
mitted he signed an affidavit stating he was a supervisor in
production over the casting, buffing, assembly, and spray
areas who gave oral warnings to employees without checking
with higher authority. He then stated on the stand that he
took care of all those areas. He changed a part of the above
affidavit to testify he gave out ‘‘instructions’’ to employees
in casting, buffing, and spray departments. Employee Froilan
Gonzalez, a buffer, worked under Vargas and recalls plant
meetings where the managers described Vargas as a super-
visor, that Vargas insisted on what work the employees had
to do, gave employees oral warnings, and told Gonzalez to
tell employees to increase production or be fired. Gonzalez
recalls that Vargas directed Gonzalez to work overtime and
gave the employee permission to take time off or come in
late when Gonzalez once could not come to work, and that
he frequently assigned employees from one production area
to a different one three to four times a week. Vargas told
Froilan Gonzalez to report to him if Gonzalez ever came in
late and Gonzalez testified further that Gonzalez considered
him a supervisor. Yolanda Casarez, production employee,
testified that Vargas, on her first day told her she would
work in painting, not production, that he assigned her work
and moved her from one station to the other. She recalls
Vargas giving her oral warnings telling her if she did not im-
prove she would be fired, and granting her a day off, as well
as directing her to work overtime and asking her to work on
a Saturday. Vargas also helped new employees fill out appli-
cations for employment with Respondent given the can-
didates difficulty with understanding the forms, and testified
that there were times when Sarquis was not present in his
department for as long as 20 to 30 minutes, the department
consisting Vargas says of some 20 to 30 employees. Vargas
as of July 1990 was paid $8 an hour (R. Exh. 3, p. 3); em-
ployee F. Gonzalez $4.80 an hour. Francisco Villanueva, also
in buffing, testified that Vargas gave him time off, at his re-
quest, telling him it was okay and made the decision while
the employee was standing there talking to him. Villanueva
also related that Vargas asked him to work overtime and had
another person bring the buffer employees work to do; fur-
ther the witness stated that Vargas several times moved em-
ployees from one work location to another, between casting
and buffing, describing this occurrence as once or twice a
week regularly. Stivanson admitted that Vargas can assign
work within the buffing ‘‘function’’ and that the
‘‘leadpersons’’ can move employees around in different jobs
within their departments including when there is a fatigue
factor or something similar that makes it sense to rotate em-
ployees.
Frias selects molds designated in the production schedule
for a given day in the casting operation, places molds on the
casting lines, and has authority over quality control there.
Respondent pays him $6.70 per hour. Respondent’s plant
manager, Stivanson, and his assistant, Sarquis, introduced
Frias to plant employees at a meeting of employees a year
preceding the hearing as a supervisor, according to employee
Ernestina Casarez. Employee F. Gonzalez also testified to
Frias’ introduction as a supervisor at company meetings.
Frias couldn’t recall this happening; Sarquis was not asked
to deny the introduction and Stivanson, who does not speak
Spanish and could hardly be expected to fully understand the
words spoken in Spanish on said occasion, was fed leading
questions on the subject so that his denial was unreliable.
Employee Roberto Mendoza, a casting employee, is paid
$4.50 an hour. He testified that Frias tells employees what
to do, that Frias is a supervisor instructing him to fulfill pro-
duction or face discharge; that once a job is done Frias as-
signs him another task; and that Frias gives him breaks,
checks the time employees come in and out, and moved
them from machine to machine on a regular basis; an asser-
tion corroborated by employee Francisco Villanueva.
Gomez. Marta Gomez, 5-year-long ‘‘lead-person’’ in color
fill is paid $5.95 per hour. Gomez admits that Sarquis tells
employees Gomez is going to check their work and is the
person who will correct their work performance, including
directing them to do the work over. In addition, employee
Ana Quintena testified that Sarquis, during four or five meet-
ings with employees told employees to take their problems
to Marta as she was a supervisor with an assistant ‘‘Ana’’;
there being some 30 employees present. Quintena further tes-
tified that Marta directed her to prioritize certain work and
ordered employees to work elsewhere in the plant, passed out
paychecks to employees, assigned work, and granted an em-
ployee permission to take a day off on the spot, without con-
sulting elsewhere, in August or September 1990, to Erenia
Santiago, as well as granting a day off to employee Celia
Guzman to see her physician, again on the spot. Sarquis was
not asked to deny Quintena’s specific testimony nor was
Gomez.
It is undisputed that all three maintain production records
relied upon by Respondent to make significant decisions con-
cerning employees the three oversee, such as layoffs; possess
and exercise independent authority to grant substantial time
off to employees, transfer employees within and outside de-
partments, effectively recommend employees be tried in
other positions, assign work, report work deficiencies, are
paid substantially higher wage rates than the employees
under them, and regularly spend a significant portion of their
time in such supervision. Stivanson admitted that the three
can speed up or keep production going by moving employees
around. It is further established that the three have been con-
tinuously and unequivocally held out to the employees and
perceived by them as being supervisors which militates in
965GREAT AMERICAN PRODUCTS
1 Employee Roberto Mendoza testified that Frias, ‘‘He would tell
me that I had to fulfill the production and that it was suppose [sic]
to be from 15 to 16 boxes within the 8 hours.’’ 2 Henceforth dates refer to 1990 unless described otherwise.
favor of finding such status. Finally, the ratio of supervisors
to employees, 6 to 150, is more akin to reality than 3 to 150,
(or 5 to 150 if the sales manager and CEO Roger Little are
included in such figures).
Vargas, Gomez, and Frias either did not recall, did not
deny, or were not asked to respond to the specifics in the
employer’s accounts attributing to them examples of their ex-
ercise of supervisory authority. Further, they were asked
leading questions seeking their denials concerning only their
authority in general, and responded to questions woodenly
and in a rehearsed manner as if by rote rather than in a genu-
ine or sincere manner as contrasted with the natural—seem-
ing and believable employee accounts. In this connection I
note further their tendency to exaggerate and change testi-
mony, Frias testifying incredibly that he never said ‘‘any-
thing’’ to any employees, and Vargas testifying he was only
a supervisor over machinery and denying he gave employees
oral warnings despite his earlier statement in a sworn affida-
vit that he was a supervisor in production and that, ‘‘If I am
having problems in production, I keep records and I have
without checking first with Bob [Plant Manager Stivanson]
or anyone given verbal warnings to do better.’’ (G.C. Exh.
3, p. 1.) Gomez testified at first that employee ‘‘Ana’’ was
her assistant in the plant only to unpersuasively deny such
moments later in her testimony.
I have considered the efforts on brief by Respondent coun-
sel to portray Respondent’s operations as streamlined to the
point that the overseeing tasks performed by the disputed in-
dividuals were only routine, simple or perfunctory as the
basis for Respondent’s contention the three were non-
supervisory lead persons at best and can find no merit to it.
The disputed individuals are shown to have possessed and
exercised one or more of the established indicia of super-
visory authority, which is sufficient grounds to support a
finding of supervisory status as defined by the Act. Kern
Council Services to the Developmentally Disabled, 259
NLRB 817 (1981); and Penn Industries, 233 NLRB 928,
930–931 (1977). The duties performed by them, including
even a partial list, assigning work, issuing warnings, transfer-
ring employees, correcting their work, granting time off, en-
forcing production quotas1 all involved a unit of employees
unskilled at Respondent’s work and, who, for the most part
spoke and understood Spanish alone.
In my view the three had to cope with the achievement
of their responsibilities as being the ones to whom employees
were told to look to for direction and orders and the fulfill-
ment of production quotas and the granting of time off in so
culturally diverse a plant community that the exercise of their
supervisory duties even more so than would be the case oth-
erwise, required the use of independent judgement rather
than being merely routine in nature. Respondent itself admit-
ted this by its Plant Manager Stivanson’s statements on the
stand concerning the importance in their ability to commu-
nicate to its employees the needs of management and man-
agement’s need to rely on them in employee evaluation
meetings. Based upon the foregoing I find that Vargas, Frias,
and Gomez are supervisors as defined in the Act. Wilco
Business Forms, 280 NLRB 1336, 1340, 1342 (1986); Ar-
mored Transfer Services, 287 NLRB 1244, 1250 (1988); Iron
Mountain Forge Corp., 278 NLRB 255, 259, 262 (1986);
Paintsville Hospital Co., 278 NLRB 724, 740 (1986); Penn-
sylvania Truck Lines, 199 NLRB 641, 642 (1972); and Au-
rora & East Denver Trash Disposal, 218 NLRB 1, 10
(1975).
I find no weight to Respondent’s argument on brief that
the parties agreed to the inclusion of leadpersons in the unit
for election purposes so that in effect litigation of their status
is now foreclosed. The Board has long required that for such
an effect to be achieved there must be a written understand-
ing between the parties expressly foreclosing postelection
litigation of issues which could have been presented prior to
the election. Esten Dyeing & Finishing Co., 219 NLRB 286,
287 (1975). No such agreement is alleged or submitted in
this case, thus there is clearly no impediment to resolving the
status of the above individuals.
Respondent’s Action Against Employees
The union drive began some time before May 19902 after
a phone call from a union representative to employee Yo-
landa Casarez. Towards the end of May, an employee in
buffing, Froilan Gonzalez, handed out union pamphlets to 10
employees during his breaktime and while leaving work G.C.
2). A week later his supervisor, Vargas, told Gonzalez while
the two were exiting thru the plant door that if he kept up
with the Union he could be fired, just like his sister had been
fired due to organizing the Union. Respondent in fact had
fired Gonzalez’ sister that very same week. Vargas could
merely not recall any such conversation when questioned on
the stand, which left Gonzalez’ credible account undenied.
Gonzalez served as an assistant or conduit for Vargas, pass-
ing on to employees the latter’s daily orders. Given their re-
lationship it seems clear that if Vargas had not made such
a threat to Gonzalez he would have recalled not doing so and
contested the account. Moreover, Gonzalez is credited over
Vargas due to the latter’s unreliable testimonial performance
on the stand as described above. I conclude that Respondent,
through Vargas’ conduct, thereby coerced an employee to
discourage the exercise of employee rights guaranteed by
Section 7 of the Act in violation of Section 8(a)(1) of the
Act, both by attributing discharge of an employee to union
activities and also by threatening an employee with discharge
for such reason. IMAC Energy, 305 NLRB 728 (1991); and
Mission Valley Ford Truck Sales, 295 NLRB 889, 891
(1989).
Later in July Vargas approached production employee Yo-
landa Casarez in her work area and asked if she was feeling
okay, Casarez replying she didn’t feel good as Vargas had
[put] her apart from the other employees in the plant. Vargas,
in reply, told Casarez he couldn’t do anything about it—that
if she kept up with the Union she was going to be left there.
Respondent witnesses Sarquis and Vargas offered no pro-
bative testimony to dispute the account of Casarez—Sarquis
testifying merely concerning the basis for moving Casarez,
and Vargas, rather than being asked what he said on the de-
scribed occasion being fed lengthy leading questions which,
in any event did not altogether track the specifics in the
employees’s account. I find that the statement by Vargas at-
tributing Respondent’s then present and future quarantine-
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
like action against her to the employee’s support for the
Union to be coercive conduct in violation of Section 8(a)(1)
of the Act, inasmuch as Respondent was, through Vargas, in-
forming the employee it had moved her, undesirably for her,
away from other employees—and thus was being hard on the
employee—because of her union activities. Teledyne, Inc.,
246 NLRB 766, 773 (1979).
The Union filed a representation petition on August 1, and
on August 23, the parties executed a stipulated agreement for
an election to be conducted on October 5.
On an occasion identified approximately as August 23,
later recalled as September, shipping employee Ernestina
Casarez testified that while waiting to punch out with two
shipping employees, called Lucila and Esperanza, Frias ap-
proached them and said, ‘‘[A]ll of us that were friends of the
union were going to get fired whenever they wanted to and
that we were not going to be able to get work anywhere be-
cause they were going to get in charge of trying to give us
a bad name.’’ When Respondent counsel questioned Frias
concerning the above, he never asked Frias whether Frias
had made such a statement to the three employees, and asked
Frias only if Frias had made such comments to Yolanda
Casarez so that Ernestina Casarez’ credible account remained
undenied. By threatening employees that friends of the union
would be fired at will and such employees would be the sub-
jects of Respondent efforts to black-ball them from future
employment elsewhere Respondent violated Section 8(a)(1)
of the Act. Mission Valley Ford Truck Sales, supra; and
Swan Coal Co., 271 NLRB 862, 864 (1984).
Company Meetings with Employees Mid-August
Casting employee Roberto Mendoza testified that he at-
tended 4 or 5 meetings called by Respondent and attended
by President John Licht, Plant Manager Sarquis, Vargas, and
Frias, with some 30 to 40 employees from all the plant de-
partments, during working hours. Licht spoke in English and
Sarquis translated. At such a meeting in mid-August Men-
doza testified that Licht told employees the Union was not
in the employees’ best interest because they would lose bene-
fits they already had, holidays, some vacation time, and pay
checks would be less due to union quotas (dues) being taken
out; that if there were a strike the Union would not pay em-
ployees. He recounted that Vargas asked if employees had
any problems inside the company, and if they did, to choose
a leader and then the leader could go and talk to John Licht,
and that in every meeting company officials repeated that
employees would lose all of their benefits and the Union was
not in their interest so they should ‘‘vote no’’ in the election.
Licht testified he said benefits could go up or down or stay
the same but did not deny the threats attributed to him by
Mendoza. He could not recall ‘‘anyone’’ saying employees
could get their own leader but did not deny this being said
by Vargas, who did not contradict Mendoza’s testimony.
Translator Sarquis could not recall exactly what Licht said,
and only testified in reply to leading questions based upon
his best memory, without denying the employee’s account.
His testimony did not track the employee’s account and was
rendered in a curt, rehearsed manner not responsive to the
witnesses’ detailed account. Respondent through Licht un-
lawfully threatened employees with loss of benefits if they
voted for the Union. Sonicraft, Inc., 295 NLRB 766, 778
(1989). Vargas’ encouragement of employees to select their
own leader who could bring problems to Licht in the context
of Respondent’s meeting designed to oppose the union cam-
paign can only be inferred to constitute a solicitation of
grievances carrying with it an implied promise to rectify the
employee complaints and thereby discourage employee sup-
port for the Union and thus Respondent thereby further vio-
lated Section 8(a)(1) of the Act. Dallas Ceramic Co., 219
NLRB 582, 586 (1975).
Meeting on September 5
At such a meeting he placed as about a month before the
October 5 election, buffing employee Francisco Villanueva
corroborated Mendoza’s account concerning management’s
threats by Licht that employees would lose benefits if they
supported the Union and related that Licht at the September
5 meeting told employees, ‘‘that perhaps someday we [em-
ployees] might come to work and might find ourselves in-
stead on the street with nothing because our company was
going to be closed.’’ Employee in shipping Ernestina
Casarez, describing statements by Licht to some 100 employ-
ees at a meeting held approximately the same month wherein
among others from Management Sales Manager Jeff Smith
attended, recalls that Licht told employees, ‘‘He said that if
the union ever made it in they were not going to negotiate
and all of us were going to lose our profit sharing check and
vacations and all the benefits we already have.’’ Licht, fed
leading questions, testified without denying the employee’s
specific account; instead he was merely asked whether there
was any ‘‘contemplation’’ of moving the plant if the Union
came in and he said no. He could not recall mention being
made of any specific employee benefits. Smith did not tes-
tify. Sarquis was asked, inter alia, the both leading and dou-
ble-edged question whether there was ever any mention
made by Licht ‘‘in the meetings’’ about plant moving or
closing and stated that all the employees attended the meet-
ing ‘‘for a moment.’’ His single denial of the leading double-
edged question fails to constitute a probative denial, and his
continuing exaggeration betrays a bias rendering his testi-
mony unreliable, as will be further evidenced below. By the
threats of benefit loss, plant closing, and vow not to nego-
tiate if the Union came in, thereby announcing to employees
the futility in their selection of a bargaining agent, Respond-
ent violated Section 8(a)(1) of the Act. Marriott In-Flite
Services, 224 NLRB 128 fn. 3 (1976); and Swan Coal Co.,
supra at 866.
Threat of Deportation
Casarez testified that she saw Licht hand out some 100
pamphlets to employees which contain, inter alia, the follow-
ing: ‘‘ASK GARCIA EXACTLY HOW HIS ILGWU WILL
PREVENT THE U.S. GOVERNMENT AND THE IMMI-
GRATION AND NATURALIZATION SERVICE FROM
DEPORTING ALL OF THE ILLEGAL EMPLOYEES
THAT WE MIGHT HAVE AT GREAT AMERICAN. HOW
IS HE GOING TO KEEP YOU IN THE STATES AND TO
CONTINUE MAKING MONEY?’’ (G.C. Exhs. 1a, 1b.) Re-
spondent on brief argues that this published communication
to employees was a lawful retort to rumors and reports by
employees that a union official, Garcia, had assured employ-
ees that they would get papers to become legal citizens if the
Union was elected and therefore not unlawful, citing Federal
967GREAT AMERICAN PRODUCTS
Paper Board Co., 206 NLRB 681, 683 (1973). Had Re-
spondent limited its retort to the Union’s alleged promise by
posing the question in terms which addressed the promise
reasonably squarely—for example, ‘‘Ask Garcia exactly how
the Union intends to do this’’ or the like, I would be inclined
to agree. But instead, Respondent posed a question in terms
which flagged the threatening specter of deportation right in
the employees’ minds and went way beyond the boundaries
of the cited union promise, thereby losing its protection as
a reasonably connected reply. Respondent, I find, exploited
the opportunity afforded by Board law to enhance campaign
airing of issues legitimately by deliberately exacerbating the
fear of certain deportation in the employees’ minds. By
doing so Respondent coerced its employees in violation of
Section 8(a)(1) of the Act. Mike Yurosek & Sons, 225 NLRB
148 (1976); and Amay’s Bakery & Noodle Co., 227 NLRB
214, 218 (1976).
Further Threats of Discharge and Discrimination
Ana Quintena served as an election observer for the Union
and worked as a buckle checker and packer. In mid-Septem-
ber Frias approached her at her work station and without pre-
amble or explanation after doing so, told Quintena she was
‘‘close to the door,’’ which meant to her that she was close
to leaving the factory, and that he and Marta Gomez were
there to make people work. Buffing department employee
Francisco Villanueva testified that in mid-September while a
passenger in Vargas’ van, Vargas said he had seen a union
pamphlet containing the employee’s name and told him not
to sign papers on behalf of the Union because anyway we
were going to get fired, all employees who supported the
Union. Villanueva recounted that Vargas told him and other
named employees in the van that the Company was going to
take measures against ‘‘us’’ and make sure that ‘‘we’’ would
never get jobs anywhere in Illinois. Vargas could not recall
the statements concerning the union pamphlets, and both
Vargas’ and Frias’ unpersuasive woodenly curt denials to
leading questions left the above credible testimony by
Quintena and Villanueva intact thereby establishing Respond-
ent’s further threats in violation of the Act under the above-
cited precedent.
Respondent Burns Employees’ Union Hats
Production employee Yolanda Casarez observed Frias ap-
proach an employee wearing a hat with the Union’s logo on
it in her work area 2 weeks before the election held on Octo-
ber 5. She saw Frias take the employee’s hat off and burn
it. Casarez had distributed the hats to employees after the
Union had given them to her, and asked Frias why he had
done it. Frias replied that even more was going to happen,
that he could burn her hat, whereupon he grabbed her hat
and threw it into a large pot used to melt metal. Frias then
said more was going to happen to anybody who would try
to ‘‘face them.’’ Instead of asking Frias to deny the Casarez
account, Respondent counsel elicited a different version of
the events from him, describing an alleged voluntary handing
of the first employee’s hat to Frias; who then destroyed the
hat; and further that Casarez also gave Frias her hat asking
why he didn’t burn her hat as well. Respondent put on no
corroborating witness to the Frias’ testimony although other
employees were present on the occasion described by
Casarez. It is highly unlikely that the Frias version, under
which two employees—one of whom distributed the hats for
the Union—would give up their hats freely for burning by
Frias allegedly without any conduct by him whatsoever as
his version depicts, occurred, and I have not credited him
based upon his demeanor and numerous factors throughout
his time on the stand described above. I find that without
justification of any sort sounding in law or plant practice or
operations present or claimed, Respondent discriminatorily
destroyed the employees’ union-logo-inscribed hats thereby
discouraging their activities on the Union’s behalf and violat-
ing Section 8(a)(1) of the Act. Halliburton Co., 265 NLRB
1154, 1184 (1982).
On October 3 Vargas approached Casarez at her work sta-
tion laughing derisively at her and told her she wouldn’t last
2 weeks after the election; that she would be fired. Vargas
was not asked to deny the specifics in the Casarez account;
instead, the questions put to him were whether he had any
conversation with the employee about what would happen to
her after the election or wherein she was told she would not
last 2 weeks and Vargas replied to these leading questions,
that he had not. Respondent in defense on brief argues that
Casarez remained employed after the election. I find that
such fact in no way lessens the coercive impact in Vargas’
threat of discharge of the known union adherent and that Re-
spondent thereby again violated the Act.
Interrogation on Election Eve
On October 4, Respondent’s president Licht placed a box
of T-shirts bearing a large ‘‘X’’ and inscription ‘‘Union-No’’
on a table in the factory, the box bearing a sign that said
‘‘Free—Take One.’’ Casarez testified that Vargas was telling
employees they had to wear the T-shirts so she told employ-
ees they didn’t have to do so unless they wanted to; where-
upon Vargas told her to shut up. Licht flatly denied at first
that he had spoken to Vargas when he put the shirts in the
plant; however, when pressed with the same question he tem-
porized by asking ‘‘[Did I tell them] . . . Anything at all
about them?’’ and then said, ‘‘Probably just free for the em-
ployees; take one if they want.’’ Respondent failed to ques-
tion or elicit a denial from Vargas concerning any of the
thereby undisputed testimony credibly rendered by Casarez.
There is no question Respondent placed employees, some
who elected to wear the shirts, according to Licht, and some
who didn’t, alike, in a position of declaring their preference
in the election scheduled the next day through the acceptance
or rejection of the shirts. Worse, Vargas told employees they
had to wear them, compounding the matter with coercion. By
such conduct, Respondent violated the Act and provided
added grounds for setting the election aside. Tappan Co., 254
NLRB 656 (1981).
The election was held the following day, October 5,
Gilberto Vargas and Marta Gomez serving as Respondent’s
election observers.
Respondent’s Postelection Conduct
On October 24 while Vargas was holding a piece of union
literature or note and reading the contents to employee
Noehmi, Frias grabbed the paper from Vargas and showed
employee Ana Quintena the paper asking if it was her signa-
ture on it. When she replied yes, Frias said he was really
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sorry for her because she was going to be fired and he would
make a party for her on the day she left. Frias ‘‘did not re-
member’’ the events described by Quintena, including wheth-
er he grabbed the note from Vargas. He then responded in
a wooden terse manner to leading questions with a single no.
Vargas could not recall the incident either, leaving
Quintena’s credible account described above untouched and
revealing further unlawful conduct by Respondent in the
form of unlawful coercive interrogation and threat of dis-
charge in violation of Section 8(a)(1) of the Act.
Threats Against Yolanda Casarez
Three weeks after the election Respondent removed em-
ployee stools from their working line and a group of employ-
ees with Casarez as spokesperson met with plant manage-
ment to inquire about the reason. Stivanson told Casarez that
Respondent was testing to see if production would increase.
He further told her it was not her problem and if she was
ever back bringing complaints about such matters Respond-
ent would fire her. Sarquis, who translated Stivanson’s re-
marks, was not confronted squarely with the Casarez ac-
count, merely being asked to the best of his memory what
had been said and admitting she was told it was not her de-
partment. He was then fed leading questions whether the
words fired or discharged was used. I do not rely on
Stivanson’s account in denial because it was Sarquis who did
the speaking as far as Casarez’ understanding of what was
said by management to her on this occasion is concerned,
and between Sarquis and Casarez the latter’s credible ac-
count, corroborated by employee Francisco Villanueva, is
credited. Respondent thereby, I find, threatened an employee
with discharge because of the exercise of the employee’s
protected concerted activities concerning employment condi-
tions in violation of Section 8(a)(1) of the Act. Shortly there-
after, on October 31, Casarez testified that she was being
yelled at on the production floor by supervision, including
Sarquis, Frias, and Vargas. She recalls that Frias shouted he
would get back at her, as she ‘‘owed’’ him something while
simultaneously Vargas yelled at her about speaking to the
Union. Absent credible denials by Respondent’s supervisors
I find that by such conduct described above Respondent har-
assed an employee because she interfered and meddled in
matters which Respondent felt did not concern her but which
was protected concerted activity; thereby, Respondent vio-
lated the Act. Lackawanna Leather Co., 221 NLRB 355, 359
(1975) (the Cline reprimand).
Vargas continued harassment against Yolanda Casarez—
and extended it to include Ernestina Casarez 2 weeks in No-
vember, shortly before November 22, driving his van down
the street where they lived and somehow broadcasting in a
loudspeaker-like manner from the van that the two employ-
ees were stupid women and daughters of illegitimate
women—stupid for being part of the Union. Ernestina
Casarez testified that Vargas made noises duplicating pistol
shots and almost ran her over deliberately, afterward Vargas
saying that he had already killed her. Vargas was not con-
fronted with the corroborated accounts of the two Casarez
employees so his replies on the stand did not constitute per-
suasive contradictions. More significantly, Vargas was again
shown to be untruthful on the stand, for when he was asked
whether or not the police had spoken to president Licht con-
cerning the described events; whether or not Licht had told
him the police had come to the plant, and whether or not the
complaint concerned the broadcasts, in all three instances
Vargas replied ‘‘no.’’ Yet Respondent’s own exhibit file in
this case contains memorandum by Licht dated November 26
wherein Licht describes how he spoke to Vargas about the
very same matters. Vargas denies Licht ever spoke to him
about them, totally discrediting the Vargas denials. The
above accounts by the employees establish still further a con-
tinuation in Respondent’s unlawful conduct. (R. file 16, 17,
18).
While on break on approximately November 11, Yolanda
Casarez further stated that Sarquis approached her, pointing
his finger at her and yelling it was her fault that the health
department official visited the plant and she was guilty of the
fact that the Company would be shut down because she was
with the Union. Sarquis did not deny her account as he could
merely not recall such a conversation on the subject or even
whether Yolanda Casarez was present. Frias and Vargas were
not asked to deny the incident although both were placed on
the scene at the time by Casarez. By blaming Casarez’ union
support and activities as the reason for a company shutdown
Respondent violated Section of 8(a)(1) of the Act by restrain-
ing and interfering with her activities. James K. Sterritt, Inc.,
215 NLRB 769, 774 (1974) (employee Quick).
Respondent’s actions against Casarez became more sinister
at the end of November when she complained to Sarquis
about being blocked by Vargas in his van at a parking lot
after which Vargas yelled at her. Sarquis told the employee
she was giving them a lot of problems and asked her if she
didn’t realize they could kill her. Sarquis did not recall any
of the preludes to making the threat as attributed by Casarez.
He was not asked about the specific threat described by her;
rather Respondent counsel asked whether Sarquis had ever
said to her that ‘‘either you or Vargas could kill her?’’ This
is not the same as the employee’s testimony, therefore the
threat that Casarez described in her testimony was not de-
nied. The complaint alleged that the threat occurred in No-
vember; while General Counsel had directed Casarez’ atten-
tion to May while eliciting the testimony from her on the
stand. I find Casarez was the more trustworthy witness, and
her account fits into the environment of threatened violence
at the plant shown by the record. Whether or not the threat
occurred in May or November—and the latter is the more
likely given the flow in all the descriptive testimony and
events being addressed during the Casarez account—it was
just as highly coercive and as serious a violation of Section
8(a)(1) of the Act.
The Assault on Casarez
Placing the occurrence in February 1991, at a Walgreen’s
store parking lot, Yolanda Casarez testified that Vargas ap-
proached her and said that John Licht asked him to tell her
to ‘‘stop this union thing’’ and pushed her. Vargas testified
that after a brief encounter with Casarez inside the store
when she was allegedly ‘‘insulting’’ him (the nature of the
insults were not described) he paid his bill and left without
having any discussion in the parking lot. While he was asked
if he touched her or talked to her at all, and said no, he was
still asked by Respondent counsel, ‘‘During the course of her
conversation did she mention John Licht, and whether there
was discussion about some type of charges’’ and Vargas said
no. For the well-established reasons concerning his lack of
969GREAT AMERICAN PRODUCTS
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
any credibility demonstrated numerous times during the
course of his testimony at this hearing, I find that the ac-
count of Casarez is the trustworthy one and not the responses
of Vargas to indirect questions, mostly leading ones, as to
this incident, like others. I find that Respondent’s supervisor
Vargas assaulted Yolanda Casarez as credibly described by
her in a recurring manifestation of animus towards her due
to her support for the Union thereby again violating the em-
ployee’s rights in egregious contravention of Section 8(a)(1)
of the Act.
The Representation Case
As noted by the introductory paragraph to this decision,
the Regional Director issued an order directing hearing and
consolidating the unfair labor practice and objections for
hearing, there being certain evidence offered in support of
enumerated objections concerning inter alia the Respondent’s
alleged threatened deportation of employees, interrogation of
employees, threatening employees with loss of benefits,
threatening employees with refusal to bargain if they selected
the Union so that such action by them would be futile, and
threatening employees with violence or discharge for sup-
porting the Union, which was coextensive with certain evi-
dence in support of the unfair labor practice allegations in
Cases 13–CA–29766, 13–CA–29875, and 13–CA–29905
(G.C. Exh. 1j). In addition the objections also alleged that
the Employer used as election observers persons who were
either supervisors or persons closely identified with manage-
ment (G.C. Exh. 1j, No. 11). It is undenied that the Em-
ployer selected and used Gilberto Vargas and Marta Gomez
as its observers in the election herein. It has been found
above that both Vargas and Gomez were statutory super-
visors at the time of the election, and on this record there
can further be no doubt that both were persons closely identi-
fied with management, as well. The use of such observers is
a fundamental deviation from the Board’s rules which re-
quires the election to be set aside. Mid-Continent Spring Co.,
273 NLRB 884 (1984).
Based on the foregoing finding of merit to these election
objections, which (aside from the Employer’s improper use
of observers herein found objectionable separately) generally
parallel or mirror the unfair labor practices found to have oc-
curred during the critical period between the filing of the
Union’s petition on August 1, 1990, and the election held on
October 5, 1990, I recommend the election in Case 13–RC–
18091 be set aside and the case be remanded to the Regional
Director for the conduct of a new election. Gupta Permold
Corp., 289 NLRB 1234, 1256 (1988), citing Goodyear Tire
& Rubber Co., 138 NLRB 453, 455 (1962).
THE REMEDY
Having found that Respondent committed numerous viola-
tions of Section 8(a)(1) of the Act as fully set forth above,
I shall recommend issuance of an appropriate cease-and-de-
sist order and a notice posting. These notices are to be print-
ed in both the English and Spanish languages. Because the
widespread misconduct engaged in by the Respondent clearly
‘‘demonstrates a general disregard for employees’ fundamen-
tal statutory rights,’’ I shall recommend a broad cease-and-
desist order. See Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Great American Products, Broadview, Il-
linois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to fire employees because they support the
Union or telling employees that any employee was fired for
organizing the Union.
(b) Threatening to keep an employee stationed apart from
other employees because of the employee’s support for the
Union.
(c) Telling employees that friends or supporters of the
Union would be fired whenever Respondent wanted and
would not get work in Illinois or elsewhere because Re-
spondent would give them a bad name, and take measures
against them.
(d) Threatening employees by telling them they would lose
all the benefits they already had such as holidays, vacation
pay, and profit-sharing checks if the Union came in.
(e) Soliciting employee grievances and promising to re-
solve employee problems by asking employees to appoint a
leader to present their problems to Respondent for the pur-
pose of discouraging employees’ support for the Union.
(f) Threatening employees that the Company would be
closed and employees out on the street in order to discourage
employee support for the Union.
(g) Telling employees that if the Union ever made it in the
Company would not negotiate a contract and employees
would lose all their benefits.
(h) Threatening employees directly or indirectly with de-
portation in order to discourage support for the Union.
(i) Forcibly removing employees’ union insignia-bearing
hats and destroying them by burning, and threatening em-
ployees that even more was going to happen to anyone who
confronted Respondent, in order to discourage employees’
support for the Union.
(j) Coercively interrogating employees concerning their
support for the Union by distributing T-shirts inscribed with
a ‘‘Union-No’’ inscription bearing a large ‘‘X’’ requiring
employees to disclose their union sentiments.
(k) Requiring employees to wear T-shirts bearing a ‘‘vote
no’’ slogan against the Union, thereby coercing employees in
the free exercise of their rights under Section 7 of the Na-
tional Labor Relations Act.
(l) Threatening any employee with discharge, or yelling at
any employee with unspecified threats to get back at the em-
ployee, because the employee engaged in protected concerted
activity.
(m) Harassing employees because of their support for the
Union by driving a van in front of their residence and broad-
casting insults against them, or saying Respondent had killed
any such employee because of the employees’ support for the
Union.
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(n) Accusing an employee of being guilty and responsible
for the department of health visit and that as a result the
Company would be shut down because the employee was
with the Union.
(o) Threatening to kill an employee because of the em-
ployee’s union activities.
(p) Assault and battery against an employee by pushing
the employee and telling the employee to ‘‘stop this Union
thing.’’
(q) Assaulting any employee by attempting to run over the
employee with a motor van because of the employee’s union
activities.
(r) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights guaranteed by
the Act.
2. Take the following affirmative action necessary effec-
tuate the policies of the Act.
(a) Post at its Broadview, Illinois, facility copies of the at-
tached notice marked ‘‘Appendix.’’4 The notice is to be
printed in both the English and Spanish languages. Copies of
the notices on forms provided by the Regional Director for
Region 13, after being signed by the Respondent’s authorized
representative, shall be posted by it immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that any complaint allegations not
withdrawn earlier with my approval at the hearing and not
herein specifically found to be a violation be dismissed.
IT IS FURTHER ORDERED that the election in Case 13–RC–
18091 be set aside for the reasons addressed in the body of
this decision, and that that case be remanded to the Regional
Director for Region 13 for the purposes of conducting a new
election.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to fire employees because they sup-
port the International Ladies Garment Workers Union, Local
No. 76, AFL–CIO, or any other union, or tell employees that
any employee was fired for organizing the Union.
WE WILL NOT threaten to keep an employee stationed
apart from other employees because of the employee’s sup-
port for the Union.
WE WILL NOT tell employees that friends or supporters of
the Union will be fired whenever we want and will not get
work in Illinois or elsewhere because we will give them a
bad name and take measures against them.
WE WILL NOT threaten employees with loss of all their
benefits such as holidays, vacation pay, and profit-sharing
checks if the Union comes in.
WE WILL NOT solicit employee grievances and promise to
resolve their problems by asking employees to appoint a
leader to present such problems to us in order to discourage
employees’ support for the Union.
WE WILL NOT threaten employees that the plant will be
closed and employees out on the street in order to discourage
employees’ support for the Union.
WE WILL NOT tell employees that if the Union ever made
it in the Company would not negotiate a contract and em-
ployees would lose all their benefits.
WE WILL NOT directly or indirectly threaten our employees
with deportation to discourage support for the Union.
WE WILL NOT forcibly remove employee hats bearing in-
signia supporting the Union and destroy them, or tell em-
ployees that even more was going to happen to anyone who
confronted Respondent in order to discourage employees’
support for the Union.
WE WILL NOT coercively interrogate our employees con-
cerning their union sentiments by providing shirts bearing
written inscriptions to ‘‘vote no’’ against the Union to them,
or require that they wear such shirts.
WE WILL NOT threaten any employee with discharge or
unspecified threats because the employee asks us about the
removal of stools from the work area on behalf of other em-
ployees or engages in any other forms of protected concerted
activity.
WE WILL NOT drive a motor van in front of any employ-
ees’ residences and broadcast insults against employees or
say that we killed any employee in order to harass them be-
cause of their support for the Union.
WE WILL NOT accuse an employee of being guilty for
causing a visit by the department of health and that the Com-
pany would shut down because the employee was with the
Union.
WE WILL NOT threaten to kill any employee because of
their union activities.
WE WILL NOT assault and batter any employee by shoving
the employee in order to stop their activities on behalf of the
Union.
WE WILL NOT attempt to run over any employee with a
motor van because of such employee’s support for the
Union.
971GREAT AMERICAN PRODUCTS
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
GREAT AMERICAN PRODUCTS