Hamilton Avnet Electronics

National Labor Relations Board - Board Decisions

Feb 16, 1979

240 N.L.R.B. 781 (N.L.R.B. 1979)

HAMILTON AVNET ELECTRONICS 781
Hamilton Avnet Electronics and Teamsters Automo-
tive Workers Local Union 495, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Lucy McClendon.
Cases 31-CA-7371, 31-CA-7395, 31 -CA-7410,
and 31-CA 7704
February 16, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PNELt.LO
AND TRltESDALE
On September 12, 1978, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions, motions to reopen the record,' and a support-
ing brief, and the General Counsel filed an answering
brief, a motion to strike portions of Respondent's ex-
ceptions, and a supporting brief.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings and
conclusions of the Administrative Law Judge and to
adopt his recommended Order with the modification
noted below.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Ham-
ilton Avnet Electronics, Culver City, California, its
Respondentls motions to reopen the record are herehb denied. as theN
are lacking in merit.
2 In light of our decision herein, we find it unnecessary to pass on the
General Counsel's motion.
Respondent has excepted to certain credlbility findings made hb the
Administrative Law Judge. It is the Board's established polic? not to o\er-
rule an Administrative L.aw Judge's resolutions lith respect to credibilit'
unless the clear preponderance of all of the relevant evidence clonsince us
that the resolutions are incorrect. Standard Dry Wall Products. In-. 91
NLRB 544 (1950). enfd 188 F2d 362 (3d Cir 1951). We hase carefull,
examined the record and find no basis for reversing his findings
4 In his recommended Order, the Adminlstratise Las Judge ordered that
Respondent cease and desist from engaging in surveillance of emplo,ees,
union activities and from creating the impression of surveillance of emplos-
ees' union activities. There is no evidence or finding that Respondent actu-
allv engaged In surveillance, hut only that Respondent created such impre,-
sion. Hence. we have modified the Order to delete the inappropriate
language.
240 NLRB No. 107
officers, agents, successors, and assigns. shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph (b):
"(b) Creating the impression of surveillance of em-
ployees' union activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
No lt E To EMPLOYEES
POSIED) BY ORDER Of IlIE
NAT IONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice.
The Act gives all employees these rights:
To act together for collective bargaining or
mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To refrain from any or all of these things.
Wti wiUl NOt question you in violation of the
Act concerning your own or other employees'
membership, affiliation, sympathies, desires,
support, or activities on behalf of Teamsters Au-
tomotive Workers Local Union 495, Interna-
tional Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America. or any
other labor organization.
WE wILL NOT create the impression that we are
engaging in surveillance of your union activity.
WE WHILL NOT announce or grant you benefits
in the form of increased wages, additional holi-
days, a more favorable sick leave policy, or a
dental plan, or benefits of any other kind, in
order to cause you to discontinue your union
activity.
WE WIL. NOT threaten you with loss of bene-
fits. discharge, or reprisals of any nature in order
to cause you to cease your support of the Union.
WE Wll I NOT schedule and conduct luncheons
and small group meetings, solicit grievances
from employees, or attempt to bargain directly
with employees, for the purpose of discouraging
union activity.
WE. WILl. NOI tell you that the Company will
not permit a union to represent you.
HAMILTON AV ET LECTRONICS
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WiL L'. Not reprimand you without justifica-
tion in reprisal for engaging in union activity.
WtI Witl. Notl discharge or lay off employees
because of your union activity or suspected
union activity.
WI.- wili. No! in anv other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to self-organization: to form,
join, or assist any labor organization: to bargain
collectively through representatives of their own
choosing; to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection: or to refrain from any
and all such activities.
Wti. wILL offer the following employees imme-
diate, full, and unconditional reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent jobs. without preju-
dice to their seniority or any other rights or priv-
ileges previously enjoyed. and wi. wll. pay each
of them for any wages and benefits lost, plus
interest:
fietty Ross
Bernice Garcia
Ferra Kimble
Lucy McClendon
HAMILTON AVNEI ELECRONICS
DECISION
STAIEMENI OF 1I-E CASE
GERALD A. WACKNOV, Administrative Law Judge: Pur-
suant to notice, a hearing with respect to this matter was
held before me in Los Angeles, California, on April 25, 26,
27, and 28, 1978. Charges were filed by Teamsters Auto-
motive Workers Local Union 495, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein called the Union) against
Hamilton Avnet Electronics (herein called Respondent) on
September 9 (Case 31 -CA7371). September 22 (Case 31-
CA 7395), and September 29 (Case 31-CA-7410), 1977.
On February 3, 1978, Lucy McClendon, an individual,
filed a charge against Respondent in Case 31--CA 7704.
The Regional Director for Region 31 of the National La-
bor Relations Board (herein called the Board) issued a
complaint in Case 31 CA 7395 on November 1., 1977, and
thereafter, on March 24, 1978, issued a consolidated
amended complaint in all the aforementioned cases, alleg-
ing violations by Respondent of Section 8(a)(3) and (t) of
the Act. Respondent's answers to the complaint and
amended consolidated complaint, duly filed, deny the
commission of any unfair labor practices.
By letter dated October 28, 1977, the Regional Director
for Region 31 of the Board issued a letter of dismissal in
Case 31 CA 7371 (involving the discharge of Bernice Gar-
cia) and in Case 31 CA-7410 (involving the discharge of
Ferra Kimble) and issued a partial dismissal letter in Case
31-CA-7395, stating that the Region intended to proceed
on the Section 8(a)(3) violation with respect to Hetty Ross,
but that the Region was declining to proceed on a similar
allegation with respect to another employee not herein in-
volved.
The Union appealed the Regional Director's dismissals
and partial dismissal in the aforementioned cases, and on
December 21, 1977, the General Counsel denied the
Union's appeal in all respects. However, by letter dated
March 13. 1978, the General Counsel vacated its prior de-
nial of the Union's appeal, stating as follows:
Pursuant to a request from the Regional Director in
the above-referenced matter, this office has vacated its
decision of December 21. 1977, as to that portion of
Case 31-CA-7410 relating to the discharge of Ferra
Kimble and as to that portion of Case 31 CA-7371
relating to the discharge of Bernice Garcia. Accord-
ingly, these aspects of the cases were remanded to the
Regional Director for such action as he deems appro-
priate.
Respondent maintained at the hearing and reiterated in
its brief that those portions of the consolidated complaint
involving Case 31-CA 7410 (the discharge of Ferra Kim-
ble) and Case 31 CA--7371 (the discharge of Bernice Gar-
cia) should be dismissed as being time-barred by the Sec-
tion 10(b) limitation provision of the Act, arguing that
these matters were initially dismissed and not reinstated
until on or about March 13, 1978, some 7 days beyond the
6-month limitation period which, according to Respon-
dent, commenced on September 6, 1977, the date of the
layoff or discharge of Kimble and Garcia.
Based on the Board's determination of this identical is-
sue in California Pacific Signs, Inc., 233 NLRB 450 (1977),
I find Respondent's argument to be without merit. Thus,
the Board clearly stated that the General Counsel has vir-
tually unlimited discretion to reinstate and proceed on
charges timely filed even though the initial dismissal of the
charge may have been sustained on appeal. provided that
the General Counsel has not abused his discretion. Re-
spondent has not shown an abuse of discretion by the Gen-
eral Counsel, particularly when the reinstated charges in-
volve substantially the same facts and circumstances
underlying that portion of the charge in Case 31-CA-7395
which the Regional Director initially determined to be
meritorious. See also Delta Metals, Inc., 236 NLRB 1665,
fn. 2 (1978).
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing,
briefs have been received from the General Counsel and
from Respondent's counsel.
Upon the entire record.' and based upon my observation
of the witnesses and consideration of the briefs submitted,
I make the following:
i Follo ing the close of Ihe hearing, the parties ubmitted various slipula-
lion, hlch re made a part of the record herein.
HAMILTON AVNET ELECTRONICS 783
FINDIN(iS o0 FA( I
J RISI)I(T ION
Respondent is a California corporation engaged in the
assembly and distribution of electronic components, with
an office and principal place of business located in Culver
City, California. In the course and conduct of its business
operations, Respondent annually sells and ships goods or
services valued in excess of $50,000 directly to customers
located outside the State of California. It is admitted, and I
find, that Respondent is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II rTH LABOR ORGANIZA1ION INVOLVtID
It is admitted, and I find, that the Union is. and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
II TE UNFAIR L.ABOR PRA('Ii( tS
A. The Issues
The principal issues raised by the pleadings are:
1. Whether Respondent, in violation of Section 8(a)( l) of
the Act, interrogated and threatened employees regarding
their union activity, engaged in and created the impression
of surveillance of employees' union activity, and promised
and granted benefits of various types to employees in order
to cause them to abandon their union activity; and
2. Whether Respondent, in violation of Section 8(a)(3)
and (I) of the Act, discharged employees Bernice Garcia,
Ferra Kimble, Hetty Ross, and Lucy McClendon on Sep-
tember 6, 1977, because of said employees' union or sus-
pected union activities.
B. The Facts
I. The 8(a)( I) violations
The union activity involved herein was apparently con-
fined to one portion of Respondent's Electronics Mar-
keting Division, namely the Bendix connector assembly
operation, which assembly operation has an employee
complement of about 120 employees who perform either
assembly work or related quality control work. There are
approximately 2,500 employees nationwide in
Respondent's Electronics Marketing Division, 1,100 of
whom, including the Bendix connector assembly employ-
ees, are employed at the Culver City. California. location.
Employee Hetty Ross contacted the Union in early Au-
gust 1977 2 regarding the organization of Respondent's em-
ployees and at a subsequent union meeting was selected by
the Union's business representative as chairperson of the
organizing committee. She solicited the assistance of other
employees, including Bernice Garcia and Ferra Kimble.
All dates or lime perriods hereinafter are i.hlin 1977 unica, other .lc
Indicated
who. along with Ross and apparently other employees. at-
tended union meetings and solicited signatures on authori-
zation cards in a clandestine manner designed to conceal
such activity from Respondent's supervisors.'
Production Manager Lester Matthews called Hetty Ross
into his office on August 10. Supervisor Jan Van Batenberg
was present. Matthews asked if Ross had an' problems
and was unhappy with her job, adding that if she was un-
happy he would give her time off to look for a different
job. Ross replied that she was happy with her job. Mat-
thews then stated that there had been union talk around
the shop and that Ross' name had been mentioned in con-
nection with the Union. He asked Ross if his information
was correct. Ross was noncommittal and asked Matthews
the source of his information. Matthews refused to divulge
this, and Ross said that she could not admit to anything.
Ross asked Matthews whether he would be for or against a
union. and Matthews replied that he could not say either
way but that he did not believe it was the best thing for the
employees. He also stated that if Ross was not "doing any-
thing" she would have nothing to be afraid of.
Matthews testified that he did have a conversation with
Ross on August 10 and that he specifically called Supervis-
or Jane Van Batenberg to attend the meeting, which was
occasioned by the complaint of Group Leader Dorthea
Feller. who that very day advised Matthews that Ross had
been reluctant to perform certain work. Matthews states
that this matter and other work-related problems were dis-
cussed and that the only reference to a union came at the
end of the conversation, when Ross mumbled something to
the effect that a union was needed, to which comment
Matthews remarked that a union was an alternative avail-
able to the employees, but that Ross should feel free to talk
with Matthews about any matters.
Van Batenberg testified that she was present at the
aforementioned meeting but was not paying much atten-
tion, as she had not been called in specifically for that
purpose and was about to leave when the conversation be-
tween Matthews and Ross occurred. On direct examina-
tion Van Batenberg stated that Matthews did tell Ross that
there had been complaints about her refusing to perform
work. On cross-examination Van Batenberg recanted, ad-
mitting that she did not recall Matthews mentioning this
matter to Ross. Additionally, Van Batenberg stated that
Ross may have mumbled something about a union as she
was leaving the office.
Contrary to the testimony of both Matthews and Van
Batenberg. Group Leader Dorthea Feller testified that she
had voiced no complaints regarding Ross within the last
year or two prior to the August 10 meeting. Nor did any
other group leader testify that they had complained to
Matthews or any other supervisor about any aspect of
Ross' work.
On August 29. Matthews called employee Virginia
Brooks into his office, and asked her if she had heard ru-
mors of a union. Brooks said yes. Matthews advised her to
stay away from the employees who were organizing, add-
ing that Respondent knew who they were and there was
B th Rs', 1illd (jilTCI.l also p.riclpatd in lllilil union .Iill\ O11
hcl.lf ,f .illilhe'r union iI .I ill e .n/d IJi.
HAMILTON AV ET LECTROICS 3
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to be trouble. He thereupon named Hetty Ross, Fer-
ra Kimble, Bernice Garcia, and Lucy McClendon as the
employees organizing on behalf of the Union.4 Matthews
then told Brooks that there would be a group meeting that
morning and that Respondent was considering both a wage
increase and a dental insurance program for the employ-
ees.
Matthews' explanation of this conversation is as follows.
Brooks, who is an expediter and therefore has occasion to
work throughout the assembly operation, happened to be
walking by Matthews' office one Monday morning. He
called her into the office and stated. "Virginia, be careful
with the gossips around the shop," but did not mention the
Union. On cross-examination Matthews admitted that
there had been no complaints about Brooks' receiving or
spreading gossip and that he had never made such a com-
ment to Brooks during the 2 years she had been expediting
and thus had no specific reason for making such a state-
ment to Brooks. Matthews testified that the gossip he was
referring to was "like after a weekend, people came in to
her and saying [sic] 'How was your weekend? Did you went
[sic] to a party or did you went [sic] to a dance,' or some-
thing to that effect."
On Friday, September 2, Supervisor Don Blocher called
Bernice Garcia into his office, stated that someone had
complained about Garcia's gossiping and talking, and
asked if she was going to quit. Garcia asked Blocher what
he was talking about, and Blocher merely reiterated what
he had previously stated. Garcia replied that she thought
Blocher's inquiry was "silly" and that since Blocher would
not explain what he meant, she would have to answer "no"
to the question.5
At the end of August, Supervisor Gustavo Camero asked
employee Carlos Garcia 6 if he knew anything about the
Union. Garcia said no. Camero stated that there were some
people trying to get the Union in and that it was a bad idea
to do so, because with a union employees would no longer
receive bonuses which Respondent gave for good atten-
dance, for not being tardy, and for Christmas. Further,
Camero stated that with a union employees would no lon-
ger be moved to another job but rather would be sent home
if there was no work or if work was slow. On August 29,
Camero advised Carlos Garcia of the group meeting that
day, infra, and stated, "I want you to ask for a general
raise; ask for money, and make it loud and clear so people
can hear." He also told Garcia to request that employees
be granted time off on Good Friday and Christmas Eve.
Garcia refused, stating to Camero that similar requests had
always been ignored. When Camero insisted, Garcia
agreed to make these requests at the meeting, but did not
do so. Garcia also overheard Camero telling employee
Olga Granda, who would be attending a different group
meeting, to ask for the same benefits.7
Sometime in August employee Ferra Kimble had a
4 LucN McClendon was not involved in an) union activity.
Blocher testified that he gave Garcia a verbal warning about excessive
talking a week or so before her layoff on September 6 but did not deny
Garcia's version of the conversation. Respondent's records show that such
verbal warning was given on August 25.
6(arlos Garcia is unrelated to Bernice Garcia.
Camero denies that such conversations occurred.
phone conversation with her sister, Irma Kessee, admitted-
ly a supervisor in Respondent's marketing and sales divi-
sion.5 Kessee explained that her boss, Jerry Gola, had at-
tended a meeting and had learned that Kimble's name was
on a list of employees known to be involved in the Union,
and that she (Kessee) had been requested to advise Kimble
to discontinue such activity. Kimble denied that she was
involved. 9
Sometime after the September 6 layoff, infra, employee
Lucille Austin was called to Matthews' office and was ad-
vised that she would be receiving a "cost-of-living" raise.
Austin asked Matthews whether the employees had been
laid off because of their participation in union activities.
Matthews replied that he did not think so and added, "But
you know the Company's not going to let a union in here.
You've been here before long enough and you know bet-
ter." He further stated, "I know who they are, Lucille, I
know who the people are. They think they have me fooled
but I know."
2. The luncheon; the small group meetings; additional
Section 8(a)(1) violations
On August 10, Respondent held a luncheon for its as-
sembly and quality control employees. A drawing was
held, and the winners were awarded prizes, such as calcula-
tors, TV's, and radios. And recipients of attendance awards
were permitted to draw for cash bonuses from a "pot of
gold."
There was no mention of the Union at the August lun-
cheon, nor was there any deviation from the format of
prior luncheons.'° The record establishes that Respondent
held similar luncheons for assembly and quality control
employees only when they had met periodic production
quotas. Such was admittedly not the case in August, how-
ever, General Manager Edward Kaniger testifying that no
such luncheon had been held for a year or more " and that
the August luncheon was held not because production quo-
tas had been met but solely because it was felt that, with
the dearth of luncheons and the beginning of a new fiscal
year, it would be an appropriate time to boost employee
morale.
On August 29, Respondent held four small group meet-
ings, each meeting being conducted by Kaniger and Walter
Balabanow, director of industrial relations, and attended
by about 30 employees. Such meetings, referred to by Ka-
niger as a "verbal suggestion box," had been held periodi-
cally and are designed to encourage employee suggestions,
complaints, recommendations, or discussions of whatever
matters the employees deem significant. Kaniger testified
8 While not entirely clear, the record indicates that the phone conversa-
tion was initiated by Kessee, who phoned Kimble at work one day.
Kessee denied that such a conversation occurred. Gola did not testify.
"1 Respondent would schedule periodic luncheons or meetings with em-
ployees at which time awards were given for good attendance or for being
consistently punctual. The recipients of these awards would be permitted to
draw for cash prizes from a "pot of gold." While the General Counsel
argues that the drawing for door prizes and the luncheon itself constituted
an unlawful conferral of benefits, she does not contend that the attendance
awards were violative of the Act, as such awards were presented on a regu-
lar basis at meetings other than luncheons.
Several employees testified that there had been no such luncheons for 2
sears.
HAMILTON AVNET ELECTRONICS 785
that Respondent prefers to hold the meetings on a quarter-
ly basis, or at least semiannually. However, due primarily
to his own negligence, no such meeting had been held since
February 9, 1976.12
Both Virginia Brooks and Luch McClendon attended
the same small group meeting. Brooks testified that em-
ployee Olga Granda asked about wage increases and that
Kaniger replied that Respondent was considering raising
the wages of all employees. McClendon testified that an
employee asked a question regarding whether the Respon-
dent had or wanted a union and that Kaniger referred the
question to Balabanow, who stated that Respondent did
not want a union because the Company could not afford to
pay more money at that time. Brooks testified that she
asked about Respondent's pension fund and that Balaba-
now mentioned the Teamsters' financial difficulties result-
ing from the mishandling of monies in the Teamsters' pen-
sion fund, adding that this could not happen under
Respondent's pension fund. Brooks further testified that
Kaniger stated he would not want a union because this
would cause a loss of mutual personal contact between
Respondent and the employees.
At a different small group meeting attended by Bernice
Garcia, an employee brought up the subject of unions, ask-
ing Kaniger to explain. Kaniger stated, according to Gar-
cia, that the employees would have to pay something like
$27 per month to have the Teamsters engage in negotia-
tions with Respondent but that the employees could nego-
tiate with the Company "for nothing, for free in here, like
what we are doing for you in here now." Kaniger went on
to say that "in all probability" the employees would lose
their Christmas bonus and other benefits and would no
longer be the recipients of "pot of gold" awards. Further,
Kaniger stated in response to an employee request for
more money, "We're working on that right now. We're
concerned about it and you will hear about that very
soon." And in response to a question by Garcia regarding
dental insurance, Kaniger said, "We've talked about this
before and we're working on it. We'd like to get it for you
but it's very expensive, and we'll see about it." Lucille Aus-
tin, according to Garcia, inquired regarding the possibility
of employees' receiving their birthday as an additional hol-
iday. Kaniger replied that this had been a prior policy but
had been discontinued, adding "Well, if people would like
that back, we'll see about it."' 4
Carlos Garcia testified that at the meeting he attended
Balabanow stated, again in response to a question by an
employee, that he had worked at unionized places and that
unions weren't any good, and that if a union got in the
12 Kaniger explained that an accident sustained by Balabanow followed
by out-of-state business which occupied Balahanow's time. together wAth
Kaniger's busy schedule. caused Kaniger to delas he meeting for a ear
and a half.
11 As noted above. Carlos Garcia testified that Granda had been nstrucl-
ed by Supervisor Camero to request such a wage increase at the small group
meeting.
14 Employees Lucille Austin and Ferra Kimble attended this same small
group meeting. Both testified that Balabanow, not Kaniger. mentioned the
cost of belonging to a union. and said that with a union the employees
would not he able to receive the customary awards, bonuses or luncheon, I
find that Garcia was mistaken n attributing such and other comments to
Kaniger. However, this does not otherwise affect her credibility
employees would no longer receive benefits such as the
various bonuses then granted by Respondent.
Balabanow took notes or minutes of the August 29
group meetings, and his revised notes summarize com-
ments made by the employees, the responses of manage-
ment, and the ultimate disposition of the requests or con-
cerns expressed by the employees. The notes list 32 general
topics but do not reflect any' discussion of the Union. Perti-
nent excerpts from the notes are as follows:
9. Action Item. There were several questions raised
concerning equity of rates and cost of living condi-
tions.
Disposition. Review made and accomplished.
* * * * *
II. Action Item. Several employees wanted to know
what the current status is concerning the dental plan.
The employees stated that Mr. Balabanow had men-
tioned that the Company was reviewing a dental plan
during the early part of the year and has there been
any progress concerning the plan. [Balabanow] men-
tioned that the Company has been developing cost
analyses of a dental plan and the program for employ-
ees would cost approximately $115.000 annually and
for dependents, approximately $78,000....
Disposition. Will continue to keep informed.
12. Action Item: Several employees wanted to know if
the Company could reinstitute the birthday holiday.
Many employees stated that the birthday holiday was
good and they would like to see the Company add
such a holiday instead of using it as a floating holiday.
[Kaniger] mentioned that the request will be reviewed
by the Executive Committee.
Disposition. Implemented.
* * . * *
14. Action Item: Several employees wanted to know if
they could extend their vacation schedules by utilizing
accumulated sick leave time.
Ed mentioned that we have an accumulated sick leave
policy whereby an employee may accumulate up to 30
days of sick leave and such program acts as a payment
for serious illness or catastrophic-type injuries.
Vacations should be utilized for general rest, travel or
true vacation purposes and sick leave of course for
illness.
Disposition. New sick leave program implemented.
* * *
17. Action Item. A few employees wanted to know if
salary adjustments could not be made for top senior
employees.
[Kaniger] said that the Company continually reviews
all employees by normal cycle times and does make
adjustments accordingly.
HAMILTON AVNET ELECTRONICS
* *
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Disposition. Implemented.
On September 2, Kaniger announced to the Bendix con-
nector assembly employees that there would be an immedi-
ate change in sick leave policy, namely that employees
would be paid for accumulated sick leave in excess of 30
days; that employees would thereafter receive their birth-
days off as holiday: and that the Company would be re-
viewing the employees the following week for salary adjust-
ments. While the aforementioned changes in sick leave
policy and the conferral of an additional holiday were ap-
plicable to the several thousand employees within the divi-
sion on a nationwide basis.' 5 Kaniger testified that he rec-
ommended such change in part as a result of the
employees' suggestions at the August 29 meetings and that
the decision to implement these benefits on a nationwide
basis was made as a result of Kaniger's recommendation to
and consultation with the Industrial Relations Depart-
ment, headed by Balabanow. And while Kaniger testified
that he recommended a salary review only for the Bendix
connector assembly employees, also as a result of the small
group meetings, Balabanow testified that the salary review
was also nationwide in scope.
As Kaniger had announced, the employees thereupon
received a wage review at least in large part as a result of
their request for wage increases at the small group meet-
ings. This particular wage review was in addition to each
employee's periodic wage review, scheduled at 6-month in-
tervals from the employee's initial hiring date. Although
not entirely clear, apparently all assembly and quality con-
trol employees received a wage increase as a result of this
wage review, the increases ranging from 15 cents to 25
cents per hour.
The parties entered into a post-hearing stipulation that
in about January Respondent began negotiations with its
insurer to add dental plan coverage to the existing group
medical insurance for all of its Electronics Marketing Divi-
sion employees; that between March and August 12 Re-
spondent and its insurance carrier reached substantial
agreement on the details of the plan, including the type of
coverage and rate basis of the plan; and that "no signifi-
cant changes of any nature" were made thereafter. How-
ever, during September there was inquiry by Respondent
and discussion between Respondent and the insurer re-
garding whether the dental plan deductible amount should
be $25 as opposed to $50 per employee and whether there
should be a $1,500 or a $700 maximum benefit per employ-
ee per calendar year.
By memorandum signed by Hamilton and posted na-
tionwide on about September 27, all of Respondent's em-
ployees were notified as follows:
DENTAL PLAN APPROVED AND ON THE WA Y
I am pleased to announce that we have agreed upon a
dental plan with Massachusetts Mutual for all em-
ployees and we will make a further announcement
;Bsv memoranda to all employees dated September 2 and signed bhi
Respondent's president. Anthony P'. Hamilton. Respondent annoulnced
such new policies. Both memoranda statle that the change in plic? resulted
from the many comments and suggestions made by the emplo,ees during
unspecified small group meetings.
soon about the effective date of the beginning of the
coverage for all of us. It looks like we can clear all the
details and get the plan started just after the first of
the new year.
After the Small Group Meetings in the early part of
the year, 6 [Balabanow] put in a lot of time developing
this plan and either he or myself will keep you posted.
By letter dated October 6, the insurance carrier was in-
formed by Respondent that the dental insurance plan was
acceptable, and on November 23, the implementing
amendment to the existing group insurance contract was
signed by Balabanow. The plan became effective for all
employees on February 1, 1978.
3. The September 6 layoff
The record abundantly supports the parties' stipulation
that the layoff of September 6 was economically motivated
due to the unavailability of components which Respondent
had persistently attempted to obtain. The General Counsel
maintains, however, that although the layoff was occa-
sioned by legitimate business considerations, certain em-
ployees were discriminatorily selected for layoff because of
their known or suspected union activity.
On September 6, 12 of the approximately 120 employees
were laid off, 9 from the assembly or production operation
and 3 from quality control. Each employee was advised
that the layoff was necessitated by a lack of work. Kaniger
had instructed Matthews to select the 12 employees for the
layoff, giving him no specific guidelines of criteria for mak-
ing the selection. Matthews apparently selected the em-
ployees to be laid off, with the assistance of Supervisors
Don Blocher and Gustavo Camero, although the record is
unclear regarding the role of these individuals in the layoff
of the quality control employees, including Ferra Kimble.
Camero selected four employees for layoff, testifying
that the employee's seniority was not a consideration.
Rather, he made his selections based on the employees
attitudes, abilities, and attendance records and emphasized
that "poor performance" was his primary consideration.
Seven employees, including Hetty Ross, Bernice Garcia,
and Lucy McClendon were selected for layoff by Mat-
thews and Blocher. Unlike Camero, Blocher testified that
he and Matthews "tried to use seniority as far as possible
to keep the people that have been there longest." Mat-
thews, however, testified that "seniority wasn't a great
thing . . . to look at but at the same time was something
that I did look at first." 7
i' Ba;hbanow's responsibility for Respondent's industrial relations ex-
tends nationwide. covering 35 facilities in approximately 24 States. Balaba-
now stated that he is normally in attendance at all small group meetings
throughout the country ( Contrary to the above memorandum, the record
does lnot indicate that Balabanow attended any small group meetings. or
tha a such meetings were held in any of Respondent's facilities. in the
early part of 1977. While Balahanow testified that the possibility of a dental
plan had been discussed at small group meetings other than the August 29
meelings. he did not specify when such meetings occurred.
Respondent's records show that five of the nine assembly employees
laid ff had been employed from I to 10 months. Another employee had
been employed for 4 ears: (amero explained that he selected this particu-
lar employee for layoff because he was a lazy guy He doesn't want to
work " I he datles of hire of the arious discriminatees herein appear below.
HAMILTON AVNET ELETRONICS 787
Hemtv Ross had been employed by Respondent since
May 10. 1972, and had greater seniority than at least 65
assembly employees who were not laid off. According to
Blocher, Ross was for the most part a very good worker:
however, she was "surly" with certain supervisors, did not
get along too well with many coworkers, and would some-
times complain about or refuse to perform undesirable
work assigned to her by her group leader. Further, on Man
8, 1975, over 2 years prior to her layoff. Ross received a
written reprimand from Blocher for leaving work early due
to illness without notifying supervision.
Matthews testified that Ross was considered an "old
timer" and was a good worker. However, he confirmed
Blocher's testimony regarding Ross' alleged refusal to per-
form certain work assigned by her group leader, Dorthea
Feller, and apparently other group leaders, who allegedly
reported this to Matthews or other supervisors. And Mat-
thews testified that one such complaint by Dorthea Feller.
on August 10, prompted Matthews to reprimand Ross that
very day.' 8 Further, Matthews explained that Ross would
gossip about personal matters, thus creating friction among
her coworkers, and apparently had an occasional problem
with transportation to work.
Feller, a current employee who was called to testify on
behalf of Respondent, stated that as a group leader she
assigned and was responsible for the work performance of
Hetty Ross, that she had no problems in dealing with Ross.
that Ross returned from breaks in a timely fashion, that
most of the approximately 18 employees assignments and
Ross did not complain more than others, and that Ross got
along with her coworkers. Further. Feller confirmed that
Ross was "a very fast worker and a very good worker" and
testified that the only time she had complained to Mat-
thews regarding Ross' reluctance to perform certain work
occurred at least a year, and possibly 2 years. prior to Ross'
layoff.
Respondent's records show that Ross received her last
6-month performance evaluation on March 15. Blocher
rated her work production and quality both as "Very
Good" 19 and her attendance, with three reported absences
and two tardies, as "Good." She received a 15-cent-per-
hour increase as a result of the favorable evaluation. Her
next evaluation was scheduled for September 12. 1977.
Bernice Garcia had worked for Respondent since Octo-
ber 15, 1974, and had greater seniority than over 40 assem-
bly employees who were not laid off. Blocher testified that
Garcia was selected for layoff because "she was in ways a
very negative person" and she talked excessively. Mat-
thews confirmed Blocher's testimony in this regard.
Respondent's records show that on October 13, 1976,
Blocher verbally informed Garcia "that due to her exces-
sive talking, her production in the marking dept. was too
low"; and that on August 25. only 12 days prior to her
layoff, Blocher again warned Garcia "that her excessive
s As I have previousl found. Matthes coled Ross into the offtre On
August 10. lo unlawfully interrogate her regarding her uimi atll i. such
conversation having nothing to do vith Ross' work perf ormanll.e.
Blocher testified that certain emplosees who receied less han a Cer
Good" or even "(ood" evmluation preceding the September 6 , mi.lf m1is
nevertheless not have been laid off.
talking was interfering with the work of her coworkers."
Respondent's records further reflect that Garcia was giv-
en a performance evaluation on May 23 and that Blocher
rated her work production and quality both as "Good" and
her attendance as "Very Good." She was given a 10-cent-
per-hour wage increase as a result of this evaluation.
Virginia Brooks is a production expediter. the nature of
her work enabling her to observe the work of all employees
on a daily basis. Brooks testified that it is normal and cus-
tomary for employees to talk while working and that Gar-
cia did not talk more than other employees. Similarly, Car-
los Garcia, a former employee who worked with Bernice
Garcia on occasion, testified that Bernice Garcia did not
talk more than anyone else. Respondent called no employ-
ee witnesses to refute this testimony.
The General Counsel argues in her brief that the warn-
ing to Garcia was not only unwarranted but also discrimi-
natoril, motivated in reprisal for Garcia's known union
activity. Thus, Garcia testified that on Friday., September
2. rather than on August 25. Blocher called her into the
office. told her that there had been a complaint lodged
against her for "gossiping and talking," and asked her to
stop such conduct. Garcia asked him to explain, and
Blocher, refusing to do so., merely repeated himself. While
Garcia testified that immediately prior to receiving the rep-
rimand she had in fact been talking about union matters to
three other employees, there is no direct record evidence
that Respondent was aware of this.
Ferra Kimbhle is a quality control inspector who had
worked for Respondent since June 6, 1973. Her work was
described by other employees as very good and thorough.
She received no warnings or reprimands for production or
attendance and regularly received her 6-month perfor-
mance reviews, followed by a wage increase on each occa-
sion. Neither Matthews nor Blocher explained why Kimble
was selected for layoff, both disclaiming that they were
involved in the layoff of the quality control inspectors.
Three quality control inspectors. including Kimble. were
laid off on September 6. The other inspectors had less se-
niority than Kimble, but at least two additional employees
with less seniority than Kimble were not laid off.
Respondent's brief states that one of these two less senior
employees is an engineer or quality control technician rath-
er than a quality)' control inspector, as was Kimble. The
remaining inspector with less seniority than Kimble was
hired on September 23, 1976.
According to the testimony of Balabanow. Kimble had
been absent 12 times and tardy 8 times in the 6 months
prior to her layoff. However. Balabanow had no idea how
the absence records of Kimble. Ross, Garcia, and McClen-
don compared with the overall average, but surmised that
the normal number of absences for female employees
would be about 3 days per year.2?)
Kimble estimated that she had been either tardy or ab-
sent perhaps about four times dunng the 6 months preced-
ing her layoff and that this was less than most of the other
rr I uclic ALutlin, . current emnplo ee. testified hat she had been ahsent al
IacoM i mic sor i l e Il onth; (a rlos (i.rcia said he was absenit i tno eight
limcm i I) 17. land RI)erl I rialr . cui urrert enmplxee who began working
fir Rcpondlcrt im No.emnher 974 . ai ahent from I cehrua.r 2 to April 25
tid fml the first eek it Noenietcr tI t)Deetimber 27
HAMILTON AV ET LECTRONICS
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees she was familiar with.2'
Lucy McClendon was hired on December 25, 1972. She
had greater seniority than over 60 assembly employees who
remained in Respondent's employ after the layoff, and she
was, according to Matthews, a good worker. Both Blocher
and Matthews testified that McClendon created quite a
few problems for her supervisors and group leaders. Thus,
Blocher stated that McClendon did not like to work in
certain areas, and both Blocher and Matthews testified that
McClendon had been reprimanded on several occasions,
apparently in May of June, for refusing to take her turn
cleaning the work area.22 McClendon candidly testified
that on one occasion, apparently in June, she was called
into Matthews' office and was warned that if she refused to
sweep the floor and wash the table she would be terminat-
ed. McClendon replied that she had been hired to do elec-
tronic work, not cleanup work, and Matthews reiterated
that she would be terminated if she refused. She thereupon
performed the work, and thereafter apparently continued
to do so without incident.23
Matthews further testified that McClendon had prob-
lems with her attendance, in part because of illness in the
family, and that she had personal problems at home. She
had been given a verbal warning, apparently on October 7,
1976, for "arguing about personal matters while working."
According to Matthews, "Lucy had problems in each sec-
tion where she worked. [There] always was something
blowing up from there and Lucy was involved one way or
another."
McClendon was reviewed on January 24. Her work per-
formance was good, her attendance was "perfect," and she
was given a 15-cent-per-hour wage increase. She received a
subsequent performance review on about July 25, the re-
port showing that her work production, quality, and atten-
dance were "Good," and she was given another 15-cent-
per-hour increase. The record shows that during this latter
review period she had three absences, one tardy, and one
"left early." Balabanow testified that from March I
through September 6 McClendon was absent 10 times. 24
C. Analysis and Conclusions
1. The Section 8(a)(1) violation
Respondent's position may be succinctly summarized as
follows: At no time did any managerial or supervisory per-
sonnel of Respondent have any knowledge or even suspi-
cion of any union activity among any of its employees, and
the contrary testimony of the various witnesses for the
General Counsel is pure fabrication. Thus, the entire com-
plaint must be dismissed.
21 The record indicates that Kimble's absences were a result of illness and
were excused.
2 Group Leader Feller testified that she had complained about McClen-
don in this regard.
23 However, McClendon continued to complain, raising the issue at the
August 29 small group meeting, and asking Kaniger whether Respondent
had a janitor who could do such work. Kaniger replied that because of the
classified nature of the work, the assembly employees should d their own
cleanup
24 There is no evidence that the absences were unexcused or that Mc-
(Clendon received reprimands or warnings regarding her absenteeism
Contrary to Respondent's contention, I find that the rec-
ord is replete with credible testimony by both current and
former employees of Respondent that union activity
among the employees was not only known to Respondent,
but that Respondent actively attempted to ascertain the
identity of the union adherents and to dissuade them and
other employees from continuing such activity. In short, I
credit none of Respondent's managers or supervisors, each
of whom categorically denied any knowledge of union ac-
tivity among the employees.
The activity on behalf of the Union commenced in early
August, Hetty Ross being the employee who was instru-
mental in contacting the Union and thereafter being select-
ed as chairperson of the organizing committee. On August
10, Manager Lester Matthews called Ross into his office
and interrogated her regarding her union activity. The de-
nials of both Matthews and Supervisor Jane Van Baten-
berg, who was also present, do not withstand scrutiny.
Thus, Matthews testified that Ross was summoned to the
office regarding a work-related complaint made that very
day by Group Leader Dorthea Feller 25 and that Van Ba-
tenberg was expressly instructed to attend this meeting. Yet
Feller, currently employed by Respondent and called by
Respondent as a witness, denied that she had made such a
complaint to Matthews or Van Batenberg within possibly a
year or two preceding the August 10 meeting; and Van
Batenberg claimed she had a very vague recollection of the
conversation because she had not been called to the meet-
ing, was preparing to leave the office when the conversa-
tion commenced, and was therefore uninterested in what
was being said. Respondent's reasons for summoning Ross
to the office being disproved by Respondent's own witness-
es, I have no hesitation whatsoever in crediting the testi-
mony of Ross. Such an obvious lack of candor on the part
of Matthews regarding this conversation colors not only
the entirety of his testimony but moreover, as such conver-
sation clearly establishes Respondent's knowledge of the
union activity, colors the testimony of all Respondent's
supervisors or managers, each of whom professed total ig-
norance of any union activity whatsoever.
I find that Respondent violated Section 8(a)(1) of the
Act by interrogating Ross regarding her union activity, 26
by impliedly threatening Ross with the statements that she
would be given time off to seek other employment and that
she had nothinl to worry about if she was not engaged in
union activity, and by advising her that her name had
been mentioned in connection with the union activity, thus
creating the impression of surveillance of union activity.28
I credit the testimony of Brooks and find that on August
29 Matthews unlawfully interrogated her regarding em-
ployees' union activity, created the impression of surveil-
lance by naming known or suspected union adherents,29
:~ Record evidence strongly suggests, but does not conclusively show. that
group leaders possess supervisory authorit.
JiiJalo Internalional, In(., 227 NLRB 1807. 1808 1809 (1977).
22 See unro Enterprises. Inc.. 210 NLRB 403 11974); St. Anne's Home.
Diision of DePaul C(ommunitr Health Center, 221 NLRB 839, 845 (1975).
See Montgomery Ward & Co., Incorporated. 227 NLRB 1170 (1977).
Supervisor Irma Kessee's similar statement to her sister, Ferra Kimble.
whom I credit. likewise constitutes surveillance of employees' union activity,
as does Matthews' similar statement to Lucille Austin.
HAMILTON AVNET ELECTRONICS 789
and threatened her by suggesting that she could avoid trou-
ble if she stayed away from those named employees.3 0
Further, under the circumstances, Matthews' statement
that there would be a group meeting later that morning and
that Respondent was considering both a wage increase and
a dental plan for employees was obviously designed to
forestall any union activity which Brooks might have been
contemplating. Such a promise of benefit is clearly viola-
tive of the Act. See St. Anne's Home, Division of DePaul
Community Health Center, 221 NLRB 839, 845 (1975).
I further find that Supervisor Gustavo Camero's interro-
gation of Carlos Garcia, whom I credit, regarding his
knowledge of union activity is violative of Section 8(a)(1)
of the Act. During the ensuing conversation, Camero ad-
vised Garcia that with a union certain benefits and poli-
cies, such as various bonuses which the employees enjoyed
and the transfer of employees to other jobs during slack
periods rather than sending them home, would be discon-
tinued. Such statements threaten the loss of benefits should
the employees select the Union as their collective-bargain-
ing representative, and are clearly violative of the Act. In-
ternational Paper Company, Inc., 228 NLRB 1137, 1141
(1977); The Buncher Company, 229 NLRB 217, 226 (1977);
Texas City Newspapers, Inc., 237 NLRB 694 (1978).
Shortly after the September 6 layoff of the four employ-
ees, Matthews had occasion to tell Lucille Austin, "You
know the Company's not going to let a union in here."
Under the circumstances, I find that by this statement
Matthews conveyed the message that Respondent would
not be averse to resorting to unlawful measures for the
purpose of attaining such ends. Such a statement, implying
that continued union activity would be futile, is likewise
unlawful. The Lundy Packing Company, 223 NLRB 139
(1976).
2. Additional Section 8(a)() violations: The luncheon,
the small group meetings, and the granting of benefits
The record establishes that Respondent had the practice
of holding luncheons for the employees as a reward for
meeting or exceeding periodic production quotas but that
no such luncheons had been held for a considerable period
of time, perhaps 2 years. However, on August 10, Respon-
dent held a luncheon for its employees, affording them the
customary opportunity to win valuable door prizes.
Respondent's general manager, Edward Kaniger, testified
that he believed the luncheon would be good for employee
morale, particularly as no luncheons had been held for a
substantial period of time, adding that the luncheon was
designed to coincide with the beginning of a new fiscal
year and that union activity could not have been a consid-
eration in scheduling the luncheon, as Kaniger was not
aware of such activity.
Contrary to Respondent's position, I have found that on
August 10 Respondent was very much aware of the union
activity among the employees, having credited Ross' ac-
10 Vega. I'illage Shopping Corporation. 229 NLRB 219. 285 (197 7 ). Mat-
thews' testimony, that he was merel concerned that gossips around the
shop might ask her how her weekend was or whether she attended a dance
or a party, s nonsensical.
count of her conversation with Matthews on that very date.
Moreover, Respondent has adduced no credible evidence
which would rebut the reasonable inference that Kaniger
was then privy to the same information which Matthews
clearly possessed. Given Respondent's knowledge of the
union activity, coupled with the extraordinary circum-
stance that, unlike all prior luncheons, the luncheon on
August 10 was not to reward employees for having met or
exceeded production quotas, I conclude that the luncheon
itself and the prizes won by employees in attendance were
benefits designed to cause employees to refrain from or
discontinue such activity. Such conduct by Respondent is
clearly violative of Section 8(a)(1) of the Act. See Murcel
Manufacturing Corp., 231 NLRB 623, 643 (1977).
Respondent takes a similar position with regard to the
August 29 small group meetings, claiming that its lack of
knowledge of the union activity precludes a finding that
the meetings and the benefits announced subsequent to the
meetings were violative of the Act. Moreover, Respondent
maintains that such meetings were not an innovation but
were merely a continuation of Respondent's longstanding
personnel policy of periodically inviting employee input in
Respondent's "verbal suggestion box."
I find Respondent's position to be unsupported by the
record evidence. The coincidence of the union activity with
the scheduling of the first small group meeting held in over
a year and a half, together with Respondent's unlawful
interrogation and other unlawful statements to employees
both prior to and during these small group meetings and
Respondent's lack of candor in acknowledging its aware-
ness of the union activity, mandates the conclusion that the
small group meetings of August 29 were contrived as a
response to the employees' union activity. Such a conclu-
sion is buttressed by the facts that at least one of
Respondent's supervisors had prior knowledge of the bene-
fits which Respondent intended to grant and that Respon-
dent attempted to orchestrate the meetings by instructing
employees to ask "loud and clear" for certain benefits. 3'
I find that Respondent unlawfully solicited, and indeed
required, grievances or requests from employees: and that
by advising the employees at the meetings that such re-
quests were favorably received and would be actively pur-
sued, Respondent impliedly promised benefits to employ-
ees, also in violation of Section 8(a)(l) of the Act. The
Stride Rite Corporation, 228 NLRB 224 (1977).
I further find that Kaniger's September 2 announcement
of certain benefits which had been requested and discussed
at the small group meetings, and the granting of such bene-
fits shortly thereafter, also constitute conduct violative of
l Respondent called several employee witnesses to testifv regarding the
August 29 small group meetings. namely Marv Place. Pauline Sepulveda
Abdul ttamid Yacooh. and Lily Mae Amos. Their testimony was virtuall,
identical. each being unable to recall whether any of the General (ounsels
witnesses were present at the particular meeting they attended aind each
testifying that there was no mention of the Union whatsoever Such testi-
monv thus does not tend to disprove or discredit the testimons of General
Counsel's vitnesses. Furthermore, in the absence of some reasonable expla-
nation aind Ltntrar to Respondent's contention in its brief. I conclude that
Resondent's failure to call emplo)ee witnesses to directl, rebut the testl-
mons of the General ('ounsel's witnesses regarding the content of the dis-
cussion at the particular small group meetings in question warrants the
adserse inference that such testimony would be unfavorable to Respondent
See SXlt,*l/,' Resiauranrr. In. 237 NLRB 195. fn 3 (1978)
HAMILTON AVNET ELECTRONICS
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) of the Act.32 While Respondent maintains,
and the record shows, that the change in sick leave policy
and the granting of an additional birthday holiday were
benefits conferred on a nationwide basis, nevertheless Ka-
niger admitted that he recommended such benefits in part
as a result of the employee suggestions at the August 29
small group meetings and that the implementation of these
benefits on a nationwide basis was a result thereof. And
even assuming, arguendo, that these benefits would have
been granted absent any union activity, Respondent's con-
duct reasonably led the assembly and quality control em-
ployees to believe that such benefits were conferred as a
response to the organizational activity, such conduct being
likewise violative of the Act. See Topeka Discount., Inc., 181
NLRB 17, 18 (1970).
Unlike the holiday and sick leave benefits, the wage in-
creases were not granted on a nationwide basis but rather
were limited to the assembly and quality control employ-
ees. Assuming, arguendo, as Respondent maintains, that
the wage increases granted in early September were in anti-
cipation of an increase in the minimum wage which Re-
spondent understood was to become effective January 1,
1978, and that a nationwide wage review of all
Respondent's employees was therefore instituted in early
September, nevertheless Respondent has offered no con-
vincing explanation for its conferral of such benefits only
upon the employees involved herein. I am convinced that
the granting of such wage increases, like that of the holiday
and sick leave benefits, was unlawfully motivated in an
effort to induce the employees to discontinue their union
activity. By such conduct I find that Respondent violated
Section 8(a)(1) of the Act.
I credit Bernice Garcia and find that at the small group
meeting she attended Balabanow stated that the employees
would not have to pay the "Teamsters" to engage in nego-
tiations with Respondent because the employees could ne-
gotiate "for nothing, for free in here, like what we are
doing for you in here now." This statement, coupled with
Respondent's receptive response to the requests of employ-
ees and the subsequent conferral of additional benefits re-
sulting from such requests, constitutes the solicitation of
employees to forgo union activity and adjust their griev-
ances directly with management. Such conduct is violative
of the Act. New Fairview Hall Convalescent Home, 206
NLRB 688, 744-745 (1973). Further, I credit the mutually
corroborative testimony of various employees, including
Carlos Garcia, Ferra Kimble, and Lucille Austin, and find
that Balabanow stated at various small group meetings that
with a union the employees would no longer receive vari-
ous specified benefits which they currently enjoyed. These
statements are similar to Supervisor Camero's statement to
Carlos Garcia, supra, and are clearly violative of the Act.
Regardless of the evolution of the dental plan, and how-
ever this combination of facts would be viewed in other
settings, 33 I find that under the particular circumstances
herein the August 29 reference to the plan, along with
T he Stride Rite (Corruatin. upra.
See. for example. Domino f (i alij~irnii in, I . 205 NI.RB 1Il83 (1973):
Mr. Fine. Inc. 212 NLRB 399. 402 (1974): Bi (;G SlpermlarAct, In . d 1 a
Tinen and (ountry Ifanil (enter, 219 NlRB 1098, 1108 11975)
Balabanow's explanatory remarks that Respondent was ac-
tively engaged in implementing the plan, was calculated to
further cause the employees to discontinue their union ac-
tivity. Thus, as I have previously found, the small group
meetings were expressly contrived and orchestrated as a
response to the organizational activity: both prior to and
during such meetings, grievances or requests for additional
benefits were unlawfully solicited; and at one of these
meetings, Respondent characterized the gathering as a
method by which the employees could enter into negotia-
tions with the Company, thereby eliminating the expense
of union representation. Further, except for the union ac-
tivity, there appears to be no other reason why Respondent
would have then chosen to give the employees a progress
report of the dental plan negotiations. Indeed, should there
have been newsworthy information to disseminate regard-
ing the pension plan on August 29, it would have been
reasonable for Respondent to have so advised all employ-
ees nationwide.
Moreover, I find that the September 27 announcement
of the dental plan was also designed to thwart continued
organizational activity by the assembly and quality control
employees. Thus, the September 27 announcement that the
dental plan had been approved and was on the way pre-
ceded by 9 days Respondent's written notification to its
insurance carrier that the plan was acceptable, and pre-
ceded by nearly 2 months the date when Respondent be-
came legally obligated to purchase the plan. More impor-
tantly, the memorandum contains language similar to that
in the prior September 2 memorandum announcing the
new holiday and sick leave benefits, again attributing and
relating the development of the plan to employee requests
at the small group meetings.34 Nor does the fact that the
announcement was nationwide in scope alter my conclu-
sion herein. Indeed, as previously noted, although the
memorandums of September 2 were distributed on a na-
tionwide basis, as were the benefits announced therein,
such memorandums and nationwide benefits would not
then have been forthcoming but for the organizational ac-
tivities among the assembly and quality control employees.
Contrary to the contention of counsel for the General
Counsel, I find that the implementation of the dental plan,
occurring some 5 months after the cessation of the union
activity, was not unlawfully motivated; nor would the em-
ployees reasonably have believed that such a benefit was
then being conferred to stifle further union activity.35
3. The 8(a)(3) violations
The record clearly shows that Hetty Ross was a leading
~ In this regard, the Ilnguage appearing in the September 27 memoran-
dun i pa.rticularly suspect ais the memorandum refers ito "the Small Group
M\eelings in he earls part of Ihe searr" As presviousl noted. the record does
not Indicate that ans such meetings were held at any of Respondent's facil-
ities in the earl) part of 1977. lad there, in fact. been such other small
grLoup eeings. it would appear that Respondent would have presented
conclusive proof thereof, the burden resting upon Respondent to show that
the .itnoncement of the ne: benefits. is justified b considerations other
than union actis it). A.rro Elastic (Corporatun. 230 N LRB 110 1977), enfd
573 1 2d 70)2 (Ist (ir. 1978).
See Siuprrir itcr, fil,,m Slrt enL, Inc.. ti ai. 201 NlRB 555. 556 1973.
cnfd 485 1 .2d 681 (d(ir)
HAMILTON AVNET ELECTRONICS 791
adherent among the employees involved in the union activ-
it)' herein and was instrumental in causing the Union to
commence its organizational activity. On August 10. Mat-
thews summoned Ross to the office, suggested that she
look for another job. interrogated her regarding her union
activity, and warned her that she need not be afraid if she
was not active on behalf of the Union. And by August 29.
Matthews had identified Ross as one of the organizers on
behalf of the Union, along with Kimble, Garcia, and, mis-
takenly, McClendon. Respondent's attempted justification
for the layoff of Ross, namely the complaints regarding her
alleged failure or reluctance to perform certain work, is
clearly unsupported by even Respondent's own witnesses.
There being no convincing reason, supported by probative
evidence, for the lawful discharge of Ross, I therefore find
that the true reason for Ross' layoff or discharge was an
unlawful one, violative of Section 8(a)(3) of the Act, as
alleged.36
I find, in agreement with the contention of the General
Counsel, that the reprimand of Bernice Garcia. whether on
August 25 or September 2. was indeed discriminatorily mo-
tivated. Thus, it may be assumed that Respondent became
aware of Garcia's union activity by August 25, only 4 days
prior to Matthews' so advising employee Brooks of such
knowledge. Further, Blocher's testimony regarding the rep-
rimand of Garcia on this occasion was so abbreviated as to
appear evasive, offering no details of the conversation and
identifying neither the individuals who allegedly com-
plained about Garcia nor the nature of such complaints.
Certainly, as excessive talking was allegedly a primary rea-
son for selecting Garcia for layoff. Respondent would have
attempted to support its contention in other than summary
fashion. Finally, not only did Respondent fail to support
this contention at the hearing but, moreover, it is clear that
Blocher evaded Garcia's direct query regarding why she
was being reprimanded for gossiping and talking. Simi-
larly, it would appear that if Blocher's purpose for the rep-
rimand were legitimate he would not have hesitated to
point out with specificity the nature of her alleged offense.
For the foregoing reasons, I find that the reprimand of
Garcia was discriminatorily motivated and is violative of
the Act. Although the complaint does not contain such an
allegation, the matter is inextricably related to
Respondent's alleged reasons for Garcia's subsequent lay-
off and has been fully litigated. Under such circumstances,
it is not inappropriate to find a violation even in the ab-
sence of a specific complaint allegation. See Crown Zeller-
bach Corporation, 225 NLRB 911, 912 (1976); The Tintken
Company, 236 NLRB 757 (1978). Further, on the basis of
the foregoing and the entire record. I find that the dis-
charge of Garcia was likewise discriminatorily motivated.
Of significance is not only that Respondent was aware of
Garcia's union activity but, moreover. that it chose to con-
ceal this fact at the hearing. Nor does the record support
Respondent's contention that Garcia, admittedly a good
employee with considerable seniority, was predisposed to
excessive talking or that such was the true reason for her
1t See ShauuA Deann AilnLn ( rp.ralton,, /Irnl h g Bn,11 l/ v % I R B.
362 F.2d 466. 470 (9th ( r. 1966: Beti Pr,d li, ( mpinL. I,. 236 NI RH
1024 ( 1978)
layoff. Rather, the record supports the conclusion, and I
find, that she talked no more than employees generally.
Respondent has not provided a reason for the selection
of Kimble as one of three quality control employees to be
laid off. Indeed, Respondent's witnesses testified that they
were not involved in the selection. And while Balabanow
related that Kimble had a particular number of absences
and tardies within a fixed period of time, the record indi-
cates that no adverse action befell Kimble as a result
thereof and that such absences were excused. Further. Bal-
abanow presented no probative comparison between
Kimble's absenteeism and that of other employees. It is
also significant that although Kimble's work was depicted
as being very good and thorough. Respondent made no
attempt to show that, assuming only one quality control
inspector with lesser seniority was not laid off. such an
individual was better qualified or otherwise would have
been retained in Respondent's employ even absent
Kimble's union activity. Respondent's failure to provide a
convincing reason for Kimble's layoff while at least one
less senior quality control inspector remained employed.
coupled with the union animus displayed b Respondent
and its knowledge of Kimble's union acti-its. demonstrates
that Kimble's discharge was discriminatorril motivated. I
so find.
While McClendon did not engage in an, union activity.
Matthews nevertheless mistakenly identified her as a union
activist along with Ross. Garcia, and Kimble. Further, it is
noteworthy that Matthews regarded McClendon as always
being involved in whatever was "blowing up" wherever
McClendon worked. And despite the generalizations by
Matthews and Blocher that McClendon caused quite a few
problems, the only such matter reasonably close to her
September 6 layoff was the warning she received. appar-
entlv in June, for balking at cleanup work assigned to her.37
Further, even if McClendon expressed her preference for
certain types of work and found cleanup work distasteful.
the record indicates that this was a common occurrence
among numerous employees.
The record shows that although McClendon was admit-
tedly a good worker and had over 5-1 2 ears' seniority
with Respondent, she was selected for layoff over some 60
employees with less seniority, including several employees
who had worked for Respondent for less than 2 months. It
does not appear that McClendon's initial reluctance to per-
form the cleanup work some 2 months earlier was of such
magnitude as to warrant the layoff of a longtime, capable
employee, and while she apparently had a considerable
number of excused absences within a relatively short time
prior to September 6, the record indicates that this was an
aberration, apparently due to illness. McClendon's atten-
dance prior thereto being good. even perfect during one
review period.
Under all the circumstances. I am convinced that Mc-
Clendon was discriminatorily selected for lavoff for the
\5 tile \M.tlhes aid Bhlocher testified Itil the ,}lr . ) e.lrlard on es,
-
era!l caslm neilther nrdllidu;ll proxlded rax ,pe fic-. retrding thec l-
leged ,.a rnig. rnd I hir.Ce prcx t u,l dcrcditIed thil IniI othel tcpec I
thcrc rer c rcdli \t.( lndon'. eC,[inion rinic.ll/ iirein thit ht i so wiarnce
Oin iwe alitclnd herclter prfilrmed her a.,lrined tclinup Sork llhlnl fur-
tIhr illcidenll
H A M IL T O N A V N E T E L E C T R O NIC S 7 ~~~~~~~~~~~~~~~~~~~~~~
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same reasons as Ross, Garcia, and Kimble, Respondent
mistakenly believing that she too was at the forefront of
the organizational activity. Her discharge is therefore un-
lawful even though she engaged in no union activity. I so
find. See Crucible, Inc., Division of Colt Industries, Inc., 228
NLRB 723, 729 (1977). Metropolitan Orthopedic Associates,
P.C., 237 NLRB 427, fn. 3 (1978).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights under Sec-
tion 7 of the Act by various conduct violative of Section
8(a)(1) of the Act.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by laying off or discharging employees Hetty Ross,
Bernice Garcia, Ferra Kimble, and Lucy McClendon.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it be required to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discharged or laid off
employees Hetty Ross, Bernice Garcia, Ferra Kimble, and
Lucy McClendon in violation of Section 8(a)(3) and (1) of
the Act and has failed to made a valid offer of reinstate-
ment to said employees, I recommend that Respondent be
ordered to offer the named employees immediate and full
reinstatement to their former jobs or, if said jobs no longer
exist, to substantially equivalent positions, with no preju-
dice to their seniority or other rights and privileges. Back-
pay and interest thereon are to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).3?
It is further recommended that Respondent be ordered
to post and comply with the provisions of an appropriate
Notice to Employees, attached hereto as "Appendix," and
that in view of the seriousness of Respondent's violations,
it be ordered to cease and desist from in any other manner
interfering with, restraining, or coercing employees in the
exercise of rights guaranteed to them in Section 7 of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
3s See, generally, Isis Plumbing & Heating (o., 138 N .RB 716 (1962).
ORDER 3 9
The Respondent, Hamilton Avnet Electronics, Culver
City, California, its officers, agents, successors, and as-
signs. shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning union
activities.
(b) Engaging in surveillance and creating the impression
of surveillance of employees' union activities.
(c) Threatening employees, expressly or impliedly, with
discharge or unspecified reprisals should they engage in
union activity.
(d) Threatening employees, expressly or impliedly, with
loss of benefits in the event of unionization.
(e) Soliciting grievances from employees, attempting to
bargain directly with employees, and scheduling and hold-
ing luncheons and small group meetings for the purpose of
discouraging union activity.
(f) Promising and granting employees wage increases
and other benefits in order to cause them to discontinue
their union organizational activity.40
(g) Reprimanding employees without justification in re-
prisal for their union activity.
(h) Indicating that any union activity would be futile, as
the Company would not permit unionization.
(i) Unlawfully discharging, laying off, or otherwise dis-
criminating against employees.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer employees Hetty Ross, Bernice Garcia, Ferra
Kimble, and Lucy McClendon immediate and full rein-
statement to their former jobs or, if said jobs no longer
exist, to substantially equivalent positions, with no preju-
dice to their seniority or other rights and privileges, in the
manner set forth in the section entitled "The Remedy."
(b) Make whole employees Hetty Ross, Bernice Garcia,
Ferra Kimble, and Lucy McClendon for any loss of earn-
ings and other benefits each would have earned from the
date of discharge or layoff to the date of Respondent's
valid offer of reinstatement, in the manner set forth in the
section entitled "The Remedy."
(c) Expunge from the personnel records of Bernice Gar-
cia any reference to a reprimand on August 25 or Septem-
ber 2, 1977.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due.
(e) Post at its Culver City, California, facility copies of
~ In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
4' Nothing in this Order is to be construed as requiring or permitting
Respondent to rescind any benefits granted to employees.
HAMILTON AVNET ELECTRONICS 793
the attached notice marked "Appendix." 41 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's au-
41 In the event that this Order is enforced h a judgment of a t nited
States Court of Appeals. the words in the notice reading "Posted h Order
of the National Labor Relations Board" shall read "Posted Pursuant to a1
Judgment of the United States Court of Appeals Enforcing an Order of the
National ahor Relations Board "
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by it to insure that said
notices are not altered. defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 31. in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.