Masterform Tool Co.

National Labor Relations Board - Board Decisions

Mar 30, 1999

327 N.L.R.B. 1071 (N.L.R.B. 1999)

MASTERFORM TOOL CO. 1071
Masterform Tool Company, Cylinder Components,
Inc., and Rrp Enterprises, Inc., a Single Em-
ployer and Union of Needle Trades, Industrial &
Textile Employees, Local 76, AFL–CIO.1 Case
13–CA–32123
March 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On July 20, 1995, Administrative Law Judge Marion
C. Ladwig issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel and the Charging Party filed answering briefs,
and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.3
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act when setup men Guadalupe Za-
pata and Feliciano Rodriguez interrogated employees
about their union activities and employee support of the
Union, and when they threatened employees with layoff,
termination, and plant closure if they supported the Un-
ion. The judge found that Zapata and Rodriguez were
statutory supervisors and thus attributed their conduct to
the Respondent. The judge based his findings that Za-
pata and Rodriguez were supervisors on the fact that they
were perceived to be supervisors; that they assigned,
transferred, and directed the work of employee broach
operators, grinders, and saw operators; that they granted
employees permission to leave work early; and that they
wrote in the time and initialed the timecards for employ-
ees who forgot to clock in or out.
Contrary to the judge, we find that the record does not
support a finding of supervisory status.
Section 2(11) of the Act defines a statutory supervisor
as:

any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.

1 The Union was formerly known as the International Ladies’ Gar-
ment Workers’ Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule and admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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 findings.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, 325 NLRB 17 (1997).

The power must be exercised with independent judgment on
behalf of management and not in a routine manner. Thus,
the exercise of some “supervisory authority” in a merely
routine, clerical, perfunctory, or sporadic manner does not
confer supervisory status.4 Further, the Board does not con-
strue supervisory status too broadly because the employee
who is deemed a supervisor loses his protected right to or-
ganize.5 Therefore, the burden of proving that an individual
is a supervisor is placed on the party alleging that supervi-
sory status exists.6
The record shows that Zapata’s and Rodriguez’ as-
signment and direction of employees involves routine
decisions typical of leadman positions that are found by
the Board not to be statutory supervisors.7 They assign
work based on staffing needs and production require-
ments. Zapata and Rodriguez provide direction and
guidance based on their greater skill and experience.
There is no showing that any assignment and direction of
work involved any exercise of independent judgment.
With respect to the transfer of employees, the record
establishes that Zapata and Rodriguez have transferred
three employees from broach machines to other ma-
chines. The record does not show, however, whether the
transfer decision involved anything other than an attempt
to equalize employees’ work or to make employees
happy. Accordingly, we are unable to find that inde-
pendent judgment was required.8 With respect to Rodri-
guez and Zapata granting time off, the record indicates
only that on a few occasions they granted employees
permission to leave early. The record fails to establish
the circumstances surrounding their granting time off,
including whether they were following established com-
pany policy. Under these circumstances, the record is
insufficient to establish that the granting of time off in-
volves the exercise of independent judgment.9
We also disagree with the judge’s reliance on the fact
that employees perceived Rodriguez and Zapata to be
supervisors. “[T]he proper consideration is whether the
functions, duties, and authority of an individual, regard-
less of title, meet any of the criteria for supervisory status
defined in Section 2(11) of the Act.”10 Consequently,
that employees may have perceived Rodriguez and Za-
4 Bowne of Houston, 280 NLRB 1222, 1223 (1986).
5 Adco Electric, 307 NLRB 1113, 1120 (1992).
6 Chevron U.S.A., 309 NLRB 59, 62 (1992).
7 S.D.I. Operating Partners, 321 NLRB 111 (1996).
8 Byers Engineering Corp., 324 NLRB 743 (1997); Jordan Marsh
Stores Corp., 317 NLRB 460, 467 (1995).
9 Bowne of Houston, supra.
10 Waterbed World, 286 NLRB 425, 426 (1987), citing Bowne of
Houston, supra.
327 NLRB No. 185
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
pata to be supervisors does not, without more, confer
supervisory status on them.
We also find that Rodriguez’ and Septa’s higher wage
rate does not confer supervisory status. Pay differential
is a secondary indicia of supervisory status and, in the
absence of primary indicia as enumerated in Section
2(11), is insufficient to establish supervisory status.11
For the above reasons, we conclude that the record
does not establish that Zapata and Rodriguez are supervi-
sors. The General Counsel failed to show that the au-
thority exercised by them involved independent judg-
ment. Accordingly, we find that Zapata and Rodriguez
are not supervisors and dismiss the 8(a)(1) allegations
attributed to them.
2. The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by laying off employees
Francisco Rodriguez, Marcial Armendariz, Juan Fidel
Santillan, Salvador Cocoma, Porfirio Longoria, Manuel
Castillo, and Miguel Pimentel for engaging in union ac-
tivities.12 In its exceptions, the Respondent contends that
the judge erroneously relied on Zapata and Rodriguez’
knowledge of the employees’ union activity as part of the
evidence of unlawful motivation. The Respondent thus
argues that, because Zapata and Rodriguez are not super-
visors, as the judge found, their knowledge of the em-
ployees’ union activity may not be attributed to the Re-
spondent.
In view of our finding above that Zapata and Rodri-
guez are not supervisors, we agree with the Respondent
that their knowledge of the laid-off employees’ union
activities cannot be imputed to the Respondent. How-
ever, we infer that the Respondent indeed had knowledge
of the employees’ union activity. Such an inference is
warranted here for several reasons. First, it is evident
that the Respondent had general knowledge of the union
campaign in view of its receipt of a telephone request for
recognition by the Union on November 3, 1993. Second,
the layoff occurred within days of the Respondent receiv-
ing the recognition request. Further, the layoff occurred
shortly after the seven employees openly met on Novem-
ber 4, 1993, with union organizers just outside the doors
of the plant. Finally, as found by the judge, the reason
proffered by the Respondent for the layoff, i.e., lack of
work, is wholly unsupported by the record and thus is
pretextual.13 Accordingly, in view of these factors, we
find that the Respondent had knowledge of the employ-
ees’ union activities,14 and thus we adopt the judge’s

11 J. C. Brock Corp., 314 NLRB 157, 159 (1994).
12 All the employees except Cocoma were subsequently reinstated.
13 The Respondent’s sales reached a record high in October and No-
vember 1993. The day after the layoff, the Respondent increased over-
time to meet production requirements. The following week, one of the
laid-off grinders was recalled because of a shortage of grinder produc-
tion. Overtime was increased again before the remaining laid-off em-
ployees were recalled.
14 See BMD Sportswear Corp., 283 NLRB 142 (1987).
finding that their layoff violated Section 8(a)(3) and (1)
of the Act.
3. The Respondent excepts to the judge’s conclusion
that the Respondent’s unfair labor practices warrant the
imposition of a Gissel15 bargaining order. The judge
found that the discriminatory layoff of the seven employ-
ees leading the organizing drive, the delay in recalling
most of them, and the unlawful threats to close or move
the plant would have a long lasting residual impact on
the exercise of the employees’ right to a fair election.
For the following reasons, we disagree.16
First, given our finidngs about the superviosry status of
Zapata and Rodriquez, we have reversed all of the
judge’s 8(a)(1) findings, including the Respondent’s
threats to close or move the plant, and have dismissed
those allegations. Second, although the Respondent’s
November 8, 1993 layoff of the seven known union sup-
porters had a severe impact on the employees’ protected
right to organize, we must also consider the fact that six
of these employees were reinstated by at least February
1, 1994. In these circumstances, we find that there is an
insufficient basis for concluding that a fair election could
not be held at this time. Accordingly, we reverse the
judge’s finding that a Gissel bargaining order is war-
ranted here.17
ORDER
The National Labor Relations Board orders that the
Respondent, Masterform Tool Company, Cylinder Com-
ponents, Inc., and RRP Enterprises, Inc., Franklin Park,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off or otherwise discriminating against any
employee for supporting Union of Needle Trades, Indus-
trial & Textile Employees, Local 76, AFL–CIO, or any
other union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Salvador Cocoma immediate and full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
15 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
16 Inasmuch as we find that a Gissel bargaining order is not war-
ranted in these circumstances, we find it unnecessary to pass on the
judge’s finding that the Union obtained authorization cards from a
majority of unit employees.
17 In view of our finding that a Gissel bargaining order is not war-
ranted here, we find it unnecessary to pass on the Respondent’s motions
to reopen the record to introduce evidence pertaining to employee
Thaddeus Beres’ status as bargaining unit employee and to employee
turnover.
MASTERFORM TOOL CO. 1073
(b) Make whole, commencing from the date of his
unlawful layoff, employee Salvador Cocoma for any loss
of earnings and other benefits suffered by him as a result
of the discrimination against him. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest computed as set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
(c) Make whole commencing from the date of their
unlawful layoff, employees Marcial Armendariz, Manuel
Castillo, Porfirio Longoria, Miguel Pimentel, Francisco
Rodriguez, and Juan Santillan for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., supra, with interest
computed as set forth in New Horizons for the Retarded,
supra.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful layoffs,
within 3 days thereafter, and notify the employees in
writing that this has been done and that the layoffs will
not be used against them in any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Franklin Park, Illinois copies of the attached
notice marked “Appendix.”18 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 8, 1993.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

18 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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.

WE WILL NOT lay off or otherwise discriminate
against any of you for supporting Union of Needle
Trades, Industrial & Textile Employees, Local 76, AFL–
CIO, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
order, offer Salvador Cocoma immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make him whole for any loss of earnings
and other benefits resulting from his layoff, less any net
interim earnings, plus interest.
WE WILL make Marcial Armendariz, Manuel Castillo,
Porfirio Longoria, Miguel Pimentel, Francisco Rodri-
guez, and Juan Santillan whole for any loss of earnings
and other benefits resulting from their layoff, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Salvador Cocoma, Marcial Armendariz,
Manuel Castillo, Porfirio Longoria, Miguel Pimentel,
Francisco Rodriguez, and Juan Santillan, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that the layoffs will not be
used against them in any way.

MASTERFORM TOOL COMPANY,
CYLINDER COMPONENTS, INC., AND
RRP ENTERPRISES, INC.

Sheryl Sternberg and Librado Arreola, Esqs. for the General
Counsel.
Richard L. Samson and Dwight D. Pancottine, Esqs., (Murphy,
Smith & Polk), of Chicago, Illinois, for the Company.
Martin P. Barr, Esq. (Carmell Charone Widmer Mathews &
Moss), of Chicago, Illinois, for the Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried in Chicago, Illinois, on October 11–13, 26–28,
and November 7–11, 1994. The charge was filed November 10,
1993,1 and the complaint was issued December 30.
1 All dates are in 1993 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
About November 1, to undercut the union organizing drive,
two hourly machine setup employees (found to be shop super-
visors) threatened employees with layoff or termination and
relayed President Larry Pippin’s threat to close or move the
plant if the employees supported the Union. The following
week on November 8, Vice President Richard Perales laid off
all seven members of the employee organizing committee, de-
feating the organizing effort. Although the Company claims a
lack of work, its own records show that the October and No-
vember sales reached a record high for those months. During
the first 5 weeks following the layoffs (excluding Thanksgiving
week), the remaining employees worked a record amount of
overtime, averaging 14.7 hours of overtime a week. A high
percentage of the hourly employees were working from 16 to
17-1/2 hours of overtime.
The primary issues are whether the Company, the Respon-
dent, (a) unlawfully interrogated and threatened employees and
(b) discriminatorily laid off the seven union organizers, violat-
ing Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act) and if so, whether a bargaining order is appropriate
and required to remedy the unfair labor practices.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Company, and the Union, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Company—Masterform Tool Company (Masterform),
Cylinder Components, Inc. (CCI), and RRP Enterprises, Inc.
(RPP), stipulated to be a single employer (Tr. 892–893)3—
manufactures end caps, covers, and mounting accessories for
cylinders at its facility in Franklin Park, Illinois, where it annu-
ally ships good valued over $50,000 directly outside the
State. The Company admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Circumstances
Masterform purchases steel and aluminum bars, which are
sawed into blocks to make end caps and covers for cylinders in
the hydraulic industry. The blocks are moved on skids from the
saws first to the grinding machines to be ground to the proper
thickness, or directly to broach machines (or a computerized
Mazak machine) to be precision cut, trimming the width and
length to the required sizes. Blocks are deburred either by a
second broach operator with a hand file at the broach machine
or on one of the two sanding machines, then packed and
shipped or placed in inventory. (Tr. 13–20, 752–753, 793–807,
1187–1188; R. Exh. 28.)
A second shift has been required because the five saws and
three grinders “can’t keep up” with the 14 broach machines (Tr.
829, 846; R. Exh. 29).

2 The Company’s unopposed motion to correct the transcript, dated
January 16, 1995, is granted and received in evidence as R. Exh. 82.
The joint motion to substitute revised copies of G.C. Exh. 35 and R.
Exh. 79 (see Tr. 1654, 1656) is granted.
3 The caption of the case was amended at the trial (Tr. 1610) to name
the three corporations as a single employer.
Two RRP machine operators work in the adjoining RRP
plant, manufacturing cylinder mounting accessories for CCI,
whose two employees pack and ship the accessories, together
with the Masterform precision blocks. The two RRP and two
CCI employees are on the Masterform payroll. (Tr. 815–817,
820, 827–828, 1559–1560; R. Exhs. 28, 49.)
As found below, the Company followed the policy of exclu-
sively hiring—at the $4.25 minimum wage to fill vacancies in
the starting job of broach operator—untrained Mexican immi-
grants who were referred by its current shop employees, all of
whom were of Mexican origin. The two Spanish-speaking
broach setup men, Guadalupe Zapata and Feliciano Rodriguez
were, as found, shop supervisors on the first shift over the
broach operators and the junior grinder and saw operators.
They trained, assigned, and directed the broach operators, in-
specting their work throughout the day. If the broach operators’
performance, work habits, and productivity were found to be
satisfactory and if “they seem pretty sharp to read measuring
instruments” after they have worked under the direction of the
setup men several months, they may be transferred to a grinder
or saw. (Tr. 54, 72–78, 98–99, 186, 348, 371–377, 391–395,
519–521, 829–831, 833–834, 842, 918, 930, 1034, 1430; R.
Exh. 29.)
By Friday, October 29, as also found below, a majority of 18
of the 33 hourly shop employees had signed union authoriza-
tion cards. Seven of the cardsigners were on the employee or-
ganizing committee.
Until then the Union had succeeded in keeping the organiz-
ing effort a secret from the Company. It had conducted the
campaign away from the plant, except on one evening (Tues-
day, October 26) when the union organizers and several mem-
bers of the employee organizing committee entered the plant
and talked to the employees on their second-shift lunchbreak,
soliciting their support. No members of management were pre-
sent (Tr. 584–585).
On Saturday, October 30, however, one of the cardsigners
alerted Feliciano Rodriguez to the union organizing by asking
him if he had signed a union card (Tr. 1589). About Monday,
November 1, the Company’s antiunion campaign began. After
Rodriguez and Zapata were called to the office, they began
interrogated employees about the Union, threatened layoff or
termination, and relayed President Pippin’s threat to close or
move the plant if the employees supported the Union.
The following week, on November 8, despite the hiring of
four new employees in October to keep up with the record sales
for that month and despite the large amount of overtime being
worked, the Company temporarily eliminated the second shift.
It reassigned the six second-shift employees to the first shift
and laid off all seven members of the employee organizing
committee, claiming “lack of work.”
On November 9 the Company lengthened the workday from
9-1/2 to 10-1/2 hours and regularly assigned 5 hours of over-
time work on Saturdays (Tr. 921, 1178; R. Exh. 80). A week
later on November 15, because of a shortage of grinder produc-
tion—despite the added overtime—it recalled one of the three
laid-off grinder operators (Tr. 869, 1049; R. Exh. 80). In Janu-
ary 1994, the Company recalled two other employees. On Feb-
ruary 1 it decided to reinstated the second shift and sent recall
letters to the four remaining laid-off employees (Tr. 367, 412,
873, 881; R. Exhs. 6, 53A, 79).
MASTERFORM TOOL CO. 1075
B. Interrogation and Threats
As indicated, the Company’s antiunion campaign began
about Monday, November 1, after one of the card signers, ship-
ping clerk Martin Rivera, alerted Feliciano Rodriguez on Satur-
day, October 30, to the union organizing campaign (Tr. 1560,
1589).
Broach operator Onecimo Castillo credibly recalled hearing
Feliciano Rodriguez and Zapata being called to the office over
the loud speaker. After returning from the office, Rodriguez
told Castillo at his machine that management wanted to know if
employees were trying to bring the Union in the shop. Rodri-
guez told him that they said in the office “if we had joined the
union they would close the factory or they would fire those who
wanted to establish the union.” (Tr. 266, 297–299, 316; R. Exh.
14 p. 2.)
Either that same day or the following day, as Castillo further
credibly recalled, Zapata spoke to him about the Union as they
were going to their work areas. Zapata said it would not be
“beneficial” for Castillo to join the Union and “those who
wanted to join the union that they would fire us or they would
close the company.” (Tr. 266–267, 299; R. Exh. 14 p. 2.)
Broach operator Porfirio Longoria also credibly recalled that
about a week before his November 8 layoff, Zapata asked him
“if I was with the union” and said that “if I was with the union,
they would fire me or lay me off” and that “the owner [Presi-
dent Pippin] didn’t care about closing the plant if the Union
was brought in” (Tr. 338–339; R. Exh. 15 p. 2).
Meanwhile, Zapata twice interrogated saw operator Miguel
Pimentel about the Union. Pimentel credibly testified that about
a week before he was laid off, Zapata asked him “if I wanted to
join the union, and I said yes.” Two days later Zapata asked “if
I was in the union” and he answered yes. (Tr. 383.)
I note that on Wednesday of that week, November 3, the Un-
ion filed a petition for an election. It also sent the Company a
recognition request by telegram, stating it was aware that Za-
pata and Perales were threatening union supporters and “any
further violation of the law will be brought to the attention” of
the NLRB. (Tr. 608–613; G.C. Exh. 21; R. Exh. 26.)
About 6 o’clock that Wednesday evening, November 3, Un-
ion Organizers Kim Mussman and Juan Segura and four mem-
bers of the employee organizing committee went to the home of
grinder operator Savino Rodriguez to seek his support. They
found his brother Feliciano Rodriguez there. Someone in the
group asked Feliciano Rodriguez what he thought about the
Union. As credibly testified by Mussman (who impressed me
most favorably as a truthful, forthright witness), he answered
“that for him it was fine if the union came in,” but “he couldn’t
be a part of it” because he was “part of management.” (Tr. 604–
605.)
As Mussman further testified, Feliciano Rodriguez stated
that he knew “the Company did not want a union there” be-
cause “the other day” he had been in the office, talking to the
owners (Pippin and his wife Marla Pippin). “And I don’t re-
member who, but he said they had told him that they didn’t care
about their orders, that they could easily move the plant or
close it.” Rodriguez added that “the owner [Pippin] is very rich
and that for him . . . the company was just like a toy” and
“doesn’t mean anything to him. He is so rich he could easily
move.” Rodriguez stated that he himself “knew that there were
back orders in the company . . . that they were behind in their
orders.” (Tr. 737, 605–608.)
Organizer Segura credibly testified that Feliciano Rodriguez
told them that “the owner” said that if the employees join the
Union, “he will move far away from Chicago or close the com-
pany down. He got enough money that he don’t need that. It
was for him a toy. If they bring the union in, he will close the
shop down or move it.” (Tr. 436.) Broach operator Salvador
Cocoma (who impressed me favorably by his demeanor on the
stand as a truthful witness) credibly recalled further that Rodri-
guez said that “Mr. Perales told the owner that there were some
back orders and that the owner answered him that he didn’t
care” (Tr. 180).
On Thursday, November 4, Zapata gave broach operators
Cocoma and Longoria a ride home after work. On the way
Zapata asked them if they were joining the union and they an-
swered yes. Then Zapata asked Cocoma if he was married.
When Cocoma did not answer, Zapata stated that “those who
are married to think of it very well because we would be fired”
for joining the Union. (Tr. 183–184.) Longoria recalled that
Zapata said that if the Union came in, the owner would close
the factory (Tr. 340; R. Exh. 15 p. 2).
In the Company’ defense, Zapata and Feliciano Rodriguez
denied interrogating and threatening employees.
According to Feliciano Rodriguez, Organizer Segura said in
the home visit (on November 3) that “we should have a union
because they could fire us from our jobs” and that he responded
by asking Segura “what would happen if the owner closed the
company, we would lose 20 years in there.” Rodriguez claimed
that Segura then said, “[T]they would never close that factory”
and he asked Segura “what would happen if they moved it
somewhere.” Rodriguez denied having had any discussions
with the owner about the Union, denied that he said anything in
the meeting about back orders, and denied that he told anyone
in the Company about this meeting. He also denied talking to
Castillo about the Union and denied telling any employee that
the plant would close or move if the Union got in. (Tr. 1363–
1366.)
Feliciano Rodriguez did not deny Mussman’s credited testi-
mony that he told her “he couldn’t be a part of” the Union be-
cause he was “part of management.”
Zapata, in turn, denied telling the employees in the car ride
home (on November 4) that the Company would close if the
Union got in, or that he said the employees would be fired if
they joined the Union. He claimed that he merely repeated sto-
ries he had heard about unions in other places. He also denied
telling any employees that the Company would close if the
Union got in and denied ever asking Pimentel whether he was
for the union. (Tr. 1437–1440, 1454–1456.)
By their demeanor on the stand, both Guadalupe Zapata and
Feliciano Rodriguez appeared willing to give any testimony
that might help the Company’s cause. I discredit their denials. I
also discredit President Pippin’s denial (Tr. 882) that he ever
had a conversation with Rodriguez about whether he intended
to close Masterform if a union got in there. His credibility is
discussed later.
Also as discussed later, I reject the Company’s contention in
its lengthy brief (at 14–55) that Guadalupe Zapata and Fe-
liciano Rodriguez were not supervisors and that these “alleged
unlawful acts” cannot be imputed to the Company. I further
reject the Company’s arguments (at 57–74) that the testimony
of the General Counsel’s witnesses should not be credited and
that the evidence does not support the 8(a)(1) allegations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
I find that the threats to lay off or terminate union supporters
and to close or move the plant, and that the interrogation par-
ticularly in the context of the threats, clearly were coercive and
violated Section 8(a)(1) of the Act. I also find this credited
testimony is relevant in determining the Company’s motivation
the following week when it laid off all members of the em-
ployee organizing committee.
C. Layoff of Organizing Committee
1. Employee organizers identified
The Union and the seven members of the employee organiz-
ing committee decided to meet at the 12:30 p.m. lunchbreak on
Thursday, November 4, outside the plant near the lunch truck
“to bring together as many employees as possible to then go
into the office to speak with management about recognizing the
Union” (Tr. 464–468, 614; R. Exh. 14 p. 2).
The Union had already filed a petition for an election, sup-
ported (as found) by a majority of 18 of the 33 hourly shop
employees. It was evidently fearful, however, that the threats
being made that week would decimate the employee support.
On Tuesday evening, November 2, before the Union filed the
petition on Wednesday, Union Organizers Mussman and Se-
gura and two of the employee organizers returned to the plant
to urge employees on their second-shift lunchbreak not to be
afraid of losing their jobs and to stay united (Tr. 1618–1621,
1645–1646). A week earlier when the union organizers entered
the plant and solicited the support of the evening crew—before
Zapata and Feliciano Rodriguez began interrogating and threat-
ening employees—one of the employees had “wanted to know
if he could get fired for signing a card” (Tr. 584–586).
It was on Wednesday evening, after the petition was filed,
that Feliciano Rodriguez informed the union organizers directly
that despite the back orders, President Pippin had stated he
would move or close the plant if the employees joined the Un-
ion, as found above.
Evidently because of the threats being made that week, none
of the other cardsigners joined the seven employee organizers
in the November 4 meeting near the lunch truck. The assembled
group discussed whether they should proceed to the office
anyway to seek union recognition. After about 6 minutes, when
no other employees appeared, committee member Miguel Pi-
mentel returned to the plant. The remaining group decided
against going to the office as they had planned. (Tr. 504–505,
614–616; R. Exh. 16 p. 2.)
Meanwhile, Zapata and Feliciano Rodriguez came to the
lunch truck to buy drinks. Each of them observed the assembled
employees with the union organizers and then returned to the
plant. Zapata arrived first while Pimentel was still there. When
Rodriguez arrived, he observed four of the same employee
organizers who visited him the evening before. Whether or not
either Zapata or Rodriguez overheard the discussion about go-
ing to the office to seek union recognition, Rodriguez observed
that the employees were meeting with the same union organiz-
ers he had met on the previous evening. (Tr. 94, 505, 604, 614,
616; R. Exh. 16 p. 2.)
Under the circumstances, I find that this meeting of members
of the employee organizing committee with the union organiz-
ers placed the Company on notice that the seven employees
were leading the organizing drive.
Because both Zapata and Feliciano Rodriguez—after they
were called to the office—were engaging in the Company’s
antiunion campaign that week, interrogating and threatening
employees and relaying President Pippin’s threat to close or
move the plant, I infer that they conferred with each other and
with the officials about what they had observed at the lunch
truck. Even if Zapata had not previously known that Mussman
and Segura were union organizers, Rodriguez undoubtedly
inform him that they were the union representatives who visited
him the evening before.
When called as a defense witness, Feliciano Rodriguez ad-
mitted seeing five or six employees with the two union repre-
sentatives who were outside his house earlier. I discredit his
claims that he merely saw them through the door and did not go
outside the plant and his denials that he told President Pippin,
his wife Marla Pippin, and Vice President Perales what em-
ployees he saw with the union representatives. (Tr. 1367, 1369,
1405–1406, 1426.) I also discredit Zapata’s denial that he ever
saw any employees before the November 8 layoffs with repre-
sentatives of the Union out by the lunch truck. He admitted that
he did know Segura (they were born on the same ranch in Mex-
ico) and that he did see a lady (Kim Mussman) with him at the
lunch truck, but claimed that “I don’t know if she was selling
something or if she was buying something.” (Tr. 1440–1442.)
Zapata was already aware that Pimentel, who initially joined
the group near the lunch truck, was supporting the union orga-
nizing drive. When Zapata twice interrogated him that week, as
found above, Pimentel had first admitted that he wanted to join
and later that he was in the Union. Moreover, on the previous
afternoon at quitting time, Zapata spent about 5 minutes in the
doorway, watching as Pimentel talked to Mussman at the park-
ing lot (Tr. 384–385, 618–619). I discredit Zapata’s denial (Tr.
1442).
2. All seven organizers laid off
On Friday, November 5 (1 day after the Company learned
the identity of the employee organizers), the Company posted a
letter instructing the six employees on the second shift to report
to the first shift on Monday (Tr. 1221).
On Monday morning, November 8, the Company reassigned
the six second-shift employees to operate machines on the first
shift. Vice President Perales laid off, supposedly for “lack of
work,” all seven members of the employee organizing commit-
tee listed below, telling them “we would recall them as soon as
possible or as soon as business picked up” (Tr. 49, 820; G.C.
Exh. 28 p. 9):

Marcial Armendariz, grinder operator/helper
Manuel Castillo, RRP machine operator
Salvador Cocoma, broach operator
Porfirio Longoria, broach operator
Miguel Pimentel, saw operator
Francisco Rodriguez, grinder operator
Juan Santillan, grinder operator

When the second shift was eliminated once before, there
were no layoffs (Tr. 1181, 1184). President Pippin testified (Tr.
848–849):

A. In September of ‘89 I stopped the night shift
through September of 1991. I did not run a second shift.
Q. And why was that?
A. Production was down. We were in a recession and I
didn’t need the production to keep up with first shift.
. . . .
Q. And do you recall why you reinstated the second
shift at that time?
MASTERFORM TOOL CO. 1077
A. Yes. Work was picking up again. We were getting
busy and falling behind on orders so I decided to put the
second shift back on.

I note that in October 1991, when the second shift was rein-
stated “to keep up with the first shift,” the monthly sales were
$437,515, followed by sales of $340,488 in November and
$368,059 in December. In 1992, the sales increased to
$467,028 in October, $395,168 in November, and $388,426 in
December. In 1993, when the Company eliminated the second
shift, the sales reached a record high for those months,
$469,393 in October and $462,867 in November, and near a
record high of $383,808 in December. (Tr. 1654; G.C. Exh.
35.)
Thus in November 1991, a month after the second shift was
reinstated, the Company retained the second shift with sales of
$340,488. Yet, on November 8, 1993, a week after it discov-
ered the union organizing drive, it not only eliminated the sec-
ond shift but also laid off all seven members of the employee
organizing committee, despite sales that month of $462,867—
which were 35.9-percent higher than the sales in November
1991.
Pippin and Perales gave different versions of why there were
seven layoffs of first-shift employees (although there were only
six second-shift employees reassigned to the first shift). Mis-
stating the number of employees on the second shift, Pippin
testified (Tr. 866) that on November 2 (that is, after the Com-
pany’s antiunion campaign began):

I told [Perales] we are going to eliminate the second shift, and
I said we are going to have to lay off seven employees, what
we had on second shift, so we figured we would lay off seven.

Pippin next denied that he decided on November 2 to lay off
seven employees (Tr. 866–867):

No. I basically told Richard [Perales] we were going to have
to decide who we want to lay off. He just knew the amount
would be seven because that is how many we had on the sec-
ond shift.

I note that November 2 was before the identity of the seven
employee organizers was revealed to the Company by the No-
vember 4 lunch truck meeting.
Perales gave a different purported reason, which was equally
unpersuasive. He claimed that he chose the number seven be-
cause of the number of available production machines (Tr.
1032, 1147):

A. Seven was a good number to me because of the ra-
tio of employees to machines that we had available to run
in production.
. . . .
Q. Now, did you pick the number seven people to lay
off because that is how many were on the second shift?
A. No.
Q. You just picked seven based on?
A. How many machines we had to how many employ-
ees we had.

Neither Perales nor the Company in its brief offers any sug-
gestion why there were enough jobs on production machines
the previous week for the seven laid-off employees, but not
enough production machines on November 8 when six second-
shift employees were reassigned to the first shift, requiring the
layoff of the seventh employee. I note, as discussed below, that
1 week later there were enough machines when the Company
recalled one of the production employees because of a shortage
of grinder production and also in January 1994 when it recalled
and assigned many hours of overtime to two other laid-off pro-
duction employees—before the Company decided on February
1 to reinstate the second shift.
I discredit Vice President Perales’ explanation as a fabrica-
tion.
I note that before the trial, the Company contended that
President Pippin decided to eliminate the second shift on No-
vember 4, not November 2. It asserted in its December 9, 1993
statement of position (G.C. Exh. 28 p. 5), about a month later,
that “on November 4, 1993, Larry Pippin decided to cease sec-
ond shift operations.” In its January 13, 1994 answer (G.C.
Exh. 1H par. 6A), the Company stated that “Masterform admits
that on November 4, 1993, it decided to cease second shift op-
erations.”
By the time President Pippin testified on October 28, 1994
(the 6th day of the trial, after the General Counsel completed
his case-in-chief), the Company had shifted its position. The
previously admitted Thursday, November 4 date would have
meant that the Company decided to eliminate the second shift
on the date of the meeting near the lunch truck (when, as found,
the Company learned the identity of the seven employees who
were leading the organizing drive).
Upon being asked, “When did you make the decision to
eliminate the second shift,” President Pippin answered (Tr.
866) that he spoke to Perales “and my wife on Tuesday [No-
vember 2] about I was going to eliminate the second shift.”
I infer that the correct date was Thursday, November 4, the
date that was admitted much closer to when the decision was
made. I do not doubt, however, that on November 2, after the
Company’s antiunion campaign began, the Company was al-
ready planning the layoff of some of the employees. Perales
testified (Tr. 1017–1018) that on Wednesday, November 3, he
asked Pippin’s sister Lynn for a current list of employees (R.
Exh. 65) for him to “review who we would keep and who we
would lay off.” I discredit, however, Perales’ claim (Tr. 1031)
that he did not make his “final decision as to who” to lay off
until Saturday, November 6 (although he was laying off all
seven employee organizers who attended the Thursday lunch
truck meeting).
Even apart from the question of whether the Company’s mo-
tivation for eliminating the second shift and laying off any em-
ployees was discriminatory, I find that there was no nondis-
criminatory reason for laying off all seven members of the em-
ployee organizing committee—one more employee than the
number of second-shift employees reassigned to the first shift.
3. Fabricated defenses
a. Prior cancellation of aluminum order
Despite record sales in October and November for those
months, as discussed above, the Company offered evidence to
prove that there actually was a “lack of work” (as Vice Presi-
dent Perales told the seven members of the employee organiz-
ing committee on November 8 when he laid them off).
President Pippin testified that after record sales in June, July,
and August (a monthly average of $544,960), “toward Septem-
ber and October things started falling off and getting a little
slower,” as confirmed by weekly and monthly reports he was
receiving. He testified that Perales was reporting to him in
“mid-October that we were getting some rumors about slow-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
downs.” He admitted, however, that in the last quarter of the
year “things usually start slowing down.” (Tr. 849–850, 860,
864; G.C. Exh. 35.)
Specifically, he testified (Tr. 859–861) that in mid-October,
Vice President Perales told him that Hydro-Line Manufacturing
(which accounted for 60 percent or more of the Company’s
aluminum business, Tr. 1192) canceled their aluminum order,
which was scheduled for delivery “I believe it was like . . . a
November deliver date” and which was worth about $38,000.
In fact, there was no $38,000 aluminum order scheduled for
delivery in November.
There were 12 small Hydro-Line blanket orders for various
sizes of aluminum blocks and none of the orders had a Novem-
ber delivery date. In 1993, the Company had made seven ship-
ments of aluminum blocks on these blanket orders, from Febru-
ary 22 to October 18, for a total amount of $6371—a minuscule
fraction of the $380,000 or $390,000 in total sales (of steel and
aluminum blocks) to Hydro-Line that year. There were no
scheduled delivery dates for the remaining portions of the 12
blanket orders, totaling $33,823. (Tr. 860; G.C. Exhs. 30, 32; R.
Exhs. 54–63.)
After the middle of June, the only shipments of aluminum
blocks to Hydro-Line were small shipments of $315 on August
20, $177 on October 4, and $596 on October 18, totaling only
$1088. The Company knew that a competitor had cut the price
of aluminum blocks and was taking this business. The Com-
pany had decided not to lower its prices because “there is not
enough margin in it for us.” In September a Hydro-Line pur-
chasing agent had informed Perales that “they thought they
might be canceling” the blanket orders. (Tr. 981–982, 1136–
1137, 1183, 1192.)
I find it is obvious, under these circumstances, that the later
cancellation of the remaining aluminum orders was not a factor
in the decision to lay off employees. None of the small blanket
orders had been scheduled for delivery. Weeks or months ear-
lier the Company had decided to largely abandon this alumi-
num business with Hydro-Line to a price-cutting competitor,
rather than meet the lower prices for aluminum blocks. Its peak
sales in October and November were mainly steel block sales,
which were not affected by the cancellation.
Moreover, the documentary evidence further shows that
there had been no cancellation in mid-October (2 weeks before
the Company’s antiunion campaign). The cancellation occurred
after the layoff of the seven members of the organizing com-
mittee. Notice of the cancellation was sent by fax (G.C. Exh.
31) on November 12—which was 4 days after the layoffs. Pip-
pin admitted (Tr. 903) his belief that if an oral cancellation had
been given to Perales “in the regular course of business,” this
confirmation would have been sent nearly the same day. Per-
ales admitted on cross-examination (Tr. 1144, 1168) that the
November 12 faxed cancellation is the only document indicat-
ing the date of the cancellation and that he had no discussion
with Hydro-Line “about them sending the fax before they actu-
ally sent it.”
I discredit, as fabrications, President Pippin’s testimony
about a mid-October cancellation of a $38,000 Hydro-Line
aluminum order, scheduled for November delivery, and about
there being a lack of work.
I discredit Vice President Perales’ claim (Tr. 1008–1010,
1138) that although “I don’t recall the exact date,” Hydro-Line
orally canceled the aluminum orders the middle to late October.
I also discredit, as further fabrications, his claims (Tr. 1016–
1017) that in mid-October, “I indicated to Mr. Pippin that I
think we should cease our second shift and/or determine a lay-
off or both” and that toward the end of October, “I told him
what we needed to do and he said go ahead.” This would fix the
date of the decision to eliminate the second shift in October,
contrary to both Pippin’s testimony that it was November 2 and
the Company’s pretrial position that it was November 4.
b. Excessive employees
President Pippin testified (Tr. 849) that before the November
8 layoffs, the Company had 37 employees—the same number it
had in August, 1 of the 3 summer months when the Company
had record sales and “more employees than I ever did before.”
His wife Marla Pippin, Masterform’s secretary-treasurer, testi-
fied (Tr. 1220) that she had expressed the opinion that “we
were slow. We couldn’t support, I didn’t think, paying that
many people. We had a large number of people working for us
so I thought we should have the layoff.”
The Company’s own records (G.C. Exh. 29; R. Exh. 79) pre-
sent an entirely different picture. The Company was hiring new
employees in October to replace employees who were termi-
nated (quit or discharged). One employee (Marcelino Carrizal)
was terminated in September and three (Romero Cameras,
Rafael Martinez, and Fernando Ornelas) in October. A fifth
employee (Rafael Gomez), who was hired the first week in
October, was terminated the fourth week in October.
The Company hired Martin Querrero on October 4 and Sal-
vador Cocoma on October 11. On October 26—when Marla
Pippin claimed she thought they “couldn’t support” those al-
ready on the payroll—the Company hired Samuel Torres. To
keep up production to meet the record sales (for those months)
in September, October, and the first week in November, the
Company assigned hourly employees an average of 11.6 hours
of weekly overtime during the 8 weeks from September 13
through November 7 (the day before the layoffs).
During the week before the November 8 layoffs, there were
35 hourly employees on the payroll, including setup men Gua-
dalupe Zapata and Feliciano Rodriguez.
On November 9, the next day after the layoffs—not Novem-
ber 15, as Perales claimed (Tr. 1154)—the Company had to add
an extra hour of daily overtime to meet production require-
ments. The first-shift workday was extended from 9-1/2 hours
(6:30 a.m. to 4:30 p.m.) to 10-1/2 hours (6:30 a.m. to 5:30
p.m.). (Employees on the second shift had been working 10
hours a day.) On November 15, because of a shortage of
grinder production, the Company recalled Juan Santillan, one
of the three laid-off grinder operators. During the first 5 weeks
after the layoffs (excluding Thanksgiving week), most of the
employees were working 5 hours of overtime each Saturday. I
discredit Perales’ claim that the production employees were not
working overtime regularly on Saturdays, but only “an intermit-
tent Saturday.” The average weekly overtime was increased to
14.7 hours, a record high. Each week a high percentage of the
employees worked from 16 to 17-1/2 hours of overtime. (Tr.
869, 1125; R. Exhs. 79, 80.)
When President Pippin was asked on direct examination
about changing the shift hours (on the first day after the layoffs,
to end the shift at 5:30 p.m. instead of 4:30 p.m.), he answered
(Tr. 868–869): “About a week later [emphasis added] I in-
creased the first shift one hour” because the “trucklines weren’t
making it there in time to pick up the finished product.” He was
claiming that he assigned all the hourly employees an extra
MASTERFORM TOOL CO. 1079
hour of overtime so that there would be shipping clerks present
to load trucks that previously had been loaded on the second
shift. He gave the same answer on cross-examination, but fi-
nally admitted that “the rest of the employees had to work an
additional hour in order to keep production sufficient to meet
orders.” (Tr. 920–921.) President Pippin did not impress me as
being a candid witness.
Thus on November 9, the day after the layoffs, the Company
was aware that it required even more overtime to meet produc-
tion requirements.
The Company continued assigning many hours of overtime
after the Christmas holiday season. The January 1994 sales
were $439,245, as compared to $442,049 in January 1993 when
the Company (with a second shift) had 37 hourly employees on
the payroll during the second and third weeks (6 months before
the busy 1993 summer season). It recalled saw operator Miguel
Pimentel on January 10, 1994, and assigned him and most of
the other employees 17-1/2 hours of overtime that week. It
recalled broach operator Porfirio Longoria during the week
ending January 23, when most of the employees worked 17 or
more hours of overtime. During the week ending January 31,
Pimentel, Longoria, and most of the other employees worked
from 17 to 19-1/2 hours of overtime. (Tr. 367, 412; R. Exh. 79.)
I find that the Company’s defense that there was an exces-
sive number of employees was clearly fabricated.
Finally on February 1, 1994—not February 6 as President
Pippin testified—when “we were falling behind on production”
(despite the recall of two laid-off employees in January), Pippin
decided to reinstate the second shift and sent recall letters to the
remaining laid-off employees (Tr. 873, 881; R. Exhs. 6, 53A,
79). He falsely testified that the Company did not recall any of
the laid-off employees, besides Santillan, before February 1,
1994 (Tr. 881).
All of the remaining laid-off employees returned to work,
except Salvador Cocoma, who did not receive the recall letters
(Tr. 194–198; R. Exhs. 6–9). I note that the Company intro-
duced a postal receipt (R. Exh. 8) showing that the third recall
letter to Cocoma’s old address was sent on February 23, 1994,
by certified mail, return receipt requested. The Company did
not attach a return receipt, showing delivery.
c. No knowledge of union organizing
On Wednesday, November 3 (after the Company’s antiunion
campaign began, as found, and 5 days before the layoffs), the
Union filed a petition for an election and sent the Company a
recognition request by telegram, stating it was aware that Za-
pata and Perales were threatening union supporters and “any
further violation of the law will be brought to the attention” of
the NLRB (Tr. 608–613; G.C. Exh. 21; R. Exh. 26).
Union Organizer Mussman, who sent the telegram, in-
structed the telegram company to send the message by postal-
gram, but also to “phone it in that day” (Tr. 689). The Com-
pany, however, did not receive the NLRB petition and the
mailgram through the mail until Monday morning, November
8. Marla Pippin credibly testified that she did not open the mail
until after the layoff of the seven employees that morning. (Tr.
1224; R. Exhs. 26, 52.)
The Company does not specifically deny that it received the
telephone message. Pippin, however, denied (Tr. 882) that be-
fore receiving the mailgram and petition, he had any knowledge
of union organizing, and Perales denied (Tr. 1047) that he knew
that a union was organizing before the layoffs.
In view of the credited testimony to the contrary, as dis-
cussed above, and because both President Pippin and Vice
President Perales appeared to lack candor on the witness stand,
I discredit the denials as fabrications.
4. Concluding findings
As found, setup man Feliciano Rodriguez discovered the un-
ion organizing campaign on Saturday, October 30. Early in the
week of November 1, after he and setup man Guadalupe Zapata
were called to the office, the two alleged supervisors began the
Company’s unlawful antiunion campaign, interrogating em-
ployees about the union activity, threatening employees with
layoff or termination, and relaying President Larry Pippin’s
threat to close or move the plant if the employees supported the
Union.
On Wednesday, November 3, Vice President Perales re-
quested a list of the current employees “to review who we
would keep and who we would lay off.” On Thursday, the next
day, the Company discovered the identity of the seven em-
ployee organizers and decided to eliminate the second shift. On
Monday, November 8, the Company assigned the six second-
shift employees to operate machines on the first shift and laid
off all seven members of the employee organizing committee
supposedly, for “lack of work.”
The Company’s sales reached a record high for those months
in October and November. The Company had been hiring em-
ployees in October to meet the production demands. During the
8 weeks preceding the November 8 layoffs, the hourly employ-
ees were working an average of 11.6 hours of weekly overtime.
On November 9, the day after the layoffs, when the Com-
pany was aware that it would be required to assign even more
overtime to meet production requirements, it extended the 9-
1/2-hour workday to 10-1/2 hours. It recalled a laid-off grinder
operators the next week because of a shortage of grinder pro-
duction. It increased the weekly overtime to an average of 14.7
hours during the 5 weeks after the layoffs (excluding Thanks-
giving week). A high percentage of the hourly employees were
working from 16 to 17-1/2 hours of overtime.
Particularly because of the timing of the layoffs (the week
after the Company began its unlawful antiunion campaign
through the setup men), I find that the General Counsel has
made a strong prima facie showing that the employees’ union
organizing activities was a motivating factor in the Company’s
decision to lay off the seven members of the employee organiz-
ing committee. Wright Line, 251 NLRB 1083 (1980). Having
found that the Company’s defenses were fabricated, I find that
it has failed to meet its burden of proof that it would have laid
off the employees in the absence of the union activity.
Accordingly I find that the Company discriminatorily laid
off Marcial Armendariz, Manuel Castillo, Salvador Cocoma,
Porfirio Longoria, Miguel Pimentel, Francisco Rodriguez, and
Juan Santillan on November 8, 1993, violating Section 8(a)(3)
and (1) of the Act.
D. The Union’s Majority Status
1. Valid cards in evidence
The General Counsel introduced in evidence 18 authenti-
cated union authorization cards, dated from October 15 through
29 (G.C. Exhs. 2–8, 10–20). The text of each card, written both
in English and Spanish under the name of the Union, is the
same:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
I AUTHORIZE THE ABOVE TO REPRESENT ME IN
COLLECTIVE BARGAINING.

Thus, the authorization cards are “single-purpose cards, stat-
ing clearly and unambiguously on their face that the signer
designates the union as his representative.” NLRB v. Gissel
Packing Co., 395 U.S. 575, 606 (1969).
The credited testimony is replete that the union organizer
read the text of the card at the meetings when handing the cards
out and that each of the employees read the card before signing
it (Tr. 124, 174, 379, 400, 443, 470, 500, 560, 572, 592, 598).
In one instance the employee read the card and authorized an-
other employee to sign it because of a smashed finger (Tr. 174,
333–334). Not only does the card clearly state that it authorizes
the Union to represent the employee, but the union organizers
made a practice of explaining this purpose (Tr. 124, 214, 244,
260, 290, 401, 409, 425–428, 452, 470–472, 572, 577, 595,
597).
There is no evidence suggesting that any of the card signers
was told that the cards would be used solely to obtain an elec-
tion. The Company, however, contends in its brief (at 108–110)
that “various employees were told the purpose of signing the
card was to help the Union obtain an election” and that two of
the card signers, Marcial Armendariz and Salvador Cocoma
(laid-off members of the employee organizing committee) un-
derstood “that an election would be the result of having signed
the card.”
In making these contentions, the Company ignores Armen-
dariz’ credited testimony (Tr. 560) that when he read the card,
he understood “that the Union would represent me,” as well as
Cocoma’s credited testimony (Tr. 214) that the union represen-
tatives told him that the purpose of signing the card was to
“belong to the union.” The Company also ignores the Gissel
holding, 395 U.S. at 606–607, that “There is nothing inconsis-
tent in handing an employee a card that says the signer author-
izes the union to represent him and then telling him that the
card will probably be used first to get an election.”
In addition, the Company challenges the cards signed by
three of its defense witnesses, employees Abel Leon, Martin
Rivera, and Gusmaro Rivera.
Abel Leon. I discredit second-shift employee Leon’s testi-
mony that on Friday evening, October 29 (that is, before the
Company became aware of the union organizing), he told Un-
ion Organizer Mussman at the plant not to bother him anymore,
that “I made a mistake signing the card” (but not asking for his
card back). On rebuttal, Mussman credibly denied that this
happened.
As Mussman testified, it could not have happened on Friday
evening, because that is when she hosts a study group at her
home. Neither did it happen on Tuesday evening, November 2
(after the Company’s antiunion campaign began), when she and
three others returned to the plant to urge the employees on the
second shift not to be afraid of losing their jobs and to stay
united. One of the employees stated that we people from Mi-
choacon, a State in Mexico, “will not turn back,” and “they
agreed that they were all going to stick together.” Mussman had
no separate conversation with Leon. (Tr. 1618–1621.) Em-
ployee organizer Armendariz, also on rebuttal, credibly con-
firmed that none of the second-shift employees said anything to
the contrary to Mussman (Tr. 1641–1646, 1651–1652). Armen-
dariz, like Mussman, impressed me most favorably as a truth-
ful, forthright witness.
Martin Rivera. As Union Organizer Segura credibly testi-
fied, Martin Rivera signed his card (on October 28) at the union
hall, where Segura told him that “[i]f you want to sign, be with
your friends, organize the union, just sign the card and we will
represent you” and if the Union gets a majority, “we come and
file a petition and then we go to an election” (Tr. 428–429,
451–452). Rivera checked the “Yes” box on the card, besides
the words, “I will serve on Committee” (G.C. Exh. 7).
I discredit Rivera’s claim that outside the plant earlier that
Thursday, October 28, Secura had told him that “almost every-
body signed the cards” (Tr. 1570). I also discredit Rivera’s
claim that about 4:30 p.m. (quitting time) on Monday, Novem-
ber 1, he asked Mussman “if she could give me my card back
because I don’t want the union.” By his demeanor on the stand,
he did not appear to be a truthful witness.
Mussman credibly testified on rebuttal that she was present
when Segura talked to Rivera outside the plant on October 28
and that neither she nor Segura “ever told Martin Rivera that
almost everyone had signed cards” (Tr. 1613–1614). She knew
that on Monday, November 1, she was not at the plant, because
she was with employee organizer Francisco Rodriguez in Chi-
cago, making house calls. She credibly denied that Rivera ever
asked her for his authorization card back. (Tr. 1611–1612.)
Gusmaro Rivera. Martin Rivera claimed that on Monday,
November 1, when he asked for his card back, his brother
Gusmaro was present (Tr. 1589). Gusmaro Rivera did not con-
firm this claim. He instead claimed that he, himself, asked for
his own card back that Monday or Tuesday (about 3 or 4 days
after he filled out his card on October 29). Gusmaro Rivera,
like Martin Rivera, also claimed that he was told “there were
only a few people left to sign the cards.” (1473, 1475–1476,
1498–1499.) On rebuttal, Mussman credibly testified that no
one at the October 29 meeting said that only a few employees
were left to sign cards and that Gusmaro Rivera never asked for
his card back or said he did not want the Union anymore (Tr.
1615).
I infer that the two brothers concocted these claims to sup-
port the Company’s defense. As held in Gissel, 305 U.S. at 608:

We . . . accept the observation that employees are more likely
than not, many months after a card drive and in response to
questions by company counsel, to give testimony damaging to
the union, particularly where company officials have previ-
ously threatened reprisals for union activity in violation of
§ 8(a)(1).

Gusmaro Rivera’s brother Martin Rivera was sitting near
him at the union meeting on October 29 when he filled out his
card (G.C. Exh. 8), after Union Organizer Segura told him he
should sign because “there were more benefits” (with the Un-
ion). When doing so, however, Gusmaro Rivera indicated his
reluctance to going further than expressing his desire to be
represented by the Union. Instead of checking the yes box,
indicating that he would serve on committee (as his brother had
done the day before), he gave no phone number and gave the
wrong address on the card. Upon questioning by company
counsel at the trial, he answered no, he did not want anyone
from the Union phoning him and no, he did not want anyone
from the union visiting him. Although he signed the card only
after “Print Name” and not after “Signature,” he demonstrated
by his actions that he was authorizing the Union to represent
him by filling out and signing the card, in the presence of the
other employees who were present, and by giving it to the Un-
MASTERFORM TOOL CO. 1081
ion. I discredit as an afterthought his claim that he did not want
the Union to represent him. (Tr. 430–434, 450–451, 598–599,
620–621, 668, 1496, 1522–1523, 1532.)
As Mussman credibly testified (Tr. 1615, 1631–1632), some-
time the following week (after Monday, when she was making
house calls elsewhere, and therefore sometime after the Com-
pany, through the setup men, was threatening reprisals for sup-
porting the Union), Gusmaro Rivera told her (outside the plant)
to

“Forget about me.” And I asked him why, and he said, “Be-
cause I am going to Mexico on an emergency with my
honey.”
. . . .
Q. BY [Company Counsel] MR. SAMSON: Did you
take his comment to mean that he did not want to be in-
volved in the union anymore?
A. I took his comment to mean that he didn’t want me
to have anything to do with him anymore. . . . I was a rep-
resentative of the union and he told me he didn’t want me
to have anything to do with him anymore.

Because, as Mussman credibly testified, Gusmaro Rivera
neither asked for his card back nor stated that he no longer
wanted the Union to represent him, I find it unnecessary to
consider whether Rivera’s conduct that week was induced by
the Company’s unlawful antiunion campaign.
Accordingly I find that all 18 of the authorization cards were
valid cards.
2. Appropriate bargaining unit
a. Undisputed 33 employees in unit
The complaint alleges the following appropriate unit:

All full-time and regular part-time production and mainte-
nance employees, employed by Masterform Tool Company,
Cylinder Components, Inc., and RRP Enterprises, Inc. at their
facility in Franklin Park, Illinois, but excluding office clerical
employees, guards, and supervisors as defined in the Act.

There were 37 employees on the payroll, including 2 salaried
employees (tool sharpener Thaddeus Beres and over-the-road
driver Barney Grogan) and 2 alleged supervisors (setup men
Guadalupe Zapata and Feliciano Rodriguez).
It is undisputed that if the 2 salaried employees and 2 alleged
supervisors were not included, there were 33 employees in an
appropriate unit on October 29, 1993 (when, as found, the Un-
ion had obtained 18 valid authorization cards).
b. Employees in dispute
(1) Thaddeus Beres and Barney Grogan
The General Counsel and the Union contend that these sala-
ried employees did not share a community of interest with the
unit employees.
Thaddeus Beres was a highly skilled craftsman who worked
alone in a separate maintenance and tooling area (Tr. 806–807;
R. Exhs. 29, 45–46). He had no contact with the shop employ-
ees, except when one of the setup men instructed a broach op-
erator to take a broach cutter to him for sharpening (Tr. 171–
172, 189, 271, 345, 391, 509, 950).
In the period before the November layoffs, Beres not only
sharpened cutters and chamfers used on the broach machines,
but designed and created parts for the machines and retrofitted
tools and fixtures. He used his own tools and also the Com-
pany’s broach and chamfer sharpening machines, a milling
machine, lathe, and other machines, utilizing skills in his work
not possessed by any other employee. In his absence, the vice
president performed the tool-sharpening part of his work. He
worked different hours during the week than the shop employ-
ees and did not work on Saturdays, as the shop employees often
did. (Tr. 20–21, 59–62, 947–953, 1068–1071, 1155.)
Beres and the over-the-road driver were the only employees
on salary. His $60,000 annual salary was much greater com-
pensation than any of the nonsupervisory hourly employees,
including the senior packing and shipping employee, Juan Sal-
cedo, who served as expediter and was paid $13.20 an hour.
(Tr. 733, 827; G.C. Exh. 29.) To the extent that Beres was su-
pervised at all, he was supervised by Perales, who before be-
coming vice president had understudied him full time for 3 or 4
years, sharpening tools and designing broach machines, but
who admittedly did not learn all his skills (Tr. 1057–1059).
Beres’ benefits were the same as those of the officials, office
employees, and other employees. (Tr. 35–37, 953.)
I note that before the trial the Company did not consider
Beres to be one of the shop employees. His name was omitted
from the list of “Masterform Shop Employees as of 11/5/93,”
which was attached to its December 9 statement of position
(G.C. Exh 28 p. 9). The only other employees omitted from the
list were the over-the-road driver and two CCI employees,
Eugenio Garcia and Martin Rivera (Tr. 1025, 1028).
I find that the job duties and conditions of employment of
this salaried tool sharpener varied so sharply from those of the
production and maintenance employees that he did not share a
community of interest with them.
Barney Grogan was the over-the-road driver who drove an
18-wheel tractor-trailer. He picked up steel bars from the mills
and service centers and made deliveries of company products as
far away as New Jersey and Alabama. When he was absent,
these deliveries were made by outside carriers. He set his own
hours of work, which fluctuated widely, and set his own routes.
He performed no production work and had no contact with the
shop employees, except when loading and unloading his truck.
His annual salary was $60,940. When not driving the 18
wheeler, he drove a 6-wheel pickup truck. Packing, shipping,
and receiving clerk Gusmaro Rivera, who sometimes also drove
the pickup truck in Grogan’s absence from the plant, was paid
$11 an hour. (Tr. 41–42, 65, 271, 346, 367, 390, 508, 772, 955–
960, 1078–1081.)
Grogan was the only employee who was subject to the
Commercial Motor Vehicle Carrier Act of 1986, to regular drug
testing, and to a regular physical examination, including eye
examination. He kept a driver’s log and he was the only em-
ployee required to have a commercial driver’s license. He sub-
mitted an expense report for reimbursement. He was super-
vised, if at all, by Perales. (Tr. 958, 1074–1078, 1156–1157,
1461–1462, 1469.)
Having considered the factors for evaluating whether there is
a community of interest shared between truckdrivers and pro-
duction and maintenance employees, as listed in E. H. Koester
Bakery Co., 136 NLRB 1006, 1011–1012 (1962), cited by the
Company in its brief (at 105–107), I find that the evidence is
clear that the interests of this over-the-road truckdriver were
obviously dissimilar to those of the production and mainte-
nance employees.
Accordingly, in the absence of a community of interest be-
tween the tool sharpener and over-the-road truckdriver and the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
production and maintenance employees, I find that these two
salaried employees were not in the bargaining unit on October
29, 1995.
(2) Guadalupe Zapata and Feliciano Rodriguez
(a) Triple wage rate
Zapata and Feliciano Rodriguez were broach machine setup
men on the first shift in separate areas of the shop—in the old
area near shipping and receiving and in the new area in the
back of the shop. They were the highest paid hourly employees,
receiving $18.34 and $15.36 an hour. When one of them was
absent, as discussed below, maintenance man Florencio Carri-
zal took his place performing the setups in that area. Carrizal
was paid at a much lower rate, $11.80 an hour. (Tr. 787, 930,
1023, 1359, 1382, 1432; G.C. Exhs. 28 p. 9, 29; R. Exhs. 29,
79.)
The setup men’s hourly wage rates were more than triple the
$4.81 average wage rate of the nine first-shift broach operators
with whom they worked. This average included the $5.32 wage
paid Severiano Grimaldi, who had remained on that starting job
over 4 years (since June 6, 1989), running the large 15-ton
broach machine. The remaining eight broach operators were
being paid from $4.25 to $4.95 an hour. (Tr. 1023; G.C. Exhs.
28 p. 9, 29.)
The junior saw operator Miguel Pimentel (working on the
saws located near the eight broach machines in the old area
where Zapata worked) was paid $4.95 an hour. Excluding the
senior grinder operator Savino Rodriguez, who was hired Janu-
ary 3, 1978, and was being paid $9.50 and hour, each of the
four first-shift grinder operators working on the three grinders
(one located in the old area and two in the new) was paid $5.20
an hour. These four junior grinder operators included grinder
operator/helper Marcial Armendariz and grinder opera-
tor/Mazak operator Juan Cardenas. (G.C. Exhs. 28 p. 9, 29; R.
Exh. 29.)
There are great conflicts in the evidence concerning why the
setup men were being paid triple the wage rate of the broach
operators with whom they worked.
On the one hand, the evidence indicates that Zapata and Fe-
liciano Rodriguez were much more than mere setup men whose
“only duties,” according to President Pippin (Tr. 792), were “to
set up the broach machines and inspect [the precision-cut
blocks] and load the [broach] machines with the lift trucks.” As
discussed below, the evidence indicates that they were shop
supervisors over both the broach operators and the junior
grinder and saw operators. Furthermore, for years before the
trial, Masterform had acknowledged that the hourly setup posi-
tion was supervisory.
On the other hand the Company, recognizing that “the setup
men receive higher pay,” contends in its brief (at 17, 50), first,
“they are the only two employees who perform setup work on a
full-time basis for the Company and who have the skills to do
so” (Tr. 837) (emphasis added).
The second part of this contention, that the two setup men
are the only two employees “who have the skills to do” the
setup work, appears to be misleading. On the cited page of the
transcript, President Pippin answered the following question
asked by a company counsel:

Q. [BY MR. PANCOTTINE] Now, did Mr. Zapata and Mr.
Rodriguez always do setups, perform the setup function for the
company?
A. Yes they do. [Emphasis added.]

Pippin was answering that yes, they “always do setups”—not
that they always do all the setups. Vice President later admitted
(Tr. 1023) that Florencio Carrizal (the maintenance man who
was paid $11.80 an hour) “can make setups for us.” Likewise,
Feliciano Rodriguez acknowledged (Tr. 1382) that “Sometimes
[Carrizal] does setup also.”
Because Florencio Carrizal was the only employee qualified
to replace a setup man, I infer that when Zapata was last absent
(presumably on vacation) during the week ending May 9, Car-
rizal replaced him. Both Carrizal and Feliciano Rodriguez
worked 47.5 hours that week. Carrizal’s $11.80 wage rate was
35 percent below Zapata’s $18.34 wage rate. (Tr. 1023, 1382;
G.C. Exhs. 28 p. 9, 29; R. Exhs. 29, 79.)
Second, the Company attempts to justify its high wage rates
for the setup men by contending (Br. at 17) that “At the time of
the events in question. . . . [Zapata and Feliciano Rodriguez]
have both been in the Company’s employ for over 20 years”
and further contending (Br. at 50) “the evidence is also clear
that outside of [tool sharpener] Beres, Zapata and Rodriguez
are the two most senior employees of the Company.” I find the
facts to be otherwise.
During the trial a tabulation of hiring dates, wage rates, and
tenure of the employees was made from the company records.
The tabulation, purported to contain the hiring dates on the
employment applications (Tr. 1601–1602; G.C. Exh. 29),
shows that neither Zapata nor Feliciano Rodriguez had been in
the Company’s employ over 20 years and neither of them was
the most senior employee. It shows that Zapata was hired April
21, 1977 (about 16-1/2 years before the layoffs), and Rodriguez
was hired October 4, 1976 (about 17 years before).
The tabulation further shows that there were four hourly em-
ployees who were more senior than either of them and that
although these four employees had more seniority, their $11.27
average wage rate was 38 percent below Zapata’s $18.34 rate
and 26 percent below Feliciano Rodriguez’ $15.36 rate. Saw
operator Alfredo Ovalle (hired February 12, 1974) was paid
$12.24. Crane and saw operator Abdiel Gallardo (hired June
10, 1975) was paid $12.40. Second-shift grinder operator Fran-
cisco Segura (hired April 19, 1976) was paid $11.03. Mazak
operator Ginora Carrizal (hired April 22, 1976) was paid $9.41.
(G.C. Exhs. 28 p. 9, 29.)
By the time the tabulation was offered in evidence (Tr.
1601–1602), Zapata had testified as a defense witness on No-
vember 9, 1994 (Tr. 1428) that he had worked there 22 years.
Feliciano Rodriguez testified earlier that same day (Tr. 1355)
that he trained as a setup man about 2-1/2 years (during which
time he also drove a Jeep lift truck and operated broach ma-
chines) and had been a setup man about 20 years (a total of
over 22 years). As found, by their demeanor on the stand both
Zapata and Rodriguez appeared willing to give any testimony
that might help the Company’s cause.
I note that if it were true that both Zapata and Feliciano Rod-
riguez had been employed 22 years before November 9, 1994,
when they testified at the trial (that is, employed in 1972 in-
stead of April 21, 1977, and October 4, 1976, as the company
records show), they would have been senior to Alfredo Ovalle,
the most senior person on the list of “Masterform Shop Em-
ployees as of 11/5/93” (G.C. Exh. 28 p. 9). Like the tabulation,
that pretrial list (attached to the Company’s December 9, 1993
statement of position), showed Ovalle’s hiring date to be Feb-
ruary 21, 1974. The same pretrial list showed Zapata’s hiring
date was over 3 years’ later on April 21, 1977 (the same as the
MASTERFORM TOOL CO. 1083
tabulation), and Rodriguez’ hiring date was January 3, 1978
(later than the October 4, 1976 date on the tabulation).
In addition to the above testimony by Zapata and Rodriguez,
the Company had also introduced testimony by President Pip-
pin concerning when they were hired. He claimed (Tr. 841) that
when he started with the Company in 1974, Zapata was already
employed (contrary to Zapata’s April 21, 1977 hiring date on
both the pretrial list and the tabulation prepared during the trial)
and “I believe” that Rodriguez was also. As indicated above,
Pippin did not impress me as being a candid witness. He gave
other discredited testimony, including his denial that he had
“any knowledge” of the union organizing before the November
8 layoffs.
Although not disputing any of the other information on the
tabulation (G.C. Exh. 29), the Company would not agree to the
accuracy of the starting dates (Tr. 1602):

MR. SAMSON: . . . . I will only agree with the fact
that [the exhibit] accurately reflects what is on the file
covers. As for whatever the testimony was, I would pro-
pose for my purposes that that would be more accurate. I
would agree that these are accurate representations of what
are on the file covers. [Emphasis added.]

Even though the trial did not conclude until the following
day, the Company offered no evidence that the employment
applications or other contents of the files contained any differ-
ent hiring dates than those stated on the file covers. I do not
discern any reason for not relying on the accuracy of the Com-
pany’s written records, as shown on the employee file covers,
rather than on the purported memory of witnesses who gave
other discredited testimony at the trial.
I reject these stated explanations for paying Zapata and Fe-
liciano Rodriguez wages that were triple the wages of the
broach operators with whom they worked. Their wage rates
were substantially higher than even the $13.20 rate being paid
Juan Salcedo (hired May 18, 1981), the packing and shipping
employee who was serving as the expediter of all orders (Tr.
826–827; G.C. Exhs. 28 p. 9, 29).
I find it obvious that the Company was faced with a dilemma
at the trial. It was trying to justify the payment of the high
$18.34 and $15.36 hourly wage rates to the broach machine
setup men when an $11-an-hour maintenance man could, and
did on occasion, perform the same work. Yet, it could not admit
giving the setup men supervisory authority that would justify
the high wage rates, because the Company’s main goal was to
escape responsibility for the antiunion campaign that the setup
employees conducted (as found, on the Company’s behalf).
The Company’s resolution of the dilemma was to present
evidence at the trial to support the above-rejected explanations
for paying the high wages and not to admit that Zapata and
Feliciano Rodriguez were even leadmen. Upon questioning by
a company counsel, President Pippin positively denied that they
had “any authority over any other employee,” then attempted to
limit the denial (Tr. 841):

Q. [BY MR. PANCOTTINE] Do you consider either Mr.
Zapata or Mr. Rodriguez to be supervisors or foremen?
A. No, I don’t.
Q. Why not?
A. They don’t have any authority over any other employee
out in back.
Q. What do you mean by authority?
A. They were never given any permission by myself or
Richard [Perales] to discipline or hire or fire anybody out in
back. [Emphasis added.]

Earlier Pippin omitted any mention of the setup men’s re-
sponsibility for assigning and directing broach operators when
asked what broach operators do during setups that do not re-
quire sharpening the cutters. He testified (Tr. 839):

A. Usually [the broach operators] will pull the chips on
the machine first. They can assist in the setup by helping
them change the center block on the machine, getting the
other spacers. If it is going to be a longer setup, they will
go run another machine that has already been set up. [Em-
phasis added.]

This testimony suggests that the broach operators were on
their own, performing the work without any assignment or
direction from the setup men.
Despite the instructions required for the broach operators to
learn to operate each of the different sized one- and two-
operator broach machines, Pippin claimed on direct examina-
tion (Tr. 772, 779, 834):

A. To operate a broach machine, once you learn to run
a broach machine, you can run any of the broach ma-
chines. [Emphasis added.]
. . . .
Q. So would it be a correct characterization that the
operator simply feeds the machine?
A. Yes.
. . . .
Q. Do new employees receive training on how to oper-
ate each of the individual broach machines you have?
A. No. They are shown one machine and from there
they can basically run any of them. They are almost all
identical.

Again he appeared to be less than candid. I discredit Pippin’s
claim that “once you learn to run a broach machine, you can
run any of the broach machines.”
I find that the Company paid the two setup men the high
wages—triple the wages it paid the broach operators and junior
saw operator, about triple the $5.20 wages it paid four junior
grinder operators, and substantially greater than it paid other
senior shop employees—because the setup men possessed more
authority and responsibilities than the Company would admit at
the trial.
(b) Acknowledged supervisory status
For years, Masterform had acknowledged that the position
held by these hourly setup men was supervisory.
In 1989, President Larry Pippin’s sister, Lynn Pippin, as
Masterform’s vice president, certified on a “Request for Verifi-
cation of Employment,” an official Federal Government docu-
ment (also signed by Guadalupe Zapata), that Zapata’s present
position was “Setup Man/Supervisor.” (The form had the warn-
ing about Federal statutes providing severe penalties for inten-
tional misrepresentation, etc.) Two years earlier, over Vice
President Lynn Pippin’s signature, the Company stated in a
letter “To Whom It May Concern” that Zapata’s “position with
the company is Supervisor” and that the “information is pro-
vided from our company payroll records.” (G.C. Exhs. 26B,
26C; Tr. 814.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
I discredit Lynn Pippin’s claim at the trial (Tr. 1264) that
when she stated in 1989 that Zapata’s present position was
“Setup Man/Supervisor,” she was merely trying to “make him
look as good as possible for the loan for his house.” I note that
during the same period of time when she was vice president,
she accurately verified the positions of Ginoro Carrizal as ma-
chine operator, Abdiel Gallardo as crane operator, Martin
Guerra as machine operator, Francisco Leon as machine opera-
tor, and Alfredo Ovalle as machine operator. (G.C. Exh. 34.)
As found above, Feliciano Rodriguez (in effect acknowledg-
ing his supervisory status) told Union Organizer Mussman on
November 3 that he could not “be a part” of the Union because
he was “part of management.”
(c) Authority over broach operators
The Company followed the policy of exclusively hiring—at
the $4.25 minimum wage to fill vacancies in the starting job of
broach operator—untrained Mexican immigrants who were
referred by its current shop employees, all of whom were of
Mexican origin (Tr. 52, 61, 830–831, 833, 835, 949, 1234,
1362, 1441, 1620–1621). The only bilingual employees in the
shop at the time of the layoffs were shipping employee Martin
Rivera (paid $6.82 an hour), maintenance man Florencio Carri-
zal, and crane and saw operator Abdiel Gallardo. One of them
would assist in filling out the employment application and the
immigration and other papers. (Tr. 197, 281, 348, 516, 556,
833, 844, 1261, 1562; G.C. Exh. 28 p. 9; R. Exhs. 9–12.)
President Larry Pippin and Vice President Richard Perales
were the two officials in charge of operating the plant. Perales
spoke Spanish, but Pippin did not. (Tr. 11, 44–45, 51–52, 835,
845, 868, 918, 924, 933, 973, 1017, 1031.) As discussed below,
neither of them directly supervised the broach operators and the
junior grinder and saw operators. The two Spanish-speaking
setup men, Zapata and Feliciano Rodriguez, provided the new
employees virtually their sole contact with the management.
I find that the General Counsel’s six employee witnesses (all
of whom were laid off on November 8 and all of whom, except
Cocoma, were later reinstated) gave a more accurate picture of
the operation of the shop than the two officials and the two
setup men.
Three of these witnesses were recently hired broach opera-
tors, Salvador Cocoma (hired October 11), Onecimo Castillo
(hired August 16), and Porfirio Longoria (hired June 30). One
was a saw operator, Miguel Pimentel (hired July 19). The other
two were more senior employees working as grinder operators,
Marcial Armendariz (hired May 1, 1990) and Francisco Rodri-
guez (hired April 9, 1990). (G.C. Exhs. 28 p. 9, 29.)
Although never told by the officials, all of these witnesses
considered the setup men to be their supervisors (Tr. 75–76, 78,
99, 167, 253, 272, 283, 326, 328, 371, 375, 511). Cocoma (who
was hired less than a month before his layoff and was working
in Zapata’s area) was told by other employees, including
broach operator Longoria (who referred him to the job and who
had been working there since June 30) that Zapata was his su-
pervisor (Tr. 186, 209–210). On November 3, when the union
organizers went to Savino Rodriguez’ home and Feliciano Rod-
riguez came out, grinder operator Armendariz told Union Or-
ganizer Mussman that Feliciano Rodriguez was a supervisor
(Tr. 535).
The setup men were the only ones who assigned the broach
operators to work on the one- and two-operator broach ma-
chines, directed their work, and trained them on different sized
broach machines to which the setup men assigned them.
Throughout the day the setup men inspected their work, check-
ing to see if the precision-cut blocks met the tolerance specifi-
cation. They ordered broach operators to redo unsatisfactory
work. They were contacted by the broach operators when
something was wrong with the broach machines. (Tr. 103–104,
149, 168, 205, 255, 258, 314, 322, 327, 392–393, 488–489,
517–518, 553, 805.)
Although the broach operators could not verify the close tol-
erances required for the precision-cut blocks, they were ex-
pected to be alert and to notice such problems as “a chip or
something stuck behind” the block, a “big chunk torn off a
corner” of a block, or “a nick” on the broach cutter that puts “a
big line in the block.” The operators would of course work
under the setup men’s directions when, as admitted by Presi-
dent Pippin, they assisted in making setups. (Tr. 787–788, 839,
917, 1068.) Feliciano Rodriguez acknowledged only that while
a broach operator is waiting for a setup to be finished, “If I
would need something I would ask them for a tool that I need”
(Tr. 1393).
The broach operator usually (but not always, Tr. 396) re-
ported each day to the setup man, who would assign the opera-
tor to a broach machine in his area or send him to the other
setup man to work in the other area. When an operator finished
running an order or when a new setup was required, the setup
man reassigned him to another broach machine or had him
assist in making the new setup. (Tr. 73, 168–169, 188, 208–
209, 254–255, 282, 326–327, 839.)
I note that Feliciano Rodriguez acknowledged (Tr. 1399–
1400) that each morning, he told the broach operators “which
machines to work on” in his area. Zapata, however, denied (Tr.
1457) telling employees where to work, asserting that they
knew where they worked the day before and “they go there.”
To the contrary, broach operator Cocoma credibly testified that
everyday when he arrived in the morning, he would go to Za-
pata, who would assign him a job or send him to Rodriguez to
be assigned.
The setup men “spot inspect all day long,” taking blocks to
the inspection room and using an indicator “to make sure the
tolerances are still holding.” If the tolerances were not being
held, if a broach cutter had become dull, or if a broach operator
reported a faulty cutter, the setup man would have to make a
new setup. If necessary, he had the cutters sharpened or he
replaced a faulty cutter. (Tr. 787–788, 791, 809–811, 1068,
1399–1400.)
Zapata testified (Tr. 1430) that he inspected about 30 to 50
blocks from the broach machines a day in about 2 or 3 hours
(averaging between 3 and 4 minutes for each inspection). I
discredit Pippin’s claim (Tr. 840) that Zapata spends a “good” 3
or 4 hours a day in the inspection room and Feliciano Rodri-
guez’ claim (Tr. 1358) that he spent about 5 hours a day in
there (even though he had only six broach machines in his area,
as compared to the eight in Zapata’s area).
It took the setup men a short time to give the basic instruc-
tions on how to operate each broach machine, but it took sev-
eral months under the setup men’s directions for the new, un-
trained immigrant employees to develop satisfactory work hab-
its and efficiency to achieve the desired productivity. By that
time the Company would know whether the broach operator
was a good employee. It sought “Someone who pays attention
to detail, puts the blocks in the order that they are supposed to
go in, doesn’t make double work for himself,” properly stack-
MASTERFORM TOOL CO. 1085
ing the blocks “on the skid right the first time” instead of first
spreading them out, and “doesn’t kill time.” It could also de-
termine by that time “if they seem pretty sharp to read measur-
ing instruments.” (Tr. 72–74, 237, 834, 918, 1030, 1123).
I discredit Feliciano Rodriguez’ claims (1) that broach opera-
tors can learn the broach machines in 5 minutes, (2) that in a
week they can be running it the same as an operator who has
operated a broach machine for a number of years, (3) that when
choosing between two employees to run a broach machine, it
did not matter which broach operator was available “because
they all know how to run the machines,” and (4) that the broach
operator who was closest, “I would say run that machine” (Tr.
1394–1395).
I note that at one point Rodriguez claimed that “the least
amount of time it would take” to set up a broach machine was
2-1/2 hours, but then changed his testimony and acknowledged
that he could make some setups in 20 to 30 minutes (Tr. 1391).
In addition to assigning, training, and directing the work of
broach operators, the setup men performed other duties for the
Company involving these and other employees.
When employees forgot to clock in or out, the setup men
wrote in the time and initialed the timecards, ensuring proper
payment for the work performed without the employee having
to report the error to the office. They exercised this authority
not only for the broach operators but also for grinder and saw
operators. (Tr. 82, 244–245, 330–331, 376–377, 497, 527–528,
1359, 1431–1432.)
The setup men have used their independent judgment in giv-
ing employees immediate permission to leave work early. Both
Zapata and Feliciano Rodriguez gave grinder operator Fran-
cisco Rodriguez immediate permission. As Francisco Rodri-
guez credibly testified, “They tell me that I can leave and then
they go talk to the office.” Zapata has also given saw operator
Miguel Pimentel immediate permission to leave early. Neither
Francisco Rodriguez nor Miguel Pimentel gave an emergency
as the reason for requesting the permission. Pimentel told Za-
pata merely that “I had something to do.” (Tr. 80–81, 114–115,
376, 415, 420.)
Using his independent judgment, Zapata treated grinder op-
erator/helper Armendariz differently when he would ask for
permission to leave work early. As Armendariz credibly testi-
fied, “When Perales was there, [Zapata] told me to go and ask
Perales or tell Perales that I was going to leave. Sometimes
when I don’t think he was there, then [Zapata] would tell me it
was okay to go.” I infer that the reason Zapata treated Armen-
dariz’ requests to leave work early differently from the way he
treated the requests of other employees was Armendariz’ re-
peated requests to leave early. Armendariz was requesting per-
mission to leave early for “personal reasons,” as well as
“[p]roblems with the police or when I was sick.” (Tr. 496–497,
526–527, 558.)
I discredit Zapata’s claim that he never told employees that
they could leave work early, that “I would tell them to go to the
office” and “ask themselves,” and that “If they refused then I
would go” (Tr. 1435–1436).
I find that these functions of the setup men, assigning and re-
sponsibly directing the work of the broach operators and junior
grinding and saw operators, are indicia of supervisory status.
The following responsibilities of the setup men tend to further
demonstrate that the setup men provided the employees virtu-
ally their sole contact with the management.
The setup men relayed—both to the broach operators and to
the grinder and saw operators—the Company’s requests that
employees work 2 hours’ extra overtime on weekdays or 5
hours of overtime on Saturdays (Tr. 82–83, 259, 287–288, 328–
330, 352, 354, 374–375, 396, 399, 493–494). They gave em-
ployees their paychecks (Tr. 83). They checked in the office to
get errors corrected on employee paychecks (Tr. 83–84, 120–
121). They handled employee vacation requests (Tr. 81, 115–
116, 149–150).
(d) Authority over grinder and saw operators
President Pippin admitted that when Perales receives a tele-
phone order, writes down the order and gives the customer
prices and delivery dates, takes a purchase order number, has
the order logged onto the computer, checks the printout, and
takes it to Juan Salcedo (the packing and shipping employee
who served as an expediter), then (Tr. 826–827):

A. It is Juan Salcedo’s job to fill the orders and get
them shipped out the door. Juan will tell the crane man
what size to load onto the saw. He will tell the saw guy
how many he needs of a certain size. He will tell the setup
man what size he needs broached, what size has to go onto
the grinder. He basically follows the order all the way
through to try to get it shipped out the door. [Emphasis
added.]

Thus, Pippin was admitting that the setup man was con-
cerned not only with production on the broach machines, but
also with production on the grinding machines.
The credible evidence reveals that the setup men had respon-
sibilities involving not only grinder production, but also the
junior grinder and saw operators. Three General Counsel wit-
nesses (two employed in 1990 and one in 1993) credibly testi-
fied that the setup men continued to exercise authority over
them after their transfer from the broach machines to the grind-
ing machines and saws.
Grinder operator Francisco Rodriguez (hired in 1990) credi-
bly testified that his uncle, Feliciano Rodriguez, spent about 30
minutes on the first day teaching him how to operate a broach
machine and about 15 to 30 minutes on other broach machines.
Then for 1 year, “more or less,” Feliciano Rodriguez showed
him “how to do the work,” gave him daily instructions, told
him “what to do,” and brought “the material that I needed to
use.” Toward the end of 1992, Feliciano Rodriguez “told me to
go help the man that was working” on the grinding machine.
After about 3 months, “The [grinder operator] that worked
there left and Feliciano told me to run the machine.” (Tr. 72–
75, 103–104.) This testimony demonstrates that Rodriguez was
exercising independent judgment in transferring the employee.
The Company did not present evidence that either Pippin or
Perales instructed Rodriguez to make these transfers.
When asked who his supervisor was in October (before the
layoffs when he was working on the grinder in the old area of
the shop near the eight broach machines), Francisco Rodriguez
expressed his opinion (Tr. 75–76), naming Zapata. Later when
asked who supervises him when he works on Saturdays, he
answered (Tr. 78) both Zapata and Feliciano Rodriguez. Hav-
ing been employed since 1990 and evidently having had more
contacts with the officials in those 3 years, he considered Presi-
dent Pippin and Vice President Perales, as well as Zapata and
Feliciano Rodriguez, to be his supervisors (Tr. 144).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
Grinder operator Marcial Armendariz (hired in 1990) ex-
pressed a similar opinion, that both Zapata and Feliciano Rod-
riguez were supervisors. He testified that he worked more than
a year on the broach machines under Rodriguez’ supervision
and continued under Rodriguez’ supervision when Rodriguez
“told me to come over and work with them on the grinders”
(near the six broach machines in the new area where Rodriguez
worked). Armendariz worked on the Blanchard grinder there
until May, when he was injured. (Tr. 490–491, 511, 522.) This
testimony further demonstrates that Rodriguez was exercising
independent judgment in transferring the employee. I discredit
Pippin’s claim (Tr. 835, 918–919) that only he and Perales
make the decision “to move an employee off the broach ma-
chine to give them an attempt to learn another machine.”
Upon Armendariz’ return to work on light duty (with the ap-
proval of Marla Pippin, in the absence of Pippin and Perales),
Feliciano Rodriguez sent him to Zapata, who assigned him to
work in Zapata’s area on a small broach machine until he was
able to return to the grinding machines. Armendariz then
worked on the Mattison grinder in Rodriguez’ area as Savino
Rodriguez’ helper. (Tr. 491–493, 519–520, 523–524, 556–557,
563–564.)
On cross-examination, Armendariz credibly testified (Tr.
520–521) that when he worked on the Mattison grinder, Fe-
liciano Rodriguez “would bring the material” to the grinder on
a lift truck. Upon being asked about his testimony “that at that
time Mr. Rodriguez was your supervisor,” he answered yes and
credibly testified (Tr. 521):

Q. Did anyone tell you that he was your supervisor?
A. No, I don’t know if he is my supervisor, but he is
the one that brings the material and he is the one that gives
the orders and tells us what to do.

As indicated above, Armendariz is the employee who told the
Union on November 3 at Savino Rodriguez’ home that Fe-
liciano Rodriguez was a supervisor.
Saw operator Miguel Pimentel (who was hired July 19) testi-
fied that Feliciano Rodriguez was his supervisor on the broach
machines for 1 or 2 months and that Zapata became his super-
visor when he was transferred to the saws in Zapata’s area.
Regarding the circumstances of his transfer so soon after he
was hired, he credibly testified that it was his idea when saw
operator Fernando Ornelas left (the first week in October) to
return to Mexico. He asked Zapata, “If I could work on those
machines” and Zapata immediately answered, without checking
with anyone (Tr. 372, 395, 415–416), “Yes, it is okay, you can
work on them” (showing Zapata’s exercise of independent
judgment in transferring the employee). Zapata told him a day
later that he could stay there, it was okay. He did not know if
Zapata had already checked with the office. His wages re-
mained $4.95 an hour. (Tr. 370–373, 394–395, 415–416; G.C.
Exhs. 28 p. 9, 29; R. Exh. 79.) I discredit Zapata’s denial that
he ever moved an employee from the broach machines to any
other machines in the shop (Tr. 1435).
Saw operator Alfredo Ovalle taught Miguel Pimentel how to
operate the saws, but Pimentel testified that Zapata was still his
supervisor (Tr. 371, 394).
This testimony, that Zapata and Feliciano Rodriguez trans-
ferred employees and continued to exercise authority over them
after they became a grinder or saw operator, further indicate the
setup men’s supervisory status.
(e) No direct supervision by officials
The General Counsel’s employee witnesses credibly testified
that neither President Pippin nor Vice President Perales directly
supervised the broach operators and the junior grinder and saw
operators. They saw little of Perales in the shop and less of
Pippin. Zapata and Feliciano Rodriguez provided the new em-
ployees virtually their sole contact with the management.
Broach operator Onecimo Castillo (hired August 16) saw
Perales “very seldom in the factory,” only when Perales would
come out with papers and give the orders to shipping clerk Juan
Salcedo or to Feliciano Rodriguez or Zapata. He saw “Very
little” of Pippin, who “would just walk through” the shop. Cas-
tillo could not see the entire shop from where he was working.
(Tr. 258, 286–287, 306.)
Broach operator Salvador Cocoma (hired October 11) would
see Perales once a day, spending about 12 or 15 minutes walk-
ing around the production area. He also could not see the entire
shop. (Tr. 171, 210.)
From where he worked, broach operator Porfirio Longoria
(hired June 30) would see Perales walking through the produc-
tion area about 3 or 4 times a day, spending about 10 or 15
minutes each time (Tr. 330). He also saw Perales at the Mazak
machine (Tr. 353).
Saw operator Miguel Pimentel (hired July 19) saw Perales
“walking around” the production area once or twice a day, each
time spending 10 or 15 minutes (Tr. 375–376). He testified (Tr.
398) that he sometimes saw Perales working on the Mazak
machine and added: “If the machine would break down, he
would try to fix it.”
The more senior grinder operators credibly confirmed this
testimony. Marcial Armendariz (hired in May 1990) testified
that Perales would come out and walk around with paper work
2 or 3 times a day (if at all) and would remain sometimes 10 or
15 minutes or go back in. He would talk only to those he
handed the paper work and never told Armendariz what work
to do. (Tr. 294–296, 511–512.)
Francisco Rodriguez (hired in April 1990) saw Perales 3 or 4
times a day, for 5 or 10 minutes at a time, “just walk[ing]
through looking at the workers.” He credibly testified that dur-
ing his 3-1/2 years of employment there, he never saw Perales
“talk to employees when he walked through the production
area.” (Tr. 79–80.)
In sharp contrast to this credited testimony, the Company
contends in its brief (at 48) that President Pippin and Vice
President Perales “are in the shop on a continuous basis
throughout the day [emphasis added].”
I find that this contention is based on fabricated testimony.
Pippin claimed (Tr. 845) that he was “always” in the shop 3
hours a day or longer and “all day long if necessary.” Perales
first claimed (Tr. 51) that he was in the shop 4 or 5 hours a day.
I note that when Perales made this claim, while testifying as the
first witness, he evidently anticipated contrary testimony be-
cause he added (Tr. 52): “Sometimes they don’t even see me
and that is just because I am in and out so often I guess.” Later
in the trial, after much contrary testimony was introduced, Per-
ales changed his testimony and claimed as a defense witness
(Tr. 965) that he was in the shop 3 or 4 hours a day.
In an effort to explain how he would spend 3 or more hours a
day in the shop, Pippin testified (Tr. 760, 919) as follows—not
contending that he was directly supervising the work of the
Spanish-speaking employees:

MASTERFORM TOOL CO. 1087
Q. What type of duties do you have in the shop as
president, if any?
A. Oversee production, make sure people are wearing
their safety glasses. Just generally walk through and make
sure things are going smoothly, follow up orders.
. . . .
A. I still performed maintenance on the machines. I go
out there and just walk through and see if orders are going
out the door. [Emphasis added.]
Q. Anything else?
A. If there was a problem I would go out there, bad
parts or I could be out there for any numerous reasons.

I do not doubt, as Pippin testified (Tr. 845), that (on occa-
sion) he could spend “all day long if necessary” in the shop
when there was a machine breakdown or trouble getting out an
order, but I discredit as another fabrication his claim that he
always spent 3 hours or more in the shop.
Perales testified (Tr. 50) that he was at his desk taking orders
about 4 or 5 hours a day.
He also spent considerable time in the office dealing with the
steel mills and aluminum extruders, which have long lead time
for deliveries, endeavoring to link up large purchases and an-
ticipated orders to avoid paying the higher prices for steel and
aluminum bars in smaller quantities at service centers (Tr. 962–
964).
Regarding his work in the shop, Perales detailed his handling
of orders and his work with the Mazak machine and testified
(Tr. 965) that if a customer needs to know right away about an
order, he would take his portable telephone into the shop and
check with Salcedo or Feliciano Rodriguez to see where the
order was. (This testimony illustrates the important production
role filled by Rodriguez, a setup man who made a daily report
of broach production and assisted in the grinder production,
(Tr. 521, 787).) Perales then testified (Tr. 965–966):

Q. And are there any other things that you would do
out in the shop, other than what you just described with re-
spect to orders?
A. I try to do everything out in the shop from just say-
ing hi to some employees to making sure things are going
right in the shop.
. . . .
Q. What type of supervisory issues?
A. From safety glasses, safety shoes, fighting. You
know, people not getting along with each other.

Perales’ only reference to direct supervision of the work of
shop employees was when he was asked if he had “any occa-
sion to interact with any broach operators.” He claimed (Tr.
965), without giving any examples or details, that “[i]f I didn’t
like what they were doing or how they were doing it, I would
tell them I would like to see them do it this way. Just noncha-
lant as paying my respect to some of the older employees, say
hi to them.”
If in fact Perales had ever given such a directive to a broach
operator, instead of going through the setup man who assigned
the operator and directed his work, the employee witnesses had
never witnessed it. I discredit, as fabrications, his claim that he
did so and his claim that he spent 4 or 5 hours, or 3 or 4 hours,
in the shop daily.
I therefore reject the Company’s contention that Pippin and
Perales were in the shop on a continuous basis throughout the
day.
(f) Shop supervisors
The Spanish-speaking setup men, Guadalupe Zapata and Fe-
liciano Rodriguez, were the sole management representatives in
the shop, training, assigning, and directing the work of the un-
trained Mexican-immigrant employees whom the Company
exclusively hired in the starting job of broach operator. Both
the broach operators and the junior grinding and saw operators
(who also were Spanish-speaking employees of Mexican ori-
gin) looked to the setup men as their supervisors.
President Pippin (who did not speak Spanish) and Vice
President Perales (who was fluent in Spanish) spent little time
in the shop and did not directly supervise the work of the
broach operators or the junior grinder and saw operators.
As found, Zapata’s and Rodriguez’ $18.34 and $15.36 wage
rates were triple the $4.81 average wage rate of the broach
operators working with them on the first shift, triple the $4.95
rate of the junior saw operator, and about triple the $5.20 rate
of the four junior grinder operators. Their wage rates were the
highest hourly wages in the shop, including the $11.27 average
wage rate of the four most senior shop employees and the
$13.20 rate paid the packing and shipping employee who
served as the expediter of all orders. The maintenance em-
ployee who did setups on occasion was paid $11.80 an hour.
Zapata and Rodriguez were responsible for the production on
the 14 broach machines. They alone selected the nine broach
operators to work on the various broach machines to get out the
production, assigning an employee already trained to work on
the particular sized machine or selecting and assigning an un-
trained operator and showing him how to do the work. When an
operator finished running an order or when a new setup was
required, the setup man reassigned him to another broach ma-
chine or had him assist in making the new setup. They ordered
broach operators to redo unsatisfactory work. They were con-
tacted by the operators if something was wrong with the broach
machines.
The company officials delegated to Zapata and Rodriguez
the duty of responsibly directing the daily work of the broach
operators. The two setup men, in their separate areas, inspected
the work of these untrained immigrants throughout the day and
gave them the necessary directions for developing satisfactory
work habits and efficiency to achieve the desired productivity.
Then, when a vacancy occurred on a grinding machine or the
saws, after the broach operator became a good employee and
appeared to be “pretty sharp to read measuring instruments,”
the setup man would permit him to transfer.
In addition, Zapata and Rodriguez continued to exercise their
authority over employees after transferring them to work on the
grinding machines or saws.
Zapata and Rodriguez demonstrated the exercise of their in-
dependent judgment in further responsibly directing the broach
operators as well as the junior grinder and saw operators by
giving the employees permission to leave work early and by
writing in the time and initialing the timecards for employees
who forgot to clock in or out. They also performed other duties,
consistent with their role as supervisors in the shop. They
checked in the office to get errors corrected on employee pay-
checks, handled employee vacation requests, relayed company
requests that employees work extra overtime and on Saturdays,
and handed out the paychecks.
After weighing all the evidence, I find that the hourly setup
men Guadalupe Zapata and Feliciano Rodriguez were in fact,
and were regarded by the employees as, shop supervisors. I find
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
that they used independent judgment in exercising their author-
ity, in the interest of management, in assigning, transferring,
and responsibly directing broach operators and in responsibly
directing junior grinder and saw operators.
I therefore find that Guadalupe Zapata and Feliciano Rodri-
guez were supervisors within the meaning of Section 2(11) of
the Act.
Accordingly I find that they—as well as salaried employees
Thaddeus Beres and Barney Grogan—were not included, leav-
ing 33 production and maintenance employees in the bargain-
ing unit.
As indicated, I further find that the Company is responsible
for the unlawful conduct of Zapata and Rodriguez in carrying
out the Company’s antiunion campaign during the week before
the layoffs, threatening employees with layoff or termination
and relaying President Larry Pippin’s threat to close or move
the plant if the employees supported the Union.
E. Required Remedy
1. Contentions and controlling standards
The General Counsel contends in its brief (at 1, 44, 47) that
the November 8 layoff of the seven members of the employee
organizing committee, fulfilling its layoff threat for engaging in
the union activity, decimated the support of the Union, “stop-
ping the union organizing in its tracks” because of employee
fear of the same fate. This “undermined the Union’s majority
position and rendering it impossible for employees to exercise
their free choice in an election, thus requiring appropriate relief
including a Gissel bargaining order.”
The Company contends (Br. at 121) that even if the allega-
tions of unfair labor practices were true, “the facts of this case
do not warrant the imposition of a remedial bargaining order.”
It particularly asserts (Br. at 122, 125) that “if the November 8
layoff is deemed violative of the Act there are mitigating cir-
cumstances that alleviate the impact of the violation. Foremost
in this analysis is the fact that all of the employees who were
laid off with the exception of Salvador Cocoma returned to
work. . . . The Board’s traditional remedies will more than ade-
quately serve to protect the employees’ rights and ensure a fair
and free election.”
It is well established that a Board secret-ballot election is the
preferred remedy.
In deciding whether a bargaining order is required over this
preferred remedy, the Supreme Court has established the stan-
dards. For a second category case such as this, in which a
showing has been made “that at one point the union had a ma-
jority,” the Court ruled in NLRB v. Gissel Packing Co., 395
U.S. 575, 614–615 (1969), that

of course, effectuating ascertainable employee free choice be-
comes as important a goal as deterring employee misbehavior.
In fashioning a remedy in the exercise of its discretion, then,
the Board can properly take into consideration the extensive-
ness of an employer’s unfair practices in terms of their past ef-
fect on election conditions and the likelihood of their recur-
rence in the future. If the Board finds that the possibility of
erasing the effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional remedies, though
present, is slight and that employee sentiment once expressed
through cards would, on balance, be better protected by a bar-
gaining order, then such an order should issue. [Emphasis
added.]

As held by the Seventh Circuit Court of Appeals in Mont-
gomery Ward & Co. v. NLRB, 904 F.2d 1156, 1159 (1990),
recently cited in America’s Best Quality Coating Co. v. NLRB,
44 F.3d 516, 521–522 (7th Cir. 1995):

While the Board’s power in fashioning remedies is a broad
discretionary one, we have held that bargaining orders, due to
their “drastic consequence of forcing union representation on
employees and forcing the employer to bargain, are not the
favored remedy.” [Justak Bros. v. NLRB, 664 F.2d 1074,
1081 (7th Cir. 1981).] Thus, “[t]o grant a bargaining order in
any instance other than in the last resort (when other tradi-
tional remedies are available) constitutes an abuse of the
Board’s discretion.” Impact Industries, Inc. v. NLRB, 847
F.2d 379, 383 (7th Cir. 1988). Accordingly, we have required
the Board to “give specific reasons that justify its use of the
bargaining order remedy.” Id.; Peerless of America, Inc. v.
NLRB, 484 F.2d 1108, 1118 (7th Cir. 1973). In the absence of
an “express articulated consideration of the propriety of a bar-
gaining order this court will presume that an election is the
preferred means for determining representative status.” NLRB
v. Berger Transfer & Storage Co., 678 F.2d 679, 694 (7th Cir.
1982). Most importantly for our purposes, we held in Peerless
of America, [484 F.2d 1108, 1118 (7th Cir. 1973) (emphasis
added)] that the Board must make:

“[s]pecific findings” as to the immediate and resid-
ual impact of unfair labor practices on the election
process . . . and a detailed analysis assessing the
possibility of holding a fair election in terms of any
continuing effect of misconduct . . . and the poten-
tial effect of ordinary remedies.

Specific findings and an analysis follow.
2. Specific findings and analysis
Immediate Impact on Election Process. Between October 15
and 29, before the Company became aware of the union orga-
nizing, a majority of 18 of the 33 bargaining unit employees
signed valid union authorization cards. Those were the last
cards signed. At the beginning of the next week of November 1,
after being alerted to the organizing effort on Saturday, October
30, the Company engaged in an unlawful antiunion campaign
through its two shop supervisors (setup men Guadalupe Zapata
and Feliciano Rodriguez).
Both shop supervisors coercively interrogated individual
employees about the union activity and employee support of the
Union. They threatened the employees with layoff or termina-
tion and relayed President Pippin’s threat to close or move the
plant if the employees supported the Union.
On Wednesday, November 3, Shop Supervisor Rodriguez di-
rectly informed Union Organizers Mussman and Segura and
four members of the employee organizing committee that in a
meeting earlier that week in the office, President Pippin had
said that if the employees joined the Union, he would close or
move the plant. Rodriguez added that Pippin was very rich, that
the Company was just like a toy, and that he could easily move
the plant. Rodriguez also said he knew there were back orders
and that Vice President Perales had mentioned them to Pippin,
but Pippin said he did not care.
The effects of the threats to lay off or terminate employees
and to close or move the plant were immediate. Fearing that the
threats would decimate the employee support, the two union
organizers and all seven members of the employee organizing
MASTERFORM TOOL CO. 1089
committee decided to meet outside the plant on the lunch break
on Thursday, November 4, “to bring together as many employ-
ees as possible to then go into the office to speak with man-
agement about recognizing the Union.” Evidently because of
the shop supervisors’ threats, none of the 11 other union sup-
porters in the plant joined the organizers, who then decided
against orally requesting recognition of the Union. The Union
had already filed a petition for an election the day before and
had sent the Company a postalgram, complaining about the
threatening of union supporters.
On Tuesday, November 2 (soon after the Company’s anti-
union campaign began), the Company decided to start selecting
employees for layoff. On Thursday, November 4 (when the
lunchtime meeting outside the plant placed the Company on
notice that the seven employees were leading the organizing
drive), the Company decided to eliminate the second shift, reas-
sign the six second-shift employees to the first shift, and lay off
all seven union organizers from the first shift.
The Company laid off these seven members of the employee
organizing committed on Monday, November 8, supposedly for
“lack of work,” telling them they would be recalled as soon as
possible.
It was obvious to the remaining employees that there was no
shortage of work and that the layoffs were a fulfillment of the
layoff threats. The next day, November 9, the first-shift work-
ing hours were increased from 9-1/2 to 10-1/2 hours a day. On
November 15, because of a shortage of grinder production (de-
spite the lengthened workday), the Company recalled one of the
three laid-off grinder operators. During the next 5 weeks (ex-
cluding Thanksgiving week), the Company increased the over-
time to a record high, 14.7 hours a week, and assigned a high
percentage of the employees to work from 16 to 17-1/2 hours of
overtime.
The threats and the layoff of all seven members of the em-
ployee organizing committee destroyed the union majority and
stopped the organizing. The unfair labor practice charge
blocked the holding of an election, which the Union obviously
could no longer win.
Residual Impact on Election Process. On November 30,
while the Company was having the employees work an un-
precedented amount of overtime instead of recalling the re-
maining six laid-off employees, the Company demonstrated to
the employees its continuing concern about their supporting the
Union. It posted a notice, in English and Spanish, notifying the
employees of the November 3 filing of the election petition and
stating, in part (R. Exh. 78):

You do have the right to revoke your authorization
card and can do so by sending a letter to the union telling
it that you do not want to have the union represent you,
and that you withdraw any authorization you may have
signed. Such a letter along with a pre-addressed envelope
can be found below this notice. . . .
. . . if you have changed your mind and no longer want the un-
ion to represent you, you have every right to withdraw your
card right now.

After letters were signed and dated (Tr. 698–699, 1592–1595;
R. Exhs. 76, 77), an employee took them to the post office on
company time and mailed them (Tr. 501–511).
I find that in the context of the record amount of overtime
the Company was assigning while keeping the employee organ-
izers off the payroll, the Company was acting to further impress
on the employees its punishment of the union supporters, while
paying the remaining employees the overtime rate for extra
work.
The Company further impressed on the employees this dis-
criminatory motivation by continuing to assign the record
amount of overtime for the next 3 weeks, before the Christmas
season, without recalling any other laid-off employee. After the
Christmas season, the Company demonstrated that it was post-
poning the promised recall of the remaining six employees as
long as possible. It recalled only one of them on January 10,
1994, when most of the employees were working 17-1/2 hours
of overtime that week. It recalled only one other employee
during the week ending January 23. That week it assigned most
of the employees 17 or more overtime hours. It recalled no one
the following week ending January 31, even though it was as-
signing most of the employees 17 to 19-1/2 hours of overtime.
The Company waited until February 1, 1994, to decide to re-
instate the second shift and recall the remaining four employ-
ees.
By this conduct, the Company was impressing on the em-
ployees what could happen to them individually if they sup-
ported another union organizing campaign. Moreover, the em-
ployees were faced as a group with President Pippin’s threat
before the layoffs to close or move the plant. If this threat were
carried out, as the layoff threat had been, the employees would
be placing their jobs in jeopardy by voting for union representa-
tion.
A large majority of the employees remained on the payroll at
the time of the trial (Tr. 1232–1234; G.C. Exh. 29), and com-
pany officials and shop supervisors who were involved in
committing the unfair labor practices remained the same.
Undoubtedly the discriminatory layoff of the seven employ-
ees leading the organizing drive, the delay in recalling most of
them, and the threat to close or move the plant would have a
long-lasting residual impact on the exercise of the employees’
right to a fair election.
Potential Effect of Traditional Remedies. The Company con-
tends in its brief (at 122–123) that a make-whole and cease-
and-desist remedy would demonstrate to all employees that the
“alleged discriminatees” were fully compensated for their time
off and that the Company could not do this again. Therefore,
these “traditional remedies will adequately assure that an
NLRB election can be conducted in a fair and impartial man-
ner.” I do not agree.
The Company not only threatened to, and did, lay off union
supporters during record sales for that time of the year, but it
made it clear that if the employees voted for the Union, they
would be jeopardizing their jobs. Employees were told that
President Pippin was very rich, that the Company was “just like
a toy” to him, that he did not care about the back orders, and
that he would close or move the plant if the employees joined
the Union. This conveyed to the employees the Company’s
unmistakable determination to flout the employees’ Section 7
rights and to remain nonunion at all costs.
The Company gave no indication at the trial that it would re-
spect the employees’ Section 7 rights. It instead, as found, pre-
sented much fabricated testimony to disclaim responsibility for
the unlawful threats, to deny any knowledge of the union orga-
nizing campaign at the time of the layoffs, and to prove the
false lack-of-work defense. I find that a bargaining order is
required to give the employees any real protection of their
rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
3. Concluding findings
After balancing all the competing considerations (including
the preference for relying on the results of the Board’s own
elections rather than on cards), I find that the possibility of
erasing the residual impact of the Company’s unfair labor prac-
tices on the election process and ensuring a fair election by the
use of traditional remedies is slight. I therefore find that the
employee sentiment expressed through the authorization cards
would, on balance, be better protected by a bargaining order.
Accordingly I find that the Company is required to bargain
with the Union as the designated bargaining representative of
its employees in the unit found appropriate, effective October
29, 1993, when the Union obtained valid authorization cards
from a majority of the unit employees.
CONCLUSIONS OF LAW
1. By discriminatorily laying off Marcial Armendariz,
Manuel Castillo, Salvador Cocoma, Porfirio Longoria, Miguel
Pimentel, Francisco Rodriguez, and Juan Santillan on Novem-
ber 8, 1993, for supporting the Union, the Company has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of
the Act.
2. By coercively interrogating employees about union activ-
ity and employee support of the Union, the Company violated
Section 8(a)(1).
3. By threatening to layoff or terminate employees and to
close or move the plant if the employees support the Union, the
Company violated Section 8(a)(1).
4. Because the possibility of erasing the residual impact of
the Company’s unfair labor practices on the election process
and ensuring a fair election by the use of traditional remedies is
slight, the Company is required to bargain with the Union as
the designated bargaining representative of its employees in the
unit found appropriate, effective October 29, 1993, when the
Union obtained valid authorization cards from a majority of the
unit employees.
5. Tool sharpener Thaddeus Beres and over-the-road truck-
driver Barney Grogan did not share a community of interest
with the production and maintenance employees and were not
in the bargaining unit.
6. Setup men Guadalupe Zapata and Feliciano Rodriguez
were supervisors within the meaning of Section 2(11) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily laid off seven em-
ployees, it must offer reinstatement to the one who has not been
offered reinstatement and make all seven of them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of layoff to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). It must also bargain with the Union to remedy.
[Recommended Order omitted from publication.]