Norris Industries

National Labor Relations Board - Board Decisions

Nov 4, 1974

214 N.L.R.B. 629 (N.L.R.B. 1974)

PLASTICS PLANT, PLUMBING FIXTURES DIV. 629
Plastics Plant , Plumbing Fixtures Division , Norris In-
dustries and Orange County District Council of
Carpenters , AFL-CIO and United Furniture Work-
ers of America , Local 1010 , AFL-CIO, Party to the
Contract
Plastics Plant , Plumbing Fixtures Division , Norris In-
dustries and Orange County District Council of
Carpenters , AFL-CIO. Cases 21-CA-12144, 21-
CA-12144-2, and 21-CA-12238
November 4, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 28, 1974, Administrative Law Judge E.
Don Wilson issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed
cross-exceptions, a brief in support thereof, and an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended Or-
der, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent, Plastics
Plant, Plumbing Fixtures Division, Norris Industries,
LaHabra, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified.
1. Insert the following as new paragraph 1(e) and
reletter the subsequent paragraph accordingly:
"(e) Requiring its employees to sign cards author-
izing Respondent to deduct dues from their wages on
behalf of the Furniture Workers."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
' In the fourth and fifth paragraphs of sec. III, C, the Administrative Law
Judge refers to the Carpenters instead of the Furniture Workers. In the third
paragraphs of sec. V and the Conclusions of Law, he also refers to May 10,
1973, instead of September 10, 1973. Finally, he fails to include in the Order
and the notice a paragraph prohibiting Respondent from requiring its em-
ployees to sign cards authorizing it to deduct dues from their wages for the
United Furniture Workers of America, Local 1010, AFL-CIO. We hereby
correct these inadvertent errors.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist United Furniture Workers
of America, Local 1010 , AFL-CIO, herein Fur-
niture Workers, by entering into or maintaining,
or enforcing , or giving effect to a collective-bar-
gaining agreement with the Furniture Workers
at a time when the Furniture Workers does not
represent a majority of our employees particu-
larly because we are not engaged in our normal
level of production or we do not have a repre-
sentative number of employees in substantially
all our classifications.
WE WILL NOT interfere with, restrain , or coerce
our employees in any other manner in the exer-
cise of their rights to self-organization , to form,
join , or assist labor organizations, to bargain
collectively through representatives of their own
free choice , and to engage in other concerted
activities for the purposes of collective bargain-
ing and other mutual aid or protection or to re-
frain from any and all such activities , except to
the extent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment as au-
thorized in Section 8(a)(3) of the Act.
WE WILL NOT recognize or contract with the
Furniture Workers unless and until it is certified
by the Board as the representative of the majori-
ty of our employees in an appropriate unit.
WE WILL NOT give effect to or perform or
maintain or give force to our September 10,
1973, contract with the Furniture Workers or
any modifications or renewal thereof or any su-
perseding agreement, except that any benefits
now enjoyed by our employees will not be di-
minished by such action on our part.
WE WILL NOT require any employee to sign a
card authorizing us to deduct dues from wages
for the Furniture Workers.
WE WILL NOT require any employee to read a
contract between us and a union, "as a condi-
tion of employment."
WE WILL reimburse all our present and former
214 NLRB No. 112
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees for any initiation fees, dues, assess-
ments, and other moneys our employees may
have paid to the Furniture Workers as an illegal
condition of employment since September 10,
1973, together with interest at 6 percent, if any
such moneys have been paid. Employees who
were members of the Furniture Workers when
employed are not herein included.
II. THE LABOR ORGANIZATIONS
Orange County District Council of Carpenters, AFL-
CIO, and United Furniture Workers of America, Local
1010, AFL-CIO, at all material times, have been labor or-
ganizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
PLASTICS PLANT, PLUMBING
FIXTURES DIVISION, NORRIS
INDUSTRIES
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Pursuant to
due notice, a hearing in these consolidated cases was held
before me on May 7 and 8, 1974, at Santa Ana, California.
An Order Consolidating Cases, Consolidated Complaint
and Notice of Hearing was issued by the General Counsel
of the National Labor Relations Board, herein the Board,
on March 20, 1974, upon charges filed by Orange County
District Council of Carpenters, AFL-CIO, herein Carpen-
ters, on September 20, 1973, in Case 21-CA-12144 and
amended March 14, 1974, and upon a charge in Case 21-
CA-12144 2 filed on October 3, 1973, and amended
March 14, 1974, and upon a charge in Case 21-CA-12238
filed November 12, 1973. Copies of such charges and
amendments were served on United Furniture Workers of
America, Local 1010, AFL-CIO, herein Furniture Work-
ers, as a party to the contract, in due course.' The consoli-
dated complaint alleges that Plastics Plant, Plumbing Fix-
tures Division, Norris Industries, herein Respondent, vio-
lated Section 8(a)(1), (2), and (3) of the National Labor
Relations Act, herein the Act, by various acts and conduct.
Each of the parties appeared through counsel in this pro-
ceeding and fully participated therein . Briefs received from
the participating parties about June 10, 1974, have been
considered.
Upon the entire record, and my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
At all times material, Respondent has been a corpora-
tion engaged in the manufacture, sale, and distribution of
various marble and fiberglass plumbing fixtures at its
plant, located at La Habra, California. In the course and
conduct of its business, it annually purchases and receives
goods and material valued in excess of $50,000 directly
from suppliers located outside California. At all material
times, it has been an employer engaged in commerce and
in a business affecting commerce within the meaning of the
Act.
A. The Issues
As framed by the pleadings, the issues include whether
Respondent on September 7, 1973,2 when it first recog-
nized the Furniture Workers and, when it entered into a
contract with the Furniture Workers on September 10, had
in its employ a representative complement of employees in
its many job classifications and whether it was at such
times producing at an even "substantially" normal level.
Coincidental to this issue is whether a "real question con-
cerning representation" existed, as early as September 7.
The contract which Respondent and the Furniture Work-
ers entered into on September 10 contained a union securi-
ty clause. A legal issue to be determined is whether on
September 7 and September 10 Respondent unlawfully as-
sisted Furniture Workers in violation of Section 8(a)(1),
(2), and (3) of the Act. There will also be considered issues
as to whether Respondent unlawfully attempted to induce
employees to sign authorization cards for or dues checkoff
authorization cards for the Furniture Workers. A distinct
issue is whether Respondent violated Section 8(a)(3) and
(1) of the Act by failing and refusing to employ Tony Rey-
noso because he failed to sign a union dues checkoff au-
thorization card for the Furniture Workers.
B. The Facts With Respect to Unlawful Assistance to the
Furniture Workers
General Counsel not only alleges in his complaint that
Respondent violated Section 8(a)(1), (2), and (3) of the Act
by recognizing the Furniture Workers and contracting with
it at a time when Respondent did not have a representative
complement of employees and was not engaged in reason-
ably to be expected normal production , but also that it so
violated the Act by recognizing the Furniture Workers
when the Carpenters were also claiming to be the bargain-
ing representative of Respondent 's employees . This latter
alleged violation , contends General Counsel , would be a
violation of the principle enunciated by the Board in Mid-
west Piping & Supply Co., 63 NLRB 1060. I shall find no
violation of the law in light of the so-called Midwest Piping
Supply doctrine because I shall find that , as of September 7
and September 10, Respondent was not employing a repre-
sentative number of employees and had not reached a rea-
sonably to be anticipated level of production of operations.
If my latter conclusion , as was contended for by the Gen-
eral Counsel, is correct , then as of those dates, it would
have been unlawful for Respondent to recognize and con-
Furniture Workers was permuted to intervene in this case 2 Hereinafter, unless otherwise indicated, all dates refer to 1973
PLASTICS PLANT, PLUMBING FIXTURES DIV
tract with either the Furniture Workers or the Carpenters.
Thus, I find it unnecessary to decide whether the Carpen-
ters made either a substantial claim to representation or a
bare or naked claim. General Counsel does not claim that
Respondent is a successor corporation.
As of the time of the hearing, Respondent manufactured
fiberglass tub and shower stalls and also synthetic marble
flatstock and "intralavs" ( sinks). It also operated, in con-
nection with such production, warehouse facilities and it
had in its employ maintenance workers required to main-
tain equipment and machinery. Its plant was purchased
from Selectile, a division of K-Tile Company, which had
operated the marble and fiberglass department and ware-
house facilities , at the same location as Respondent's plant.
Selectile sold the fiberglass and snythetic marble depart-
ment to Respondent about August 1 and Selectile, there-
upon, ceased manufacturing at the facility in question and
laid off all its employees with the exception of about 10
who were needed by Respondent to get the plant ready for
Respondent when it began operations.
Four different unions, among whom were the Carpen-
ters, represented a variety of employees at Selectile when it
operated the plant here in question. Selectile engaged in
other operations in addition to those described above when
it operated the plant. The Carpenters represented the em-
ployees in the fiberglass tub and shower stall department.'
Prior to Selectile 's sale of some of its operations at the
plant here in question to Respondent, it employed about 60
employees in the synthetic marble department and about
33 employees in its fiberglass tub and shower stall depart-
ment ; it had about 7 maintenance employees and about 4
warehouse employees. It produced about 2,000 square feet
of material each day in the flatstock division of its synthet-
ic marble department and about 100 units per day in the
intralav division of the synthetic marble department and it
produced about 85 units each day in the fiberglass tub and
shower stall department. In the sale, Selectile sold to Re-
spondent all the means necessary for such production.
Respondent began production at this plant on Septem-
ber 4, 3 days before it recognized the Furniture Workers as
a bargaining representative of all its employees. On Sep-
tember 7, Respondent had in its employment but 21 work-
ers. It performed operations only in the flatstock division
of the synthetic marble department and, as of September 7,
it was not even operating its fiberglass tub and shower stall
department. At that time and for some time thereafter, it
was training employees and for at least several months,
there was a rather considerable turnover in employment. I
find it would be unreasonable to find that Respondent,
when it began to operate the departments it purchased
from Selectile, did not hope and intend to operate the syn-
thetic marble department and the fiberglass tub and show-
er stall department much like Selectile had done. Had Re-
spondent even contemplated that its production operations
would be much less than those of Selectile, there would
have been no reason for Respondent to buy from Selectile
all its equipment and machinery for the synthetic marble
department and for the fiberglass tub and shower stall de-
3 Selectile did not sell its plastic laminate department to Respondent
631
partment. As of September 7 and 10, Respondent was not
even operating the fiberglass tub and shower stall depart-
ment , although it had had in its employment from Septem-
ber 4, Chavez and Vega, whom Respondent employed at
that time solely for the purpose of preparing the fiberglass
tub and shower stall departments for operation. Such oper-
ation did not begin until September 14.
I recognize that, merely because Respondent purchased
all the equipment and machinery in question from Selec-
tile, it should not be concluded that Respondent intended
to operate "exactly" as had Selectile. Nonetheless, such
purchase necessarily indicates to me that Respondent in-
tended to conduct an operation similar to that of Selectile.
The record reveals that it ultimately did operate in sub-
stantially the same fashion and with approximately the
same number of employees and with the same amount of
production, as had Selectile.
Selectile operated two divisions in its synthetic marble
department: one being devoted to the manufacturing of
snythetic marble sinks, and the other division was engaged
in producing synthetic marble flatstock.5 In the marble de-
partment, Selectile employed about 55 workers and in the
fiberglass tub and shower stall department, it had in its
employ approximately 28 workers and produced about 80
to 90 units per day.
On September 7, Respondent produced only about 600
square feet of flatstock, using approximately 15 employees.
Production in that department continued to increase, so
that by December, Respondent's production in the marble
department compared favorably to that which had been
Selectile 's production level. More than 2 months passed
after September 7 before Respondent produced fiberglass
tub and shower stalls which substantially compared in
amount with that previously produced by Selectile.
Respondent's employees on September 7 were mostly
trainees , who were in the process of learning how to con-
duct operations, so that Respondent could produce fin-
ished products.
That Respondent reasonably anticipated performing
production substantially as had Selectile is evidenced by
the fact that Respondent kept in its employ major figures
in Selectile's operations. Jack Winnick had been K-Tile's
general manager and Jack Samples had been in charge of
K-Tile's synthetic marble department and its laminated
plastic department. They went with Respondent on Sep-
tember 4. Respondent further retained the services of Gary
Samples, Rudy Vega, who had been the production fore-
man in Selectile 's fiberglass department, and Ben Lopez
who had been foreman of Selectile's synthetic marble de-
partment. As time passed, beginning September 4, Respon-
dent has produced substantially the same products in its
synthetic and marble and fiberglass departments as Selec-
tile produced, prior to the sale to Respondent.
On September 7, of Respondent's 21 employees, only 16
were employed in the synthetic marble department, 3 em-
ployees were engaged in maintenance work, and only 2
employees were employed in the fiberglass tub and shower
stall department.
° It produced approximately 100 units per day
5 Production averaged about 2,000 square feet per day
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I realize that , as of the time Respondent began its opera-
tions, it could not , with precision , determine the exact
amount of production , the exact number of classifications
engaged in production , or the exact number of employees
who would be in such classification . However , I cannot
conceive of Respondent as, or treat it as, an enterprise that
had neither hopes nor plans when it made such a signifi-
cant purchase and when it initiated its operations on Sep-
tember 4. I am convinced that on the critical days in ques-
tion in this case , i.e., September 7 and 10, Respondent
knew that it was not engaging in a level of production
which it considered to be that of the future nor was it
employing sufficient workers in many classifications that it
knew it would be employing in the future.
Respondent's increase in the number of its employees
was not sudden but it was continuous until almost the end
of the year. By October 1, it had 28 employees ; by October
10, it had 40 employees ; by October 13, it had 44 employ-
ees; and by October 31, it had from 48 to 51 employees.
These numbers referred only to the number of employees
in the synthetic marble department . In this department, it
had produced 210 square feet of material in the flatstock
division as of September 5. It was not until September 17
that it first produced intralav and , as of that date , its flat-
stock department was producing only approximately 680
square feet of material . Such production increased continu-
ally through September , October, November , and Decem-
ber. By December 28, it was producing almost the same
amount of flatstock as had Selectile , i.e., 1,820 square feet
of material per day. It may be noted that it produced only
about 680 square feet of material as of October 1, but that
this amount increased to about 1 ,200 square feet by Octo-
ber 23 and about 1,600 square feet as of October 31. Such
gradual but steady increase of production was true in the
intralav division , as reasonably should have been antici-
pated by Respondent on September 7 and 10. While only
22 sinks were produced by it as of October 1, it produced
60 per day as of October 23, 85 per day as of November 21,
and 106 per day as of December 28
Respondent did not even begin to operate its fiberglass
tub and shower stall department until about September 14.
Vega and Chavez, between September 4 and 14, were em-
ployed in getting that department set for operation . In this
department also, there was a gradual but steady increase in
the number of employees and the number of units pro-
duced.6 On September 17, there were about 6 employees in
the fiberglass department . By October 30, and continuing
until December 28, there were approximately 23 employees
in that department . On September 17, Respondent pro-
duced only seven units in the fiberglass department. By
October 24 , 24 units were being produced in that depart-
ment each day. By October 26, 44 units were being pro-
duced in that department each day. By November 5, Re-
spondent produced about 60 units each day in that depart-
ment. And between November 12 and December 28,
Respondent was producing about 70 to 80 units.
In the middle of September , although work in almost
every classification was being performed, many of the em-
6 As I have previously noted , I can come to no conclusion but that Re-
spondent must have reasonably anticipated such increases
ployees "doubled in brass." At that time , a single employee
could not perform only in one job classification.
Of course , it has been noted that Respondent signed a
contract with the Furniture Workers on September 10. Be-
ginning about September 20, Respondent distributed cop-
ies of this contract to each of its employees as well as a
written statement which the employees were to sign. The
written statement was to the effect that the employees in
question would read not merely the Company' s handbook,
but also that they would read the contract within 2 days "as
a condition of employment."
William Kennington was the industrial relations manag-
er for Respondent. He and others under his direction, early
in September , distributed dues deduction authorization
forms for the Furniture Workers to all employees of Re-
spondent . Respondent included a dues deduction authori-
zation card for the Furniture Workers with a packet, in-
cluding the contract , to each new employee for the
employee's signature . It was the practice in the office that,
after a prospective employee was interviewed and had
passed his preemployment physical, a package including
the dues deduction authorization form was handed to such
employee and he was asked to complete "all" the forms,
including the dues deduction form, and "bring them back
to us." The employees were not routinely told that they
were under no obligation to sign a dues deduction authori-
zation card. This practice began about September 17.
C. Concluding Findings as to Unlawful Assistance Including
the Violations of Section 8(a)(3) and (1) in Requiring
Employees, Including New Hires, To Read Respondent's
Contract With Furniture Workers and Giving Them Union
Dues Authorization Cards as Part of a "Package" for
Signature
I conclude that neither on September 7 nor 10 did Re-
spondent employ a reasonably to be anticipated comple-
ment of employees nor was its level of operations anywhere
near what Respondent would reasonably expect to be nor-
mal.
Its fiberglass tub and shower stall department was not
being operated at all. It was operating only the flatstock
division in the synthetic marble department. I find it ob-
vious that Respondent intended as of September 7 and 10
to operate all the divisions it ultimately did operate. Obvi-
ously , it purchased from Selectile the equipment and ma-
chinery used for those operations only for the purpose of
using them . I have noted how Chavez and Vega, prior to
September 14, were employed from September 4, only for
the purpose of preparing the fiberglass tub and shower stall
department for manufacturing uses. It has been noted that
Respondent's production level in the synthetic marble de-
partment did not reach a level comparable to that of Selec-
tile until December . It was not until more than a month
after the contract , with its union security clause , was execu-
ted that Respondent approached a production level in its
fiberglass tub and shower stall department which may be
considered comparable to that of Selectile . While acknow-
ledging that Respondent was under no duty to reach pro-
duction levels comparable to that of Selectile, it appears
obvious that such was contemplated by Respondent or else
PLASTICS PLANT, PLUMBING FIXTURES DIV.
it would not have purchased from Selectile all the equip-
ment and machinery from Selectile which Selectile used in
its manufacturing operations in those departments.
On September 7, most of the employees were "general
helpers." I find this a euphemism for "trainees ," who, of
necessity, were being taught how to perform the operations
necessary to produce products in their finished form. On
September 7 and 10, the majority of employees on whose
behalf the Union would eventually represent as exclusive
bargaining representative would have no voice in such
choice, even though the Union under the contract would
be their bargaining representative and they would have to
comply with the union security clause. As of September 7
and 10, Respondent's job classifications were not sub-
stantially filled, and I find it abundantly clear that
Respondent's operations of its departments was not sub-
stantially normal. Respondent must have reasonably antic-
ipated what eventually turned out to be the fact, viz, that
its complement of employees would most substantially in-
crease and that its level of production would of necessity
be much higher if it were to survive as a going operation.
I find General Counsel has, by a preponderance of the
probative and substantial evidence, established that Re-
spondent, by its premature recognition of and contracting
with the Carpenters, as above described, violated Section
8(a)(1), (2), and (3) of the Act.
I further conclude that Respondent, by either openly or
tacitly soliciting signatures of dues authorization cards by
employees, including applicants for employment, unlawful-
ly assisted the Carpenters in violation of Section 8(a)(1)
and (2) and the employees were discriminated against in
violation of Section 8(a)(3) and (1) of the contract.
I conclude also that Respondent violated Section 8(a)(1),
(2), and (3) of the Act, by soliciting, tacitly or otherwise, all
employees, including applicants for employment, to sign a
statement that he had received a copy of Respondent's
contract with the Furniture Workers and that he would
read such contract within 2 days "as a condition of em-
ployment." I find that an employee under Section 7 of the
Act has the unqualified right not to read any contract with
any union. In violation of Section 8(a)(1) of the Act, Re-
spondent attempted to and did interfere with, restrain, and
coerce employees in their rights so to refrain, and by re-
quiring them to agree that they would read such contract
within 2 days "as a condition of employment," the Respon-
dent violated Section 8(a)(3) and (1) of the Act.
I further conclude that Respondent's solicitation, tacit or
otherwise, that all new employees sign cards authorizing
Respondent to deduct union dues from their wages for the
benefit of the Furniture Workers, was violative of Section
8(a)(1), (2), and (3) of the Act.
D. Midwest Piping
I first note that I credit all the testimony of Bill Miller,
business representative of the Carpenters. I have no doubt
that Respondent, for a long time prior to September 7,
knew that the Carpenters claimed to be a bargaining repre-
sentative of Respondent's employees. However, in view of
my findings above that on September 7 and 10 Respondent
neither had a substantial complement of employees nor
633
had it reached what it must reasonably have expected to be
its normal level of production, I find it unnecessary to pass
on the question as to whether the principles first enuncia-
ted by the Board in Midwest Piping Co., supra, and thereaf-
ter variously refined by the Board, were violated.7 I note
that I have a substantial question in my mind that a "real
question concerning representation" could have existed
within the meaning of Midwest Piping when recognition
was given and the contract was signed on September 7 and
10, respectively, with the Furniture Workers. If, because of
an insufficient complement of employees and substantial
lack of normal production, there could not be a "real ques-
tion concerning representation," then I fail to see how Mid-
west Piping Co., supra, would be involved in this case. I
have already found that Respondent gave unlawful assis-
tance and support to the Furniture Workers by granting
recognition before it had a representative work force and
at a time when a complement of personnel must have been
in the process of a necessary foreseeable plan of rapid ex-
pansion. I note that, since the contract was executed by
Respondent and the Furniture Workers at a time when
Respondent did not have a representative complement of
employees and had not reached anything like its reason-
ably to be expected normal production, the union security
clause in the agreement was illegal in terms of Section
8(a)(1), (2), and (3) of the Act as was the entire contract.
Of course, I recognize an employer's duty to remain neu-
tral with respect to proper requests for recognition from
competing unions. But here I find, merely, that this em-
ployer would have violated the Act in recognizing any
union as the collective-bargaining representative of its em-
ployees on September 10, because such recognition would
be unlawfully premature. I find no need to determine
whether the Carpenters' claim for recognition was merely
"naked" or "colorable" or "what have you." The fact is
that Respondent's recognition of the Furniture Workers
and signing a contract containing a union security clause is
sufficient basis for my finding a violation of Section
8(a)(1), (2), and (3) as claimed by the General Counsel. I
find Midwest Piping, supra, either not apropos or superflu-
ous.
E. Respondent 's Alleged Violation of Section 8(a)(1) and (3)
by its Refusal To Employ Tony Reynoso
I would find a violation of Section 8(a)(3) and (1) by
Respondent with respect to Reynoso , were I to credit
Reynoso's testimony in full, including his testimony that
Samples told Reynoso that the reason he was not being
hired was because he had not filled out an authorization
card authorizing the deduction of union dues , and that af-
ter Reynoso allegedly informed Samples that he had filled
out such paper and had it with him , Samples told Reynoso
to return to work the next day and "maybe" he would have
a job.'
7 Cf William Penn Broadcasting Co, 93 NLRB 1104, and 94 NLRB 1175
8 In connection with Reynoso, I find General Counsel has not established
by a preponderance of the probative and substantial evidence that Cheri
May was an agent of Respondent other than that she was authorized to give
Continued
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I note that Reynoso testified at one place that Samples
told him to report at 7 in the morning and "maybe I would
be hired." Shortly thereafter, he testified that Samples told
him to be in the next day at 7 a.m. and he did not go in the
next day to report because he was afraid that if he took the
next day off to report at 7 a.m., he would lose the job at
which he was then working. He had been told by Samples
that if he didn't report to work the next day he should just
"forget about the job."
I do not believe that Reynoso intentionally told any mis-
truths, but I credit the testimony of Cheri May, who im-
pressed me as a truthful witness, who was much more alert
than Reynoso and who impressed me further as remember-
ing what happened between Reynoso and her in vivid de-
tail.
Reynoso testified that on September 25 he talked to
Kennington about a job and Kennington offered him ajob
as a polisher at $3.20 an hour to start; Reynoso told Ken-
nington that he would "think it over" and Kennington told
him he would fill out the form for Reynoso's physical and
he advised Reynoso that he could have the rest of the day
and the next day to think about whether he wanted the job
According to Reynoso, he went home and then decided to
take the job. He returned to the plant that day and picked
up the slip for his physical examination from May, and
thereafter returned to the plant and gave the report on his
physical to May, who then gave him a bunch of papers to
sign. She allegedly told him that he had to sign those pa-
pers before he went to work "because it is for the Union,
before you start to work or you won't be hired." I find May
had authority to give him papers for his signature, but did
not have authority to tell him that he wouldn't be hired if
he didn't sign a paper for a union.' He took the papers
home with him.10 He took care of his children, and called,
presumably, May and said he had to babysit and would
bring the papers back the next morning, and was told, pre-
sumably by May, that that would be all right. Then
Reynoso's father came home and Reynoso filled out the
papers. He does not think any cards he signed had any name
of a union on it. He then went to Respondent's plant and
again had a conversation with May. I find the record does
not establish that she was authorized to say anything to
him about why he did or did not get the job. He told May
he had all the papers with him. According to him, he spoke
to Jack Samples on the phone and Samples told him that
they didn't hire him "because something about the union
papers, that I didn't want to sign them." He allegedly told
Samples he had all the papers right there and was ready to
go to work. After he unsuccessfully tried to reach Kenning-
ton on the phone, he again spoke to Jack Samples and
Samples told him "maybe if I come back tomorrow morn-
ing at 7, I could get the job." Reynoso allegedly told him
"okay." He then went home and according to him, since he
was already working at another place, and since he had
already missed 1 day of work, "If I missed another day, I
might lose that job too and I couldn't risk losing that job
preemployment packages including union dues deduction authorization
cards to employees for signature, after they were hired
9 I further find she made no such statement
10 "I can't read or spell too good "
on a `maybe', because he told me maybe I would get the
job." He didn't return to Respondent's plant the next
morning.
Kennington was Jack Samples' superior. According to
Reynoso, Kennington did not say maybe he would have the
job. According to Reynoso, Kennington apparently told
him he had the job if he passed the physical.
I credit Jack Samples' testimony that he did not tell Rey-
noso anything to the effect that he would not have a job
with Respondent because he did not get his paper work in
or because he did not sign a union deduction card or that
he wouldn't have a job because of any union activities or
because he refrained from engaging in any union activities.
I further credit his testimony that it was only after Reynoso
failed to show up for work that he found out Reynoso was
not coming to work. I find Reynoso's understanding of
English was not very good.
I do not credit Reynoso's testimony that Samples told
him he wasn 't going to get hired because he didn't sign a
card for the Furniture Workers. Reynoso emphatically tes-
tified that he never told anyone he didn't want to sign a card
for the Furniture Workers. No one told him that he should
sign the union dues checkoff authorization cards according
to him. In fact, he testified that he never signed such a
card. Three lines later, he testified that May told him that if
he didn't sign such a card, he wouldn't be hired and two
lines later, he testified he signed it at home which he alleged
he had told May he was going to do. I don't see how he
could deny that he ever signed the union dues checkoff
authorization card and almost immediately thereafter testi-
fy that he signed it. According to Reynoso, Samples never
asked him if he had ever signed the union card. Instead,
Reynoso told Samples that he "had signed all the papers."
After apparently testifying that Samples did not ask him if
he had signed the union card and that he had merely vol-
unteered that he had signed all the papers, he quotes Jack
Samples as saying "that I don't want to sign the union
card." He then testified that Samples said to him that Sam-
ples understood Reynoso didn't want to sign the union
card and Reynoso told him he already had.
It appears to me from the record that Samples' superior,
Kennington, according to Reynoso, had already hired
Reynoso at $3.20 an hour.
A couple of pages later, he quotes Samples as saying
that, if Reynoso didn't come in at 7 a.m., "just forget about
the job." Note that Reynoso doesn't mention the word
"maybe" here.11 I do not credit Reynoso's testimony that
when May gave him the whole packet of papers to fill out
she selected "a little white card" from them and held it up
especially from the other ones and told him he had to fill
that one out for the Union whose name she didn't mention.
If she told him that he had to fill out all the papers she gave
him, I see no need for her selecting a particular card and
telling him that he had to fill that one out. Reynoso testi-
fied that he read that card at his home when his dad ar-
rived there, and there were just a couple of lines on it and
"I really don't remember what it had on it." He testified he
didn't know the nature of it. He testified he understood what
11 Reynoso did not come in at 7 in the morning
PLASTICS PLANT, PLUMBING FIXTURES DIV.
the other papers were . 12 The alleged union card that he
read did not have the name of the Union on it.
I note particularly that on the day that Kennington of-
fered him the job in question , his reply to Kennington was
that he "would think about it ." While Reynoso took the
physical arranged for by Kennington , he never at any time
thereafter spoke to Mr . Kennington directly.
Later in his testimony , he gave hearsay testimony that
his brother , Ralph , in the afternoon of September 26, told
him that Foreman Vega had told him that Samples had
said he didn 't have a job "because I have mouthed off to
Chen."
I find that Reynoso in his testimony testified that in
some instances he never told anyone he didn ' t want to sign
a card for the Union and that no one, outside Cheri, at any
time , told him to sign a union dues checkoff authorization
card. And he further testified that, by September 26, he
had never signed a union dues checkoff authorization card
saying "you mean where they take money away from
you?" While he testified that he never signed such card,
very shortly thereafter Cheri allegedly told him that, if he
didn 't sign it , he wouldn 't be hired and he took it home and
signed it and according to him he told Samples on the
phone that he had already signed it.
In light of the entire record , particularly with reference
to Tony Reynoso , I conclude that General Counsel has
failed to establish by a preponderance of the probative and
substantial evidence that Respondent violated Section
8(a)(3) or ( 1) of the Act with respect to Reynoso.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The Respondent's activities set forth in section III
above , occurring in connection with the operations of Re-
spondent described in section I, above , have a close, inti-
mate , and substantial relation to trade , traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It shall be recommended that Respondent cease and de-
sist from assisting the Furniture Workers or any other la-
bor organization ; discriminating against employees ; inter-
fering with , restraining, or coercing its employees in the
exercise of their rights guaranteed by Section 7 of the Act;
recognizing or contracting with the Furniture Workers un-
less and until such union is certified as exclusive bargain-
ing representative by the Board ; giving effect to the Sep-
tember 10 contract with the Furniture Workers, or any
modification or renewal thereof; or in any other manner
12 Presumably , at least the Company's book of rules , if not the contract
635
interfering with, restraining , or coercing its employees in
their Section 7 rights because Respondent's violations
strike at the heart of the Act.
It shall further be recommended that Respondent reim-
burse all its present and former employees since May 10,
1973, for all initiation fees, dues, assessments and other
monies paid to the Furniture Workers as a condition of
employment pursuant to the illegal union security agree-
ment, with interest at 6 percent , if such monies have been
paid to the Union, it being understood that such order will
be applicable only to those employees who were not mem-
bers of the Furniture Workers' union , in good standing, as
of the date of hire by Respondent.
It shall further be recommended that Respondent post
notices hereinafter to be set forth.
It shall also be recommended that Respondent preserve
and upon request make available to the Board and its
agents all pertinent payroll and other necessary records
needed to establish how much money , if any, is due the
employees from Respondent.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the fol-
lowing conclusions of law:
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. Orange County District Council of Carpenters, AFL-
CIO, and United Furniture Workers of America, Local
1010, AFL-CIO, are , each , labor organizations within the
meaning of the Act.
3. By recognizing Furniture Workers as the exclusive
bargaining representative of its employees on September 7,
and by entering into , performing, maintaining , and giving
force and effect to the collective-bargaining agreement
containing a union security clause, since May 10, 1973,
when the Furniture Workers did not represent an un-
coerced majority of Respondent's employees, Respondent
has violated Section 8(a)(1), (2), and (3) of the Act.
4. By soliciting, tacitly or otherwise, employees to sign
authorization cards for the Respondent to deduct union
dues from the wages of its employees, Respondent has vio-
lated Section 8(a)(1), (2), and (3) of the Act.
5. By requiring employees to sign a statement in which
they agree to read Respondent's contract with the Furni-
ture Workers within 2 days of receipt of such statement,
"as a condition of employment ," Respondent violated Sec-
tion 8(a)(1), (2), and (3) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
7. Respondent's unfair labor practices set forth above
affect commerce within the meaning of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record herein, and pursuant to Section
10(c) of the Act, I recommend that the Board issue the
following-
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 13
The Respondent, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Assisting the Furniture Workers, or any other labor
organization, by recognizing or by entering into a collec-
tive-bargaining agreement with the Furniture Workers or
any other labor organization, at a time when the labor or-
ganization does not represent a majority of Respondent's
employees, because, at the time of such recognition and
contract, Respondent was neither engaged in its normal
level of operations nor did its complement of employees
represent a reasonably to be anticipated complement of
employees.
(b) Interfering with, restraining, or coercing employees,
or prospective employees, in any other manner in the exer-
cise of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively through
representatives of their own free choice, and to engage in
other concerted activities for the purpose of collective bar-
gaining and other mutual aid and protection, or to refrain
from any or all such activities except to the extent that such
rights may be affected by an agreement requiring member-
ship in a labor organization, as a condition of employment
as authorized in Section 8(a)(3) of the Act.
(c) Recognizing or contracting with the Furniture
Workers unless and until the Furniture Workers are certi-
fied by the Board as the majority representative of
Respondent's employees.
(d) Giving effect to or performing, maintaining, or giv-
ing force to its September 10, 1973, contract with the Fur-
niture Workers or any modification or renewal thereof or
any superseding agreement, except that any benefits now
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
enjoyed by Respondent's employees are not to be dimin-
ished by such action on the part of Respondent.
(e) Requiring employees to agree to read a union con-
tract "as a condition of employment."
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Reimburse its present and former employees for all
initiation fees and assessments and other monies, if any,
paid to the Furniture Workers as a condition of employ-
ment, since September 10, 1973, with 6-percent interest, it
being understood that this does not apply to those employ-
ees who were members of the Furniture Workers, in good
standing, as of the date of hire by Respondent.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all recprds necessary to
analyze the amounts of backpay due under the terms of
this Order, if any.
(c) Post at its offices in La Habra, California, copies of
the attached notice marked "Appendix." 14 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by an authorized repre-
sentative of the Respondent, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"