Oscar Enterprises, Inc.

National Labor Relations Board - Board Decisions

Nov 11, 1974

214 N.L.R.B. 823 (N.L.R.B. 1974)

OSCAR ENTERPRISES, INC.
Oscar Enterprises, Inc., OMCO, Inc., Halvin Prod-
ucts Co. and International Association of Machin-
ists and Aerospace Workers, AFL-CIO, District
No. 115. Case 20-CA-8513
November 11, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On June 4, 1974, Administrative Law Judge Mar-
tin S. Bennett issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge with
the additions herein set forth, and to adopt his rec-
ommended Order.
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(1) in the in-
stances and for the reasons detailed in his Decision.
However, we find the following additional violations
of the Act.
The Employer's election campaign consisted of a
series of letters to the employees. The August 13,
1973, letter stated, in part:
Hundreds of plants have been forced out of the
Bay Area by the unions . . . the result is inevita-
ble . . . the small firm either goes broke and
closes or closes up and moves to another area
where the labor costs will keep it competitive.
823
of the United States and still ship merchandise
all over the country.
The August 17, 1973, letter said, in part:
I could go on and write pages of union horror
stories . . . but look at our own plant. We are
almost half shut down now ourselves. What do
you think would happen to the rest of our jobs if
we became unionized? How long could we sur-
vive?
In addition, Abby Halpert, a supervisor, told one
of Respondent's employees that, if the Union came
in, Respondent "may just have to close up." He also
stated that if it did not close it might have to move
and start a smaller business elsewhere.
In our opinion, these statements clearly conveyed
to the employees the message that selection of the
Union might well lead to the Respondent's closing of
the plant. And this is so whether considered standing
alone or in the longer passages quoted in the dissent-
ing opinion herein. Accordingly, we find that these
statements constituted unlawful threats in violation
of Section 8(a)(1).1
Several witnesses testified that Oscar Schulz, the
operational head of the business, stated to a group of
employees that he had tried to keep work for the
employees in the past even when things were slow
"and in the end all of you are turning against me."
This statement conveyed to the employees the mes-
sage that the Employer equated engaging in union
activity, which is a protected statutory right, with em-
ployee disaffection or disloyalty. The Board has held
that a statement such as this tends to interfere with,
restrain, or coerce employees in the exercise of their
Section 7 rights in violation of Section 8(a)(1).3 The
fact that a statement may have been made "in pique"
does not nullify its probable coercive impact.
ORDER
Companies such as ours do not have heavy
equipment and for all practical purposes within
a week's time we could move to almost any part
1 Although it cannot affect the finding that the Union did not have major-
ity representation and, therefore, doesn't change our ultimate decision here-
in, we note that the Administrative Law Judge erroneously included Gisela
Zunker, a homeworker, in the unit Valley Forge Flag Company, 152 NLRB
1550, 1563 (1965), Howell Electric Motors Company, 59 NLRB 1171 (1944)
The General Counsel excepts to the Administrative Law Judge's attribut-
ing to him the allegation that the discharges were discriminatorily motivated
by considerations of national origin and the probable prounion sympathies
of persons of such national origin We find nothing in the pleadings or the
record that supports the Administrative Law Judge's statements that the
General Counsel proceeded on any such theory
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 and hereby
orders that the Respondent, Oscar Enterprises, Inc.,
OMCO, Inc., Halvin Products Co., Berkeley, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
2John P Krystyniak d/b/a Red & White Super Markets, 172 NLRB 1841,
1843 (1968), Hawthorn Company, A Division of Kellwood Company, 166
NLRB 251 (1967), Kalmar Laboratories, Inc, 159 NLRB 805 (1966)
3 Radio Station WISN, Division of Hearst Corporation, 169 NLRB 699,701
(1968)
214 NLRB No. 11 l
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER KENNEDY, dissenting in part:
I disagree with my colleagues' modification of the
Decision of the Administration Law Judge by find-
ing additional violations of Section 8(a)(1) of the Act.
The principal additional finding is based on short
extracts from two letters to the employees dated Au-
gust 13 and 17, 1973. The first letter contains five
pages, the second two pages. The extracts quoted in
the majority opinion do not accurately reflect the
sense of the letters. For example, the full quotation of
the August 13 letter from which the majority quotes
an elided extract is as follows:
One thing the union will never tell you about is
the number of firms that have gone out of busi-
ness after they were unionized. Unions could
care less in most cases what happens to the indi-
vidual employees or their employers. Look at
the hundreds of employees that were laid off
when Marchant closed its plant. Many of the
old Marchant employees are still looking for
jobs . . . their employment insurance has run
out and they are on welfare. Hundreds of plants
have been forced out of the Bay Area by the unions,
mostly because unions have what they call area
standards, which means irrespective of an
employer's competitive position in the industry
all employees should be paid the same rates. Be-
lieve it or not, machinists unions will sometimes
have big plants with heavy equipment, such as a
big steel processing plant or a shipyard under
the same contract as a smaller firm manufactur-
ing and packaging small products. What hap-
pens, of course, is the small firm is competing
with similar type firms in other parts of the
United States that are not unionized and which
operate in lower wage areas. The result is inevita-
ble . . . the small firm either goes broke and closes
or closes up and moves to another area where the
labor costs will keep it competitive.
Do you really believe that a plant such as ours,
which competes nationally with other firms,
could really end up paying substantially more
than our competitors pay and still stay in busi-
ness? Companies such as ours do not have heavy
equipment, and for all practical purposes within a
week's time we could move to almost any part of
the United States and still ship merchandise all
over the country. What would you do if you oper-
ated a business such as this, competing against
competitors operating from all parts of the Unit-
ed States and you were faced with substantial
labor cost increases from a union? Would you
do as Marchant did and move, or would you
stay in one place and slowly go bankrupt? The
answer is simple. [The emphasized words repre-
sent the quotation relied upon by the majority.]
In order to appreciate the quotation from the August
17 letter which the majority construes as coercive, I
give a more complete quotation from the letter:
So there will be no misunderstanding on layoffs
in the plant, they were brought about for eco-
nomic reasons and were by departmental senior-
ity. You know how our business is off and the
amount of back stock we have. I really hope that
business picks up soon, but we have very heavy
competition in Los Angeles and on the East
Coast, and these companies pay wages consider-
ably below ours. Consequently, we have a very
difficult time meeting the prices they can sell for
and still make a profit.
You have all seen the number of plants that
have been forced to shut down. These were
union plants and I do not think it takes much
imagination to understand why they left our
area. Why don't you ask the union what hap-
pened to those employees of Jacuzzi when it
closed? Or how about the good loyal workers at
American Standard? Or how about the hun-
dreds of employees who were workers at Mar-
chant? Where are they now?
You really do not have to go any farther than
this building we all work in. It used to be Gener-
al Motors Parts but they became unionized and
I have often wondered what happened to those
workers when the company left. You may not
have heard about one of our latest cutbacks in
the area. Singer-Frieden has shut down and
moved out half of its plant. I could go on and
write pages of union horror stories . . . but look at
our own plant. We are half shut down now our-
selves. What do you think would happen to the rest
of our jobs if we became unionized? How long
could we survive? [The emphasized words repre-
sent the quotation in the majority opinion.]
In N. L. R. B. v. Lenkurt Electric Company, Inc., 438
F.2d 1102, 1105 (C.A. 9, 1971), the court said:
It is well established law that an employer has
the right to express opinions or predictions of
unfavorable consequences which he believes
may result from unionization. Such predictions
OSCAR ENTERPRISES, INC
or opinions are not violations of the National
Labor Relations Act if they have some reason-
able basis in fact and provided that they are in
fact predictions or opinions rather than veiled
threats on the part of the employer to visit retali-
atory consequences upon the employees in the
event that the union prevails.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 618 (1969), the Supreme Court quoted with ap-
proval Judge Friendly's statement that "an employer
is free to tell his employees what he reasonably be-
lieves will be the likely economic consequences of
unionization that are outside his control, as distin-
guished from threats of economic reprisal to be taken
solely on his own volition." ' Thus, a reasonably
based prediction of plant closing that may be forced
upon management by competitive conditions has
been held to fall within the protection of Section
8(c).5
When the extracts from the Respondent's letters
relied on by the majority are considered in context as
they must be,6 they are plainly not threats of action
which Respondent will take "of his own volition and
for his own reasons" in retaliation for the employees'
selecting a union,' but predictions of unfavorable re-
sults which Respondent believed would result from
unionization. As to the reference to closings of plants
by other employers there is no contention that the
statements made were not factual. The employees in-
volved in a union campaign have a right to hear what
may be arguably adverse consequences of unioniza-
tion so that they may make a reasonable choice of a
bargaining representative.8 It is not the Board's func-
tion to shield employees from unpleasant facts.
The majority opinion concludes that the state-
ments conveyed to the employees the message that
"selection of the Union might well result in the clos-
ing of the plant." This is not sufficient to establish a
violation of Section 8(a)(1). As I have pointed out
above, it is only when the employer threatens to close
a plant "of his own volition and for his own reasons"
that a violation of Section 8(a)(1) is established.
The majority also finds violative of Section 8(a)(1)
Schulz' statement to employees that he had tried to
4 N L R B v River Togs, Inc, 382 F 2d 198, 202 (C A 2, 1967)
5 N L R B v Brownwood Manufacturing Company. 363 F 2d 136 (C A 5,
1966), N L R B v Automotive Controls Corp, 406 F 2d 221 (C A 10, 1969),
N L R B v Uniform Rental Service, Inc, 398 F 2d 812 (C A 6, 1968),
N L R B v The Golub Corporation, 388 F 2d 921 (C A 2 1967)
6 N L R B v Lenkurt Electric Co, 438 F 2d 1102, 1107 (C A 9, 1971)
' Id at 1106
"The exercise of free speech in these campaigns should not be unduly
restricted by narrow construction It is highly desirable that the employees
involved in a union campaign should hear all sides of the question in order
that they may exercise the informed and reasoned choice that is their right "
N L R B v Lenkurt Electric Co, supra at 1108
825
keep work for the employees in the past even when
things were slow "and in the end all of you are turn-
ing against me." I can perceive nothing coercive in
this statement . It seems to me that Schulz ' statement
reflects nothing more than pique at what he consid-
ered the ingratitude of the employees. It is not un-
lawful.
Accordingly, I dissent from the majority's modifi-
cation of the Administrative Law Judge's Decision. I
would adopt that Decision in its entirety.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard at San Francisco, California, between
January 16 and March 1, 1974. The complaint, issued De-
cember 14, and based upon charges filed August 14 and 16
and December 5, 1973, by International Association of
Machinists and Aerospace Workers, AFL-CIO, District
No. 115, herein the Union, alleges that Respondent, Oscar
Enterprises, Inc., OMCO, Inc., Halvin Products Co., has
engaged in unfair labor practices within the meaning of
Section 8 (a)(5), (3), and ( I) of the Act .' Briefs have been
submitted by the General Counsel and Respondent.
Upon the entire record in the case, and from my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
All three named Respondents are located under the
same roof. Oscar Enterprises, Inc, herein Oscar, is a Cali-
fornia corporation maintaining its principal office and
place of business at Berkeley, California, where it is en-
gaged in the manufacture, distribution, and sale of aquari-
ums and pet supplies. Oscar annually sells and ships goods
and products valued in excess of $50,000 directly to points
outside the State of California . It also annually purchases
and receives goods and materials valued in excess of
$50,000 which are shipped to it directly from suppliers lo-
cated outside the State of California.
OMCO, Inc., is a California corporation with its plant
located at Berkeley , California , where it is engaged in the
manufacture , distribution , and sale of aquariums and relat-
ed products. OMCO annually purchases and receives
goods and materials valued in excess of $50,000 which are
shipped to it directly from suppliers located outside the
State of California.
Halvin Products Co. was, prior to January 1, 1974, a
i The initial session on January 16 was before Presiding Judge James
Barker , wherein , inter aba, the complaint was amended to add other alleged
unfair labor practices The amendment added alleged violations of four
dischargees on July 13, 1973 Respondent attacks this as untimely , but I find
that it is supported by the December 5 charge All other sessions were held
before me
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York corporation which, together with Oscar and
OMCO, was engaged in the manufacture , distribution, and
sale of aquariums and related products. Halvin annually
purchases and receives goods and materials valued in ex-
cess of $50,000 which are shipped to it directly from points
outside the State of California.
As of January 1, 1974, and this is not controverted, I
find that these entities all merged into Oscar, allegedly at
the instigation of their outside accountant and the compa-
ny comptroller, because it was concluded that economic
savings would result from their being one rather than three
organizations. I find that the operations of Respondent, or
Respondents as the case may be, affect commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, District No. 115, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
transferred in January 1973 to the Berkeley, California,
plant and two key employees were brought along.
The minority stockholders of OMCO were bought out
and OMCO and Halvin were merged, as of January 1,
1974, into Oscar. Prior to the merger, they functioned as
separate corporations with separate books and payroll
checks. There is uncontroverted evidence that the merger
resulted in savings in bookkeeping and accounting costs.
There is also uncontroverted testimony that employees
were regularly interchanged in job functions among the
previously existing corporations , but remained on the re-
spective payrolls with adjustments by bookkeeping payroll
entries. All production and maintenance employees during
1973 in all corporations had identical working conditions
and fringe benefits.
It may be further noted that during 1973 all products
manufactured by OMCO were sold to Oscar as were all
completed products by Halvin; these were bookkeeping
transfers from one corporation to the other, although the
name of Halvin was retained on some of the packaging
because of its public identity.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction: The Issues
While there is some ambiguity in the complaint, I con-
strue the issues to be as follows. The Union commenced
organizational activities among the employees of Respon-
dent in May 1973 and an election was scheduled for late
August. In this context, with knowledge of the organiza-
tional activities, it is alleged that Respondent terminated a
number of employees, on July 13 and August 7 and 15,
1973, because it believed that they would be prone to vote
in favor of the Union because of their Mexican or Latin
background; 2 that it refused to recognize and bargain with
the Union as the purported majority representative; and
that it engaged in various acts of interference, restraint,
and coercion.
B. Additional Corporate Facts
Some facts as to the corporate structure and history are
here noted. Oscar Enterprises, Inc., herein Oscar, was
formed in 1953 and is engaged in the manufacture and sale
of aquariums and accessory equipment. In 1963, the princi-
pals of Oscar, namely, Oscar Schulz and Herbert Schulz
who are father and son, formed another corporation, with
some minority stockholders, called OMCO, Inc., herein
OMCO. OMCO manufactured aquarium tanks and hoods
therefor Thereafter, they moved to their present location
in Berkeley, and also commenced the distribution of pet
supplies.
In December 1971, Oscar purchased Halvin Products
Company, herein Halvin, which was then located in New
York City. This firm manufactured plastic parts and, par-
ticularly, filters for aquarium tanks. Dissatisfied with the
job performance in New York, the Halvin operation was
2 Later in the hearing , as will appear, the General Counsel attempted to
alter this theory
C. Union Activities
Organizational activity at the plant among the previous-
ly unorganized employees of Respondent commenced late
in May 1973. Employee Tom Jackson, whose termination
is not in issue herein, was terminated on May 26. On May
29, he and Representative Joe Rodriguez of the Union
were outside the plant premises and passed out union au-
thorization cards; some of these may have been accompa-
nied by a leaflet extolling the need for higher wages and
fringes. This was done openly and it is clear that this
promptly came to the attention of management. It actually
appears that the organizing drive started around May 21
when Rodriguez received a telephone call from a former
business agent of the Union, one Swisher, and that night a
meeting was held which was attended by Jackson and two
other employees of Oscar. Other meetings were held on
July 12, 18, and 25, with, according to Rodriguez, 11 to 15
on July 12, 10 on July 18, and approximately 23 on July 25
attending.
On June 18, the Union wrote to Respondent, stated that
it represented a majority, offered to prove this majority,
and demanded recognition. The number in the production
and maintenance unit vanes according to the respective
contentions of the parties, but, as will appear, is in excess
of 50. A ledger book maintained by the Union, wherein
signed authorization cards are listed as received, shows
that 19 cards had been received as of that date.;
By letter dated June 21, Respondent refused recognition
but, on June 20, the Union filed a petition covering all
production and maintenance employees, with the custom-
ary exclusions, claiming that there were 28 in the unit. On
July 9, the parties agreed to a stipulation for certification
upon consent election. On July 13, or several days before,
Business Agents Rodriguez and Daniel Ramos again re-
quested recognition and were told by Oscar Schulz that he
doubted their majority and preferred to proceed via a
Board election.
J The complaint does not allege a majority until July 16
OSCAR ENTERPRISES, INC.
D. The Discharges
Oscar Schulz is the operational head of the business,
whereas his son Harold is primarily in charge of sales. The
senior Schulz was in Europe on vacation for the months of
May and June and returned approximately July 1. As not-
ed, the union activities started late in May and duly came
to the attention of Harold Schulz, who then retained its
industrial relations representative herein.
Production and inventory were exceptionally high, with
slackening sales, and management decided that a reduction
in force was in order . The first of three was made on July
13. Labor Relations Representative Vetterlein had previ-
ously directed caution and urged that they avoid such a
cut, but it was concluded thereafter that a reduction was
inevitable . Respondent was duly advised to proceed strictly
by seniority; this was done , and, on the afternoon of July
13, 1973, four of the five shipping personnel in the ware-
house were terminated; namely, Rick Tuuri, Rick Tillman,
Gary Whittemore , and Gilberto Barba . The first three had
signed cards before July 13. As for Barba, not to be con-
fused with his brother Luis, his card is dated July 18, but
he testified that he signed it that morning and the General
Counsel so urges. There is some question as to this, be-
cause a list maintained by the Union as to the dates the
cards were turned in raises some question as to the date. Be
that as it may, it was flatly admitted by Tuun that work
was slow at the time , and by Tillman that there was little to
do at the time except of a menial nature.
It is perhaps in order at this point to take up a primary
contention made by the General Counsel which is amply
reflected in the record . When questioned as to his theory of
the case , the General Counsel claimed at several places,
including pages 367-368 and 865 of the transcript, that the
reductions in force allegedly were made strictly by senior-
ity, because those with lesser seniority bore Mexican or
Latin surnames and Respondent surmised , although there
is little to support this , that they would be prone to vote for
the Union. This is manifestly hardly true as to the four
terminated on July 13. Moreover, the General Counsel
thereafter backed off , at pages 1257-62 of the transcript, in
effect arguing that the terminations were of those who had
lower pay rates and disavowed any claim that racial factors
and accompanying prounion sympathies were behind the
terminations . But, on page 8 of his brief , in footnote 6, he
in essence reiterated his original theory, not substantiated
herein , as to discrimination against those bearing Latin-
American surnames.
It would perforce seem that his original contention is
directed to the two groups terminated on August 7 and 15,
although the subsequent reemployment of a substantial
number of those with Latin surnames some months later, 6
of 12, does violence to this concept.' Significantly, the
General Counsel does not attack the elimination of the
graveyard and night shifts of the Halvin operations late in
May and on June 29 , after the advent of the Union. Yet,
4 The original complaint attacked only the August 7 and 15 terminations
The July 13 discharges of four personnel were added at the pretrial hearing
and the General Counsel relies on them to establish his majority in the
alleged 8(a)(5) violation treated below
827
initially, at the outset of the hearing , he pursued his origi-
nal line , extracting uncontroverted denials from Oscar
Schulz that "he knew" the Mexican people were bringing
in the Union or that he had so stated to a Board investiga-
tor. In addition , Herbert Schulz was questioned as to his
knowledge of the percentage of Mexican -named employees
in the Halvin Division , which was affected in the next ter-
minations on August 7; he replied that he had none.
The second group of discharges took place on the af-
ternoon of August 7 , these involving the girls in the Halvin
section. They were called to the lunchroom and Oscar
Schulz addressed them . He explained that inventory was
piled up to the ceiling due to overproduction , and the rec-
ord clearly so demonstrates , and sales were not being
maintained. He stated that his competitors in Los Angeles
were paying lower wages , that he had no alternative but to
release them , and that they could collect unemployment
compensation or look for other jobs.
According to employee Mary Brasier , also spelled Brazi-
er, she asked if they would be recalled when work picked
up. Schulz replied that he could not commit himself and
his advice to them was to look for other work . He added
that he had attempted to provide work in the past and this
had not been appreciated. Twelve girls were terminated on
this occasion , including Hortencia Amaral , Frankie Bick-
nell, Mary Brasier, Sara Camargo , Mary Gonzales , Martha
Grijalva, Sallie Hyslop, Cecilia Pena , Otilia Reyes, Paula
Rosales , Bertha Tones , and Flora Vallejo . Several were on
vacation at the time and received their notices by mail.
As in the July 13 terminations , these were done strictly
by seniority , pursuant to discussions with Respondent's la-
bor consultant . According to Oscar Schulz , there was no
work to be performed in the Halvin division , although the
plastic molding machines perforce were kept operating and
the parts duly stored , but no finished products were made.
On August 15, nine employees in the OMCO division
were terminated , pursuant to straight seniority . These were
Lina Amaral , Maria Avalos, Gloria DeLeon, Maria Herr-
era, Anna Kirk , Soledad Media, Christina Rozo, Janet Wal-
ton, and Inez Hewlett, Plant Superintendent Guenter
Haags handed out their termination notices and explained
that business was slow; again, several were on vacation and
received their notices by mail.
It is undisputed that four employees were retained out of
seniority for reasons which the General Counsel does not
seriously challenge; i.e., their jobs were unique . These in-
cluded a maintenance mechanic, a heavy duty laborer, a
part-time janitor and a puttier . There is no contrary evi-
dence , and I find , that these positions were unique as
claimed . According to Haags, and this is not disputed,
there were layoffs in 1972 which were accomplished in pre-
cisely the same manner . The General Counsel has contend-
ed, via hearsay statements by employees , that some termi-
nations were out of seniority , but Respondent 's records,
and I so find , dispute this , e.g., in one case there was a
break in seniority which dated seniority from a later date
of hire.
Turning to the recalls, Rick Tuuri and Rick Tillman,
both terminated on July 13, were offered reinstatement on
November 12 and declined . On November 27, identical
letters were sent Inez Hewlett, Paula Rosales, Frankie
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bicknell, Janet Walton, Anna Kirk, and Maria Avalos, in-
viting them to return to work on December 3.
On December 26, identical letters were sent to Sara Ca-
margo, Gloria DeLeon, Hortencia Amaral, and Lina
Amaral inviting them to report to work on January 2, 1974.
It being a point stressed by the General Counsel in his
contention of termination on a racial basis, it is significant,
as noted, that 6 of these 12 bore Latin surnames.
To sum up, Respondent terminated the three groups of
employees for business reasons, strictly by seniority, with
the four designated reasonable exceptions. This was done
for economic reasons which are well substantiated by the
record. As Respondent points out, it would have been in a
far more vulnerable position had it reduced its force out of
seniority.
Moreover, there is uncontroverted evidence that when
business picked up some months later, Respondent offered
to recall the employees, again strictly by seniority. They
were duly notified by registered mail to return to work on
November 12, December 3, and on January 2. Stated
otherwise, if, as the General Counsel contends, Respon-
dent eliminated those with Latin surnames because of their
supposed prounion tendencies, why then did it recall them
to work. It is axiomatic that the signing of union cards does
not insulate anyone from an economic reduction in force. I
shall therefore recommend the dismissal of this allegation.
See Bill's Coal Co., Inc. v. N.L.R.B., 493 F.2d, 243 (C.A. 10,
1974), and Carrollton Standard Printing Co., 209 NLRB 540
(1974).
E. The Alleged Refusal To Bargain
The parties agree upon an appropriate unit under Sec-
tion 9(b) of the Act which is basically a production and
maintenance unit with the customary exclusions. As for the
number in the unit, Respondent has supplied 57 names of
those in the unit on June 18, 1973.6 The parties concede,
and I agree, that Abby Halpert is to be excluded from the
unit. Also excluded from the unit are card signers Edward
Bristol, Larry Martinez, and Mario Scalini, whose employ-
ment terminated on June 29; this is not attacked herein.
Turning to majority representation, the General Counsel
has submitted what is, at best, a thin majority, this turning
both upon the honoring of two disputed cards 7 as well as
the inclusion in the unit, urged by Respondent, of some
non-card signers. As for the three groups of dischargees,
5 The General Counsel stresses the fact that Harrol Yarbrough was asked
by management to personally contact Janet Walton and offer her reemploy-
ment, this presumably to bear upon his alleged supervisory status, treated
below The simple answer is that they were neighbors, he did so pursuant to
a management request and I fail to see how this assists the General Counsel
as to his status
6 The General Counsel alleges a refusal to bargain on and after June 18;
although he does not allege majority representation until July 16, 1973, 32
cards were introduced, mostly those involved in the discharges
7 I originally admitted Exh 39, the card of Enedine Andrade, dated Au-
gust 12, and excluded G.C. Exh 38, the card of Ofelia Martinez, dated July
12, on appeal by the General Counsel, the latter ruling was reversed, Board
Member Kennedy dissenting, and the card was ordered received in evi-
dence I do not know whether or not this is tantamount to a decision that
the latter card is to be counted Be that as it may, and I have reservations
that there is sufficient foundation for either card under established prece-
dent, I assume, for this discussion, that these two cards are to be counted
they were told that their recall was dubious and that they
should either seek other work or file for unemployment
compensation. I find, on a preponderance of the evidence,
that they did not have a reasonable prospect of further
employment, and their cards should not be counted. See
Norris Homes, Inc., 208 NLRB 706 (1974). Excluding the
four dischargees on July 13, the total thus is down to 25.
Consideration of non-card signers whose exclusion the
General Counsel urges, and whose inclusion Respondent
seeks, demonstrates only further that the Union never en-
joyed a majority at a critical period herein.
(1) The General Counsel urges that Gisela Zunker not
be included in the unit, contrary to the position of Respon-
dent. Zunker has been in the employ of Respondent since
August 1959 as an assembler and, as of June 18, 1973,
received $2.80 per hour as an assembler on the payroll of
Oscar. After 3 years of employment, she experienced mi-
graine headaches and backaches, the latter necessitating
semiweekly visits to a chiropractor. She was then permitted
to work at home at her customary task of assembling heat-
er elements. About once every 2 weeks, Oscar Schulz, ap-
parently in a philanthropic sense , brings the parts to her
husband who works near the plant of Respondent. She, in
turn, returns finished parts daily through the same route.
Zunker turns in a timecard reflecting 40 hours of work
per week which she does work, but, because of visits to the
chiropractor, she makes up her 40 hours at night or on
Saturdays. She participates in the company health and wel-
fare program and receives the same vacations and paid
holidays as the other employees; she is unrelated to Oscar
Schulz, although her husband very briefly worked for Re-
spondent some years ago. The evidence strongly demon-
strates that her interests are allied with those of other pro-
duction and maintenance workers, and, contrary to the
General Counsel, I find that she, a nonsigner of a card, is
to be included in the unit. See Bomber Bait Company, 207
NLRB 710 (1973).
(2) Even less impressive is the contention of the General
Counsel for the exclusion of Madeline Texeira from the
unit. She has been a tester at Oscar since 1956, did not sign
a card, and, at the time material herein, received $2.80 per
hour, the lowest wage paid by Respondent. The General
Counsel has a theory, which I do not fully comprehend,
that she, as a tester of pumps, rejects some and therefore is
a supervisor. She manifestly has none of the indicia of su-
pervisory authority, and I am at a loss to ascertain how her
rejection of pumps reflects authority to responsibly direct
other employees who receive the same rate of pay, if not
more. Obviously, and I so find, she is to be included in the
production and maintenance unit. See Performance, Inc.,
208 NLRB 618 (1974).
(3) There are four other non-card signers whose inclu-
sion in the unit Respondent urges and the General Counsel
opposes. At issue is their alleged supervisory status. A pre-
ponderance of the evidence supports Respondent and dis-
closes that they are leadmen or working foremen at best
and do not meet the definition of a supervisor under Sec-
tion 2(11) of the Act. There is little to distinguish the four.
The first of these is Herbert Hahn of the tank shop in the
OMCO department and there is little evidence relating to
Hahn who did not testify herein. Plant Superintendent
OSCAR ENTERPRISES, INC
Guenter Haags uncontrovertedly testified , and I find, that
Hahn has no authority to hire and fire or to effectively
recommend same and performed bargaining unit work be-
side the people he was overseeing . Hahn did not enjoy au-
thority to assign work to tell employees what to perform.
He is hourly paid and enjoys the same fringe benefits as his
coworkers . According to Haags' uncontroverted testimo-
ny, and I so find , when workers asked Hahn for permission
to leave early , Hahn was required to clear with him, and
Haags did not necessarily follow his recommendations. I
find that he is properly within the unit.
(4) When Respondent bought out Halvin, it hired Paul
Moore , a tool-and-die maker with Halvin , and moved him
to California under a 3-year employment contract . Richard
Moreno, a witness for the General Counsel , who worked in
this area of the plant , testified that he reported to Moore
who could transfer him from job to job.
Moreno presented testimony that on one or two occa-
sions, when tardy, he telephone Haags or Moore. He also
claimed that Moore, on occasion , had granted him time
off. He further claimed that Moore, who did not testify
herein , told him that he had once recommended the hire of
an employee , that the man was hired and, further, that
Moore told him that he had received orders to exclude
several drunks if they repeated this offense Moreno con-
ceded , however, that when he asked for time off, Moore
cleared his request with Haags . He admitted that Moore
manufactured and corrected dies, thus , in essence , being a
tool-and -die maker and a skilled craftsman.
Mary Brasier , terminated on August 7, testified as to her
experience while working in the Halvin division. When
Moore set up a new mold in the machine , he would tell the
employees to work elsewhere in the plant and, after the
setup , they would return to the molding machine. Moore
interviewed her prior to her hire in February 1973, but she
was hired by Abby Halpert, then admittedly a supervisor,
who also had moved West with the Halvin acquisition. She
knew nothing of Moore doing any hiring and also testified
as to how Moore repaired and corrected dies, set up the
machines for the runs and made parts for the plastic mold-
ing machine.
The record does demonstrate that Moore has a 3-year
contract with Respondent , but he is still a tool-and-die
maker with skills who did some assigning of work to em-
ployees who worked with him . I deem this insufficient to
constitute him a supervisor under the Act and he is proper-
ly includable in the unit.
(5) Charles Plath was on the Excelsior list and is shown
in Respondent 's records as of June 18 as a leadman in the
Halvin department , receiving $3.75 per hour. On or about
July 16, Abby Halpert of Halvin, an admitted supervisor,
was transferred to the central office and his supervisory
duties were assigned to Plant Superintendent Haags. On
this same occasion , Plath , according to Respondent, was
made a working leadman.
The record demonstrates that his functions differed lit-
tle, if at all, from those of Hahn and Moore who indeed
8 While his wage rate of $5 50 per hour exceeded that of the production
workers , as did that of the others in contention herein , I note that it was well
below that of Machinist Krautschnick , not urged to be a supervisor
829
received a noticeably higher wage . Also, he was included in
the August 15 termination list, strictly by seniority . Frankie
Bicknell , a witness for the General Counsel , testified that
Plath , who did not testify, was in charge of this area after
July 16 and told them what to do. The parties stipulated
that Plath was made a working foreman on July 16 and
thereafter told the employees which products to work
upon.
According to Plant Superintendent Haags, Plath was a
leadman in Halvin , worked with the girls, told them what
to do , had no authority with respect to wage rates or work-
ing conditions and never recommended hiring or firing;
this is uncontroverted herein . Indeed , according to Oscar
Schulz, Plath lacked authority to release an employee early
for as much as 1 minute . I find that Plath , a non-card
signer , was properly includable in the bargaining unit.
(6) According to the General Counsel , Harrol Yarb-
rough is a foreman who should be excluded from the unit
because of his supervisory status and, according to Re-
spondent, Yarbrough is a leadman or working foreman in
the stockroom area. The evidence preponderates in favor
of the position of Respondent . Plant Superintendent Haags
testified , and I so find , that Yarbrough has no authority to
hire or fire , or to effectively recommend same . He works
all day beside his fellow employee or employees, as the
case may be; punches a timeclock with an hourly rate of
pay; and receives overtime when he performs such work.
It so happens that Yarbrough is on the payroll of Law-
rence Warehouse which bonds merchandise stock in the
warehouse area of Respondent . Respondent sets his hourly
rate of pay which is paid by Lawrence Warehouse; Law-
rence has no control over what he does and Respondent
duly reimburses Lawrence for his wages. His hourly wage
rate is in excess of that of other stockroom employees, but
this is alleged by Respondent to reflect his tenure rather
than his supervisory status. And he makes substantially less
than a rank -and-file maintenance machinist , viz, Kraut-
schick.
In behalf of the General Counsel , Rick Tuun , then em-
ployed in the stockroom , initially testified that Yarbrough
told him that he had the right to hire and fire and to grant
Tuuri the right to leave work early. Tuuri subsequently
testified that Yarbrough had never hired or fired anyone,
or effectively recommended same . In fact , Tuuri was not
even interviewed by Yarbrough prior to his hire in the
stockroom . He also testified that Yarbrough personally
performed warehouse and stockroom work all day long
and punched the timeclock.
Inez Hewlett , a rank-and-file employee , testified that, af-
ter the union organizational campaign commenced, Yarb-
rough told her that he lacked authority to direct employees
and that she should see Haags if and when she needed
work . According to Rick Tillman , a witness for the Gener-
al Counsel , Yarbrough did not know what his wage rate
was and , at best, gave him the impression that he, Yarb-
rough , knew what was going on. He added that both he
and Yarbrough drove a forklift truck and that both filled
orders. In addition , Yarbrough makes out the bills for cus-
tomers, in essence functioning as a shipping clerk. On oc-
casion, he will tell Tillman which truck to unload.
Anna Kirk , an employee of Oscar and an outspoken wit-
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness for the General Counsel who was terminated on Au-
gust 15, testified that if she wanted time off, she would ask
Yarbrough and that the latter, in turn, cleared this with
Haags; in fact, if she called in sick, she would contact
Haags, and if she reached Yarbrough, Yarbrough had to
clear this with Haags. She further testified that after May
1973 Yarbrough directed no one in her department.
According to Yarbrough, he was working in the ware-
house as a shipping clerk or glorified working foreman.
Perhaps indicative of his true status is his testimony, not
controverted, that he was invited to union meetings. He
also testified how he and Rick Tuun took turns in filling
orders. On a preponderance of the evidence, I find that he
is to be included in the unit.
I am not unaware of the fact that, on Respondent's case,
there were 3 supervisors in the unit containing in excess of
55 employees; namely, Oscar and Herbert Schulz and
Guenter Haags. But I do not consider this to warrant a
finding that Respondent has all warriors and no chiefs.
Stated otherwise, the ratio is not unreasonable, particularly
so with a plant run by father and son, plus the plant super-
intendent in somewhat of a paternalistic nature, as is re-
flected by Respondent's concern over Zunker, previously
found to be within the appropriate bargaining unit. I there-
fore find that, at all times material herein, the Union did
not enjoy majority representation within the appropriate
unit and that Respondent has not refused to bargain with it
within the meaning of Section 8(a)(5) and (1) of the Act.
F. Alleged Interference, Restraint, and Coercion
The Employer's election campaign consisted of four
written releases to employees on July 11 and 16 and on
August 13 and 17, 1973. The General Counsel attacks the
latter two. The August 13 letter consisted of five pages and
stressed by the General Counsel are the following excerpts:
The Union is hardly going to mention to you that
most of the firms we sell to are large firms who are
under the wage and price control laws, which means
that our customers cannot in most cases raise their
prices over a small percentage to their customers. If
our cost of prices went up drastically we would simply
be out of business. The Union, of course, could care
less, and they will go right on as they have, promising
you the moon. . . . As everyone knows, you can only
pay a certain percentage of what you take in in the
form of labor costs, and if your labor costs go up, your
volume and your prices have to go up. Either that or
you cannot stay in business long. . . .
* * *
One thing the union will never tell you about is the
number of firms that have gone out of business after
they were unionized. Unions could care less in most
cases what happens to the individual employees or the
employers. Look at the hundreds of employees that
were laid off when Marchant closed its plant. Many of
the old Marchant employees are still looking for jobs
... their unemployment insurance has run out and
they are on welfare. Hundreds of plants have been
forced out of the Bay Area by the unions . . . the
result is inevitable . . . the small firm either goes
broke and closes or closes up and moves to another
area where the labor costs will keep it competitive.
Companies such as ours do not have heavy equipment
and for all practical purposes within a week's time we
could move to almost any part of the United States
and still ship merchandise all over the country. What
would you do if you operated a business such as this,
competing against competitors operating from all
parts of the United States and you were faced with
substantial labor cost increases from a union? Would
you do as Marchant did and move, or would you stay
in one place and slowly go bankrupt? The answer is
simple. Of course, the unions have employees in their
office who advise their members on how to collect
unemployment insurance and how to get welfare, so if
you vote for the union at least you have the opportuni-
ty to avail yourselves of these benefits.
In the August 17 letter, Respondent stated, inter alia, as
follows:
You have all seen the number of plants that have been
forced to shut down. These were union plants and I do
not think it takes much imagination to understand
why they left our area. Why don't you ask the union
what happened to those employees of Jacuzzi .. .
when it closed? Or how about the good loyal workers
at American Standard? Or how about the hundreds of
employees who were workers at Marchant. Where are
they now?
You really do not have to go any farther than this
building we all work in. It used to be General Motors
Parts. But they became unionized and I have often
wondered what happened to those employees when
the company left. You may not have heard about one
of our latest cutbacks in this area. Singer-Frieden [sic]
has shut down and moved out half of its plant. I could
go on and write pages of union horror stories . . . but
look at our own plant. We are almost half shut down
now ourselves. What do you think would happen to
the rest of our jobs if we became unionized? How long
could we survive?
The General Counsel specifically attacks the last sen-
tence as tantamount to an admission of a discriminatory
motive with respect to the discharges treated above. I do
not so view it, and, moreover, the discharges have been
found to be based upon legitimate economic consider-
ations. I do not, therefore, adopt his contention that "the
terminations were not because of overstocked inventory or
a lack of sales because the Union did not cause these." The
simple answer is that the record well reflects the high in-
ventories and lack of sales. Stated otherwise, the General
Counsel would have Respondent deliberately refrain from
making sales and building up inventory in the face of its
OSCAR ENTERPRISES, INC.
lower cost competitors to repel the Union, hardly a logical
move . So far as this record indicates , none of the state-
ments issued by Respondent as to plant closures were false.
There were no mass presentations to assembled employees
and Respondent did agree to a consent election.
The General Counsel has introduced in evidence some
correspondence from the representative of Respondent to
the Regional Office which , if set forth herein , would un-
duly clutter up the record . Suffice it to say that I detect
nothing therein in the nature of an admission or something
which would constitute other than a reiteration of the posi-
tion Respondent has taken herein on the merits.
Turning to statements that are alleged to be interference,
restraint, and coercion , under Section 8(a)(1) of the Act, I
deem it unnecessary to treat with statements attributed to
Harrol Yarbrough whom I have found not to meet the
statutory definition of a supervisor . One sole statement is
attributed to Abby Halpert, at the time material herein
admitted to be a supervisor.
Sara Camargo testified that she returned from a vacation
around July 4. Abby Halpert had previously told her that
he hoped she would learn the business so that she could
supervise the other girls. On this later occasion, she
claimed that Halpert asked her how she had enjoyed her
holiday and commented on the trouble Respondent was
having with a union which was passing out literature, as
indeed the Union was.
Halpert stated that Respondent needed a labor organiza-
tion , but not this one because their pay demands were out-
rageously high and with such a high starting pay, Respon-
dent "may just have to close up ." He also stated that, if
Respondent was not forced to close , it might start a smaller
business elsewhere.
Halpert originally was called by Respondent as part of
its case solely to testify how he had hired one, Tom Jack-
son, on February 7, 1973 , despite the fact that his applica-
tion clearly showed that he was a shop steward at a previ-
ous employer ; indeed , he was later active in the organiza-
tional activities at Respondent . Oscar Schulz was present
during part of the interview . Respondent did not question
Halpert concerning the Camargo statements attributed to
him. The General Counsel did question Oscar Schulz
whether he had told Camargo Respondent might have to
close and start a smaller business elsewhere , but Schulz did
not recall this and denied talking about a smaller business.
Camargo did not attribute this to Schulz.
An objection by Respondent to cross-examination of
Halpert by the General Counsel as to the Camargo allega-
tion was sustained on the basis that this went beyond the
scope of the direct examination . He was not recalled as a
rebuttal witness by the General Counsel. Although Re-
spondent contends that it is unlikely that Halpert would
make but one statement of this nature, I credit Camargo
herein.
A number of statements are attributed to Oscar Schulz.
According to Jackson, Schulz, at the time of his hire, asked
if a former employer listed by Jackson was union or other-
wise. Jackson allegedly replied that this was a nonunion
shop but paid the union scale . Schulz allegedly replied that
his plant was nonunion , this manifestly well before the ad-
vent of the Union, hoped to stay that way, and that, if it
831
became organized , this would perforce cause him to close
up and lay people off. The simple answer is that Jackson
was hired despite his disclosure of being a shop steward at
a prior place of employment.
Furthermore , Schulz, albeit a voluble witness whose tes-
timony rambled somewhat , perhaps because he does not
speak the clearest English , was not specifically questioned
concerning the incident , but Halpert did not remember it.
In any event , this took place more than 6 months prior to
the filing of the initial charge herein on August 14, 1973,
and therefore will not support a finding of a violation
The General Counsel stresses a number of talks attribut-
ed by Rick Tuun to Schulz . Tuuri signed a card on May 30
and was discharged on July 13, as found . He testified that
about 1 week before his discharge he approached Schulz
and complained that coworker Charles Plath , with much
less seniority , was making as much money as he . Schulz
allegedly replied "You tell me , you know more about the
Union than I do." Schulz continued on to say that he did
not comprehend why the employees were turning on him,
and that he had not been given a fair opportunity to state
his side.
Schulz referred to a case where an employer had moved
out because of inability to meet union scales, but Tuuri did
not recall the name of the employer . Schulz allegedly re-
ferred to a case where an employer had built a catwalk
manned by a guard to insure that employees were doing
their job. He asked Tuuri what the Union' s next move was
and Tuuri replied that he did not know. Schulz referred to
employees Inez Hewlett and Anita LeBlanc as being pro-
union and Tuuri agreed.
In evaluating the position of Respondent , I deem it of
interest to note that Tuuri and Plath approached Schulz on
July 13 and, in effect, offered to sponsor an independent
union in lieu of the Charging Party. Schulz promptly reject-
ed this, stressing that he would not enter into such a
"sweetheart" arrangement . This manifestly reflects an in-
tent not to violate the Act and further tends to demon-
strate , as found , that Plath was not a supervisor under the
Act. Moreover, in his affidavit to the General Counsel,
Tuuri deposed that Schulz never asked him how anyone
else felt about the Union and indicated that he knew how
Tuuri felt. I find that this constituted no more than protect-
ed opinion under Section 8(c) of the Act
Inez Hewlett, later recalled to work after her August 15
discharge , testified that she told Yarbrough, in the presence
of Haags, that the employees wanted higher wages. Haags
responded that Respondent would "go broke" if it paid
higher wages ; pointed to another company which had gone
out of business after unionization ; and said that, with
unionization, there would be shop stewards and com-
plaints. Significantly , in her affidavit, she deposed that
Schulz never mentioned the word "union" to her. While
she deposed therein that Haags had not mentioned the
Union to her , she claimed in her testimony that he had, on
this sole occasion , done so. Obviously, her testimony is am-
bivalent as to Haags' reference to the Union 9
'There is much adduced by the General Counsel here , and with respect
to other witnesses, which amounts to comments protected under Sec 8(c) of
Continued
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vera Koussa, an employee for 6 years, testified that
Schulz had three talks with her. In the first, shortly after
one of the August terminations , he asked as to her plans on
retirement ; she responded that she had none and did not
look forward to it . He added that if the Union entered the
picture he would have to release the older employees, such
as Teixeira and Calder , at which point Koussa promptly
included herself in the group . 10 She later testified that
Schulz said that if the Union entered the picture things
would "get rough"; "they make the older girls retire"; and,
again , "he might be forced to let the older people go."
She also testified as to two other conversations. In the
first of these , Schulz told her that he did not plan to "fold
up," as was attributed to him ; they discussed her rent and
he stated that it was too high . In the last talk , he comment-
ed that he had heard of a talk between Koussa and em-
ployee Anita LeBlanc wherein the latter told Koussa that
Schulz had pushed her around for too long. Schulz then
added that he should have fired her long before. As to
these last two talks, I see nothing falling within the ambit
of Section 8(a)(1) of the Act.
Schulz, as an adverse witness for the General Counsel,
testified that he did talk with Koussa upon his return from
Europe and asked how things were going. Something was
said about money, he replied that he could do nothing at
the moment and they discussed the amount of her rent.
The General Counsel asked him why they discussed her
rent and Schulz responded that he was interested in the
welfare of all his employees ; this is well reflected in his
treatment of Zunker . While not the strongest evidence in
the world , the evidence preponderates that Schulz did raise
the spectre with Koussa that unionization could result in
forced retirement of the older employees, and I find that
this was a threat under Section 8(a)(l) of the Act.
Rick Tillman testified that on one occasion he heard
Schulz state that he would have to close the doors if the
Union came in. He heard this said to Yarbrough as he
passed by Schulz. He also testified that Schulz could have
been talking about the wages paid by his unionized com-
petitors to women who ran machines and that this took
place 4 to 6 months before the organizational campaign
started . I see no basis for finding that this reasonably tend-
ed to restrain and coerce rank-and-file employees in their
organizational activities.
Frankie Bicknell testified that , when she was discharged
on August 7, Oscar Schulz, after referring to the economic
reasons for the discharge , stated that he had tried to keep
work for the employees in the past even when things were
slow "and in the end all of you are turning against me."
Others testified to a similar statement. I view this more in
the nature of Schulz venting his spleen rather than consti-
tuting a statement which would reasonably tend to inter-
fere with , restrain , and coerce employees.
Anita LeBlanc testified that during July Schulz tapped
her on the shoulder and told her he had a bad dream about
her, viz, she was down on the sidewalk in front of the shop.
He showed her a picture taken many years ago with a bus
turned over on its side and an injured man lying beside it.
Schulz told her dreams always came true and that he had
been driving this particular bus. He then told her in a kid-
ding way that she should watch out because he would not
want her to get hurt around there . I fail to see how this
constitutes interference , restraint , and coercion.
She further testified that , in late July or early August, he
told her that his competitors were paying less than he did,
that he could not afford higher wages , and that if the
Union came in he would have to move or file for bankrupt-
cy. She admitted that Schulz was aware of the fact that she
and her husband had previously filed for bankruptcy in a
prior business venture . Schulz admitted talking with Le-
Blanc , but his testimony was rather vague . He admitted
knowing of the bankruptcy, but did not remember telling
her that Respondent might go the bankruptcy route if the
Union came in . He denied telling her that if the Union
entered the scene Respondent might have to move . I credit
LeBlanc and find that this, under the circumstances, con-
stituted a threat of economic reprisal.
Anna Kirk testified that Haags once asked her if she
knew who had introduced the Union into the plant , this in
the presence of employee Teixeira , and also that Haags
told her the workers were trying to bring in the wrong
union . Teixeira flatly denied ever hearing any talks from
Kirk and Haags or Schulz on this subject of unionization.
Kirk also testified that Schulz asked her how two employ-
ees felt about the Union and that Haags once told her that
unionization would force Respondent to close down. On
the other hand , Kirk freely conceded that she volunteered
information to Schulz as to who was for or against the
Union.
Haags admitted expressing a preference for another la-
bor organization to several employees , but denied asking
Kirk as to who instigated the union movement. In view of
the nature of Kirk 's testimony and specifically her conces-
sion that she volunteered information to management, I
base no finding adverse to Respondent thereon.
Flora Vallejo , a young student , was terminated on Au-
gust 7. She testified that Schulz then stated that he would
not give them any more work because of the Union. Not
only is this against the entire thrust of the testimony on
both sides, but she next testified that she did not remember
everything and that she did not remember exactly what
was said. Here as well I base no finding adverse to Respon-
dent upon her testimony . I find that by threatening em-
ployees with economic reprisals for engaging in union ac-
tivities, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act in the
indicated respects.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
the Act and this is not set forth As an example , Schulz allegedly stated to
Hewlett on a number of occasions in June and July that business was bad
and that the bank "owned all this", the General Counsel has presented no
evidence that this was not correct
10 None of the three was terminated
1. Oscar Enterprises , Inc., OMCO, Inc., Halvin Prod-
ucts Co., is an employer within the meaning of Section 2(2)
of the Act.
2. International Association of Machinists and Aero-
OSCAR ENTERPRISES, INC.
space Workers, AFL-CIO, District No. 115, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By threatening employees with reprisals for engaging
in activities on behalf of International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, District No.
115, Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent has not otherwise engaged in unfair labor
practices.
THE REMEDY
Having found that Respondent has engaged in 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.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER "
Oscar Enterprises , Inc., OMCO, Inc., Halvin Products
Co., Berkeley , California , its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with reprisals for engaging in
activities on behalf of International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, District No.
115, or any other labor organization.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed under Section 7 of the National Labor
Relations Act, except to the extent such rights may be af-
fected by a union shop contract authorized under Section
8(a)(3) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business at Berkeley , California,
copies of the attached notice marked "Appendix ." 12 Cop-
ies of said notice , on forms provided by the Regional Di-
833
rector for Region 20, shall, after being duly signed by Re-
spondent, be posted by it immediately upon receipt thereof
and maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps it has taken to comply herewith.
" 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
12 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with reprisals for
engaging in activities on behalf of International Asso-
ciation of Machinists and Aerospace Workers, AFL-
CIO, District No. 115, or any other labor organiza-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed under Section 7 of the National
Labor Relations Act, except to the extent such rights
may be affected by a union shop contract authorized
under Section 8(a)(3) of the Act.
OSCAR ENTERPRISES, INC.,
OMCO, INC., HALVIN PROD-
UCTS CO.