Peat Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1117 (N.L.R.B. 1980)

PEAT MANUFACTURING COMPANY 117
Peat Manufacturing Company and Produce, Refrig-
erated & Processed Foods & Industrial Workers
Local 630, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 21-CA-17094
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On April 17, 1980, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings,2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.4
' Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In sec. IV of his Decision, the Administrative Law Judge concluded
that Respondent violated Sec. 8(aXI) of the Act by bargaining directly
with its unit employees. However, in his Conclusion of Law 6 he found,
and we agree, that such conduct was violative of Sec. 8(aX5) and ().
3 Respondent excepts to the Administrative Law Judge's conclusion
that it violated Sec. 8(aXl) of the Act in June 1978 by threatening em-
ployees with discharge if they engaged in a strike on the ground that
such a violation was not alleged in the complaint. We find this exception
without merit. Although the complaint did not specifically allege such a
violation, the issue was fully litigated at the hearing and the record fully
supports the Administrative Law Judge's conclusion. Furthermore, the
violation found is closely related to the violations alleged in the com-
plaint. Accordingly, we adopt the Administrative Law Judge's finding of
this violation See Savoy Faucet Co.. Inc. d/b/a Savoy Brass Manufacturing
Company, 241 NLRB 51, fn. 2 (1979).
4The Administrative Law Judge concluded, and we agree, that Re-
spondent violated Sec. 8(aXS) and (1) of the Act by unilaterally granting
benefits to unit employees after unlawfully withdrawing recognition from
the Union. To remedy this violation, the Administrative Law Judge rec-
ommended, inter alia, that, at the request of the Union, Respondent rein-
state any terms of employment which existed at the time that it unlawful-
ly withdrew recognition. We shall modify the recommended Order to
specify that nothing therein shall be construed as requiring the rescission
of any of the benefits granted to unit employees
251 NLRB No. 153
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 and
hereby orders that Respondent Peat Manufacturing
Company, Norwalk, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied:
I. Substitute the following for paragraph 2(b):
"(b) Upon request by Produce, Refrigerated &
Processed Foods & Industrial Workers, Local 630,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, re-
instate any terms of employment existing when rec-
ognition was withdrawn from that labor organiza-
tion as the bargaining representative of the employ-
ees in the unit found appropriate in Conclusions of
Law 4, and make whole those employees for any
loss of benefits which would have accrued to them
but for the changes in the terms of their employ-
ment following the withdrawal of recognition, in
the manner set forth in the section entitled 'The
Remedy'; provided, however, that nothing herein
shall be construed as requiring rescission of any
wage increases or benefits which previously have
been granted to unit employees."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT threaten to discharge you for
engaging in strikes.
1 11 8 IIDECISI()NS OF NATIONAL I.ABOR RELATIONS B()ARD
WE Will NOT interrogate you concerning
your union activities and sympathies.
WE Wil.L NOT threaten you for engaging in
union activities.
WE WILL NOT' refuse to bargain collectively
with Produce, Refrigerated & Processed
Foods & Industrial Workers, Local 630, Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of
all employees in the following appropriate bar-
gaining unit:
All production and maintenance employ-
ees including trainees, inspectors, plant cleri-
cal employees, janitors, shipping and receiv-
ing employees, truckdrivers, leadmen and
working foremen employed by Peat Manu-
facturing Company at its facility located at
10700 East Firestone Boulevard, Norwalk,
California, but excluding all other employ-
ees, office clerical employees, professional
employees, technical employees, guards and
supervisors as defined in the Act.
WE WII.L. NOT change wage rates and other
terms and conditions of employment of em-
ployees in the above-described bargaining unit,
without prior notification to and bargaining
with the above-named labor organization.
WE WILl NOT offer to bargain nor bargain
directly with employees in the above-described
bargaining unit.
WE WI.l. NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain collectively
with the above-named labor organization as
the exclusive bargaining representative of all
employees in the above-described bargaining
unit, respecting rates of pay, wages, hours of
employment, and other terms and conditions
of employment and, if any understanding is
reached, embody such understanding in a
signed agreement.
WE WILL, upon request by the above-named
labor organization, reinstate any terms of em-
ployment existing prior to the time that we un-
lawfully withdrew recognition from it as a
bargaining representative of the employees in
the above-described appropriate bargaining
unit, and WE WILL make you whole for any
loss of benefits that you may have sustained by
virtue of those changes. However, nothing
herein shall be construed as requiring rescis-
sion of any wage increases or benefits which
previously have been granted to our unit em-
ployees.
PEAT MANUFACTURING COMPANY
DECISION
S lAlMlNI 01 Itil CASE
WII.I.IAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Los Angeles, California,
on June 5 and on Octcber 11, 12, and 24 through 26,
1979. On February 28, 1979, the Regional Director for
Region 21 of the National Labor Relations Board issued
a complaint and notice of hearing, based upon an unfair
labor practice charge filed on September 22, 1978,' al-
leging violations of Section 8(a)(l) and (5) of the Nation-
al Labor Relations Act, as amended, 29 U.S.C. §151. et
seq., herein called the Act. All parties have been afforded
full opportunity to appear, to introduce evidence, to ex-
amine and cross-examine witnesses, and to file briefs.
Based upon the entire record, upon the briefs filed on
behalf of the parties, and upon my observation of the de-
meanor of the witnesses, I make the following:
FINDINGS OF FACT
I. URISI)CTION
At all times material herein, Peat Manufacturing Com-
pany, herein called Respondent, has been a corporation
engaged in the manufacture and distribution of zinc and
aluminum die casting and plastic injection molding. It
operates a facility located at 107(X) East Firestone Boule-
vard, Norwalk. California. In the normal course and con-
duct of its business operations, Respondent annually sells
and ships goods and products valued in excess of $50,0X)
directly to customers located outside the State of Califor-
nia. Therefore, I find, as admittted in the answer to com-
plaint, that at all times material Respondent has been an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
11. IlE I ABOR ORGANIZATION INVOI.VIED
At all times material, Produce, Refrigerated & Proc-
essed Foods & Industrial Workers, Local 630, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, herein called the Union,
has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THI AI.I.EGED UNFAIR LABOR PRACTICES
A. Background and Issues
On September 15, 1977, the Board certified the Union
as the bargaining representative of Respondent's employ-
ees in a unit of:
All production and maintenance employees includ-
ing trainees, inspectors, plant clerical employees,
Unless otherise slaled. all dales occurred in 1978.
P'EAT NANI'LFACt'tiRINGC COMPANY I1 I')
janitors, shipping and receiving employees, truck-
drivers, leadmen and working foremen employed by
[Respondent] at its facility located at 1()7(X) Fast
Firestone Boulevard, Norwalk. California, but ex-
cluding all other employees, office clerical employ-
ees, professional employees, technical employees,
guards and supervisors as defined in the Act.
Thereafter, negotiations commenced for a collective-bar-
gaining agreement. However, no agreement was ever
reached. By June, Respondent's general manager, John
Robert Murphy,2 began receiving inquiries from employ-
ees concerning the status of the negotiations.3 Thus, he
began conducting periodic meetings of the employees for
the purpose of informing them of what had been occur-
ring during the various negotiating sessions being con-
ducted by Respondent and the Union. The complaint al-
leges that, during these meetings conducted in June,
Murphy had solicited employees to abandon their sup-
port of the Union, had promised benefits to the employ-
ees if they would do so, and had attempted to negotiate
directly with employees regarding employment terms
then being negotiated with the Union. In addition to con-
ducting the meetings. Respondent also posted notices for
the employees to read. For example, by notice dated
June 21, Respondent advised its employees that:
Peat Manufacturing Company has been bargaining
with the Union concerning wages and terms for
several months. For example, the Company wants
to give you a wage increase as follows:
1. Immediate general increase of 20 cents per hour.
2. Annual general increase of 20 cents per hour.
3. A series of 10 cents per hour increases at 180 day
intervals followed by merit increases.
The Union wants the contract to force you to join
the Union, pay Union dues and to have those dues
automatically deducted from your paycheck. So far
the Company has not agreed to these terms. Be-
cause the Company wants you to have the right of
free choice.
Similarly, 5 days later another notice was posted advis-
ing the employees that:
The first notice from the Company told you about
the proposed wage increase. Now I would like to
tell you about the proposed fringe benefit increases.
1. Improve the hospitalization plan.
2. Improve the medical plan.
3. Provide maternity coverage.
2 It is admitted that at all times material Murphy had been a supervisor
and agent of Respondent
I Murphy's testimony that employees had been inquiring about the
status of negotiations was supported by the employees who were interro-
gated concerning the subject For instance. Inspector Bobbie Bashau tes-
tified that many of the employees had been asking supervisors to ascer-
tain what had been occurring at the negotiating meetings Die casting op-
erator, Manuel Delgado testified that two or three employees had asked
him "what was happening with the Union" but that, though he as
viewed as a leading union proponent, he had been unable to answer their
questions There is no eidence that hese employee questions had arisen
prior to Junc
4. Improve the holiday and vacation policy.
The Company wants to give you the above in-
creased fringe benefits. However, the Union ants
to force you to join the Union, pay dues and to
have those dues withheld from your paycheck. The
Company does not want you to be forced to agree
to these terms and conditions.
During the summer, a petition was circulated among
the employees, seeking to oust the Union as the employ-
ees' bargaining representative. The General Counsel al-
leges that Quality Control Manager Henry Wade 4 had
solicited employees to sign that petition and, further, that
employees Jose Chavez Robles and Dallas Coad had
acted as agents of Respondent, within the meaning of
Section 2(13) of the Act, in threatening employees with
discharge if they did not sign the petition. On July 17,
maintenance machine repairman George J. Kohout s filed
the petition in Case 21-RD-1548, seeking an election to
decertify the Union as the bargaining representative of
the employees in the above-described bargaining unit.
However. the certification year had not expired." Ac-
cordingly, the petition was initially dismissed on August
3, but the dismissal was withdrawn on the following day
when a withdrawal request was received from Kohout.
In September, Murphy held two sets of meetings with
the employees. The complaint alleges that, at these meet-
ings, Murphy had promised benefits to induce the em-
ployees to abandon the Union and had threatened em-
ployees with discharge or immediate and permanent re-
placement if they engaged in a strike against Respondent.
During September, another petition was circulated
among the employees. The complaint alleges that Emilio
Ibarra and Francisco Adame had been supervisors within
the meaning of Section 2(11) of the Act. 7 It further al-
leges that they and employee Efrain Escobedo, allegedly
an agent of Respondent, had solicited employees to sign
the petition, had promised benefits to employees if they
would do so, and had threatened them with termination
if they refused to do so. A majority of the unit employ-
ees signed the petition and it was submitted to Murphy
during the morning of September 21.
Thereafter, Respondent withdrew recognition from
the Union and refused to bargain with it further. In fact,
on September 21, Murphy convened a set of employee
meetings to, at least, advise the employees that he had
received the petition earlier that day. A few days later,
he convened a second set of meetings to announce the
institution of various benefits now that the Union was no
longer the recognized representative. By memorandum,
dated September 29, Respondent confirmed the list of
benefits which Murphy had announced orally: immediate
20-cent-per-hour wage increase, effective October 5; an
additional 20-cent raise effective January 1, 1979; shift
4 It is admitted that, at all times material. Wade had been a supervisor
and agent of Respondent
I There is no contention that Kohout had been either a supersvisor or
an agent of Respondent
" See Ray BrooAs . L R. B.348 U S 9 ( 154)
Respondent denies the agency slatus of these tIo emplosees and of
Robles and Coad as well
I 12 DECISIONS OF NATIONAL. LABOR REL.ATIONS BO()ARD
premium increases to 15 and 20 cents for second and
third shift, respectively, employees; improved medical
and hospitalization coverage, effective October 1; a sav-
ings and investment plan; a retirement and pension plan,
retroactive for prior service to September 1971, and rec-
ognition of the day before New Year's Day as an addi-
tional holiday. The complaint alleges that by withdraw-
ing recognition, by refusing to continue bargaining with
the Union, and by unilaterally instituting new benefits,
Respondent violated Section 8(a)(5) and (1) of the Act.
However, there is no allegation nor contention that these
benfits had differed, in any respect, from those that Re-
spondent had been offering to the Union during negotia-
tions.
Finally, there are two alleged violations of Section
8(a)(1) of the Act not directly connected to the circula-
tions of the petitions. The first is an allegation that on
September 27, Murphy, Die Casting Department Super-
intendent Bill Mueller, and Die Casting Supervisor
Hobert Robison8 had interrogated die caster John Ham-
ilton Taylor about his union activities and had threatened
him with termination for engaging in union activities.
Second, it is alleged that on June 4, 1979, Respondent's
counsel had advised Bashaw that she need not respond
to a subpoena ad testificandum issued at the request of
counsel for the General Counsel.
B. The June Meetings
It is undisputed that on two occasions during the
month of June Murphy had held three employee meet-
ings: two for day-shift employees and a third meeting for
the second-shift employees. According to Murphy, these
meetings had been devoted exclusively to a description
of what had been occurring during the negotiating meet-
ings. Only Delgado and Arturo Sanchez Rivera were
called as witnesses by the General Counsel to describe
what had been said by Murphy during these meetings.
Neither remembered the date in June of the meeting that
he described and they had attended different meetings.
Sanchez, a day-shift employee, testified that he had at-
tended a meeting at which Ibarra had served as Mur-
phy's translator. According to Sanchez, Murphy had said
that the employees did not need the Union to take their
money and reduce their paychecks, that he did not want
anything taken from the employees' paychecks, and that,
if the employees would "help him to get rid of the
Union, he will promise us insurance, dental insurance,
materinity [sic] insurance and they will have better bene-
fits without the need of the Union."
On direct examination, Delgado, a second-shift em-
ployee, testified that, at a meeting conducted at approxi-
mately 3:30 p.m., charts describing Respondent's benefits
had been distributed and Murphy had explained these
benefits, saying "[t]hat it would not be convenient for
the Union to go to the company because the company
benefits were better than the Union ones." On cross-ex-
amination, Delgado conceded that in a pretrial affidavit
he had acknowledged that Ibarra, translating for
Murphy, had said that the purpose for having the meet-
' It is admitted that, at all times material, Mueller and Robison had
been supervisors and agents of Respondent.
ing was to tell the employees about the negotiations, that
Respondent had had talks with the Union, that Respond-
ent had told the Union that it did not want the latter to
be able to take money for dues from the employees'
checks, and that during negotiations, Respondent and the
Union had compared their medical plans with Respond-
ent's proposed plan proving to be superior. By contrast,
Sanchez testified that he did not recall Murphy, through
Ibarra, having said that the purpose of the meeting was
to keep the employees informed as to what had been
happening at the negotiating meetings and he denied that
Murphy had said that the benefits described had been of-
fered to the Union during negotiations.
Respondent produced three witnesses who described
what had been said during the June meetings: Murphy,
Ibarra, and Robison. In testifying about the two sets of
three meetings in June, Murphy displayed virtually a
total lack of recollection as to what he had said to the
employees. Thus, while he denied having promised
better benefits if the employees would help Respondent
by getting rid of the Union, denied having told the em-
ployees that Respondent did not need a Union, denied
having said that employees would receive the same bene-
fits without having to pay the Union, and denied having
said that the employees did not need a union to take
their money, he testified that "I honestly don't recall
what I said in the first meeting," adding that he had
merely repeated what had been reported to him as
having occurred during negotiations. 9
He did agree, when questioned specifically about these
matters, that he had mentioned a wage figure of 20 cents
an hour immediately, had discussed "some improved
benefits, but I can't recall exactly what if [sic] was . . ."
had described what the comparison made during negotia-
tions between the Union's and Respondent's proposed
pension plans disclosed,' ° and had told the employees
about the Union's demands: "It was just benefits, in-
creased benefits and a pension plan and wages and I be-
lieve it was more money for-as a shift differential for
the second shift and third shift." He also testified that he
had told the employees that the Union had threatened
"to strike over some disagreement" and that the Union
had been told that "if they would strike that we would
replace people on a permanent basis and the people that
we would replace them with would have a right to stay
as long as they wanted to. If these people did quit, then
we would bring back the other people on a seniority
basis for the job that they were on."
Ibarra testified that he had been the translator for most
of Murphy's June meetings and that he had carried out
this function as accurately as possible, both at these June
meetings and at later meetings where he had served as
Murphy's interpreter. With respect to the words spoken,
Ibarra testified that Murphy "was just reporting on the
negotiations with the union, let [sic] us know what was
9 Mueller had conducted the negotiations for Respondent, and Murphy
had not attended the negotiating sessions.
'° Murphy testified that to explain the comparison to the employees,
"somebody from corporate [sic]" had been brought in. He was the only
witness to so testify and no one was called to testify that he or she had
attended the meeting to explain the comparison.
PEAT MANUFACTURING COMPANY 1121
going on in the different meetings that he was having
with the union." He further testified that Murphy had re-
ported "the offers he made to the unions," and that no
agreement had been reached "because the union wanted
to deduct union dues from their checks and that is some-
thing that he didn't want to do." Like Murphy, Ibarra
testified that statements had been made about the possi-
bility of a strike. Asked specifically, during direct exami-
nation, what Murphy had said would happen to the em-
ployees if they went out on strike, Ibarra testified: "He
just told them that they were going to be replaced and
that people that took the jobs are going to have a job
permanent and they didn't-they were not going to get
their job back."
Robison testified that he had attended all of the meet-
ings conducted by Murphy during June. At the first set
of meetings, testified Robison, Murphy had told the em-
ployees that he intended to inform them of what had
been occurring at the negotiating sessions because they
had expressed a lack of knowledge about the substance
of the negotiations, and that Murphy had then described
the proposals made during the negotiations by each side.
Further, he testified that "there wasn't much difference
between the first set of meetings and the second set of
meetings .. . ." However, he also testified that at one of
the sets of meetings, Murphy had raised the topic of
strikes, telling the employees that the Union had threat-
ened a strike and that Respondent had told the Union
that, if one occurred, "they would replace strikers and
that the replacement[s] would keep the job as long as
they wanted it, and that the strikers would be on a [pref-
erential] hire list." He denied that Murphy had promised
better benefits to the employees if they helped to get rid
of the Union, denied that Murphy had said that the em-
ployees did not need a union, denied that Murphy had
promised to provide the same benefits if the employees
did not have a union, denied that Murphy had asked the
employees to abandon the Union, and denied that
Murphy had said that he wanted to negotiate with the
employees inasmuch as he was not able to negotiate with
the Union. However, he conceded that, due to the press
of other commitments, he had been "in and out of' the
afternoon session of the first set of meetings, as well as at
least some of the second set of meetings.
C. The September Meetings
It is undisputed that throughout the summer Murphy
had continued the meetings with employees following
each of the negotiating sessions. As discussed in greater
detail, infra, in September, another petition was circulat-
ed, among the employees, for the object of terminating
the Union's representative status. On September 21, that
petition was brought to Murphy by a three-employee
delegation. After having the signatures verified against
Respondent's records of employee signatures, Murphy
convened a set of meetings with the employees that same
day. Again, in testifying about these meetings, Murphy
displayed a lack of complete recollection as to every-
thing that he had said. However, he testified that he did
recall having told the employees that Respondent had re-
ceived a petition signed by a majority of the employees.
that the signatures had proven to be valid, and that Re-
spondent's counsel "had told us what we could do about
the letter and so on and we were doing it." Murphy tes-
tified that there had been a question asked regarding
raises, but that he had replied that he could not answer
the question at that time and would get back to the em-
ployees when he could supply one. A few days later, he
testified, after having conferred with counsel, he had
conducted another set of employee meetings at which he
had announced that Respondent was implementing the
benefits described in section 111, A, supra.
Both Adame and Ibarra translated for Murphy, each,
of course, at separate meetings. Adame testified that at
the September 21 meetings Murphy had said "that he re-
ceived a petition signed by the majority of the employees
and that that petition consisted of removing the Union
from the Company and he said that that he had directed
himself to someone in Government and he said that after
that they had stopped negotiations with the union."
Ibarra testified that Murphy had "just told the people
that a group of employees went to see him with a peti-
tion that they didn't want the union, or something like
that, and he said that all the people wanted-don't-they
want the union, that he didn't have nothing to do with
the union from that day on." All that Ibarra recalled of
the second set of meetings was that Murphy had "said he
was going to give us the raise that he was negotiating
with the union and the one that he offered for January,"
and that "[t]here were questions, all kinds of questions
about insurance and vacations and all that." With regard
to the second set of meetings, Adame testified that
Murphy had explained about a medical plan, about a
choice of "three medical insurances" that would be of-
fered to the employees, and that more details would be
furnished during the coming week.
Robison was the only other witness called by Re-
spondent to describe what had been said to the employ-
ees during these September meetings. He testified that at
the first set of meetings, Murphy had said that he had re-
ceived the petition, that he had checked the signatures,
that he would have to get legal counsel to "see where he
stood with it" and that he would get back to the employ-
ees once he ascertained his position. Robison also testi-
fied that employees had asked questions regarding raises
and benefits, but that Murphy had made no promises,
other than to say that "he would have to get back."
During the following week, testified Robison, Murphy
held a second set of meetings. At the first of these three
meetings, the only one during which Robison had been
present for the entire meeting, he testified that Murphy
had announced that a letter had been sent to the Union,
breaking off negotiations, that Respondent would no
longer recognize the Union, and that Respondent would
be implementing its proposal to the Union by giving the
employees a 20-cent-per-hour immediate raise, another
20-cent-per-hour raise in January 1979, medical benefits
that included maternity care, a savings plan, a pension
program, and increased shift-differential premiums.
The General Counsel presented six witnesses who de-
scribed what Murphy had said during these meetings.
Because of the evident confusion in their accounts of his
remarks and inasmuch as it was evident that some of
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them were describing at least one additional, earlier
meeting conducted by Murphy, it is necessary to de-
scribe the testimony of each, as to what Murphy had
said, in detail.
Production worker, Corine Bodkin, testified that at the
first meeting, which she placed as having occurred
during the early part of the third week of September and
before the petition had been proferred to her, Murphy
had said that he was trying to get the employees an im-
mediate 20-cent raise and another 20-cent raise at the be-
ginning of the year, a savings plan, an extra holiday on
the day before New Year's Day, higher maternity bene-
fits, and a pension plan retroactive for 7 years. However,
Bodkin denied that Murphy had said that he was telling
the employees what had been said at the bargaining table
and she denied that he had said that these had been pro-
posals made to the Union during negotiations. She fur-
ther testified that Murphy had said that if the employees
went on strike, they "could be immediately replaced and
permanently terminated."" She denied that Murphy had
said anything about the Union having threatened to take
the employees out on strike and denied that Murphy had
said anything about placing replaced strikers on a prefer-
ential hiring list.
The second September meeting, testified Bodkin, had
occurred later that same week when Murphy had an-
nounced that the employees would be receiving the
benefits which he enumerated. She testified that she had
asked if this announcement "meant that the Union didn't
get in" but that she had not gotten an answer. On cross-
examination, she testified that she did not recall Murphy
having said that he had received a petition from the em-
ployees indicating that they wanted to throw the Union
out, nor did she recall him having said that he was going
to send a letter to the Union indicating that it would no
longer be recognized due to the contrary wishes of a ma-
jority of the employees. She did ecall him having men-
tioned sending a letter to the Union, but "that it was
going to state what they were going to offer us and that
the Wayne Company was agreeing to have the pension
plan retroactive to 1971."
Inspector Bashaw testified that at the September 21
meeting, Murphy had said that "he had good news for
us, that he had a petition that he had filed and he hadn't
had to negotiate with the Union any more"; that he had
not known about the petition until that morning but that
a majority of the employees had signed it and that he
had "mailed it off'; and that he had been trying to get a
pension plan that he had been working on even before
the Union, but that he could not promise anything yet
and would let the employees know at another meeting
that he would soon convene. She further testified that
she could not remember Murphy saying anything during
this meeting about the Union having threatened to strike.
However, she recalled that at a meeting in August
Murphy had mentioned that the Union had threatened a
strike and that Respondent had told the Union that, if it
" Asked on cross-examination if she comprehended the difference be-
tween replacement and termination, Hodkin testified that "immediately
replaced means if we had been on strike, they would have somebody take
over the strikers' position and terminated to me is being fired and perma-
nently means forever to me."
did, the strikers would be replaced permanently. Accord-
ing to Bashaw, employees had also asked questions as to
what would happen if they went on strike and, during
the August meeting, Murphy had responded that "if any
of the employees were out on strike, he would immedi-
ately replace us permanently."'2 Bashaw denied that, at
any of the meetings, Murphy had promised benefits to
the employees if they would forego representation by the
Union, denied that Murphy had asked the employees to
abandon the Union, and denied that Murphy had ever
threatened the employees with termination for engaging
in union activities. At the second September meeting,
testified Bashaw, Murphy had announced that Respond-
ent was instituting the benefits.
Production employee Manuel Esquivel Gomez de-
scribed three meetings conducted by Murphy. The first,
he testified, had occurred in late August or early Sep-
tember, in the morning. At this meeting, testified Esqui-
vel on direct examination, Murphy had said, through
Ibarra as translator, that he would offer better benefits
than the Union. However, while he listed the benefits
that Murphy had then enumerated, there is neither a
contention nor evidence to support a contention that the
benefits which he had listed had differed from those
being offered to the Union during the negotiations. Ac-
cording to Esquivel, when Murphy was asked when the
employees would receive these benefits, he had replied
that "when the Union stopped negotiating with him, then
he would give us those benefits" and that "we would
have to get the Union out, that is what I recall now.""
Esquivel also testified that Murphy had said that the
Union only wanted to get the employees' money, but
that "he was never going to accept that" and that "who-
ever wanted [the] Union could pay for it out of his
pocket."
On cross-examination, Esquivel acknowledged that
Murphy had started the meeting by saying that the rea-
sons for having it was that a lot of employees had been
asking about what had been happening at the negotiating
meetings and that he wanted to tell them. Further, he
agreed that Murphy had stated "that everything he was
telling [the employees] is what the company had told the
union at the negotiating meeting ... " and what "the
union told the company at the negotiating meeting
...." According to Esquivel's testimony on cross-ex-
amination, Murphy had continued by saying that during
negotiations Respondent had compared its benefits with
those being offered by the Union and that it had told the
Union that it was offering better benefits than the Union
had proposed. He agreed that Murphy had said that
during negotiations Respondent had offered the employ-
ees a 20-cent raise and a better pension, but that the
Union had said that it wanted to deduct union dues from
the employees' paycheck and that Respondent had taken
12 ashawr testified that the Union had held a meeting to take a strike
vote among the employees.
: Esquivel testified a one point, that he had not understood Mur-
phy's words to mean that employees would obtain these benefits when
negotiations were completed. as opposed to) broken off. However, he
agreed that Murphy had never asked the employees to give up the Union
and, at another point. that Murphy had said that he could riot give any of
the benefits until the negotiations "stopped "
PEAT MANUFACTURING COMPANY 1123
the position that it did not want to do so. since "whoev-
er wanted the union could pay it out of his pocket, that
he was never going to accept that of taking the money
from us to pay the union."Esquivel testified that he did
not recall Murphy having said that Respondent had
made this latter, quoted, remark to the Union during ne-
gotiations. However, he agreed that Murphy had said
that Respondent had told the Union "that those employ-
ees that wanted to pay the union dues could pay it on
their own out of their own pockets."
The second meeting described by Esquivel occurred,
according to his testimony, in mid-September, at approxi-
mately 3:30 or 4 p.m., with Adame serving as Murphy's
interpreter. At the meeting, testified Esquivel, Murphy
had said:
That this morning a group of employees had
gone before him to his office with a petition signed
by all the employees of the company to get the
Union out of negotiations with the company and
that he immediately called the labor office to tell
them that since he had that petition, from that
moment he would not recognize any employee of
the Union to go before him and that we were going
to get the benefits that he had offered us and that
he would give us more details as soon as he had
more information.
That in this case, the Union could do three
things.
One was stop negotiating with him, another one,
was to call us to strike, another one was to sue the
company, but that this did not worry him because
he was doing things according to the law.
* * $ * *
That if the Union called us to strike, that those of
us who would go out on strike, he was going to
stop all the benefits that we had and those of us that
did not, not to worry because with him the job was
for sure and those that went out on strike wanted to
do something to them, he was going to use police
force to protect them.
That is what I recall of this meeting.
On cross-examination, Esquivel denied that Murphy
had said that he had checked to verify the authenticity
of the signatures, denied that Murphy had said anything
about sending a letter to the Union about the petition,
and denied that Murphy had said that there might be a
problem under Federal labor laws if Respondent contin-
ued negotiating with a union that did not represent a ma-
jority of the employees. He also denied that anyone had
asked a question as to when the employees would be get-
ting benefits and that Murphy had promised any in-
creased benefits. Further, he agreed that Murphy had
said that he could not promise the employees anything,
but would just have to let them know whenever he
knew anything and would hold another meeting to "give
us more information when he had it."
Esquivel testified that a third meeting had been con-
ducted approximately a seek after the second meeting.
At that meeting, testified Esquivel, Murphy had said that
he had news that the employees were going to receive a
pay raise and that the second-shift employees would re-
ceive a 25-cent raise. Esquivel testified that at this meet-
ing, Murphy had said that there were three things that
the Union could do: "just go away or perhaps to call a
strike as they had threatened to do with the negotiating
meetings or to go to the Labor Board to file a lawsuit, a
legal suit .... " However, he denied that Murphy had
said that, if the Union filed a lawsuit, Respondent would
go to court and fight it and while he agreed that Murphy
had said something about replacing strikers should the
Union call a strike. he was unable to recall what words
Murphy had spoken with regard to that subject. He did,
however, recall Murphy having said that strikers would
not be eligible for unemployment insurance.
Salvador Arizaga testified about only one meeting.
which he agreed had occurred on September 21. '4 On
direct examination, he testified only that, at this meeting,
"[t]hey were discussing different things about the pen-
sion, about the raises that we would receive if the Union
wasn't voted in and how we would get our raises during
every six months, stuff like that." On cross-examination,
however, Arizaga testified that "I was translating to one
of the workers there, that is why I didn't catch every-
thing as I was explaining it to this guy next [sic] to me, I
was explaining to him." After claiming that Murphy had
said that "if the Union wasn't representing us, that we
would receive 20 cents every six months." Arizaga then
testified that he could not recall if Murphy had said that
the 20 cents every months had been offered to the
Union and that, if the Union agreed to it, it would be
given to the employees. He further testified that Murphy
had compared the pension plan being offered by Re-
spondent during negotiations with the pension plan being
proposed by the Union. Arizaga agreed that Murphy had
mentioned a savings plan which Respondent had pro-
posed to the Union and, further, that employees ho
went on strike would be "replaced with different work-
ers."
Maria Trinidad Peinado described two meetings. The
first occurred in August, when, with Adame translating,
Murphy had said that he had proposed to the Union that
the employees get better benefits and that the Union had
said that it wanted dues paid by deductions from em-
ployees' paychecks. The second meeting, testified Pein-
ado, had occurred on September 26, at 3:30 p.m., when
Adame, acting as Murphy's interpretor, had said that Re-
spondent was going to give the employees "20 cents
more in a half a year, at the end of the year and the
night shift he will give 15 cents more;" that Respondent
was going to give $500 to "ladies that were going to
have a baby"; and, that "he didn't want that they will
m4 Arizaga was unable to recall ho. cloe the time had been httweenl
A hen he had attended this meeting and " hen he had seen the pettiton
circulated i September
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take from the [sic] employees money from the employ-
ees' checks, the Union."' 5
Murphy denied that, during the September meetings,
he had told the employees that if they helped get rid of
the union that he would promise them better plans or
benefits of any kind, had said "We do not need a union,"
or had said that he would give the same benefits without
paying union dues.
D. The Circulation of the Petitions
Maintenance machine repairman George J. Kohout
testified that he had circulated two petitions opposing
the continued representative status of the Union: one in
July and another in late August or September. He testi-
fied that he had decided to circulate the July petition be-
cause of his dissatisfaction with the manner in which the
Union had conducted the meeting at which the strike
vote had been taken: "Well, everybody was drinking and
I guess some of the people didn't even know what was
going on." He testified that he had prepared the first pe-
tition-which bears the legend, in English and Spanish,
"The following Employees petition the NLRB to hold
an election to throw the union out of Peat Mfg. Co."-
with the assistance of his wife, who had taken a course
in Spanish for high school credit.' 6 He and Dallas Coad
had circulated the petition among the employees. Once
he had obtained what he believed to be a sufficient
number of signatures, Kohout made a copy of the peti-
tion and had sent that copy, along with a letter explain-
ing what he had done, to Murphy. On July 17, the origi-
nal was taken by Coad and Kohout to Region 21 of the
Board where it was filed in support of the decertification
petition in Case 21-RD-1548, discussed in section III, A,
supra. 7
According to Kohout and Coad, the Board agent with
whom they had spoken at the Regional Office had told
them that the form of the petition had been defective in
is When initially asked what had been said by Murphy at this meeting,
Peinado responded: "I don't remember." Thereafter, Peinado's descrip-
tion of what Murphy had said was given in response to counsel's sugges-
tion of various subjects.131Delgado described three meetings. One he
placed in July or August, at 3:30 p.m., with Adame serving as translator.
At that meeting, testified Delgado, Murphy had said that he was having
talks with the Union and that the parties had been unable to reach agree-
ment because the Union's demands had been too high. Delgado testified
that at a meeting on September 21 or 22, Murphy had said that he had
received a petition signed by a big majority of the employees indicating
that they wanted to get rid of the Union and that a letter had gone to a
labor office which had stated "that the union had nothing to do there."
Finally, Delgado described a meeting at which Adame had translated and
at which Murphy had listed the benefits that the employees had been re-
ceiving. Delgado also had listed the benefits that the employees had been
receiving. Delgado also testified that Murphy had thanked the employees
"for waiving the Union." Asked on cross-examination if Murphy had told
the employees that the pay raises were the same as Respondent had al-
ready offered several times to the Union in negotiations, Delgado replied.
"What I recall is that he did talk about that, and I do recall it even more
because he gave it to us"
i' However, Kohout testified that the Spanish legend on the last page
of the petition had been written out by employee Lorraine Stowell.
There is no contention that Stowell had been either a supervisor or an
agent of Respondent.
17 Kohout testified that his lunch period as one-hour in length. How-
ever, he acknowledged having been gone from the plant to the Board's
office, from 11:30 am. until 3:30 p.m. He testified that he had not re-
ceived a warning notice for having been gone for such a prolonged
period and, so far as the record discloses, neither did Coad.
that it failed to separate the signatures of Spanish-speak-
ing from English-speaking employees, and, additionally,
in that it failed to have the English and Spanish legends
on the same pages. The agent promised to send Kohout
some forms, which was done later, and, both Kohout
and Coad testified, said that if Kohout decided to pre-
pare and circulate another petition, Kohout "could either
bring it back there or give it to management." Kohout
did decide to prepare a second petition. He testified that
it had been his wife who had written out the legends, in
English and Spanish, that appear on the petitions that
were circulated. ' Over the course of approximately a 1-
week period, Kohout and Coad circulated the second pe-
tition during, they testified, break and lunch periods on
the day shift. In addition, on at least one evening,
Kohout came to the plant and circulated the petition
among second-shift employees.
On the morning of September 21, Kohout and Coad,
accompanied by employee Dale Dody who served, ac-
cording to Coad, as a "witness," took the petition to
Murphy, asking the latter if he would "step in and do
something about it." Murphy testified that he had agreed
to "take it and check it out and let them know." He fur-
ther testified that the three employees had then departed
immediately, after which he had directed a personnel
employee to verify the signatures on the petition and
then had telephoned his counsel. A set of meetings was
then conducted with the employees, as discussed in sec-
tion III, B, supra, and Mueller signed a letter to the
Union, stating that, based on the petition, Respondent
"will not continue to recognize your labor organization
as the collective bargaining representative of our em-
ployees and we will no longer continue to meet with you
in negotiations so as to comply with the wishes of a ma-
jority of our employees."
Several employees called by the General Counsel testi-
fied concerning the solicitation of their signatures on the
petitions. Sanchez described four such solicitations to
sign the earlier of the two petitions. He placed each of
them as having occurred in June. The first occasion, tes-
tified Sanchez, occurred approximately 6 days after the
meeting that he had attended at which Murphy had ad-
dressed the employees, supra. According to Sanchez,
Quality Control Manager Wade had approached, as San-
chez was working at his machine, and had said, "Sign
this. You have to sign to get rid of the Union." Howev-
er, testified Sanchez, he had refused to sign the petition,
saying "that the election had passed and that it was a
free election and I had already given my vote," after
which Wade had merely walked away.' 9
Is This petition consists of six sheets of half legal-size paper. Three of
these sheets contain only legends, in English and Spanish, regarding the
purpose of the petition and only the signatures appear on the remaining
three sheets.
1 Although Sanchez testified that Wade had not given him the peti-
tion, he testified that Wade had been carrying a white piece of paper
Sanchez also testified that Wade had spoken to him in English and that
Wade had spoken to him (Sanchez) many times in English about work-
related matters. But, Wade testified that, other than perfunctory remarks
such as "good morning," he had always spoken to Sanchez through an
interpreter, normally Robles. Wade denied specifically having told San-
chez "Sign this, you have to sign it to get rid of the union," and denied
Con rinued
PEAT MANUFACTURING COMPANY 1125
The second June conversation, concerning the petition
described by Sanchez, was with an employee named
George, whose last name Sanchez did not recall, but
whom he described as being a mechanic. He placed this
conversation as having occurred approximately 2 days
after Wade's purported demand and testified that George
had said "that I had to sign to get rid of the Union, be-
cause, if I did not sign, he was going to give the papers
to the office and that the office will know that fi[sic] did
not sign, they were going to fire us." 2
0 However, San-
chez did not sign the petition. One or 2 days later, testi-
fied Sanchez, Robles had approached where Sanchez
was working and had said that Sanchez must sign the
paper to get rid of the Union or to get the Union out.
According to Sanchez, when he declined to do so,
Robles had said that if Sanchez did not sign, he (Robles)
was going to take the sheet of paper to the office and
"the old man was going to be mad" and "they were
going to fire us." 21
The fourth conversation about signing a petition
which Sanchez described was introduced during cross-
examination. Sanchez testified that this had occurred
after his conversation with Robles and that an elderly
man, who could have been Coad, had told him to sign a
petition. According to Sanchez, the man said that if he
did not sign it "we were going to be fired." 2 2
Three employees testified to requests by Coad to sign
a petition during July. Arizaga testified that Coad "asked
me if I would sign petition to have the Union voted out
and I stated now [sic], I didn't want to and while he was
walking away he said that a lot of people would be out
jobs and that is all he said to me." Bashaw testified that
Coad had asked if she were ready to sign the paper now
and when she asked him what paper, he said the paper to
vote or revote for the Union. According to Bashaw, she
declined to sign the petition, saying that she wanted to
attend "one more company meeting and one more Union
meeting." 23 Esquivel testified to two requests made by
Coad during July. On the first occasion, while he had
been working, testified Esquivel, Coad had asked if he
that Sanchez had ever said that the election had passed and he was free
and had already given his vote. He further denied having participated in
any conversation with Sanchez about a petition to get rid of the Union
and in any conversation with Sanchez about the Union generally.
20 Sanchez testified that George had spoken to him in English While
he also testified initially that George had been carrying a single white
sheet of paper at the time, he acknowledged, in a pretrial affidavit, that
he may have said that George had "many" white papers with him
2 Sanchez denied specifically that the piece of paper Robles had been
holding had been yellow, testifying that it had been white. However, he
also testified, first, that he could not be certain that it had been the peti-
tion that Robles had been holding and, later, that it had been the paper
that Robles had been holding which Robles had directed him to sign, but
that "I don't know whether it was a paper for the Union."
22 Sanchez testified that the man had a piece of paper in his hand, but
did not recall if it had been white or yellow He vacillated concerning
whether the man had said that the petition was to get rid of the Union.
Thus, initially he testified that the man "did not tell me it was a petition
to take the Union out." Then, when asked if, therefore, he had been
asked to sign something that had not been explained to him, Sanchez tes-
tified, "I know it was for the Union, because he told me, but he did not
show me anything," adding that "he told me" it was to get the Union
out.
23 On direct examination, she testified that she had been working when
Coad had approached her. but on cross-examination she testified that
Coad had spoken to he "outside of my work station "
wanted to sign a petition to get the Union out. Esquivel
testified that he had refused and that Coad had left. Es-
quivel testified that approximately 2 weeks later, Coad
had returned, pointing out that Esquivel had not wanted
to sign before and asking if he now wanted to do so. 2 4
Three employees testified about the circulation of the
petition in September. Bodkin testified that later during
the same day as Murphy's first September speech, Coad
had approached her as she was working at her machine
and had asked if she wanted to sign a petition. When, as
Bodkin testified, she had asked what the petition was for,
Coad had said that it was for a revote for the Union. Ac-
cording to Bodkin, she had pointed out that she had
never voted for the Union, having commenced working
at Respondent only 2 months earlier, and Coad had re-
plied that this posed no problem, since the petition
"would give all the new workers a chance to vote one
way or another .... " Bodkin then signed. 25
Peinado testified that she had twice been requested to
sign a petition: On the first occasion, she testified, she
had been working at her machine when Adame, Esco-
bedo, and a third man, whose name she did not know
but who was blond, had approached. According to Pein-
ado, Adame "told me to sign that piece of paper, that
that was not going to create any problem in my
work." 2 6 She testified that she had declined to do so.
Later that same evening, Peinado testified, Adame, again
accompanied by Escobedo and the third man, asked her
to sign the petition and this time she had done so. Ac-
cording to Peinado, the petition had been handed to her
by the third man. Then, testified Peinado, Adame had
said, "As long as Mr. Delgodo doesn't know because he
is going to fire us all." 2 7 Peinado testified that this
second encounter had occurred near the ladies' wash-
room in the production area of building 1, as opposed to
the similar area in the high pressure aluminum building,
denominated building 3. She further testified that other
workers had told her that it was a petition to get rid of
the Union and that they had urged her to sign it.
Esquivel described two requests to sign the petition
made to him by Escobedo and a third request made by
24 Esquivel testified that Coad had spoken to him in English and that
the paper being passed around at that time had been yellow.
2. Initially, Bodkin testified that she had signed only one petition on
the second page, and that her signature had been the 15th or 18th signa-
ture from the top. She further testified that both that page and the first
page, on which she claimed that there were 30 to 35 signatures. had con-
tained only signatures, without any legend being written thereon, and
that coworker Carol Walker had signed immediately before or after she
(Bodkin) had signed Then she was shown a copy of what had been in-
troduced as the September petition. Bodkin identified her signature there-
on. However, the signature that she identified appeared as the second
from the top and her only explanation was that she recalled the page that
she had signed as having been a full legal-size page, rather than the half-
page sheets comprising the petition that is in evidence. Yet, the signature
purporting to be that of Carol Walker appears in an entirely separate
column of the page that bears Bodkin's signature and the latter was
unable to explain this discrepancy between her testimony and the peti-
tion. She also agreed that a petition concerning the lunch truck had been
circulated among the employees.
20 On cross-examination, Peinado testified that this latter remark, about
not creating problems, had been made during the second conversation
27 As noted above, Delgado had heen a leading proponent of the
Union and he testified that no one had ever offered a petition to him for
his signature
1126h I)ECISIONS OF NA I()NAI. IA()R REI.ATI()NS B()ARI)
Adame. He testified that a few days after he had trans-
ferred to the second shift, Escobedo had come to the
machine where Esquivel had been working in building 1.
Escobedo, according to Esquivel, had asked if the latter
"wanted to sign the petition to get the Union out of the
company" and Esquivel had replied that he had already
signed. Esquivel testified that Escobedo had left and
gone nearby to where a mechanic named George, whose
last name Esquivel did not know, had been standing and
that George had looked through some papers, saying
something to Escobedo. Then, testified Esquivel, Esco-
bedo had returned, saying that George had said that Es-
quivel had not signed. Esquivel testified that he had said
that he did not want to sign and that Escobedo had said
that "it would be better for me to sign or else I would be
fired and I said it was all right, I will not sign."2 8 Ac-
cording to Esquivel, Escobedo had also said that Esqui-
vel should sign "so I could get the benefits that Mr.
Murphy was offering." Esquivel testified that Escobedo
and George had then gone to a small room, the mainte-
nance room in building 1, where they had cleared a
workbench and on which they had placed the petition.
Then, testified Esquivel, George had remained in that
room while Adame and Escobedo had begun calling em-
ployees to that room. 2 9
Later that evening, testified Esquivel, Adame had
come to the former's workplace and had asked if Esqui-
vel wanted to sign George's petition to get the Union
out of Respondent. Esquivel testified that when he had
declined to do so, Adame had asked "why not," adding
that if the employees signed they could get the benefits
that Murphy had talked about in the meetings. Again,
Esquivel declined, pointing out that, in his opinion, the
benefits that the Union could get for the employees
would be better than what Respondent was offering. Ac-
cording to Esquivel, Adame then had said that while he
had never worked with union benefits, as far as he was
concerned, the Union was no good because it would not
help when it was needed as shown by the fact that the
:r Esquivel denied that scobedo had said that he had heard that
anyone that did not sign the petition would be fired and he testified than
while there had beel a rumor to that effect, the rumor had not starled
until after the signatures had een solicited While he acknowledged that
he had not seen the petition too closely, Esquivel testified that it ap-
peared to have been on yellow paper He conceded that around the slame
time, there had also been a petition, on white paper, circulated coincern-
ing the lunch truck that had been brought to him. for his signature, bh
Adame and Escohedo iHe testified that they had said if enough signa-
tures were obtained the petition would be given to Mueller
29 On direct examination. Esquivel testified that "Escobedo and
Adame were calling the people to sign the paper there." He named fise
employees (Raul Galvez. Jesus Aldape, Ignacio Galvez, Mary Lou Pern-
ado, and Rita Pinado) whom he recalled as having gone to the room
However, he conceded that he could not recall what had been said to
these employees and, on cross-examination, he admitted that he had not
seen Adanle bringing the workers to ne room, Rather, he had "fiound
out through conversation with the other employees." While the signla-
tures of Aldape, Maria L. Peinado, and Raul Galvez appear in the same
column within six signatures of each other, on the petition submitted as
the one that had heen circulated in September, none of them nor any
other employee was called by the General Counsel to testify concerning
whether they had signed in the maintenance room, nor concerning the
circumstances under which they had signed the petition. Nor was any ex-
planation advanced fir failing to call witnesses who would have been
able to testify (on the basis of first-hand knowledge as to what had toc-
curred in that room that night
Union had failed to help his wife get her job back when
she had been fired. : ' Esquivel testified that Adame had
continued by saying that the Union just wanted to take
the employees' money and that, by signing to get the
Union out, the employees could get the benefits that
Murphy was offering and, in the future, more benefits
could be obtained from Murphy. without having to pay
dues, by conducting another organizing campaign, as
shown by what had happened "once before [when] we
had tried to get another union in and they gave us a 15
cent raise and then they did not want to bring the union
in." 3 Esquivel denied specifically that he had asked
Adame about the purpose of the petition that George
had been circulating, denied specifically having asked
Adame if the employees had to sign the petition, and
denied specifically that it had been other employees,
rather than Adame, that had told him that he had to sign
the petition to get the benefits.
As set forth above, three employees-Sanchez. Pein-
ado, and Esquivel-testified to solicitations to sign peti-
tions involving Kohout. The latter testified that the idea
to circulate the petitions had been his own and that he
had not been asked to do so, nor discussed doing so,
with anyone from management, including supervisors.
Only Coad, testified Kohout, had aided in the circulation
of the petitions. Kohout denied ever having asked Esco-
bedo to translate for him with respect to the circulation
of the petitions. He further testified that while occasion-
ally he had to have someone in the plant translate for
employees who spoke exclusively Spanish, for the most
part the Spanish-speaking employees had been willing to
sign the petitions and had done so, without the need for
conversation, after having read the legends.
With regard to Peinado, Kohout testified that he had
never approached any employee at his or her machine to
solicit his or her signature. He denied that he had ever
accompanied Adame and Escobedo in approaching an
employee where Adame had asked that employee to sign
the petition. He did not recall having even taken a signa-
ture from a female employee outside the women's res-
troom.
Respecting Esquivel's account, Kohout testified that
on one evening he had returned to the plant and that
while there he had encountered Adame and Escobedo,
together, and had taken their signatures.:t ' He acknowl-
edged that, while there that evening, he had gone into
the maintenance shop in building 1, where he had spent
approximately 20 minutes collecting signatures. Although
he denied having asked Adame and Escobedo to assist
him in obtaining signatures, he conceded that "[t]hey
told me that they have a few more fellows that were in-
terested and there were some women, too, and they
:"' Esquivel testified that Mrs Adame had been fired by Respondent
for punching someone else's imecard. Adame denied that he had even
been married during the 7-year period prior to the hearing.
:" Esquivel testified that this had referred to an organizing drive, ap-
parently by another labor organization, that had preceded the Union's
1977 campaign leading to its certification as the representative of Re-
spondent's employees.
:` Examination of the petition introduced as the September petition,
discloses that Adame's and Escobedo's signatures appear, oie right after
the ither, on the second page of the signatures
PEAI MANUFACTURING COMP'ANY\ 1127
came in . . ."3, although he denied that Adame had said
specifically that he intended to send people in to sign the
petition. Kohout denied that there had ever been an in-
stance where an employee had claimed to have signed
the petition. It was then discovered that that employee
had not done so, and that the employee's failure to have
signed was then pointed out to that employee.
Only Sanchez described an incident when, as discussed
above, Robles had purportedly solicited a signature on
one of the petitions-in this case, the July petition.
Robles testified that he had signed the July petition, at
Kohout's request, but he denied that Kohout had asked
for help in circulating the petition and he denied ever
having circulated the petition. Further, Robles denied
ever having spoken to Sanchez about the petition, denied
ever having asked Sanchez to sign it, denied ever saying
that if Sanchez did not sign a petition, his name would
not be on the petition and the old man or boss would fire
him, denied even referring to say of his superiors as "the
old man," and denied ever saying that Sanchez would be
punished in any way if his name was not on the petition.
As described above, five employees--Sanchez, Ari-
zaga, Bashaw, Esquivel, and Bodkin described solicita-
tions for signatures on the petition by Coad. Like
Kohout, Coad testified that only the two of them had
participated in securing signatures on the petitions. He
denied having been asked to circulate the petition by
anyone in management, denied having been told to circu-
late the petitions by anyone in management, denied
having been promised any kind of pay increase or bene-
fits for circulating the petitions, and denied that he had
discussed the petitions with anyone in management. He
testified that the petitions had generally been circulated
during break and lunch periods and, also, after work.
With respect to what he had said to employees, Coad
gave no specific testimony, one vway or the other, con-
cerning what he had purportedly said to Esquivel and he
was unable to recall the identities of either Sanchez or
Arizaga. However, he did deny having told any employ-
ee in September that he had a petition to vote the Union
out, having said that an employee might be discharged
for not signing the petition, having ever said to any em-
ployee that some people might lose their jobs if the peti-
tion was not signed, and having said, "A lot of people
will be without jobs." He acknowledged having solicited
Bodkin's signature in Carol Walker's presence. He testi-
fied that he had explained to her "that we wanted to get
the union out of Peat Manufacturing and asked her if she
wanted to sign the Petition." After, testified Coad,
Bodkin had examined "both the pages" of the petition,
she had signed it and he then had asked Walker if she
wanted to sign, but the latter had "just walked away."
Coad denied that he had told Bodkin that the September
petition was to get a revote and he denied that Walker
had signed the petition at the same time as Bodkin.
Rather, Coad testified that later that day, he had again
asked Walker if she wanted to sign and- that she had
done so at that time.
:" Shortly after giving this tetlimons Kohoul then testified that nei-
ther Adame nor Escobedo had said thai there cre other people that
they wanted to hase sIgn the petition
Coad also agreed that in September he had spoken to
Bashaw about signing the petition then being circulated,
in the presence of Edna Murphy, an employee who is
General Manager Murphy's daughter-in-law. He testified
that he had merely told them that he had a petition "'to
get the union out of Peat Manufacturing and would they
sign it." According to Coad, Bashaw had refused. He
denied having said that the petition was to vote for the
Union.
Consistent with Kohout's testimony regarding the sub-
ject, Escobedo testified that he and Adame had signed
the second petition in the parking lot. around 8 p.m., at
Kohout's request that they do so "to get the union
out."3 4 Escobedo testified that immediately thereafter.
he and Adame had gone directly to building 3 where
they had spent 3 or 3-1/2 hours working on a machine.
However, he admitted that Adame had left that building
twice, first at approximately 8:20 p.m. for 4 or 5 minutes
and again at approximately 10 p.m. for 10 minutes to get
tools. He denied that, during the course of that evening,
he had asked Peinado to sign a petition to get rid of the
Union, denied having heard Adame make such a request
of Peinado, denied ever having heard Adame tell Pein-
ado to sign a petition to get rid of the Union and that it
would not create any problems in her work, denied that
on any night either he or Adame had asked Peinado to
sign a petition to get rid of the Union, denied having
translated for Kohout to make such a request of Peinado,
denied having asked Esquivel to sign such a petition
either on that night or on any other night, denied having
translated for Kohout to make such a request of Esqui-
vel, denied that Esquivel had said that he had already
signed the petition, denied having said that Equivel
should sign a petition to get rid of the Union to get the
benefits that Murphy' was offering the employees, denied
having said that it would be better for Esquivel to sign
the petition to get rid of the Union or he would be fired,
denied haxing told Esquivel that he would be fired or
punished in any way, and denied that Esquivel ever had
said that he did not want to sign the petition and that he
did not care if he got fired. In addition, Escobedo denied
that he had gone into the maintenance shop in building I
on the night that he had signed the petition, denied that
he had cleaned off the workbench for Kohout, denied
that he had seen Kohout there on any night, denied that
Kohout had ever asked that employees be sent to the
maintenance shop, denied having asked employees to see
Kohout in the maintenence shop and, in essence, denied
having ever heard Adame solicit Esquivel or any other
employee to sign the petition.
Two employees, Peinado and Esquivel, testified that
Adame had asked them to sign the September petition.
Adame denied having asked any employee to sign a peti-
tion pertaining to the Union, denied ever telling employ-
ees that they might lose their jobs if they did not sign
such a petition, denied ever serving as the translator for
such a threat as well as for anybody circulating such a
petition, denied ever having talked to Peinado about the
"4 Escobedo estified that the petition Ihat he had signed had con,istled
of a stngle sheet f ellsr, paper that 'r a fiall ize-that i. 8-1 ,4 hb 13-
I/2 in size
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition, denied ever having seen Kohout or Escobedo
talking to her about the petition, denied having told
Peinado that it was okay to sign the petition so long as
Delgado did not learn of it as he would "fire us all,"
denied being present at any time when Escobedo told an
employee that he or she would get fired for not signing a
petition concerning the Union, and denied ever seeing
Escobedo circulate a petition. Like Escobedo, Adame
testified that the two of them had signed Kohout's peti-
tion in the parking lot, but then continued on to building
3 to work on a machine and had remained occupied with
that task for the next 3 to 3-1/2 hours. Adame also testi-
fied that he hed left building 3 for tools on two occa-
sions, although he placed these trips at 8:15 p.m. for ap-
proximately 10 minutes, and again at 8:40 or 8:45 p.m.
On both occasions, testified Adame, he had gone to
Building 1, but not into the maintenance shop. Accord-
ing to Adame, he had walked through that building on
his first trip, but the maintenance shop had been empty
when he had passed by it on his second trip. He denied
ever having served as a translator for Kohout and denied
that either he or Escobedo had called employees from
their work stations to sign a petition for Kohout.
Adame further testified that during the course of his
second trip through building 1 that night, Esquivel had
inquired what the petition that Kohout had been circu-
lating was for. In response, Adame testified that he had
explained that it had been "a petition to [get] the union
out of the company." According to Adame, Esquivel
had then asked if everybody had to sign that petition,
and I said no, it didn't have to be signed if they didn't
want to." When, testified Adame, Esquivel had then
asked if he had to sign the petition, Adame replied that
Esquivel did not have to do so "but that it depended on
what decision he would take .... " Adame testified that
this had been his only conversation with Esquivel about
the Union or the petition. He denied ever telling Esqui-
vel that the Union was no good and denied ever having
told Esquivel that the Union was no good because of its
failure to secure reemployment of Adame's wife. He also
denied having told Esquivel to sign a petition to get the
company benefits, having said that if Esquivel signed a
petition to get rid of the Union then he would get com-
pany benefits, and having said that, if employees once
got the Union out, they could later seek to unionize as a
device for obtaining added benefits from Respondent.
E. The Supervisory Status of Adame
The General Counsel contends that at all times materi-
al, Francisco Adame had been both a supervisor and
agent of Respondent. Respondent denies both allegations.
Adame works on the second shift in department 50, the
high pressure die cast aluminum department. Both he
and Supervisor Robison, Adame's immediate superior,
testified that it had been Robison who had directly su-
pervised employees in that department during the
summer and fall, when the alleged unfair labor practices
had occurred. In this regard, Robison testified that he
normally had not been staying at the plant for the entire-
ty of the swing shift, which lasts from 3:30 p.m. to 1
a.m., but rather normally had been going home between
5 and 6 p.m.: 5 However, he also testified that "the start
of the shift is always the hardest part of the shift" after
which things run pretty much by themselves, that he had
prepared a daily list of which machines were to be oper-
ated by each of the employees, that these lists also in-
cluded two or three extra machines to which employees
were to be transferred in the event that their own ma-
chines broke down, that he lived a distance of approxi-
mately 5 minutes' driving time from the plant, and that
he is telephoned in the event that problems arise during
the remainder of the swing shift, after he has left. In fact,
Robison testified that from June through September, he
had received an average of two such calls per week and
had returned to the plant for from I to 4 hours "depend-
ing on what was wrong the reason I was called in."
Both Adame and Robison denied, in essence, that the
former had possessed the power to exercise independent
judgment in carrying out supervisory responsibilities.
They agreed that he had not been assigned to operate
machines in department 50, as were the employees who
worked there. However, they testified that Adame's job
was essentially that of a troubleshooter: setting up, ad-
justing, cleaning, checking, and making minor repairs on
the machines in the department. To counter this testimo-
ny the General Counsel elicited descriptions of Adame's
activities from three employees. The first was Maria
Peinado. She claimed that Lorraine Stowell was the su-
pervisor of department 50 and that Adame had replaced
Stowell during the latter's absences. She gave no testi-
mony regarding the frequency or regularity with which
Adame had assertedly filled in for Stowell. No other wit-
nesses corroborated her testimony in this regard. She
claimed that she had received two disciplinary notices,
one of which had been signed by Robison and the other
signed by Adame. Her testimony in this respect was con-
tradicted both by her own pretrial affidavit, in which she
stated that both had been signed by Robison, and by the
two warning notices presented at the hearing, which she
acknowledged having been the only ones that she had
received. Neither was signed by Adame. No evidence
was presented to show that Adame had played any role
in the decision to give her these notices.
The other two witnesses who were called upon by the
General Counsel to give testimony regarding Adame's
duties were Delgado and Esquivel. Each of them testi-
fied to a series of actions by Adame which led them to
characterize him as their supervisor. Most of these mat-
ters turned out to be routine in nature, either by virtue of
their own testimony on cross-examination or by virtue of
the undisputed explanations advanced by Robison and
Adame. For example, Esquivel testified that he thought
Adame had possessed authority to hire employees be-
cause the latter had once asked if Esquivel knew of
anyone who "needed the work." Adame agreed that he
had once inquired if the employees knew of anyone who
would be interested in working for Respondent. Howev-
er, he testified that he had done so in response to Robi-
son's inquiry as to whether the employees knew of
anyone who wanted to work at Respondent. Indeed, Es-
:' On Saturdays, the swing shift works from 2 to 10:30 p.m. and Robi-
son remained at the plant until 5 or 5:30.
PEAT MANUFACTURING COMPANY 1129
quivel conceded, consistently with Robison's testimony,
that Respondent's employees frequently suggested the
names of persons who might like to work there, that he
had done so, and that most of the employees in his de-
partment had gotten their jobs because someone already
working there had suggested their names. Adame testi-
fied that while he had made approximately five recom-
mendations that applicants be hired, these people had to
be interviewed by either Mueller or Robison, and only
approximately two of the five that he recommended had
ultimately been hired.
Similarly both Delgado and Esquivel testified that
they had sought Adame's permission whenever they
wanted to leave work early. However, Adame testified
that he had no authority to deny such a request and fur-
ther testified that he had never done so. Indeed, Delgado
agreed that everyone in his department who had ever
said that they wanted to go home because of illness had
simply told someone else in the department of their
intent and had left. There is no evidence that Adame had
ever prevented an employee from doing so. In a like
vein, while Delgado testified that he had always asked
Adame whenever he (Delgado) wanted to be absent for
a day or two, he equivocated, during cross-examination,
when confronted with his pretrial affidavit in which he
had stated that whenever he had made such requests
Adame would later return and then tell him whether
permission had been granted. Delgado agreed that when-
ever he had wanted to take a vacation, he had asked
Adame to ask Robison, in English, if Delgado could do
so and that Adame then had reported back what Robi-
son's response had been.
This matter of translation arose in another context.
Both Esquivel and Delgado testified that they had gone
to Adame whenever they discovered what they believed
to be errors in their paychecks. The checks are comput-
ed on the basis of production reports by Helen Montag,
who speaks only English. There is no evidence that,
upon receiving such requests, Adame had done anything
other than report the employee's complaint to Montag
and relay Montag's explanation to the employee.
Esquivel claimed that he had regularly asked Adame
about the machine on which he was to work. Yet, on
cross-examination, he conceded that "I would remain
two or three weeks on one machine, then I would be
changed to another one." Thus, under his own descrip-
tion, this could not have been a regular occurrence. In
fact, Adame agreed that Esquivel had repeatedly asked,
at the beginning of shifts, on which machine he was to
work.36 Both Adame and Robison, as noted above, testi-
fied that the assignments of employees to machines had
been prepared daily by Robison. Esquivel denied that
this list had been posted everyday. But, this denial was
contradicted by Delgado who agreed that employees
checked the lists everyday to ascertain where they were
supposed to go.
On direct examination, both Delgado and Esquivel
claimed that they had been transferred to other ma-
chines, during the course of their shift, by Adame. This
36 Adame testified that it had not been necessary for Esquivel to ask
about his assignments.
was not disputed. However, as also noted above, both
Robison and Adame testified that, extra machines had
been listed on the daily lists prepared by Robison. It had
been to those machines that employees had been trans-
ferred whenever there was need to make a mid-shift
change. Thus, for example, Adame testified that, when
machines break down, he either tells the employees as-
signed to those machines to transfer to the highest alter-
native machines on Robison's lists or, if that is not possi-
ble, "I call Bob Robison to ask him which other machine
they need to run and he tells me which machine to run.
If we don't have a machine to run, the operator helps me
on that machine." Essentially, Delgado confirmed this
testimony. For, he agreed that the daily lists also enu-
merated certain machines not assigned to any particular
employee scheduled to work: "on the list that just has
the numbers, it has no names, and that is the way it
stays. When one is changed, just order one size before to
the No. I or another machine since there are more." He
also agreed that he had said in his pretrial affidavit that
when he had been changed from one machine to an-
other, the latter was usually on the list. Obviously, if it
had not been on the list, Delgado would have had no
way of knowing whether or not Adame, as he claimed,
had telephoned Robison regarding reassignment. There is
no evidence, however, that even tended to contradict
Adame in this respect.
Other than the ultimately self-contradictory testimony
of Peinado, the only other testimony regarding assertedly
disciplinary acts by Adame was that of Esquivel. On
direct examination, he claimed that twice Adame had ac-
cused him of being careless with his work, adding "that I
should pay more attention, that if I did not want to
work, there were more people that wanted to work."
Initially, it should be noted that Esquivel later conceded
that in a pretrial affidavit, he had said that this had only
happened on one occasion. He also admitted that he had
never received a written warning from Adame, although
he had received written warnings from undisputed super-
visors, such as Robison and Day Shift Supervisor J. O.
Tuttle. Additionally, like other experienced employees,
Adame is responsible for training new and inexperienced
employees when they commence work in department 50.
Esquivel admitted that following his transfer to the de-
partment, he had been considered to be a trainee as he
had never before operated the die cast machine located
there. Initially, he claimed that Adame had not been re-
sponsible for training him, testifying that he had been
paired with Manuel Carrillo for training. Later, howev-
er, he testified that Carrillo had "just helped me the first
two days when I was new," and that it had been he (Es-
quivel) who had gone to Adame frequently to ask for
help in running his machine. In fact, he conceded that it
was one of Adame's jobs to help trainees who are signed
up with somebody more experienced and, further, that of
all the experienced employees on the shift, only Adame
and Escobedo, who is not alleged to be a supervisor, had
been willing to come to his machine to help him.
At the end of the shift, Adame is responsible for pre-
paring a daily production report. According to Robison,
that report "has columns for the hours, down time, ma-
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chine time, production, total good ones, total bad ones,
total production." However, so far as the record dis-
closes, this report is compiled from reports made to
Adame by other persons, such as the hourly production
reports submitted by Stowell and the job cards submitted
by the employees. There is no evidence that these re-
ports constitute Adame's evaluation of the work of em-
ployees in the department. While Adame is paid more
than other employees in department 50, it is undisputed
that, like the employees in that department, he is hourly
paid, punches a timeclock, and is docked for reporting
late for work. Robison denied that Adame had an office.
Adame is paid on the same day, enjoys the same fringe
benefits, and uses the same bathroom, lunch areas, and
parking lots as other employees in the department. He
does not attend supervisors' meetings, even though there
have been occasions when such meetings have been con-
ducted at times when Adame has been present at the
plant.
All three of the Generel Counsel's witnesses testified
about a late September meeting of the employees in the
department that Adame had called. Peinado testified that
he had said that he did not want the employees to tell
him their problems and that they should, instead, take
them directly to the front office. Esquivel testified that
Adame had covered two topics at the meeting. First, he
had said that he was having problems repairing the ma-
chines because the dies were not kept clean enough "and
that the office wanted the employees to clean the dies
after every 2 hours of work with them. Secondly, testi-
fied Esquivel, Adame had said that the employees had
been involving him in a lot of personal problems "and
that he only had a salary and a lot of work and besides
that problems with us, that he was foreman, mechanic,
electrician and besides that he helped us to repair the
machines and that he was going to ask for help for an-
other person at the office at the work that he had be-
cause there was a lot of it and that the problems-and to
take our problems to the office and not to him any-
more." All Delgado recalled was that Adame had "told
us he had received an order to clean the dies and that all
problems we had would be taken to the office because
he was not in charge."
Adame testified that he had conducted the meeting be-
cause Mueller and Robison had instructed him to again
remind the employees that the dies should be cleaned
after every 2 hours of use.37 As he was short of time
that evening, testified Adame, he had taken advantage of
the fact that the employees were in one area, on their
break, to remind them of their responsibility for keeping
the dies clean:
I told them that I didn't actually know what my
job was because I had to work in maintenance, I
had to put in my dies, run machines, fix the boilers,
"a Adame testified that Mueller and Robison had previously told him
to so instruct the employees. Esquivel confirmed that on prior occasions
Adame had reminded the employees to keep the dies clean, although he
testified that on only one occasion had he said specifically that it had
been Robison who wanted the dies kept clean. Delgado testified that
Stowell, as well, had reminded the employees that they were to keep the
dies clean
and clean dies, make boxes, so the truth was I didn't
know which was my job.
That I was having problems with the boilers and
I told them if they help me work in cooperation to-
gether, that the work would be easier for them and
for me
And I told them that they wanted the molds, the
dies cleaned every two hours and if they didn't
clean them the one that didn't clean them was
going to get a paper from Bill Mueller and Bob
Robison.
And I also told them about the spray tanks, not
to move them, that they had already been told and
I told them that in the spray guns they could learn
to do it because they had already seen how you
take them apart when they are clocked, but if they
did have a problem to call me or Efrain.
Even if we were busy that they should call us.
The same thing with the machines.
If they have a problem with the machine that
they think the machine is not right, they should call
us and we would be happy to go and help them.
If they had a problem with a part that wasn't
coming out right to do the best they could and not
to have fights with the inspectors because they also
try to do the work the best that they can.
And I also told them in problems that refer to
the machines, to the metal, the water lines, we
would be happy to help them because it is part of
our job.
And I also told them that if they had problems
with one person or another that I could not help
them, that the best thing that they could do if they
had complaints against someone that they could go
and talk to Bill Mueller and Bob Robison or go di-
rectly to the office.
Adame denied having said that he was their foreman and
denied having said anything about being salaried. He tes-
tified that there had been arguments among certain of
the employees3 8 and that he was always being asked to
intervene. However, he testified, "I can't do anything
and so I told them what they should do is go directly to
the office, that would be the solution to make things
right."
F. The Status of Coad, Escobedo, Robles, and Ibarra
Dallas Coad commenced working for Respondent as a
janitor and later began driving a truck, making minor
pickups and deliveries. 3 9 During a conversation with
Bashaw and Edna Murphy-Bashaw placed it in June
and Coad testified that it had occurred in October-
Coad made a remark implying, at least, that another em-
38 This testimony by Adame tended to be confirmed by the testimony
of the General Counsel's witnesses.
39 This record is not clear as to when Coad had begun driving the
truck. At one point he testified that this had occurred in October. Later
he testified that he had already been assigned to drive the truck by the
time that he had circulated the September petition. Then he testified that
he had not been driving at any time befoire he had circulated the peti-
tions Finally, he testified that he had been assigned to drive the truck in
1977
PEAT MANUFACTURING COMPANY I 1131
ployee had been hired to work for him as a janitor.
Bashaw claimed that Coad had said that he was "in
charge" of that employee, but Coad denied specifically
having made that remark. She further testified that there-
after she had observed Coad showing the newly hired
janitor "where he cleaned and where the stuff was to
clean with and different things like that." Coad agreed
that he had done this, but testified that he had only done
so once, for about a half an hour, when the man had first
started working for Respondent. While Bashaw testified
that the newly hired janitor had reported to Coad, she
was unable to recall how many times or the dates on
which she had seen Coad giving him instructions. Coad
denied being in charge of the janitor and testified that he
had reported to Mueller. The only other testimony re-
garding Coad's relation to Respondent was that he and
Murphy had belonged to the same Moose lodge. Both of
them denied having discussed the petitions that Coad had
circulated at lodge meetings.
Efrain Escobedo, like Adame, serves as a trouble-
shooter on the swing shift, changing molds, fixing ma-
chines, running machines, and helping to train inexperi-
enced employees. He also is bilingual and, thus, serves as
a translator when exclusively English-speaking personnel
and those who speak only Spanish want to communicate
with each other.
Jose Chavez Robles works in the low-pressure depart-
ment where the employees are supervised by Henry
Wade. Sanchez, the only employee called upon by the
General Counsel to describe Robles' activities, testified
that Wade and Robles were in charge of the work in
that department, that Robles was foreman, and that
Robles "would change us from one machine to the other
and tell us what we had to do." Robles, in effect, con-
ceded that this had been the fact. However, both he and
Wade testified that the latter had used Robles as an inter-
preter for Wade's communications to employees with re-
spect to such matters as transfers to different machines.
Robles testified, without contradiction, that Wade had
made lists of the machines on which the employees were
to work, would call Robles to tell him what the employ-
ees had to do, and "I am the only one that speaks a little
bit of English and I tell them that to do or what they
have to do."40 Sanchez also testified that Robles had an-
swered employees' questions regarding their work, but
acknowledged that Robles was an experienced employee
in that department.
Very sparse testimony was elicited regarding Emilio
Ibarra, whom the General Counsel amended the com-
plaint to allege to be a supervisor, within the meaning of
Section 2(11) of the Act, and an agent of Respondent.
These allegations were denied by Respondent. Sanchez
testified that Ibarra had given him orders when he had
worked in the department: "He would just simply give
me orders to do what I had to do. " Esquivel testified
generally that Ibarra had performed the same duties on
the day shift as Adame had performed on the night shift
and had fixed machines in the same manner as had
Adame. Ibarra testified that he had worked for Respond-
ent for 15 years, had worked on the day shift from June
40 Robison testified that Robles' and Adame's job, were similar
to December, and had translated "[o]nce in a while" for
people.
G. The September Comments to Taylor
Die caster John Hamilton Taylor testified that on Sep-
tember 27. he hed been summoned to an office where, in
the presence of Mueller and Robison, Murphy had said
that he had heard that Taylor had been passing out
union authorization cards during working time. Taylor
testified that he had denied having done so and that
Murphy had said that he had heard that Taylor was
doing so and that "What you do on lunch hour is your
business, but while we are paying you to inspect the ma-
chine at the machine, I want you doing that and only
that." According to Taylor, Murphy had also said that
he "could fire your ass right now for passing union
cards." Asked if Murphy had mentioned a pension plan,
Taylor testified that Murphy had "said we had this pen-
sion plan all ready for you and all this, and the Union is
holding it up." Asked if Murphy had mentioned anything
about a petition being circulated, Taylor testified that
Murphy had "said the Petition was to stop the Union
from coming in, no revote, or something like that," and
that "he had a lot of employees sign it." According to
Taylor, Murphy had also said that if there w.as a revote
for the Union, "he would take it to court and fight it as
long as he possibly could."
As its witnesses to this conversation, Respondent
called Murphy, Mueller, and Robison. Each of them
denied specifically that the foregoing remarks had been
made by Murphy during the conversation with Taylor.
Murphy agreed that the conversation had occurred, but
he testified that it had been occasioned by reports that he
had received from Tuttle4 that Taylor had been ob-
served "on three occasions roaming around the plant
away from his work station." 42 According to Murphy,
Taylor's immediate supervisor, Wade, had been absent
that day and as Murphy was Wade's immediate supervi-
sor, he had summoned Taylor to the office, along with
Mueller and Robison. 43 Murphy testified that:
I told him it had been reported to me on three
occasions and that Bob Robison was one of the wit-
nesses, that he had been goofing off and away from
his work station.
And that in our rules of conduct, why that was
grounds for either an oral or a written reprimand
and I wanted him to understand that I was giving
him an oral reprimand for it, in the absence of
Henry Wade and that I wanted him to get on his
station and stay on it and unless he was excused for
some good reason.
'' Murphy claimed that Tuttle had reported that Robhison also had obh-
served Taylor away from his machine. However. Tuttle was never callcd
to corroborate Murphy's testimony and no explanation was advanced fir
failing to call him Moreover, though Robison was called by Respondent.
he did not confirm Murphy's claim that he Rohison) had seen Taylor
away from his machine that day.
42 Taylor denied specifically having been aay from his machine hat
day more than normally had been the case.
4' Murphy did not explain wh 5 he had failed to call Tuttle, ho had
assertedl) been the source of the report and had purporiedl 5 obered
most of Taylor's "roaning." to the office
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Murphy, Taylor had admitted having
been away from his work station and the meeting had
concluded. Taylor denied specifically that he had been
admonished for having been away from his machine too
often and denied that the subject had been raised during
the meeting, although he readily agreed that he did not
recall everything that had been said during that meeting.
He also testified that he had possessed authorization
cards and the record discloses that the Union had made
an effort to secure authorization cards as a vehicle for re-
futing the petition given to Respondent.
Both Robison and Mueller testified concerning what
had occurred at the meeting. Initially, Robison agreed
that the meeting had been conducted in the fall, but he
did not recall the date. Later, he testified that it had oc-
curred in the early summer. All he recalled of the meet-
ing was that Murphy had said that he had found out that
Taylor had been "too long and too frequently off his
work area .... " Mueller testified that the meeting had
occurred in September and that Murphy had said that it
had been reported to him that Taylor had been away
from his work station several times that morning, that
Respondent's rules prohibited employees from being
away from their work stations44 and that as Taylor's su-
pervisor was not there he (Murphy) was warning him
not to repeat this conduct.
H. The Prehearing Remark to Bashaw Concerning
Her Subpena
Bashaw testified that when she had received the Gen-
eral Counsel's subpena to appear at the hearing in this
matter, she had not wanted to comply and had ques-
tioned Edna Murphy about whether she had to do so.
Both of them had made efforts to ascertain what would
happen if Bashaw ignored the subpena, but they were
unsuccessful and apparently Edna Murphy had then
gone to Respondent's officials to inquire regarding the
matter. During the afternoon of June 4, Bashaw was
summoned to the office and was introduced to Respond-
ent's counsel. She testified that when she had asked if she
had to appear, counsel had told her "that he didn't think
it would be important, but if I did, I wouldn't get in
trouble from the company in any way, but he was not
telling me not to appear." She further testified that when
she had asked if she would get in trouble for not appear-
ing, counsel had replied that "he didn't think so, unless it
went to a higher court and then I might get in trouble
for not appearing on that subpoena." 4 5 She further testi-
fied that Robison, who had been present, had volun-
teered that he also had gotten a subpena, and, while he
did not want to go, figured that he had best appear.
'4 No evidence regarding the existence of such a rule was produced by
Respondent.
"5 In a pretrial affidavit, taken by Respondent's counsel, Bashaw stated
that two or three times she had asked "What can they do to me for not
going to the hearing--I got a subpoena from the NLRB but I do not
want to go. what can they do to me? Further. she stated that counsel had
told her that "he was not aware of anything that could be done to me
unless the subpoena was enforced by the District Court but the Company
was not telling me not to go and was not discouraging and would not
punish me in any way for going to the hearing." She also stated that
"The conversation lasted approximately one or two minutes Other than
a little small talk, nothing else was said."
Though afforded the opportunity to do so, counsel
chose not to appear to describe his comments, although
he did make a statement describing the conversation. In-
stead, Mueller and Robison described what had been said
for Respondent. The former denied that counsel had said
that it was not important for Bashaw to go to the hear-
ing. He testified that Bashaw had said that she did not
want to appear pursuant to the subpena and had asked
"[w]hat can they do to me?" According to Mueller,
counsel had replied that he was not "aware what they
could do to her, but [he wasn't] telling her not to go and
the company wouldn't punish her if she did go." Mueller
also testified that Bashaw had "mentioned something
about it again "and that counsel's answer had been
"[b]asically the same" as his first answer. Like Mueller,
Robison denied that counsel had told Bashaw that her
appearance at the hearing was not important. He agreed
that counsel had said that he was unaware that anything
could be done to her unless the subpena was enforced by
the District Court, but that he was not telling her not to
appear and that Respondent would not purish her for
going.
IV. ANALYSIS
An overview of the allegations underlying Respond-
ent's withdrawal of recognition from the Union discloses
that disposition of that ultimate question depends on the
answer to three subsidiary questions. First, did Respond-
ent, specifically Murphy and his interpreters, expressly
offer employees better benefits if they withdrew their
support of the Union during the meetings conducted in
June through September? Second, did supervisors and
agents of Respondent participate in the circulation of the
petitions to, in effect, decertify the Union as the employ-
ees' bargaining representative? Finally, did Respondent
circumvent the Union as the employees' bargaining rep-
resentative, thereby creating a background in which the
circulation of the petitions had been tainted by unlawful
conduct? I find the answers to the first two questions to
be negative, but the answer to the third question is af-
firmative.
With respect to the first subsidiary question, the com-
plaint alleges that during meetings in June Respondent
had solicited employees to abandon their support of the
Union and had promised benefits to them if they would
do so. Only a single witness was called by the General
Counsel to testify in support of these allegations pertain-
ing to the June meetings. 4 6 That witness was Sanchez.
46 In his brief, the General Counsel argues that Delgado testimony that
Murphy had said "tlhat it would not be convenient for the Union to go
to the company because the company benefits were better than the Union
ones" constituted a statement "that there was no need for a union since
Respondent's benefits were better . ." Yet, I do not feel that such an
equation can be drawn in the circumstances of this case. Obviously, Del-
gado was paraphrasing what Murphy had said, with the result that the
latter's precise statement could have been any of a number of remarks.
For example, it is undisputed that Respondent's negotiator had told the
Union, during negotiations, that the benefits being offered by Respondent
were better than those being offered by the Union and, further, that these
remarks of Respondent's negotiator had been repeated to the employees
by Murphy during the course of his descriptions of what had been said
during the negotiations Moreosver, none of the credible accounts of Mur-
Continued
PEAT MANUFACTURING COMPANY 1133
Given the number of employees called by the General
Counsel to testify concerning Murphy's remarks at later
meetings, the fact that only a lone witness could be pro-
duced to support the allegations of promises and solicita-
tions to abandon the Union at the June meetings gives
rise to some suspicion concerning the extent of the Gen-
erel Counsel's ability to support those allegations. Yet, it
is the General Counsel who bears the burden of proof.
Moreover, Sanchez was not an impressive witness. Mur-
phy's assertion that he had convened these meetings in
response to employee questions regarding the status of
negotiations was confirmed by those employee witnesses
who were interrogated concerning the existence of em-
ployee questions concerning the negotiations. Indeed,
Delgado confirmed that, during the June meeting that he
had attended, Murphy had said that the purpose for con-
vening the meeting had been to advise the employees
about the negotiations. Sanchez testified that he simply
did not recall Murphy having made such a remark. 47
Moreover, Sanchez denied specifically that Murphy had
said that the benefits which he was describing had been
offered to the Union. Delgado, by contrast, conceded
that Murphy had described expressly what had been oc-
curring during negotiations.
Sanchez' testimony was also suspect in areas other
than his account of what had occurred at the June meet-
ing that he had attended. Thus, he claimed that both
Wade and George had spoken to him in English when
soliciting his signature on the July petition. Yet, in two
demonstrations during the hearing, Sanchez did not
appear to comprehend English sufficiently to be able to
understand the solicitations that he claimed had been
made to him in English. Moreover, of all the witnesses
who testified, he was the only one to place such solicita-
tions in June. He was also the only one to claim that
Wade had made such overtures, a claim which Wade
denied credibly. Moreover, the petitions being circulated
by Kohout were on yellow paper, whereas Sanchez de-
scribed white paper, which was used for the lunch truck
petition, as having been used for most of the solicitations
made to him. In sum, when he testified, Sanchez did not
impress me as being a reliable witness and a review of
the record of his testimony confirms that impression.
With regard to the later meetings, in August and Sep-
tember, the complaint alleges that Murphy had again
promised benefits to induce the employees to abandon
their support of the Union. Once again, in his brief, the
phy's remarks at the various meetings contained any description of his
having expressly appealed to the employees to abandon the Union. To
the contrary, Bashaw denied specifically that Murphy had made such ap-
peals at the meetings that she had attended and it is unlikely that Murphy
would have made such an appeal only at certain selected meetings, if, in
fact, he had been seeking to expressly dissuade employee support for the
Union. Therefore, I do not feel that the circumstances support equating
Delgado's description of Murphy's remark to one which expressed that
there was no need for a union because Respondent's benefits were better.
47 Of course, Sanchez and Delgado had attended different meetings in
June. Yet, there is no basis for inferring that Murphy had so tailored his
remarks that he had made certain statements in particular meetings that
he did not repeat in other meetings Indeed, given the apparent novelty
of such meetings in June and the credible evidence concerning the pur-
pose for convening them, it seems plausible that the one remark most
likely to be uniform at the June meetings would have been the statement
as to why they were being conducted: to describe what had been occur-
ring at the negotiations.
General Counsel relies on the testimony of but a single
witness to support that allegation: this time, Esquivel.
Specifically, the General Counsel points to the latter's
testimony that Murphy had said that he would offer
better benefits than the Union and that the employees
would receive these benefits "when the Union stopped
negotiating with him .... " At first blush this account
does portray Murphy as having offered more benefits to
the employees than had been offered to the Union and as
having offered to grant these benefits once the employ-
ees were shed of the Union. However, analysis is not a
two-dimensional process. At no point does the General
Counsel allege or argue that Respondent had offered
more to the employee in specific benefits than had been
offered to the Union during negotiations. 48 Further,
Peinado testified that Murphy had said, during an
August meeting, that he had proposed to the Union that
the employees receive better benefits. Consequently,
while Murphy did mention better benefits, it is not un-
likely that what Esquivel was describing was Murphy's
characterization of his offer to the Union and not an
offer made directly to the employees upon condition that
they forego further representation by the Union. Viewed
in this light, Murphy's remark regarding "when the
Union stopped negotiating" is equivocal. The General
Counsel argues that it had meant when the Union ceased
being the employees' representative. However, although
Esquivel denied as much, it could also have been that
the employees would receive better benefits when the
negotiations culminated.
Like Sanchez, Esquivel did not impress me as a reli-
able witness. He claimed that when Coad had solicited
his signature on the petition, Coad had spoken in Eng-
lish. Yet, there was no showing that Esquivel could suffi-
ciently understand English to have comprehended a so-
licitation in that language. He testified that Adame had
complained about the Union's failure to protest the dis-
charge of his wife. But, Adame had not been married for
7 years and the Union had represented Respondent's em-
ployees for not quite one year at the time of this purport-
ed conversation. No other witness or evidence supported
Esquivel's assertion that Respondent had ever discharged
Adame's wife. Further, his assertion that the lists of ma-
chines to which employees were assigned had not always
been posted was not corroborated by any other employ-
ee. His testimony that Adame had twice admonished him
for careless work was contradicted by his pretrial effida-
vit in which he had stated that this had occurred but
once. Most significantly, of the three employees who de-
scribed Adame's remarks during the September meeting
of departmental employees, only Esquivel claimed that
Adame had said that he was salaried and had described
himself as a "foreman." Most of the witnesses who ap-
peared in this proceeding appeared to be attempting to
testify honestly. Obviously, there was considerable con-
fusion in their accounts of what had occurred. However,
"' Obviously, the benefits offered by Respondent to the Union during
negotiations had represented more than the employees had been receiving
at the time. Moreover, it is undisputed that Respondent had told the
Union during negotiations that the benefits that it was offering were su-
perior to what the Union had been offering
---
1134 I)ECISIONS OF NATI()NAL LABOR RELAI'I)NS BO()ARI)
that confusion appeared, for the most part, to have arisen
from their impaired perception of events as they had
been occurring 4 " and from their lack of recollection as
to what had taken place.) But, it was my impression
that Esquivel was deliberately attempting to tailor his
testimony to portray Respondent in the most unfavorable
light and to buttress a case against Respondent. I do not
credit his testimony.
The application of the principle that an employer may,
without violating the Act, "Inform employees of the
status of negotiations, Procter & Gamble Manufacturing
Company, 160 NLRB 334, 340 (1966), will be explored
more fully infra. At this point, however, that principle is
not without application. Murphy testified that employees
had questioned what had been happening in the negotia-
tions. That testimony was confirmed by other testimony,
given by employee witnesses called by the General
Counsel. Murphy testified that he had told the employ-
ees, during the meetings, that he intended to describe for
them what had occurred during the negotiations. That,
too, was confirmed by Delgado and even by Esquivel.
Murphy testified that during the meetings he had com-
pared the benefits offered by the Union and by Respond-
ent. That testimony tended to be corroborated by Ari-
zaga, Esquivel, and Delgado. There is no evidence
that the benefits described by Murphy, as having been
offered by Respondent to the Union, had been better
than had actually been proposed by Respondent during
the negotiations. Murphy denied that he had expressly
asked the employees to forego representation by promis-
ing better benefits. That denial was confirmed by
Bashaw. In short, Murphy's description of his remarks at
these meetings, though general and, in light of his imper-
fect recollection, not complete, was corroborated in sig-
nificant respects by the employees called as witnesses by
the General Counsel.
To the extent that added statements were attributed to
Murphy by witnesses, these appeared to have resulted
from the less than perfect perceptions of these witnesses
when they had attended the meetings, their less than per-
fect recollection of what they had heard, and, in at least
one case, a conscious effort to cast Murphy's remarks in
"4 For example, at one poimt Salvador Arizaga testified that Murphy
had said, during one meeting, that the employees would receive 20-cent
increases every 6 months "if the Union wasn't representing us .
Yet. he freely acknowledged that he "didn't catch everything" that
Murphy had said "as I was explaining it to this guy next [sic] to me.
5o For example, asked what had been said by Murphy at the Septem-
ber 26 meeting. Peinado frankly conceded, "I don't remember." Similar-
ly, pressed on the point. Arizaga admitted that he simply did not recall
whether Murphy had said that the 20-cent increase every 6 months had
been offered to the Union and that it would be given to the Union if the
employees agreed to it. In a like vein, Bodkin did not recall Murphy
having mentioned the petition or the sending of a letter to the Union.
though she claimed to have attended both September meetings.
5' Bodkin denied that, at the first meeting in September that she had
attended, Murphy had said that he was describing proposals nlade to the
Union during negotiations. While I believed her to be an honest witness,
I do not believe that either her attention during the meetings or her rec-
ollection of what had been said are sufficiently reliable to credit her de-
nials concerning what had not been said. For example, she had no recol-
lection of Murphy's mentioning the petition received by the employees or
Respondent's intent to send a letter to the Union, even though it was
clear that the petition, at least. formed the background for what had tran-
spired at the last two meetings in September
an unlawful light. In this regard, it should be noted, that
as the two above-quoted bulletins show, Respondent ap-
pears to have had a tendency to refer to its offers as
being made to "you"-that is, to the employees. Of
course, in reality that is the fact: benefits, even in the
collective-bargaining context, and granted to and en-
joyed by the employees. Thus, even though Respond-
ent's proposals had been made to the Union, the benefits
proposed were being offered to the employees through
the Union as their representative. The point here is that
the use of "you" appears to have been misconstrued by
some of the employees who failed to appreciate that the
offers made in negotiations were, in the final analysis,
being made through the Union to them, the employees,
as opposed to being made directly to them in derogation
of the Union. Of course, the fact that employees may
have misconstrued Murphy's meaning is not the determi-
native factor. For, in determining whether an employer's
remarks violate Section 8(a)(l) of the Act, the test is one
which is objective, based on the natural tendency of the
employer's words and not on the subjective reaction or
understanding of the employee-listeners. See, e.g.,
Donald E. Hernler, Inc., 240 NLRB 840, 842 (1979), and
cases cited therein. Consequently, the fact that an em-
ployer states that "I offered you," rather than "I offered
the Union," specific benefits cannot, of itself, serve to
convert an otherwise unobjectionable description of ne-
gotiations into a violation of the Act, so long as it has
been made clear to the employees, as was the case here,
that the offers were made to "you" during negotiations
with the lawfully chosen representative of those employ-
ees.
Therefore, I find that a preponderance of the credible
evidence does not show that at these meetings, Respond-
ent attempted to persuade the employees to abandon the
Union nor that it offered them improved benefits if they
would forego their support of the Union.
With respect to the second subsidiary issue, there is no
direct evidence that Respondent had sponsored or assist-
ed Kohout and Coad in the circulation of the two peti-
tions, one in July and the other in September. Kohout is
not alleged to have been an agent of Respondent. Both
he and Coad testified that they, and they alone, had cir-
culated these petitions. In his brief, the General Counsel
argues that the document produced at the hearing as
being the petition did not correspond to the witnesses'
description of the petition that they had signed in Sep-
tember. Essentially, the suggestion is that the paper may
later have been cut in half and the legends changed.
Given the imperfection in witnesses' recollections in this
case, I find it difficult to concur in this argument by the
General Counsel. For example, while Bodkin was certain
that her signature had not been near the top of one page
of the petition, she was also certain that Carol Walker's
signature had been immediately before or after her own.
Yet, the petition page on which Bodkin's signature-
which she authenticated-appears bears the signature of
Walker in a totally separate column. In any event, this is
a question that need not be reached inasmuch as it is un-
disputed that a petition had been circulated, had been
signed by a majority of the employees, and had been
- -----
PE-Al ANiUFACI tRIN(i COMPANY 1135
given to Respondent. This would suppport a reasonably
based doubt by Respondent of the Union's continued ma-
jority. Absent a showing, more than is present here, that
Respondent knew or should reasonably have suspected
that the petition may have been altered, the fact that it
may later be discovered that there had been tampering
would not diminish Respondent's ability to assert its
doubt of the Union's majority status without violating
the Act.
Two of the employees, Esquivel and Peinado, testified
that their signatures had been solicited by Adame, whom
the General Counsel contends, contrary to Respondent,
had been both a supervisor and agent of Respondent.
Adame denied having done so. As found above, Esqui,. el
was not a credible witness. Moreover, as her warning
notice testimony discloses, Peinado's recollection was not
the most sturdy basis upon which to construct a finding.
Even, however, if he had done so, I would not find his
solicitations attributable to Respondent on a supervisory
basis, for I find that the evidence simply does not sup-
port the allegation that he had been a supervisor within
the meaning of Section 2(11) of the Act.
In advancing that allegation, the General Counsel
places heavy reliance on the fact that Robison had gone
home after the second shift had commenced. Yet, this
alone, is not determinative. For, the Board has not been
opposed to making a finding of employee status simply
because such a result would leave employees immediate-
ly unsupervised at their work location. See, e.g., Com-
mercial Fleet Wash, Inc., 190 NLRB 26 (1971); Highland
Telephone Cooperative, Inc., 192 NLRB 1057 (1971).
Moreover, the record shows that the employees in de-
partment 50 on the second shift are not simpy left to
their own devices. Rather Robison must be telephoned
whenever abnormal problems arise. It is undisputed that,
in response to such calls, Robison has regularly come to
the plant, for periods ranging from I to 4 hours, during
the second shift.
Here, Robison prepares a daily list assigning each
second-shift employee to a machine for his or her shift.
In the event that a machine breaks down or that an em-
ployee finishes his or her assigned work on a machine,
reassignment is made to another unassigned machine on
Robison's list-in the order in which Robison has listed
those unassigned machines. If no unassigned machines
are available, Adame then telephones Robison who
makes the decision as to where the employee should then
be assigned. In short, the record fails to show that
Adame exercises independent judgnent in the assignment
or reassignment of employees to the machines on which
they work. Any authority which he does exercise in
these areas appears to be "more clerical than supervi-
sory." N.L.R.B. v. St. Francis Hospital, 601 F.2d 404 (9th
Cir. 1979); see also Medicine Bow Coal Company, 217
NLRB 931, 938 (1975).
So far as the record discloses, Adame's purported abil-
ity to recommend employees for hire has been no greater
than that of other employees in the department. Indeed,
most of his recommendations in that respect have not
been followed. While on one occasion, he did inquire
whether the employees knew of anyone who would be
interested in working for Respondent, he did so in re-
sponse to Robison's inquiry and there is no evidence that
he exercised independent judgment in the matter. "Like-
wise, although [Adame] may permit an employee to go
home due to illness, there is no evidence that such ap-
proval is anything more than routine or that [he] has dis-
cretion to reject such requests." The Western Union Tele-
graph Company, 242 NLRB 825,827-828 (1979).
Peinado's testimony regarding Adame having signed
one of her discplinary notices ultimately when the two
notices which she had received were produced. Neither
had been signed by him. No other employee claimed that
he or she had received a disciplinary notice signed by
Adame. In fact, none of them ever claimed that they had
received such a notice as a result of action by Adame.
Esquivel claimed that he had been orally reprimanded by
Adame. However, absent some showing of impact on
employees, job status, which has not been shown here, it
is settled that verbal reprimands do not constitute "disci-
pline" within the meaning of Section 2(11) of the Act.
Commercial .1overs, Irc., 240 NLRB 288, 289 (1979);
Win. P. McDonald Corporation, 97 NLRB 1471. 1472, fn.
4 (1952). Further, it is noteworthy that Esquivel had
been a trainee in department 50 and that Adame, like
other experienced personnel, had been responsible for
helping Esquivel become proficient in operating the die
cast machines. Thus, criticism of Esquivel's work would
tend less to demonstrate supervisory responsibility by
Adame and would be more in the nature of a more expe-
rienced employee prodding a novice to exert greater
effort toward becoming proficient. In any event, there is
no evidence that Adame possessed authority to impose
nor to effectively recommend disciplinary action. John
Cunco of Oklahoma, 238 NLRB 1438, 1439 (1978).
While Adame is responsible for preparing daily pro-
duction reports, these are prepared on the basis of re-
ports prepared by others and submitted to Adame. There
is no evidence that he makes any recommendations on
these reports nor is there any evidence that he exercises
any discretion that would affect the status of employees
in the department by his preparation of these reports. So
far as the record discloses, this "is merely a routine cleri-
cal function, not necessarily indicative of supervisory
status." Id.
It is accurate that Adame did address a group of as-
sembled employees in September. However, no rebuttal
evidence was adduced to refute Adame's assertion that
this "meeting" had come about because the employees
had been already assembled in one area, on a break, and
that he had taken advantage of that assemblage to deliv-
er a message which he had been instructed to impart, in-
stead of approaching the employees individually as had
been his normal practice. The credible evidence of what
he had said during that meeting; i.e., the accounts of
Peinado and Delgado, show that he had admonished the
employees to perform certain work responsibilities, prin-
cipally to keep the dies clean. However, that admonition
had been consistent with what he testified that he had
been instructed to tell the employees. It was also the
type of routine direction which an employee in his posi-
tion, charged with making minor repairs to malfunction-
ing machines, could make without being characterized as
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a supervisor. See, e.g., N.L.R.B. v. Swift & Co., 240 F.2d
65, 66-67 (9th Cir. 1957). That he also has told the em-
ployees to take their problems "to the office because he
was not in charge" tends to reinforce Respondent's posi-
tion that Adame had not been a supervisor within the
meaning of Section 2(11) of the Act.
It is also accurate that Adame had handled employee
problems with their paychecks. However, both of the
witnesses who testified concerning this facet of Adame's
activities, Delgado and Esquivel, spoke predominantly
Spanish, whereas Montag, the women who computed the
paycheck figures, spoke no Spanish. Thus, someone was
needed to translate the problems to Montag and to then
relay her explanations to the employees. Adame had
been one of several persons on the second shift who was
bilingual and apparently his proficiency was such that he
was a preferred person for interpreting. There is no evi-
dence that he had made any recommendations to
Montag. So far as the record discloses, he had done no
more than communicate the employees' complaints to
Montag and had repeated her explanations to them when
he next encountered them. In other words, the record
shows no more than that his actions were routine and
did not involve the exercise of independent judgment
concerning any matter listed in Section 2(11) of the Act.
The issue of questions regarding paychecks points up a
particularly signficant facet of this case. Inasmuch as the
majority of Respondent's employees spoke primarily
Spanish and in view of the fact that Respondent's man-
agement officials spoke very little, if any, Spanish, inter-
preters were necessary for communication between
members of the two groups. Yet, this function does not
involve the exercise of discretion. To rely on it as the
basis for finding supervisory status would be contrary to
the express mandate of Section 2(11) of the Act which
requires the exercise of independent judgment for a su-
pervisory finding. Additionally, it would penalize bilin-
gual personnel, in an inviduously discriminatory manner
with respect to their ethnicity, for being bilingual, or de-
priving them of their employee status for that reason
alone. "But the board has a duty to employees to be alert
not to construe supervisory status too broadly because
the employee who is deemed a supervisor is denied em-
ployee rights which the act is intended to protect." Wes-
tinghouse Electric Corporation v. N.L.R.B., 424 F.2d 1151,
1158 (7th Cir. 1970), cert. denied 400 U.S. 831.
While Adame is paid more than other employees, so
far as the record discloses, that reflects no more than re-
muneration for his approximately 11 years' experience
working for Respondent. Like other employees, he is
paid on an hourly basis, punches a timeclock, is docked
for reporting late to work, and does not attend supervi-
sors' meetings. His benefits, working conditions, and
payday are the same as other employees in the depart-
ment. He spends most of his working time discharging
his troubleshooting functions. In sum, I find that a pre-
ponderance of the credible evidence does not support the
allegation that Adame had been a supervisor within the
meaning of Section 2(1 1) of the Act. Likewise, inasmuch
as the evidence of Ibarra's supervisory status rested pri-
marily upon the asserted similarity of his responsibilities
to those of Adame, I find that it has asserted similarity of
his responsibilities to those of Adame, I find that it has
not been shown that Ibarra had been a supervisor within
the meaning of Section 2(11) of the Act during the
period material in this case.
This conclusion does not, of course, end the inquiry
into the question of whether Respondent had sponsored
and assisted the circulation of the petitions in July and
September. For, even though Adame was not shown to
have been a supervisor, "a concluision that an individual
is not a supervisor is not dispositive of the question of
whether that individual is acting as an agent of an em-
ployer." Savoy Faucet Co., Inc. d/b/a Savoy Brass Manu-
facturing Company, 241 NLRB 51, fn. 1 (1979). Here, not
only Adame, but Robles, Escobedo, and Coad, as well,
are alleged to have been agents of Respondent and their
asserted comments in their purported circulation of the
petitions are alleged to have been attributable to Re-
spondent. Whether or not they each participated in the
circulation of the petitions and, in fact, made the remarks
attributed to them is not material, for I find that a pre-
ponderance of the evidence will not support the conclu-
sion that they were agents of Respondent within the
meaning of Section 2(13) of the Act.
There is no direct evidence that Respondent had spon-
sored the preparation and circulation of either petition.
While Coad and Kohout had taken an abnormally long
lunch period to take the first petition to the Board in
July, there is no evidence that Respondent had been
aware of where they had gone nor that Respondent had
encouraged them to go there. Given Respondent's seem-
ing laxity concerning the coming and going of its em-
ployees, the fact that they had taken an overly generous
lunch period would not necessarily have been noticed by
Respondent. Kohout's explanation of his reasons for
having decided to circulate the petitions was logical and
tended to be corroborated by the employees' testimony
that the Union had left them in the dark concerning the
negotiations. The jobs of these employees were not such
as to lead employees to assume that their participation in
the circulation of these petitions, to the extent that they
did so, should be attributed to Respondent. Indeed, to so
find, purely on the basis of such matters as their role as
translators, would be to deprive them of their right to
engage in activity protected by Section 7 of the Act,
thereby diminishing the extent of their statutorily guaran-
teed right to engage in protected activity. The change in
form between the two petitions was attributed, without
contradiction, to the instruction of a Board agent. Simi-
larly, the fact that they had chosen to take the second
petition directly to Respondent also resulted from the
option offered to them by the Board agent in July. As
found above, at no point had Murphy appealed to the
employees to abandon representation by the Union. In
sum, the principal factors present in this case provide no
basis for concluding that, on an objective basis, these
four employees could be viewed as acting for Respond-
ent in whatever role they played in the circulation of the
petitions.
In this respect, it should be noted that Adame and Es-
cobedo had participated in the circulation of a petition to
retain the lunch truck driver that had been servicing Re-
- - -
PEAT MANUFACTURING COMPANY 1137
spondent's facility. That they had been doing so was
confirmed by Esquivel. Moreover, it was clear from
some of the descriptions given by employees of the peti-
tions preferred to them-for example-Sanchez, that
some petition other than the antiunion petitions were
being described. Accordingly, it is not inconceivable that
some of the employees, over the passage of time, had
confused the two petitions.
The final subsidiary question, relating to Respondent's
withdrawal of recognition, pertains to whether Murphy's
remarks had the effect of circumventing the Union as the
employees' bargaining representative. As noted above,
employers are permitted to tell their employees what has
been occurring in negotiations. Proctor & Gamble, supra.
Here, there is no contention that Respondent had been
simultaneously participating in a refusal to engage in
meaningful give-and-take bargaining with the Union
during negotiations. Cf. General Electric Company, 150
NLRB 192 (1964); AMF Incorporated-Union Machinery
Division, 219 NLRB 903 (1975); Columbia Building Mate-
rials, Inc., 239 NLRB 1342 (1979). There is no evidence
that Respondent's descriptions to the employees of the
benefits had been greater than the benefits that Respond-
ent had offered to the Union. Cf. Tarlas Meat Company,
239 NLRB 1400 (1979); AMF Incorporated, supra. There
is no evidence that Respondent expressly attempted to
persuade the employees to compel the Union to accept
its offer nor to forego representation by the Union in
return for receiving these benefits. Cf. The General Ath-
letic Products Company, 227 NLRB 1565 (1977); Tarlas
Meat Company, supra,; Texas Electric Coop, Inc..-Treat-
ing Division, 197 NLRB 10 (1972). The fact that Re-
spondent may have characterized its proposals in their
most favorable light would not, of itself, constitute a vio-
lation. See, e.g., Wantagh Auto Sales, Inc., 177 NLRB
150 (1969). Finally, Respondent did not seek to ascertain
the sentiments of its employees regarding its proposals,
cf. Obie Pacific, Incorporated, 196 NLRB 458 (1972), nor
has it been shown that Respondent called the meetings
for any purpose other than to answer the employees'
questions regarding the status of negotiations.
Nevertheless, in Proctor & Gamble, supra, the Board
stated explicitly that an employer is free to inform its
employees of the status of negotiations only so long as it
does so "in noncoercive terms " (at 340). In other words,
the Employer's communications must be exclusively de-
signed to provide information about the negotiations to
the employees. Here, Respondent ventured beyond that
limitation by threatening to discharge employees if they
went on strike. Although Bashaw and Arizaga testified
that, at the meetings that they had attended, Murphy had
only said that strikers would be replaced permanently,
Ibarra admitted having said to the employees, while
translating for Murphy, that if the employees went on
strike, "they were going to be replaced and that people
that took the jobs are going to have a job permanent and
they didn't-they were not going to get their job back."
(Emphasis supplied.) Clearly this is a threat of discharge,
for economic strikers, while they may be permanently
replaced, are entitled to get their jobs back, once the
strike concludes, they apply for reinstatement, and open-
ings for which they are qualified become available.
NL.R.B. v. Fleetwood Trailer Co.. Inc., 389 U.S. 375,
378, (1967). Moreover, a threat of discharge for engaging
in activity protected by the Act is a "flagrant" violation
"because no event can have more crippling consequences
to the exercise of Section 7 rights than the loss of work.
"Apple Tree Chevrolet, Inc., 237 NLRB 867, 868 (1978).
The fault for directing this threat of discharge at the
employees cannot be laid at the door of Ibarra's transla-
tion. For, he described having made this remark in June
and Bodkin testified that she had heard Murphy make a
similar remark during a later meeting, which she de-
scribed as having occurred earlier on the same day as
her signature was solicited for the September decertifica-
tion petition. While as found above, Bodkin did not
appear to have heard or recalled everything that had
been said at these meetings, her demeanor during exten-
sive cross-examination concerning this point, during
which time she remained steadfast that Murphy had
made the remark that employees would be "immediately
replaced and permanently terminated, " convinced me
that she was being truthful. Moreover, Ibarra's descrip-
tion of a similar remark tends to confirm her testimony
in this respect. Since the threat to discharge strikers was
made by Murphy at more than one meeting and was
translated for the predominately Spanish-speaking em-
ployees, there is a firm basis for concluding that this
threat was not isolated, but that it had been heard by a
significant number of Respondent's employees.
It is against a background of these threats of great
magnitude and significance that Murphy's description of
the negotiations must be weighed. As the literature
which Respondent distributed makes clear, and as some
of the employees testified, Respondent had taken a firm
position that it did not intend to agree to a union-secu-
rity clause and checkoff because it did not want "to
force you to join the Union." Of itself such remarks tend
to portray Respondent, rather than the Union, as the
protector of the employees' interests. Furthermore, the
union had conducted a strike vote, obtaining consent of a
majority voting to call a strike in support of its position.
However, Respondent's threats to terminate strikers had
the effect of undermining the ability of both the Union
and of the employees that it represented to resort to eco-
nomic action in support of that position. If, therefore, the
employees were to derive the increased benefits that Re-
spondent had been offering to the Union, and whatever
other benefits had been proposed by the Union and ac-
cepted by Respondent, their only alternative, not involv-
ing potential loss of their jobs, was to persuade the
Union to abandon its demand for union-security and
checkoff provisions. In short, Respondent was bargaining
directly with its employees, for, by effectively depriving
them of their ability to resort to economic action to sup-
port the Union's demands for union security and check-
off, and by claiming that it was doing so in their interest,
it was placing its enumerated proposed benefits "in a
context of offering the employees a benefit . . . more ad-
vantageous to them than that sought by the Union."
Texas Electric Coop, Inc., supra, 197 NLRB at 14.
Therefore, I find that by its threats to discharge eco-
nomic strikers and by its conduct constituting direct bar-
..
1138 D'CISI()NS OF NA'TIONAL I.ABOR REI.A'I'I()NS B()ARD
gaining with employees, Respondent violated Section
8(a)( ) of the Act. Moreover, it was against the back-
ground of these unfair labor practices that the employees
signed the petitions to decertify the Union as their repre-
sentative. Accordingly, neither petition can be relied
upon by Respondent to assert a reasonably based doubt
of the Union's continued majority status. Therefore, Re-
spondent violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from the Union as the employ-
ees' bargaining representative and by then changing their
employment terms.
This, then, leaves for consideration the postwithdrawal
issues of the threat directed to Taylor and the remark of
counsel to Bashaw. With regard to the former, I find
that a preponderance of the evidence warrants the con-
clusion that Respondent did threaten to terminate Taylor
for soliciting employee signatures on authorization cards.
It is undisputed that, following Respondent's September
21 letter to the Union, the latter distributed authorization
cards to the employees in an effort to make a showing of
its support by a majority of the employees. Taylor testi-
fied that cards had been given to him. Neither Robison
nor, particularly, Tuttle was called on to confirm Re-
spondent's defense that Taylor had been observed too
frequently away from his machine during September 27.
Yet, this was the very basis asserted for Respondent's de-
fense. Its failure to provide such testimony warrants the
conclusion that had either Tuttle or Robison been called
upon to answer questions regarding Taylor's conduct
that day, they would not have supported the account of
Murphy. Colorflo Decorator Products, Inc., 228 NLRB
408, 410 (1977), enfd. by memorandum opinion 582 F.2d
1289 (9th Cir. 1978). If that was not the reason that
Taylor had been summoned to the office that day, then
the only reasonable conclusion is that Respondent was
concealing the true reason for summoning him there and,
further, that that reason was an unlawful one. That being
the fact, it would tend to corroborate Taylor's account
that he had been interrogated by Murphy and had been
threatened with termination for continuing activity on
behalf of the Union.
Certainly, this conclusion is supported by the circum-
stances in which this conversation occurred. Respondent
had only recently terminated prolonged negotiations
with the Union by withdrawing recognition. It was in
the process of instituting a number of the benefits that
had been proposed to the Union. To be confronted by, in
effect, a reorganizing campaign could hardly have been a
welcome sight. Moreover, while Respondent argues that
it had been merely attempting to enforce a rule against
solicitation during worktime, there is no meaningful evi-
dence that Respondent had promulgated and published
such a rule. Therefore, I credit Taylor's account of this
meeting and find that Respondent did violate Section
8(a)(1) of the Act by interrogating Taylor and by threat-
ening him with discharge for engaging in activity in sup-
port of the Union.
With respect to counsel's June 4 remark, the complaint
alleges that he advised an employee that she need not re-
spond to a subpoena ad estificandum issued by the
Board. Bashaw testified that she had asked counsel if she
had to appear in response to the subpena and that he had
told her that her appearance was unimportant. In a state-
ment in opposition to the amendment adding this allega-
tion, counsel represented that Bashaw had asked only
what could be done to her if she did not come to the
hearing. Mueller and Robison both testified that that had
been Bashaw's only question and in a statement given to
Respondent, Bashaw also stated that that had been the
only question put to counsel by her. Thus, I find that
counsel did not specifically advise her not to appear.
It is accurate that he did not specifically advise her
that she had to appear. "The Act and the Rules and Reg-
ulations of the Board provide clearly that a person
served with a subpena is required to appear and to give
testimony pursuant to such subpena." Winn-Dixie Store.s,
Inc. and Winn-Dixie Greenville, Inc., 128 NLRB 574, 579
(1960). Accord: Bobs Motors, Incorporated, 241 NLRI3
1236 (1979). Yet, no case has been cited as standing for
the proposition that an attorney must affirmatively advise
employees of their obligation to honor a subpena served
on them by an opponent, in the absence of an employee
question regarding whether or not to appear. Moreover,
counsel did not simply ignore the situation. Bashaw ad-
mitted that he had specifically advised her that if she did
appear, "I wouldn't get in trouble from the company in
any way," and, further, that "he was not telling me not
to appear." These statements were volunteered by coun-
sel and it is obvious that he had not been doing so in an
effort to deter her from appearing. Moreover, it is undis-
puted that Supervisor Robison had told her that he also
did not want to appear, but had thought it best that he
appear in response to his subpena ad testificandum. Once
again, it is obvious by this remark that Respondent was
not seeking to discourage Bashaw from observing the
obligation imposed by the subpena. In these circum-
stances, it can hardly be fairly concluded that the June 4
comments tended to discourage Bashaw from appearing
at the hearing. In fact, she did appear on the following
day. Accordingly, I do not find that counsel's June 4
comments violated Section 8(a)(1) of the Act.
V. I'HIE EIF1' O- T IlHI. UNFAIR ABOR PRACIICES
UPON COMMN1RCE
The activities of Respondent, set forth above, occur-
ring in connection with their operations described in sec-
tion 1, above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States, and tend to lead, and have led, to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCIUSIONS OF LAW
1. Peat Manufacturing Company is an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Produce, Refrigerated & Processed Foods & Indus-
trial Workers, Local 630, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
PEAT MANUFACTURING COMPANY 1139
3. By threatening to discharge employees who engage
in a strike, by engaging in direct bargaining with em-
ployees, by interrogating employees concerning their
union activities and sympathies, and by threatening em-
ployees for engaging in union activities, Peat Manufac-
turing Company has violated Section 8(a)(l) of the Act.
4. A unit appropriate for collective bargaining is:
All production and maintenance employees includ-
ing trainees, inspectors, plant clerical employees,
janitors, shipping and receiving employees, truck-
drivers, leadmen and working foremen employed by
Peat Manufacturing Company at its facility located
at 10700 East Firestone Boulevard, Norwalk, Cali-
fornia, but excluding all other employees, office
clerical employees, professional employees, techni-
cal employees, guards and supervisors as defined in
the Act.
5. At all times material, Produce, Refrigerated & Proc-
essed Foods & Industrial Workers, Local 630, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America has been the exclusive
collective-bargaining representative of the employees in
the above-described unit within the meaning of Section
9(a) of the Act.
6. By withdrawing recognition of Produce, Refrigerat-
ed & Processed Foods & Industrial Workers, Local 630,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the collec-
tive-bargaining representative of the employees in the ap-
propriate unit described in paragraph 4, above, by bar-
gaining directly with employees in that unit, and by
making changes in the terms and conditions of employ-
ment of those employees after unlawfully withdrawing
recognition from Produce, Refrigerated & Processed
Foods & Industrial Workers, Local 630, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as their collective-bargaining
representative, Peat Manufacturing Company violated
Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Peat Manufacturing Company has not violated the
Act in any manner other than as specified above.
THE REMEDY
Having found that Peat Manufacturing Company en-
gaged in certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom,
and that certain affirmative action be taken to effectuate
the policies of the Act. With regard to the latter, I shall
recommend that Peat Manufacturing Company be or-
dered to resume recognizing and bargaining with Pro-
duce, Refrigerated & Processed Foods & Industrial
Workers, Local 630, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica as the representative of the employees in the appro-
priate unit described in Conclusions of Law 4, supra,'2
52 While the General Counsel requests that the certification year be
extended for a period of I year from the date upon which Respondent
commences bargaining in good faith with the Union, there has been no
and, further, that the Company be ordered to reinstate,
upon request by the Union, the terms of employment ex-
isting before the changes made following the Company's
unlawful ithdrawal of recognition, making whole the
employees, with interest, for any losses of benefits that
they may have sustained as a result of those changes. See
Republic Engraving and Designing Company, A Division of
Nutter, Inc., and Swift Graphics, .4 Division of Congdon &
Crome, 236 NLRB 1150, 1157 (1978), and cases cited
therein.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I herby issue the following recommend-
ed:
ORDER 53
The Respondent, Peat Manufacturing Company, Nor-
walk, California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening to discharge employees who engage in
strikes, engaging in direct bargaining with employees, in-
terrogating employees concerning their union activities
and sympathies, and threatening employees for engaging
in union activities.
(b) Refusing to bargain collectively with Produce, Re-
frigerated & Processed Foods & Industrial Workers,
Local 630, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of all employees
in the bargaining unit heretofore found appropriate in
Conclusions of Law 4, above.
(c) Bargaining directly with employees in the bargain-
ing unit heretofore found appropriate in Conclusions of
Law 4, above.
(d) Changing wage rates and other terms and condi-
tions of employment of the employees in the bargaining
unit heretofore found appropriate in Conclusion of Law
4, above, without prior notification to and bargaining
with Produce, Refrigerated & Processed Foods & Indus-
trial Workers, Local 630, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the collective-bargaining representative of
the employees in that bargaining unit.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
allegation nor finding in this case that Respondent ever engaged in less
than meaningful bargaining with the Union during the certification year
Cf. Electri-Flex Company, 238 NLRB 713 (1978). While, as found above,
Respondent did engage in unfair labor practices during that period. there
is no evidence that those unfair labor practices ever affected the conduct
of the negotiations and the unlawful withdrawal of recognition did not
occur until after the expiration of the certification year. Therefore, I
reject the General Counsel's suggested remedy that the certification year
be extended.
"' In the event no exceptions are filed as prosided by Sec 10246 of
the Rules and Regulations of the National Labor Relations Board, he
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
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Produce,
Refrigerated & Processed Foods & Industrial Workers,
Local 630, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of all employees
employed in the bargaining unit heretofore found appro-
priate in Conclusions of Law 4, above, respecting rates
of pay, wages, hours, or other terms and conditions of
employment and, should any understandings be reached,
embody such understandings in a signed agreement.
(b) Upon request by Produce, Refrigerated & Proc-
essed Foods & Industrial Workers, Local 630, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, reinstate any terms of
employment existing when recognition was withdrawn
from that labor organization as the bargaining repre-
sentative of the employees in the unit found appropriate
in Conclusions of Law 4, above, and make whole those
employees for any losses of benefits which would have
accrued to them but for the changes in the terms of their
employment following the withdrawal of recognition, in
the manner set forth above in the section entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents all payroll and other records neces-
sary to compute the backpay set forth in the section of
this Decision entitled "The Remedy."
(d) Post at its Norwalk, California, facility, copies of
the attached notice marked "Appendix. " 54 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by its authorized rep-
resentative, shall be posted immediately upon receipt
thereof, and be maintained for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
I r I FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to all allegations of unfair labor
practices not herein found to have occurred.
54 In the event this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a judgment of the United States Court of Appeals enforcing an
order of the National Labor Relations Board "