Pharmaseal Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1965

152 N.L.R.B. 1212 (N.L.R.B. 1965)

1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities ( except to the extent that
the right to refrain is limited to the lawful enforcement of a lawful union-
security requirement).
WE WILL offer Frank Ralofsky his former or substantially equivalent job
(without prejudice to seniority or other employment rights and privileges), and
WE WILL pay him for any loss suffered because of our discrimination against
him.
All our employees are free to become or remain members of any labor
organization.
HERB STEIN, INC.,
Eniployei.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -We will notify the above-named employee if serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accord-
ance with the Selective Service Act, and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 720 Bulk-
ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465,
if they have any questions concerning this notice or compliance with its provisions.
Pharmaseal Laboratories , Inc. and United Metaltronics , Ceramics,
Technicians and Helpers , International Union of United Brick
& Clay Workers of America , AFL-CIO . Cases Nos. 21-CA-5728
and 21-C-4-5851. June 7,1965
DECISION AND ORDER
On January 4, 1965, Trial Examiner James R. Webster issued his
Decision in the above -entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices viola-
tive of Section 8 (a) (1) of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner 's Decision . 1Vith respect to certain other
unfair labor practice allegations , he recommended that they be dis-
missed. Respondent filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3( b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three -melnber panel [Chairman McCulloch
and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Trial
Examiner 's Decision , the exceptions and brief , and the entire record
152 NLRB No. 124.
PHARMASEAL LABORATORIES, INC. 1213
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
the Respondent, Pharmaseal Laboratories, Inc., Irwindale, Califor-
nia, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
'As noted in the Trial Examiner's Decision, this proceeding was consolidated for
hearing with Case No. 21-RC-8847. On May 7, 19G5, pursuant to a request of the
Regional Director of Region 21, based on the consent-election agreement in Case No.
21-RC-8847, the Board severed the representation case and remanded it to the Regional
Director. Accordingly, our adoption of the Trial Examiner's findings, conclusions, and
recommendations are confined to those made in Cases Nos. 12-CA-5728 and 12-CA-5851
only.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
James R. Webster, in Los Angeles, California, on October 13 and 14, 1964, upon a
complaint of the General Counsel and answer of Pharmaseal Laboratories, Inc ,
herein called Respondent or Company. The complaint was issued on August 7, 1964,
upon charges filed on January 9, 1964, in Case No 21-CA-5728, and on March 24,
1964, in Case No. 21-CA-5851, the complaint alleges that Respondent violated
Section 8(a) (1) of the National Labor Relations Act, as amended, herein called the
Act.'
In Case No. 21-CA-5728, Respondent and the Charging Party, United Metal-
tronics, Ceramics, Technicians and Helpers, International Union of United Brick &
Clay Workers of America, AFL-CIO, entered into and executed a settlement agree-
ment on February 17, 1964, which was approved by the Regional Director for
Region 21 of the National Labor Relations Board on February 18, 1964 On Au-
gust 6, 1964, the said Regional Director set aside this settlement agreement.
By order dated August 17, 1964, the Regional Director for the Region 21 issued
notice of hearing in Case No. 21-RC-8847 and an order consolidating said case with
Cases Nos. 21-CA-5728 and 21-CA-5851. Hearing was directed in Case No.
21-RC-8847 on the Union's objections (a) and (e), as set forth in the Regional
Director's report on objections, and the additional issues as to the interrogation of
employees regarding their union sentiment in the crucial period between the filing
of the petition and the election conducted on March 18, 1964,2 and as to whether,
at any time material to the election, the Respondent maintained and enforced a rule
that prohibited union solicitation and/or activity on Respondent's property during
nonworking time.
Briefs have been filed by the General Counsel and by the Respondent and have
been carefully considered. Upon the entire record and my observation of the wit-
nesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation engaged in the manufacture of disposable hos-
pital supplies with its plant located in Irwindale, California. Respondent annually
manufactures and ships products valued in excess of $1 million from its Irwindale
I Following motion of Respondent for corrections to transcript filed October 28, 1964,
I Issued order correcting transcript on November 4, 1964.
a I take judicial notice from the formal files of the Board in Case No. 21-RC-8847
that the date of the filing of the petition herein was February 20, 1964.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant to customers located outside the State of California Respondent annually
purchases and receives supplies valued in excess of $50,000, shipped to its Irwindale
plant from points outside the State of California.
I find that Respondent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The United Metaltronics, Ceramics, Technicians and Helpers, International Union
of United Brick & Clay Workers of America, AFL-CIO, herein called the Union, is,
and has been at all times material herein, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTIONS
TO CONDUCT AFFECTING THE RESULTS OF ELECTION
A. Intioduction and issues
The complaint alleges that, following the settlement agreement in Case No. 21-CA-
5728, which was approved by the Regional Director on February 18, 1964, unfair
labor practices were committed on March 11, 18, and June 30, 1964; the complaint
also alleges that a broad no-solicitation rule was in effect at all times material. Only
that conduct of the Respondent that occurred between February 20, 1964, the date
of the filing of the petition in Case No. 21-RC-8847, and March 18, 1964, the date of
the election, can be considered as grounds for setting the election aside.3
The issues in this case are the following:
(1) Whether Gary Appel, supervisor of the "graveyard" shift, did on March 11,
1964, interrogate employee David Ojeda, and whether on that date he told employees
in a group meeting that their vacation rights would be withdrawn or diminished if
the Union came into the plant.
(2) Whether Respondent denied to employees the right to solicit and to dis-
tribute literature on behalf of the Union on Respondent property during nonworking
hours on March 18, 1964, by calling the police on a complaint of trespassing against
union representatives "and their people"; and if so, whether this constitutes an unfair
labor practice and/or grounds for setting aside the election.
(3) Whether the Respondent's rule that "no employee shall conduct any personal
business on company property or on company time" constitutes an unfair labor
practice and/or grounds for setting the election aside.
(4) Whether the inquiry on or about June 30, 1964, by Supervisor James Red-
man of employee Horace Wayne Lloyd as to whether or not he had talked with a
Board agent constitutes an interrogation within the meaning of Section 8(a)(1) of -
the Act.
(5) Has Respondent by any of the acts set forth above in (1), (2), (3), and/or
(4) violated the settlement agreement approved on February 18, 1964; and if so,
did Respondent through Supervisor Hewitt interrogate employees about their union
membership or activities between the dates of July 1963 and February 17, 1964, the
date of execution of the settlement agreement.
B. Conduct of Gary Appel on Mal ch 11, 1964
Employee David Ojeda testified that on March 11, 1964, his supervisor, Gary
Appel, came to his work station and asked him , "how I felt about the Union?"
,Ojeda stated that he replied that he did not know until he had heard both sides. He
stated that this was the entire conversation and that there were no other remarks
exchanged between the two either prior to or following the question . On that same
evening, Appel called a meeting of the 10 or 11 employees on his shift to read to
them a statement concerning Respondent 's position on the Union . Following this,
he invited questions from the employees . He was asked by some of the employees
what would happen to their vacation rights and other benefits if the Union came into
the plant. Employees Ojeda, Lorraine Ramero, Amalia Ventura, and Bertha
Coderre testified on this event.
Ojeda stated he asked Appel if the employees would lose their vacation rights and
that Appel replied that they would . Ramero testified that "we" asked Appel about
the 2 weeks ' vacation pay if the Union came in, and that he said they would lose it,
and that they asked him about the other benefits and he replied that they would lose
-everything.
8 Goodyear Tire & Rubber Co , 138 NLRB 543
PHARMASEAL LABORATORIES, INC. 1215
Amalia Ventura stated that at one of the meetings Appel held with the employees
on his shift, she asked him "if we would be out of our vacation pay." He replied
that "they would probably be stopped until the Union and the Company negotiated
whatever they had to negotiate." She stated his reply was the same as to other
benefits. She does not recall when the meeting was held except that it was "in the
beginning."
Employee Coderre testified that at these meetings with Appel, he read a note or
letter that he got from management. He then asked them if they had any questions
and that he would try to answer them. Some of the girls asked him if they would
lose their benefits and vacation pay. She stated that Respondent required 6 months
of employment before vacation rights accrued and that some of the employees had
not gotten their vacations the year before, and that Appel answered that it would
depend on negotiations between management and Union.
Appel testified that he held two preelection meetings with the employees on his
shift, one meeting was on March 11 and the other was in the first part of the month.
At these meetings he read to the employees the notices that had been sent to him
by management, responding to election handbills that had been distributed by the
Union. He then asked for questions. At each meeting he was asked what would
happen to vacation pay and other benefits if the Union came in, and he replied that
"it would depend on the negotiations between the Union and Company." He denied
stating to employees that they would lose vacation or other benefits if the Union
came in. He also denied asking Ojeda how he felt about the Union, or having any
conversation with Ojeda about the Union except that Ojeda was present at one of
his preelection meetings with employees on his shift.
On March 12, 1964, Personnel Administrator Stark spoke to the employees on
Appel's shift. He played a tape recording of a talk by Plant Manager Adams given
to employees in the plant the day before. Then he stated he was there to answer
any questions. The question was asked, "What would happen to our vacation bene-
fits if the Union came in?" He answered that "there would be no change to any
of your benefits, including vacation during the period between the time the Union
is elected and the time that the contract is negotiated." He was asked if he was
aware of any contracts that this Union had in the area. He informed them that this
particular Union had just negotiated a contract with a company about half a mile
from Respondent's plant. He was asked if the benefits were reduced at that plant,
and he replied that "the life insurance benefit at Shannon Casket Company was
reduced during negotiations." No employee stated or complained at this meeting
that Appel had given a different reply at his meetings with them on the prior day or
earlier in the month.
I have carefully considered and evaluated the testimony of the employees and of
Appel and of Stark regarding Appel's alleged interrogation of Ojeda on March 11,
and Appel's alleged threats to his shift employees the same day, and I credit his
denial of the interrogation and his version of his remarks at the meeting with the
employees on his shift. For one thing, it does not seem plausible to me that he
would have approached employee Ojeda and "out of the clear" ask him how he felt
about the Union. Ojeda could supply no details surrounding this incident; and at
that very time, there was posted at the Respondent's plant a notice pursuant to the
settlement agreement in Case No. 21-CA-5728 which notice stated "WE WILL NOT
question our employees about their union membership, activities or sentiments during
their periodic rating-review interviews or at any other time." In addition, Respond-
ent had conducted a series of supervisory meetings with its supervisor personnel dur-
ing which they covered many subjects of interest to the supervisors, some of which
concerned the "do's and don'ts" in labor relations. As to vacation pay, it seems to
me that if Appel had told employees their vacation rights would be withdrawn, this
would have been called to the attention of Personnel Administrator Stark on the
following day. If there had been a misunderstanding as to the answer of Appel on
the prior evening, Stark made Respondent's position clear to the employees that
vacation and other benefits would continue as they were until these matters were
negotiated with the Union in the event the Union won the election. He did point
out to the employees however that at a nearby plant the life insurance benefits were
reduced during negotiations .4
4 The credibility evaluations made herein were based on the objective factors inherent
in their testimony, as mentioned above, and also upon my judgment of the witnesses
derived from my observation of each on the witness stand. Regarding the alleged threats,
I feel that possibly Ojeda, Ramero, and Ventura reached conclusions in their own minds
based on what they heard and on what they surmised and then in the passage of time,
attributed to the speaker, Appel, their own conclusions
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I therefore find that Appel did not interrogate Ojeda and did not threaten employ-
ees that their vacation rights or other rights would be withdrawn or diminished if
the Union came into the plant as alleged in paragraphs 8 and 9 of the complaint,
and I shall recommend that these paragraphs be dismissed.
C. Calling of police on Mai ch 18, 1964
The representation election on March 18, 1964, was conducted during the hour of
6.45 a m. to 7 a.m. and from 3 p.m. to 4 30 p.m. Employees report to the first shift
at 7 a m
At about 6.20 a.m. Union Representative James Cruz arrived at the plant accom-
panied by J. D. Patrick and Pauline Nelson, field organizers of the AFL-CIO, and
other persons who were not employees of Respondent. Cruz informed the guard at
the gate that he was there to see Plant Manager Adams for the purpose of inspecting
the polls (which was in accordance with an agreement of the parties made at the
preelection conference held on the prior day). The guard informed him that Adams
had not arrived About 6.25 a.m. Adams arrived, and as he drove along the
access road leading to the plant entrance, he noticed some faces that he had not
seen before; and these persons were distributing miniature orchids. He saw Cruz
and Patrick, whom he recognized, near the gate; and after he parked his car, he told
Cruz that "his people were trespassing on company property and would he please
remove them" and that "unless you remove your people from our property, 1 will
be required to call the police " Cruz made no response, Adams went into the plant
and directed Personnel Administrator Daniel Stark to call the Irwindale Police
Department and make a complaint of trespassing. He then took Patrick into the
plant to inspect the polling area.
Employees participated in the distribution of orchids. Attached to each minia-
ture orchid was a printed tab containing the word "Thanks." It is not clear as to
how many employees participated or how many nonemployees were there. Adams
described two nonemployees he observed and stated that he saw no employees until
he commenced talking with Cruz and that he then saw employee Wayne Lloyd.
Lloyd testified he arrived about 6:20 a in and passed out orchids with other
employees-he named two employees who were with him. Employee Ramona Baca
arrived about 6:30 a m. and passed out orchids with one of the nonemployees.
She stated, "the committee was just giving the flowers away." The employees in
the group had to report for work at 7, and from that time on, Cruz and the other
nonemployees in the group passed out orchids to employees leaving the plant
The plant entrance is at the end of a 200-yard access road called Edna Place, which
leads off from Irwindale Avenue. Edna Place is 50 feet wide with the center 20
feet being paved. Two other companies have plant entrances along Edna Place.
On prior occasions the Union had distributed its literature at the point where Edna
Place leads off from Irwindale Road. On March 18 two supervisors of Respondent
were distributing literature at Respondent's gate.
Officer Garza of the Irwindale Police Department received a dispatch at 6 28 a in
and arrived at Respondent's plant at approximately 6:33 a in Adams informed him
that he wanted "these people" removed as they were on private property. Officer
Garza then sought out the person in charge of the alleged trespassers, and proceeded
to tell Cruz that he would like for them to move to that part of Edna Place that
was "dedicated" as a public street and not private property. He made a call to the
Police Department office and was told that at least that part of Edna Place adjacent
to the first company off Irwindale Avenue was dedicated; this constituted approxi-
mately the first 50 feet from Irwindale Avenue He asked Cruz to move the group
to this point and it was done, and they continued to distribute orchids from there
A second police car arrived about 6.50 a.m. and informed Adams that maps at
the City Hall showed all of Edna Place to be a private street. Patrick stated to
Adams that elections have been set aside on the basis of interference by police offi-
cers; Adams then asked Officer Garza to remove his car, and the officer stated he
would not leave until he was sure that the public interest had been served. No
action was taken on the information given to Adams by the second police officer.
The second car parked inside Respondent's gate, and remained until sometime after
7 a.m.
There is no contention nor evidence that the Union was denied an opportunity to
distribute orchids to the employees, except as to place of distribution.
PHARMASEAL LABORATORIES, INC. 1217
The mere "appearance " of policemen immediately before and during a voting
period does not warrant setting an election aside and ai fortiori does not constitute
an unfair labor practice . The case depends on the action taken by the police officer.
Here the police officer requested Cruz to relocate "his people" at a point on Edna
Place that constituted , in his judgment, public property.
The General Counsel contends that Respondent caused or attempted to cause the
policemen to remove from plant property employees who were soliciting for the
Union on nonworking time and in a nonworking area. Respondent 's complaint was
that Cruz and "his people " were trespassing on private property while they were
engaged in passing out orchids on that part of Edna Place that belongs to Respond-
ent Cruz had a legitimate reason for his presence at Respondent's gate-to gain
entrance to inspect the polling area; he did not engage in passing out orchids until
after 7 a.m . At the request of Officer Garza, he and his group, including at least
four employees , removed themselves from that part of Edna Place that belongs to
Respondent . An effect or result of Adams ' action in calling the police to remove
"his [Cruz'] people" was the removal of the Union 's employee committee from
Respondent's property . The employees had a right to be on company property and
a right to distribute union literature on company property on their own time in a
nonworking area. These rights the Respondent interfered with and denied to them.
I therefore conclude that Respondent 's denial to employees of the right to dis-
tribute union literature on company property on their own time constitutes an
interference within the meaning of Section 8 ( a)(1) of the Act and constitutes
grounds for setting aside the election.
D. The rule piohibiting personal business
At all times material herein Respondent has had a rule in force at its plant, as
follows: "No employee shall conduct any personal business on company property
or on company time."
When Adams became plant manager he established a set of company rules and
developed a management handbook , called "An Employee Relations Manual " The
rules were promulgated in 1962, prior to the advent of the Union , and the hand-
book was primarily for the use of supervisors . In April 1963, the iule was posted
on the plant bulletin board , and thereby called to the attention of the employees, as
the result of the sale of sugar-coated tacos by one of the employees to other employ-
ees at the plant. The notice posted on the bulletin board at that time was as follows:
As we continue to grow many of the practices which have been tolerated from
time to time in the past now present some problems . I would like to re-
emphasize one of our basic company policies.
No employee shall conduct any personal business on company property or
company time.
It appears that since we now have a good selection of food items through our
vending machines and regular visits by the lunch truck , it would no longer be
necessary for employees to bring food articles for sale in the lunch room In
addition , it is not fair for one employee to sell items in the plant and not allow
others.
Therefore , I ask your cooperation in meeting our company policy of not
engaging in personal business on company property . This rule is not intended
to limit the employee meals occasionally arranged for special occasions by the
production department . These meals serve to encourage our friendly atmos-
phere and are supported by the company.
Signed by Mr. Adams, Plant Manager.
The General Counsel contends that the rule is illegal because it encompasses union
activities and prohibits such activity on employee time . Respondent contends that
the rule was promulgated to prohibit "personal business ," such as the sale of Avon
products , lingerie , and the like . There is no contention or evidence that the rule has
at any time been used or called to the attention of any employee to prohibit union
5Lovisville Cap Co ., 120 NLRB 769 , Vita Food Products , Inc., of Maryland , 116 NLRB
1215; Balfre Gear t Manufacturing Company, 115 NLRB 19 ; and The Great d tlantic
it Pacific Tea Company, 120 NLRB 705 , in which a union representative was arrested in
presence of a group of voters shortly before they were scheduled to vote.
789-730-66-vol 152-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, and Plant Manager Adams testified that he at no time related it to union
activities, although he was aware that union activity was going on at the plant during
the organizational campaign. There is no reference to this rule in the settlement
agreement in February 1964, in Case No. 21-CA-5728, although the rule was in
existence prior to that time. The rule was not applied or referred to on the occasion
of the distribution of orchids on March 18.
During the investigation of the instant case the matter of the nile was called to the
attention of Adams, and to avoid any ambiguity in the rule, a notice was prepared by
Respondent and posted on April 21, 1964, on its bulletin board as follows:
I wish to summarize for you in this notice Pharmaseal's policy regarding soliciting
during working hours. Our policy is as follows:
Employees are not permitted to solicit orally for any purpose whatsoever
unrelated to assigned company activities during working hours, nor to engage
in such soliciting through distribution of literature of any kind in working
areas during work or non-working time.
Both rules are still in effect. The General Counsel has made no contention of
illegality as to the rule of April 21, 1964. The question, simply stated, is whether or
not the "personal business" rule encompasses union activities. The word "business."
in its most frequent usage, means an undertaking for monetary gain, as in the pur-
chase and sale of commodities A "personal business" would be one for one's own
personal gain, and not related to Respondent's business or gain. Broadly interpreted,
"personal business" could include all activities, of whatever nature, that are not activ-
ities relating to the performance of one's assigned job with Respondent.
In circumstances such as this, where an examination of the words is not conclusive,
one looks to the application made of the rule, and also to the intent or meaning of
the speaker or promulgator. The rule came into being following an experience of
Adams with an employee who had engaged on company property in the sale of com-
modities. His expressed intent behind the rule was to prohibit the sale of products by
employees on company property; it has been applied to prohibit an employee from
selling sugar-coated tacos on company property. The posted explanation of the rule
in April 1963, related the rule to the sale of commodities. Adams testified that he at
no time related the rule to union activities, although he understood, or surmised, that
such activity was being conducted on company property. The General Counsel
offered no evidence relating to the rule other than its existence, and contends that the
broad rule is illegal on its face-that is, from an interpretation of the words it contains.
I cannot agree that the rule is illegal on its fact; in fact, Respondent's interpreta-
tion of the words used is more consistent with their normal meanings. And, when
to this, is added an interpretation of the rule in action, I find that it does not prohibit
union activities. To avoid any erroneous interpretation of the rule, Respondent in
April 1964, promulgated a no-solicitation and no-distribution rule as previously set
forth. I shall, therefore, recommend that paragraph 11 of the complaint be
dismissed.°
E. Alleged interrogation by Supervisor Redman on or about June 29, 1964
Employee Lloyd, a supervisory trainee at Respondent at the time of the hearing
(not on June 29, 1964), testified that he was present in the group with Union Repre-
sentative Cruz on March 18, 1964, and assisted in passing out orchids to other
employees that morning. On June 29, 1964, he was interrogated in an office at
Respondent's plant about this matter by a representative of the Regional Office of the
Board. The office of Plant Manager Adams was utilized for the interview. As Lloyd
was returning to work after the interview, he was asked by Supervisor Redman " if I
had talked with the National Labor Relations Board man." Lloyd replied, "Yes,"
and walked off. He testified that there was no further conversation. Redman did
not testify. The issue here is whether or not the question by Redman constitutes a
violation of Section 8(a)(1) of the Act.
Under the circumstance here, where the interview took place in an office furnished
for the purpose by Respondent, and therefore certainly within the knowledge of
Respondent, I find that the bare inquiry by Supervisor Redman to be too innocuous
to constitute a violation of the Act. At most it was an invitation to Lloyd to disclose
what transpired, but Lloyd made no further comment and walked away.
n Aerodex , Inc., 149 NLRB 192; Southivire Conipany , 133 NLRB 83.
PHARMASEAL LABORATORIES, INC. 1219
F. The settlement agreement and alleged unfair labor practices prior to
February 18, 1964
In order for me to examine and pass on alleged unfair labor practices occurring
prior to February 18, 1964, the date of approval by the Regional Director of the
informal settlement agreement in Case No 21-CA-5728, it must be shown that
Respondent violated terms of the said settlement agreement or has engaged in inde-
pendent unfair labor practices since the settlement.?
The settlement agreement provided that Respondent would not "question our
employees about their union membership, activities or sentiment during their periodic
rating-review interviews or at any other time," and that Respondent would not "in
any manner interfere with, restrain, or coerce our employees" in the exercise of their
rights as defined in the Act.
I have found that since the settlement agreement, Respondent has not questioned
employees in violation of the Act, and therefore Respondent has not violated the
settlement agreement in this regard. The unfair labor practices alleged to have
occurred prior to the settlement agreement were of this nature only. But, I find
herein that Respondent violated Section 8(a)(1) of the Act on March 18, 1964, by
its interference with the rights of employees to solicit votes and to distribute orchids
on behalf of the Union on company property on their own time. On the basis of
this independent unfair labor practice committed after the settlement agreement, I
therefore will proceed to examine the evidence of alleged interrogations antedating
the settlement agreement, and I make the following findings and conclusions with
respect thereto.
John Hewitt became the supervisor in charge of the specialties packaging unit on
August 12, 1963; prior to that time he was in charge of syringe assembly and packing,
and at all times material herein he has been a supervisor of Respondent within the
meaning of the Act. As such, he has conducted periodic merit-review interviews
with employees under his supervision. It has been his policy to give each employee
a chance to ask questions, during these interviews, concerning company policies and
employee benefits and the like. In interviews conducted during the union organization
campaign, he encouraged employees to ask questions on the matter of the Union.
In the middle of September 1963, during the union campaign, Hewitt conducted
a merit-review interview with employee Vera Sanchez. It was conducted privately
in his office. After discussing the matter of her job, he directed the conversation to
the Union. He informed her that he would not like to know who was for or against
the Union, as it might change his attitude toward the person, and that he was not
allowed to ask such question, but stated, "Between you and I, what do you think of
the Union9" She answered, "Well, if the Union comes in, it comes in. If it doesn't,
it doesn't."
Also in about the middle of September 1963, Hewitt conducted a merit-review inter-
view with employee Rudy Villaneuva. After discussing her job, he stated to her that
"he doesn't want to feel prejudiced or have an attitude to anyone who is for the
Union. He doesn't want to know who is for the Union, but `Just between me and
you, I want to know what you feel about the Union."' She replied that she had
not worked there long and was not sure about the Union or the Company; she asked
him what he thought about the Union. He explained to her that if the Union were in
and if she had a grievance, she would take it to the union steward and he would
take it to the supervisor and he would go up to management; if there were no union,
all that she would have to do would be to take the grievance to him and he would
go upstairs and fix it up. He then told her "to see both sides and decide for myself
what I think is right."
In December 1963, or January 1964, Hewitt conducted a merit-review interview
in his office with employee Erlinda Puente. He told her that she was qualified to be a
leadlady. She stated that there were a lot of problems and tension and that she did
not think the job was worth all the trouble. He asked her what the tension was about,
and she replied, "About the Union." He then asked her what she thought about the
Union. She replied, "As far as I was concerned, I don't care if it comes in or not." 8
4 Rice-Stem of Arkansas, Inc., 79 NLRB 1333; Larrance Tank Corporation, 94 NLRB 352;
Tompkins Motor Lines, Inc., 142 NLRB 1, Perfect Service Gas Company, Inc., 146 NLRB
1686, Sago Corporation, 146 NLRB 1484.
8 Puente had difficulty recalling the date of her merit-review interview with Hewitt but
finally testified it occurred in July 1963 (employee interviews occur at 6-month intervals).
Hewitt did not become her supervisor until August 12, 1963, and testified that his first
merit-review interview with Puente was conducted approximately 5 months later. I do
not discredit her testimony because of the error in date.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hewitt could not recall specifically his interviews with these employees as he con-
ducts interviews each 6 months with approximately 45 employees , but he denied
asking employees for their stand on the Union. He testified he did ask for questions
about the Union, and stated that he did not want to know whether the employee was
for or against the Union , for the reason that thereafter he could not be a fair super-
visor toward such an employee . The testimony of each of the three witnesses is cor-
roborative of the others ; Hewitt's testimony that he asked for questions about the
Union strongly suggests that they were asked to express themselves on the Union.
I credit their testimony , and discredit his denial . I find that he interrogated these
three employees as to their union sentiments as proscribed in Section 8(a)(1) of the
Act.°
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade , traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and obstructing the free flow
thereof.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases as provided in the
Recommended Order below , which I find necessary to remedy and to remove the
effects of the unfair labor practices , and to effectuate the policies of the Act.
Having found that Respondent 's conduct improperly affected the results of the
election, I shall recommend that the election be set aside and that another election be
conducted.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following-
CONCLUSIONS OF LAW
I Pharmaseal Laboratories , Inc , is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2 United Metaltronics , Ceramics , Technicians and Helpers , International Union
of United Brick & Clay Workers of America , AFL-CIO, is a labor organization
within the meaning of Section 2 ( 5) of the Act.
3. By denying to employees the right to solicit on behalf of the Union on Respond-
ent's property during nonworking time , and by denying to employees the right to dis-
tribute literature on behalf of the Union on Respondent 's property during nonworking
time, and in nonworking areas , Respondent engaged in unfair labor practices pro-
scribed by Section 8 ( a)(I) of the Act.10
4. By engaging in unfair labor practices , as described in paragraph 3, Respondent
engaged in conduct which improperly affected the results of the election.
5. The unfair labor practices set forth above in paragraph 3 warranted the vacating
of the settlement agreement approved by the Regional Director for Region 21 on
February 18, 1964.
6. By interrogation of employees regarding their union sentiments , Respondent
has engaged in unfair labor practices within the meaning of Section 8 ( a)(I) of the
Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act.
O Plant Manager Adams testified on cross-examination that In "early 1964 ," lie asked
Respondent 's carpenter how he felt about the Union. ( I conclude that this occurred
prior to the settlement agreement of February 18, 1964 ) He stated that the caipenter
was an old employee of Respondent and one with whom he was very friendly. This
incident was not pleaded , and there was no examination by Respondent 's counsel on the
matter As I have found illegal interrogations by Respondent and recommend a remedial
order covering this type of conduct , a finding and recommendation as to this incident
would add nothing to the order.
IwAs mentioned in prior paragraphs of this Decision , Respondent on April 21, 1964,
promulgated a no-solicitation and no -distribution rule, prohibiting distribution of litera-
ture of any kind in working areas during work or nonworking time , and there is no
contention of illegality as to this Stoddard -Quirt . Manufacturing Co., 138 NLRB 615
PHARMASEAL LABORATORIES, INC. 1221
8. Respondent did not engage in unfair labor practices within the meaning of Sec-
tion 8(a) (1) of the Act by interrogations in March and June 1964, as alleged in
paragraphs 8 and 12 of the complaint, by threats in March 1964, as alleged in para-
graph 9 of the complaint, or by the "personal business" rule as alleged in paragraph
11 of the complaint.
9. Respondent did not improperly interfere with the results of the election by
interrogations or threats during the critical period prior to the election (from Febru-
ary 20 to March 18, 1964), nor by maintaining its "personal business" rule during
the same period. Nor did Respondent improperly interfere with the results of the
election by the unfair labor practices found to have occurred prior to the settlement
agreement of February 18, 1964, as they occurred outside the critical period."
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is hereby ordered that Respondent, Pharmaseal Laboratories,
Inc , Irwindale, California, its officers, agents, successors, and assigns, shall.
I Cease and desist from:
(a) Interrogating its employees concerning their union activities, sentiments, and
desires.
(b) Denying to employees the right to solicit on behalf of United Metaltronics,
Ceramics, Technicians and Helpers, International Union of United Brick & Clay
Workers of America, AFL-CIO, or any other labor organization, on company prop-
erty during nonworking hours, and denying to employees the right to distribute litera-
ture on behalf of said Union or any other labor organization in nonworking areas on
company property during nonworking hours.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in Section 8(a) (3)
of the Act.
2 Take the following affirmative action-
(a) Post at its plant and offices at Irwindale, California, copies of the attached no-
tice marked "Appendix A." 12 Copies of said notice, to be furnished by the Regional
Director for Region 21, shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 21, in writing, within 20 days from the
date of the receipt of this Decision what steps Respondent has taken to comply
herewith 13
It is further recommended that the election which was conducted in a unit of
Respondent's employees on March 18, 1964, be set aside and that a new election be
directed at an appropriate time by the Regional Director for Region 21. It is further
recommended that paragraphs 8, 9, 11, and 12 of the complaint be dismissed, and
that the Union's objection (a) to conduct affecting the results of the election in
Case No. 21-RC-8847 be overruled.
It is further recommended that, unless within 20 days from the date of the receipt
of the Trial Examiner's Decision herein the Respondent shall notify the said Regional
Director, in writing, that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
11 Goodyear Tire and Rubber Company, 133 NLRB 453
12In the event that this Recommended Order be adopted by the Board, the words, "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words, "a
Decision and Order."
131n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days fiom
the (late of this Order, what steps the Respondent has taken to comply herewith "
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT interrogate our employees concerning their union membership,
sentiments, and desires.
WE WILL NOT deny to our employees the right to solicit on behalf of United
Metaltronics, Ceramics, Technicians and Helpers, International Union of United
Brick & Clay Workers of America, AFL-CIO, or any other labor organization,
on company property during nonworking hours, and WE WILL NOT deny to our
employees the right to distribute literature on behalf of said Union, or any other
labor organization, in nonworking areas on company property during non-
working hours.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization, to join or assist the aforesaid
union, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of the Act.
All our employees are free to become, or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization, except to
the extent that such right may be affected by an agreement authorized by Section
8(a)(3) of the Act.
PHARMASEAL LABORATORIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any ques-
tion concerning this notice or compliance with its provisions.
Standard Tank Cleaning Co ., Oil Sales and Processing Corp. and
Coastal Petroleum Transport Co., Inc. and International Union
of Operating Engineers , Local 68, AFL-CIO. Cases Nos. 22-
CA-2002, 22-CA-2002-2, and 22-CA-2002-3. June 7, 1965
DECISION AND ORDER
On March 10, 1965, Trial Examiner John H. Eadie issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General Counsel did not file
exceptions or a brief.
152 NLRB No. 125.