Radio Kemetal Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 13, 1963

144 N.L.R.B. 546 (N.L.R.B. 1963)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record herein is replete with testimony of threats, mostly by
innuendo, uttered by Teamsters Representative Edgar, in the context
of insistence by both Unions on their respective jurisdictional claims.
If believed, this testimony, in my opinion, would with the reasonable
inferences flowing therefrom, establish a violation of Section 8 (b)
(4) (D). Thus there is, for example: (1) testimony by Evans of the
Furniture Workers as to Edgar's statement that "Mr. Evans wants to
do it the hard way, and that's the way we will do it"; (2) testimony
by Company Counsel Hay concerning Edgar's statements that the
Teamsters would not relinquish its jurisdiction and that it was possible
the Company would have some difficulties loading its trailers-i.e.,
a work stoppage; and (3) testimony by Assistant Plant Manager
Bourden concerning Edgar's statements that it would be to the Com-
pany's best interests to use Teamsters to avoid complications, and fur-
ther that the Company could comply with the Teamsters' "request"
or it might possibly have difficulty with the unloading of the trailers
if they were "improperly loaded."
My colleagues have concluded in effect that these statements are
ambiguous; that in view of conflicting evidence it is more reasonable
to assume that these statements were not made; and that in any event
the inferences to be drawn from these statements could just as well
be lawful as unlawful. Even assuming everything they say is true,
it is wholly irrelevant at this stage of the proceeding. Their analysis
would be relevant if the issue were whether a violation had been estab-
lished by a preponderance of the evidence. But that is not the issue
now. The issue now is only whether there is enough evidence in the
record to establish a prima facie case of violation.
Reasonably construed, Edgar's statements constitute at least veiled
threats of strike or other coercive action to compel assignment of the
disputed work to the Teamsters. As I would thus find that a prima
facie case has been established, I would accordingly proceed to de-
termine the dispute.
Radio Kemetal Industries , Inc. and Radio Industries , Inc. and
Local 1031, International Brotherhood of Electrical Workers,
AFL-CIO. Case No. 13-CA-4978. September 13, 1963
DECISION AND ORDER
On May 16, 1963, Trial Examiner Stanley Gilbert issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
144 NLRB No. 62.
RADIO KEMETAL INDUSTRIES, INC., ETC. 547
Intermediate Report. The Trial Examiner also found that the Re-
spondents had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that those allegations of
the complaint be dismissed. Thereafter, the Respondents and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as modified herein.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications.
1. Paragraph 1(d) of the Recommended Order is deleted and para-
graphs 1(e) and 1(f) are renumbered 1(d) and 1(e), respectively.
2. The Appendix attached to the Intermediate Report is modified
by deleting the fourth substantive paragraph thereof.
'Contrary to the Trial Examiner , we do not find that the presence of Respondents'
representatives following the partial blocking of the Respondents' plant driveway by a
union bus, as more fully described in the Intermediate Report, warrants a finding of
unlawful surveillance within the meaning of Section 8(a) (1) of the Act . Accordingly,
we do not adopt his finding of unlawful surveillance.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on June 28, 1962, by Local 1031, International Brotherhood
of Electrical Workers, AFL-CIO (hereinafter referred to as the Union), the com-
plaint herein was issued on October 2, 1962, against Radio Kemetal Industries,
Inc., and Radio Industries, Inc. (hereinafter referred to as the Respondents ), alleg-
ing that the Respondents did engage in and are engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act. In substance , the complaint, as amended at the hearing,'
'The following motions of General Counsel to amend the complaint were granted, and
Respondents amended their answer as indicated:
(1) To add the names "Art Ostrega-Foreman" and "Thomas Moyer-Personnel
Manager" to paragraph V. The allegation was admitted as to Moyer and denied as
to Ostrega.
(2) To add to paragraph V the following : "('c) At all times material herein Fred
H. Daugherty has been and is now the attorney for the Respondents , acting on their
behalf and as an agent within the meaning of Section ( 2) and ( 13) [sic] of the
Act" The allegation was admitted by the Respondents.
(3) To add to paragraph VI(a) the names and dates "Marshall Kheen , June 15,
727-083-64-vo] . 144-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleges that the Respondents interfered with, restrained, and coerced their employees 2
in the exercise of rights guaranteed by the Act, by interrogation, threats, surveil-
lance, prohibitions against concerted activity, and sponsorship, encouragement and
assistance in repudiating the Union and in forming a grievance committee. It is
further alleged that they discriminated against one employee by discharging him
because of his activities on behalf of the Union. The Respondents filed an answer,
which was amended during the hearing,3 denying the substantive allegations of the
complaint and the commission of unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Stanley Gilbert
in Chicago, Illinois, on November 26 and 27 and December 17, 18, and 19, 1962.
All parties were represented at the hearing by counsel and were afforded full op-
portunity to be heard, to introduce evidence, to examine and cross-examine witnesses,
to present oral argument, and to file briefs. Briefs were filed within the time desig-
nated therefor by General Counsel and Respondents.
Upon the entire record in the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
As is admitted by Respondents, they are Illinois corporations with common
officers, ownership, directors, operators, and labor policy, and are a single integrated
business enterprise with their places of business at the same address in Des Plaines,
Illinois, at which location they are engaged in the manufacture, sale, and distribution
of radio components. During the year 1961, a representative period, they sold
and shipped from said location finished products valued in excess of $50,000 to
points outside the State of Illinois.
Based upon the foregoing facts, Respondents concede, and I find, that they are
a single employer engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
As is conceded by Respondents , the Union is, and has been at all times material
to this proceeding , a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8(a) (3)
It is alleged that Respondents discharged Bernard Vazquez on June 25, 1962,
because of his organizing activities on behalf of the Union among Respondents'
employees.
Vazquez, a paid and full-time business representative and organizer for the Union,
was ordered by its president to "investigate " Respondents ' plant , obviously to deter-
mine the possibility of organizing Respondents ' employees . About the beginning
of June 1962, he applied for employment with Respondents and in the two applica-
1962 to August 24, 1962," and "Fred H. Daugherty, November 19, 1962." The allega-
tion was denied by the Respondents.
(4) To add to paragraph VI(b) the name and dates "Art Ostrega, July 15, 1962
to August 24, 1962." The Respondents denied the allegation.
(5) To add to paragraph VI(c) the names and dates "Frank P McAndrew,
June 15, 1962, to August 24, 1962" and Frank Takahashi, September 5, 1962." The
Respondents denied the allegation.
(6) To add to paragraph VI the following: "(e) to threaten their employees with
discharge or other reprisals if they refuse to cooperate with the Respondent's attorney
in his investigation of this complaint, Fred H. Daugherty, November 19, 1962 " The
Respondents denied the allegation.
(7) To add to paragraph VI the following : "( f) sponsored , assisted , and encouraged
their employees In repudiating the Union and initiated the formation of an employee
grievance committee , Thomas Moyer , November 23 , 1962 and December 12, 1962, and
Fred H. Daugherty , November 23, 1962 and December 12, 1962." The Respondents
denied the allegation.
( 8) The allegations with respect to Guadalupe Castro were withdrawn.
a It is alleged , and admitted by Respondents , that Respondents are a single integrated
business enterprise , as disclosed in section I of this report, hereinbelow.
8 See footnote 1 for amendments to answer.
RADIO KEMETAL INDUSTRIES, INC., ETC. 549
tion forms which he filled out he falsified practically all the information requested,
in order, as he testified, to conceal the fact that he was in the employ of the Union.
The salary he received from the Union (which was continued through his employ-
ment with Respondents ) was $145 per week , and he was also furnished the use of
an automobile. The job which he obtained at Respondents on June 15, 1962, was
at the starting rate of $50 per week ($1.25 an hour for a 40-hour week). Among
the various facts he concealed, besides his employment by the Union, was that
he was on leave of absence from the Pheoll Manufacturing Company, where he had
been employed 14 years. At Pheoll he scheduled production and was a setup man
on screw machines, and had been receiving pay therefor of $112 per week.
Early in June of 1962 , one of Respondents' employees , Luis Rivera, who was at
that time a soldering machine operator , requested Jack Yusba, his foreman , to trans-
fer him to another job because he was too short to operate the machine comfortably.
Vazquez was hired on June 15 as Rivera's replacement at the machine so that
Rivera could be transferred. Yusba testified, without contradiction, that he told
Vazquez that he was hired to operate the machine and that "if he couldn 't make out
on it, we would have to let him go." Vazquez was introduced to Rivera as the latter's
replacement and assisted Rivera at the machine in order to learn how to operate it.
Normally the soldering machine operator does not require another person to do
the work which Vazquez performed as Rivera 's assistant . Vazquez' employment by
Respondent spanned the period from June 15 to June 25 which embraced 7 working
days (the last day being Monday). He did not report to work on 1 day, the next
to the last day of his employment (which was a Friday).
During the period of his employment, Vazquez discussed the Union with other
employees and distributed authorization cards, taking care , according to his testi-
mony, to avoid being observed by management in such activities. General Counsel
contends that because of these activities he was discharged.
That Respondents entertained a union animus is demonstrated not only by the
admitted policy of Respondents to combat any attempt to organize its employees,
but also by the violations of Section 8 (a) (1) of the Act found hereinbelow.
On the morning of the date of the discharge , Frank P . McAndrew , Respondents'
personnel manager, received a telephone call from the president of the Union re-
questing that it be recognized as the bargaining representative . Also on the morning
of the same date, Vazquez discussed with Yusba his (Vazquez') failure to report to
work on the previous workday. Vazquez testified that he did not notify Respond-
ents that he would be absent because he "didn 't know the phone number or who
to contact ," that he gave this excuse to Yusba, and that Yusba told him the number
to call in case of absence . General Counsel argues that Yusba would not have given
him this information had he (Yusba) already made up his mind to discharge him.
Yusba testified that he had made up his mind on Friday to recommend Vazquez'
discharge, but did not do so until that Monday morning. It appears that the au-
thority to discharge an employee is exercised by the personnel manager based upon
the recommendations of the foreman.
I find nothing significant in Yusba giving Vazquez the telephone number. This
fact, of itself, is far from an indication that he did not intend to recommend the
discharge , and, furthermore , his recommendation required McAndrew's approval
of which Yusba was not notified until later that day. Yusba testified credibly that
he recommended the discharge action to McAndrew early on Monday morning, but
was not notified that it was approved until that afternoon. McAndrew testified
credibly that he follows the practice of delaying approval of discharge recommenda-
tions of foremen in order to give them time to reconsider.
Apparently General Counsel contends that the call from the president of the Union
requesting recognition triggered the discharge action . However, I find very little in
the record which would permit an inference that Respondents linked this call with
Vazquez. I am not satisfied that it has been demonstrated that Respondents had
knowledge of Vazquez ' organizing activity at the time he was discharged . There is,
however, credible testimony which would permit an inference that Yusba suspected
Vazquez of engaging in organizing activity. Rivera testified, without contradiction,
that, about the fourth day of Vazquez' employment, Yusba asked him if Vazquez
had been asking any "funny questions"; that he answered that Vazquez had asked
him how much he made; and that in the same conversation Yusba told him "that
the Union was no good " and that "if the Union came in , he would close the doors
of the plant ." 4 In view of the fact that Yusba's inquiry with respect to Vazquez
4 These statements indicate Yusba's union animus . While I find it incredible that
Rivera could reasonably have believed that Yusba, as a mere foreman , had the power to
carry out the threat that "he" would close the plant, nevertheless , I believe it reasonably
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was during the course of a conversation in which he made the above-mentioned
statements about "the Union," I believe the inference is permissible that Yusba
entertained some suspicion that Vazquez was engaging in organizing activity . Rivera
also testified that , immediately after the discharge , Yusba asked him what Vazquez'
reaction was; that he replied "that Bernie [Vazquez ] was laughing about it or smiling
about it"; and that Yusba then said , "I have a hunch that he came to do something,
and that he already did it ." Yusba corroborated Rivera's testimony as to the con-
versation about Vazquez' reaction , but denied he stated anything about a hunch
until a day or two later. Yusba testified that a day or two after the discharge he
learned of Vazquez' association with the Union and told Rivera that he thought
Vazquez had been "put in here " by the Union and had done some organizing during
his employment . The only material contradiction in their testimony is with respect
to the date when Yusba expressed his "hunch ." I credit Rivera 's testimony which
would indicate that Yusba had some suspicion about Vazquez about the time of
discharge . However, Rivera's testimony would also indicate that it was not any
more than suspicion and not a very strong suspicion.
Employee Eleno Irrizarry testified to a conversation with Marshall Kheen, as-
sistant to the president of Radio Industries, Inc., on June 25, 1962, the date of
Vazquez' discharge, which testimony General Counsel relies on, in part, as proof
of the discriminatory motive of the discharge. Irrizarry testified that around lunch-
time he had a conversation with Kheen "in the boiler room outside the factory"
which, in substance, was as follows: Kheen asked him if he knew anything about
the Union; he answered in the negative; Kheen said the Union would be no good
for the employees, would only take their money; as they were talking Varquez
walked by and Kheen asked him if he knew anything about Vazquez; and that he
answered that he did not.
Kheen denied that he had any conversation with Irrizarry that day. He testified
credibly that he left the plant at 11 a m. to keep a luncheon appointment in the
Chicago Loop, and did not return until about 3:30 or 4 p.m. He further testified
that he recalled having a conversation with Irrizarry in the boilerroom toward the
end of July, and fixes the date in relation to the completion of resurfacing of a
parking lot at that time. He testified that he happened to be in the back of the
plant (where the boilerroom is located) because he had gone to inspect the re-
surfacing job (the parking lot also being located at the back of the plant). He
admitted to talking with Irrizarry about the Union at that time and explained how
the conversation happened to take place in the boilerroom . His testimony was
as follows:
A. Yes. It was around either noon or rest period. I'm not sure but he
[Irrizarry ] was standing out there with a number of employees that had
come out through the employees ' entrance.
Q. Standing where, sir?
A. By the employees' entrance, which the boilerroom is right off the same,
oh, within four or five feet off the employees' entrance.
A. Oh, people were coming out of the entrance . We had to step aside, so
we stepped into the entrance of the boiler room and he mentioned , "Did you
hear about the Union activity about the plant" and I said, "Yes," that I had
heard about it and I asked him what it was about. He said he didn't know
much about it either but that a number of people were interested in having a
union , and that was what the gist of the conversation was. I can't remember
the exact wording, what I said or he said.
Q. Was there any discussion about Bernard Vazquez?
A. No, because I wasn't acquainted with the gentleman. I didn't even
know who he was.
I credit Kheen's testimony as to the incident and the date thereof. This, not only
because of his demeanor , but also because Kheen's explanation of how the conversa-
tion happened to take place in the boilerroom gives some objective basis for fixing
the date. It also confirms Irrizarry's testimony` that it occurred at lunchtime, and
as I have indicated, Kheen credibly testified that he was not in the plant at lunch-
time on the date to which Irrizarry testified. Further, Kheen's testimony affords
a credible explanation of how they happened to engage in a conversation about the
Union. There is no indication that Kheen ever talked to any other employee about
could have had a coercive effect within the meaning of Section 8(a) (1) of the Act, for it
would indicate that Yusba might use whatever power he could exercise to retaliate against
an employee for engaging in union activities.
RADIO KEMETAL INDUSTRIES, INC., ETC. 551
the Union, and it does not appear that he involved himself in Respondents' conflict
with the Union. There is no apparent explanation of why he would have singled
out Irrizarry to inquire about the Union on the earlier date. Therefore, 1 am led
to conclude that Irrizarry's testimony as to his conversation with Kheen cannot be
relied on with respect to proof of the discriminatory discharge of Vazquez or, for
that matter, proof of the allegation that Kheen interrogated lrrizarry in violation of
Section 8(a) (1) of the Act. Since I credit Kheen's version of the conversation,
it appears that they engaged in nothing more than a casual exchange of inquiries
as to what the other knew about the Union's organizational efforts, which exchange
was initiated by Irrizarry.
General Counsel refers in his brief to a conflict between the testimony of Yusba
and McAndrew as to what occurred on June 25 with respect to Vazquez' discharge
subsequent to their first conversation (m which Yusba recommended the action).
Although there is some variation in their respective testimony, it does not appear to
be of any significance. Each credibly indicated that his memory was not too clear
on the details.
The major thrust of General Counsel's argument that Vazquez' discharge was
discriminatorily motivated appears to be that, although Respondents contend they
discharged him because Yusba was convinced Vazquez would not be able to qualify
as a satisfactory replacement for Rivera on the soldering machine,5 his discharge
occurred precipitantly before Vazquez had been given a sufficient, or the customary,
amount of training time to enable Yusba to reach Isuch!a conclusion.
Vazquez and Rivera testified that the latter only permitted Vazquez to operate
the machine for about four periods of approximately 5 minutes each. Yusba testi-
fied, without contradiction, that he observed Vazquez operating the machine for
three or four short periods and also for a half-hour period during a lunch break.
General Counsel points out that Rivera testified that he spent 3 to 4 weeks of train-
ing on the machine and, in the first week, only 10 to 15 minutes actually operating
the machine. From this, it appears that General Counsel would have me conclude
that, but for Vazquez' union activities, he would have been given a longer period of
training time. However, I find that the record convincingly demonstrates that Yusba
reasonably had come to the conclusion that Vazquez would not make a satisfactory
replacement for Rivera.
Rivera, who wanted to be replaced at the machine, testified that he could not let
Vazquez operate the machine "too long" because the work would pile up, that
Vazquez did not seem to grasp how to operate machines, and that when Yusba asked
him how Vazquez was doing he replied that "he wasn't doing so good." Vazquez
testified that Rivera admitted to him that he (Rivera) had told Yusba that Vazquez
"wasn't doing so hot." The record clearly indicates that Vazquez was not suc-
cessful in operating the machine on the occasions he attempted to do so.
Rivera also tesified that Vazquez told him that, if Yusba asked him (Rivera) how
Vazquez was doing, he was to tell Yusba "that he wasn't doing so good." Although
Vazquez denied that he so instructed Rivera, I cannot credit this denial. Rivera
impressed me as a witness who was attempting to give a true account of his recol-
lection. On the other hand, Vazquez was far from a convincing witness. For
example, aside from his complete falsification of his employment applications, on
the stand he gave an incredible explanation of why he failed to notify Respondents
on the day of his absence. He testified that he did not do so, because he "didn't
know the phone number or who to contact." This is a wholly unbelievable ex-
planation from a man who had 2 years of college education and possessed sufficient
wit and resourcefulness to command $145 a week in his job with the Union.
Since Vazquez made it quite clear to Rivera that he (Vazquez) was not interested
in demonstrating to Yusba that he could qualify as a soldering machine operator,
it must have been evident to Rivera that he could not count on Vazquez to become
his replacement. This would substantiate Yusba's testimony of Rivera's report to
him on Vazquez' progress. Yusba testified that on Vazquez' second day of work be
told Rivera to give Vazquez the opportunity of operating the machine, and that,
a day or two later, when he asked Rivera why he did not let Vazquez operate the
machine more often, Rivera replied, "I gave up on him " He further testified that
"around Thursday," which was the last day Vazquez worked before the day of his
discharge, he asked Rivera "if he really gave up on the man" and that Rivera replied,
"It's no use even trying to teach him." According to Yusba, the next day he decided
to recommend Vazquez' discharge, but, since Vazquez was absent, he took no action
until early the following workday, the date of the discharge, at which time he made
his recommendation to McAndrew.
5 Vazquez testified that, when Yusba notified him of his discharge, he stated that it was
because he (Vazquez) "was not making out on the machine"
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since it is clear that Vazquez was hired to replace Rivera at the soldering machine,
and since it appears, from the credible testimony of Rivera and Yusba, that Yusba
had substantial reason to believe that Rivera could not be replaced by Vazquez,
I am led to conclude that Respondents had good cause to discharge Vazquez. Even
assuming that they had not the slightest suspicion of Vazquez' organizing activities,
I am convinced Respondents would have discharged Vazquez when they did. There-
fore, I am of the opinion that General Counsel has not sustained the burden of proof
that Vazquez would have been retained in Respondents' employment but for his union
activities. Consequently, it follows that the discharge was not violative of Section
8(a)(3) and (1) of the Act. Florida Steel Corporation, 132 NLRB 1110, 1117;
Anderson-Rooney Operating Company, 134 NLRB 1480, 1495.6
B. Violations of Section 8(a) (1)
1. Re paragraph VI(a) of the complaint (interrogation)
As I have indicated above, I do not find that in the conversation between Kheen
and Irrizarry, Kheen, in violation of Section 8(a)(1) of the Act, as alleged in the
complaint, as amended, did unlawfully interrogate Irrizarry.
I do not find that in any of the conversations Yusba had with Rivera about Vazquez
he unlawfully interrogated Rivera. However, Rivera testified, without contradiction,
that Yusba asked him, after Vazquez' discharge, if he (Rivera) ever signed a card
for the Union. Adelina Acosta testified, without contradiction, that on July 24, 1962,
Yusba asked her why she was "for the Union," 7 and, when she failed to answer,
he informed her that the Union was "no good." This questioning of Rivera and
Acosta, without an apparent reason to justify it and in the context of Yusba's other
acts which I find herein to be unlawful, constituted unlawful interrogation within
the meaning of Section 8 (a) (1) of the Act.
Employees Ofelia Villarreal and Pia Marquez testified that their foreman, Frank
Takahashi, admittedly a supervisor, questioned them about their union sentiments
prior to the representation election held August 24, 1962. Villarreal testified that
on many occasions he asked her how she felt about the Union. Takahashi admitted
doing so on one occasion, but estimated that it might have occurred three times.
Marquez testified that he asked her how she was going to vote several days before
the election, as well as on election day. Takahashi admitted that he might have also
asked other employees (in addition to Villarreal) how they felt about the Union.
Therefore, it appears that he unlawfully interrogated Villarreal and Marquez in
violation of Section 8(a)(1) of the Act.
Although General Counsel refers in his brief to testimony of interrogation by Art
Ostrega, whose alleged supervisory status is denied by Respondents, there is no al-
legation in the complaint, as amended, of such conduct on the part of Ostrega.8
While Respondents did litigate Ostrega's supervisory status, they did not introduce
any testimony with respect to any portion of the testimony of General Counsel's
witnesses relating to Ostrega's conduct. Under the circumstances, I will make no
findings of fact with respect to Ostrega's interrogation of employees.
Although it is alleged that Fred H. Daugherty, counsel for Respondents in this
proceeding, unlawfully interrogated employees on November 19, 1962, General
Counsel made no reference in his brief to any evidence in support of this allegation
and I find nothing in the record to sustain it.
2. Re Ostrega's status (paragraph V of complaint)
Inasmuch as there is an allegation in paragraph VI(b) of the complaint, as
amended, with respect to the conduct of Ostrega, I will consider the issue of whether
8 As an alternative defense, Respondents contend that the discharge was not violative
of the Act because Vazquez was not an "employee" within the meaning of the Act This
contention apparently Is predicated upon the argument that Vazquez was actually an
employee of the Union and had no Intention of qualifying for the job which lie was em-
ployed by Respondents to do Vazquez admitted on the stand that he had no intention of
remaining in Respondents' employ beyond the period required to carry out his order from
the president of the Union to "investigate" the plant. In view of my above finding that
it has not been proved that the discharge was discriminatorily motivated, no purpose
would be served In disposing of this alternative defense.
S According to Yus ba's testimony, he had been informed prior thereto that Acosta was
distributing union authorization cards in the washroom.
8It is alleged in paragraph VI(b) of the complaint, as amended, that Ostrega threat-
ened employees.
RADIO KEMETAL INDUSTRIES, INC., ETC. 553
Respondents are responsible for his alleged conduct before addressing myself to
said portion of the complaint. Both agency and supervisory status are alleged with
respect to Ostrega in paragraph V of the complaint. General Counsel, in his brief,
argues that Ostrega was a supervisor and, in the alternative, that he was an agent
of Respondents.
It is clear from McAndrew's testimony that Respondents enlisted the aid of their
foreman and group leaders to discourage employees' adherence to the Union. Mc-
Andrew testified that in furtherance of Respondents' objective "to beat the Union"
he held meetings with the foremen and distributed to them a considerable amount of
literature soliciting their aid in accomplishing this objective. He further testified that
the literature was "intended for distribution down to and including group leaders"
and that Ostrega was a "group leader." He also identified a letter, dated August 28,
1962, which he sent to Ostrega addressing him as "Dear Art" and thanking him for
his "help in enabling us [presumably Respondents] to repulse the union drive in our
plant." 9
Since Respondents enlisted Ostrega's aid in their antiunion campaign, they are
responsible for his conduct on their behalf. Therefore, I conclude that Ostrega was
Respondents' agent with respect to his conduct alleged in paragraph VI(b) of the
complaint, as amended.'°
3. Re paragraph VI(b) of the complaint (threats)
As indicated above, I find that Yusba threatened Rivera (by stating "that if the
Union came in, he would close the doors of the plant") in violation of Section
8(a)(1) of the Act.
Acosta, identified above as an employee in the department of which Yusba is
foreman, testified that Yusba told her that he had been informed that she was "dis-
tributing cards in the dining room and the washroom" and that some time later
he told her that if she continued doing so she would "create problems" for herself.
She further testified that he also said to her (it is not clear whether it was on the
same occasion or another) that she should stop distributing cards and that if she
"was continuing for the union, there was going to be trouble " Yusba testified
that he did tell her "not to hand out union cards," but "didn't stipulate whether it
was to be during working hours or rest periods." Yusba did not deny making
the other statements which she attributed to him. To my mind, the above state-
ments to which Acosta testified constitute a thinly veiled threat to take retaliatory
action against her, if she continued her efforts on behalf of the Union. This con-
duct constitutes a violation of Section 8(a)(1) of the Act, as alleged in paragraph
VI(b) of the complaint. Yusba also unlawfully prohibited Acosta from engaging
in protected activity in further violation of said section of the Act, as alleged in
paragraph VI(c) of the complaint, inasmuch as he failed to limit the prohibition
in accordance with the proscriptions of a valid no-solicitation rule. Maxam-
Dayton, Inc., 142 NLRB 396.
Acosta testified that, in July 1962 at a meeting with some of the employees in
his office, McAndrew stated that employees were free to vote for or against the
Union, but that the Union "will only bring trouble between us, discords and
arguments, fights." Santiago Mariani, another employee who was at the meeting,
testified that McAndrew stated, in effect, that if the Union won the election, Re-
spondents would be compelled by it to increase wages and then they, "like it hap-
pened to other companies," might go out of business because of the Union.
McAndrew did not deny that he made either of the above statements. While the
first statement would appear to be an expression of opinion protected under Section
8(c) of the Act, the second statement contains a threat of economic reprisal which
is violative of Section 8(a) (1) of the Act.
Pia Marquez, an employee, testified that about a week before the aforementioned
representation election (held August 24, 1962) she asked McAndrew for a loan
from the "Company" and that after he granted her request, he stated to her, through
a Spanish interpreter, that "loans are given to the good employees of Radio Indus-
tries, and once the Union coming into the factory, it wouldn't take place anymore
and he wished that I should take this into consideration the day of the election."
McAndrew testified that he told her that granting loans "is one of the things
that we do around here for our good, loyal, efficient employees, and I hone you will
keep this thing in mind when the union election comes up on August 24 " He
9 Similar letters were also sent to foremen and other group leaders.
"In view of this conclusion it appears unnecessary to dispose of the issue of whether
Ostrega was a supervisor within the meaning of the Act
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied that he told the interpreter to tell her the loan policy would be discontinued
if the Union won the election.
It is possible that both were telling the truth and the conflict in their testimony
was due to a faulty translation by McAndrew's interpreter. In any event, I credit
Marquez' testimony of what was stated to her by the interpreter. She impressed
me as a witness who was attempting to give an accurate account of her recollec-
tion and Respondent is responsible for what was said by the interpreter used by
McAndrew, even if the translation had been inaccurate. Therefore, I conclude
that by McAndrew's statement to Marquez through the interpreter Respondents
threatened to withdraw benefits from employees, should the Union win the election.
This constitutes a violation of Section 8 (a) (1) of the Act. I would come to the
same conclusion, even if I were to consider only McAndrew's testimony of what
he said to the interpreter. It is reasonable to infer that in cautioning Marquez
to keep the benefit in mind when voting, he implied that it might be withdrawn
should the Union win.
Marquez also testified that, when Takahashi interrogated her (shortly before
the election) as to her union sentiments (discussed heremabove), she replied that
she intended to vote for the Union because it "has offered" to pay her more money;
and that he said that this was absurd and that he felt sorry for her. Shortly there-
after, on the day of the election he made a further statement to her to the effect
that he was "sorry" for her, because the "Union no come m," and that if it does,
"the factory may be closed" because it "can't pay the much money that the Union
want." Takahashi admitted that he might have asked her a question about the
Union and that she indicated that she was going to vote for the Union, but he was
rather vague in his recollection of the contents of any conversations he might have
had with her. Therefore, I credit her testimony with respect to the above state-
ments by Takahashi. I believe that it is appropriate to infer that by his statements
Takahashi threatened her with economic reprisal, should she adhere to the Union
or should the Union win, in violation of Section 8(a) (1) of the Act.
General Counsel refers in his brief to testimony by Villarreal that, on the payday
of a week before the election, Takahashi told her that he would only hand over her
paycheck if she voted for the Union. However, Villarreal admitted that it was done
in a "kidding" or "joking" manner and that he was smiling at the time. The state-
ment, of itself, could hardly have been taken seriously. Therefore, I do not believe
this incident can reasonably be construed as interference, restraint, or coercion
within the meaning of Section 8(a) (1) of the Act. Although I realize that a threat
can be concealed within a jest, it appears to have been too well buried in this instance
to justify a conclusion that a threat was intended or should have been understood.
Irrizarry testified, without contradiction, that on the morning of the election
Ostrega said .to him that "if the union come in here, all these Puerto Ricans,
they have to find a job some place else." Evelyn Dallman, an employee, testified,
without contradiction, that 1 or 2 weeks before the election, Ostrega told her "that
if the Union were to come in and the factory were to have . . . to give a raise to
each and every employee, that they would have to close the doors." She also testi-
fied, without contradiction, that a few days before the hearing in this proceeding,
Ostrega told her that if she and Irrizarry were to testify, they were "sure to be
fired." Since I have found Ostrega was an agent of Respondents in their efforts to
combat the Union, I find that Respondents, by the above-described conduct of
Ostrega, violated Section 8(a)(1) of the Act. See Remington Rand Corporation,
141 NLRB 1052, re statements as to closing of plant.
4. Re paragraph VI(c) of the complaint (prohibiting union activities)
As indicated above, Respondents violated Section 8(a)(1) of the Act through
Yusba's statements to Acosta prohibiting her from distributing cards on behalf of
the Union, as alleged in paragraph VI(c) of the complaint. The prohibition was
obviously not limited to the provisions of a valid no-solicitation rule.
Around the beginning of August 1962, McAndrew summoned several of the em-
ployees into his office and lectured them about calling other employees "bad names,"
indicating that he would fire them if the practice was continued. Employee Santiage
Mariani testified that McAndrew introduced a man to the employees (but Mariani
could not identify the man or his relationship to Respondent) and that the stranger
said in McAndrew's presence "that no time I [Marianil don't suppose to talk about
unions in the factory." McAndrew admitted that there was such a man at the
meeting, but testified that no such statement was made.
Acosta, in testifying about the same meeting, related that the stranger spoke in
response to "something" which Mariani said "about a union." Her testimony of
what the stranger said is as follows:
RADIO KEMETAL INDUSTRIES, INC., ETC. 555
A. He said that the union only would bring trouble. The union would just
cause problems among the workers.
Q. Do you recall if he said anything else?
A. No, I don't remember.
Q. Did he say anything in regards to whether or not you could distribute
union cards?
A. No.
Both Acosta and Mariani have difficulty with the English language. Therefore, it is
quite possible that one or the other of them did not correctly understand what was
said. In view of the wide variation in the testimony of Acosta and Mariani and
the denial by McAndrew, I do not believe it appropriate for me to rely on Mariani's
testimony that the stranger expressed a prohibition against engaging in protected
activities."
Villarreal and Takahashi testified with respect to a conversation they had about
a week after the election of August 24. She testified that he told her "to stop talk-
ing about the Union," that she "was upsetting all the ladies" in her department, and
that when she asked him how she could be upsetting them, he replied that there
were rumors about her getting their addresses. Takahashi testified that the con-
versation was limited to the matter of her obtaining addresses. According to
Takahashi, he told her that he wanted her to stop, because the "ladies" believed she
was getting the information for the Union which, he was informed, was upsetting
them. They both testified that she denied that she was getting the addresses for
the Union. Thus, the only real conflict in their testimony is whether he told her
"to stop talking about the Union." I am inclined to credit Villarreal's version of the
conversation, not only because of the demeanor of the witnesses, but also because
it is consistent with Takahashi's attitude toward the Union demonstrated by his con-
duct described hereinabove. I find that Takahashi did prohibit Villarreal from engag-
ing in protected activity in violation of Section 8(a)(1) of the Act, the prohibition
not being limited to the provisions of a valid no-solicitation rule.
5. Re paragraph VI(d) of the complaint (surveillance)
The allegation in paragraph VI(d) of the complaint relates to an incident which
occurred on July 27, 1962, with respect to which Vazquez and McAndrew testified.
Since there is no substantial conflict in their testimony, I will set forth a synthesis
thereof. The Union had arranged to hold a meeting of the employees shortly after
the end of the workday (3:30 p.m.) at a place about three blocks from the plant.
McAndrew was aware of the fact that the meeting had been called. Shortly after
3 p.m., several union buses arrived at the plant to provide transportation for any
employees who might require it. One of the buses was partially blocking the drive-
way, and McAndrew, accompanied by Joe Mattuck, plant superintendent, approached
Vazquez who was near the offending bus and McAndrew requested that it be moved.
Vazquez complied with this request. McAndrew and Mattuck walked back toward
the plant entrance but stopped in the driveway in a position to observe Vazquez as
he talked to employees on their way out of the plant. Vazquez testified that they
remained in the driveway until the employees had left. McAndrew testified that he
"might have stood there for a minute or two." None of the employees entered the
buses. McAndrew gave no reason for their remaining on the scene after the bus
had been moved.
It appears reasonable to conclude that they remainded in the driveway for the
purpose of observing what occurred as the employees left the plant, particularly
whether they entered the buses, and it also appears reasonable to conclude that em-
ployees on seeing them standing in a position to observe whether they entered the
buses would infer this to be the reason for their presence. This, in the context of
the obvious antiunion sentiment of Respondents and other acts which I have found
to be violative of Section 8 (a) (1) of the Act, constituted unlawful surveillance within
the meaning of said section of the Act. Whether McAndrew and Mattuck stood in
the driveway only a "minute or two," or for a somewhat longer period of time,
would not appear to be of any significance in deciding the issue raised by this allega-
tion. The amount of time is only significant in determining whether their presence
11 It is not clear whether General Counsel contends that anything (of itself) spoken by
McAndrew, on said occasion, was violative of the Act. In any event, it does not appear
that the record would support such a contention, since "name calling" (which McAndrew
was attempting to prohibit) does not fall within the category of protected activities and
his statements were apparently limited to that subject
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the driveway was for so brief a period as to justify an inference that it was no
longer than was necessary in the course of accomplishing the removal of the bus.12
It appears that the period did not constitute just a momentary pause on their way
back to the plant, but was of sufficient duration to justify the conclusions stated above.
6. Re paragraph VI(e) of the complaint
The complaint was amended by adding paragraph VI(e) in which it is alleged that
on November 19, 1962, Respondents' counsel in this proceeding threatened employees
"with discharge or other reprisals if they refuse to cooperate" with him "in his
investigation of this complaint."
In support of this allegation General Counsel relies on the testimony of Irrizarry
with respect to his interview with Respondents' counsel on the day alleged. Re-
spondents' counsel did not testify. According to Irrizarry's testimony, after he had
answered some of counsel's questions, which answers were reduced to writing by
counsel, he was asked to sign what had been written. Irrizarry testified that, when
he refused, counsel pointed out that he had signed a statement for the Board
and said, "Why you don't sign this for me? Who give you the job, the factory or
the National Labor Relations Board?" He answered, "The factory," but continued
his refusal to sign.
General Counsel contends that the above constituted a threat to Irrizarry's job
security. I am not persuaded that this contention has merit. By alluding to the
fact that Irrizarry owed his job to Respondents, rather than to the Board, I believe
it reasonable to assume that counsel intended to appeal to Irrizarry's sense of loyalty,
and that it should have been reasonably so understood by Irrizarry. In essence,
counsel was asking Irrizarry why, since he was willing to sign a statement for the
Board, was he not willing to do as much for the "factory" to which he owed his job.
I am not convinced that it would be reasonable to read into this a threat that, since
he owed his job to the "factory," it might take it away from him.
7. Re paragraph VI(f) of the complaint
In this paragraph it is alleged that Respondents on November 23 and December 12,
1962, "sponsored, assisted and encouraged their employees in repudiating the Union
and initiated the formation of an employee grievance committee."
Ismael Torres, an employee who was called as a witness by the Trial Examiner,
testified, in effect, as follows:
Prior to November 23, 1962, there was considerable dissension among the
employees about the Union; during the two days preceding November 23 he
met with a number of his fellow employees and discussed with them what
they should do about the Union; some of them were for the Union and others
against it; he had lost confidence in the Union; he told some of them "that
we should take a decision if we go on fighting or leave the Union"; that he
and some of the other employees "intended" to come to a decision "the fol-
lowing day": that before work on the morning of "the following day," No-
vember 23, he told some of the employees that "we are having a meeting" and
invited them to attend; that he then spoke to Eileen Molscen. McAndrew's
secretary, and asked her to arrange for a meeting of some of the employees
with McAndrew; and told her the reason for the meeting was "in order to
decide one thing or the other" about the Union.
Molscen testified that Torres approached her about 9 a m. on November 23 and
asked her to arrange a meeting for some of the employees with McAndrew. She
told him McAndrew was out of town and suggested they could talk to Thomas
Mover (an employee in McAndrew's department) and her, or to either of them.
Torres told her that he had talked to some of the employees and they wanted "to
sien some kind of paper to tell the Union to leave us alone" Torres then went
with her to the personnel department and talked to Moyer who informed Torres
that he could have the meeting requested later that morning
Molscen and Mover then called counsel for Resronden+s and McAndrew by tele-
phone to inform them of the proposed meeting. McAndrew testified that Mniccen
also told him that they had called Resnondents' counsel and that Mover told him
that counsel wanted to use a tape recorder in the proposed meeting with emnloyees.
When counsel arrived, Torres was summoned. Torres indicated what employees
he wished to invite to the meeting. Molscen then went to the various departments
'The record does not disclose why the removal of the bus required the action of two
top officials of Respondents
RADIO KEMETAL INDTJSTRIES, INC., ETC. 557
where said employees worked and arranged with their foremen to release them to
attend the meeting.
After these employees (10, including Torres) were assembled they consented to
the use of a tape recorder.13 Both English and Spanish were spoken during the
course of the meeting. It appears that none of the representatives of management
who were present (Respondents' counsel, Moyer, and Molscen) understood Spanish.
At the outset, the meeting was turned over to Torres.
During the course of the meeting the following discussion took place:
Mr. TORRES: We work both together, we get better benefits. We don't
have to get no union in here. We don't need no union here.
Mr. MOYER: The better the Company does, the better we all do.
Mr. MARIANI: Maybe we going to have a group of persons from the Company.
Mr. TORRES: Yes, the same group from the same company. And then
we solve our own problems. The other guy represents-like Mr. McAndrew
said about it, we don't need to have two or three Monday go, or even going
to take ten from the factory, take time off for it.
If somebody want to come in here, talk to Eileen, talk to Mr. McAndrew,
talk to him [indicating]. Bring the people here for the problems, all the
time together. And I think that work all right, doing good.
Mr. IRRIZARRY: Otherwise, he says one time: If you want to put one of
your people to represent you here, what you want to say here, to try and
tell me-
Mr. HERNANDEZ: Do you think we can do that? To organize a group to
represent the factory?
Voice: He told me that, too.
Mr. TORRES: Yes, that what we want, to organize a group.
Mr. DAUGHERTY: That would be up to you It is not up to
Mr. MOYER: Yes, this is something I can't answer for you. This is some-
thing you, yourselves will have to get together and decide.
Do you want a small group of people-
Mr. TORRES: Yes, that what we want.
Mr. MARIANI' A few guys.
Mr. MOYER: This is up to you.
Mr. DAUGHERTY: Under the law, it's very clear- You have the right to
belong to a union ; you have the right not to belong to a union. And that's
your decision to make, and not the Company's decision to make. The Com-
pany has ideas abut this, of course But all it can do is give you those ideas,
and the decision is up to you, yourselves.
Mr. TORRES: Well. I think that the Company, the Zenith-the radio
Mr. MOYER: Zenith?
Mr. TORRES • They got their own-their own union.
Mr. MOYER: Yes, they do.
Mr. TORRES : Well, we can do the same thing in here . We can do that in
here. They got their own-
Mr. MOYER: Yes, you can organize formally, like Zenith did, or you cannot
organize formally.
Mr. TORRES: We can do it better, so nobody from outside have to come in
and bother us.
Voice: That's right.
Mr MOYER: This is-yes, this is something that you-all of the people out
there will have to decide ; what they want.
Mr. TORRES• One of the things I have to say, I agree with everybody, you know,
say we turn down the union , that's all . We don 't need no union . We can go
by ourself like-like before.
Well, we don't get no check from the union to take it to the home, to pay
medicine for the people in family. So I think we ought-we can do the same
thing we doing before-doing-doing good like we doing now. I think right
now we doing good , now. (General discussion in Spanish.)
Voice: We going to do the best, for everybody, and we want they do for us,
too.
Mr. TORRES : Yes, we going to try to work together to-
Voice: Do the best for all.
"A transcript of that portion of the tape In which English was spoken was received
into evidence upon agreement of the parties hereto
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. ToxaEs: Do the best. That's why we turn down the union. We don't
want the union in here. We don't back the union, see.14
About 3 weeks later, on December 12, 1962, McAndrew called a meeting of six
employees including Torres and three others who attended the November 23 meeting.
This meeting was also held during working time. Basilio Hernandez, one of the
employees present, testified as to what was said there, and McAndrew affirmed
Hernandez' testimony. McAndrew also acknowledged that he initiated the Decem-
ber 12 meeting.
Hernandez' testimony may be summarized as follows:
McAndrew said he was going to show us a few benefits that the Respondents
had granted employees since the August 24 election. He related that starting
pay was to be raised from $1.15 to $1.25 per hour, every girl would obtain an
attendance bonus, and there would be a full day's work the day before Christmas
instead of only a half-day. McAndrew then invited a discussion of any com-
plaints that the employees might have and several of these were discussed.
McAndrew indicated that action would be taken to correct some of the matters
about which there were complaints.
It should be noted at this point that the August 24 election (which the Union
lost) was set aside by a Report on Objections thereto issued on September 21, 1962,
and a new election was ordered (which was not conducted until after the hearing
in this proceeding was concluded).
The meeting of November 23 (sponsored by Respondents) and that of December 12
(initiated by Respondents) were held only a few weeks apart during the period when
it was known that a second election was to be conducted. Of the six employees who
'were present on December 12, four had been at the November 23 meeting. I be-
lieve that the meetings were so closely related that each must be considered in the
context of the other. It appears that great care was exercised by the representatives
of management at the November 23 meeting to indicate that employees had to make
their own choice of what action they should take with respect to disavowing the
Union, or with respect to organizing a committee. However, the very presence 15
of representatives of management and management's sponsorship of the meeting, in
the light of management's patent union animus, coupled with the granting of
benefits at the follow-up meeting of December 12, which reasonably would have the
effect of encouraging employees to adhere to the positions taken at the November 23
meeting (to disvow the Union and to form a committee to act as their bargaining
representative) constituted unlawful interference by Respondents in their employees'
exercise of rights guaranteed under Section 7 of the Act and was violative of Section
8(a)(1) of the Act.
Summary of Conclusions
To summarize the conclusions arrived at in this section of the report, I find as
follows:
1. Respondents did not discriminatorily discharge Vazquez, as alleged in para-
graph VIII of the complaint, as amended.
2. (a) Takahashi, an admitted supervisor, did unlawfully interrogate employees
Villarreal and Marquez, as alleged in paragraph VI(a) of the complaint, as amended.
(b) Yusba, an admitted supervisor, did unlawfully interrogate employees Rivera
and Acosta, as alleged in said paragraph.
(c) Neither Marshall Kheen nor Fred H. Daugherty engaged in conduct constitut-
ing unlawful interrogation, as alleged in said paragraph.
3. (a) Yusba did unlawfully threaten employees Rivera and Acosta, as alleged
in paragraph VI(b) of the complaint, as amended.
(b) McAndrew did unlawfully threaten Marquez, as alleged in said paragraph.
(c) Takahashi did unlawfully threaten Marquez, as alleged in said paragraph.
(d) Ostrega, whom I find to have been an agent of Respondents, did unlawfully
threaten employees Irrizarry and Dallman, as alleged in said paragraph.
4. (a) Yusba did unlawfully prohibit Acosta from engaging in protected activities,
as alleged in paragraph VI(c) of the complaint, as amended.
14 Pia Marquez testified that there was a vote taken in Spanish whether or not those
present wished to remain with the Union. Apparently the vote was in the negative
is It is reasonable to assume that the presence of representatives of management (at a
meeting which they knew was called for the purpose of discussing what action the em-
ployees should take with respect to the Union ) would not only deter the employees from
expressing prounion sentiments, but also encourage them to evince an antiunion attitude
and adopt 'the line obviously approved by Respondents.
RADIO KEMETAL INDUSTRIES, INC., ETC. 559
(b) Takahashi did unlawfully prohibit Villarreal from engaging in protected
activities, as alleged in said paragraph.
(c) McAndrew did not engage in conduct constituting unlawful prohibition of
employees' exercise of their rights guaranteed under the Act, as alleged in said
paragraph.
5. McAndrew and Mattuck, both admittedly supervisors, did engage in con-
duct constituting unlawful surveillance, as alleged in paragraph VI(d) of the com-
plaint, as amended.
6. Fred H. Daugherty did not threaten any employee, as alleged in paragraph
VI(e) of the complaint, as amended.
7. Respondents did interfere in the exercise by employees of their rights guar-
anteed under the Act by unlawfully encouraging them to repudiate the Union and
to form a committee to act as their bargaining representative, as alleged in paragraph
VI(f) of the complaint, as amended.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, which I have
found to be unfair labor practices, occurring in connection with their operations set
forth in section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
In view of the unfair labor practices which I have found to have been com-
mitted, the Respondents will be required to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act. Further,
in view of the extent of Respondents' unfair labor practices, I believe that there
is a danger that Respondents may engage in other unfair labor practices in the
future, and I shall, therefore, recommend that Respondents also be ordered to
cease and desist from violating the Act in any other manner, as well as in the manner
found.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondents are a single employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By coercively interrogating employees concerning their union sympathies and
activities, by threatening employees with economic reprisals should they engage
in protected activities or choose to have the Union act as their bargaining repre-
sentative, by prohibiting employees from engaging in protected activities beyond
the extent of a lawful no-solicitation rule, by engaging in unlawful surveillance, and
by unlawfully encouraging their employees to repudiate the Union and to form a
committee to act as their bargaining representative, Respondents have interfered
with, restrained, and coerced employees in the exercise of their rights guaranteed
under Section 7 of the Act within the meaning of Section 8(a) (1) of the Act.
4. General Counsel has failed to sustain the burden of proof with respect to the
allegation of a violation of Section 8(a)(3) and (1) of the Act, as set forth in
paragraph VIII of the complaint, as amended.
5. General Counsel has failed to sustain the burden of proof of violations of
Section 8 (a)( I) of the Act alleged with respect to the conduct of Marshall Kheen
and Fred H. Daugherty in paragraph VI(a) of the complaint, as amended, with
respect to the conduct of Frank P. McAndrew in paragraph VI(c) thereof, and
with respect to the conduct of said Fred H. Daugherty in paragraph VI(e) thereof.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, it is recommended that the Respondents, their officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating their employees as to their union sympathies or
activities.
(b) Threatening employees with economic reprisals should they assist the Union
or select it as their bargaining representative.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Prohibiting their employees from engaging in protected activities except to
the extent proscribed by a lawful no-solicitation rule.
(d) Engaging in conduct constituting unlawful surveillance of their employees'
union activities.
(e) Encouraging employees, in a manner constituting unlawful interference with
employees' rights, to repudiate the Union or to form a committee to act as their
bargaining representative.
(f) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist the Union or any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7 of the Act, 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.
2. Take the following affirmative action which is designed to effectuate the policies
of the Act:
(a) Post at their plant in Des Plaines, Illinois, copies of the attached notice
marked "Appendix." 16 Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by the Respond-
ents' representatives, be posted by Respondents immediately upon receipt thereof,
and be maintained by them for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order, what
steps Respondents have taken to comply herewith.17
I further recommend that paragraphs VII and VIII of the complaint, as amended,
be dismissed, as well as that part of paragraph VI(a) which refers to the conduct
of Marshall Kheen and Fred H. Daugherty, that part of paragraph VI(c) which refers
to the conduct of Frank P. McAndrew, and the entire paragraph VI(e).
161f 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 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."
17 In 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 from
the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
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
Relations Act, we hereby notify our employees that:
WE WILL NOT coercively interrogate our employees as to their sentiments
toward, or their activities on behalf of, Local 1031, International Brotherhood
of Electrical Workers, AFL-CIO, or any other labor organization.
WE WILL NOT discourage membership in said labor organization, or any
other labor organization, by unlawfully threatening economic reprisals should
our employees assist or select such labor organization as their bargaining
representative.
WE WILL NOT prohibit our employees from engaging in any activity pro-
tected under the Act except to the extent proscribed by a lawful no-solicitation
rule.
WE WILL NOT engage in unlawful surveillance of our employees' activities
on behalf of said labor organization, or any other labor organization.
WE WILL NOT encourage our employees, in a manner constituting unlawful
interference with the exercise of their rights under the Act, to repudiate said
labor organization or to form a committee to act as their bargaining repre-
sentative.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights to self-organization, to form any labor
BLADES MANUFACTURING CORPORATION 561
organization, to join nr assist Local 1031, International Brotherhood of Electri-
cal Workers, AFL-CiO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in 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 National
Labor Relations Act.
All our employees are free to become, remain, or to refrain from becoming or
remaining members of any labor organization except to the extent that this right may
be affected by an agreement executed in conformity with Section 8(a)(3) of the
Act.
RADIO KEMETAL INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
RADIO INDUSTRIES, 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, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
Blades Manufacturing Corporation and International Associa-
tion of Machinists , AFL-CIO. Cases Nos. 26-CA-1170 and
26-CA-1236. September 16, 1963
DECISION AND ORDER
On March 16, 1962, Trial Examiner Thomas F. Maher, upon grant-
ing the General Counsel's Motion for Judgment on the Pleadings,
issued his Intermediate Report in Case No. 26-CA-1170, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report, and a supporting brief.
On June 18, 1962, the Board issued an order in that case directing
that the record be reopened for the purpose of furnishing to the Re-
spondent pretrial statements which had been denied to counsel for the
Respondent in Case No. 26-RC-1553; and directing further that, if
duly requested by the Respondent, a hearing was to be held before
the Trial Examiner to permit the Respondent to cross-examine the
witnesses from whom the foregoing statements were taken. After
receiving the pretrial statements, the Respondent made timely request
for a hearing in Case No. 26-CA-1170.
144 NLRB No. 54.