Sivalls, Inc

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 986 (N.L.R.B. 1992)

986
307 NLRB No. 154
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent excepted to the judge’s findings (1) that it un-
lawfully reduced the wages of employee Frank Mendoza and (2) that
it unlawfully failed and refused to bargain with the Union about the
Respondent’s decision to have employee drug tests performed by
Harrison & Associates Forensic Laboratories. The General Counsel
excepted to the judge’s finding that the Respondent did not unlaw-
fully transfer Mendoza to the painting and sandblasting department.
There are no exceptions to the judge’s findings and conclusions on
any of the other unfair labor practice allegations, and none of the
issues related to those other allegations are before the Board.
2 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
The judge’s decision contains some inadvertent errors, which we
correct below. None of them affects our results.
In the third paragraph of sec. IV,A,4 of his decision, the judge
found that there was ‘‘no’’ record evidence that the Respondent may
have believed that Mendoza was one of the employee leaders of the
Union’s organizing campaign. The insertion of ‘‘no’’ here appears
to have been inadvertent, in light of the rest of the judge’s discus-
sion in that paragraph and in the 10th and 11th paragraphs in sec.
IV,B, in which he found that there was ample record evidence on
which to base a conclusion that the Respondent believed that Men-
doza was a leader of the organizing campaign and a principal union
adherent in the plant.
In the last sentence of sec. IV,A,4, the judge erroneously found
that the Respondent’s plant manager, Ed Greenlee, testified that the
two new hires in the painting and sandblasting department were paid
the same wage rate as Mendoza—$9 per hour. Greenlee testified that
he believed that one of the new hires was paid $7.50 per hour and
the other $8, but that it was not $9 or $10.
In the remedy section of his decision, the judge erroneously rec-
ommended that backpay to make Mendoza whole for lost wages re-
sulting from the Respondent’s unlawful reduction of his wage rate
be computed as described in F. W. Woolworth Co., 90 NLRB 289
(1950). Where, however, an employer’s unlawful conduct results in
a loss of earnings but not cessation of employment status itself, as
in the instant case in regard to Mendoza’s wage reduction, computa-
tion of remedial backpay under the F. W. Woolworth formula is not
appropriate. Ogle Protection Service, 183 NLRB 682 (1970). See
Parma Industries, 292 NLRB 90, 91 fn. 9 (1988) (discriminatory
withholding of wage increase).
3 All dates are 1990 unless otherwise stated.
Sivalls, Inc. and United Rubber, Cork, Linoleum &
Plastic Workers of America, District 3, AFL–
CIO, CLC. Cases 16–CA–14715, 16–CA–14715–
2, 16–CA–14782, 16–CA–14821, and 16–CA–
14949
June 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 20, 1991, Administrative Law Judge
Burton Litvack issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the General Counsel also filed
an answering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions as modified and to adopt the rec-
ommended Order as modified.
1. We agree with the judge’s conclusion that the Re-
spondent violated Section 8(a)(1) and (3) of the Act by
discriminatorily reducing Frank Mendoza’s wage rate
from $10 to $9 per hour when it permanently trans-
ferred him from the welding department to the painting
and sandblasting department.
The Respondent’s plant manager, Ed Greenlee, testi-
fied that at the time of Mendoza’s transfer the Re-
spondent had an established firm policy that when an
employee is permanently transferred to a different de-
partment he cannot be paid at a higher wage rate than
the highest paid employee in that department, and that
Mendoza’s wage rate was reduced in compliance with
that policy. The judge discredited Greenlee’s testimony
on this subject as ‘‘an utter canard.’’
In affirming the judge’s conclusion, we note particu-
larly, in addition to his discrediting of Greenlee on this
subject, his findings (1) that there was no discrete job
classification or wage scale for a sandblaster
(Mendoza’s new principal duty), but (2) that the wage
scale for a painter (Mendoza’s new occasional duty)
went up to $11 per hour, and (3) that the determination
of Mendoza’s wage rate at the time of his transfer was
solely within the Respondent’s discretion—unrestricted
by any such wage policy for permanent transfers as
claimed by the Respondent.
2. We disagree with the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
failing to provide the Union with advance notice and
an opportunity to bargain about the Respondent’s deci-
sion to use Harrison & Associates Forensic Labora-
tories (Harrison Laboratories) to conduct drug and al-
cohol testing of the Respondent’s employees.
The judge found (1) that the selection of a particular
drug/alcohol testing facility is a mandatory subject of
bargaining, (2) that the Respondent’s decision to use
Harrison Laboratories to conduct testing was not made
until after the August 10, 19903 representation election
in which the Union was selected to be the collective-
bargaining representative of the Respondent’s unit em-
ployees, and (3) that the Respondent therefore violated
Section 8(a)(5) and (1) by failing to bargain with the
Union about this decision.
For the reasons set forth below, we find, contrary to
the judge, that the Respondent’s decision to use Har-
rison Laboratories was reached before the representa-
987SIVALLS, INC.
4 Accordingly, we find it unnecessary in this case to decide wheth-
er an employer’s decision to use a particular drug/alcohol testing fa-
cility is a mandatory subject of bargaining, and whether the Re-
spondent therefore would have had an obligation to bargain with the
Union about the decision to use Harrison Laboratories if that deci-
sion had not been reached before the representation election.
5 The lawfulness of the Respondent’s establishment and implemen-
tation of this drug testing policy, prior to the Union’s victory in the
August 10 representation election, is not at issue.
6 Testing was also conducted on August 23, 28, and 29, and in Oc-
tober.
7 Although the judge assessed Halbrook’s credibility unfavorably
in regard to his testimony on some other matters in this case, the
judge made no comment as to Halbrook’s credibility in his
uncontradicted testimony on this matter.
8 The judge found that ‘‘the parties herein seem to agree that, at
most, Dunn’s conversation with Harrison in April constituted Re-
spondent’s acknowledgment of its intent to use Harrison & Associ-
ates Forensic Laboratories for the purpose of conducting drug tests
of its employees.’’
tion election, and thus before the Respondent incurred
any bargaining obligation toward the Union.4
In October 1989, the Respondent’s personnel man-
ager, Ronnie Dunn, met with Harrison Laboratories’
owner and president, Roy Harrison. They discussed the
Respondent’s plans for a drug testing program and
Harrison Laboratories’ capability and availability to
conduct the testing for the Respondent. Harrison gave
Dunn a Harrison Laboratories informational brochure,
containing, inter alia, a description of various informa-
tional and testing services available, detailed checklists
for implementing a drug program and for selecting a
drug testing laboratory, and a price list for testing and
other services. Later that month, Harrison Laboratories
conducted a safety meeting on drug abuse for the Re-
spondent’s employees at the Respondent’s premises.
The Respondent implemented a drug testing policy
for employees on January 1 and announced it to the
employees on May 1, with an effective date of August
1.5 The announced policy did not, however, specify a
particular laboratory facility to perform the drug test-
ing, and the Respondent did not identify one to the
employees at the time of announcement. Harrison Lab-
oratories first tested the Respondent’s employees on
August 22 (i.e., after the August 10 representation
election).6
The Respondent’s executive vice president, Attieson
Halbrook, testified that the decision to use Harrison
Laboratories to do the testing was made in late April
(i.e., before the May 1 announcement of the plan to
the employees), that Dunn notified Harrison of this de-
cision at that time, and that Dunn told Harrison that
the Respondent would get back in contact when the
testing program actually went into effect on August 1.7
The record shows that Harrison Laboratories’ busi-
ness practice is not to enter into written contracts with
the clients for whom it performs drug testing, and that
it did not enter into a written contract with the Re-
spondent. Harrison Laboratories performs drug testing
for clients upon request, and bills them (including the
Respondent) for services rendered on a monthly basis.
In order to engage Harrison Laboratories’ drug testing
services, the Respondent only had to advise when and
where the Respondent wanted particular testing to be
conducted.
The judge, however, found that although the Re-
spondent informed Harrison in April that it would use
his firm to perform the drug testing in question, ‘‘no
contract between the parties existed for such purpose
at that time.’’8 Halbrook testified:
We contacted Harrison’s Labs in April and told
them they were going to be the ones that was
going to do our drug testing. We subsequently,
after the election, contacted them and made ar-
rangements for them to do the testing. [Emphasis
added.]
Relying on this testimony, the judge found that the
Respondent did not contact Harrison Laboratories to
arrange for the initial August 22 testing until after the
election. Under his analysis, the judge therefore found
that the Respondent and Harrison Laboratories did not
reach a contract for drug testing until after the elec-
tion—at which point the Respondent had a bargaining
obligation toward the Union.
Contrary to the judge, we find on the basis of the
evidence set forth above that there was no ‘‘contract’’
here, oral or written, between the Respondent and Har-
rison Laboratories for the drug testing of the Respond-
ent’s employees. The record shows that it was Har-
rison Laboratories’ established business practice not to
enter into such contracts with its clients. Rather, we
find that the Respondent and Harrison Laboratories ar-
ranged, without specifying a fixed period of time or
number of tests, that from time to time as requested
by the Respondent, Harrison Laboratories would con-
duct drug testing of the Respondent’s employees, on
dates subsequently to be provided by the Respondent,
and that Harrison Laboratories would bill the Respond-
ent monthly for those services.
In our view, the critical question in this case is
when did the Respondent decide to use Harrison Lab-
oratories for drug testing. On the basis of the prepon-
derance of the evidence, as summarized above, we find
that the Respondent, having consulted with and having
been advised by Harrison Laboratories on drug testing
matters since as early as October 1989, decided in
April—well before the existence of a bargaining obli-
gation to the Union—to have Harrison Laboratories
conduct the drug testing of its employees under the
Respondent’s new plan. Thus, we find that at the time
the Respondent decided to use Harrison Laboratories
for drug testing it was not yet under an obligation to
bargain with the Union. Accordingly, we shall dismiss
this complaint allegation.
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Sivalls, Inc., Odessa, Texas, its officers, agents, suc-
cessors, and assigns, shall take the the action set forth
in the Order as modified.
1. Delete paragraph 1(g) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT engage in bad-faith surface bargaining
with no intention of entering into any final or binding
collective-bargaining agreement with United Rubber,
Cork, Linoleum & Plastic Workers of America, Dis-
trict 3, AFL–CIO, CLC, the exclusive representative
for purposes of collective bargaining of our production
and maintenance employees at our Odessa, Texas
plant.
WE WILL NOT refuse to consider the inclusion of a
dues-checkoff provision in any final collective-bar-
gaining agreement with the Union.
WE WILL NOT insist on a broad management-rights
clause and a no-strike provision in any final collective-
bargaining agreement with the Union while, at the
same time, refusing to consider the inclusion of any ar-
bitration provision.
WE WILL NOT refuse to engage in collective bar-
gaining with the Union at our plant while, at the same
time, refusing to share the cost of any meeting site
away from the plant.
WE WILL NOT unreasonably delay in furnishing in-
formation, which is necessary and relevant for collec-
tive bargaining, to the Union.
WE WILL NOT unilaterally, and without giving prior
notice to the Union or affording it an opportunity to
bargain, implement changes in our bargaining unit em-
ployees’ terms and conditions of employment, as set
forth in a revised employee manual, including a new
provision that the plant ‘‘will’’ be closed for 2 weeks
for maintenance and requiring vacations be taken dur-
ing the shutdown, a provision giving employees an
hour of unauthorized leave in order to vote, and the
deletion of the material dispatcher job classification.
WE WILL NOT unilaterally, without giving the Union
prior notice or affording it an opportunity to bargain,
and in retaliation for our bargaining unit employees’
selection of the Union to represent them, change their
terms and conditions of employment, including no
longer permitting food and drink to be taken back to
work stations after break periods and changing the
time for the distribution of paychecks.
WE WILL NOT reduce our employees’ rates of pay,
after permanently transferring them to different jobs, in
retaliation for their perceived leadership role in the
Union’s organizing campaign.
WE WILL NOT interrogate our employees regarding
their union activities and sympathies and those of their
fellow employees.
WE WILL NOT warn our employees that their orga-
nizing efforts and selection of the Union as their bar-
gaining representative would be an exercise in futility.
WE WILL NOT threaten reprisals against our employ-
ees for their organizing efforts and selection of the
Union as their bargaining representative.
WE WILL NOT warn our employees that, if they se-
lect the Union as their bargaining representative, con-
tract bargaining will start from the ground up and
could drag on for 15 to 17 years without any agree-
ment.
WE WILL NOT threaten our employees with termi-
nation because of their support for the Union.
WE WILL NOT threaten our employees with plant
closure, loss of benefits, or other reprisals if they select
the Union as their bargaining representative.
WE WILL NOT solicit grievances or ‘‘gripes’’ from
our employees in order to induce them to abandon
their support for the Union.
WE WILL NOT threaten our employees with termi-
nation for discussing their rates of pay or salary with
fellow employees.
WE WILL NOT create the impression that we are en-
gaging in surveillance of our employees’ protected
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union re-
garding rates of pay, wages, hours, and other terms
and conditions of employment and, if an agreement is
reached, embody the terms of the agreement in a
signed written agreement.
WE WILL restore the status quo terms and conditions
of employment as they existed prior to our 1990 uni-
lateral changes, which occurred after the Union’s vic-
tory in a representation election, and continue them in
effect unless and until the Union states its desire not
to bargain over a change, a collective-bargaining
agreement is reached with the Union, or an impasse is
reached in bargaining.
989SIVALLS, INC.
1 At the hearing, counsel for the General Counsel was granted per-
mission to amend the consolidated complaint to allege an additional
violation of Sec. 8(a)(1) of the Act.
WE WILL restore the rate of pay of employee Frank
Mendoza to the rate at which he was paid at the time
of his permanent transfer to the painting and sand-
blasting department and WE WILL make him whole,
with interest, for any wages he lost as a result of our
discrimination against him.
SIVALLS, INC.
Timothy L. Watson, Esq., for the General Counsel.
James T. McNutt Jr., Esq. (Scott, Hulse, Marshall, Feuille,
Finger & Thurmond), of El Paso, Texas, for the Respond-
ent.
Freddie Sanchez, URW Representative, of Odessa, Texas, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Based upon
unfair practice charges in Cases 16–CA–14715, 16–CA–
14715–2, 16–CA–14782, 16–CA–14821, and 16–CA–14949,
filed by United Rubber, Cork, Linoleum & Plastic Workers
of America, District 3, AFL–CIO, CLC, on August 13, Octo-
ber 18, November 21, December 6, 1990, and March 15,
1991, respectively, the Regional Director of Region 16 of the
National Labor Relations Board (the Board) issued a consoli-
dated complaint on April 22, 1991, alleging that Sivalls, Inc.
(Respondent), had engaged in acts and conduct violative of
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act (the Act). Respondent timely filed an answer, essentially
denying the commission of any of the alleged unfair labor
practices. Pursuant to a notice of hearing, a trial on the mer-
its of the consolidated complaint allegations was held before
me in Odessa, Texas, on May 14 through 16, 1991.1 At the
hearing, all parties were afforded the opportunity to examine
and/or cross-examine each witness, to offer into the record
any relevant evidence, to argue legal positions orally, and to
file posthearing briefs. The documents were filed by counsel
for the General Counsel and by counsel for Respondent and
each brief has been carefully considered. Accordingly, based
upon the entire record herein, including the posthearing
briefs and my observation of the testimonial demeanor of the
several witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a State of Delaware corporation, maintains a
plant and office facility in Odessa, Texas, at which it is en-
gaged in the manufacture of oil and gas processing equip-
ment. During the 12-month period immediately preceding the
issuance of the consolidated complaint, which period is rep-
resentative, in the normal course and conduct of its business
operations, Respondent purchased and received, at its Odes-
sa, Texas facility, goods, and materials, valued in excess of
$50,000, directly from suppliers located outside the State of
Texas. Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
Respondent admits that United Rubber, Cork, Linoleum &
Plastic Workers of America, District 3, AFL–CIO, CLC (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
III. ISSUES
The consolidated complaint alleges that, prior to the hold-
ing of a representation election on August 10, 1990, Re-
spondent engaged in numerous violations of Section 8(a)(1)
of the Act, including interrogating employees about their
union sympathies and activities, threatening employees with
discharge and loss of benefits because of their union activi-
ties, expressing to employees the futility of unionism by var-
ious means, threatening to shut down the plant because of
employees’ union activities, and creating the impression of
surveillance of employees’ union activities. The consolidated
complaint also alleges that Respondent engaged in conduct
violative of Section 8(a)(1) and (3) of the Act on or about
September 20, 1990, by demoting and reducing the pay of
employee Frank Mendoza. The consolidated complaint fur-
ther alleges that Respondent engaged in conduct violative of
Section 8(a)(1), (3), and (5) of the Act by, subsequent to the
holding of the aforementioned representation election, unilat-
erally changing its employment practices regarding distrib-
uting employee paychecks prior to the end of the workday
and regarding the consumption of food and drink at the close
of break periods. Finally, the consolidated complaint alleges
that Respondent engaged in conduct violative of Section
8(a)(1) and (5) of the Act by failing and refusing to supply
necessary and relevant information to the Union for the con-
duct of bargaining; by unilaterally contracting with an inde-
pendent laboratory for the conducting of drug tests of its em-
ployees; by instituting several unilateral changes in the terms
and conditions of employment of its employees, including in-
stituting a new scheduling plan for vacations, discontinuing
granting 1 hour paid voting time, abolishing the material dis-
patcher job classification, and implementing a policy requir-
ing employees to return from vacation based upon Respond-
ent’s needs; by, during collective bargaining with the Union,
refusing to meet at its own facility and refusing to share the
cost of a neutral location, insisting upon an overly broad
management-rights clause, insisting upon a no-strike provi-
sion but refusing to provide for arbitration of grievances, re-
fusing to include a dues-checkoff provision, and by insisting
upon inclusion of a broad waiver clause; and by engaging in
overall surface and bad-faith bargaining. Respondent denied
the commission of all of the alleged unfair labor practices.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent is engaged in the manufacture of oil and nat-
ural gas processing equipment, in the form of large cylin-
drical-shaped vessels, used for the treatment of oil and gas
as these materials are pumped from beneath the surface of
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Hudnall insisted that Cranson initiated the three conversations,
and ‘‘I would tell him that I did not want to talk about the union.
We had several conversations where he would ask me questions and
then he would get mad, and . . . cuss at me and tell me that damn
union wasn’t going to get you anything out there.’’
While Hudnall conceded that he wore a ‘‘vote yes’’ button, indi-
cating support for the Union, there is no evidence as to when he did
so or that his Supervisor Cranson was aware of his union sym-
pathies.
3 According to Munoz, he had never given Cranson any indication
as to his union sympathies and had never worn a union button or
T-shirt.
the earth and maintains production facilities in Odessa,
Pampa, and Brownwood, Texas. The Odessa facility, at
which the events herein occurred, is comprised of an office
building, a manufacturing building, and a painting and sand-
blasting ‘‘shed.’’ Attieson Halbrook is Respondent’s execu-
tive vice president; Ed Greenlee is the Odessa facility plant
manager and ‘‘oversees’’ all work performed there; and Rus-
sell Cranson is the foreman of the welding department. Dur-
ing the summer months of 1990, Respondent employed ap-
proximately 50 production and maintenance workers at the
Odessa plant, with, at least, a third of the employees working
in the welding department. There is no dispute that the
Union commenced an organizing campaign of Respondent’s
aforementioned employees in June 1990 and that, after
Freddie Sanchez, a temporary international representative of
the Union, met with a group of Respondent’s employees, dis-
tributed literature, and asked them to execute authorization
cards, a representation petition was filed with Region 16 of
the Board on June 19. Likewise, there is no dispute that the
representation election, encompassing Respondent’s produc-
tion and maintenance employees, was scheduled for August
10 and that the ensuing preelection period was characterized
by partisan campaigning by both Respondent and the Union.
2. Respondent’s allegedly unlawful preelection conduct
Insofar as the record reveals, whatever unlawful conduct
in which Respondent may have engaged during the
preelection period is attributed to two managerial employees,
Ed Greenlee and Russell Cranson, who, Respondent admit-
ted, are supervisors within the meaning of the Act. Initially,
with regard to the Welding Supervisor Cranson, William
Hudnall, who was employed by Respondent as a welder from
June 1987 until being laid off on April 14, 1991, testified
that, early in the preelection time period, Cranson ap-
proached him at his work area and, with no one else present,
‘‘he asked me how the union was going.’’ Believing that
Cranson wanted to learn what the employees desired from
union representation, Hudnall replied that the employees
were gathering all their proposals together for contract nego-
tiations but were particularly concerned about better benefits
and, perhaps, more money. Cranson responded that the
Union could not guarantee more money to the employees and
that ‘‘the company would spend the last dollar that they had
to beat the union; that nothing was guaranteed.’’ He added
that there were cases that extended to 15 to 17 years and
‘‘they would never get a contract.’’ On another occasion late
in June, according to Hudnall, he and Cranson were dis-
cussing the Union at his work area, and Hudnall commented
that ‘‘what we were trying to do is put ourselves together
and that we could get better benefits and . . . more money.
And he told me that there was no way that we could get that
. . . and that . . . the company wouldn’t abide by that.’’
Cranson then warned ‘‘if I continued to talk to anyone about
the union . . . I was going to be fired.’’ The witness added
that Cranson repeated this same warning ‘‘at least a dozen
times’’ on a daily basis before the election. Hudnall testified
about a third allegedly unlawful conversation with his super-
visor 1 or 2 days before the election in Cranson’s office. Ac-
cording to Hudnall, Cranson ‘‘said that the election was over
at 4:00 and that if we won . . . everything that we had at
the company—our benefits, our holidays, our vacations, our
breaks—everything would be taken away. . . . we had no
guarantee of anything; it would be all negotiable.’’2
Ernest Munoz, a welder who worked for Respondent from
June 1985 until his layoff on April 12, 1981, also testified
to allegedly unlawful conversations with supervisor Cranson.
The first of these occurred in early or mid-July when Munoz
was in the supervisor’s office examining blueprints. Cranson
was in the office, and ‘‘he was telling me that the union was
no good and what did I think about it.’’ Munoz replied that
he once had belonged to a union and that it was good.3 Next,
the witness testified to a conversation similar to one de-
scribed above between Cranson and Hudnall. According to
Munoz, 2 weeks before the election, while in the supervisor’s
office examining blueprints, Cranson ‘‘told me that if the
union won, they would take all benefits away, and just [be-
cause] they were bargaining didn’t mean they would come
to an agreement, and that there was a company that had been
bargaining for 17 years and never came to anything.’’
Two other witnesses testified to allegedly unlawful con-
versations with Russell Cranson. Gregory Perez, who was
employed by Respondent as a welder/fabricator until being
terminated in August 1990 after failing a drug test, testified
that, one afternoon in late June, while he was speaking to
Cranson in front of the supervisor’s office regarding his work
assignment, Cranson mentioned one of Respondent’s com-
petitors RAMA and said that ‘‘this union thing is going to
screw things up. . . . all you guys who are in the union . . .
if you think you can get a job and not be fired from her and
go the RAMA’s . . . RAMA doesn’t want you over there.
. . . [Ronnie Dunn, the personnel director has] already let
them know who all is in the union and . . . [RAMA] doesn’t
want you over there.’’ Abel Cadena, who worked for Re-
spondent for more than 5 years before being terminated for
failing a drug test in October 1990, testified that he spoke
to Cranson ‘‘about a week before the election’’ regarding the
Union. Cadena, who was a welder, went to Cranson’s office
to get a job assignment, and, in the midst of their conversa-
tion, they discussed the Union and the possibility of better
employee benefits. The supervisor said that the Company
would do what it wanted, and ‘‘they weren’t afraid of no
union. . . . He told me, too, that the union would split the
shop up.’’ Cadena disagreed, saying the employees seemed
closer than they had ever been. To this, Cranson replied,
‘‘That what is going to happen is it is going to shut the place
down if the union comes in.’’
During his direct examination, Russell Cranson generally
denied the consolidated complaint allegations regarding him
and denied having initiated any conversations with employ-
ees about the Union. However, he admitted having many
conversations with the employees, whom he supervised, on
991SIVALLS, INC.
4 With regard to other alleged statements attributed to him,
Cranson denied interrogating any employee as to his union senti-
ments and could not recall discussing the subject of RAMA with
Greg Perez. However, on the latter point, Cranson averred, ‘‘We al-
ways talk about RAMA’’ and conceded that he and Perez ‘‘could
have’’ discussed RAMA and the Union.
that subject, and, as will become evident, his testimony as
to these admitted conversations was at variance with his
aforementioned general denials. Thus, while denying having
expressed to employees the futility of organizing by stating
that there were cases of companies dragging out contract ne-
gotiations for 15 to 17 years, Cranson admitted, during direct
examination, that such discussions with Munoz and Hudnall
might have occurred—‘‘I believe so. I don’t know for sure.’’
Cranson continued, saying that he might have mentioned
how long bargaining could last as the two employees had the
‘‘impression’’ that a contract could be reached after just one
bargaining session. Moreover, during cross-examination,
Cranson was able to recall a conversation with Hudnall, dur-
ing which he said there was a company that had negotiated
with a union for 15 to 17 years and dragged out negotiations
to the point that the union was never able to achieve a col-
lective-bargaining agreement, and conceded it was ‘‘pos-
sible’’ he also told this to Munoz. Further, the supervisor ad-
mitted that he ‘‘initiated’’ the bargaining story as he had
heard about the matter from a relative and conceded that the
point of his story was that the Union might not necessarily
ever reach a contract with Respondent. With regard to warn-
ing Hudnall that he could be fired for speaking about the
Union, Cranson admitted speaking to Hudnall about talking
about the Union while working—‘‘I told him that he needed
to go back to work and quit talking about union on company
time, or it could cost him his job. And he was headed back
to his work station.’’ According to the supervisor, he had
previously explained to Hudnall that he could speak about
the Union ‘‘on his own time, at break, at dinner, after work,
before work, just not during working hours.’’ Then, asked if
he told Hudnall that he could not speak about the Union at
his work station while working, Cranson replied, ‘‘No,’’ but,
immediately thereafter, answered ‘‘yes’’ when asked if he
told Hudnall he could speak about the Union at any time he
was not working. Regarding his attributed threat that Re-
spondent would take away all employee benefits if the Union
won the election, Cranson admitted that, 1 week before the
election, he told employees that, if the Union won, Respond-
ent could do anything—‘‘It was their prerogative.’’ Specifi-
cally, as to benefits being taken from them, Cranson con-
ceded that employees ‘‘asked me what would happen. I don’t
know what would happen. . . . the company is running it.’’
Also, he admitted that, with regard to bargaining, he told em-
ployees the parties did not have a contract ‘‘so they are
going to have to start . . . from [the ground up].’’ Finally,
while emphatically denying, during direct examination, that
he ever threatened that Respondent would shut the plant if
the employees selected the Union to represent them, Cranson
changed his testimony during cross-examination, saying the
issue was raised by employees prior to the election, ‘‘and I
just answered they can do what they want.’’4
With regard to allegedly unlawful statements made by
Plant Manager Greenlee, William Hudnall testified that, just
prior to the election, Cranson asked him to report to the plant
manager’s office. He did so and, upon entering the office,
Greenlee ‘‘asked me what my gripes were.’’ Hudnall re-
sponded that he wanted a raise as he had taken numerous
tests and passed them in order to become more proficient as
a welder. Stating he was not supposed to mention the Union,
Greenlee responded, ‘‘You think the Union is going to get
you a raise. . . . that will never happen.’’ Hudnall then
raised the matter of benefits, saying that other companies in
the Odessa area give better benefits and better pay than Re-
spondent. To this, Greenlee replied that Hudnall was com-
paring different types of work, like ‘‘salt with pepper.’’ He
then warned that Hudnall should keep his mind on his own
job and not ‘‘worry how much you are making or you are
going to be fired.’’ Gregory Perez testified to a July con-
versation with Greenlee which occurred in front of Cranson’s
office. According to the witness, Greenlee initiated the con-
versation, asking ‘‘me why we wanted a union’’ and saying
‘‘that the union wasn’t going to do anything for us but give
us . . . dues. He said that we had the best benefits out there
already.’’ Perez denied ever having disclosed his union senti-
ments to Greenlee prior to this conversation.
Ed Greenlee admitted speaking to Gregory Perez in front
of Cranson’s office and asking why ‘‘the guys’’ wanted the
Union (‘‘I just asked him what the guys were wanting, why
they were upset, what their feelings were?’’) but denied
warning that the Union would get them nothing but dues. As
to a conversation with Hudnall, Greenlee recalled a conversa-
tion with the employee during which Hudnall questioned
why he had not received a raise. According to Greenlee,
Hudnall ‘‘was concerned . . . why other . . . welders were
making more money than he . . . was.’’ Greenlee replied
that he had different welding skills and was slower than the
others. ‘‘I told him . . . he needed to pick up his speed,
worry about his job, and not worry about what everybody
else was making or . . . doing.’’ He denied any threat of job
loss.
3. Alleged postelection retaliatory unilateral changes
The Union received a majority of the votes cast in the Au-
gust 10 representation election by a margin of one, 26–25,
and the Union was certified by the Regional Director of Re-
gion 16 on August 20. Within days, of the election, it is al-
leged, Respondent instituted two significant changes in em-
ployee working conditions without offering to bargain with
the Union prior to implementation and in retaliation for its
employees’ act of voting in favor of union representation.
The first of these involves a change in Respondent’s practice
regarding employee break periods. As to this, there is no dis-
pute that Respondent gives its employees two 15-minute
break periods each day, one in the morning and one in the
afternoon. There is also no dispute that a whistle is blown
to signify the start of a break period; that a second whistle
is blown 12 minutes into the break period, signifying to em-
ployees that they have to finish their food and drink and re-
turn to their work stations; and that a third whistle is blown
at which time the employees are supposed to resume work-
ing. Employee Jeff Hamilton, who works in the layout de-
partment, testified that, in the 6 years he has been employed
by Respondent, the practice had been that ‘‘after the break
was over, we could take a can of pop out back to work area,
or a candy bar’’ and finish the food or drink while working.
He added that he observed such as the practice for employ-
ees in other departments, as well. However, he continued,
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Munoz conceded that he was not disciplined by Greenlee.
6 The detrimental effect of this announcement upon employees
seems clear. Thus, the record establishes that normal quitting time
for employees in the time period of the representation election was
approximately 5:30 p.m. and that, according to Greenlee, under the
new policy, many employees were not paid until as late as 7:30 p.m.
Such meant that employees would not be able to get their paychecks
to the bank until the following Monday.
7 Greenlee testified that this conversation occurred prior to the
election, that Burgess accused him of changing the check distribution
time, and that he denied it, saying that the policy always was to dis-
tribute the checks at 4 p.m. on Friday and not sooner. Indeed, a no-
tice to employees, signed by Greenlee and dated July 17, 1989,
states that ‘‘effective immediately, shop hourly payroll will not be
released until Friday at 4 p.m. of each week.
after the election, ‘‘things started tightening up’’ and Ed
Greenlee announced ‘‘that we could not take anything out of
the break rooms.’’ Witnesses Munoz and Hudnall corrobo-
rated Hamilton on this change in work practice. According
to Hudnall, the change occurred within a day or two after
the election, and, according to Munoz, the practice prior to
the election was ‘‘if you still had a coke or candy, you could
take it out there and finish eating or drinking’’ but, after the
election, ‘‘that wasn’t allowed any more.’’ He added that,
‘‘about two weeks after’’ the election, he was approached by
Greenlee at the end of a break period while ‘‘I was going
to the time clock with a cup of coffee in my hand and he
. . . told me to dump it out.’’5
Welding Department Supervisor Cranson testified that
there is supposed to be no food or drink taken from the
breakrooms to the work areas but stated ‘‘at times some [em-
ployees] get lax’’ and ‘‘I just remind them no food or drink
on the floor and they dispose of it.’’ Later, he testified that
the foregoing was an ‘‘off and on’’ problem and that ‘‘we
have clamped down’’ whenever such has occurred during the
course of his employment by Respondent. Cranson admitted
such a clamp-down ‘‘right before’’ the election. Plant Man-
ager Greenlee likewise testified that the company rule has al-
ways been not to permit food and drink to be taken back to
the work areas after breaks. While stating that the common
practice of employees is to follow the rule, Greenlee added
that enforcement is ‘‘an age old problem’’ and that ‘‘on sev-
eral different occasions,’’ Respondent has observed that em-
ployees ‘‘would still have coke or coffee in their hand when
they got to their work area . . . and have it sitting there
when they were supposed to be back at work.’’ During
cross-examination, Greenlee admitted that the company rule,
regarding food and drink at the work stations, is not in writ-
ing and that violations occur on a daily basis. He further ad-
mitted that, in August 1990 both before and after the elec-
tion, given the longtime abuse of this policy, he was in-
structed to clamp down upon employees who disregarded it.
Notwithstanding his assertion that stricter enforcement began
prior to the election, Greenlee was unable to state if he
meant the first 9 days of August.
The second alleged retaliatory change in employee work-
ing conditions concerns the distribution of paychecks. On
this point, witnesses Hudnall, Munoz, Cadena, Perez, and al-
leged discriminatee, Frank Mendoza, each testified that, prior
to the election, their Supervisor Cranson would distribute the
weekly paychecks to the welding department employees ‘‘on
Fridays . . . on our 2:30 break’’ and, if later, always before
3 p.m. and that the time of distribution of the paychecks had
been the same for many years. This practice seems to have
been important to employees as, upon receipt of the pay-
checks, many would go outside and give the checks to their
waiting wives who, in turn, would go to local banks and ei-
ther cash or deposit the checks. Frank Mendoza testified that,
on the Friday of the week following the election, Cranson
failed to distribute the employee paychecks at the accus-
tomed time and that he spoke to Cranson and asked why.
Cranson replied that Greenlee told him to distribute them at
5 p.m. At 5 p.m. and after Cranson again failed to distribute
the checks, Mendoza again asked why, and Cranson replied
that Greenlee wanted them given out at quitting time. The
following week, a notice, signed by Ed Greenlee and dated
August 20, was posted on employee bulletin boards. It read
as follows:
Effective immediately, shop hourly payroll checks
will not be released until Friday at quitting time of each
employee.
This change is due basically to the change in hours
being worked by the shop and will remain in effect
until further notice from management. This payroll will
be distributed by the foreman of each department and
may not be picked up in your absence before quitting
time of your respective departments. Further, no checks
will be released to anyone without written permission
from you which will be filed in your personnel file.6
Gregory Perez testified that, one Friday after the above
change had been implemented, he was speaking to fellow
employee, Bill Burgess, who expressed displeasure about the
change. Greenlee happened to walk past, and Burgess asked
why he could not have his check. Greenlee said he would
be given the check at quitting time, and after Burgess contin-
ued complaining, Greenlee responded, ‘‘The union is not
going to tell me when to pay.’’ Burgess responded that the
plant manager’s attitude was why the employees had voted
for the Union. To this, Greenlee replied, ‘‘I don’t give a
damn about the union. You had my hands tied for 20 days
but my hands are untied now. . . . I can do what I want.’’7
Russell Cranson could not recall ever having a practice of
distributing employee paychecks on Friday afternoons at 2:30
p.m. because he did not receive them until that time. He then
conceded that he ‘‘sometimes’’ distributed the checks at 2:45
p.m., immediately after the break period. Continuing,
Cranson testified that, as with the break period change, the
practice was changed in August 1990, but ‘‘it was before the
election.’’ As to the August 20 notice, Cranson averred that
‘‘It is not a change. It was just enforced.’’ However, after
reading the notice, he conceded such represented a change in
policy. The author of the August 20 document, Ed Greenlee,
testified that Respondent’s practice was not to distribute any
paychecks before 3 p.m. on Friday afternoons because of Re-
spondent’s banking practices but conceded that distribution
before 3 p.m. ‘‘could have happened.’’ During cross-exam-
ination, Greenlee testified that the August 20 document
merely ‘‘clarified’’ Respondent’s paycheck distribution pol-
icy resulting from a ‘‘disruption’’ in the plant caused by em-
ployees, who received paychecks during the 2:30 p.m. break,
leaving the plant and giving their paychecks to waiting
wives. He added that such had been an ‘‘on-going problem’’
993SIVALLS, INC.
8 Russell Cranson testified that, in an average day, Mendoza would
spend between 5 and 30 minutes requisitioning parts and materials
from the warehouse, would run a crane, and ‘‘he . . . helped every-
body in the [welding department] if they needed help. He stayed
busy all the time.’’ In short, according to Cranson, Mendoza ‘‘was
a helper,’’ with 75 to 90 percent of his time devoted to such activi-
ties—‘‘It doesn’t take that long to do the materials.’’ During cross-
examination, Cranson denied that Mendoza performed all the job
functions (reading blueprints, obtaining and returning material to the
warehouse, preparing paperwork, delivery parts, keeping an inven-
tory of parts, and assuming delegated responsibilities for material
control) of a material dispatcher each day but, rather, only during
inventory.
William Hudnall described what Mendoza did for the welders as
follows—‘‘he would gather the prints up, distribute all the material
and bring them to our work area. And then he would discuss ways
to speed up production or . . . if we needed any material or . . .
parts, then he would write up a requisition and go and get it and
return it to us.’’ He confirmed that Mendoza helped in other depart-
ments but ‘‘not on a daily basis.’’
during his tenure as plant manager. However, Greenlee con-
ceded that the August 20 document states nothing about an
‘‘on-going problem’’ of disruption of the work place and that
the stated reason for the new distribution time was a change
in the hours worked. In view of this discrepancy, asked for
the actual basis for the change, Greenlee said, ‘‘It was a dis-
ruption in the work place.’’ Next, the plant manager refused
to concede that the wording of the notice represented any
sort of change in working conditions, once again terming it
‘‘just a clarification.’’ However, he did acknowledge that the
notice itself constituted ‘‘a change.’’ Greenlee conceded that,
although the disruption of the work place had been ongoing
for some time, the ‘‘clarification’’ was not made until imme-
diately after the representation election which Respondent
lost by a margin of one vote. Finally, Attieson Halbrook
echoed Greenlee’s assertion that the August 20 notice did not
constitute a change—‘‘It says change on it but it is not a
change. It is just a clarification.’’
There is no evidence, nor any contention by Respondent,
that it offered to bargain with the Union prior to imple-
menting either of the two above-described alleged alterations
of past employment practices.
4. The alleged discrimination against Frank Mendoza
On or about September 20, 1990, alleged discriminatee,
Frank Mendoza was permanently transferred to Respondent’s
painting and sandblasting department at a wage rate of $9
per hour. For the previous 5 years, Mendoza had been em-
ployed as a material dispatcher in Respondent’s welding de-
partment, and, at the time of his aforementioned transfer, he
was earning $10 per hour. The consolidated complaint al-
leges that Mendoza’s transfer to the painting and sand-
blasting department and the attendant reduction of his rate of
pay constituted a discriminatory demotion based upon his
suspected leadership role in the successful union organizing
campaign.
The record establishes that, as the material dispatcher in
the welding department, Mendoza utilized an office, with a
desk and telephone, next to that of the Welding Department
Supervisor Cranson and that, with regard to his job duties,
‘‘my job was to order all of the parts that the welders are
going to need, look at the [blueprints] . . . check the prints
if they are correct, and . . . if there were any mistakes . . .
then I would order into the warehouse . . . and I would send
some to the layout department.’’ Continuing, Mendoza testi-
fied, he also ‘‘used to run the crane . . . and when the weld-
ers need something, I would go out there . . . and . . . do
the job of layout.’’ Further, according to Mendoza, he per-
formed ‘‘hydro’’ tests on vessels for welders and cutting
jobs. During cross-examination, the alleged discriminatee ad-
mitted that he was experienced at performing various jobs
throughout the plant and that he could be termed a jack-of-
all-trades. On this point, Mendoza said he would show weld-
ers how to ‘‘hang heads,’’ which are cast iron slabs of metal,
shaped like grapefruit halves, and used to seal the ends of
the vessels, occasionally performs grinding work, cuts and
threads pipe, works as a quality tester, and helps pipefitters
in the insulation department.8 In addition to his regular mate-
rial dispatcher job duties, Mendoza occasionally served as
acting foreman in the welding department ‘‘when Russell
would take off early or he would miss a day and he would
take vacations.’’ Asked how frequently, Mendoza estimated
‘‘about four or five times’’ during an average month. On this
point, Russell Cranson testified that Mendoza substituted for
him just ‘‘two times’’ in 1990; however, during cross-exam-
ination, he stated that one of these occasions was for an en-
tire week (May 29 through June 2). Asked how frequently
Mendoza substituted for him in 1989, Cranson said it was
‘‘just a couple of times.’’ Contradicting him, Respondent’s
time records for 1989 (G.C. Exh. 20) disclose he acted for
Cranson six times that year, twice for 2-day periods.
Mendoza testified that he first became aware of the
Union’s organizing effort in June, that he attended organizing
meetings at the Best Western Hotel in Odessa, that he re-
ceived a handbook from the Union, that he signed an author-
ization card for the Union, that he spoke to other employees
about the Union, and that he distributed authorization cards
to other employees. While there is no evidence that Mendoza
was one of the employee leaders of the organizing campaign,
there is no record evidence that Respondent may have be-
lieved such was the case. Thus, there is no dispute that, one
afternoon prior to the election, Mendoza went to Ed
Greenlee’s office and asked why two known nonunion sup-
porters, Terry Gray and Johnny Blaylock had been trans-
ferred to other jobs rather than ‘‘other guys.’’ Greenlee re-
plied that management had the right to what it wanted but,
in any event, he would have an answer for Mendoza the next
day. When he reported for work the next morning, the al-
leged discriminatee saw a notice, announcing a meeting in
the breakroom for later that morning. Approximately 20 to
30 employees attended, and Greenlee, who conducted the
meeting announced that Mendoza had spoken to him the day
before about the transfer of two employees in the service de-
partment and said that he wanted all the employees to hear
his response directly rather than second hand. At this point,
Mendoza stood and interrupted, saying the matter was just
between Greenlee and himself. The plant manager told him
to sit and be quiet and gave his explanation for what hap-
pened. As the meeting ended, Greenlee requested that Men-
doza wait. The foregoing is not in dispute; what was said be-
tween them after the meeting is. According to Mendoza,
Greenlee began by admonishing him ‘‘not to put him in a
situation like that never.’’ Mendoza defended his actions,
saying Greenlee had caused it by promising it was between
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 ‘‘Coating’’ involves spraying a special coating on the inside
walls of a vessel and requires a ‘‘qualified and experienced’’ worker.
According to Greenlee, ordinary painters are not qualified to do this
work.
10 As of the date of the instant hearing, Galindo had not yet recov-
ered from his injury.
11 Greenlee testified, ‘‘I knew that Frank had prior experience
sandblasting. He had worked there [in the past] . . . and I could take
Frank out of the department without having to take a welder or dis-
turb any of the other jobs that I had going.’’
There is no dispute that Mendoza had no painting experience and
cannot perform that kind of job. Greenlee did not explain why it was
necessary to temporarily assign a sandblaster to the painting and
sandblasting department when it appears that the immediate need
was for someone with painting or coating experience.
12 Greenlee did not want to transfer a welder who had sandblasting
experience, for ‘‘if I had taken a welder, then I would have stopped
[a] job.’’
Russell Cranson was questioned by counsel for the General Coun-
sel about two welders, Antonio Sauceda and Oscar Vanegas, who
had sandblasting experience. Cranson said both were needed, at the
time, for welding jobs, and Greenlee corroborated him on this.
13 Under questioning by counsel for the General Counsel regarding
test department employee, Javier Rozco, Greenlee said he had ‘‘very
little’’ experience in painting and sandblasting and denied that Rozco
had more experience than Mendoza. Also, regarding employees
David McCarter and Cecil Wood, both of whose timecards indicated
painting and sandblasting experience, Greenlee denied either was
doing such work but failed to explain what they, in fact, were doing.
Finally, Executive Vice President Halbrook testified that, in Sep-
tember 1990, at least 10 percent of the work force had experience
doing painting and sandblasting work. In these circumstances, there
is no record evidence, other than regard to welders, why employees
from other departments were not available for temporary transfer, es-
pecially when Mendoza’s experience on the job was limited to 2
days of sandblasting work some years before.
the two of them. Greenlee replied, ‘‘I don’t have to talk to
you to get to the union.’’ Mendoza asked if Greenlee was
accusing him of being the ‘‘head man’’ in the campaign, and
Greenlee said, ‘‘You are damn right I am.’’ Continuing,
Greenlee said that Mendoza was ‘‘pretty smart’’ being a
Mexican. Mendoza asked if the former was implying that all
Mexicans were dumb; Greenlee replied that Mendoza could
‘‘take that like you want to.’’ Contrary to the employee, the
plant manager’s version of what was said after the meeting
is that ‘‘I explained to him why I did that, that I wanted to
give my answers to the people firsthand and not have to talk
through him to them.’’
There is no dispute that, during the week prior to the elec-
tion, Mendoza wore a ‘‘vote yes’’ button while he worked.
There is also no dispute that, at approximately this time, Re-
spondent’s executive vice president Halbrook approached
Mendoza in the layout area, showed him a copy of the
Union’s constitution, and asked if he had ever seen it. Men-
doza said that he had but that he had not read it. Thereupon,
Halbrook pointed out that the constitution stated that a mem-
ber could be placed in jail for failing to pay his ‘‘fees’’ to
the Union. According to Mendoza, when Mendoza said he
would not want that to happen, Halbrook said, ‘‘I know that
you carry the Hispanic vote so make sure you let them know
about that.’’ Halbrook denied this comment but admitted in-
structing Mendoza to tell other employees he had copies of
the Union’s constitution. Also Mendoza was the only em-
ployee to whom Halbrook spoke in this regard. Further, there
is no dispute that Mendoza acted as the Union’s observer
during the election. According to him, the next day, Cranson
told him ‘‘that I was going to be foreman no more’’ because
‘‘Ed Greenlee wanted a welder.’’ Subsequently, Mendoza ap-
proached Greenlee on the matter, and the latter confirmed
what Cranson had said, saying ‘‘I need a welder there.’’ The
employee threatened to report the matter to the Union, and
Greenlee said he could tell whomever he wanted and ‘‘he
wasn’t afraid of nobody about it.’’ Greenlee, who denied any
knowledge of Mendoza’s support for the Union until he
acted as the Union’s election observer, failed to deny this
conversation.
The record establishes that Mendoza, who, a few years be-
fore, had voluntarily performed sandblasting work for 2 days,
was temporarily transferred to the painting and sandblasting
department to do sandblasting on September 5, 1990, and
worked in that status for a 2-week period. Ed Greenlee testi-
fied that, in early September, the painting and sandblasting
department was understaffed. Moreover, according to the
plant manager, the department’s supervisor, Armando Ortiz,
had gone on vacation, leaving two individuals, a painter-
coater, Jose Galindo,9 and a sandblaster, to perform all the
work, which included some specialized work. Then, 2 days
after the foreman left for vacation, Galindo became injured
and unable to work.10 Realizing that he needed workers in
the painting and sandblasting department, Greenlee deter-
mined that the only experienced individual who could be
spared for transfer on a temporary basis was Frank Men-
doza.11 In this regard, according to Greenlee, no welder12 or
employee in any other department was available for transfer
on a temporary basis.13 Having decided upon Mendoza,
Greenlee went to the acting foreman in the welding depart-
ment (Cranson was on vacation), ‘‘and I told him I needed
Frank to go to the sandblast area to help out.’’ Even with
Mendoza temporarily helping, Greenlee had no one in the
painting and sandblasting department who could do coating
work. Accordingly, within a week, he hired a painter and a
painter-coater, and he asked the Foreman Ortiz to return
from his vacation.
Within the 2-week period during which Mendoza was tem-
porarily transferred to the painting and sandblasting depart-
ment, according to Greenlee, he decided to make the transfer
a permanent one. Mendoza testified that he first became
aware of the decision when Greenlee approached him in the
paint shop, and ‘‘he told me he was going to transfer me.’’
Mendoza asked why, and the plant manager replied that
management had the right to do so and that his hourly wage
rate would be reduced to $9 per hour. The alleged
discriminatee threatened to go to the NLRB, and Greenlee
said that he should ‘‘go ahead.’’ Later, that same day, ac-
cording to Mendoza, Foreman Ortiz told him that Greenlee
wished to speak to him in Ortiz’ office. When Mendoza ar-
rived there, he found Greenlee waiting with the Company’s
personnel manual, and the latter said he brought it so that
Mendoza could read it. The latter refused, saying that
Greenlee had done ‘‘what you wanted to do to me. So he
said, you know, the best thing for you to do . . . is quit.’’
Mendoza refused, and Greenlee said, ‘‘Once you guys go up
there [negotiating], you ain’t going to get a damn thing, we
ain’t going to give you nothing.’’ He continued, saying ‘‘he
knew who was in the union . . . and ‘‘all the employees that
are union—I am going to see all of them hit that door one
995SIVALLS, INC.
14 According to Greenlee, this policy has been in effect ‘‘as long
as I have been’’ employed by Respondent.
15 Asked why there would have been a problem given Galindo’s
continued absence from the plant, Greenlee said, ‘‘The problem
would have been with him knowing about it.’’
by one.’’ Greenlee testified that he informed Mendoza about
the permanent transfer on the Thursday or Friday before it
was to take effect in his office, and ‘‘I told him that we were
going to transfer him permanent to the pain [sic] and sand-
blast department, that we needed him there, and we were
going to do away with the material dispatcher job.’’ Greenlee
further testified that Mendoza ‘‘wasn’t happy’’ and threat-
ened to go to the NLRB. While specifically denying the
comments, attributed to him by Mendoza during their second
conversation, Greenlee admitted that conversation, 2 days
after the permanent transfer became effective, did, in fact,
occur. According to Greenlee, after learning that Mendoza
had been discussing his reduced wages with other painting
and sandblasting department employees, he went to that area
and spoke to Mendoza in the foreman’s office. After pointing
out to the employee that the personnel policies manual pro-
hibits employees from discussing their wages, Greenlee
asked if Mendoza was ‘‘familiar’’ with that provision and,
thereupon, showed it to the latter. Mendoza became angry
and denied what Greenlee alleged. The plant manager than
‘‘told him that discussing his wages or anybody else’s was
grounds for termination.’’ Greenlee further testified that
Mendoza said he was not afraid of the former or of dying
and facing the devil. Greenlee asked if Mendoza understood
the policy, but, according to Greenlee, he was unable to re-
call Mendoza’s response, if any.
As to Respondent’s decision to permanently transfer the
alleged discriminatee, Greenlee testified that ‘‘the work was
such out there that we still needed him to help sandblast, and
. . . we found that by rearranging things in the plant, we
could get by without the material dispatcher. It didn’t inter-
rupt anything.’’ He further testified, as with the temporary
transfer, that no other employee could have been perma-
nently assigned inasmuch as the only other experienced peo-
ple were welders, ‘‘and I was needed welders’’ at the time
and that, in fact, no other employee was even considered for
permanent transfer. On this latter point, Greenlee stated, ‘‘In
my opinion, he was the only one I had available that I could
take out of the shop and put out there.’’ Russell Cranson, the
welding department foreman, testified that, prior to the per-
manent assignment of Mendoza to the painting and sand-
blasting department, he and Greenlee undertook an analysis
of what Mendoza did and concluded ‘‘that I could do it’’
rather than requiring Mendoza to remain in that capacity or
hiring someone else. Cranson added that Mendoza’s material
dispatcher work takes no more than ‘‘about ten or 15 min-
utes a day’’ and denied that Mendoza’s absence has affected
the efficiency of his department in any way. Disputing this
latter assertion was William Hudnall, who asserted that,
without the help given him by Mendoza, he was forced to
spend between ‘‘five to ten hours a week’’ doing what Men-
doza did for him. According to him, the increased work in-
cluded obtaining parts, moving equipment, rearranging the
floor, and reading blueprints. Cranson disputed Hudnall’s es-
timate of the amount of time he spent doing work that Men-
doza had customarily done but conceded Hudnall ‘‘had to do
more work.’’ Greenlee also disputed Hudnall’s testimony,
stating that ‘‘where [he] works, all of his parts are stacked
right there’’ and averred that welders ‘‘have always chased
some of their parts.’’
The second aspect of the alleged discriminatory demotion
is, of course, the reduction of Mendoza’s rate of pay from
$10 to $9 per hour. At the outset, in this regard, the record
establishes that the wage rates in the welding department
range from $8 to $11 per hour and that, at the time of
Mendoza’s transfer to the painting and sandblasting depart-
ment, no worker in that department, other than the Foreman
Ortiz, earned as much as $10 per hour. As to why the al-
leged discriminatee’s rate of pay was reduced, Ed Greenlee
testified, during direct examination, that Respondent’s policy
is that an employee’s wage rate remains the same ‘‘when
there is a temporary transfer.’’ However, such is ‘‘not nec-
essarily’’ the result for a permanent transfer as when an em-
ployee is permanently transferred from one department to an-
other, he ‘‘will be paid no more than the highest paid’’ in
the new department.14 In the case of Mendoza, Greenlee con-
tinued, his wage rate had to be reduced to $9 per hour,
‘‘which was the top pay in the paint and sandblast area.’’
The plant manager added that the painter-coater, Jose
Galindo, who was off work on disability at the time, was
earning $9 per hour and would have complained had a less
experienced worker been paid more than he.15 Asked if any
other permanently transferred employee ever had his wage
rate reduced, Greenlee initially replied, ‘‘No, sir. This is the
first occasion.’’ Later, however, he changed his testimony,
saying that, ‘‘several years’’ before, employee Johnny
Blaylock had his wages reduced as a result of a permanent
transfer; Greenlee offered no corroborating evidence in sup-
port of this changed testimony. During his cross-examination,
Greenlee’s testimony became confused as to the reason why
Mendoza’s wage rate had been reduced as a result of the per-
manent transfer to the painting and sandblasting department.
While the tenor of his direct testimony was that keeping
Mendoza at $10 per hour would have caused ‘‘dissension’’
in the department, the thrust of his answers to questions
posed by counsel for the General Counsel was different.
Thus, noting that, within the job classifications in the paint-
ing and sandblasting department, there is no wage scale for
sandblaster and wage rates for those classified as painters
range up to $11 per hour, Greenlee testified that, given the
fact that Mendoza does ‘‘very little painting,’’ his wage rate
was cut ‘‘because he can’t do what that classification says.’’
Greenlee elaborated further, ‘‘I am saying that the job he
was doing, that classification, his pay rate wasn’t that high,
so . . . I couldn’t pay him more than his classification calls
for.’’ Nevertheless, Greenlee conceded that Mendoza was,
and remains, a long-term, valued employee and that a deter-
mination of his wage rate at the time of his transfer was
solely within Respondent’s discretion. Finally, as to
Mendoza’s wage rate, Greenlee stated that the two new hires
in the painting and sandblasting department were paid the
same wage rate as earned by Mendoza ($9) but that he con-
sidered them to be ‘‘more qualified’’ than the alleged
discriminatee.
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Harrison testified that his company does not enter into written
contracts for drug testing and, at most, requires a letter of intent
from a prospective client. Such was, apparently, not necessary with
regard to Respondent.
17 In his prehearing affidavit, Halbrook referred to Respondent’s
August arrangements with Harrison & Associates as ‘‘contracting
with’’ but, during his testimony at the hearing, asserted that the
proper words were ‘‘contacting with.’’
18 As a result of the August drug testing and followup tests per-
formed in October, no less than seven employees were terminated
for having failed the urinalysis testing.
5. The alleged unlawful contract with an independent
laboratory for employee drug testing
In the fall of 1989, Respondent’s personnel manager, Ron-
nie Dunn, met with Roy Harrison, the owner and president
of Harrison & Associates Forensic Laboratories, with regard
to establishing a drug testing program for Respondent’s em-
ployees, and Harrison gave Dunn a written package, describ-
ing his company’s services. Also, Harrison advised Dunn
that Respondent should implement a testing program slowly
and with ‘‘all your ducks in a row’’ and stated that his com-
pany would be available to provide testing services in the fu-
ture if requested to do so. Thereafter, according to Attieson
Halbrook, on January 1, 1990, Respondent implemented a
comprehensive drug testing policy for its employees, an-
nouncing it in a letter disseminated to employees on May 1.
The letter set forth that use of narcotics and illegal drugs was
prohibited, stated that employees may be required to take uri-
nalysis tests, and announced that ‘‘the program will become
effective 90 days from the date of this notice, or August 1,
1990.’’ According to Halbrook, Respondent decided to uti-
lize the services of Harrison Forensic Laboratories ‘‘in late
April,’’ and Ronnie Dunn telephoned Roy Harrison with the
news. Dunn told Harrison that the policy would not go into
effect for 90 days, and, presumably, Harrison told Dunn to
inform him as to when Respondent wished to commence
conducting drug tests of its employees. Apparently, there was
no discussion of the cost inasmuch as such had been a sub-
ject of the written material, which Harrison had provided to
Respondent earlier.
There is no issue as to whether a contract between Har-
rison’s company and Respondent existed prior to August
1990, and the parties herein seem to agree that, at most,
Dunn’s conversation with Harrison in April constituted Re-
spondent’s acknowledgement of its intent to use Harrison &
Associates Forensic Laboratories for the purpose of con-
ducting drug tests of its employees. In fact, while Roy Har-
rison assumed there would be a contract,16 he acknowledged
that no contract was reached with Respondent until he was
contacted by Respondent in August to actually perform test-
ing on specified days that month, a fact not disputed by
Attieson Halbrook. Further, as to when the contact between
the parties occurred, at which point a contract for Harrison
Associates’ services presumably was consummated, Halbrook
initially testified that such was ‘‘ten days to two weeks prior
to the time that Harrison came in . . . and performed the
drug sample,’’ which date, there is no dispute, was August
22. Later, he testified, ‘‘We subsequently, after the election,
contacted [Harrison] and made arrangements for them to do
the testing.’’17 Finally, there is no dispute that Respondent
did not offer to bargain with the Union prior to actually ar-
ranging with Harrison & Associates Forensic Laboratories to
perform drug tests of its employees in August, including its
production and maintenance employees.18
6. The alleged unlawful unilateral changes
The record establishes that Respondent’s employment
practices and procedures are contained in an employee man-
ual, a copy of which is provided to each bargaining unit em-
ployee, and that each departmental supervisor has a policy
manual, which contains more detailed information on the
subjects contained in the employee manual. It is undisputed
that, in or about October 1990, Respondent published a re-
vised employee manual and provided a copy to each em-
ployee. It is alleged that various changes in said manual were
implemented unilaterally and without affording the Union, as
the collective-bargaining representative of Respondent’s pro-
duction and maintenance employees, to bargain over the
changes prior to becoming effective. As to the alleged
changes, two are found in the vacation policy. The first, ac-
cording to employee Orbie Edson, concerns potential plant
shutdowns—‘‘Each plant will be closed for two weeks for
repairs. Two weeks of your vacation must be taken during
this period for Plant Personnel,’’ which language, Edson stat-
ed, never appeared in any previous manual. The second vaca-
tion policy change concerns language, mandating that em-
ployees return from vacations ‘‘if necessary . . . for the con-
venience of Sivalls, Inc. to assure the smooth operation of
a department.’’ Edson testified that said language had never
previously appeared in the employee manual and that he had
never been required, in the past, to return early from a vaca-
tion and work. With regard to these alleged vacation policy
changes, Respondent conceded that the first represented a
new policy made necessary by an anticipated plant shutdown
during the summer of 1991 and asserted that, in a revised
employee manual, issued subsequent to that which was pub-
lished in October, the word ‘‘will’’ was changed to ‘‘may.’’
As to the second alleged change, Ed Greenlee testified that
the vacation return policy has been in effect since December
1981 when a notice, containing the same language as stated
above, was posted on employee bulletin boards and that the
language has been found, since that time, in the policy manu-
als, which are possessed by all supervisors and which are al-
ways available to employees for reviewing.
A third change in employees’ terms and conditions of em-
ployment in the new employee manual, according to Edson,
concerns voting absences. The record establishes that, prior
to the publication of the new manual, employees were per-
mitted an absence of 1 hour, with pay, in order to vote in
any local, state, or national election. This practice was
changed in the new manual, which permits employees to take
a 1-hour unauthorized absence, without pay, in order to vote.
The final alleged change concerns the deletion of the mate-
rial dispatcher job classification within the welding depart-
ment. Until the transfer of Frank Mendoza to the painting
and sandblasting department, his job classification had been
set forth as a job classification in the welding department.
Respondent offered no evidence as to the latter two alleged
changes in employee terms and conditions of employment,
and there is no contention by Respondent that it offered to
997SIVALLS, INC.
19 During the interim period, Respondent terminated two employ-
ees for having failed their drug tests, and Sanchez wrote a protest
letter, in their behalf to Respondent. In his letter, Sanchez requested
a meeting; Halbrook telephoned him a week later and said he would
be unavailable for such a meeting. Apparently, nothing was said
with regard to the August 24 letter.
20 The Odessa Best Western Hotel is located 5 miles from Re-
spondent’s plant. There is no dispute that this hotel was the location
for all bargaining sessions between the parties and that the Union
arranged and paid for the meeting room on each occasion.
bargain with the Union prior to implementing any of the
aforementioned changes.
7. Respondent’s alleged failure to provide requested
information and bad-faith, surface bargaining
Two weeks after the Union’s election victory, on behalf of
the Union, Freddie Sanchez, the temporary International rep-
resentative, and Lonnie Edwards, a full-time International
representative, executed and mailed a letter, dated August 24,
to Respondent. Addressed to Attieson Halbrook, the letter
stated that the Union was ready to commence negotiations
for a collective-bargaining agreement, asked Halbrook to no-
tify the Union as to when he would be available for negotia-
tions, and requested that Respondent provide the following
information, necessary for ‘‘preparation for our upcoming
contract negotiations’’:
1. Names of all Bargaining Unit Employees.
2. Age of all employees.
3. Date of hire.
4. Classification.
5. Rate of pay.
6. Average hours worked per week by employees.
7. List of fringe benefits currently provided—such as
pensions, insurance, profit sharing, holidays, vacations,
etc.
Approximately 2 weeks later,19 Freddie Sanchez received a
telephone call from Respondent’s attorney, James McNutt,
who stated that he would be representing Respondent during
collective bargaining, and he and Sanchez discussed their
availability to commence negotiations. During the conversa-
tion, according to Sanchez, he inquired as to the requested
information, and McNutt said he would speak to his client.
McNutt also promised to telephone Sanchez as to a date for
the start of bargaining. Subsequently, McNutt and Sanchez
spoke and agreed to meet for bargaining on October 17 at
the Best Western Hotel in Odessa. Sanchez added that, prior
to the above date, he became aware that Respondent had
issued a revised employee manual to bargaining unit employ-
ees and had changed its practices as to the distribution of
payroll checks and break periods and that the Union was nei-
ther given notice of any manual revisions or changes of past
practice nor afforded an opportunity to bargain prior to im-
plementation. There is, also, no dispute that, prior to the date
scheduled for the start of bargaining, the Union received
none of the requested information from Respondent.
As scheduled, representatives of the Union and Respond-
ent met at the Best Western Hotel in Odessa on October 17,
1990.20 Sanchez and Lonnie Edwards represented the Union,
and McNutt, Halbrook, and Greenlee were present for Re-
spondent. Sanchez testified that the meeting began with a
discussion of the unfair labor practice charges, which had
been filed between the day of the election and that date, and
the possibility of settlement through negotiations, however,
McNutt asserted ‘‘that at this time they had no intention of
changing their position.’’ Then, according to Sanchez, he
submitted to Respondent’s representatives General Counsel’s
Exhibit 9, a single sheet on which were set forth 14 bar-
gaining proposals. Attached to this sheet, he continued, was
a ‘‘sample agreement,’’ which, he explained to Respondent’s
representatives, ‘‘was for language on recognition, dues
checkoff proposal, seniority and that there was stuff . . . that
. . . had nothing to do with our proposal.’’ Sanchez testified
that McNutt agreed to review both documents and that
McNutt and Halbrook indicated that they understood the pur-
pose of the sample contract. Also, Sanchez raised the matter
of the Union’s request for information, saying he ‘‘needed
this information for preparation for negotiations. And Mr.
McNutt said it wasn’t available at this time, that he would
have it for us at the next meeting.’’ Respondent had no pro-
posals for the Union, the entire session lasted for 3 or 4
hours, and, at the conclusion, McNutt said that he would
contact Sanchez regarding scheduling a second bargaining
session and would review the Union’s proposals with
Halbrook. During cross-examination, Sanchez maintained
that the sheet containing 14 proposals and the sample con-
tract were given to Respondent’s representatives at the start
of the meeting, and ‘‘we discussed it,’’ with ‘‘Mr. Halbrook
[making] comments on what the hell is this, and we ex-
plained.’’ Finally, on settlement of the unfair labor practice
allegations, Sanchez stated that he told Respondent ‘‘ you re-
store them the way they were, and we would negotiate on
them’’ and that the response of McNutt was that Respond-
ent’s position ‘‘would remain the same on them.’’
With regard to what occurred during this initial bargaining
session, Attorney McNutt and Attieson Halbrook contradicted
Sanchez on one significant point. According to McNutt, what
was presented to Respondent’s negotiators at the outset of
the meeting was only the single sheet, which contained the
Union’s 14 bargaining demands and which was discussed
‘‘in detail, item by item.’’ Then, near the end of the session,
Sanchez handed him what seemed to be a ‘‘generic’’ con-
tract, and Sanchez confirmed that it was merely a ‘‘sample
contract.’’ Denying that Sanchez made any explanation as to
which, if any, provisions would apply to Respondent,
McNutt testified that, upon examining the document, ‘‘I told
[Sanchez] this meant nothing to me, that it wasn’t tailored
to Sivalls’’ and that he needed to do so. Corroborating
McNutt that Sanchez did not present the ‘‘sample contract’’
to Respondent’s negotiators until late in the bargaining ses-
sion, Halbrook contradicted him as to whether Sanchez of-
fered any explanation of its purpose. Thus, according to Re-
spondent’s executive vice president, while he did not pay any
attention, Sanchez ‘‘made reference to some items that didn’t
apply.’’
Freddie Sanchez testified that, having heard nothing from
Respondent’s attorney, with regard to arranging a second
bargaining session, for 13 days, he telephoned McNutt’s of-
fice, and, after an exchange of telephone calls, Sanchez and
McNutt arrived at a second meeting date, November 28. Stat-
ing that he was dissatisfied with the pace of the bargaining,
Sanchez wrote a letter, dated November 3, to McNutt in
which he complained to the attorney that the pace of negotia-
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Attieson Halbrook testified that he was extremely unhappy with
what he was given by the Union at the October 17 bargaining ses-
sion and that what he wanted was ‘‘everything down in writing,’’
something akin to a commercial contract. He added that the single
page containing 14 demands and the sample contract ‘‘just didn’t
make any sense’’ to him. It seems clear that Halbrook’s concerns
were expressed by Attorney McNutt to Sanchez during one of their
late October telephone conversations, but exactly what was said is
in dispute. Thus, according to the attorney, he told Sanchez that ‘‘it
was important that he provide to us the next time we meet a contract
document that would be tailored to Sivalls’’; while Sanchez recalled
that McNutt merely wanted ‘‘clarification on the proposals.’’
22 In this letter, Sanchez restated his August 24 demand for infor-
mation necessary for collective bargaining.
23 Sanchez denied having such a computer-generated document at
the preelection conference or at any other time.
24 During this conversation, according to Sanchez, he asked
McNutt if Respondent would share the cost of the meeting room,
and the latter said he would speak to his client.
25 Also attending this meeting was T. D. Steinke, an International
representative for the Union.
26 There is no dispute as to this. Thus, Halbrook conceded that he,
indeed, told Sanchez, at the initial bargaining session, ‘‘that Sivalls
would not provide any payment for any meeting room’’ as it ‘‘didn’t
feel . . . that it was our obligation to pay.’’ Further, notwithstanding
that Respondent’s Odessa plant has a conference room, Halbrook did
not believe there existed a ‘‘need’’ to meet on its property. He con-
ceded that the foregoing, rather than being a philosophical position,
was ‘‘just a bargaining strategy.’’
While refusing to pay for the cost of the meeting rooms, Respond-
ent did pay for the cost of refreshments during the bargaining ses-
sions. Apparently, this case was significantly less than the cost of
the rooms.
27 Sanchez testified that, during a subsequent telephone conversa-
tion, McNutt mentioned ‘‘that a utility company might provide us
with a free meeting room but . . . he made no arrangements for the
tions was too slow and that the 6-week period between bar-
gaining sessions did not constitute bargaining in good faith.
McNutt wrote back to Sanchez in a letter, dated November
12, stating that the above date was the first available one for
all members of Respondent’s ‘‘negotiating committee’’ and
that, as of that date, he had not received a promised ‘‘written
proposal in contract form’’ from Sanchez.21 Three days later,
along with a cover letter dated November 15,22 Sanchez
mailed to McNutt a two-page, handwritten outline of the
Union’s bargaining demands, with the document being simi-
lar to the single sheet of proposals given to Respondent on
October 17.
As arranged, the second bargaining session between the
parties was held at the Best Western Hotel on November 28,
with the same representatives present and with the Union
paying the cost of the meeting room. Sanchez testified that
the meeting began with Halbrook ‘‘throwing our sample
agreement on the desk and saying that he couldn’t make
heads or tails of it, that we were contradicting our proposals
. . . that we had two sets of proposals. Talking about vaca-
tions and holidays, he said he didn’t know which one we
were talking about.’’ According to Sanchez, he replied to
Halbrook that ‘‘they had agreed to take our proposals and re-
view them and come back with counter-proposals and that I
felt that he was just stalling us.’’ Continuing to speak di-
rectly to Halbrook, Sanchez said that if he hadn’t been will-
ing to take the sample contract, ‘‘he should have told me at
the first session and I could have written specific proposals.
And I agreed to do just that.’’ To this, McNutt said he would
need, at least, 1 week to review what Sanchez drafted. Then,
Sanchez testified, he renewed his request for the information,
which he had requested in his August 24 letter and which
the Union had not as yet received, and ‘‘Mr. Halbrook said
that I would not get it’’ inasmuch as ‘‘he said I had it all.’’
Halbrook added that Sanchez had received the information
from the bargaining unit employees in the form of the Excel-
sior list and copies of the old and new employee manual.
The meeting ended after just 90 minutes.
There is no dispute that, at the outset of this meeting, Re-
spondent voiced objection to the lack of a union proposal in
contract form; however, McNutt and Halbrook contradict
each other as to who spoke. According to McNutt, as to what
he received from Sanchez prior to the second bargaining ses-
sion ‘‘still did not address some of the matters that were
raised’’ at the first meeting, he ‘‘could not put them all to-
gether to where I had what I considered to be a written pro-
posal that we could start negotiating from.’’ McNutt stated
that he voiced this concern to Sanchez at the second meeting,
‘‘and I was insistent . . . upon it being reduced to written
form, so that there would be no misunderstanding . . . as to
what was meant or what was being proposed.’’ Further,
McNutt denied that Sanchez asked why he had not men-
tioned this at the first bargaining session so that he could
have prepared such a document before. According to
Attieson Halbrook, rather than McNutt, he was the one who
said he couldn’t ‘‘make . . . heads or tails’’ of the Union’s
proposal, and ‘‘I requested that Mr. Sanchez provide us with
a proposal in writing that contained everything that the
Union wanted.’’ Furthermore, while not denying that
Sanchez reiterated his August request for information at this
bargaining session or that he refused said request, Halbrook
asserted that, at the preelection conference in August, he ob-
served Sanchez with what he recognized as a standard com-
puter printout of the type Respondent’s payroll department
normally produces (‘‘green with a white background’’) and
that said document contains such information as employees’
names, classifications, social security numbers, departments,
wage rates, and hours worked. Questioned as to what he saw,
Halbrook asserted that ‘‘I was sitting close enough to read
some of the names on [the document].’’23
Subsequent to the November 28 bargaining session, as he
had promised, Freddie Sanchez prepared a proposal, in com-
plete contractual form and specific to Respondent, and
mailed it to McNutt. The document contains suggested lan-
guage on many provisions including a dues-checkoff clause,
a management-rights clause, no strike/no-lockout language,
and a grievance and arbitration procedure. Also, Sanchez and
McNutt spoke by telephone and agreed to hold another bar-
gaining session on December 20 at the Best Western Hotel.24
The parties met on that date, with the same individuals in
attendance.25 At the outset, according to Sanchez, he raised
the matter of sharing the cost of the meeting rooms. McNutt
said that he had discussed the matter with his client, and
‘‘his client’s position was that they would meet anywhere ex-
cept on company property but they wouldn’t pay no room.
. . . Mr. Halbrook made the statement that . . . we brought
the union in, we ought to pay for it.’’26 McNutt added that
Respondent believed that the parties should continue to meet
at a neutral site.27 Substantive discussions then began with
999SIVALLS, INC.
meeting room.’’ During cross-examination, while seemingly taking
the position it was Respondent’s obligation to do so, Sanchez con-
ceded that he never contacted the utility company about the asserted
availability of a room for bargaining at no cost.
28 On dues checkoff, at a later bargaining session, according to
Sanchez, McNutt ‘‘said that the company didn’t want to know who
was in the union and Mr. Halbrook said . . . he wasn’t going to col-
lect no money for the union.’’ Attorney McNutt did not dispute this
testimony, admitting that he told the union representatives that Re-
spondent would not accept dues checkoff as it did not want to know
the identities of those employees who desired the checkoff of dues
and as it felt no ‘‘obligation’’ to check off any employees’ union
dues.
29 It should be noted that the Union had filed an unfair labor prac-
tice charge, relating to Respondent’s failure to transmit to the Union
the requested information, in late November 1990.
Sanchez going through General Counsel’s Exhibit 13, the
complete contract proposal which he had mailed to McNutt
prior to the meeting and with the latter asking questions and
suggesting different language for several provisions. Specifi-
cally, Sanchez testified, McNutt stated that Respondent
would have a written counteroffer as to management rights,
that Respondent would not agree to arbitration of employee
or contractual grievances (‘‘He mentioned that a lot of em-
ployees would take two bites of the apple, that if they lost
their arbitration case, that they would turn around and sue’’),
and that Respondent would not agree to include a dues-
checkoff clause in any collective-bargaining agreement.28
There is no dispute as to Respondent’s position on the inclu-
sion of dues-checkoff and arbitration provisions in a collec-
tive-bargaining agreement between the parties. Finally,
Sanchez testified, the parties discussed the Union’s unfair
labor practice, which referred to the vacation policy and
plant shutdown policy alleged unilateral changes found in the
revised employee manual, which had been distributed to em-
ployees in October. In this regard, Sanchez said that Re-
spondent should have given the Union an opportunity to dis-
cuss both matters prior to implementation, ‘‘and the answer
I got from Mr. McNutt was that they had done that because
the plant was old and it needed work on maintenance.’’
Sanchez responded that the Company should restore the sta-
tus quo and negotiate. The meeting ended with McNutt
promising to mail counterproposals to the Union and contact
Sanchez as to the next meeting.
As promised, on January 14, 1991, McNutt mailed to the
union representatives Respondent’s own contract proposal.
The document (G.C. Exh. 14) differed from the Union’s pro-
posed collective-bargaining agreement in several significant
areas. At the outset, it contained no dues-checkoff or arbitra-
tion provisions. With regard to management rights, Respond-
ent’s proposed language permits it to establish employee
policies and practices and ‘‘from time to time, to change or
abolish such policies,’’ retains for it ‘‘the sole and exclusive
rights to establish, change . . . or continue policies . . . re-
lating to the testing, screening or analysis of its employees
for drugs’’ and grants to Respondent ‘‘the sole and exclusive
right to . . . implement, any change or changes deemed nec-
essary to meet or equal (or to be able to remain competitive
with) any . . . changes made effective or implemented by
any . . . competitor,’’ with such not subject to the contrac-
tual grievance procedure. Also, the contract proposal con-
tained a no-strike, no-lockout provision, under which the
Union’s International would be liable for unauthorized, ille-
gal strikes, and a limitations and waiver provision, under
which Respondent retained control over any term and condi-
tion of employment not relinquished in the collective-bar-
gaining agreement and the Union waived its right to bargain
over matters not specified in the agreement. At last, accord-
ing to Freddie Sanchez, included with the contract counter-
proposal, with the exception of some insurance material, was
all of the information which had been requested by the
Union since the prior August.29 Subsequent to the receipt of
the above material by Sanchez, he and McNutt spoke by
telephone and arranged for the parties to again meet for bar-
gaining on January 22 and 23.
As scheduled, the parties’ next bargaining session occurred
on January 22 at the Best Western Hotel in Odessa, with the
Union paying for the cost of the meeting room. With the
same participants as at the previous bargaining session
present, most of the discussion concerned Respondent’s
counterproposal. The initial subject discussed was manage-
ment rights, and Sanchez ‘‘strongly objected’’ to Respond-
ent’s language as being extremely restrictive and diminishing
employees’ rights; McNutt responded ‘‘that this is the way
it had to be.’’ With regard to the proposed grievance proce-
dure language, Sanchez proposed changing ‘‘calendar days’’
to ‘‘working days’’ in the first section and, noting that there
was no union involvement in the grievance procedure, pro-
posed adding the words ‘‘the Union,’’ in the second step,
after the words ‘‘signed by the employee’’; however, McNutt
‘‘didn’t accept my counters.’’ Turning to the waiver clause,
Sanchez objected, arguing that it ought to be made subject
to the grievance procedure, but McNutt refused to accept any
such limitation. Sanchez further testified that, as to the no-
strike, no-lockout language, he objected to the section that
would have permitted a lawsuit against the International
union for damages resulting from a strike or work stoppage
in contravention of the contract clause; however, McNutt re-
fused to expunge or change said language. According to
Sanchez, the bargaining continued in this vein for the 2 days,
with Respondent refusing to make any changes in its coun-
terproposal.
As at each bargaining session, economics were discussed
during this 2-day session, with each party indicating the im-
portance of the subject. An economic package was included
in Respondent’s contract proposal, but Sanchez believed
‘‘there was nothing that was more than what they had before
we started bargaining.’’ To this, Respondent’s representatives
challenged Sanchez to determine if the economic package
was not competitive with other Odessa area businesses. On
the second day of the bargaining session, the union rep-
resentatives presented a wage proposal (G.C. Exh. 15) in-
cluding a ‘‘restoration pay’’ plan which, in effect, would
have given all bargaining unit employees a $2-per-hour wage
increase retroactive to the day of the election. Respondent’s
reply was a succinct ‘‘no way.’’ In testifying with regard to
this 2-day bargaining session, Attorney McNutt did not dis-
pute Sanchez’ version of what was said and merely stated
that the parties discussed Respondent’s counterproposals and
‘‘how they related to the union’s proposals.’’ Also, according
to McNutt, Respondent submitted to the union representa-
tives copies of its drug testing program, health insurance
plans, profit-sharing plan, and all other documents, included
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Sanchez testified that all remaining documents, included in the
August information request, were given to the Union at the next bar-
gaining session and that, with said act, Respondent had finally com-
plied with the Union’s information request, 5-1/2 months late and
after the filing of unfair labor practice charges regarding Respond-
ent’s conduct.
31 The record is confusion on this point. During redirect examina-
tion, Sanchez asserted that, despite Steinke’s counteroffer, during the
February 6 and 7 session, he adopted Respondent’s grievance lan-
guage, retaining his demand for arbitration. Later, when asked to
clarify if he, indeed, had accepted Respondent’s grievance language
without the insertion of the words ‘‘the Union’’ in the second sec-
tion, Sanchez answered ‘‘no, I did not accept it.’’ Later, the witness
stated that he would have accepted Respondent’s language if the
words, ‘‘the Union’’ had been inserted in step 2, but ‘‘they didn’t
agree to that.’’
Adding to the confusing is the contradictory testimony of Re-
spondent’s witnesses on this point. Thus, while Attieson Halbrook
testified that he recalled the Union proposing to insert the word
‘‘union’’ into step 2 of Respondent’s grievance procedure language
and the Company continuing to propose its original language, James
McNutt specifically denied that Sanchez ever said he would accept
Respondent’s grievance language with the addition of the word
‘‘union’’ in the second step.
32 Employee Edson corroborated Sanchez that the Union never
agreed to include the proposed vacation language in a contract.
in the Union’s August 1990 request.30 At the close of the
session, the parties agreed to meet for bargaining over a 2-
day period in early February.
Subsequent to the above-described bargaining session,
International Representative Steinke mailed a counterproposal
to Respondent’s representatives. The document, General
Counsel’s Exhibit 16, appears to have been keyed to both the
Union’s complete contract proposal, General Counsel’s Ex-
hibit 13, and Respondent’s counterproposal, General Coun-
sel’s Exhibit 14, and, listing each contractual article by sub-
ject, proposes deletions from or additions to Respondent’s
language or continuing the Union’s language on a subject.
Specifically, Steinke proposed the Union’s language on man-
agement rights, no-strike, no-lockout, and on grievances; pro-
posed deletion of Respondent’s waiver provision; and contin-
ued the Union’s demands for dues-checkoff and arbitration of
grievances. As to Respondent’s reaction, Attorney McNutt
dismissed it as ‘‘addressing no one particular proposal as far
as I could tell.’’
The parties scheduled their early February bargaining ses-
sion for February 6 and 7 and met on those dates at the Best
Western Hotel in Odessa, with the Union, as usual, paying
for the cost of the meeting room, and, with Respondent’s
consent, the Union arranged for the presence of a Federal
mediator. Sanchez testified that the bargaining proceeded
with the basis being the Steinke counteroffer. As to manage-
ment rights, each party continued proposing its own lan-
guage, with McNutt saying Respondent would not alter its
proposal, and, as to Respondent’s waiver language, McNutt
said that there would be no change. Further, according to
Sanchez, Respondent continued to refuse to accept a dues-
checkoff provision or arbitration of grievances; however, as
to no-strike, no-lockout, McNutt stated that Respondent
would agree to delete the portion of its proposed language
which had permitted lawsuits against the International union
in the event of unauthorized work stoppages and ‘‘keep it si-
lent.’’ Also, Sanchez again proposed but McNutt refused to
alter Respondent’s proposed grievance language by adding
the Union as a signatory to employee grievances,31 and the
Union offered to reduce its ‘‘restoration pay’’ demand to
$1.50 per hour. To this, Respondent representatives said
there would be no more money, with McNutt saying what
was ‘‘in place’’ would remain. Drug testing, according to
Sanchez, was a major issue during this bargaining session.
Noting that Respondent’s proposed management-rights lan-
guage would have given unilateral control over this area to
Respondent, Sanchez stated that he insisted upon the right to
bargain over the subject; however, McNutt refused, saying,
‘‘this has been something implemented before the union had
come in.’’ Sanchez argued that the Union had the right to
bargain over the choice of a testing laboratory, but McNutt
said, ‘‘that it wasn’t none of the union’s business what lab
was used.’’ Finally, Sanchez demanded the opportunity to
bargain over the standards used, with McNutt countering that
these were already set forth in the employee manual. Another
subject discussed by the parties, during this bargaining ses-
sion, was the alleged unilateral change, set forth in the em-
ployee manual, concerning employee vacations during plant
shutdowns. Sanchez testified that the subject was raised in
the context of the unfair labor practice charge and that the
employees’ fear was loss of vacationtime during a plant shut-
down. To this, McNutt said it was not Respondent’s intent
to take away any employee’s vacation and proposed contrac-
tual language that vacations could be taken at any time but,
in the event of a plant shutdown, any vacation taken during
that time period would be without pay. According to
Sanchez, the foregoing proposal was made in conversation
between McNutt and employee Orbie Edson, who was
present, he did not state his agreement, and, while loss of va-
cation was a concern, his ‘‘number one’’ concern was the
unilateral nature of Respondent’s change of policy in the
above regard. While conceding that McNutt later ‘‘mentioned
. . . [he] thought it was resolved but my . . . argument was
that [Respondent] had implemented that without negotiating
it first’’ and that the status quo should be restored.32 At the
end of the 2 days of bargaining, according to Sanchez, ‘‘I
believed that the company’s proposals were not getting us
anywhere but not at an impasse.’’ He added that he remained
willing to make counterproposals and that the Union was not
at is final position. Notwithstanding his opinion as to the
state of the bargaining, McNutt said ‘‘He would have the
final offer at the next meeting.’’
James McNutt testified that, during the February 6 and 7
bargaining session, the parties discussed Steinke’s
counteroffer ‘‘in detail’’ and engaged in what the attorney
described as ‘‘hard bargaining.’’ With regard to management
rights, the parties continued to adhere to their own proposals
without change. As to the checkoff of union dues, McNutt
says that he told the union negotiators that the Company did
not want to know the identity of any employee who desired
checkoff and that the Company did not feel it was obligated
to help the Union collect dues. Concerning no-strike, no-
lockout, according to McNutt, Respondent agreed to drop the
lawsuit language, but ‘‘their position never changed. They
wanted the union’s . . . language.’’ As to the grievance pro-
cedure, the Union’s objection was that ‘‘[it] is not participat-
ing in the grievance procedure,’’ but McNutt pointed out that
the shop steward clause discussed participation by individ-
1001SIVALLS, INC.
33 There is no dispute about the suggested language.
34 Defending Respondent’s contract proposals, McNutt termed
them ‘‘variations of the union’s initial proposal.’’
As to what was being accomplished, McNutt stated that movement
was ‘‘slow’’ at that meeting ‘‘but there was movement.’’
35 During recross-examination, Sanchez stated that this comment
was made after a recess during which the union representatives stud-
ied Respondent’s final offer.
36 I note, of course, that, after an initial specific denial, Cranson
conceded that he had, in fact, made the comment to Hudnall that a
company had dragged out negotiations with a union for 15 to 17
years, that he had initiated the conversation in this regard, and that
his intent was to point out that the Union might never reach a con-
tract with Respondent.
uals in that position. As to the matter of vacations during pe-
riods of a plant shutdown, McNutt testified that the Union
representatives expressed concerns, and ‘‘we said that would
be fine; we would look at that, and came back and made a
proposal to them that the union wrote down. . . . this is
what we agreed upon, at least as far as I am concerned.’’33
Asked by me how the Union indicated agreement, McNutt
answered that employee Edson said, ‘‘That sounded good to
them.’’ Asked if Sanchez said anything, the attorney said,
‘‘He, as well as the other members, indicated that that sound-
ed like . . . agreeable language’’ and said he had no changes
to suggest. McNutt specifically denied that Sanchez stated he
wanted the situation to return to the status quo, only saying
the matter was an unfair labor practice and he could not talk
about it. Summing up what had been accomplished during
the 2 days with regard to the subjects in dispute, the attorney
averred, ‘‘There had been really no movement, and it was
beginning to be very obvious to me that as long as things
stood the way they were, we were not going to be able to
reach a middle ground.’’34
The parties’ next—and what proved to be the final—bar-
gaining session between the parties was held on February 28
again at the Best Western Hotel. McNutt began by giving
two documents to the union negotiators. The first, General
Counsel’s Exhibit 17, was an outline of what was defined as
Respondent’s ‘‘last, best, and final contract’’ proposal and,
according to Sanchez, was framed as a response to the
Union’s complete contract proposal and not to Steinke’s
counteroffer. Accompanying this outline was the final offer
in contract form, General Counsel’s Exhibit 18. Analysis of
it discloses just two changes from Respondent’s initial con-
tract proposal—deletion of the lawsuit language from the no-
strike, no-lockout article and a change to ‘‘working days’’ in
the grievance procedure. According to Sanchez, after exam-
ining the two documents, he said to McNutt that it did not
appear as if there had been any changes from the Company’s
initial proposal, and ‘‘Mr. McNutt said that it was their last,
final offer. And I asked him if that was it, if they had no
room to move, no more negotiating. And he said that was
their last, best, and final.’’ Sanchez denied that McNutt ever
mentioned the word impasse and stated that, when he asked
if McNutt would negotiate on this document, the latter said,
no. According to Sanchez, he termed the situation unaccept-
able and told McNutt to contact him if he ‘‘had any move-
ment.’’ During cross-examination, Sanchez stated that he
asked if Respondent was willing to negotiate from the
Union’s proposal, and McNutt said, no, ‘‘that was it, zero,’’
and conceded that he made the comment he was ‘‘holding’’
on the Union’s proposals ‘‘because [McNutt] wouldn’t move
off of any of [Respondent’s] proposals.’’35
Attorney James McNutt testified that, after presentation of
General Counsel’s Exhibits 17 and 18 on February 28, a
lengthy recess was taken during which the union representa-
tives considered what Respondent had proposed and that,
upon returning, Sanchez ‘‘simply’’ said that ‘‘the union will
stick with its proposals,’’ those of February 7. On this point,
Attieson Halbrook quoted Sanchez as saying Respondent’s
proposal was ‘‘not acceptable’’ and that the Union would
stay with its own proposal. There is no dispute that the bar-
gaining session ended at that point and that there have been
no further meetings between the parties.
B. Analysis
Initially, I must consider the alleged violations of Section
8(a)(1) of the Act committed by Respondent prior to the Au-
gust 10 representation election. In this regard, not only was
I impressed by the testimonial demeanor of witnesses Wil-
liam Hudnall, Ernest Munoz, Gregory Perez, and Abel
Cadena, each of whom appeared to be honestly recounting
the preelection events, but also I note that the accounts of
the management employees allegedly involved, Russell
Cranson and Ed Greenlee, are rife with admissions as to
many of the allegations and that, while testifying, neither
seemed to be as candid as the above four witnesses. Accord-
ingly, taking into consideration the respective admissions of
Cranson and Greenlee, Hudnall, Munoz, Perez, and Cadena
shall be credited as to their versions of the preelection con-
duct at issue herein. Specifically, I find that, early in the
preelection period, Cranson approached Hudnall at the
latter’s work station and asked him how the Union was
going, said that Respondent would spend its last dollar to de-
feat the Union, and warned that there were ‘‘cases’’ which
had extended for 15 to 17 years and that ‘‘they would never
get a contract.’’ Utilizing the criteria found in Rossmore
House, 269 NLRB 1176, 1178 (1984), and noting that the
Union’s campaign was in its infancy and that, at this point,
Hudnall had not yet exhibited overt support for the Union,
I find that Cranson’s initial inquiry constituted unlawful in-
terrogation. Jakel Motors, 288 NLRB 730, 732 (1988). Fur-
ther, taken together, as I believe the comments were in-
tended, Cranson’s comments that Respondent would spend
its last dollar to defeat the Union, that there were ‘‘cases’’
which had extended for 15 to 17 years, and that ‘‘they would
never get a contract’’ constituted nothing less than a warning
that the employees’ organizing efforts and the possible selec-
tion of the Union as their collective-bargaining representative
would be an exercise in futility.36 Atlas Microfilming, 267
NLRB 682, 685–686 (1983). Hudnall had a second conversa-
tion with Cranson, in late June, during which the supervisor
warned that Respondent would not ‘‘abide by’’ the employ-
ees receiving more money and better benefits with a union
and that if Hudnall continued speaking to ‘‘anyone’’ about
the Union, he would be fired. As with his comments regard-
ing the extended time for bargaining, Cranson’s initial state-
ment, during this conversation, conveyed the futility of se-
lecting the Union as the employees’ bargaining representative
and was blatantly violative of Section 8(a)(1) of the Act.
Atlas Microfilming, supra. Moreover, Cranson’s latter com-
ment, of course, constituted a threatened reprisal for union
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 Cranson’s version of his warning to Hudnall was initially that
he should refrain from speaking about the Union ‘‘on company
time’’ and then that he could speak about the Union at any time and
‘‘just not during working hours.’’ Assuming either of Cranson’s
versions is credited, each would be violative of Sec. 8(a)(1) of the
Act. Thus, inasmuch as the phrase ‘‘on company time’’ is ‘‘ambig-
uous as it could reasonably be interpreted to mean that an employee
may not engage in solicitation or distribution at any time the em-
ployee is on the clock even at a time the employee had finished his
work and is in a nonwork area,’’ it is ‘‘presumptively invalid and
violative of Section 8(a)(1) of the Act.’’ Florida Steel Corp., 215
NLRB 97, 98–99 (1974). Also, of course, the Board has long made
it clear that ‘‘rules using ‘working hours’ are presumptively invalid
because that terms connotes periods from the beginning to the end
of work-shifts, periods that include the employees’ own time.’’ Our
Way, Inc., 268 NLRB 394, 395 (1983); Essex International, 211
NLRB 749 (1974).
38 Cranson admitted telling employees, prior to the election, that
it was Respondent’s ‘‘prerogative’’ to do whatever it wanted if the
Union was victorious.
organizational activities and was clearly coercive and viola-
tive of Section 8(a)(1) of the Act.37
Finally, Hudnall had a third conversation with his Super-
visor Hudnall, 1 or 2 days before the representation election,
during which the latter said that, immediately following the
election if the Union won, ‘‘our benefits, our holidays, our
vacations, our breaks—everything would be taken away. . . .
we had no guarantees of anything; it would all be nego-
tiable.’’ Counsel for the General Counsel is quite correct that
such an explicit threat of reprisal immediately before a rep-
resentation election, when all indications point to a close re-
sult, constitutes coercive conduct violative of Section 8(a)(1)
of the Act.38 While Hudnall quoted Cranson as saying that
all benefits were negotiable after the election, the latter ad-
mitted that what he said regarding contract bargaining was
that such would ‘‘have to start . . . from [the ground up].’’
Assuming such is what he said, in Plastronics, 233 NLRB
155, 156 (1977), the Board stated:
Depending upon the surrounding circumstances, an
employer which indicates that collective-bargaining
‘‘begins from scratch’’ or ‘‘starts at zero’’ or ‘‘starts
with a blank page’’ may or may not be engaging in ob-
jectionable conduct. . . . Such statements are objection-
able when, in context, they effectively threaten employ-
ees with the loss of existing benefits and leave them
with the impression that what they may ultimately re-
ceive depends in large measure upon what the Union
can induce the employer to restore. On the other hand,
such statements are not objectionable when additional
communication to the employees dispels any implica-
tion that wage and/or benefits will be reduced during
the course of bargaining and establishes that a reduction
in wages or benefits will occur only as a result of the
normal give and take of collective bargaining. . . . The
totality of all the circumstances must be viewed to de-
termine the effect of the statements on the employees.
Herein, Cranson’s statement was made in a context of a
threatened loss of existing benefits if the Union won the
election and absent any suggestion that bargaining is a proc-
ess in which each side makes its own proposals, that requires
mutual agreement, and where existing benefits may be traded
away. Accordingly, Cranson’s above admission constitutes a
violation of Section 8(a)(1) of the Act. Kenrich Petrochemi-
cals, 294 NLRB 519 (1989); Mississippi Chemical Corp.,
280 NLRB 413, 417 (1986).
In a comment similar to the foregoing, 2 weeks before the
representation election, Supervisor Cranson told welder Er-
nest Munoz that, if the Union won the election, ‘‘they would
take all benefits away, and just [because] they were bar-
gaining didn’t mean they would come to an agreement, and
that there was a company that had been bargaining for 17
years and never came to anything.’’ Cranson admitted telling
employees about a company which had negotiated for 15 to
17 years without coming to a collective-bargaining agree-
ment, and, for the reasons set forth above, Cranson’s com-
ments conveyed both a threat of adverse consequences if the
Union prevailed in the election and a warning of the futility
of selecting a collective-bargaining representative and were,
thereby, coercive and violative of Section 8(a)(1) of the Act.
Further, during a conversation with welder Gregory Perez in
late June, Cranson mentioned a competing company RAMA,
saying that the Union campaign would ‘‘screw’’ things up,
that if Union adherents were fired, they should not believe
they can go to RAMA and be hired, and that Ronnie Dunn
had spoken to RAMA officials and RAMA ‘‘doesn’t want
you over there.’’ Cranson admitted that such a conversation
‘‘could have’’ occurred, and the supervisor’s comments con-
stituted nothing less than a thinly veiled threat of termination
for supporters of the Union and a warning that union sup-
porters, who were discharged, would not be hired by Re-
spondent’s competitor—statements blatantly violative of Sec-
tion 8(a)(1) of the Act. Finally, during a conversation with
welder Abel Cadena, 1 week before the election, after
Cadena stated his belief that the union organizing campaign
was bringing the employees together, Cranson averred that
what it would do is ‘‘to shut the place down if the Union
comes in.’’ Of course, such a threat of plant closure in retal-
iation for union organizational efforts was utterly coercive
and violative of Section 8(a)(1) of the Act. Jakel Motors,
supra at 732; Coradian Corp., 287 NLRB 1207 (1988); Atlas
Microfilming, supra at fn. 2.
With regard to Plant Manager Greenlee, I find that, just
prior to the date of the election, Hudnall was called to the
former’s office and that when Hudnall walked in, Greenlee
asked him what his gripes were. After the employee men-
tioned his desire for a raise, Greenlee replied, ‘‘You think
the Union is going to get you a raise. . . . that will never
happen.’’ Later, the plant manager warned Hudnall to keep
his mind on his own job and not ‘‘worry how much you are
making or you are going to be fired.’’ The coercive effect
of Greenlee’s statements is clear. Thus, by inquiring as to the
employee’s ‘‘gripes,’’ the plant manager was unlawfully so-
liciting grievances, conduct violative of Section 8(a)(1) of the
Act. Permanent Label Corp., 248 NLRB 118 (1980). Further,
Greenlee’s response to Hudnall’s expressed desire for a raise
in pay (‘‘that will never happen’’), in the circumstances of
this conversation, was clearly the plant manager’s expression
of the futility of union organizing and was violative of the
above section of the Act. Finally, in agreement with counsel
for the General Counsel, the general manager’s threatened
termination of Hudnall unless he kept his mind on his own
job and stopped worrying about his wages appears to have
been a veiled warning not to discuss rates of pay with other
employees and is similar to his admitted warning to Frank
1003SIVALLS, INC.
39 Respondent’s officials Greenlee and Halbrook contended that,
despite the clear wording of the August 20 notice, what was done
with regard to the new time for the distribution of payroll checks
represented a ‘‘clarification’’ rather than a change in practice. Anal-
ysis of the record as a whole and of the wording of the notice itself
convinces me of the baseless nature of their assertion.
Mendoza in late September. In this regard, the Board has
held that ‘‘blanket’’ rules prohibiting salary discussion are
unlawful, and I so find. Mast Advertising & Publishing, 304
NLRB 819 (1991); L. G. Williams Oil Co., 285 NLRB 418
(1987). Also with regard to Greenlee, there is no dispute
that, in July, outside of Russell Cranson’s office, he interro-
gated Gregory Perez as to why he wanted to be represented
by a union. There is no evidence that Greenlee had any
knowledge as to Perez’ union sympathies, and, in such cir-
cumstances, I find that interrogation to be violative of Sec-
tion 8(a)(1) of the Act. Jakel Motors, supra at 732.
Turning from Respondent’s coercive and patently unlawful
preelection conduct to its alleged retaliatory unilateral
changes immediately after the August 10 representation elec-
tion, in which the Union achieved a one-vote majority show-
ing, I initially note that several witnesses including present
employee Jeff Hamilton, Munoz, Hudnall, Cadena, Perez,
and Frank Mendoza convincingly testified as to said allega-
tions and corroborated each other in all significant details. I
believe that, on these points, each testified candidly and shall
be credited. In contrast, neither Cranson, Greenlee, or
Attieson Halbrook impressed me as being particularly honest
in testifying with regard to the two alleged retaliatory unilat-
eral changes, and their respective testimony shall not be
credited. Accordingly, as to the first of the allegations, re-
garding the taking of unfinished food and/or drink back to
work stations after the 15-minute morning and afternoon
break periods, I find that, at least for the several years pre-
ceding the August 10, 1990 election, employees in most, if
not all, departments were permitted to take unfinished food
or drink to their work stations at the conclusion of break pe-
riods and that, within a day or two of the Union’s victory,
Respondent abruptly changed this practice, requiring employ-
ees to dispose of any unfinished food or drink at the conclu-
sion of a break period rather than finishing such while they
worked. As to the second of the alleged retaliatory unilateral
changes, the record is clear that, prior to the election, pay-
checks were distributed to employees on Friday afternoons
normally during the 2:30 p.m. break period and always be-
fore 3 p.m. Furthermore, and there is no dispute in this re-
gard, on the Friday following the election, Cranson told em-
ployees that, pursuant to Greenlee’s orders, paychecks would
not be distributed until, at least 5 p.m., and, on August 20,
a notice was posted, informing employees of a ‘‘change’’ in
Respondent’s payroll check distribution practice, with such
occurring no earlier than the ‘‘quitting time’’ of each em-
ployee on Friday afternoons.39
That both changes in employment practices, which Re-
spondent concedes were accomplished without notice to the
Union or affording it an opportunity to bargain prior to be-
coming effective, were implemented in retaliation for the
Union’s victory in the representation election seems beyond
question. Thus, both changes were implemented within days
of the Union’s victory, and, of course, timing is a crucial
consideration in assessing motivation. Further, both employ-
ment practices were apparently important to the employees.
Thus, the finishing of food and drink at work stations after
break periods was a longstanding employment practice, and
the delay in releasing payroll checks to employees until quit-
ting time meant that employees no longer could cash checks
at local banks until the following Monday. Finally, with re-
gard to the change in the time of distribution of payroll
checks, I specifically credit Gregory Perez that, in response
to the complaints of employee Bill Burgess, Greenlee said,
‘‘I don’t give a damn about the union. You can do what I
want.’’ ‘‘It is unlikely that the employees missed the import
of [Respondent’s] ‘sudden’ action[s],’’ and I find clear
record evidence that Respondent was unlawfully motivated in
implementing these changes. Speed Mail Service, 251 NLRB
476, 477 (1980).
Following the dictates of the Board’s decision in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), approved in NLRB v. Transportation Management
Corp., 453 U.S. 989 (1983), which will be discussed in
greater detail infra, in examining whether Respondent would
have implemented either or both of these changes absent the
employees’ selection of the Union as their representative for
purposes of collective bargaining, I find that the record
strongly mandates the conclusion that neither change would
have been implemented absent the Union’s election victory.
Thus, with regard to the change in the food and drink prac-
tice after break periods, Greenlee testified that food and
drink were never permitted at work areas but conceded that
taking food out of the breakrooms had been ‘‘an age old
problem’’ and had occurred on a daily basis prior to the elec-
tion. Further, as to the distribution of payroll checks, the pol-
icy, according to Greenlee, was not to do so until after 3
p.m. on Fridays, and the change in the time of such resulted
from a ‘‘disruption’’ in the plant caused by employees, who
received their paychecks early, walking out of the plant to
give the checks to waiting wives. However, as above, he
conceded that such had been an ‘‘on-going problem’’ during
his tenure as plant manager, and there is no record evidence
that the situation, in either instance, had worsened to the
point of requiring immediate attention. Based upon the fore-
going, there can be no doubt that any prohibition against tak-
ing food and drink back to work areas after break periods
and the policy of not distributing payroll checks until after
3 p.m. on Fridays were honored almost exclusively in the
breach and that Respondent was aware of and condoned such
conduct. Accordingly, I find no merit in any contention that
either of the above-described changes in employment prac-
tices would have been implemented absent the Union’s elec-
tion victory and find Respondent’s retaliatory conduct to
have been violative of Section 8(a)(1) and (3) of the Act.
Speed Mail Service, supra.
The consolidated complaint alleges and counsel for the
General Counsel argues that the above-described unilateral
changes in employee working conditions also was violative
of Section 8(a)(1) and (5) of the Act. ‘‘But not every unilat-
eral change in work . . . rules constitutes a breach of the
bargaining obligation. The change unilaterally imposed must,
initially, amount to ‘a material, substantial, and a significant’
one.’’ Peerless Food Products, 236 NLRB 161 (1978); Rust
Craft Broadcasting of New York, 225 NLRB 327 (1976).
Perhaps if either of the two allegedly unlawful, unilaterally
imposed changes had occurred in isolation and in cir-
cumstances free of surrounding unfair labor practices, a dif-
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 Generally, I found Mendoza to have been a more honest and
candid witness than Ed Greenlee and shall credit him whenever the
testimony of both conflicts. However, in light of the record as a
whole and my perception of Greenlee as being an intelligent indi-
vidual, I do not believe he uttered some of the comments attributed
to him by the alleged discriminatee and shall not credit Mendoza as
to those. On the latter point, it is, of course, not unusual for a trier
of fact to believe some but not all of a witness’s testimony.
41 Besides being indicative of Respondent’s suspicions regarding
Mendoza’s role in the organizing campaign, Greenlee’s comment
was clearly coercive, creating the impression that Respondent was
engaging in surveillance of the employees’ protected concerted ac-
tivities. Gupta Permold Corp., 289 NLRB 1234, 1246 (1988).
ferent result would be warranted. However, involved herein
are two changes in employee terms and conditions of em-
ployment and, without regard to the innate significance of
each, both were imposed in retaliation for the employees’
vote in favor of union representation and in an atmosphere
fraught with violations of Section 8(a)(1) of the Act. Further-
more, given Plant Manager Greenlee’s comment that he did
not ‘‘give a damn about the Union’’ and would do as he
wished, the inference is warranted that Respondent delib-
erately ignored its obligation to bargain prior to imple-
menting both changes. In the foregoing circumstances, hav-
ing allowed its policies to ‘‘slip into desuetude,’’ Respondent
could not lawfully alter its past practices without offering to
bargain with the Union, and I so find. New York Telephone
Co., 304 NLRB 183, 184 fn. 12 (1991).
Next, regarding the consolidated complaint allegations that
Respondent discriminated against employee Frank Mendoza
by transferring him from the welding to the painting and
sandblasting department and by reducing his rate of pay, I
note, at the outset, that the merits of said allegations are gov-
erned by the traditional precepts of Board law in Section
8(a)(1) and (3) cases, as modified by the Board’s Wright
Line, supra, decision. Thus in order to establish a prima facie
violation of the above section of the Act, counsel for the
General Counsel had the burden of establishing (1) that the
alleged discriminatee engaged in union activities; (2) that Re-
spondent had knowledge of or suspected such conduct; (3)
that Respondent’s actions were motivated by union animus;
and (4) that the transfer of Mendoza and the reduction of his
rate of pay had the effect of encouraging or discouraging
membership in the Union. WMRU-TV, 253 NLRB 697, 703
(1980). Further, counsel for the General Counsel had the bur-
den of proving the foregoing matters by a preponderance of
the evidence. Gonic Mfg. Co., 141 NLRB 201, 209 (1963).
However, while the above analysis has been easily applied
in cases in which a respondent’s motivation is straight-
forward, conceptual problems arise in cases in which the
record evidence discloses the presence of both lawful and un-
lawful causes for the respondent’s acts. In order to resolve
this ambiguity, the Board, in Wright Line, supra, established
test in all Section 8(a)(1) and (3) cases involving employer
motivation. ‘‘First, we shall require that the General Counsel
make a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘motivating factor’ in the
employer’s decision. Once this is established, the burden will
shift to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct.’’ Id. at 1089. The crucial inquiry, in cases such as
this, is ‘‘not whether the Respondent could have [transferred
Mendoza and reduced his rate of pay], but rather whether the
Respondent would have done so in the absence of his pro-
tected activity.’’ Filene’s Basement Store, 299 NLRB 183
(1990).
Initially, with regard to the alleged discrimination against
Frank Mendoza, there is no dispute that, in early September,
he was temporarily assigned to the painting and sandblasting
department at his current rate of pay and that, 2 weeks later,
Respondent permanently transferred him to that department
and reduced his rate of pay from $10 to $9 per hour. As to
the merits of the allegations, counsel for the General Counsel
argues, and the record establishes, that Mendoza participated
in the initial union organizing campaign by attending meet-
ings, signing an authorization card, distributing such cards to
other employees, and speaking to employees about the
Union. While he appears not to have been a leader of said
organizing campaign, there is record evidence to suggest that
Respondent believed he acted in such a capacity. Thus, prior
to the election, the alleged discriminatee complained to Plant
Manager Greenlee about two union opponents who, rather
than two other employees, were permitted to transfer to dif-
ferent jobs. Greenlee said he would investigate and get back
to Mendoza. The next morning, Greenlee held an employee
meeting and gave his explanation for the transfers and, after
Mendoza objected to the plant manager for not speaking with
him alone, Greenlee asked the alleged discriminatee to wait
at the conclusion of the meeting. Crediting Mendoza,40 I find
that, when they met, Greenlee admonished Mendoza for his
conduct at the meeting and that, after the latter defended his
outburst, Greenlee said, ‘‘I don’t have to talk to you to get
to the Union.’’ Mendoza asked if Greenlee was accusing him
of being the ‘‘head man’’ in the campaign, and the latter re-
plied ‘‘You are damn right I am.’’41 That Respondent ap-
pears to have believed that Mendoza was the leader of the
Union’s organizing campaign is corroborated by the fact that
Attieson Halbrook spoke to him shortly before the election
in order to point out that the Union’s constitution provides
that a member might go to jail for not paying ‘‘fees’’ to the
Union. Halbrook conceded that he had such a conversation
with Mendoza, that he asked Mendoza to tell other employ-
ees of the constitutional provision, and that Mendoza was the
only employee to whom he spoke in this regard. Finally, if
Respondent harbored any doubts as to Mendoza’s role in the
campaign, these undoubtedly were dispelled by his position
as the Union’s observer during the election.
Whether counsel for the General Counsel has established
a prima facie violation of Section 8(a)(1) and (3) of the Act
by Respondent for transferring Mendoza to the painting and
sandblasting department and reducing his rate of pay depends
upon the existence of record evidence establishing Respond-
ent’s above-described suspicions as its underlying motivation.
In this regard, I have previously concluded that, prior to the
election and in order to coerce employees from supporting
the Union, Respondent engaged in conduct blatantly violative
of Section 8(a)(1) of the Act, including implied and overt
threats of reduced benefits and other reprisals, plant closure,
and, most significantly, termination. Moreover, indicating
that the foregoing were not meaningless comments and re-
vealing of management’s collective state of mind after the
Union achieved majority status by just one vote, within days
of the election, Respondent instituted two retaliatory, unilat-
eral changes, clearly violative of Section 8(a)(1), (3), and (5)
1005SIVALLS, INC.
42 There is no dispute that the foregoing conversation occurred. In
determining what was said, I have credited the admission of
Greenlee and that portion of Mendoza’s testimony which best com-
ports with the record as a whole.
of the Act. Further, at the time of Mendoza’s permanent
transfer to the painting and sandblasting department, Plant
Manager Greenlee spoke to the alleged discriminatee, pointed
to the personnel manual, and said that ‘‘discussing his wages
or anybody else’s was grounds for termination.’’ Not only
did Greenlee fail to explain to Mendoza the purpose of his
warning but also, after the alleged discriminatee became
angry, Greenlee told him ‘‘the best thing for you to do . . .
is quit.’’42 The Board has long held that any interference
with the free discussion of wage rate information restrains
‘‘employees in the exercise of their rights to engage in con-
certed activities.’’ Electronic Data Systems, 240 NLRB 813,
816 (1979). Accordingly, in the absence of any showing of
the necessity for such a rule, I find Greenlee’s admitted
threat of termination to Mendoza to have been violative of
the Act. Mast Advertising, supra; Electronic Data Systems,
supra. Also, in the circumstances, I believe that the plant
manager’s ‘‘invitation’’ to Mendoza to quit was nothing less
than an unlawful, veiled threat of termination, violative of
Section 8(a)(1) of the Act, and I so find. Accordingly, based
upon the foregoing, and the record as a whole, there exists
ample record evidence to conclude that Respondent believed
that employee Frank Mendoza was a principal union adher-
ent in the plant, that such was confirmed by Mendoza’s posi-
tion as the Union’s observer during the election, and that Re-
spondent harbored unlawful animus toward its employees
generally because of their support for the Union and toward
Mendoza specifically as a result of his perceived leadership
role in the election campaign. Accordingly, I find that coun-
sel for the General Counsel has established a prima facie vio-
lation of Section 8(a)(1) and (3) of the Act by Respondent’s
transfer of Frank Mendoza from a position of material dis-
patcher in the welding department to a position of sand-
blaster in the painting and sandblasting department and re-
duction of his rate of pay.
In accord with the Wright Line analytical approach, the
burden shifted to Respondent to demonstrate, as an affirma-
tive defense, that, notwithstanding the existence of unlawful
motivation for such, Mendoza would, nevertheless, have been
transferred to the painting and sandblasting department, ini-
tially, on a temporary basis and, later, permanently. At the
outset, there can be no question that Respondent faced a
manpower shortage in this department in early September
and that workers were needed. Thus, with the department’s
supervisor on vacation, only two employees, a painter-coater
and a sandblaster, remained to perform all the required work,
and, 2 days after the supervisor’s vacation began, the painter-
coater, Jose Galindo, became injured and unable to work.
With just a sandblaster employee remaining, Respondent
transferred Mendoza into the painting and sandblasting de-
partment on a temporary basis. Given the record evidence
that, at least, 10 percent of the bargaining unit employees
had painting and/or sandblasting experience, the issue, with
regard to the instant matter, is whether the selection of Men-
doza was reasonable under the circumstances. Initially, as
pointed out by counsel for the General Counsel, Mendoza
had only 2 days’ experience in painting and sandblasting, 3
years before in 1987; however, there is no evidence that any
other employee had more experience. Moreover, Ed
Greenlee’s testimony was uncontroverted that there was no
other experienced employee available. According to him, no
welder could be spared as each was working on a job, and
there were no employees available in other departments. On
this point, the fact that other employees may have had some
painting and sandblasting experience does not mean that any
were available for transfer, and counsel for the General
Counsel proffered no evidence on the point. Next, counsel
for the General Counsel argues that, with only a sandblaster
available in the painting and sandblasting department, why
would Respondent transfer an employee (Mendoza), whose
only experience was sandblasting work, when what was
needed was an employee who could perform painting work.
While none of Respondent’s witnesses addressed this point,
I note that, within days of Galindo’s injury, supervisor Ortiz
returned to work and, within a week of Mendoza’s transfer,
a painter and a painter-coater were hired. Further, counsel’s
argument presupposes that there was no work for a sand-
blaster employee at the time of Mendoza’s temporary trans-
fer, and neither Mendoza nor any other employee testified
that there was no available work for the alleged
discriminatee.
Two weeks after his temporary transfer, Mendoza’s trans-
fer to the painting and sandblasting department was made
permanent. On this point, Greenlee and Cranson testified that
a sandblaster was still required in that department and that
an analysis of the work in the welding department disclosed
that work there could be accomplished without an individual
acting as a material dispatcher and that whatever work was
performed on a daily basis by Mendoza could be performed
by the Supervisor Cranson without affecting the efficiency of
the welding department. The only testimony, proffered to
controvert Respondent on these points, was that of William
Hudnall. However, unlike his appearance as a witness when
testifying as to Respondent’s unlawful conduct described
above, Hudnall appeared to be significantly less candid and
generally unconvincing in describing what he asserted was
increased work and less efficiency as a result of Mendoza’s
absence from the welding department, I cannot credit him
over Cranson and Greenlee on this issue. In short, I believe
that Respondent has met its burden of proof and find that it
would have transferred Mendoza to the painting and sand-
blasting department notwithstanding his union activities.
However, a different result is mandated when considering
the reduction of Mendoza’s pay from $10 to $9 per hour at
the time of his permanent transfer. In this regard, Respond-
ent’s only justification for doing so was Plant Manager
Greenlee’s assertion that, when an employee is permanently
transferred from one department to another, he can be paid
no more than the highest paid in the new department. Anal-
ysis of the record as a whole convinces me that said expla-
nation was an utter canard. Thus, when initially asked if any
other permanently transferred employee ever had his wage
rate reduced, Greenlee said, no; however, he later changed
his testimony, saying ‘‘several years’’ before, another em-
ployee had suffered a wage rate reduction but offered no cor-
roboration. Moreover, his testimony, during cross-examina-
tion on this point, seemed labored and confused. Thus, while
the point of his direct testimony was the necessity of reduc-
ing Mendoza’s wage rate to avoid ‘‘dissension’’ in the paint-
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing and sandblasting department, his emphasis during cross-
examination was that Mendoza does ‘‘very little’’ painting
and that ‘‘he can’t do what [that] classification says.’’ Add-
ing to my difficulty with Respondent’s proffered explanation
is the fact that there is no wage scale for sandblaster and the
painter scale ranges up to $11 per hour. Finally, and most
significantly, Greenlee conceded that Mendoza was a long-
term and valued employee and that a determination of his
wage rate at the time of the transfer was solely within Re-
spondent’s discretion. The foregoing, and the record as a
whole, convinces me that Respondent seized upon the neces-
sity of transferring Frank Mendoza to the painting and sand-
blasting department to concomitantly reduce his wage rate as
punishment for his perceived role in the Union’s successful
organizing campaign. I find that, in so acting, Respondent
engaged in conduct violative of Section 8(a)(1) and (3) of the
Act.
Next, I turn to the matter of Respondent’s employee drug
testing policy, specifically whether Respondent was under a
legal duty to have offered the Union an opportunity to bar-
gain prior to implementing the use of Harrison & Associates
Forensics Laboratories to conduct the drug testing. The basic
facts, regarding Respondent’s drug testing program, are not
in dispute. Thus, after preliminary discussions with Roy Har-
rison and prior to any union organizing activity among its
employees, on May 1, 1990, Respondent implemented a
comprehensive employee drug testing policy, with such be-
coming effective in 90 days. At approximately the same
time, Respondent informed Roy Harrison that his company
would be utilized to perform the drug testing; however, the
record establishes, and I find, that no contract between the
parties existed for such purpose at that time. Rather, no con-
tract between the parties was reached until Respondent con-
tacted Harrison to actually perform the drug tests of its em-
ployees, and, in this regard, given Attieson Halbrook’s ad-
mission, I find that this occurred ‘‘after the election.’’ Fi-
nally, there is no dispute that Respondent neither notified the
Union nor gave it an opportunity to bargain prior to con-
tracting with Harrison. In these circumstances, counsel for
the General Counsel, while not arguing that Respondent was
under any obligation to bargain with the Union with regard
to the implementation of its drug testing plan, does contend
‘‘that the selection of the laboratory to perform drug tests is
a matter so integral in the implementation of a drug testing
program that it must necessarily be considered a mandatory
subject of bargaining’’ and, therefore, Respondent was obli-
gated to have given notice to, and offered to bargain with,
the Union prior to contacting the testing laboratory regarding
the commencement of the employee drug testing. Arguing to
the contrary, counsel for Respondent makes two main points.
First, citing Ford Motor Car Co. v. NLRB, 411 U.S. 488
(1979), he contends that the selection of the company to per-
form the drug testing was a mere ‘‘managerial decision’’
which involved the inherent right of an employer to conduct
business with whomever it desires, and, next, he argues that
the testing laboratory was simply the ‘‘means’’ by which Re-
spondent implemented its drug testing procedure and, accord-
ingly, was not itself a mandatory subject of bargaining.
There is no dispute that drug and alcohol testing programs
and policies constitute mandatory subjects of bargaining and
that unilateral implementation of such testing, without afford-
ing a bargaining representative wit prior notice and an oppor-
tunity to bargain normally is violative of Section 8(a)(1) and
(5) of the Act. Johnson-Bateman Co., 295 NLRB 180
(1989). While the instant issue has not yet been resolved by
the Board, analysis of the record as a whole convinces me
that, given the important legal rights involved, including em-
ployees’ rights to privacy and against self-incrimination, and
such important considerations as the competency of those ad-
ministering the tests and analyzing the results, the accuracy
of the tests, the ‘‘chain of custody’’ of the urine samples,
and the confidentiality of the results, the laboratory utilized
to performed the testing, constitute the single most critical
aspect of any alcohol and drug testing program and, likewise,
must be found to be a mandatory subject of bargaining.
Herein, notwithstanding implementation of the overall pro-
gram and its effective date occurring at a time when no bar-
gaining obligation existed, as the contractual relationship be-
tween Respondent and Harrison & Associates Forensic Lab-
oratories was reached subsequent to the attainment of major-
ity status by the Union, thereby making possible the choice
of another testing laboratory, I believe that, at the least, bar-
gaining was required over the decision to use the services of
the laboratory. In arguing against a bargaining obligation,
counsel points to the timing device in Rust Craft Broad-
casting of New York, 225 NLRB 327 (1976), and the oral
tests in UNC Nuclear Industries, 268 NLRB 841 (1984), and,
as the Board did not require bargaining over the decision to
use with and found the introduction of the timing devices
within ‘‘managerial control,’’ argues that bargaining should
not be required over the choice of a testing laboratory. Con-
trary to counsel, both of the cited cases involve asserted uni-
lateral changes and, in particular, whether such were mate-
rial, substantial, or significant. In neither instance was the
Board required to decide an employer’s bargaining obligation
in the absence of any existing practice or to consider whether
bargaining is required prior to implementation of an integral
aspect of a policy which itself constitutes a mandatory sub-
ject of a policy which itself constitutes a mandatory subject
of bargaining but over which, in the circumstances, bar-
gaining was not required. Moreover, neither the choice of a
timing device nor the use of a particular testing procedure in-
volves the complex legal issues inherent in the choice of a
drug testing laboratory and their impact upon employee
rights. Accordingly, the above-cited cases appear to be inap-
posite and counsel’s analogy to the factual circumstances of
both is without merit. With regard to the Ford Motor Co. ar-
gument, other than counsel’s assertion of an inherent right to
conduct business with whomever it desires, Respondent of-
fered no evidence that the choice of a drug and alcohol test-
ing laboratory involved the commitment of investment cap-
ital or the changing of the scope or nature of its business en-
terprise. Rather, choosing such a laboratory appears to be a
more limited decision involving employees’ terms and condi-
tions of employment and is a mandatory subject of bar-
gaining. In these circumstances, and inasmuch as Respond-
ent’s contract with the testing laboratory was consummated
subsequent to the election, I believe a bargaining obligation
existed, and by failing to give the Union prior notice of its
intent to contract with Harrison & Associates Forensic Lab-
oratories and an opportunity to bargain regarding the choice
of said testing laboratory, Respondent engaged in conduct
violative of Section 8(a)(1) and (5) of the Act.
1007SIVALLS, INC.
43 Contrary to counsel for the General Counsel, the provision, stat-
ing that employees must return from vacation, if necessary, for the
convenience of Respondent, does not appear to be a new policy.
Thus, while the language did not appear in the previous employee
manual, the employment practice seems to have been announced to
bargaining unit employees in December 1981 and set forth thereafter
in the supervisors’ policy manual, which is available to employees.
In these circumstances, I do not believe such can be considered to
be a change in employees’ terms and conditions of employment.
Regarding the alleged unlawful, unilateral changes which
were implemented by Respondent in its revised employee
policy manual, distributed to bargaining unit employees in
October 1990, there is no dispute as to the basic facts. Thus,
Respondent concedes that it did not offer the Union an op-
portunity to bargain about any changes in employment prac-
tices found in said manual. Moreover, the record evidence
was uncontroverted that changes in employees’ terms and
conditions of employment were, in fact, implemented by said
manual, including a new provision that the plant ‘‘will’’ be
closed for 2 weeks for maintenance and requiring vacations
to be taken during said time, a provision giving employees
1 hour of unauthorized leave, rather than, as set forth in the
prior manual, 1 hour of paid leave, in order to vote, and the
deletion of the material dispatcher job classification.43 There
is no contention that the foregoing changes were, in any
manner, not material, substantial, and significant. In these
circumstances, these departures from past employment prac-
tices, without affording the Union notice and an opportunity
to bargain prior to implementation, constituted a violation of
Section 8(a)(1) and (5) of the Act. Union Child Day Care
Center, 304 NLRB 517 (1991); Murphy Oil USA, 286 NLRB
1039 (1987).
Turning to the Union’s request for information and the
consolidated complaint allegation that Respondent unlawfully
failed and refused to provide the Union with the requested
information, there is no factual dispute herein that, by a letter
dated August 24, 1990, the Union requested that Respondent
provide it with the names, ages, dates of hire, rates of pay,
job classifications, average weekly hours worked, and fringe
benefits for all bargaining unit employees; that, over the fol-
lowing 5 months, Freddie Sanchez reiterated this request, on
numerous occasions, verbally, during telephone conversations
and at bargaining sessions, and in writing; that not until Jan-
uary 14, approximately 6 weeks after the Union filed an un-
fair labor practice charge over Respondent’s failure to honor
its request, did the latter provide any of the requested infor-
mation to the Union; and that Respondent did not completely
comply with the Union’s request for information until the
parties’ bargaining session, held on January 22 and 23, 1991.
Inasmuch as Sanchez conceded at the hearing that, as of the
above bargaining session, all the requested information had
been provided, counsel for the General Counsel now con-
tends that Respondent did not satisfy its obligation to provide
information as such was not done with ‘‘reasonable dis-
patch’’ and that delay was unreasonable and unlawful. Ini-
tially, ‘‘an employer has statutory obligation to supply re-
quested information that is potentially relevant and will be of
use to a union in fulfilling its responsibilities as the employ-
ees’ exclusive bargaining representative.’’ NLRB v. Acme In-
dustrial Co., 385 U.S. 432, 435–436 (1967); Pennsylvania
Power Co., 301 NLRB 1104, 1105 (1991). Herein, the
Union’s information request was for information relating di-
rectly to the bargaining unit employees, and ‘‘information
concerning wage rates, job descriptions, and other informa-
tion pertaining to employees within the bargaining unit is
presumptively relevant.’’ Pennsylvania Power, supra. Fur-
ther, not only does an employer have a duty, within the
meaning of Section 8(a)(1) and (5) of the Act, to provide
such information to the bargaining representative but also an
employer has a concomitant statutory obligation to furnish
the information without unreasonable delay and in a reason-
able time. Westmoreland Coal Co., 304 NLRB 528 (1991);
Accurate Auditors, 295 NLRB 1163 (1989). Herein, despite
repeated reiterated requests, 5 months passed before Re-
spondent felt compelled to furnish the above-described infor-
mation to the Union. The only justification for delay was
Attieson Halbrook’s assertion that he observed Freddie
Sanchez at the preelection conference with a confidential
computer-generated payroll document, containing much, but
not all, of the requested information, with such leading to the
former’s conclusion that the Union possessed the requested
information. Sanchez denied Halbrook’s assertion, and, as
between the two witnesses, I found Sanchez to have been
significantly more candid and forthright than Halbrook, there
is no record evidence justifying or even explaining Respond-
ent’s conduct in this regard. Accordingly, I find that Re-
spondent unreasonably delayed in furnishing the requested
information to the Union and, thereby, engaged in conduct
violative of Section 8(a)(1) and (5) of the Act.
Before discussing what appears to be the most important
of the issues herein, those relating to the bargaining between
the parties and, in order to properly understand Respondent’s
attitude toward bargaining, I believe it necessary to reflect
upon Respondent’s conduct to this point. In this regard, anal-
ysis of the record as a whole convinces me that Respondent’s
above-described acts were calculated to achieve two principal
objectives. First, in light of the unlawful retaliatory unilateral
changes implemented immediately after the election, it seems
clear that Respondent was bent upon ensuring that its
preelection threats came true and punishing the employees
for their selection of the Union as their exclusive bargaining
representative. That this view is the proper one is made cer-
tain by Respondent’s discriminatory reduction of Frank
Mendoza’s wage rate, an act of obvious retaliation against a
suspected leader of the Union’s successful campaign. The
second objective of Respondent’s acts and conduct is no less
certain—the denigration of the Union, which had achieved its
majority status by a margin of one vote, in the eyes of bar-
gaining unit employees in order to demonstrate to them the
futility of their selection and to provoke some employee ac-
tion beyond the certification year. That such an inference
from the record may be drawn is clear given Respondent’s
seeming blatant disregard for its bargaining obligations as
described above, and, in this regard, I note that two of said
unlawful acts, the unilaterally implemented changes in em-
ployees’ terms and conditions of employment, announced in
the revised employee manual, and the failure to furnish re-
quested information to the Union, continued during the con-
tract negotiations between the parties.
In this context, I turn to consideration of the issues involv-
ing the actual contract negotiations between Respondent and
the Union, bargaining which entailed six negotiating meet-
ings, two of which were 2-day sessions, over a 4-month pe-
riod. In support of the consolidated complaint allegation that
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 The fact that Freddie Sanchez failed to follow up on Respond-
ent’s lead regarding a local utility’s offer to provide a room at no
cost does not detract from my finding. Thus, such, of course, has
nothing to do with Respondent’s bad faith, and, in any event, it was
not unreasonable for Sanchez to have believed that it was Respond-
ent’s obligation to contact the utility.
Respondent engaged in bad-faith, surface bargaining in viola-
tion of Section 8(a)(1) and (5) of the Act, counsel for the
General Counsel argues that the bargaining conclusively es-
tablishes that Respondent evidenced no ‘‘intention or desire’’
of reaching a final agreement with the Union. Arguing to the
contrary, Respondent’s counsel asserts that what occurred
was no more than the ‘‘hard bargaining’’ which must be
‘‘expected’’ in light of an election decided by one vote. In
reaching conclusions as to what occurred during the bar-
gaining, I have relied upon the testimony of Freddie Sanchez.
While I was not convinced of his candor on every aspect of
the bargaining, he appeared to be a far more honest and
truthful witness than either Attieson Halbrook or James
McNutt, each of whom failed to impress me as being entirely
candid and contradicted the other on material aspects of the
bargaining.
At the outset, I must state that, normally, whether an em-
ployer’s conduct, during contract negotiations with a union,
evidences bad-faith surface bargaining is not an easy deci-
sion. Viewed in a vacuum, one finds herein an initial listing
of 14 bargaining demands, a draft agreement incorporating
said demands, an economic proposal, and a counterproposal
submitted by the Union; an initial draft contract proposal and
a final offer submitted by Respondent; bargaining between
the parties during which each side adamantly adhered to its
original positions as to the subjects at issue herein (manage-
ment rights, waiver, dues checkoff, and arbitration); conces-
sions made by the Union as to economics; and concessions
by Respondent on an aspect of its proposed no-strike clause
and in its proposed grievance provision; and no statements
by any of Respondent representative revealing an intent not
to bargain in good faith. Taking a more expansive view,
counsel for the General Counsel requests that I view Re-
spondent’s acts and conduct at the bargaining table in the
context of its entire course of conduct both before and after
the election, which manifestly establishes an intent to evis-
cerate the Union, and specifically argues that Respondent’s
insistence, while refusing to permit the bargaining to take
place in a conference room at the plant, that the Union bear
the entire cost of the meeting rooms and its management
rights, waiver, and no-strike proposals, viewed separately or
in combination, and dues checkoff and arbitration positions
establish that Respondent bargained with the object of fore-
stalling any final agreement.
I find merit in counsel for the General Counsel’s positions
that what occurred at the bargaining table must be viewed in
the context of Respondent’s acts and conduct away from the
table and that the substance of Respondent’s bargaining pro-
posals and positions may be indicative of its intent. ‘‘In de-
termining whether a party has bargained in good faith, mak-
ing a genuine effort to reach agreement, [the Board] will sel-
dom find direct evidence of a party’s intent to frustrate the
bargaining process. Rather, [it] must look at all of [the par-
ty’s] conduct, both away from the bargaining table and at the
table, including the substances of the proposals on which the
party has insisted. . . . Such an examination is not intended
to measure the intrinsic worth of the proposals, but instead
to determine whether, in combination and by the manner in
which they are urged, they evince a mindset open to agree-
ment or one that is opposed to true give-and-take.’’ NLRB
v. A-1 King Size Sandwiches, 732 F.2d 872, 874 (11th Cir.
1984); NLRB v. Mar-Len Cabinets, 659 F.2d 995, 999 (9th
Cir. 1981); Hydrotherm, Inc., 302 NLRB 990 (1991);
Prentice-Hall, Inc., 290 NLRB 646 (1988); Reichhold
Chemicals, 288 NLRB 69 (1988). Further, certain conduct,
such as unilateral changes in mandatory subjects of bar-
gaining, has been held to be indicative of a lack of good
faith. Atlanta Hilton & Tower, 274 NLRB 1600, 1603
(1984). Herein, of course, I have found that Respondent uni-
laterally implemented changes in the bargaining unit employ-
ees’ terms and conditions of employment, announcing some
immediately after the August 10 election and others in the
revised employee manual published in October 1990.
As another indicia of Respondent’s bad-faith approach to
the contract negotiations, counsel for the General Counsel
points to Respondent’s refusal to permit bargaining to occur
in the conference room at the plant while, at the same time,
refusing to share the cost of a meeting room away from the
plant. There is no dispute as to these facts, and Halbrook,
as to the former, stated that Respondent’s refusal to bargain
on its property was ‘‘just a bargaining tactic’’ and, as to the
latter, stated that Respondent felt no ‘‘obligation’’ to share
the cost of the meeting room. In the circumstances of this
case, I agree with counsel for the General Counsel that Re-
spondent’s conduct, in this regard, not only was indicative of
bad-faith bargaining but also was itself unlawful. At the out-
set, I note that the Board does not take a per se approach
to where bargaining should take place but rather considers
‘‘all the relevant circumstances.’’ Tower Records, 273 NLRB
671, 672 fn. 8 (1984). It has long been a standard tenet of
labor law that bargaining should occur, if possible, at the lo-
cation of the dispute or controversy. NLRB v. P. Lorillard,
117 F.2d 921, 924 (6th Cir. 1941). Herein, notwithstanding
that the hotel, at which the bargaining occurred, is no more
than 5 miles from the plant, Respondent offered no expla-
nation for refusing to hold the contract bargaining at the
plant other than its pejorative comment that such was a mere
bargaining stratagem. Moreover, of course, having forced the
bargaining away from the plant, Respondent refused to share
the expense of the room as it did not feel ‘‘obligated’’ to do
so. In these circumstances, it can hardly be said that ‘‘legiti-
mate needs’’ influenced Respondent’s conduct. Burns Secu-
rity Services, 300 NLRB 1143 (1990). Further, such distin-
guishes the instant matter from McCulloch Corp., 132 NLRB
201, 205 (1961), wherein no violation was found in an em-
ployer’s refusal to meet at its plant due to a bitter election
campaign. Also, in McCulloch, the respondent shared the
cost of the meeting location. In these circumstances, in light
of the record as a whole, it is evident that Respondent’s tac-
tic was designed to increase the bargaining pressure upon the
Union and seems to be a patent example of Respondent’s ef-
fort to forestall agreement. Accordingly, it must be found
that Respondent acted in bad faith by its foregoing conduct
and in violation of Section 8(a)(1) and (5) of the Act.44
In the context of Respondent’s flagrant unfair labor prac-
tices, including those indicative of bad-faith bargaining, I
consider the substance of its bargaining proposals and posi-
tions. Initially, it is important to note that, even in the ab-
1009SIVALLS, INC.
45 In arguing that what occurred was nothing more than ‘‘hard bar-
gaining’’ on an initial contract, Respondent points to the fact that
the Union demonstrated adamant positions on its own proposals for
management rights, grievance and arbitration, no-strike, waiver, and
checkoff. However, it is evident from the credible evidence that it
was Respondent’s own intransigency that prompted the Union’s lack
of movement. Thus, I credit Sanchez that, at the February 28 bar-
gaining session, he stated that the Union was ‘‘holding’’ on its pro-
posals in response to the fact that attorney McNutt stated that Re-
spondent would not move from what was termed its final offer.
Also, I note that Respondent demonstrated this identical attitude at
an earlier date. Thus, at the January 22 bargaining session, at which
time Respondent presented its initial proposal to the Union, during
the discussion of Respondent’s management-rights language, when
Sanchez objected that the clause diminished employee rights,
McNutt rejected any objections, saying ‘‘that this is the way it had
to be.’’
Respondent’s counsel also points out that Respondent did make
two concessions to the Union in its final offer. While this is true,
I note that the concession in the no-strike language, while not insig-
nificant in itself, left the basic language of the proposal in tact—
without regard for the fact that Respondent would not agree to arbi-
tration.
46 The consolidated complaint also alleges that Respondent’s re-
fusal to agree to the inclusion of a dues-checkoff provision in a col-
lective-bargaining agreement was not only an indicia of bad faith but
also unlawful itself. In this regard, the Board has long held that an
employer is not required to accede to a Union’s demand for a dues-
checkoff provision. Litton Microwave Cooking Products, 300 NLRB
324 (1990); Tritac Corp., 286 NLRB 522 (1987). Herein, Respond-
ent perfunctorily rebuffed the Union’s proposal of a dues-checkoff
provision, asserting that it was not ‘‘obligated’’ to do so and that
it did not want to know the identities of union members. Inasmuch
as Respondent gave no reasonable business justification for its re-
fusal to accept such a provision and, in the context of its clear bad-
faith approach to bargaining, the conclusion is warranted that, in
these circumstances, Respondent’s absolute refusal to consider dues
checkoff amounted to bad-faith bargaining in violation of Sec.
8(a)(1) and (5) of the Act, and I so find. Stevenson Brick Co., 160
NLRB 198, 210 (1966).
sence of a collective-bargaining agreement, a bargaining rep-
resentative enjoys significant rights under the Act simply by
virtue of its exclusive representative status. Hydrotherm;
Prentice-Hall, supra. These rights include the rights to strike
and to negotiate over grievances and the right to be notified
and to be afforded an opportunity to bargain, in advance,
over proposed changes in bargaining unit employees’ terms
and conditions of employment. Furthermore, there can be no
doubt that a labor organization may trade away or accept
weakened versions of these rights in order to obtain conces-
sions in other areas from an employer. In my view, therefore,
the issue, with regard to Respondent’s contractual proposals,
is whether, alone or in combination, these clauses restricted
the Union’s majority representational rights to the degree that
bargaining was rendered futile. The starting point for this
analysis must be Respondent’s proposed management rights
article, which, on its face, permits Respondent to establish
personnel policies and practices and, ‘‘from time to time’’
change or abolish them and to implement any changes in its
employees’ terms and conditions of employment in order to
meet, equal, or remain competitive with any competitor, with
any such changes not subject to the grievance procedure.
While an employer may lawfully propose a management-
rights clause, clearly, the effect of such language would
emasculate the Union’s representative rights by permitting
Respondent to unilaterally change terms and conditions of
employment with impunity whenever it so desired. That such
language was offered in bad faith seems apparent but be-
comes manifest when the clause is viewed in combination
with others. Thus, while noncompetitive unilateral changes
may be subject to the grievance procedure, the latter only en-
compasses managerial review of grievances. Further, Re-
spondent would not even contemplate the inclusion of a third
party arbitration procedure for grievances. Meanwhile, the
proffered no-strike clause would prohibit strikes in support of
any grievance, and the proposed waiver language would not
permit the Union to demand bargaining over any subject not
specified in the collective-bargaining agreement. The net ef-
fect of said provisions would be to leave Respondent with
unfettered control over the the bargaining unit employees’
terms and conditions of employment and permit it to act as
if the Union did not exist and in derogation of the Union’s
fundamental status as the employees’ bargaining representa-
tive. In my view, the Union and the employees would have
been better off had they not gone to the bargaining table and
merely relied upon the Union’s representational status under
the Act. A-1 King Size Sandwiches, supra at 855. Clearly,
then, these contract provisions and positions were offered in
bad faith in an effort to stifle bargaining45 and impede any
change of agreement, a conclusion made certain by the sur-
rounding pattern and practice of unfair labor practices by Re-
spondent. Prentice-Hall, supra at 671. Further, of course,
without regard to the unreasonable effect of these proposals,
the Board has ‘‘consistently found bad-faith bargaining and
a violation of the Act in cases, such as herein, in which an
employer has insisted on a broad management-rights clause
and a no-strike clause during negotiations, while, at the same
time, refusing to agree to an effective grievance and arbitra-
tion procedure.’’ San Isabel Electric Services, 225 NLRB
1073, 1079 fn. 7 (1976). In sum, as the Board stated in
Hydrotherm, Inc., supra ‘‘In sum . . . Respondent’s pro-
posals, considered as a whole, would have left the employees
and their representatives with less than they would enjoy by
simply relying on their certification, without a contract. This
is not the conduct of an employer sincerely attempting to
reach an agreement, and it is not good faith bargaining.’’
Rather, when placed in the context of the egregious unfair
labor practices previously found, it makes patently obvious
the conclusion that Respondent never understood the serious-
ness of a collective-bargaining relationship and was doing all
it could to avoid its legal obligations—with the undoubted
aim of waiting for the passing of the Union’s certification
year. NLRB v. Overnite Transportation Co., 938 F.2d 815
(7th Cir. 1991). By its above-described conduct,46 Respond-
ent engaged in bad-faith surface bargaining in violation of
Section 8(a)(1) and (5) of the Act. Hydrotherm, supra;
Prentice-Hall, supra.
CONCLUSIONS OF LAW
1. Respondent is an 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(6) of the Act.
3. The Union is the certified bargaining representative of
Respondent’s employees in the following appropriate unit:
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 I am, of course, cognizant that, at least, seven bargaining unit
employees were terminated for failing drug tests which were admin-
istered by Harrison & Associates Forensic Laboratories and that a
reasonable argument could be made that, in the context of Respond-
ent’s unlawful conduct, any remedy should include reinstatement and
backpay for the affected individuals. However, in the instant cir-
cumstances, I do not believe such a remedy is required. Thus, I note
that neither counsel for the General Counsel nor the Charging Party
has requested such a remedy. Further, there is no record evidence
warranting the inference that any of the seven employees failed the
drug tests performed by the above testing laboratory for any reason
other than the presence of unlawful substances or that any would
have passed a test administered by another testing laboratory. In
these circumstances, it would not effectuate the policies or purposes
of the Act to order reinstatement or backpay for said individuals, and
I so conclude.
All production and maintenance employees employed
by the Employer at its Odessa, Texas facility, who were
employed during the payroll period ending July 6,
1990; excluding all office clerical employees, guards
and supervisors as defined by the Act.
4. Respondent committed the following acts and conduct
violative of Section 8(a)(1) and (5) of the Act:
a. Engaging in bad-faith, surface bargaining with no inten-
tion of entering into any final or binding collective-bar-
gaining agreement.
b. Refusing to consider the inclusion of a dues checkoff
in any final collective-bargaining agreement with the Union.
c. Insisting upon a broad management-rights clause and a
no-strike provision in any final collective-bargaining agree-
ment with the Union while, at the same time, refusing to
consider the inclusion of any arbitration procedure.
d. Refusing to engage in collective bargaining with the
Union at its plant while, at the same time, refusing to share
the cost of any meeting site away from the plant.
e. Unreasonably delaying in the furnishing of information,
necessary and relevant for collective bargaining, to the
Union.
f. Unilaterally, and without giving prior notice to the
Union or affording it an opportunity to bargain, imple-
menting changes in the bargaining unit employees’ terms and
conditions of employment, as set forth in a revised employee
policy manual, including a new provision that the plant
‘‘will’’ be closed for 2 weeks for maintenance and requiring
vacations be taken during said time period, a provision giv-
ing employees 1 hour of unauthorized leave in order to vote,
and the deletion of the material dispatcher job classification.
g. Failing to give to the Union prior notice of its intent
to contract with Harrison & Associates Forensic Laboratories
and afford the Union an opportunity to bargain over the
choice of said testing laboratory to conduct drug and alcohol
tests of bargaining unit employees.
5. Respondent engaged in conduct violative of Section
8(a)(1), (3), and (5) of the Act by, unilaterally, without giv-
ing prior notice to or affording the Union an opportunity to
bargain, and in retaliation for their support for the Union in
the election, implementing changes in bargaining unit em-
ployees’ terms and conditions of employment, including no
longer permitting food or drink to be taken back to work
areas after the conclusion of break periods and changing the
time for the distribution of payroll checks.
6. Respondent engaged in conduct violation of Section
8(a)(1) and (3) of the Act by reducing the rate of pay of em-
ployee Frank Mendoza, after transferring him to the painting
and sandblasting department, in retaliation for his perceived
leadership role in the Union’s organizing campaign.
7. Respondent engaged in the following acts and conduct
violative of Section 8(a)(1) of the Act:
a. Interrogating employees about their own union activities
and sympathies and those of their fellow employees.
b. Warning employees that their organizing efforts and se-
lecting the Union as their bargaining representative would be
an exercise in futility.
c. Threatening reprisals against employees for their orga-
nizing efforts and if they selected the Union as their bar-
gaining representative.
d. Warning employees that, if they selected the Union as
their bargaining representative, contract bargaining would
have to start from the ground up and could drag on for 15
to 17 years without any agreement.
e. Threatening employees with termination because of their
support for the Union.
f. Threatening employees with plant closure, loss of bene-
fits, and other reprisals if the employees selected the Union
as their bargaining representative.
g. Soliciting grievances and ‘‘gripes’’ from employees in
order to induce them to abandon their support for the Union.
h. Threatening employees with termination for discussing
their rates of pay or salary with fellow employees.
i. Creating the impression of surveillance of employees’
protected concerted activities.
8. The aforementioned unfair labor practices have a close,
intimate, and adverse effect on the free flow of commerce
within the meaning of Section 2(2) and (7) of the Act.
REMEDY
I have concluded that Respondent has committed numer-
ous serious unfair labor practices within the meaning of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations Act.
Accordingly, I recommend that Respondent be required to
cease and desist therefrom and to take other affirmative ac-
tions designed to effectuate the purposes and policies of the
Act. At the outset, having found that Respondent imple-
mented several changes in the bargaining unit employees’
terms and conditions of employment in utter disregard of its
statutory obligation to give prior notice to the Union and af-
ford it the opportunity to bargain, upon request, over the pro-
spective changes, I shall recommend that Respondent be or-
dered to rescind each of the unlawful unilateral changes and
to restore the status quo conditions which existed prior to the
implementation of them. In particular, Respondent shall be
required to rescind the changes in its payroll check distribu-
tion and break period practices which were implemented
after the election, to cease utilizing the services of Harrison
& Associates Forensic Laboratories for performance of em-
ployee drug and alcohol use testing,47 and to rescind the
three specified changes in the revised employee policy man-
ual. Further, with regard to the unlawful reduction of em-
ployee Frank Mendoza’s rate of pay, I shall recommend that
Respondent be ordered to restore his rate of pay to $10 per
hour, the rate at which he was paid prior to Respondent’s
discrimination against him in September 1990, and make him
1011SIVALLS, INC.
48 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
whole for his lost wages with such backpay computed as de-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as described in New Horizons for the Retarded, 283
NLRB 1173 (1987). Moreover, as to Respondent’s patent
surface bargaining herein, I shall recommend that Respond-
ent be required to bargain in good faith with the Union and,
if an agreement is reached, to embody the terms of that
agreement in a signed written instrument. Since, in my view,
Respondent has never really taken seriously its statutory obli-
gation to bargain or honored the certification which the
Board issued to the Union on August 20, 1990, I also shall
recommend that the certification year be extended to run for
a period of one year from the date that Respondent begins
to bargain in good faith. Mar-Jac Poultry Co., 136 NLRB
785 (1962). Finally, I shall recommend that Respondent be
ordered to post the standard notice, advising its employees
of its unfair labor practices and of the manner in which it
shall remedy them.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended48
ORDER
The Respondent, Sivalls, Inc., Odessa, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Engaging in bad-faith surface bargaining, with no in-
tention of entering into any final or binding collective-bar-
gaining agreement with the Union as the certified bargaining
representative of the production and maintenance employees
at its Odessa, Texas plant.
(b) Refusing to consider the inclusion of a dues-checkoff
provision in any final collective-bargaining agreement with
the Union.
(c) Insisting upon a broad management-rights clause and
a no-strike provision in any final collective-bargaining agree-
ment with the Union while, at the same time, refusing to
consider the inclusion of any arbitration procedure.
(d) Refusing to engage in collective bargaining with the
Union at its plant while, at the same time, refusing to share
the cost of any meeting site away from the plant.
(e) Unreasonably delaying in the furnishing of information,
necessary and relevant for collective bargaining, to the
Union.
(f) Unilaterally, and without giving prior notice to the
Union or affording it an opportunity to bargain, imple-
menting changes in the bargaining unit employees’ terms and
conditions of employment, as set forth in the revised em-
ployee policy manual.
(g) Failing to give to the Union prior notice of its intent
to contract with Harrison & Associates Forensic Laboratories
and afford the Union an opportunity to bargain over the
choice of said testing laboratory to conduct drug and alcohol
tests of bargaining unit employees.
(h) Unilaterally, without giving prior notice to or affording
the Union an opportunity to bargain, and in retaliation for
their support for the Union in the representation election, im-
plementing changes in bargaining unit employees’ terms and
conditions of employment.
(i) Reducing the rates of pay of employees, after transfer-
ring them to different departments, in retaliation for their
support for the Union.
(j) Interrogating employees about their own union activi-
ties and sympathies and those of their fellow employees.
(k) Warning employees that their organizing efforts and
selecting the Union as their bargaining representative would
be an exercise in futility.
(l) Threatening reprisals against employees for their orga-
nizing efforts and if they selected the Union as their bar-
gaining representative.
(m) Warning employees that, if they selected the Union as
their bargaining representative, contract bargaining would
have to start from the ground up and could drag on for 15
to 17 years.
(n) Threatening employees with termination because of
their support for the Union.
(o) Threatening employees with plant closure, loss of ben-
efits, and other reprisals if the employees selected the Union
as their bargaining representative.
(p) Soliciting grievances and ‘‘gripes’’ from employees in
order to induce them to abandon their support for the Union.
(q) Threatening employees with termination for discussing
their rates of pay or salary with fellow employees.
(r) Creating the impression of surveillance of employees’
protected concerted activities.
(s) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with the Union, as
the bargaining representative of the production and mainte-
nance employees at its Odessa, California plant, with respect
to rates of pay, wages, hours, and other terms and conditions
of employment, and, if an agreement is reached, embody the
terms of that agreement in a signed written instrument.
(b) Restore bargaining unit employees’ terms and condi-
tions of employment as they existed prior to any of the uni-
lateral changes which were implemented in 1990 after the
said employees selected the Union as their bargaining rep-
resentative and continue them in effect unless or until the
Union states its desire not to bargain regarding any changes,
a collective-bargaining agreement is reached, or an impasse
is reached in bargaining.
(c) Restore employee Frank Mendoza’s rate of pay to that
which he received prior to his permanent transfer to the
painting and sandblasting department and make him whole,
in the manner set forth in the above remedy section of this
decision, for any wages lost as a result of the discrimination
against him.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
49 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(e) Post at its facility in Odessa, Texas, copies of the at-
tached notice marked ‘‘Appendix.’’49 Copies of the notice,
on forms provided by the Regional Director for Region 16,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the certification of the Union
issued hereby by the Board on August 20, 1990, be, and the
same hereby is, extended for a period of 1 year commencing
from the date on which Respondent begins to comply with
the terms of this Order.