Stanton Industries

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 838 (N.L.R.B. 1994)

838
313 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the following portions of the judge’s
decision: sec. II,A; sec. III,A; sec. III,C,3; sec. III,D; sec. III,E; and
sec. III,F.
2 In adopting the judge’s finding that the Respondent did not vio-
late Sec. 8(a)(1) or interfere with the election by changing its system
for distributing paychecks in early October 1992, we do not rely on
the judge’s finding that the change was too minimal a benefit to co-
erce employees or interfere with the election. Instead, we rely solely
on the judge’s finding that the timing of the change was attributable
to the appointment of a new plant manager in early October 1992
who preferred the revised system and to General Manager Ander-
son’s acquiescence to the new plant manager’s preference for the re-
vised paycheck distribution system. As the Respondent has estab-
lished a legitimate reason for the timing of the change that is unre-
lated to the exercise of Sec. 7 rights or to the election, the change
was permissible. See generally Montgomery Ward & Co., 288 NLRB
126, 127 fn. 6 (1988); Speco Corp., 298 NLRB 439 fn. 2 (1990).
1 Stanton Industries, Inc. d/b/a Stanton Industries of California.
2 All dates below are in 1992 unless I specify otherwise.
3 International Union of Electronic, Electrical, Salaried, Machine,
and Furniture Workers, AFL–CIO.
4 The IUE’s August 21 petition was docketed as Case 32–RC–
3597. The IUE and Stanton later signed a Stipulated Election Agree-
ment, which the Regional Director approved on September 16. The
October 30 tally of ballots shows that the IUE received 69 valid
votes, while 135 other valid votes were cast against the IUE. Two
other ballots were held to be void, and four additional ballots were
cast under challenge, but were nondeterminative, and the challenges
were not resolved.
5 As I elaborate below, the ultimate consolidated amended com-
plaint charges Stanton with having committed 8(a)(1) violations in
this critical period, and also with having violated Sec. 8(a)(1) and
(3) in the days before the IUE filed the petition.
6 The exceptional counts were based on an incident on August 24,
during which an agent of Stanton allegedly ‘‘verbally promulgated’’
and ‘‘threatened to enforce’’ an ‘‘overbroad no-solicitation rule,’’
and moreover, ‘‘selectively and disparately enforced’’ that rule.
Stanton Industries, Inc. d/b/a Stanton Industries of
California and International Union of Elec-
tronic, Electrical, Salaried, Machine and Fur-
niture Workers, AFL–CIO. Cases 32–CA–
12695, 32–CA–12706, 32–CA–12881, and 32–
RC–3597
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On August 10, 1993, Administrative Law Judge
Timothy D. Nelson issued the attached decision. The
General Counsel filed exceptions1 and a supporting
brief and the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions, as modified, and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the consolidated complaint is dismissed in
its entirety and that the objections to the representation
election in Case 32–RC–3597 are overruled, and cer-
tifies that International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, AFL–CIO
did not receive a majority of the valid ballots cast in
the election.
Jo Ellen Marcotte, Esq., for the General Counsel.
Arthur T. Carter and Steven G. Biddle, Esqs. (O’Connor,
Cavanagh, Anderson, Westover, Killingsworth &
Beshears), P.A., of Phoenix, Arizona, for Respondent
Stanton Industries.
Ed Warshauer, Business Representative, of Berkeley, Califor-
nia, for Charging Party Petitioner IUE.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
these consolidated unfair labor practice and representation
cases in 4 days of trial proceedings held in Stockton, Califor-
nia, on March 2–5, 1993. The cases commonly involve at-
tacks on the behavior of the Respondent, Stanton,1 during an
organizing drive and preelection campaign conducted August
through October 19922 by the Petitioner Charging Party, the
IUE,3 among Stanton’s production and maintenance employ-
ees at its furniture plant in Stockton.
The IUE filed its petition for representation election on
August 21, and on October 30, agents of the Regional Direc-
tor for Region 32 held a secret ballot election at the Stockton
plant, where the IUE got only about one-third of the 204
valid votes cast.4 The IUE filed objections to the election;
it asks the Board to set aside the election results, based on
certain unfair labor practices allegedly committed by Stanton
in the ‘‘critical period’’ between the August 21 petition filing
and the October 30 election.5
The IUE filed its first unfair labor practice charge on Au-
gust 17, in Case 32–CA–12695; it filed a separate charge in
Case 32–CA–12706 on August 24; and it filed an amended
charge in that latter case on October 16. On October 21, after
investigating, the Regional Director for Region 32 issued a
consolidated complaint in those cases, alleging that on var-
ious dates in August, agents of Stanton made statements to
employees which violated Section 8(a)(1) of the Act. All but
two of these counts referred to incidents occurring before the
petition was filed by the IUE on August 21.6 In addition, this
consolidated complaint alleged that Stanton violated Section
8(a)(1) and (3) of the Act on August 17, when it ‘‘indefi-
nitely suspended’’ an ‘‘employee’’ named Ry Ou, and
‘‘since that date . . . failed and refused . . . to reinstate him
to his former position[,]’’ all because of Ou’s activities and
support for the IUE.
On December 10 the IUE filed another charge, separately
docketed as Case 32–CA–12881, and the Regional Director
issued a separate complaint in that case on January 29, 1993.
In this complaint the Regional Director alleged that Stanton’s
agents committed additional violations of Section 8(a)(1) in
the months of September and October, before the election.
839STANTON INDUSTRIES
7 The IUE’s December 10 charge in Case 32–CA–12881 had al-
leged, inter alia, that Stanton had unlawfully ‘‘increas[ed] base
wages and attendance incentive pay.’’ For reasons which are not
clear, the complaint that issued on January 29, 1993, pursuant to that
charge did not challenge these pay increases.
8 The Regional Director inadvertently stated that ‘‘complaints’’
had issued in Case 32–CA–12881, and likewise inadvertently im-
plied that the ‘‘allegations’’ concerning the ‘‘no-solicitation rule’’
were associated with a single complaint, in Case 32–CA–12706. In
fact, however, only one complaint issued in Case 32–CA–12881 (it
attacked postpetition conduct by Stanton in September and October),
and the ‘‘no-solicitation’’ allegations (likewise attacking postpetition
conduct by Stanton on August 24) were contained in a consolidated
complaint in Cases 32–CA–12695 and 32–CA–12706. While these
references are thus marginally confusing, it nevertheless appears that
the Regional Director intended to certify that the IUE’s outstanding
objections do not attack any prepetition (i.e., pre-August 21) conduct
by Stanton, but are essentially coextensive with those counts in the
Regional Director’s February 11, 1993 amended consolidated com-
plaint which attack certain behavior by Stanton’s agents occurring on
or after August 21.
9 Stanton admits, and I find, that in the year before February 11,
1993, it sold and shipped more than $50,000 worth of products to
customers outside California.
10 In its answer, Stanton admits that it ‘‘indefinitely suspended’’
Ou on August 17, and has since ‘‘failed and refused to reinstate
him,’’ and that it did this because Ou (in Stanton’s words) ‘‘had en-
gaged in organizing activities on behalf of [the IUE] and refused[,]
following the companies [sic] request, to cease and desist from such
activity.’’
11 That the IUE’s objections do not rely on prepetition behavior by
Stanton seems to have been implicitly acknowledged in the above-
quoted passage from the Regional Director’s February 14, 1993 re-
port and recommendations on objections, etc. Moreover, under the
Board’s Rule in Ideal Electric Co., 134 NLRB 1275 (1961),
prepetition misconduct cannot normally be found to have disturbed
the ‘‘laboratory conditions’’ required for the holding of an election.
12 Regarding the trial transcript:
(1) Out of an unfortunate misunderstanding about what is required
when the judge grants a motion to strike, the official court reporting
service has deleted entirely from the transcript certain testimony as
to which I granted motions to strike during the trial. No party has
objected to this, and it therefore appears that such deletions were
harmless.
(2) Within the first footnote in the General Counsel’s brief is a
motion to ‘‘correct the official transcript to change the name ‘Khanh
Nguyen’ to ‘Hung Nguyen[,]’’’ in a large number of instances asso-
ciated with the testimony and questioning of employee Lewis Garcia.
As I explain elsewhere, it appears that Garcia was referring, in fact,
to Department Supervisor Hung Nguyen nearly all the passages in
question, even though Garcia (and, in turn, the attorneys questioning
him), are reported in the transcript as having used the name Khanh
Nguyen, who was the plant manager. However, in the absence of
any showing that the transcript misreported the name actually used
by Garcia and the attorneys in the passages in question, I deny the
General Counsel’s motion to ‘‘correct’’ the transcript as being, in re-
ality, a motion to ‘‘amend’’ the transcript.
On February 11, 1993, the Regional Director issued his ul-
timate pretrial pleading in the unfair labor practice cases, an
‘‘Order Consolidating Cases, Amended Consolidated Com-
plaint and Notice of Hearing’’ (the complaint). There, he or-
dered that the allegations of the consolidated complaint
issued in Cases 32–CA–12695 and 32–CA–12706 be consoli-
dated for purposes of trial with the allegations in the separate
complaint issued in Case 32–CA–12881, and he realleged all
previous alleged violations in a single, integrated document.
In addition, he alleged for the first time that Stanton had un-
lawfully granted wage and incentive pay increases on August
24.7
At the trial’s outset on March 2, 1993, counsel for the
General Counsel further amended the complaint to delete one
count (par. 6(i)(1), alleging that on August 24, Stanton ‘‘ver-
bally promulgated an overbroad no-solicitation rule’’), and to
trim the claims made in another count (par. 6(g)) concerning
Stanton’s degree of responsibility for an employee-drafted
antiunion flyer.
The IUE had originally filed eight distinct postelection ob-
jections, but later withdrew two of them. On February 14,
1993, the Regional Director issued a ‘‘Report and Rec-
ommendations on Objections, and Order Consolidating
Cases, and Notice of Hearing,’’ in which he ordered that the
representation case objections likewise be consolidated for
common hearing with the consolidated unfair labor practice
case allegations. The Regional Director noted in this regard
that,
The matters alleged in [the six outstanding objections to
the election] are substantially similar to conduct alleged
to constitute unfair labor practices in the complaints
[sic] which issued in Case 32–CA–12881 and the alle-
gations concerning the no-solicitation rule which issued
in Case 32–CA–12706 [sic].8
Stanton’s various answers admit, and I find, that it is an
Oregon corporation which owns and operates furniture plants
in several States, including in Stockton, and that it is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.9 Stanton denies that it did anything
unlawful or objectionable; in addition, its answers to the
complaints, and its filings in the representation case raise
specific affirmative defenses, including these, most notably:
(a) Ry Ou was a ‘‘supervisor within the meaning of
Section 2(11) of the Act’’; he did not enjoy the protec-
tions the Act extends to ‘‘employees.’’ Therefore, Stan-
ton committed no unfair labor practice by admittedly
suspending him indefinitely for refusing to stop his IUE
activities.10
(b) Any misconduct Stanton may be found to have
committed before the petition-filing on August 21 can-
not be invoked to justify setting aside the election.11
(c) Stanton effectively ‘‘disavowed’’ certain alleged
statements made by supervisor Phanvongsa on August
19, and therefore, counts in the complaint associated
with the disavowed conduct may be dismissed without
reaching the merits.
I have studied the whole record,12 including the posttrial
briefs submitted by the General Counsel and counsel for
Stanton, and the legal authorities they have cited. Upon that
study, and upon my credibility assessments of the witnesses
as they testified, and my sense of the inherent probabilities,
I make these
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 An example, drawn from a variety of record sources, will partly
illustrate this: To fill a retail customer’s order for 50 chairs of a cer-
tain model, departments responsible for framing components (seat
framing, arm framing, and back framing) will separately and more
or less simultaneously make 50 seat and back frames, and 50 pairs
of arm frames. As the framing departments are doing this, the Sew-
ing department will be preparing 50 sets of fabric coverings for the
specified chair, and the cushion department will be cutting foam for
cushioning on the chair seat, and perhaps its back and arms, depend-
ing on the style being run. Once put together, these basic compo-
nents will be distributed to other departments for installation of fur-
ther layers of padding and upholstery. (For example, completed seat
frames go to the center foam and upholstery department; arm frames
go to the arm padding department, then the padded arms go to a sep-
arate arm upholstery department.) The finished components are then
put together in the assembly department, and the assembled chairs
are then put into cartons in the packing department, and are then
moved to the shipping department for dispatching to the customer.
14 Unless I specify otherwise, all references below to ‘‘Nguyen’’
are to Khanh Nguyen. As I have already noted, the plant’s super-
visory complement included at material times a department super-
visor named Hung Nguyen, who was apparently the person witness
Garcia was referring to in certain instances. (The plant complement
also includes a department supervisor named Tuyet Nguyen, who
does not otherwise figure in the cases.)
15 In some company records, Gonzales was also titled, ‘‘Assistant
Plant Manager,’’ or ‘‘Plant Supervisor.’’
16 These are, Frank Niemi, mill department; Meng Ny, cushion de-
partment; Hung Nguyen, center foam and upholstery department;
Duong Pham, assembly department; and Boravanh Phanvongsa,
packing department. The complaint alleges that Phanvongsa commit-
ted 8(a)(1) violations, and for reasons noted above and below, it also
apparently refers to department supervisor Hung Nguyen in alleging
at par. 6(e) that ‘‘Nguyen’’ was involved in unlawful ‘‘solicitation’’
of employees ‘‘grievances.’’
17 I am mindful that ‘‘leadman,’’ the title favored by the General
Counsel (but only when referring to Ou), could as easily be sub-
stituted, and often was, by Stanton, when referring to the department
heads. I recognize that neither title is dispositive of the question of
Ou’s status. In this case I prefer ‘‘supervisor’’ not simply because
that is what department heads are often called by the Company and
its employees, but mainly because I will find that Ou satisfies the
definition of ‘‘supervisor’’ set forth in Sec. 2(11) of the Act.
18 Of these listed organizing committee members, only Ou was a
department supervisor; the rest were conceded rank-and-filers.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. STOCKTON PLANT OPERATIONS AND HIERARCHY
Stanton typically uses 220–250 nonsupervisory employees
at Stockton to make, package, and ship upholstered furniture
products, such as chairs, ottomans, sofas, and hide-a-bed
sleepers. The plant is housed in one main building and a
leased area within a second one. It uses a ‘‘K-D’’ (Knock-
Down) production system, rather than a continuous assembly
process. In a K-D system, the four main components of a
furniture piece (seat, back, arms, and cushions) each undergo
a separate series of fabrication steps, in different depart-
ments, before being brought to a common area for final as-
sembly.13
The top manager at Stockton is General Manager Robert
Anderson, also a Stanton corporate vice president, who held
ultimate responsibility for all business and sales, personnel,
and production matters at the plant at all times that concern
us. Reporting to Anderson concerning production matters
was Plant Manager Khanh Nguyen,14 who did what his title
implies until October 2, when he transferred to Stanton’s
Phoenix plant. At Stockton, Nguyen was assisted by Produc-
tion Supervisor Agustin Gonzales.15 Gonzales succeeded to
Nguyen’s former position as plant manager after Nguyen
went to Phoenix.
The plant is organized into 13 distinct and well-recognized
‘‘departments,’’ each headed by a ‘‘supervisor,’’ a title
which Stanton uses interchangeably with ‘‘leadman’’ (or
‘‘leadperson’’) to describe the department heads. They re-
ported at material times to Gonzales and Nguyen. Several of
the department heads are alleged in the complaint and admit-
ted by Stanton to be statutory ‘‘supervisors’’ and ‘‘agents’’
of Stanton.16 Ry Ou, the alleged discriminatee, who was in
charge of the seat framing department, is the only department
head who is claimed by the General Counsel not to be a stat-
utory supervisor. Hereafter, I will generally use the term
‘‘supervisor’’ to describe the department heads, including
when I refer to Ry Ou.17
II. ALLEGED PREPETITION UNFAIR LABOR PRACTICES
A. The 8(a)(3) and (1) Counts Associated with the
Indefinite Suspension of Ry Ou
1. The General Counsel’s prima facie case
Stanton admits in its answer that it ‘‘indefinitely sus-
pended’’ Ry Ou on August 17, and has since ‘‘failed and re-
fused to reinstate him,’’ because Ou ‘‘engaged in organizing
activities on behalf of [the IUE], and refused . . . to cease
and desist from such activity.’’ These are the details: On Au-
gust 10, IUE delivered a letter to Stanton’s offices, addressed
to General Manager Anderson, saying in the opening para-
graph,
This is to advise you that the employees of Stanton
Industries have formed an organizing committee to take
advantage of their legal right to organize. The commit-
tee members are:
Lewis Garcia Martha A. Pimental
Maria Raya Say Plork
Vian Theang Toem Mork
Buntha Kham Samarong Kong
Heang Kim Sem Ry Ou18
Alonzo Tomas
Anderson read this letter and summoned Ou to his office
on Wednesday, August 12, also bringing in Plant Manager
Nguyen and Nguyen’s assistant, Gonzales. There is no sig-
nificant dispute between Ou and Anderson about the basic
message Anderson delivered to Ou, but their respective ac-
counts from the witness stand contain different versions of
the English-language words and phrases Anderson used to
express himself. Recognizing Ou’s difficulties in speaking
841STANTON INDUSTRIES
19 Ou, a native of Cambodia, has lived in the United States for at
least 7 years, and appears to have no difficulty understanding ordi-
nary forms of spoken and written American English; but he speaks
it less than fluently. (A Khmer-language translator stood by during
Ou’s testimony, and Ou called upon him at certain junctures, par-
ticularly as he became increasingly defensive during cross-examina-
tion by Stanton’s attorney.) Ou’s attempts to recapitulate in English
what Anderson said to him on August 12 (and later, on August 17)
contained many awkward formulations, which I doubt that Anderson
actually used.
20 Language difficulties aside, Ou’s answers to probing questions
were often evasive, and liberally sprinkled with gratuitous and self-
serving generalizations, suggesting to me that he was trying to shape
his testimony to suit his personal stake in the outcome. By contrast,
Anderson struck me as candid and credible in his account of this
meeting, and in his accounts of other material events, as well.
21 Ou, after concluding his own narration of the meeting without
describing any ‘‘interrogation’’ by Anderson, was led by the General
Counsel to recall that Anderson had at some point asked him if he
had signed a union card. In a portion of his testimony not quoted
above, Anderson specifically denied asking Ou whether he had
signed a union card. Because Ou’s contrary testimony emerged be-
latedly, and only after leading questioning, I doubt its reliability, and
I credit Anderson that he did not so question Ou.
22 I don’t know why Stanton chose to label its action against Ou
a ‘‘suspension until further notice’’ (or an ‘‘indefinite suspension,’’
as it describes the same action in its answer), rather than simply, a
‘‘firing,’’ or ‘‘termination.’’ However, I will have no difficulty using
the latter terms to describe what Stanton did to Ou, especially where
Stanton also admits it has continuously ‘‘failed and refused’’ to rein-
state Ou since August 17.
23 The complaint alleges both that Anderson unlawfully ‘‘interro-
gated’’ Ou about his union activities in their August 12 meeting and
that he unlawfully ‘‘threatened’’ him. If Ou was a statutory em-
ployee, Anderson’s ultimatum could easily be deemed an unlawful
‘‘threat,’’ but the complaint could not be sustained in any case as
to the ‘‘interrogation’’ count, because I can find no evidence of in-
terrogation in Anderson’s credited account.
24 Beasley v. Food Fair of North Carolina, 416 U.S. 653, 654–655
(1974); Florida Power Co. v. Electrical Workers Local 641, 417
U.S. 790, 808 (1974); Parker-Robb Chevrolet, 262 NLRB 402
(1982), petition for review denied sub nom. Automobile Salesmen’s
Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983). See also, e.g.,
Gino Morena Enterprises, 287 NLRB 1327 (1988).
25 NLRB v. Yeshiva University, 444 U.S. 672, 682 fn. 13 (1980).
See also Butler-Johnson Corp. v. NLRB, 608 F.2d 1303, 1306 fn. 4
(9th Cir. 1979):
The enumerated functions of Section 2(11) are to be read in the
disjunctive, and the existence of any of them, regardless of the
frequency of their performance, is sufficient to confer super-
visory status.
26 McDonnell Douglas Corp. v. NLRB, 655 F.2d 932, 936 (9th Cir.
1981), citing Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151,
1158 (7th Cir. 1970), cert. denied 400 U.S. 831 (1970).
English,19 and finding Anderson overall more believable than
Ou,20 I credit Anderson’s version, as follows:
I explained to Ry Ou that . . . I needed him on our
side. And I expected him to be on our side, being a su-
pervisor. And . . . that he needs to make up [his mind]
which side of the fence he wanted to be on, either the
Union side of the fence, or Stanton side of the fence.
And that I was going to be gone for two or three days
in Oregon, for a Corporate meeting, and that I would,
you know, give him them days to think it over. And
talk to me Monday, when I got back to work.
. . . .
At that time, he didn’t give me an answer, or noth-
ing.
. . . .
[At some point] he told me he signed a Union card,
so he could make 50 percent more money.
Q. Did you ask him any questions about that state-
ment?
A. No.21
On Monday, August 17, Anderson returned and met with
Ou. Ou told Anderson, in effect, that he was sticking with
the Union. Anderson then handed Ou some kind of paper
saying that Ou was ‘‘suspended until further notice.’’
2. Ou’s status and its legal implications; supplemental
findings and conclusions
a. Introduction
Section 8(a)(1) of the Act makes it an unfair labor practice
for an employer ‘‘to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in Section
7.’’ Section 7 declares pertinently that ‘‘[e]mployees shall
have the right . . . to form, join and assist labor
organizations[.]’’ Section 8(a)(3) of the Act provides overlap-
ping protection to employees; it makes it unlawful for an em-
ployer to ‘‘discriminat[e] in regard to hire or tenure of em-
ployment . . . to . . . discourage membership in a labor or-
ganization.’’
If Ou occupied statutory ‘‘employee’’ status, Stanton vio-
lated Section 8(a)(1) and (3) when it admittedly suspended
him indefinitely22 because he refused Anderson’s implicit ul-
timatum to cease his activities for the Union. Likewise, if Ou
was an ‘‘employee,’’ Stanton obviously committed an inde-
pendent 8(a)(1) violation when Anderson issued this ulti-
matum.23 But if Ou was a ‘‘supervisor’’ within the meaning
of Section 2(11) of the Act, he enjoyed no statutory protec-
tion if he chose to engage in union organizing activities, and
Stanton could lawfully question him about those activities,
tell him to stop them, and fire him for not stopping them.24
Section 2(11) defines a ‘‘supervisor’’ as,
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or to responsibly direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
To find that Ou is a statutory supervisor, I will not have
to find that he had authority to take all of the types of per-
sonnel actions listed in Section 2(11), nor even most of
them; it will be enough if I find that he had authority to take
any one of them.25 But we are also adjured by the courts
‘‘not to construe supervisory status too broadly, for a worker
who is deemed a supervisor loses his organizational
rights.’’26 This concern is no mere abstraction in this case;
Ou lost his job precisely because he refused to stop his par-
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 I recall that Phanvongsa, the supervisor of these six packing
workers, is alleged by the General Counsel to be a statutory super-
visor whose alleged statements to employee Lewis Garcia (infra) im-
plicated Stanton in 8(a)(1) violations. Except for the fact that
Phanvongsa supervises only 6 workers, while Ou supervises 14, I
can find nothing in the record which distinguishes Phanvongsa from
Ou in terms of responsibility, status, or power.
28 On some furniture styles, the framers also use a stretching ma-
chine as part of the process of affixing a mesh covering on the
frame.
29 Thus,
Q. MS. MARCOTTE: And about how many pieces of furniture
come through the department each day?
A. MR. OU: It depend how hard style it is. Some hard style
coming it take too much time. Like example, Dimatrol use cover
that pull by machine. That won’t take more than ten minutes.
So we run about 250 or 280 per day. Because that style very
hard. So we cannot run more than 300 unless we have more
people come to help. If the easy style coming up we run about
500 piece a day.
30 Thus, Ou admits that framers and spring-up workers may be fin-
ishing work on one style even as the clip operator has begun trim-
ming structural pieces for frames for a different style.
ticipation, with employees, in a union organizing effort.
Therefore his status deserves careful scrutiny.
I will conclude that Ou was a statutory supervisor because
of the following features of his position, features which are
generally shared by all department supervisors in the Stock-
ton plant, and features which had been associated with the
job of department supervisor well before the IUE ever ap-
peared on the scene:
(1) Stanton held Ou out to the employees in seat framing
as the man who ‘‘run[s] the department,’’ whom they should
‘‘respect,’’ and whose ‘‘orders’’ they must ‘‘follow.’’
(2) Ou was empowered to, and did, back up his orders and
otherwise enforced company policy by issuing written dis-
ciplinary warnings to seat framing workers, which went into
their personnel files.
(3) When periodic cutbacks in the work force were de-
cided on at higher levels, Ou was asked to make ranking
judgments about the workers in his department, determining
who would stay and who would go.
(4) Stanton underscored Ou’s managerial status in other
distinct ways: it paid him a substantially higher hourly rate
than anyone else in his department; it issued his pay check
on the day the other supervisors and managers got paid, not
on the rank-and-file payday; and it included him in company
bonuses available only to supervisors and higher managers.
(5) Ou was formally and in fact ‘‘responsible’’ for the
quality and timeliness of the work done by the 14 employees
in his distinct (and physically remote) department, and no
one else, above or below him, was formally or in fact
charged with that central responsibility, or shared signifi-
cantly in it.
(6) The several types of jobs performed in seat framing
cannot be dismissed as being merely ‘‘routine’’ or ‘‘repet-
itive’’ in character, because the plant makes a large variety
of types and styles of furniture, each with its own unique di-
mensional and structural requirements, and because produc-
tion departments like seat framing are required several times
each week to switch from making one type or style to an-
other.
(7) For related reasons, Ou’s supervisory role involved
many ‘‘nonroutine’’ features; to satisfy orders and coordi-
nated manufacturing schedules for a variety of furniture
types, Ou was required to use judgment and discretion in an-
ticipating, directing, and otherwise ‘‘managing’’ the work
flow in his department, including by assigning or reassigning
seat framing workers from one task to another, and on occa-
sion by ‘‘borrowing’’ workers from other departments or
‘‘loaning’’ his own workers to another department super-
visor.
From my study of the General Counsel’s brief, it appears
that the prosecution would not seriously contest my summary
findings in items (1) and (4), above, and I will not dwell on
those points in my more detailed findings below. But relying
almost entirely on Ou’s testimony, the General Counsel
would seek to explain away the facts summarized in items
(2) and (3), and would challenge my finding in item (5) that
no one else shared substantially in Ou’s responsibility for the
work done in his department, and would also resist the
‘‘nonroutine’’ characterizations I made in items (6) and (7).
I will return to these contested points as and after I lay out
certain details which Ou either admits or does not specifi-
cally dispute.
b. Seat framing operations
Every type or style of furniture Stanton makes at Stockton
needs a seat, and Ou’s former department, the only one lo-
cated outside the main plant building, makes the frames for
them. Typically, 14 employees worked under Ou. (Most of
the 13 departments use between 10 and 20 nonsupervisory
workers, but one—sewing—employs 59, while another—
packing—has only 6.)27 One seat framing worker operates a
pneumatic-drive ‘‘clip,’’ trimming lumber, plywood, or com-
position board to dimensions required for the pieces used in
the particular style being run. One more employee does
‘‘load-up,’’ stacking and moving the clipped pieces to the
four ‘‘framers,’’ who use pneumatic staplers and glue guns
to attach the pieces and to install reinforcing corner blocks.28
Four other ‘‘spring-up’’ workers affix springs to the framers’
product; three more ‘‘foam-up’’ workers add foam and card-
board elements. Completed seat frames are then loaded onto
a cart or forklift by department workers, and transported to
another department, center foam and upholstery, where up-
holstered cushions are attached to the seat frame.
Stanton makes a large variety of types or styles of fur-
niture at Stockton. (Ou said at one point, ‘‘we have hundred
style . . . there that we have to remember.’’) Each type and
style has some unique dimensional or assembly feature, and
department output may vary substantially, depending on the
complexity of the clipping and assembly required for each
type.29 And if the production schedule requires it, as it does,
many times each week, Seat Framing, like other production
departments, must be prepared within the course of a single
shift to switch without significant interruption from making
frames for one style to making frames for another.30
c. Ou’s prior experience under other seat
framing supervisors
Ou started at the plant in 1985, and worked exclusively in
seat framing thereafter. When he started, the Company gave
him a plant rules pamphlet, which he signed, acknowledging
that he had read them. ‘‘General Rule’’ 3 in the rules pam-
843STANTON INDUSTRIES
31 In addition, the ‘‘Safety’’ section of the plant rules instructed
employees, inter alia, to ‘‘Report unsafe acts or conditions to your
supervisor.’’ And the ‘‘Medical’’ section of the Plant Rules stated,
inter alia,
(1) Employee must notify supervisor of doctor appointments
at least one day in advance. The next working day following the
doctor’s appointment, employee must give department supervisor
a note from the doctor.
(2) Employees that are injured on the job and fail to report
the injury until they are absent, must provide supervisor with de-
tails of the injury and the name of the treating doctor. [Remain-
ing text omitted.]
32 For example (my emphasis):
Q. MS. MARCOTTE: How long does it take to learn how to
do the framer job?
A. MR. OU: Framer all day. [*] Framer very hard and dan-
gerous because you hold about a big lumber here. And you have
to hold close right here. If you hold close, when you pull a—
when you pull together because you step on a side already.
When you put together this is going to be hard. And you got
to hold on real tight. If you say like this staple miss, going to
hurt your hand. That’s not safe. So I got to be right there train
them all the time.
[*] Incidentally, unlike the General Counsel, I do not accept
any attempt by Ou here to leave the impression that an untrained
person can learn all there is to know of the framer’s job in ‘‘one
day.’’ Not only does Ou’s testimony before and after he made
this claim make it dubious, [**] but it is inherently improbable,
given the variety of furniture dimensions and techniques in-
volved, that someone could learn how to make frames for all
those types in ‘‘one day.’’ I think Ou’s testimony here is best
understood as his estimate of how long it takes a person already
familiar with the department to be trained in basic framing tech-
niques and tool-handling.
[**] For example, asked by the General Counsel how long it
would take a clip operator to learn the job, Ou answered:
All day. Sometime half a week, they understand. But they un-
derstand just some style. But we have hundred style right there
that we have to remember. Sometime take the whole week to
remember.
33 Thus:
Q. JUDGE NELSON: How did you come to change to be a
framer?
A. MR. OU: Because they know that I know all the spring-
up. I know what kind of style. Put spring, what style need
spring to go. I know all that. And then they said—
Q. Who is they?
A. My supervisor. I mean, my lead person.
Q. Frank [Niemi].
A. Frank, yes.
Q. So Frank sees that you know how to do one thing.
A. Yes.
Q. Then he says—
A. They train me how to—
Q. And he says now you can do framing.
A. Right.
Q. You’re ready for framing.
A. Yes.
34 Before getting this raise, Ou was being paid at the top (i.e.,
‘‘Unlimited’’) rate available to rank-and-file workers in the depart-
ment. Moreover, after his promotion, Ou began to receive his pay-
check on Thursday, when other supervisors and managers got paid,
while the rank-and-file workers continued to receive them on Fri-
days.
35 Crediting Stanton’s personnel and safety manager, Pam
Zurilgen, the Company also includes department supervisors in an
‘‘end-of-year,’’ or ‘‘Christmas’’ bonus given to management-level
personnel, but not to rank-and-file workers.
36 These are complex, multipage lists of the pending orders for
various furniture units, described by product code numbers denoting
type and style. They prescribe the sequence to be followed by each
department in making up its quota of components for each type. It
was not shown that anyone in the department besides Ou was able
to decipher and make sense of these lists, or that anyone else in the
department was thoroughly familiar, as Ou was, with all the subtle-
ties of fabrication and assembly associated with each of the ‘‘hun-
dred styles’’ which might be listed by code numbers on the lay
sheets.
37 Ou had distinct responsibilities in carrying out Stanton’s plant
safety and accident prevention program; he attended meetings with
other managers and department heads relating to this program, and
he was required to complete and sign, as ‘‘supervisor,’’ certain in-
jury report forms when someone in his department was injured. In
this regard, I do not find that it detracts from Ou’s personal respon-
sibilities for enforcing and implementing the safety program that Ou,
as he says, may have gotten guidance from personnel manager
Zurilgen in how to fill out and complete the injury report forms. It
does not make a statutory supervisor less so that he or she may re-
Continued
phlet instructed employees to ‘‘Follow Orders of Leadman
Supervisors.’’31
Ou was trained first in spring-up work by his then-super-
visor, Frank Niemi. Later, Niemi trained Ou in framing. The
framer’s job is apparently the most skilled and demanding
one in the department, and according to Ou, it requires the
most careful training and close, ongoing supervision.32 Niemi
made Ou a framer after judging that Ou was ‘‘ready’’ for
that work.33 About a year later, Niemi became the mill de-
partment supervisor, and was replaced as seat framing super-
visor by Rodney Trishell. In early 1987, Trishell shifted to
the position of Back Framing supervisor, and was himself re-
placed as seat framing supervisor by Ou, as described next.
d. Ou’s promotion to supervisor
Ou was summoned to the executive offices sometime in
early 1987. There, he was greeted by Anderson, Nguyen, and
Gonzales, who told him that he would be taking over the de-
partment from Trishell. As Ou recalled it, the managers of-
fered their ‘‘congratulations,’’ and told Ou that he was a
‘‘good man,’’ and that he would be ‘‘responsible for that de-
partment’’; and they informed him that he would now get a
$1-an-hour raise, from $8.73 to $9.73.34 Ou also recalled that
the managers presented him with a ‘‘bonus check,’’ signaling
that he was now eligible to participate in the Company’s
quarterly profit-sharing bonus plan—a plan which only de-
partment supervisors and their managerial superiors shared
in.35 Finally, Ou reported that when these ceremonies were
completed with handshakes, Nguyen and Gonzales escorted
Ou back to the seat framing department, where they intro-
duced him to the workers as the man who was going to ‘‘run
the department,’’ and whom they must ‘‘respect.’’
e. Ou’s basic responsibilities
The record shows without contradiction that Ou’s most
central responsibility, like that of other production depart-
ment supervisors, was to ensure that workers in his depart-
ment produced a certain number of units of certain varying
types, according to a certain sequence and schedule set forth
on ‘‘lay sheets,’’36 which the Company sent out to the de-
partment supervisors several times each week. Ou also had
to make sure that workers were doing their jobs safely,37 and
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quire guidance from above in discharging certain supervisory func-
tions; it seems more important for these purposes that Ou, like all
department supervisors, is institutionally charged with these respon-
sibilities, and admittedly trains and monitors workers in the depart-
ment with these responsibilities in mind.
38 On the desk Ou kept paperwork associated with current produc-
tion. In the locked cabinet of the desk he kept employee production
records, and blank forms, including forms used generally by depart-
ment supervisors to record disciplinary reprimands and other dis-
ciplinary action. Also in these compartments, or in adjacent locked
cabinets, Ou kept power tools, such as stapling and glue guns, and
supplies and replacement parts. Only Ou had the keys to these cabi-
nets, and he was the one to issue these tools, supplies, and parts at
the start of the workshift, and to retrieve and secure them at the end
of the day. Also mounted near the podium desk was a locked first-
aid box; Ou had the key and issued the first-aid supplies.
39 It appears from Ou’s testimony alone that Ou, unlike any other
seat framing worker, was allowed to leave the department as he saw
fit, and was required to do so several times each day, not just to
go to the mill department, but also to confer with Production Super-
visor Gonazales, or to confer and coordinate with other department
supervisors.
40 Ou’s own descriptions of what he typically does each day after
making his first order to the mill department adequately reveal the
number of variables associated with Ou’s responsibilities for mon-
itoring and assessing department needs, and Ou’s descriptions thus
provide a glimpse into the degree of judgment and discretion he was
required constantly to exercise:
I come back to my department and start to check out what work
has been done, what work next should be done for today or next
day. I track how many piece, like example, 300 hard style we
cannot finish, how we going to finish that[?] [And later] I come
back to my department to look around what they need. What the
framer need, what the load-up needs. But they alway needs all
day. . . . I get back. I go around department to look what work
have been done. Like assemble right now, I running on sequence
three, 682. That one is easy. But if we need some more in that
parts, I look around.
41 In a pretrial affidavit, Ou clearly conceded that, ‘‘If someone
makes a framing mistake, usually I catch it. I tell the person to redo
it.’’ At trial, during cross-examination, Ou initially attempted to
claim, concerning the re-doing of faulty work, that ‘‘I cannot make
any decision by myself, unless somebody ask me to do so.’’ Pressed
on this, he affirmed that he intended to say that, ‘‘even though [he]
knew a frame was not properly made . . . there was nothing [he]
could do to stop it, repair it, fix it . . . [u]nless someone told [him]
about it and called it back from another department.’’ I think Ou
was more candid in his affidavit, when he admitted, simply, that he
tried to catch faulty work, and when he found it, he ordered that it
be redone. I dismiss as entirely improbable and insincere his con-
trary claims from the witness stand.
42 Ou described an example which again underscores that seat
framing work had a number of ‘‘nonroutine’’ elements, requiring a
supervisor’s oversight to ensure that the work was done right:
Sometime clip person . . . he don’t know what a measure is,
what size different. Because size alway different. So I have them
put the right clip. If not the clip going to be mix up with that.
The spring cannot go like this.
43 Ou did not contradict Daniel Contreras, a spring-up man in seat
framing during Ou’s tenure, who testified through a Spanish trans-
lator that,
we work by numbers and if one department was ahead of the
others, he [Ou] would come and tell us. He would get us all
together and tell us that we had to catch up.
. . . .
Q. MR. CARTER: How many times did this happen while you
were in the department?
. . . .
A. Perhaps five times.
that the work they were doing conformed to design specifica-
tions, i.e., that each frame had been properly assembled and
prepared for the next stage of work before leaving the de-
partment. Associated with his responsibilities to get seat
frames safely and properly made and out on time, Ou was
the person charged with ensuring that necessary materials
were always on hand, a responsibility which he could dis-
charge only by referring regularly to the lay sheets and com-
paring current department inventories against current and
projected output. As I elaborate below, when he was fulfill-
ing these responsibilities, Ou seems to have been making
often subtle judgments affecting workflow, assignments, and
work progress, judgments which no one else was expected
to make, or practically could make.
f. Ou’s normal range of daily activities
Ou started each day by compiling the previous day’s pro-
duction output figures for each of the workers in his depart-
ment, and then taking these records to Gonzales or Nguyen.
His worksite for these and other purposes was a podium
desk, incorporating locked cabinet compartments below.38
After turning over the employee production figures, Ou
would assess his materials inventories and production status
in the light of the demands set forth on the lay sheets, and
would determine what amounts and types and dimensions of
materials his department would need to stay abreast, and
would call the mill department with an order for such mate-
rials. He would then go to the mill department to retrieve the
order,39 making sure that the forklift driver loaded the right
materials. When he was back in his department, Ou was ad-
mittedly kept busy monitoring and assessing current depart-
ment output and materials needs,40 overseeing the progress
and quality of the work being done by 14 employees, telling
employees to make corrections when he discovered assembly
flaws,41 and instructing or correcting employees in the per-
formance of unfamiliar elements of work.42 Less frequently,
apparently, Ou might find it necessary to call workers to-
gether to exhort them to speed up.43
I presume from the foregoing that Ou could not have been
expected to perform production work himself on a regular
basis. Nevertheless, testifying in generalizations, Ou stated
that he occasionally would pitch-in on a task, if he had no
one else available, and if one of the employees was ‘‘be-
hind’’ in the production schedule. That Ou may have had the
discretionary power to assign himself to the performance of
bargaining unit tasks is hardly inconsistent with the powers
of a statutory supervisor; indeed, on the other side of this
coin is a portrait of someone with power to unassign himself
from the performance of bargaining unit work as he saw fit.
And this alone clearly distinguished Ou from the rest of the
workers in his department, who enjoyed no such discretion.
In any case, there is no evidence that Ou performed such
pitch-in tasks on a regular basis, much less that he spent a
substantial amount of his workday performing such tasks.
g. Ou’s ‘‘authority’’
As I have found, in seat framing, as in other production
departments, Stanton relies centrally on the department su-
pervisor to make sure that components are made correctly
845STANTON INDUSTRIES
44 Rule 3 underwent subtle but inconsequential mutations in var-
ious reprintings over the years after Ou first signed the Rules. As
noted above, it originally required employees to ‘‘Follow orders of
leadman supervisors,’’ but this became ‘‘leadmen supervisors’’ in a
later version; and still later, by July 1991, a comma had been in-
serted between ‘‘leadmen’’ and ‘‘supervisors.’’ Incidentally, Person-
nel Manager Zurilgen could not explain why this comma had been
inserted into the more recent printing of the Rules, and believed it
to have been something in the nature of a typo. I cannot find that
the insertion of this comma in the more recent printing was intended
to impart new meaning to the longstanding Rule 3. Much less could
I find that the comma was intended quietly to signal the emergence
of some corporate distinction between the terms ‘‘leadman’’ and
‘‘supervisor’’ where none had been drawn in the past.
45 I think the General Counsel makes only a sterile semantical
point by repeatedly describing Ou’s instructions or directions to the
workers as ‘‘requests.’’ It does not matter that Ou may not have
issued ‘‘orders’’ in sternly Prussian tones, but typically ‘‘asked’’ em-
ployees to do things. Where Ou undisputedly had the power not just
to issue orders, but to issue verbal and written disciplinary rep-
rimands or warnings when employees did not do what he ‘‘asked’’
them to do, I may safely presume that department workers would
receive such ‘‘requests’’ as authoritative ‘‘directions.’’
46 Seeking to explain away the nine written notices that he signed
while a supervisor, Ou stated in substance that he had not issued any
of them on his own initiative, but only after being instructed or
prodded by Gonzales or Nguyen to write up the offending employee.
This attempt to disavow personal responsibility for the warning slips
is not convincing in itself; the warnings cover a gamut of employee
offenses, including two issued by Ou for ‘‘insubordination’’-type of-
fenses (G.C. Exhs. 9(d) and (i)), containing Ou’s own narrative com-
ments (e.g., ‘‘He never listen to a supervisor . . . .’’). At least as
important, these explanations do not even marginally establish that
Ou had no power to issue writeups on his own intitiative. Indeed,
Ou must have believed himself empowered to do so; otherwise it is
hard to explain why he admittedly maintained blank copies of dis-
ciplinary writeup forms in his own podium desk for ‘‘future’’ use.
Another problem for the General Counsel’s case with Ou’s expla-
nations is that they tend to reinforce Stanton’s evidence (testimony
of Nguyen and Gonzales) that Ou was expected as a department su-
pervisor to issue such disciplinary writeups himself, and should not
need to be prodded to do so.
47 Concerning such assignment ‘‘changes,’’ Ou clearly conceded in
a pretrial affidavit to the Board, ‘‘I do the changes on my own.’’
At trial, however, he bluffly declared that ‘‘Augustine’’ (Gonzales)
would be the person to ‘‘tell [employees] to change from one job
to the other.’’ I completely disbelieve Ou in this latter respect. In-
deed, he soon contradicted this claim when he admitted that he
might reassign a framer to help out the spring-up workers, if the lat-
ter were falling behind. And note his more general admissions in the
following exchange:
Q. JUDGE NELSON: So what do you tell somebody when you
get into that kind of situation? When you see that one person
is way down here, and somebody else is way up here on the
[production] list.
A. MR. OU: I ask them to help. Because you way over here
when—we usually go this way. When the person too far behind,
they going to slow production.
48 Ou claims that he would always ask Gonzales before getting in-
volved in any interdepartment borrowing or loaning of workers. I am
inclined to dismiss this as simply one more case where Ou has im-
plausibly sought to portray Gonzales as his constant overseer. But
for present purposes, it is sufficient to note that Ou does not dispute
the consistent testimony of several Stanton witnesses (including
Trishell, Ou’s immediate predecessor as seat framing supervisor, and
Sal Robles, his post-August 17 successor) that department heads
were allowed to make these borrowing and loaning arrangements
without consulting with Gonzales, and regularly did so.
49 Ou’s testimony on this point (Tr. 210:18–215:5) was evasive,
defensive, and unconvincing. He tried to leave the impression that
he would resist instructions from higher management to make such
rankings. Precisely how he resisted these admitted instructions is not
clear from Ou’s generalizations. But even assuming that they are
true (an assumption I make only for argument’s sake, because
Nguyen contradicted them, and I found Nguyen the more believeable
witness on the point), they tell us more about Ou’s personal predi-
lections than about the actual powers that Stanton conferred on him.
The fact remains undisputed that Stanton expected Ou to designate
the people he thought should be laid off. And I think it is irrelevant
in this context, although the General Counsel stresses this point, that
the ranking judgments made by department supervisors were largely
based on facts of company ‘‘record’’ (e.g., seniority, productivity, at-
tendance, and history of discipline). While it may be true that higher
level managers could perform their own research in the Company’s
Continued
and safely and on schedule. It would be unusual for an em-
ployer to charge someone with these responsibilities without
giving that person reasonable power to discharge them, in-
cluding at a minimum, the powers to assign or reassign, di-
rect, correct, and if need be, effectively discipline the work-
ers doing the work for which that person was responsible.
Yet, as I discuss below, the General Counsel is required to
argue that Ou represented just such an unusual case, a super-
visor in name only, without authority or discretion to affect
the working routine of the employees in his department, a
mere ‘‘conduit’’ for the decisions made by someone above
him. Anticipating these arguments, it is worth summarizing
first what the General Counsel does not directly dispute
about Ou’s proven ‘‘authority,’’ as distinguished from the
way Ou may have chosen to exercise or not exercise it.
Stanton’s witnesses and documentary evidence consistently
and harmoniously establish that Ou, like all department su-
pervisors, was empowered to issue ‘‘orders,’’ which the Plant
Rules require employees to ‘‘follow.’’ And every employee
in Ou’s department at the time of his discharge may be pre-
sumed to have known this, for they signed copies of the
Plant Rules when they were first hired that contained materi-
ally the same text in ‘‘Rule 3’’ as the text in the version that
Ou had signed when himself first hired.44 And Ou
undisputedly had the power not just to issue orders, but to
issue verbal and written disciplinary reprimands or warnings
when employees did not follow his orders,45 or when they
otherwise committed infractions of company rules. In fact,
during his tenure as supervisor, Ou had signed and delivered
at least nine written disciplinary slips to employees in his de-
partment, which now repose in their personnel files.46
Ou’s admitted authority also includes the power to remedy
production imbalances within his department by taking per-
sons off one job and putting them on another, based on his
own assessment of their skills and the shifting requirements
of the production schedule.47 In addition, although Ou ob-
scures the point in his testimony, he does not appear to deny
that he is empowered to ‘‘loan’’ employees from his depart-
ment, or to ‘‘borrow’’ employees from other departments, if
in his judgment such actions are required to maintain bal-
anced production flow.48 Finally, he is empowered (in the
sense of being instructed periodically from above) to evalu-
ate and rank the employees in his department for purposes
of layoff priority, a ranking the Company relies on when
making periodic cutbacks in the work force.49
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
record archives for such data, and make layoff selections based on
the fruits of such research, it was manifestly easier for them to rely
on the first-hand knowledge of such facts possessed by the depart-
ment supervisor, and on that supervisor’s ranking judgments. Ac-
cordingly, I cannot dismiss as a merely ‘‘formal’’ exercise that Ou
was periodically asked by higher management to provide his own
list of employees to be targeted for layoff.
50 Another way the General Counsel tries to minimize Ou’s essen-
tially conceded powers is to knock over straw men. Thus the Gen-
eral Counsel’s brief devotes much effort to identifying those effec-
tive powers that Ou did not possess, such as to hire or discharge,
or grant wage increases, or change the production sequence estab-
lished by the lay sheets, or decide to schedule overtime work. I re-
gard these points as essentially irrelevant distractions. It is common
in the Board’s experience that department supervisors in large-scale
manufacturing operations such as Stanton’s may have statutory su-
pervisor status even where effective control over hiring and firing
authority is centralized in a personnel department, and where deci-
sions concerning production schedules and sequences, wage in-
creases, scheduling of overtime, or layoffs, are made at the top plant
management level, or even at a higher, corporate level of manage-
ment.
While not directly disputing the evidence that Ou, like all
department supervisors, had the foregoing powers, the Gen-
eral Counsel seeks to minimize their significance. The most
recurring claim in the General Counsel’s brief is that the job
of seat framing supervisor does not genuinely require the use
of any real ‘‘judgment’’ or ‘‘discretion’’ in the exercise of
these powers. This is a claim that, in turn, depends heavily
on the supposition that Seat Framing work is so ‘‘routine’’
and ‘‘repetitive’’ that Ou’s own responsibilities could only
be understood in like terms.50
These characterizations rely entirely on Ou’s uniquely dep-
recating portrait of his job. As I have noted elsewhere, many
of Ou’s depictions are quite hazily general in tone, or im-
probable, and they are often hard to reconcile with his ad-
missions about specific details. For example, Ou’s attempt to
identify Assistant Plant Manager Gonzales as the party who
was really ‘‘responsible’’ for all but the most ‘‘routine’’ as-
pects of the direction of the seat framing department begs
common sense and defies known realities: Gonzales’ respon-
sibilities as overall production supervisor covered the work
done by upwards of 250 employees in 13 departments; seat
framing is the only department located outside the main plant
building; Gonzales was not shown to have been a regular
presence in seat framing, and could not have been, given his
responsibilities elsewhere. And Ou was not entirely consist-
ent in attempting to depict Gonzales as the real fount of all
‘‘nonroutine’’ decisions. In what I think was his most un-
guarded and candid description, Ou substantially admitted
that, after about a year on the job, he handled nonroutine
problems on his own, and did not seek out Gonzales. Thus,
he said (my emphasis):
The first year I get along with Augustine. I need any-
thing or I need a question or I don’t know how to
run[,] like something make mistake, how do I figure
out[?], like people missing, how I got to do, how to do
that[?]—I keep contact him all the time. In the first
year. And after that, I running on my own for some-
thing that happen.
Moreover, Ou’s downplaying characterizations and de-
scriptions of his job collide directly with the more contex-
tually believable descriptions of the same job offered by
Trishell, Ou’s predecessor, and by Sal Robles, Ou’s succes-
sor. Trishell and Robles testified harmoniously that in their
tenures as seat framing supervisor, they assigned and reas-
signed workers to different tasks within the department with-
out consultation with anyone higher up, and likewise without
such consulation they ‘‘borrowed’’ or ‘‘loaned’’ workers
from or to other supervisors when they perceived it to be
necessary to ‘‘catch up’’ work in their own or another super-
visor’s department. They also testified harmoniously that
they were periodically instructed to, and did, rank employees
in the department for layoff purposes, based on a variety of
factors, such as their skills, abilities, tenure on the job, and
attendance records.
Clearly, to accept Ou’s self-denigrating characterizations, I
would have to presume the existence of one or another state
of affairs, each quite unlikely: Either the 14 employees in
seat framing were not being ‘‘responsibly directed’’ at all, or
they were being so directed from afar, by someone
(Gonzales, according to Ou) who was not shown to have
been in a position practically to perform such direction of
their work. I have strong doubts about Ou’s sincerity in char-
acterizing the seat framing work, and his oversight role in it,
as ‘‘easy,’’ and in denying that he exercised any personal
‘‘authority’’ over the the seat framing workers. But even if
I were more inclined than I am to credit his good faith, I
still could not give his testimony the weight the General
Counsel would have me place on it. At best, I could find it
believable that Ou was personally reluctant to exercise some
supervisory powers which were clearly vested in his position,
those involving disciplinary writeups, and the ranking of em-
ployees for layoff purposes. But Ou’s personal style or idio-
syncrasies when it came to exercising these powers strike me
as relatively unweighty considerations in making an assess-
ment of his statutory status, especially given the substantial
responsibilities of his job, his actual powers, and the nec-
essary perception of his powers by the employees in his de-
partment, who were under instructions to ‘‘follow’’ his ‘‘or-
ders,’’ and who on occasion received disciplinary writeups
from him. In such circumstances, the employees would likely
feel the daily influence of Ou’s authority even if he may not
have chosen to exercise it often, or even only when prodded
from above.
h. Cases distinguished; concluding summary
Counsel for the General Counsel suggests in her brief that
the facts of this case are materially similar to those in three
cases where a disputed individual was found not to be a stat-
utory supervisor, Rahco, Inc., 265 NLRB 235, 247–249
(1982); Chicago Metallic Corp., 273 NLRB 1677, 1678–
1694 (1985), enfd. 795 F.2d 585 (6th Cir. 1986); and John
N. Hansen Co., 293 NLRB 63 (1989). Each of these cases
has its own unique mix of facts, and as I read them, they
depend in the end on facts or circumstances not presented
here. Rahco and John N. Hansen Co. are most easily distin-
guishable from this case on these common grounds: (a) the
men claimed by the employers to be ‘‘supervisors’’ spent
most of their time doing bargaining unit work; (b) they were
nominally ‘‘responsible’’ for only a small group of employ-
ees (fewer than in Ou’s department); (c) the rank-and-file
employees themselves were doing ‘‘routine’’ work; and most
important, (d) a conceded statutory supervisor was likewise
847STANTON INDUSTRIES
51 Thus, in Rahco, the employee in question, Stinson, was the
‘‘assistant supervisor’’ of an ‘‘assembly line’’ staffed by 11 persons
(265 NLRB at 247) doing ‘‘routine’’ and ‘‘repetitious’’ tasks. Id. at
248. And Stinson himself worked under the ‘‘supervisor’’ of the as-
sembly line, Caroon, who was an ‘‘admitted statutory supervisor.’’
Id. at 247. Not surprisingly, the Board was not persuaded that it took
two statutory supervisors to oversee 11 persons performing routine
and repetitive work on a small assembly line. For similar reasons,
it is unsurprising that in John N. Hansen, the Board was not per-
suaded that the ‘‘warehouse supervisor,’’ Gillespie, who ‘‘principally
picks merchandise off shelves and delivers it by forklift to the pack-
ing and shipping area’’ (293 NLRB at 63), possessed the powers of
a statutory supervisor, especially where the warehouse unit was a
‘‘small work force’’ (at most, eight employees), and ‘‘[e]ach ware-
house employee is supervised by the Respondent’s president, John
Hansen, with the assistance of [the] Office Manager[,]’’ (ibid), and
‘‘[t]he daily operation of the warehouse varies little, and the ware-
house employees rarely need to be assigned work or told what to
do. They simply continue where they left off the previous day.’’ Id.
at 64.
52 The dispositive facts in Chicago Metallic—and the precise ratio
decidendi of that case—are not easy to tease from the judge’s ex-
tended findings and characterizations. (273 NLRB 1679–1682, 1688–
1694.) What stands out, however, is that claimed Supervisor Picazzo,
a union adherent during a preelection campaign, was at the time of
his discharge an ‘‘assistant leadman’’ (273 NLRB at 1689) in a pro-
duction department—itself overseen by a ‘‘leadman,’’ Kreuger—
which apparently employed no more than 18 workers, [*] making
‘‘standardized’’ products. The judge noted that there had been no
‘‘showing that [these] employees require close supervision . . . .’’
Id. at 1692; my emphasis. And strikingly, entirely unlike herein, the
employer had taken the preelection position that Kreuger himself,
and other persons identified as ‘‘leadmen,’’ including ‘‘assistant
leadman’’ Picazzo, were all nonsupervisory employees, eligible to
vote; but when the voting began, the employer’s observer had selec-
tively challenged only Picazzo’s ballot (but not that cast by
Picazzo’s supervisor, Kreuger), on the ground that Picazzo was a
statutory supervisor. Id. at 1678. Here, by contrast, Stanton main-
tained at the election that all current department supervisors were in-
eligible to vote, and the Union agreed, and as a consequence, no cur-
rent department supervisor was permitted to cast a ballot.
[*] The judge did not make a finding as to the actual number of
workers in the production department, but noted that the employer
had claimed in its brief that 18 workers were in the department. Id.
at 1690 fn. 79.
53 Although the complaint alleges that Phanvongsa threatened
‘‘employees,’’ the evidence would not establish that Phanvongsa’s
alleged remarks were addressed to, or heard by, anyone other than
Garcia.
54 Garcia was admittedly referrring to Ry Ou, whom he knew as
‘‘Reed.’’
directly in charge of the same, relatively small group of
workers.51 Chicago Metallic Corp. appears to have roughly
similar distinguishing features, and is unique in other ways.52
I do not find any of these cases controlling, nor even particu-
larly instructive.
On the facts of this case, I cannot find that Ou’s respon-
sibilities and activities as seat framing supervisor involved
the performance of merely ‘‘routine’’ oversight functions, or
that his job was merely ‘‘clerical’’ in nature. Rather, as
elaborated above, I am persuaded that Ou’s job involved the
regular exercise of judgment and discretion in his employer’s
interest in the assigning, directing, correcting and disciplining
of the 14 employees in his department. I thus find that Ou
was a statutory supervisor when Stanton issued him an ulti-
matum to cease his organizing activities for the Union and
when it fired him for not heeding that ultimatum. Because
he was a statutory supervisor, Stanton committed no unfair
labor practice by these actions, and the complaint must be
dismissed in these respects.
B. Phanvongsa’s August 19 Statements to Lewis
Garcia; the Legal Sufficiency of Stanton’s
‘‘Disavowal’’
1. The conflicting versions of the underlying incident
Boravanh (‘‘Teek’’) Phanvongsa is the supervisor of the
six-person packing department. The complaint alleges at
paragraph 6(c) that ‘‘on or about August 19,’’ Stanton,
through Phanvongsa, (1) ‘‘[t]hreatened to terminate employ-
ees if they continued to engage in union activities’’; (2)
‘‘[t]hreatened an employee that the plant would be shut down
if the Union won the election’’; and (3) ‘‘[s]tated that a cer-
tain employee [Ry Ou] had been terminated because of his
Union activities and, if that employee ever got rehired, he
would never work as a leadman again.’’
Here, as in several other 8(a)(1) counts discussed below,
the General Counsel’s sole witness is forklift driver Lewis
Garcia, the employee allegedly subjected to Phanvongsa’s
threats on August 19.53 Garcia’s name headed the Union’s
list of organizing committee members furnished to Anderson
on August 10. He is assigned to the mill department, but his
work takes him around the plant. He was an open and un-
abashed IUE supporter, and often sported IUE buttons and
other prounion regalia on his workclothes.
It was while he was making a forklift run to the packing
department, says Garcia, that Phanvongsa ‘‘approached’’
him, and then said to him that ‘‘the Union is no good.’’ Ac-
cording to Garcia, Phanvongsa ‘‘went on to say that if I con-
tinue with the union activity . . . I would get myself fired.’’
Garcia states he replied, ‘‘[T]hey can’t fire me for my union
activities.’’ Phanvongsa then allegedly ‘‘referred to Reed
[sic],54 saying [‘]look what happened to Reed [sic].’’’ Garcia
states he rejoined that ‘‘Reed [sic]’’ would be ‘‘taken care
of’’ and would ‘‘get his job back eventually, because what
the company did was wrong.’’ Phanvongsa then replied, says
Garcia, that ‘‘there was no way he’ll ever get his job back.
And . . . even if there’s a slight possibility that Reed [sic]
ever got his job back, there is no way that he will work as
a leadman again, ever.’’ As the two men continued the de-
bate, according to Garcia, Phanvongsa variously made addi-
tional threats, that ‘‘if the Union won, the company would
go broke because the company doesn’t have the money to
have a union in it[,]’’ and that ‘‘the other people on the com-
mittee are going to get laid off or fired if they keep on, and
they should quit.’’
Phanvongsa, called as Stanton’s witness, admitted having
had a conversation in ‘‘August’’ with Garcia, but his own
account of what was said only slightly resembled Garcia’s.
Thus, Phanvongsa’s version suggests that it was Garcia who
opened the conversation by extolling the value of the Union,
and that Phanvongsa then ‘‘turned [his] back around’’ on
Garcia, and walked away, saying simply that the ‘‘Union was
no good.’’ However, Phanvongsa later acknowledged that at
some point he had also told Garcia that another furniture
company in the area, called ‘‘Kanouski’’ (phonetic), ‘‘was in
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
55 His radically different accounts of the timing of his conversation
with Phanvongsa is one illustration of the latter quality: He said
many times and in many different ways during his direct examina-
tion that the conversation with Phanvongsa here in question took
place on a date that he could not recall, but that he believed was
sometime around the first of October, or ‘‘three to four weeks before
the election.’’ Clearly, this version did not fit very well with the
complaint’s ‘‘August 19’’ version of the timing. And somehow, fol-
lowing a recess, when he was under cross-examination, Garcia was
now able to recall, ‘‘After I think about it, I believe it was August
19th, when [Phanvongsa] approached me with that particular con-
versation.’’ He also somehow recalled clearly now that ‘‘it was
somewhere before the petition had been filed with the NLRB.’’
56 Garcia’s descriptions of this transaction were reasonably detailed
and contextually plausible, and were delivered in a straightforward
manner. Phanvongsa seemed by his own demeanor and terse re-
sponses to be attempting to obscure certain details, and his account
left much to be desired in terms of context, completeness, and inter-
nal consistency.
57 Speaking hypothetically for these purposes, Garcia’s account
could support a finding that Phanvongsa violated Sec. 8(a)(1) when,
in effect, he threatened that Garcia or other employee-members of
the IUE’s organizing committee would be fired if they did not stop
their prounion activities, and when he threatened that ‘‘if the Union
won, the company would go broke,’’ substantially as alleged in com-
plaint pars. 6(c)(1) and (2), quoted supra. But I would find it more
difficult to sustain par. 6(c)(3), which alleges that Phanvongsa inde-
pendently violated Sec. 8(a)(1) when he ‘‘[s]tated that a certain em-
ployee [Ry Ou] had been terminated because of his Union activities
and, if that employee ever got rehired, he would never work as a
leadman again.’’ This count appears to depend on a finding that Ou
was an ‘‘employee,’’ not, as I have found, a statutory supervisor.
Because Ou was a statutory supervisor, Phanvongsa’s alleged state-
ments that Ou had been fired for his union activities and would
never be rehired as a ‘‘leadman’’ would be consistent with what I
have found Stanton had a right to do. Thus, even if Phanvongsa
made these statements, it is not obvious that they violated Sec.
8(a)(1), or that they required a specific disavowal on Stanton’s part.
58 The Union’s August 24 charge alleged that,
On or about August 19, 1992, the employer threatened to close
the plant if the union succeeds in organizing the plant. The em-
ployer further stated that certain employees [sic] would never be
rehired because of their [sic] union activities and that such em-
ployees [sic] would never again work as a leadman for the
emplorer [sic].
59 Garcia gave an affidavit concerning the incident to a Region 32
field examiner on September 1.
60 My findings in this regard are based on a letter dated September
15 from the field examiner to Stanton’s attorney (R. Exh. 2), in
which the field examiner ‘‘confirm[ed] the conversation . . . by tele-
phone on September 9.’’
business for a long time. They got the union in and I had
a friend work there for 15 years. The companies [sic] go
broke and close.’’ Phanvongsa specifically denied that he
ever discussed Ry Ou’s situation in this conversation.
In general, I was not impressed by Garcia’s demeanor nor
the quality of his testimony, which seemed at times over-
eager, or improvisatory, or improbable, or simply careless.55
But here, if forced to choose between the two witnesses, I
would set aside more general doubts about Garcia’s reliabil-
ity, and would find that the conversation occurred substan-
tially as described by Garcia.56 However, I am not forced to
resolve the credibility issue, much less to decide whether
Phanvongsa violated Section 8(a)(1), because even if I were
to credit Garcia, I would find for reasons set forth next that
Stanton effectively disavowed any unlawful messages that
Phanvongsa may have imparted to Garcia.57
2. Stanton’s posted disavowal and
surrounding circumstances
There is no evidence that Garcia told any other employees
about his August 19 conversation with Phanvongsa. But it is
rather clear that he told the Union about it, for the Union’s
initial charge in Case 32–CA–12706, filed on August 24,
echoes Garcia’s version of the August 19 transaction, al-
though it does not specifically identify Phanvongsa as the
perpetrator, or Garcia as the target.58 However, on September
9, Stanton was admittedly put on notice that Phanvongsa’s
conduct figured in the charge. On that date, after taking an
affidavit from Garcia,59 a Region 32 field examiner tele-
phoned one of Stanton’s attorneys, and told him that the
Union had ‘‘presented evidence of a prima facie case of
8(a)(1) violations.’’ Elaborating, the field examiner named
Phanvongsa as the offending supervisor, and described the
substance of Garcia’s version of the August 19 conversation,
without disclosing Garcia’s identity, and asked for ‘‘the Em-
ployer’s response to these allegations.’’60 There is no basis
in this record for supposing that Stanton had any knowledge
of Phanvongsa’s alleged misconduct before the field exam-
iner telephoned Stanton’s attorneys in Phoenix, on September
9, a Wednesday.
On the following Monday, September 14, Stanton posted
a ‘‘NOTICE TO ALL EMPLOYEES’’ on the employee bul-
letin board in the Stockton plant. In material part, the notice
said:
On August 24, 1992, the Union of Electronic, Elec-
trical, Salaried, Machine & Furniture Workers
AFL/CIO filed an unfair labor practice charge against
the Company with the National Labor Relations Board.
The 32nd Regional Office of the . . . Board is inves-
tigating the . . . charge. The Regional Office Investiga-
tor advised that on August 19, 1992, near the packing
line, the leadperson told an employee that if he contin-
ued to engage in union activities, he would be dis-
charged. He [a]lso is alleged to have told the employee
that if the Union won the election, the plant would
close.
The Company’s investigation has not established that
these alleged threats occurred or are true. However, as
we have pointed out over and over, employees have the
right to engage in union activities, as well as the right
to refrain from engaging in union activities, which
rights are guaranteed by Section 7 of the National
Labor Relations Act.
If the statements or threats were made by a
leadperson, we regret them and we want each of you
to know that they were not authorized or approved by
the Company and do not reflect it’s [sic] views. No em-
ployee will be discharged or discriminated against be-
cause of his or her union activities; and this plant will
not close in the event the union wins an election.
To make it clear, the Company did not threaten to
close the plant and the Company will not in any man-
ner interfere with or coerce employees in the exercise
of their rights to self-organization, to form labor organi-
zations, to join or assist the above-named union or any
849STANTON INDUSTRIES
61 Passavant Memorial Hospital, 237 NLRB 138 (1978).
62 G.C. Br. at 26–27; my bracketed numbers inserted.
63 I think it will be obvious to anyone studying Broyhill that who-
ever authored Stanton’s September 14 ‘‘NOTICE TO ALL EM-
PLOYEES’’ (presumably Stanton’s attorneys) used the Broyhill no-
tice, and the Board majority’s comments in that case, as their model
and guide. The only difference in message I can detect is that in the
Broyhill notice, the employer announced,
We have made an investigation of the unfair labor practice
charge allegations, and have concluded that a supervisor of the
company may have acted in an improper manner. We regret this,
and we want each of you to know that the . . . Act gives em-
ployees the following rights: [emphasis added; remaining text
omitted].
Here, by contrast, Stanton declared that its ‘‘investigation has not es-
tablished that these alleged threats occurred or are true[,]’’ (emphasis
added), and couched its ‘‘regret’’ in a more conditional mood, say-
ing (emphasis added), ‘‘If the statements or threats were made . . .
we regret them and we want each of you to know . . . .’’ This dif-
ference seems unimportant in assessing the effectiveness of Stanton’s
notice as a repudiation of Phanvongsa’s alleged misconduct. Even
when the Board orders notice-posting to remedy a violation found
after litigation, it does not require the employer to ‘‘confess’’ to the
violation in the notice.
64 In Broyhill, the employer published the notice on May 6, rough-
ly 5 weeks after ‘‘Supervisor Junker’’ had allegedly made certain
statements which the notice was intended to disavow. The Broyhill
majority noted pertinently,
It does not appear that Respondent learned of Junker’s conduct
until May 5, when the Board agent conducting the investigation
met with officials of Respondent and its attorney. [260 NLRB
at 1366].
And in reply to the dissenters’ objections based on the ‘‘5-week’’
hiatus between the alleged supervisory misconduct and the general
manager’s published disavowal, the Broyhill majority observed that
the dissenters ‘‘do not dispute that Respondent acted in good faith
and lacked knowledge of Junker’s conduct prior to May 5.’’ The
majority further stated (id., later paragraph) that,
it must be remembered that in litigated cases Board notices are
never posted within 5 weeks of the commission of the unfair
labor practices.
65 It is not necessarily fatal to the General Counsel’s point that this
record does not disclose the forms of ballots used in the October 30
election, nor that the General Counsel has not lodged specimen cop-
ies of the ballots with me. Such facts are proper subjects for admin-
istrative notice, and they are revealed in records customarily main-
tained in the offices of Region 32. Thus I may assume that counsel
for the General Counsel has accurately described what the records
in her office would show, were I to make administrative inquiry.
66 Anderson recalled that his speeches were translated by inter-
preters into,
Vietnamese, Spanish, Cambodian, Laos, we tried to do it for
every nationality that we had at the plant.
other labor organization, to bargain collectively through
representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities. All our employees are free to
become, remain, or refrain from becoming a member of
any labor organization.
STANTON INDUSTRIES OF CALIFORNIA
BY /s/ Robert Anderson
Robert Anderson, General Manager
Stanton contends that any illegality in Phanvongsa’s state-
ments became ‘‘moot’’ in the light of Stanton’s posted Sep-
tember 14 notice. I substantially agree, finding that Stanton’s
notice satisfied the ‘‘effective repudiation’’ standards set
forth in Passavant,61 and applied in subsequent cases, includ-
ing a recent one, Gaines Electric Co., 309 NLRB 1077,
(1992). In Gaines, the Board recapitulated the Passavant
standards in the following terms:
For a repudiation to be effective, it must be timely, un-
ambiguous, specific in nature to the coercive conduct,
free from other proscribed conduct, and adequately pub-
lished to the employees involved. In addition, it must
set forth assurances to employees that no interference
with their Section 7 rights will occur in the future, and
in fact there must be no unlawful conduct by the em-
ployer after publication of the repudiation.
The General Counsel cites two reasons why Stanton’s no-
tice was not an ‘‘effective’’ repudiation of Phanvongsa’s al-
leged threats, as follows:62
[1] . . . Respondent did, in fact, violate the Act in
many other respects. . . . [2] Additionally, there is no
evidence that Respondent made any attempt to post
such an important notice in any language other than
English despite the fact that the majority of its employ-
ees do not speak or read English.
Before addressing those points it is worth noting that the
General Counsel does not attack the effectiveness of Stan-
ton’s notice on the ground that it was untimely, or ambigu-
ous, or lacked requisite specificity, or that it failed to set
forth the necessary ‘‘assurances to employees that no inter-
ference with their Section 7 rights will occur in the future.’’
Indeed, any of those attacks would be unavailing, because in
Broyhill Co., 260 NLRB 1366, 1367 (1982), the Board found
that a materially similar ‘‘NOTICE TO ALL EMPLOY-
EES,’’ issued in materially similar circumstances by an em-
ployer, contained an ‘‘effective repudiation’’ under
Passavant.63 Moreover, as to the ‘‘timeliness’’ of the repudi-
ation, these facts are materially similar to those in Broyhill.64
Returning to the General Counsel’s attacks on Stanton’s
notice as an effective repudiation, I must reject the General
Counsel’s first point because I will find that Stanton did not
violate the Act in any other respect. The General Counsel’s
second point is an assertion of fact—that ‘‘the majority of
[Stanton’s] employees do not speak or read English.’’ But
the General Counsel cites no support in the record for this
assertion; rather she simply makes another assertion of fact
lacking record support. Thus, in a footnote appended to the
first assertion, the General Counsel states, ‘‘In fact, the ballot
for the October 30 election was printed in six different lan-
guages.’’
I will assume that this latter assertion is true, despite the
absence of evidence in this record to support it.65 I note also
that Anderson’s campaign speeches were delivered to groups
of employees, preselected based on their native language,
through an interpreter in that language.66 But neither of these
facts, nor even both of them combined, lend any significant
support to the General Counsel’s primary assertion that ‘‘the
majority of [Stanton’s] employees do not speak or read
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
67 A Regional Director’s decision to use multilanguage ballots and
preelection notices in a given election setting does not amount to a
conclusive ‘‘finding’’ as to the English-literacy or fluency levels in
the voting unit, for Regional Directors are not required to and do
not attempt to conduct a systematic inquiry into such matters. Rath-
er, ‘‘the Board will generally provide [preelection] notices in other
languages if requested by a party . . . .’’ Morris, The Developing
Labor Law, 2d Ed., Vol. I, p. 392 (emphasis added). Accordingly,
if the ballots were printed in six languages, it is at least as likely
as not that the Regional Director was merely acting on a party’s re-
quest, and perhaps out of a recognition that Stanton’s Stockton work
force was comprised of a substantial number of immigrants from
Southeast Asian countries where a variety of languages are spoken,
and of other workers whose native language is Spanish, all of whom
might have difficulty comprehending English-only ballots. Similar
considerations may be presumed to have influenced Stanton’s deci-
sion to use interpreters during Anderson’s campaign speeches, where
it was equally important to Stanton that its campaign messages be
heard and digested by the largest number of employees. Neither fact,
however, tells us whether or not the ‘‘majority’’ of the workers are
unable to speak or read English.
68 Garcia testified in fluent and unaccented American English—in-
deed, I presume English is his native language. He is admittedly
English literate, and he read and signed three affidavits written in
English during the investigation.
69 See, by analogy, Wicks Forest Industries, 227 NLRB 299
(1976), where the Board overruled the employer’s postelection ob-
jections based on the lack of bilingual notices, noting that the em-
ployer had failed to show that a substantial number of Spanish-sur-
named employees could not read or understand English.
70 309 NLRB 1077.
71 I note that Phanvongsa’s statements, made before the petition
was filed on August 21, are not invoked by the Union as grounds
for setting aside the election. Indeed, as previously noted, prepetition
conduct cannot normally be relied on to set aside an election, under
the Board’s Ideal Electric rule. In any case, Stanton’s disavowal no-
tice, published more than 6 weeks before the election, was effective
in vitiating the impact of Phanvongsa’s statements on the October
30 election. Compare, e.g., Gaines Electric, supra, finding that the
employer’s disavowals were made ‘‘two weeks’’ before the election,
and that the disavowals ‘‘acted to restore in a timely fashion the lab-
oratory conditions for a fair election.’’
English.’’67 Thus, I find that the General Counsel’s primary
assertion lacks substantial support in the record.
As a separate matter, I might extrapolate from my expo-
sure to a small number of Stanton’s employees during the
trial that a minority in the larger work force, like a minority
of the witnesses, are effectively unable to read English, and
therefore, that at least some employees at the plant were un-
able to read or digest Stanton’s disavowal notice. This is not
the objection made by the General Counsel, and it would be
a small objection in any case, for these reasons: No em-
ployee other than Garcia was shown to have heard or learned
of Phanvongsa’s alleged August 19 threats, themselves ut-
tered in English. Garcia admittedly read and digested the
contents of Stanton’s September 14 disavowal notice.68 Thus,
the notice was fully ‘‘effective’’ in reaching the target of
Phanvongsa’s alleged threats. Moreover, given other findings
above, that notice may be presumed to have been read by
a substantial number of other workers capable of understand-
ing it; indeed, there is no substantial basis in the record for
supposing that it was not read and digested by a majority of
the work force.69
Thus, here, as in Gaines Electric, supra, I would find that
Stanton’s notice was ‘‘more than adequately published, in
light of the isolated nature of the matter and the absence of
dissemination to other employees.’’70 And because Stanton’s
notice renders the issue moot, I will not decide whether
Phanvongsa’s statements, as described by Garcia, violated
the Act. Rather, I will recommend dismissal of the complaint
in this respect.71
III. ALLEGED POSTPETITION UNFAIR LABOR PRACTICES
A. Anderson’s August 24 Warning Concerning
Garcia’s Supposed Violation of Solicitation and
Distribution Rule
1. Introduction
Rule 8 of Stanton’s plant rules says:
(8) No solicitation or distribution of literature of any
kind during working hours in work areas. Working
hours shall exclude non-duty lunch periods and rest pe-
riods.
The lawfulness of rule 8 has not been placed into issue.
Three distinct 8(a)(1) counts in the complaint, quoted
below in section 3, allege in the aggregate that Stanton ‘‘en-
forced’’ rule 8 selectively, against only ‘‘pro-union’’ viola-
tions. All three counts are vitalized by a single incident on
August 24, in which Anderson admittedly called employee
Garcia to his office, and remonstrated with Garcia concern-
ing a report Anderson had received that Garcia had been
passing out union papers on worktime in a work area. Garcia
denies that he did what Anderson was accusing him of, and
his version of the August 24 session with Anderson differs
significantly from Anderson’s on several points. Crediting
Anderson concerning these events, I will conclude that the
General Counsel has failed to establish any of the violations
alleged in the complaint that are related to these events, be-
cause Anderson’s remarks to Garcia on August 24 were le-
gally innocuous in themselves, and the General Counsel’s
evidence of alleged toleration by the Company of other types
of arguable violations of rule 8 was too equivocal or insub-
stantial to show that Garcia suffered from a form of ‘‘dispar-
ate’’ treatment at Anderson’s hands. I will further reject an
additional, ‘‘Burnup & Sims’’ theory of violation, advanced
by the General Counsel for the first time on brief.
2. Immediate background; conflicting versions of
August 24 meeting; credibility resolutions
This is how Anderson, on cross-examination by the Gen-
eral Counsel, explained ‘‘[w]hat prompted [him] to bring
[Garcia] into the office’’ on August 24:
A. Because one of the other super—one of the other
guys was coming from the other building and seen him
[i.e., Garcia] get off his [H]yster [a brand of forklift]
and go over and talk to these two guys and hand out
some papers, and come and complain to me. And so,
the next morning I thought I would just set it strai[gh]t
and tell Lewis that. And that’s why I had him come
into the office.
Q. Who is the supervisor that told you about that?
851STANTON INDUSTRIES
72 The person in question, otherwise called ‘‘Lyle’’ by Anderson,
was identified by Anderson as someone who ‘‘runs the customer
service in trucking and that, in the office next to me.’’ Although the
General Counsel’s introductory question assumed that Lyle was a
‘‘supervisor,’’ there is no other evidence of his status or function.
His association with ‘‘customer service’’ suggests that he did not su-
pervise, or work with, employees in the putative voting/bargaining
unit.
73 Concerning this, the General Counsel questioned Garcia further,
as follows (emphasis added):
Q. Did you pass any union cards or literature to employees
during working hours on the Friday before your conversation
with Mr. Anderson?
A. No.
Q. Is there any reason why you say that?
A. Yes, there’s good reason why I say that. I knew well be-
forehand that that same Friday, the union cards were being
turned in to the Labor Board. And I had no need to go around
to have union cards signed anymore.
74 Garcia likewise recalled that someone named ‘‘Tom’’ was
present, but did not mention ‘‘Agustin’’ (Gonzales) as having been
present. Neither Lyle nor Gonzales testified about this transaction.
A. Tom Lyles [sic],72 I seen him when he was com-
ing back from the other building.
. . . .
Q. What was it that Mr. Lyle told you he saw?
A. Mr. Lyle told me that he’d seen him jump off his
[H]yster and go over and talk to a couple guys and
hand out papers. And was talking to them during work
hours. And so I—
Q. Did Mr. Lyle tell you that he could hear what
was said?
A. I don’t know if he could hear, or not. He was
right there by them he said.
. . . .
Q. JUDGE NELSON: Did he report that he had heard
anything—
A. He came to me and reported to me that he was
coming from the other building, seen Lewis get off his
[H]yster, go over and talk to two other gentlemen, and
give them some paper work and talk to them. He didn’t
tell me that he could hear them talk. . . . He just told
me that.
Q. MS. MARCOTTE: Did he tell you that he had seen
the papers that Lewis gave the employees?
A. . . . He didn’t know what was on them. He said
that he was handing them papers.
Q. So, Lewis could have been handing them [the]
San Francisco Chronicle?
A. Well, Tom told me that he talked to one of the
guys and he told him that it was Union stuff. I
wouldn’t have went out there just to pick on him.
Q. And so, who were the guys who were involved?
A. Tom said, that there was a couple other gentle-
men out back. And that he talked to [inaudible] and
somebody else. But I never followed through on it.
Q. You didn’t talk to any of the employees yourself?
A. No. Nope. Talked only to Lewis.
These are the material portions of Garcia’s testimony con-
cerning his August 24 meeting with Anderson, and other sur-
rounding circumstances (emphasis added):
A. Bob Anderson said that he called me in[to] the
office because he was told that somebody had seen me
pass a union card the Friday before. And then he went
on to say that it was against company rules to pass
union cards during working hours. I told him that I
know the rules. And that whoever saw me passing a
union card mistakenly believed they saw me passing a
union card, because I did not pass a union card during
working hours as they say.73 He would not tell me who
saw me, you know, but just that it was the Friday be-
fore during working hours. Then he went on to, you
know, explain about the rules of soliciting, and that it
could only be done in the morning, during break time,
during lunch, and after work. I told him that I know
what the rules are. And that I myself go around telling
the rest of the committee for the union those same
rules. Because I know what the rules are, and I stay
with them. He also went on to say that if it is ever re-
ported by somebody in the Company that I am passing
union literature during working hours, that he would
take it to the Labor Board, and that he would also take
drastic action against me. And then he wanted me to
sign this warning slip for him. And I told him that, you
know, this is wrong, but I’ll sign it. So I signed it and
left.
These are material portions of Anderson’s recollections
concerning the same meeting, offered during cross-examina-
tion by the General Counsel:
Q. Now, regarding the meeting that you had with
Lewis Garcia in your office, you testified about . . .
who was present in that meeting?
A. Tom Lyle, Agustin, and me.74
. . . .
Q. What was said?
. . . .
A. . . . I told Lewis I had seen him, you know,
heard a complaint about him handing out papers and
talking Union during company time. And that I didn’t,
you know, care what he did, you know, at lunch and
at break, but [th]at I didn’t want it go on during work
hours. And that’s about all I really said, I think.
Q. So, you never asked Lewis whether he had in fact
done that?
A. No.
Q. Did anyone else say anything?
A. The other two people, no.
Q. What about Lewis?
A. No. I don’t think Lewis said anything. He just
kind of shrugged his shoulders. That was about it.
Q. He didn’t say anything at all?
A. If he did, I didn’t, I don’t remember. Like I said,
it was early in the morning and it was—I brought him
in and told him that and I really don’t remember what
he said, it was so long ago, if he said anything.
Elsewhere, Anderson specifically denied that he wrote up
any form of ‘‘warning’’ notice, or asked Garcia to sign any
paper, and he insisted that ‘‘[n]othing went into Lewis’s
file.’’ I credit him on these latter points. Garcia’s contrary
claims were uttered with a kind of glibness that did not in-
spire my confidence, and there are substantial grounds for in-
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
75 After Garcia testified concerning the ‘‘warning slip’’ that An-
derson supposedly made him sign, the General Counsel stipulated
that ‘‘Garcia’s affidavit of September 1, 1992, taken by a Board
agent pursuant to investigation of charges in this case . . . makes
no mention of Anderson writing up a disciplinary note that he re-
quested Garcia to sign.’’ I note that this affidavit, in which Garcia
purported to describe the August 24 meeting with Anderson, was
given by Garcia only a week after that meeting transpired. Also, the
complaint makes no claim that Anderson prepared or required Garcia
to sign a written warning; rather, purporting to quote Anderson, it
only alleges that Anderson ‘‘threaten[ed] to ‘take action’’’ against
Garcia if he violated rule 8 again. Also, as I note below, the General
Counsel appears on brief not to rely on Garcia’s claim that Anderson
required him to sign some kind of written warning.
76 The underscored elements also smell freshly cooked to me. As
I have already noted, the complaint in this respect, apparently based
solely on Garcia’s investigative input, purports to quote Anderson
only as having ‘‘threaten[ed] to ‘take action’ against [Garcia] if he
continued to solicit for the Union during ‘working hours.’’’
77 For example, Garcia recalls that Anderson accused him of pass-
ing out ‘‘union cards’’ on the previous ‘‘Friday.’’ Anderson recalls
that he accused Garcia of passing out union-related ‘‘papers’’ on the
day before he summoned Garcia to his office.
78 As previously noted, the General Counsel amended the com-
plaint at trial to delete this first subparagraph, alleging that on Au-
gust 24, Stanton, through Anderson, ‘‘verbally promulgated an
overbroad no-solicitation rule.’’
79 Count (4) deserves separate introductory comment, largely be-
cause of a confusing dissonance between its text, standing alone, and
its subordinate placement under a paragraph introduced by the
phrase, ‘‘On . . . August 24, acting through Anderson[.]’’ Inspected
by itself, count (4) appears to allege a pattern of ‘‘disparate enforce-
ment’’ of rule 8 by Stanton ‘‘throughout October.’’ This might sug-
gest that Stanton engaged ‘‘throughout October’’ in an ongoing pat-
tern of cracking down on ‘‘pro-union’’ violations of the rule, while
tolerating ‘‘anti-union’’ activities that violated the rule. But a count
that intends to allege such an independent pattern of disparate en-
forcement ‘‘throughout October’’ does not belong either grammati-
cally or as a matter of legal substance as a subcount following the
introductory phrase, ‘‘On . . . August 24, acting through
Anderson[.]’’ And Anderson’s August 24 session with Garcia is the
only instance of record where rule 8 was arguably ‘‘enforced’’
against an employee involved in a supposed ‘‘pro-union’’ violation
of the rule. Moreover, count (4) does not specifically allege any
‘‘October’’ crackdown on ‘‘pro-union’’ violations of the rule; it only
alleges a company tolerance in that month for ‘‘antiunion’’ viola-
tions of the rule. Thus, it appears after analysis that count (4) was
not intended to allege independently unlawful conduct by Stanton in
October; rather, it merely alleges the existence of additional cir-
cumstances after Anderson’s August 24 session with Garcia which
might support the claims made in counts (2) and (3), that Anderson’s
treatment of Garcia on August 24 amounted to a ‘‘disparate enforce-
ment’’ of rule 8. And it is based on these considerations that I have
earlier described all of the counts in question as having been ‘‘vital-
ized’’ by Anderson’s August 24 session with Garcia.
ferring that he improvised these claims recently.75 Likewise,
from his demeanor and style of testifying, I treat as inven-
tions Garcia’s claims that Anderson threatened (emphasis
added) ‘‘to take it to the Labor Board and . . . take drastic
action’’ against Garcia if he were to hear any future reports
that Garcia was violating rule 8.76 Stripped of these implau-
sible embellishments, Garcia’s account is roughly harmo-
nious with Anderson’s. Any remaining discrepancies are ir-
relevant to the legal issues presented,77 but I would credit
Anderson over Garcia on such small questions of detail, be-
cause Anderson impressed me more favorably than Garcia in
terms of overall performance and demeanor. Thus, I find that
Anderson told Garcia, in effect, that he had heard a report
that Garcia had recently engaged in proscribed distribution of
union-related papers on work time, and warned him against
future violations of the rule, but also clearly advised him that
he was free to do such things during lunch and break peri-
ods.
3. The General Counsel’s theories of violation;
supplemental findings and conclusions
a. The theories embedded in the complaint
Concerning this incident, the complaint alleges, at para-
graph 6(i), that Stanton, ‘‘[o]n or about August 24, acting
through Anderson,’’
(1) [deleted]78
(2) Selectively and disparately enforced the . . .
Rule by threatening to ‘‘take action’’ against an em-
ployee [Garcia] if he continued to solicit for the Union
during ‘‘working hours,’’ while allowing solicitation
concerning other non-work related matters during
‘‘working hours.’’
(3) Created the impression that an employee’s [Gar-
cia’s] Union activities were under surveillance by tell-
ing an employee [Garcia] that he was seen passing out
Union cards on ‘‘working time,’’ when solicitation-dis-
tribution during working time was routinely tolerated
for non-union, non-work-related activities.
(4) On various occasions throughout October, . . .
[Stanton] has applied and enforced the . . . Rule in a
disparate fashion by permitting employees engaged in
anti-union activities to engage in conduct that violated
the . . . Rule.
Obviously, the notion of ‘‘disparate enforcement’’ is inter-
woven into each of these counts,79 and to that extent, each
of these counts depends in the end on proof of such dispar-
ity. Before examining the adequacy of the General Counsel’s
proof in that area, however, I will discuss and dispose of an
independent theory of violation advanced by the General
Counsel on brief, one which I find was not fairly encom-
passed by the above counts in the complaint.
b. The ‘‘Burnup & Sims’’ theory
The complaint does not directly call into question whether
Anderson accurately accused Garcia of a rule 8 violation;
rather, the counts quoted above can be understood best as
challenges to Anderson’s right to ‘‘enforce’’ rule 8 at all
against Garcia’s supposed violations, where such ‘‘enforce-
ment’’ action was ‘‘disparate[ly]’’ administered, only to
‘‘pro-union’’ violations of the rule. And given the com-
plaint’s emphasis on a disparate treatment theory of viola-
tion, I can only interpret as a product of afterthought that the
General Counsel’s opening argument concerning Anderson’s
August 24 session with Garcia is one that relies not at all
on proof of disparity of treatment; rather, it rests simply on
Garcia’s claim that he was not, in fact, guilty of the violation
which Anderson accused him of committing. Thus, on brief,
prosecuting counsel begins her argument by quoting from
Judge Michael O. Miller’s decision, adopted by the Board,
in Keco Industries, 306 NLRB 15 (1992), as follows:
853STANTON INDUSTRIES
80 Keco Industries, supra.
81 See Wilshire Foam Products, 282 NLRB 1137, 1157–1158
(1987).
82 Stanton’s failure to call Lyle to corroborate Anderson might ar-
guably invite an inference adverse to Stanton even as to the ‘‘honest
belief’’ element, especially if Lyle had been shown to be a statutory
supervisor or agent of Stanton, and therefore not someone who was
‘‘equally available’’ to all parties as a witness. Cf. International
Automated Machines, 285 NLRB 1122, 1123 (1987). But there was
no such showing, and in any case, an adverse inference is not man-
dated, merely permissible. Auto Workers (Gyrodyne Co.) v. NLRB ,
459 F.2d 1329, 1336–1337 (D.C. Cir. 1972). For reasons summa-
rized above and repeated below, I have found that the complaint did
not give Stanton notice that the ‘‘honesty’’ of Anderson’s ‘‘belief’’
as to Garcia’s supposed misconduct would be an issue. Thus, Stan-
ton’s failure to call Lyle to ‘‘corroborate’’ Anderson could well have
resulted from a reasonable judgment on the part of Stanton’s attor-
neys that the honesty of Anderson’s belief was not under attack. For
that reason alone, Lyle’s absence from the witness stand cannot rea-
sonably justify a finding that Anderson was not telling the truth in
describing his reason for calling Garcia to his office.
83 But see fn. 82.
84 The language borrowed by the General Counsel from Judge Mil-
ler’s decision in Keco describes the analysis to be used when an em-
ployee receives ‘‘discipline’’ for having committed supposed mis-
conduct ‘‘in the course of union activity.’’ And in Keco, there was
unmistakable evidence that employee Morris received actual dis-
cipline, a ‘‘formal . . . memorandum of reprimand,’’ which was
placed in Morris’ personnel file, despite his protest that he had not,
in fact, done what the company was disciplining him for having
done. 306 NLRB 15. See also Wilshire Foam Products, supra, ap-
plying Burnup & Sims analysis and finding violation where, as in
Keco, the employer issued a written ‘‘Employee Warning Notice
which was placed in [the] personnel file’’ of an employee who was
not, in fact, guilty of the ‘‘coercing and pressuring [of] co-workers
regarding the subject of the Union’’ charged in the warning notice.
282 NLRB at 1157–1158.
85 The General Counsel takes a dark view of Anderson’s admitted
disinclination to investigate the underlying facts. To me, this more
easily supports the counterinterpretation suggested above—that An-
derson had no interest in disciplining Garcia, nor in making a big
deal out of Garcia’s supposed previous violation, but wished only to
get the message to Garcia that if Garcia had, in fact, distributed
union papers on worktime and in a work area, this violated a com-
pany rule, and Garcia should not do it in the future.
Where an employee is disciplined for having engaged
in misconduct in the course of union activity, the em-
ployer’s honest belief that the activity was unprotected
is not a defense if, in fact, the misconduct did not
occur. NLRB v. Burnup & Sims, Inc., 379 U.S. 21
(1964); Rubin Bros. Footwear, 99 NLRB 610 (1952).
See also Huss & Schlieper Co., 194 NLRB 572, 577
(1971).80
I take no issue with this statement of the law,81 but for rea-
sons explained below, I doubt its applicability to these facts.
The General Counsel next argues that the ‘‘evidence . . .
does not even support a finding that Anderson had an honest
belief that Garcia had engaged in unprotected activity.’’ She
emphasizes that Anderson relied on a ‘‘second-hand ac-
count,’’ and ‘‘made no attempt personally to investigate the
matter.’’ If, contrary to my reasoning below, the ultimate
issue turned on this point, I would find, contrary to the Gen-
eral Counsel, that Anderson did have an honest belief, based
on a report from Lyle, that Garcia had engaged in distribut-
ing of union papers on working time in a work area. Ander-
son’s explanation, supra, was simple, plausible, and credibly
delivered; I believe him.82
Leaving behind this challenge to the honesty of Ander-
son’s ‘‘belief,’’ the General Counsel states, ‘‘Moreover, Gar-
cia credibly testified that he had not distributed any union
cards on the day in question[.]’’ (Without embracing the ad-
jective ‘‘credibly,’’ I observe that it is at least true that Gar-
cia’s denials stand uncontradicted; Stanton called no wit-
nesses with first-hand knowledge of the underlying inci-
dent.)83 ‘‘Accordingly,’’ the General Counsel reasons, ‘‘it
must be concluded that Garcia did not engage in any unpro-
tected union solicitation or distribution[.]’’ Thus, under the
General Counsel’s apparent reasoning, a finding that Garcia
was not, in fact, guilty of unprotected activity would end the
inquiry, and would conclusively establish that Anderson’s
statements to Garcia violated the Act.
I would dismiss this new theory without reaching its fac-
tual merits, because I think it would violate Stanton’s due
process rights to decide the merits. The complaint cannot be
fairly understood to encompass this theory, and as a con-
sequence, I cannot find that there was full and fair litigation
of the question of central relevance to such a theory—What,
‘‘in fact,’’ happened in the underlying incident? Again, the
complaint did not give Stanton notice that the ‘‘honesty’’ of
Anderson’s ‘‘belief’’ as to Garcia’s supposed misconduct
would be an issue; it did not allege, for example, that Ander-
son accused Garcia falsely, or in bad faith. Rather, it simply
called into question the even-handedness of Anderson’s treat-
ment of Garcia, after having received the information that
gave rise to his belief. Thus, what, ‘‘in fact,’’ transpired dur-
ing the underlying incident was seemingly irrelevant to the
accusations in the complaint, and this could easily explain
why Stanton did not call witnesses with first-hand knowledge
of the underlying incident.
In the alternative, reaching the merits of this new theory,
I would find that the Burnup & Sims analysis invoked in
Keco Industries does not apply here, essentially because I
cannot find any credible evidence that Garcia received actual
‘‘discipline’’ for a supposed act of misconduct.84 Here, I
find, Anderson did not administer discipline to Garcia by the
statements I have found he made; at most, he implied that
Garcia could suffer discipline if Anderson learned of any fu-
ture violations of rule 8 on Garcia’s part. Because of this,
I think it overstates the situation to characterize Anderson’s
session with Garcia as involving an ‘‘enforce[ment]’’ of rule
8. I would call it a ‘‘reminder’’ session, or a ‘‘mere warn-
ing’’ session, i.e., one involving no ‘‘punishment,’’ one in
which Anderson was apparently more intent on making sure
that Garcia conformed his future conduct to rule 8’s proscrip-
tions than in investigating the truth or falsity of Lyle’s accu-
sations against Garcia, much less in punishing Garcia based
on Lyle’s accusations.85
To extend the Burnup & Sims analysis applied in Keco to
sessions such as this one, where the employer takes no action
to impair the supposedly offending employee’s job status or
tenure, not even to the extent of placing an adverse entry in
the employee’s personnel file, is not clearly authorized by
Keco, nor by the authorities which informed that decision. I
judge it unlikely that these holdings were intended to be ap-
plied so mechanically as to put an employer in legal jeapordy
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
86 In so finding, I have reviewed the testimony of the General
Counsel’s three witnesses concerning Sam’s activities, Lewis Garcia,
and sewing department workers Heang Kim Sem and Martha
Pimentel, and the testimony of Stanton’s witnesses Anderson,
Gonzales, and Zurilgen, further described infra. This combined testi-
mony will support a finding that Sam broadcast such messages
‘‘several’’ times, perhaps as many as four, but this latter total would
require me to place greater reliance on Garcia’s and Heang Kim
Sem’s memories than I would prefer, given the frailties each
showed. Neither would I aggregate the number of instances each of
these witnesses described to determine the total number of times
Sam made such broadcasts. I deem it probable that in many cases
they were describing the same broadcast, as each of them variously
heard it from different locations in the plant, and as they variously
understood it over the din of the plant floor.
87 The amplified PA mode was used for a variety of purposes, for
example as a paging system, or by supervisors to deliver a message
to the assembled department workers. Sometimes a nonsupervisory
employee would use the same system for some work-related pur-
pose. Lewis Garcia acknowledges having done so himself, ‘‘all the
time.’’
88 Gonzales testified that Anderson used a similar explanation for
taking no action when Gonzales reported to Anderson that he had
simply because the employer, in good-faith, verbally coun-
sels with a prounion employee about a supposed rule viola-
tion without first ‘‘investigating’’ the underlying facts and
assuring itself that the employee was probably guilty of the
supposed offense. Under Keco and the precedents which in-
formed that decision, this may well be the practical burden
under which an employer labors if the employer is bent on
administering ‘‘discipline’’ to the supposedly offending em-
ployee. But absent palpable disciplinary action, I think the
employer’s good-faith belief of misconduct is sufficient de-
fense to a mere verbal warning to an employee not to violate
a lawful company rule in the future. Thus, I conclude that
even if Anderson’s information from Lyle was inaccurate,
Stanton did not violate Section 8(a)(1) merely because An-
derson relayed to Garcia what he had heard, and warned him
against future violations of rule 8.
I emphasize, however, that if it can be demonstrated that
Stanton chose to ‘‘counsel’’ with, or ‘‘remind,’’ or ‘‘warn’’
only ‘‘pro-union’’ employees believed to have violated rule
8, this would change the analysis. Thus, I return next to the
‘‘disparate enforcement’’ claims which seem originally to
have inspired the General Counsel’s decision to prosecute
Anderson’s August 24 statements to Garcia.
c. The adequacy of the General Counsel’s evidence of
disparate enforcement of the rule
The General Counsel seeks ultimately to have me compare
how Anderson dealt with Garcia on August 24 with how An-
derson—or Stanton as an institution—dealt with, or failed to
deal with, other arguable violations of rule 8. The General
Counsel’s proof of disparity falls into two categories, and
each category of proof has its own difficulties, as I explain
next.
(i) ‘‘Sam’s’’ antiunion broadcasts on the plant intercom
The complaint suggests in one count the existence of a
pattern of company tolerance of ‘‘anti-union’’ violations of
rule 8 ‘‘throughout October.’’ The proof focuses on the
antiunion statements made over the plant public address sys-
tem by a mechanic associated with the sewing department
named Sam Sao, known to most employees only as ‘‘Sam.’’
The proof is fragmentary, and especially difficult to put to-
gether into a reliable sequence, largely because the witnesses
were either vague about the dates in question, or even when
purporting to recall specific dates, they sometimes left
grounds for doubting the reliability of those specific memo-
ries.
From the totality of the testimony, I find that Sam Sao
used the PA system on several occasions to broadcast brief
messages, such as ‘‘Vote no Union,’’ or ‘‘Union no good,’’
during the final week or weeks of the election campaign.86
Based on a credible point of convergence in the testimonies
of Lewis Garcia and Martha Pimentel, I find that the last
time Sam made such a broadcast was on the day before the
election, on October 29, when Sam used the loudspeaker to
direct remarks at Garcia, as he was passing through the plant.
On that occasion, I find, Sam said words closely to the ef-
fect, ‘‘Lewis Garcia! Union no good.’’
It is worth pausing to describe the PA system: Witnesses
for both parties agree that each department had its own tele-
phone, which could be used to broadcast messages over a
loudspeaker, to a greater or narrower audience, depending on
which buttons were pushed.87 Thus, someone speaking on a
department telephone in the PA mode might be heard either
throughout the plant, or simply within the vicinity of the PA-
user. A switch in the walled-off company office areas en-
abled persons in the offices to tune in on these in-plant PA
transmissions, but the office people normally kept that switch
off, because plant transmissions were frequent and distract-
ing.
On an uncertain date in or near the last week in October,
sewing employee Heang Kim Sem complained to Zurilgen
that Sam was using the ‘‘intercom’’ to broadcast antiunion
messages. Zurilgen soon passed this complaint to Anderson.
Anderson admits that he ‘‘didn’t do anything right off the
bat,’’ but ‘‘probably a few days’’ later, as he was walking
through the plant at quitting time, he says he recognized
Sam’s voice making a statement (presumably an antiunion
one, although Anderson was no more specific) over the PA.
Gonzales likewise described having heard Sam make such a
broadcast in this period, just after the bell sounded at quitting
time, and he says that he mentioned this to Anderson. The
‘‘next morning,’’ says Anderson, he called Sam into his of-
fice, along with Gonzales, where he ‘‘just told Sam that I
heard him on the speaker the night before, and I didn’t want
him on it no more.’’ Gonzales testified in substantially simi-
lar terms about what Anderson said to Sam.
Apparently seeking to explain why he delayed acting on
Zurilgen’s report until he personally heard Sam make a state-
ment on the PA system, Anderson testified that on another
occasion in this period, he heard Garcia broadcast a
prounion message over the loudspeaker, but chose not to
make an issue of this with Garcia. Garcia never denied hav-
ing done so. Two other witnesses, Gonzales, and sewing em-
ployee Elsie Rodriguez, credibly testified that they heard
Garcia use the loudspeaker to broadcast prounion messages;
Rodriguez says she heard Garcia do this more than once. I
credit Anderson that he directly heard Garcia on one such
occasion, but ignored the offense, wishing ‘‘[j]ust to . . .
keep trouble down, or not bother.’’88 I infer from his testi-
855STANTON INDUSTRIES
heard Garcia make a prounion broadcast, probably the same one An-
derson had heard.
89 In a suspiciously large number of cases, Garcia—and only Gar-
cia—became the source of evidentiary elements important to the
General Counsel’s theory of prosecution. His embellished version of
his August 24 meeting with Anderson, supra, was perhaps the most
obvious example of this phenomenon. Here, too, I suspect that Gar-
cia’s convenient, but uncorroborated recollections about Sam’s
broadcasts during the TSP building meeting reflect invention on his
part.
90 G.C. Br. at 21. Strikingly, the General Counsel does not cite as
evidence of disparity in treatment Garcia’s (discredited) claim that
Anderson required him to sign some kind of written warning notice.
91 Tomas testified, in substance, as follows: On or about October
24, he saw Packing Supervisor Phanvongsa handing out printed bet-
ting sheets to employees during worktime and in a work area. Tomas
approached Phanvongsa and asked for one, whereupon Phanvongsa
gave one to him, which Tomas retained and furnished as evidence
during the investigation of these cases, and which was received in
evidence as G.C. Exh. 13.[*] Phanvongsa, showing discomfort, and
testifying evasively, grudgingly admitted that he had once given such
a sheet to Tomas. He said it was during ‘‘lunch’’ time, which I dis-
believe. He tried to leave the impression that this was a one-time
incident. I have my doubts, for Phanvongsa explained that he was
unable to identify G.C. Exh. 13 as the sheet he had given to Tomas
because he had printed so many such sheets for different weekends’
games that he could no longer recall which one he had given to
Tomas.
[*] The sheet Tomas got from Phanvongsa was a list of the forth-
coming weekend’s college and professional football games and the
point spread for each game; it included lines at the bottom where
the bettor was to place his or her ‘‘name’’ and the ‘‘amount’’ of
the bet.
92 Garcia testified, in substance, that ‘‘Khanh Nguyen’’ (i.e., the
plant manager) [*] regularly solicited bets on sporting events from
Garcia and other employees, and recorded them in a ‘‘notepad,’’ and
collected or paid off on those bets, mostly during worktime and in
work areas, and did so throughout 1991 and 1992. Garcia specifi-
cally recalled in this regard that Nguyen had solicited bets on a prize
fight in the summer of 1992, and on the 1992 World Series playoff
games, in September. Nguyen did not entirely deny Garcia’s descrip-
tions of his activities, but insisted that he ‘‘quit doing that’’ some-
time in 1991. Later, however, he contradicted himself, admitting
having bet with Garcia and other employees on a prize fight in the
summer of 1992. Overall, he seemed to evade, trim, or equivocate.
I found Nguyen’s testimony on these matters quite unimpressive.
Even after allowing for a seeming tendency on Garcia’s part to ex-
aggerate the frequency of his betting encounters with Nguyen, I
would accept the substance of Garcia’s testimony—that Nguyen reg-
ularly solicited employees to bet on sports events, maintained a note-
book record of these bets, and paid off or collected on those bets,
during working time and in working areas.
[*] Here, I observe incidentally, the General Counsel accepts that
when Garcia said ‘‘Khanh Nguyen,’’ whom Garcia called the ‘‘Plant
Foreman,’’ he really meant Khanh Nguyen, the plant manager. Pros-
ecuting counsel’s motion to ‘‘correct’’ the record only goes to in-
stances where Garcia (and the attorneys who questioned him), al-
though apparently referring to department ‘‘foreman’’ Hung Nguyen,
also used the name ‘‘Khanh Nguyen.’’
mony that he gave Zurilgen’s report of Sam Sao’s broadcasts
similarly low priority, until he heard Sam issue yet another
broadcast.
Zurilgen specifically denied ever having personally heard
Sam make such broadcasts. Anderson and Gonzales imply
that the only time they heard Sam make such broadcasts was
the one which caused Anderson to remonstrate with Sam the
next day. The only evidence suggesting that company agents
had additional knowledge of Sam’s activities beyond those
just described can be found in Garcia’s uncorroborated testi-
mony that Anderson and Zurilgen were at a meeting in the
‘‘TSP building,’’ attended by about 30 English-speaking em-
ployees, when Sam’s antiunion vocalizations came over the
loudspeaker at least twice. In his testimony, Garcia said that
this occurred about ‘‘three weeks before the election.’’ In a
pretrial affidavit given on December 15, however, he said
that this meeting occurred on October 22. Zurilgen specifi-
cally denied having heard such remarks from Sam in any
meetings held in this period, all of which she claims to have
attended. Anderson was not questioned about this. I would
not rely on Garcia’s testimony to find that company man-
agers knew about Sam’s activities before they admit to hav-
ing learned about them.89
Because the timing of all the events described above is not
clear, I cannot find that Sam violated Anderson’s instruction
not to use the louspeaker anymore, much less that he did so
in a way that came to the attention of company supervisors
or managers. Rather, all incidents of Sam’s activities de-
scribed by the General Counsel’s witnesses could be found
to have taken place either before the uncertain date when
Heang Kim Sem complained to Zurilgen, or during the inter-
val of ‘‘a few days’’ described by Anderson between the
point Zurilgen passed on this complaint to him and the un-
certain date he remonstrated with Sam.
The General Counsel relies on Anderson’s descriptions to
argue that Anderson treated Sam Sao’s offense far more
lightly than he treated Garcia’s supposed offense. But the
General Counsel’s comparisons also assume, contrary to my
findings above, that Garcia’s account of his August 24 ses-
sion with Anderson is the more reliable one. Thus, on brief,
the General Counsel cites Garcia’s discredited testimony that
Anderson threatened to take ‘‘drastic action’’ against Garcia
for any future violations, and contrasts this with Anderson’s
failure to issue a comparable ‘‘threat of such severe future
action’’ to Sam.90 When I compare the credited evidence
concerning Anderson’s handling of the two incidents, I reach
conclusions quite opposite to those urged by the General
Counsel. I find that Anderson handled both Garcia’s sup-
posed infraction and Sam’s in substantially similar ways, by
telling each employee, in effect, to knock it off. And clearly,
this finding is incompatible with the General Counsel’s over-
arching claim that Anderson’s treatment of Garcia on August
24 was disparately harsh.
In sum, disparate enforcement cannot be found by compar-
ing these two episodes; therefore, if it can be found at all,
we must look elsewhere for evidence of it.
(ii) Sports betting
The General Counsel also proffered evidence through em-
ployees Alonzo Tomas and Lewis Garcia showing, respec-
tively, that Supervisor Phanvongsa solicited football bets
from employees on or about October 24, and that Plant Man-
ager Nguyen more regularly conducted sports gambling ac-
tivities, tantamount to bookmaking. Phanvongsa and Nguyen
each disputed these accounts, but I credit Tomas’ version of
Phanvongsa’s activities,91 and I substantially credit Garcia’s
depictions of Nguyen’s activities.92 The betting activities
practiced by Nguyen and Phanvongsa were not shown to
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
93 On examination by the General Counsel, Anderson agreed in
general terms that the plant ‘‘rules’’ applied equally to supervisors,
and this would permit a finding that rule 8 was ‘‘violated’’ by
Nguyen and Phanvongsa when they took bets, or paid off or col-
lected on those bets, on worktime and in work areas. On the other
hand, I would not make too much of Anderson’s generalized conces-
sion: If the ‘‘rules,’’ especially rule 8, really applied to ‘‘super-
visors,’’ then I would be forced to conclude that the Company’s
preelection campaign meetings, conducted during worktime by An-
derson and other company managers before a ‘‘captive audience’’ of
workers, were equally ‘‘violations’’ of rule 8. Yet the General Coun-
sel does not cite these campaign meetings as evidence of company
tolerance of ‘‘antiunion’’ violations of the rule; nor am I aware of
any Board precedent that would rely on the worktime antiunion cam-
paign activities of supervisors or managers to find unlawful ‘‘dispar-
ity’’ in the enforcement of an otherwise lawful no-solicitation rule
against an employee’s violation of the rule. Put another way, we may
presume, despite Anderson’s generalized concession, that supervisors
and managers were, at least for some important purposes, exempted
from rule 8’s proscriptions. And this makes it dubious at the outset
to cite solicititation activity by supervisors or managers as evidence
of proscribed disparate enforcement.
94 ‘‘I told him that I know what the rules are. And that I myself
go around telling the rest of the committee for the union those same
rules. Because I know what the rules are, and I stay with them.’’
95 The General Counsel devotes one sentence—a perfunctory and
conclusionary one—to the claimed ‘‘impression of surveillance’’
violation pleaded in complaint par. 6(i)(3), supra. She states (Br. p.
21):
Moreover, this [August 24] conduct by Respondent created the
impression that Garcia’s union activities were under surveil-
lance.
I find that nothing in the credited evidence of what Anderson said
to Garcia on August 24, nor even in Garcia’s more embellished ver-
sion, would reasonably support the claim that Anderson’s remarks
tended to create the impression that the Company was spying on em-
ployees’ union activities, as distinguished from merely taking notice
of them when they were conducted openly on the plant floor.
96 These findings are based on a comparison and integration of in-
formation from Anderson’s and Zurilgen’s summary explanations of
the pay system, the ‘‘Wage Guidelines’’ exhibits described below,
and R. Exh. 16 (July 1988 ‘‘benefits’’ summary).
97 Crediting Anderson, the attendance incentive pay program was
started in 1990 at Stockton. Under this program, employees meeting
a certain standard of attendance (apparently, ‘‘perfect’’ attendance)
within a pay period receive extra pay for each hour worked in that
period.
98 NLRB v. Exchange Parts Co., 375 U.S. 405 (1964).
have been known to Anderson, and therefore I could not find
that he ‘‘tolerated’’ them.
I sum up the pertinent, credible evidence arguably support-
ing the General Counsel at this point, and make additional
observations: Phanvongsa’s and Nguyen’s gambling activities
obviously involved ‘‘solicitations’’ of a sort, but ones unre-
lated to the IUE or the preelection campaign, and they were
not conducted by employees, but by two members of com-
pany management. This arguably reveals, favorable to the
prosecution, that Nguyen and Phanvongsa, as members of the
Company’s management team, ‘‘tolerated’’ their own argu-
able ‘‘violations’’ of rule 8.93 And we know that, despite the
gambling activities of the two supervisors, Anderson sought
on two occasions to curb supposed rule 8 violations involv-
ing election campaign activities by two employees, one
prounion, one antiunion.
I find it difficult to draw an inference of proscribed ‘‘dis-
parate’’ enforcement simply because Anderson remonstrated
with Garcia—and equally with Sam Sao—over a violation of
rule 8, but failed to curb Phanvongsa’s and Nguyen’s gam-
bling activities, especially where Anderson was not shown to
have been aware of them. To find for the General Counsel
on this point would require me to hold that the ‘‘above-the-
law’’ activities of two members of management somehow
created a legal situation in which Anderson was powerless to
tell employees (prounion and antiunion alike) he believed to
be involved in election campaign activities violating rule 8
not to do it anymore. I think such a holding would be an
unreasonably strained one on these slender facts. Proof of the
gambling activities of Phanvongsa and Nguyen is not enough
to establish that rule 8 had become a dead letter in daily
plant life. Garcia’s description of his August 24 session with
Anderson clearly reveals that he believed that rule 8 still had
meaning and vitality in the plant;94 his only objection to An-
derson’s accusations was that they were inaccurate.
For all these reasons, I remain unpersuaded that Ander-
son’s verbal warning to Garcia on August 24 had any reason-
able tendency to ‘‘interfere with, restrain, or coerce’’ em-
ployees in the lawful exercise of their Section 7 rights.95 I
would therefore dismiss all counts in the complaint relating
to this incident.
B. August 24 Pay Increases
1. Introduction; legal setting; burdens
At least since July 1990, and probably for years before
then, Stanton has maintained what might loosely be called a
‘‘three-tier’’ pay system for its hourly employees at Stock-
ton. Under this system, all inexperienced new hires start at
the plant-wide ‘‘Minimum’’ hourly rate, without regard to
their job classification. However, at intervals of roughly 30
days (assuming satisfactory performance), they get raises
which bring them first to a ‘‘Limited’’ rate established for
their particular job classification (denoting competence in the
basic skills of the job), and eventually, to the ‘‘Unlimited,’’
or ‘‘top’’ rate established for their particular job.96 Since
1990, on top of these rates, Stanton has paid a fixed hourly
premium amount to employees with good attendance records,
a premium known as ‘‘attendance incentive pay.’’97
On August 24, about 2 weeks after Stanton learned of the
IUE’s organizing drive, and only a few days after the IUE
filed its election petition, Stanton granted and announced a
4-percent raise in hourly pay to all hourly paid employees at
Stockton, in all job classifications, and at all pay levels. On
the same date it also announced a raise of 5 cents in the at-
tendance incentive premium. The General Counsel contends
that both of these increases amounted to unlawful grants of
benefits made to influence the outcome of the election. Stan-
ton seeks a finding that the coincidence in the timing of the
increases and the election campaign was just that and nothing
more, because the increases were ‘‘annual’’ ones, granted
and announced historically at roughly this same time each
year.
The Supreme Court’s 1964 decision in Exchange Parts98
recognized,
[t]he danger inherent in well-timed increases in benefits
. . . the suggestion of a fist inside the velvet glove . . .
857STANTON INDUSTRIES
99 Id. at 409.
100 292 NLRB 510, 525–526 (1989), citing several cases, including
Village Thrift Store, 272 NLRB 572 (1983), where the Board im-
plied a ‘‘presumption’’ of sorts when it said (emphasis added),
A grant or promise of benefits made during an organizational ef-
fort will be considered unlawful unless the employer can provide
an explanation, other than the organizational activity, for the
timing of the grant or announcement. Thus, the Board requires
that an employer show by objective evidence that it would have
made the same grant or announcement of benefits had the union
not been present. [Ibid. citing Singer Co., 199 NLRB 1195,
1196 (1972), enfd. 489 F.2d 269 (10th Cir. 1973).]
101 292 NLRB 510 fn. 2.
102 221 NLRB 700 (1975), enf. denied 543 F.2d 1085 (4th Cir.
1976).
103 Quoting Litton, supra, 221 NLRB at 701; emphasis in original.
104 B&D Plastics, 302 NLRB 245 (1991).
105 302 NLRB at 245; my emphasis. For another formulation of
the employer’s rebuttal burden, see, e.g., Village Thrift Store, 272
NLRB 572 (1983):
the Board requires that an employer show by objective evidence
that it would have made the same grant or announcement of
benefits had the union not been present. [Ibid.] [*]
[*] Citing Singer Co., 199 NLRB 1195, 1196 (1972), enfd. 489
F.2d 269 (10th Cir. 1973) (‘‘a grant or promise of benefits made
during an organizational effort will be considered unlawful unless
the employer can provide an explanation, other than the organiza-
tional activity, for the timing of the grant or announcement.’’).
106 It is clearly also part of the employer’s burden in appropriate
cases to demonstrate that the ‘‘size’’ or ‘‘amount’’ of even an other-
wise innocently ‘‘timed’’ increase would have been the same, absent
the pendency of an election or an organizing effort. E.g., B&D Plas-
tics, supra, 302 NLRB at 245, listing ‘‘the size of the benefit con-
ferred in relation to the stated purpose for granting it’’ as one of four
‘‘factors’’ the Board examines ‘‘to determine whether granting the
benefit would tend unlawfully to influence the outcome of the elec-
tion.’’ See also Village Thrift, supra, imposing ‘‘require[ment]’’ that
employer ‘‘show by objective evidence that it would have made the
same grant or announcement of benefits had the union not been
present.’’ 272 NLRB at 572; my emphasis. Here, although I find
nothing in the General Counsel’s arguments that might be taken as
an independent attack on the ‘‘size’’ of the August 24 increases, I
will consider this element in reaching my ultimate conclusions.
the inference that the source of benefits now conferred
is also the source from which future benefits must flow
and which may dry up if it is not obliged.99
The sampling of cases discussed below leaves no doubt that
the Board, inspired by the same recognition, will closely
scrutinize increases in wages or other benefits conferred dur-
ing an organizing or preelection period. It is somewhat less
certain from the variety of formulations in the precedents,
however, where the Board stands on more subtle questions
affecting the allocation and nature of the parties’ respective
burdens of proof in cases like these. On brief, the General
Counsel argues in this regard (emphasis added):
The Board presumes that any increase in wages during
an organizing campaign has been granted in an effort
to influence the outcome. This presumption arises auto-
matically on the showing of the increase[,] without re-
gard to effect or motive. The burden then shifts to
[Stanton] to establish a legitimate business reason for
the timing of the increase.
In support of this understanding, the General Counsel
cites, and accurately paraphrases, Judge Robert T. Snyder’s
interpretation of precedents in Elston Electronics Corp.100
On exceptions to the Board, Judge Snyder’s interpretations
were apparently adopted by two members of the three-mem-
ber deciding panel (Members Johansen and Higgins), but
Member Cracraft, concurring in the result, ‘‘[did] not adopt
the judge’s analysis that the announcement of a wage in-
crease following commencement of an organizing campaign
is presumptively unlawful.’’101 Rather, she would adopt the
formulation stated in Litton Industrial Products,102 as fol-
lows:
Absent an affirmative showing of some legitimate busi-
ness reason for the timing, it is not unreasonable to
draw the inference of improper motivation and im-
proper interference with employee freedom of
choice.103
More recently, in B&D Plastics,104 the Board likewise es-
chewed the term ‘‘presumption’’ when, characterizing a line
of prior holdings, it spoke of an ‘‘inference that benefits
granted during the critical period are coercive,’’ and con-
strued those holdings as ‘‘permitt[ing] the employer to rebut
the inference by coming forward with an explanation, other
than the pending election, for the timing of the grant or an-
nouncement of such benefits.’’105
The B&D Plastics Board obviously prefers the term ‘‘in-
ference’’ to the term ‘‘presumption,’’ but apparently finds it
entirely reasonable to ‘‘infer’’ from the timing alone that a
pay increase or other ‘‘benefit’’ announced or granted during
a union organizing or preelection campaign will have ‘‘coer-
cive’’ impact on voting unit employees. And this inference
alone, seemingly, will sustain a finding of violation, unless
the employer ‘‘rebut[s] the inference by coming forward with
an explanation, other than the pending election, for the tim-
ing of the grant or announcement of such benefits.’’
I question whether there is much practical difference be-
tween a ‘‘presumption’’ of unlawful coercion and an ‘‘infer-
ence’’ of the same where, under either label, the employer
is clearly put to a ‘‘rebuttal’’ burden once it is shown that
it made a grant or announcement of benefits during a union
organizing or preelection campaign. (Possibly the rebuttal of
an ‘‘inference’’ requires a lower level of proof than the re-
buttal of a ‘‘presumption,’’ but I see no clear instruction in
the cases that this is so.) I will assume for purposes of fur-
ther analysis that the General Counsel’s initial burden of es-
tablishing a prima facie case of unlawful coercion was car-
ried when Stanton admitted counts in the complaint alleging
that the pay increases were announced and conferred on Au-
gust 24, during the critical preelection period. I will further
assume that it fell entirely to Stanton in these circumstances
to ‘‘provide an [innocent, credible] explanation . . . for the
timing of [its] grant and announcement of the [in-
creases].’’106
Based on the undisputed facts narrated below concerning
each of the two types of pay increases in question, I will find
that Stanton, while failing to show an entirely uniform histor-
ical practice, has nevertheless adequately established that its
August 24 increases were consistent with its having granted
quite similar increases almost exactly a year earlier, and with
a more general historical pattern of granting wage increases
in July or August of each year. And I will therefore conclude
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
107 Testimony as follows:
A. MR. ANDERSON: Okay. First, since I come down to Stock-
ton, I have given a raise, or looked at the wages and started
working on wage increases, always around June, July and Au-
gust, since I’ve been there.
Q. MR. CARTER: What steps do you go through?
A. MR. ANDERSON: Well, I start working with Corporate usu-
ally around in June. So that I’ll try to have the raises by July,
but sometimes it fades into August. So, I work with them. And
we come up with different figures and stuff like that. And they
usually give me the go ahead, ‘‘Go ahead Bob we approve it.’’
Q. MR. CARTER: Okay. And that’s the process you went
through in 1991?
A. MR. ANDERSON: Yes.
Q. MR. CARTER: And is that the process you went through in
1992?
A. MR. ANDERSON: Yes.
108 Anderson authenticated a document, R. Exh. 27, as a rough-
form internal memo he received from headquarters on August 18,
authorizing the ‘‘annual increase’’ in question. He recalled further
that when the ‘‘4 percent’’ figure was arrived at by headquarters of-
ficials, they explained it to him as being in line with the most recent
year’s percentage increase in the ‘‘cost of living.’’ Stanton made no
attempt further to particularize or rationalize the amount of the raise;
the prosecution made no attempt to show that the rise in the ‘‘cost
of living’’ during the relevant period was not 4 percent.
109 Neither Zurilgen nor Anderson was certain of the exact date of
the posting of the ‘‘July 1990’’ bulletin. Zurilgen stated, ‘‘I would
assume it was effective in August but I can’t actually tell you. We
always do it the same time.’’ Zurilgen, the custodian of these
records, identified the ‘‘July 1990’’ handwriting as that of the office
manager, Marla Yagi, and speculated that Yagi made that notation
after the guidelines were printed, but possibly before the guidelines
were posted. I am satisfied from Zurilgen’s testimony that the 1990
guidelines were posted in either July or August 1990. I cannot see
how it might affect the result to determine the question of timing
more precisely.
110 Thus, ‘‘Minimum’’ pay under the ‘‘July 1990’’ guidelines bul-
letin was $4.50/hr., and this rate did not change in the August 26,
1991 guidelines bulletin, but it did increase by 4 percent, to
$4.68/hr., in the August 24, 1992 guidelines bulletin. This is Ander-
son’s explanation why, in August 1992, unlike in August 1991, the
Company had included ‘‘Minimum’’ pay levels in the 4-percent in-
crease:
A. MR. ANDERSON: Yes. I changed that and moved it up the
ladder. I asked him, because to see if it would help us get peo-
ple, we were hiring people, you know give them more money
when they start. See if we can get, you know, more people to
want to get in there and go to work right away.
Q. MR. CARTER: Were you having trouble at your other rates
and—
A. MR. ANDERSON: Yes.
Q. MR. CARTER:—hiring new employees?
A. MR. ANDERSON: Yes we did, yes.
111 A ‘‘Benefits’’ summary sheet, dated July 12, 1988 (R. Exh.
16), indicates that the ‘‘minimum starting wage’’ was then ‘‘$4.25
per hour.’’ The ‘‘July 1990’’ exhibit shows that the ‘‘Minimum’’
rate was $4.50. It is therefore clear that at some point or series of
points between July 1988 and July 1990, ‘‘Minimum’’ pay had been
bumped up by 25 cents.
that this proven history amounts to a plausible ‘‘explanation,
other than the pending election,’’ for the August 24 in-
creases, one which also makes it unlikely that employees
would see the August 24 increases as attempts by Stanton to
buy their votes in the forthcoming election.
2. Details
a. Percentage increases in basic hourly pay
The 4-percent, across-the-board raise was made known to
employees on August 24, when Zurilgen posted a new
‘‘Wage Guidelines’’ notice on the plant bulletin boards. That
bulletin listed all ‘‘hourly’’ job classifications, and the new
rates to be applied to each position, ‘‘[e]ffective August 24.’’
When Zurilgen posted this bulletin, she simultaneously re-
moved a counterpart ‘‘Wage Guidelines’’ notice bearing the
effective date ‘‘August 26, 1991,’’ which had been posted
throughout the previous year, and which reflected the wage
rates governing during that year. The August 24 bulletin
made no mention of the organizing campaign, nor the pend-
ency of the election petition, both of which were by then
known to Stanton. Indeed, the bulletin was no different in
general layout and content from similar ‘‘Wage Guidelines’’
bulletins previously issued, as further described below.
From Anderson, echoed in part by Zurilgen, I find that for
many years, Stanton’s corporate-level officials in Portland
typically reviewed hourly pay levels once each year, in the
June–August period, and authorized Anderson to announce
increases pursuant to these reviews, usually in July or Au-
gust. (From Zurilgen, I find that Stanton traditionally pub-
licized these annual increases by posting a new ‘‘Wage
Guidelines’’ bulletin, and removing the old one, just as
Zurilgen had done on August 24.) Anderson testified that the
same review and announcement process was followed in the
summer of 1992 that had been followed in previous years.107
More specifically, Anderson testified that he had asked
‘‘Corporate’’ in or about June for permission to make an
‘‘across-the-board’’ increase, without recommending any per-
centage amount, and finally got written authorization on Au-
gust 18 to grant a 4-percent raise, an authorization that also
included instructions to Zurilgen to record the raise on em-
ployees’ paycheck statements as an ‘‘annual increase.’’108
Stanton introduced copies of two previous ‘‘Wage Guide-
lines’’ bulletins, the one already described, showing wage
rates ‘‘Effective August 26, 1991,’’ and another one showing
no ‘‘effective’’ date, but bearing the handwritten note, ‘‘July
1990.’’ This latter exhibit, I find, reflects the new wage
schedule arrived at in or about July 1990, and made ‘‘effec-
tive’’ either in July or August of that year.109 By comparing
a sampling of wage rates for the same jobs listed in each of
these two exhibits, I find that the August 26, 1991 raise had
also been a 4 percent one, but one applied only to persons
above the starting, or ‘‘Minimum’’ pay level.110 I cannot
make a similar comparison to determine the percentage in-
crease in wages reflected in the ‘‘July 1990’’ exhibit, be-
cause it is the most historically remote one introduced by
Stanton, and there is no other evidence of the wage rates
being paid immediately before the rates shown on that ex-
hibit went into effect.111
b. Increases in the attendance incentive premium
The attendance incentive increase of 5 cents per hour (rais-
ing the incentive premium from 35 cents per hour to 40
cents) was announced by Anderson in a separate memoran-
dum, ‘‘To All Hourly Employees,’’ also dated August 24,
and also posted on the bulletin board. From Anderson, I find
that he had specifically recommended the 5-cent incentive
859STANTON INDUSTRIES
112 On cross-examination, Anderson elaborated as follows:
A. MR. ANDERSON: Yes. I told them I’d like to raise it an-
other five cents. That it’s good. That it’s working for the people,
and it’s working good for us.
Q. MS. MARCOTTE: And what factors did you consider when
you decided to propose a nickel increase?
A. MR. ANDERSON: Just kind of off the hip I guess. I mean,
I want to give them another nickel, and they okayed it.
113 Judge Snyder’s discussion of this point in Elston Electronics,
supra (292 NLRB at 526), cited by the General Counsel, itself cites
Village Thrift Store, supra. In Village Thrift, the Board recognized
the existence of a potential ‘‘Hobson’s choice’’ problem for an em-
ployer who, in the past, had granted benefits in a ‘‘haphazard fash-
ion,’’ and who therefore could not ‘‘show by objective evidence that
it would have made the same grant or announcement of benefits had
the union not been present.’’ Id. 272 NLRB at 572. And in that con-
text, the Board found it legally privileged for the employer to have
announced in November, shortly after the union had filed an election
petition, that wages would be ‘‘frozen’’ pending the resolution of the
union matter. Ibid.
114 Although the General Counsel does not emphasize these facts,
I note that the August 24 increases differed from the August 1991
increases (the 1991 increases) in two ways, described below, and
therefore the August 24 increases were not entirely ‘‘consistent’’
with the ‘‘precedent’’ established by the 1991 increases: Thus, the
1991 boost in attendance incentive pay had been 10 cents, whereas
the counterpart incentive increase granted on August 24 was only 5
cents. But this does not aid the prosecution, for it tends to negate
any ‘‘inference’’ that the August 24 incentive increase was intended
by the Company, or would be seen by employees, as an unprece-
dented display of generosity. Cf. B&D Plastics, supra, 302 NLRB
at 245. On the other hand, however, the 4-percent across-the-board
raise in hourly pay granted on August 24 applied to all pay levels,
whereas the 1991 increase of 4 percent had not applied to the ‘‘Min-
imum’’ pay level of $4.50/hr., which remained the same as it had
been in 1990. To that extent, the challenged August 24 raise of 4
percent was truly an ‘‘across-the-board’’ one, whereas the 1991
counterpart raise had been somewhat more limited in scope. But the
arguable ‘‘generosity’’ on the Company’s part in applying the Au-
gust 24 increase to the ‘‘Minimum’’ pay level is of doubtful help
to the prosecution. It was adequately ‘‘explained’’ in terms ‘‘other
than the pending election’’ by Anderson, who noted simply that the
‘‘Minimum’’ pay level had remained fixed for 2 years at $4.50, thus
making it plausible that the Company would have determined in Au-
gust 1992 in the interests of wage competitiveness alone to apply the
4-percent raise to the Minimum pay level. (I recall too, as previously
noted, that ‘‘Minimum’’ pay had been raised at least once in the
past, sometime between July 1988 and July or August 1990.) In any
Continued
raise in earlier discussions with ‘‘Corporate’’ officials,112 and
received authorization on August 18, at the same time he
was given the go-ahead to confer the 4-percent, across-the-
board hourly pay increase.
In his August 24 memorandum, Anderson stated that the
increase was being given ‘‘in hopes that there will be a
lower percentage of tardiness and absenteeism.’’ He also
noted an ‘‘improvement in [employees’] individual attend-
ance,’’ and exhorted employees to help the Company achieve
its ‘‘goal of perfect attendance each pay period.’’ Finally, he
announced his intention to ‘‘re-evaluate this program in July
1993 at which time I hope to see an even greater improve-
ment . . . .’’
On August 26, 1991, Stanton had raised the attendance in-
centive premium by 10 cents, from 25 to 35 cents. And An-
derson had likewise announced this 1991 increase by the de-
vice of a ‘‘Memorandum to Employees,’’ dated August 23,
1991, which was nearly indistinguishable in format and con-
tent from Anderson’s August 24, 1992 memorandum. Most
notably, in the August 23, 1991 memorandum, Anderson had
announced:
I will be re-evaluating this program in July 1992. At
that time I hope to see an even greater improvement.
3. Concluding analyses
As to the 4-percent hourly raise announced and granted on
August 24, I find from all of the foregoing that employees
would reasonably anticipate that Stanton would announce
new ‘‘Wage Guidelines’’ annually, in July or August. Thus,
setting aside for the moment the ‘‘size’’ or scope of the Au-
gust 24 increase, I find it unlikely that the posting of new
‘‘Wage Guidelines’’ on August 24, standing alone, would
arouse employees to suspect an election-related attempt by
the Company to buy their votes. I have a similar reaction
concerning the 5-cent raise in the attendance incentive pre-
mium, also announced on August 24. Thus, roughly a year
before the IUE appeared on the scene, Anderson had raised
the incentive premium by 10 cents an hour, and had issued
a memorandum which promised a July 1992 review of the
incentive premium, and which implied that the premium
might be raised again if overall attendance improved. Be-
cause of this I again find it doubtful that employees would
be surprised by Anderson’s August 24 annnouncement and
grant of an increase in incentive pay, or that they would see
it as having been inspired by the IUE’s recent appearance on
the scene.
The General Counsel concludes the portion of her brief
dealing with the wage increases with this argument (Br. pp.
23–24; emphasis in original):
The most critical element . . . is the fact that [Stanton]
did not actually make the decision to grant the wage in-
crease until after it had knowledge of the organizing
campaign. At that point [Stanton] could have lawfully
chosen to defer the increase and even advise the em-
ployees it was doing so until the campaign was over in
order to avoid the appearance of any interference. Rath-
er, [Stanton] chose to grant the increases just two
weeks after the Union’s open announcement of its . . .
campaign and despite the absence of any historical
precedent for such increases in August.
The General Counsel’s implicit argument is that Stanton,
aware by August 24 of the IUE campaign and the pending
election petition, owed—and violated—a statutory duty to
‘‘defer the increases,’’ at least where there was no ‘‘histori-
cal precedent for such increases in August.’’ If, indeed, there
had been no ‘‘historical precedent’’ for the August 24 in-
creases, then there might exist some indirect support in the
cases for the General Counsel’s suggestion that Stanton owed
a duty to defer them until after the election.113 But in fact,
there was historical precedent for the granting of both per-
centage wage increases and attendance incentive pay in-
creases, ‘‘in August.’’ Clearly, both types of increases had
been granted and announced almost exactly a year earlier,
when no union was in the picture. And the amounts of the
1991 increases were not suspiciously different from those
granted and announced on August 24, 1992.114 Moreover,
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case, the record suggests that only a relative few of the hourly em-
ployees at any given point would be receiving ‘‘Minimum’’ pay, i.e.,
only those employees who had not yet completed 30 days of work.
Thus, the inclusion of the ‘‘Minimum’’ category in the 4-percent
raise on August 24 was unlikely to have had impact on any but a
small number of workers, and to that extent, this inclusion alone was
too subtle and marginal to give rise to an ‘‘inference’’ of improper
motive on the Company’s part, or of ‘‘coercive’’ impact on the unit
employees.
115 Despite the absence of documentary corroboration of pre-1990
‘‘practice,’’ I found Anderson’s and Zurilgen’s uncontradicted de-
scriptions of the Company’s historical pattern of granting annual pay
increases in July or August sufficient to establish that such a gener-
alized practice existed. But Stanton’s judgment not to introduce
‘‘Wage Guidelines’’ or other records showing details of pay prac-
tices prior to 1990 makes it impossible to know those details. For
this reason I would not assume that the amounts of pre-1991 annual
raises in wages were similar to those shown to have been granted
in 1991 and 1992. However, such pre-1991 details, whatever they
were, would be of little ultimate significance in this case, because
of their historical remoteness. Put another way, I find that the docu-
mented evidence revealing that the Company had granted increases
by no later than August in the 2 years preceding its challenged Au-
gust 24 increases was the most centrally relevant evidence of a
‘‘precedent’’ for the August 24 increases, because it shows what the
Company had done more recently, but still at a time when there was
no union in the picture.
116 The record fails to indicate exactly how the previous paystubs
looked, but Zurilgen testified that, previously, the attendance incen-
tive pay had been obscured within a single, ‘‘total’’ pay figure.
117 I credit Anderson that he invoked employee ‘‘confusion’’ about
incentive pay calculations when he talked about the paystub change
in employee meetings. No one contradicted him; and employee
Lewis Garcia agreed that in the meeting he attended, Anderson ex-
plained that the paystub layout had been changed because of such
employee confusion.
118 Thus,
They would come to my office. I’m [in charge of] payrolls, and
they would come to my office and I would help them go over
documentary evidence shows that in either July or August
1990, Stanton had likewise established new pay levels, an-
nouncing them by the posting of the familiar ‘‘Wage Guide-
lines’’ bulletins. Given those precedents, I disagree with the
General Counsel that it is an ‘‘element’’ of ‘‘central’’ signifi-
cance that Stantons’s knowledge of the IUE’s presence pre-
ceded its actual granting and announcement of the increases
in question. Rather, for reasons already stated, I think this
overall history was sufficient to rebut any inference of coer-
cion based either on the timing or amounts involved in the
August 24 grant and announcement of the increases.115 I will
therefore recommend dismissal of the complaint insofar as it
alleges that these increases were unlawful.
C. Other Allegedly Unlawful ‘‘Improvements’’
Relying on the same legal theory and mode of analysis in-
volved in its attacks on Stanton’s wage increases, the Gen-
eral Counsel further alleges, at paragraph 6(f) of the com-
plaint, that Stanton ‘‘[i]mplemented improved terms and con-
ditions of employment in order to discourage employees’
support for the [IUE] by:
(1) On or about September 23, 1992, announcing a
revised payroll check system to highlight incentive pay
amounts;
(2) On or about October 9, 1992,
(i) Changing the payroll check distribution system;
(ii) Changing its mandatory overtime policy and
otherwise improving its preconditions for employees
to receive incentive pay bonuses.
Stanton does not deny having made ‘‘revis[ions]’’ and
‘‘change[s]’’ roughly of the types described in paragraph
6(f), nor even that these changes reflected ‘‘improvements’’
from the employees’ standpoint, but it denies the motivations
imputed to it in this paragraph. Stanton argues that each of
these changes were de minimis in character, and therefore
were not unlawful, but it nevertheless offered ‘‘explanations,
other than the pending election,’’ for having made each of
those changes. The pertinent facts regarding these changes
are relatively simple and almost entirely uncontested. I will
find that these changes were, indeed, so minimal in their im-
port that they would not realistically convey to employees
the proscribed ‘‘suggestion of the fist inside the velvet
glove.’’ Alternatively, even if the timing of these changes
might faintly raise such an inference, I would find that Stan-
ton’s explanations adequately rebutted it.
1. Change in paystub breakdowns
When Stanton handed out paychecks for the payroll period
ending September 19, the checkstubs were in a new format.
In addition to showing the number of regular and overtime
hours worked by the payee, the stubs broke out in a separate
column the amount the worker had earned in attendance in-
centive pay during the payroll period.116 Everyone agrees
that this new format did not in any sense ‘‘change’’ the
hourly pay or incentive pay employees would actually re-
ceive, it only changed the layout of the paystub they got.
On September 23, Anderson publicized and explained
these changes in a memorandum to all employees, stating in
pertinent part as follows:
In the last few months I have received several com-
plaints about the attendance incentive. In hopes to make
it more understandable I have asked payroll to make
some changes so that it will be more simple to under-
stand. . . . We have taken your regular and overtime
hours and figured them at your regular base wage. Then
we have figured your attendance incentive wage (40
cents per hour for your regular hours and 60 cents per
hour for your overtime hours) and entered that figure
in the incentive column on your checkstub.
The memorandum also included a specimen checkstub as an
‘‘example’’ of the new format, and a closing invitation to
employees to see ‘‘Pam’’ [Zurilgen] if they had any ‘‘ques-
tions’’ about the new format. In addition to posting this
memorandum, copies of it were distributed at employee
meetings called by Anderson in the same period. In these
meetings, Anderson repeated messages similar to those set
forth in his memorandum.117 There is no evidence, other
than the timing of the change itself, suggesting that Stanton
tried to make election campaign hay out of this change.
Zurilgen testified that employees often came to her in the
past with questions about the way their attendance incentive
premium pay was figured.118 She also confirmed that such
861STANTON INDUSTRIES
it. If for instance, one pay period they earned the incentive but
the next one they didn’t, they would get confused thinking that
their hourly rate had dropped. And so I would go through it with
them and explain it to them.
119 G.C. Br. p. 32; added emphasis. Similarly, the General Coun-
sel’s principal ‘‘position’’ stated on brief beneath that topic heading
is that the prior ‘‘grant [of the 5-cent-per-hour wage increase] was
unlawful because it was made in an attempt to influence the organiz-
ing campaign.’’
120 Anderson stated that he had once talked to Nguyen about mak-
ing a change to conform to the on-the-clock practice at Stanton’s
other plants, but Nguyen had opposed this, because he feared that
this would effectively curtail production for the remainder of the
shift, as employees stopped working, removed their checks from the
pay envelope, and inspected them.
121 Gonzales substantially corroborated Anderson on this point. He
also confirms that he had attempted in the past to get Nguyen to
change to an on-the-clock distribution scheme, but that Nguyen had
turned a deaf ear.
questions had emerged during ‘‘employee meetings in Au-
gust.’’ (Whether these were ‘‘campaign’’ meetings, or meet-
ings called for other purposes is not clear.) But she further
volunteered that there had ‘‘always been confusion’’ among
employees about how the Company calculated incentive pay.
The complaint emphasizes that the new paystub format
was designed to ‘‘highlight’’ the incentive pay amount, and
of course, Stanton substantially admits this in its explanations
for the change. But is it the ‘‘highlighting’’ alone that the
government attacks? Apparently not, for on brief, the Gen-
eral Counsel is more explicit as to the prosecuting theory of
violation when she states in the heading to her argument,
‘‘[Stanton] Revised its Payroll Check System to Highlight its
Unlawfully Granted Incentive Increase.’’119 I have found that
Stanton’s August 24 increase in the incentive premium was
legally innocent; obviously, therefore, the complaint cannot
be sustained to the extent it depends on a contrary finding.
In addition, however, prosecuting counsel seizes on
Zurilgen’s concession that employees had ‘‘always’’ been
‘‘confus[ed]’’ about incentive pay calculations, and she thus
finds it significant that Stanton nevertheless ‘‘chose to wait
and not respond to the complaints or attempt to allay any
confusion until an organizing campaign was underway.’’ I
am not persuaded by this latter point. First, regardless of the
timing, I think this act of ‘‘responding to the complaints’’ by
clarifying earnings breakdowns on the paystub cannot rea-
sonably be characterized as a ‘‘grant’’ of a ‘‘benefit.’’ Sec-
ond, and relatedly, even if understood as a ‘‘benefit,’’ this
revision in the checkstub was too subtle to have had any rea-
sonable tendency to ‘‘coerce’’ employees in the exercise of
Section 7 rights, or to influence the outcome of the election.
Third, consistent with Anderson and Zurilgen’s summary ex-
planations, the timing of the paystub format change came 3
weeks after Stanton’s (lawful) change in the amount of the
incentive premium, a change which would plausibly trigger
a new round of employee confusion when these increases
began showing up on the next paychecks, and equally plau-
sibly, would explain Anderson’s mid-September choice to
seek to allay this confusion by ordering a change in paystub
format and by issuing an explanatory memo. Thus, even if
this otherwise innocuous ‘‘change’’ invites a full-blown
‘‘grant-of-benefit’’ analysis, I would find that Stanton has
adequately explained it in terms ‘‘other than the pending
election.’’
2. Change in distributing paychecks
On a payday in early October, Stanton admittedly began
a new practice at Stockton of handing out pay checks to em-
ployees minutes before the end of the work shift, while they
were still on the clock, at their work stations. Previously, at
least at the Stockton plant, employees had gotten their pay-
checks only after clocking out at the end of their shift, by
joining a line near the plant exit. This meant that employees
might have to wait an extra 5 to 15 minutes after punching
out before they had their paychecks in hand. All witnesses
testifying concerning this historical, ‘‘off-the-clock’’ pay
practice agreed that this was inconvenient for the employees,
and created management problems, as well, because a bottle-
neck would develop near the plant exit door.
According to Anderson, who authorized the early October
change, this new check distribution system brought Stock-
ton’s practice into line with other Stanton plants Anderson
was familiar with, including its Portland plant, which Ander-
son had earlier managed. Why, then, had Stockton persisted
in its off-the-clock system until early October? Because, ac-
cording to Anderson, that was what plant manager Nguyen
had always wanted, despite Anderson’s earlier suggestions
that the practice might be changed.120 However, says Ander-
son, after Nguyen was transferred to the Phoenix plant on
October 2, Gonzales, his successor, told Anderson he pre-
ferred an on-the-clock distribution system.121 Thus, accord-
ing to Anderson, he deferred to Gonzales’ preference for a
new system, just as he had previously acquiesced in
Nguyen’s preference for a different system.
My reactions to this evidence are nearly identical to those
I expressed in my previous discussion of the September
change in the format of the pay stubs. The change in how
paychecks were distributed was so minimal in terms of its
‘‘benefit’’ to employees that I doubt that its timing alone
would justifiably support an inference of 8(a)(1) coercion or
election interference. And even if a weak inference of coer-
cion was created by the timing of the change, it was ade-
quately rebutted by Anderson’s (and Gonzales’) counterex-
planation for the timing.
3. Lifting of mandatory overtime
Normally, when Stanton required overtime work to keep
current on its production schedule, it sought out volunteers.
However, if volunteers were not available in sufficient num-
bers to meet production demands, Stanton would impose a
period of ‘‘mandatory’’ overtime, where, without regard to
employee preference, employees would receive specific in-
structions, in the form of posted overtime work schedules,
that they were required to put in overtime hours. In late July
or early August, before the IUE made its organizing presence
known, Anderson had decided to impose a new period of
mandatory overtime. He explained from the witness stand
that,
we had a new customer in Montgomery Wards. And we
were so far behind that we were just about ready to
[lose] the account. And we had so much business, at
that time and I was also hiring people, but couldn’t hire
them fast enough and that’s when I threw in that we
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had to go into mandatory overtime in order not to [lose]
the account.
He announced this decision on August 4, in a posted memo
to employees, saying that a recent ‘‘increase of orders from
our customers . . . has forced us to call for mandatory over-
time.’’ He ‘‘recognize[d] that this is a sacrifice for many of
you[,]’’ and expressed ‘‘regret [for] any inconvenience that
this has made for you and your families.’’ He explained that
mandatory overtime would become ‘‘effective’’ on August
10, and that overtime schedules and lists would be ‘‘posted
in advance as such[,]’’ and that ‘‘[m]andatory overtime will
be considered as regular scheduled work time.’’ He warned
that ‘‘if any mandatory overtime is missed, you will [lose]
your attendance incentive.’’ However, he also appeared to
suggest that the Company would be flexible about this, for
he stated, ‘‘Therefore, it will be important that you notify
your Supervisor, Khan [Nguyen] or myself if you are unable
to work the scheduled overtime.’’
On the witness stand, Anderson vaguely agreed with the
suggestion of Stanton’s attorney that, sometime in ‘‘Octo-
ber,’’ he ‘‘backed off of the mandatory overtime.’’ He ex-
plained that this actually began to happen in ‘‘September,’’
when ‘‘we got caught up, got ahead, and the back log had
come down to where I wasn’t in jeapordy of [losing] the ac-
count.’’ He states that he made no ‘‘written announcement’’
when he decided thus to ‘‘back off of’’ mandatory overtime,
but ‘‘just tapered off’’ the overtime assignments ‘‘as . . .
our backlog started coming down.’’ He explained further that
until then, employees ‘‘knew . . . we would need them for
ten hours a day . . . unless we notified them that, ‘‘Hey, you
can go home and stuff like that, which we did.’’ Eventually,
says Anderson (without being specific about the date), the
need for overtime work had tapered down to the point where
‘‘we finally . . . just took the sign [the August 4 notice]
down[,]’’ and thereafter reverted to seeking out volunteers
for any needed overtime.
Thus, from Anderson’s account, it appears that the lifting
of the mandatory overtime regime occurred rather gradually
and undramatically, without particular fanfare, or formal
‘‘announcement’’ of any kind. However, the General Coun-
sel sees it differently. Thus, in what I think amounts to a
substantial exaggeration of the record, she asserts on brief
(emphasis added):
In early October, at about the same time that the meth-
od of distributing paychecks was changed, [Stanton’s]
supervisors informed employees that they would no
longer be required to work overtime in order to be eli-
gible for the attendance bonus.
And this supposed pattern of activity by Stanton’s ‘‘super-
visors’’ in ‘‘early October,’’ becomes fuel for a later argu-
mentative observation by the General Counsel. Thus, discuss-
ing Anderson’s explanations for ‘‘tapering off’’ in ‘‘Octo-
ber’’ from the original mandatory overtime regime, she states
(emphasis added):
No explanation was offered, however, as to why [Stan-
ton] deemed it necessary to announce the change to
employees at that particular time, just a few weeks be-
fore the election.
Critical elements in these assertions and arguments have
no reliable evidentiary predicate. In fact, the only evidence
cited by the General Counsel concerning such alleged
‘‘announce[ments]’’ by ‘‘supervisors’’ is the testimony of
Garcia, about a single exchange with his supervisor, Niemi,
which Garcia was somehow able to recall took place on
‘‘about the 9th of October, more or less.’’ In this conversa-
tion, says Garcia, Niemi,
told me that from now on, if there’s overtime hours to
be worked, but if I need to leave early, just let him
know in advance and that from now on I wouldn’t lose
my incentive pay for leaving early when they request
overtime.
Setting aside doubts about the literal accuracy of Garcia’s
account of the timing and substance of Niemi’s remarks, I
observe that Garcia does not support the General Counsel’s
assertion that, in this instance, Niemi ‘‘informed’’—much
less ‘‘announced’’ to—employees that they would no longer
be required to work overtime in order to be eligible for the
attendance bonus.’’ At most, Garcia’s account would allow
a finding that Niemi told Garcia that he would be excused
from mandatory overtime, without prejudice to his eligibility
for incentive pay, if, (a) he ‘‘need[ed] to leave work early,’’
and (b) he ‘‘let [Niemi] know in advance’’ about that need.
And I further observe that this statement by Niemi did not
distinctly signal a ‘‘change’’ in the policy announced origi-
nally in Anderson’s August 4 memorandum. Thus, in that
memo Anderson told employees, ‘‘it will be important that
you notify your Supervisor, Khan [Nguyen] or myself if you
are unable to work the scheduled overtime,’’ implying that
being ‘‘unable to work the scheduled overtime’’ would not
count against the employee when it came to the attendance
incentive, so long as the employee notified a supervisor or
manager about such inability. In sum, Niemi’s statement to
Garcia can rather easily be harmonized with the existing
mandatory overtime rules, and I would more readily under-
stand Niemi’s remarks, as described by Garcia, as an inter-
pretation of existing policy, not the ‘‘announcement’’ of a re-
version to a ‘‘voluntary overtime’’ regime.
The General Counsel has failed to present substantial evi-
dence that Stanton used ‘‘supervisors’’ to ‘‘announce’’ a lift-
ing of the mandatory overtime rule ‘‘in early October.’’ I do
not doubt Anderson’s testimony that the mandatory overtime
regime withered and fell away by pieces, and that the Com-
pany took no special pains to ‘‘announce’’ this quite gradual
process of reversion to the pre-August 4 status quo. I note
further that it was hardly unprecedented for the Company to
require mandatory overtime, and later to withdraw that re-
quirement when the need no longer prevailed. Thus, it could
have come as no surprise to employees that the mandatory
overtime regime first announced by Anderson on August 4
as something ‘‘required’’ to meet an ‘‘increase in orders
from our customers’’ would eventually be withdrawn, when
the Company caught up with the new orders. For these rea-
sons, I would find it quite unremarkable, and no grounds for
an inference of ‘‘coercion’’ that, months after this particular
period of mandatory overtime was first imposed, the Com-
pany began gradually to limit mandatory overtime assign-
ments, and finally reverted entirely to the voluntary system
prevailing in the pre-August 10 period. And again, even if
863STANTON INDUSTRIES
122 On brief (p. 27), the General Counsel states (emphasis added):
Anderson was unable to testify with certainty that the subject of
strikes or strike replacements was not again discussed at any of
[the other meetings where Anderson said he had used different
scripts]. Thus it is entirely possible that the speech which Garcia
testified about was one of the other speeches delivered by An-
derson.
‘‘Possible’’? Perhaps remotely so. But given the stipulation that the
script was used in the October 6 meeting, and Garcia’s own similar
memory of the timing, the prosecution’s burden was to prove that
it was nevertheless probable, i.e., more likely than not, that Garcia
was describing a meeting other than the October 6 meeting. This the
prosecution made no attempt to do.
123 And see, e.g., Eagle Comtronics, 263 NLRB 515, 516 (1982),
characterized by the Board in Gibson Greetings, 310 NLRB 1286
(1993), as a case where,
The Board . . . reiterated the principle that an employer does
not violate the Act by truthfully informing employees that they
are subject to permanent replacement in the event of an eco-
nomic strike.
124 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969).
125 Eagle Comtronics, supra at 516.
126 Eagle Comtronics, supra; Gibson Greetings, supra.
127 The record otherwise shows that ‘‘Raines’’ actually spells his
name ‘‘Raine,’’ and that he is also the owner of Stanton.
128 Because the complaint had previously identified two Nguyens
(Plant Manager Khanh Nguyen, and Department Supervisor Hung
Nguyen), it was facially impossible to know which of these Nguyens
was being accused in this count. And the question only became fur-
ther confused when witness Garcia, and the lawyers questioning him,
used the name ‘‘Khanh’’ Nguyen when describing alleged grievance
solicitations made by someone he otherwise described as a ‘‘foreman
. . . between the upholstery and assembly line.’’ Garcia was appar-
ently describing Upholstery Supervisor Hung Nguyen. And it is clear
that Stanton’s counsel understood the complaint’s reference to
‘‘Nguyen’’ here as a reference to Hung Nguyen. Thus, on brief (p.
14, par. 2) Stanton’s attorneys say,
In the complaint, Paragraph 6(e) states that the owner of the
Company, Keith Raine, and two supervisors, Hung Nguyen and
Duong Pham, solicited grievances . . . .
Moreover, despite Garcia’s mistaken references to ‘‘Khanh’’
Nguyen, Stanton’s lawyers apparently assumed that he was actually
referring to Hung Nguyen, for they called Hung Nguyen to dispute
Garcia’s claims in this regard, but called Khanh Nguyen for different
purposes. And in these circumstances, I regard it as merely coy on
Stanton’s attorneys’ part that, later in their brief (p. 15, second full
Continued
the timing of this indistinct process of phasing-out mandatory
overtime might arguably invite such an inference, I would
find that Anderson has credibly explained the phaseout in
terms that had nothing to do with the pending election. I
would therefore dismiss this count alleging unlawful ‘‘im-
provements,’’ as well.
D. Anderson’s Alleged Threat in a Speech that Strikers
Would Lose Their Jobs
Paragraph 6(d) of the complaint charges that,
On or about late September 1992 or early October
1992, acting through Anderson, [Stanton] threatened
that if employees went on strike they would be replaced
and not rehired.
Lewis Garcia, again the General Counsel’s sole witness,
recalled that, during a campaign speech ‘‘around the first
week in October,’’ delivered to about 35 employees, Ander-
son,
mentioned that people that are striking can be laid off,
or replaced actually is what he said. He said they can
be replaced. And there was nothing in the law that says
that they have to hire you back if you’re replaced.
Garcia was admittedly vague in his memory of the balance
of Anderson’s remarks, but recalled that Anderson’s state-
ments were made while he was also displaying slide projec-
tions, and that Anderson ‘‘did read from a paper, yes. He did
have a paper.’’ Anderson, substantially corroborated by
Zurilgen, testified that he used a prepared, typed script for
all of his speeches, and that he ‘‘read that script word for
word.’’ The pertinent portion of a script identified by Ander-
son, which the parties stipulated Anderson used during a
speech to employees on October 6, says this:
You may wonder what would happen to your jobs if
you went out on strike. The answer is that you can be
permanently replaced while you are out on strike. So
ask yourself is it worth the chance that you may have
to decide to go out on strike and be permanently re-
placed just because the union has made promises—
promises that they may not be able to keep.
Noting that this script was used on October 6, and that Gar-
cia was referring to a meeting around that date, I find that
Anderson used this script in the meeting described by Garcia.
The General Counsel’s countersuggestions are based on plain
speculation.122
The General Counsel does not attack the scripted re-
marks,123 but urges me to find that the version Garcia re-
ported was (a) what Anderson really said, and (b) was an un-
lawful misstatement of striking employees’ rights under
Laidlaw.124 I would not rely on Garcia’s uncorroborated
recollections to find exactly what Anderson actually said. It
is more probable than not on this record that Anderson did,
indeed, follow the script in the meeting Garcia described, and
that Garcia blended his subjective understanding of the im-
port of Anderson’s remarks with what he actually recalled
Anderson said on the subject of striker replacements. For this
reason, I do not decide whether Garcia’s version of Ander-
son’s remarks contains an express or implied ‘‘threat . . .
that, as a result of a strike, employees will be deprived of
their rights in a manner inconsistent with Laidlaw.’’125 Rath-
er, I would dismiss the complaint count in question for want
of reliable proof that Anderson went beyond what the prece-
dents allow him to do, i.e., ‘‘truthfully inform[ ] employees
that they are subject to permanent replacement in the event
of an economic strike.’’126
E. Alleged Grievance-Solicitation Activity
The complaint alleges at paragraph 6(e) (emphasis added):
On different occasions in October 1992, acting through
Raines [previously identified in the complaint as
‘‘Keith Raines’’—actually, ‘‘Raine’’—Stanton’s cor-
porate ‘‘president,’’127 Pham [previously identified as
Duong Pham, a Stockton department ‘‘supervisor’’], or
Nguyen [the antecedent reference is unclear],128 solic-
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
paragraph), they use Khanh Nguyen’s October 2 transfer to Phoenix
from Stockton as an alibi, to refute Garcia’s claims about grievance-
solicitations made by ‘‘Khanh’’ Nguyen throughout the month of
October.
129 For reasons already noted, I find that in all instances of alleged
grievance-solicitations described by Garcia involving ‘‘Khanh’’
Nguyen, Garcia was referring to the alleged actions of Hung
Nguyen.
130 Plork recalled that at the end of Raine’s remarks, one employee
asked one question: Was Khanh Nguyen [who transferred to the
Phoenix plant on October 2] going to return to the Stockton plant?
Anderson interjected to say that Nguyen was not coming back.
131 On cross-examination, Plork seems to have conceded that he
was not disposed to listen carefully when the Company delivered
preelection campaign pitches to the employees. Thus,
Q. MR. CARTER: Isn’t it true, Mr. Plork, that when company
representatives would say things against the union, or about
what they were doing, you would often not listen?
A. MR. PLORK: Sure.
Q. MR. CARTER: The answer is sure?
A. MR. PLORK: Yes.
Q. MR. CARTER: That’s the same as yes?
A. MR. PLORK: Yes.
Q. MR. CARTER: In fact, you did not always listen much in
the meetings because you were against the company. Isn’t that
correct?
A. MR. PLORK: Yes.
132 Plork’s account was not just sketchy, but confusing as to con-
text, and uncorroborated. Moreover, it seems improbable that Raines
would simply make the statement in question out of the blue, and
particularly improbable that having just said, ‘‘I can’t promise you
anything right now,’’ he would in the next breath cancel that dis-
avowal with the statement, ‘‘but now that I know what your problem
is, things are going to be better.’’
ited the grievances of employees and promised to rem-
edy said grievances in order to discourage employee
support for the [IUE].
The General Counsel’s case here depends on the literal ac-
curacy of employee Say Plork’s memory of statements made
by Raine during a meeting with employees on October 27,
and on the substantial accuracy of Lewis Garcia’s highly im-
pressionistic summaries of seemingly scores of alleged en-
counters over several weeks between himself and Department
Supervisor Hung Nguyen,129 in which Department Super-
visor Duong Pham also allegedly participated on a few occa-
sions.
Stanton did not bring Raine to the witness stand to con-
tradict Plork, nor did it question Anderson nor Gonzales, al-
leged by Plork to have been present at the October 27 meet-
ing, about what happened at this meeting. But it called Su-
pervisors Hung Nguyen and Duong Pham to deny ever hav-
ing made or witnessed the ‘‘solicitations’’ and ‘‘promises’’
described by Garcia. For different reasons in each case, I
would not rely on either Plork or Garcia to find a prima facie
case.
1. Company owner Raine’s statements on October 27,
as described by Plork
Plork, one of the employees named on the IUE’s August
10 letter to Anderson as a member of the organizing commit-
tee, said that he attended several meetings, perhaps five in
all, where company officials spoke to employees about the
pending election. While he could not recall the dates of these
other meetings, he was somehow able to recall that the one
now in question occurred on October 27. He stated that
‘‘about 30’’ other employees attended, and that over the
course of about ‘‘20 minutes,’’ Raine spoke (in English),
while Anderson and Gonzales stood by, Gonzales silently,
and Anderson mostly so.130 Claiming to recall ‘‘[n]ot every-
thing, but most things,’’ this is Plork’s rendition of what
Raine said:
Well, Mr. Raines [sic] started with like talking about,
well, his word he said, I understand there’s a union
election coming up on October 30th. And I understand
what you want. But we want you to understand us too.
And he said I don’t want to tell you how to vote. We’ll
respect your vote. But voting no is a better answer for
everybody. And I can’t promise you anything right
now, but now that I know what your problem is, things
are going to be better. And he said that the company
is growing so good now. I mean he said, I want you
to know that the company is growing so good. And this
is the best company we have. And that’s all I can re-
member.
. . . .
. . . I mean, the meeting is over right there. Noth-
ing, they just tell us to go back to work.
On cross-examination, there was this exchange:
Q. MR. CARTER: During the course of the meeting,
Mr. Raines [sic] did not ask employees if they had any
grievances or problems, did he?
A. MR. PLORK: I don’t understand that.
Q. MR. CARTER: We’ll get at it another way. It’s a
fact as far as the meeting is concerned that Mr. Raines
[sic] did not say to employees tell me if you have any
grievances or problems.
A. MR. PLORK: He never asked what our problem
was.
Obviously, if the meeting lasted about 20 minutes, Plork
has given us a highly truncated version of what Raine
said.131 Obviously, too, I think, everything Plork claims
Raine said was legally benign, with the arguable exception
of the alleged statement, ‘‘but now that I know what your
problem is, things are going to be better.’’ I would not rely
on Plork’s sketchy account to find that this was either a ‘‘so-
licitation’’ of grievances, or a ‘‘promise’’ to ‘‘remedy’’
them, especially where Plork never identified what ‘‘prob-
lem’’ it was, if any, that Raine was allegedly referring to,
and where Plork’s concession on cross-examination seems to
rule out the possibility that Raine at some earlier point had
invited employees to give vent to any grievances or ‘‘prob-
lems’’ they might have. More fundamentally, I have no con-
fidence that Plork accurately described the statement in ques-
tion.132 Thus, I found Plork’s testimony about this statement
to be too unreliable, prima facie, to have shifted the burden
of persuasion to Stanton; and I therefore draw no inference
adverse to Stanton based on its failure to present Raine, An-
derson, or Gonzales, to offer their own versions of the same
incident.
865STANTON INDUSTRIES
133 Summarizing the nature of these followup exchanges, Garcia
stated:
Every time I went into his department he, you know, he would
just tell me that the union was no good. Or he would bring up
the same subject that, you know, I could still tell him what I
want. And usually, I’d just ignore him and go with my work
collecting carts.
Describing the number of these followup encounters, Garcia var-
iously said,
* It was quite a few times from about a month before election
day up to election day[;]
* . . . you know, it was virtually every day[,] . . . sometimes
ten times a day. Because I had to go into his department many
times to collect the carts to make sure that they didn’t run out
of carts[;]
* You know, guessing, maybe 40 or 50 times. I’m not sure
exactly. It was too numerous to think about counting them.
134 Testimony as follows:
Q. MS. MARCOTTE: So, what was said?
A. MR. PHAM: I said, how come I got this one, you got too
many?
Q. MS. MARCOTTE: And what did he say?
A. MR. PHAM: He say, that way I beat you. I beat Stanton.
Q. MS. MARCOTTE: And what did you say?
A. MR. PHAM: I said, oh, that’s true. We just kind of joke
around.
135 The obvious question, put to Garcia on cross-examination by
Stanton’s counsel, is why Hung Nguyen, joined by Duong Pham on
occasion, would persist in questioning Garcia and promising to fix
any problems Garcia might have, where Garcia had supposedly made
it clear from the start that he ‘‘didn’t believe’’ that Nguyen had any
power to help him, and repeatedly ‘‘ignored’’ Nguyen thereafter.
Garcia’s attempt to answer this question—‘‘I guess some people just
don’t give up’’—though affording comic relief, was less than persua-
sive. If Garcia was, indeed, telling the truth about the nature and fre-
quency of these encounters, then I could only assume that the ex-
changes between Nguyen and Garcia had become something like a
‘‘running joke’’ for the two men, fully understood as such by Gar-
cia.
2. Hung Nguyen’s alleged repeated invitations to Garcia
to voice his ‘‘problems,’’ and promises to ‘‘take
care of’’ them
At the risk of making Garcia’s account appear more coher-
ent than it actually was, this, in substance, is what Garcia
claims: On an uncertain date about ‘‘three weeks before the
election,’’ Garcia happened to meet ‘‘Khanh’’ (i.e., Hung)
Nguyen while on a forklift run in or near the upholstery de-
partment. They exchanged words, described by Garcia as fol-
lows:
He told me that the union was no good, and I told
him he’s wrong. Then he went on to say if there’s
something you want or need, why didn’t you tell me
and I can make sure you get it. Then I tell him how
can you do that when you’re just a foreman, you know.
And he went on to say, well I know people that I could
go to that will make sure you get what you want. You
know, and I told him how are they just going to, you
know, give me what I want by telling you, because
you’re not the owner or plant manager. And he contin-
ued to assure me that he’s positive that I would get
what I want if I just tell him.
. . . .
JUDGE NELSON: Okay. What did you say after he ex-
plained that to you?
A. I told him I don’t believe him. And I just walked
off.
JUDGE NELSON: Okay. So that’s how it ended. You
said—
A. Yes.
Thereafter, on as many as ‘‘40 to 50’’ occasions in the next
3 weeks, Garcia insists that he had substantially identical ex-
changes with ‘‘Khanh,’’133 during a few of which Duong
Pham was also standing by, and in some manner echoed
‘‘Khanh’s’’ blandishments, or otherwise encouraged Garcia
to confide to ‘‘Khanh’’ whatever it might be that Garcia
‘‘wanted’’ from the Company.
Hung Nguyen and Duong Pham both denied ever having
a conversation with Garcia resembling the ones he described.
Hung Nguyen recalled only one union-related exchange with
Garcia, occurring ‘‘a week before the election,’’ when Garcia
was in or near the upholstery department, and summoned
Nguyen over with a crooked finger. There, says Hung
Nguyen,
He [Garcia] said to me that something about you guys
are going to lose. He said I know a lot of people in
here supporting the union and I collect a lot of cards
from employees in here and then I just said, you don’t
know what you’re doing Lewis.
Nguyen specifically denied having had any conversation in
which he asked Garcia about ‘‘problems’’ he might have, or
where he offered to ‘‘help’’ him. He also testified that he
followed Anderson’s instructions to supervisors not to initiate
union-related conversations with employees, not to ‘‘prom-
ise’’ anything, and, specifically, to ‘‘leave [Lewis Garcia]
alone.’’ Duong Pham likewise insisted that he had had only
one union-related exchange with Garcia, which was many
weeks before the election (‘‘about four week, one month,
five weeks about that’’). There, says Pham, he and Garcia
‘‘just kind of joke[d] around’’ concerning the fact that Garcia
was sporting a large number of union buttons on his work
clothes.134
Garcia’s testimony about these transactions was, as a
whole, improbable, even fantastic.135 And he was at his least
impressive when delivering this melange of recollections,
usually feverishly and with little regard for detail or context.
By contrast, the two supervisors were more impressive in
their denials. I therefore find that the General Counsel has
failed to establish by a preponderance of credible evidence
that any such exchanges ever occurred. I would therefore dis-
miss the complaint in this respect.
F. Stanton’s Alleged Ratification of a Message in an
Employee-Drafted Handbill Distributed on or
About October 29
As amended at the opening of this trial, the complaint al-
leges at paragraph 6(g) that,
On or about October 29, 1992, [Stanton] condoned the
distribution of and adopted and ratified a flyer that im-
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
136 Before this amendment, par. 6(e) had charged, in addition, that
Stanton had ‘‘caused [the] flyer to be circulated.’’ Explaining the
amendment, counsel for the General Counsel stated,
The basic change to that paragraph is that we’re taking out that
part of it that indicates that Respondent caused the flyer to be
circulated. And rather it should be only that Respondent con-
doned the distribution of the flyer and adopted and ratified it.
137 There is no evidence that Rodriguez violated rule 8’s proscrip-
tions, and the General Counsel disclaimed any such contention.
138 This was rendered ‘‘else he’’ in the transcript.
139 In a second version of the same alleged exchange, Garcia testi-
fied (added emphasis on revisions in testimony):
When [Duong] approached me, he asked me if I had seen the
flier that Elsie was passing around. And I told him I’ve seen the
fliers, because I have a few of them. You know, he also asked
me if I’d seen Elsie passing them around. And I told him no,
but I heard about Elsie passing them around. And he goes well
you see what else you’re going to lose if you keep going with
this union stuff.
140 Here, contrary to counsel for the General Counsel’s assertion
(Br. p. 37), it is not at all obvious that Garcia was referring to Hung
Nguyen; Garcia did not otherwise identify the individual he was de-
scribing. Thus, there is no way of knowing whether in this instance
he had in mind Khanh Nguyen, the plant manager, or Hung Nguyen,
the department supervisor. If he meant to refer in this instance to
the ‘‘real’’ Khanh Nguyen, his testimony may be rejected because
Khanh Nguyen had an alibi—he had been in Phoenix since October
2. If Garcia meant Hung Nguyen, however, my remaining comments
and findings below are appropriate.
141 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.
plied that employees would lose certain benefits if they
voted for union representation.136
Everyone now agrees that employee Elsie Rodriguez com-
posed a ‘‘flyer’’ by hand, at home, then had photocopies of
it made at her own expense, then passed out copies of it to
employees at the plant, on October 28 or 29.137 The flyer
said this:
WITH UNION
YOU LOSE
EVERY MONTH
INCENTIVE $64.00
UNION DUES $12.00
INSURANCE $20.00
There is no question that if Stanton had delivered the same
message to employees, or had put Rodriguez up to deliver
it, Stanton would have violated Section 8(a)(1), by implying
that employees would automatically lose a current benefit—
‘‘incentive’’ pay—if they elected union representation. Like-
wise, under familiar interpretations of the Act, if Stanton in
some way visible to employees ‘‘ratified’’ or ‘‘condoned’’
that message, even without having authored or inspired it, it
would commit an 8(a)(1) violation. As noted above, the Gen-
eral Counsel now relies solely on a ‘‘condonation’’ or ‘‘rati-
fication’’ theory of violation.
Lewis Garcia is again the sole water-carrier for the Gen-
eral Counsel concerning this allegation. He claims that both
‘‘Khanh’’ Nguyen and Duong Pham separately made such
adoptive or ratifying statements to him on October 29, after
Garcia had already become aware of ‘‘Elsie’s flyer’’ being
in circulation. Thus, concerning Duong Pham, Garcia testi-
fied, in a first version:
[Duong] approached me. . . . He asked me if I’d seen
what [‘‘Elsie’’]138 was passing out. . . . I responded by
saying I haven’t seen what [Elsie] was passing out, but
several people have told me what she is passing out.
. . . And then he said something to that. Then he said
well you see what you’re going to lose then if you con-
tinue with the union. . . . I told him I don’t believe
him. He said I should just quit because it’s not going
to do me any good. . . .
JUDGE NELSON: Did he say what you were supposed
to quit?
A. The union activities. I told him I won’t. . . . I
think I just walked off then.139
Concerning ‘‘Khanh’’ Nguyen,140 Garcia testified that,
after his conversation with Duong Pham, he was in the ‘‘as-
sembly department,’’ when,
Khanh Nguyen also asked me if I had seen what Elsie
was passing out. . . . And he also at that point men-
tioned that I still had a chance to let him know any-
thing I may need or want. That it would still be a good
time to quit my activities with the union. You know,
that I’m wasting my time continuing with these union
activities.
Pressed by the General Counsel, Garcia elaborated as fol-
lows:
Q. Do you recall if he said anything else?
A. No. And he also referred to the flier, because you
see what you’re losing if you continue with it anyway,
you know.
Q. Did you say anything in response to that?
A. I told him that we’re not going to lose anything,
and that I would continue with what I believe in. And
just walked off and continued with my work by then.
Q. Was that the extent of your conversation?
A. Yes, yes.
Both Duong Pham and Hung Nguyen denied having seen
‘‘Elsie’s flyer’’ prior to the trial, and as previously noted,
they each admit to having had only one union-related con-
versation with Garcia, neither of which resembles the Octo-
ber 29 events described by Garcia.
Again I note that Garcia, and Garcia alone, has supplied
the critical evidence—this time, of company adoption or rati-
fication of the message on the flyer. Again I find this sus-
picious, and again, Garcia’s testimony, when plausibly de-
nied by the company agents in question, is not enough to
persuade me that there was such condonation or ratification.
I therefore find that the General Counsel has not carried the
prosecution’s ultimate burden of persuasion on this point,
and I will recommend dismissal of this, the final challenge
made in the complaint and the Union’s objections to Stan-
ton’s behavior preceding the election.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended141
867STANTON INDUSTRIES
ORDER
1. The complaint in the consolidated unfair labor practice
cases is dismissed in its entirety.
2. The objections to the representation election are over-
ruled; the results are certified; the IUE did not receive a ma-
jority of the valid ballots cast.