Teledyne McCormick Selph

National Labor Relations Board - Board Decisions

Dec 5, 1979

246 N.L.R.B. 766 (N.L.R.B. 1979)

DI)7('ISIO)NS OF NA''IONAL. I.ABOR REI.ATIONS BOARI)
Teledyne McCormick Selph, A Division of Teledyne,
Incorporated and Oil, Chemical & Atomic Workers
International Union, Local 1-5, AFI-CIO. Case
32 CA 1109
December 5. 1979
DECISION ANI) ORDER
BY MEMBERS PNEIILLO() MU RPIIY ANI) TR::SI)AI.I
On May 7, 1979. Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein:'
The General Counsel has excepted to certain credibility findings made hy
the Administrative Law Judge. It is the Board's established policy not to,
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resoluijons are incrrect. Standard Dr , Wall Produc i, Inc.. 91
NLRB 544 (1950), enrd. 188 F.2d 362 (3d Cir. 1951). we have carefully
examined the record and find no basis for reversing his findings.I We agree with the Administrative Law Judge's conclusion hat Respon-
dent violated Sec. 8(a)(3 and (I) of' the Act by demoting leadperson (iua-lano t senir operator. However. we disavow his reliance, in support ,f thisconclusion, on his finding that the severity ,of(;ualan's discipline was out of
proportion to the nature of the precipitating incident.
In additon, we agree with the Administrative La Judge's conclusion thatRespondent did not violate Sec. 8(a1(31 and (I) by discharging employee
LFurtado. In so doing. however. we do not rely on his findings that the time
between urtado's cncerted and union activity and his discharge cnsti-
tuted "an excessive period of time for a discharge campaign," and that Re-spondeni could have gotten rid of Furlado earlier by ransferring him to
another department and then laying hint off.,The Administraive Law Judge found, based tin credited testimony, that
Respndent violated Sec. 8(aX I) when Production Superintendent Sadlierinfoirmed employee Wasko with respect Io certain union suppirters that he(Sadlier) had "been hard on these people because of the union actvits . Asa remedy therefir, the Administrative Law Judge. tracking the allegation imithe complaint, provided in his recommended Order that Respondent ceaseand desist from "informing an employee that o ther employees had beensingled out l or closer o bservation because ofo their union activities." We shallmodify the Administrative law Judge's recommended Order to more closcly
confoirm to the specific violation found.
In par. i(c) of his recommended Order. the Administrative I.a' Judgeused the broad cease-and-desist language "in any other manner" lowever.we have ctnsidered this case in light Iof the standards set forth in Hl. Airrt
iFoods Inc., 242 N.RB 1357 (1979). and have concluded that a broad reme-dial order is inappropriate inasmuch as it has not been shown that Respon-dent has a proclivitLy Io violate the Act or has engaged in such egregious iorwidespread miscnduct as it demonstrate a general disregard tor the em-ploees' fundamental stalutory rights. Accordingly. we have modiied therecommended Order and notice by substituting the narrow injunctive ]a n-
guage. "in any like or related manner"
ORD[) R
I'ursuant to Section 10(c) of' the National abor
Relations Act. as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Teledyne McCormick Selph, A Division of Teledyne,
Incorporated, lollister California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
I. Substitute the following fr paragraph (a):
"(a) Interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed to
them in Section 7 of the Act. in violation of Section
8(a)( 1l) of' the Act, by: threatening an employee that
Respondent would close its facility if employees con-
tinued their support of the Union; informing an em-
ployee that he would not be considered for a promo-
tion because of his union activities threatening an
employee with loss of job opportunities and benefits
because of his union activities: promising an em-
ployee rewards if he ceased his union activity: in-
forming an employee that it had been hard on certain
employees because of their union activities; creating
the impression of surveillance of employees' union ac-
tivities; threatening employees with loss of jobs in or-
der to discourage their union activity: and interrogat-
ing employees concerning their union activities."
2. Substitute the following fr paragraph l(c):
"(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representative of their own choosing, and to
engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection
as guaranteed by Section 7 of the Act, or to refrain
from any or all such activities."
3. Substitute the attached notice Ibr that of the
Administrative aw Judge.
APPEN D)IX
No I I( -' F. o FM'I ()YI:S
POSIHL) IBY ORDLR 0()I i
NAI ()NAI. LABO)R RI.A IO()NS BARD
An Agency of the United States G overnment
WI wvii I. ,o interfere with, restrain, or coerce
our employees in the exercise of their rights guar-
anteed to them in Section 7 of the National La-
bor Relations Act, in violation of Section 8(a)( l)
of' the Act, by: threatening an employee that we
would close our fcilit if' employees continued
their support of' the Union informing an em-
ployee that he would not be considered fr a pro-
motion because of his union activities: threaten-
246 NLRB No. 127
766
TI.EDYNE McC()ORMICK SEI.PIl
ing an employee with loss of job opportunities
and benefits because of his union activities:
promising an employee rewards if he ceased his
union activity; informing an employee that we
had been hard on certain employees because of
their union activities; creating the impression of
surveillance of employees' union activities:
threatening employees with loss of jobs in order
to discourage their union activity; and interro-
gating employees concerning their union activi-
ties.
WI. WILL NOT discriminate against our em-
ployees in violation of Section 8(a)(3) and (I) of
the Act by: demoting Anthony Gualano from
leadman to operator, and by issuing written let-
ters of warning to Richard Labisch and Mark
Mitchell, in order to discourage those employees'
union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed
by Section 7 of the Act, or to refrain from any or
all such activities.
WE Wll.L make Anthony Gualano whole for
his loss of earnings occasioned by our discrimi-
nation against him, with interest.
WE WL. rescind, and expunge from our files
and records, the following memorandums and all
references thereto:
1. J. Sadlier's memorandum to Richard La-
bisch, subject: crew performance, dated May
31, 1978.
2. J. Sadlier's memorandum to M. Mitchell,
subject: notice of violation, dated May 31.
1978.
TELEDYNE MCCORMICK SEI.PI1, A DIVISION
OF TELEDYNE, INCORPORATED
DECISION
SI ATE MEiNi -r ill CASI
Rt sstl. L. SrEVENs. Administrative Law Judge: This
case was heard in San Jose. California. on February 1. 2
and 5, 1979.' The complaint, issued September 8 and
amended by documents dated January 18. 1979,2 and Janu-
ary 19, 1979, is based on a charge dated July 26. a first
amended charge dated October 12, and a second amended
charge dated December 21, filed hb Oil. Chemical &
All dates hereinafter are wlthin 1978, unless otherwice salted
2 Erroneously dated January 18. 1978
Atomic Workers International .;nion, ocal I 5, A,
((10 (Union). The complaint. as amended, alleges that
Teledsnie McCormick Selph, A Division of Teledyne, In-
corpora; ted (Respondent). viola ted Section 8(a)( 1 ) and (3) of
the National abor Relations Act. as amended (Act).
All parties were given full opportunity to participate, to
introduce relevant evidence. to examine and cross-examine
witnesses, and to argue orall. Briefs, which have been care-
fulls considered, were tiled on behalf of the General Coun-
sel and Respondent.
Upon the entire record. and from my observation of the
witnesses and their demeanor I make the following:
FiN)INS ()I' FA( I
I. J RISI)I( II()N
Respondent is now. and at all times material herein has
been. a division of a corporation dul organized and exist-
ing under and by virtue of the laws of the State of Dela-
ware, with an office and principal place of business located
in Hollister. California. where it is engaged in the manufac-
ture of chemical products, explosives, and rocket fuel. Dur-
ing the past 12 months Respondent. in the course and con-
duct of its business operations, sold and shipped goods or
services valued in excess of $50,000 to the United States
Government and purchased and received gxoods or services
valued in excess of $50,000 directly from suppliers located
outside the State of California.
I find that Respondent is. and at all times material herein
has been, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
11. Ill l.ABt)R (OR;ANi/AII()N IN\('I,,t1)
Oil. Chemical & Atomnic Workers International U;nion.
Local I 5. AFL C(IO is. and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
I11. 1111, A._.l11) UNFAIR L.ABOR PRAtit'l
Background'
Respondent's plant ins olved in this controversy was
manufacturing a rocket fuel component at times relevant
herein, pursuant to a contract with the !.S. Air Force. The
plant has a production area where toxic. flammable, and
hazardous materials are handled, referred to as the telezine
area, and a waste treatment area including facilities re-
ferred to as the John Zink unit and the salt plant. The two
areas are approximately 100 yards apart. The John Zink
unit accepts gaseous and liquid wastes, burns them under
very high temperatures, and releases the waste into the at-
mosphere as environmentally safe. If the John Zink unit is
shut down. as it sometimes is, the telezine manufacturing
plant cannot operate.
The Air Force contract stipulated production of 1.2 mil-
lion pounds of products the first ear. With options after
Ithe hbackgr,und umnmalr i, hased on uncontradicted estim.on' and
lacts not in dispuile
767
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first year, the contract was valued at $9.5 million. Con-
struction and production testing were carried out between
late 1977 and August 1978, with preproduction runs being
completed August 21. Air Force officials voiced their dissat-
isfaction with production quantities during an April prepro-
duction run, as a result of which plant personnel was reor-
ganized. George Harrison4 was placed in charge of plant
operations. including plant safety, and Joseph Sadlier was
appointed production superintendent. Teams of operators
were organized and placed under senior operators in order
to cover all operations with the most experienced employ-
ees. An engineer was placed in charge of the telezine area,
and another engineer, Ray Odom, was placed in charge of
the John Zink and salt plant area.
Production was undertaken until August 24, when the
Air Force canceled the contract it had with Respondent. A
substantial layoff was necessitated by the contract cancella-
tion.
Union organizational activity commenced in late Janu-
ary or early February, after initial contact with the Union
by Mark Mitchell, a chemical operator. On March 21 the
Union filed a representation petition with the NLRB cover-
ing production, maintenance, and laboratory workers in the
chemical (telezine) plant. The petition was dismissed April
28 on the ground that a plantwide unit was appropriate.
Organizing efforts and union meetings with employees con-
tinued, and on August 15 the Union filed a second repre-
sentation petition. this time for a plantwide unit, which is
pending. Some of the union meetings were held in a local
park (Dunn Park), and some were held in an apartment
shared by Mitchell and Thomas Furtado, a chemical opera-
tor.
Employees on operating crews in the telezine area pre-
pared a petition dated March 6, 1978,6 seeking action by
Respondent relative to employee grievances covering dis-
parity of wages, job descriptions, and shift differentials.
Twenty employees, including Furtado, Richard Labisch,
Mitchell, and Anthony Gualano, who are alleged to be dis-
criminatees, signed the petition. The petition was prepared
by Frank Wasko, following conferences with Labish. Gua-
lano, Mitchell, and Furtado. Wasko presented the petition
to Paul Kirkegard, a supervisor in the telezine area, who
gave it to management. A couple of days later Daniel
Grant, Respondent's personnel manager, called Wasko into
his office to talk about the petition. The employees heard
nothing thereafter about the petition or the grievances cov-
ered thereby.
Between April I and April 14 the plant was shut down.
and during that time management scheduled classes for op-
erators on a daily basis, in the afternoon. Initially classes
were conducted, but as the schedule progressed the sessions
became management-employee meetings at which many is-
sues were raised by employees, including those in the em-
ployee petition given to Kirkegard. During those meetings
employees Gualano, Labish, Scott Lutz, Mitchell. Furtado,
Individuals are referred to herein by their last names. except Scott Lutz'
wife. Lily Lutz, who is referred to by her full name.
5 It is found that Harrison and Sadlier were supervisors within he mean-
ing of the Act, at all times relevant herein. Counsel stipulated that Odom was
a supervisor at all times mentioned in the complaint.6 G.C. Exh. 2.
Wasko, and (Carl Major were particularly vocal in raising
issues of interest to employees. Management representatives
at the meetings told employees Respondent could not really
discuss the issues, because of ". . . the nature ol the third
party intervention..." meaning the union petition that had
been filed with the NLRB.
After plant operations were resumed, and after the em-
ployees learned that the first union petition to the NLRB
was dismissed, Gualano. Mitchell, Labisch, and some other
employees not named in the record, prepared a second em-
ployee petition and presented it to Barry Fissette. Respon-
dent's director of administrative services. Fissette was told
that, if management was not willing to discuss the petition
by midnight of the following Friday, the chemical operators
would be calling in sick. Thereafter, Respondent proposed
a new increase in shift differentials, which was one of the
issues raised in the employee petition, and the employees
agreed that, since Respondent showed an apparent willing-
ness to negotiate, there would be no sickout. Gualano and
Wasko so advised Sadlier.
Labish, who was an operator for 15 months prior to his
layoff in August. was active in both union and employee
efforts relative to organizing and to grievances, and fre-
quently discussed such matters with management person-
nel. Labish regularly attended union meetings and signed a
union authorization card. On May 31 Labisch received a
letter of warning from Sadlier.'
Mitchell. who was an operator for Respondent from Au-
gust 18. 1977, until he was laid off August 25, 1978. was
active in employee efforts relative to grievances and was
active in supporting the Union's organizational efforts. He
arranged union meetings held in the apartment he shared
with Furtado, was a member of the organizing committee.
distributed union authorization cards, and attended the
NLRB representation hearing on the Union's petition in
March 1978. He talked with Odom. his supervisor, about
the Union in March and talked with Valentine Alvarez, a
supervisor, in May about the Union's organizational efforts.
On May 25 he was given a notice of violation and letter of
warnings by Sadlier.
Furtado worked for Respondent approximately 23
months before he was fired July 23. He started as a junior
operator and was promoted to operator in January 1978. In
November 1977, while Furtado was working in a separate
area of the plant known as H.M.I.. he and four other junior
H.M.I. operators met with John Herron. a member of man-
agement, to protest the fact that they' were being paid less
than junior operators in the telezine area. Herron said that
was not his problem, and 2 days later, on November 18.
1977. the same five employees met with Doug Thatcher,
Respondent's executive vice president. Thatcher said he
would consider their grievance if they first transferred to the
telezine area for I month to determine whether or not they
could do the work in a manner that would justify their pay
parity with telezine operators. The employees agreed with
the proposed arrangement, and Thatcher agreed that the
transfer would not exceed I month, after which the employ-
ees would be returned to H.M.I. Furtado's work in the tele-
zine area was evaluated by Odom on January 6, and he was
G.tC. xh I I.
G.(,. EIxh. 9.
768
ItlIl l)YNI McCORMICK SIPI. 6
given an "excellent" rating of 3.0 on a scale of to 9
Furtado was given a promotion to) operator and a raise. On
or about December 18 Furtado and two other employees
asked Thatcher about returning to work at II.l.l.. and
Thatcher said the 5 would not he transferred until at least
March. The employees protested, and Thatcher turned the
discussion over to Kirkegard and left. Kirkegard told the
employees that there was a personnel problem in the tele-
zine area and they could not afl'ord to lose the former
H.M.I. employees. From that time forvward Furtado, and
some other employees acting on his behalf. repeatedly and
often pressed with supervisor and members of management.
Furtado's strong desire to return to F1 .1. Those actions at
times were annoying to management, and the) were to no
avail. Meanwhile. Furtado was active in union organi/za-
tional attempts and employee grievance efforts. lie distrib-
uted union literature and cards., testified at the N RB rep-
resentation hearings April 5 and . and held union meetings
in his apartment. On May 2 Alvarez, Furtado's supervisor.
completed :urtado's evaluation report" with a rating of
4.1. On June I Sadlier gave Furtado a letter of w;arling on
his work performance.' On June 8 Furtado wmas given
written reprimand by a supervisor for a safetx iolation. :
On June 13 Sadlier gave Furtaldo a letter of wEarning rela-
tive to work performance.' On luln 24 Grant gave Furtatdo
a letter of discharge."
Gualano is an experienced chemical operator who has
worked for Respondent approximatel 18 months: he still is
employed, presently as a lead senior operator. Gualano has
been an active union supporter, attended union meetings.
signed a union authorization card, and frequently some-
times accompanied by Wasko. has discussed wages and
working conditions with Sadlier. After the shutdown in
April. Gualano was made a leadman and given a wage
increase of 20 cents per hour. Approximately mid-June he
was given a slip. stating that he left an improper relief on
duts 2 days. and was demoted to operator. Four or 5 weeks
later Gualano was promoted back to leadman.
Issues
The General Counsel contends that Furtado was warned
and later discharged because of his union and other pro-
tected activity. and that Labisch, Mitchell, and Gualano
were given written disciplinary notices, or disciplined, for
the same reason. The General Counsel also contends that
Respondent committed several violations of Section 8(a)( )
of the Act, discussed seriatim, infru.
Respondent contends that the disciplinary actions it took
were necessary and proper, partially because of the hazard-
ous nature of its production facilities, and denies the 8(a)( I )
allegations.
A. Alleged Statements bh Grant
Paragraph Vl(a) of the complaint alleges that in late
March or early April 1978 Grant informed employees that
G.C. Exh. 3
G.C. E.xh.
n G.C. Exh. 6.
,2 G.C. Exh. 7
"t G.(. Exh. 4.
'' G.C. Exh. 8.
their grievances concerning hack ages would not be re-
sol ed until they abandoned their support of the Union.
Furtado testified: He attended I of the approximately
15 meetings during the shutdown period in April and "the
I nion was never mentioned, but brought up as a third
parts." Grant and Sadlier represented Respondent at a
meeting x herein employees complained that the~ were enti-
tied to some hbackpay because of' Respondent's erroneous
compultatilon relative to when shifts ended. I hen:
A. I)an (rant said. "We can't discuss that problem
because of the third party: it possibly could be dis-
cussed a;fterwards."
About that time. Mr. Cook said. in fact. it ais some-
thing that could be discussed, and anything that had
been on the compan hbooks before the petition for rep-
resenltatio n had been filed, could he discussed.
D)an (Grant then said that wVe would discuss it at a
later time.
Q. Was it discussed later?
.A. Yes.
Q. When was that'?
A. It as shoain to l)an G(rant at a later meeting
that using the compan s time periods. that ,henever
;nx one was on ra eard. that in fact. we were work-
ing a forts-eight-houl week. but onlk being paid tor
flort hours.
DIan (Grant acknoA ledged that after some discussion
and said we would be paid at a later time, if the cornm-
pan 5 found that to be true.
After being shown his pretrial affidavit to refresh his mem-
ory Furtado added: "lie [Grant] stated that once the third
party was out of the picture. that the problem could he
addressed."
Five employees other than Furtado testified, and it ap-
pears that most, it not all of them. attended the shutdown
meetings. No employee corroborated Futado on this issue.
Grant testified that the meeting referred to by Furta;do
wias held just after the first representation petition was filed
by the Union. Grant said he was accompanied at the meet-
ing by his attorney, John Cook, who explained that Grant
"could not bargain individually with any employee." and
that Cook discussed that fact with the employees. He said
Cook "went over what you can do and what you can't do."
Grant said he told the employees "if it the overtime pay]
wvas due them, they would get paid for it." Sadlier testified
that he attended the meeting in issue, and that "as I recall,
Mr. an Grant would look into it and ascertain what, if
anything. was owed."
Discussion
Furtado was not a convincing witness. His deep-seated
antagonism toward, and his lack of respect for, Respondent
and some of its management representatives is more fully
explained inra. Grant was an impressive witness who is
credited.
Clearly the record, including Furtado's testimony, does
not show that the statement described in the allegation was
made. Further. it does not show any statement inferring
that Respondent would not discuss hackpaN until employ-
7 9
DI)7C(ISIONS OF NATIONA. ABOR RELATIONS BOARD
ees abandoned their support of the Union. other than Fur-
tado's affidavit, the weight of which has been considered.
To the contrary, I urtado testified that Cook said at the
meeting that the matter could be discussed, it was later
discussed more fully, and the employees later were paid as
they requested. ('learly, even by Furtado's testimon. no
union consideration was involved with this issue.
In any event. Grant's testimony is credited, and that tes-
tiilonv shows that no violation of the Act occurred as al-
leged.
B1. Allege d ihholding } ol [ac Incr l ea.s h Sadli/
Paragraph Vl(b) of' the complaint alleges that in lale
March or early April Sadlier itlhheld wage increases or
inlrmation concerning same rom employees because of
their proected activit.
The (;eneral (Counsel argues that this violation occurred
during the shutdown meetings, during which Sadlier dis-
cussed, among other things. the pending reorganization and
the placement of crews under leadmen. When asked how
much lead operators would make. Sadlier responded. "I
could not discuss monies with them at that time."
D)iscussion
It is clear 1from the record that the lead position was to be
at new one and that the pay was not established prior to the
Union's petition to the NI.RB having been filed. It is
equally clear that Sadlier and other representatives of Re-
spondent made an effort during the shutdown meetings to
conform with the law by refraining from promises, threats,
or coercion and b so advising employees when they' asked
to discuss specific matters. Furtado testified:
Q. (B Mr. ('ookl At these sessions where the coirn
pany's response was allegedly that because of the inter-
vention of a third party, at least at one of these ses-
sions, were you not apprised and given a brief lecture
on the fact that the company's obligation was to oper-
ate "Business as usual"?
A. Yes, in fact, he gave us the lecture.
Q. And that there were certain rules that applied to
employers, that they could not make changes in their
operations during a period of a union campaign?
A. As I remember the lecture, the company could
not make changes other than what was already on the
hooks or in process.
Q. That were reflective of the business as usual ap-
proach?
A. Correct.
Sadlier's statement, placed against the "lecture" given to
employees concerning what Respondent could and could
not say, was no more than affirmation that the lead pay was
being considered and that it would be set and announced in
accordance with usual company practice, unrelated to
union activities; that employees could not be told at that
time, since the meeting was not the time or place to make
the announcement, but that they would be advised at the
time they otherwise would be told, apart from any union
considerations.
Inadequate proof was offered to show\ that the Act was
violated as alleged on this issue.
('. A l/ctd Threal h ()domi
Paragraph Vl(c) of the complaint alleges that, in late
March, Odom threatened an employee that Respondent
would close down its facility if' emplo ees continued their
membership in, or support of1 the U;nion.
Mitchell testified that he first talked with ()dom. 111 su-
pervisor, about the Union in early March, ut onl hriell.
Mitchell said he talked with Odom again in late March. and
()dol stated if the Union did gel in, that the plant would
probably close down." Mitchell continued
I told him that I didn't belie e that.
lie said that as fa r as the Air Force was concerned.
it would be the straw that broke the camel's hack.
()dom did not testif\.
l)iscussion
Mitchell was a credible witness, and ()dom did not tes-
tif-. Mitchell's testimony is given iull credence.
Odom's statement is one of fact, and his prediction is tied
solelN to the Union. In such a case Odom's statement is
coercive, and is a violation of the Act."
D. Alleged Reflu.ll T7, 7Iri.csr nt Emplro,,et
Paragraph Vl(e)'1 of the complaint alleges that on or
about April 14 Sadlier refused to consider an emplosee's
transfer request because of the emploxee's protected ac-
tivit.
Furtado testified that he made a written request for
transfer to the H.M.I. department on April 14 and had a
conversation with Sadlier about the request:
A. I handed my request to Joe. and Joe asked me
why I wanted to transfer, and I answered that I had
been promised a transfer and I felt I deserved it. the
reason being that I knew the lI.M.I. plant and I didn't
know the Telezine plant. knowing my knowledge
would be more valuable to the company in H.M.I.
than it would be in Telezine.
He then answered that he could not see transferring
me for the wo reasons of my bad attitude and the fact
that I was a union organizer. He felt that by transfer-
ring me. he would be doing a disservice to whoever he
transferred me to.
He then further went on to say that I was a personal
project of his, my attitude, his project was to turn me
around, turn me into a company man.
I answered that I had been a company man, and the
company had-the company's actions had turned me
around.
Furtado testified on cross-examination that he did not
tell anyone that Sadlier denied his transfer because Furtado
was a union organizer, nor did he make that statement to
I John P. K.trvniak d/h/a Red& White Super Markers, 172 NLRB 1841
(1968): Renner Plumbing, Heating & Air Condltioning, In,. 172 NLRB 1514
1968).
m6 Par. Vltd) of the complaint was withdrawn by the General Counwl.
770
TEll l)YN' Mc('ORMI('K SI.Ptl
,April 14 that
old him to put
.a copS. gve it
the personnel
11 were taken.
is as tllows:
t. 6 to Dept.
at tis timte. I
sequentl pen-
management or tlo anyonte i the l!nion.
Sadlier testified that Furtado requested on
he be transferred to Il.M.I. and that Sadlier t
it in writing, after which Sadlier would sign .
to Furtado. and would send the original to
department. Sadlier said those actions thet
Furtado's letter" of April 14. 1978. to Sadlie
I request a tra nsphere [sic] from l)ep
61. If a transphcre Isicl is nt possible;
reqCestl first consideration for a% subs
ings.
S l'on1,s
Received 4, 14;;78 0930
To T-om :Furtacldo
Is noted. ('onsideration will be lake
available opening.
Person
Sadlier denied that he told Furltado hlie would
ferred because of' his union activit. Sadlier
Furtado's transfer "is complelely out of li I
[)iscussion
The fact that ['urtado was obsessed'" wit
transferring to .I.. and frequently comn
desire to management. amply is shown throu
ord. H is letter to Sadlier was a part of his eff
transfer.
At the time he received Furtado's letter, Sa
duction superintendent of the telezine area:
trol or authority over II.M.I., which was a
rate and apart from telezine. Clearly, Sad
make the decision to transfer Furtado to H.]
he could do would be to authorize Furtado'
telezine. Sadlier exercised that authority. by
tado's letter to the personnel department. Th
to show that Sadlier refused the transfer, ot
tado's testimony.
Furtado was not a stranger to the use of
ployee pressure to protect employee interes
contains many instances wherein he used su
attempts to achieve what he wanted. Furtadc
toward Respondent and its representatives
lished. The statement Furtado attributes to S
would he a flagrant example of antiunion
spondent. Under such circumstances, the fac
reported the alleged statement to no fellow
to any representative of management, nor
assumes considerable importance. The failur
incident was not explained by Furtado.
" Resp. Exh. 4.
II This characterization of Furtado's mental state, so far as transfer to
H.M.I. is concerned, accords with Wasco's esimony.
Respondent's. and Sadlier's k nos ledige tl Iurtado's sup-
port of' emploee and union eftlrts relative to tieances
and to organization is not in dispute. lowever. in the ah-
sence of corroboration of Iurtado's contention. the doubt
concerning the alleged statemen h Sadlier become conchlu-
sle. Sadlier's denial lhat he made the alleged tatemlent is
creditet. and no violation of the Acl relatice to this issue is
I1 -ll/egcd 'laiht'tOiln'. IJ1rcu. Otdh I''llrooi. h .Iad/lihc
t'.r-.raphl \I' of the complaint alleges that. on or
about lMa 19. Sadlier inlormed an emplosee that he would
Thank , ou. not he considered fr promotion: w ould lose oh opportuni-
ties: aind wsas promised unspecltied re ;lards. Iln orde i) Io n-
i. F:urtado. terfere with the emplo ee's protected act-iviues.
Mitchell testified that he had a meeting with Sadhier on
, Joe MIas 19 that lasted approximnitcl 4 hours. with Al s;arez
present the last 2 hours. Mitchell said thes talked ahout
several things. including his possible promotion. Sadlier in-
n on the first formed Mitchell that he was being gien a 50(-cent-per-hour
raise. and:
A. After about two hours. Val Alvarez came in and
/ I). Girant Joe at one point then said to me. either I expected a
el Ma naeer promlotion to senior operator at m review in Au-
gust. that he would like to give me that promotion.
I not he trans- but that he could not have a person of responsibility
testified that creating dissension among the other men.
hands." I said at that point, "What ou are saxing is. ou
want me to stop nmi union organizing.
lie said. "No. I didn't sas that. I am saing that
there are some possibilities ftr you at Teledyne. and
th the idea ofl want you to be aare of those opportunities."
nunicated that Q. Do ou recall athing else he said along those
,ghout the rec- lines'?
ort to obtain a A. I remember hini once raising his voice to me and
telling me I had better start paying more attention to
idlier was pro- my job and less attention to other issues in the plant.
ie had no con- Q. Okay. do you recall anything else about the con-
function sepa- versation at this time''
lier could not A. Not at this time I don't.
M.I.: the most Q. Did Mr. Sadlier indicate anything about his
s release from plans for the project?
sending Fur- A. Yes, he said that he didn't run a plant like his
here is nothing predecessor John Herron did, and that he had a master
ther than Fur- plan for changing and resolving some of the issues in
the plant, but that it was going to take some time to
union or em- implement this plan.
is. The record Sadlier testified at length, but was not asked about, nor did
ch pressure in he testify concerning. Mitchell's testimony.
o's antagonism
is well estab- Discussion
Sadlier, if true.
action by Re- At the time of the alleged conversation, Respondent and
It that Furtado Sadlier were well aware of Mitchell's concerted and union
employee, nor activities. Sadlier did not deny Mitchell's testimony on this
to the Union, issue. Mitchell was a convincing witness, and his testimony
e to report the on this issue is given full credence.
Based on the background of the conversation, and Sad-
' Sadher's denial of Furtado's estimony relative o Sadlier's intention to
make Furtado a "compan man" is credited No threat in violation of the
Act is found. so far as this testimonN h; Furtado is concerned.
I)V.( ISIONS OF NATIONAI ILABOR RELATIONS BOARI)
lier's statements therein, it is clear he was telling Mitchell
that his promotion was being withheld because of Mitch-
ell's concerted and union activity: that Mitchell could ex-
pect better treatment if he ceased that activity; and that
Mitchell could expect further curtailment of his progress
with Respondent if he persisted in that activity. Sadlier's
statements, and implications therein, constituted violations
of the Act, as alleged. The promotion was not to have been
made until August, and the layoff following cancellation of
the Air Force contract occurred in August. Therefore, no
8(a)(3) violation is involved.
:. A.ll/cged StaIlemenIt b>' Sadlier
Paragraph Vl(g) of the complaint alleges that, on or
about May 23. Sadlier informed an employee that the em-
ployee had received a smaller wage increase than expected.
because of the employee's protected activity.
Furtado's supervisor, Alvarez. evaluated Furtado's work
performance on May 2, 1978. 2" and gave him a 4.1 (excel-
lent) rating. According to Furtado. Alvarez told him at the
time of the raing that Furtado "could expect a pay raise of
between 50 and 75 cents." Alvarez sent the evaluation to
management, in accordance with practice. but management
gave Furtado a raise of only 25 cents. On May 22 Furtado
talked with Sadlier about the raise. and according to F1ur-
tado:
A. I entered the office and Joe passed across the
desk the results of my evaluation. On it, it said I had a
25 cent pay raise.
As I finished reading it, Joe asked me he said, ac-
tually. it could have been higher, and did I known why
it wasn't.
I said yes, if I had turned company it could have
been higher.
Joe Sadlier said yes.
Then I continued to say. I said, it had been a nice
try. but he had failed to buy us off and the battle
would continue.
Q. Did he have any response to that?
A. He asked me what I wanted from the company. I
told him all I wanted was a transfer back to 61 and be
left alone, and I also wanted honest answers from man-
agement.
Q. Did he have any response to your request for a
transfer?
A. Again, he said that he could not give me a trans-
fer because of my bad attitude.
I again answered that I had my attitude because of
what the company had done to me. I had just got off of
graveyard and I was on my own time, so I just decided
to leave.
Furtado explained on cross-examination, in a recitation
that was ambiguous, self-contradictory, and unconvincing,
that his evaluation of May 2 was not a regular one; that his
evaluation was not due until June. He said he and Mitchell
had been led to believe that they would be given reviews
"after the end of the meetings" (note: apparently Furtado
meant the shutdown meetings), which they took "as being a
20 G.C Exh. 5.
bribe." Iurtado later stated that Mitchell wa, given a re-
view as a basis for a raise that Mitchell complained about
and said he should be given, and Furtado "seemed to have
been thrown in the situation. I don't remember ever asking
for one." Still later. Furtado said he was shown on a pro-
posed organizational chart as a senior operator; that he was
not qualified for that job; that he and Mitchell were given a
I-month trial on the job, both were reviewed at the end of
the month, and neither got the job but both got raises.
Mitchell testified that he talked with Sadlier about a pro-
motion on May 19 and was given a raise at that time, but
was not promoted. Mitchell said he was not reviewed at
that time, that he had been reviewed approximatel 2
months earlier.
Sadlier testified that he told Furtado during their meet-
ing, "Tom I wish it could be more . . ." and then explained
the basis for the less-than-expected raise. 'That basis, Sadlier
said, was a complaint by Harrison that Furtado did not do
a work task he should have done, and a work-related acci-
dent Furtado was involved in. Sadlier said he did not recall
Furtado saying "nice try, but you failed to buy us off''" or
"the battle will continue." Sadlier testified that F'urtado
stated to him that "all I want to do is get Teledyne."
Discussion
Furtado's testimony on this issue is given no credence.
His recitation seemed contrived and unrealistic. His antago-
nism toward, and his lack of respect lfor. Respondent and its
management are apparent throughout the record.
Sadlier's version of the conversation is credited, and it is
found that this allegation of the complaint is not supported
by the record.
So far as the 8(a)(3) allegation is concerned, it is clear
that Alvarez only had authority to recommend raises: he
could not authorize raises. Regardless of what he may have
said to Furtado. a raise could be given only by Alvarez'
supervisors. Those supervisors were not satisfied with Fur-
tado's work, and they reduced Alvarez' recommended fig-
ure. In so doing. they were not within proscriptions of the
Act.
G. Alleged Threat b Sdlier
Paragraph Vl(h) of the complaint alleges that, on or
about May 30, Sadlier threatened an employee with dis-
criminatory disciplinary warnings unless the employee
ceased engaging in protected activities.
The General Counsel contends that this violation oc-
curred May 19 during the conversation discussed supra.
when Sadlier told Mitchell he "had better start paying more
attention to my job and less attention to other issues in the
plant."
Taken as a whole, Sadlier's statements as related by
Mitchell have an apparent connotation different from the
General Counsel's contention. Sadlier called Mitchell in to
discuss, among other things. Mitchell's possible promotion.
Sadlier wanted to make it clear, which he did, that the pro-
motion depended in part on Mitchell's keeping at least a
low profile so far as union activities were concerned. No
threat of disciplinary action appears in Mitchell's recita-
tion; to the contrary, it is apparent that Sadlier like Mitch-
772
TEIEDYNE McCORMICK SETl.HPi7
ell's work and wanted to see him progress. lowever. it is
equally clear that Sadlier wanted Mitchell to "cool it" so far
as union activities are concerned. Any interference with
Mitchell's Section 7 rights occasioned by Sadlier's remarks
will be remedied as a result of the findings above. A sepa-
rate finding under the allegation here considered is not nec-
essary.
H. Alleged Statementr h Sadlier
Paragraph Vl(i) of the complaint alleges that. on or
about June 27, Sadlier informed an employee that other
employees were being singled out for close observation be-
cause of their protected activities.
Wasko testified that he talked with Sadlier approximately
the end of June:
A. Then he said it wasn't his policy, but he was
going to tell me what my raise was, which he did. And
when he got through with that, I said, "I want to tell
you what the real reason I came in here was, I want
your permission to transfer to another department."
He was surprised and said he wished I would stay.
and asked what is the reason.
I said. "I am not sure that I can trust you."
He said. "I thank you for your candor, but what are
you talking about?"
I said, "Well, you seem to have singled some people
out for special punishments and the only thing they
seem to have in common is their union activity."
lie asked me who those people were and I said there
were five of them that I could think of.
He said who are they and I amend them, and while
I was naming them, he wrote each name down on a
piece of paper. a pad that he had on his desk.
Q. Do you recall the names?
A. The names were Dick Lahisch. Tony Gualano.
Tom Furtado Mark Mitchell, and myself.
When I had named them he underlined each name
after he had written it down, and then circled all of the
names. and then he said. "Yes. I have been hard on
these people because of the union activity."
Sadlier acknowledged talking with Wasko and testified
that he did not recall whether Wasko named Gualano, Fur-
tado. Mark Mitchell, and Labisch. and accused Sadlier of
singling them out because of their union activity. Sadlier
denied stating to Wasko, "Yes. I have been hard on these
people because of their union activity." Sadlier said he has
known for a number of years that employees cannot be
threatened, promised, or coerced because of their protected
activity.
Discussion
The coercive nature of the remark, f Sadlier made it, is
apparent. The only issue is one of credibility. Wasko was a
convincing witness, and he is credited. This allegation is
found supported by the record.
It is recognized that some allegations involving Furtado
are not found supported by the record, but Wasko's testi-
mony refers only in general terms to Sadlier's being "hard
on these people . . ." without elucidation. That remark is
evidentiary when specific conduct is being considered. only
to the extent that it may indicate aNimnus. It does not create
a violation of the Act where a violation does not otherwise
appear. Htowever. the remark, standing alone, violates the
Act since it shows Respondent's intention to discriminate
among employees on the basis of union considerations.
. A4llegted ('reltion l Impr.vsion o Surveillance, r
Sadlier
Paragraph VIo) of the complaint alleges that. on numer-
ous occasions in May, Sadlier created the impression of
surveillance of employees' protected activities.
Wasko testified that he talked with Sadlier three or four
times in I week, approximately in June. concerning unions.
On one occasion he said, while Gualano was present, Sad-
lier commented. "I understand there was another union
meeting down at the park this week." Wasko asked. "Oh.
you know about that?" and Sadlier replied, "Yes. I have my
sources.
Gualano testified that he talked with Sadlier about
unions on several occasions over a period of approximately
10 days, sometime after the Union's first NI.RB petition
was dismissed. Gualano testified:
A. I remember one specific conversation where Joe
Sadlier commented that his intelligence informs him
that there was a meeting last night, union. On another
particular occasion. I can recall Joe coming in the con-
trol room and saying that he had heard there were 12
or 15 people at the last meeting.
I can recall one time where Joe Sadlier said that he
had heard that the next meeting is scheduled to be at
Tom Furtado's house.
Q. Do you recall an, mention being made of Dunn
Park?
A. Other than what I have just said, that his intelli-
gence informs him there swas a meeting at Dunn Park.
Sadlier acknowledged stating to Wasko and Gualano, "I
understand there was another meeting at Dunn Park?" af-
ter which either Wasko or Gualano volunteered informa-
tion about the extent of union support among employees.
Sadlier was not asked about, nor did he testify concerning.
the other testimony of Wasko and Gualano concerning this
issue.
Discussion
The impression of surveillance created by the remarks
attributed to Sadlier is apparent. and coercive, if the re-
marks were made.
Wasko and Gualano are credited. This allegation is sup-
ported by the record.
J. Alleged Threat h BRannerlee
Paragraph VlIk) of the complaint alleges that, on numer-
ous occasions in March. Dilip Bannerjee threatened em-
ployees with the loss of jobs in order to discourage their
protected activity.
At times relevant herein Bannerjee was head of Respon-
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent's department 61, and is acknowledged by Respondent
to have been a supervisor within the meaning of the Act
Labisch testified he had three to four conversations with
Bannerjee in March concerning the Union. Labisch said
Bannerjee once stated to him "that if the Union came in. all
the wages would be upgraded, and that the Air Force prob-
ably would no longer want to maintain the project as such,
and pull out."
Bannerjee did not testify.
Discussion
Respondent's union animus is shown by the record. Ban-
nerjee's statement to Labish, if made, is a prediction clearly
intended to be coercive, since the plant where Labisch
worked was devoted solely to Air Force requirements under
the contract. Loss of the contract would result in loss of
jobs, including that of Labisch.
Labisch is credited. This allegation is proved.
K. Alleged Interrogation of Bannerjee
Paragraph VI (I) of the complaint alleges that, in March,
Bannerjee interrogated employees about their union sym-
pathies.
Labisch testified that, during the conversations described
in the preceeding, Bannerjee "asked me what my feelings
were regarding the Union, and whether I was for it or
against it."
Discussion
Labisch is credited. The questions asked by Bannerjee
are prohibited by the Act. This allegation is proved.
L. Written Warning to Labislh
Paragraph Vl(m) alleges that on or about May 31 Sadlier
issued a written warning to Labisch in order to discourage
his protected activity.
Labisch had prior experience in the chemical industry
before being hired by Respondent and worked for Respon-
dent 15 months as an operator and leadman before his lay-
off. There is nothing in the record to show that Labisch was
warned or disciplined by Respondent prior to the letter in-
volved herein. Labisch's engagement in protected activity
prior to the letter and Respondent's knowledge thereof are
not in dispute. Labisch testified that the day before he re-
ceived the letter he was called into Sadlier's office, and Al-
varez was present during most of the conversation. He was
told that he was going to be given a verbal warning. Sadlier
said there had been several incidents on Labisch's shift for
which Labisch was responsible, as leadman. Sadlier had a
list of alleged incidents, which contained some that were
not on the letter of warning received the following day.
They talked about the items on the list, some of which later
were deleted because Labisch "absolutely refused to accept
any responsibility for them." Labisch told Sadlier:
A. I just said that due to the degree of seriousness of
some of these incidents, I said it appears to me that
they are just on a witch hunt because many of these
incidents have occurred time and time again on other
shifts, and gone without so much as even a word men-
tioned. They have not only occurred, but they have
been done by supervisors and I felt as though I was
being singled out this particular time.
Q. Did he have any response to that?
A. No, he just said that it was my responsibility as a
leadman to make sure that none of this occurred, and
whatever Mark Mitchell or myself did, I would be held
to answer for.
The letter of warning was received by Labisch the following
day. Concerning the letter, (I) he has no recollection of the
item of May 3: nothing was recorded about it in the log-
book. (2) He was directly involved in the incident of May
20. He informed Sadlier and Alvarez at their homes imme-
diately after the incident, which occurred because he was
not informed that a relief valve had been changed. There
was no loss of production. (3) He was directly involved in
the incident of May 22. The incident occurred when he did
not check a faulty valve before transferring material be-
tween tanks. No damage or loss of production resulted from
the incident, and no hazardous situation was involved. He
informed Sadlier immediately after the incident. (4) He was
not directly involved in the incident of May 26 but had
assigned Mitchell to a task that was improperly performed.
resulting in the overheating of a batch of chemicals. No
damage or loss or production resulted, and no hazardous
situation was created. Mitchell later was given a warning by
Sadlier for the incident.
Sadlier testified that he talked with Labisch about several
incidents for which Labisch possibly was responsible, that
occurred over a I-month period. One item could not be
identified. but Labisch accepted responsibility for the inci-
dents that occurred on his shift. Sadlier said he could not
remember whether he gave similar warnings to other lead-
men.
Discussion
The incidents listed in the letter of warning did not, so far
as the record shows, result in any loss, damage, or danger to
personnel. Labisch acknowledged his direct responsibility
for two of the incidents, and possibly his indirect responsi-
bility for one other incident. Were the incidents of a serious
nature, or isolated and unusual, possibly some warning ac-
tion would have been warranted. However, that is not this
case. According to Labisch's credited testimony, not chal-
lenged by Sadlier, such incidents as those here involved are
frequent, and are not customary cause for discipline. For all
that appears in the record they were minor, and possibly
even trivial. incidents. In view of abisch's relatively long
history with Respondent, his position. the possibility of his
being further promoted, and failure of the record to show
that other leadmen were given letters of warning such as the
one received by Labisch for minor errors, the inference is
created that some factor was involved, other than work per-
formance.
Sadlier's testimony on this issue was brief; and not en-
lightening. His explanation that Labisch was responsible as
leadman for everything that occurred on his shift seemed
strained and unrealistic. There is nothing in the record to
774
'IFl DYN F Mc(ORM1(1K SlF I Pt
show that leadmen for Respondent generall\ were saddled
with such command responsihilit.
Sadlier knew of the employes' concerted and union ac-
tivitS. and Lahisch's participation therein. he record
shows Respondent's antagonism toward such acti it). In
view of those considerations. lahisch's thoughts. quoted
above, appear to reflect what actuallN happened. So far as
facts are concerned. Lahisch's testimon\ is credited: he was
an unusually convincing witness. It is clear that. hut ifor
Labisch's participation in the activiti of which Respondent
disapproved, the letter of warning would not have been is-
sued. This conclusion is buttressed bh the fIact that other
warnings of similar nature were issued at approximately the
same time to other participants in the same concerted and
union activity, as discussed in/ir. his allegation of the
complaint is well supported hby the record.
M. ritlCn lf "irnng I, Mitchell
Paragraph Vl(n) of the complaint alleges that, on or
about May 31, Sadlier issued a written warning to Mitchell.
to discourage his protected activity.
Mitchell was an experienced operator (3 ears) prior to
being hired h Respondent and worked for Respondent ap-
proximately I year prior to being laid off August 25. So far
as the record shows his work was satisfactory. Mitchell's
testimony is credited. lie testified that wuhen he met with
Sadlier and Alvarez on May 19 they discussed his getting a
raise and his future with Respondent. They voiced no com-
plaints about his work performance, and complained onl
about Mitchell's attention to "other issues in the plant."
obviously referring to Mitchell's concerted and union ac-
tivity. That Respondent knew about, and opposed such
activity is shown throughout the record. About a week and
a half after the conversation of MaN 19, Sadlier called
Mitchell into his oftice and gave him a verbal warning
about several incidents that allegedlN occurred during the
preceding 30 days. Mitchell said he could not respond with-
out looking at the logbook and doing some checking. and
he then returned to work. On or about May 31 Mitchell
received the letter of warning referred to supra. Concerning
the incident described in the letter, Mitchell testified that he
left the control room to get a pair of gloves. and during his
absence a tank became overheated by 2 degrees above the
required 75 degrees. Alvarez noticed the overheating and
told Mitchell he should not have oerheated. Mitchell
agreed, and nothing more was said. he tank often has
been overheated, to as much as 100) degrees without dam-
age to equipment.
Neither Sadlier nor Alvarez testified concerning this is-
sue.
Discussion
As noted, supra. this incident also was discussed in the
warning letter to labisch. The incident was commented on.
but briefly, by Alvarez at the time it occurred. and it re-
sulted in no loss, damage. or injury. So far as the record
shows, a dangerous situation was not created.
Most of the factors discussed in the Labisch incidents.
.supra. appear in this issue. Mitchell's concerted and union
activity was resented by Respondent: his experience and
good wu)rk record, his recent raise, and Respondent's un-
precedente d resort to a written warning cast suspicion on
the letter. Ihere is nothing to show that such a letter was
necessar_. desirable. or in accordance ith any pollhc of
Respondent. Mitchell acknowledged the error when Alvar-
ez spoke to him, and there is no sho ing that the error was
of a serious nature. Under such circumstances, the onl,
logical conclusion is that the letter was written hy Sadlier to
disciouirte Mitchell's concerted and union activity. Such
action is a iolation oft' the Act.
N. Demot,,ion o (,ahml,
Paragraph Vllql)l of the complaint alleges that. in mid-
June. Respondent demoted G(ualano to discourage his pro-
tected activit.
(iualano had 2-1/2 years experience as a chemical opera-
tor prior to being hired by Respondent, and still works for
Respondent. presently as a lead senior operator. He has
been active in concerted and union activities from the be-
ginning of those activities, as discussed supra. and Respon-
dent has been aware of Gualano's participation therein. is
work has not been complained of by Respondent. other
than at the time of the demotion here discussed.
The fact that GCualano was demoted in mid-June, and
reinstated 4 or 5 weeks later, is not in dispute. The reason
given for the demotion was said to be Gualano's leaving an
inexperienced employee on the relief shift on two evenings
in succession. The General C(ounsel contends the real rea-
son was (iualano's concerted and union activities.
Gualano testified that on Wednesdas of the week in issue
an operator called in, unable to work as part of the relief
crew. (ualano could not remain at work because he had to
take a college examination, therefOre he made some tele-
phone calls to find a relief operator. e was unsuccessful
and called his supervisor. Fred Vella, to whom he explained
the situation. (iualano then as called into Vella's office.
Vella and Sadlier both were present. and (ualano again
explained the situation. and said he also had an examina-
tion the following night. Sadlier "expressed smpathy for
my reason," and Vella said he would try to get in touch
with two employees whom Gualano had not called because
they lived far away. Sadlier and Gualano then engaged in a
mild argument about responsibility. Wasko, ho also had
declined to stay and work, came into the office and said
AMigu el Iopes. a new employee who had been working ap-
proximately I week and was in training, had agreed to stai
that evening. (ualano later, after the meeting. asked I.l\
Iutz the lead person on the shift relieving (iualano, if she
objected to opes and she said no. (iualano then advised
Vella and Sadlier that l opes would he uorking on the next
shift, and:
Q. [)id they have any objection to this'?
A. I do not recall any verbal objection. What I do
recall is that as I was leaving. Mr. Sadlier approached
me in the parking lot and wished me good luck on m>
test that night. and I recall that he offered some advice
in taking tests. So I started up the hill to my car, but I
left with the feeling that I had done nothing wrong.
thi, isue i d, cused prior to par, \ 1(o) nd (p}
775
I)I ('ISI(ONS OF NA I IONA lABOR RII.A IONS B()ARI)
and that I had got Mr. Sadlier's approval by his stating
to me, "Good luck on the test."
Q. I)id a similar situation occur the next evening?
A. On the very next day, almost identical circum-
stances. It was late in the shift about 20 minutes left.
and the same operator called in sick. I did not take that
call, Fred Vella answered the phone and took it.
He hung up and 1 responded that it must he the man
calling in sick, and he acknowledged that.
Since I did not feel that the relief from the dlas be-
fore was improper, instead of calling the various peo-
ple that you would normally call. I immediately went
to the same fellow. Miguel opes and asked if he
would work again.
Q. And he did?
A. He did.
Gualano informed Vella about the arrangement, and Vella
joked with Wasko about the fact that the lead person on the
relief was Lily Lutz. Sadlier later demoted Gualano, for the
reason stated .supra. Gualano objected, asking why, if some-
thing were wrong, they said nothing about it when the inci-
dent occurred, and stating that a verbal warning and pun-
ishment at the same time were a "little bit harsh." Sadlier
commented, "The fun and games are over with." Sadlier
also accused Gualano of' "intimidating" three employees.
Two no longer were employed, and Gualano asked that the
third one be brought in for a confrontation, but Sadlier
declined. Gualano asked the reason for the demotion, other
than what was on the slip, and Sadlier replied. "You know
what else it is." Gualano asked for an explanation, and
Sadlier declined to give one. Gualano later was promoted
again, after telling Alvarez he was going to resign. Sadlier
asked Gualano to "stick around," since he had plans for
him at the new telezine plant.
Wasko testified on rebuttal that he overheard (Jualano
talking with Sadlier about not staying over because of the
examination:
Tony said they were talking about there was the
test and Joe mentioned, "You remember your respon-
sibility, you have a job: you have responsibilit." and
Tony said es.
He said. "Not only that. I have got another test to-
morrow night if this would ever happen again." It was
almost a joke because no one expected it to happen
again.
Then the conversation ceased. Tons came out, Joe
came out and put his arm around Tony and said.
"Good luck on your final exam." right there in front of
me.
Sadlier testified that he was not pleased with having
lopes, a new trainee, on duty with ily Lutz, who was an
acting lead operator with limited experience. and he dis-
cussed that with Gualano. Gualano explained about his
test, and Sadlier replied. "It is unfortunate, go and have a
good test." Sadlier then told Lily Lutz to call him at home if
necessary. Nothing was said by Gees in violatio n '
Section 8(al(3) and (I) of the Act b> emoting AnthonN
(iuala no frolI leadman to operator. anlt b issuing written
letters of warning to Richard Labisch and Mlark Mitchell.
in order to discourage those emplo)ees' union Iactivities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of' their right to sellf-
organization. to form, join or assist labor organizations. to
bargain collectivel> through representatives of their own
choosing. and to engage in concerted activities lor the pur-
poses of collectie bargaining or other mutual aid or protec-
tion :is guaranteed by Section 7 of' the Act. or to refrain
from any or all such activities.
2. ake the following affirmative action, which is neces-
sary to effectuate the purposes of' the Act:
(a) Make AnthonN (ualano whole for his loss of earn-
igs in the manner set forth in the section of this Decision
entitled The Remed."
(hb) Preserve and, upon request. make ailaible to the
Board or its agents all pa roll and other records, as set forth
in the remed) section of this Decision.
(c) Rescind and expunge from its files and records tile
tifllow ing memorainda and all references thereto:
I. J. Sadlier's memtorandunl to Richard Labisch,
subject: crew perorirmance. dated 31 Ma> 1978.
2. J. Sadlier's menorandum to M. Mitchell subject:
notice of' violatiotn. dated 31 Mav 1978.
(d) Post at is Ilollister ('Caliornia,. operation copies of
the attached notice marked "Appendix."'' Copies oft' said
notice. on forms proided bh the Regional D)irector Ior Re-
gion 32, after being duls signed bh an authorized represent-
ative of Respondent shall be posted bh Respondent imme-
diatel upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customaril
posted. Reasonable steps shall he taken bh Respondent to
insure that the notices are nol allered, defaced, or covered
h! an other material.
Ie) Notifys the Regional DIirector for Region 32, in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to complN herewith.
41 In the event that this Order is enforced h a Judgment of a tUnited
Slates (Court of Appeals, the words n the notice reading "Posted by Order of
the National I ahbor Relations Board" shall read "Posted Pursuant to a Judg-
ment of Ihe Uniled States (Court ot Appeals Enforcing an Order of the Na-
lionli I labor Relations Board."
11TIDYN11- M&ORMICK SITPII