Wood Transformers, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1976

226 N.L.R.B. 1112 (N.L.R.B. 1976)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wood Transformers , Inc. and Alumimum Workers In-
ternational Union , AFL-CIO. Cases 21-CA-14125,
21-CA-14240, and 21-RC-14330
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
November 23, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On August 20, 1976, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
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
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Wood Transformers,
Inc., Orange, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order.
IT IS FURTHER ORDERED that the election conducted
in Case 21-RC-14330 on October 31, 1975, be, and it
hereby is, set aside.
' In sec II,B,i, of his Decision the Administrative Law Judge states that
Smith first became involved in union activities on September 30, 1975,
whereas the record discloses that the date referred to should be August 30,
1975
2 As no exceptions have been filed to the principal finding on the 8(a)(1)
allegations, Member Walther adopts them He does not adopt, however, the
Administrative Law Judge's conclusion, to which Respondent does except,
that President Woods' statement to employees on October 11, 1975, was an
implied threat of job loss Woods gave the employees a candid picture of the
Company's economic situation and a true comparison of its wages with that
of its competitors Member Walther views the statement as in no way "a
threat of retaliatory action" within the principles enunciated in N L R B v
Gissel Packing Co, Inc, 395 U S 575, 617-619 (1969) He holds that Honey-
well, inc, 225 NLRB No 79 (1976) (Chairman Murphy and Member
Walther dissenting), on which the Administrative Law Judge relied, is inap-
posite In that case the employer's statements were tied into the nonrecall of
laid-off employees and so likely subject to interpretation that unionization
would prevent recall He does not see Woods' frank statement as constitut-
ing a threat of unlawful reprisal
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
March 16, 17, and 18, 1976, I conducted a hearing at Santa
Ana, California, to try issues raised by the objections of
Aluminum Workers, International Union, AFL-CIO I to
alleged company conduct by Wood Transformers, Inc.' af-
fecting the election in Case 21-RC-14330 and companion
issues raised by a consolidated complaint issued on De-
cember 31, 1975,3 on the basis of a charge filed by the
Union in Case 21-CA-14125 on November 5 and a charge
filed by the Union in Case 21-CA-14240 on December 12.
With regard to the representation proceeding, on Janu-
ary 7, 1976, the Regional Director issued a report on the
Union's objections to the election in which he consolidated
those objections with the alleged unfair labor practices set
forth in the consolidated complaint for hearing and direct-
ed that I issue credibility resolutions, findings of fact, and
recommendations to the Board concerning both the objec-
tions to the election and the issues raised by the consoli-
dated complaint.
The consolidated complaint and election objections al-
leged that the Company violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended, and
prevented a fair election by:
1. Issuing warning notices to and discharging an em-
ployee for engaging in union or other protected, concerted
activities.
2. Creating the impression that the Company was en-
gaging in surveillance of its employees' union or other pro-
tected, concerted activities.
3. Interrogating employees concerning their and other
employees' union or other protected, concerted activities.
4. Threatening employees with discharge or other repri-
sals if they supported the Union and promising employees
economic benefits for refraining from support of the
Union
5. Threatening plant closure or other reprisals to dis-
courage employees from supporting the Union.
6. Refusing to bargain with the Union as the representa-
tive of a majority of the Company's employees within an
appropriate unit
With one exception,' the Union's objections to the elec-
tion paralleled the unfair labor practice allegations.
At the outset of the hearing I granted the General
Counsel's motion to withdraw those portions of the com-
plaint asserting at times material the Union represented a
Hereafter called the Union
2 Hereafter called the Company
3 Read 1975 after all further date references omitting the year
The Union alleged that the presence and feared operation of a closed-
circuit TV camera near the voting area on the date of the election prevented
a free election The evidence produced at the hearing disclosed there was a
closed-circuit TV camera covering the production area but it was not fo-
cused on the voting area nor in operation on the date of the election I
recommend this objection be dismissed
226 NLRB No. 149
WOOD TRANSFORMERS, INC. 1113
majority of the Company's employees within an appropri-
ate unit, the Union requested the Company bargain with it
concerning the wages, hours, and working conditions of
the Company's employees within that unit, and the Com-
pany violated Section 8(a)(1) and (5) of the Act by refusing
to bargain with the Union at its request.
During the course of the hearing the Company reiterated
its prehearing motion to dismiss the complaint on the
ground the General Counsel failed to comply with the
Company's request for the prehearing affidavits of the wit-
nesses the General Counsel interviewed prior to issuance of
the complaint and the authorization cards the Union sub-
mitted in support of its petition for certification. That mo-
tion was denied by Administrative Law Judge Barker prior
to the hearing. I see no basis for disturbing that denial and
reaffirm it.
The Company denied committing the acts alleged in the
consolidated complaint and objections to the election; the
issues are whether the Company committed the alleged
acts and, if so, whether by such commission the Company
violated the Act and prevented a fair election.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been received from the General Counsel and the
Company.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I enter
the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
at times material the Company was a California corpora-
tion engaged in the manufacture and sale of transformers;
the Company maintained a facility located at 810 North
Lemon Street, Orange, California, for conducting its opera-
tions; and in the last 12 months the Company sold and
shipped goods and products valued in excess of $50,000
directly to customers located outside of California.
On the basis of the foregoing, I find and conclude at all
pertinent times the Company was an employer engaged in
commerce in a business affecting commerce and the Union
was a labor organization, as those terms are defined in
Section 2(2), (5), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES AND ELECTION
MISCONDUCT
A. Facts
William R. Wood, Sr., at all times pertinent was the
owner-president of the Company,5 which he started in
1970. In 1972, the International Union of Electrical Work-
ers was certified as the collective-bargaining representative
of the Company's production and maintenance employees.
A contract was executed between the Company and the
IUE for a period extending from 1973 to 1974. At the end
of the contract term (mid-1974), Patricia Smith, the alleged
discriminatory dischargee in this case, secured the signa-
tures of a majority of the employees to a petition seeking to
decertify the IUE as the employees' collective-bargaining
representative and filed that petition with the Regional Of-
fice. The IUE subsequently filed a disclaimer which the
Regional Office accepted, revoking the IUE's certification.
When Smith motified Wood of her success in securing the
decertification, Wood gave her some money. In the period
between the date the IUE was decertified (mid-1974) and
Smith resigned (May 8, 1975), Smith received favored
treatment from Wood.6
Smith returned to the Company's employ on July 1. At
that time the Company did not employ a production fore-
man.' Many employees reported late and at times worked
beyond the end of the shift to complete 8 hours. There was
much fraternization among the employees, talk on the job,
and inattention to work. Wood was an easygoing, indul-
gent employer, on a first-name basis with his employees .8
Since Wood was unable to be on the production floor
much of the time,' he decided to install a closed-circuit TV
to monitor the production floor from his office. The TV
system was installed on July 10-11.
The employees were disturbed over the TV surveillance
and dissatisfied with their wage scales. They complained to
Smith about them Smith carried their complaints to
Wood, commenting he would have better spent his money
on wage increases instead of a TV system. Wood was unre-
sponsive to the complaints.
The plant was shut down for vacation between July 19
and August 4.
On August 18, a production foreman interviewed and
hired by Wood prior to the vacation shutdown, Anton
Echiels,10 commenced work. Wood instructed Echiels to
increase production, tighten up operations, and stop the
absenteeism and tardiness. Echiels soon began to require
explanations from chronic absentees and late-reporting
employees and to issue verbal warnings for repeated or
unexcused absences and tardiness. He also stopped the em-
ployee practice of making up tardiness by working past the
end of the regular shift hours)'
Smith was consistently late and absent after her July 1
rehire. She was absent on Monday, August 25, and late on
Thursday, August 28. On the latter date, Echiels ques-
tioned Smith regarding her tardiness and accepted Smith's
explanation of an alarm clock problem. He informed
6 Wood made several loans to Smith and waived repayment, he granted
Smith leave to start and quit at times other than normal shift hours, etc
7 The Company previously employed a succession of foremen
8 Approximately 40 in number
9 Wood handled design, sales, and office functions as well as production
control
10 The complaint alleged, the answer admitted, and I find at all times
material that Echiels was a supervisor and agent of the Company acting on
its behalf
n Echiels continued to work for the Company as production foreman
through December, during that period he issued a number of written warn-
5 All further references to Wood refer to Wood, Sr The complaint al- ing notices and discharged one employee for refusal to comply with his
leged, the answer admitted, and I find at all times pertinent Wood was a instructions and admonitions Four employees quit on receiving written
supervisor and agent of the Company acting on its behalf warning notices from him
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith , however , to report to him if late again and explain
why she was late.
Smith was late again on Friday, August 29. She did not
see Echiels to explain why she was late. Later on that same
day, Echiels reprimanded employee Nita Ashworth for
passing notes during working time . Smith subsequently ap-
proached Echiels and demanded that Echiels apologize to
Ashworth because she and not Ashworth passed the note.
Echiels stated both Ashworth and Smith passed the note
and therefore no apology was warranted . Echiels asked
Smith why she had not reported to him as instructed to
explain why she was late that morning . Smith stated that
since Echiels refused to apologize to Ashworth, she was not
going to give any explanation to him for her tardiness
Echiels saw Wood and requested permission to discharge
Smith for her repeated tardiness , refusal to report and ex-
plain her second tardiness as instructed , and insubordinate
attitude . Wood refused to authorize Smith 's discharge and
instructed Echiels to give her a written warning notice. He
told Echiels it was his policy to first issue two written warn-
ing notices and then , if an employee 's conduct still did not
improve , to take discharge action . Echiels prepared a writ-
ten warning notice and gave it to Smith. The notice read as
follows: "She [ Smith] was late today and for the past two
days. When asked why, she said she didn't feel she owed
me any explanation ." Under the heading "Nature of Viola-
tion" Echiels checked two boxes marked "lateness" and
"attitude."
On Saturday, August 30, Smith and Ashworth met with
fellow employees Diane Kelley and Larry White to discuss
the employee unrest and dissatisfaction over the TV sur-
veillance, Echiels' crackdown , wage scales , fringe benefits,
and other working conditions . They decided to seek union
representation to secure changes and improvements in
their wages, hours, and working conditions , and designated
Smith to contact the Union.
Monday, September 1, was a holiday. On that date,
Smith contacted Union Representative David Taliani,
signed an authorization card , gave it to Taliani, and se-
cured additional cards to distribute to other employees for
signatures.
On Tuesday, September 2, Smith was again late for
work. She again did not report to Echiels to explain her
tardiness . Later on that day, she contacted 11 or 12 em-
ployees on a break in the Company's parking lot and solic-
ited their signatures to authorization cards.12 While Smith
was soliciting signatures on the parking lot, William Wood,
Jr., son of the president-owner of the Company, drove by
in a vehicle and glanced at the group.
Echiels waited all day to see if Smith was going to report
to him and explain her tardiness as instructed. She did not
do so. On the morning of Wednesday, September 3, Echiels
gave Smith a second written warning notice, reading as
follows: "Late 9/2/75. Late 3 times last week and absent
one day. If excessive lateness and absence continues you
may be disciplined or discharged." Under the heading
"Nature of Violation" Echiels checked boxes labeled
"Lateness" and "Absent."
12 She also gave cards to other employees to secure signatures
On Thursday, September 4, after working hours, em-
ployees Smith, Kelley, White, Lee Ann Hansen , Debbie
Hart , James (Kent) Linsalto, and a few other employees
met with Union Representative Taliani and another union
representative at a local restaurant and turned over some
signed authorization cards to them . In the course of the
meeting, Hansen commented that Wood was telling em-
ployees he couldn ' t give a 10-cent wage increase but was
able to take his family on a vacation costing thousands of
dollars. Shortly thereafter , the petition in the representa-
tion case was filed by the Union.
On Friday, September 5, Smith asked Echiels for permis-
sion to take the morning off on Monday , September 8, to
take her daughter to school for registration . Echiels grant-
ed the requested permission.
Over the weekend (September 6-7), Smith's infant son
was hospitalized with a severed toe.
On Monday, September 8, Smith stayed at the hospital
with her injured son. At 12: 30 p.m ., Smith 's husband tele-
phoned the Company, spoke to the receptionist , and stated
Smith would not be in because their son had been injured
and she was with him at the hospital . The receptionist told
Smith's husband to have Smith call and tell the Company
when she expected to return to work . Smith did not tele-
phone the Company that day.
On Tuesday, September 9, Smith again stayed with her
son at the hospital . At approximately 9 a.m., Smith 's sister
telephoned the company receptionist and stated Smith
would not be in that day. The receptionist asked Smith's
sister why Smith had not called in as requested and asked
when she was going to return to work. Smith 's sister said
she did not know the answer to either question . The recep-
tionist repeated her instructions of the previous day, to
have Smith call the Company and tell the Company when
she was going to return to work. Smith did not telephone
the Company that day. The receptionist advised Wood and
Echiels of her conversations with Smith 's husband and sis-
ter, and Smith 's failure to comply with her instructions.
Wood instructed Echiels to discharge Smith for her contin-
ued ignoring of company instructions . Echiels prepared
and mailed a letter to Smith stating as follows: "You have
been given several warnings concerning your absenteeism
and lateness. Despite this, your record continues to be
poor. You have not personally called in the past two days
nor does the Company know when you intend to return to
work. Accordingly, your employment is hereby terminat-
ed."
On that same day (Tuesday, September 9), Echiels told
Ashworth he was unable to understand why the employees
wanted a union in such a small shop and asked Ashworth
if she could answer his questions concerning the Union.i3
Ashworth replied Kelley could better answer any questions
about the Union
On Wednesday, September 10, Smith reported for work
and, not finding her timecard in the rack , went to see
Echiels. Echiels told her she was discharged the previous
day and a letter so informing her was in the mail.
Later that same day, Ashworth and Kelley came to
" Echiels testified it was well known in the shop that Ashworth, Kelley,
and White were the "union clique"
WOOD TRANSFORMERS, INC 1115
Echiels' office. Kelley stated she understood Echiels had
some questions concerning the Union. Echiels replied he
did not understand why the employees wanted a union in
such a small shop and why the employees thought they
needed it, since Wood was a good employer.
Kelley stated Wood was unfair to some of the employees
and mentioned Smith's discharge. She asked if it was true
Smith was discharged over her union activities. Echiels re-
plied the Smith case was closed and he did not wish to
discuss it. Kelley complained Wood was not paying several
long-term employees a fair wage; she and Echiels then got
into a discussion of company hiring and promotion prac-
tices, job classifications, etc., with Echiels relating his plans
for revising company practice in those areas.
On September 11 or 12, White entered Echiels' office to
discuss mistakes he made on the job. After discussing the
mistakes, Echiels commented there was too much union
talk in the shop; he was receiving complaints from employ-
ees that White was hassling them to support the Union in
the lunchroom during the lunchbreak; he wanted White to
stop hassling the employees and, if White would stop doing
so, he would give White the raise he had been seeking
White agreed to Echiels' proposal.
About September 15, Hansen was in Wood's office to
discuss a production problem (Hansen was a leadwoman).
After discussing the production problem, Wood said he
didn't appreciate Hansen's disparaging remarks of Septem-
ber 4 14 regarding his reluctance to grant wage increases
while taking an expensive vacation trip and offered to
show Hansen bills covering his vacation costs. Hansen
asked Wood how he knew of her remarks. Wood replied
Kent (James Linsalto) told him. Hansen remarked she
thought Wood was unfair in firing Smith, since she had an
injured child in the hospital and needed a job. Wood re-
plied that Smith was for the Union and a troublemaker,
that he could have discharged her sooner, that her ignored
instructions to call in gave him an easy way to get nd of
her.
About September 17, Echiels called Kelley and Ash-
worth to his office. He stated he had received complaints
from a number of employees about Ashworth and Kelley
hassling them about the Union. He informed them the TV
camera was on, observing them, even when it was not mov-
ing; they had been observed passing notes and talking
when they should be working; they had better stop these
practices or they risked discharge; they were there to work
and not to solicit for the Union; they should solicit on their
own time. Kelley admitted passing notes and talking and
stated in the future she would solicit on the company park-
ing lot on breaktime. Echiels replied the parking lot was
company property and the employees should not do any
soliciting at any time during their work shift on company
property, including the parking lot.
About October 11, Wood called Echiels, White, and
Hansen into his office. Wood upbraided White and Han-
sen over the large number of production errors he had ob-
served, pointed out that White's production mistakes (not
putting in shields) were obvious omissions and stated he
14 The meeting between a group of employees and two union representa-
tives described earlier
believed the production errors were deliberate Wood also
stated there was too much union talk and talk critical of
him in the shop He stated he had received complaints
White and Hansen were hassling employees regarding the
Union and reports of what was said about him. White
turned to Echiels and asked whether Echiels thought he
was behind the Union Echiels replied he seemed to know
all the answers about the Union and the union activities
seemed to center around him. Wood then stated the Com-
pany could not afford a union; its competitors were non-
union, if the Union got in and secured increases in wages,
fringe benefits, and the like, the Company's costs would
increase; with an increase in costs, the Company would
have to increase its prices; a price increase would make it
noncompetitive and require layoffs and possible plant clo-
sure. Wood also cited wage rates paid by his competitors
and stated his current wage rates were comparable. Hansen
replied by stating it was not the employees' intent to cause
the plant to close, they just wanted to improve wages and
working conditions.
In the October 31 election, 38 of the 40 employees eligi-
ble to vote cast ballots, 8 cast ballots for the Union and 29
cast ballots against the Union.
B. Analysis and Conclusions
1. The August 29 Smith warning notice
The General Counsel and the Union allege Echiels is-
sued Smith a written warning notice on August 29 because
of her union activities.
It is undisputed Smith first became involved in union
activities on September 30, when she met with three other
employees and the four decided to seek union representa-
tion to resolve employee complaints over wages, hours, and
working conditions. It is likewise undisputed Smith was
late on August 28 and 29.
On the basis of the foregoing, I find and conclude Smith
was not disciplined on August 29 because of her union
activities, since her union activities had not yet begun.
Rather, I find she was disciplined because she was tardy on
August 28 and 29.
I therefore shall recommend those portions of the com-
plaint and union objections so alleging be dismissed.
2. The September 3 Smith warning notice
The General Counsel and the Union allege the Company
gave Smith a second warning on September 3 because of
her union activities. It is undisputed Smith was late on
September 2, the next working day after receiving her first
warning notice and that this was the third workday in a
row Smith reported late. It is likewise undisputed Smith
failed to report to Echiels and explain her tardiness on
September 2, despite instructions to do so.
Smith's first union activity at the plant occurred after she
reported late on September 2.15 The only evidence purport-
ing to establish company knowledge of this activity consist-
15 She solicited signatures to authorization cards in the company parking
lot at breaktime on September 2
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed of testimony that Wood, Jr., glanced at the group in the
parking lot from his vehicle while Smith was soliciting sig-
natures. I cannot find this observation by Wood, Jr., a
rank-and-file employee, is sufficient basis for finding that
the Company knew, prior to Echiels' issuance of the sec-
ond warning notice on September 3, that Smith was engag-
ing in union activities. A person glancing at a group stand-
ing in a parking lot from a moving vehicle would hardly be
able to ascertain documents were being distributed, much
less what those documents were or who was distributing
them.
It is clear Smith was tardy on September 2 for the third
consecutive day, that Echiels was watching her attendance,
and that Smith for the second time ignored his instructions
to report to him and explain her tardiness.
I therefore find and conclude the General Counsel and
the Union failed to establish Echiels had any knowledge of
Smith's union activities prior to his issuance of the Septem-
ber 3 warning notice over her undisputed tardiness for the
third consecutive day, or that such notice was issued for
any reason other than Smith's continued tardiness.
I therefore shall recommend those portions of the com-
plaint and union objections alleging the September 3 warn-
ing notice violated Section 8(a)(1) of the Act and interfered
with the election be dismissed.
3. The September 9 Smith discharge
The record establishes Smith's record for absenteeism
and tardiness was poor after her July 1 rehire, that she was
absent on August 25, late on August 28, and 29 and Sep-
tember 2, absent on September 8 and 9, and failed to com-
ply with instructions to explain her tardiness and advise
when she was going to return to work.
The General Counsel contends, nevertheless, Smith was
not discharged for her tardiness, absenteeism, and failure
to comply with company instructions but, rather, because
of her union activities.
Smith was a leader, if not the leader, in the Union's orga-
nizational campaign. It was Smith who went to the Union
at the request of her fellow employees and secured authori-
zation cards. She solicited signatures to those authorization
cards and aggressively presented her fellow employees'
complaints to Wood and Echiels as they arose.16
While I have entered findings that the General Counsel
failed to establish company knowledge of Smith's union
leadership role prior to Echiels' issuance of the September
3 warning notice to Smith, I find by September 10 that role
was known to both Echiels and Wood. Echiels demon-
strated his awareness of who the Union's leaders were prior
to that date when he testified he knew Ashworth, Kelley,
and White were union ringleaders when he questioned the
former two regarding the employees' reasons for seeking
union representation.17
i6 This role evolved naturally from Smith's earlier conduct-securing the
decertification of the IUE-and her closeness with Wood thereafter Her
continued leadership of the employees is evidenced by her carrying employ-
ee complaints over installation of the closed-circuit TV to Wood in early
July and her demand that Echiels apologize to Ashworth in August She
also carried employee complaints against Echiels to Wood
There is no question Smith was tardy on August 28 and
29 and September 2 and received two written warning no-
tices because of that tardiness; it is undisputed she was
absent from work on August 25, September 8 and 9; and I
have entered findings she ignored Echiels' instructions to
report to him and explain her tardiness on August 29 and
September 2, and ignored the company receptionist's re-
quest that she personally telephone and advise when she
was going to return to work on September 8 and 9.
It is also clear that Smith was a known leader of the
prounion group among the employees, whose reversal from
an earlier antiunion to a prounion role would have consid-
erable influence among her fellow employees and that her
discharge in the midst of the union campaign would have a
chilling effect on her fellow employees' support of the
Union
Only one other employee was discharged during Echiels'
tenure as a foreman by him and she was discharged for
grossly insubordinate conduct; there is no evidence any
employee was ever discharged for absenteeism or tardiness,
or for having a relative call in an absence,18
On the basis of the foregoing, I find that the Company
discharged Smith for mixed motives, i.e., both over Wood's
displeasure with Smith's leadership role in the Union
(which must have seemed to him somewhat of a betrayal in
view of her preceding role in the IUE decertification) and
his anger at her failure to personally call in concerning her
absence on September 8 and 9.19
The Board has generally held that, when a discharge is
motivated in part by the union activities of an employee,
such discharge violates Section 8(a)(1) and (3) of the Act.20
I therefore find and conclude the Company violated Sec-
tion 8(a)(1) and (3) of the Act by discharging Smith, in
part, because of her union activities and prevented a free
and fair election.
4. The September 10 interrogation
This complaint allegation and election objection is based
on a September 9 or 10 exchange between Echiels, Ash-
worth, and Kelley, wherein Echiels asked Ashworth if she
could answer some questions he had about the Union and
she and Kelley came to his office the next day to discuss
his questions.
It is clear Echiels asked Kelley on the latter day why the
employees wanted the Union, listened to her recital of al-
leged misclassification and/or mistreatment of several
17 While Echiels did not name Smith as one of the ringleaders, I find in a
shop of such a small size, with his admitted knowledge of the union role of
the other three, he knew of Smith's leadership role but deliberately refrained
from naming Smith because of his participation in her discharge I also find
Wood was also aware of Smith's union role, in view of the small size of the
shop, his October I I statement to Hansen and White that various employees
had informed him of who and what was being said about him and the
Union in the shop, and his admitted knowledge he knew of the union cam-
paign as early as September 4
Despite uncontradicted evidence that many other employees were
chronically late, sporadic in attendance, and regularly had members of their
families call to report their absences
19 Witness Wood's September 15 comments to Hansen
20 N L R B v Hotel Conquistador, inc, d/b/a Hotel Tropicana, 398 F 2d
430 (C A 9, 1968), Burns International Security Service, Inc, 216 NLRB I
(1975), Florida Steel Corp, 224 NLRB 587 (1976)
WOOD TRANSFORMERS, INC.
long-term employees , and launched into a discussion of his
plans for improving the job classification structure, work-
ing conditions, etc.
It is apparent from the testimony of all three participants
in the conversation neither Echiels nor the two employees
considered it an interrogation concerning their union
views, sentiments , or that it was in any way intimidating; it
was a full and free discussion of various aspects of working
conditions which disturbed the two employees and Echiels'
plans for attempting to improve working conditions in the
plant.
I do not find the conversation sufficient to sustain a
finding by the conversation the Company either violated
Section 8(a)(1) of the Act or committed misconduct affect-
mg the election.
I therefore shall recommend these allegations of the
complaint and election objections be dismissed.
5. The September 12 interrogation, threat , and promise
Echiels substantially corroborated White's testimony
that on or about September 12, after they discussed a pro-
duction mistake made by White , Echiels threatened White
with discipline if he continued to solicit or harangue em-
ployees on behalf of the Union during lunchbreaks at the
plant lunchroom and promised White a raise if he desisted
from doing so.
It is well established employees have the right on their
own time (lunchbreaks) on plant premises to freely engage
in union discussion and that it is a violation of Section
8(a)(1) for a company to threaten an employee with disci-
pline therefor , and promise him a benefit for desisting
therefrom 21
I therefore find and conclude , by Echiels' September 12
threat to discipline White if he continued to try to persuade
employees to support the Union on his and their lunch
breaks, and by Echiels' promise of a wage increase for de-
sisting therefrom, the Company violated Section 8(a)(1) of
the Act and prevented a free and fair election.
6. The September 15 impression of surveillance
This complaint allegation and election objection are
based on undisputed evidence that on or about September
15, in the course of a discussion between Wood and Han-
sen over a production problem , Wood complained to Han-
sen concerning her September 4 comments at a meeting
attended by employees and union representatives.
Wood was informed of Hansen's comments by Linsalto
when Linsalto came to the plant on approximately Septem-
ber 13 to pick up his final paycheck (he quit the week
before). Wood testified Linsalto's report was unsolicited,
and his testimony is credited. Both Wood and Hansen tes-
tified Wood identified Linsalto as his source when Hansen
asked how he knew of her remarks.
I cannot find Linsalto's unsolicited report to Wood and
Wood's free divulgence of Linsalto as the source can sup-
port a finding that Wood , by his statement to Hansen, gave
21 Delta Sportswear, inc. 160 NLRB 300 (1966)
1117
Hansen the impression that Wood was maintaining a sur-
veillance over her and other employees ' union activities.
I therefore shall recommend the allegations of the com-
plaint and union objections to the election so alleging be
dismissed.
7. The September 17 impression of surveillance , unlawful
prohibition of union solicitation , and discharge threat
Echiels substantially corroborated the testimony of Ash-
worth and Kelley that , on or about September 17, Echiels
informed Ashworth and Kelley they had been observed
passing notes and talking when they should be working,
that they were there to work and not to solicit for the
Union , and that they risked discharge or other discipline if
they continued in such activity during worktime . Echiels
also substantially corroborated Ashworth and Kelley testi-
mony or volunteered that he stated employees were barred
from union solicitation on company property at any time
during their work shift , including breaktime , and including
solicitations on the company parking lot during breaktime.
It is well established an employer violates Section 8(a)(1)
of the Act when it threatens its employees with discipline
for engaging in union activities on their free time on com-
pany premises.22
I therefore find and conclude that , on or about Septem-
ber 17, the Company, by Echiels, violated Section 8(a)(1)
of the Act by threatening Ashworth and Kelley and other
employees with discharge or other discipline if they carried
on union activities during their free time on company
premises , including its parking lot, and thereby prevented a
free and fair election.
8. The October 11 impression of surveillance , threats of
layoff , and plant closure
Wood , Echiels, White , and Hansen substantially corrob-
orate one another in testifying that , in a conference in
Wood 's office on or about October 11 , Wood accused
White of deliberately sabotaging work in the plant , stated
employees had informed him what employees were saying
about the Union and about him, and informed White and
Hansen if the Union was successful in organizing the em-
ployees and in securing improvements in their wages,
hours, and working conditions , he would undoubtedly
have to raise his prices, and this would make him noncom-
petitive and force him to lay off employees and possibly
close the plant , to which Hansen rejoined the employees
did not wish to cause Wood to cease business , but only to
improve their wages and working conditions.
I do not find Wood 's comment he had received reports'
concerning comments made about the Union and about
him as creating an impression he was maintaining a sur-
veillance of union activities and I recommend those por-
tions of the complaint and election objections so alleging
be dismissed.
The balance of Wood 's comments raise the constantly
recurring issue of whether they constitute privileged com-
ments under Section 8(c) of the Act , i.e., predictions as to
22 See fn 21
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible consequences of union organization, or whether
they constitute an implied threat of layoff and plant clo-
sure in the event the union organizational campaign was
successful.
In a recent case, a Board majority found similar com-
ments constitute a threat rather than a prediction, inas-
much as the employer failed to demonstrate objective con-
siderations formed the basis for his prediction, citing
N.L R.B. v. Gissel Packing Co., Inc, 395 U S. 575 (1969)23
The Company failed to adduce any objective evidence to
support Wood's predictions of layoff or plant closure in the
event the employees chose union representation; and it
does not necessarily follow that the Union would secure
higher wages and working conditions than those which
would enable Wood to meet his competition; Wood might
very well institute production improvements and otherwise
make his operation more economical and efficient and re-
main in competition whether or not his employees were
union represented.
It is further clear that Hansen considered Wood's re-
mark a threat and not a prediction-and her reaction was
that of a typical employee.
I therefore find and conclude that, by telling White and
Hansen on or about October 11 that in the event the em-
ployees chose to be represented by the Union, the Compa-
ny would have to lay off employees and possibly go out of
business, Wood made an implied threat in derogation of
his employees' Section 7 rights, thereby violating Section
8(a)(1) of the Act and inhibiting a fair election.
CONCLUSIONS OF LAW
1. The Company at all times pertinent was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent Wood and Echiels were supervi-
sors and agents of the Company acting on its behalf.
3. The Company violated Section 8(a)(1) and (3) of the
Act by its September 9 discharge of Smith in part because
of her union activities.
4. The Company violated Section 8(a)(1) of the Act by
Echiels' September 12 interrogation of White concerning
his union activities on his own time, by his threat to disci-
pline White for his union activities on his own time on
company premises, and by his promise to give White a
wage increase if he desisted from engaging in union activi-
ties on his own time on company premises.
5. The Company violated Section 8(a)(1) of the Act by
Echiels' September 17 threat to discipline Ashworth and
Kelley for engaging in union activities on their own time
on company premises and by prohibiting Ashworth, Kel-
ley, and other employees from engaging in union activities
on their own time on company premises.
6. The Company violated Section 8(a)(1) by Wood's Oc-
tober 11 threats to White and Hansen that the Company
would lay off employees and close the plant in the event a
majority of the employees chose the Union as their collec-
tive-bargaining representative.
23 Honeywell, Inc, 225 NLRB No 79 (1976)
7. The Company prevented a free and fair election on
October 31 by its September 10 discharge of Smith in part
because of her union activities; by its September 12 inter-
rogation of White concerning his union activities, threaten-
ing him with discharge for engaging in union activities on
his free time on company premises and promising him an
economic benefit for desisting from union activities on his
own time on company premises; by its September 17 threat
to discipline Ashworth and Kelley for engaging in union
activities on their own time on company premises and pro-
hibition of any employee engaging in union activities on
their own time on company premises; and by its October
11 threat to lay off employees and close the plant in the
event a majority of the employees chose to be represented
by the Union for the purpose of bargaining collectively
with the Company concerning their wages, hours, and
working conditions.
8. The Company did not otherwise violate the Act or
prevent a free and fair election from being held among its
employees on October 31.
THE REMEDY
Having found the Company engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act
and in misconduct which prevented a free and fair election,
I recommend the objections to the election be sustained
and a new election be directed at a time when the results of
the election misconduct have been dissipated, that the
Company cease and desist from its unfair labor practices,
and that the Company be directed to take certain affirma-
tive action designed to effectuate the purposes of the Act.
Having found that Smith was discharged on September 9
for engaging in concerted activities protected under the
Act, I shall recommend Smith be offered full and immedi-
ate reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to her seniority rights and other rights and privileges, and
that she be made whole for any wage losses she may have
suffered by payment to her of the sum of money she would
have earned from the date she was discharged to the date
she is reinstated, less any net earnings she has received in
the interim. Her lost wages shall be computed in accor-
dance with the formula described in P. W. Woolworth
Company, 90 NLRB 289 (1950), with interest at 6 percent
per annum, computed in accordance with the formula de-
scribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). I shall also recommend the Company post notices
directed to its employees advising them of its compliance
with the foregoing and that it will not discharge its employ-
ees for engaging in union activities, interrogate them con-
cerning their union activities, threaten them with discharge
for engaging in union activities on their own time on com-
pany premises, promise them a benefit for refraining from
engaging in union activities on their own time on company
premises, or threatening them with layoffs or plant closure
in the event they choose to be represented by a union.
Upon the basis of the foregoing findings of fact, conclu-
sions of law and the entire record, and pursuant to Section
10(c) of the Act, I issue the following recommended:
WOOD TRANSFORMERS, INC.
ORDER 24
Respondent Wood Transformers, Inc., Orange, Califor-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise disciplining its employees
for seeking to form or supporting an organization existing
or created for the purpose of bargaining collectively with
the Company concerning its employees' rates of pay, wag-
es, hours, and working conditions.
(b) Interrogating its employees concerning their union
activities, threatening them with discharge for engaging in
union activities on their own time on company premises,
promising its employees economic benefits for refraining
from union activities on their own time on company prem-
ises, prohibiting its employees from engaging in union ac-
tivities on their own time on company premises, and
threatening its employees with layoff or plant closure in the
event they select a union as their collective-bargaining rep-
resentative.
(c) In any other manner interfering with its employees'
rights under Section 7 of the Act to self-organization, to
form, loin, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid and protection.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer Patricia Smith reinstatement to her former po-
sition or, if that position no longer exists, to a substantially
equivalent position, without prejudice to her seniority and
other rights and privileges.
(b) Make Smith whole for any loss of earnings she may
have suffered as a result of her discriminatory discharge in
the manner set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to compute the backpay
due to Patricia Smith in the manner set forth in The Rem-
edy section of this Decision.
(d) Post at its Santa Ana facilities copies of the attached
notice marked "Appendix." 25 Copies of said notice, on
forms provided by the Regional Director for Region 21,
shall be signed by an authorized representative of the Com-
pany and posted immediately upon receipt thereof, and
shall be maintained for at least 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Company to ensure that said
notices are not altered, defaced, or covered by any other
material.
1119
(e) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
the Company has taken to comply herewith.
21 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
25 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT discharge or otherwise discipline our
employees for seeking to form or assist any labor orga-
nization, for seeking to bargain collectively through a
representative of their choosing, or for engaging in
other concerted activities for the purpose of collective
bargaining or other mutual aid and protection.
WE WILL NOT interrogate our employees concerning
their union activities, threaten them with discharge for
engaging in union activities on their own time on com-
pany premises, promise them economic benefits for
refraining from union activities on their own time on
company premises, or threaten them with layoff or
plant closure in the event they choose union represen-
tation.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to engage in the activities enumerated
above
Since the Board has determined we discharged Patricia
Smith because she sought to assist a labor organization in
securing the right to represent our employees for the pur-
pose of bargaining collectively with us concerning their
rates of pay, wages, hours, and working conditions, WE WILL
offer Patricia Smith immediate and full reinstatement to
her former job, without prejudice to her seniority and other
rights and privileges, and WE WILL make Patricia Smith
whole for any loss of wages or any benefits she may have
suffered by reason of her discriminatory discharge.
WOOD TRANSFORMERS, INC.