Robin American Corporation

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robin American Corporation and International La- dies' Garment Workers Union, Local 415-475, ALF-CIO, Southeast Region. Cases 12-CA--8014, 12-CA 8076, 12 CA-8086, 12-CA-8087, 12 CA 8151, 12-CA-8183, and 12-RC-5412 September 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 16, 1979, Administrative Law Judge Jose- phine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed limited exceptions. 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,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- I Respondent's request for oral argument is hereby denied as the record. exceptions, and briefs adequately set forth the issues and positions of the parties. 2 Respondent has excepted to certain crediblity findings made by the Ad- ministrative 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 resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. We adopt the Administrative Law Judge's finding that Respondent's bar- gaining obligation began on November 17, 1977. Chairman Fanning would find that the bargaining obligation arose on November 9, 1977, the date of the initial demand for recognition based on a card majority. We agree with the Administrative Law Judge that Miriam lzquierdo's discharge was violative of Sec. 8(aX3). In doing so, we find that Respondent's proffered business justification is unsubstantiated by a preponderance of the evidence and was merely a pretext used to mask its real reason for discharg- ing Izquierdo, to rid itself of an active union supporter. I We herein correct several inadvertent errors made by the Administrative Law Judge. She omitted from her Conclusions of Law, recommended Order. and notice her finding (ALJD, sec. II,D,I, pars. 11 14) that Respondent violated Sec. 8(aXI) by soliciting unfair labor practice strikers to abandon their strike. See par. l(c) of our Order. The Administrative Law Judge omitted from her recommended Order any reference to the 8(a)5) finding with respect to the closing of the slider department. See par. (f) of our Order. Also omitted from the recommended Order and notice was a refer- ence to Respondent's refusal to reinstate the unfair labor practice strikers. See par. 2(a) of our Order. The provisions contained in par. 2(b) of our Order were also inadvertently omitted from the recommended Order. We also amend the recommended Order to order certification of the Union if the tally of ballots reveals that it received a majority of votes. tions Board hereby orders the Respondent, Robin American Corporation, Hialeah, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning union support and activities. (b) Expressly or impliedly threatening employees with discharge if they support a union. (c) Soliciting unfair labor practice strikers to aban- don a strike. (d) Discouraging membership in International La- dies' Garment Workers Union Local 415-475, AFL- CIO, Southeast Region, or any other labor organiza- tion, by laying off, terminating, or discharging em- ployees, or by discriminating in any other manner with respect to their hire or tenure of employment. (e) Refusing to bargain collectively concerning rates of pay, hours, and other terms and conditions of employment with the aforenamed Union as the exclu- sive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, leadmen, inspectors, and truckdrivers, employed by Respondent at its Hialeah, Florida, locations, but excluding office clerical employees, guards, and supervisors as defined in the Act. (f) Closing any department or discontinuing any operation or type of work without notifying and bar- gaining with the aforenamed Union. (g) Failing and refusing to reinstate unfair labor practice strikers to their former positions after they have made unconditional requests for reinstatement. (h) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) As provided in the section of the Administra- tive Law Judge's Decision entitled "The Remedy," offer the 8 discriminatees listed in Appendixes A and B, and the 32 unfair labor practice strikers who made unconditional offers to return to work listed in Ap- pendix B [Omitted from publication.], immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as the result of the discrimination against them in the manner as therein provided. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all 245 NLRB No. 108 822 ROBIN AMERICAN CORPORATION other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Upon request, recognize and bargain in good faith with the above-named Union as the exclusive representative of all employees in the aforesaid ap- propriate bargaining unit, and, if an understanding is reached, embody such understanding in a written, signed agreement. The bargaining prescribed by this Order shall be conducted retroactive to November 17, 1977. (d) Post at its plants in Hialeah. Florida, copies of the attached notice marked "Appendix A." 4 Copies of said notice, in English and in Spanish, on forms pro- vided by the Regional Director for Region 12, after being signed by Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial. (e) Notify the Regional Director for Region 12. in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the consolidated com- plaints be dismissed insofar as they allege violations of the Act not specifically found herein. IT IS ALSO FURTHER ORDERED that the challenged ballots shall be opened and counted; that, should the tally of ballots reveal that the Union received a ma- jority, the Union be certified; and that, if the tally of ballots reveals that the Union failed to receive a ma- jority, the election shall be set aside, the representa- tion petition dismissed, and all prior proceedings held thereunder shall be vacated. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board has found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We intend to carry out its provisions as follows: The National Labor Relations Act gives all em- ployees these rights: To form, join, or help unions To bargain as a group through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WII. NOT do anything that interferes with these rights. WF WII NOT lay off or terminate employees, or otherwise discriminate against them, because of membership in and/or activities on behalf of International Ladies' Garment Workers Union, Local 415-475, AFL-CIO. Southeast Region. or any other labor organization. WE WILL NOT refuse to recognize and, upon request, bargain with the aforenamed Union as the exclusive representative of our employees in the following appropriate bargaining unit: All production and maintenance employees. leadmen, inspectors, and truckdrivers, em- ployed by us at our Hialeah, Florida, loca- tions, but excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT interrogate our employees con- cerning their union sympathies or activities. WE WILL NOT, expressly or impliedly, indicate that any employees have been, are being, o, will be laid off or discharged because of their mem- bership in or support of the aforenamed Union, or any other labor organization. WE WILL NOT refuse to reinstate unfair labor practice strikers to their former positions after they have made unconditional requests for rein- statement. WE WILL NOT solicit unfair labor practice strikers to abandon a strike. WE WILL NOT close any department or discon- tinue any operation or type of work, in the way we discontinued production of sliders, without notifying and bargaining with the aforesaid Union. WE WILI. NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of the rights guaranteed them in Sec- tion 7 of the National Labor Relations Act. WE WII.L offer Adela Hernandez, Lucille Rice, Jose Garcia, Montey Collins. Joseph Jules, Mir- iam lzquierdo, Juana Oses, and Maria Ruiz full and immediate reinstatement to their former po- sitions, or, if any such jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privi- leges previously enjoyed. 823 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make the aforenamed employees whole, with interest, for any loss of earnings they' may have suffered by reason of our having laid them off and/or terminated their employment. To the extent that we have not already done so WE WILL offer full and immediate reinstatement to all striking employees on whose behalf an un- conditional request for reinstatement has been made, and WE WILL make such employees whole, with interest, for any loss they may have suffered by reason for our failure to offer them reinstate- ment since February 18, 1978, when we received their unconditional request for reinstatement. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive representative of the employees in the bargaining unit described above with respect to rates of pay, hours of employment, and other terms and con- ditions of employment, including closure of any department or discontinuance of any operation; and, if an understanding is reached, WE WILL embody such understanding in a signed written agreement. ROBIN AMERICAN CORPORATION DECISION JOSEPHINE H. KLEIN. Administrative Law Judge: These cases were heard in Coral Gables, Florida, on July 31 through August 10, 1978, pursuant to a consolidated com- plaint issued on May 15' and an order issued on June 6 consolidating the complaint proceeding for hearing with objections to the conduct of an election and challenges to ballots in the representation proceeding. The complaint was further amended in the course of the trial. The consolidated complaint, as amended, alleges that Robin American Corporation, Respondent, violated Sec- tion 8(a)(1), (3), and (5) of the Act' in the course of an organizing campaign conducted by International Ladies' Garment Workers Union, Local 415-475, AFL-CIO, Southeast Region (the Union), Charging Party-Petitioner, beginning early in November 1978. All parties were represented by counsel at the trial and were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. At the conclusion of the trial the parties waived oral argument. They have all filed post-trial briefs. I Charges were filed as follows: Case 12-CA-8014, January 10, amended February 15: Case 12-CA-8076, February 17; Cases 12-CA-8086 and 8087. March 3; Case 12-CA-8151, April 21; Case 12-CA-8183, May 10. Complaints and consolidated complaints were issued on February 17 (Case 8014); April 6 (Cases 1 2-CA-8014 and 8076): April I I (Cases 12-CA- 8014, 8076, 8087); May 12 (Case 12-CA-8151); May 15 (Case 12-CA 8183). 2 The election was held on March 3, under a Decision and Direction of Election issued on February 2 pursuant to a petition filed on November 17, 1977. The Regional Director's decision directing a hearing on objections and challenged ballots was issued on April II. 'National Labor Relations Act, as amended, 29 U.S.C., 151 et seq. Upon the entire record, together with careful observation of the demeanor of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Respondent, a Florida corporation with places of business in Hialeah, Florida, is engaged in the manufacture arid sale of zipper chain. During the 9 months of its exis- tence before these proceedings, Respondent purchased and received at its Hialeah plant goods and materials valued in excess of $50,000 directly from points outside Florida. Re- spondent is now, and was at all times material herein, an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. B. The Union is now, and at all times material herein was, a labor organization within the meaning of Section 2(5) of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICES A. Background, Chronology, and Issues Until March 27, 1977, Richford Industries, a conglomer- ate, conducted a zipper producing business. Samuel Robin- son had been associated with Richford for about 12 years and was a vice president and the president of the zipper department; Albert Benbasat, with Richford for about 7 years, was plant manager for the zipper manufacturing divi- sion, known as American Robin Corporation; and Michael Samberg had served as American Robin's engineer for about 9 years. As of March 27, 1977, Robinson, Benbasat and Samberg purchased Richford's zipper business. Robin American Corporation was created as the producer of zip- per chain. Robinson Industries, a separate corporation with the same beneficial ownership as Robin American,4 con- verted the finished chain to zippers by cutting the chain to desired lengths and equipping the zippers with top and bot- tom hardware and sliders.' As set forth in more detail below, the business purchased from Richford included equipment for the manufacture of sliders, which involves manufacturing three parts (body, spring, and pull) and assembling them together. In the transfer, Robin American acquired the equipment for manufacturing the three parts, while the assembly equip- ment was taken by Robinson Industries. Between November 5 and November 10, 1977, 59 em- ployees executed authorization cards in favor of the Union. On November 9 union representatives visited the plant and orally demanded recognition and bargaining. Upon Re- spondent's rejection of the demand, the Union made a writ- ten demand, as of November II. That demand also was rejected by Respondent. At the trial it was stipulated that 4 According to Benbasat. for about a year and half before the transfer of the business, Samuel Robinson had been the sole owner of Robinson Indus- tries. 5 Zipper chain consists of two continuous woven tapes, each with "teeth" or a coil on one side. Sliders are mechanisms which are applied to the tapes to engage or disengage the teeth or coils with each other. thus closing and opening the zipper. 824 ROBIN AMERICAN CORPORATION on November 9 and 11, 1977, there were 86 employees in the agreed production and maintenance bargaining unit, in addition to Octavio Rodriguez and Martin Santiago, who Respondent contends were supervisors and whose em- ployee status was litigated in the present proceeding. On November 17, 1977, the Union filed a representation peti- tion. On December 9, 1977, without any advance notice to the employees, Respondent discontinued the slider department and dismissed its five employees. Thereafter there were lay- offs or discharges in other departments, including four on January 20 and 21, 1978. The Union filed charges alleging that 11 layoffs or discharges were violative of Section 8(a)(3) of the Act. The Regional Director dismissed the alle- gations as to three of the alleged discriminatory discharges, but issued complaints alleging that eight, including the five in the slider department, were violative of Section 8(a)(3). On January 24 and 26, fearing that continuing layoffs or discharges would irreparably undermine the Union before an election was held, about 40 unit employees went out on strike. Their picket signs protested Respondent's "unfair la- bor practices." The next day, January 27, Benbasat asked 20 employees, individually, to return to work. Eight of the 20 accepted the invitation. On February 2, 1978, the Regional Director issued a De- cision and Direction of Election, the election to be held on March 3. Thereupon, on February 15,6 the Union requested immediate reinstatement of 32 strikers. Respondent gave no formal reply to that request until March 6, after the elec- tion, which the Union lost by a vote of 14 to 40, with 30 challenged ballots. Twenty-seven of the challenged ballots were cast by strikers or discriminatees whose names did not appear on the eligibility list. The three remaining challenges were made by the Union, on the ground that the voters were not employed by Respondent on both the eligibility and election dates. The Union also filed objections to the conduct of the election. The consolidated complaint alleges that after the Union demanded recognition and filed a representation petition, Respondent embarked on a course of unfair labor practices designed to undermine employee support of the Union. This alleged misconduct consisted of violations of Section 8(a)(1), such as improper interrogation; discriminatory lay- off or discharge of nine7 employees and unlawful failure and refusal to reinstate unfair labor practice strikers, in vio- lation of Section 8(a)(3). The General Counsel maintains that Respondent's violations of Section 8(a)(I) and (3) are such as to warrant finding a Section 8(a)(5) violation and issuance of a Gissel bargaining order.' In essential agree- ment with the General Counsel, the Union contends that if, after resolution of the challenged ballots, the Union has not won the election, the election should be set aside and a Gissel bargaining order should be issued. Respondent denies the commission of any unfair labor practices. It sought to establish that the eight allegedly dis- 6 Respondent apparently received the demand letter on or about February 18. 'One of the alleged discharges occurred after the election and involved the termination of a reinstated striker. s N.L.R.B. v. Gissel Packing Co., 385 LU S. 575 (1979). criminatory discharges on December 9. 1977. and January 20 and 21. 1978. were all motivated solel5 by economic considerations. As an additional defense to the allegation of violation of Section 8(a)(5). Respondent maintains that Octavio Rodriguez. who was a moving force in the Union's organizing campaign and solicited mans union authoriza- tion cards, was a supervisor. and therefore the entire orga- nizing campaign was tainted. Respondent maintains that the strike was economic in nature and some strikers have been permanently replaced some are ineligible for reinstatement because of strike mis- conduct and/or their status as supervisors, some have been recalled, and the remaining unrecalled strikers are not needed because of a decline in business. Respondent further asserts that no remedial order is called tfor because, out of an excess of caution and on the advice of counsel. Respon- dent has offered reinstatement to three quarters of the strik- ers, discharging some of the striker replacements and main- taining a larger staff than is needed. B. Credihilit' The discussion of the specific evidence will note certain deficiencies in Respondent's evidence, such as inconsisten- cies, implausibilities and the absence of record or documen- tary evidence when such written evidence would appear to be readily available and more convincing than oral testi- mony. In addition to such specific examples, two matters concerning the sequestration of witnesses deserve at least brief comment. On Respondent's motion, the witnesses were ordered se- questered even though it was pointed out to Respondent's counsel, that under Board law as it stood at the time.9 se- questration would undoubtedly favor the General Counsel because of the number of alleged discriminatees. During the cross-examination of the General Counsel's last witness in his direct case, counsels' attention was di- rected to the fact that there were "a lot of new faces" in the hearing room. Referring to the sequestration order. Respon- dent's counsel replied: "I'm satisfied. No problem." When the General Counsel rested, Respondent called one of the new auditors as his first witness. Respondent's counsel then indicated that among the auditors were three witnesses who were crucial to his case. As a matter of discretion. I over- ruled the General Counsel's objection to allowing those per- sons to testify. Filiberto Monteagudo, called by Respondent. revealed that on the preceding evening several of Respondent's pro- spective witnesses had met with Respondent's counsel in Benbasat's office. Monteagudo named Benbasat, plant manager Anthony Ballarino and supervisor Paul Quiros. major witnesses for Respondent. as having attended the meeting. Monteagudo testified that he was at the meeting for "an hour, half an hour. more or less." and had been the first person to leave. While it is. of course, proper for counsel to interview possible or prospective witnesses, a major purpose of se- questering witnesses during a trial is to prevent their hear- ' The hearing was held befRre the Board issued ls decl~ion I n ,a PArm ing C(pornaion, 237 NLRB 1306 (1978) DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing each other's testimony and thus being able, consciously or subconsciously, to tailor testimony to a consistent and mutually corroborative support of the position of the party for whom they will testify. That purpose of sequestration is totally defeated if the prospective witnesses for a party dis- cuss their testimony among themselves. This view is partic- ularly pertinent where, as here, witnesses for the defense met after all the testimony against the party has been pre- sented. It is true that in the present case there is no specific, direct evidence that any testimony was actually tailored to a particular view. But no such specific evidence could he developed without running the risk of improperly intruding into the conduct of counsel.' ° Whatever actually transpired at the meeting of Respondent's witnesses, the opportunity was obviously present for violation of the sequestration or- der, at least in spirit if not in letter. It may be noted that, as set forth below, at least one major concession was made by Samberg, who had not attended the meeting. Respondent's failure to observe the letter and spirit of the sequestration order, which it requested, of necessity leads one to scruti- nize its evidence with great care. Having outlined the bases of my doubt as to the general reliability of Respondent's evidence. I turn briefly to the General Counsel's evidence. Despite the fact that most of the General Counsel's witnesses testified through an inter- preter or in very flawed English. their testimony was gener- ally clear and to the point. In the main, they spoke in spe- cifics rather than in generalized conclusory terms. Their testimony was all essentially consistent. The few inconsis- tencies in their testimony that Respondent notes in its brief are minor and readily explained by the inherent inexacti- tude of human memory, increased by apparent linguistic difficulties. For example, in discussing the allegations that Superintendent Raul Quiros asked employee Lucille Rice if she had been given a union card by Jose Garcia, Respon- dent observes that: "Garcia testified that all the conversa- tions took place in the morning a few minutes apart.... Rice testified that [Plant Manager] Ballarino first ap- proached her in the morning and that she and Garcia sub- sequently confronted Ballarino that afternoon...." The temporal difference between the two events is unimportant. It is undisputed that Rico told Garcia of a conversation she had had with Ballarino and the two employees together thereafter spoke to Ballarino about it. Ballarino did not dispute these facts; he merely disagreed with Rice as to the content of their conversation. Based on their demeanor and the content of their testi- mony, I am convinced that the General Counsel's witnesses conscientiously attempted to present the facts to the best of 0 In its bnef, Respondent says: "General Counsel ... sought to discredit much of the Respondent's testimony through alleged violations of the [se- questralionl rule and unsuccessfully attempted to create the illusion that Respondent's counsel had 'prepared' witness testimony. Repeated questions were asked by Isic a number of Respondent's witnesses about their conver- sations with counsel prior to hearing. While such conduct on the part of the General Counsel was clearly uncalled for, it appears that the conduct olf both General Counsel and Respondent amounted to no more than harmless error in view orf the Unga Painilng decision" I find that counsel for the General Counsel were not guilty of any improper conduct. their recollection and ability. without exaggeration or fabri- cation.' C. 7ie Facts I. The slider department a. Ilislort o the dcpalrtllnc The zipper business purchased by Respondent from Richford included the manufacture of slider, principally for Respondent's lightweight polyester zipper chain. No. 2. Benbasat and Robinson testified that they acquired the slider equipment only as part of the overall purchase of the zipper business: that Richlord insisted upon a "package" deal and that the slider equipment was, in effect, thrown in, with no part of the total cost attributed to it. Robinson's testimony was: We paid them nothing for the slider operation because it wasn't worth anything. We paid them nothing. It was never involved in the purchase. We got it for noth- ing. Robinson also disclosed that Respondent had purchased two additional machines to supplement those acquired from Richford. Samberg testified that Respondent has "about $100,000 worth of equipment," for which Respondent "had bor- rowed" and is "paying 15 percent interest on that $100,000 which is about $300 a week." He further expressed the opinion that Respondent "could get well over $100,000 for" the slider equipment that was left after two pieces were sold in January 1978 for $16,000. Benbasat testified that the slider equipment was carried on Respondent's books at a value of$106.000, "costing approximately $15,000 a year to carry in interest." He added that Respondent also now had paint worth about $8.000 to $10.000, which, through the passage of time, had become "unusuable." At the time of the transfer from Richford, the slider equipment was housed in a building rented at $30,000 per year. With the lease expiring in June, Respondent decided to move the equipment to avoid the continuing rent ex- pense. The machinery for producing slider components was moved to vacant space in Respondent's nearby building, while the slider assembly equipment was moved to the premises of' Robinson Industries, in Miami. The compo- nents produced by Robin American were sent to Robinson Industries for assembly and the Assembled sliders were then returned to Robin American for painting, after which they were again sent to Robinson Industries for mounting on the zipper chain. Robinson Industries, also owned by Robinson, Benbasat and Samberg, is one of Respondent's major "customers" for zipper chain, which Robinson Indus- tries converts to finished zippers.' According to Respondent. Samberg had originally esti- mated the cost of moving the equipment at $10,000. How- " Martin Santiago did engage in a hit of fcncing w th Respondent's coun- sel Howsever, such fencing did not entail distortiln or misstatement of the tacts. 1 Apparently the same individuals own several other corprations, nclud- ing Robin American of Ne Yrk: Preslige. also of Ness ork. and Robin hitporl-l xport ('orporatlon 926 ROBIN AMERICAN CORPORATION ever, the actual cost was around $25.000 because of prob- lems such as getting adequate water and power. In addition, some $2,000 was spent for supplies and two addi- tional machines were purchased. Benbasat testified that under Richford's ownership slider production had been a "disaster" and was conducted only "sporadically." According to Benbasat. at the time of the transfer the slider operation was largely a "salvage" opera- tion, turned over to the engineering department. In line with Benbasat's testimony, Robinson testified that the slider operation had never been successful and was a major con- tributor to the losses which led Richford to sell the zipper business. Samberg, who had long experience and specialized knowledge of slider production, presented a somewhat dif- ferent picture. He had originally set up the slider operation for Richford and had supervised it thereafter. According to him, an acceptable percentage of waste in slider production is "ulinder five percent," and Richford had "averaged five. We'd run down to three and we'd run up to six or seven." using the same equipment. Samberg was optimistic about the prospects of Respondent's slider operation. Although Robinson and Benbasat testified that they did not share Samberg's optimism, they agreed to Respondent's embark- ing on slider production. Samberg had originally projected slider production to be- gin around August or September. However, that target was not fully reached. Production of springs and pull-tabs was begun around October 7. At that time there was on hand a supply of bodies, the third components of sliders. The equipment for producing more bodies became fully opera- tive around November I. Thus production of finished slid- ers actually commenced early in October and continued until it was abruptly ended on December 9. 1977. About the middle of November 1977, Jose Novo. plant manager of Robinson Industries, reported that 100,000 out of a batch of 300,000 sliders received from Respondent were defective. Despite Robinson's and Benbasat's ex- pressed opinion that Respondent's slider production was a total failure, Samberg testified that the November batch was the only one that was defective. He testified specifically that acceptable sliders were being made in October and it was only for a short period in November that the machine for making springs had gone out of adjustment, causing defective parts. He stated that the difficulty "was corrected and adjusted in a couple of days time." However, he later testified that he thought correction of the problem had taken no "more than a matter of a couple of hours." In any event, he testified unequivocally that "the last springs that were produced on those spring machines were good springs." The evidence establishes that the springs pre- sented the only substantial problem in Respondent's pro- duction of sliders. Respondent introduced evidence to show that in the period from October I through November 18. the slider operation produced waste, or scrap, ranging be- tween 9.15 percent to 20 percent. However, the evidence further shows that substantial waste is inevitable at the be- ginning of the operation, after it is first installed and before the machines are fully adjusted. There is no evidence of the amount of scrap after November 18, when the bad batch was discovered. Samberg did not mention any scrap or waste problem when he testified unequivocally that good sliders were being produced after the 100.000 defective ones. In the middle of November a spring machine burned out and was replaced within a week. Jose Garcia. the mechanic servicing the slider depart- ment, had worked on the slider production since 1973. He testified that there had alwa's been some problems with the slider equipment, but they were always readily solved. Ac- cording to Garcia. the problems were just about the same before and after Respondent took over and moved the equipment. Garcia also testified that shortly betbre the slider department was closed he and Samberg had discussed additional supplies to be purchased. Benbasat and Samber testified that on November 16. atf- ter the batch of defective sliders was discovered, the three owners and Novo met and discused the advisability of dis- continuing slider production. Benbasat testified that there- upon Robinson investigated the matter and found that Re- spondent could purchase sliders from Pilling Chain Company, a newcomer to the field, at a discount of 10 per- cent off the market price of $15.75 per thousand. Novo testified that it was he who dealt with Pilling. Yet in a pre- trial affidavit, Novo had said that at a second meeting. on December 7, "Robinson told us that Pilling Chain Com- pany had offered to cut its price fr preassembled sliders by ten percent." In any event, whoever dealt with Pilling. when Respondent thereafter made purchases from Pilling. the in- voices showed the list pnce of $15.75. Novo explained that the "discount is taken at the time of payment" and is "ne- gotiated under the conditions of the time." He added that the Company had previously got discounts of 3 to 5 percent from other suppliers, but never as high as 10 percent. In its brief, Respondent says that "Pilling Chain Company, Inc.. did provide Robinson with a five percent (5'(r) discount on its order."'" The Pilling order for 500.000 sliders was given on January 5., 1978. Under invoice date of January 19. 35.000 were shipped by Pilling. In December 1977 Respon- dent ordered 429.000 sliders from Acme Associates Incor- porated. The invoice price of these was $15.75 per thousand and there is no evidence concerning any discount. Samberg testified that he had made a rough analysis of Respondent's costs and concluded that they came to at least $17.43 per thousand. He conceded, however, that he had made his computation from "memory." without consulting any rec- ords." And his calculation was prepared only two or three weeks before the present trial, long after the slider depart- ment was closed. At the second management meeting. on December 7. Robinson dictated the decision to discontinue production sliders. Samberg testified that throughout the period be- tween the November 16 and December 7. 1977 manage- ment meetings Respondent had been producing sliders of good quality. He maintained, however, that the quantit of production was low. He attributed the lack of success of the operation to his inability to devote sufficient time to it be- " This slatemen is said to be based n "lhe check hich paid for he shipment." which is not n evidence 4 tis "analysis" sas offered in eidence lloweser. it a,il re)elted until such time as supporting records were produced Although Respondenlt' counsel said Ihai he would "ask Mr Samnberg ii ring hose records." the' were never produiced 827 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause his major efforts were addressed to trying to perfect production of Respondent's heavier chain, No. 63, and to developing a new heavy chain, No. 60. He said these activi- ties took priority because demand for the No. 2 light chain was declining. Samberg testified that slider production required virtu- ally full-time attention by Samberg after the machinery had reached satisfactory production. However, he also testified that the frequent routine adjustments required were always made by the mechanic rather than by Samberg himself. At one point he said that the inspection process was "just com- pletely out of control." He did not explain why a company vice president and part owner, who was an experienced and creative engineer, would devote most of his time and energy to inspecting goods, a function usually performed by in- spectors or quality control employees. Toward the end of the working day on December 9 Sam- berg informed the employees of the demise of the depart- ment, effective immediately. He informed the employees that they would receive severance pay. Shortly thereafter employee Joseph Jules was recalled to strip paint from de- fective sliders and worked for about a week and a half. On January 26, 1978, Respondent" sold, among other things, 162,800 No. 2 sliders to one of its regular customers, Qual- ity Production Inc., of Puerto Rico, at $10 per thousand. An additional credit of $2.80 per thousand was later granted for 75,000 of those sliders. On March 20 Respon- dent sold 81,120 "raw" No. 2 sliders to Quality Production at a "special lot price" of $7 per thousand. Presumably these "raw" sliders were those which Jules had salvaged. Respondent's brief states that, upon closure of the slider department, "the Company resumed its longstanding prac- tice of purchasing sliders from outside suppliers." However, the Company had never produced or sought to produce all the sliders it used; it had always supplemented its own slider production by purchases from outside sources. b. The department employees At the time of the transfer of the zipper business from Richford to Respondent, there were five employees in the slider department-Jose Garcia, Lucille Rice, Joseph Jules, Adela Hernandez, and Montey Collins. With the exception of Jules, who had been hired in July 1976, all these employ- ees had been working there since around 1972 or 1973. All five signed the Union cards between November 5 and 9, 1977. Rice testified that on or about November 18 or 19, while she was at her work station, Anthony (Tony) Ballarino, plant superintendent in charge of the finishing, weaving and slider departments, approached her and asked if she had heard anything about a union and if she had signed a union card. Although she had signed a card, she feigned igno- rance and asked Ballarino if he was referring to a credit union. He replied in the negative and proceeded to ask Rice whether Jose Garcia, the department mechanic, had given her a union card. When she answered in the negative, Bal- larino said that he had heard a rumor that some employees '5The sales to Quality Production were made in the name of Robin Im- port Export Corp.. of Miami. were trying to bring a union in and he instructed Rice to inform him immediately upon her learning anything. Rice then told Garcia about her conversation with Ballarino, whereupon the two employees together spoke to Ballarino. At Garcia's request, Rice repeated her version of her prior conversation with Ballarino. Rice again denied that Garcia had given her a union card but now admitted that she had signed one. Garcia testified that Rice left and Garcia then asked Ballarino not to say anything about the matter since Garcia could be fired if management learned of his union activity. According to Garcia, Ballarino replied that he per- sonally did not "give a damn." Ballarino testified that he recalled a conversation with Rice but denied that a union was mentioned. According to him, he merely asked Rice how things were going and, when she replied that she had no complaints, he said, "if you hear anything, you know, let me know." Ballarino tes- tified that he was shocked and incredulous when Rice, with Garcia present, gave her version of Ballarino's earlier state- ments. Ballarino testified that he had never discussed the Union with either Rice or Garcia and had no knowledge that either of them had signed a union card. Ballarino did not explain what he had in mind when he told Rice to let him know if she heard anything. Since the Union had already demanded recognition and filed a peti- tion, the union campaign was the most obvious matter about which Ballarino might seek information from a rank- and-file employee. Additionally, it seems unlikely that Rice would make up the story out of whole cloth and then repeat it in Ballarino's presence. It is significant that the confron- tation with Ballarino occurred shortly after the manage- ment meeting of November 17 and before the decision to close the department. On these considerations, as well as observation of the demeanor of the witnesses, I credit Rice and find that Ballarino questioned her about the Union and her having signed a card. Jules testified that Ballarino asked him if he had signed a union card and Jules answered in the affirmative. Jules was unable to recall the date of Ballarino's inquiry, but it was between November 9. when Jules' authorization card was executed, and December 9, when the slider department was closed. Ballarino denied that he asked Jules if he had signed a union card or that he had any discussion whatsoever con- cerning the Union or union activities of any employees. Ballarino suggested that he could not have conversed with Jules since Ballarino did not know Haitian French, Jules' native language. However, at the trial Jules testified in gen- erally intelligible, if halting. English. I credit Jules' testi- mony that Ballarino asked him if he had signed a union card. Garcia testified that around the middle of November (about 3 weeks before the department was discontinued), he was called to the office, where Samberg, his supervisor, asked him if he had heard any rumors of union activity at the plant. Garcia answered in the negative. and that ended the conversation. Despite Samberg's denial, I credit Gar- cia's testimony. 2. The sewing department Maria Ruiz, a sewing machine operator, testified that around the middle of January, Ralph Quiros, superinten- 828 ROBIN AMERICAN CORPORATION dent of the sewing and coiling departments, asked her what, if anything, she had heard about forthcoming layoffs. When Ruiz said she had heard nothing, Quiros told her "not to think that the union was going to protect" her. Quiros de- nied having ever made such a statement to any employee. I credit Ruiz. Oses testified that while Quiros was distributing pay- checks on January 13, he asked her if she knew what a union card was. She replied that it "was a white cardboard with some lines where you signed." Quiros smiled and said nothing more. Quiros denied having asked Oses if she knew what a union card was. I credit Oses.'6 Early in November 1977 Oses and Ruiz executed union authorization cards, which they received from Edmundo Luna, a mechanic in the sewing department. In January 1978 Oses and Ruiz were working on experimental ma- chines. They were the only employees able to operate such machines, which Oses maintained were especially difficult to operate. On January 20 Quiros informed Oses that she was being laid off. She remarked that she had more seniority than other department employees who were being retained. She named at least three such junior employees. According to Oses, Quiros replied that the entire line in which she was working was being closed down and that seniority did not matter. Oses informed Luna of her layoff and the two em- ployees went to see Quiros. Oses testified that when Luna asked why Oses had been chosen for layoff, Quiros "said that he was laying [her] off because he had been ordered to do so and that [she] belonged to the Union." Luna testified that he accused Quiros of choosing Oses for layoff because she was a member of the Union and that in reply Quiros made an affirmative gesture and said that business was "slow." According to Luna, Quiros said that he was not the owner of the business, and was simply acting under orders in informing Oses of her layoff. Quiros denied that he made any reply to Luna's accusation that Oses' layoff was related to her union membership. Inferring that Quiros was refer- ring to Benbasat as the source of the layoff order, Luna went to Benbasat's office and put to Benbasat the same questions he had raised with Quiros. According to Luna, Benbasat said that he had to close the entire line of produc- tion in which Oses was working. Luna testified that Benba- sat then told him to "tell the Union to stay in Coral Gables." I credit Luna's testimony. Although, unlike Oses, he did not quote Quiros as affirmatively saying that Oses was being laid off because of her union membership, Oses un- doubtedly got that message from Quiros' failure to deny Luna's accusation. Her testimony thus was not "false" and was not inconsistent with Luna's. On January 21 Quiros telephonically informed Ruiz that she was being laid off, effective immediately, for business reasons. Respondent maintains that the layoffs of Oses and Ruiz were part of a general layoff necessitated by a decline in " In his brief, the General Counsel also refers to testimony by Ruiz con- cerning an interrogation by "Ofelia Bolanos, floorlady of the sewing depart- ment." However, no such interrogation is alleged in the complaint and it was stipulated at the trial that Bolanos was not a supervisor, but rather a member of the bargaining unit. sales and a resultant excess of inventories. According to Benbasat, as early as September 1977 it was apparent that Respondent was overproducing. But it was not until De- cember 13 that the first layoffs occurred in the sewing de- partment. At that time Amanda deLandaburu and Eliza- beth Molina, working on No. 63 chain, were laid off." At least through the period here involved. No. 2 chain was Respondent's major product. Most of Respondent's record evidence concerning its inventories covers only No. 2 chain. Benbasat's testimony, unsupported by records, was con- fused as to the layoffs in the sewing department. He testi- fied: In December we started with two girls in the sewing department. This was the 63 sewing department where also the business had died. And this followed a week or so later by three more girls.... In the 2 department in this case. By two more girls around December 15th or 16th. And fol- lowed by three weeks or so later in January by two girls in the sewing department. And by this time two girls that were related to the final product, one in the finishing department and one in the weaving depart- ment. Q ... How many people were laid off. A. In the 2 we had three and two. Five people in the sewing and one person in finishing related to the :#2 chain, and one person in the weaving related to inspection. Not related, but actually doing the inspec- tion of the tape that is used in the :2 chain.... There was one girl in weaving that was cut down, yes. The machines were cut down. However, we made some ad- ditional tape for metal chain. "Metal chain" appears to be No. 63.' Quiros testified that all five employees on the Ruiz-Oses line were laid off. How- ever, he then conceded that he thought at least one em- ployee with less seniority than Ruiz and Oses was retained on that line. He proceeded to testify that layoffs are never determined solely on the basis of seniority. Quiros testified further that the factors taken into consid- eration in layoffs were seniority, performance (productiv- ity), and quality of work. He said that "[w]e take a percent- age" and there are "charts" concerning all employees. Although Quiros testified that Ruiz' and Oses' charts could be produced, they never were. In its brief, Respondent says: "Since the layoffs were intended to be temporary, Benbasat made no inquiry regarding the seniority of the employees." m1 The Union charged that these two layoffs were violative of the Act, but those allegations were not included in the complaints. Respondent offered in evidence the Regional Director's letter dismissing the Union's allegations that deLandaburu and Molina, as well as Mario Venta, were discriminator- ily discharged. The exhibit was rejected as irrelevant. See Elm Hill Mears of Owensboro. Inc.. 205 NLRB 285, 294 (1973), followed in International Bak- ing Company. Inc., 240 NLRB 22 fn. 2 (1979), where the Board. in affirming an ALl's dismissal of a Section 8(aX3) allegation, said: "We .. specifically disavow his reliance, in support of this conclusion, upon the fact that the other 18 employees discharged by Respondent during this same penod were not included within the complaint." n' Although Respondent maintains that three No. 2 sewers were laid off before Ruiz and Oses, their is no evidence as to their identity or as to the details of those layoffs. In its brief, Respondent names the three employees and notes that no charges were filed concerning these layoffs. "presumably because they did not support the Union" 829 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, Ruiz' and Oses' personnel files contain "termina- tion" notices. Quiros maintained that Oses and Ruiz were only "aver- age" workers; he would grade them "C". the lowest grade at which an employee would be retained. However, Oses and Ruiz had received merit wage increases in May and October 1977, respectively. There is no evidence concerning merit increases to any other employees. In its brief, Respondent states that: "The choice of the experimental line to be closed down was mandated by the transfer of machinist-mechanic, Godwin Gregorie to other duties ... Gregorie was the mechanic who made the experi- mental modifications and maintained the 'number two' ma- chines." However, I credit employee testimony that Gre- gorie had worked on those machines for only a short time before their maintenance was transferred to Luna. Benbasat testified that, although he knew in September 1977 that the business was not going as well as he thought it should, he could not "take drastic action" but had to "wait," as he was "expecting a turnover which did not come in the following months." Nonetheless, Respondent granted a general wage increase in November or December. In ex- planation, Benbasat suggested that low sales volume did not necessarily wipe out profits.' He then added a state- ment of concern for the employees. 0 Robinson testified that 3 weeks after Respondent bought the zipper business, Talon, a large company, entered into direct competition with Respondent. Additionally, YKK, a Japanese company, provided major competition. Benbasat testified that style changes in ladies' clothing also caused a decline in sales of light weight zippers. According to Robin- son: "There's nobody making any profits." But at no time did Robinson produce any record evidence of its profit and loss. Respondent introduced production and sale figures, which it contends establish that production so exceeded sales as to create undesirably high inventories.2' The data introduced by Respondent do not appear to support Re- spondent's contention that inventory problems called for additional layoffs in January. In each of the months Sep- tember through December 1977 production of No. 2 chain exceeded sales. However, in January 1978, that picture was reversed, with sales surpassing production by 29,292 yards, despite the fact that sales in the first week of January were the lowest shown, amounting to less than 20 percent of the weekly average for the previous 4 months.2 And in dollar ' His testimony was: "1 have never stated that the company either lost or made money during the period time." 2 He testified: At "the end of the year 1977, we thought that the employ- ees were entitled to something. Even if business goes bad and we lose money, we have to do something for the employees. The employees are hit by infla- tion and something has to happen." The general wage increase was not alleged or litigated as a possible viola- tion of Sec. 8(aX5) of the Act. 21 Respondent's figures start in September 1977 and purport to reflect ad- dition to inventories. In its brief, Respondent says that at the beginning of that period at the beginning of September, there was an "existing inventory of 1,500,000 yards of finished goods." It does not state what the "existing" inventory of greige goods was. Respondent offered no documentary evidence of the existing inventories at the beginning of September 1977. Thus the record evidence does not necessarily show "excess" inventories. 21 Sales in the week ending January 6 were 49,400 yards. The lowest vol- ume of sales for any prior week was 135,200 yards in the week September 2. amounts, sales of No. 2 chain showed a great increase in January 1978: weekly averages-November around $30,000, December $38,000, and January $51.000. Another summary shows that the inventory of greige goods declined from 780,000 yards on December 27, 1977 (a high of 850.000 yards on December 21) to 500,000 yards on Janu- ary 17, 1978. (There are no figures presented for the period between January 18 and March 13, 1978.) It thus appears that Respondent took no action to reduce production while its production was exceeding sales, but then proceeded to contract in January, when the tide ap- peared to be changing. This conduct cannot be explained by an annual "spurt" in business, because Benbasat testi- fied that Respondent's business is essentially nonseasonal. Luna testified that around January 23, after the layoffs of Ruiz and Oses, Quiros said that Respondent did not want a union in the plant and that anyone trying to bring the Union in would no longer work for Respondent. Employee Olivia Mejido testified that she overheard part of the con- versation and substantially corroborated Luna's testimony. 3. The finishing department On January 20, superintendent Ballarino told Miriam Iz- quierdo, a splicer, that she was being laid off for lack of work. Octavio Rodriguez, the prime union supporter, was present at the time. Rodriguez accused Ballarino of laying Izquierdo off because she was Rodriguez' sister-in-law and was involved with the Union. Ballarino did not directly reply to that accusation but merely said that he was carry- ing out Benbasat's order. Thereupon Rodriguez went to the office and questioned Benbasat about the matter. Rodri- guez repeated his accusation that Izquierdo was being laid off because of her union membership. According to Rodri- guez' credited testimony, Benbasat's only reply was: "This is my decision." Benbasat did not change his attitude or decision when Rodriguez pointed out that there was a ju- nior employee, Ana Arroyo, in the finishing department and that Izquierdo had previously performed Arroyo's job. The evidence establishes that, while Arroyo had signed a union card on Rodriguez' solicitation, zquierdo had not only signed a card, but had also solicited three additional cards. The day after Izquierdo's layoff, Clara Suarez was transferred from another department to Izquierdo's job in the finishing department. Before Izquierdo's termination, sipper chain had to be wound on spools (the process being called skeining) to be sent out for dying. When it was returned from the dyer, it had to be unskeined and connected into a continuous chain (splicing) for finishing. Benbasat testified that shortly before Izquierdo's "layoff' he had made contact with a local dyer who could dye the chain loose, i.e., unskeined. 1 According to Respondent. use of the newly found dying contractor eliminated the need for one of Respondent's splicers. It was for this reason that Izquierdo was let go. In its brief, Respondent maintains that Izquierdo was temporarily laid off. However, her personnel file, like that of Ruiz and Oses contains a "termination" notice. 1977. The highest weekly sales were 406,900 yards in the week ending Janu- ary 13. "2 The new method of dying is called beam dying 830 ROBIN AMERICAN CORPORATION Upon Izquierdo's "layoff," employee Clara Suarez was transferred from another department to replace Izquierdo. Respondent asserts that Suarez "had much more seniority than Izquierdo." 4. The strike On January 23 some 40 to 45 employees met with the Union's attorney and manager at the union hall. The em- ployees were upset by the recent discharges and layoffs. They were concerned that there would be more layoffs and that the Union would lose its support before the election which had not as yet been scheduled. According to union business agent Miguel Ruano, he and the union's manager and its counsel attempted to dissuade the employees from striking until after an election had been held. The employ- ees could not be dissented and some of them went out on strike the next day. On January 25 another meeting was held at the union hall, attended by 15 to 20 employees. The union officers said that they would support the strike if the employees really believed that Respondent would "throw everybody out." The employees then voted unanimously to strike. Thereupon, on January 26, additional employees joined the strike, bringing the total to around 40. Their picket signs recited that the employees were striking against Respondent's unfair labor practices. On January 27, payday, Benbasat personally distributed paychecks. He testified that virtually all the employees, in- cluding the strikers, showed up to receive their checks. He asked 20 selected strikers to return to work. Eight of them accepted his invitation and returned. On February 2 the Regional Director issued a Decision and Direction of Election, the election to be held on March 3. Thereafter, on February 15, union counsel formally re- quested immediate reinstatement of 32 named strikers. On March 6, after the election, Respondent's counsel replied, in writing," to Union counsel's request. In his reply, Respon- dent's counsel stated that 13 of the named employees had been permanently replaced, two were then being offered reinstatement, three were ineligible,'5 and the rest were not needed. Respondent added that, since there was no reason- able expectation that any additional strikers would be re- called, they were therefore eligible for unemployment com- pensation and would be placed on a preferential hiring list.26 5. Refusal to bargain a. Demand and majority There is no dispute that the Union made an oral demand for recognition on November 9. 1977, and, after it was re- " Apparently there had been a telephone conversation on February 28. However, there was no testimony about the conversation. 25 Octavio Rodriguez and Martin Santiago were claimed to be supervisors. Also, it was claimed that Rodriguez and employee Vincente Neira had been quilty of strike misconduct; one striker. Julio Acevedo was not mentioned. 2 In its bnel Respondent ignores the statement that strikers who had not been recalled or replaced had no reasonable expectation of recall. Instead. Respondent says it "informed the remaining employees that they were on temporary layoff status landl would be recalled as soon as work became available." jected, followed up with a written demand dated November I . Although Respondent now suggests that the demands were ineffective because they did not contain a precise defi- nition of the bargaining unit. The representation petition, dated November 17, contained the following definition: "All production and maintenance employees including me- chanics, machine operators, production helpers and truck drivers," excluding "All office and clerical employees, guards, and supervisors as defined in the Act." In the Deci- sion and Direction of Election, that definition was adopted with only formal changes, reading: "All production and maintenance employees, leadmen, inspectors and truck drivers, employed by the Employer at its Hialeah, Florida locations: but excluding office clerical employees, guards, and supervisors as defined in the Act." So far as appears, there has never been any substantive disagreement between the parties as to the proper unit definition. At the hearing the parties stipulated that there were 87 employees in the unit. In addition, the General Counsel and Union claim that Octavio Rodriguez and Martin Santiago belong in the unit while Respondent claims they were su- pervisors. The General Counsel introduced into evidence 59 union authorization cards, including those executed by Rodriguez and Santiago. The authorization cards are completely unambiguous, reading: I designate International Ladies' Garment Workers' Union, AFL-CIO, to represent me for purposes of col- lective bargaining with my employer----- over wages, hours and working conditions. By signing this card, I authorize this labor organization to represent me, even if no election is conducted by the National Labor Relations Board. I read this card before I signed it. All the cards introduced were duly authenticated by the signers or by employees in whose presence they were signed. Uncontradicted evidence establishes that each em- ployee read the card before signing. And there is no evi- dence that any solicitor made representations in conflict with the express language of the cards. b. Status of Octavio Rodriguez and Martin Santiago The status of Octavio Rodriguez is important not only in determining his membership in the bargaining unit but. more significantly, because he was the leader of the organi- zational campaign and solicited 18 cards. Additionally, it is alleged that Respondent interrogated Rodriguez, which conduct would not be violative of the Act if. as Respondent maintains, he was supervisory. Santiago's status affects only his inclusion in the bargaining unit, since there is no evi- dence that he actively solicited for the Union or was the object of any interrogation or other violation of Section 8(a)( 1) by Respondent. (1) Octavio Rodriguez Rodriguez started to work as an oven operator in the finishing department of the business in 1972. When the fin- ishing department supervisor, Max Sechrist, left the com- pany, Rodriguez was promoted to Sechrist's position. At 831 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that time he was put on a salary of $200 per week instead of his previous wage rate of $4.50 per hour." In 1977, when Respondent took over the business from Richford, Benbasat called Rodriguez into the office and in- formed him that henceforth he would be an hourly paid employee. Rodriguez testified that Benbasat said: "[w]e take all supervisor[s] out, is no more supervisors. The only supervisor that I'm going to recognize is Mr. Tony Balla- rino."'5 Rodriguez testified further that Benbasat said he knew that the change would cause Rodriguez to lose some benefits, but Rodriguez would now be given overtime work so that his earnings would equal or even exceed his prior salary. Rodriguez did not share Benbasat's apparent view that Rodriguez was in effect being given a pay raise.'9 It is undisputed that, as said in Respondent's brief, "Rodriguez was the highest paid employee in the finishing department and earned substantially more than the $3.25 to $3.60 per hour paid to the oven operator, Orlando Vale." However, it is also undisputed that, as Rodriguez testified, other me- chanics, who are not claimed to be supervisors, received between $6.60 and $7.50 per hour, considerably more than Rodriguez got. To Rodriguez, the most important aspects of the change were that henceforth he was required to punch a time clock. would not be paid for any time he took off, would be lim- ited to 5 days of sick leave per year rather than the unlim- ited sick leave he would have while on a salary, and would no longer receive pay for holidays if he was not at work on the day before and the day after the holiday. Benbasat testified that the change from salary to hourly wage was made on the advice of the accounting depart- ment, to "simplify" matters. No satisfactory explanation was given as to what would be "simplified" by having Rod- riguez punch a time clock, with the consequent necessity to compute his earnings each week. As the General Counsel and the Union observe, Benba- sat was Respondent's sole witness concerning Rodriguez' duties, Ballarino, Rodriguez' immediate superior, did not testify concerning this subject although he was called as a witness concerning alleged Section 8(a)(1) violations. Obvi- ously, Ballarino, who spent 85 percent to 90 percent of his time in the plant, was in a better position to observe Rodri- gues' work than was Benbasat, who spent not more than 20 percent in the plant production areas. Respondent contends that Rodriguez effectively recom- mended hiring of employees. However, the evidence estab- lishes only that Rodriguez, like many other employees, sug- gested possible employees when management was looking for employees. As Rodriguez testified, "when they need somebody, they ask everybody, 'You know somebody?' 'Do 7 Sechrist's salary had been $265 per week. According to Rodnguez, Sechrist quit because he did not receive a pay raise. 8 Quiros was hired as a supervisor around October 1977, because, accord- ing to Rodriguez, Ballarino was overworked. Quiros took over supervision of the coiling and sewing departments from Ballarino. 29 Benbasat indicated that Rodriguez' compensation was changed from $235 per week to $5.48 per hour, which amounts to $219.20 for a 40-hour week or $260.30 for a 45-hour week, which Benbasat testified he had prom- ised. However, in testifying on rebuttal, Rodriguez said his hourly rate as a mechanic was 4.80. On cross-examination Rodriguez was not questioned concerning his testimony and it is not referred to in Respondent's brief, where the $5.48 figure is repeated. you know somebody who want to work?' " Benbasat him- self testified that "ten times a day" employees speak to him about their relatives or friends who are looking for jobs. Benbasat said that sometimes he has acted on such em- ployee suggestions but he "tried not to pay too much atten- tion since they are not coming with a recommendation." He added: "But if I need somebody that I can evaluate myself I would say okay, send her in, or him." The credited evi- dence establishes that any suggestions as to employment made by Rodriguez were handled in precisely the same manner as were those by other employees-that is, Benba- sat made all decisions as to whether such people would be interviewed and/or hired. The evidence establishes that Rodriguez' suggestions were rejected more often than they were followed. For example, when Sechrist left, Ballarino decided to hire another employee to operate the oven. Rod- riguez volunteered that his brother-in-law, Francisco Iz- quierdo, was looking for a job. Ballarino, however, placed another person in the job. It was only when that other em- ployee quit after 2 or 3 weeks that Ballarino hired Fran- cisco Izquierdo. Similarly, when Francisco quit, Rodriguez suggested that perhaps Orlando Vale, who was about to be laid off from another department, might be transferred to the finishing department. However, Ballarino hired a new employee for the job and only when that employee quit did Ballarino assign Vale to the finishing department. Ballarino negotiated terms of employment with Vale, and Rodriguez was not involved.0 Again, when an employee was to be hired in the weaving department, Rodriguez said that his mother-in-law, Zenaida Izquierdo, was looking for a job. After seeing her, Ballarino rejected her because, in his opin- ion, she was "too fat." Some months later, Clara Suzrez, a splicer, left. Rodriguez then said he would have his mother- in-law come in, but Ballarino vetoed that suggestion, saying that Suarez had recommended her niece. Suarez' niece was hired, but quit after a week. It was only then that Ballarino hired Rodriguez' mother-in-law.3 Similarly, the evidence does not support Respondent's contention that Rodriguez effectively recommended promo- tions or wage increases for employees. For example, upon Benbasat's direction, Rodriguez assigned Isabel Nicolas to a specific job. Nicolas complained because it was an espe- cially difficult job and she was paid only as much as five other employees in the department. Rodriguez reported Ni- colas' complaint to Benbasat but Nicolas did not receive any increase. When a general wage increase was granted toward the end of 1977, Gladys Suarez complained because she had received only 10 cents per hour. She informed Rod- riguez that she would look for another job. Rodriguez said he could not help, but he did inform Ballarino of Suarez' threat. Ballarino said he would talk to Benbasat. Thereafter Suarez was given a larger increase without any consultation with Rodriguez. The next time Suarez wanted a raise, and 30 The agreement with Vale called for a raise 6 months after the transfer. When the raise was not forthcoming, Vale spoke to Rodriguez. Rodriguez relayed Vale's inquiry to Benbasat. However, Vale did not get the raise. '1 In its brief Respondent cites portions of the record of the representation hearing as the basis for some statements concerning Rodriguez and Santiago. Except for small portions used in attempts to impeach witnesses. the record in the representation case has not been made a part of the record in the present case. It was not read or considered in the preparation of this deci- sion. 832 ROBIN AMERICAN CORPORATION again threatened to quit, she spoke, not to Octavio Rodri- guez, but to Nancy Rodriguez, Benbasat's secretary. With no involvement or participation by Octavio Rodriguez, Suarez got the $3.00 per hour she was demanding. Nor does the record support Respondent's contention that Octavio Rodriguez could authorize overtime work. If individual employees in the finishing department worked overtime, Rodriguez initialed their timecards. But he did so only to certify to Nancy Rodriguez, who made up the pay- roll, that the employees had actually worked overtime. Rodriguez named several admittedly nonsupervisory em- ployees who also initialed timecards to certify that the em- ployees concerned had worked the hours shown. Indeed, Benbasat testified that Luis Vergara, who has been stipu- lated to be in the bargaining unit, could initial timecards, as could Frank G. Lilly, leadman on the night shift." Lilly was not a supervisor but initialed timecards because "he's the only one that was able to give us the information."" Even- tually Benbasat testified that "[glenerally the overtime is agreed between supervisor and myself, or supervisor and Mr. Ballarino," whether it is to be worked by an entire department or just by specific individuals. The evidence as a whole clearly establishes that all overtime was directed in advance by Ballarino or Benbasat. At most, Rodriguez could inform Ballarino or Benbasat that, for example, the oven needed to be cleaned before the next day's work be- gan. It was then up to them whether overtime should be authorized for that purpose. Benbasat also indicated that Rodriguez had an "office." However, Rodriguez credibly testified that his so-called of- fice consisted of a desk, a bench, a cabinet with machine parts, and a labelling machine. The room is also used by the sewing department. Rodriguez and other mechanics kept their supplies of extra parts in the so-called "office." It con- tains the men's rest room, used by male employees in the finishing and sewing departments. It contains only a coin telephone, which is used by around 35 to 40 employees. 4 In its brief Respondent also argues "that finishing depart- ment employees who needed time off for personal reasons or needed to leave early because of illness notified Rodri- guez." Rodriguez testified that employees leaving work ear- ly informed him only in Ballarino's absence, Rodriguez as- sured the employees that he would tell Ballarino. The employees generally told Rodriguez because he spoke to Ballarino most frequently because, as Rodriguez testified, Ballarino "is constantly giving orders." There is no evi- dence that Rodriguez had authority to, or ever did, approve or disapprove an employee's leaving early. Indeed, if nei- ther Ballarino nor Rodriguez was immediately available. an employee leaving early would simply ask any fellow em- ployee to inform Ballarino of the departure. There is no evidence that any employees ever notified Rodriguez that 2 In his Decision and Direction of Election, the Regional Director re- jected Respondent's contention that Vergara and Lilly were supervisors. 13 Timecards dated in June. July. and September 1977, were initialed by Godwin Gregone. Benbasat said that Gregone "Imlust have been [a supervi- sorl at the time if he did authorize it." However. just before then Benbasat had testified that Gregone had ceased being a supervisor "a couple of sears ago. Y Rodnguez testified that at one time there had been an intercom tele- phone in the room. but it had been removed long ago. they were not coming into work. Then always called the front office. Rodriguez did not even have an available tele- phone to receive such messages. Respondent argues that "Rodriguez was responsible for balancing production in all five subdepartments and coordi- nating their activities so each department kept pace with the others." There is no dispute that Rodriguez was the senior and most competent employee in the finishing de- partment. He received directions as to what production should be run each day. The finishing department work is sequential through five or six different operations and thus must proceed at a uniform rate. Because of his technical proficiency and long experience, Rodriguez had major re- sponsibility for having Ballarino's or Benbasat's orders car- ried out. However, this responsibility was simply that of a senior. experienced employee." He had no authority to im- pose any discipline if an employee were to refuse to do the work he was assigned to. Respondent also maintains that Rodriguez had authority to change the order in which Ballarino directed that goods be finished. The fact is that light colors have to go through the oven before dark colors: if dark colors have gone through, the oven must be cleaned before light colors can be processed. Rodriguez credibly testified that if work was scheduled in reverse order, he would consult Ballarino about priorities. If Ballarino said that the dark color had the higher priority, Rodriguez would process it immediately and then clean the oven before running the lighter colors. Rodriguez directed when the oven was to be shut down for the day. However, he testified, without contradiction. that such direction entailed no discretion or independent judgment because it is always essential that the oven be shut down a half hour before closing time. either the nor- mal end of the work day or at a different time set by Balla- rino. Rodriguez testified, again without contradiction, that he regularly performed considerable physical labor. His usual daily procedure was as follows. After Ballarino gave him the schedule of work for the day. Rodriguez himself moved the boxes to the skeiner machine. He then went to help on the oven, filling the tank with water and mixing the neces- sary solution. Isabel Nicolas checked the color of the mate- rial that had been returned from the dyer to be finished. If she had any doubt about the correctness of the color, she consulted Rodriguez. If he then had any doubt as to whether a color was satisfactory, he spoke to Ballarino. If Ballarino could not decide, Rodriguez then took a sample to Benbasat. who decided whether the chain should be ac- cepted and finished., If a machine broke down or an em- ployee needed more boxes, or some similar operating prob- lem arose. Rodriguez was called. Boxes of chain weigh from ' In the representation proceeding Rodriguez testified through an inter- preter and was quoted as saying that new employees for the finishing depart- ment were brought to him "because I'm the Imanl that's been there the longest. Well, it's like I'm the boss." In the present trial he testified that the Spanish word he used, "jefe." means an experienced worker "'Boss' Is because you know your material at your work, you are chief in-and that you can do you job, and not because you give order. or nothing that." The Spanish equivalent for the English word supervisor" is also "supervisor" 5 Rodriguez himself rejected dyed chain only if t was mislabeled. i.e, only if. for example, the box label aid the contents were white and they actually were black 833 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 100 to 250 pounds each. Since he and Vale were the only male employees in the department, Rodriguez himself unloaded the boxes from the trucks. Then, using a hand- truck, he took the material to the oven department and arranged it according to color. Most of his working time was spent adjusting machines and helping on the oven. He also helped Vale clean the oven because the process is too time consuming when performed by one person alone. Rod- riguez also operated a forklift every day to move boxes and eventually take them to Respondent's other building a block or so away. Respondent also notes that Rodriguez prepared a "daily production report." Such preparation, however, consisted only of transcribing figures provided by employee Suarez, who labelled boxes after they were packed for shipping. If there was any discrepancy as to the number of boxes fin- ished, Rodriguez and Suarez together checked to find the source of the error. Benbasat testified that he had instructed the superinten- dents not to discuss the union or related matters with any- body in the plant. There is no suggestion that he included Rodriguez and Santiago in those instructions. Had Respon- dent considered them to be supervisors, they would have been the former recipients of such directions since they were in the closest contact with other employees. (2) Martin Santiago Santiago had worked for Respondent and its predecessor since 1961. In 1971 he became "supervisor" of the weaving department. However, like Rodriguez, he was changed from a salaried to an hourly-rated employee when Respon- dent took over. He credibly testified that at that time Ben- basat said Santiago was being "transferred to be a me- chanic" and "there was only going to be one supervisor. who was going to be Tony Ballarino." As noted above, Santiago also testified that Benbasat said something to the effect "that, by law, supervisors could not repair machines." At the time, Santiago's weekly salary was $300 and his new hourly rate was $6.75. Also, like Rodriguez, Santiago was assured overtime hours. In its brief Respondent states that Santiago received a "pay increase in excess of $1,000.00 per year." But for that amount he would have to work 45 hours every week. And he would lose substantial leave benefits. Santiago testified that he spent 90 percent of his working time repairing machines, of which there were some 185 in his department. He also distributed to the other department employees the material to be used each day. He said that Ballarino toured the work area "almost every 15. 20 min- utes." Santiago testified that he was never told he had authority to hire employees, and he never did so. Like Rodriguez and other employees, when additional employees were needed, Santiago occasionally told Ballarino about people who were looking for work. Ballarino then interviewed the per- sons named and in some instances they were hired. How- ever, Santiago never interviewed the prospective employees and Ballarino did not discuss their hiring with Santiago. Similarly, Santiago testified that he never fired or recom- mended firing any employees. At no time Ballarino spoke to Santiago aout complaints that had been received con- cerning some of Respondent's products. Santiago then told Ballarino that one employee, who had been hired about 2 months before. was doing poor work and was not learning. Santiago tried to train the employee, but when Santiago pointed out an error, the employee "got mad and quit." Santiago added: "If he was leaving, I wasn't gonna hold him": but Santiago did not fire him. Obviously Ballarino had not discharged the employee on the basis of Santiago's criticism. Santiago also testified that if an employee in his depart- ment was absent, Santiago "would suggest to Tony Balla- rino to call a weaver." At that point Santiago would be authorized to call one. He testified, however, that he could get himself into trouble if he called anyone in without first checking with Ballarino or Benbasat. Santiago testified that at one time Ballarino granted San- tiago's request for two additional employees in the weaving department. Santiago made the request because, without such additional help Santiago. would have to perform oper- ating rather than mechanics' functions. At another time Ballarino authorized overtime when Santiago said it was necessary in order to clean the looms, which were dirty. As Santiago explained, it was his responsibility to keep the ma- chines running. Like Rodriguez, Santiago testified that his duties did not change appreciably when Respondent took over and changed his title from "supervisor" to "mechanic." But Santiago added that before the change in ownership he "was a supervisor, by name." Also like Rodriguez. Santiago testified that new employ- ees for his department were brought to him "since [he is] the one who has the most experience, and he] knowls] who is the best person that can teach it the best." Although the testimony concerning Santiago's position was less volumi- nous than that concerning Rodriguez, the record as a whole establishes that, so far as relevant to determining their em- ployee status, the two men held essentially identical posi- tions. 6. The discharge of Juan Detres Juan Detres, who had worked in the business sine 1961, went on strike on January 26. 1978. In his letter of March 6 to Union counsel. Respondent's counsel said that D)etres had been permanently replaced. However, pursuant to a subsequent individual request by Respondent. Detres re- turned to work on March 27. He returned to the same de- partment he had been in before, but was assigned to a dif- ferent machine. He testified that before the strike he had worked about 10 hours a day, or around 43 or 44 hours a week, but on his post-strike job he worked only 40 hours a week. Employee Teresa Suarez, who helped Detres after his re- turn, testified that he said to her that Respondent's produc- tion was very bad and that Detres had been recalled be- cause the person operating his machine was incompetent. Suarez had replied that she was happy in her job and was sorry for the people who were outside. Detres countered by saying she should be sorrier for the employees, like him and her, who were working for Respondent. According to Sua- rez, D)etres said that the factory would have to close: it R34 ROBIN AMERICAN CORPORATION could not go on as it was, staffed by incompetent employ- ees. Suarez testified that she informed Ballarino that she re- fused to work with Detres again because of his criticism of Respondent. Ballarino reported Suarez' statements to Ben- basat, who then instructed Ballarino to advise Detres that Respondent would not tolerate any further similar conduct. Detres testified that on the morning of April 20. Balla- rino, without mentioning Suarez, accused Detres of talking too much and warned him that he would have to leave the next time he did so. Detres thereupon went to speak with Benbasat. According to Detres, Benbasat flatly refused to talk to him about the matter. Benbasat, on the other hand. tesified that at the time he was conferring with Quiros and told Detres to come back later. Detres testified that later that day Benbasat directed him to the time clock and said that he was no longer needed. Nancy Rodriguez. Benbasat's secretary, testified that Detres had announced to her that he was quitting and she passed that information on to Benha- sat. D. Discussion and Conclusions 1. Alleged 8(a)(1) violations As already indicated, despite denial by Respondent's agents, I credit the testimony of the General Counsel's wit- nesses, which establishes that Respondent's management personnel coerced and restrained employees in the follow- ing respects. Around the middle of November Ballarino asked em- ployee Rice whether she had heard anything about the Union. if she had signed a union card, and if Jose Garcia had given her a union card. At about the same time, Balla- rino asked employee Joseph Jules, at the work station, if he had signed a union card. Early in December Ballarino asked Octavio Rodriguez, at his work station, if he (Rodri- guez) had heard anything about the Union at the plant. On January 20, Ballarino failed to deny Octavio Rodri- guez' accusation that employee Miriam Izquierdo was being laid off in part because of her involvement with the Union. Ballarino said that the layoff was pursuant to Ben- basat's direction, for lack of work. Rodriguez then repeated his accusation to Benbasat, who also failed to deny it. Around the middle of November, Samberg called Jose Garcia into the office and there asked if Garcia had heard any rumors about the union activity at the plant. Around the middle of January 1978 Quiros asked em- ployee Ruiz, at her work station, what, if anything, she had heard about a forthcoming layoff and informed her that she could not expect the Union to protect her. On January 13, 1978, Quiros asked employee Juana Oses, also at her work station, if she knew what a union card was. On January 20, Quiros failed to deny, and thus tacitly admitted, the accusation by employee Edmundo Luna that Oses had been chosen for layoff because she belonged to the Union. Quiros told employee Edmundo Luna, in the pres- ence of employee Olivia Mejido, that anyone trying to bring the Union in would not continue to work for Respondent. Respondent contends that the employees were not actu- ally coerced by Respondent's interrogations and state- ments. The record does not support this contention. Aware of Respondent's opposition to unionization, the union ac- tivists were at pains to conduct their solicitation in secrecy. In the employees' minds, Respondent was set on discharg- ing union sympathizers before the election, and the interro- gations would provide information helpful in identifying employees to be laid off or discharged. In any event, the decisive factor is not whether individual employees were, as a matter of fact, coerced, but rather whether the employer's conduct was such as to have a natu- ral tendency to coerce. Respondent's conduct in the present case clearly met that test. See Frito Lav, Inc. v. N.L.R.B., 585 F.2d 62, 65 (3d Cir. 1978): . . .it is a violation of section 8(a)(I) to interrogate employees about their union sympathies when doing so suggests to the employees that the employer may take action against them because of their pro-union sympathies.... The test is whether the questioning tends to be coercive, not whether the employee is actu- ally coerced. As recently said by the Circuit Court of Appeals for the Fifth Circuit in N.L. R.B. v. Aero Corporation, 581 F.2d 511, 515 (5th Cir. 1978): While one can envision evidence more dramatically re- flecting violations of the act than that before us, we bear in mind words from an earlier decision of this court: "Today the employer seldom engages in crude, flagrant derelictions. Nowadays it is usually a case of more subtletly. perhaps the more effective, and cer- tainly the more likely to escape legal condemnation." N.L.R.B. v. Neuhoff Bros. Packers, Inc., 375 F.2d 372, 374 (5th Cir. 1967). Respondent repeats the frequent contention that its con- duct cannot be found coercive because a friendly, first- name relationship existed between the employees and su- pervisory personnel. The record does show a rather pater- nalistic relationship between management and employees: as Octavio Rodriguez, the principal union activist, testified, the plant resembled a family. But the Board and the courts have recognized that such amiability may exacerbate rather than ameliorate the coercive tendency of conduct of super- visory personnel. See, e.g., N.L.R.B. v. Big Three Industrial Gas & Equipment Company, 579 F.2d 304, 311 (6th Cir. 1978), where the court, distinguishing Federal-Mogul Cor- poration v. N.L.R.B., 566 F.2d 1245 (6th Cir. 1978), on which Respondent here relies, said: . . .we emphasize that social relationships in them- selves are not a sufficient basis to lift acts of illegal interference from the scope of the Company's responsi- bility. Friends can unlawfully threaten their friends. Indeed, warnings of Company retaliation cast as friendly advice from a familar associate might be more credible, hence, more offensive to §8(aX1) than gener- alized utterances by distant Company officials. To es- cape liability, [Respondent] must establish that the spe- cific contexts of union-chilling remarks negated the Company's presumed authorization.... [T]he Com- pany bears the burden of showing that particular su- pervisory acts occurred in social rather than business environments. 835 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the present case, all the alleged Section 8(a)(1) viola- tions were committed at the plant by high-echelon supervi- sory personnel. Respondent's representatives did not ex- plain the purpose of their questions or give any assurances against reprisals for union activities. Accordingly, "the questioning constituted . . . unfair labor practice[s] within the requirements of Struksnes Construction Co., Inc., 165 NLRB 1062 (1967), and Bourne Co. v. N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964)."3' Solboro Knitting Mills, Inc., 227 NLRB 738, 739 (1977), enfd. in pertinent part, 572 F.2d 936 (2nd Cir. 1978). Samberg and Quiros, coercively interro- gated employees in contravention of Section 8(a)(1) of the Act. Additionally, Ballarino and Quiros violated Section 8(a)(l) by at least impliedly confirming that employees were being laid off, in part at least, because of their union mem- bership. And Quiros further violated Section 8(a)(l) by in- dicating that employees who attempted to bring in the Union would be discharged. There is no dispute that on January 27, 1978, during the first days of the strike, Benbasat made it a point personally to distribute pay checks so he would have an opportunity to speak to strikers individually. He asked 20 selected strikers to return to work. Eight accepted the offers and returned. Relying on DuBois Chemicals, Inc., 140 NLRB 103 (1962), enfd. 327 F.2d 494 (5th Cir. 1964), and Mississippi Steel Corporation, 169 NLRB 647, 652 (1968), the General Coun- sel argues that soliciting striking employees to abandon the strike and return to work violates Section 8(a)(1) of the Act "even though unaccompanied by any threats or promises of benefits." On the other hand, Respondent cites The Colonial Press, Inc., 204 NLRB 852 (1973), and Pilot Freight Carriers, Inc. and BBR of Florida, Inc., 223 NLRB 286 (1976), as author- ity for holding that an employer's offer of reinstatement to certain strikers is not violative of Section 8(a)(1) so long as the employer makes no threats of reprisals or promises of benefits or otherwise brings undue pressure to bear. In Pilot Freight the employer wrote to striking drivers only after having been informed of rumors that striking drivers had been fired. The employer wrote to the drivers to deny the truth of such rumors. 223 NLRB at 297. In Colonial Press, when an employee returning from vacation during a strike requested a job, the employer warned that returning to work might result in the employee's being fined by the union and that it was up to the employee whether to as- sume that risk. The Trial Examiner held that the Act was not violated when, in answer to the employee's request for work, the employer pointed out that, in practical effect, the employee might have only the option to join the strike or resign from the union, 204 NLRB at 859. In the same case, however, it was found that the employer did violate the Act when he suggested that a striker withdraw from union membership, 204 NLRB at 860. In Dubois Chemicals, supra, 140 NLRB at 116, it was expressly held that by "urging [named strikers] to return to work, even though unaccompanied by threats or promises of benefits, Respondent thereby attempted to deal individ- ually with the employees at a time when a strike was in progress, thus violating Section 8(a)(1) of the Act." Simi- 37 In the present case Respondent relies heavily on Bourne. larly, in Mississippi Steel Corp., supra, 169 NLRB at 652, 653, employer representatives were held to have violated Section 8(a)(1) "by soliciting a striker to return to work," even though there was no evidence of threats, promises or other coercive conduct. As early as 1943, in N.L.R.B. v. Montgomeo' Ward & C'ompanv, 133 F.2d 676. 681 (9th Cir.), such conduct was held to he unlawful even though the employer's suggestion or request was "not coercive or threatening in its terms." The court said: The vice is to be found in the interference by [the em- ployerl with its employees' right "to bargain collec- tively through representatives of their own choosing," guaranteed by Section 7 of the Act .... By attempting to deal with the individual employees, [the employer]. in this instance, ignored and disregarded the employ- ees' chosen representatives, selected for the purpose of collective bargaining, and thereby engaged in an unfair labor practice. See, also, N.L.R.B. v. Clearfield Cheese Co., Inc.. 213 F.2d 70, 72. 73 (3d Cir. 1954). I find and conclude that Benbasat's conduct on January 27 violated the Section 8(a)( l) of the Act. Starck Ceramics, Inc., 155 NLRB 1258, 1269 (1965). 2. Alleged 8(a)(3) violations a. Company Antiunion animus and knowledge Respondent argues first that there is no evidence of anti- union animus on its part. It refers to the fact that in 1971 the Union had attempted to organize the employees at the plant in Hialeah but had lost the election and, so far as appears, no charges or objections to the election were filed. Respondent adds that in the present case "Neither the Charging Party nor the General Counsel introduced any evidence of misconduct by the management of that opera- tion during the prior campaign." The operation in 1971 was conducted by a different company, Richford Industries. There is no evidence that any of the present owners had any role in formulating or administering Richford's personnel policies and practices. On the contrary, Benbasat testified that Richford had unduly interfered with the conduct of the zipper business and had displayed poor business judgment. Thus evidence of Richford's labor relations, even for a pe- riod more recent than 1971., would have no relevance to the present Respondent's conduct after it acquired the business in March 1977. The apparent change in the status of Rodri- guez and Santiago at least suggests an important shift in personnel management. Until November 1977 there was no occasion for Respon- dent to exhibit any attitude or policy concerning unioniza- tion of its employees. When the Union appeared in 1977, Respondent made its antiunion views very clear. For exam- ple, it distributed English and Spanish reprints of an article entitled "Time to Root Out Labor Racketeers," published in the "Reader's Digest." In addition, Respondent held at least one employee meeting to campaign against the Union. It is well established that antiunion animus may be shown by conduct that does not violate Section 8(a)( I). N.L.R.B. v. Colonial Lincoln Mercu' Sales, Inc., 485 F.2d 455, 456 (5th 836 ROBIN AMERICAN CORPORATION Cir. 1973); Hendrix Manufacturing Company Inc., v. N.L.R.B., 321 F.2d 100, 103 (5th Cir. 1963); N.L.R.B. v. Builders Supply Company of Houston, 410 F.2d 606, 608 (5th Cir. 1969). Respondent also contends that, while it had been made aware of the union campaign by the demand for recogni- tion and the representation petition, the record does not establish Respondent's knowledge of the identity of specific union supporters. But the evidence establishes that Respon- dent early knew, or, at the least, believed, that Jose Garcia actively supported the Union and probably solicited sup- port of the other slider department employees. In Novem- ber Lucille Rice and Joseph Jules, of the slider department, told Ballarino that they had signed union cards. And Re- spondent's representatives remained silent when faced with accusations that Oses and Miriam Izquierdo were being laid off because of their union membership. One would ex- pect some protestation if Respondent's representatives had been unaware of the employees' union membership. Additionally, the generally friendly relationship between management and employees suggests that information was broadly disseminated. Employee Monteagudo, a witness for Respondent, testified: "At the plant everybody knows every people. More or less it's known what is happening." Even without specific evidence of Respondent's knowl- edge of the union membership of individual employees. such knowledge would be inferred from the surrounding circumstances. It has long been established that an employ- er's knowledge of employee's union sympathies may be, and usually must be, inferred from circumstantial evidence. See N.L.R.B. v. Prineville Stud Company, 578 F.2d 1292. 1295 (9th Cir. 1978): "It is well settled that circumstantial evidence is just as reliable as direct evidence. N.L.R.B. v. Wal-Mart Stores, Inc., 488 F.2d 114, 116, (8th Cir. 1973); McGraw-Edison Company v. N.L.R.B., 419 F.2d 67, 75-76 (8th Cir. 1969.)" See also, e.g., N.L.R.B. v. Link-Belt Co.. 311 U.S. 534, 602 (1941); F. W. Woolworth Company v. N.L.R.B., 121 F.2d 658, 660 (2nd Cir. 1941); Syracuse Tank & Mfg. Co., 133 NLRB 513, 539 (1963). And an express denial knowledge by the employer is not conclusive. See e.g., Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966); N.L.R.B. v. Edward P. Tepper, d/bla Shoenberg Farms, 297 F.2d 280, 284 (10th Cir. 1961). The question of Respondent's knowl- edge must be determined from all the surrounding circum- stances, A. J. Krajewski Manufacturing Co., Inc., v. N.L.R.B., 413 F.2d 673, 676 (Ist Cir. 1969); Sterling Alumi- num Co., a Division of Federal-Mogul v. N.L.R.B., 391 F.2d 713, 722 (8th Cir. 1968); N.L.R.B. v. Melrose Processing Co., 351 F.2d 693 (8th Cir. 1965). And the timing of an unheralded discharge is itself sufficient to raise a presump- tion of knowledge. N.L.R.B. v. Mid State Sportswear, Inc.. 412 F.2d 537, 539 (5th Cir. 1969); N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502, (2nd Cir. 1957), cert. denied 355 U.S. 829; N.L.R.B. v. Tennessee Packers Inc., 390 F.2d 782, 784 (6th Cir. 1968). The abrupt discharge of prounion employees, with no prior notice, during the course of an election campaign is sufficient to establish a prima facie case of discrimination, whereupon "a very definite burden is imposed on the employer to prove existence of a reason, not within the Act's provisions, sufficient to warrant the discharge." N.L.R.B. v. Okla-lnn d/b/a Holiday Inn of Henryetta, 488 F.2d 498, 507 (10th Cir. 1973); N.L.R.B. v. Standard Container Co., 428 F.2d 793, 794 (5th Cir. 1970). Some discussion is in order concerning the fact that the most active leaders of the organizing campaign--Octavio Rodriguez and his wife, Edmundo Luna, Jose Garcia and perhaps Orlando Vale-were not laid off or discharged and there is no evidence that the alleged discriminatees engaged in union activities other than signing authorization cards and attending union meetings. As said by the Fifth Circuit in Aero Corporation and Neu- hoff Bros., supra, subtle violations are at least as effective as blatant misconduct "and certainly the more likely to escape condemnation." That Respondent was able to convey a message to the employees through a series of well-timed layoffs of inconspicuous union supporters is demonstrated by the strike, which was called because the employees saw an emerging pattern of layoffs and/or discharges of union supporters which would eventuate in the Union's loss of its majority status by the time of the election. It is significant that the alleged discriminatees and the strikers were not included in the election eligibility list, presumably prepared by Respondent. Although it appears that many strikers have been recalled, none of the union activists and the dis- criminatees have been offered reinstatement. It is well established that an employer may violate Sec- tion 8(a)(3) by discriminatory conduct even though the prime union activists may not have been affected. Nachman Corp. v. N.L.R.B., 337 F.2d 421, 424 (7th Cir. 1964); N.L.R.B. v. W.C. Nabors Companv, 196 F.2d 272, 276 (5th Cir. 1952), cert. denied 344 U.S. 865: N.L.R.B. v. Puerto Rico Telephone Company, 357 F.2d 919 (Ist Cir. 1966). The specific layoffs or discharges alleged to have violated Section 8(a)(3) of the Act will be considered in the light of the foregoing considerations. b. The slider department In N. L. R. B. v. Big Three Industrial Gas & Equipment Co., supra, 579 F.2d at 316, the court said: This interest of workers is obliterated by termination. When an entire unit is discarded, the impact on these men and women, and all who would support unions, is profound. "No conduct more drastic: or more likely to have lingering, ineradicable effects can be imagined." N.L.R.B. v. Townhouse T.V. & Appliances, Inc., 531 F.2d 826, 830 (7th Cir. 1976). Although Respondent describes its slider operation as "experimental," it had originally been set up by Samberg and operated under his supervision for several years before Respondent acquired it. Over a period of about 6 or 7 months Respondent expended considerable money and ef- fort in achieving satisfactory production. The operation be- came fully operational by November 1, 1977, when the die- casting machine, which produces the bodies of sliders, was put into production. When the spring machine burned out in mid-November it was promptly replaced. Samberg testi- fied that, with the exception of part of one batch, the sliders being produced since some time in October were good. On the face of it. it appears extraordinary that Respon- dent would abruptly abandon the operation within a month 837 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or two of achieving success, after 6 or 7 months of trying. While it is not for the Board to second-guess the honest business judgment of an employer, when his action appears to be at odds with the objective facts, his claim of economic motivation invites scrutiny. As said by the court in N.L.R.B. v. Prineville Stud Company, 578 F.2d 1292 (9th Cir. 1978): "This lack of basic business management tech- niques undermines the argument that the closure was a business decision." In that case, as Respondent contends is true there, the employer closed an operation that had been closed, on occasion in the past. In that case the closure was effectuated with no advance notice while the employer had "at least two months supply of raw materials ... on hand"; in the present case Respondent had recently spent consider- able amounts of money to move the equipment and had purchased two additional machines. Samberg had discussed with Garcia the purchase of additional materials. Accord- ing to Respondent, the slider department employees were not notified in advance that closure of the department was contemplated because such information might lead them to leave for other jobs. But Benbasat also maintained that at the time additional layoffs wre contemplated; indeed, he testified that to some extent Respondent was pleased when the strike occurred since it obviated the necessity effectuat- ing some planned layoffs. In view of Respondent's estab- lished practice of transferring employees to avoid layoffs, whenever possible, it is not apparent why it would be loath to have slider department employees leave voluntarily. At the least, the unheralded termination of the five slider de- partment employees is inconsistent with its expressed con- cern for its employees' welfare. Respondent places great reliance on C & T Manufactur- ing Company, 233 NLRB 1430 (1977), where it was held that an employer had not violated the Act by shutting down its sewing and finishing departments within a few days after receiving the union's demand for recognition. In C & T, as here, the respondent maintained that the depart- ments in question had previously been closed down because they were operating at a loss. However, it appears that the employer in C & T established these facts by reliable evi- dence; in the present case there is only conclusionary testi- mony concerning Richford's sporadic slider production and the claimed excessive costs of Respondent's slider produc- tion. Respondent never produced the records that Samberg said were available to show Respondent's costs and no pre- cise information concerning Richford's operation was of- fered." In C & T the departments were reopened with a new manager, who it was hoped could improve matters; here the slider operation was to be conducted by Samberg, who had run the operation for several years and believed it would be successful. In C & T there was credited evidence of a firm understanding that the departments were to be reopened on a limited 6 months' experimental basis; there is no evidence in the present case of any such understand- ing. On the contrary, as previously noted, Respondent in- vested considerable capital in moving, reactivating, and I discredit Benbasat's testimony that Respondent did not have access to pretransfer records. Respondent produced some personnel files going back to Richford's time. It appears most unlikely that three experienced businessmen would purchase a business without having access to its records. supplementing the equipment. And most significant is the fact that here the department was not closed until after successful production was achieved. There is no evidentiary basis for concluding that the volume of production could not be increased. On all the evidence, I find "that the closure [of the sliding department] was not anticipated, but rather hastily con- ceived and consummated upon notification of the Union's majority status"; "the economic problems are at best incon- clusive." N.L.R.B. v. Prineville Stud Company, supra 578 F.2d at 1295. c. The sewing department Respondent maintains that seniority was not observed in the termination of Ruiz and Oses because "the layoffs were intended to be "temporary." However, as noted above, Re- spondent attempts to justify the choice of Miriam Izquierdo for a claimed "temporary" layoff on the basis of seniority. There is no evidence that Ruiz and Oses were informed that their layoffs were only temporary. Nor is there any specific evidence supporting Respondent's conclusory testi- mony that seniority was considered only in connection with "termination" of employment. There is no apparent reason for any such distinction. Presumably in both temporary and permanent "layoffs" an employer would choose either to retain the most competent employees or to reward long ser- vice. Perhaps in recognition of the inherent fallacy of Re- spondent's position, Quiros denigrated Oses' and Ruiz' pro- ficiency. However, the evidence establishes that both of them had received merit increases, accompanied by high praise. There is no evidence that other employees in the department had been similarly rewarded. Nor did Respon- dent explain why only those two employees had been as- signed to operating new experimental machines, the devel- opment of which was continued after their departure. I credit the employee testimony that operation of the experi- mental machines required superior proficiency. Most signif- icant is the fact that, while Respondent proclaims that it has offered reinstatement to some 31 of the 40 strikers, nei- ther Ruiz nor Oses (nor any other alleged discriminatee) has been recalled. The layoffs followed closely Quiros' interrogation of the two employees. Especially prophetic was Quiros' warning to Ruiz that the Union would not protect her from a layoff. On consideration of the evidence as a whole, the inference is inescapable that Ruiz and Oses would not have been laid off in January 1978 but for their union adherence. d. The finishing department Respondent's brief, on its face, discloses the glaring defi- ciencies in its position concerning Miriam Izquierdo. After explaining the nature of "beam dying," which it had re- cently adopted, Respondent says: "The new 'beam dying' system reduced the need for skeining and splicing ... Ac- cordingly, because of the cutback in production and the utilization of the new dying subcontractor, only one splicer was required and another employee, Clara Suarez, had much more seniority than Izquierdo. Suarez was therefore 838 ROBIN AMERICAN CORPORATION transferred to the finishing department and Izquierdo was laid off." It cannot be true that Izquierdo was no longer needed as a splicer if immediately upon her layoff she was replaced in that position. Additionally, Respondent's brief says that Iz- quierdo "was temporarily laid off." In connection with the "layoff'" of Oses and Ruiz, on the basis of testimony by Benbasat, the brief says: "Since the layoffs were intended to be temporary, Benbasat made no inquiry regarding the se- niority of the employees." Yet Respondent would justify Izquierdo's "temporary" layoff by her replacement by a senior employee from another department. In this connec- tion it should be noted that Respondent has not indicated that Suarez, Izquierdo's replacement had become surplus in the department she was leaving. So far as appears, a re- placement for Suarez would be necessary. Although Respondent says Izquierdo was temporarily laid off, her personnel file, like those of Oses and Ruiz, contains a "termination" notice. When employee Arroyo, a junior employee in the finishing department, quit her job soon after Izquierdo's layoff, Izquierdo was not recalled even though she was experienced, having previously done Arroyo's job. There is no question that Arroyo had been doing an essential job, since Ballarino testified that she had not been laid off in place of zquierdo because Arroyo's job was difficult and he feared that no new employee would stick at it. Finally, it is significant that, as set forth above, plant manager Ballarino failed to deny Octavio Rodriguez' accu- sation, in Izquierdo's presence, that Izquierdo was being let go because she belonged to the Union and was a relative of Rodriguez, the leader of the union campaign. Accordingly. on all the evidence, I find and conclude that Miriam Izquierdo's employment by Respondent was terminated in major part because of her union membership. e. Discharge of Juan Detres There is no evidence that Detres signed a union card or played any active role in the organizing campaign, although he did join the strike. He was specifically recalled to work on March 7, after the strike had ended. There is no evi- dence suggesting that his termination was in any manner influenced by support for the Union. Accordingly, I find that the General Counsel has failed to establish that the termination of Detres' employment was violative of Section 8(a)(3) of the Act.3" 3. Alleged 8(a)(5) violation a. The demands for recognition There is no dispute that on November 9 and 11, 1977, respectively, the Union made oral and written demands for recognition, based on union authorization cards. In reject- ing the demand, Respondent did not specifically raise any question as to the bargaining unit or as to the absence of a definition thereof, Respondent's position being that the " In view of the conclusion here reached, it is unnecessary to resolve the conflict of evidence as to whether he quit or was discharged. Union's representative status should be determined by a Board-conducted election. In any event, if the absence of a unit definition constituted a deficiency in the Union's de- mands, that deficiency was removed on November 17. 1977. when the Union filed its representation petition con- taining a formal unit definition. There has never been any dispute between the parties as to the appropriate bargain- ing unit.' b. The L nion s majority There is no question that the Union held unavailable au- thorization cards executed by 59 employees in a unit of 87."4 Respondent questions the efficacy of the cards because Octavio Rodriguez was the leader of the union campaign and personally solicited at least 18 cards in addition to his own. As previously stated, Respondent maintains that Octavio was a supervisor and therefore the Union's major- ity showing is tainted. As Respondent argues, in several cases it has been held that union authorization cards solicited by supervisory em- ployees may not be used to establish the union's majority status. N.L.R.B. v. Bo ver Bros., Inc., 448 F.2d 555, 563 (3d Cir. 1971), cert. denied 409 U.S. 878; N.L.R.B. v. Haw- thorne Aviation, 406 F.2d 428, 430 431 (10th Cir. 1969). However, as said in Boyer: The rationale for excluding cards solicited by supervi- sors is that the authority they hold over employees pro- vided "a basis for potential tryanny when improperly exercised by a supervisor thwarted in his aim to obtain union recognition .... " Or, as said by the Fifth Circuit in N.L.R.B. v. W'KRG-TV Inc.. 470 F.2d 1302, 1315 (1973): It is actual pressure and coercion we are seeking to avoid by our rule disallowing cards tainted by supervi- sory influence. A mechanical rule that requires a find- ing of supervisory solicitation in situations such as we have here. where there is no hint of intimidation, is too broad. The Board followed this principle in The Kroger Co., 228 NLRB 149, 156 (1977). In the present case, as in WKRG- TV, there is "no hint of intimidation of employees by Rod- riguez." He solicited authorization cards by representing that the union would "protect" the employees. In the pre- sent case, as in Kroger, "There is nothing in the evidence to indicate the slightest degree of coercion, intimidation or even mild pressure on the part of [Rodriguez] to encourage or promote the signing of union authorization cards." The recent decision in Admiral Petroleum Corporation, 240 NLRB 894 (1979), with a review of prior Board deci- sions, reaffirms the established rule that supervisory partici- pation in a union organizing campaign does not necessarily require setting aside an election won by the union. Such an election must be set aside only if the supervisor's conduct is In a footnote to his Decision and Direction of Election, the Regional Director stated that the "employer is in agreement with the scope of the unit" requested by the Union. 41 If Octavio Rodnguez and Martin Santiago were to be eliminated as supervisors, the Union would have represented 57 out of 85 employees. *2 His wife. also employed by Respondent, solhcited 9 cards 839 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such as to indicate that the employer favors the union or to suggest that antiunion employees may fear retaliation by the supervisor. The principles applicable to objections to an election would appear equally pertinent in determining the validity of a union's cards majority. In any event, the present record establishes that, at least after March 1978, Rodriguez was not a supervisor within the statutory definition. If, as Respondent contends, the change from a salary to an hourly method of payment was made at the direction of Robinson Industries' accountants, it may well be that the accountants concluded that Rodri- guez actually was not a supervisor and was not legally exempt from the Fair Labor Standards Act, as he had been treated up to that time. Despite Rodriguez' concession that his general duties did not change after Respondent's takeover, it is probable that Respondent wanted to make it clear that Rodriguez was not to perform any management or supervisory functions in- volving discretion or independent judgment. Respondent's principals considered Richford's management of the zipper division inadequate and a major cause of its poor economic situation. Since Respondent was taking over Richford's per- sonnel, it is reasonable to believe that the new owners were determined to tighten the reins. The evidence as a whole establishes that Rodriguez, as a long-experienced and competent employee, was responsible for the day-to-day operation of the finishing department in accordance with directives given by Ballarino and, some- times, by Benbasat. There is no credible evidence that Rod- riguez enjoyed any scope for the exercise of discretion or independent judgment in the execution of orders. His au- thority in personnel matters and his exercise thereof were considerably more restricted than those of an employee re- cently held not to be a supervisor in C & W Supermarkets, Inc. v. N.L.R.B., 581 F.2d 618 (7th Cir. 1978)." See also, e.g., N.L.R.B. v. Harmon Industries, Inc., 565 F,2d 1047 (8th Cir. 1977); Commercial Movers, Inc., 240 NLRB 288 (1979). Accordingly, it is concluded that Rodriguez was not a supervisor and that the Union's majority was not in any manner affected by his major role in the organizational campaign. Needless to say, it also follows that he was a member of the bargaining unit and his card should be counted in determining majority. Santiago's situation was essentially the same as that of Rodriguez. Accordingly, it is found that Santiago was not a supervisor and was properly included in the bargaining unit." His union card, therefore is to be counted in deter- mining the Union's majority when it demanded recogni- tion. U In that case it was found that the employee in issue had actually been a supervisor both before and after the time involved. The present record does not contain sufficient evidence to determine Rodriguez' status before Re- spondent's regime. Cf. Berbiglia, Inc., 233 NLRB 1476 (1977). The findings here made as to Rodriguez and Santiago. after full hearing with voluminous evidence, coincide with those made by the Regional Direc- tor in his Decision and Direction of Election. The Regional Director's find- ings also included Edmundo Luna, Frederico Barraza and Luis Vergara. Although Respondent adduced evidence in the present trial apparently in- tended to show that Luna was a supervisor, Respondent no longer questions the status of Luna, Barraza and Vergara as unit employees. c. Dutv to bargain The Union's majority status and bargaining demand did not automatically obligate Respondent to recognize and bargain with the Union. So long as Respondent refrained from unfair labor practices and other misconduct designed to undermine the Union's status, it could insist on having the Union demonstrate its representation position in an election. However, as heretofore found, Respondent did en- gage in unfair labor practices designed to undermine the Union. By so doing, Respondent forfeited its right to an election and became in violation of Section 8(a)(5). N.L.R.B. v. Gissel Packing Co., supra. 395 U.S. 575, 610 (1969): Trading Port, Inc., 219 NLRB 298, 301 (1975)." 4. The strike and reinstatement The evidence is undisputed that the employees engaged in a strike solely as a response to the recent spate of "lay- offs." They feared that if they remained at work, by the time of the election additional "layoffs" would have dissi- pated the Union's majority status. Their fear was appar- ently well-founded. Ruiz, Oses, and Miriam Izquierdo, though allegedly only "temporarily" laid off were not in- cluded on the election eligibility list. And Benbasat made it clear that, but for the strike, there would have been more layoffs before the election. Since it has been found that eight employees had been discriminatorily laid off or discharged, it necessarily follows that the strike was an unfair labor practice strike. The strik- ers, therefore, were entitled to immediate reinstatement upon their request therefor. The complaint alleged that Respondent had unlawfully failed and refused to reinstate the alleged discriminatees and 32 named strikers. When Respondent's counsel at- tempted to present evidence concerning reinstatement of some employees and unaccepted offers of reinstatement to others, the General Counsel objected, maintaining that questions of reinstatement should properly be left to the compliance stage. At the time, I overruled the General Counsel's objections on the ground that I could not exclude evidence relevant to an express allegation in the complaint. Later, however, the parties agreed on the record that rein- statement issues would be deferred to the compliance stage if it was found in the present proceeding that Respondent had violated the Act. Accordingly, although Respondent did thereafter address the reinstatement issues, they were not fully litigated and I expressly refrain from deciding them at this point. Deferral of the reinstatement issue is sanctioned by nu- merous prior decisions. E.g., N. L. R. B. v. Woodline, Inc., 577 F.2d 463 (8th Cir. 1978); DuBois Chemicals, Inc., 140 NLRB 103, 105 (1962), enfd. 327 F.2d 494 (5th Cir. 1964); Mississippi Steel Corporation, 169 NLRB 647, 663 (1968). '4 Since Respondent's unfair labor practices began before the slider de- partment was closed, it would appear that that closure, without notice to or bargaining with the Union, violated Section 8(aX)(5). McGregor Printing Cor- poration, 163 NLRB 938, 939 (1967); Shell Oil Company, 149 NLRB 283 (1964). Although the complaint contained no such specific allegation, the evidence admitted as relevant to Section 8(a)(3) allegations establish this Section 8(aX5) violation. 840 ROBIN AMERICAN CORPORATION 1it. THE REPRESENTATION PROCEEDING A. The Challenges As previously stated, the election. held on March 3. 1978, resulted in a vote of 14 for the Union and 40 opposed, with 30 ballots challenged: 27 by the Board agent because the voters' names were not included on the eligibility list and 3 by the Union because the employees were not employed by Respondent on both the eligibility and election dates. The record leaves no doubt that the 27 persons chal- lenged by the Board agent were discriminatees or strikers. Obviously the discriminatees were eligible to vote. Our- Way, Inc./Our-Way Machine Shop, 238 NLRB 209 (1978). Similarly, the strikers wre eligible. Cf. Bros-Science Lahbora- tories v. N.L.R.B., 542 F.2d 505 (9th Cir. 1976); Globe Molded Plastics Company, Inc., 200 NLRB 377 (1972), con- cerning replaced economic strikers. A fortiori unfair labor practice strikers who have requested reinstatement are eligi- ble to vote in an election. Accordingly, the Board agent's challenges should be overruled. The Union challenged the ballots of Felix Garcia and Victor Izquierdo on the ground that they were not em- ployed by Respondent at the time of the election, and Ana Levin on the ground that she was not employed by Respon- dent on the eligibility date. However, at the hearing the Union presented no evidence concerning these ballots. Nor does the Union refer to its challenges in its post-trial brief. Accordingly. I can conclude only that the Union has with- drawn its challenges. Accordingly, it will be recommended that the three ballots be opened. B. The Objections The union filed 10 objections to the election, three of which were later withdrawn. One (10) was an "other con- duct" catchall. Objection 3 alleges the unlawful discharges of Rice, Her- nandez, Garcia, Jules and Izquierdo, along with other em- ployees as to whom no complaints were filed.4' Objections 6 and 7 allege unlawful interrogation and threats, most of which allegations were also included in the charges and complaints. Since Respondent has been found to have com- mitted most of the misconduct so alleged, Objections 3, 6, and 7 must be sustained in major part. The misconduct thus found is manifestly sufficient to require that the election be set aside. Accordingly, it is unnecessary to pass on the re- maining objections.47 CONCLUSIONS OF LAW 1. Respondent Robin American Corporation is an em- " Mano Venta, Elizabeth Molina, Amanda Lamburu, and Zoila Viera. ' Objection 4 alleges refusal to reinstate unfair labor practice strinkers. Reinstatement issues have been deferred to the compliance stage. Objection 5 alleges that at the election Respondent took the position that 14 named strikers had been replaced and were thus ineligible to vote; how- ever, all 14 voted under challenge. Objections 7 and 9 alleges that Respon- dent made oral and written misrepresentations. Except for an article from the "Reader's Digest," distributed to the employees, as translated into Span- ish, there was virtually no evidence concerning Respondent's preelection campaign meetings and propaganda. The article appears to fall within Re- spondent's free speech rights. ployer engaged in commerce within the meaning of Section 2(2), (6). and (7) of the Act. 2. The Union. International Ladies' Garment Workers' Local 415-475, AFL-CIO, Southeast Region, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. Since on or about November 17. 1977, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has committed unfair labor practices by coer- cively interrogating employees concerning union activities and by indicating, expressly or impliedly, that employees were being or would be laid off or discharged for joining the Union. 4. By terminating the employment of Adela Hernandez, Lucille Rice, Jose Garcia, Montey Collins, and Joseph Jules on December 9, 1977: Juana Oses and Miriam Izquierdo on January 20, 1978; and Maria Ruiz on January 21, 1978, and by failing and refusing thereafter to offer them rein- statement, all for the purpose of discouraging union mem- bership by its employees, Respondent has discriminated with respect to the tenure of their employment, thereby committing unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 5. All production and maintenance employees, leadmen, inspectors, and truckdrivers, employed by Respondent at its Hialeah. Florida locations, but excluding office clerical em- ployees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 6. Octavio Rodriguez and Martin Santiago are nonsu- pervisory employees included in the aforesaid bargaining unit. 7. Since November 10, 1977, the Union has been the ex- clusive representative of the employees in the aforesaid bar- gaining unit within the meaning of Section 9(a) of the Act. 8. Since on or about November 17, 1977, the first known date Respondent's unfair labor practices commenced after the Union's demand for recognition, Respondent has vio- lated Section 8(a)5) and (I ) of the Act by refusing to recog- nize and bargain with the Union as the exclusive bargaining representative of the employees in the unit defined above. 9. Respondent has violated Section 8(aX5) and (1) of the Act by unilaterally closing its slider department and discon- tinuing production of sliders without notifying the Union and giving it an opportunity to bargain concerning the mat- ter. 10. The strike which began on January 24, 1978, was an unfair labor practice strike from its inception. II. Since February 18, 1978, Respondent has violated Section 8(a)(3) and (1) by failing and refusing to offer rein- statement to employees who engaged in a lawful strike. 12. The aforesaid unfair labor practices affect commerce within the meaning of the Act. 13. It has not been shown that Respondent has engaged in any unfair labor practices other than those found above. THE REMEDY Having found that Respondent has committed unfair la- bor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Since Respon- 841 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's unfair labor practices strike at the heart of the Act, a broad cease-and-desist order will be recommended, as is the Board's practice in such cases. Because many of the em- ployees speak and read only Spanish, Respondent will be required to post notices in both English and Spanish. Since it has been found that eight employees were laid off or discharged and unfair labor practice strikers were denied reinstatement in contravention of Section 8(a)(3) and (1) of the Act. it will be recommended that Respondent be re- quired to offer reinstatement to such discriminatees and strikers, together with backpay, as is customary in such cases. At the present hearing, after Respondent sought sev- eral times to establish that many of the strikers had been offered reinstatement, it was agreed that determination of questions concerning reinstatement would be deferred to the compliance stage of the proceedings if a reinstatement and backpay order were to be issued. That course has fre- quently been followed by the Board, with judicial approval. See e.g., N.L.R.B. v. Reliance Clay Products Company, 245 F.2d 599 (5th Cir. 1957); N.L.R.B. v. W. C. McQuaide. Inc., 552 F.2d 519, 531 (3d Cir. 1977); Calcite Cotporation. 228 NLRB 1048, 1049-50 (1977), enfd. 83 LC 17,427 (9th Cir.). Such issues can perhaps be resolved in the collective bar- gaining which is being directed in this case. If agreement is not reached, the unresolved factual issues can be litigated in a supplemental proceeding before the Board. Since it may be that at present there are not sufficient jobs available for reinstatement of all the discriminatees and strikers, even after dismissal of all replacements, "the available positions shall be distributed on a nondiscriminatory basis. Those employees for whom no employment is available shall be placed on a preferential hiring list." Columbia Tribune Pub- lishing Co., 201 NLRB 538 (1973). Cf. Lloyd Wood Coal Co, Inc., 230 NLRB 234, 245 (1977). The backpay period for each discriminatee and striker continue until he or she is offered proper reinstatement or the date if any, on which Respondent establishes that the employee would have been the laid off or discharged absent the unfair labor practices found herein. The amounts of backpay shall be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in accordance with the for- mula and method prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).? Respondent's violations, including discontinuance of an entire department and eight discriminatory discharges, were so "outrageous" and "pervasive" as to require issu- ance of a bargaining order. See, e.g., J. P. Stevens & Co., Inc., Gulistan Division v. N.L.R.B., 441 F.2d 514, 521 (5th Cir. 1971), cert. denied, 404 U.S. 830. Respondent argues that no bargaining order is appropriate "since the employ- ees have already been impressed with the Board's remedial power and its effect upon their Employer since 75 percent of the strikers were returned to work based upon the Em- ployer's admitted concern for the possibility of a subse- 4See, generally, Isis Plumbing Hearing Co., 138 NLRB 716 (1962). The General Counsel has filed a "supplemental Brief in Support of a Remedial Interest Rate of 9%." No such request was made at the hearing and no evidence relevant to it was offered. I believe it beyond my province to make any recommendation concerning this proposed change in established Board policy and practice. quent backpay order." Although, as observed above, the facts concerning reinstatement have been deferred to subse- quent determination, the accuracy of Respondent's state- ment that 75 percent of the strikers have been offered proper reinstatement will here be assumed. In C & T Manu- facturing Company, supra, 233 NLRB at 1438, the Adminis- trative Law Judge said that an employer's reopening closed departments to minimize its possible backpay liability "demonstrates good judgment, not a guilty conscience." No claim is here made that the reinstatement of some strikers manifests a "guilty conscience." But, on the other hand, such action cannot by itself wipe out the coercive effect of Respondent's unfair labor practices. Indeed, in C & T, su- pra, the Board, contrary to the Administrative Law Judge, issued a bargaining order, even though the unfair labor practices had been "directed to only five employees" in a unit of about 50. In the present case Respondent did not reply to the request for reinstatement of strikers until after the Union lost the election. The recalls, therefore, could not reasonably be expected to allay the fears of employees in the event of future organizational activities. This is particu- larly true because of Respondent's failure to reinstate either the discriminatees or the major union activists. Respondent argues that no bargaining order is proper at this time since, because of the absence of "evidence on the record with regard to current conditions at the plant, the Board lacks the necessary evidence to sustain a bargaining order in this jurisdiction."' The Board, with judicial ap- proval, has frequently held that changes in the composition of a bargaining unit do not obviate the need for a bargain- ing order in situations like the present. E.g., N.L.R.B. v. Tri- State Stores, 477 F.2d 204, 207 (9th Cir. 1972), cert. denied 414 U.S. 1130. To adopt Respondent's position would en- courage employers to undermine union majorities and then litigate at length, while personnel turnovers occurred. NV.L.R.B. v. L. B. Foster Company, 418 F.2d 1, 4 5 (9th Cir. 1970), cert. denied, 397 U.S. 990; Henry Colder Company, 184 NLRB 118 (1970), enfd. in pertinent part, 447 F.2d 629 (7th Cir.); Atlas Engine Works, Inc., 181 NLRB 52 (1970), enfd. 435 F,2d 558 (6th Cir. 1970). The evidence in this consolidated proceeding clearly es- tablishes Respondent's commission of serious unfair labor practices which have undermined the Union. It is highly improbable that at any time in the near future the employ- ees could freely express their preference in an election, with the fresh memory of the termination of their colleagues in a pre-election period and Respondent's continued refusal to reinstate the leaders of the union campaign or to recognize the employees' chosen representative. In its brief the Union requests the conventional remedy in situations like the present, i.e.,- In the event the unresolved challenged ballots are in favor of the Union and the count of the challenged ballots reveal that the Union received a majority of the votes cast, then the Union will be certified as the exclu- sive collective bargaining representative.... In the event the Union does not receive a majority of the votes cast, based on the pervasive unfair labor practice 'a Presumably the "jurisdiction" Respondent refers to is the Fifth Circuit. Even if Respondent's implied view of the court's decisions is assumed to be correct, I am bound by Board decisions. 842 ROBIN AMERICAN CORPORATION [sicl committee [sicl, the representation proceedings shall be dismissed and a Gissel-type bargaining order issued.?O 0°Citing Independent Sprlnkler and Fire Protection Co.. 220 NI.RB 941 ( 1975), enfd. h the Fifth Circuit in an unpublished order 95 LRRM 2064). I have no doubt that the Union is entitled to the remedy it seeks, and I shall so provide. I shall recommend that Re- spondent be specifically required to bargain, upon request. concerning the closure of the slider department and its ef- fects on the employees. [Recommended Order omitted from publication.] 843