Gus Canales, Inc.

GUS CANALES, INC. 571 We find no merit in the Union's contention that it was not properly notified of the Employer's withdrawal from the multiemployer bar- gaining in 1957, and that it had reason to believe that the Employer continued to participate, through Beard, in the multiemployer bar- gaining until this proceeding. The record indicates that the Union had actual notice, or at least sufficient information reasonably to con- clude that the Employer had withdrawn from multiemployer bargain- ing. In the 1958 and 1960 group negotiations, while the.Union may have been confused 4 at the time as to which employers were covered, it was never informed, directly or otherwise, that the Employer was a participant. The fact of the separate negotiations with the Em- ployer in those years and the nature of the agreements reached are indicative of an independent course by the Employer. There is no basis for a finding that Beard has apparent authority to represent the Employer as part of a multiemployer unit. On the entire record in this case, we are satisfied, and find, that the Employer had clearly withdrawn from its past participation in the multiemployer bargaining and has unequivocally evinced its intention to pursue an independent, separate employer course in collective-bar- gaining relations.' Accordingly, we find that the following employees of the Employer at its San Francisco, California, branch, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All warehouse employees, excluding office cleri- cal employees, sales personnel, guards, and supervisors' as defined in the Act. [Text of Direction of Election omitted from publication.] & The union representative testified, for example : "Presumably which hat Sam Beard had on at the moment and which he wore subsequent to that , I have no way of 11 knowing. . . . B See, e.g., W. A. Swanson Logging Co., 111 NLRB 495. G The parties stipulated at the hearing that the working foreman is not a supervisor and should be included in the unit. Gus Canales, Inc. and Building and Construction Trades Council of Corpus Christi, Texas, and Vicinity, AFL-CIO Hudson Engineering Corporation and Building and Construc- tion Trades Council of Corpus Christi, Texas, and Vicinity, AFL-CIO. Cases Nos. 03-CA-951 and 23-CA-956. May 17,1961 DECISION AND ORDER On September 16, 1960, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that 131 NLRB No. 83. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,2 conclusions,3 and recom- mendations of the Trial Examiner. ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Gus Canales, Inc., Premont, Texas, and Hudson Engineering Corporation, Houston, Texas, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Building and Construction Trades Council of Corpus Christi, Texas, and vicinity, AFL-CIO, or in any other labor organization, by discharging or laying off employees or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employ- ment. (b) Interrogating employees as to their or their fellow employees' union activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) Soliciting employees to report on the union activities of their fellow employees. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. 2In adopting the Trial Examiner's finding that Respondents had knowledge of the union activity of Rodriquez and Alaniz at the time of their discharge on August 31, we place particular reliance upon the credited testimony of Alaniz concerning a conversation be- tween Alaniz and Oscar Ramirez, a Hudson assistant foreman, which occurred a few days prior to their discharge (in dealing with the subject of Respondents' knowledge, the Trial Examiner inadvertently places Rodriquez rather than Alaniz in this conversation ; elsewhere in the Intermediate Report the Trial Examiner properly identifies the conversa- tion). During this conversation, Ramirez informed Alaniz that Bobby Wyatt, a Hudson foreman, and Roberto Garcia, a Canales supervisor, told Ramiiez that they were aware that some of the employees had attended the August 25 union meeting and that they were "pretty sure" that Alaniz was one of those who had attended. In adopting the Trial Examiner's finding that Respondent had knowledge of the union activity of Rodriquez and Alaniz, Member Rodgers does not rely upon the small size of the Canales' contingent of recruited workers or the small size of the town of Premont where these workers were recruited in support of such a finding. 3 We also find, as did the Trial Examiner, that Respondents violated Section 8(a) (1) of the Act by reason of the conduct described in section H of the Intermediate Report. GUS CANALES, INC. 573 (d) Promising or offering economic benefits for abandoning the Union. (e) Engaging in surveillance of employees' union meetings or activities. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the said Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in that section of the Intermediate Report entitled "The Remedy," the employees named in the Appendixes attached hereto. (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 other records necessary to analyze the amount of backpay due and the right to reinstatement under the terms of this Order. (c) Post at their respective places of business (Respondent Canales at its office in Premont, Texas, and Respondent Hudson at the Humble jobsite and at any other of its construction jobsites now in progress or to be undertaken in the near future within the territorial jurisdic- tion of Building and Construction Trades Council of Corpus Christi, Texas, and Vicinity, AFL-CIO, and at any other places where notices are customarily posted for employees, the notices attached hereto marked "Appendix A" and "Appendix B." 4 Copies of said notices, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by Respondents, be posted immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter in conspicuous places including all places where no- tices are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps Re- spondents have taken to comply herewith. 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL NOT discharge, layoff, or otherwise discriminate against any employee because of membership in or activity on behalf of, or sympathy with, Building and Construction Trades Council of Corpus Christi, Texas, and Vicinity, AFL-CIO, or any other labor organization. WE WILL NOT interrogate employees as to their or their fellow employees' union activities in a manner constituting interference, restraint, or coercion. WE WILL NOT solicit employees to report on the union activities of their fellow employees. WE WILL NOT promise or offer employees economic benefits for abandoning the Union. WE WILL NOT engage in surveillance of employees' union meet- ings or activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join the aforesaid labor organization, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL make whole the employees named below for any loss of earnings they may have suffered by reason of our discrimina- tion against them. Edwardo M. Rodriquez Cresencio Garza Edwardo Alaniz Arturo Gamez Enrique Hinojosa Ramon Pena Pedro Reyes Augustin Mungia Isuaro Gonzales Amado Palacios Blas Ruiz Rosindo Salazar Arturo Charles Guadalupe Herrera Neal Calindo Gustavo Geuera Nicolas Garza Abel Saenz Valdemar Saenz Jose Munoz Jose Garcia Jose C. Munoz Gavino Chapa Portfirio Perez Alejo Garcia Rene Perez GUS CANALES, INC. Macario Ramirez Luis Martinez Roberto Garza Carlos Munoz Ramon Garcia Hermilo Gonzales Erasmo Saenz Benito Reyes Alberto Martinez Armando Villarreal Leonel Saenz Conrado Garcia 575 All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization . We will not discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any labor organization. Gus CANALES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL NOT discharge, layoff, or otherwise discriminate against any employee because of membership in or activity on behalf of, or sympathy with, Building and Construction Trades Council of Corpus Christi, Texas, and Vicinity, AFL-CIO, or any other labor organization. WE WILL NOT interrogate employees as to their or their fellow employees' union activities in a manner constituting interference, restraint, or coercion. WE WILL NOT solicit employees to report on the union activities of their fellow employees. WE WILL NOT promise or offer employees economic benefits for abandoning the Union. WE WILL NOT engage in surveillance of employees' union meet- ings or activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join the aforesaid labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL make whole the employees named below for any loss of earnings they may have suffered by reason of our discrimination against them. Edwardo M. Rodriquez Guadalupe Herrera Edwardo Alaniz Gustavo Geura Enrique Hinojosa Abel Saenz Isuaro Gonzales Jose C. Munoz Blas Ruiz Porfirio Perez Arturo Charles Reno Perez Neal Calindo Macario Ramirez Nicolas Garza Luis Martinez Valdemar Saenz Roberto Garza Jose Garcia Carlos Munoz Gavino Chapa Ramon Garcia Alejo Garcia Hermilo Gonzales Cresencio Garza Erasmo Saenz Arturo Gamez Benito Reyes Ramon Pena Alberto Martinez Augustin Mungia Armando Villarreal Amado Palacios Leonel Saenz Rosindo Salazar Conrado Garcia All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization. We will not discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any labor organization. HUDSON ENGINEERING CORPORATION, Employer. Dated----- ----------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding , brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Falfurrias and Alice, Texas, from March 15 through 23, 1960, pursuant to due notice with all parties being represented by counsel . The complaint , issued by the General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board ) on December 4, 1959, and based on charges duly filed and served, alleged in substance that Gus Canales , Inc , and Hudson Engineering Corporation, herein called Canales and Hudson , the Respondents herein, had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act by various speci- fied acts of discrimination against employees because of their union activities and GUS CANALES, INC. 577 by engaging in various specified acts of interference, restraint, and coercion against them. In their duly filed answers, Respondents denied the commission of any unfair labor practices. A motion having been made by Respondent Canales on May 11, 1960, to correct the record in certain respects, and no opposition having been heard from any of the other parties, said motion is hereby granted. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESSES Respondent Canales is a corporation duly organized under and existing by virtue of the laws of the State of Texas, with its main office and principal place of business located in Premont, Texas, where it is engaged in excavation and construction work in the oilfields and is also engaged in ditching, fencing, and roadbuilding. During. the 12 months preceding the issuance of the complaint, a representative period, Respondent Canales, in the course and conduct of its business operations, performed services of a value in excess of $100,000,000 for Sun Oil Company, Shell Oil Com- pany, and Magnolia Oil Company, each of which companies annually ships products of a value in excess of $50,000 from points in the State of Texas direct to points outside the State of Texas. During the same period of time Respondent Canales. performed services of a value in excess of $50,000 for Respondent Hudson. Respondent Hudson is a corporation duly organized under and existing by virtue of the laws of the State of Texas, with its principal office and place of business located in Houston, Texas, where it is engaged as a general contractor in heavy construction. During all times material herein, Respondent Hudson was under con- tract with Humble Oil and Refining Company to construct a gas plant on the King- Ranch property in the State of Texas, at a cost in excess of $20,000,000. At the same time, Respondent Hudson was engaged in construction jobs in several other States of the United States, and in Canada, Mexico, and Pakistan. During the 12 months preceding the issuance of the complaint, a representative period, Respond- ent Hudson purchased goods and materials of a value in excess of $1,000,000, which goods and materials were shipped from points outside the State of Texas direct to points in the State of Texas. Respondent Canales and Respondent Hudson are engaged in commerce within, the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Building and Construction Trades Council of Corpus Christi, Texas, and Vicinity, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General picture The Respondent Hudson moved into the Humble jobsite on the King Ranch in the spring of 1959. Except for about six or eight common laborers hired directly by Hudson, all such help was supplied to it by the Respondent Canales. This was done pursuant to a purchase order or contract between the two requiring Canales, inter alia, to carry workmen's compensation insurance as well as various forms of bodily injury and property damage liability insurance on the men furnished, to indemnify Hudson against all labor claims, to comply with the Fair Labor Standards Act and all applicable laws, and to reimburse Hudson for all taxes or governmental charges paid in connection with the men supplied. In consideration of the foregoing Hudson agreed to pay Canales $1.40 per hour per man for hours worked under 40 per week and $2 05 per hour for hours worked in excess of 40 per week. The rate paid to the men by Canales (not governed by the contract except presumably as affected' by applicable law) was $1 per hour. The contract also provided in part: Hudson has the right to refuse admission to the work and to require Gus Canales, Inc. to remove or cause to be removed from such work such of said persons as Hudson may designate. . . . In the performance of the contract Gus Canales, Inc. is an independent contrac- for with full direction and control over its employees, and Hudson's supervision. 599198-62-vol 131-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and assignment of work shall in no way be deemed to constitute an employer- employee relationship between Hudson and the employees of Gus Canales, Inc. In view of the above agreement and by the practice engaged in under it, no com- mon labor could be hired for the Humble job except through Canales. Besides the operation of the contract itself tending to produce this result, the physical location of the job and its inaccessability lent further monopoly to Canales in this respect. There were only two entrance points to the job at this area of the King Ranch, both under constant guard. These were Ella Switch Gate and Borregas Gate, both several miles from the actual worksite. All the employees on the project were required to wear identification badges, with admission to the ranch property itself through the above gates being by badge identification. The Canales laborers 1 were transported to the job by Canales operated buses. At the jobsite they clocked in through a clocking station designated for Canales em- ployees. Once on the job there is no doubt that they were assigned by and under the complete direction and supervision of Respondent Hudson, performing work typical of common or unskilled labor on building construction projects. Although on some jobs to which Canales supplied labor there were Canales pushers also employed,2 such was not the case at the Humble job. About the same time as the Humble job got under way, the Charging Party, the Building and Construction Trades Council of Corpus Christie, Texas, and Vicinity, AFL-CIO, herein called the Union, began an organizing campaign that included the Humble job. To this end about the middle of June it solicited the aid of two of the Canales laborers on the job, Edwardo Rodriques and Edwardo Alaniz, in recruiting union support among the employees and in getting union authorization cards signed. By August 31, Canales' employees had signed approximately 60. union cards. On August 25 and September 1 the Union held meetings to which Canales and Hudson employees were apparently invited. These meetings took place at Watson's Cafe, a public restaurant in Alice, Texas, and were attended by both Rodriquez and Alaniz among the very few employees who attended.3 On August 31 Rodriquez and Alaniz were discharged. It is clear from Project Engineer C. J. Wyatt's testimony that Hudson was aware of the Union's purpose to organize the job from the moment he moved into it. Also, the credited and for the most part undenied evidence shows that both Respondents were opposed to union representation for their employees. Thus on Hudson's part we have (1) Wyatt's testimony that Hudson likes "to work open shop," (2) Paint Foreman J. E. Dick telling employee Sherman H. Fuller that Hudson did not want union men on the job, and (3) a frankly antiunion speech by Hudson's president to all the assembled employees on the job on September 24, 1959, designed to per- suade the employees not to join the Union. On Canales' part we have Gus Canales' admission to the first group of employees he sent to the Humble job in the first part of June that "if the union ever tried to go in the plant he was going to quit, because he could not afford to pay union wages" and his statement to Fuller when the latter was hired to drive a Canales bus in July that he liked to "cull" union men among job applicants. The union meeting of September 1 is alleged to have been under surveillance by both Respondents. At this meeting it was announced that there were sufficient application cards signed to support the filing of a representation petition. On the following day, September 2, a Wednesday, such a petition was filed with the Board, Case No. 23-RC-1448 (not published in NLRB volumes). On that same day the force of Canales laborers on the Humble job was cut about 50 percent. Both the August 31 discharges of Rodriquez and Alaniz and the September 2 cut are alleged to have been discriminatorily motivated by both Respondents be- cause of the union activity of the employees affected. Further discrimination is attributed to Respondents in the discharge of one Sherman H. Fuller on October 2. The foregoing plus some individual charges of Section 8(a)(1) violations and the supervisory status of two of Canales' employees, Rufino Montemayor and Roberto Garcia, which are at issue, complete the picture. These individual facets of the case will be treated under appropriate subheadings. 'I use this term for convenience only. Actually I mean Canales-recruited laborers who, as will be shown hereinafter, were employees of Hudson. 2 Prior to September 2 there were as many as 88 Canales laborers employed on the Humble job at one time . In addition to these, Canales was supplying perhaps another hundred or so men to various other jobs in the area 8 At the September 1 meeting only three or four current employees of Hudson plus Rodriquez and Alaniz attended. GUS CANALES, INC. 579 B. The status of Rufina Montemayor and Roberto Garcia Rufino Montemayor had worked for Canales about 20 years. When he suffered a heart attack some years before the hearing he was kept on the payroll with the understanding that he did not have to come to the office at all. According to Gus Canales' testimony he is a handyman around the office who acts as timekeeper and follows instructions. Roberto Garcia was hired about the middle of July 1959 as a bookkeeper but at the times material herein was apparently performing the same functions as Montemayor, i.e., timekeeping, busdriving, and following in- structions. His duties were exclusively' in connection with the Hudson contract. Both employees have many distinctions in their hire as compared to that of rank- and-file employees. They do no manual labor. They are on salaries and do not punch a timeclock. Both are responsible to Gus Canales himself and in his absence to Canales' vice president, Charlie Hornsby, who is Gus' brother-in-law .4 They both engage in hiring functions. For instance, Pedro Reyes testified that he was hired by Montemayor without any contact with Canales. Carlos Munoz testified that after he had filled out an application given to him by the bookkeeper he was told to go to work by Roberto Garcia. The Canales bookkeeper, Mrs. Parker, testified that "the supervisors assign (men to the various jobs) under the direction of Mr. Canales." As supervisors she named Montemayor and Carl Evans. The latter is in charge of the equipment department with eight people under him. She also testified that Montemayor is in the office, "available for any calls that might come in to supply men for those calls. . In its brief Respondent Canales contends that the record establishes that Gus Canales is strictly a one-man operation; that because of his wide acquaintance in the area "when a job would come up Canales could usually recall from his own recollection who would be the man or men for the job"; that he was the only one with authority to hire and fire; and that anything done by Montemayor or Garcia in the conduct of the business was done only at the specific and express instruc- tions or orders of Gus Canales himself. I do not doubt that to some extent the foregoing is true but not to the extent of excluding anyone but Gus himself and possibly Hornsby as having supervisory authority in an organization of 175 to 200 people. For instance in an emergency recruitment of 40 or 50 men, absent special considerations, it is absurd to think that Gus would hand-pick each and every man regardless of what records he might have available to him let alone from memory, particularly with respect to the type of labor involved. I believe that the record as a whole so closely identifies Montemayor and Garcia with the interests of management as to clothe them with the attributes of supervisors within the meaning of the Act. In addition to the foregoing indicia identifying the two with management there is another factor which is peculiarly applicable in this case. That factor has to do with the condition of Gus Canales' eyesight and the responsibility of Montemayor and Garcia toward him for that reason. The record clearly reveals that Gus Canales is practically blind. For that reason, his reliance on Montemayor and Garcia for information and guidance is particularly important. Certainly any visual derelictions by the employees can be known by him only through the eyes and reports of others. C. Surveillance On August 28 or 29, according to Edwardo Alaniz' undenied and credited testi- mony, Oscar Ramirez, identified by Project Engineer Wyatt as a Hudson assistant foreman, told him that he had learned about the August 25 union meeting at Wat- son's and that both Hudson and Canales representatives were going to watch the next meeting. Ramirez had said his informants were Bobby Wyatt (Project Engineer Wyatt's son and a Hudson foreman) and Roberto Garcia. On the night of the meeting, September 1, around 8 o'clock, when John Kirton, executive secreary of the B.T.C., came into Watson's Cafe for the meeting, he was introduced by a fellow union official to Rufino Montemayor and Gus Gonzales 5 as the latter two were sitting with another person in a booth in the public dining * Canales the individual, as distinguished from the corporate entity, will sometimes be referred to as Gus. 6 Gonzales was identified in the record as a friend of Gus Canales. He was called upon on the night of Labor Day to aid in recalling a number of the employees who were laid off on September 2. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD room eating.! Edwardo Rodriquez also testified as to seeing Montemayor and the other two in the cafe at that time and identified the third person as one Castillo. Rodriquez also testified about seeing Hudson's foreman, Thomas Elkins, outside standing at a parked car in front of the building. According to Rodriquez' testi- mony, Elkins tried to avoid being seen by ducking down between the parked cars. Elkins' presence was made known by Rodriquez to Kirton who, as a result, asked a couple of union officials to go outside and investigate before the meeting finally got started. Alaniz testified credibly and without denial that about 7:30 to 7:45 he and Rodriquez saw Montemayor and two others in a pickup truck parked in front of the Queen Alice Cafe located directly across the street from Watson's Cafe. Montemayor was seated in the car with the door open looking back at Watson's. Rodriquez and Alaniz drove on around the block, parked, and went into Watson's where they found Montemayor and the other two sitting in a booth eating. Alaniz further testified that as he and Rodriquez were having coffee, two union officials, Horn and Williams, went outside. Rodriquez and Alaniz followed and caught up to them and "started talking to them." Then "they started going around the building" and Alaniz told them that Elkins was standing on the left front fender of a car.looking into the door of Watson's Cafe. Elkins saw Alaniz "going down through there, so he squat down by the wheel." Alaniz then went back into the cafe and Elkins "was still squatting down." Elkins testimony about the matter is as follows: He has known Bob Wyatt, Hudson's general labor foreman, and Ray Ballard, Hudson's heavy equipment foreman, for. years. At the time in question he was taking instructions from Wyatt for initiation into the Masonic Lodge and being behind schedule was working with Wyatt on it practically every night. Since the ritual is highly secret and is transmitted only by word of mouth, the privacy of an automobile was usually resorted to. At 7 p.m., September 1, Wyatt called for him just as he was finishing dinner. Although he had not yet eaten (Wyatt is not married) Wyatt politely refused Elkins' invitation to eat there saying he would eat later. So they got into the car and got on the highway and just went toward Alice winding up at the Watson's Cafe (a place Elkins has visited "several times") where they met Ray Ballard. Since Ballard had not eaten either they decided to eat at Watson's, Elkins accompanying them inside. They were parked in front of the cafe and had stood out in front 5 or 10 minutes talking before .they went inside. Elkins was quite vague in his testimony as to what occurred if anything during that period. He denied, however, that he saw Kirton, Rodriquez, or Alaniz that night. Neither Wyatt nor Ballard testified. To the extent that Rodriquez and Alaniz' testimony can be said to have been denied by that of Elkins, I credit Rodriquez and Alaniz. Notwithstanding Kirton's admission that Watson's Cafe was usually busy and is "a good place to eat and lots of people eat there," I believe and find that the presence of three Hudson foremen and at least one Canales supervisor on the occasion of the second union meeting was something more than mere coincidence. Elkins' conduct that night was hardly consistent with his professed need for privacy and his desire to catch up on his lagging lodge work.? And while Watson's Cafe may have been a good place to eat, 8 o'clock in the evening would seem to me to be considerably be- yond the normal dinnertime in south Texas. Accordingly, I find that the presence of representatives of the respective Respondents was for the purpose of finding out what they could about the union meeting that night thus interfering with the right of the employees guaranteed by the Act and violating Section 8(a) (1) thereof.8 In reaching this result I have been swayed somewhat by Ramirez' prediction to Alaniz that the meeting was going to be watched by Respondents and also by the fact that here as elsewhere in this case Respondents failed to produce the corroborating testimony of others who were in position to corroborate with no attempt to show that they were unavailable. D. The discharges of Rodriquez and Alaniz Edwardo Rodriquez, who with Edwardo Alaniz, was discharged by Canales on August 31, had worked for Canales intermittently from 1948 to 1953 when he left voluntarily to take work elsewhere. He had never had any complaints from anyone O The meeting was scheduled in the charcoal room which adjoins the public or main dining room. It was necessary to go through the public dining room to get into the charcoal room. 7 According to Elkins' testimony Ballard was not a Mason. 8 New England Die Casting Company, 242 F. 2d 757, 759 (C.A 2) ; Ivy Hill Lithograph Co, 121 NLRB 831; Allure Shoe Corporation, 123 NLRB 717. GUS CANALES, INC. 581 connected with Canales about his work during that period. In June 1959, he was in the first group hired by Canales for the Humble job. His important part in the union campaign has already been noted. During his last 3 weeks of employment at ,the plant he had been a painter's helper working with brush painter Sherman Fuller. According to Rodriquez' undenied and credited testimony he had no conversation with nor comments from Hudson's paint foreman, J. E. Dick, about his work. He admitted on cross-examination that he was dissatisfied with his tools on the job- they were not the right ones nor sharp enough-which information he gave to 'Canales' Roberto Garcia. He also complained about the heat and about the work being too hard and "thought" that he complained to Garcia about the job the week he was discharged. There is no indication, however, that he complained to Hudson personally nor that any complaints he made to Garcia were ever communicated to Hudson. When he was let go on August 31, nothing more was said to him by Gus than that he no longer had a job for Rodriquez and that he appreciated Rodriquez' services. Edward Alaniz had also worked off and on for Canales since 1948. According to his testimony he also worked for Hudson some months in 1957 to 1958 at LaGloria and again the latter part of December 1958 to January 1959 on a booster station for .the Humble plant. Here his foremen were Tom Elkins and Daniel Martinez. When ,he and others were laid off on a basis of seniority, Elkins told them that there was a 'big job coming and they would "be the first ones called to work for it." He had had no criticism of his work. In June 1959, he was also in the first group hired by Canales for the Humble job. On cross-examination Alaniz testified that when he applied June 8 to Canales for a job, Gus told him someone had failed to show up so he was put on. He also admitted .that at the time he was hired Gus talked to him about hearing of his "unauthorized entrances on the King Ranch" and reminded him of the strict attitude of the Ranch on the matter. About August 22 or 23 he went to Gus to borrow $30. At this time Gus asked him if anyone from the Union had come to his house and given him a card. He replied in the negative. Gus then asked Alaniz to bring a card if he got one. Alaniz got the loan .9 At checking out time August 31, Roberto Garcia told him "you're fired. Canales told me to fire you. He didn't tell me why." Like Rodriquez, the Union's contact of and reliance on Alaniz for its campaign and his attendance at the two union meetings at Watson's Cafe have already been noted. Gus' explanation of the two discharges on August 31, was that Garcia had reported that Rodriquez "was always complaining about the job at the plant, that they didn't `have enough breaks and it was just too hot and the tools weren't sharpened and just a general complaint." These.complaints were reported to Gus by Garcia on three different occasions. Gus' decision was, "Well, the first chance we get we will just lay him off. Leave him on until we get a change to lay him off." As for Alaniz, Gus `had heard "rumors" that Alaniz and others were trespassing on the Ranch.10 His 'source of the "rumors" was his ranch foreman, Roman Ramon. Gus had been "very hesitant" about putting Alaniz on in the first place because he had heard he had been on the King Ranch at various times. So at the time he had asked Alaniz to stay off the Ranch while in his employment. Gus' concern about the matter was that "if the King Ranch ever find any of (his) employees over there they either have (his) 'contract cancelled or see that the man who gets caught out there gets fired " Gus also had had reports from Rufino Montemayor "several times that Alaniz was 'showing up there with a hangover and he could hardly see at times. " 11 Gus told Montemayor "that was a bad thing for Alaniz to come in that shape because he could get somebody hurt out there at the plant." However, when Montemayor asked if he should be laid off Gus replied, "No, not at present. We lay him off later," meaning when there was a general layoff. It was after he had talked to Project -Manager Wyatt on August 31 that he discharged Rodriquez and Alaniz. Gus denied any knowledge of their union activity at the time. The evidence further shows that except for some minors whom Canales discharged in accordance with his obligation under his contract, Rodriquez and Alaniz are the only Hudson employees he discharged. Strangely, Hudson's paint foreman, Dick, 6 This testimony is undenied by Gus and credited 10 Strict rules were enforced by the Ranch among which was one against trespassing Canales' contract with Hudson provided for full observance by Canales of all the King Ranch rules. 11 In his testimony Alaniz denied this. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that Rodriquez was laid off by Hudson because he was not needed any longer and for no other reason. Hudson's foreman, Thomas Elkins, testified that Alaniz worked for him on the compressor station 2 or 3 days in December 1958, and was discharged because his work was not satisfactory. He denied telling Alaniz he would be rehired on the big job explaining in his testimony that "we didn't even know if there was going to be a big job, at that time," and was very definite in his testimony that he would not "accept" Alaniz as an employee. I conclude and find that Rodriquez and Alaniz were discharged because of their union activity. In so finding I am swayed by the following factors: 1. The important part they played in the union campaign including the attendance of the first union meeting, Respondents' knowledge of which they were apprised prior to their discharge. 2. The timing of their discharges at the height of the union campaign and just I day before Respondents' similar discrimination against other employees. 3. Their relatively long tenure off and on with Canales. 4. The fact that no similar discharges had been effectuated by Canales and the inherent implausabihty of Canales discharging anyone not unsatisfactory to Hudson when the sole purpose of his business is to keep men working so as to profit from their employment.12 5. The delay in any action on either employee in the face of repeated reports about them ('Rodriquez' chronic dissatisfaction and Alaniz' repeated blind hang- overs) until they became active in the Union. 6. The lack of any complaints about them or dissatisfaction with their work by Hudson for whom they were actually performing services.13 7. The inconsistency of Dick's testimony-that Rodriquez was let go by Hudson solely because of a lack of work-and Canales' claim of Rodrequez' dissatisfaction- 8. The $30 loan made to Alaniz so short a time before his discharge and in the face of his alleged deficiencies. 9. The lack of any warning to the two employees about their alleged deficiencies. I do not credit Gus' uncorroborated testimony that "rumors" about Alaniz' un- authorized entry on the King Ranch played any part in his discharge. The patent incredibility of Gus' other testimony will be noted. On this matter his testimony was vague and general, undetailed as to time, place, and circumstances. I believe that Gus here was attempting to utilize a previous complaint against Alaniz (who was only one among others) and which had given rise to Gus' admonition to Alaniz about it at the time he was hired. Respondent Canales contends it had no knowledge of the union activity of these two at the time they were discharged. I believe that such knowledge can and should be inferred from the overall circumstances herein. There is no doubt that Canales was aware of the Union's activity in connection with his employees at the time of the two discharges. Thus we have the undenied and credited testimony of Valde- mar S. Saenz that he was interrogated by Roberto Garcia about the Union 3 or 4 days before the big layoff on September 2. Further, at the same time Rodriquez was informed by Ramirez of Respondents' knowledge of the fact that they had been to a union meeting and that "a lot of guys from Premont already (had) signed union cards." These factors considered with small size of the Canales contingent on the job and the small size of Premont 14 lend support to the inference that Canales was aware of Rodriquez' and Alaniz' interest in and activity on behalf of the Union at the time they were discharged. Another special circumstance of this case support- ing such an inference is the fact that it was impossible to get to the job except by transportation furnished by Canales and operated by Canales' supervisors. And this factor takes special significance in view of the condition of Gus' eyesight and his ad- mitted reliance on the reports of these supervisors. E. The September 2 cut As to the terminations that were imposed on the Canales' laborers on September 2, a great deal of cross-examination was directed to the question of whether the men were told that they were laid off or discharged. Most of the testimony was that the 12 An obvious exception of course would be such situations as the discharge of minors whose employment would be in violation of law. 1a Elkins' testimony regarding the supposed incompetence of Alaniz involved another j ob. So far as the current work was concerned there were no such complaints. 14 Hammond's Ambassador World Atlas, published in 1954 , shows, Premont's population as 2,619. GUS CANALES, INC. 583 men were told they were discharged16 Numerous witnesses testified on behalf of the General Counsel substantially as follows: That at the Ella Switch Gate on the morning of September 2 where a Canales bus normally picked them up to transport them to the jobsite, Roberto Garcia, the busdriver, told them that only those whose names were called had work and that the others had none or were fired 1° Gus Canales was at the scene. The employees asked him what was the reason for this loss of work. He replied that it was because they had signed union cards and were attempting to bring a union into the plant. When they asked about their pay he told them they could get it at his office in Premont that day. In Premont while waiting for their checks, Gus called them into the office for interviews both in groups and individually, some thus being called in twice. In these interviews (at some of which Roberto Garcia was present and some not) Gus asked some if they had signed union cards or if they knew anyone who had signed, told some he knew they or others had signed cards, and told some they were being dis- charged because they had signed union cards or were trying to get a union into the plant. He also told them that they could get their jobs back immediately if they signed affidavits for the purpose of getting their cards back. None of the employees admitted signing union cards or knowing anything about such cards. They were also unanimously of the position that they would not sign any affidavits. The only witness who testified about the immediate circumstances of the above matter on behalf of the Respondents was Gus Canales himself." According to his testimony, at the gate that morning, after Garcia had called the names of those who were to accompany him into the job, Garcia announced that there would "be a temporary layoff" for the others and drove on. Four of five of the affected men then asked Gus "what happened." He said, "There will be a layoff." They asked about their checks and gas money and were informed payment would be made at the office. Then someone in the crowd volunteered the statement, "We didn't sign any cards." Later that day the men (about 5,0 of them) congregated at the office in Premont. As he went into his office all the men told Gus they wanted to talk to him. He said he "would call then as (he) could see them." In the office he told Garcia to start getting up the time as they had two payrolls to get out. Thereafter he began calling the employees in by groups. He told the first group "there was going to be a layoff." They asked how long and he said he did not know. They asked if he was going to call them back. His reply was, "I haven't told you you are fired or anything like that." One of the employees said he would like to have more money. Gus said it was impossible under the present contract. Then Gus said, "I have heard a rumor that there are some cards circulating around that plant." The men denied any knowledge about it, "They said they knew nothing about any cards." Gus said, "Well, (he) heard that somebody was trying to get (his) contract out there." On the witness stand Gus explained: Well, I actually heard there was some cards being passed out. I didn't know whether it was to go to work for somebody else or what the score was on those things, and I was trying to find out whether those cards were Donovan cards' or their own or belonged to the churches or what the heck they were passing around. 16 The variance in the testimony of a few who testified that the cut was a temporary layoff as distinguished from an outright discharge is of little importance since I deem it immaterial to the question of discrimination how it was described, particularly in the light of the statements made to the men at the gate and in the office later that day by Gus Canales, as will appear. In any event I find that the impression of the employees- which was meant to be conveyed was that they had been discharged This is a result that Is Implicit In the undenied and credited testimony of Benito C Reyes who testified that at the gate they told Gus if they "were fired" they would like to get their checks and by the fact that they got them In full without the customary holdback. 16 The same thing happened to some of those at other pickup points riding the bus driven by Ruflno Montemayor that day Armando Villarreal's undenied and credited testimony was that when Montemayor named those who had work, he also told the others, that Canales wanted them to go to the office, that he wanted to speak to them. 17 Project Manager Wyatt corroborated Gus' testimony that the cut in the Canales' force on September 2 was the result of a failure by Hudson to receive plans approved by Humble ; that the matter had been discussed between the two as a likely possibility on August 31 and became a reality a day or two later when Wyatt ordered the cut to be made. 1s He had heard that an "Anglo" by the name of Donovan was trying to get his contract from Hudson. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gus also testified that no one to whom he talked that day would admit signing a union card or knowing what cards Gus was talking about. Notwithstanding this testimony Gus further testified that one of the groups asked him if he knew of any way he could get their cards back. His reply was "that they might be able to get an affidavit if they ever knew who to make it out to and what was in the contents of the card." Gus further testified that Garcia was not present at any of these con- versations, that he was either out at the plant or in his own office helping get up the payroll. Gus' testimony on this point standing alone 1s against the thoroughly corroborated version of the General Counsel in my opinion is patently incredible. Quite apart from Armando Villarreal's undenied and credited testimony that Montemayor told him and other laid-off employees that Gus wanted to talk to them that day, Canales' attempt, in the circumstances here, to attribute his group and individual interviews involving some 50 employees and a great deal of time to the request and desire of the employees is ridiculous not only from the standpoint of the employees but from that of Canales himself-a busy executive and a purported one-man operation at that. The explanation of his questions to the employees about the cards is transparent and fatuous. His testimony that some of the employees asked how they could get their cards back is in direct conflict with his testimony (and theirs too) that not one would admit having signed a card. I have no reserva- tions in crediting the General Counsel's version. From the foregoing it is clear that the union activity of the employees is in- volved in the September 2 cut. If the Union was the motivation for the cut Sec- tion 8(a)(3) of the Act has been violated. If not, and if the cut was necessitated (as contended by Respondent) by bona fide economic considerations, Section 8(a) (3) might still be violated by reason of a discriminatory selection of those involved for the layoff or by an acceleration of the layoff. If such is not the case, then the at- tempt to make the employees believe they were cut because of their union activity would be a violation of Section 8 (a) (1) of the Act. The evidence pertinent to the resolution of the matter is as follows: As indicated both Respondents offered evidence to show that because of a lack of final, or Humble-approved, plans the layoff was necessary. Thus Wyatt testified that he called Canales on Monday, August 31, telling him that they had not received any prints that day and that they would have to make a cut by the middle of the week and might have to shut down completely. No prints having arrived by Sep- tember 2, on that date he directed Gus to cut the force down to 42 from the previous day's high of 88.20 It is clear that work done by Hudson on preliminary drawings or without the prior approval of Humble was done at Hudson's risk. It is also clear that such work had been done before. Moreover, Wyatt testified that at the time of the hearing he was working without the benefit of Humble-approved drawings. Notwithstanding the dearth of approved prints as of Monday, August 31, the job had worked the preceding Saturday and Sunday. This was done in anticipation of not working the Thursday and Friday of the Labor Day weekend. Although the lack of prints allegedly caused the Canales' laborers to be cut on September 2, none of the other employees were laid off on that date. The job, of course, as planned, shut down completely at the end of the shift the next day, September 3, and re- mained closed until the day after Labor Day. On Labor Day Wyatt called Gus and told him to put on 40 or 45 men the follow- ing day 21 There is no indication in Wyatt's testimony that the receipt of Humble- approved prints motivated this call. Indeed, the tenor of Wyatt's testimony was that not until the week following Labor Day did they begin getting a "few" prints 22 In addition to the foregoing evidence, the undenied and credited testimony of several of the General Counsel's witnesses was to the effect that there was plenty of partially performed work remaining to be done at the time of the September 2 layoff.23 10 Deirdre S Parker, Canales' bookkeeper, testified that Garcia could have gone in Gus' office once or twice that day 20 In an affidavit Wyatt gave the Board investigator, he made no mention of a call to Gus on August 31 21 Having by this time received word of the Union's R petition, Gus immediately sought the advice of counsel As a result Gus made up a seniority list and had his "operators" contacting the number of men needed for the following day on the basis of seniority This included some of those who had been laid off on September 2, but not all. 22 On this point Gus' testimony is in conflict with Wyatt He testified that at 10 a m , Labor Day, Wyatt called and told him he had gotten some plans and would need 40 to 42 men Gus' reliability as a witness has already been shown I do not credit Gus here. 23 Alaniz, Rodriquez, and Isauro Gonzalez so testified GUS CANALES, INC. 585 There is no doubt that the employment of Canales' laborers at the time of the layoff and for a week or two previous was the high point of such employment on the job. Thus, for the 21 days (including Saturdays and Sundays) prior to the layoff the average employment per day of Canales' laborers was about 58. For the 21 days after the layoff (including Saturdays and Sundays) the average daily em- ployment was about 30. Moreover at no time from the layoff to the time of the hearing did the daily number employed come any closer than to about 70 percent of the high point before that time. Considering that Hudson on occasion had worked on preliminary plans, that none but Canales' laborers were laid off on September 2, that a couple of days before the layoff it was felt necessary to work on Saturday and Sunday,24 that nothing in Wyatt's testimony shows that the call for 40 to 45 men the day after Labor Day was related to the receipt of Humble plans, I conclude and find that the lack of such plans had nothing to do with the September 2 layoff but that it was motivated by antiunion considerations as Gus pointed out to the men at the time. However, in view of the hiring data thereafter it would appear, and I find, that an economic reduction in the number of laborers would have occurred after Labor Day. Accord- ingly, I find that the layoff was accelerated by antiunion motives thus violating Sec- tion 8(a) (3) of the Act. The evidence further shows that of some 49 who were laid off on September 2, 40 had signed union cards prior thereto. Of some 40 who continued working as of that date, only 11 had signed cards. On this evidence I conclude and find that those laid off on this occasion were discriminatorily selected because of their union activity. As observed by the General Counsel, "Such figures demonstrate more compellingly than words the success of Canales in ferreting out and ridding himself of union ad- herents." Significant in this connection is the undenied and credited testimony of Ramon Garcia that Gus told them that day that ". . he was sorry about laying us off, but he said somebody was in his way. He didn't know who it was so all he could do is just lay everybody off.. . And of Jose G. Garcia that Gus told them ". . . he was going to lay us off because he wanted to know which of us had signed union cards." I have found that antiunion motivation accelerated the layoff. I also find that the occasion of the layoff was used as a device to eliminate the union adherents. That Canales was not able to pinpoint them all and that be laid off some who had not been for the Union does not in any way excuse his conduct. All were discriminated against within the meaning of the Act and are entitled to have their damage remedied in accordance with the policies of the act. F. Both Respondents are liable Canales, not denying that it was the employer herein, defends on the merits. Hudson, besides questioning the General Counsel's case on the merits, contends that the employees involved were not its employees but were employees of Canales. It further denies any agency connection with Canales, maintaining that Canales is an independent contractor and that Hudson cannot "be held accountable for any acts of Canales." Furthermore, Hudson contends, if it should be determined that Canales was the agent of Hudson, it cannot be held liable for any illegal conduct of Canales herein because none of the alleged illegal conduct of Canales was within the scope of its authority and any violations indulged in by Canales were in the nature of a "frolic" and for Canales' own benefit. Hudson is mistaken in its position. There is no question in my mind, and I find, that the affected employees herein were Hudson's employees as well as Canales' and that Canales was Hudson's agent for the procurement of those employees. Hudson Pulp & Paper Corporation, 121 NLRB 1446. Moreover, considering the attitude of both Respondents toward the unionization of their employees and their express purpose to avoid such a thing, it can hardly be said that Canales' efforts toward 'that end were solely for their own benefit and totally devoid of any benefits for Hudson. Furthermore any attempt to claim that the discharges and layoffs that Canales effectuated were outside the scope of its authority is directly contrary to Wyatt's testimony that if Hudson people wanted to replace a Canales man they would have it done through a Canales' representative. In view of the foregoing I find that both Hudson and Canales are chargeable for the unfair labor practices found herein. 14 The normal workweek was Monday through Friday ,586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. The discharge of Sherman H. Fuller Fuller went to work for Respondent Canales late in July as one of the busdrivers. At his hiring interview Gus asked him if he then belonged or had ever belonged to a union and told him ". . . we don't want to hire too many union men on the job. We try to cull them if we can." In discussing the situation, Fuller indicated he would be willing to take the job provided he could also get employment at the same time with Hudson at the Humble plant. Gus said he could arrange that for him which he did then and thereby writing "a letter to Frank Valdez' office" which Fuller took to Valdez 25 Fuller started with Hudson as a pipefitter helper at $1.50 per hour but within 2 or 3 weeks was transferred to brush painting at $2.75 per hour.26 About a week after he started painting, Paint Foreman J. E. Dick asked him if he had been con- tacted by the Union. When he told Dick he had the latter said that he did not want any union men on the job, that Hudson would "try to ,get along without them," and that Hudson did not "like them . on the job." Fuller led Dick to believe that he had nothing to do with to Union. At the time he had in fact signed a union card. Fuller had a helper from the time he started painting until the time of the big layoff of Canales' laborers. Right after that layoff Fuller had a conversation with Foreman Dick about it. He told Dick that "it was awfully high-priced help there for (the journeymen painters) to be cleaning and painting at the same time. . ." Dick replied, "I know it's cheaper to have one of Mr. Canales' men come over here and do the cleaning while you paint. Looks like Hudson don't want to give us none, ,so we will just have to do it ourselves." Fuller had signed a union card August 10. He attended the first union meeting at Watson's Cafe but not the second. According to Fuller's testimony, on Friday, October 2, Foreman Dick told him he was going to have to let him go Fuller asked Dick "if he had any reasons." Dick replied "No, I have no reason," and added that the bookkeeper had told him to let Fuller go. At the time Fuller had already given notice a couple of days before that that was to have been his last day working for Canales-his reason being that he had to drive 28 miles extra each -day to get ,to work on the bus duty. Canales was paying him $1.50 per hour. About a week after the Canales' layoff of September 2, Hudson Assistant Foreman Ramirez told him that Dick knew that he had signed a union card.27 Foreman Dick testified about Fuller as follows: Fuller had transferred to painting about the middle of August. He had been a hard worker at first, then "he went to slacking off." As a result he was laid off because his work was unsatisfactory. He just was no brush painter; he did not even know how to hold a brush. Dick had to have him repaint two coolers which looked like the paint "had been mopped on." He had had complaints from Paint Inspector Breeding about paintwork that had to be cleaned off and repainted. "Most of it was Fuller's . but there was some of the others (painters) that were involved in it too." Dick denied knowing whether Fuller belonged to the Union or had signed a union card. None of the above con- versations Fuller testified as having had with Dick were denied in the latter's testi- mony. Accordingly, I credit Fuller. In partial corroboration of Foreman Dick, Paint Inspector Breeding testified that the end results of the paintwork were not what he "expected" but that the work was partially satisfactory. There were places where the piping vessels had not been properly cleaned and there were "holidays" (skipped places) both in the brush and in the spray work. These things he reported to the foreman to be remedied. One other aspect of the Fuller matter needs note: According to Gus Canales' undenied testimony, a day or two after the big layoff of September 2 Fuller came to Gus and told him that he had been asked to sign a union card and wanted to know if Gus wished him to sign it so he could give Gus all the information he wanted. Gus' incongruous answer (in the light of his admission elsewhere in his .testimony that he wanted to find out "what the heck they were passing around") was that "if he wanted to sign the card that was his own business." I find that Fuller's discharge did not violate the Act. - While Hudson's explanation of Fuller's discharge leaves something to be desired, I believe and find that the evi- 26 Valdez apparently was a Hudson official. za He testified that he had had 18 months' experience as a painter at Houston n Ramirez was named by Project Manager Wyatt in his testimony as one of Hudson's labor supervisors along with Bob Wyatt and two others. GUS CANALES, INC. 587 Bence raises only a suspicion that his union activity was the motivation . I so hold chiefly for two reasons: (1) There is no element of timing such as with the discharges ,of Rodriquez and Alaniz. If Hudson or Canales wanted to retaliate against Fuller for his union activity it would seem they would have proceeded at about the same time as they did against Alaniz, Rodriquez, and the others, i.e., at the climax of the organizing campaign. By October 2, Fuller's discharge was something of an anti- climax. (2) Moreover, it would also appear that as far as Canales and Hudson were concerned, Fuller must have impressed them asbeing "safe" for them on the union question. After all, Fuller went to Gus and in effect volunteered to get him all the information he wanted about the Union. Also when Foreman Dick asked Fuller, about a week after he was transferred to painting, if he had been contacted by the Union, Fuller frankly admitted that he had been and led Dick to believe that he "didn't have anything else to do with it." In addition to the foregoing, another factor should be considered. It will be remembered that Gus got Fuller his job with Hudson. It would be only natural for Gus to be piqued at what he might consider Fuller's ingratitude. And it would not be entirely unnatural if he took some step in retaliation. H. Other independent Section 8 (a) (I) violations 28 (1) When Garcia drove into the job on September 2 from Ella Switch Gate with those who had been permitted to work, he told them that the reason the others had been laid off was because they had signed union cards. He also told them to tell him if anybody asked them to sign a union card. (2) On the day before this when Garcia took Leonel Saenz and some new men to one of the foremen on the job Garcia asked them if they "knew anybody trying to make (them) get in the union or distributing cards to let him know"; to take their badge number and give it to him. (3) Rito R. Carreon was laid off after September 2. When Montemayor gave him his check he asked him where he had been the previous Friday. When 'Carreon replied that he had been to a meeting at Corpus Christi'29 Montemayor, in substance asked if he had given money to the Union so they could have new cars. (4) Three or four days before the big layoff Garcia asked Valdemar S. Saenz if he knew anything about the Union and told him if he learned anything about the Union to let him know. (5) At the time he was hired by Canales, Gus asked Fuller if he had ever belonged or then belonged to a union. (6) About 2 weeks after the big layoff Gus went to Jesus S. Garcia's house and asked him if he had signed a union card or knew anything about them. He also told Garcia to let him know if he learned anything. (7) The day before the layoff Garcia got Guadalupe Herrera to come to the office where Gus asked him if he knew anything about the Union. When Herrera answered he did not, Gus said he knew that Herrera had signed a union card. Herrera denied it. Gus then asked Herrera to get a card from somebody and bring it to him because Gus knew that Herrera knew who was giving cards out. (8) When Fuller was transferred to brush painting on the Humble job, Foreman Dick asked him if he had been contacted by the Union and told him Hudson did not want any union men on the job. There is also evidence regarding an allegation of the filing of criminal charges by Canales against Herrera because of his union activity . While the evidence adduced may raise a suspicion that such was the case, there was enough doubt raised by the Respondents' corroborated evidence and the spontaneity of the incident to require a dismissal of that allegation as not having been proved by a preponderance of the evidence. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III , above, occurring in connection with the operations of the Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. 28Many of these incidents involve interrogation . In view of the other unfair labor practices committed herein , I find the Interrogation even standing alone , to be coercive and in violation of Section 8(a) (1) of the Act. Blue Flash Eapres8, Inc . 109 NLRB 591. 29After the September 2 cut many of the employees attended a union meeting or meet- ings at Corpus Christi. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative. action designed to effectuate the policies of the Act. Having found that Rodriquez and Alaniz were discriminatorily discharged on Au- gust 31 and a number of others similarly laid off on September 2, all in violation of Section 8(a)(3) of the Act, it will be recommended that Respondents, jointly and severally, make them whole for any loss of pay they may have suffered in consequence. of the discrimination by payment to them of a sum of money equal to what they nor- mally would have earned but for the discrimination against them, less their net earn- ings during said period, the same to be computed on a quarterly basis, in a manner consistent with the Board's policy as enunciated in F. W. Woolworth Company, 90 NLRB 289. The September 2 layoff I have found to have been economically necessary, al- though it was accelerated for a period of 1 day by a discriminatory motive. I have also found that the layoff was discriminatorily applied to the employees in question. In these circumstances it is likely that some of the employees who were laid off might have been laid off even in the absence of discrimination 30 Accordingly, in order to make those who were damaged whole and to avoid giving a windfall to those who would have been laid off anyway, it will be necessary in compliance herewith to reconstruct the situation as it was at the time of the layoff taking everyone who was on the payroll then and determining (by seniority or on any nondiscrimi- natory basis then utilized by Respondents) who would have been laid off but for the discrimination. There is some testimony that when Canales called men back to work on Labor Day he did so on the basis of seniority. The General Counsel, of course, has the right to satisfy himself to what extent this has been done or needs to- be done. It is clear that all who were laid off on September 2 are entitled to pay for that day. Any further amounts will of course depend on the retrospective examination. I shall also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amount due under this recommended remedy. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to the employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Building and Construction Trades Council of Corpus Christi, Texas, and Vicin- ity, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent Canales and Respondent Hudson are engaged in commerce within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices with the meaning of Section 8(a)(1) of the Act. 4. By discriminating against their employees because of their union activity in regard to their hire and tenure of employment and the terms and conditions of their employment, thereby discouraging membership in the aforesaid Union, Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 80Although Rodriquez and Alaniz were discharged 2 days before the rest of the em- ployees, I find that their situation for remedy purposes is no different than that of the others except that any backpay to which they may be entitled will date back to the time of their discharge.