Boyles Galvanizing Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boyles Galvanizing Company and Tony Sisneros. Cases 27-CA-5431 and 27-CA-5606 November 30, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND) TRUESDALE On September 6, 1978. Administrative Law Judges James S. Jenson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and briefs in support thereof and in answer to the General Counsel's cross-exceptions. The General Counsel filed cross-exceptions and a brief in support thereof and in answer to Respondent's 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,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We find merit in the Genral Counsel's contention that the Administrative Law Judge erred in failing to find that the second-shift employees were unfair la- bor practice strikers and are entitled to protection as such. Under established Board law, an unfair labor practice strike is a strike precipitated in part by an employer's unfair labor practice.' That a strike is prompted in part or even primarily by economic is- sues does not preclude a finding that unfair labor practices are a contributing factor in the decision to strike.3 The strike in this case was clearly precipitated by Respondent's unfair labor practice, since the day- crew employees struck immediately after and in re- sponse to their unlawful discharge by Respondent. Thus, since the strike was an unfair labor practice strike and the second-shift employees joined the strike, we conclude that the second-shift employees were also unfair albor practice strikers and therefore are entitled to the protection accorded such employ- ees.4 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule 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 his findings. 2 C E Stores, Inc., C & E Supervalue Division. 221 NLRB 1321 (1976). 3Head Division. AMF, Inc., 228 NLRB 1406 (1977). Larand Leisurelhes. Inc., 213 NLRB 197 (1974). 4The Board has found, with court approval. that when an employer's AMENDED CONC'LUSIONs OF LAW We make the following additional conclusion of law: "9. The strike which commenced on October 12, 1977, was an unfair labor practice strike." TiE REMEDY Having found that the second-shift employees joined the strike by Respondent's employees which began on October 12, 1977, and which was caused by Respondent's unfair labor practices, we revise the recommended remedy of the Administrative Law Judge to require that, upon their application for rein- statement. Respondent shall reinstate the second- shift employees who participated in said strike to their former positions or, if such positions no longer exist, to substantially equivalent positions, without impairment of their seniority and other rights and privileges, dismissing, if necessary, any persons hired as replacements on and after October 12, 1977. If. after such dismissals, there are insufficient positions remaining for all the striking employees who desire reinstatement, the available positions shall be distrib- uted among them., without discrimination because of their union membership or activities or participation in the strike, in accordance with seniority or with other nondiscriminatory practices as theretofore have been applied by Respondent in the conduct of its business at its Commerce City. Colorado, plant. Those strikers for whom no employment is immedi- ately available after such distribution shall be placed on a preferential hiring list with priority determined among them by seniority or by other nondiscrimina- tory practices as theretofore have been applied by Respondent in the conduct of its business at its Com- merce City, Colorado. plant, and thereafter, in accor- dance with such system, they shall be offered rein- statement as positions become available and before other persons are hired for such work. The Board also shall order that Respondent make the striking employees whole for any loss of earnings they may have suffered or may suffer by reason of Respon- dent's refusal, if any. to reinstate them by payment to each of a sum of money equal to that which he nor- mally would have earned during the period from 5 days after the date on which he applied, or shall ap- ply, for reinstatement to the date of Respondent's offer of reinstatement to him, absent a lawful justifi- cation for Respondent's failure to make such offer. nonunit employees join the employer's unit employees in an unfair labor practice strike the nonunit employees are also entitled to the protection accorded unfair labor practice strikers .. 1 R B v. C K. Smith & C('o. Inc., 569 F.2d 162 Ist (':r. 19771) enfg. 227 NILRB 1061 (1977). Afortiori, where. as here, the emplosees in the same unit join an unfair labor practice strike. they acquire the same status as the initial strikers 530 BOYLES GALVANIZING COMPANY Backpay and interest thereon shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Boyles Galvanizing Company, Commerce City, Col- orado, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: I. Add the following as paragraph 2(c) and relet- ter the remaining paragraphs: "(c) Upon application, offer immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, to the second-shift em- ployees of Respondent who participated in the strike which began on October 12, 1977, and who have not already been reinstated, dismissing, if necessary, any persons hired as replacements by Respondent on or after October 12, 1977. If after such dismissals suffi- cient jobs are not available for these employees, they shall be placed on a preferential hiring list in accor- dance with their seniority or other nondiscriminatory practices theretofore utilized by Respondent, and they shall be offered employment before any other persons are hired. Make whole these employees for any loss of earnings they may have suffered or may suffer by reason of Respondent's refusal, if any, to reinstate them in accordance with the terms of this Order, in the manner set forth in the section of this Decision entitled 'The Remedy.'" 2. Substitute the following for new paragraph 2(f): "(f) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with." 3. Substitute the attached notice for that of the Administrative Law Judge. See, generally. Ists Plumbing & Heating Co. 138 NLRB 716 (1962) APPENDIX 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 a chnace to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- poses of collective bargaining or other mutual aid or protection To refrain from any such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT interrogate you regarding your union interest or sympathies. WE WILL NOT lay you off, discharge you, re- duce your pay rate, or otherwise punish you be- cause you have engaged in union or other pro- tected concerted activities or because you have filed charges under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to join or assist International Association of Bridge, Structural and Ornamental Iron Workers or any other union, to bargain through representatives of your own choice, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent permitted by Section 8(aX3) of the Act. WE WILL offer Tony Sisneros and the day crew terminated on October 12, 1977, their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privi- leges, and WE WILL make them whole for any losses in wages which they incurred as a result of our discrimination against them, including loss of wages which Tony Sisneros incurred as a re- sult of his unlawful layoff on June 21, 1977, to- gether with interest. WE WILL. upon application, offer immediate and full reinstatement to their former positions or. if those positions no longer exist, to substan- 531 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tially equivalent positions, without prejudice to their seniority and other rights and privileges, to all our second-shift employees who were on strike on or after October 12, 1977, and who have not already been reinstated, dismissing, if necessary, any persons hired by us on or after October 12, 1977. If insufficient jobs are avail- able for these employees, they shall be placed on a preferential hiring list and they will be offered employment before any other persons are hired. BOYLES GALVANIZING COMPANY DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: These cases were heard before me in Denver, Colorado, on January 16, 17, and 18, 1978. The complaint in Case 27-CA-5431 was issued on July 22, 1977, pursuant to a charge filed on June 23, 1977, and alleges an unlawful interrogation and that Tony Sisneros was laid off on June 21, 1977, because of his union or protected concerted activity. The complaint in Case 27-CA-5606 was issued on November 7, 1977, pur- suant to a charge filed on October 14, 1977, and amended on November 4, 1977, and alleges an unlawful interroga- tion, the decrease of the rate of pay of Sisneros, the unlaw- ful discharge of the production crew for having engaged in protected concerted activities, and the constructive dis- charge of Sisneros. Boyles Galvanizing Company, herein the Respondent, contends that Sisneros is a supervisor within the meaning of the Act; that Sisneros' layoff was for valid business reasons; that he was not later constructively discharged but instead resigned his employment; and that the production crew walked out and engaged in a strike as opposed to being discharged. Respondent denies the al- leged unlawful interrogations and the decrease in Sisneros' pay rate. All parties were afforded full opportunity to ap- pear, to introduce evidence, and to examine and cross-ex- amine witnesses. Briefs were filed with the General Coun- sel and the Respondent and have been carefully considered. Upon the entire record in the case,' and having consid- ered the post-hearing briefs, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent is engaged in the manufacture and sale of galvanized steel at Commerce City, Colorado, where it annually purchases and receives goods and materials val- ued in excess of $50,000 directly from points and places outside the State of Colorado. It is admitted and found on these facts that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. In accordance with the stipulation of the parties, the official transcript is hereby noted and corrected. II. THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural and Or- namental Iron Workers is a labor organization within the meaning of Section 2(5) of the Act. 1II. ISSUES The issues are as follows: (I) Whether Sisneros is a su- pervisor within the meaning of the Act; (2) whether Pro- duction Superintendent Campos Villalobos, an admitted supervisor, unlawfully interrogated an employee; (3) whether Sisneros was laid off in June 1977 because of union or protected concerted activities; (4) whether Plant Manager Robert Sievers, an admitted supervisor, unlawful- ly interrogated employees; (5) whether Respondent unlaw- fully decreased Sisneros' rate of pay upon his return to work in August 19/'7; (6) whether Respondent discharged its production crew on October 12, 1977, or the crew walked off the job and engaged in a strike; and (7) whether the Respondent constructively discharged Sisneros on Oc- tober 12, 1977, or he quit his employment. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting The Respondent is engaged in manufacturing galvanized irrigation pipe in Commerce City, Colorado, utilizing a two-shift operation during the busy season and undergoing a reduction in force sometime during the summer months. Tony Sisneros, around whom most of the controversy herein lies, was first employed by the Respondent on April 11, 1975, and was laid off on June 21, 1977.2 The General Counsel contends the layoff was discriminatorily motivat- ed. Sisneros was employed again beginning August 4, and left the Respondent's employ on October 12. The General Counsel contends the circumstances causing Sisneros to leave on October 12 make for a constructive discharge. Should Sisneros be found to be a supervisor, as the Re- spondent contends, the complaint allegation covering those two incidents must necessarily be dismissed, as must alle- gations covering Sisneros' interrogation about his union activities and the decrease in pay upon his return to work in August. For reasons set forth herein, I conclude that Sisneros was not a supervisor within the meaning of the Act. In addition to Sisneros, the General Counsel's wit- nesses included the following: Andres Villalobos, who be- came a temporary replacement on October I for Produc- tion Superintendent Campos Villalobos, an admitted supervisor; Victor Rodriguez, classified as a paddler in the boilerroom; Levi (Sam) Esquibel, classified as a shipping and receiving supervisor, who left the Respondent's em- ploy on his own volition on or about September 15, Octo- biano Villalobos (Andres' brother), whose employee status is not clear; and Manuel Herrera, a general laborer. Wit- nesses for the Respondent included General Plant Manag- er Robert Sievers, an admitted supervisor within the mean- ing of the Act; Tyrone Guilbeaux, customer relations man; 2All dates herein are in 1977 unless otherwise stated. 532 BOYLES GALVANIZING COMPANY Irene Urioste, plant secretary; and Young Ho Kim, main- tenance man, who, like Sisneros. the Respondent claims is a supervisor. B. The Supervisory Issue Excluding the personnel working in the office, while op- erating on a two-shift basis the Respondent employed on the day shift eight galvanizing operators, two forklift oper- ators, three yardmen, one maintenance man, a shift super- visor, and a shipping and receiving supervisor. The night shift consisted of a crew of eight galvanizing operators, one forklift operator, one maintenance man, and a shift super- visor. Sisneros was first employed by the Respondent in April 1975 as a shop foreman performing maintenance work at $3.50 per hour. Shortly after his hire, he became the shift supervisor on a galvanizing crew for 4 or 5 weeks, at which time he commenced wearing the white hat worn by supervisors. As he was unable to get the work out of the employees as a shift supervisor, he returned to doing solely maintenance work within a short time. Young Ho Kim was hired as the second maintenance man in November 1975. While the record shows Sisneros trained Kim at the begin- ning, it fails to show he exercised supervisory authority over Kim.3 While Sisneros admitted production employees were assigned to assist Kim and him on major maintenance jobs, he denied that they worked under his authority or that he was ever told he had supervisory authority over them. Kim, who testified at the behest of the Respondent, did not refute this testimony. Sisneros specifically denied the possession of the authorities listed in Section 2(11) of the Act. While the record shows Sisneros was advised on August 3 that he was being recalled to "[ylour job as Shop Foreman-Special Project," the evidence does not disclose he possessed any more authority following his recall than he possessed before. The Respondent contends that "Mr. Sisneros could ef- fectively recommend hiring, discipline, and discharge of employees in both maintenance and production. He also was in a position that required him responsibly to direct other employees. He viewed himself and was viewed by others as a supervisor. Mr. Sisneros was expected to, and did, exercise independent judgment." At the outset it should be noted that at no time during the hearing of these matters was there any testimony by either the Respondent's or the General Counsel's witnesses that Sisneros was ever advised that he possessed any of the indicia of supervisory authority listed in Section 2(11) of the Act. To the contrary, Sisneros testified he was never told he had such authority, and his testimony was not con- tradicted. To show that Sisneros possessed the authority to fire em- ployees, the Respondent introduced in evidence (Resp. Exh. 2) a "personnel action" sheet dated September 20, 1976, relating to the termination of employee Ron Alvara- do. The document recites Alvarado's employment history 3 While Kim testified Sisneros was his "boss" until a change in plant managers in October 1976, the extent of Sisneros' authority over him, if any, was not elicited. In any event, it appears that after October 4, 1976. they were employed on an equal basis. from August 21, 1975, when he was first hired, until Sep- tember 20. 1976, when he was terminated for the third time. The first termination was sometime between October 16 and December 12, 1975 (when he was rehired), for "ex- cessive absenteeism and tardiness which resulted in de- creased production." It shows he was terminated again on August 27, 1976. for "essentially [the same] reasons." The exhibit contains the signatures of four individuals, among whom were Campos Villalobos and Sisneros. Below their signatures the word "Supervisor" is typed. Respondent's Exhibit 3 is another "personnel action" sheet dated Sep- tember 20, 1976, attesting to the fact Alvarado had accept- ed the opportunity of medical attention extended as a re- sult of being struck on the head by a basketball on off-duty time. This document contains the same signatures as ap- pear on the previously described "personnel action," and the word "Supervisor" again appears below both the signa- tures of Campos Villalobos and Sisneros. Plant Manager Sievers testified that he terminated Alvarado on "the rec- ommendations of Mr. Sisneros as well as Mr. [CamposJ Villalobos. Mr. Sisneros brought it to light, and I inquired of Campos Villalobos and my investigations found . . . he didn't do anything and Mr. Sisneros very strongly felt that this man shouldn't be with Boyles." Sisneros admitted that he had terminated Alvarado but that he had done so when he was a production shift supervisor in 1975 and that he ceased his shift supervisor's job after that and returned to maintenance and had nothing to do with the September 20, 1976, termination of Alvarado. Thus, it is seen that there is a direct conflict in the testimony of Sievers and Sisneros. A close reading of Respondent's Exhibit 2 is an aid in de- termining which witness was telling the truth. Paragraphs numbered 6, 7, and 8, which cover the September 20, 1976, termination, read as follows: 6. During the month of August 1976, you were rehired at the rate of $3.75/hour based upon a final agree- ment with your supervisor (C. Villalobos) and my- self (R. A. Sievers) that further display of insubor- dination, lack of job performance, or unexcused tardiness and/or absenteeism would result in imme- diate dismissal. 7. On 9-17-76, you called Mr. Villalobos at his resi- dence and asked for permission to report for work no later than 5:00 p.m. Not only did you neglect to appear for work as scheduled, but failed to call re- garding your whereabouts or when you expected to return to your job. 8. Upon returning to work the evening of 9-20-76, you stated to C. Villalobos, T. Sisneros, and myself (R. A. Sievers), the reason for not attending work was because you were engaged in the sale/purchase of alcoholic beverages-which is an unexcused ab- sence. Furthermore, at the direction of your super- visor, C. Villalobos, you were directed not to oper- ate company forklifts without authorization, unauthorized absence from your work station and interrupting fellow workers in the performance of their duties. It is noted that paragraph 6 refers to an agreement be- tween "your supervisor [C. Villalobos] and myself [R. A. 533 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sieversj" that certain conduct would result in immediate dismissal. Paragraph 7 speaks of Alvarado's telephone call to Villalobos and his failure to appear for work. While paragraph 8 recites that Sisneros was present when Alvara- do gave his unexcused reason for having failed to show up for work, reference is again made to directions given Alva- rado by "your supervisor, C. Villalobos." Thus, while Siev- ers attempted to create the impression through his testi- mony that Sisneros recommended, and was the supervisor behind, Alvarado's termination, the "personnel action" of September 20 betrays his testimony. It is clear from the document that Campos Villalobos was in fact Alvarado's supervisor, that the terimination was the result of breaches of job performance commitments made to Campos Villalo- bos and Sievers, and that Sisneros was not involved.4 Ac- cordingly, I credit Sisneros over Sievers and find that Sisneros was responsible for Alvarado's termination in 1975 but that he had nothing to do with the September 20, 1976, termination. 5 In this regard, while it is recognized that the word "supervisor" appears under Sisneros' signa- tures on both "personnel action" forms, both the Board and the courts have long recognized that the title of super- visor does not make one a supervisor within the meaning of the Act, that "the important thing is the possession and exercise of actual supervisory duties and authority." See, for example, N. L R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958). The Respondent contends that Sisneros, as a mainte- nance supervisor, has the authority to hire employees. No probative evidence, however, established that anyone with authority ever advised Sisneros he had that authority or that he ever hired an employee. The Respondent contends Sisneros possessed the same authority as Young Ho Kim, who hired at least three employees and discharged employ- ees after discussing their performance with Sisneros. When asked his position with Respondent, Kim testified he was a "maintenance man," but later said that Sievers had told him he was "maintenance supervisor." While testifying he had hired some helpers in 1977 and fired one, he went on to explain that when he needed helpers "I asked Bob Siev- ers. He bring people. He say test new guys. I tested all of the guys. That man is good. That man is bad. I told Bob. He decided whether to hire or not. I gave a suggestion this guy is good or not." Thus, it appears that Sievers selected the individuals to be tested and Kim then reported his eval- uation as to whether each individual's work was good or bad to Sievers, who made the decision to hire or not. Fur- thermore, it is clear that Sisneros, who worked the night shift, had no helpers and hence no one to supervise. Kim 4Campos Villalobos was not called as a witness to corroborate Sievers' testimony, nor was an explanation given for failure to call him. Accordingly, I conclude that the failure to call him warrants the inference that, if pro- duced, his testimony would not have supported the testimony of Sievers. See, for example, Fruehauf Trailer Co., I NLRB 68 (1935), reversed 85 F.2d 391 (6th Cir. 1936), reversing circuit and enforcing the Board 301 U S 49 (1937); Co/orfb Decorator Products, Inc., 228 NLRB 408, 409 (1977). In an investigatory affidavit, Sievers had stated as follows: "I told him ISisnerosl the previous manager had offered him a production supervisor's job in May 1976. Again in October and November 1976, I1 offered him the same job. He said, no, he wanted to stay in maintenance. He did not want responsibility as supervisor." also claimed he had fired an employee. Hlie acknowledged that Sisneros told him that he had to talk to Sievers before the individual could be terminated, which he did. Whether Kim only reported the man's transgression and was told by Sievers to terminate him; whether he recommended the man be terminated, which recommendation was acted upon favorably by Sievers; or whether Sievers made an independent investigation of the matter and consulted with others as he testified he had done in the case of Alvarado's discharge is not revealed. In these circumstances, the evi- dence does not establish Kim possessed the authority either to independently hire or discharge or to effectively recommend the hire or discharge of employees. The Respondent contends Sisneros possessed the author- ity to discipline employees, since he had been told, accord- ing to Sievers, "that if he were to observe a situation that was unsafe or not being done right, that he was to stop the situation and go get the supervisor that that particular per- son reported to. He had the authority to report any wrong situation to the person's supervisor and that supervisor would take the corrective action." After making that state- ment, Sievers was aksed whether Sisneros had any direct responsibility for employees and replied "He had no peo- ple permanently assigned to him, no." Sisneros testified, and the record bears him out, that Sisneros attended safety meetings as a maintenance representative and was active in promoting safety around the plant. His concern with safety carried over to his filing complaints with OSHA, since he claimed he had been unable to get anything done about them. He testified his authority with respect to safety de- rived from the fact "I constantly had to be repairing fork- lifts, and it was the operators that tore them up, and I took this up with Mr. Sievers, and supervisors that was over the forklift operators; but I had to repair the forklifts when they were down, and I was told-mainly in that area-that if I see any abuse on-in the operation of the forklifts, that I had a right to take it up with the supervisor, their super- visor." He testified he could either "ask" the forklift opera- tor to stop abusing the equipment, "or get the supervisor." In bearing and delivery-demeanor-Sisneros impressed me as an honest witness. On the other hand, Sievers' bear- ing and manner of testifying indicated to me that he was tailoring his testimony to make sure the facts pointed in the direction of Sisneros being found a supervisor. Accord- ingly, I credit Sisneros' testimony regarding his authority- more appropriately called duty-to report any abuse of equipment by forklift drivers to their supervisor. I have little doubt there probably exists at least a moral "duty" on the part of every individual to report abuses of equipment to someone in authority that can bring a stop to it; yet it can hardly be aruged that every employee who makes a report to his supervisor which results in some disciplinary action is a supervisor. N.LR.B. v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (5th Cir. 1975), cited by the Respon- dent, involved the authority of a dispatcher to force a driver to see a supervisor and is, in my view, inapposite. Moreover, I am bound by the Board's determination that the dispatchers, under the circumstances of that case, were not supervisors. 6 6221 NLRB 1026 (1975). 534 BOYLES GALVANIZING COMPANY Respondent contends Sisneros and Kim directly super- vised production and other workers who were occasionally assigned to assist in repairing the walkway around the pickling tank at 6-month intervals. Testimony was elicited covering two such instances of repair jobs, one lasting 2 days and the other I day. It was not shown that either Sisneros or Kim responsibly directed the production em- ployees, that any instructions they may have issued were other than the type of routine instructions given by an ex- perienced employee to an inexperienced coworker, that they exercised any personnel authority over the production workers, or that the production workers looked upon them as supervisors. Further, it was not disputed that Sievers was always around during the repair jobs. However, even if it were shown, which it was not, that Sisneros and Kim exer- cised some supervisory authority on a I- or 2-day basis every 6 months, the Board has held that isolated or spo- radic instances of supervisory authority are insufficient to support a finding that an individual is a statutory supervi- sor. See, for example, Golden West Broadcasters-KTLA, 215 NLRB 760 (1974); Highland Telephone Cooperative, Inc., 192 NLRB 1057 (1971); Commercial Fleet Wash, Inc.. 190 NLRB 326 (1971). The Respondent contends that the color of the hat Sisne- ros wore is significant in showing he was a supervisor. On cross-examination, Sisneros testified that white hats were worn by supervisors, red by leadmen, and yellow by other employees. It appears from the record that when first hired Sisneros wore a red hat but after his "provisionary period" was given a white hat, which he wore during the 4 or 5 weeks he was a shift supervisor. When he went to mainte- nance, he wore a red hat until one of the supervisors was either discharged or quit, whereupon Sisneros filled in for him and switched to wearing a white hat. After someone was hired to replace the supervisor, Sisneros continued wearing the white hat even though he returned to mainte- nance. Kim testified he wore a red hat. In these circunm- stances, I attached no significance to the color of the hat either Sisneros or Kim wore. The color of the hat one wears, like the title of supervisor, does not make one a supervisor within the meaning of the Act. The important thing is the profession and exercise of actual supervisory duties and authority. Respondent contends that only supervisors possess the authority to requisition supplies and that since Sisneros completed material requisition forms, he was a supervisor. In support of this, the Respondent makes reference to a memorandum from Sievers to "All Supervisors" which reads as follows: Effective immediately, no purchases are authorized without submitting a Material Requisition to Mike Halloran or myself for approval. Additionally, abso- lutely no one is to generate a Purchase Order other than Mike or myself. Also, when leaving the plant to obtain parts, mate- rial, etc., you are requested to advise Mike or myself as to your destination. Respondent then introduced a "Material Requisition Form" signed by Sisneros, which recites on its face that it is "not a Purchase Order," and alleges this clearly shows he possessed and exercised supervisory authority. Sisneros tes- tified without contradiction that the memorandum set out above had been posted on a bulletin board and in the lunchroom where he had seen it and that he didn't recall ever receiving a copy of it. I note in this regard that the only individual to whom a copy was directed was Mike Halloran. the only individual other than Sievers who was authorized to "generate a Purchase Order." A close read- ing of the memo shows clearly that it does not state, as the Respondent alleges, that only supervisors are authorized to initiate material requisitions. The import of the message is to the effect that material requisitions must be submitted to either Sievers or Halloran who are the only individuals au- thorized "to generate a Purchase Order." Further, Sisneros testified without contradiction that while he didn't know whether the production crew could complete a requisition form, "Kim or the carpenters or anybody else could." Clearly the "Material Requisition" here is nothing more than a request that certain materials be purchased. It is not the placement of an order as is a "Purchase Order," which commits the Respondent's funds and which only Sievers and Halloran could "generate." In these circumstances, I find no significance in the fact Sisneros completed material requisition forms. The Respondent also alleges that the fact Sisneros at- tended supervisory meetings is indicative of his supervisory status. Whether Sisneros attended supervisory meetings is a question. While Sievers testified that both Kim and Sisne- ros attended a majority of the supervisory meetings, Ship- ping and Receiving Supervisor Levi (Sam) Esquibel, who left the Respondent's employ on September 15 of his own choice, testified that Sisneros did not attend supervisory meetings. Sisneros acknowledged his attendance on a monthly basis at safety meetings and that some of the meetings covered "safety, wages, raises, promotions, trans- fers and production, quality and control," and that on at least one occasion all of the production employees were present. He did not attend most of the meetings, however, since they were held in the daytime and he worked the night shift. Sisneros' specific role in the meetings was not explained. Received in evidence, however, was Respon- dent's Exhibit 9, which is an interoffice memo dated Au- gust 23, 1977, from "Ty Guilbeaux-Safety Committee Chairman" regarding a "safety meeting" attended by Siev- ers, Guilbeaux, and Sisneros. The memo lists a number of safety suggestions which Sisneros had made and concludes with the statement, "Management agreed to immediately look into these possible problems and assigned mainte- nance man, Tony Sisneros, to work at correcting them. [Emphasis supplied]" Thus, it is seen that in late August 1977 "maintenance man" Sisneros was specially distin- guished from management. Further indicative to me of the fact Sisneros was not in actuality considered to be a super- visor is Respondent's Exhibit 19, a list containing the names and job classifications of employees with their dates of hire and designating those laid off on June 21. While Sisneros is listed, none of the supervisors' names is con- tained on the list. Also, Sisneros was paid on an hourly basis and received additional compensation for overtime worked, whereas supervisors are paid a monthly salary and receive no overtime pay. On the basis of all of the fore- 535 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going, I conclude and find that Sisneros was not a supervi- sor within the meaning of Section 2(11) of the Act at the time of the June layoff or when he subsequently left in October. C. Sisneros' Layoff Paragraphs VI and VII of the complaint in Case 27-CA- 5431 allege that on June 21 the Respondent laid off Sisne- ros because of his union or protected concerted activities. The Respondent claims "this charge ignores the realities of a regularly recurring seasonal layoff and Mr. Sisneros' job performance and attitude in June 1977." As noted, Sisneros was hired on April 11, 1975, but was not laid off during the seasonal layoffs in either 1975 or 1976. Prior to the June 21, 1977, layoff, according to Sisne- ros' uncontradicted testimony, "if he was down to one man, it was me who worked prior to that [1977] layoff." Most of the Respondent's employees are of Mexican de- scent and do not understand or speak English. Conse- quently, in the early part of 1977, at a meeting of the em- ployees, Sievers designated Sisneros, Esquibel and Plant Secretary Irene Urioste, all bilingual, as the individuals from whom the non-English speaking employees should seek help. Thereafter, according to Sisneros, whom I credit, Sisneros approached Sievers on behalf of several of the employees regarding their problems. In early June, Campos Villalobos, herein called Campos, was promoted to the position of production superinten- dent. Sisneros felt that he was better qualified for the job and that the Respondent had not followed company policy in promoting Campos instead of himself. He therefore went to Sievers, vented his displeasure regarding Campos' promotion, and told Sievers that he "didn't have no choice but to try to initiate a union" and to file a charge with the Equal Employment Opportunity Commission. Sievers re- sponded that Campos was better qualified for the job and that it was Sisneros' prerogative if he wanted to contact the E.E.O.C. and the Union, and warned, "no campaigning on company time." 7 Sisneros then contacted the Union and passed out authorization cards, which the night-shift em- ployees signed but the day shift did not. On or about June 13, he also filed charges against the Respondent with both the Colorado Civil Rights Commission and the E.E.O.C. That Sievers had more than a passing interest in Sisneros' threat to "initiate a union" is clear from Esquibel's testi- mony, which is not refuted, that in early June Sievers ques- tioned several supervisors about the Union and was told that one of them had heard Sisneros "talking with some- body," but he didn't know much about it. In early April Sievers wrote a corporation official re- garding the seasonal reduction in force, which he expected would occur "about June or early July." By memo dated April 12, the corporate officer suggested that in laying off he "recognize seniority, but keep those people who have the skill and ability and desire to do the job." On June 21, another corporate officer, in confirmation of a conversa- tion the previous day with Sievers, suggested in writing that 7 Based upon the composite testimony of Sievers and Sisneros. Sievers effect the layoff as quickly as possible. Accord- ingly, Sievers stated, an analysis was made of the individ- uals working in each category and the decision made re- garding which employees should be laid off. He testified that he and Halloran concluded that one maintenance man could more than adequately handle the maintenance work during the layoff period. Sievers testified that with the as- sistance of Halloran he completed performance reviews on both Sisneros and Kim and concluded that Sisneros should be laid off and Kim retained.8 While the language at the bottom of the performance evaluation forms contemplates the delivery of a copy to the affected employee and a dis- cussion concerning the contents, neither the report on Sisneros nor that on Kim indicates they were discussed with the employees, and Sisneros testified without contra- diction that the first he was aware of the form was on December 14 at a hearing before the Colorado Civil Rights Commission. The form gives Sisneros an overall perfor- mance rating of "average," with the "attitude" category (one of six categories listed) rated "below average." Kim received three "outstanding," two "above average," and one "average" rating, for an overall rating of "above aver- age." When the evening shift reported for work on June 21, Sievers called a meeting and announced they were laid off. After everyone else had left, Sievers told Sisneros he, too, was laid off. Sisneros protested, since he was the most se- nior employee in the plant, and demanded to know the basis for his layoff. Dissatisfied with Sievers' response, Sisneros accused Sievers of laying him off because he had "gone to the Union" and filed a charge with the E.E.O.C. Sievers testified he told Sisneros that "I had done an evalu- ation and I thought Kim was best suited for the job." He contends that he had discussed with Sisneros his dissatis- faction with Sisneros' "quality and quantity of work and housekeeping" and that his attendance entered into the de- cision to lay him off. Sisneros, on the other hand, denied Sievers had ever expressed dissatisfaction with the quality and quantity of his work or housekeeping or with his atten- dance. It is noted in this regard that Sievers, who evidenced a propensity for issuing citations for a variety of purported work infractions following Sisneros' reemployment in Au- gust, issued no citations prior to the June 21 layoff for his alleged transgressions.9 Further, neither those reasons nor Sisneros' alleged deficient attendance records were given to Sisneros as reasons for his layoff selection. Nor was Siev- ers' attempt to portray Sisneros' work as inferior to that of Kim convincing. He claimed Kim complained to him about Sisneros' work and that Sisneros complained about Kim's work, yet it was only through leading questions by Respondent's counsel that Kim testified, rather unconvinc- ingly, that he had ever found fault with any of Sisneros' work, and there is doubt in my mind that he even reported to Sievers the single instance related on the record. On the other hand, Sisneros testified convincingly to faults with Kim's work. On direct examination Sievers testified that 8 There is no evidence performance reviews were completed on any of the other employees. While Sievers testified other employees had received written warnings, he acknowledged Sisneros did not receive any until after his return in Au- gust. 536 BOYLES GALVANIZING COMPANY from his "observation and production sheets" he had de- termined that Kim was performing more work than Sisne- ros. On cross-examination, he claimed Kim did 20 to 30 percent more work than Sisneros, which he based on "per- sonal observations of myself and others." It is significant in this regard that no production sheets or other witnesses were called to corroborate his claim. Of further signifi- cance is the fact that Sisneros' employment record shows he had progressed financially from $3.50 per hour when hired in April 1975 to $5.35 per hour at the time of layoff. Sievers testified that another factor that entered into his decision to lay off Sisneros was that "there had been a couple of points in time when his [Sisneros'] statement to the effect that he was possibly or feasibly trying to put a little garage together; to open a garage or gas station." He learned this, he stated, in late 1976. Sisneros testified, how- ever, that he had owned a half interest in a repair shop since 1967 or 1968 but that he didn't work there, nor had he ever told Sievers he intended to quit to go into the ga- rage business. Based upon the foregoing, I find that Sisneros' layoff on June 21 was not motivated by the reasons advanced by the Respondent. I find it significant that Sisneros' selection for layoff for the first time, and before any written complaints had been registered against him, followed closely on the heels of his union organization activities and filing of an E.E.O.C. charge. I am convinced that the motivating force in the Respondent's action was its desire to punish and/or eliminate Sisneros because of his activities in initiating a union organizing campaign. In the circumstances of this case, particularly the shifting and unconvincing nature of the reasons proffered by the Respondent, such an inference seems appropriate under the rationale of the court in Shat- tuck Denn Mining Corporation (Iron King Branch) v. N.LR.B., 362 F.2d 466, 470 (9th Cir. 1966): Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases the self-serving dec- laration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Other- wise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact . .. required to be anymore naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer de- sires to conceal-an unlawful motive-at least where . . . the surrounding facts tend to reinforce that infer- ence ... Here, "the surrounding facts" preponderate in favor of a finding that the Respondent, in laying off Sisneros on June 21, was motivated by the knowledge that Sisneros had sought assistance from the Union and had protested the promotion of Campos through the filing of charges with the E.E.O.C., and that the reasons advanced by the Re- spondent are false. Accordingly, by engaging in such con- duct, the Respondent violated Section 8(a)(3) and (I) of the Act. D. Sisneros' Recall Sisneros filed the charge in Case 27-CA-5431 on June 23. By letter dated August 3, Sievers wrote him as follows: Tony, Improvement in business and future commitments from our bigger customers present a need for us to call back all employees who are currently on layoff. Your job as Shop Foreman-Special Project will be available to you through Monday August 8, 1977 with regular employee status which includes: same rate of pay, including shift differential, fringe benefits, and continuation of your seniority. If you have not returned to work by Tuesday, Au- gust 9, 1977 it will be necessary for us to put a replace- ment person in that position. I look forward to hearing from you as quickly as possible. He returned to work on August 4 at $5.30 per hour on the day shift, despite the assurance in the August 3 letter that he would receive the same rate of pay, "including shift differential," as his prelayoff rate, which had been $5.35 per hour. Sievers admitted, when questioned by the General Coun- sel as an adverse witness, that Sisneros was paid $5.35 per hour prior to the general layoff, because he agreed to work a flexible schedule.' Sievers testified that while Sisneros had been assigned to the night shift he also worked from "one day up to one or two months" on the day shift with- out forfeiting any wage increment as a shift differential. When questioned later by Respondent's counsel, Sievers characterized 5 cents in Sisneros' pay rate as a shift differ- ential, which was withdrawn when he returned on August 4, since he was no longer on the day shift. Respondent's Exhibit 20, Kim's employment record, shows that Kim, who worked only on the day shift, commenced receiving $5.35 per hour on January 24, 1977. Asked by Respon- dent's counsel to explain why Kim was receiving $5.35 per hour while Sisneros was recalled at only $5.30, Sievers tes- tified, "Well, it was because Mr. Sisneros was absent with an injury to his back in '77, in January to April or May, and at that time Kim progressed because he was on the payroll getting paid on a daily basis. It is a matter of per- centages you give them on merit." As evidenced by Re- spondent's Exhibit 7 (Sisneros' earnings record), Sisneros was not absent during the early months of 1977, as Sievers claimed. Accordingly, I do not credit his attempt to explain why Kim, working on the day shift, was making the same rate of pay as Sisneros, who was receiving a shift or flexible schedule differential of 5 cents while working on the night shift. Instead, it appears the standard pay rate for mainte- nance men in June was $5.35 per hour, which is the rate Sisneros received whether working on the day or night shift, and when Respondent recalled Sisneros on August 4 at $5.30 per hour, contrary to its offer contained in the recall letter, it did so not for the reason Sievers claims but for the very reasons he was laid off on June 21, plus the 10 There is no evidence to indicate Sisneros was not recalled to work a flexible schedule. 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additional factor that he had filed the charge in Case 27- CA-5431 on June 23. The rationale set forth in Shattuck Denn Mining Corp., supra, again applies. Accordingly, I find Respondent violated Section 8(a)(1) as alleged in para- graph VIII of the complaint in Case 27-CA-5606. In what respects the duties and authority, if any, of shop foreman-special projects differed from those possessed by Sisneros as a maintenance man was not explained on the record. It does not appear, however, that Sisneros' duties or authority changed in any way, even though Sievers tried to create the impression with Sisneros that his recall was as a supervisor. In this regard, about a week after Sisneros was recalled, Sievers met with Sisneros, Kim, and three super- visors regarding a variety of subjects, including safety, and asked if there was any more talk about a union. Sisneros responded that the employees had asked him about the Union and that he had told them "that the way I was reinstated, that I could not talk Union," apparently be- cause he believed he had been recalled to a supervisory position. Sisneros then testified, without contradiction, that Sievers stated "that we couldn't let the Union come in, us from supervision." Sisneros testified he then stated "that we could not stop them. It's against the law. So he [Sievers] said that we didn't need a second party in there because there would be other problems, union dues, and all of this; but I was the only one that spoke about the union, because everybody had asked me about the union." However, as found earlier, the record does not show that Sisneros pos- sessed the authorities after his recall that would warrant a finding that he was a supervisor. Accordingly, I find that the interrogation recited above violated Section 8(a)(1) of the Act as alleged in paragraph V of the complaint in Case 27-CA-5606. E. Interrogation by Campos Villalobos Paragraph V of the complaint in Case 27-CA-5431 al- leges that on or about June 17 Campos Villalobos interro- gated employees concerning their union sympathies. Victor Rodriguez testified without contradiction that he signed a "green card," identified as a union authorization card, which Sisneros gave him in September. After that, Campos "asked where was the green card that I had signed." Rodri- guez responded that he had returned it to Sisneros. Cam- pos, an admitted supervisor, did not testify. The basic premise in situations involving the questioning of employ- ees about union activities is that such questions are inher- ently coercive by their very nature even though the ques- tioning took place in the absence of a specific threat or promise of benefit by their supervisor. Crown Zellerback Corporation, 225 NLRB 911 (1976). While there is a vari- ance between the date alleged in the complaint and the date established by the evidence, the Respondent was ap- prised of the issue and had full opportunity to be heard, to examine and cross-examine witnesses, and to introduce ev- idence. Haynes Stellite Company, Division of Union Carbide Corporation, 136 NLRB 95, 98 (1962). Accordingly, I find that the variance in the dates is not fatal and that there is merit to the allegation that Respondent violated Section 8(a)(1) of the Act. F. Sisneros' Separation on October 12 Paragraphs IX and X of the complaint in Case 27-CA- 5606 allege that Sisneros was constructively discharged on October 12 because of his union activities and/or because he filed charges under the Act. The Respondent claims Sisneros voluntarily quit his employment on October 12 because he was angry over a directive from Sievers to re- move immediately his personal property from company premises. A background is required to properly assess events that happened on October 12. As related earlier, herein, Sisne- ros, whom I have found not to be a supervisor, was dis- criminatorily laid off in June because of his activities in initiating a union organizing campaign. I have found fur- ther that the Respondent unlawfully reduced his rate of pay when he was recalled from layoff and shortly thereaf- ter expressed antiunion sentiment and unlawfully interro- gated him regarding the Union. It is in this context that the following additional events occurring after Sisneros' recall must be viewed. While Sievers testified he had issued written warnings to other employees between the time he became plant manag- er in 1976 and Sisneros' recall in August, he acknowledged none had been issued to Sisneros. Although he claimed he had verbally warned Sisneros during that period, Sisneros denied the earlier warnings or that his work had ever been criticized. Having observed Sievers' penchant for issuing warnings following the advent of union activities by Sisne- ros, I must conclude there is some relation between those events. In this regard it is noted that within the first week of Sisneros' return to work, as found earlier, Sievers ques- tioned Sisneros, Kim, Guilbeaux, and Campos regarding any more talk about the Union and had told them that supervision couldn't let the Union in. A day or two after that, Sisneros received his first written warning, General Counsel's Exhibit 9, dated August 10, for "Habitual Fail- ure to Complete Daily Maint. Record." Kim received an identical warning. The record shows that on March 10 Sievers had issued to both Sisneros and Kim an interoffice memo reading: SUBJECI: Time Recording Effective this date, it will become necessary for you to record what activities you expended your time on and how many hour [sic] on each. Entries are to be made on a daily basis using the attached time sheet and placed in your file tray located in the general of- fice at the end of your shift. It is clear from Kim's testimony that he hadn't complet- ed the daily maintenance record form "for a couple of months" prior to the issuance of the warning and that when "I got this form . . . I got a little mad." It appears from the testimony that when Sisneros returned after the layoff the Respondent no longer had a supply of the forms. Further, Sisneros credibly testified that when he returned in August he asked Kim if he was still filling out the reports and that Kim told him he hadn't for quite some time, that they had run out of forms. In its brief, counsel for the Respondent devoted approximately a page to arguing that Sisneros did not learn from Kim until after the warning 538 BOYLES GALVANIZING COMPANY had been issued that he hadn't been filling out the daily maintenance time record. When initially questioned on this point by Respondent's counsel, Kim testified, "Yes, I re- ceived this paper [warning] after I talked to Tony." [Em- phasis supplied.] Asked again by Respondent's counsel whether he had talked to Sisneros "[albout filling out these forms before or after you got that warning," Kim respond- ed "No, I received this paper after I talked to him." Not until Respondent's counsel resorted to the use of leading questions was it possible to extract the "Yes" answer indi- cating he hadn't told Sisneros about not filling out the forms until after the warnings were issued. In these circum- stances, I credit Sisneros and find that Kim's initial re- sponse was true-that he told Sisneros, prior to the warn- ing, that he had not completed the form for a couple of months. When called in by Sievers to receive the warning, Sisneros tried to explain that Kim had told him that they were not filling them out any more and that there were not any forms. Sievers threatened him with disciplinary action if it happened again. On October 23, Sisneros received the following "Inter- office memo" from Sievers, characterized by the Respon- dent as a warning: SuvsEcr: Housekeeping On August 18, 1977, we discussed housekeeping. It was pointed out that in taking out panels around the building, you were creating debris. I asked you to pick-up this debris because it poses not only poor housekeeping, but safety hazards as well. As of this date, this debris remains untouched. Please correct the situation by day's end. It appears that on August 16 or 17 Sisneros was engaged in the special project of cutting a doorway through the wall of a building and in doing so left some panels and other pieces of metal in the area adjacent to the building. Sievers testified he'd discussed the matter of debris lying around with Sisneros on several occasions and it wasn't taken care of, so he wrote the memo of August 23 "to show that I had spoken to him on August 18." Sisneros, whom I credit, denied Sievers had discussed the matter with him prior to the issuance of the memo. He testified that upon receiving the memo he asked both Gilbeaux and Shipping and Re- ceiving Supervisor, Esquibel to inspect the area and see if they could see anything hazardous, and that neither could. While Gilbeaux testified he had observed some metal panels on the ground, he failed to characterize them as "hazardous," and it was Respondent's counsel, not Gil- beaux, who termed the panels "debris." I] On September 8, Sisneros received two warnings or cita- tions. One deals with safety equipment and reads as fol- lows: This citation is for failure to use proper safety equipment provided for working on the tower. This equipment was purchased as requested to insure prop- er safety conditions in this work area, it must be used. This is a final warning, should it occur again, disci- plinary action will be taken. Sievers testified Sisneros and Kim "had been warned ver- a Esquibel was not questioned regarding the matter. bally many times about using that safety equipment." He initially testified that "on the day this citation was given, Rim did wear the equipment." Later he claimed both men had been observed working without the safety equipment that day. If, as he testified, both men had been "warned verbally many times about using that safety equipment," I find it significant no written warnings were issued until after Sisneros' union activity was known to Respondent. Insofar as Kim's also receiving warning, I am convinced Sievers was attempting to add a legitimate air to the warn- ings and citations issued to Sisneros by also issuing warn- ings to Kim. In this regard Kim testified, as noted hereto- fore, that when he received the warning on failure to complete the daily maintenance records he "got a little mad." The second "warning" Sisneros received on September 8 reads: SUSJEC: Unauthorized use of Company Equipment This will confirm our conversation of 9/8/77, re- garding unauthorized use of company forklifts for per- sonal use. Specifically being the off loading of your camper onto your trailer. Further unauthorized use of company equipment on material will result in disciplinary action. The undisputed evidence shows that Sisneros had kept the camper at the plant premises and stayed in it many nights so that he would be available in case of emergencies. Fur- ther, he had used the forklift previous to September 8 for on- and offloading both the camper and some pickup truck racks he owned which were used to haul pipe for the Re- spondent and to deliver handrails to customers, all without any objection on the part of Sievers. Not until after Sisne- ros' involvement with the Union and the filing of the charge in Case 27-CA-5431 was there any objection. Also in September, some of the employees approached Sisneros about talking to Sievers on their behalf regarding raises. While Sisneros didn't want to get involved, he agreed to approach Sievers on their problems if they would sign a petition designating him as their representative on issues of safety, layoffs, promotions, demotions, transfers, compensation, and pay raises. Seventeen employees signed such a petition on September 23. Evidence shows that a few days later Sisneros talked to Gilbeaux, who testified that Sisneros told him, "These peo- ple want me to represent them." He approached Gilbeaux because Gilbeaux "was always a witness to everything that took place between me and Sievers, I thought he would go in there with me, but he didn't." While Gilbeaux denies he read the petition, I am satisfied he knew what it was and responded, as Sisneros testified, that "he was sure Sievers wouldn't accept it." as indeed Sievers did not when it was presented to him by Sisneros. Sievers' reaction when Sisne- ros told him that the employees had named him as their spokesman and that he wanted to talk about some raises the employees had coming was that Sisneros "shouldn't get involved . . . because [he] was getting well paid." Sisneros then tried unsuccessfully to call Jerry Martin, a corporate official in Texas, and left a message that "there was a lot of labor tension, and I wanted to talk about my hours being cut down since I returned to work." 539 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By interoffice memo dated June 8, all employees were notified as follows: SuBJEcr: Personal Property We have just been advised by our insurance compa- ny that no personal property is to be stored on compa- ny premises. Therefore, any employee with personal belongings on company property must remove them by Friday, June 10th. It should be noted that removal of such items is not to be done on company time. Nevertheless, Sisneros' camper, the subject of the Septem- ber 8 warning regarding unauthorized use of company equipment, and a pickup rack belonging to Sisneros but used for company business remained on the plant premises without objection. On October 11, Sievers ordered Sisneros to remove the pickup rack from the plant premises. Sisne- ros testified there was a plant breakdown that day and he was unable to get it done. The following morning Sievers approached Sisneros several times regarding removal of the rack, the last time telling him "if I didn't take the damn rack out of there, he would give me time off to do so." While Sievers testified he had asked Sisneros to remove the rack "almost on a weekly or daily basis from like April," Sisneros testified the subject hadn't been mentioned before October 11. Sisneros was the more convincing witness, and I credit him over Sievers. The issue of removal of personal property didn't arise until the June 8 interoffice memo, so it is unlikely Sievers would have commenced making an issue over it in April as he testified. Further, the rack was on the plant premises in the first place for the benefit of the Respondent, and I deem it unlikely Sievers would have ever sought its removal unless there was, as I find, a reason which transcends the expressed reason, the June 8 memo. I am convinced and find that Sievers' attitude with respect to the removal of the rack was part and parcel of his plan to harass Sisneros until he quit his employment, as he did on October 12. Sisneros was afraid that if he continued working for Respondent Sievers would aggravate him to the point that something bad would happen. He told Gil- beaux he could no longer stand the way he was being ha- rassed and then quit his employment. In addition to the foregoing, the General Counsel also calls attention to the fact that Sisneros' hours of overtime work and number of service calls were reduced following his recall in August, while he made more service calls prior to the June layoff than Kim, following the August recall Kim received more service calls than he did. Prior to the layoff, Kim expressed a dislike for working nights and said he would quit before doing so; therefore Sisneros made a majority of the service calls. After his recall, Sisneros asked a night supervisor to call him when there was a breakdown so he could make up hours. He testified he was told the supervisor "had been instructed not to call me on service calls unless they couldn't get hold of Kim." 12 Examination of the payroll records of Sisneros and Kim lends credence to Sisneros' claim. They show that for the payroll periods from March 27 through June 26 (when the layoff oc- curred), Sisneros worked 75.70 hours of overtime and re- 12 The maintenance men were guaranteed 4 hours' pay for each service or emergency call. ceived 12 service calls to 61.60 hours overtime and 3 service calls for Kim. Between his August 4 recall and October 12, Sisneros worked less than I hour of overtime and had two service calls, whereas Kim worked 8.4 hours overtime and had six service calls. The reduction in overtime and num- ber of service calls had an additional adverse effect on Sisneros' wages, over and above his reduced rate of pay on recall. In Crystal Princeton Refining Company, 222 NLRB 1068 (1967), the Board held: There are two elements which must be proved to es- tablish a "constructive discharge." First, the burdens imposed upon the employee must cause, and be in- tended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Sec- ond, it must be shown that those burdens were im- posed because of the employee's union activities. To recap, the Respondent learned in June that Sisneros had contacted the Union; shortly thereafter he was laid off for reasons which I find were unlawful; he was recalled following the filing of a charge alleging the discriminatory layoff; the recall, contrary to a statement in the recall let- ter, was at a rate less than that he had received prior to the layoff and to a different shift; thereafter he received fewer overtime hours and fewer service calls, confirming evi- dence that the night supervisor had been instructed to give service calls to Kim instead of Sisneros; he was unlawfully interrogated about the Union shortly after his recall; Siev- ers expressed antiunion sentiment; within a couple of days after his recall, Sisneros received the first of several warn- ings, all of which, I conclude, were issued for the purpose of harassing Sisneros to the point that he would leave Re- spondent's employ; Sisneros spoke to Sievers on behalf of other employees and on September 23 was designated by 17 of the Respondent's employees to represent them, a fact known to Sievers, and Sievers refused to discuss the other employee's problems with him. It is evident to me, and I previously found, that the June layoff was precipitated by a desire to punish and/or eliminate Sisneros because of his union activities and that the Respondent's changed atti- tude toward Sisneros after his recall is nowhere explained except as retaliation against him for having filed the unfair labor practice charge against the Respondent and for his continued activities on behalf of the Union and for his protected concerted activities on behalf of the other em- ployees. I am convinced, under all the circumstances, that the harassment and changed working conditions were de- signed to, and did, cause changes in Sisneros' working con- ditions so unpleasant as to force him to resign. As these burdens were imposed because of his union and other pro- tected concerted activities and for having filed a charge with the Board against the Respondent, the Respondent, by its discriminatory treatment, caused the termination of Sisneros' employment on October 12 and thereby construc- tively discharged him in violation of Section 8(a)(3), (4), and (I) of the Act. United Service Corporation, d/b/a Forest Park Ambulance Service, 206 NLRB 550 (1973). Respon- dent did not remedy its original discriminatory layoff by the August recall and must now offer Sisneros the appro- priate remedy. It shall therefore be recommended that 540 BOYLES GALVANIZING COMPANY Sisneros be offered reinstatement to his former, or a sub- stantially equivalent, position and be made whole for any loss of pay suffered by reason of the discrimination against him since the date of the discriminatory layoff. Kinter Brothers, Inc., 167 NLRB 57 (1967). G. Production Crew's Separation on October 12 Paragraphs VI and VII of the complaint in Case 27-CA- 5606 allege the unlawful discharge of the production crew on October 12 for engaging in protected concerted activi- ties. The Respondent contends the production crew were not terminated but instead engaged in a strike, as evi- denced by statements and signs which appeared outside the Respondent's premises. The day production crew reported for work the morning of October 12 at 7 o'clock, and at 8 o'clock they went on break. When Sievers arrived, shortly thereafter, he admon- ished the crew to start work. Later, the production crew sent Andres Villalobos and Sisneros to find out why Siev- ers had "scolded" them. They returned and reported Siev- ers wouldn't talk to them. The crew then sent them back to ask about raises. The two men reported back that Sievers said he wanted more production. Following the lunchbreak, and at about the same time Sisneros left, a number of the day shift, including Andres Villalobos, herein called Andres, and Rodriguez, went to talk to Sievers."3 Sievers asked Plant Secretary Urioste to act as interpreter. While Sievers testified the assembled men didn't respond to his question regarding what they wanted, Urioste testified the men stated they were walking out because they wanted more money. Andres and Rodri- guez both testified that they told Sievers they wanted to talk about pay raises and that Sievers immediately went out of the office and punched their timecards. According to Sievers, he told the men, "If you are not going to work, I'll have to punch you out. I can't pay you for not work- ing"; and as they started to leave he said "If you leave, you are not coming back." 14 Andres testified that as Sievers was punching out the timecards "[h]e said that we shouldn't return; that we didn't have work anymore." Ro- driguez testified that as Sievers was punching the timecards "he said that he didn't want any of us back to work." Ur- ioste, who was translating, testified initially that the em- ployees had stated they were walking out. On cross-exami- nation, she conceded she didn't recall the employees saying they were going to walk out, but that was the message she got.i5 She testified that they said they wanted more money and wanted Sisneros to act as their spokesman and that Sievers, in addition to asking them if they were sure of what they were doing stated "that they wouldn't have their jobs back or don't come back or something like that." The employees then left the building.'6 Sisneros, Andres, and Octobiano Villalobos returned and asked Sievers if he t Sievers testified there were at least five employees present. 14 Respondent claims there had been rumors of the walkout the previous da In an investigatory affidavit given a board agent. Rodriguez stated the employees told Sievers they were going on strike for more money. While the Respondent contends a part of the production crew had engaged in a walkout prior to this conversation. I am not convinced that any employees that may have been observed outside the gate immediately wanted to talk, Upon receiving a negative response, they left. Picketing commenced outside the gate with three im- promptu signs painted on pieces of corrugated cardboard reading: I. BOYLES IS UNFAIR MORE $$ 2. BOYLES IS NOT SAFE 3. BOYLES MAL TRATO HUELGA 17 While it appears several employees from the second shift came into the plant and indicated a desire to work on Oc- tober 12, they ultimately left the premises without doing so. At least two employees returned to work at a later date. The record does not disclose, however, whether the latter were from the first or second shift or whether they were taken back as new employees. The Respondent contends that the employees had al- ready staged a walkout at the time the first production crew talked to Sievers on October 12 and that when he spoke of "no more work" if the employees went on strike he spoke in reaction "to a fail accompli. " Whether or not the employees indicated to Sievers that they were going to engage in a strike in support of their request for raises, they had not at that point done so. It is clear they approached Sievers in a group for the purpose of gaining a wage in- crease-clearly a protected concerted activity. His re- sponse, in his own words, was "If you leave, you are not coming back," conveying clearly the message, as Andres, Rodriguez, and Urioste testified, that if they did engage in a protected concerted activity they would no longer have jobs. Thus, the testimony clearly reveals in Sievers' state- ment and his conduct an ultimatum that they cease their concerted activity-whether voicing a request for wage in- creases or engaging in a strike in support of wage increas- es-or be discharged. By such conduct Respondent inter- fered with, restrained, and coerced the first- or day-shift employees in the exercise of their statutory rights in viola- tion of Section 8(aXl) of the Act. See, for example, Subur- ban AMC/Jeep, Inc., 211 NLRB 454 (1974). I conclude, however, that the second-shift employees, none of whom worked thereafter, were not discharged but became strikers when they declined to report for work that afternoon. Upon the entire record, I make the following: CONCLUSIONS OF LAW i. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union sympathies, the Respondent has engaged in unfair labor practices within the meaning of Section 8(aXl) of the Act. 4. By laying off Tony Sisneros because of his union and protected concerted activities, Respondent has engaged in after Sisneros left were not second-crew employees due to report for work shortly. 7 Translation: Strike on a count of bad treatment. 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 5. By discharging the day production crew for engaging in protected concerted activities, Respondent has violated Section 8(aXl) of the Act. 6. By decreasing Tony Sisneros' rate of pay because of his union activity and because he filed charges under the Act, Respondent violated Section 8(aXI), (3), and (4) of the Act. 7. By constructively discharging Tony Sisneros because he engaged in union and protected concerted activity and because he filed charges under the Act, Respondent vio- lated Section 8(aX3), (4), and (1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY For the purposes of effectuating the policies of the Act, it will be recommended that Respondent be ordered to cease and desist from engaging in the unfair labor practices found and from interfering with, restraining, or coercing its employees in any other manner. Further, it will be recommended that Tony Sisneros and the day crew be offered immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and that they be made whole for any loss of earnings and other benefits suffered because of Respondent's discrimination against them by payment to each of a sum of money equal to that which he normally would have earned absent the unlawful discrimination, with backpay and interest com- puted under the established standards of the Board in ac- cordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as set forth in Florida Steel Corporation, 230 NLRB 651 (1977)." It is also recommended that Respondent make available to the Board, upon request, all payroll and other records to facilitate checking the amount of earnings due. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER '9 The Respondent, Boyles Galvanizing Company, Com- merce City, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union sym- pathies. (b) Decreasing the pay rate of employees, or in any other manner discriminating against them in regard to their tenure, terms, or conditions of employment, because See, generally, Isis Plumbing 4 Heating Co., 138 NLRB 716 (1962). IS In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. of their union or other protected concerted activities or for filing charges under the Act. (c) Laying off and/or discharging employees for engag- ing in union or protected concerted activities or for filing charges under the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights of self- organization, to form labor organizations, to join or assist International Association of Bridge, Structural and Orna- mental Iron Workers, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(aX3) of the Act. 2. Take the following affirmative action, which will ef- fectuate the policies of the Act: (a) Offer Tony Sisneros and the day-crew employees who were discharged on October 12, 1977, immediate and full reinstatement to their former positions, dismissing, if necessary, anyone who may have been hired or retained to perform the work which they had been performing prior to their unlawful discharges or, if their positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suf- fered as a result of the discrimination against them, in the manner set forth above in the section entitled "The Rem- edy." (b) Make Tony Sisneros whole for any loss of pay he may have suffered as a result of his unlawful layoff on June 21, 1977, in the manner set forth above in the section enti- tled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze and determine the amounts of backpay due to these employees under the terms of this Order. (d) Post at its Commerce City, Colorado, facility copies of the attached notice marked "Appendix." 20 Copies of said notice, on forms to be provided by the Regional Di- rector for Region 27, after being duly signed by an author- ized representative, shall be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. 20 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." 542