Starlite Manufacturing Co.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Starlite Manufacturing Company and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Case 31-CA-759 June 21, 1968 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On March 26, 1968, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not engaged in certain other unfair labor practices al- leged in the complaint . Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision and a supporting brief. The General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Trial Examiner 's Decision, the exceptions, briefs, and the entire record in the case , and hereby adopts the findings , conclusions , and recommenda- tions of the Trial Examiner, with the following modifications and additions: 1. Although we agree with the Trial Examiner that the Respondent had knowledge of its em- ployees' union activities prior to the June 23 layoffs and discharges, we do not find it necessary to rely on the small plant doctrine or the inference the Trial Examiner derives from Pinto 's use of the past tense in describing when he learned of the Union's organizational attempts . Apart from the foregoing, the record as a whole demonstrates such knowledge. We rely, in particular, on Foreman Fontana 's interrogation of Cavuto on the morning of June 23, Foreman Mataalii's interrogation of Chavez on the afternoon of June 23, and Mataalii's subsequent attempt to engage Hauser in a further effort to elicit information from Chavez, and Super- visor Polk's interrogation of Gonzales on the after- noon of June 23. We also agree with the Trial Examiner that there was a disproportionate selection by the Respondent 172 NLRB No. 2 of union adherents for layoff and discharge. The testimony of Union Representative Victor M. Val- dez indicates that 22 of Respondent's 58 produc- tion and maintenance employees signed union authorization cards on or before June 23. Of the 11 discriminatees involved in the proceeding, all ex- cept Henson signed cards. Thus, 10 of the 22 union adherents in the plant were laid off or discharged while only 1 of the remaining 36 employees was discharged, a clearly disproportionate selection. 2. In affirming the Trial Examiner's findings with regard to the reinstatement rights of the dis- criminatees, we make the following additional findings regarding their status . Rafael Alzugaray, Francisco Cavuto, Carlos Gonzales, Robert Henson , Faustino Martinez, Esteban Perdomo, and Nicholas Perez were laid off on June 23, 1967, and subsequently recalled prior to the hearing. Gonzalo Perez and Oscar Velasco were laid off and have never been recalled. Guillermo Diaz and Millard Kaiser were discharged and have not been reinstated. The Trial Examiner's Recommended Order treats Millard Kaiser and Oscar Velasco as if they had been recalled or reinstated. Since the record shows that Kaiser was discharged and Velasco laid off on June 23, and that both have not been recalled, we shall amend the Order accordingly. The Trial Examiner found, and we agree, that Rafael Alzugaray was not reinstated to his former or substantially equivalent position as a heliarc welder. The record shows that from December 1966 to mid-April 1967 Alzugaray worked as a heliarc welder as a replacement for Bill Sumii, a certified heliarc welder, who was ill during that time. After Sumii's return Alzugaray continued to do heliarc welding until his layoff on June 23. On August 9 Alzugaray returned to the plant in response to Respondent's newspaper ad for heliarc welders and applied for that position. Foreman Fontana promised him a position if he obtained cer- tifications from an outside testing laboratory. Alzu- garay obtained the certifications but Fontana then refused him employ on the ground that no heliarc welding positions were open. Alzugaray was re- called on October 30, 1967, but as an arc welder on work that does not require certification. The Trial Examiner recommended that Alzugaray be given an opportunity to qualify as a certified welder in Respondent's plant and on Respondent's equip- ment, and that if he should obtain the required cer- tifications he should then be employed as a heliarc welder. We do not believe that Alzugaray's reinstatement to his former position as a heliarc welder should be conditioned on further testing. Up until his layoff, STARLITE MFG. CO. 69 Alzugaray worked as a heliarc welder with Respon- dent's apparent approval despite only partial certifi- cation. When he reapplied in August, Respondent conditioned his reemployment on his receiving specific certifications from an authorized testing agency, which Alzugaray then obtained at his own expense. In light of this we see no reason why the burden of additional testing should be imposed on the discriminatee. We note that there is no evidence in the record, for example, that Sumii was required to take such tests following his return to work after his long illness. We shall amend the Order to require Alzugaray's immediate reinstate- ment as a heliarc welder with backpay dating to time of his layoff. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Star- lite Manufacturing Company, Harbor City, Califor- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as so modified: 1. Delete paragraph 2(a) of the Recommended Order and substitute the following: "(a) Offer Rafael Alzugaray a position as a heliarc welder." 2. Paragraph 2(b) of the Recommended Order is amended to read as follows: "(b) Offer Guillermo Diaz, Gonzalo Perez, Oscar Velasco, and Millard Kaiser ...." 3. The fourth indented paragraph of the notice attached to the Trial Examiner's Decision is amended to read as follows: WE WILL offer to Guillermo Diaz, Gonzalo Perez, Oscar Velasco, and Millard Kaiser .... 4. Add the following as the fifth indented para- graph of the notice: WE WILL, offer Rafael Alzugaray the position of heliarc welder in our plant. herein called the Union, on June 30, amended on July 11 and September 27. The complaint, issued on September 27, 1967, was amended at the hear- ing without objection2 and was answered on Oc- tober 7. Proper notice of the issuance of charges, amended charges, and complaint was acknowledged by counsel for Starlite Manufactur- ing Company, herein called Respondent. The complaint alleged that Respondent unlaw- fully disch rged and refused thereafter to reinstate 12 employees of Respondent.' It further alleged that Respondent by certain acts and conduct inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended, herein called the Act. Respondent's answer ad- mitted certain allegations of the complaint but de- nied that Respondent had committed any unfair labor practices. Additionally certain affirmative defenses were set forth in Respondent's answer. At the hearing all parties were afforded an op- portunity to be represented by counsel, to present evidence, to examine witnesses, to argue orally, and to file briefs. Briefs have been received from the General Counsel and Respondent. Respondent, in its brief, moved to dismiss the complaint in its en- tirety. In view of my disposition of the issues on the merits, I deny the motion. Upon the entire record4 and after careful con- sideration of the briefs filed herein, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a California corporation, is and has been, at all times material herein, engaged in the manufacture, sale, and distribution of power lawnmowers and aircraft and missile components. In the course and conduct of its business Respon- dent annually sells and causes to be transported its goods and products as described above, valued in excess of $50,000, directly to points outside the State of California. The complaint alleged, the answer admitted, and I find that Respondent is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it would effectuate the policies of the Act to assert jurisdic- tion herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner: Upon due notice, this case was heard by me, the duly designated Trial Examiner, at Los Angeles, Califor- nia, on November 30, 1967, December 1, 4, 5, and 6, 1967.1 The original charge was filed by International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, ' All dates referred to herein are for the year 1967 unless otherwise specified ' G.C Exh 2. ' General Counsel at the hearing moved to strike the name of Sidney Pat- terson , Jr., as one of the alleged discriminatees. The motion was granted. ' Counsel filed a stipulation to correct the transcript of the proceeding in certain particulars The stipulation is approved 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If. THE LABOR ORGANIZATION INVOLVED The complaint alleged , the answer admitted, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Findings The evidence showed that Respondent operates a small plant , employing approximately 80, of whom about 58 may be termed rank-and-file production employees. The production area within the plant is about 100 feet by 180 feet, most of this area being visible from a window of the production office. It was conceded that approximately 18 Spanish speaking production employees constituted a "fairly close knit group"; they fathered in groups and talked during their off times. It was chiefly among this group of employees that discussion concerning possible union organization commenced approximately 2 weeks prior to June 23. As a result of these discussions Rafael Alzu- garay and Guillermo Diaz visited the union office on June 21 and obtained union authorization cards printed in Spanish and English ; that evening and the next evening they made numerous visits to the homes of various employees. Francisco Cavuto was enlisted by them to assist in the organizational at- tempt. Cavuto was given about 10 authorization cards printed in English. On Thursday, June 22, and on Friday, June 23, Alzugaray, Diaz, and Cavu- to solicited fellow employees in the plant , obtaining sufficient signatures to support the filing of a peti- tion for certification of the Union as the exclusive collective-bargaining representative of the em- ployees. On the afternoon of June 23 , Respondent laid off or discharged 12 employees. B. Events of June 23 About 11:25 a.m. on June 23, a few minutes be- fore the customary lunch break , Fontana ap- proached Cavuto and said , according to Cavuto's credited testimony , "There is something funny going around you," and then inquired what was going on. Cavuto replied that he did not know, whereupon Fontana suggested , "Perhaps it's something about the Union." Cavuto then replied, "It is true, that is right." Fontana then asked Cavu- to why he wanted the Union, whether it was money. Cavuto said that he might be earning good money but some others were' not. Cavuto then testified as follows: ° From the testimony of Vincent Fontana, Respondent's vice president and production manager Fontana's testimony will be discussed further, below I find no violation because of this incident John Fontana was not a su- pervisor nor did the evidence establish that he enjoyed special status How- ever, it is evident that Cavuto's union sympathies soon became common knowledge throughout the plant ... He also told me, "Don't you realize who would pay' you paid vacations and paid holidays?" I told him, "Yes, I realize you are the one who pays them." But I also told him that here a lot of people-wait a minute, I for- got, I recall something else I said to him. This, I said, "If you allow me, I would like to express my viewpoint to you." Then, he said this: "You see, Frank, right now, you can talk to me face to face and express your opinions and point of view, but when and if the union comes, you will not be able to do that." I told him, "If you would pay the employees more, they would work more." He said, "No, Frank, it doesn't work that way. We pay you more because you work more. It doesn't work with them." About that time, the lunch bell rang. Then I picked up my lunch pail, and he made an aboutface and went to the office. I noticed that he did not look too well. Although Fontana admitted that he had a conversa- tion with Cavuto about that time, he testified that the conversation concerned a decrease in produc- tion. I do not credit Fontana6 and accept Cavuto's version of the conversation. After the foregoing conversation with Fontana, Cavuto went to lunch and returned to work about 12:05 p.m. Cavuto, about 10 minutes later, became upset because John Fontana, Vincent Fontana's brother, made a gesture with his hands similar to a person tightening a screw or a bolt.' He thereupon asked his foreman, Maury Polk, to be excused from work , saying his stomach was upset . Receiving per- mission , he left the plant and proceeded to the parking lot where he met Alzugaray and Diaz. They discussed Cavuto's conversation with Fontana and the gesture made by John Fontana and decided to go to the union hall . After conversing with union officials, they returned to the plant about 4:30 p.m. when everyone was coming out. They saw Fontana who invited them in the office to pick up their checks.' Fontana told Cavuto, Alzugaray, and Diaz that he was laying them off because production was going to slow up. Each of the three was given two checks, one for the regular pay period and one for work to date. Fontana then said, "Good Luck." Alzugaray testified that on June 23, when he was leaving the plant to have his lunch, he saw Fontana talking to Cavuto, and Faustino Martinez informed Alzugaray that Fontana knew about the Union.10 When Cavuto arrived at the parking lot Cavuto in- formed him concerning his conversation with Fon- tana. Under these circumstances, Alzugaray feared being discharged and decided to go to the union of- This was a regular payday 9I interpret the above statement to mean that a cut in production was contemplated. 10 The record is not clear what information Martinez possessed unless he drew this conclusion after seeing Cavuto and Fontana in conversation However, this is indicative that the information quickly spread through the plant STARLITE MFG. CO. 71 fice to secure some kind of protection . He told his foreman , Polk, that the lunch had upset his stomach and in the company of Diaz and Cavuto went to the union office . Upon his return in the company of Diaz and Cavuto, he was given two checks by Fontana and was told that he was being laid off. Augustine Chavez testified that on the afternoon of June 23, about 3 p.m., his foreman, Henry Mataalii came to his work area and asked him if he had signed a card. Chavez, although in fact he had signed a union authorization card , replied "no." Mataalii then said , " Don't worry, sooner or later I will discover whether you did sign a card or not." Whereupon Chavez made a motion drawing his hand across his neck and Mataalii nodded. Later that afternoon Mataalii sent Chavez to assist another employee , Frank Hauser, who at that time was heating up some metal pieces with a torch. Chavez held the touch for him for a few minutes. Hauser told Chavez that Mataalii had sent him over so that Hauser could secure some information about the signing of cards . Hauser told him that as Mataalii was looking in their direction to motion with his head as if saying "no." Chavez did as directed. After about 10 minutes, Chavez returned to his own station . About a week later Chavez, when returning from lunch, overheard a conversa- tion between Hauser and Mataalii . He heard Mataalii say that the Union would not be good for the employees because the majority of them did not know what they were doing, they often wasted material, and if the Union came in the Company would be forced to take on specialized personnel and the majority of the present employees would be let go. Hauser, a witness called by the General Counsel, testified that he commenced working for Respon- dent on May 10, 1964." He testified that Ross Pin- to, president of Respondent, was his cousin -in-law and that Mataalii was his foreman . He further testified that he signed a union authorization card on June 22 . He then denied that he discussed the Union with any supervisor and that Mataalii had not discussed the Union nor asked any questions about union cards. Hauser was then shown an af- fidavit,12 which he acknowledged was signed by him on August 1 in the presence of Attorney Norton and that he swore to the truth of the statements. He also acknowledged that the statements contained in the affidavit were made by him . Hauser, however, declared that he deliberately gave a false affidavit because he had problems with Mataalii. The problems concerned various discussions with Mataalii particularly concerning religion and also that about a year earlier Mataalii had insisted on higher production. Hauser indicated that this was his way of getting revenge but now was sorry because he would be doing grave harm to Mataalii. Hauser's sworn statement to Norton is as follows: State of California County of Los Angeles I, Frank Hauser, being duly sworn, depose and say: I live at 3600 1/4 W. 60th St., Apt. 3, Los Angeles, Calif., phone 293-2251. I have worked for Starlite Mfg. Co. for 3 years and 3 months. I have been a hydraulic press operator most of that time. I report to Henry Mataalii, the press foreman. I signed a card for the Boilermakers' Union on Friday June 23. I remember the date because my mother passed away on Sunday, June 18 and I was away from work that week until Friday, June 23, when I went back to work. Francisco Cavuto gave me the card at lunchtime, 11:30. I signed it and gave it back to him at lunchtime. On Friday afternoon, about 3:30 or 3:45 Mataalii gave me my paycheck and also gave a paycheck to Augustine Chavez, who works with me and also reports to Mataalii. At 4:30 when we stopped working, Chavez and I went out to the parking lot, and he told me about a conversation he had had earlier with Mataalii which had occurred when Mataalii gave him his check. I saw Chavez and Mataalii talking at that time but was not close enough to hear the conversation myself. No one else was present. Chavez told me that Mataalii had asked him whether he had signed a union card and that he had told Mataalii that he hadn't. Chavez told me the reason he told Mataalii that, was that he was afraid he would be laid off if he told him he had signed. Chavez further told me that Mataalii said "Maybe one day I'll find out whether you signed the card or not." Chavez did not tell me anything at all about Mataalii having threatened to cut his throat or to let him go if he found out that he had signed a card. On Saturday June 24 we worked until noon. About 11:30 Mataalii came to me and told me he had tried to find out whether Augustine had signed a card and he couldn't, so he asked me to help him find out. Mataalii said to me "I'll send Augustine to help you and you ask him whether he signed a card." About 5 or 10 minutes to 12 Augustine came over and told me Mataalii had sent him to help me. I told Augustine the truth, that Mataalii had asked me to question him about whether he had signed a card, and I told him to " Hauser glanced at a paper on his hand when testifying as to the date of his employment He explained that he was inclined to forget so wrote it down " G C Exh 17 The entire affidavit is reproduced below 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shake his head "no." He shook his head no. Mataalii apparently thought I hadn 't signed a card and would help him find out about Au- gustine because Ross Pinto, President of Star- lite, is married to my first cousin , Josephine. Mataalii knew I am related to Pinto because Pinto told him that when I first started to work for Starlite. After my discussion with Augustine on Saturday morning, I went back to Mataalii and told him that Augustine had not signed a card. Nobody else was present when I told Mataalii that. Early the next week, I think it was Tuesday, I finished a job on my press and went to Mataalii to ask for another job . While looking through the job cards he said "You didn't sign a card? No you didn 't sign one." I said "No, I didn't sign ." He was referring to the union card, not the job card . I don't sign job cards, anyway. Nobody else was present when he questioned me this way on Tuesday. As far as I know Mataalii did not threaten to lay anybody off if he found out that someone had signed a card, but why else would he be so interested in finding out? I have read the above , consisting of 4 pages, and it is true and correct to the best of my knowledge and belief. /s/ Frank Hauser Sworn to, read, and subscribed before me this 1st day of August 1967 at Los Angeles, California /s/ Raymond M. Norton Attorney, NLRB, Region 31 The General Counsel offered Hauser 's affidavit as substantive evidence . Respondent argued that it was admissible only for purposes of impeachment. I admitted it for impeachment purposes with the un- derstanding that counsel would brief the question of its admissibility as substantive evidence. The General Counsel submitted an excellent brief on the question . Respondent 's counsel in his brief ar- gues that the new Evidence Code sections of the California Code relied on by the General Counsel have not as yet been interpreted by the courts and therefore there is no basis for their application. Counsel further argues that Hauser showed extreme fortitude by repudiating in toto his prior sworn statement. It can also be argued , as I find, that " Calif Stat of 1965, ch 299, effective January 1, 1967 "The importance of the comments is underscored by the statutory declaration that they reflect the legislative intent (official introduction p 1008) 770. Evidence of inconsistent statement of witness 770 Unless the interests of justice otherwise require, extrinsic Hauser 's repudiation stems from fear of economic reprisal , or family loyalty, or both. By his demeanor , it is clear to me that Hauser's testimonial account lacked any quality of sincerity. It is my considered opinion that Hauser in denying the truth of the prior statements and by testifying that he did not have a discussion with Mataalii con- cerning Chavez or any discussion with Mataalii concerning union activity knowingly testified falsely under oath. The weak and implausible reasons *,iven by Hauser for the statement he gave voluntarily to At- torney Norton strengthen my conviction that his oral testimony in significant elements is unworthy of belief. I now hold , for the reasons stated below, that Hauser 's affidavit (G.C. Exh . 17) is admissible as substantive evidence under the provisions of the California Code of Evidence adopted by the legisla- ture in 1965.13 Section 10( b) of the Act provides that proceedings before a Trial Examiner of the Board; ... shall, so far as practicable , be conducted in accordance with the rules of evidence applica- ble in the district courts of the United States under the rules of civil procedure for the dis- trict courts .... Rule 43 (a) of the Rules of Civil Procedure for the United States District Courts provides inter alia: ... evidence shall be admitted which is ad- missible ... under the rules of evidence ap- plied in the courts of general jurisdiction of the state in which the United States court is held . . In view of the foregoing it is necessary to ex- amine the Evidence Code of the State of California adopted in April 1965. The Evidence Code of the State of California, with the official comments 14 of the California Law Revision Commission issued August 1965, reads as follows: ARTICLE 3. PRIOR STATEMENTS OF WITNESSES § 1235. Inconsistent statement 1235. Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in com- pliance with Section 770.15 Comment. Under existing law, when a prior statement of a witness that is inconsistent with his testimony at the trial is admitted in evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action STARLITE MFG. CO. 73 evidence , it may not be used as evidence of the truth of the matters stated. Because of the hearsay rule, a witness ' prior inconsistent state- ment may be used only to discredit his testimony given at the trial. Albert v. McKay & Co., 174 Cal. 451, 456, 163 Pac. 666, 668 (1917). Because a witness ' inconsistent statement is not substantive evidence, the courts do not permit a party-even when surprised by the testimony-to impeach his own witness with inconsistent statements if the witness' testimony at the trial has not damaged the par- ty's case in any way. Evidence tending only to discredit the witness is irrelevant and immateri- al when the witness has not given damaging testimony . People v. Crespi, 115 Cal. 50, 46 Pac. 863 (1896); People v. Mitchell, 94 Cal. 550, 29 Pac. 1106 (1892); People v. Brown, 81 Cal. App. 226, 253 Pac. 735 91927). Section 1235 permits an inconsistent state- ment of a witness to be used as substantive evidence if the statement is otherwise admissi- ble under the conditions specified in Section 770-which do not include surprise on the part of the party calling the witness if he is the party offering the inconsistent statement . Because Section 1235 permits a witness' inconsistent statements to be considered as evidence of the matters stated and not merely as evidence cast- ing discredit on the witness, it follows that a party may introduce evidence of inconsistent statements of his own witness whether or not the witness gave damaging testimony and whether or not the party was surprised by the testimony, for such evidence is no longer ir- relevant ( and, hence, inadmissible). Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are lar- gely nonexistent. The declarant is in court and may be examined and cross-examined in re- gard to his statements and their subject matter. In many cases , the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise tQ the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsisten- cy. Hence , it is in as good a position to deter- mine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. Moreover, Section 1235 will provide a party with desirable protection against the "turn- coat" witness who changes his story on the stand and deprives the party calling him of evidence essential to his case. B. E. Witkin, probably the foremost authority on California law, stated in a recent treatise that the new rule adopted the position of a number of authorities, including a few courts, that the funda- mental objection to prior statements on the grounds of hearsay is removed when the declarant is availa- ble for confrontation and cross-examination and that such statements should therefore be admitted as substantive evidence.'6 Considering Hauser's testimony in its entirety in- cluding his signed and sworn statement I find it cor- roborates Chavez' credited testimony in significant parts. I find, contrary to Hauser's written statement and in line with his oral testimony , that Hauser signed a union authorization card on June 22 and staged the ceremony with Chavez, as described by Chavez and in Hauser's sworn statement, on the af- ternoon of June 23 in order to lead Mataalii to be- lieve that he was complying with Mataalii 's request to inform him whether Chavez had signed a union authorization card. I am convinced that but for this little drama Chavez would have been laid off on June 23, when, as found below, other employees, who were suspected of union sympathies were laid off. It should be noted that Hauser for a period of several months did not inform Attorney Norton nor anyone else that his sworn statement was false. Moreover, if the statement was in fact a concoction it would be necessary for Chavez and Hauser to have engaged in close collaboration, but Hauser of- fered no such testimony. In fact the statement itself, indicates lack of such a conspiratorial foundation. For, Hauser in his written statement, said that Chavez did not tell him about Mataalii's nodding response to Chavez' motion across his throat, nor does he give details, as testified to by Chavez, of his discussion with Mataalii the following week. Chavez on the other hand created a most favora- ble impression on the witness stand by his forthright manner . Having in mind that Chavez had not been laid off and was in Respondent's employ when testi- fying, I believe he is entitled to considerable credit for giving testimony adverse to Respondent under circumstances which exposed him to possible economic reprisal. Chavez displayed a good un- derstanding of English and expressed a desire for an interpreter in order to be precise in his understand- ing of questions and his replies. Accordingly, as I have stated above, I fully credit Chavez' testimony. I do not credit Mataalii's denials of the conversa- tions with Chavez and Hauser concerning Chavez' execution of a union authorization card. Mataalii admitted that he talked with Hauser about the Union during the week after the layoff of June 23. He testified to quoting a biblical passage on whether a person should join a union, specifying 16 P. Calif Evidence , 570 (W akin, 2d ed ) [Bancroft-Whitney, 19661 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was up to the individual. When asked if men- tion was made of the Union, Mataalii replied that he stated his personal opinion. When asked to be more specific in what he said about the Union, he repeated that he said it was up to the individual to join if he feels it is right for him. It is clear that, at the very least, Mataalii's testimony supports Chavez' to the extent that Mataalii and Hauser did have a discussion concerning the Union during the week following the layoff. I credit Chavez' version rather than that of Mataalii who seemed to me to be evasive and seeking, at times, refuge in mystical references to his religious concepts. In other aspects of his testimony Mataalii seemed desirous of placing Respondent in a most favorable light rather than testifying in a forthright manner. I therefore credit Mataalii only to the extent in- dicated. Carlos Gonzales testified that on the afternoon of June 23," about 4:15 p.m., Supervisor Polk asked him how many cards they had. Gonzales replied 30 or 33. Polk then said, "Why you don't ask me be- fore because I would sign the card too." Polk then asked Gonzales why he was not told about the Union and Gonzales said that he supposed Polk was concerned with the interests of the Company. After this conversation Polk went into the office and brought out two checks which he handed to Gon- zales, and told Gonzales, "Well Carlo the company slowed down production" Polk then added, " Please don't be mad at me, after all, I am not the boss." Polk admitted that he had a conversation with Gonzales about 4:15 p.m. on June 23, but stated that it occurred when he was passing out the checks. Polk stated that when he told Gonzales that he was being laid off because of lack of production and orders, Gonzales said, "Well, if I'm laid off, there should be 30 more." Polk asked, "Why?" and Gonzales replied, "There's other people who signed those cards." Polk then said, "I don't know what you are talking about." I credit Gonzales' version of the conversation. Polk testified that he mentioned this conversation on the following day to Pinto, president of Respon- dent, and another employee." He also stated that on the next day he heard a rumor that cards had been distributed in the plant. Under all the circum- stances, I find that, in fact, Polk informed Pinto on June 23 of his conversation with Gonzales and that Polk became aware of the distribution of union cards on June 23. The layoff of June 23 and Fon- tana's testimony, as recited below, confirms my finding in this regard. Fontana testified, as noted above, that about 11:30 a.m. on June 23 he discussed production problems with Cavuto seeking an explanation for the decrease. He testified, when recalled as 'r The transcript p 292, 125 reads, "June 13 " I his is a typographical error and is corrected to read "June 23 " 11 Apparently Polk did know what Gonzales was talking about as he Respondent's witness, that, anticipating a layoff on June 23 because of a cutback in production, he prepared a list of those to be laid off on June 17 at his home. He brought the list in on Monday, June 19 and put it on Pinto's desk. Pinto concurred in the list and Fontana kept it in his desk until Thursday evening when he turned it over to the payroll department to prepare the checks. Fontana further testified that the checks were prepared Friday morning , June 23, and that he did not discuss the layoff with the foremen or tell them who was going to be laid off. Fontana further testified that he held production meetings with foremen weekly but not on a regular basis. The meetings were not scheduled for any particular day and he held such a meeting on Friday afternoon, June 23, which was attended by all the foremen available in- cluding Niles Pinson, Polk, and Mataalii. Concern- ing the general subjects discussed at this meeting, Fontana testified as follows: Q. At the production meeting that you held on Friday afternoon, June 23, what was discussed, the general subjects? A. Well, with regard to production, I knew that we were cutting down on the lawn mower line, and I was trying to get the jobs moving that would not be the same particular line of work, so I had to put emphasis on the various jobs that were the next requirement. Q. Did you discuss the union at all or the at- tempted organization of the plant? A. I didn't know anything about the union on June 23. Fontana denied that the meeting concerned the layoffs and stated that that was not the reason for the meeting . He admitted that he spoke to Cavuto two or three times on June 23 and that he had a conversation with him about 11:25 or 11:30 a.m. but that his discussion concerned "beefing" up production because it was falling off. Fontana denied that he saw any employees passing out union authorization cards at any time prior to or on June 23 although he spent 60 to 70 percent of his time in the production area. Fontana stated that he first learned about the Union when he was called into Pinto's office on Saturday morn- ing, June 24, and was shown the letter from the Union in which it claimed majority status. 19 Thereafter, apparently on June 24, Fontana testified there was much discussion and wonder as to which employees favored the Union. Fontana estimated that there were 20-30 employees em- ployed for less than 1 to 1-1/2 years who would be interested in the Union. He denied that a list of such employees was prepared by him. Ross E. Pinto, called by the General Counsel'20 testified that he was president of Respondent; that, thought it was of sufficient importance to report to Pinto G C Exh. 3 " Under rule 43(b) of the Federal Rules of Civil Procedure STARLITE MFG. CO. when he received the Union 's claim of majority, Fontana prepared a list of those whom he thought might favor the Union . As there were about 20 names on the list, Pinto sent the Union a letter on June 27 questioning its assertion of majority status. Pinto also testified as follows:21 0. Did you ever hear of employees passing out authorization cards? A. Yes, on the 24th I heard of it, the Satur- day when I got this letter. 0. Before June 24, to and inclusive of June 23rd , did any manager or supervisor report to you that any employees had been passing out authorization cards? A. No, sir. TRIAL EXAMINER : Who told you about it on June 24th? THE WITNESS : Mr. Fontana. Q. (By Mr. Roth ) What did he say to you? A. He told me the union had been trying to get into the plant , and some people in the plant had signed some cards. 22 That was my first knowledge of it. Pinto further testified that Fontana told him that he was not discharging the employees on the layoff list that he had prepared but was laying them off. Esteban Perdomo credibly testified that he signed a union card about June 21; that about 4:20 p.m. on June 23 Fontana handed him two checks and Perdomo asked , "Why two checks?" Fontana replied, "Well, because the factory is in a low production period." Whereupon Perdolrio re- marked, "Could it be , perhaps, because of the Union?" Fontana said , "no," it was because of low production.23 As has been repeated on many occasions, it is seldom that motive can be established by direct evidence. The Ninth Circuit Court in a recent decision24 stated the situation quite succinctly where it said: 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 declaration 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-here the trial examiner-required to be any more 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 desires to conceal-an un- °1 Transcript p 409. n Emphasis supplied 1' Fontana 's casual negative reply portrays knowledge of union activity among the employees. _' Shattuck Denn Mining Corporation v N L R B, 362 F 2d 466 (C A 9) 75 lawful motive-at least where, as in this case, the surrounding facts tend to reinforce that in- ference. [Emphasis supplied.] I am well aware that the burden of proving an im- proper motivation for a layoff or discharge is upon the General Counsel. Thus an employer may discharge or layoff employees with impunity if such is not motivated, at least in part, by the employees' union activity.25 The crucial question , whether the layoffs and discharges of June 23 were motivated, at least in part, by the known union activity of the employees, requires resolution of the credibility of the wit- nesses. I have indicated, above, my disposition to credit certain testimony and to discredit other testimony. However, an analysis of Vincent Fon- tana's own testimony, in conjunction with that of Pinto, fortifies the above findings and has led me to discredit Fontana in important particulars. Pinto testified that Fontana told him on Saturday, June 24, that union authorization cards had been distributed in Respondent's plant. Nevertheless, Fontana states that he knew nothing about union activity until Saturday, June 24. Clearly after the layoff of June 23, no distribution of cards took place on June 24.26 Fontana did not say to Pinto that he learned about card distribution on June 24, rather Fontana on June 24 reported to Pinto, whom I credit on this aspect, that he knew there had been union solicitation among employees. Fontana, therefore, must have learned thus on June 23 or earlier. Again Foremen Mataalii and Polk stated that they knew nothing about the layoff until late in the afternoon of June 23. Polk in fact distributed some of the checks to laid off employees. However, there was a meeting of foremen on the afternoon of June 23. It seems incredible that the imminent layoff of 12 employees was not discussed. Surely if produc- tion problems were discussed, as Fontana testified, the personnel available for production of necessity had to be mentioned. Especially is this so when Fontana testified that production meetings were designed to inform the foremen what production was expected. Fontana testified that he spoke to Cavuto two or three times on June 23 concerning low production or as he put it about "beefing" up production. It seems rather strange to discuss these matters with an employee who is scheduled to be laid off in a few hours. The weakness of Fontana's testimonial account of the events of June 23 is further illustrated by the contradictory testimony of Helaine Mather, Respondent's bookkeeper. She testified that she did not make out the checks for the employees to be laid off until the afternoon of ra N L R B v Ace Comb Co , 342 F 2d 841 (C A 8), see also Steel Indus- tries, Incorporated v N L.R B , 325 F 2d 173 (C A 7), where the court said '1 an employer has the right to discharge an employee for good reason, bad reason or no reason , absent discrimination." I Inasmuch as the employees soliciting union authorization cards and most active in the Union were laid off on June 23 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 23 while Fontana testified the checks were made out in the morning. In the consideration of the credibility factors, it seems necessary to reflect on certain aspects of Cavuto's testimony and his relationship to Respon- dent. Cavuto, in effect, testified that he was con- sidered a valuable employee of Respondent and a high producer. Fontana's testimony that he was complaining to Cavuto of low production included several statements disparaging Cavuto's production by reference to excuses given by Cavuto which Fontana did not credit. On the other hand, Cavu- to's testimony that he was consulted concerning the setup of a new production line was conceded by Fontana. Apparently to minimize the value placed on Cavuto 's opinion , Fontana said he consulted other employees concerning the matter and would have me conclude that under these circumstances the discussions with Cavuto were routine . I do not find this to be the case . The drawings in evidence27 establish through Cavuto 's and Fontana 's testimony that Cavuto 's opinion was specially solicited and that his suggestions were apparently given much weight. Fontana did not particularize by name any other employee who was consulted nor did he testi- fy that any other employee was supplied with the diagrams or was asked to submit alternate dia- grams. The evidence shows Cavuto, however, was asked to inspect the diagrams and that he also prepared a diagram of his own which was con- sidered . Respondent 's sudden layoff of Cavuto, therefore , by itself, constitutes such a departure from a reasonable course of action as to warrant disbelief of Respondent's reasons for the layoffs and discharges of June 23 . In view of all of the foregoing I do not credit Fontana's and Pinto's testimony that a layoff list was prepared on June 17; that a layoff was decided upon on June 17; and that the layoff was not motivated by antiunion con- siderations.28 On the contrary , I find that the fact of union activity within Respondent's plant was discovered on June 23 ; that Respondent reacted quickly to eliminate the chief union protagonists and included some borderline employees to give color to the alleged economic reasons for the layoff and discharges. 2 I find that none of the employees would have been laid off on June 23 and none would have been discharged on that date absent knowledge by Respondent 's officials that a union organizational drive was in progress. The small-plant theory seems peculiarly applica- ble to the instant case . There were approximately 58 production employees in the period June 21 to 23. Most if not all production employees could be observed from Fontana 's office window. Addi- tionally several foremen and Fontana circulated throughout the day in the production area. Cer- tainly, as a practical matter , one need not engage in speculation to infer that knowledge of union activi- ty would quickly become known to management. Rather, it would seem that a realistic appraisal requires the inference that such knowledge was acquired, quickly spread throughout the plant, and, as found above, acted upon.30 C. Economic Justification for Layoffs and Terminations Respondent argues in its brief that its negative cash position necessitated the layoffs and termina- tions of June 23 and that its financing company served notice that inventory would not be financed after June 30, but would be resumed in October. Pinto, Respondent's president, testified that Respondent's financing is obtained through Walter Heller Company by way of advances on accounts receivable and on finished goods inventory; that lawnmowers31 are shipped from about October 1 to April 10 of the following year; that at the end of February the inventory was 1593 units and the finance company put a limit of 600 units with the added condition that the entire inventory be disposed of by June 30 ; that at a conference with a representative of Heller, Pinto assured him that the inventory would be disposed of by June 30; that a staff meeting was held on June 17 which included Fontana, Fred Gant, Respondent's CPA, controller, and financial adviser , and a Mr. Paul, Respondent's marketing director ; that at this meeting a deter- mination was made that the labor force had to be reduced as that was the largest cash item in Respondent's weekly budget ; that Fontana was directed to lay off an adequate number of person- nel in the lawnmower section to sustain Respon- dent's cash position ; that the last time there was a layoff was in 1960 or 1961 when 3 or 4 out of a total of 20 employees were laid off, and no notice was given to them; that this was prior to the Respondent's entering into lawnmower production in November 1962, when it began marketing them in March or April 1963; and that, on June 23 Respondent had 70 completed units in inventory and $387,000 worth of incomplete , or work-in- process, inventory , which was sufficient to take care of all anticipated production requirements for the remainder of the month. William Campbell , a witness called by the General Counsel, testified that he is employed by Respondent in production control and purchasing for lawnmower production ; that records of produc- 'rGC Exh 13( a)and(b) Further contradiction of Respondent 's contentions in this regard is supplied by the case of Oscar Velasco Velasco on temporary furlough from the armed forces was hired on June 19 to work while on furlough He was included in the layoff of June 23 If the layoff had been contemplated on June 17 , Velasco would not have been hired on June 19 " Sheraton -Houston Corporation, 148 NLRB 1195, 1206 N L R .B. v Melrose Processing Co, 351 F 2d 693 (C A 8); N L R.B v Entwistle Mfg Co, 120 F.2d 532 (C A 4) " The lawnmower segment of Respondent's business alone is in issue STARLITE MFG. CO. 77 tion, shipments, and inventory were maintained by him personally from October 1966 to the end of June 1967, and since that time under his direction; that the report nearest to June 17 is dated June 20 and it would have been distributed the following week; that he did not remember any special request from management for these records on a daily basis at any time in June;32 the records show that an in- ventory of 70 lawnmowers was maintained in June; 56 in July; 156 in August; and 213 in September. The records of production" show that the lowest levels of production were reached in the weeks of June 19-24 (73), June 26-July 1 (61), and July 5-8 (51). It should be noted that the first and last periods mentioned above covers shorter weeks and a reduction in personnel .34 Thereafter production returned to what appears normal , approximately 80-100 units per week, and about 400 per month. Superior production, as Cavuto testified, was ob- tained in May (555 units ). I note also that invento- ry did drop in the latter part of June and July but began to increase in August . I am unable to con- clude from Respondent's records that production of lawnmovers was in fact curtailed for the summer as was the contention . It is true that for 3 weeks, in- cluding the week of the layoff and terminations, there was a drop in production but this could be ex- plained by the need of training and transferring new employees to lawnmower production and the shorter workweeks. Additionally overtime continued to be offered employees after June 23 on the same basis as be- fore June 23. Doubt is further cast on the economic justification by the fact that Respondent continued to advertise from June 14 through 18 for categories of employees similar to those laid off . Moreover, four college students were hired the week prior to the layoff and continued to work all of the summer.35 Pinto's recital of the demands of the financing agent is self-serving and unsubstantiated by any documentary evidence or testimony from the finance company. Respondent's own records show contrary to Pinto's testimony that because of the finance company's attitude no inventory could be maintained on June 30 and presumably thereafter until financing commenced again October 1, an in- ventory was constantly maintained and increased to reach 156 at the end of August and 213 at the end of September. During this same period production was increased to 437 in August and 408 in Sep- tember. Finally Campbell's testimony that he re- members no special request in June for the records maintained by him tends to negate the contention that the import of any meeting on June 17 included a decision to reduce personnel. I find that, under the circumstances, the economic defense is unconvincing and I reject it. D. Concluding Findings Concerning Layoffs of June 23 Henson , employed by Respondent in April 1966, had other employment during a 2-week period prior to June 23. He informed Respondent of this fact. He admitted to frequent absences and tardi- ness but testified that his supervisor did not com- plain "too much" and that he was never threatened with discharge . Henson did not sign a union authorization card although he became aware of union activity a week prior to June 23. He was discharged on June 23 but recalled on June 28 hav- ing been contacted through his mother on June 25. When Henson reported for work on June 28, Fon- tana told him that he was shorthanded because of the layoff of June 23 and some people quitting. On returning to work Henson worked overtime. In my opinion the favored treatment accorded to Henson emphasizes the discrimination practiced against those who supported the Union. It is ap- parent that by Sunday, June 25, Respondent had made a determination as to which employees were union adherents and that Henson was not marked as a union adherent. It further appears that because of the actual shortage of employees Henson was the first to be recalled . It is immaterial whether Henson was laid offs on June 23 because he was a suspected union adherent or whether he was in- cluded to color the layoffs as window dressing.37 In either event Respondent violated Section 8(a)(1) and (3) by Henson's layoff or discharge. Certainly the immediate recall of Henson , whose discharge under other circumstances would be justified because of his tardy and absentee record, casts light upon Respondent's attitude toward employees suspected of union sympathies who possessed equal or better skills and more regular habits but who were not recalled or were recalled much later. But for the known or suspected union sympathies of these other employees, it is clear that they would have been recalled ahead of Henson. Diaz, for ex- ample, not only was an arc welder but had machine operator experience which would easily qualify him for many jobs in the plant filled by less regular and competent employees, like Eldredge, Henson, and Harry Ross, another employee who had not signed a union card. Millard Kaiser was discharged on June 23 al- legedly for incompetence. Kaiser impressed me as a sincere forthright witness who was willing to work hard to keep his job. He testified that his produc- 'r The records submitted are designated G C Exhs. 19, 20, 21 and Resp Exh. 3 33 GC Exh 20( a) and (b) " Due to the layoffs and terminations on June 23 " In addition , as noted above, Velasco was hired June 19 and included in the layoff of June 23. m Actually he was discharged. 37 Sheraton-Houston Corporation, supra 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion had increased to a point where he was exceed- ing the normal quota . Foreman Polk disputed Kaiser's testimony stating that Kaiser 's production fell below the normal requirement . I do not credit Polk as I found him an unsatisfactory witness in other aspects as noted above. Moreover, Polk testified production records were available, nevertheless they were not produced . I credit Kaiser and find that Kaiser was included in the layoff because of his suspected union activity. Oscar Velasco , on furlough from the armed forces, was reemployed by Respondent on June 19 with the understanding that his employment would continue until recalled to military service. Nevertheless, he was included in the layoff of June 23. Respondent contended that Gonzalo Perez per- formed his janitorial duties in an unsatisfactory manner and was discharged on June 23 for that reason . I do not agree. I credit the abundant evidence attesting to the competency of Perez. I conclude that his inclusion in the layoff of June 23 was designed to stifle union organization. In finding above that the layoffs of June 23 were for discriminatory reasons, I have considered the relatively unskilled nature of the work performed by the employees. It appears that all jobs, with the exception of heliarc welding , were not permanently assigned to any particular employee . Employees were frequently transferred and learned any par- ticular job in a matter of days . Under these circum- stances, it appears to me that even if there had been a necessity for some curtailment , which I do not find, the sudden decision to institute the layoff on June 23 was discriminatorily motivated. I further find, as stated above, that the layoff was aimed at ousting those employees whom Respondent suspected of union leadership and/or sympathy. I also find that several employees were included to lend color to Respondent 's contention that the layoff was economic and to bolster the contention that some were terminated for incompetence. I find that even in those cases where a legitimate reason for discharge may have existed , Respondent has not disentangled itself from the fact that the layoff of June 23 was illegally motivated. Evidence by the General Counsel of dispropor- tionate selection of union adherents for discharge, while not in itself determinative , creates a strong in- ference of unlawful discrimination.38 In the particulars already discussed and in the totality of its defense , it is my finding that Respon- dent failed to present a probative, plausible, or adequate explanation that the ostensible "reduction in force " was economically and not discriminatorily motivated. In any case, whether or not Respondent had valid economic grounds for curtailing its employee com- plement when it did, the record as a whole requires the holding that discriminatory reasons motivated the layoffs on June 23. Accordingly, I find that each of the employees laid off on June 23 were dis- criminated against in violation of Section 8(a)(1) and (3). E. The Alleged Discriminatory Refusals To Reinstate The General Counsel contends that Respondent has refused to reinstate certain discriminatees to their former or substantially equivalent positions. Rafael Alzugaray was hired as an arc welder in January 1966. For a period of 4 months commenc- ing December 1966, he replaced Bill Sumii, a cer- tified heliarc welder, who was ill during that time. Alzugaray further testified that he was compli- mented by Fontana on several occasions , the last time about 1 week before June 23 for work he had performed on stainless steel tables ; that he had in- structed George Hall in welding at Polk 's request in June or July 1966, and had helped a welder named Luther Eldredge ; that his rate of pay was $2.60 per hour at the start and $3.25 per hour on June 23, having been last given a raise of 25 cents per hour in January ; that he was active in organizing the Union in the plant on June 22 and 23, and had secured signed cards from eight or nine employees; that prior to his layoff on June 23 he was doing heliarc welding on both stainless steel and alu- minum; that, since his recall on October 31, he has been doing arc welding outdoors which required moving and lifting of heavy metals; that on August 9 he came to the plant and talked to Fontana in Cavuto's presence; that he asked Fontana for work, Fontana said there was none, and Alzugaray showed him a newspaper clipping of an advertise- ment Respondent had placed for certified heliarc welders;39 Alzugaray then asked for a chance so he could be certified by Respondent , Fontana refused saying it would cost $100 for each test. Alzugaray asked if he brought an outside certification would he get a job . Upon Fontana's affirmative reply, Al- zugaray went to Advance Testing Laboratories Inc. and returned with certifications. ° Upon examining the certifications , Fontana expressed surprise and went to check with someone; upon returning Fon- tana said , "That's fine, but these are not the ones I require." Fontana then instructed Alzugaray to secure certifications designated as .125 , 6061 T6, Joint 5 , 6, and 7. Upon being asked, Fontana said if this certification was received Alzugaray would be given a job . The next day , August 10 , Alzugaray returned with the required certifications" and Fon- '" E.g., N.L.R B. v. Somerset Classics, Inc., 193 F .2d 613 (C.A. 2), cert. denied 344 U.S. 816; N.L.R.B. v. Camco, Inc. 340 F .2d 803 (C.A. 5); Patio Foods, Inc., A Division of R. J. Reynolds Foods, Inc, 168 NLRB 305. "' G.C. Exits. 12(f), dated July 31, and 12(g), dated August 1. 4" G.C. Exh. 10. 41 G C Exh 14 STARLITE MFG. CO. 79 tana told him, "Allright, I will call you as soon as I can, or when I can find a job for you." Alzugaray was recalled, as noted above, on Oc- tober 30 as an arc welder on work that does not require a certification. Respondent defends the delay in recall of Alzugaray on the ground that no welders were needed until October 30 and that Al- zugaray was not a certified welder when it hired Hyatt T. Weathers on August 2, who is described as an experienced and certified welder. Evidence was introduced to show Alzugaray had a number of absences, but Respondent disclaimed that that was a reason for a delay in recall. Apparently Respon- dent's chief reasons for the failure to recall Alzu- garay earlier stem from the fact that Alzugaray, sometime in February to April, welded 19 pressure covers which Respondent maintains had to be re- worked. In addition certain stainless steel medical carts worked on by Alzugaray had required rework- ing. This evidence was produced principally through Fontana and Paul J. Cimarusti, Respon- dent's control manager. Cimarusti testified that the medical tables required grinding. Since the evidence shows that welds of all welders required grinding and polishing this evidence hardly carries any weight. With regard to the 19 pressure tops Cimarusti said they were made of tungsten and the welds had cracks requiring rework by Sumii. Fontana testified that for a period of 6 months, from October 1966 to April 1967, Sumii was in- capacitated by a coronary condition and Alzugaray substituted for him as a heliarc welder doing work on thin and thick aluminum as well as on stainless steel. Fontana testified that during this period Alzu- garay's work on thick aluminum was not satisfacto- ry and had to be reworked, nevertheless, during that period Respondent employed no other heliarc welders. For the reasons stated below I do not credit Fon- tana and Cimarusti with regard to the above. It was established that Respondent maintains production records but none was introduced. Accordingly whether or not and to what extent the welding per- formed by Alzugaray needed reworking rests solely on the testimony of Cimarusti and Fontana. As Sumii did not testify, and he was the one who al- legedly reworked the pressure covers, an important witness was not produced in addition to the com- pany records of production and rejection which could establish whether Sumii actually worked on rejected work of Alzugaray. Alzugaray credibly testified that Fontana told him that the work he performed on the pressure covers was good. Respondent argues that Alzugaray's certification by an outside laboratory did not meet the high specifications demanded by Respondent's contrac- tors. However, Billie W. Mobley, owner of Ad- vanced Testing Laboratories, Inc., testified that Al- zugaray was certified in accordance with the exact military specifications required by Respondent's contractors and that certifications from his labora- tory are accepted by North America Aviation, North American Research, and Burns Aero Seats Company and that his laboratory has been ap- proved by all aircraft companies including Douglas Aircraft and North American. It seems rather strange that, after Fontana informed Alzugaray that he would be hired if he got the proper certifications from an outside laboratory on August 10, he nevertheless failed to rehire Alzugaray until Oc- tober 30, and then only as an arc welder. If testing on Respondent's own equipment was absolutely es- sential, it seems that Fontana could have tested Al- zugaray on August 10. Moreover, Alzugaray had been tested by Respondent in February and had been partially certified.42 Thereafter, Alzugaray had additional experience and was entitled to another opportunity to complete his certification. This op- portunity Respondent failed to afford him. I can only conclude that the refusal to test Alzugaray further and the failure to recall him to heliarc weld- ing or any other job until October 30 was dis- criminatory and because of Alzugaray's known union activities and sympathies. I so find. I further find that Alzugaray was refused, for discriminatory reasons, reinstatement to the same or equivalent job that he held prior to his discriminatory layoff on June 23 in violation of Section 8(a)(1). With regard to Francisco Cavuto, Nicolas Perez, Faustino Martinez, Esteban Perdomo, and Carlos Gonzales, I find that the General Counsel has not shown that their subsequent reinstatement was to jobs more onerous, inferior, or not substantially equivalent. As I have found, above, that with the exception of heliarc welding all other jobs were relatively unskilled and often interchanged. I am not persuaded that Respondent's failure to assign the above employees upon rehire to the same job that they held on June 23 was motivated by dis- criminatory reasons.43 Accordingly, I shall dismiss the General Counsel's allegations that the above employees with the exception of Alzugaray were additionally discriminated against by failure of Respondent to reinstate them to the same or sub- stantially equivalent jobs. F. Alleged Violations of Section 8(a)(1) In view of the factual and legal conclusions recited above, I find that Foreman Mataalii (1) un- lawfully interrogated and threatened Chavez on June 23, (2) unlawfully enlisted Hauser to engage in surveillance of Chavez on June 23, and (3) un- lawfully interrogated and threatened Hauser on or about June 28. I also find that Vincent Fontana unlawfully inter- 4' Resp Exh. I. i1 1 make the above finding with regard to Cavuto with distinct reserva- tions but 1 am convinced that despite his high quality of work he was filing a relatively routine job 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rogated Cavuto on June 23 and that Foreman Polk unlawfully interrogated Gonzales on June 23. Each of the above unlawful acts constitute inde- pendent violations of Section 8(a)(1) of the Act for which Respondent is accountable . I so find. Lloyd Haynes , in response to an advertisement placed by Respondent for heliarc welders, applied for such a position about August 1. Haynes was an experienced heliarc welder on aluminum and stain- less steel. He was interviewed by Fontana who read his application, asked him why he was terminated at his last place of employment, and then asked Haynes if he belonged to a union . Haynes after some delay because he was looking for a telephone number in the directory replied by asking if the plant was union . Fontana, according to Haynes, replied, "No, we intend to keep it that way." Fon- tana did not employ Haynes but told him that he would let him know when they needed more wel- ders. Haynes was never called by Respondent. Haynes, on cross-examination, stated that Fontana told him that they had just hired a welder. Fontana denied that he asked Haynes whether he belonged to a union . Fontana testified: My question to him was directed in a manner that I was asking him if he objected to belong- ing to a union , because at that time I had become aware of the fact that there was an at- tempt to get a union in the plant; and I told him that he might be asked to join it if you [sic] were to go to work here. On the basis of Fontana 's own testimony, I find a violation of Section 8(a)(1). Clearly this is an at- tempt to elicit the union preference of an applicant for employment. Under circumstances where a union organizational attempt is current and an em- ployer has displayed his opposition to such or- ganization , a question designed to elicit the union preferences of a job applicant must be considered unlawful and violative of Section 8(a)(1). I so find. The General Counsel alleged and Respondent ad- mitted that Respondent 's employees were given an extra coffeebreak on June 26 pursuant to an an- nouncement promulgated on June 24 . Respondent denied that the granting of this privilege was designed to interfere with union organization. As it is admitted that the additional coffeebreak was first planned on June 23, it is apparent that the granting of this privilege, like the layoffs of June 23, was part of Respondent 's antiunion campaign . No other explanation was offered and I can conceive of no other purpose.44 Accordingly, I find a violation of Section 8(a)( 1) of the Act in this regard. Upon the foregoing findings of fact, and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. .. N L R B. v L rchange Parts Co., 375 U.S 405. 41 1 do not intend to imply a requirement that this aJdit,onal coffeebreak should be withdrawn 2. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By the layoff on June 23, 1967, of Rafael Al- zugaray, Francisco Cavuto, Guillermo Diaz, Carlos Gonzales, Robert Henson, Millard Kaiser, Faustino Martinez, Esteban Perdomo, Gonzalo Perez, Nicolas Perez, and Oscar Velasco, Respondent en- gaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 4. By granting an additional coffeebreak on June 26, 1967, Respondent engaged in conduct violative of Section 8(a)(1) of the Act.45 5. By coercively interrogating employees and an applicant for employment concerning their union activities, sympathies, or desires and by threatening employees with economic reprisal if the Union were selected as the representative of its em- ployees, Respondent engaged in conduct violative of Section 8(a)( 1) of the Act. 6. By failing to reinstate Rafael Alzugaray to his former or substantially equivalent job, Respondent has engaged in conduct violative of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 8. Allegations against Respondent not found herein to constitute violations of the Act are hereby dismissed. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with its opera- tions described in section I, above, have a close, in- timate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in and is continuing to engage in certain unfair labor practices, it is recommended that it be required to cease and desist therefrom and to take certain affir- mative action designed to effectuate the policies of the Act. As it has been found that Rafael Alzugaray, Fran- cisco Cavuto, Guillermo Diaz, Carlos Gonzales, Robert Henson , Millard Kaiser, Faustino Martinez, Esteban Perdomo, Gonzalo Perez, Nicolas Perez, and Oscar Velasco were discriminatorily laid off or terminated on June 23, 1967, it is recommended that Respondent offer them immediate and full reinstatement to their former or substantially equivalent jobs without prejudice to seniority or STARLITE MFG. CO. 81 other rights and privileges , and make each whole for any loss of earnings that they may have suffered by reason of Respondent's discrimination against them, by payment to the above-named employees of a sum of money equal to that which normally they would have received as wages from the date of their discriminatory separation until the day that Respondent reinstates them , less any net earnings in the interim period . Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 71616 Having found that Rafael Alzugaray has not been reinstated to his former or substantially equivalent job as a heliarc welder, it is recommended that Al- zugaray be given an opportunity to qualify as a cer- tified welder in Respondent's plant on Respon- dent's equipment and if he obtains the required cer- tifications he shall then be employed as a heliarc welder. The unfair labor practices found herein to have been engaged in by Respondent are of such a character and scope that they strike at one of the basic purposes the Act was designed to achieve, i.e., to afford employees freedom to engage in self- organization . It is recommended, therefore, that Respondent cease and desist from in any manner interfering with, restraining , or coercing employees in their guaranteed rights. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law , and pursuant to Section 10(c) of the Act, it is recommended that Respondent, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization of its employees, by laying off or discharging its employees or dis- criminating against them in any like manner in respect to their hire or tenure of employment, or condition of employment. (b) Coercively interrogating its employees with regard to their union preferences , activities, or desires; threatening employees with economic reprisal because of their suspected union preferences, activities, or desires; and promising or granting benefits to employees to induce them to refrain from engaging in activities leading to self-or- ganization. (c) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of rights guaranteed to them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, in conformity with the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Rafael Alzugaray an opportunity to acquire all required certifications as a heliarc welder on Respondent's equipment and premises and if he obtains such certifications to employ him as a heliarc welder. (b) Offer Guillermo Diaz and Gonzalo Perez im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and privileges, and make whole Rafael Alzugaray, Francisco Cavuto, Guiller- mo Diaz, Carlos Gonzales, Robert Henson, Millard Kaiser, Faustino Martinez, Esteban Perdomo, Gon- zalo Perez, Nicolas Perez, and Oscar Velasco for any loss of pay suffered by reason of Respondent's discrimination against them from June 23, 1967, to their date of reinstatement in the manner set forth in the section herein entitled "The Remedy"; and notify each if presently serving in the Armed Forces of the United States of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) 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 under the terms of this Recommended Order. (d) Post at its Harbor City, California, plant, co- pies of the attached notice marked "Appendix."47 Copies of said notice, on forms provided by the Re- gional Director for Region 31, after being duly signed by the Company's representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the receipt of this *i With regard to those employees who have been reinstated prior to the issuance of this Decision , it is required only that backpay in accordance with the above formula be paid to them from June 23, 1967, to the date of their reinstatement. 'r In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 354-126 O-LT - 73 - pt. 1 - 7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision, what steps have been taken to comply herewith.48 IT IS FURTHER RECOMMENDED that the complaint herein be dismissed as to any allegations of unlaw- ful conduct other than those found above. a" In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 31 , in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage you from member- ship in International Brotherhood of Boiler- makers, Iron Shipbuilders , Blacksmiths, For- gers and Helpers , AFL-CIO, or any other labor organization , by discharging, laying off, or dis- criminating against you in any like manner with respect to hire or tenure of employment or any term or condition of employment. WE WILL NOT question you or applicants for employment about your union membership, deires, or sympathies. WE WILL NOT threaten you with loss of jobs or give or promise you benefits in order to keep you from joining or helping the above- named Union or any other union. WE WILL offer to Guillermo Diaz and Gon- zalo Perez immediate and full reinstatement to their former or substantially equivalent jobs and pay them for any wages due them as a result of our discrimination. WE WILL give all the backpay due to Oscar Velasco from June 23, 1967, to August 14, 1967, and to Rafael Alzugaray , Francisco Cavuto, Guillermo Diaz. Carlos Gonzales, Robert Henson , Millard Kaiser, Faustino Mar- tinez, Esteban Perdomo, Gonzalo Perez, and Nicolas Perez, from June 23, 1967, to the date they were put back to work in our plant. WE WILL NOT in any other way interfere with your right: To organize yourselves; To form , join , or help unions; To bargain for your wages , hours, and working conditions as a group through representatives of your own choosing; To refuse to do any or all of these things except as such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, in conformity with the proviso to Section 8(a)(3) of the Act. STARLITE MANUFACTURING COMPANY (Employer) Dated By (Representative ) (Title) Note: We will notify the above-named em- ployees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 10th Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 688-5850.