Bru-Sand, Inc.

BRU-SAND, INC. Bru-Sand, Inc. and Amalgamated Clothing Workers of America, Local 694, AFL-CIO. Case 12-CA-5266 June 12, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 9, 1972, Trial Examiner Owsley Vose issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and additionally filed a supplement to its supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings," findings,2 and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Bru-Sand, Inc., Hialeah, Florida, its officers, agents, successors, and assigns shall take the action set forth in the Trial Examiner's recommended Order. i The Respondent specifically excepted to the denial, at all times, of its "Motion for an Order Requiring the Production of Documents and for the Right to Take Pre-Hearing Depositions " We hereby affirm Trial Examiner Arthur Leff's Order dated November 2, 1971, denying -said motion 2 The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 363 (C A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: This case, tried before me at Miami, Florida, on November 22-23, 1971, pursuant to charges filed on July 27 and September 9 and 28, 1971, and a complaint issued on September 30, 1971, presents the following questions: (1) whether the Respondent dis- i The General Counsel's unopposed motion to correct the record is hereby granted and is included at the back of the folder of General 431 charged Arnaldo Ortega and Margarita Gonzalez in violation of Section 8(a)(3) and (1) of the Act, and (2) whether the Respondent uttered threats or engaged in other conduct in violation of Section 8(a)(1) of the Act. Upon the entire record 1 and my observation of the witnesses I make the following: FINDINGS AND CONCLUSIONS 1. THE RESPONDENT'S BUSINESS The Respondent, a Florida corporation having a plant at Hialeah, Florida, performs cutting, sewing, and related operations on children's garments on a contract basis for Happy Fella, Inc., a New York corporation. During the year preceding the issuance of the complaint, the Respon- dent performed services valued at more than $500,000 for Happy Fella, Inc., which annually ships goods and materials in excess of $50,000 to and from the State of Florida. Upon these facts, I find, as the Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, Local 694, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Discharges and Acts of Interference, Restraint, and Coercion in Violation of Section 8(a)(1) and (3) of the Act. 1. Background : the commencement of the Union's organizational drive early in March 1971 Enrique Laureiro, a representative of the Union, com- menced calling upon the Respondent's employees at their homes early in March. Among those contacted was Arnaldo Ortega, the Respondent's cutter. Laureiro visited Ortega in his home after work on March 9. After Laureiro explained the benefits of affiliation with the Union, Ortega signed a card on which he designated the Union as his collective-bargaining representative. Later, Ortega assisted Laureiro in his organizing activities by giving him the names of several of his friends who might be interested in the Union and showing him where they lived. Among those Laureiro called upon at their homes was Conrado Rodriguez, the foreman of the Respondent's cutting room. Rodriguez informed Saul Smolker, the president and owner of the Respondent, of Laureiro's visit the next morning, as Rodriguez admitted. The date of Laureiro's visit to Rodriguez is not disclosed in the record. Counsel's exhibits as TX Exh I 197 NLRB No. 77 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Floorlady Felicia Morales' talk to the employees on March 29 and the threats allegedly made by Morales in the course of her talk Many of General Counsel's allegations of violations of Section 8(a)(1) of the Act are based upon threats allegedly made by Felicia Morales in the course of her talk and consequently it is necessary to scrutinize with extreme care the sharply conflicting testimony of the various witnesses concerning the content of Morales' talk on this occasion. Preliminarily it should be stated that at this time Felicia Morales was in charge of the Respondent's shirt depart- ment in which about one-fifth of the Respondent's approximately 110 employees worked. As President Smolk- er's testimony set forth in footnote 2 establishes, Felicia Morales associated very closely with Smolker, a fact which the record shows was well known to the employees.2 Shortly before work commenced on Monday morning, March 29, Morales, at Smolker's direction, assembled all the employees in the factory and talked to them in Spanish for about 5 minutes, according to Smolker's estimate. Smolker stood at Morales' side as she gave her talk. According to Smolker, he told Morales when he asked her to make the talk that "if anybody wants to join the union, let them. If they don't want to, let them make up their own minds ...." The instructions, Smolker testified, were given through the Respondent's bookkeeper, the only employee who could speak both Spanish and English.3 Ortega testified as follows concerning Morales' talk: A. She said, first of all, that she was pro company, and we have news, we have learned that the union is visiting the workers at their homes. Don't worry, that there will be more and better things for you here. The persons who signed the card, it will be like a knife to her throat, and she sent like that (indicating). TRIAL EXAMINER: She made a gesture of dragging her fingers under her chin. A. Yes, sir, as if it was a knife, and that is all I remember at this time. Three other witnesses for the General Counsel testified to the same effect and, in addition, they stated that Morales threatened the employees on this occasion that "if the union got in they would close down the factory" (witness Gonzalez), "if the union entered that the plant would be closed, and that at this time all of us would be thrown out in the street" (witness Pedraja), and "that the street was very bad and that is where they would throw us if the union came in" (witness Medina). Morales testified that she spoke for only 1 or 2 minutes and, in response to the question "what did you say to the employees," testified as follows: A few girls came and told me that the union had been visiting them and they gave me a couple of cards. I told them that was not my problem and then they told me, please, they felt content, happy, and why shouldn't I speak to them and ask them why did they want the union, because there we had many benefits, they paid us vacations, birthdays, and so they felt that they did 2 Smolker testified as follows "After being married for 26 years I called it quits Felicia is the girl I am living with " 3 The record shows that the employees, with a few exceptions, did not not need a union, and because they asked me I accepted and I told them. After further questioning concerning whether she had asked the employees "if they wanted a union," Morales replied that "the girls asked me because they were happy, that they wanted me to ask whether it was true or it was a lie," i.e., whether the employees wanted a union. Later on Morales could not recall telling the Board investigator that she had asked all of the employees " if it was true that they wanted a union." Morales interpolated at this point, "I told them that those who wanted to sign up for the union could sign up but that was not one of my problems." Morales denied making any threats in the course of her talk and further denied making any throat-slashing gesture with her fingers. The Respondent called Hidalesa Monge and several other employees who had been present at Morales' talk on March 29. Monge testified as follows: She said that they had received some cards and that she wanted information that if they want the union so' she wanted to know if we were happy, that why did we want the union, but those who wanted it could bung it in. That is all. Later Monge stated that Morales had said thatjoining the Union "was the will of the person who wanted to." Monge denied that Morales made any threats or any throat- slashing gesture with her fingers. The Respondent called three other witnesses who generally corroborated Morales' testimony about her talk, but not in any detail, and who uniformly brought out that Morales had stated regarding the Union that "we had complete freedom and we could choose" (witness Gaetano), that "each one was the owner of his own will to do what he wished" (witness Lopez), and that "we could do anything we wanted to, that we were all free" (witness Berta Rodriguez). All three witnesses testified that Morales had not made any threats or hostile gestures during the speech. The Respondent also proffered testimony to the same effect as the testimony of the four witnesses above set forth from seven additional witnesses who were present in the courtroom and ready to testify. I ruled that such additional testimony would be cumulative and rejected the proffered testimony. From the foregoing recital of the testimony of the witnesses for the General Counsel and for the Respondent concerning the alleged threats and hostile gesture made by Morales in the course of her talk to the employees, it is readily apparent that the versions of the witnesses for the respective parties are diametrically opposed. The determi- nation of where the truth lies is rendered more difficult by virtue of the fact that none of the witnesses for either party were disinterested. Three of the four witnesses for the General Counsel had been discharged by the Respondent at the time of the trial and the fourth was an ardent union supporter, having walked out and joined the picket line outside the Respondent's plant. All four witnesses called by the Respondent to corroborate Morales' version of her talk volunteered to testify and appeared so eager to give testimony favoring the Respondent and its owner, Smolk- speak or understand English and that Smolker's knowledge of Spanish was limited to a few words here and there BRU-SAND, INC. 433 er, that they cannot be regarded as disinterested witnesses. The demeanor of the General Counsel' s witnesses and the corroborating witnesses for the Respondent was not such as to give a clue as to which side was telling the truth; they all appeared to be equally truthful or untruthful, as far as I could tell. While quantitatively the Respondent's version has the edge, I do not regard this factor as requiring acceptance of the Respondent's version of the facts regarding the threats and the menacing gesture attributed to her by the General Counsel's witnesses . Nevertheless, in this situation, with the scales so closely in balance, I conclude that the General Counsel has not established by a preponderance of the evidence that Morales made the threats alleged in the complaint . Cf. Blue Flash Express, Inc, 109 NLRB 591 However, piecing together the testimony of the various witnesses, I conclude that Morales, in the course of her talk on March 29, stated that she had been approached by employees who had been solicited in their homes to sign union cards, told by these employees that they felt that they did not need a union , and requested by these employees to find out whether the employees as a whole wanted a union . Morales then inquired whether the employees wanted a union, and asked why they needed a union, pointing out the various benefits which the employees received, such as vacations and holidays on their birthdays. At some point in her talk, Morales stated that the employees were free to join the Union if they so desired. 3. The discharge of Arnaldo Ortega on April 5 Ortega was hired as a cutter in April or May 1970 and worked under Foreman Conrado Rodriguez in the cutting room . On January 1, 1971, Ortega was given a $25-a-week raise. On approximately January 20, Ortega severely cut himself at work, severing a tendon, and was unable to return to work until March 1. As found above, Ortega signed a union card on March 9 and thereafter assisted Union Representative Laureiro by suggesting to him employees who might be interested in the Union. After a company party on April 2, Ortega talked to his friend , Angelina Gonzalez, on the parking lot in front of the factory about the advantages of belonging to the Union. Ortega mentioned to her at this time that he "was in the union." Ortega reported for work as usual on the following Monday morning, April 5. The foreman of the cutting room, Conrado Rodriguez, came out of the office and the following ensued , according to Ortega's testimony: ... he took me to a table and he said that he could not give me any more work by order of Saul Smolker because I wanted to bring in the union inside the plant because of the accident I had with my finger. I asked him where Mr. Saul Smolker was or, as we call him, the old man . He told me he was in his office and I went there and when I entered I asked him in a word in English, "What is the matter for me?" And he answered me in Spanish and said that I belonged to the union and he spoke to me later in English, which I did not understand . He mentioned Pennsylvania and the union and he said to me in Spanish , "no more." He did not want me there any more . . . . He spoke to me in English and he made the sign toward his back and I interpreted it as if I had stabbed him in the back or gone against his will as if we had been friends before About the same time that Ortega was discharged on April 5, Floorlady Morales assembled the approximately 20 employees under her and told them that "we have just fired the head or the little head of the union." When Margarita Gonzalez asked who was involved , Morales replied Arnaldo Ortega. To the further question, put by another member of the group, "How do you know?" Morales replied that Foreman Rodriguez had told her. This finding is based upon the mutually corroborative testimony of Margarita Gonzalez and Maria Pedraja. It is not denied by Morales. Smolker testified that he told Ortega on the occasion of his discharge that "he could not work for me any more due to the fact that he was looking to sue Bru-Sand." Smolker also denied saying at the time of the discharge that he belonged to the Union. Rodriguez was not questioned about his conversation with Ortega just before his discharge ; but Rodriguez did answer in the negative to the question "Did you ever tell him that Mr. Smolker fired him because he was bringing the union in." In view of the undenied testimony of Margarita Gonzalez and Maria Pedraja about Floorlady Morales' statement to the employees in her department that same morning that "we have just fired the little head of the union " and my serious reservations about Smolker's credibility in general (as will be more fully discussed below), I credit Ortega's testimony quoted above concerning Rodriguez' and Smolker's con- versations with him at the time of his discharge. 4. Foreman Rodriguez' circulation of an antiunion petition about the middle of April As Foreman Rodriguez admitted , he conceived the idea of circulating among all the employees a petition stating that they did not want the Union . Accordingly, on or about April 14, Rodriguez, accompanied by Floorlady Morales, Angelina Gonzalez , Daisy Gaetano, and Hermin- do, who worked in the packing department, went from machine to machine soliciting signatures on the petition, which was written in Spanish . Rodriguez suggested that the employees sign and put their timecard numbers on the petition . Foreman Rodriguez, Angelina Gonzalez, and Daisy Gaetano brought the petition to Smolker after it was signed "for safekeeping." At the trial, Rodriguez explained as follows concerning the petition: The petition was an idea of mine and I did not like the way the employees in the factory were . being treated and the money that was being made there and there was not any need to bring in a union , and Mr. Saul had the satisfaction of knowing that all the employees were with him. It was an idea of mine, and so I called two or three girls and then I got the signatures to give them to Saul to show that no one was in agreement with the union. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5 The discharge of Margarita Gonzalez on ,July 21 Gonzalez was hired in January 1971 and worked under Floorlady Morales in the shirt department. On June 3, Gonzalez signed a union card at her home at the request of Union Representative Laureiro. Thereafter, she spoke with a few of her fellow workers during break periods in the factory concerning the benefits of unioniza- tion. In the latter half of June, Gonzalez and Morales got into an argument over the use of a ventilating fan in the course of which Morales called Gonzalez a prostitute. Gonzalez told Morales that "the one that was a prostitute was her." This is Gonzalez' undenied testimony. Gonzalez further testified without contradiction that this was the only time she ever called Morales a prostitute.4 As a result of this angry interchange Morales discharged Gonzalez. Upon being discharged, Gonzalez went to Mirta Medi- na, the floorlady in charge of the sportswear department, to act as interpreter in speaking to Smolker about her discharge. Smolker had Morales called to the office and ascertained through Medina that the discharge was attributable to the argument over the ventilating fan. Smolker, as Medina credibly testified, "got a little bit excited with Miss Felicia [Morales] because he told her there. was no reason, that why should she throw out an employee so good over a ventilator." Smolker asked Gonzalez and Morales to cooperate and go back to work. However, Morales insisted that if Gonzalez stayed she was going to leave. Smolker then transferred Gonzalez to the sportswear department under Medina. Medina, under whom Gonzalez worked for about 3 1/2 weeks, testified that Gonzalez was "a very good operator. She made good production and any work they gave her she would do." 5 On July 21 at 4 p.m., Floorlady Medina notified Gonzalez that Smolker wanted to speak to her in the office. According to Gonzalez, who was testifying in English at this point, the following then took place: He took me to his office and he said in English, Margarita, I am sorry. I no have work for you. Somebody call me and tell me you already in the union. I don't want any member of the union in my factory. I no want in the union in my factory," and then I said, "I 4 While Smolker testified at one point that Gonzalez "had a bad habit over there She was calling her [Morales] a prostitute for living with me " I do not believe Smolker's testimony was based on firsthand knowledge There is no other evidence that Gonzalez called Morales a prostitute on any other occasion 5 The only other evidence concerning Gonzalez' performance as an operator is Smolker's comparison of Gonzalez' asserted production while in the shirt department of 80 dozens of hem bottoms per day with the asserted production of 180 dozens by another operator in his employ at the time of the trial In view of the fact that Smolker countermanded Morales' discharge of Gonzalez from the shirt department and transferred her to the sportswear department notwithstanding her production record, I cannot take too seriously the comparative production figures mentioned by Smolker 6 There are inconsistencies between Smolker's testimony at the hearing concerning the timing and circumstances of the revolver incident and the facts previously stated in an affidavit given to a Board agent In his testimony, Smolker placed the revolver incident in January 1971, after the Company's Christmas party, at which time, according to Smolker, he had don't have union. I don't have union." I don't want a union. I am sorry. I am sorry. And then I said, "okay, give me my check. I no come back Friday, you know, so I won't have to come back Friday," and then he said go to Maggie, who was their secretary, and get your check. She asked me, "What is the matter?" "Smolker says I am in the union," and she asked me if it was true, and I said, "No," and then he referred to her and said that "You don't care. Take the check." Smolker was not asked to give his version of the discharge conversation. However, he denied ever discuss- ing with Gonzalez anything about the Union or that he had ever authorized anyone to say that Gonzalez was being discharged for union activity. For reasons more fully stated below I find Smolker's denials unconvincing and credit Gonzalez' testimony quoted above. . 6. The Respondent's contentions: conclusions a. The discharges Ortega-Smolker's explanations concerning the reasons for Ortega's discharge are many and vaned. At first Smolker testified that he told Ortega that he was discharged because he "was looking to sue Bru-Sand." Smolker testified that a few days before he terminated Ortega he received a letter from an attorney representing Ortega and decided at this time to let him finish out the week and then let him go. Smolker admittedly never discussed this potential lawsuit with Ortega. After giving the potential lawsuit as the reason for Ortega's discharge, Smolker then launched into a long discussion of Ortega's alleged shortcomings, including a fight between Ortega and Foreman Rodriguez during which Ortega menaced Rodri- guez with a revolver,6 and Ortega's alleged "habit" of dunking Smolker's scotch, taking Smolker's cigarettes, and leaving his work and "messing around" with two of the female employees. As indicated above, it developed that the revolver incident had occurred before Christmas 1970 and that Ortega had been forgiven by Smolker. The drinking incidents, which, incidentally are denied by Ortega, commenced even before the revolver incident, as did the "messing around" with the girls. Yet on January 1, 1971, Smolker gave Ortega a $25-a-week raise. When Smolker was asked on cross-examination by taken Ortega's revolver away from him and placed it in a drawer in his desk in the office The incident started , Smolker testified, when Ortega remonstrated with Rodriguez for Rodriguez' allegedly telling Ortega's wife about Ortega's "messing around" with two of the girls at the factory And in his testimony, Smolker stated that during the incident Ortega retrieved his revolver from the desk drawer and threatened Rodriguez with it In his affidavit Smolker stated that the incident started when Rodriguez reprimanded Ortega going "back to his old trick of fooling around." In his affidavit, Smolker further stated that Ortega ran to his car and got his gun This must have been the case because the parties now agree that the revolver incident occurred before the Christmas party at which Smolker testified he took Ortega's gun away from him and placed it in his desk drawer Smolker's affidavit further states that when Ortega came back from his car with the gun, "I took the gun away from him and fired him " In his testimony on direct examination, Smolker made no mention of the fact that he had discharged Ortega at the time of the gun incident and had immediately reinstated him Smolker's carelessness with the facts concern- ing the gun incident raises serious questions in my mind about his general reliability as a witness BRU-SAND, INC. counsel for the Charging Party "why in fact did you terminate Arnaldo Ortega on April 5th?" Smolker replied as follows: A. Because word got back to me that he was drinking my whiskey, taking my cigarettes and I felt I had enough of him because Conrado [Rodriguez] was telling me he was back into his old tricks again of fooling around with the women. Q. You did not fire him over this argument that he had with Conrado? A. No. He was given a secondary chance. It is to be noted that Smolker did not mention at this point the letter from Ortega's attorney about a possible lawsuit against the Respondent, which Smolker mentioned first in his direct testimony in giving the circumstances leading up to Ortega's discharge. Only after being reminded by counsel did Smolker mention this as a factor in Ortega's discharge. Smolker testified that he did not know that Ortega was a member of the Union at the time of his discharge. Later Smolker testified that he believed it was not until after Mrs. Gonzalez was discharged in July that he first found out about the Union. However, Floorlady Morales' talk to the employees makes it abundantly clear that Smolker was aware at least by March 29 of the organizing activities then in progress. Although Smolker testified at one point that he did not "care if the union came in," he later testified that when Tom Flavell, the head of the Union from New York came to see him, he, Smolker, "threw him out before he got into my factory." These inconsistencies and the inconsis- tencies between Smolker's testimony and his affidavit lead me to place little credence in Smolker's testimony unless it is corroborated by other credible evidence. Reviewing the circumstances of Ortega's discharge, it appears that Ortega signed a union card on March 9, early in the organizing drive, and assisted Union Representative Laureiro in the drive. On Friday, April 2, Ortega discussed with his friend, Angelina Gonzalez, the advantages of belonging to the Union and mentioned the fact of his membership in the Union. Angelina Gonzalez, it turned out, was opposed to the union movement, being one of the group who a week or two later circulated throughout the factory with Foreman Rodriguez with the antiunion petition. Early Monday morning following his disclosure to Gonzalez on Friday that he had joined the Union, Ortega was discharged and both Foreman Rodriguez and Smolk- er, who informed him of his discharge, attributed the action, in part at least, to his union membership„ as I have found. Almost simultaneously with the discharge, Floorla- dy Morales announced to the girls in her department that we have -fired the "little head of the union," as the uncontradicted testimony establishes. Smolker's opposition to having a union in the plant is seen in Floorlady Morales' speech in which she stressed that a union was not needed in the factory, in her comments about Ortega's discharge to the girls in her department about the time of his discharge, and in I The statements of Foreman Rodriguez and Smolker to Ortega at the time of his discharge attributing his discharge to his union membership or activities constituted independent acts of interference, restraint, and coercion, as alleged in pars 6(f) and (g) of the complaint However, I find 435 Foreman Rodriguez' circulation of an antiunion petition in the factory a week or two later. Smolker's explanations for Ortega's discharge not only were shifting, but they do not ring true when considered in the light of all the facts of the case. Ortega's alleged shortcomings as an employee had long been put up with by the Respondent. In fact, only 8 workweeks earlier Ortega had been given a substantial wage increase. Ortega's alleged shortcomings apparently became intolerable only after the Respondent was informed of the organizing activities then in progress. Upon all of the facts of the case, I conclude that Smolker at least suspected that Ortega was interested in the Union at the time of his discharge and that Smolker revived these stale complaints against Ortega in an effort to furnish a plausible explanation for Ortega's discharge. It follows therefore, that Ortega's discharge was violative of Section 8(a)(3) and (1) of the Act.7 Margarita Gonzalez-Smolker's testimony concerning,the reasons for Gonzalez' discharge is inconsistent and self- contradictory and consequently it is difficult to ascertain precisely what the Respondent's position is in this regard. At one point, when asked "What was the reason you discharged her?" Smolker testified as follows: Because I was closing the division [sportswear depart- ment]. I took her out of the shirt plant and put her into the other plant hoping to save her job but when I decided to close it she was part of that division. It is as simple as all that. In support of this explanation Smolker testified that he was losing substantial sums of money in the operation of his sportswear department and, finding that he could profita- bly subcontract out the work of this department, he completely discontinued the work of this department. However, at another point in his testimony, Smolker stated as follows: That night I got rid of her because of what I seen the way she was working in Mirta's [Medina's] department Smolker did not elaborate further on this at the trial. However, in an affidavit given to a Board investigator before the trial, Smolker stated that Gonzalez was "non- productive" and was "wasting too much time." The' record does not bear out Smolker's testimony concerning Gonzalez' asserted poor performance. As found above, Floorlady Medina, Gonzalez' supervisor in the sportswear department, testified that Gonzalez was "a very good operator" and a good producer. And Smolker, by rescinding Morales' discharge of Gonzalez just 3 or 4 weeks earlier, recognized that Gonzalez was an effective employee whose services should be utilized. Finally, near the end of his testimony, Smolker admitted that he could not truly answer the question whether Gonzalez was one of the better operators in the sportswear department or not, that all he was aware of was "the overall picture of the work coming out of this factory." Smolker abruptly discharged Gonzalez without warning and without consult- nothing in the record supporting the allegation of par 6 (g) of the complaint to the effect that Smolker created the impression of surveillance of an employee's union activities by his statement to Ortega at the time of his discharge, and this, aspect of this allegation , is hereby dismissed. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing Gonzalez' floorlady about the decision. There still remained 3 weeks' work to be done in the sportswear department at this time, as Smolker testified. There is no evidence that Smolker gave to Gonzalez at the time he discharged her either of the inconsistent explanations which he advanced at the trial as the reasons for her discharge. The only evidence concerning Smolker's conver- sation with Gonzalez at the time of her discharge is her testimony that he told her that someone had called him and told him that she was a member of the Union and that he did not want any union members to work for him. The facts discussed in connection with Ortega's discharge establish Smolker's opposition to having a union in the factory, as does his treatment of Ortega. The fact that Smolker gave contradictory and unsupport- able explanations for Gonzalez' discharge warrants the inference that he had another motive which he desired to conceal. As stated in Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9): If he [the Trial Examiner] finds that the stated motive 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 unlawful motive-at least where as in this case, the surrounding facts tend to reinforce that inference. In view of this and the other facts summarized above, I conclude that Gonzalez' testimony about Smolker's con- versation with her at the time he discharged her is entitled to credit and that his motive was, as her testimony indicates, to rid the factory of this known union member. Accordingly, Gonzalez' discharge was violative of Section 8(a)(3) and (1) of the Act.8 b. The alleged acts of interference, restraint, and coercion Paragraph 6(a) of the complaint alleges that Floorlady Morales' interrogation of employees as to whether they wanted a union during her talk on March 29 was violative of Section 8(a)(1) of the Act. In my opinion such questioning of employees in the course of a talk in which Morales stressed that there was no need for a union, when considered in the light of the surrounding circumstan- ces-the discharge of Ortega for antiunion reasons a week later and the circulation of the antiumon petition a week or two after that-reasonably can be said to have had a coercive impact and was therefore violative of Section 8(a)(1) of the Act. Paragraphs 6(b), (c), and (d) are based upon the threats allegedly made during the course of Floorlady Morales' talk on March 29. I have found that the General Counsel has failed to sustain the burden of proof with respect to these allegations of the complaint and they are hereby dismissed. ' Paragraph 6(e) of the complaint alleges that Floorlady Morales created the impression of surveillance of the employees' union activities by telling them during her March 29 talk that she had found out that they were signing union cards. I find nothing in the manner in which 8 Smolker's statement to Gonzalez in the course of the discharge conversation that he was discharging her because he did not want any Morales informed the employees that she was aware that they were being solicited in their homes to sign union cards which suggests that she gained this information through surveillance of their union activities . Accordingly, this allegation of the complaint is hereby dismissed. Foreman Rodriguez' action on or about April 14 in having an antiunion petition prepared and circulated in the factory interfered with, restrained, and coerced the Respondent's employees in the exercise of the rights guaranteed in Section 7 of the Act, as alleged in paragraph 6(h) of the complaint. CONCLUSIONS OF LAW 1. By discharging Arnaldo Ortega on April 5, 1971, and Margarita Gonzalez on July 21, 1971, because of their union membership or activities, the Respondent has discouraged membership in Amalgamated Clothing Work- ers of America, Local 694, AFL-CIO, by discrimination in regard to tenure of employment and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (l) of the Act. 2. By coercively questioning employees concerning their union sympathies, by stating to employees at the time of their termination that they were being discharged because of their union membership or activities, and by circulating an antiunion petition among the employees and soliciting their signatures thereon, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE ,REMEDY Having found that the Respondent has engaged in unfair labor practices, my recommended Order will direct that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent discharged Arnaldo Ortega and Margarita Gonzalez in violation of Section 8(a)(3) and (1) of the Act. To remedy this unlawful conduct my recommended Order will provide that the Respondent offer them immediate and full reinstatement to their respective former jobs or, if these jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges. My recommended Order will further direct that the Respondent make them whole for their losses resulting from the Respondent's discrimination against them by payment to them of the sum of money they would have earned from the date of their discharge until the date on which the Respondent offers them reinstatement, less their net interim earnings. Backpay shall be computed on a quarterly basis and shall include interest at 6 percent per annum, as provided in member of the Union in the factory also constituted an independent violation of Sec 8(aXI) of the Act, as alleged in par. 6(i) of the complaint. I BRU-SAND, INC. F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. 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: ORDERS The Respondent, Bru-Sand, Inc., Hialeah, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Clothing Workers of America, Local 694, AFL-CIO, or any other labor organization, by discharging or in any other manner discriminating against employees in regard to their hire or tenure of employment or any terms or conditions of employment. (b) Coercively questioning employees concerning their union sympathies, stating to employees at the time of their termination that they are being discharged because of their union membership or activities, preparing and circulating antiunion petitions among employees for their signatures, and in any other manner interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Arnaldo Ortega and Margarita Gonzalez reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered by reason of their discharge, in the manner set forth in the section of this decision entitled "The Remedy." (b) Notify Arnaldo Ortega and Margarita Gonzalez, 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 of 1948, 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, as well as all other records necessary to analyze and compute the amount of backpay due undet:r the terms of this recommended Order. (d) Post at its Hialeah, Florida, factory copies of the attached notice marked "Appendix." n) Copies of said 9 In the event no exceptions are filed to this recommended Order 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 10(c) of the Act and 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. 10 In the event that the Board's Order is enforced by a Judgment of a 437 notice, on forms provided by the Regional Director for Region 12 in both English and Spanish, after being duly signed by the Respondent's representative, shall be posted by the Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.ii APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT discharge or otherwise discriminate against employees because of their union activities. WE WILL NOT coercively question employees about their union sympathies. WE WILL NOT tell employees that they are being discharged because of their union membership or activities. WE WILL NOT circulate antiunion petitions among our employees for their signatures. WE WILL offer their jobs back to Arnaldo Ortega and Margarita Gonzalez, with backpay. WE WILL notify the above-mentioned employees, 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. Our employees are free to join Amalgamated Clothing Workers of America, Local 694, AFL-CIO, or any other union, and to engage in union or concerted activities for their mutual aid or protection. 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 " " In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 12. in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NUT in any manner interfere with , restrain, or coerce employees in the exercise of these rights. BRU-SAND, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Tele- phone 813-228-7227.