Pre-Cast Mfg. Co

PRE-CAST MFG. CO. 135 Pre-Cast Mfg. Co and John Anderson and Richard Ramirez and Eddie Lucero and Vivian Reyes and Frank Pena. Cases 28-CA-2436-1, 28-CA- 2436-2, 28-CA-2436-3, 28-CA-2436-4, and 28-CA-2436-5 November 7, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 28, 1972, Administrative Law Judge' Irving Rogosin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in opposition to the Respondent's exceptions. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that Respondent, Pre-Cast Mfg. Co., Phoenix, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IRVING RoGOSIN, Trial Examiner: The consolidated complaint, hereinafter referred to as the complaint, issued January 12, 1972, as amended at the outset of the hearing, i Designations herein are as follows: the General Counsel, unless otherwise noted, his representative at the hearing; Pre-Cast Mfg. Co.: Respondent, the Company or the Employer; Construction, Production and Maintenance Laborers Union, Local No 383: the Union; the individuals named as Charging Parties in the caption of the complaint, the Charging Party or Parties, as the context may require; the National Labor Relations Act, as amended (61 Stat 136, 73 Stat. 519, 29 U.S C. Sec. 151, et seg.), the Act; the National Labor Relations Board, the Board. The individual charges were filed by Anderson, Ramirez, and Lucero, in Cases 28-CA-2436-1, -2, -2, and -3, respectively, on October 12, 1971; by Reyes and Pena, in Cases 28-CA-2436-4 and -5, on October 18, 1971. All charges were duly served on Respondent z Although served with notice of all proceedings, Eddie Lucero did not alleges that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. Specifically, the complaint alleges that (1) since about October 11, 1971, Respondent, by its supervisors or agents, has (a) interrogated employees regarding their union and concerted activities; (b) announced that it did not intend to permit its employees to become unionized, irrespective of the number of employees desiring union representation; and (c) on about October 14, 1971, through a supervisor, interrogated employees regarding their activities during nonworking time and warned them against discussing a union during working or nonworking time, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act; (2) on October 11, 1971, discharged John Anderson and Richard Ramirez, and on October 12, Eddie Lucero; and, constructively discharged Frank Pena and Vivian Reyes, on or about October 14,1971, by assigning them more arduous and less agreeable work tasks, thereby causing them to terminate their employment with Respondent, because they had joined or assisted the labor organization or were suspected of sympathizing with the formation of a labor organization, or had engaged in other concerted activities, thereby violating Section 8(a)(3) of the Act.' Respondent's answer admits, with minor exceptions, the procedural and jurisdictional allegations of the complaint, but denies generally the remaining allegations, as well as the commission of any unfair labor practices. Simultane- ously with the filing of the answer, Respondent filed motions to sever the five consolidated cases, under Section 102.33, and to make more definite and certain, or, in the alternative, to strike, specified paragraphs of the com- plaint, under Section 102.15 of, the Board's Rules and Regulations. A memorandum in opposition to Respon- dent's motions was filed by counsel for the General Counsel and, upon order of the Regional Director, the motions were referred to a Trial Examiner for ruling. On February 4, 1972, Trial Examiner Louis S. Penfield issued an order denying each of said motions. Hearing was held before me from February 23 to February 29, 1972, both inclusive, at Phoenix, Arizona. All parties appeared and were represented by counsel, the Charging Parties appearing in pro per,2 were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence, relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. At the outset of the hearing, Respondent renewed its motions to sever and to make more definite and certain or, appear in person or by counsel. At the conclusion of the General Counsel's case, Respondent moved to dismiss the complaint as to him for lack of evidence of a prima facie case. The record shows that Lucero, classified as a laborer, one of the employees present during union discussions in the coffeeshop, was discharged the same day as Anderson and Ramirez. No evidence was offered, however, regarding the circumstances surrounding his discharge. The motion to dismiss was granted, subject to reopening, in the event he appeared before the close of the hearing. Lucero did not appear thereafter, and no request was made to reopen. Nevertheless, to prevent forfeiture of any rights he may have, in the event his failure to appear may have been due to unavoidable circumstances, the ruling is modified to provide that the dismissal is without prejudice. 200 NLRB No. 31 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the alternative, to strike. The motions were denied. When subsequently renewed, as were the motions to dismiss as to all Charging Parties, the motions were denied. Renewed, prior to the close of the hearing, ruling on the motions to dismiss was reserved. The rulings are disposed of in accordance with the findings and conclusions hereinafter made. Respondent argued orally on the record and counsel for the General Counsel responded. Pursuant to extensions of time duly granted, the General Counsel filed a brief on May 1, 1972; Respondent filed a brief, with proposed findings and conclusions attached, on April 28, 1972. Since Respondent's proposed findings of fact and conclusions are in narrative form, they have been disposed of by the findings and conclusions hereinafter made. Upon the entire record in the case, and based upon the appearance and demeanor of the witnesses, and the briefs of the parties, which have been carefully considered, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's answer admits, and it is hereby found that, at all times material herein, Pre- Cast Mfg. Co., Respondent herein, a corporation duly organized under the laws of the State of Arizona, with its principal office and place of business in Phoenix, Arizona, has been engaged in the manufacture of precast concrete and related industrial products. During the 12-month period preceding issuance of the complaint, Respondent manufactured, sold, and distribut- ed concrete and related products valued in excess of $100,000, of which products valued in excess of $100,000 were furnished to Arizona Public Service Company, among others, which furnishes annually services valued in excess of $50,000 outside the State of Arizona, where said company is located. At all times material herein, Arizona Public Service Company has been a corporation duly organized under the laws of the State of Arizona, maintaining its principal office and place of business in the city of Phoenix, and has been continuously engaged in the business of operating a public utility, including the production, distribution, and sale of electricity and natural gas. During the year preceding January 1971, Arizona Public Service Company sold and distributed products, the gross value of which exceeded $500,000, and during the same period said company provided goods and services, valued in excess of $50,000, in interstate commerce, directly to customers located in States of the United States other than the State of Arizona.3 It is, therefore, found, on the basis of the foregoing and upon the entire record, that, at all times material herein, 3 Although Respondent denied, for lack of sufficient knowledge, the original allegations of the complaint with respect to the Arizona Public Service Company, after the introduction of the formal exhibits, the General Counsel amended that allegation of the complaint in the manner recited above in the text. Respondent stipulated to the granting of this amendment, with the request that his responses to the remaining allegations be deemed applicable to the amendment as well. No evidence was offered to contradict or challenge the allegations in this amendment to the complaint. Official notice has been taken of the Board's decision in Arizona Public Service Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Construction, Production and Maintenance Laborers Union, Local No. 383, herein called the Union, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act .4 III. THE UNFAIR LABOR PRACTICES. A. The Issues 1. Whether Respondent, through Plant Superintendent John Tompkins, interrogated employees regarding their union and concerted activities; announced to its employees that Respondent did not intend to permit its employees to become unionized irrespective of the number of employees desiring union representation; and interrogated employees regarding their activities during nonworking time and warned them against discussing the Union either during working or nonworking time. 2. Whether Respondent discriminated in regard to the hire and tenure of employment of its employees to discourage membership in the Union by (a) discharging John Anderson and Richard Ramirez, on October 11, 1971, and Eddie Lucero, on October 12, 1971, (b) assigning more arduous and less agreeable work tasks to Frank Pena and Vivian Reyes between October 12 and 14, 1971, and failed and refused to reinstate said employees [in (a) and (b) ] because of their assistance to a labor organization, because they were suspected of sympathizing with the formation of a labor organization or because they had engaged in other concerted activities for the purpose of collective bargaining or mutual aid or protection; and (c) whether Richard Ramirez was, at the time of his discharge, a supervisor within the meaning of Section 2(11) of the Act. 3. Whether, by the foregoing conduct, Respondent interfered with, restrained, or coerced its employees in the exercise of rights guaranteed in Section 7, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. B. Introduction Respondent has been engaged in its present operations for 15 or 16 years, employing approximately 20 hourly paid production and maintenance employees at its plant in Phoenix. Its officers consist of Harry C. Tompkins, Sr., president, and Teresa C. Tompkins, his wife, secretary- treasurer and bookkeeper. Prior to August 3, 1971, Harry C. Tompkins, Jr., their son, was plant superintendent. On Company, 188 NLRB No. 1 (1971), asserting jurisdiction over that public utility. 4 Although Respondent denied, for lack of knowledge, the Union's status as a labor organization , there is ample evidence to support this finding. See also Kennedy v. Construction, Production and Maintenance Laborers' Union Local 383, AFL-CIO, 199 F.Supp 775 (D.C. Ariz), cited by the General Counsel, in which the union was found to be a labor organization PRE-CAST MFG. CO. 137 August 2, 1971, John W. Tompkins, another son, was appointed plant superintendent to succeed Harry C. Tompkins, Jr. Respondent's production and maintenance employees have never been represented by a labor organization. In connection with its operations, Respon- dent has occasion to perform installation work at various building sites. Respondent became a party to, and is still bound by, a Master or Basic Crafts Agreement, dated November 8, 1965, covering carpenters, teamsters, labor- ers, and finishers on work performed at the jobsite.5 There is no collective-bargaining agreement between Respondent and Local 383 covering production and maintenance employees working inside Respondent's plant. Respondent contributed to the Arizona Basic Crafts Health and Welfare and Pension Trust Fund and, during October 1971, contributed to this fund on behalf of employee Chavez, an hourly employee who worked in the plant, a member of Local Union No. 383, for 161 hours worked on an outside project. When John Tompkins became plant superintendent,6 on August 2, 1971, he instituted a series of disciplinary rules relating to absenteeism, among other subjects. The employ- ees regarded these as "grade school" or "school boy rules," which they bitterly resented. This, in part, led to discussions about the need for union representation. Discussions were held at the plant, both during working and nonworking time, and at a local coffeeshop, as well as at a bar, frequented by the employees. The discussions occurred on nearly every occasion when groups of employees, including the discri- minatees who were prominently identified as union sympathizers, assembled. At some of these discussions, which took place at the bar, Felix Padilla, Respondent's foreman, an admitted supervisor, was close by and in a position to overhear the conversations. Late in August or early September, Anderson went to the Union, where he obtained information about initiation fees, dues, and other aspects of union membership. Anderson relayed the information to the employees in discussions at the bar. In one discussion, Padilla, who was present, made the statement, according to Anderson's credited testimony, that the men would "never get the Union in because John (Tompkins) just wouldn't let it in. He would just fire us all before he let it go, that he would just shut the gate." About a week before his discharge on October 14, discussed hereinafter, Anderson again visited the Union and discussed the matter of organizing Respon- dent's employees with Assistant Business Representative and Dispatcher Hatfield. Hatfield referred him to another union representative who advised Anderson how to proceed. Thereafter, Anderson circulated a handwritten "petition" among employees whom he had not previously canvassed about the Union to determine the extent of 5 This finding is based upon the undisputed and credited testimony of James Hatfield, assistant business representative of Local 383. The fact that Respondent agreed, out of apparent necessity, to be bound by the Master Agreement, insofar as it applied to outside work performed at thejobsite by its plant employees, does not establish, as Respondent appears to suggest, that it was not opposed to the unionization of those employees with regard to their production work. According to the undisputed testimony of Anderson and Ramirez, they had each worked on jobsites away from the plant but were paid at the production rate. Anderson further testified that employee interest. On Friday, October 8, Anderson again called at union headquarters to obtain authorization cards for distribution among the employees. Arriving late, he was told by a union agent to pick them up the following Monday. As will presently appear, Anderson was dis- charged on Monday, before he had an opportunity to obtain the cards. C. Discrimination in Regard to Hire and Tenure of Employment; Interference, Restraint, and Coercion 1. The discharges (a) John E. Anderson John E. Anderson was hired by Respondent as a carpenter in November 1970, at an hourly rate of $2.50. At the time of his discharge he was earning $3.50 an hour, having received four raises, in increments of 25 cents an hour, the last effective May 2, 1971. He was hired by Harry Tompkins, Sr., and worked under Foreman Padilla's direct supervision, producing various products manufactured at the plant. For a period of time, while Harry Tompkins, Jr., was still plant superintendent, Anderson served as a leadman. As previously noted, he led discussions with employees regarding union affiliation, both at the plant and the coffeeshop, and later made the initial contact with the Union. During his discussion with Business Represent- ative Hatfield, he informed him that about 75 percent of the employees were prepared to sign a "petition," and asked his advice about how to proceed. Next day, Anderson circulated the petition, which stated that the employees wished to be represented by Local 383. This activity occurred for the most part during the lunch period or when he encountered employees in the plant areas. There were some 15 or 20 hourly employees working there at the time. Anderson submitted the petition for signature to some four employees, whom he identified at the hearing by their given names or nicknames. After work, Anderson called the Union, and notified the business agent that the employees were ready, and that he would call for the authorization cards. He was told that it would be too late that evening but to call for the cards the following Monday after work. He was discharged that Monday. On Monday morning, before work, Anderson and a number of the employees, including the other alleged discriminatees, were at the coffeeshop as usual. Anderson told them that he intended to procure the union cards that night. He later mentioned this to employees whom he encountered at the plant. Anderson, however, was dis- charged later that day and did not call for the cards. Sometime before lunch, Anderson encountered Ramirez near the drinking fountain, and told him that he was getting the union cards that night and would bring them when he was hired by Harry Tompkins, Jr, he was asked if he belonged to the Union. He told him that he had a withdrawal card. Later, John Tompkins told him that the Company had a working arrangement under which production employees working outside the plant were required to be umon members, and that whenever ' he had occasion to work at a jobsite, installing concrete boxes, he was to say that he was a umon member. 5 Unless otherwise indicated, all references to Tompkins hereinafter apply to John Tompkins, plant superintendent. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into the plant next day, remarking, "We [are] going to push the Union in." Anderson asked Ramirez whether he would sign a card, and the latter told him that he would. When Anderson warned him that it might be necessary to go out on strike for as long as 6 months and asked him whether he was prepared to do that, Ramirez told him that he was. During this conversation, Anderson observed Richard Carter, another employee, in the immediate vicinity, a few feet away.? When the conversation ended, Carter went into Tompkins' office. Anderson started toward Tompkins Sr.'s office to look for some tools. Anderson was in that office for several minutes. When he left, he saw Carter and Tompkins Jr. leaving the latter's office together. It is reasonable to infer that Carter overheard the conversation between Anderson and Ramirez, and promptly reported it to Tompkins. This inference is supported by Padilla's admission at the hearing that he teamed of the union organizational activity, and Anderson's role in circulating the petition, from Carter on October 11, and by Tompkins' admission that Padilla told him the same day that Anderson had been trying to get a petition signed. Sometime that day, Anderson conveyed a message to Foreman Padilla that Lucero would not be in. During this discussion, or in another the same day, Anderson told Padilla about his intentions regarding the Union. On the basis of this evidence, and other evidence presently discussed, there can be no' doubt that Respon- dent was aware of the union activity in the plant, and of Anderson's role therein, prior to the time he was dis- charged.' Monday was not a regular payday, but, at about 10:30 that morning, Anderson observed Tompkins getting out of his truck with a "handful of checks in his hand," an unusual occurrence according to Anderson. Soon after lunch, Anderson learned from Padilla that Ramirez had been discharged. Anderson was also told by Carter that Lucero, too, was being discharged. At about 2 or 2:30, as Tompkins was passing Anderson, he asked him if he was one of the employees who had signed a union authorization card. Anderson replied that he not only intended to sign a card, but that he also planned to distribute cards to the employees. Tompkins remarked, "We'll see about that," "See you later," or something to that effect. At about 3 or 3:30 that afternoon, when Anderson walked into Tompkins' office, the latter asked him for his tools. Tompkins then told Anderson that he would have to lay him off because work was becoming slack and handed him two checks, one for his previous week's pay and the other for that day's work. After examining the checks, Anderson asked Tompkins the reason for his layoff. Tompkins repeated what he had said about work being slack. Anderson then asked him why he did not follow seniority and lay off the more recently hired employees. Tompkins replied that Anderson was earning more than 7 Carter was hired on January 20, 1971, at $2.50 an hour. On June 7, 1971, his rate of pay was $3.75 an hour. Although classified as a laborer during the entire period of his employment, the record indicates that he drove a forklift truck, performed finishing work and inspections and kept timecards on the employees. On January 31, 1972, he was placed on salary, at $162 a week. 8 In view of this more direct evidence of company knowledge of union most of the newer employees, and that it would be more economical to retain them because the Company would have the use of two employees for the wages it had been paying him. Anderson became excited, and chided Tomp- kins, asking if he was that "chicken-shit about having the Union come into the place." Unabashed, Tompkins allowed that he was, repeating the epithet, and declared that "there was never going to be a union in the shop and if anybody tried, all they had to do was get rid of the top men and that-get rid of them and it wouldn't come in." As he started to leave, Anderson remarked that there must be something he could do to "get even with [Tompkins]." Tompkins retorted, "What are you going to do, come back like Rocco and his little friends did?-9 Anderson replied that he was not that low as to return at night and "destroy the plant just because one man don't know how to handle people," and left. Anderson was returning to his car, when he remembered that he had not inquired about his vacation pay and unemployment compensation. He started back to the office, and, encountering Tompkins outside, asked him about his vacation check. Tompkins rebuffed him and remarked sarcastically that he, Tompkins, was "too chicken-shit" to give him vacation pay. Anderson then asked Tompkins what he intended to state as the reason for discharge on his unemployment compensation application so that their reasons would agree. Tompkins replied, "I don't care what you put down on there, you aren't going to be able to draw unemployment anyway, I'll stop it any way I can." Anderson rejoined, "You really must hate people that try to make a decent living by putting a union in a company like this." Vowing that the "union [would] never get in," Tompkins irately ordered him off the premises, and told him that if he was not gone in 2 seconds, he would have him forcibly ejected. Tompkins did not categorically deny the statements attributed to him by Anderson. Instead, he made a blanket denial that he ever told any of the employees that he would not permit them to become unionized, denied interrogating them, especially the discriminatees, concerning their union activities during working or nonworking time between October 11 and 15, or telling them that they were not to discuss the Union, at any time. Finally, he summarily denied that he had ever interfered with, restrained, or coerced any of the employees in regard to their organiza- tional activities. Under these circumstances, and in view of the positive and credible testimony of the witnesses imputing such statements to him, it is found that Tompkins' blanket denials are insufficient to overcome the more positive testimony of these witnesses. It is, therefore, found that, by Tompkins' interrogation of, and statements to, Anderson, detailed above, Respon- dent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, thereby violating Section 8(a)(1) of the Act. Among the rules instituted by Tompkins after he became activity prior to the discharges of the alleged discnminatees, it is unnecessary to rely on the so-called "small plant doctrine" advanced by the General Counsel. 9 Reference was apparently to some Spanish-American employees who had allegedly engaged in malicious mischief at the plant after having been discharged. PRE-CAST MFG. CO. 139 plant superintendent, in August 1971, was one relating to absenteeism. Under that rule, an employee who failed to report for work without notifying Respondent, and without a satisfactory excuse, would be warned for the first infraction, laid off for 1 week without pay, for the second, and terminated, after the third. It is undisputed that Anderson was absent on a number of occasions, some due to illness or personal business, and that, in some instances, he failed to notify Respondent or furnish a satisfactory excuse. According to Respondent, Tompkins and Padilla dis- cussed the possibility of terminating Anderson during the week of August 11. Anderson was absent from work on August 26, 27, 31, September 1, 2, 3, 1971, presumably without notifying Respondent or furnishing a satisfactory excuse. Anderson was laid off, without pay, for the week between September 5 and 11, 1971.10 Respondent contends that Anderson's attitude and work performance deteriorated after this disciplinary layoff. Anderson candidly admitted that his attitude changed but denied that this was because of the layoff, attributing it, instead, to Tompkins' relations with the employees. Anderson denied that he had received any complaints about his work and testified that Foreman Padilla had never criticized him unfavorably about his work from the time of his disciplinary layoff until the time of his subsequent discharge. It will be recalled that, during part of the time, prior to his layoff Anderson had been performing the work of a leadman, and it is doubtful whether he would have been assigned to this job if his work had been unsatisfactory. According to Respondent, after a discussion with Padilla, Tompkins decided to terminate Anderson on Friday, October 8, 1971. Because Tompkins was away from the plant that day, Anderson was not terminated then but was discharged the following Monday, October 11, under the circumstances previously related. Respondent maintains that Anderson was terminated for the following reasons: (1) unsatisfactory attitude; (2) questioning the foreman's authority; (3) slowing down and telling other employees, to slow down and not work so hard; and (4) garnishment of his wages. (1) Although Respondent offered no specifics regarding Anderson's change in attitude, it is evident that, like other- employees, he was disgruntled over the stringent rules which Tompkins had introduced, and this undoubtedly was reflected in his attitude. Be that as it may, there is no evidence that Respondent called him to task on this score. Tompkins maintained, however, that Anderson's pro- duction declined following his return from his layoff but produced no records to support this contention, basing his conclusion on Anderson's work on two projects without furnishing details. (2) As to questioning the foreman's authority, Anderson conceded that about 2 weeks before his discharge, when the men were under pressure to get out a special order, he did question Padilla's judgment in that regard. (3) Anderson also conceded that he had told the men to slow down on occasions because he felt that they were being required to work too hard. (4) With regard to the garnishments of Anderson's wages, the record discloses that Respondent had received three garnishments during the second or third quarter of 1971. As to one of these, Anderson made arrangements to take care of it. As to the remaining two, Anderson disclaimed liability on one, and with regard to the other, after investigation by Respondent's counsel, and ascertain- ing that it involved a written contract with a bank, Respondent obtained a copy, which it kept, without discussing the matter further with Anderson. It may be noted, in passing, that the notation on the reverse side of Anderson's employment application states that he was "laid off" rather than discharged on October 11, 1971. Lest it be assumed that Respondent was merely using the term "laid off" interchangeably with that of discharge, it is significant that with regard to similar entries on the employment applications of Ramirez and Lucero on the same day the action taken is stated as "fired." The use of the term "laid off," in Anderson's case, is consistent with his testimony that Tompkins told him at the time of his exit interview that he was being terminated because work was slack. What is significant, however, is the fact that, despite Respondent's contention that in taking action it considered all of the grounds for discharge advanced at the hearing, none of these grounds were mentioned to Anderson when he was discharged. Instead, he was merely told that he was being terminated because work was slack. It may be taken as datum that an employer may discharge an employee for any reason, or, indeed, for no reason at all, provided only that he is not motivated by reasons proscribed by the Act; i.e., to encourage or discourage membership in a labor organization. It is equally well established that the burden is on the General Counsel to prove discrimination rather than on the employer to establish justification for the discharge. Once the General Counsel has established a prima facie case of discrimination, however, the burden shifts to Respondent to establish that the discharge was nondiscriminatory. Even if it be assumed that the conduct of which Respondent complained may have warranted discharge, the crucial question remains whether the reasons advanced, or any of them, were, in fact, the real reasons or whether Respondent utilized those reasons as a pretext for eliminating a union protagonist, where the employer is opposed to the union sympathies and activities of its employees. Knowledge of the employee's union or concert- ed activities or, at the very least, suspicion that he was engaged in those activities, is, of course, indispensable in establishing discrimination. There is abundant evidence here that Respondent had actual knowledge of Anderson's activities, as shown by Plant Superintendent Tompkins' admission based on information he received from Foreman Padilla, as well as the circumstantial evidence that Carter undoubtedly reported this to Tompkins, immediately after 10 Entrees on the reverse side of his employment application, purportedly and September 11, a Saturday. There was no showing whether those were representing a compilation of his absences , include the following notation- regular workdays. According to these notations , Anderson did not work on "9/5 - 9/11 sent home without pay (Absent Without Notice)." According to September 13 or 14 either. the calendar, September 5, 1971, was a Sunday, September 6, Labor Day, 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overhearing a conversation between Anderson and Rami- rez. It is, therefore, found that Respondent was aware of the union activities of its employees, and Anderson's participation therein, prior to terminating his employment on October 11, 1971. The acts of interference, restraint, and coercion in which Respondent, through Plant Superintendent Tompkins and Foreman Padilla, engaged establish beyond question its opposition to the self-organizational rights of its employ- ees. In view of Anderson's prominent role in undertaking to organize the employees; Respondent's antipathy, if not outright hostility, to the unionization of its employees; its blatant animosity toward Anderson, as evinced by Tomp- kins' remarks to Anderson during his exit interview; its failure to notify Anderson of complaints regarding his work attitude and alleged derelictions, at any time prior to his discharge, or to warn him that he faced the risk of discharge for those reasons; and Tompkins' statement to Anderson that he was being laid off because work was slack, it is found that, in discharging Anderson on October 11, Respondent was motivated, in whole or in part, by his union or concerted activities, and by a purpose to discourage membership in a labor organization, rather than by the reasons advanced by it at the hearing, which were utilized as a pretext to justify his discharge. It is, therefore, found that by the termination of Anderson, under the circumstances detailed, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and by such conduct and by Tompkins' interrogation of and statements to Anderson, as well as those of Padilla, previously detailed, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed under the Act, in violation of Section 8(a)(1). (b) Richard Ramirez Richard Ramirez was hired as a cement finisher on about July 17, 1969, at a starting rate of $2.25 an hour. As of the date of his discharge, on October 11, he was receiving $4.15 an hour, having received increases in increments of 25 cents, except for one raise of 15 cents. With one exception, he was never criticized unfavorably about his work or deportment." Respondent contends, however, that at the time of his discharge, Ramirez was a supervisor within the meaning of the Act, hence excluded from its protection. The General Counsel, on the other hand, contends that Ramirez was, at most, a leadman, whose "natural alignment" was with rank-and-file employees rather than with management. It is undisputed that Ramirez did not have authority to hire, transfer, suspend, lay off, recall, or possess any of the other indicia of supervisory authority, as defined in Section 2(11), with the possible exception of authority "responsibly to direct" employees with whom he worked. According to Respondent, Ramirez was listed on its payroll records, as early as September 28, 1970, as a foreman at the hourly rate of $3.65. The record establishes, however, that Padilla was the only foreman in Respondent's employ, vested with any significant supervisory authority. Nevertheless, Padilla testified, while Harry Tompkins, Jr., was plant superin- tendent he summoned Padilla and Ramirez to his office and told them either that Ramirez would be Padilla's assistant or that he would be assistant foreman. Tompkins said that Ramirez would "be in charge of making the boxes and the lids" and that he wanted "the place cleaned up or straightened out" so that it would function more efficiently and productively. According to Padilla, he and Ramirez met with the plant superintendent thereafter two or three times a week before or after working hours , but after a time Ramirez was no longer included in these meetings. Padilla testified that Ramirez' status remained un- changed after John Tompkins became plant superintend- ent, although Tompkins told him that he did not want anyone except Padilla coming to his office . Padilla relayed the word to the employees and told them that if they had any problem or needed anything, to report it to him, and he would take it up with the plant superintendent. In a pretrial affidavit to a Board agent, dated October 13, 1971, Ramirez stated, "My job was that of a Foreman. I was in charge of the Meter Box Department." It is evident from his overall testimony, however, that Ramirez did not regard himself as a foreman, in the statutory sense, and did not consider that he possessed any actual supervisory authority. Although at times Ramirez had charge of as many as eight men, five on the day of his discharge, his duties in regard to them consisted primarily of instructing them in their tasks. He regulated the concrete which they mixed, kept their timecards (until relieved of this chore by Carter), and maintained a record of material used and the number of boxes produced. The meter boxes, made of concrete, were produced on a machine referred to as the "red machine," which had been designed and built by former Plant Superintendent Harry Tompkins, Jr., and used initially on an experimental basis. The machine was regarded as "dangerous" even after it was put into regular operation and had caused at least one serious accident. Ramirez was the only person qualified to operate this machine, except for one other employee who operated it on a regular basis. Consequently, Ramirez frequently operated the machine when the regular operator was absent or required relief. Under normal operations, three employees were assigned to work in the meter box department, and two employees in the meter lid department. From time to time additional employees were assigned to those departments , as needed, the highest total number of employees in any one day amounting to eight. Ramirez had no authority to assign additional employees and was obliged to make requests for such help to Padilla. Padilla, rather than Ramirez, scheduled the work on a daily basis, decided which work was to be given priority, and reassigned members of Ramirez' crew to other tasks, without consulting with him. When changes were required in the size of meter boxes 11 The exception involved an incident when Tompkins and Padilla called Whether Respondent accepted this explanation, it is clear that it did not his attention to some meter box lids which did not fit properly because the reprimand or discipline him on this account. In any event, there is no box was warped One of the meter boxes on which Ramirez had worked had contention that Respondent relied on this incident as a ground for his been made without reinforcing steel rods . Ramirez maintained, however, discharge. that some of the boxes had been manufactured before Ramirez was hired. PRE-CAST MFG. CO. being produced, Padilla issued the necessary orders to Ramirez. Ramirez instructed employees in the operation of the "red" machine and operated it until an employee could be trained to take over. Ramirez worked frequently with the crew, sometimes operating the machine, and at other times assisting in the removal and storing of the meter boxes. Whenever he lacked a full crew, Ramirez filled in, performing manual labor and relieving members of the crew when necessary. He also performed manual labor even when the crew was fully manned. Ramirez operated the "red" machine for a full day on an average of 3 or 4 days a month. Ramirez was paid at an hourly rate, punched a timeclock, was paid time-and-a-half for overtime, and received no pay when absent from work. As has been noted, his rate of pay at the time of his discharge was $4.15 an hour, second highest to Padilla's. While the wage scale for the classification of laborer ranged between $1.60 and $2.75 an hour, Tompkins conceded that he had hired laborers for as much as $4 an hour. Under these circumstances, the differential in Ramirez' hourly rate, standing alone, is not sufficient to establish his status as a supervisor. Ramirez had been employed for about 2 years, and his rate of pay was commensurate with that of other employees considering his additional duties. Effective October 1, 1970, Respondent instituted a health and life insurance program for all its employees. Under this program, rank-and-file employees became entitled to a $2,000 life insurance policy after 30 days of employment. Padilla and Ramirez, however, were each insured in the amount of $5,000, supposedly because they were foremen. This is not necessarily determinative of Ramirez' status. The larger policy could have been in recognition of the additional duties performed by him. Teresa C. Tompkins, Respondent's secretary-treasurer and bookkeeper, testified on cross-examination that, at the time of the hearing, only Padilla was covered by a $5,000 policy. This does not necessarily establish, however, as the General Counsel appears to contend, that because Padilla was the only supervisor with a $5,000 policy after Ramirez' discharge, Respondent did not replace him with a foreman or leadman, leading to the inference that Respondent had not regarded him as a supervisor. An evaluation of all the relevant factors indicates that, although Ramirez instructed employees and directed them in their work tasks, transmitted orders, instructed or corrected other employees or set up jobs, and even assigned employees to various tasks, these factors alone do not establish his supervisory status as defined in the Act. Once employees were trained, no special skill was required, and whatever instructions or directions Ramirez gave them were of a merely routine nature, not requiring the use of independent judgment, which was vested in Foreman Padilla under supervision of the plant superintendent. Ramirez' employee status was more nearly akin to that of a leadman or "straw boss" rather than a supervisor. It is, therefore, found, on the basis of the foregoing and upon the entire record, that Ramirez was not at the time of 141 his discharge a supervisor within the meaning of Section 2(11) of the Act, so as to deprive him of its protection. As has already been seen from Anderson's testimony, corroborated by Ramirez, the two men discussed the Union on the morning of the day of their discharges, in a conversation obviously overheard by Carter and undoubt- edly reported by him to Tompkins. Foreman Padilla himself acknowledged that Carter told him of Anderson's union activities at about 10 o'clock that morning, some 2 to 3 hours before Ramirez' discharge, which, in turn, occurred 2 to 3 hours before Anderson's discharge. During their conversation, Anderson asked Ramirez to discuss the Union with the Spanish-American employees who did not speak English and to solicit their affiliation. Ramirez also discussed the Union with Frank Pena, another of the alleged discriminatees, during working time earlier that day. According to Ramirez, Pena expressed the hope that the employees could "get the union in" because he was getting tired of the way things were going and "the way they were pushing him." Ramirez counseled Pena to "take it easy" and perhaps "things [would] shape up." Ramirez testified that, although he did not frequent the bar, which the others did, he was there the Wednesday preceding the week of his discharge. He talked to Pena at the bar that morning, and again during the lunch period. Among those Ramirez identified at his table in the bar, in addition to Pena, were Reyes, Oscar Garcia, and Salvadore Hernandez. Seated at a nearby table were Owen Tucker, Lucero, and another employee whom he could identify only as Greg. On October 11, as Ramirez was returning from lunch and about to start work, Tompkins approached him and asked whether he had any of his own tools. Ramirez said he did not. Thereupon, Tompkins told him that he wanted to talk to him, and instructed him to report to his office. When Ramirez arrived there, Tompkins took a checkbook out of his drawer, tore out two checks, and told him, "Here's your check for last week and the one for today, Monday." Ramirez responded, "Now that you have given me the checks, explain to me why you are firing me." Tompkins told him that he had seen him "talking to the truck drivers, standing around, and had seen him talking to Anderson and Pena on other occasions." Ramirez shot back that he could tell Tompkins why he was firing him, and that the reason was that he did not fawn on him,12 "like a lot of clowns around there did," and "didn't go around squealing on the rest of the guys again, like some clowns did around there," venturing that Tompkins "didn't have enough money to pay me to be a squealer." Ramirez also commented that Tompkins' "new rules are going to put you down." Tompkins retorted, "Well, a lot of the guys don't think I know what I am doing around here, but I feel I am doing the right thing in running this yard." Handing him his paychecks, Tompkins told him that he had about "two minutes to get out of this yard," and that he did not "ever want to see [him] here again." Pointing to Tompkins, Ramirez told him not to "push" him. Tompkins denied that he was "pushing" him, and rose from his chair. Ramirez continued, "Don't even let it cross your mind." Tompkins resumed his chair, and gave Ramirez his checks. 12 Actually Ramirez used a vulgar epithet instead of this euphemism. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As he took the checks, and turned to leave, Ramirez mumbled something to the effect that Tompkins had not heard the last of it. Ramirez rejoined one of the employees, picked up his safety glasses and went back to the welding department. There he spoke to Foreman Padilla and Carter, who was also present, and told Padilla that he had just been discharged. Admittedly surprised, Padilla repeat- ed, "They fired you[?]" Ramirez confirmed it, adding that he had already told Tompkins the real reason for his discharge, and repeated what he had said to Tompkins, using the same vulgarism. With that, Ramirez drove off in his car. According to Tompkins, he had discussed Ramirez' work with Foreman Padilla about 2 weeks before the discharge. Tompkins maintained that his dissatisfaction with Ramirez had stemmed from the fact that boxes were not being produced in accordance with Tompkins' high standards. Tompkins asked Padilla if he thought Ramirez was "getting the job done." When Padilla expressed a negative reaction, Tompkins asked him whether he thought they ought to get rid of Ramirez. It was agreed that Respondent would replace Ramirez as soon as it was most convenient. Tompkins further testified that he had talked to both Ramirez and Padilla about Ramirez' tendency to wander away from his work area. According to Tompkins, he had discussed this with Padilla some 2 weeks before the discharge, and with Ramirez, about a week before his discharge.13 Tompkins conceded that he discharged Ramirez on October 11, after he observed him talking to a ready-mix operator earlier that day. For his part, Ramirez admitted talking to the ready-mix truckdriver while the cement was being poured from the truck. Ramirez had been working at the machine about 25 or 30 feet away from the truck when the truckdriver went over to Ramirez, and engaged him in conversation. According to Ramirez, he had never been reproached or reprimanded by any supervisor for talking to the ready-mix truckdrivers. Nor, for that matter, did Tompkins or Padilla reprimand him for talking to the truckdriver on this occasion. Despite his initial testimony regarding his discussion with Ramirez a week before his discharge, about his wandering away from his work area, Tompkins later conceded that he may have talked about this only to Padilla. Padilla, however, testified that he spoke to Ramirez only about the failure of certain meter boxes to meet Tompkins' specifications. Furthermore, Tompkins conceded that Ramirez was the only employee ever fired for "talking" on the job or for "wandering away" from his work station. It is significant that, despite Tompkins' testimony that he and Padilla had determined on Ramirez' discharge 2 weeks before the action was actually taken, Ramirez was not warned in regard to his alleged derelictions or told of his impending discharge. The reason for the delay, according to Tompkins, was that he did not have a replacement for 13 During the week of August 2, Tompkins had offered to take Ramirez off the timeclock and place him on salary, in an apparent effort to upgrade him Ramirez declined. It does not seem reasonable that Tompkins would have made this offer if he were dissatisfied with Ramirez' work. It is significant that the sole reason for discharge noted on the back of his employment application is "fired for talking to ready mix operator." Ramirez, and it would have been necessary for Padilla to take over Ramirez' duties in the pull-box meter depart- ment. The fact is, however, that Respondent did not have a replacement for, and did not actually replace, Ramirez after his discharge, and that Padilla assumed Ramirez' duties in addition to his own after the discharge. While denying that he had ever been reprimanded for talking to the truckdriver, Ramirez conceded that Tomp- kins had told him that he ought not to be talking to Pena, unless it was necessary in connection with his work. In view of Padilla's failure to mention in his testimony that he had ever spoken to Ramirez about "wandering away," and Tompkins' equivocal testimony as to whether he had actually warned Ramirez about it, it is found that Ramirez was at no time warned about being away from his work station or talking to truckdrivers at the job. Moreover, there was no showing that Ramirez' casual conversation with the truckdriver in any way interfered with or impeded Ramirez' work or that of the other employees. Considering Ramirez' overall satisfactory work perform- ance during the entire period of his employment, and the admitted shortage of experienced help,14 it seems incon- ceivable that Respondent would have discharged so valuable an employee for such a relatively trivial reason. In fact, there was not even a showing that the conversation with the truckdriver was not related to the operation at the yard. The reason advanced for Ramirez' discharge is so palpably specious as to appear frivolous, and justifies the conclusion that the discharge could only have been motivated by Respondent's opposition to the Union and Respondent's chagrin that Ramirez, whose loyalty it probably felt should have been to his employer, turned out to be with the rank-and-file employees. The fact that Ramirez was observed discussing the Union earlier that morning, a fact which Carter undoubtedly reported to Tompkins, furnishes substantiation of Respondent's un- lawful motivation. What has been said concerning motivation in Anderson's case need not be repeated here, except to reiterate that the issue still remains whether the reason advanced by Respondent was the actual reason or whether it was utilized as a pretext for venting its opposition to the unionization of its employees and eliminating an active union advocate. The preponderance of the reliable and probative evi- dence makes it abundantly clear that Respondent was motivated by a purpose to discriminate against Ramirez because of his espousal of the Union rather than by the reason it advanced. It is therefore found that, by discharging Ramirez, and thereafter failing and refusing to reinstate him because of his union or concerted activities, to discourage membership in a labor organization, Respon- dent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 14 Padilla conceded that, in a pretrial affidavit given to a Board agent and adopted by Padilla at the hearing, he quoted Tompkins , in relation to Eddie Lucero's discharge, as saying that the Company was "hurting bad for men," and that Tompkins finally told hun that it was up to him whether to discharge Lucero. PRE-CAST MFG. CO._ 2. The constructive discharges (a) Vivian Reyes Vivian (Ruben) Reyes was hired as a laborer, on October 5, 1970, at a starting rate of $2.75 an hour. At the time of his termination, he was receiving $3.50 an hour, after three 25-cent raises, the latest effective June 7, 1971. Reyes was one of the group of employees who discussed union affiliation in the neighborhood coffeeshop before work, at the plant, during working and nonworking time, and in the bar, after work. On at least one occasion, he observed Foreman Padilla seated at the next table 3 or 4 feet away. It is evident that Padilla not only overheard the discussion and was aware of the subject being discussed, but, as has been stated elsewhere, actually participated in a discussion and voiced the Company's unalterable opposi- tion to the Union. At or about 8 o'clock on the morning of October 13, according to Reyes' testimony, he overheard Tompkins instruct Padilla to "keep Ruben [Reyes] busy all day, and [see to it that he did not] go to the bathroom ... or to the drinking fountain" too often, and "[g]ive him all the dirty jobs you can find for him." Although Padilla denied receiving these instructions, the fact that he issued such orders to Reyes soon afterward can hardly be deemed mere coincidence. Reyes was thereupon assigned the chore of breaking a concrete curb about 10 feet long, 14 inches wide, and 12 inches thick. This was done by the use of a sledge hammer, though the evidence does not disclose whether Reyes used a 5- or 16-pound sledge hammer, both of which were in use at the plant. After lunch the same day, Reyes asked Padilla for permission to go to the restroom.15 He was granted permission provided he stayed no more than 3 minutes, a condition never imposed before. Later, Reyes was assigned to scraping cement or concrete, which had spilled and hardened on the floors in the work area. This, according to Reyes, was the first time he had ever been directed to perform this task. It took him about an hour and a half to complete the chore with the use of a sledge hammer. It is undisputed that Padilla assigned this work to Reyes, although, contrary to Reyes, Padilla denied that the work was dirty or strenuous. Reyes also testified that Tompkins had appeared visibly angry toward him that morning. Tompkins approached him and asked, "Are you just breaking those damned curbs." 16 Next day, October 14, between 2:30 and 3 in the afternoon, Reyes was casting "donuts," 17 when he discov- ered that he needed a steel reinforcing bar. Reyes went to Frank Pena's work area and asked him where he could find a rebar. 'Presently, Tompkins accosted Reyes and asked him whether he "had any damned business over there." As Reyes 'started toward the pile of steel rebars, Tompkins followed him and asked, "What were you guys talking about, the union." At first, Reyes denied it, and started to select a rebar. When Tompkins persisted, and repeated his 15 It is not clear whether Respondent had required its employees to ask for permission in the past, although it is not unlikely that this may have been among the rules instituted by Tompkins. 16 Whether Tompkins was complaining that Reyes had only just got 143 question, Reyes finally admitted it, took the steel rebar and returned to his work station. Tompkins followed Reyes, and stood looking over Reyes' shoulder, and watched him work, something which, according to Reyes, neither Tompkins nor Padilla had ever done before. After several minutes, Tompkins told Reyes that he wanted him to load 200 meter boxes on the truck by himself. Reyes protested that he could not load that many boxes alone. Tompkins jeered, "Would you like me to bring Pena to help you and that way there will be more love between you guys." Reyes retorted, "No, I don't think we can do it, I am not going to do it." These cement boxes were usually loaded by a forklift, although on occasion employees, including Reyes, had lifted boxes 6 inches off the ground in moving them on to the forklift. The boxes in question weighed about 250 pounds each. Reyes knew that Ramirez, Anderson, and Lucero had already been discharged, having talked to Anderson at his home the night of the discharges, and told Tompkins that he was "going to quit." He did not report for work on October 15, the following day, but sent his wife to pick up his paycheck. Respondent denied that the tasks of breaking up the concrete and scraping the spillage, to which Reyes was assigned, were unpleasant or arduous. Reyes testified, without contradiction, that these tasks were usually performed by the men who worked on the boxes and had caused the spillage. Be that as it may, Reyes' testimony regarding the instructions Tompkins had given Padilla, to keep Reyes busy and give him all the dirty jobs he could find, supports the conclusion that the assignment was discriminatorily motivated. Furthermore, Reyes' equally uncontradicted and credited testimony regarding Tomp- kins' interrogation about his conversation with Pena, and his sarcastic remark as to whether Reyes would like to have Pena help him, justifies a finding of discriminatory motive. Tompkins' attempt to dismiss his order to Reyes to load the 200 boxes as an "idle jest" is wholly unpersuasive. The pretrial affidavit furnished a Board agent contains no such suggestion. According to Reyes, Tompkins "sounded ... and looked serious," when he made the statement. Tompkins' appearance and demeanor on the witness stand gave no hint of a proclivity for bantering with his employees. On the contrary, his attitude might best be described as "strictly business." Moreover, badinage with the employees, especially after he instituted the stringent work rules on assuming the position of plant superintend- ent, appears wholly out of character. Finally, Tompkins' testimony that he merely told Reyes that "if the fork truck [lift] should break down, we'd have to load boxes by hand," hardly suggests that the statement attributed to him by Reyes was made in jest. In this regard, it should be noted that Tompkins eventually conceded at the hearing that the forklift had been repaired before he told Reyes that he would be required to load boxes by hand. Considering Respondent's union animus, its action in discriminatorily discharging Anderson and Ramirez on around to doing the chore or whether he was critical because that was the only work Reyes was doing, is not clear. 17 So designated because of the shape of the product. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 11, Tompkins' instructions to Foreman Padilla regarding the treatment to be accorded Reyes, Tompkins' interrogation of Reyes regarding his conversations with Pena about the Union, and the actual assignment to Reyes of more unpleasant and onerous chores than he had ever been required to perform, it becomes apparent that Respondent resorted to this conduct as a means of coercing Reyes into voluntarily terminating his employ- ment to obviate the necessity of finding a pretext for discharging him. Reyes' realization that Anderson and Ramirez, both active union adherents, had been discharged only a few days earlier, under one pretext or another, obviously impressed him with Respondent's determination to rid itself of employees favoring unionization and impelled him to quit rather than yield to Respondent's oppressive tactics. It is therefore found that, by assigning less agreeable and more onerous tasks to Reyes on or about October 13 and 14, 1971, because of his union or concerted activities, thereby discriminating in regard to his hire or tenure of employment to discourage membership in a labor organi- zation, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. It is further found that by Tompkins' interrogation of and statements to Reyes regarding his union activities and those of fellow employees, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed under the Act, thereby violating Section 8(a)(1). (b) Frank Pena Frank Pena was hired on June 3, 1970, under the classification of laborer at $2.50 an hour, and worked until February 24, 1971. He was rehired on June 1, 1971, at $3 an hour and, at the time of his termination on October 14, his hourly rate was $3.50, having also received increases in 25-cent increments. Although hired initially as a laborer, at least during his second period of employment, he worked mostly as a welder. He was the only full-time welder although other employees, specifically Ramirez and Carter, performed some welding. Like the other discriminatees, he was actively in favor of the Union, participated in discussions with Anderson and the others in the coffee shop and bar in August and September, and, in Carter's presence, openly expressed his views. There is no doubt that Respondent was aware of Pena's union sentiments, and this need not be based on the very real probability that Carter conveyed this information to Tompkins. For, according to Pena's undisputed and credited testimony, when he went to Tompkins' office on October 11, at or about 7 in the morning, to ask for the day off to attend to some personal business,'8 Tompkins asked him, "What's the matter, Pena? Do you think I am dumb or stupid?" Pena asked Tompkins what he was talking about. The latter responded, "About the Union, god- dammit." When Pena still professed ignorance, Tompkins irately invited him to join him in the "little back room," an allusion which Pena interpreted as an offer to fight. Harry Tompkins, Sr., broke in, however, to say that there was a phone call for Tompkins. Pena testified that when he asked Tompkins for the day off, he also asked him for an advance of $100 against his wages to take care of the traffic citation and attorney's fee. Tompkins told him that he would take it up with his father. Later, Tompkins told Pena that his father had refused his request. According to Pena's undisputed and credited testimony, he had previously been granted a loan after requesting it through Padilla.19 It is evident that Pena had become generally dissatisfied with working conditions in the plant. As Pena acknowl- edged in his pretrail affidavit to the Board agent, pressures had been building up after Tompkins, Jr., became superintendent, and employees began to express anxiety about job security. During discussions among employees in the coffeeshop, Anderson had suggested the possibility that Respondent might discharge an employee to make a job available for a relative of Padilla. It hardly seems a coincidence that Padilla's brother was hired as a laborer on October 26, 1971, as a replacement for Pena. Admittedly, Pena had considered quitting his job and looking for other employment, and had discussed this with Carter. Part of Pena's dissatisfaction stemmed from his claim that his wage scale was not commensurate with the work he was performing. As a welder, Pena felt that he was entitled to a higher rate of pay than Carter and at least one other employee. In addition, he was required to perform additional tasks for the same wages. Occasionally, he was "shorted" in his paychecks but he conceded that the Company made up the shortages. All in all, Pena was less than satisfied with his lot. Pena was absent from work on October 11, the day he asked to be off. Next day, while he was working, Padilla instructed him to make enough steel rebars for 2 days. Pena told him that he would do his "damnedest." For the next 2 days, Padilla assigned Pena to finishing concrete. On Thursday, October 14, Pena was preparing steel for double forms used in making platforms. Pena asked Padilla for additional laborers because he was falling behind in his welding. Although Padilla had supplied Pena with help when needed in the past, he refused. When Pena pushed up his welding hood because he had been perspiring heavily, Padilla asked him if he was "taking a break." That afternoon, Tompkins approached Pena at his work station and told him, "Pena, I want you to pick up all this steel by quitting time," indicating a pile of scrap steel, which, according to Pena, had been lying there since Pena had first gone to work there. Pena said that he could not possibly do it. With that, Tompkins summoned Carter, who had been standing at the timeclock, and said, "Carter, I want you to hear this. I am telling Pena to pick up all the steel here by quitting time tomorrow." Pena then told Tompkins that if he would provide him with help, he would have it done. Padilla was in the area, and Tompkins called him over, and said, "Felix, I want to tell you in front of Pena and Carter that I want him [Pena] to pick up all this 18 Pena told Tompkins that his errands involved a traffic citation and a 19 Although the refusal to grant the loan has not been alleged as an conference with an attorney (Respondent's counsel, incidentally), regarding 8(a)(1) violation, it is a measure of Respondent's animus. a divorce. PRE-CAST MFG. CO. steel and have it picked up by quitting time." At this juncture, Pena, visibly agitated, told Tompkins, "No, you get somebody else to do it because I'm quitting." 20 In an apparent effort to mollify Pena, Tompkins told him, "You don't have to quit . . . I can, you know, make the weld for the pours and the steel for the pours, and you can still clean this up." Pena remained adamant, and said, "No, you get some clown to do it . . . you get somebody else to do it, I'm quitting." Tompkins repeated, "You don't have to quit." Pena rejoined, "Yes, and I don't have to take this shit either." Pena was as good as his word, and quit his employment the same day. It is evident from the record as a whole that the pile of steel scrap had accumulated over a long period of time, at least, probably, since Pena's employment. Assuming, as Respondent maintains, that it constituted a hazard, and that Respondent was prompted, in eliminating this hazard, by a purpose to comply with the safety requirements of the Occupational Safety and Health Administration, Depart- ment of Labor, one is left to wonder why Respondent had delayed until mid-October 1971, which coincided with the organizational activities of the employees. The Occupa- tional Safety and Health Act of 1970 was enacted into law on December 29, 1970, and became effective April 28, 1971. The safety regulations were published in the Federal Register on May 29, 1971. Public Law 91-596, 91st Cong., S. 2193 (12/29/70), 84 Stat. 1590, 29 CFR, Section 1910, et seq. Moreover, although contrary to Pena's testimony, that it would have taken 2 or 3 days to clean up the steel scrap, Respondent maintained that, following Pena's termination, the scrap was cleaned up in a mere 2 hours, the condition was not corrected, according to Tompkins himself, until about a month after Pena's termination, and the job was performed by Al Padilla, Foreman Padilla's brother, who replaced Pena. Furthermore, it is unreasonable to believe that Respon- dent would normally have assigned this task to a welder and skilled, or, at the very least semiskilled, worker to perform rather than to an unskilled laborer. Pena had never been asked to do cleanup work before, and, according to him, the unskilled laborers of Spanish- American origin were normally used to do this cleanup work. What is even more astonishing is the length to which Tompkins went in asking Carter and Padilla to serve as witnesses to Tompkins' orders to Pena. This has all the earmarks of an attempt to lay a predicate for Pena's discharge. The fact that Tompkins was spared the trouble by Pena's quitting does not negate the discriminatory motive. The record fairly establishes, by the facts detailed above, that Respondent imposed or threatened to impose more disagreeable and onerous tasks on Pena in the expectation that he would quit rather than work under those condi- tions. Respondent thereby constructively discharged Pena because of his protected concerted activities, thereby disc I riminating in regard to his hire and tenure of 20 According to Padilla, Pena registered his protest with the use of an obscene four-letter word 21 Santa Fe Drilling Company, 171 NLRB No 27, enfd. in part and remanded 416 F.2d 725 (C A. 9), supplemental decision 180 NLRB 1049, reaffd. on reconsideration 183 NLRB No 44. Although this case involved 145 employment, to discourage membership in a labor organi- zation, in violation of Section 8(a)(3) and (1) of the Act. It remains to be decided whether the fact that Pena had indicated that he intended to quit his job and seek other employment, or that he may have obtained other employ- ment, relieves Respondent of the obligation to offer him reinstatement, or whether by quitting his job, despite Tompkins' statement that he need not do so, Pena has forfeited the right to reinstatement. As to the first proposition, Pena's decision to quit and seek other employment, and any action he may have taken, was inextricably bound up with Respondent's unfair labor practices, which have been found violative of Section 8(a)(1) of the Act. Such unlawful conduct "would reason- ably cause an employee to be insecure and to think in terms of other employment." 21 Pena's decision to termi- nate his employment "was not an unequivocal resolve not to accept reinstatement, but was made in the heat of dissatisfaction with his treatment by Respondent and could hardly be characterized as a rational, uncoerced decision." 22 As to Pena's determination to quit, notwithstanding Tompkins' assertion that he need not do so, in the absence of any assurance that Respondent would not require Pena to perform unreasonable and onerous tasks and would refrain from engaging in unfair labor practices, which had prompted Pena to quit, under the circumstances disclosed, Pena's refusal to remain in Respondent's employ should not deprive him of the right of an offer of reinstatement. It is therefore found that by constructively discharging Frank Pena on October 14, 1971, because of his union or protected concerted activities, thereby discriminating in regard to his hire and tenure of employment, to discourage membership in a labor organization , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. It is further found that by Tompkins' interrogation of, and statements to, Pena, previously detailed, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed under the Act, thereby violating Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and reinstatement of a discriminatorily discharged employee, there would appear no difference in principle from reinstatement in the case of an employee who had been constructively discharged 22 Santa Fe Drilling Company, supra 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) of the Act by the conduct previously detailed. It will be recommended that Respondent be ordered to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has discriminated in regard to the hire and tenure of employment of employees by discharging, and thereafter failing and refusing to reinstate, John Anderson and Richard Ramirez on October 11, 1971, and by constructively discharging Vivian Reyes and Frank Pena on about October 14, 1971, and by thereafter failing and refusing to reinstate said employees. It will, therefore, be recommended that Respondent offer each of said employees immediate and full reinstatement, without loss of seniority or other rights and privileges, to his former position or, if that position is not available, to a substantially equivalent position, and make each of them whole for any loss of pay he may have sustained by payment to him of a sum of money equal to that which he would have earned from the date of the discrimination against him to the date of offer of reinstatement, less his net earnings during such period. Backpay shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest on said backpay shall be computed at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716.23 CONCLUSIONS OF LAW 1. Pre-Cast Mfg. Co., Respondent herein, an Arizona corporation with its office and place of business in Phoenix, Arizona, is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Construction, Production and Maintenance Labor- ers Union, Local No. 383, the Union herein, is and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 3. By the coercive interrogation and statements of Plant Superintendent John W. Tompkins and Foreman Felix V. Padilla, detailed above, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging John E. Anderson and Richard M. Ramirez on October 11, 1971, and by constructively discharging Frank Pena and Vivian G. Reyes on October 14, 1971, and failing and refusing to reinstate said employees because of their union or protected concerted activities to discourage membership in a labor organiza- tion, Respondent has engaged in unfair labor practices, in violation of Section 8(a)(3), thereby interfering with, restraining, and coercing employees in the exercise of 23 In view of the nature and extent of Respondent's unfair labor practices, including violation of Section 8(a)(3), it is further found that there is likelihood that Respondent may engage in similar unfair labor practices in the future. It will therefore be recommended that Respondent be ordered to refrain from interfering with, restraining, and coercing its employees in any other manner. N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532 (C.A. 4); May Department Stores v. N.LR B, 326 U.S. 376; Bethlehem Steel Co v 1V. L.R.B., 120 F.2d 641 (C.A.D.C.). rights guaranteed in Section 7, and violating Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except as found above, Respondent has not engaged in any unfair labor practices alleged in the complaint. Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following recommended: 24 ORDER Pre-Cast Mfg. Co., an Arizona corporation, with its office and place of business in Phoenix, Arizona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off, or otherwise discriminating in regard to the hire and tenure of employment or any term or condition of employment, of its employees because they have engaged in union or other concerted protected activities for the purpose of collective bargaining or other mutual aid or protection, to discourage membership in a labor organization. (b) Coercively interrogating employees or making state- ments to them concerning their union membership and activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 25 2. Take the following affirmative action, designed to effectuate the policies of the Act: (a) Offer John E. Anderson, Richard M. Ramirez, Frank Pena, and Vivian G. Reyes immediate and full reinstate- ment to their former jobs, or, if those jobs are unavailable, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them whole in the manner set forth in the section entitled "The Remedy." (b) Notify immediately the above-named 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. (c) Preserve until compliance with any order of reinstate- ment or backpay made by the Board, and, upon request, make available to said Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records required or useful in analyzing the amounts of backpay due. (d) Post at its office and place of business in Phoenix, Arizona, and at all other places where notices to employees 24 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. 25 Since Arizona is a right-to-work State, the customary proviso to Section 8(a)(3) has been omitted. PRE-CAST MFG. CO. are usually posted by Respondent, copies of the attached notice marked "Appendix." 26 Copies of said notice, on forms provided by the Regional Director for Region 28, shall, after being duly signed by Respondent's duly authorized representative, be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that such notices are not altered , defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply therewith.27 It is further recommended that the consolidated com- plaint be dismissed insofar as it alleges violations which have not been found. It is further recommended that, unless on or before 20 days from the date of receipt of this Decision , Respondent notifies said Regional Director that it will comply with the foregoing recommendations, the Board issue an order requiring Respondent to take the action aforesaid. 26 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 27 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 28, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate in regard to the hire and tenure of employment of our employees because of their union or protected concerted activities to discour- age membership of our employees in Construction, Production and Maintenance Laborers Union, Local No. 383, or any other labor organization. WE WILL NOT coercively interrogate or make 147 coercive statements to our employees concerning their union or other protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the right to self- organization, to form, join, or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of mutual aid or protection, or to refrain from any and all such activities. WE WILL offer John E. Anderson, Richard M. Ramirez, Frank Pena, and Vivian G. Reyes immediate and full reinstatement to their former jobs or, if those jobs are no longer available, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner prescribed in the section of the Trial Examiner's Decision entitled "The Remedy." All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named labor organization or any other labor organization. Dated By PRE-CAST MFG. CO. (Employer) (Representative) (Title) WE WILL notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement , upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, Camelback Building, Room 207, 110 West Camelback Road, Phoenix, Arizona , 85013. Telephone 602-261-3717.