Tayko Industries, Inc.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tayko Industries, Inc. and Automotive Teamsters & Chauffeurs Local 165, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 20-CA-8652 October 15, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 20, 1974, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent , Tayko Industries, Inc., Rancho Cordova , California, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. t The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard in Sacramento, California, on April 2, 3, and 4, 1974. The charge was filed on October 9 and a copy was served on the Respondent on or about October 10, 1973.1 ' All relevant facts concerning this case occurred in the fall of 1973 and unless otherwise indicated all dates shall refer to 1973. The complaint and notice of hearing was issued on Decem- ber 21 and served on Respondent on the same date. An amendment to the complaint was issued on December 27 and served on Respondent on the same date, which added a new paragraph lettered c to the original paragraph num- bered VII in the complaint. Respondent' s answer was served on December 26 and Respondent's answer to the amended complaint was served on December 28. The amended complaint alleges that on or about Sep- tember 21 Respondent discharged employees John Maes and Norman Hesse and laid off employee Harlan Enix because each of the named employees were members of a union or engaged in activities on behalf of the Union, or because each of them engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Additionally, two acts alleged to be violative of Section 8(a)(1) of the Act are set forth in the com- plaint-(l) interrogating employees concerning their union activity, and (2) granting wage increases to employees to induce them to refrain from supporting the Union. The parties were given opportunity at the trial to intro- duce relevant evidence, examine and cross-examine wit- nesses, and argue orally. Helpful briefs were received from the General Counsel, the Charging Party, and the Respon- dent. Upon the entire record and from my observation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION At all times material herein Tayko Industries, Inc. (here- in Respondent), has been a California corporation with a place of business located at Rancho Cordova, California. At the hearing, the parties stipulated that Respondent is engaged in rebuilding and assembling generators for the United States Air Force; that during the past year Respon- dent received in excess of $50,000 for these services. The Board has determined that it best effectuates the policies of the Act to assert jurisdiction over all enterprises, as to which the Board has statutory juris- diction, whose operations exert a substantial impact on the national defense, irrespective of whether the enterprises' operations satisfy any of the Board's other jurisdictional standards. In adopting this standard the Board has eliminated the requirements that an enterprise's national defense operations must be directly related to national de- fense, must be performed pursuant to contracts or subcontracts with the government, and must amount to at least $100,000 a year. It has done so because it believes that it has a special responsibility as a federal agency to reduce the number of labor disputes which might have an adverse effect on the nation's defense effort. The Board believes that this responsibility can best be carried out by the more flexible standards an- nounced herein.2 2 Ready Mixed Concrete & Materials. Inc., 122 NLRB 318. 320 (1958). 214 NLRB No. 19 TAYKO INDUSTRIES On the basis of the stipulated facts and consistent with Board decisions, I find the Respondent to be an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED At the hearing, the parties stipulated that the Automo- tive Teamsters & Chauffeurs Local 165, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Union or Charging Party), at all times material herein has been an unincorporated association, in which employees participate and which ex- ists, for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. On the basis of these stipulated facts, I find the Union to be a labor organization within the meaning of Section 2(5) of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. General Counsel's case According to the mutually corroborative testimony of John Maes, Harlan Enix, and Norman Hesse, who are the three dischargees involved in this dispute, they worked to- gether at the Rancho. Cordova plant of Respondent and along with a fourth employee, Bob Hollingsworth, com- prised the assembly section. In approximately mid-Septem- ber, these three employees began discussing the desirability of having the employees at Rancho Cordova represented by a union. Maes contacted Tony Santos, a business agent for Teamsters Local 150, and obtained from him a number of union authorization cards. Maes divided the cards with Hesse and Enix and thereafter these three employees solic- ited their fellow employees at Rancho Cordova to sign the authorization cards which granted the Union the authority to represent them "in negotiations for better wages, hours and working conditions." 3 On the evening of September 20, approximately 20 em- ployees-more than one-half the work force-attended a meeting at the labor temple on Stockton Boulevard in Sac- ramento in furtherance of their organizing efforts. That evening it was determined that Local 165 of the Teamsters was a more appropriate union to represent the employees than Local 150, on whose, behalf the first authorization cards had been solicited. The employees attending the meeting completed new authorization cards for Local 165, the Charging Party herein. Additional cards for Local 165 were obtained by Maes and, during the lunch hour on the following day, seven or eight employees who had not at- tended the meeting the previous evening completed cards for Local 165. Norman Hesse testified that on September 21 he had 3 See G.C. Exhs. 4 through 7 for sample cards. 85 forgotten to bring to work some medication that he was taking and at about 12:30 p.m. he requested permission from his "leadman," Bill Ross, to go home in order to ob- tain the medicine. According to Hesse, Ross indicated that he could take the rest of the day off. Later that afternoon Hesse received a telephone call from Maes, who suggested that he come down to the plant because the timecards of Maes, Hesse, and Enix had been pulled from the timecard rack and "he believed we had been fired." John Maes and Harlan Enix were given envelopes con- taining their letters of dismissal and final paychecks at quitting time-about 4:30 p.m.-on September 21. A simi- lar envelope addressed to Norman Hesse was given to Er- nest Litschauer, Hesse's roommate at that time. The termi- nation letters of Maes (Resp. Exh. 7) and Hesse (Resp. Exh. 2) were worded exactly the same and signed by Vin- cent Guiffreda, Respondent's vice president. The reasons given were "excessive absences and tardinesses which have affected our overall production schedule. .. . " Harlan Enix's termination letter (G.C._Exh. 3) was worded differ- ently. He was informed "that due to a lack of work on contract FO4606-72-D-0043 (MB-I5 & 16) together with a reorientation of our work efforts, we will no longer re-' quire your services after 21 September 1973." The letter was signed by Vincent Guiffreda. Louis Rosales, who worked in the office, testified that he was solicited by Maes, Hesse, and Enix to join the Union. At first he declined, but later signed an authorization card. Rosales said that on September 21 he was asked by Ken White, production manager at the Rancho Cordova plant, "what was going on with the employees and what was being passed around." Rosales testified that White specifi- cally asked what John Maes was "passing around to the employees." And, with some difficulty, Rosales was able to remember that White had also asked about Hesse and Enix and had asked Rosales if he had signed a card. Rosales also testified that he heard Vince Guiffreda place a tele- phone call on September 21 to John Taylor, president of Respondent, who was in Texas, and that he heard Guiffre- da tell Taylor that "there was a problem but that he had eliminated it-he said he'd have it eliminated by the time he'd get back and not to worry, and to have a good time." Rosales further testified that at about 4:30 p.m. on Septem- ber 21 Ken White asked him, "Were them (the) three trou- blemakers, and I said yes, and then I walked out the door." Gerald Enix, brother of Harlan Enix, testified that on September 24 he heard Vince Guiffreda ask Ken White, "Why was Enix laid off?" and White said, "because of the Union." Patrick Gonzales, an employee since February 1972 and at the time of the trial an assistant shop foreman, testified that on September 24 he observed Maes, Enix, and Hesse talking to several other employees in front of the plant during the lunch hour. Later that same afternoon, Ken White approached him in his work area and "asked me if Enix had all those guys organized, and I said I didn't know, because I wasn't out there."Gonzales also testified that he frequently noticed employees being absent or tardy and that he had never been advised of any company policy regarding absenteeism or tardiness. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Elliott corroborated the testimony of Maes, Hesse, and Enix as to who had been active in the union organizational campaign. Elliott testified that on the morn- ing of September 25 he heard Guiffreda tell Tom Louis, a contract coordinator for Respondent, "Well, we have got to do something to stop it, and we are going to do it now." At noon on September 25 there was a general layoff and shutdown of the plant. Elliott's testimony confirmed that of Gonzales regarding frequent absences and tardiness of the employees and the lack of any announced policy re- garding these matters by the Company. John Maes testified to his own activities and interest in organizing the Union; the fact that the union authorization cards were obtained on September 18, distributed to the employees on September 19 and the labor meeting on Sep- tember 20 at which time new authorization cards were signed by the employees attending the meeting to replace those that had been made out for Local 150. Maes' testi- mony generally corroborated that of Norman Hesse. How- ever, Maes acknowledged that on one previous occasion he had been fired because of his excessive absences. This oc- curred on June 22, but he was rehired with an increase in wages within a few days and only missed 3 or 4 days of work. Maes acknowledged having made an erroneous statement in his affidavit which was given to the Board investigator when he stated that he had never been warned either orally or in writing about his absences when in fact he had been discharged for this very reason on the prior occasion. Harlin Enix's testimony reviewed the organizational ef- forts of Maes, Hesse, and Enix but added that he had re- ceived an increase in pay on August 1 from Mr. Taylor at which time he had been asked if he (Enix) would become the leadman or foreman of a night shift. Under cross-ex- amination, Enix also acknowledged that his affidavit given to the Board stated that he had passed out and received union authorization cards off the job, but that his testimo- ny at the hearing was to the effect that this activity had been carried on during working hours on the job. 2. Respondent's defense testimony Soccoro Landeros testified that she had worked for Tay- ko Industries since February 1971; that she was currently employed at the Elder Creek plant although from January to September 4, 1973, she had worked at the Rancho Cor- dova plant. Landeros testified that it was after she was told by Mr. Guiffreda to type the discharge letters for Norman Hesse and John Maes that she had suggested to Mr. Guiffreda that Harlan Enix was just as much to blame for the poor production as was Hesse and Maes. She said she told Guiffreda that Enix encouraged the employees'to use their sick leave whether they were sick or not and he was not interested in production except when the bosses were watching. Landeros disputed and contradicted a portion of the testimony of Norman Hesse. Hesse testified he was absent on one occasion, which happened to have been his birthday, and he told Landeros that it was his birthday and that he-wanted to be off on sick leave. Landeros testified that there was never any mention of his birthday. Witness testified that absenteeism was a problem with the employ- ees. Landeros testified she had never heard a member of management mention the Union either in connection with the organizational campaign or as a cause of the discharge of Hesse, Maes, and Enix. Florence Walker testified that she has been employed by Respondent for approximately 3 years and that during September she was a logistics clerk at the Rancho Cordova plant. Mrs. Walker identified the telephone bill for the Rancho Cordova plant covering the pertinent period in question and there was no charge listed for a long-distance telephone call to any place in Texas from September 18 through September 26. (Resp. Exh. 10.) She further testi- fied that she recalled Mr. Guiffreda visiting the Rancho Cordova plant on the morning of September 21, but that he was not there during the afternoon of September 21•. Witness stated that she had never heard White or Guiffre- da mention the Union and did not hear Rosales and White engaged in conversation regarding the Union. Witness tes- tified she never heard White ask Rosales questions con- cerning what the employees were passing around the plant. Janet Grosz testified that she has worked at the Rancho Cordova plant for Respondent since June as a typist and receptionist. She corroborated the testimony of Mrs. Walk- er that she had never heard any representative of manage- ment discuss the Union and she did not hear any conversa- tion between White and Rosales on September 21 concern- ing Maes, Enix, and Hesse and never heard White ask, "what the employees were passing around the plant:" Mr. John Taylor testified that he was the founder and president of Tayko Industries, having founded the business in 1969 at Elder Creek. The Rancho Cordova plant was opened in February 1973 and the Company is involved'in rendering services for the armed forces in the nature of repair and overhaul of Government.equipment. Mr. Taylor pointed out that the Company's contracts frequently come under a provision known as the President's 8-A program for minority owned and operated businesses which carry with it an obligation to hire disadvantaged persons. As a consequence, the quality of the employees does not permit the normal adherence to -rigid employee rules and regula- tions. Taylor stated that during most of the month of Sep- tember he,was on vacation in Texas; the last time he talked by telephone to Guiffreda was on September 18 at which, time Guiffreda advised him that they had only delivered (or sold) six generators amounting to approximately $12,000 in sales and that this figure was roughly one-third the output for that period of the month. Upon hearing this, Taylor advised Guiffreda that he (Guiffreda) was the pro- duction vice president and that "if he didn't either have brains enough or guts enough to go-and correct the situa- tion, I was going to-take the next,plane back there, and that I could not guarantee anybody's job." Taylor stated that on September 21 he was en route from Burkburnett, Texas, to Gallop, New Mexico, where he spent the night. Taylor testified that he had never had any conversation with the supervisors regarding union activities of the employees at Rancho Cordova; that he had never had a conversation with Guiffreda in which Guiffreda mentioned that.he had "eliminated a problem"; and that he had no knowledge of the terminations of Enix, Hesse, and Maes until after his return to the plant following his vacation. Taylor explained TAYKO INDUSTRIES that Maes was rehired following his termination in June due to excessive absences because Maes' father had been a former employee and was suffering from a heart problem and he (Taylor) wanted to help Maes by returning him to work. Taylor acknowledged that he knew the election petition was docketed and filed in the Regional Office in San Fran- cisco on September 25 at the time the employees were being recalled to work at the Rancho Cordova plant in mid-October. Taylor explained the change of job duties for a number of these employees who were recalled to work but gave no explanation for the increases granted to M. Kowalik, 1. Gales, J. Vierra, E. King, L. Morant, G. Lopez, and M. Shapp except to.generalize that these increases were given on the basis of the recommendations of his su- pervisors and to categorically deny that they were granted because of any union considerations. (See G.C. Exh. 2.) Vincent Guiffreda, the Respondent's vice president, ac- knowledged that he had talked to Taylor during September on two or three occasions but that the last. telephone con- versation occurred on September 18 and that it would have been impossible for him to have talked to Taylor on Sep- tember 21 because Mr. Taylor was en route from Texas to California and there would have been no way that he (Guiffreda) could have reached him. Guiffreda testified that following his conversation with Taylor on September 18 he immediately went to the Rancho Cordova plant and discussed with White the production problems and Taylor's admonition. Guiffreda acknowledged having re- turned to the Rancho Cordova plant on the morning of September 21 between 10 and II a.m., at which time Guiffreda and Ken White went to the timecard rack and looked at some 10 to 20 timecards. Following this conver- sation and without any decisions being made as to who should be terminated or what should be done, Guiffreda indicated that he joined the safety inspector from the insur- ance company and they concluded their safety inspection of the plant and then he returned to the Elder.Creek plant between 12 and 12:30 that day. Sometime in the early af- ternoon, approximately 2 p.m., Guiffreda testified that Ken White called him and advised that he desired to termi- nate Hesse and Maes because of their absenteeism and frequent tardiness. Guiffreda testified that when he advised his secretary, Soccoro Landeros, to write up the termina- tion letters for Hesse and Maes that she stated that Enix should be fired also because he only worked when the su- pervisor was watching, and because he was advising the employees to take their sick leave instead of reporting for work. Guiffreda testified that after hearing this he called Ken White at the Rancho Cordova plant and inquired how White felt about Harlan. Enix. After White advised that Enix was the next one that he intended to let go, the deci- sion was made that Enix should be terminated at that time and Guiffreda instructed Landeros to prepare a termina- tion letter for Harlan Enix. Guiffreda acknowledged that the reason given in the termination letter for Harlan Enix was not truthful, but that, because Enix was being termi- nated because of more subjective reasons which would be difficult to prove and also because Enix had been a good employee and well regarded, he did not want to make it difficult for him to get another job. Additionally, Guiffreda 87 said that he was concerned for fear that he say something in the letter which might provide a basis for the Company to be sued for libel. Guiffreda denied having had any con- versation with Ken White regarding Harlan Enix on Sep- tember 24 or regarding the Union on that day. Guiffreda testified that he had no knowledge of the Union until the day following the filing of the election petition. Guiffreda acknowledged that. laying off (discharging) three-fourths of the assembly crew was not going to have any immediate effect on improving production, but that he expected Ken White to replace these people with more productive em- ployees. However, this was never done. Ken White was called as a witness and his testimony corroborated most of that given by Guiffreda. White de- nied ever having had any conversation with other members of management, with Rosales, or any of the employees re- garding union activities in the Rancho Cordova plant. White acknowledged that the attendance and tardiness rec- ords of Maes and Hesse were probably "no better or worse than that of some of the other individuals we had." Howev- er, his explanation as to the reason for discharging Maes and Hesse was that the production problems stemmed from the failure of the assembly section to reassemble the generators after the corrective work had been performed by the other departments. White confirmed Taylor 's testi- mony concerning the discussion among the supervisors as to which employees should be recalled- following the gener- al layoff on September 25 and at what rates of pay. B. Analysis and Conclusions Before a Respondent can be shown to have violated Sec- tion 8(a)(3) of the Act' there must be proof of knowledge on the part of Respondent that the discriminatees. were union adherents. A showing of knowledge on the part of Respondent need not be done by direct evidence if the circumstantial evidence is sufficient to justify an inference of knowledge.' Such an inference has been held to,be justi- fied because of the abruptness, and timing of the dis- charge,6 .and also under the so-called "small plant doc- trine" ' to the extent that it may be shown to have made it likely' that the employer had observed the activity in ques- tion.8 In the instant case the General Counsel sought to show direct knowledge on the part of Respondent through the testimony.of employees Rosales, G. Enix, Elliott, and Gon- zales. I find their testimony to be wholly lacking to prove knowledge on the part of Respondent. Rosales is not to be credited., Not only was his testimony confusing and vague, but it was in direct conflict with his affidavit given to.a Board agent in which he said: "I did The relevant portion reads as follows: Sec. 8. (a) It shall be an unfair labor practice for an employer . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization... N.L.R.B. v. Abbott Worsted Mills, Inc., 127 F.2d 438, 440 (C.A. I. 1942). c N. L. R. B. v. Montgomery Ward & Company. 242 F.2d 497, 502 (C.A. 2. 1957), cert. denied 355 U.S. 829 (1957). 7 N. L. R. B. v. Abbott Worsted Mills, Inc, supra. 8 N.L:R.B. v. Joseph Antell. Inc., et al. 358 F.2d 880. 882 (C.A. I. 1966). 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have any conversation with Vince [Guiffreda], Jones, White or any one else from management concerning the Union-neither did any one of management question me about the Union as to the meeting or who the leaders were in the union movement." His explanation for his diamet- rically opposite testimony is not to be credited. I am of the opinion that Rosales would say whatever he believed best served his purpose at the moment, and•thus I am not cred- iting any of his testimony. While there is no apparent basis for discrediting Robert Elliott, I am not of the opinion that his testimony provided an adequate basis for a finding of union knowledge on the part of Respondent. The statement to which he testified occurred 4 days after the alleged discriminatees were dis- charged and (secondly) while the statement may have had some reference to the Union or union activity of the em- ployees, it is equally subject to an interpretation or mean- ing having absolutely no reference to union activity. I find Elliott's testimony totally inadequate to prove union knowledge on the part of Respondent at the time Hesse, Enix, and Maes were discharged. Gerald Enix testified that he heard Guiffreda ask Ken White, "Why was (Harlan) Enix laid off," and White re- plied, "because of the Union." This conversation was sup- posed to have occurred on September 25. 1 find the occur- rence of such a conversation implausible and do not credit the testimony of Gerald Enix. There is ample testimony in the record from both General Counsel's and Respondent's witnesses that Guiffreda and White stood at the timecard rack and reviewed a number of timecards on September 21 and later the timecards of Maes and Hesse were removed from the timecard rack. Later that afternoon a call came from the Elder Creek plant (either Guiffreda or David Dix- on, the controller) and the timecard of Harlan Enix was removed. All three employees received letters of termina- tion on the same day signed by Vincent Guiffreda. Con- fronted with the evidence of Guiffreda's role in Enix's ter- mination, I cannot attribute to Guiffreda a degree of inept- ness that would provoke such a question, by him of White, 4 days after the employee had been terminated. All the credible testimony indicates the impetus or primary mov- ing force which brought about Enix's termination originat- ed at the Elder Creek plant and, with Taylor out of town, the only person shown to have such authority was Guiffre- da. Why then in view of his role in the termination was it necessary for Guiffreda to make such an inquiry of White? I find Gerald Enix's testimony to be implausible and stretching beyond the bounds of credibility. Patrick Gonzales' testimony has the same weakness as that I have attributed to Elliott's. Th'e remark, if made, was made on the third day after the terminations occurred'and the words are subject to a meaning other than union organi- zation.9 However, as indicated supra, knowledge can be attribut- ed to the Respondent if it is a reasonable inference under all the circumstances. Let us consider the circumstances. Maes, Hesse, and Enix were the only employees active in pushing for the Union. Maes made the initial contact with 9 Sec. 7 protects concerted, activity other than union activity, but this was not the General Counsel's theory nor was the complaint so worded. the Union, then the three of them distributed, solicited, and obtained the signed authorization cards. The first con- tact with a union was made on September 18, the authori- zation cards were obtained on September 19, a general meeting was held on September 20, additional cards were solicited on September 21, and the three ringleaders were fired on September 21. The solicitation and distribution of the authorization cards was done on the job in a relatively open work area that was plainly visible from the enclosed area which served as an office. Moreover, the key supervi- sor, Ken White, acknowledged that he spends 6 to 7 hours of his normal workday in the work area and not in his office. With only 30 to 35 people in the work area, I have great difficulty in understanding how White could have avoided acquiring some knowledge or information as to the activity of Maes, Hesse, and Enix. The discharge of the three active organizers of the Union within 3 days of the start of a campaign must be regarded as highly suspicious. Because of the timing, the relatively small work force in an open area, the on-the-job solicitation, the opportunity management had to observe the-activity, and the particular employees selected for discharge, [ find the General Coun- sel has proven a prima facie case. 10 The Respondent has the burden to come forward with an adequate explanation for discharging Maes, Hesse, and Enix once a prima, facie case of possible discrimination has been established by the General Counsel." I find the Respondent's explanation not only inadequate, but im- plausible and thus a pretext for the real discriminatory rea- son. While Hesse and Maes were admittedly absent and tar- dy more than might have been permissible in a tightly run operation,12 nevertheless, White testified that the records of Maes and Hesse "were no better or worse than some of the other' individuals we had." The Company had no policy regarding absences or tardiness and admittedly the em- ployees were not warned or cautioned regarding. their con- duct-in an effort to correct the immediate situation. (I_ have not ignored or overlooked Maes'.earlier termination.) Nor was any effort made to appeal directly to the assembly section employees to increase production. When White was questioned as to why these employees.were selected for termination, the only answer was that he felt the main pro- duction problem was in their area (assembly section). White testified, "My idea was to terminate the people and get some new people in who could do the work, because I was having problems with the people that I had." However, up to the time of the general layoff on September 25, no new employees had been hired and only one employee from another section transferred to the-assembly section. When Guiffreda was questioned as to how the discharge of three-fourths of the assembly section was going to improve production, his answers were equivocal and imprecise. 10Texa.s Industries. Inc., 156 NLRB 423, 425-426 (1965). enforcement denied 387 F.2d 426 (C.A. 5. 1967). Niagara Chemical Division, F.M.C. Cor- poration. 137 NLRB 376. 382 (1962).- 1 N.L.R.B. v. Standard Container'Co.. 428 F.2d.793 (C.A. 5.-1970); J. J. Gumberg Co. and Pennlev Park South, Inc., 189 NLRB-889. 890 (1971). 12 Taylor credibly testified that under at-least some of their Government contracts they were expected to hire from the "disadvantaged minorities" and as a consequence they were forced to he more lenient with the employ- ees than the average business would be. ' TAYKO INDUSTRIES 89 The record indicates that Maes, Hesse, and Enix were all capable employees. While Maes was terminated in June for excessive absences, he was rehired by Taylor only 3 or 4 days later and given a 15-cent-an-hour increase; Hesse had received a 7-percent merit increase in July and a letter of commendation from Taylor; Guiffreda testified that Enix had been a very good employee while at the Elder Creek plant and that he had been a night foreman. The reasons advanced by Respondent for the termina- tion of Enix are even more implausible than those ad- vanced by Maes and Hesse. According to Respondent's witnesses, when asked to type the termination letters for Hesse and Maes, Guiffreda's secretary suggested that Har- lan Enix,was as much to blame for the poor production as were the other two. Whereupon Guiffreda called White and White supposedly stated, "he would be the next to go." Whereupon Guiffreda directed that Enix be terminated, but because he liked him and didn't want him to have trouble getting another job and didn't want to malign his character and possibly subject the Company to a lawsuit, he wrote a letter which he admitted at the hearing was not truthful. To discharge an employee on the basis of com- ments by a secretary who did not even work in the same building without more careful investigation is impossible to believe. I cannot find the Respondent's actions toward Maes, Hesse, and Enix to be logical, plausible, or justifi- able even after giving due consideration to the type of busi- ness involved and perhaps the inexperience of the manage- ment. As a consequence, I reject the Respondent's explana- tions for the discharges as being a pretext for the real reason, which I find to be discriminatory and in violation of Section 8(a)(3) and (1) of the Act. I have not credited the testimony, of Rosales and have found the statements attributed to management by Gon- zales to be vague and subject to more than one interpreta- tion and for those reasons shall recommend dismissal of the 8(a)(l) allegation regarding interrogation of employees. However, there remains the allegation regarding the grant- ing of wage increases at a time when an election petition was pending, as being violative of Section 8(a)(1) Of the Act. The parties stipulated to the accuracy and receipt as evi- dence of General Counsel's Exhibit 2 which was prepared by Respondent and reflects the names of employees termi- nated (laid off) at the time of the general shutdown on September 25, date of rehire (recall), their wage on Septem- ber 24, and their wage on October 25 (first payday follow- ing recall). Taylor explained the Company's general philos- ophy-in substance, following the shutdown they were going to try to work more efficiently with fewer employees and thus Respondent felt compelled to pay a little more to get the more efficient employees to return to work. Taylor testified he consulted with and obtained recommendations from his supervisors before action was taken. Accepting Taylor's testimony as credible, which I do, we can elimi- nate Walker, Roth, and Louis as not within the bargaining unit. Eliminating Frank, Kim, Gonzales, and Nutt as hav- ing had a change of duties warranting an increase, we are left with the stipulated fact that employees M.. Kowalik, Gales, Vierra, King, Morant, Lopez, and Shapp were granted increases at a time when Respondent had full knowledge of a pending election petition to determine if the employees desired to be represented by a union. In the absence of some showing that these employees would not have returned to work without an increase in wages and in the absence of any showing that these increases were grant- ed in conformance with an established policy, it is well established that under such circumstances the granting of wage increases is a violation of Section 8(a)(I) of the Act, and I so find.'3 Had Respondent called these employees to testify and each of them had testified that he would not have returned to work for Respondent without an increase in wages, I would feel compelled to dismiss this allegation of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent. has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action de- signed to effectuate-the policies of the Act. Respondent having unlawfully discharged employees John Maes, Harlan Enix, and Norman Hesse on Septem- ber 21, 1973, 1 shall recommend that Respondent offer each of them immediate and full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to the seniority and other rights and privileges of each named individual and make each whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his termination to the date of Respondent's offer of reinstate- ment, less net earnings of each named individual during such period. In calculating the sum of money which each named employee would have earned, consideration shall be given to the general layoff that occurred on September 25, 1973, and the date on which Respondent resumed pro- duction in the assembly section, or the normal date on which each of these employees would have been recalled absent any discrimination against them. The backpay pro- vided, for herein shall be computed on the basis of calendar quarters in accordance with methods prescribed in F. W. Woolworth Company,* 90 NLRB 289:(1950). Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Since the discriminatory discharges "go to the very heart u William P. Owen d/h/a Owen's IGA Foodliner . 188 NLRB 277 (1971): N.L.R.B. v.. Exchange Pans Co., 375 U.S. 405 (1964). 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941) ), it will be recommended that the Re- spondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization all within the meaning of the Act. 2. By discriminating in regard to the tenure of employ- ment of John Maes, Harlan Enix, and Norman Hesse, thereby discouraging union activities, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By granting wage increases to numerous employees during the month of October 1973, at a time when a peti- tion was pending before the Regional Office of the Nation- al Labor Relations Board to determine the wishes of the employees regarding their choice of a collective-bargaining representative, if any, and at a time when the Respondent had full knowledge of said petition, Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thus Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 Respondent Tayko Industries, Inc., Rancho Cordova, California, its officers, agents, successors, and assigns; shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against em- ployees in regard to their hire, tenure of employment,'or other terms or conditions of their employment in order to discourage membership in Automotive Teamsters and Chauffeurs, Local 165, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) Interfering with, restraining, or coercing its employ- ees in the exercise of rights guaranteed in Section 7 of the Act by selectively granting increases to employees at a time when Respondent has knowledge of a pending election pe- tition for the purpose of ascertaining the wishes of the em- ployees'in their,selection. of a collective-bargaining repre- sentative. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer John Maes, Harlan Enix, and Norman Hesse immediate and full reinstatement to the position formerly held by each of them or, if that job no longer exists, to a substantially equivalent position, without prejudice to the seniority and other rights and privileges of each named individual. (b) Make John Maes, Harlan Enix, and Norman Hesse whole for any loss of earnings each of them may have suf- fered by reason of Respondent's unlawful discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (d)• Post at its place of business in Rancho Cordova, California, copies of the attached notice marked "Appen- dix." 15 Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to ensure that said notices are not altered, defaced, or covered by.any other material. (e) Notify the Regional Director for Region 20, in writ: ing, within' 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 14 In the event no exceptions are filed as provided' by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. is In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the.notice.read ing "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." APPENDIX NOTICE To EMPLOYEES_ - POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: • . To engage in self-organization To form, join, or help unions . , To bargain collectively through a representative of their own choosing To act together for collective. bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. TAYKO INDUSTRIES 91 WE WILL NOT grant wage increases or other benefits equivalent position , without prejudice to the seniority to employees at a time and in a manner tending to or other rights and privileges of each of the-named interfere with, restrain, or coerce the employees in employees and WE WILL make each of them whole for their selection of a collective-bargaining representa- any loss of earnings he may have suffered by reason of tive. our unlawful discrimination against him. WE WILL offer John Maes, Harlan Enix, and Nor- man Hesse each immediate reinstatement to his for- mer job or, if no such job exists, to a substantially TAYKO INDUSTRIES, INC.