Central Air Corp.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Air Corp. and Confederacion Obrera Puertor- riquena. Case 24-CA-3478 January 17, 1975 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On November 13, 1974, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions to the Decision. 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 General Counsel's exceptions i and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER work, close the Company's business, or blacklist employees for future employment references. WE WILL NOT promise benefits to our employ- ees if they reject a union. WE WILL NOT ask our employees about union activity in a manner constituting interference, restraint, or coercion. WE WILL NOT lay off, discharge, or otherwise discriminate against any employee in order to discourage membership in Confederacion Obrera Puertorriquena, or any other union. WE WILL offer to reinstate Felipe Torres Figueroa, Francisco Gomez Lopez, and Alpheus T. Joseph to their former or substantially equiva- lent jobs or, if no such jobs exist, put these employees on a preferential hiring list. WE WILL make these employees whole, with interest, for loss of pay resulting from their layoff or discharge. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. 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, Central Air Corp., Santurce, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for the notice of the Administrative Law Judge. I In accord with the General Counsel's exceptions, the second full paragraph of the Notice to Employees is changed to read as follows- WE WILL NOT threaten employees with loss of their jobs or other punishment for union activity, nor will we make threats to subcontract unit work, close the Company's business, or blacklist employees for future employment references. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT threaten employees with loss of their jobs or other punishment for union activity, nor will we make threats to subcontract unit CENTRAL AIR CORP. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding was heard at Hato Rey, Puerto Rico, on September 25, 26, and 27, 1974,1 pursuant to a charge filed on March 1, 1974, an amended charge filed on March 15, a second amended charge filed on March 22, a third amended charge filed on April 4, and a complaint issued on June 10. The case presents the questions of (A) whether Respondent, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended (the Act) interrogated its employees about their union activity, warned and directed them to refrain therefrom, threatened its employees with reprisals for union activity, and promised them benefits to induce them to refrain therefrom; and (B) whether Respondent, in violation of Section 8(a)(3) and (1) of the Act, terminated employees Felipe Torres Figueroa, Fran- cisco Gomez Lopez, Dolores Galindez Ramos,2 and Alpheus T. Joseph to discourage union activity. Upon the entire record, including my observation of the witnesses, and after due consideration of a posthearing memorandum filed by counsel for the General Counsel, I make the following: I All dates hereafter are 1974 unless otherwise stated 2 The first three of these employees follow the Latin custom of using their mother's surname after their father's surname. They will hereafter be called, respectively, Torres, Gomez, and Galindez. 216 NLRB No. 40 CENTRAL AIR CORP. FINDINGS OF FACT 1. JURISDICTION AND THE UNION'S STATUS AS A LABOR ORGANIZATION Respondent is a Puerto Rico corporation with its principal office and place of business in Santurce, Puerto Rico, where it provides installation, repair, and mainte- nance services on central air-conditioning units in Puerto Rico. During the year preceding the issuance of the complaint, a representative period, Respondent received goods and materials valued in excess of $50,000 from other enterprises in Puerto Rico which had received such goods and services directly from points outside Puerto Rico. I find that, as Respondent concedes, it is engaged in commerce within the meaning of the Act,3 and that exercise of jurisdiction over its operations will effectuate the policies of the Act. Confederacion Obrera Puertorriquena, herein called the Union, is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On January 4, all eight employees in Respondent's shop signed union authorization cards at the office of Union Representative Frank Ruiz.4 On January 9 or 10, Respon- dent's president, Pedro J. DelValle (herein called Del- Valle), received a letter from Ruiz that he wanted to represent Respondent's employees . About January 15, the Union filed a petition for a representation election. On January 24, Respondent and the Union signed an agreement for a consent election , which the Union won by a unanimous vote on February 14. No objections to the election were filed, and the Union was duly certified. Thereafter, Ruiz came to DelValle's office to find out if he was ready to negotiate. DelValle said that he was ready and was waiting for Ruiz. Later, Ruiz brought DelValle a proposed contract. DelValle then sent Ruiz a letter proposing a meeting at 2 p.m. on April 18, 1974, at DelValle's office. At the appointed time and place, two unidentified persons appeared and asked DelValle to discuss the proposed contract with them, but he refused on the ground that he did not know them and they had no written authorization from Ruiz. Immediately thereafter, DelValle sent Ruiz a letter proposing a meeting on May 8. During that meeting, which lasted a couple of hours, the parties agreed to sign a contract different in some undisclosed respects from the contract proposed by Ruiz. Ruiz said that he had an appointment elsewhere but would come back the next day to sign the contract. Ruiz never did come back. As of May 8, two employees in the appropriate unit were actively working for Respondent. 3 N.L.RB. v. Security National Life Insurance Co., 494 F.2d 336, 337-338 (C.A. I, 1974). This finding is based on the credited testimony of employees Joseph, B. The Alleged Independent 8(a)(1) Violations 1. Alleged conversations with employee Joseph 205 About a week after the filing of the January 15 petition, Company President DelValle asked employee Joseph if he knew anything about the Union, if he knew who brought the Union into the Company, and if he knew anyone who brought cards into the Company. Joseph replied that he knew nothing about it. DelValle said that someone brought the Union in. Joseph then asked why he did not call all the employees together for a conference and find out who brought the Union in and why. DelValle said that he was going to wait until after the election. Joseph asked why he should wait that long. DelValle said that if half the employees voted for the Union and half against, he was going to fire the employees that voted for the Union. Joseph asked what DelValle was going to do if all the employees voted for the Union. DelValle replied that in that event he was going to close the Company and subcontract all the contract work. On a subsequent occasion, DelValle again asked Joseph if he knew who brought the Union into the Company, and Joseph again said that he did not know. DelValle then said that he thought Felipe Torres was the leader in the union activities, and that DelValle "was going to fire Felipe, fire the employees and he hopes Felipe gets a job for the rest of the employees." DelValle offered to give a raise to Joseph and his helper (employee Jose de la Paz) if Joseph would help out DelValle by not negotiating with the Union and by signing a letter, to be drafted by DelValle, taking Joseph's name off his union card. Joseph said that he was going to think about it. Later that same day, DelValle called Joseph to his office, again promised him a raise if he signed a letter revoking his union card, and said that DelValle "swears" Tones was the one who brought the Union in. DelValle asked Joseph whether he was going to "cooperate" with him; Joseph replied that he was in favor of the majority. DelValle said that he was going to fire all the employees, change his business name, and move the business from Santurce to Levittown (the city where DelValle lived), because he did not want to negotiate with the Union. He also said that because he did not want to "cooperate" with the Union, "anywhere the employees go and find a job, . . . he was going to make them lose their job and make life miserable." In March, after the Union won the election, DelValle went over to Joseph and said that because of the union activities, DelValle was going to close the business, change the Company's name, have "new Company laws," get rid of all the employees, put a shop in Levittown, and have all new employees. Joseph said that he thought Respondent should permit its servicemen to explain to the customers what was the matter with their malfunctioning air-condi- tioning units; DelValle replied that he knew, what was wrong but in the future was going to correct it. Later that month, DelValle called Joseph to his office and told him that he wanted Joseph to accept a subcontract for all of Respondent's service and maintenance work "and in that Torres, and Gomez. On the basis of the witnesses' demeanor, I do not believe employee Galmdez's testimony that he did not sign a card. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD way if [Joseph] had the rest of the employees [DelValle] doesn't have to negotiate with the Union." Joseph replied that he would accept the work on condition that DelValle subcontracted the rest of the work to the employees he had fired.5 DelValle said no, and told Joseph that if he would give DelValle his resignation, DelValle would give him "a recommendation letter, saying that [he] had 4,000 hours, to get a diploma."6 Joseph replied that he would think about it. DelValle then said that if Joseph did not want to "cooperate" with him, he was going to find some way to get rid of Joseph. Joseph told him to go ahead and do what he felt like, whereupon DelValle said that if he could not get any way to get rid of Joseph, he was going to accuse him of stealing something. DelValle told Joseph that he was not going to negotiate with the Union, that he was going to close the business, fire everybody, move the business to Levittown, and subcontract the work because it was cheaper for him and easier. About March 15, DelValle told Joseph that he had, to "throw away all the employees" - that is, "fire them out" - and close the shop because of the union activities and because "this type of employees that he has and people like Frank Ruiz are people who put bombs into his business." Joseph said that he did not think that the employees would do such violent acts . Del Valle replied that he did not "trust nobody." 7 2. Alleged conversations with employee Torres About January 30, DelValle asked employee Torres whether he knew there was a petition for an election, and said that he was not opposed to an election because he was sure that he was going to win the election, and that, after the election was won, he would suspend the Union's "authors," whose identity he already "more or less" knew. On a later occasion, DelValle told Torres at his At this time , Gomez, Torres, and Galindez were off the payroll. a Joseph was enrolled in an on-the-job training program sponsored by a school called the Technical Training Association , where he also attended classes once a week. Under DelValle's contract with Technical Training, he had to subnut a report about the things Joseph had been doing, certify that he had been working in the specific activity of a refrigeration mechanic under DelValle's supervision, and give an evaluation of how he had improved while taking classes. If Joseph eventually passed an examination by the Board of Examiners, it would award him the license of refrigeration mechanic in Puerto Rico. 7 My findings under this heading are based on Joseph 's credited testimony. DelValle initially denied talking about the Union with any employee . DelValle specifically denied talking with Joseph about the Union, asking him who was the organizer of the Union, telling him that the plant would be closed and the work subcontracted if the Union won, telling him that if the Union won he would have to fire all the employees to avoid negotiating with the Union , and telling Joseph that he would accuse him of stealing in order to get rid of him . Del Valle further testified that he did not offer Joseph a wage increase if he cooperated with the Company against the Union "because his salary was stipulated by the contract I signed with Technical Training" (supra, In. 6); but immediately thereafter, he admitted that this contract permitted Respondent to pay Joseph more than was called for. In view of DelValle's testimony about the alleged wage offer, the considerations summarized infra, fns. 8 and 11 , and the witnesses' demeanor, I credit Joseph over DelValle with respect to the matter summarized in the text. A different conclusion is not suggested by Respondent 's contention that Levittown zoning restrictions forbade Respondent to operate its business there. In threatening to move there , DelValle might well have been consciously bluffing. Moreover, credence was lent to such threats by the fact that certain Levittown businesses do operate in violation of zoning worktable that the unions were not bad, that Del Valle was not opposed to them, and that the employees had found in Ruiz a "very weak leader" who would get the employees' quarters from them but could do nothing for them since he had never gone to school. DelValle said that "he would win the election, that he knew the persons who were introduc- ing the Union and that the persons who were introducing it were doing something wrong and that that was going to hinder [Torres ] in [his ] future work because [DelValle] was going to be on the lookout watching the places where [Torres ] went to look for a job in order to cause [him] harm when [he] looked for a job in the future ." DelValle also said that after the election the people would be suspended and the shop would be closed ; but he did not explain which people would be suspended . He said that unions were not bad, but they caused harm to the companies.s 3. Alleged conversations with employee Gomez During the period material here, Respondent's secretary was Miguel DelValle, who is Pedro R. DelValle's brother and it married to employee Gomez' sister. Miguel Del Valle and his wife pay weekly visits to her mother, with whom Gomez lives. During one of these visits after the Union filed its representation petition, Miguel DelValle told Gomez that the Union was no good, that it would steal the employees' money, that Gomez should vote in favor of Respondent because it had done him many favors, that he had better start resigning and getting another job, and that if the Union won "they" would close the shop.9 On at least two occasions after the petition was filed, Pedro R. DelValle told employees Gomez, de la Paz, and restrictions, and both president Pedro R. DelValle and Respondent's then secretary (Pedro's brother Miguel) live there. A My findings under this heading are based on the credited testimony of Torres, who testified that this last conversation occurred at his worktable on a workday "[s]ome days" or "about four days" before the February 14 election. Del Valle testified that he never talked about the Union with Torres or any other employee, and that he never told Torres that labor unions are bad things. On cross-examination, DelValle pointed out that 4 days before the election was a Sunday , when the shop did not work. When asked whether he acknowledged that Torres "had been telling a mistake as to the date," Del Valle replied, "Well, both things . He was mistaken [as to] the date and he was not telling the truth ." Because DelValle's allegation of a mistaken date tacitly assumes that the incident did occur at some time, because of the demonstrated falsity of DelValle 's like testimony regarding another conversation (infra, In. 11), and in view of the witnesses' demeanor, I credit Torres. 8 My findings about the conversation between Gomez and Miguel DelValle are based on Gomez' credited testimony . After denying that he ever made such remarks to Gomez, Miguel DelValle went on to testify that he had no conversations whatever with Gomez between January 1, 1974, and the date of Miguel DelValle's testimony on September 24, 1974. Miguel DelValle conceded that he and his wife visited the Gomez household almost every weekend during this period . While the household is a large one, and Miguel DelValle testified to an impression that Gomez was for some reason trying to avoid him, I cannot believe that Miguel Del Valle did not speak to Gomez during any of these 30-odd visits. Moreover , as found infra, Respondent later terminated Gomez to discourage union activity; and Miguel DelValle had a personal financial interest in seeing to it that Gomez thereafter got a job somewhere else (infra, In. 25). For these reasons, and after considering the witnesses' demeanor, I credit Gomez over Miguel DelValle. CENTRAL AIR CORP. William Rivera that if the Union won he was going to close the Company.10 4. Alleged conversation with employee Galindez About 2 weeks before the election, DelValle asked employee Galindez whether he knew anything about the Union and whether he had signed a union card . Galindez replied that he had not signed a card .1' He had, however, done so (supra, fn. 4). C. The Allegedly Discriminatory Terminations 1. Gomez About July 1972, Company Vice President Miguel DelValle offered a job to Gomez, who is his brother-in-law. Gomez' immediate superior was supervisor Efrain Rami- rez, who was the head of the shop. At the time of Gomez' February 1974 termination, he was receiving $ 1.75 an hour. Gomez spent most of his working time as a mechanic's helper, performing maintenance and service work, but he sometimes worked as an electrician or installed ducts. Two or three times a month, he went to the field and worked alone, performing maintenance work, without the direction of Ramirez, DelValle, or a master mechanic. The rest of the time, he was under the direction of one of these three men. During one period of time , Gomez worked as a helper for mechanic Vazquez, who quit prior to the election. Gomez then began to work as a helper for mechanic Rivera, who quit shortly after the election . Respondent ordinarily assigns a particular helper to work with a particular mechanic as a two-man team. As previously found, prior to the election Company Secretary Miguel DelValle advised Gomez to start looking for another job because if the Union won the election, Respondent would close the shop. Further, as previously found, prior to the election Company President Pedro J. DelValle repeatedly told Gomez and other employees that if the Union won he would close the Company. Prior to the election, all the employees regularly worked 40 hours a week . After the election, employees Gomez, Joseph, and Joseph's helper, de la Paz, were put on "standby" (for which they were paid) during the mornings, and were then sent home if there was no work.12 On February 19, 1974, Supervisor Ramirez put Gomez on "standby" duty at 8 a.m. At 10:30 a.m., Company President DelValle told Gomez that DelValle could cover the maintenance work with only one mechanic and one helper and that Gomez was discharged. 10 This finding is based on Gomez' credited testimony. DelValle denied ever talking to Gomez about his labor activities. However , in view of the witnesses' demeanor and the demonstrated falsity of DelValle's like testimony regarding another conversation (infra, fn. 11), I credit Gomez. ii These findings are based on Galindez' credited testimony. On direct examination, DelValle denied talking to Galindez during March about his union activities. As noted in the text, Galindez testified that their discussion occurred about 2 weeks before the February 14 election . On direct examination and initially on cross-examination, DelValle denied having interrogated any employees about their union activities ; indeed, he denied having spoken to any of the employees about any activities for the Union. However, DelValle's preheating affidavit states, "I asked Gahndez whether he had participated in the petition for election that had been made, to which he answered no, that he had not been aware of it and for such reason he had 2. Tones 207 Tones was hired by Respondent in or about October 1971. Tones and his assistant were engaged primarily in the manufacture of metal ducts, but sometimes in the installation of air-conditioning units . Ramirez was Tones' immediate supervisor, but he also took orders from Company President Del Valle. As previously found, prior to the election DelValle told employee Joseph that he thought Tones was the leader in the union activities and that he was "going to fire [Tones], fire the employees and he hopes [Tones ] gets a job for the rest of the employees." Additionally, DelValle told Tones that he knew the identity of the Union 's "authors," that he was going to "suspend" them after the election, and that he was going to interfere with Tones' obtaining a job elsewhere. On February 22, 1974, when Tones went to the office for his paycheck, DelValle gave him his check and told Tones that "he was very sorry, for [Tones] to look for a job at some other place because [DelValleI didn't have any more work for [Tones], that [DelValle] didn't want any bad people in his shop." DelValle did not explain what he meant by "bad people." DelValle said that Tones was the person who brought the Union into the place . DelValle gave no other reason why Tones was being let go.13 3. Galindez Before March 1, 1974, employee Galindez was working in the field on the installation of ducts for air-conditioning units at the rate of $2.30 an hour. On that date, he was laid off. On April 2, 1974, he returned to work for Respondent at his previous rate of pay, but was assigned to shop and delivery work. 4. Joseph Joseph first started working for Respondent in 1971. He resigned about a year later, but returned to work there on August 20, 1973, at a wage increase. He and his helper, de la Paz, worked primarily on maintenance and service calls in the field. Joseph was paid $2.50 an hour. His immediate supervisor was Company President DelValle. As previously found, prior to the election DelValle offered Joseph a raise if he would sign a letter of withdrawal from the Union, but Joseph in effect refused. Further, after the election DelValle asked Joseph to enable him to avoid negotiating with the Union by accepting a subcontract for all of Respondent's service and mainte- complained to me that the other employees had put pressure on him." When this affidavit was drawn to DelValle's attention, he acknowledged having asked Galindez whether he had participated in the petition for an election. Because of these inconsistencies and the witnesses' demeanor, I accept Galindez' testimony over DelValle's to the extent they may be inconsistent. 12 No contention is made that Respondent thereby violated the Act. 13 My findings about the termination interview are based on Torres' testimony. DelValle testified that Torres was suspended "Because we didn't have a job for him and I told him I am sorry because he was one of the best operators I had, but I told him I would have to layoff [sic ] him until I could call him back." In view of Joseph's credited and indirectly corroborative testimony about DelValle's suspicion that Torres was the union leader, and because Torres' demeanor impressed me more favorably than DelValle's, I credit Torres. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nance work and, when Joseph conditioned his acceptance on DelValle's subcontracting work to the "fired" employ- ees, solicited Joseph's resignation by offering him a service letter sufficient for a "diploma" and threatening to find a way to get rid of him if he did not "cooperate." About March 13, 1974, DelValle called Joseph into his office, closed the door, and said, "well, the union is in and there is a way that I have to find out to get rid of you." He then gave Joseph two copies of a letter, one of them bearing DelValle's signature, which alleged certain defi- ciencies in Joseph's work and threatened him with "action" if they were not corrected.14 Joseph thereupon offered to quit. However, this did not satisfy DelValle, who told Joseph that if he signed the copy which did not bear his signature, he would give him a letter stating that he had enough hours of work to entitle him to a "diploma" (supra, fn. 6), and would see to it that Joseph did not really lose his job but would perform the same work as before, being paid "on the side" rather than as a part of Respondent' s regular payroll. Joseph replied that he would "think about it" and left the office. About a half hour later, Joseph telephoned Del Valle and asked the real reason for his proposal. DelValle replied that he "had to negotiate with the union and that he doesn't have no money and he cannot afford it." Joseph again said that he would "think about it." Later, Joseph told DelValle that he would not sign the letter because it was untrue. On April 2, 1974, DelValle approached Joseph and said that he had a recommendation letter for him and wanted him to write a resignation letter. Joseph replied that DelValle would have to talk to the director of his school (supra, fn. 6). DelValle replied that he did not have to talk to the director, that he was the boss and could do anything he felt like doing. Joseph said that he was not going to accept the letter of recommendation or resign. DelValle stated that he was asking for Joseph's resignation because "if one employee stayed in the Company . . . he would still have to negotiate with the Union." DelValle told Joseph to get off the property if he did not want to resign. Joseph asked for a letter explaining the reason for his discharge; DelValle replied that he was not going to give Joseph anything and did not have to. The only reason DelValle then gave for Joseph's discharge was a desire to avoid negotiations with the Union.15 D. Evidence Bearing on Respondent's Explanations for the Terminations 1. Gomez, Torres, and Galindez It is uncontradicted that eight employees were in the unit on February 14 (the date of the Union's election victory) 14 This letter is reproduced in its entirety infra, sec. 11, D,2. 15 My findings in the preceding two paragraphs are based on Joseph's testimony. I have previously discredited DelValle' s general denials that he ever talked to Joseph about the Union (supra, fn. 7). Aside from this discredited testimony, DelValle neither denied that any of the conversations in these two paragraphs occurred, nor gave his own version of them. IS Respondent's counsel solicited a stipulation that these three were eliminated because these customers did not pay their bills. Whether or not counsel for the General Counsel accepted this offer, a matter not wholly clear in the record, the offer is inconsistent with a position that the elimination decision was made by the customer rather than Respondent. 17 My finding in this sentence is based on Joseph's undenied and and two were in the unit on April 2 and on various subsequent dates including the dates of the hearing (September 25-27). Respondent's counsel averred in his opening statement, and DelValle testified, that Gomez, Tones, and Galindez were laid off on February 19 and 22 and March 1, respectively, because Respondent had no work for them to do. Counsel for the General Counsel contends that in order to lend substance to Respondent's allegedly untruthful claim that these employees were put and maintained on layoff status for lack of work, the amount of work performed by Respondent's own employ- ees was held down by the devices discussed below. a. Alleged abandonment of service contracts for antiunion reasons and contracting out of service work Prior to being terminated, Gomez had spent most of his time on maintenance and service work. At the beginning of April, about 5 weeks after Gomez's termination, Respon- dent had 28 service contracts, of which 3 were eliminated on April 2.18 Prior to Joseph's April 2 discharge, he, his helper, and sometimes other mechanics had made service calls to Cushman & Wakefield and to Pharmaseal. DelValle testified that thereafter he made an agreement with a cousin, Rafael Jiminez, who was not on Respon- dent's payroll, to pay him an undisclosed hourly rate from company funds for hours he spent making maintenance calls for Respondent. Between May and September, Respondent paid him $1,100 for service calls to Cushman & Wakefield and $800 for service calls to Pharmaseal.17 Jiminez had no license and, when an employee of Respondent during an earlier period not specified in the record, had worked as Joseph's helper. Company Supervi- sor Ramirez testified that, as of September 25, Respondent had about 15 or 20 "small" maintenance contracts. DelValle testified that the main purpose of Respondent's maintenance and service operation was to keep in contact with clients whose air-conditioning systems had been installed by Respondent, and to get their "good opinion"; "like a non-profit activity, just like a promotion." He testified that in January he had two mechanics and two helpers performing maintenance and service, but helping at times on construction work; one mechanic and one helper on the installation of duct work; and two employees in the shop. He further testified that the Respondent's 28 monthly service contracts as of April 2 paid "$25, something like that" a month (of which more than 25 percent did not pay on time),18 but that the total amount of such payments over a year "wouldn't cover at least 20 percent of the payroll of the year . . . . Once the company has a construction project, once I have plans for designing, credited testimony about what Jimenez told him. Such testimony was received without objection from Respondent's counsel and in the presence of DelValle. Under these circumstances, and in view of DelValle's corroborative testimony about Jimenez, I attach full probative weight to Joseph's testimony in this respect. American Rubber Products Co. v. N.L.R.B., 214 F.2d 47, 52 (C.A. 7); Local 901, International Brotherhood of Teamsters v. Compton, 291 F.2d 793, 796-797 (C.A. 1); Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168, 173-174 ; International Union, United Automobile, Aerospace and Agricultural Implement Workers (GyrodyneJ v. N.L.R.B., 459 F.2d 1329, 1335-1339 (C.A.D.C., 1972). 18 Joseph testified without contradiction that Pharmaseal's service contract with Respondent paid about $600 a month. CENTRAL AIR CORP. 209 that is money income that I could use for preserving a group for keeping and giving that service and keeping in contact with the customer, but if I don't have any of this source of money, what is my alternative for keeping in business?" Leon Lyon Martin (hereinafter Lyon, see supra, fn. 2), who had purchased air-conditioning units installed by Respondent and had a contract with Respondent for their maintenance at a monthly stipend, testified that while this contract was still in force Company President DelValle told him that he "was considering to eliminate the service contracts or maintenance due that they expected a union to come in and that [Lyon] should look for somebody else to give [him ] maintenance." Lyon testified that this conversa- tion occurred in February or, perhaps, January. Lyon went on to testify that he related this incident to Joseph, who, in turn, testified that Lyon mentioned the matter to him on January 24. Lyon further testified that around April or May, after he had arranged with another firm for maintenance, DelValle told him that he had given up the service contracts due to the Union and union problems. Lyon testified that DelValle never told him that he did not want to continue the maintenance service because Lyon did not pay on time. DelValle testified that he had severed business relation- ships with Lyon because he did not pay on time and still owed Respondent about $80. DelValle further testified that he had never talked with Lyon about the union activities of Joseph or anyone. When asked whether DelValle ever told Lyon that he was going to end service and maintenance operations because he had labor union problems, DelValle testified, "No, I never told such a thing, and also if I commit a mistake to do it, I would be affecting my relation with him and also my, let's say, my condition knowing the internal problems the company had. That is something of our concern that I consider is a matter of being discussed in the office and with the people concerned with the office, just only them, and also Mr. Lyon was one of the worst clients I had." As to this conflict in the testimony, I credit Lyon over DelValle. Lyon, unlike DelValle, has no interest in the results of this litigation. His demeanor impressed me favorably, and I do not think that his disputes with Respondent over the quality of service and the regularity of payment would induce him to lie under oath.19 His testimony is indirectly corroborated by DelValle's threats to combat the Union through subcontracting, and by his efforts to make such arrangements with employee Joseph. Moreover, DelValle's testimonial reliance on his alleged unwillingness to "affect my relation with" Lyon is difficult to reconcile with DelValle's alleged anxiety to terminate that relationship and, furthermore, is a curious explanation for failing to tell Lyon something which according to DelValle was not true. Also, the conversations testified to by Lyon provide some explanation for DelValle's effort to deprecate, as a mere promotion, the service and mainte- nance operation which absorbed almost half of Respon- 19 Company Supervisor Ramirez testified that Lyon made a large number of baseless complaints about the air conditioning, and DelValle that Lyon complained "viciously" and was a "perfectionist"; but Joseph testified that he thought that the kind of units installed at Lyon's establishment were all defective when they left the factory . Lyon testified dent's work force and contributed at least $1 ,275 a month gross revenues to a firm allegedly in economic straits. b. Alleged rescheduling and contracting out of work on the Pamcor job in Las Piedras Respondent's contract on the 1973-74 Pamcor job in Las Piedras called for it to put the air-conditioning units on the roof, fabricate the ducts, insulate the ducts, and install them. Respondent put the air-conditioning units in place on the roof on November 13, 1973. Because of the time needed by other contractors to complete necessary inter- vening steps on the project, the project was not ready for the ducts' installation until June It, 1974. Before the petition was filed about January 15, 1974, Torres was engaged in fabricating ducts for this Pamcor job. After the petition was filed, the tickets for the material were picked up and everything was called off. Torres was laid off on February 22. Respondent did not resume its fabrication of ducts for the Pamcor job until about June 11, when the project was ready for the installation of the fabricated ducts. Respondent fabricated the duct work at its own shop with its own employees-Galindez (who before his 1-month layoff during March had performed duct installation work) and Vincent Arce, whom DelValle described as a sheet metal worker. However, Respondent had the duct insulation work performed by a subcontrac- tor, and had the installation of the ducts performed by another subcontractor. This air-conditioning job, which was in its last stages at the time of the hearing in September 1974, was substantially the same as a job performed by Respondent in or about 1970 for the same building and calling for about the same number of air-conditioning units. In 1970, Respondent subcontracted the duct insula- tion work, but both the fabrication and the installation of the ducts were performed by Respondent's own employees. The 1970 installation job required the services of three or four of Respondent's employees, including Galindez. There is no evidence that the 1970 work force was more skilled than the 1974 work force. Rather, DelValle testified, "I never had a group that was very skilled. I subcontract all the things that require skill." 2. Joseph Respondent's counsel averred in his opening statement that Joseph was not discharged, but was laid off, and that he was laid off for the same economic reasons which allegedly motivated Respondent's action as to the others. However, Company President DelValle testified that he fired Joseph, and did so because "since the election comes, he started motivating some complaints from many custom- ers who were calling to the office asking me if we had some other mechanic to send instead of [Joseph ] because they didn't want to do with him because they don't like the way he behaves and the way he treats his assistants." 20 that his accountant did not want to write individual checks for as little as $40, the monthly stipend which he owed Respondent ; but that he did not believe there were any outstanding debts and "our credit is of the best." 20 So far as the record shows, Joseph had only one assistant, de Is Paz, during this period. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent offered into evidence a letter from the PIP21 dated March 15, 1974, threatening to rescind its mainte- nance contract with Respondent unless it sent a service- man other than Joseph. The letter alleged that Joseph was "rude . . . always seems to be annoyed and . . . dislikes being asked questions or that observations be made to him. He is rough and hostile." The letter further asserted that after the PIP rejected Joseph's suggestion that it use different size filters because they would make his work easier, he left without installing them . Further, the letter asked Respondent to send someone else as soon as possible to install the filters . DelValle testified that PIP also made several telephoned complaints about Joseph, whose date and content he did not specify . DelValle testified that he did not show this letter to Joseph: Because there were many complaints and if I was going to show him all the things that I received, the complaints, the phone complaints, maybe I was stimulating him for correcting his faults , but if I was being specific with a customer, maybe the next time he would do worse, so that it is a matter of being diplomatic when you call the attention to an employee. You cannot tell directly to him that the customer has been complaining about him, because maybe the next time you have to send him there. But in this one, it was definite that they don't want him there anymore. In addition, Respondent offered into evidence the following letter from a second customer, Cushman & Wakefield of Puerto Rico, Inc.: Pursuant to your request, I am confirming what I said in the telephone conversation that we had last Tuesday with your office. As I had informed you, the equipments that you repaired on December 18, 1973, were not operating satisfactorily. The reason for not having called you before, as you suggested, was due to the fact that on that date your mechanic, Mr. Alphens Joseph [sic ], told us that your company was going to cease its operations because it was having problems with a labor union.22 Thanking you for the service that you gave us anew and hoping to have complied with your request, I remain Cordially yours, H. Rodriguez Superintendent Prior to Joseph's discharge, H. Rodriguez, who signed the foregoing letter from Cushman & Wakefield to Respondent, had given him permission to use Rodriguez' name as a reference on Joseph's application for a job with Cushman & Wakefield, where Joseph obtained a job after Respondent discharged him. Cushman & Wakefield's letter to Respondent is dated April 11, 1974, 9 days after Joseph's discharge and 3 days after Respondent received the third amended charge attacking Joseph's termination. In connection with this letter, DelValle testified: A. [By Mr. DelValle]: . . . when I was making a declaration to [Board investigator] Fernandez .. . when he asked me if I had been talking with any customer things that was related with the union, I said to him no, but immediately I recall that I had a call the day before from a customer who told me that Mr. Joseph had been commenting with him some problem, and Mr. Fernandez asked me if I could get a proof or a letter that would confirm that .. . Q. [By Mr. Martin] You never mentioned this to Mr. Joseph then, right? A. No. I called him the attention and told him that he should not be making commentaries concerning the company's affairs with clients. By the way, later - Q. No. Then you did not mention this particular matter to him? A. No, because if I had to send him there, probably he could be against the customer and probably do something against him. DelValle did not specify any other customers who complained about Joseph. He did however, testify: Q. [By Mr. Luciano] Did at any time you call Mr. Alpheus T. Joseph in relation to this [PIP and Cushman] letters? A. In relation to the complaints I called . . . him the attention and I let him know that I wouldn't like that these things get repeated, otherwise we have to commit some other decisions about his status in the company. Q. And what happened? A. That he put no interest in my advice and keep doing the same things and I keep receiving calls, complaints and so forth. Q. What did you do? A. Well, I decided to fire him suspended limited, suspended him permanently because he was affecting my business relation. It is uncontradicted that DelValle did not refer to any customer complaints when discharging Joseph. As a rebuttal witness, Joseph testified on direct examination that DelValle had never given him any warning about any complaints from customers , or spoken to him about complaints from any customers , or shown him any letters from any customers . During his cross-examination, Res- pondent offered as impeaching evidence a letter given to Joseph by DelValle under the circumstances summarized supra, section II, C,4.23 This letter is dated March 13, 1974, and reads as follows (Resp. Exh. 3): The following is to call your attention about your behavior during the past three weeks. Thus, is my purpose to list up all the things that I have been informed and to advice [sic] you to stop this practices, that in one way or another can affect our good 22 There is no record evidence of any union activity at Respondent's shop prior to January 1974. 23 DelValle did not testify about the circumstances under which he gave Joseph this letter. CENTRAL AIR CORP. relations with our customers and our order in process- ing the services call that are received in our office everyday. First: You are not calling to the office whenever you finish a service, letting the office unable to contact you on any emergency call. Second: On the services sheets you are not filling the time space when you start and finish a service. Third: You have been rejecting to receive orders from Mr. Ramirez when I'm not at the office knowing that he is my representative. Four: Some of our customers has been complaining about your loud comentaries [sic] about labor relations and our internal things when you visit them. This kind of customers are very strict about this concern, because some of them are the managers of the factories where you have been committing this faults. Having you informed about this, I hope you would not repeat the same, thus we will be forced to take action. There is no record evidence that Respondent at any other time mentioned to Joseph the first three items listed in this letter. Joseph credibly testified without contradic- tion that, before he received the letter, nobody had ever mentioned any alleged failure by Joseph to call into the office after finishing a service call, or said anything about any alleged inability by Respondent to reach him for emergency calls. Joseph credibly testified that he had called into the office after each service call unless he was unable to find a working telephone in the area . Joseph further credibly testified without contradiction that he had always filled out the time spaces on his service sheets, and that before he received this letter nobody ever spoke to him about any alleged failure to fill out these spaces. In addition, Joseph credibly testified without contradiction by anyone - including Ramirez, who testified for Respon- dent - that he ordinarily received service orders from Ramirez and had never had any problems with Ramirez about these orders, and that before Joseph received this letter nobody had ever brought to his attention any alleged refusal to accept orders from Ramirez. Finally, Joseph credibly testified without contradiction that although he had in fact talked to three named customers about labor relations, it was they and not he who brought the matter up. In this connection, Joseph testified that during a service call between the January 15 petition and the February 14 election, Rodriguez of Cushman & Wakefield asked him about the Union movement among Respon- dent's employees. E. Analysis and Conclusions 1. Alleged independent violations of Section 8(axl) I find that Respondent violated Section 8(ax1) of the Act 24 1 do not, however, find that Respondent violated Sec. 8(a)(l) by asking employee Torres whether he knew there was a petition for an election. I believe that this was merely a rhetorical question which was not intended to or understood as seeking to elicit any particular answer. 25 Miguel DelValle testified, ". . . where [Gomez] lives, I pay rent of 211 when Pedro R. DelValle, Respondent's president, (1) told employees Joseph, Gomez, de la Paz, and Rivera that the shop would be closed if the Union won; (2) told employee Joseph that if the employees voted for the Union, he was going to close the Company and subcontract its work; (3) told employee Joseph that Respondent was going to close the shop because of the Union activities; (4) told Joseph that in order to avoid negotiating with the Union, Respondent was going to fire all the present employees, move to Levittown, and hire all new employees; (5) told employees Joseph and Tones that Respondent would discharge the union leaders and the employees who voted for the Union; (6) told employees Joseph and Tones that because of the union activities, DelValle would interfere with the employees' getting and keeping jobs elsewhere; (7) offered to give Joseph and his helper a raise if Joseph would not negotiate with the Union and would take his name off his union card; and (8) threatened to discharge Joseph if he failed to cooperate with his plan to avoid negotiating with the Union by subcontracting all the maintenance and service work, and offered him a letter of recommendation if he cooperated to the extent of resigning. I also find that Respondent violated Section 8(axl) when President DelValle interrogated employee Joseph. as to whether he knew anything about the Union, who brought the Union into the Company, and who brought cards into the Company, and interrogated employ- ee Galindez about whether he knew anything about the Union and whether he had signed a union card. I base my finding that such interrogation violated Section 8(a)(l) partly on the fact that both employees untruthfully disclaimed knowledge about the matter; that DelValle also told three employees, including Joseph, that he planned to discharge employees for union activity; that Respondent in fact did discharge some threatened employees (including Joseph) for union activity; that DelValle's interrogation sought information useful for accomplishing his an- nounced discriminatory purpose; and that such interroga- tion served no apparent legitimate purpose.24 I conclude that Respondent further violated Section 8(a)(l) of the Act when Company Vice President Miguel DelValle told employee Gomez that he had better start resigning and getting another job, and that if the Union won "they" would close the shop. Miguel DelValle was concededly at this time a supervisor for Respondent, and his closure threat echoed similar threats made to Gomez and other employees during this same period by Company President Pedro R. DelValle, Respondent's principal officer, who was Miguel's brother and neighbor and discussed with him Respondent's business, including the union activity there. Moreover, as found infra, Respondent subsequently terminated Gomez and other threatened employees to discourage union activity. It is true that Miguel DelValle is Gomez' brother-in-law, had arranged for Gomez' hire by Respondent, and had some personal financial interest in Gomez' holding on to a job.25 However, these same considerations would likely indicate that house. If he can't support to that house, you know, counterpoint, if he doesn't find work . . . . I have to pay his house and me and my wife have to support the house that he is living in and thirteen brothers that he has. Anyway, we have to support that family , I have evidence of that ; even his house, the milk, and if I don't want him working with us , I have to support (Continued) 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Gomez that Miguel DelValle knew what he. was talking about, was serious, and was not bluffing . Cf. Caster Mold & Machine Co., Inc., 148 NLRB 1614, 1621 (1964); Dixisteel Buildings, Inc., 186 NLRB 393, 402, enfd. 445 F.2d 1260 (C.A. 8, 1971). I see nothing in the record to support the complaint allegation that Respondent threatened its employees with more onerous work rules and conditions if they engaged in union activity.26 Hence, I shall recommend that this portion of the complaint be dismissed. 2. Alleged discrimination against employees, in violation of Section 8(aX3) and (1) As found supra, beginning about a week after the Union filed its January 15 petition and continuing until Joseph's April 2 termination, Respondent repeatedly evinced an intention to abort the union movement by depriving employees of their jobs through the technique, among others, of contracting out work . While the Union's representation petition was pending , Respondent told his customer Lyon that because of the union movement he was discontinuing service work, and told employee Gomez, who had been performing such work, that his job might disappear because of the Union and he had better look for a job elsewhere. Then, DelValle told Gomez, 5 days after the Union's unanimous election victory, that he was being laid off for lack of work. Thereafter, DelValle told Lyon that Respondent had given up service contracts because of the Union and union problems. Nor was Gomez recalled after the discharge of service mechanic Joseph . Instead, DelValle arranged for the performance of service work by his cousin Jiminez, whose skills, like those of Gomez, were those of a helper.27 Likewise,- while the petition was pending, President DelValle expressed the belief that Torres was the leader in the union movement, and told employee Joseph that he was going to fire Torres . DelValle also told Torres himself that he knew the identity of the Union's "authors" and planned to suspend them after the election . By adding that he intended to interfere with Torres' postelection search for a job, DelValle made it clear to Torres too that he would be among those suspended for union activity. Three days after terminating Gomez, Del Valle told Torres, who DelValle conceded was one of Respondent's best opera- tors, to look for a job elsewhere because DelValle "didn't have any more work" for Torres, that DelValle "didn't want any bad people in his shop." DelValle further remarked on this occasion that Torres was the person who brought the Union into the plant. When the Pamcor job later reached the point where the ducts had to be installed, Respondent made no effort to recall Torres, an admittedly able operator who had been fabricating the ducts before the petition was filed. Instead, Respondent assigned the fabrication of the ducts to Galindez and Arce, and subcontracted to another concern installation work indis- tinguishable from installation work which Respondent had him anyway. My interest is for him to keep working on the unit all day, Central Air Conditioning." " The record fails to show what DelValle meant in referring to "new company laws" during his March conversation with Joseph. performed, 4 years previously, with its own employees, including Galindez. After terminating Gomez and Torres, DelValle asked service mechanic Joseph to enable him to avoid negotiating with the Union by accepting a subcontract for all Respondent's service and maintenance work. When Joseph failed to give a reply satisfactory to DelValle , he offered Joseph a service letter if he would resign , and threatened to find a way to get rid of him if he did not cooperate. Later, DelValle offered Joseph a service letter and a job "on the side" in an unsuccessful effort to induce Joseph to provide evidence of imaginary deficiencies which would provide a pretext for his ostensible discharge and thereby help him avoid having to bargain with the Union. On April 2, DelValle again solicited Joseph's resignation because "if one employee stayed in the company ... he would still have to negotiate with the Union." When Joseph again refused to resign, DelValle discharged him without any further explanation. In consequence of these terminations , all of which preceded DelValle's contract negotiations with the Union, by the time a contract was orally agreed to the unit had been reduced in size to two employees, as compared to eight when the election was held some 3 months earlier. Accordingly, even if the Union had executed the contract, it could have had little effect on Respondent's costs. In any event, the Union never troubled to execute the contract. While the record fails to show the Union's reasons, the diminution in the size of the unit , owing partly to the three discriminatory terminations, was calculated to cause the Union to lose interest. I conclude that the foregoing evidence shows, at least prima facie, that Gomez, Torres, and Joseph were terminat- ed to discourage union activity, in violation of Section 8(aX3) and (1) of the Act. I further conclude that this prima facie case is not overcome by the evidence relating to Respondent's explanations for the terminations. Thus, I do not believe that serviceman Gomez was put and maintained on layoff status simply because Respon- dent's service work fell off and Rivera, the latest service mechanic whom Gomez had been serving as helper, resigned. Rather, DelValle's statements to Lyon that union problems motivated Respondent's abandonment of service contracts, and his repeated threats to combat the Union by contracting out work, lead me to infer that any absence of service work for Gomez (perhaps with a new mechanic, although former helper Jiminez managed alone) was created by Respondent to provide a pretext for taking and keeping Gomez off the payroll. Similarly, I do not believe that Torres was taken and kept off the payroll simply because Respondent had no shop work. This contention is inconsistent with Respon- dent's unexplained April action in recalling Galindez, rather than Torres, to perform shop work, although prior to being laid off Galindez had been performing installation work and Torres had been performing mostly shop work. Moreover, this contention is inconsistent with Respon- 27 Juninez received sums which would have paid Gomez' wages for 27 weeks - that is, from the time of his termination until a few weeks before the hearing. CENTRAL AIR CORP. dent's June 1974 action in subcontracting Pamcor installa- tion work like that performed in 1970 by Galindez and having Galindez complete the Pamcor duct fabrication work begun by Torres, one of Respondent's best operators, before his layoff. Furthermore, I do not credit DelValle's explanation for Respondent's action in discontinuing the Pamcor duct fabrication performed by Torres before his February layoff, and not resuming such fabrication until June, when the project was ready for the installation of the fabricated ducts. DelValle credibly testified that if a contract calls for payment when the duct work is fabricated and put on site, Respondent can proceed immediately, because then it can get its money back at once. Thereafter, he testified as follows: Q. [By Mr. Martin] Now, isn't it a fact, Mr. DelValle, that the fabrication for the Pamcor project in Las Piedras was begun in February in your shop? A. It was intended to be, but when we checked the clause of the contract that says that the duct work has to be billed when they are installed , we had to stop the fabrication; so we couldn't fabricate it. Q. But you did begin it. A. We tried, but we had to stop, and also there was a week of rain there that stopped all the things that all the contractors were doing there. Q. But isn't it a fact that Felipe Torres was doing that fabrication when he was laid off? A. He started it and I wish he could fabricate the whole of it, because by that time the sheet metal was costing 11 -1/2 cents a pound. I have to finish that project paying 30 cents a pound for steel. The veracity of DelValle's testimony that it was Respondent's discovery of the Pamcor payment clause which caused the 3-month break in duct fabrication is drawn into question by the consequent inappropriateness of his further allegation that "We tried, but we had to stop" the fabrication, by the manifest straw-grasping in his allegation about a week's rain to explain a delay of 3 months, and by Respondent's failure to produce the Pamcor contract (supra fn. 17). For these reasons, and in view of DelValle's demeanor, I do not credit his testimony about the reasons for the delay. Rather, I find that Respondent abandoned the duct fabrication in anticipation of Torres' layoff for union activity, delayed resumption of the fabrication for as long as it could in order to provide a pretext for keeping him off the payroll, and-when the fabrication had to be complet- ed because the project was ready for the ducts to be hung-contracted out the installation work in order to provide a pretext for assigning fabrication to Galindez (who before his layoff had done mostly installation work) and keeping Torres off the payroll because of his suspected union leadership. I note that Respondent was using a very similar technique for keeping Gomez off the payroll; indeed, a few weeks before the layoffs, Gomez (and also Torres) had performed duct installation work at another project, the First Federal Building. 28 Respondent does not appear to contend that Joseph was discharged for the other deficiencies alleged in this letter. Nor would the record furnish 213 Nor do I believe that Joseph was discharged because of complaints from customers about his behavior. It is uncontradicted that DelValle did not mention this matter to Joseph when discharging him. Further, I credit Joseph's testimony that aside from DelValle's March 13 letter to him, which constituted a transparent attempt to create a paper basis for an ostensible discharge of Joseph,28 DelValle never told him that customers were complaining about him, and I discredit DelValle's testimony that he told Joseph about complaints from PIP and Cushman & Wakefield. I rely on their demeanor; the fact that after Respondent discharged Joseph, Cushman & Wakefield hired him with the recommendation of the superintendent who had signed its postdischarge letter to Respondent describing its alleged conversation with Joseph about the Union; the fact that this letter makes no assertion that this conversation or any other conduct by Joseph was objec- tionable to Cushman & Wakefield; the strong suggestion in DelValle's testimony that he did not learn about this conversation until after Joseph's discharge; and the implausibility of DelValle's explanation for never showing Joseph PIP's letter directing DelValle not to send him again-namely, that DelValle was afraid that knowing it was PIP which had complained about Joseph might lead Joseph to be rude again when he returned to PIP. For the foregoing reasons, I find that the evidence preponderantly shows that the real reason Respondent terminated Gomez, Torres, and Joseph was a desire to discourage union activity, in violation of Section 8(a)(3) and (1) of the Act. However, I conclude that counsel for the General Counsel has not sustained his burden of proof with respect to Galindez' 1-month layoff, which DelValle testimonially attributed to lack of work. There is no evidence that during this period Respondent had any installation work, which was the kind of work Galindez had been performing before his layoff. Nor is there evidence that Galindez was more active in the Union than were other employees. While it is true that DelValle asked him whether he had signed a union card (as had all the other employees), DelValle may well have believed Galindez' untruthful denial. According- ly, I shall recommend dismissal of the complaint as to Galindez' layoff. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act by threatening employees with reprisals for union activity, by offering employees benefits for rejecting the Union, and by interrogating employees about union activities in a manner constituting interference, restraint , or coercion. 4. Respondent has violated Section 8(a)(3) and (1) of the Act by laying off employees Torres and Gomez, and discharging employee Joseph, to discourage union activity. support for such a claim, particularly in view of Joseph's uncontradicted and credible testimony about these allegations. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not, in violation of Section 8(a)(1) of the Act, threatened its employees with more onerous work rules and conditions if they engaged in union activity. 7. Respondent's layoff of employee Galindez did not violate Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom . Because Respon- dent's unfair labor practices included the discriminatory termination of more than a third of its work force - conduct which goes "to the very heart of the Act" (N.L.R.B. v. United Mineral and Chemical Corp., 391 F.2d 829, 837-838 (C.A. 2, 1968))-for a specific purpose of assuring Respondent that nothing of substance would result from the Union's certification, Respondent's unlaw- ful conduct leads me to anticipate that , unless restrained, it will engage in "continuing and varying efforts to attain the same end in the future" (N.LR.B. v. Express Publishing Co., 312 U.S. 426, 437-439 (1941)). Accordingly, I shall recommend that Respondent be required to cease and desist from infringing on employee rights in any other manner. N .L.R.B. v. Southern Transport, Inc., 343 F.2d 558, 560-561 (C.A. 8, 1965). Company President DelValle and Company Supervisor Ramirez testified that as of September 1974, Respondent was, like many other Puerto Rican construction firms, in a "very critical" economic condition, having acquired no new projects during 1974. DelValle testified that the only air-conditioning systems which Respondent installed in whole or in part after the unlawful terminations consisted of the Pamcor installation (resumed in June 1974, more than 2 months after the final discriminatory termination, and in its last stages during the September 25-27 hearing), and installations in Carolina and Arecibo , both resumed in early September and still in progress during the hearing. DelValle testified that owing to recent sharp increases in steel and copper prices, these latter contracts were being performed at a loss. DelValle further testified that Respondent was attempting to develop a new kind of water tank, and if this did not succeed, Respondent faced bankruptcy. Accordingly, even if the discriminatees had not been unlawfully deprived of work , Respondent might not have had work for them during periods following their discriminatory termination. Under these circumstances, I shall recommend that Respondent be ordered to offer such employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and, in the event there is insufficient work for all such employees, to dismiss, if necessary, all persons who were newly hired after the discriminatory terminations, and also discontinue, if necessary, all subcontracts for work which Respondent's employees are capable of doing, unless 29 See N.L.R.B v. Izzi, 395 F.2d 241, 242-243 (C.A. 1, 1968). 30 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. Respondent can affirmatively show that such work would have been subcontracted even if the discriminatees had not been terminated 29 If no job is then available for any or all of the discriminatees, Respondent shall place them on a preferential list, and thereafter offer them reinstatement as jobs become available and before other persons are hired for such jobs. I shall also recommend that Respondent be required to make the employees whole for any losses they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of such discrimination to the date of the offer of reinstatement or placement on a preferential hiring list, as the case may be, less his net earnings during said period, the backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as called for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In view of my finding that the service work subcontracted to Rafael Jiminez and the subcontracted installation work on the Pamcor project would under Respondent's prior practice have been performed by Respondent's own employees, and were subcontracted to disguise Respon- dent's antiumon motive for failing to reinstate its own employees, for purposes of computing backpay such subcontracted work shall be considered as work which would have been performed during the backpay period by Respondent's own employees but for the discrimination against them. In addition, I shall recommend that Respondent be required to post appropriate notices, not only in English, but in Spanish, the principal language in Puerto Rico and the native language of most of the persons involved in this case. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 30 Respondent Central Air Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals if operations are organized by Confederacion Obrera Puertorriquena, hereinafter called the Union, or any other labor organiza- tion; offering employees benefits if they reject the Union or any other labor organization; and interrogating its employees about the activities of the Union or any other labor organization in a manner constituting interference, restraint, or coercion. (b) Laying off or discharging any employee, or otherwise discriminating against any employee in regard to hire or tenure of employment, or any term or condition of employment, to encourage or discourage membership in the Union or any other labor organization, except to the 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. CENTRAL AIR CORP. extent such conduct may be permitted by an agreement in accordance with the proviso to Section 8(aX3) of the Natignal Labor Relations Act, as amended. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer reinstatement to employees Felipe Torres Figueroa, Francisco Gomez Lopez, and Alpheus T. Joseph, without prejudice to their seniority or 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 set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all contracts and subcontracts , all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to an analysis of the amount of backpay due under the terms of this recommended Order. 31 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 read "Posted Pursuant 215 (c) Post at its shop in Santurce, Puerto Rico, and at all projects where its employees are doing work in connection with the installation of air-conditioning systems, copies in English and Spanish of the attached notice marked "Appendix."31 Copies of the notice on forms to be provided by the Regional Director for Region 24, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that all other allegations of the complaint be dismissed, including the allegations of unlawful discrimination against Dolores Galindez Ramos. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."