Robertson Industries

ROBERTSON INDUSTRIES Robertson Industries and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, Local 509 (UAW). Case 21-CA-12426 January 30, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 29, 1974, Administrative Law Judge Earldean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respondent filed a brief in opposition to the General Counsel's exceptions. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt her recommended Order as modified herein. We agree with the Administrative Law Judge that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating an employee regarding the union activities and sympathies of employees, by threatening to discharge employees if they engaged in a strike or other protected work stoppage, and by threatening employees with reprisals if they persisted in their union activities. Unlike the Administrative Law Judge we find that the Respondent also violated Section 8(a)(1) of the Act by unlawfully discharging 34 employees on February 4, 1974, because they engaged in protected concerted activities.' The facts in the case at bar with respect to the additional 8(a)(1) violation which we find may be summarized as follows: As found by the Administra- tive Law Judge, the Respondent's employees en- gaged in a protected refusal to work in November 1973 because of problems concerning a heavy workload. As further found by the Administrative Law Judge, the employees returned to work after being unlawfully threatened with discharge by the Respondent if they did not do so. However, because the underlying problems were not resolved after their return to work, the employees began discussing the possibility of obtaining union representation. In furtherance of a resolution of their problems at work, several employees contacted the Union and obtained employees' signatures on union authorization cards. The Union filed a petition for a representation election on January 18, 1974. Several days thereafter, as found by the Administrative Law Judge, an agent i We find it unnecessary to consider whether such conduct also violates Sec. 8(aX3) of the Act since the remedy which we would provide in light of 216 NLRB No. 62 361 of the Respondent unlawfully interrogated and threatened an employee concerning protected activi- ties of the employees. Thereafter, on Friday, Febru- ary 1, 1974, a meeting of employees with the Union was held during regular working hours at the request of the employees. On the following Monday, Febru- ary 4, 1974, the Respondent terminated each employ- ee who had not worked the preceding Friday. In considering the foregoing facts, as more fully set forth in her Decision, the Administrative Law Judge found that the employees who attended the February 1, 1974, union meeting thereby engaged in a concerted work stoppage. However, 'she found nothing in the record to establish that the purpose of the February 1 meeting was to resolve any problems, nor any evidence that the employees who attended the meeting withheld their services in immediate protest of any term or condition of employment or for the purpose of seeking any immediate concession from the Respondent. Instead, she found that the employees merely took the day off to go to a union organizational meeting. She further found that the employees' conduct must be considered as a part of a pattern of recurring or intermittent partial work stoppage. Accordingly, the Administrative Law Judge concluded that the concerted activity of the employees was unprotected by Section 8(a)(1) of the Act. The record shows that, in disseminating informa- tion about the February 1 meeting, employees characterized its purpose as being a discussion and resolution of problems at work; such was understood by attending employees to be the purpose of the meeting; and, in fact, the employee problems and feasible solutions thereto were discussed by the employees at the meeting. In this regard we note that employee Arturo Ramos testified that he told 35 employees that "we were working too hard and that we could find a way so that we would not have to work that hard so we would not be treated that way ... that's how we agreed to have the meeting...." He further testified that prior to the meeting he talked with about 30 people in the Employer's parking lot and that "we spoke about having' a meeting to talk about the problems we had at work; that's why we couldn't go to work." He also testified that "we agreed that we would have to have a meeting in the Union so that each one of them could remember the problems that he had so that they could tell them, recount them to the union officials" and that "at the meeting we spoke about the problems each one of them had . . . we spoke about having to work too hard . . . ; they sold us the gloves and there was no . . . receipt; some of them were such a finding is essentially the same as that which we provide herein. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sick due to their work and they refused to give them a paper to go see the doctor; whenever some machinery broke down they blamed us, saying that we had to repair the machine . . . ; and there were some other things ...." Likewise, employees Vincente Mendoza, Miguel Magallon, Antonio Lopez, and Jesus Mendoza testified, respectively, that "we all organized to go to the union about the problems we had at work"; that the February 1, 1974, meeting "was to talk about the problems we had at work"; "was to straighten out work prob- lems"; and "had to do with resolving some problems that I saw we had there." In light of this testimony we find, contrary to the Administrative Law Judge, that a purpose of the meeting of February 1, 1974, was to find a way to resolve work-related problems of the employees, and to seek help in securing a resolution. Although the action taken by employees in absenting themselves from work to discuss their work-related problems may not have been the wisest or most prudent action which they could have taken, this does not remove their concerted action from the protection of the Act.2 This is especially so in the case at bar where the employees' attempt to directly resolve their work- related problems with the Respondent was met with an unlawful threat of discharge. We further find that the testimony herein supports the conclusion that the employees who met with the Union on February 1 were in the initial stages of protesting their terms and conditions of employment and of seeking conces- sions from the Respondent. The fact that the employees were discharged before they could make a formal demand upon the Respondent is of no consequence, as noted by the Administrative Law Judge in her discussion of the employees' earlier concerted protected activity of November 9. In any event, we find that the meeting of February 1 is the type of conduct which we have, in the past, found to be protected concerted activity within the meaning of the Act .3 In further disagreement with the Administrative Law Judge, we find that the February 1 meeting of employees was not part of a pattern of intermittent and recurring partial work stoppages such as were present in the cases cited by the Administrative Law Judge. In our view, the employees in the case at bar were merely continuing their earlier efforts to have their work-related problems resolved. While there is no magic number as to how many work stoppages must be reached before we can say that they are of a recurring nature, certainly the two work stoppages in the case at bar, which involved a total of 2 days' 2 N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 14-17 (1962). 3 N.LRB. v. The Good Coal Company, 110 F.2d 501, 503 (C.A. 6, 1940), absence from work, do not, in our opinion, evidence the type of pattern of recurring stoppages which would deprive the employees of their Section 7 rights.4 In any event, as Wilbur Robertson, the Respond- ent's president, testified, the November and Febru- ary incidents involved different situations and different people. While the November incident was a protest concerning overtime, the February incident involved other issues. Moreover, employees who were not involved in the November incident partici- pated in the February meeting. To hold in these circumstances that the two occasions establish a pattern of recurrent and intermittent work stoppages would, in our view, disallow employees to engage in more than one instance of concerted protected activity during an indefinite period of time regardless of the variety and number of conditions or occur- rences protested and the identity of the individuals involved. Unlike the Administrative Law Judge, we also find that the evidence in the case at bar supports a reasonable inference that the Respondent knew of the concerted activities of its employees on February 1. An unlawful interrogation of an employee by an agent of the Respondent occurred about 1-1/2 weeks before the February 1 meeting, and employee Vincente Mendoza testified that the Respondent's supervisor, Charles Martinez, told an employee that it "seemed as if [the employees] were all agreed not to go to work, that day." More importantly, we note that the Respondent's president testified that on February 1 "I obviously knew that they didn't show up because they were unhappy about something." He later testified, "I would assume it is something in the plant. It had to be unhappy about something or they would have come to work." He further testified that on February 1 he "knew we were going to have an election very shortly, just within a few days." Also unlike the Administrative Law Judge, we find that the evidence herein supports a reasonable inference that the Respondent was substantially motivated by a desire to rid itself of employees who, on February 1, engaged in mutual aid and support of one another in an attempt to resolve their work- related problems. We base this finding on the Respondent's knowledge that the employees' absence involved work-related issues, the timing of the discharges which occurred within a few days of a pending election, and the fact that a number of the employees who were discharged had not participated in the earlier incident of November 9 nor received the Respondent's warning that to repeat such enfg. 12 NLRB 136 (1939); N .LRB. v. Clinton Woolen Manufacturing Co., 141 F.2d 753, 756 (C.A. 6, 1944). 4 Crenlo, Division of Business Equipment, Inc., 215 NLRB No. 151 (1974). ROBERTSON INDUSTRIES 363 conduct would result in discharge. Moreover, al- though the Respondent contends that the discharges were permissible because of a lack of notification of their intended absence by the employees involved, we note that at least 6 employees who had obtained permission to be absent from work were discharged along with the other 28 employees . In addition, we note that neither a lack of permission nor the possibility of damage to the Respondent's equipment was assigned by the Respondent as a reason for its action at the time it discharged its employees. Based on the foregoing and after a review of all of the evidence and the inferences which can be reasonably drawn therefrom , we conclude that the Respondent violated Section 8(a)(1) of the Act by discharging the following employees on February 4, 1974, at least in part, because they engaged in protected concerted activity: Enrique Aquino Manuel Asebedo Abelardo Bravo (or Brabo) Enrique Casas (Gurrola) Ingacio Chavez Jose Esqueda Picot Feliciano Baldomero Guillen Jose Guillen Macario Guillen Salvador Ibarra Jose Lozano Guilberto Lopes Antoniq Lopez Carlos Lopez Ruben Vega Richard Sahun (also Sahagum) Rafael Lomas Eustaquio Magallon Miguel Magallon Trinidad Mango Vincente Mendoza Victor Meza Guillermo Padillo Pedro Ponce Arturo Ramos Rafael Rivera Rosendo Robles Andres Sanchez Bobby Varela Truman White Alejandro Mendoza Jesus Mendoza Ignacio Cuevas Having found that Respondent violated Section 8(a)(1) of the Act by discharging the above-named employees because they engaged in a protected activity, we shall, in addition to the remedy provided by the Administrative Law Judge, order that Re- spondent offer these employees immediate and full reinstatement and make them whole for any loss of earnings they may have suffered as a result of the unlawful action against them, by payment to them of a sum of money equal to what they would normally have earned as wages from the date of their discharge until Respondent offers them reinstatement,5 to be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest in 5 On February 7, 1974, Jesus Mendoza returned to the Company and was rehired by a new foreman named Booker . A few hours later, Booker told Jesus Mendoza that he could not employ him beyond that day because of an order he had been given . Jesus Mendoza did not work at the Company accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respond- ent, Robertson Industries, Los Alamitos, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as herein modified: 1. Reletter paragraph 1(b) as 1(c) and add the following as paragraph 1(b): "(b) Discharging the employees whose names are set forth in paragraph 2(a) of this Order, infra, because they engaged in a protected concerted activity." 2. Reletter paragraphs 2(a) and (b) as 2(c) and (d) and add the following as paragraphs 2(a) and (b): "(a) Offer the following employees immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings each of them may have suffered by reason of the unlawful action against him in the manner set forth in the section. in this Decision entitled `The Remedy': Enrique Aquino Rafael Lomas Manuel Asebedo Eustanquio Magallon Abelardo Bravo (or Miguel Magallon Brabo) Enrique Casas (Gurrola) Trinidad Mango Ingacio Chavez Vincente Mendoza Jose Esqueda Victor Meza Picot Feliciano Guillermo Padillo Baldomero Guillen Pedro Ponce Jose Guillen Arturo Ramos Macano Guillen Rafael Rivera Salvador Ibarra Rosendo Robles Jose Lozano Andres Sanchez Guilberto Lopes Bobby Varela Antonio Lopez Truman White Carlos Lopez Alejandro Mendoza Ruben Vega Jesus Mendoza Richard Sahun (also Ignacio Cuevas Sahagum) after that day. Thus, in the case of Jesus Mendoza , the several hours he worked on February 7 would be deducted from the backpay which is otherwise due to him. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with, restrains, or coerces you with respect to these rights. More specifically, WE WILL NOT coercively interrogate you re- garding your union activities, sympathies, or desires. WE WILL NOT threaten you with reprisals if you engage in union activities. WE WILL NOT threaten to discharge you if you engage in a strike or other protected work stoppage. WE WILL offer the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, dismissing, if necessary, any replacements, and make them whole from the date of their discharge for any loss of pay they may have suffered as a result of our discrimina- tion against them: Enrique Aquino Rafael Lomas Manuel Asebedo Eustanquio Magallon Abelardo Bravo (or Miguel Magallon Brabo) Enrique Casas (Gurrola) Trinidad Mango Ingacio Chavez Jose Esqueda Picot Feliciano Baldomero Guillen Jose Guillen Macario Guillen Salvador Ibarra Jose Lozano Guilberto Lopes Antonio Lopez Carlos Lopez Ruben Vega Richard Sahun (also Sahagum) Vincente Mendoza Victor Meza Guillermo Padillo Pedro Ponce Arturo Ramos Rafael Rivera Rosendo Robles Andres Sanchez Bobby Varela Truman White Alejandro Mendoza Jesus Mendoza Ignacio Cuevas ROBERTSON INDUSTRIES DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This case was tried before me in Los Angeles, California, on April 23 and 24. The charge was filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 509 (UAW), herein called the Union, and served on the Respondent on February 7, 1974. The complaint which issued on March 31, 1974, alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act. Posttrial briefs were filed by the General Counsel and by Respond- ent on June 19, 1974. The basic issue herein is whether Respondent unlawfully discharged and threatened to discharge employees because they engaged in union or other protected activities or whether, as contended by Respondent, they were lawfully discharged for failure to report for work on a scheduled workday. Also at issue is whether Respondent is bound by certain alleged activity of Max Delgado, herein called Delgado, and if so whether such activity constituted threats and interrogation in violation of Section 8(a)(1) of the Act. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a corporation with an office, place of business and plant in Los Alamitos, California, is engaged in the foundry manufacture of aluminum products. During the year preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, purchased and received directly from suppliers located outside the State of California, goods, materials, and supplies valued in excess of $50,000. The complaint alleges, Respondent admits, and I find, that Respondent is, and at all times material has been, an employer engaged in commerce and in operations affecting ROBERTSON INDUSTRIES 365 commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The parties stipulated, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent is engaged in the manufacture and sale of aluminum rims and wheels for automobiles . It has two facilities. The Los Alamitos plant, the one involved herein, melts the aluminum, and pours it into molds to produce the rough aluminum castings which are transferred to the La Palma plant for finishing and shipping. On January 31, 1974, Respondent had 130 employees of which approxi- mately 60 were employed at Los Alamitos. In July 1973 Respondent began experiencing a shortage of aluminum which became rather acute in September and October. During this period Respondent went on a 4-day workweek. Prior thereto employees worked regularly 10 hours a day, 5 days a week and received premium pay for all hours in excess of 40, hence they were paid at an overtime premium rate for the entire day on Friday. This appears to cause some confusion in the minds of some employees as to whether they were obligated to work on Fridays. However, the record is clear, and I find, that except during the period when Respondent was experienc- ing an aluminum shortage, Friday was a regularly scheduled workday. On Monday, November 5, 1973, Respondent's employees were informed that beginning that week Respondent was returning to a 5-day week, 10 hours a day, Monday through Friday. On Thursday afternoon, November 8, 1973, at the end of the first shift, about 15 to 20 employees gathered in the parking lot, discussed their feelings of tiredness and exhaustion and decided to inform Respondent's president, Wilbur Robertson, that they would not work the following day. Employee Arturo Ramos was selected spokesman and all of them went en masse to see Robertson. There is little disagreement as to the substance of the ensuing conversa- tion. Ramos testified that he said the employees would not be able to work the next day, Friday. Robertson asked why. Ramos said it was because Foreman Charlie Martinez made life "too hard" for them. To which Robertson replied that he could not make them work against their will. Upon Ramos' request Robertson distributed the checks and told the employees that he would discharge anyone who did not report for work on the following Monday morning and if they ever refused to i All dates hereafter will be in 1974, unless otherwise indicated. s Most of the Respondent's production and maintenance employees are Spanish-speaking, and although not absolutely clear , it appears from the record that only Spanish-speaking employees were involved in the Union activities. 3 Delgado testified that it was about a week before February 1. 4 Respondent's polishing work is contracted out to Delgado whose business is located next door to Respondent 's plant. 5 This is from Robertson's version of the conversation with which work again, they would be discharged. The principal variation between the testimony of Ramos and Robertson as to this conversation is that in Robertson's account, he testified that when he inquired of Ramos as to why the employees didn't want to work on that Friday, Ramos answered "Muy consardo" which means very tired. These employees did not work on Friday, November 9, 1973, but thereafter until Friday, February 1, 1974, they worked 5- day, 50-hour weeks without incident. Some time in December 1973, Respondent's employees began discussing the possibility of obtaining union repre- sentation. In early January 19741 about eight employees, including Ramos, Vincente Mendoza and Jose Guillen, met with union representatives Tony Rodriguez and Pete Peterson at the Union's offices, at which time they were given union authorization cards to have employees sign. During the next several days Ramos , Mendoza, and other employees secured signatures on about 45 authorization cards which they returned to Rodriguez.2 On January 18, 1974, the Union filed with the Board a petition for a representation election covering a unit of production and maintenance employees at Respondent 's Los Alamitos plant. Several days after the petition was filed, about January 21 or 223 Robertson asked Max Delgado4 what he knew about "the union thing." Delgado said he didn't know anything. According to Robertson, he then told Delgado, "You must know something about it. I have this whatever it is petition, the thing I got in the mail saying they had 30 percent of the work force and they were going to have a hearing." Delgado then admitted he had heard something about the Union. At this point Robertson told Delgado, "See what you can find out about it. Find out who it is and what their problems are, because I would like to talk to them, see if they will talk to me." 5 That same day, according to Mendoza, he overheard a conversation between Delgado and Jose Guillen.6 Delgado asked Guillen what problems the employees had and stated that he knew the employees wanted to organize a union. Guillen replied that he didn't know anything, that he thought it was just a rumor. Delgado said if the employees had any problems they should speak to Robertson. Guillen said he didn't have any problems, he didn't want to speak to anyone. Mendoza further testified that Guillen said Martinez treated the employees badly, that he gave them too much work to do, and that Delgado said that if the employees continued with their union activities it had been said that Immigration would be notified. Delgado asked if Guillen wanted more money . Guillen said no, he was happy with his salary. According to Delgado, he told Guillen he had heard that the employees were trying to get a union in the shop. Guillen answered that they were trying but he didn't think Delgado is in essential agreement. I do not credit Delgado's testimony that Robertson asked him to negotiate-to find out whether the employees needed more money or more benefits . It is apparent from the totality of his testimony that he had a tendency to testify as to his interpretation of what Robertson meant. Whenever he was reminded that he was to testify as to exact words used as nearly as he could recall , his version was essentially the same as Robertson's. 6 General Counsel was unable to locate Jose Guillen and has been informed that Guillen has returned to Mexico. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would be successful. Delgado said, "I know you are going to have one from what I understand." Guillen said, "Yes, we are just trying. We don't know for sure." Whereupon, Delgado suggested that the employees talk to Robertson, that Robertson could "make a deal" with them on benefits, that they should try to resolve their problems directly with Robertson rather than getting involved in something that might cause them problems . Guillen said it was too late, the employees wanted a union, that if he tried to stop it the other employees might "gang up" on him. Delgado said it was not his concern but the employees might get in trouble with Immigration and with Internal Revenue for claiming too many dependents.? Guillen said if Respondent fired them, they wouldn't be able to get "Gringoes" to work and if Respondent hired other illegal aliens, they were going to send Immigration personnel to Respondent's plant. Delgado admitted that he said the employees were liable to get into trouble if they tried to obtain union representation and that he told Guillen that Robertson said he would talk to employees if they wished. Following this conversation, Delgado telephoned Robert- son and told him the employees did not wish to talk to him. On or about January 16, five or six employees, including Ramos, Guillen, and Mendoza met with union representa- tives at the Union office. At that time, the Union representatives said they needed to have a meeting and asked the employees present to select a time and date. The employees conferred and stated they felt that possibly they would not be working on Friday, February 1 but if they were, then possibly they could meet on Saturday or Sunday. They agreed to a tentative meeting time of 1 p.m. on February 1. Union Vice President Tony Rodriguez said he would call the day before to confirm the time and date. According to Ramos, on January 31, in the parking lot, about 30 employees discussed the meeting scheduled for the next day. They spoke about having a meeting to talk about the problems they had at work. Ramos states this was the reason they didn't go to work, however, there is no evidence that the employees specifically discussed not reporting for work on February 1. On cross-examination, Ramos testified that he told the other day shift employees that a meeting was being held so they could attend and tell their problems. He did not talk to second shift employees about whether they should report for their shift which started at 3 p.m. Employee Andres Sanchez testified that no one told him, nor did anyone ask him, not to report tQ work on February 1. According to him, Ramos said the employees were treated badly, had to work "too much" and the machines were no good. Ramos said they were going to get the Union in, that "whoever wanted to lose time from work and attend and whoever did not wish to, would not have to go." Employee witnesses Rosendo Robles, Eustaquio T Delgado testified that when he was foreman at Rich Industries, it was common practice to claim an excessive number of dependents . A number of Respondent's employees were formerly in the employ of Rich Industries. 9 Eighteen were on the day shift and 14 on the second shift. Approximately 13 employees reported for work on the day shift and II on the night shift . No attempt was made on the record to correct the discrepancy in numbers , however, preciseness in this regard is not material to a determination herein. 9 Andres Sanchez and Vincente Mendoza testified that Martinez also gave them pernussion. Also, second shift employees Miguel Magallon and Magallon, Miguel Magallon, Baldomero Guillen, and Antonio Lopez were not questioned as to what transpired at that parking lot meeting of January 31. They merely testified that Ramos told them a meeting would be held on February 1. Thirty-three employeess failed to report to work on February 1. Twenty-six of these signed the attendance sheet at the Union meeting. Ramos testified that approxi- mately 40 or 45 people attended the meeting, however, there was no testimony to explain the discrepancy between the number of people signing the roster and the number allegedly there. Also, two persons were present who were not on the list of persons who failed to report for work. Presumably some persons both worked and attended the meeting. Some second shift employee witnesses testified that they did not work because of the Union meeting even though the meeting ended at 2 p.m., 1 hour before they were to report to work. Eustaquio Magallon said he did not report for work after the meeting because he did not want to do so. Miguel Magallon said he didn't report because he had already told Foreman Rose that he would not be working that day. Jesus Mendoza, a day shift employee, testified that he did not go to work solely because the employee with whom he was to ride failed to pick him up. It was only after this that he was invited to, and did, attend the February 1 meeting. During the meeting the employees discussed what they considered to be unfair working conditions, including the rims quotas, the 10-hour days, wages, holidays, vacations, insurance, and the cost of safety equipment. On February 1, Robertson, who was out of town, talked by telephone to Foreman Charlie Martinez. Martinez said more than half the employees didn't show up. Robertson told Martinez to prepare a list of employees who didn't report to work and to do the same thing for the night shift. On Saturday, February 2, Martinez gave Robertson the list. Robertson said he was going to terminate everyone on the list. Martinez then told him that he had given Ramos, Baldomero Guillen, Lopez and Salvadore Ibarra permis- sion to not report to work.9 According to Robertson, at first he drew a line through the names of the employees who had received permission but after reflection concluded that he could not believe the reason these employees gave for their absence and that they had acted in concert to show him they would come to work as they pleased.to Therefore, to be consistent, he decided to discharge them all and if any of these employees could later convince him of a legitimate reason for being absent he could reconsider. Respondent contends that not only does production suffer in the obvious manner from having more than half the workforce absent, but that having no notification caused Respondent's setup crew to start certain procedures that it is costly to interrupt. A four-man setup crew reports Rosendo Robles testified that they received permission from second shift Foreman Bill Rose not to report for work. Robertson stated he was told Robles and Ruben Vega had permission . Martinez contends that pro- duction is affected if more than four employees are absent and that he would not have granted more than four persons permission to be absent. 10 Robertson testified : "I figured if they had all just acted in concert and were evidently going to, I don't know what, show me that they would come to work when they felt like it or didn't feel like it, I felt in my mind to be consistent was to fire them all. ROBERTSON INDUSTRIES 367 at midnight. At I a.m. they begin painting the molds and the 4 hour process of melting of metal commences in eight furnaces, each of which contains a crucible in which 850 pounds of aluminum is melted . When the molders arrive at 5 a.m. they pour the molten aluminum into the molds. If the molten metal is not removed, the crucible breaks which incurs a bill of $400 plus the cost of labor. The setup process was completed on the morning of February 1. However, only 2 of the 10 or 12 molders" expected actually reported to work. On Monday morning, February 4, when the employees reported for work, Robertson asked each one if he worked on Friday. If the reply was yes, Robertson told them to begin work. For those that replied no, he gave them their paychecks and said "I can't have you deciding when to come to work and when not to come to work. It is my company and I don't want you to work for me any more." The discharged employees gathered on Respondent's parking lot. Robertson approached the group. Ramos said, "I want to talk to you." Robertson said, "Fine, talk." Then Ramos said, "Never mind, I don't want to talk to you." Robertson replied, "Okay. I want you guys to get out of the parking lot. You don't work for me any more and you don't belong here." On February 7, employee Jesus Mendoza applied for a job with Respondent to Foreman Booker. Booker hired him. Robertson arrived at the plant between 9 and 10 a.m. About a half hour later, Booker told Mendoza he would be unable to employ him beyond that day. Booker said Mendoza couldn't stay, that he (Booker) had been given an order. Employee Luis Bowles testified that in the early part of March he was informed he had visitors in Respondent's office. When he arrived at the office ex-employees Pedro Ponce, Ruben Vega, and Gilberto Lopez were there. Ponce 12 asked Bowles if he would write a request to Robertson in English . Ponce gave Bowles a piece of paper signed by nine of the dischargees. He wrote the following under these signatures as directed by Ponce: Mr. Robertson: We the above signed request that if possible, consider us for reemployment. We realize the mistake we made by listening to gossip. However we were told that if we worked that Friday 1 Feb. 74 we would have been picked up by the Immigration Service. Thank you L.G. Bowles for the above signed. Thereafter Ponce, Vega and Lopez gave Martinez the above-described document . Ponce was the spokesman. He said he had picked up this petition and would like to see if he could get back to work . He asked Martinez to give the petition to Robertson which he did. Martinez testified that Robertson told him he could tell the employees that he would probably hire them in the future. According to Martinez, he told Ponce he "couldn't hire him because we were coming in court and there was going to be filed a petition or something for a union, and [he] couldn't hire anybody till then-until everything was cleared up." Later, about a month before the trial herein , Antonio Lopez asked to be reinstated and Martinez gave him the same answer. Martinez says it is his understanding that several other employees sought reinstatement . Robertson testified that on probably six different occasions, Martinez told him that some of the dischargees wanted to be rehired. Robertson admits that he instructed Martinez that he was not to rehire any of the dischargees, that he (Robertson) would make any decision regarding rehiring the dischar- gees or replacing them. He said he wanted to be apprised of everything that went on and he would make all the decisions. B. Analysis and Conclusions 1. The Delgado incident The evidence establishes that Delgado sought informa- tion from Guillen as to the Union activities of Respond- ent's employees and when Guillen verified that the employees were indeed engaged in union organizational activities, Delgado said if they persisted in such activities, they were liable to get into trouble with the Immigration and Internal Revenue Services. This clearly constitutes threats of reprisal violative of Section 8(axl) of the Act if Respondent is liable for Delgado's conduct. As to Delgado's statements that he knew the employees were trying to get a union, considering Robertson's instructions to Delgado and in the context of the entire conversation, I find that the statements were designed to elicit information regarding the Union activities of Respondent 's employees. In these circumstances, and in the context of the threats of reprisals set forth above, Delgado's statements constituted coercive interrogation which would be violative of Section 8(axl) of the Act if Respondent can be bound by Delgado's activities. Gates Air Conditioning, Inc., 199 NLRB 1101(1972). The pivotal question is whether Delgado was an agent of Respondent. Robertson admits that he requested Delgado to find out which employees were involved in union activities, what their problems were and whether they were agreeable to discussing said problems with Robertson. Thus, it is clear that Robertson specifically authorized Delgado to interrogate employees and is therefore liable for Delgado's conduct of such interrogation. On the other hand, the record is devoid of any evidence that Robertson either authorized or intended Delgado to threaten employ- ees or that he knew that Delgado had done so. This, however, does not negate Respondent's responsibility for such conduct. Section 2(13) of the Act provides: "In determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." By inviting Delgado to intrude into its labor relations affairs, Respondent has inextricably allied him with management. Furthermore, Delgado, upon Robertson's instructions, told Guillen that Robertson asked him to convey to employees Robertson's 1 i Sanchez testified that almost all of the molders were at the February I union meeting. 12 Ponce and more than 90 percent of Respondent's employees speak only Spanish. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD willingness to meet to discuss their problems with them. Thus Delgado made it clear that Robertson had discussed the employees' union activities with him and had commis- sioned Delgado to speak for him. Therefore, it was reasonable for an employee to assume that the threats of reprisal had emanated from Robertson. In these circum- stances I find that Delgado was an agent of Respondent when he interrogated Guillen and made threats of reprisal if the employees persisted in their union activities and that Respondent thereby violated Section 8(a)(l) of the Act. Phillips Industries, Incorporated4 172 NLRB 2119, 2123-25 (1968); General Metal Products Company, 164 NLRB 64 (1967). I reject Respondent's contention that these threats were de minimrs or isolated and that the policies of the Act would not be effectuated by the issuance of a remedial order. Although made to only one employee, they were of a serious nature and affected all employees . General Stencils, Inc., 195 NLRB 1109 (1972). Nor are the statements any less coercive because made by a friendly individual. Caster Mold & Machine Company, Inc., 148 NLRB 1614, 1621 (1964). 2. The November threat of discharge There is no dispute that on November 8, 1973, 15 or 20 of Respondent's employees, acting in concert, decided not to work the following day and that the reasons expressed by them were the foreman's treatment of them that day and a general feeling of tiredness and exhaustion. There is some variation in the testimony as to the reasons given the Employer for this refusal to work. Ramos testified that the reason given was that Foreman Charlie Martinez made life "too hard" for them. Robertson testified that the reason given was that the employees were tired. Robertson did not specifically deny that Ramos mentioned that Martinez made life "too hard," nor did Ramos specifically deny that he said the employees were very tired.13 I do not find these versions to be inherently conflicting. Ramos testified that the decision not to work was motivated by both reasons. In fact when the evidence is viewed in its totality it appears that the employees were tired because Martinez had demanded what they deemed to be excessive work performance. Ramos and Robertson both impressed me as reliable witnesses who were honestly testifying as to their recollection of the conversation. I therefore find that a composite of their testimony more accurately reflects what was in fact said and that Ramos mentioned both being tired and that Martinez made life "too hard." I further find, based on Ramos' account of the discussion among the employees and Robertson's understanding as to why they were refusing to work, that the essence of their motivation, as articulated by Ramos, was that they were too tired to work and that the mention of Martinez was made in explanation as to why they were tired. There is no cogent testimony to establish that the employees either intended or conveyed to Respondent that they were refusing to work in protest of treatment by Martinez. I therefore reject General Counsel's contention that the refusal to work was protected because it was in protest of Martinez' exercise of supervision. General Counsel's alternate theory is that the activity was a refusal to work overtime because they were too tired, and that a single concerted refusal to work overtime is protected strike activity. Respondent contends that this was not merely a refusal to work overtime but rather was a refusal to work on a regularly scheduled workday. This appears to be a distinction without a difference. Whether the refusal to work is for a limited number of overtime hours at the end of a workday or whether for an entire regularly scheduled workday does not, in my opinion, change the nature of the work stoppage . In either case it is a work stoppage of limited duration. Similarly immaterial is whether the refused schedule can be characterized as overtime or regular time. The critical question is whether this was a single concerted refusal to work scheduled hours or whether it was part of a pattern of intermittent action. First National Bank of Omaha, 171 NLRB 1145, enfd. 413 F.2d 921 (C.A. 8, 1969). The Board summarized the applicable principle in Polytech, Incorporated, 195 NLRB 695 (1972), thusly: [There is ] a presumption that a single concerted refusal to work overtime is a protected strike activity; and .. . such presumption should be deemed rebutted when and only when the evidence demonstrates that the stoppage is part of a plan or pattern of intermittent action which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer. In the instant case, at the time of the alleged threat, that presumption had not been rebutted. There was no previous history of refusals to work overtime and there was no indication of intent to repeat such refusal. I therefore conclude that the November 9 refusal to work was protected. I further conclude that Robertson's threat to discharge them if they again refused to work scheduled hours or if they did not work the following Monday was violative of the Act. In so doing, I have fully considered the fact that there was nothing to indicate that the employees were engaged in an indefinite refusal to work in protest against some condition of employment. Rather, they informed Robertson that they were refusing to work for one particular day because they were tired. No demands were made for a change in working conditions and there was no allusion to the possibility of future work stoppage. If his warning had been limited to a threat to discharge them if it ever happened again, a logical conclusion would have been that he was stating no more than he was legally allowed to do-that he would discharge them if they engaged in intermittent or recurrent work stoppages . However, Rob- ertson's warning went further than that . He threatened to discharge them if they did not return to work on Monday, the next succeeding workday. If the employees had, in fact, refused to work on Monday, they would not have assumed the unprotected status of intermittent strikers. Rather they would have been engaged in a continuous work stoppage, assuming the status of strikers whom Respondent could 13 Neither of them were asked questions calling for dental or affirmation as to the account given by the other. ROBERTSON INDUSTRIES replace but not discharge. The fact that no demands had been made does not affect the presumed protected nature of the announced work stoppage. N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 14 ( 1962). Since a continuation of the work stoppage on Monday presumably would have been protected concerted activity, the threat to discharge employees who did not return to work on Monday is violative of Section 8(a)(1) of the Act. Leslie Metal Arts Company, Inc., 208 NLRB 323 (1974). 3. The discharges Section 7 of the Act protects "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Thus, a work stoppage is protected if it is concerted and if it is not for an improper objective or is not conducted in an improper manner . Here, it is undisputed that the employees were discharged because they failed to report for work. The issue is whether such failure was concerted and whether it was a work stoppage for a protected objective. Counsel for General Counsel con- tends, in her brief, "There can be no question that the employees' failure to work on February 1 in order to attend the [union ] meeting was concerted." I agree that the employees made a concerted decision to attend the Union meeting which was scheduled for 1 p.m., 2 hours before the end of the first shift and the start of the second shift. However, there is no evidence of a concerted decision not to report for work on that day or even that there was a discussion of such. It is axiomatic that first shift employees could not both attend the meeting and work a full shift. However, they could have worked for most of the shift and inasmuch as the meeting concluded at 2 p.m. second shift employees could have both attended the meeting and worked a full shift. On the state of the record, it appears that although the employees agreed to a union meeting during working hours, they made individual decisions as to whether they would report for work. Nevertheless, I conclude that implicit in the agreement to attend a union meeting during working hours was a decision to not work the day of the meeting if such was necessary to insure attendance at the meeting. I therefore find that certain of Respondent's employees engaged in a concerted work stoppage on February 1. The critical issue then is whether the dischargees were engaged in union or other protected activity. The com- plaint alleges that the discharges constitute a violation of Section 8(aX3) of the Act and was also an independent violation of Section 8(axl) of the Act. As to the 8(aX3) allegations, the evidence cannot support a fmding that the employees were discharged for attending a union meeting, even assuming that in the circumstances herein such attendance was protected, for there is no evidence that Respondent had knowledge that the absent employees were attending a union meeting. Furthermore, the circum- stances will not permit reliance on the Board's small plant doctrine since Ramos admits that they tried to keep the fact of the meeting hidden. Attendance seems to have been confined to Spanish-speaking employees and several 369 English-speaking employees testified that they had no knowledge that a union meeting was being held. General Counsel argues that Respondent seized on this failure to report to work to rid itself of unwanted union adherents. Respondent certainly had knowledge that certain of its employees were engaged in union activity because of the representation petition. Further, since he had requested Delgado to inquire regarding such activity, it is apparent that he thought the sentiment for union representation existed among the Spanish-speaking em- ployees. Given the fact that the absent employees had Spanish surnames, it wouldn't require a mental giant to deduce that a number of these employees were probably union adherents. However, Robertson testified that he thought the employees were once again attempting to unilaterally set their own work schedule. Certainly consid- ering the November incident, he had reasonable grounds for making this assumption, and such conduct by the absent employees would constitute good cause for termina- tion. Polytech, Incorporated supra. Thus, although Re- spondent had knowledge of union activities on the part of its employees and could reasonably expect that the absent group contained a number of union adherents, Respondent has established a prima facie showing of good cause for the discharges. The record contains no direct evidence to establish that the reason advanced by Respondent was pretextual or only partial and that Respondent's action was motivated by unlawful considerations. However, specific evidence of intent to encourage or discourage union membership is not necessary.14 The illegal motivation may be inferred from the record as a whole . Particular consideration is given to evidence of other violations of the Act which indicate antiunion animus. In the instant matter, I have found two instances of conduct violative of Section 8(aXl) of the Act-Robertson's threat to discharge employees if they did not report to work the Monday following the November work stoppage and the interrogation and threats made by Delgado. The first instance which occurred 3 months prior to the discharges, did not involve union activity, but did involve Respondent's reaction to concerted activity of its employees for mutual aid or protection. I am not convinced that Respondent thereby evinced a hostility to concerted protected activity by its employees. Rather, it appears that Robertson was inept in his choice of words. I am of the opinion that he intended only to warn the employees that he would not tolerate their unilateral setting of work schedules. As set forth above, nothing occurred to indicate to him that the employees were withholding their services in protest of some term or condition of employment. He was told merely that they were tired. He warned them that if such conduct was repeated they would be discharged. Unfortunately he stated also that they would be discharged if they stayed out a second day. I found such statement to be violative of the Act based on the presumption that if they withheld their services for the second consecutive day they would have enjoyed the status of strikers . In considering whether Robertson's statement constituted a violation of Section 8(axl) of the Act, Respondent is bound by the effect the 14 The Radio O()lcers' Union of the Commercial Telegraphers Union, AFL IA.H. Bull Steamship Company) v. N.LR.B., 347 U.S. 17 (1954). 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD words used could reasonably be expected to have on employees. That his intent was otherwise is immaterial. Impact Die Casting Corporation, 199 NLRB 268 (1972). However, such intent is material when evaluating the degree of hostility evinced by Respondent toward concert- ed protected activity by its employees. The other 8(aXl) activity to be considered is that engaged in by Delgado. Here Robertson, by asking Delgado to try to get the union adherents to bring their problems to him, indicated his preference that his employ- ees not be represented by the Union. Having intruded Delgado into its labor relations affairs, Respondent is responsible for his conduct incident thereto, however, there is no evidence that Respondent authorized or intended, Delgado to resort to illegal means or even knew that he had done so. Furthermore, there is no evidence that Respondent pursued the matter further after Delgado reported that the employees did not wish to confer with Robertson. In all of the circumstances I find that Respondent's opposition to the Union was not expressed in such a fashion as to indicate that Respondent would engage in unlawful discrimination in order to thwart the Union. I therefore conclude that Respondent did not discharge the alleged discriminatees in violation of Section 8(aX3) of the Act. The complaint also alleges that the discharges were violative of Section 8(axl) of the Act. General Counsel argues that in November Respondent threatened to discharge all employees who engaged in a concerted work stoppage to improve their working conditions and proceed- ed to make good its threat as soon as an opportunity presented itself. General Counsel appears to be contending that the alleged discriminatees were discharged because they engaged in the concerted protected activity of withholding of services in furtherance of their position in a labor dispute. Specifically General Counsel contends that throughout the months of December and January the employees sought a remedy for objectionable working conditions and to that end "organized and then attended a meeting with union officials where they discussed their problems at work and the most feasible solution to those problems." In support of this position, General Counsel points to evidence that, in disseminating information about the meeting, the meeting was characterized as being for the purpose of "a discussion and resolution of problems at work, and that such was understood by the attending employees to be the purpose of the meeting." I find this to be an incorrect characterization of the record. There is nothing in the record to establish that the purpose of the meeting was to resolve any problems. More importantly there is no evidence that they withheld their services in immediate protest of any term or condition of employment or for the purpose of seeking any immediate concession from Respondegt. It is true that at the meeting they discussed what they considered as problem areas in their working conditions. But that is the nature of any meeting held by a union for the employees of an ei ployer the union is attempting to organize. Such meetings normally are not conducted with a view toward engaging in an immediate protest of working conditions. Rather the thrust is toward obtaining the necessary solidarity to resolve problems in the future at the bargaining table. I find General Counsel's argument intriguing and well presented, but specious. The plain truth of the matter is that this group of employees took the day off to go to an organizational meeting held by the Union. The issue then is whether such conduct is protected. The Board has had limited opportunity to consider this precise question. Only two cases have been found which involve similar circumstances.15 In Gulf Coast Oil Compa- ny, 97 NLRB 1513 (1952), instead of reporting for work at the usual time of 7 a.m., all 11 of the employer's truckdrivers went to the union hall where benefits of union organization were discussed and the details of admission into the union taken care of. They then returned to work approximately 3 hours late. The Board concluded that, apart from any element of discriminatory motivation, the concerted activity of the drivers was not of a type which immunized them against discharge. Rather, their activity amounted to an unwarranted usurpation of company time by the employees to -engage in a sort of union activity customarily done during nonworking time. In Terri Lee, Inc., 107 NLRB 560 (1953), several employees agreed to absent themselves from work the next day to consult with a labor union with respect to a cut in their piece-rate wages. In conformance with this plan they sought, and some received, permission for various reasons to be absent the next day. As planned, they went to the union hall instead of to work. The following day upon reporting back to work, they were discharged. The Board concluded that these employees had not engaged in a strike or other concerted withholding of work. It found rather that the employees merely intended to take the day off to obtain information from the union, without any purpose thereby of protesting the cut in piece rates or of seeking any concession from the respondents. Furthermore, upon learning of the employees' intention, the supervisor specif}cally informed one of the employees that she had a right to engage in such activity but would have to do it on her own time or face discharge. This warning was shared with the other employees. The Board concluded "The question of granting employees time off from work is peculiarly a matter of management prerogative." In both cases the Board dismissed the allegations of the complaint relating to the discharges. Though old, these cases have never been overruled and the basic issue involved is one which the Board has faced in a variety of factual situations, i.e., whether a work stoppage of limited duration is consistent with genuine strike action or whether the employees were attempting to unilaterally set their conditions of employment. It is well settled that while employees may lawfully engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, they may not by such activities is Most of the few cases involving union meetings during working time a grievance, and cases such as Wilkinson Manufacturing Company, 187 have been cases such as Morrison-Knudsen Co., 173 NLRB 56 (1968), where NLRB 791 (1971), where meetings were held in protest of specific terms and poor permission had been obtained to hold the meeting, cases such as conditions of employment or in protest of the employer's unfair labor Quaker Alloy Casting Company, 135 NLRB 803 (1962), involving in-plant practices. meetings of very brief duration to formulate immediate action in support of ROBERTSON INDUSTRIES 371 attempt to unilaterally determine their conditions of employment. C. G. Conn, Limited v. N.L.R.B., 108 F.2d 390, 397 (C.A. 7, 1939); Honolulu Rapid Transit Company, Limited, 110 NLRB 1806, 1809-11 (1954); Valley City Furniture Company, 110 NLRB 1589, 1595 (1954). In this regard, the court in the Conn case stated: We are aware of no law or logic that gives the employee the right to work upon terms prescribed solely by him. That is plainly what was sought to be done in this instance. [Refusal to perform overtime for an indefinite duration.] It is not a situation in which employees ceased work in protest against conditions imposed by the employer, but one in which the employees sought and intended to continue work upon their own notion of the terms which could prevail. Of the cases applying this principle , the factual situation which more nearly approximates the facts here are the overtime cases. In First National Bank of Omaha, supra, the employer discharged a group of unrepresented employees who engaged in a previously unannounced concerted refusal to work overtime prompted by dissatisfaction with the employer's overtime policies and occurring after they had discussed such dissatisfaction with the employer to no avail. The Board adopted the Trial Examiner's conclusion that the employees had not engaged in a partial , intermit- tent or recurrent strike but rather that the walkout was a single strike of limited duration protected by the Act. Similarly, in Polytech, Incorporated supra, the Board found protected the refusal of employees to work overtime on one particular day because they were tired. The Board held that the presumption that a single concerted refusal to work overtime is a protected strike activity had not been effectively rebutted and concluded that the disciplinary suspension of the employees was conduct violative of the Act. It is clear from these, and earlier, cases that there exists a presumption that a single concerted refusal to work overtime is a protected strike activity which can only be rebutted by a showing that the stoppage is part of a plan or pattern of intermittent action which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer. However, I am unwilling to conclude that the February 1 failure to report to work can be equated with the refusal to work overtime cases . Those cases involve a withholding of services in protest of the employer's overtime schedule, even though the protest is only against that particular day's schedule. Here, as in Terri Lee, Inc., supra, the employees were not engaged in a strike or other concerted withhold- ing of work. They merely intended, for their own convenience, to take the day off to go to a union meeting without any purpose thereby of protesting against any term or condition of employment or of seeking any concession from Respondent. In these circumstances, I am of the 16 1 deem it immaterial that some of the participants in the February 1 incident did not participate in the November refusal to work. IT Although in not reporting to work, Jesus Mendoza was not engaged in the concerted refusal to work by fellow employees , Respondent had no knowledge as to his reason for not working and it was not unreasonable in the circumstances to assume that all absent employees were engaged in a opinion, that their failure to report to work was unprotect- ed, notwithstanding the fact, argued by General Counsel, that at the meeting they discussed their dissatisfaction with work conditions. As pointed out above, such discussions are the nature of union organizational campaign meetings. To find attendance at such meetings during working time to be protected activity would be to permit every group of employees engaged in a union organizational campaign to unilaterally hold at least one organizational meeting on working time-with impunity, to take a day off, at their whim, to hold a union meeting. I do not think the Act was intended to afford such protection. However, even assuming that the overtime cases are dispositive of the instant matter, I still find the February 1 failure to report for work to be unprotected. This was the second time a group of employees had refused to work on Friday. Hence the refusal must be considered as part of a pattern of recurring or intermittent partial work stoppage and hence outside the protection of the Act.16 Cf. First National Bank of Omaha, supra, and Poly Tech, Inc., supra. This conclusion is not changed by the fact that several employees had sought and received permission to be absent from work for various spurious reasons. In the circumstances, Robertson's assumption was reasonable, and accurate, that these employees were attempting to unilaterally set their own working conditions.17 For the reasons set forth above I conclude that the discharges herein were not violative of Section 8(axl) of the Act.18 As to the refusal to reinstate certain employees, since the discharges were valid Respondent had no obligation to reinstate them. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(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. By coercively interrogating an employee regarding the Union activities and sympathies of employees, by threatening to discharge employees if they engaged in a strike or other protected work stoppage, and by threaten- ing employees with reprisals if they persisted in their union activities, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(axl) and Section 2(6) and (7) of the Act. 4. Respondent has not violated Section 8(a)(1) and (3) of the Act as alleged in paragraph 7 and 8 of the complaint herein. THa REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(l) of the Act, I shall recommend that the Respondent be unilateral attempt to set their own working hours . Thus the question of disparate treatment is irrelevant and no such evidence was adduced or argument made. Is In view of this conclusion, I do not reach Respondent's contention that the discharges were permissible based on the lack of notification and the resultant possibility of damage to equipment. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordered to cease and desist therefrom and from infringing in any like or related manner upon its employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclusions of law and the entire record in this proceeding and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend the following: ORDER 19 Respondent, Robertson Industries, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees about their union activities, sympathies, and desires, threatening to discharge employees if they engage in a strike or other protected work stoppage, and threatening employees with reprisals if they persist in their union activities. 19 In the event no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, recommendations 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. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant in Los Alamitos, California, copies of the notice marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent , shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act other than those found above. so In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of-Appeals Enforcing an Order of the National Labor Relations Board."