Penasquitos Village, Inc.

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Penasquitos Village, Inc.; Penasquitos Gardens, Inc.; Penasquitos Hills, Inc.; and San Diego Leisure-Life Village and Laborers' International Union of North America, Local No. 89, AFL-CIO. Case 21- CA-12632 May 9, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On November 7, 1974, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a brief in support thereof, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings , findings, and conclusions of the Administrative Law Judge only to the extent that they are consistent herewith. The Administrative Law Judge found that the evi- dence was insufficient to sustain the allegations that Respondent violated Section 8(a)(1) by threatening em- ployees for going to the Union and by interrogating employees about their union activities and preferences, as well as those of other employees, and Section 8(a)(1) and (3) by discharging two employees because of their union activities. Accordingly, he recommended that the complaint be dismissed in its entirety . The General Counsel has filed exceptions to the above findings which, for reasons hereinafter set forth, we find meritorious. Zamora's Interrogations and Threat The complaint alleges three separate independent vi- olations of Section 8(a)(1) of the Act, involving conver- sations between Supervisor Zamora and three em- ployees, none of whom was an alleged discriminatee. The facts relating to the alleged illegal interrogations, as found by the Administrative Law Judge, are not in dispute. He credits the testimony of employee Her- nandez that in November 1973, after the organizing campaign had begun and while he and Zamora were in a room adjacent to the office, Zamora asked him whether he had or was going to sign for the Union. Employee Cuevas testified that on April 4, 1974, just before the Board election was scheduled to take place, while in the cafeteria, Zamora asked him who had .started the Union. The Administrative Law Judge nei- ther credits nor discredits the latter testimony, but rather finds that the question, even if it was asked, did not reasonably tend to, restrain or interfere with the employees in the exercise of their rights. The Decision notes that Zamora did not testify as to the Hernandez conversation and could not specifically deny having asked the question attributed to him by Cuevas. Zamora's only testimony with respect to these two conversations was that he could not deny that he had spoken with these employees on the dates in ques- tion, but generally denied ever threatening or interro- gating any employee concerning his union activities. Zamora also testified that he was in favor of the Union and thought it was a good thing for the employees. The record also contains general testimony by Zamora that he and the employees under him spoke openly about the Union and that he assumed that all the employees were in favor of unionizing. The Administrative Law Judge, relying on this testimony, finds these interroga- tions were not coercive and that therefore Respondent did not violate the Act by virtue of Zamora's questions. There is, however, further testimony in the record concerning Zamora's relationships with the employees which the Administrative Law Judge did not discredit. Two of the employees testified that they were afraid to talk to Zamora because they did not know how he would react. Zamora himself testified that he did not eat lunch with the employees or socialize with them at work or during off hours, that once an employee tried to run him off the road, and that he did not readily initiate conversations with employees because he is a "quiet type of dude." The record thus contains other evidence, not dis- cussed in the Decision, which tends to show that there existed the opposite of the friendly and open atmos- phere between the employees and Zamora as found by the Administrative Law Judge, which, in our view, negates his finding that these presumptively illegal in- terrogations were rendered noncoercive by the sur- rounding circumstances.' Accordingly, we find that Respondent, by virtue of the actions of its supervisor in interrogating employees Hernandez and Cuevas con- cerning their union activities, as well as those of other employees, violated Section 8(a)(1) of the Act. The third independent violation of Section 8(a)(1) involves an alleged conversation between Zamora and employee Ruiz during November 1973. Ruiz testified that at that time he and Zamora were working together repairing a roof on one of Respondent's units when a union agent drove up. Ruiz testified that a discussion ensued during which the driver was identified as a union agent, and that Zamora then remarked that who- I Jenkins does not regard as material any alleged "friendly" atmosphere surrounding an interrogation of an employee by an employer concerning his union activities or sympathies. 217 NLRB No. 155 PENASQUITOS VILLAGE, INC. 879 ever was respcnsible for calling the Union would get laid off. When Zamora was questioned about this al- leged incident he could not recall having worked with Ruiz on that occasion or having made the statement and thus did not specifically deny it. As stated above, he only generally denied ever threatening any em- ployee. The Administrative Law Judge found that the con- versation, as testified to by Ruiz, did not occur, based on Zamora's testimony and the fact that although Ruiz had testified that Hernandez was present and witnessed the conversation he could not corroborate what was said. The Administrative Law Judge also cites the fact that Ruiz was equivocal in his testimony with respect to whether he or Zamora identified the driver as a union agent as a further basis for not crediting his testimony about the threat. Notwithstanding the Administrative Law Judge's finding with regard to the alleged threat, we note that the following facts are clearly established by the record. Ruiz specifically and unequivocally testified that Zamora made the threat and did not change or alter this testimony under extensive cross-examination. Zarnora, on the other hand, never specifically denied having made the statement. Furthermore, although Hernandez testified that he could not hear what was said between the other two men because of the ham- mering that was going on, since he was working under the roof while Zamora and Ruiz were on top of it, he did corroborate Ruiz' testimony that they were work- ing together at that time and place. While we acknowl- edge that the record does show that Ruiz first testified that he identified the driver as a union agent, and later attributed the identification to Zamora, we fail to see the significance of this, especially in light of the fact that Zamora admitted knowing who the union agent was., having spoken to him about the Union at length, and the further fact that the alleged threat was in no way contingent upon who first identified the agent. In light of the above, contrary to the Administrative Law Judge, we find that his failure to find that the alleged threat was made is clearly against the weight of the evidence. Accordingly, we find that Zamora did threaten the employees with layoff because of their union activities and that Respondent has thereby vi- olated Section 8(a)(1) of the Act. The Discharges of Employees Rios and Martinez The Administrative Law Judge found the evidence insufficient to prove that Respondent violated Section 8(a)(1) and (3) of the Act by virtue of the discharges of Rios and Martinez, in the face of other evidence which he finds establishes a legitimate cause for the termina- tions. The General Counsel has excepted to these find- ings, which exceptions, for the reasons hereafter stated, we find meritorious. Although the Administrative Law Judge discusses the surrounding circumstances, as well as Respon- dent's justification for the dicharges, he fails to evaluate the basic elements of the General Counsel's prima facie case. In this regard, the record shows the following: Both Rios and Martinez took an active part in organ- izing Respondent's maintenance crew. Martinez signed an authorization card and spoke to six employees in November, urging them to join the Union. Rios also signed a card and was one of the employees who made the initial contact with the Union. He also spoke to a group of employees at a Seven-Eleven store, urging them to attend the first union meeting. Respondent's knowledge of their activities is established by the un- refuted testimony of Cuevas, who testified that, in re- sponse to an inquiry from Zamora as to who was re- sponsible.for bringing in the Union, he mentioned both Rios and Martinez. With respect to the timing of the discharges, the Administrative Law Judge cites the fact that 4 months previous to his discharge Rios was suspended briefly for stopping work early. However, the record also shows that the discharges occurred on April 12, 1974, 2 days after the Decision and Direction of Election issued, ordering an election at the facility and within 2 weeks of the illegal interrogation of Cuevas. In connec- tion with his finding that Zamora's threat and interro- gations were noncoercive, the Administrative Law Judge found that Zamora lacked union animus. How- ever, for the reasons stated above, we have found that Zamora's actions constitute violations of Section 8(a)(1), which findings support a general finding of animus with respect to the discharges. In addition, the record contains evidence of other statements made by Zamora which show hostility toward the Union. Two witnesses testified to a conversation between Zamora and another supervisor in March 1974, in which Zamora made a disparaging reference about employees who join,the Union, using an obscene epithet. In dis- cussing the testimony concerning this incident, the Ad- ministrative Law Judge discredits Rios' version to the extent that he finds that Zamora, at that time, did not specifically threaten to fire such employees. However, the balance of the conversation stands as evidence of Zamora's antiunion sentiments. Finally, the Adminis- trative Law Judge found that a week before Zamora discharged Rios and Martinez he discovered employee Valdez working slowly and chastised him, stating that ". . . you don't want to do anything because you al- ready have the Union." The facts in the record show that the General Coun- sel has carried the burden of establishing, by competent evidence, each of the necessary elements sufficient un- 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD der established Board law to prove Respondent vi- olated Section 8(a)(3) of the Act. The only remaining question, therefore, is whether the Respondent has shown, by other evidence, that the discharges were motivated without regard to these considerations. Con- trary to the Administrative Law Judge, we find that the evidence herein does not justify such a conclusion. The Respondent justifies its actions in discharging Rios and Martinez almost entirely on the basis of an incident which occurred on the day they were ter- minated. On that day they were working together hoe- ing weeds when they noticed some women nearby who were sunning themselves and apparently stopped work- ing for an undetermined length of time to watch. When Zamora observed this, he told them that if they wanted to see women in bikinis to punch their timecards and go to the beach. He then left the men, went to his superior, and sought and received permission to dis- charge them. He returned immediately and, without stating any reasons, terminated them. The only other contact they had had that day was early in the morning -when Rios asked permission for himself and some other -employees to take the day off because it was a religious holiday, which request Zamora denied. There is no evidence that either of the two had ever been warned that their work was unsatisfactory and the only other disciplinary action taken against either was 4 months earlier when Rios and two other employees were suspended briefly for stopping work early. How- ever, this prior incident was never cited by Zamora or his superior to Rios or Martinez as having anything to do with the decision to discharge them. Likewise, there is no evidence in the record to show that Respondent had a policy or practice of using such disciplinary measures for similar offenses, except the incident in- volving employee Valdez, a week or so before, where Zamora had discovered Valdez working slowly and merely chastised him with an unfavorable remark about the Union. Such a paucity of evidence showing justification for so serious and precipitous an action by Respondent falls far short of overcoming the prima facie case estab- lished by the General Counsel, especially in light of the fact that both discriminatees had been employed for over 3 years with previously unblemished work re- cords, excepting the single incident noted above con- cerning Rios. Accordingly, we find that Respondent, by virtue of the actions of its supervisor- Zamora, in discharging employees Rios and Martinez because of their union activities, violated Section 8(a)(1) and (3) of the Act. Remedy Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate- the policies of the Act. Having found that the Respondent has discharged Antonio Rios and Ysidro Martinez on April 12, 1974, and has since failed and refused to reinstate them, be- cause of their union activities, in violation of Section 8(a)(1) and (3) of the Act, we shall order the Respond- ent to offer them immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, and to make them whole for any loss of pay they may have suffered as a result of their discharges by payment to them-of a sum of money equal to that which they would have earned as wages, from the date of reinstatement, less their net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest at the rate of 6' percent per an- num to be added to such backpay, such interest to be computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having further found that the Respondent has threat- ened employees with discharge or other reprisals for exercising their Section 7 rights, and interrogated them concerning their union activities, as well as the union activities of others, we shall order that it cease and desist therefrom and post the appropriate notices. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for paragraph 3 of the Administrative Law Judge's Conclusions of Law: "3. By discharging Antonio Rios and Ysidro Mar- tinez, on April 12, 1974, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act." 2. Add the following paragraph: "4. By threatening employees with discharge or other reprisals for exercising their Section 7 rights and by interrogating employees about their union activities, as well as the union activities of others, the Respondent has engaged in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders- that the Respondent, Penasquitos Village, Inc.; Penasquitos Gardens, Inc.; Penasquitos PENASQUITOS VILLAGE, INC. 881 Hills, Inc.; and San Diego Leisure Life Village, San Diego, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Laborers' Inter- national Union of North America; Local No. 89, AFL-CIO, or any other labor organization, by dis- charging or otherwise discriminating against any em- ployee with respect to hire, tenure, or any other term or condition of employment. (b) Threatening discharges or any other reprisals for engaging in union activity. (c) Interrogating employees about their, or any other employees', union activities. (d) In any other 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) Offer to reinstate Antonio Rios and Ysidro Mar- tinez to their former positions or, if those positions no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privi- leges. (b) Make whole Antonio Rios and Ysidro Martinez for any loss of earnings they may have suffered by reason of the unlawful action taken against them in the manner set forth in the section of this Decision entitled "Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional -Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 2 In the event that this 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 to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." MEMBER KENNEDY, dissenting: I would affirm the Administrative Law Judge's Deci- sion in this matter. The majority's reversal of the credi- bility resolutions of the Administrative Law Judge is unwarranted, in my opinion. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in the La- borers' International Union of North America, Local No. 89, AFL-CIO, or any other organiza- tion, by discharging employees or otherwise dis- criminating against them because of their union activities. WE WILL NOT threaten employees with discharge or any other reprisals for engaging in union activ- ity. WE WILL NOT interrogate employees about their own union activities, nor those of'any other em- ployees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer to Antonio Rios and Ysidro Mar- tinez immediate, full, and unconditional reinstate- ment to their former positions or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed by them, and WE WILL pay them for any loss of pay they may have suffered as a result of their being laid off on April 12, 1974, with interest at 6 percent per annum. PENASQUITOS VILLAGE, INC; PENASQUITOS GARDENS, INC; PENASQUITOS HILLS, INC, AND SAN DIEGO LEISURE LIFE VILLAGE DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: This case was tried before me in San Diego, California, on August 5 and 6, 1974. The complaint, which issued on June 13, 1974, pursu- ant to a charge filed on April 25, 1974, alleges violations of Section-8(A)(1) and (3) of the National Labor Relations Act, as amended. Specifically, the charge alleges that in November 1973, Respondent's agent threatened employees that they would be laid off because they engaged in union activities; and, in November 1973 and April 1974, interrogated em- ployees about their union membership, sympathies, and ac- tivities, and those of their fellow employees, all in violation 882 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8(a)(1); and, on April 12, 1974, discharged An- tonio Rios and Ysidro Martinez, because they engaged in union or protected concerted activities in violation of Section 8(a)(3). Respondent denied the 8(a)(1) allegations, and fur- ther denied knowledge of union activities on the part of Rios and Martinez, contending they were terminated because they did not perform their work satisfactorily. All parties were given full opportunity to appear, to in- troduce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs were filed by the Re- spondent,.the Charging Party, and the General Counsel and have been carefully considered. Upon the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I JURISDICTION union member in November or December 1973 and signed an authorization card on January 4, 1974. Martinez signed an authorization card on January 11, 1974. On February 25, 1974, the Union filed a petition in Case 21-RC-13612, seek- ing an election in a unit comprised of all groundskeepers, operators, irrigators, general maintenance men, mechanics, gardeners, sprinkler men, painters, cleanup men, truckdrivers, machine operators, and foremen; excluding all other em- ployees, all professional and technical employees, guards, and watchmen. Pursuant to said petition, a hearing was con- ducted on March 20 and April 1, 1974, and on April 10 the Regional Director issued a Decision and Direction of Elec- tion. On April 25, Respondent and Union executed a Memo- randum of Agreement for Representation Election, to be con- ducted by the Conciliation Service of the Department of Industrial Relations, Human Resources Agency, State of California. On April 30, the Regional Director issued his order permitting the withdrawal of the petition with preju- dice in Case 21-RC-13612. Penasquitos Village, Inc.; Penasquitos Gardens, Inc.; Penasquitso Hills, Inc.; and San Diego Leisure Life Village, wholly owned subsidiaries of Penasquitos, Inc., all California corporations, are each engaged in the business of operating apartment houses adjoining the golf course in Rancho de los Penasquitos, a housing and country club development in San Diego, California. Respondent interchanges employees and has a common manager and a common labor relations policy under the control of a single individual. Respondent annually derives gross revenues in excess of $500,000 and purchases and receives goods and products valued in excess of $10,000 di- rectly from suppliers located outside the State of California. I find that Respondent constitutes a single integrated business enterprise and a single employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Laborers' International Union of North America, Local No. 89, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting Respondent operates a number of apartment houses con- taining over 1,400 units in San Diego, California. Bill C. Faurot is the resident manager and overall supervisor of all employees, including inter alia, the maintenance men and groundskeepers. At all times material to this proceeding, Jesus Zamora was the supervisor of the outside maintenance crew consisting of approximately 25 men in various job clas- sifications. Antonio Rios and Ysidro Martinez both worked on outside maintenance. Both men were hired in 1971 and were terminated on April 12, 1974. Organizing activities among the employees commenced in late 1973. Rios testified that he and another individual tried to "initiate" the Union in December 1973. In a statement given a Board agent during the investigation of the charge, he stated that the-Union was contacted about February 1974. Rios thought he became a B. Interference, Restraint, and Coercion Paragraph 9 of the complaint alleges that in November 1973, at an uncompleted building, Zamora threatened em- ployees that they would be laid off because they engaged in union activities. -- Armando Ruiz testified on direct examination that some- time in November 1973, he, Zamora, and Ricardo Hernandez were working on a roof next to the office when "Well, we were working and we saw Joe Alvarado' drive up and so Jesus Zamora asked me who was that guy, you know. We thought he was a narc [narcotics agent) because of his car. And I told him he was from the Union. And he asked me who let the Union in, and I told him I didn't know. And then he said whoever did was probably going to get his ass laid off. That is all I can remember." He testified on cross-examina- tion that when the car drove up, Zamora asked who the man was and that "I told him that I didn't know," and that Zamora then made a statement indicating that whoever called him would get laid off. In response to questions by the Administrative Law Judge, he denied he had told Zamora that the man was from the Union because "I was too scared to tell him" and that Zamora had gotten down from the roof and found out from another -supervisor that the man who drove up was from the Union. Ricardo Hernandez, who Ruiz stated was working on the roof along with Zamora and him, testified that he was not in fact on the the roof but was downstairs nailing some boards and did not overhear the conversation between Ruiz and Zamora. Zamora, who is no longer employed by Respondent and who impressed me as an honest and forthright witness, testi- fied that he did not recall working on the roof with Ruiz, who was an inside maintenance man, nor did he recall any conver- sation with him about the Union. He testified, however, that they rode to work together a few times and he might have talked to him about the Union because everybody discussed the Union with him openly and freely during work and he in fact "thought they were all in the Union" and that it was a good thing for them because they were underpaid. In the light I A field representative and organizer for the Union. PENASQUITOS VILLAGE, INC. of Ruiz' equivocal testimony, and Hernandez' failure to cor- roborate the alleged damaging statement, I conclude and find that the General Counsel has failed to prove by a preponder- ance of the credible evidence that in November 1973 Zamora threatened employees that they would be, laid off because they engaged in union activities as alleged in paragraph 9 of the complaint. Paragraph 10 alleges that in November 1973 Zamora inter- rogated employees about their union membership, sympa- thies, and activities, and about those of their fellow em- ployees. Hernandez testified that in November, in a room adjacent to the office where drapes are stored, Zamora "called me and asked me if I went into the Union and signed for them. I told him that this was the most convenient thing for everyone. For himself as well as us. And that is all." He testified Zamora "just smiled and left." His version of the conversation on cross-examination was that Zamora said, "Hey, Ricardo, if you can, if the Union comes in, are you going to sign with them? And I said, that is the most convenient thing for all of us." He testified Zamora did not respond, "He just smiled and left." As Zamora failed to testify regarding this particular conversation, I must assume that a conversation in which the Union was mentioned did, ii fact, take place between Zamora and Hernandez in November 1973. As noted above, Zamora testified that everybody discussed the Union openly and freely during work and that he thought the Union was good for the employees because they were underpaid. The General Counsel relies upon two statements attributed to Zamora to show union animus, one in March and the other in April 1974. Antonio Rios, an alleged discriminatee, testified that in March 1974, about noon, he, Armando Ruiz, Miguel Gam- boa, Ruben Velasquez, and several others overheard Zamora and Ed Southerd, another of Respondent's supervisors, talk- ing near the timeclock. He testified that "Zamora stated, while stamping his foot to the ground with anger," and refer- ring to the employees in an obscene manner, "that we were going into the Union and therefore we were acting smart. But even so, he could fire us and he was going to do it." On cross-examination, he testified that Zamora, stamping his foot, stated, "They think they are very smart because the Union is coming in. But whether it comes in or not, whether the Union comes in or not, I am going to try and I believe I am going to be able to fire them." Southerd's response, he testified, was to smile. Ruiz testified that at 8 o'clock one morning when he, his brother Aurelio Ruiz, and another employee named Mike were getting ready to go to work, he overheard Zamora refer to the employees with the same ob- scene expletive which Rios testified Zamora had used, and that Zamora went on to say, "just because they think they are getting the Union in, they are going to do whatever they feel like doing. Bastards!" Asked specifically by the General Counsel if Zamora mentioned the word "fire" during the conversation, Ruiz stated, "No, he just said they [the employees] were going to do whatever they felt like. That is all he said." On cross-examination, Ruiz testified that Zamora stated, "Now that we got the Union in, we [the employees] weren't going to do what we wanted." Zamora testified that he and Southerd discussed the Union several times, principally about when the Union was coming in, but 883 that he couldn't state exactly when or what was said. No other witnesses were called by either side to shed any further light on the incident. I am constrained to believe, however, and,I so find, that Zamora did not state, as Rios contends, that "he could fire us and he was going to do it." While Rios and Ruiz placed the conversation which they overheard at different times, Rios at noon and Ruiz at 8 a.m., I am con- vinced the two were testifying to the same purported conver- sation, and Ruiz specifically denied that Zamora used the term "fire." Further, Zamora did not impress me as the "foot stomping" type that Rios portrays him. Moreover, Rios' animosity toward Zamora was evident throughout his tes- timony, characterizing him at one time as crazy, and unable to "think as an honest person." Furthermore, as will be seen hereafter, Rios testified in a contradictory manner regarding his termination. I find, therefore, that the General Counsel has failed to establish Zamora's animus towards the organiz- ing activities of the Respondent's employees or-that Zamora's conversation with Hernandez was either calculated to dis- courage, or tended to discourage and deter employees in their Section 7 rights. Accordingly, the General Counsel has failed to establish by a preponderance of the credible evidence that Zamora unlawfully interrogated employees as alleged in paragraph 10 of the complaint. Paragraph 11 alleges that in April 1974, in the employees' cafeteria, Zamora interrogated employees about their union membership, sympathies, and activities, and about those of their fellow employees. Jose Cuevas testified that on April 4, following an injury and a trip to the doctor, he was sitting in the cafeteria when Zamora came in. Cuevas testified that during the conversa- tion which ensued, "I asked him if it was possible to go into the Union. And he answered me that it was possible because the son-of-bitches, when they got a company, they'didn't let go of it, until they got it in the Union. That it was not possible to go in right away, but later on he was going in.2 Then he asked me who was the one who started . . . the Union. And I answered that it was Tony Rios and Ysidro Martinez, Ra- mon Valdez [and] Rodriguez." Cuevas acknowledged on cross-examination that Zamora didn't ask him how he felt about the Union, didn't tell him not to join the Union, express any feeling about whether the Union was good or bad for the employees, or threaten to terminate anyone if they joined the Union. Zamora testified that he remembered talking to Cuevas following his injury, and that while he couldn't relate the conversation, he thought they discussed politics or the United States Government. He acknowledged the fact the-subject of the Union may have come up since "like I said, the Union was discussed by everyone, you know. It was the thing." He testi- fied that he felt all of the employees employed by Respondent ,more or less" were for the Union because all of the em- ployees discussed it openly during work; and that he never attempted to find out which employees were doing the organ- izing because, through conversations with them, "I thought they were all in the Union ... . In Frito-Lay, Inc., 151 NLRB 28, 34 (1965), the Board held that not every interrogation of employees is violative of Sec- 2 On cross-examination, Cuevas denied that Zamora stated he was "going to get into the Union " 884 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(a)(1) of the Act, the test being "whether under all these circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of their rights." The circumstances of this alleged interrogation plainly does not fallwithin that test. It must be remembered that Cuevas initiated the conversation about the Union, indicating, as Zamora testified, his close relationship with the employees and their practice of free and open discussion of the Union, even during working hours. Further, the timing of the alleged interrogation is an important factor. The union organizing activities had commenced in November 1973, and presuma- bly authorization cards had been obtained between then and the date of the filing of the petition on February 25. There is no evidence that Zamora or any other of Respondent's offi- cials did.anything during this time to hinder the solicitation of employees, although Zamora admitted he knew of the organizing activities and felt through discussions with the employees that they were all in favor of the Union. Had he, in fact, been bent upon ascertaining the names of the em- ployees responsible for contacting the Union, he would have done so long before April 4. Moreover, the record is void of evidence that the Respondent used the delay between the filing of the petition and the April 25 election conducted by the State of California, Department of Industrial Relations, to gain time to undermine the Union. In sum, I conclude and find that the limited query of Cuevas, even if it did occur, does not constitute substantial proof of interference, restraint, or coercion such as warrants remedial action under the Act. See, for example, Dieckbrader Express, Inc., 168 NLRB 867 (1967); Frito-Lay, Inc., supra C. The Discharges Both Antonio Rios and Ysidro Martinez began working for Respondent in 1971 and were terminated by Zamora during the afternoon of April 12. The General Counsel con- tends they were terminated for their union or other protected concerted activities, while the Respondent contends they were terminated because their work was not satisfactory.' Martinez testified that in late 1973 he attended several union meetings, and that, while an individual whose name he didn't remember did most of the talking, all employees, him- self included, talked in favor of the Union. He signed a union authorization card on January 11, 1974. Rios testified that he and Ramon (Velasquez) contacted the Union in about December 1973 and shortly thereafter, Rios, Ramon, and Valdez met with Joseph Alcoser, an organ- izer for the Union, at the Seven-Eleven Store located 2 or 3 blocks from work. There were three union meetings held after that which employees attended, a meeting at the Holiday Inn in Escondido where a number of employees including Rios, signed union authorization cards, and two other meetings at the aforementioned Seven-Eleven Store. Rios testified that he was the only one who spoke at the first meeting held with the employees at the Holiday Inn. As noted above, Martinez 3 Martinez was returned to work on June 4, 1974, pursuant to an agree- ment between the Respondent and the Union The Regional Director did not give his approval of, nor participate in, the agreement The parties stipulated that no inference should be drawn that the Respondent was admitting any liability because of this action with respect to the allegations in the complaint. testified that while everyone talked in favor of the Union, an individual whose name he didn't remember did most of the talking. I find it hard to believe that Martinez would not have remembered Rios as being the principal speaker, if in fact he was. Armando Ruiz, a witness called by the General Counsel, testified that neither Rios nor Martinez spoke at the Holiday Inn meeting; and Ricardo Hernandez, another witness called by the General Counsel, testified that, while employees asked questions, a union official was the only one who spoke at the Holiday Inn. Accordingly, I do not credit Rios' testimony that he was the only one who spoke at the Holiday Inn meeting. Rios testified that on the morning of April 12, which was Good Friday, several employees asked him to request Zamora for a half day off. He testified that he made the request and that Zamora "said no, everyone to work."4 The General Counsel contends the request "which in and of itself was protected concerted activity, coming almost simultane- ously with the Regional Director's Decision and Direction of Election, aroused the fears expressed earlier by Zamora ... that the employees would be able to do whatever they wanted to if the Union did come in, and acted as the final provocation which caused Zamora to decide to discharge them [Rios and Martinez] for engaging in union and protected concerted activities." Had nothing else occurred on April 12, I might perhaps find some substance, insofar as Rios is con- cerned, in the General Counsel's contention. In view of events which transpired later in the day, however, I find no validity to the argument. Later that day, Rios and Martinez were working together hoeing weeds when Zamora observed them watching some girls attired in bikinis some distance away.' Zamora told them that if they wanted to see women in bikinis, to punch their timecards "and go to the beach." Zamora then con- tacted Bill Faurot, Respondent's resident manager, to find out if he had the authority, to hire and fire, stating he was dissatisfied with the work Rios and Martinez were doing, and wanted to let them go. Faurot informed him that he had the authority to terminate employees with Faurot's approval. Zamora explained the two men were very slow workers and had not performed the work they were assigned to do. After Faurot indicated he would respect Zamora's decision, Zamora returned and advised Martinez and Rios they were terminated because they had done very little work. Rios' reaction to the termination was, "Well, I told Jesus that he was probably firing me because of what we were doing be- cause I imagine that he was aware of the Union or because we were Mexican. And he didn't like the Mexicans of his own race ... I told him that he was probably firing me because of what we were getting started with, which is understood with the Union." He also testified that neither he nor Zamora said anything about the Union at the time of termination. At one point in the trial he testified that he then told Zamora that he "-Zamora had told Ysidro to work slowly because beforehand he had already worked too much." At another point he testified that the three of them then went to the office where Rios told Zamora that it was wrong to terminate them 4 He had requested time off for the employees on several occasions 5 Martinez places this incident before lunch, and Rios testified it occurred in the afternoon, approximately 20 rmnutes before they were terminated PENASQUITOS VILLAGE, INC. 885 since they were working "and besides he had told Ysidro Martinez to work slowly because he had worked too much on other days." Martinez testified that when he_ started work that morning, Zamora "he told me not to work too fast because I had worked quite a bit before. He had seen me and he told me not to work too fast" and that Francisco Lopez and Joaquin Valdez were witness to the statement. Lopez was not called as a witness. Valdez testified that he was working with Martinez on April 11, and overheard Zamora tell Mar- tinez "not to work too much."6 Zamora testified that he fre- quently uses a Spanish word which is the equivalent to "take it easy" and that he may have used the word that day. I am convinced, however, that none of the employees construed the term to mean they were authorized to slow down or do less work. Valdez testified that only a week earlier he had been admonished for working slowly, and on the very day of the termination, Zamora had censured Rios and Martinez for watching women in bikinis and told them to punch out and go to the beach if they wanted to do that. Furthermore, Rios and two other employees had been suspended for several days in January for stopping work early .7 After telling Rios and Martinez they were terminated, all three went to the office where, according to Rios, he asked to talk to Faurot and also told Zamora "that I knew he was firing me probably because of the Union, probably because we were Mexican, and he didn't like his own race . . . . And he laughed and he told me, think whatever you want and do whatever you want, I don't care."8 Rios and Martinez then talked to Faurot. Rios told Faurot that they had been work- ing all day and were fired without motive, and that Zamora had told Martinez to "take it easy." Faurot's response was to 6 Valdez further testified that about a week before the termination, "I was in one yard and I was working slowly. And then he [Zamora] called this to my attention. . He asked me why was I working so slow I told him that the work where he had placed me was very hard. Well, he said, several of you don't want to do anything because you already have the Union." 7 On cross-examination, Rios denied he had ever been suspended from work. He later testified that in mid-January, about 10 or 15 minutes before quitting time, he and Ricardo Hernandez had stopped working to discuss who would fix a couple of sprinklers that had been reported broken, when " . Jesus Zamora went by and he saw us stop and he became upset, screaming, why were we stopped. That he didn't like that That he had been sent from the office looking for a man who was slleeping in a laundromat. He asked us if we knew who it was. We said we did not, to keep on looking And then he told us that he was going to be scolded in the office for not finding that person to punish her [sic] We told him that if he wanted to punish one of us, so he wouldn't be punished in the office, to go ahead and do it, to show him that we wanted to help him also, even though he didn't deserve this. And therefore he decided he was going to reprimand or punish all three of us . . . He told us that he was going to give us 3 days off but he didn't give us any paper at all or anything. I was punished for 2 days only. On the third day I went back to work " Zamora's version is that in the latter part of 1973, between 4 and 4 30 p in., he and Southerd noticed Rios and Ricardo and Manuel Hernandez standing around underneath a tree. After watching them for 5 or 10 minutes, he approached them and asked what was going on. The response was that they didn't have anything to do and were lust waiting for the time to come so they could clock out. The three were sent to the office where they were informed that they were going to be suspended for a few days I credit Zamora's version of the incident since it seemed more plausible and because Rios exhibited such an intense dislike for Zamora during the trial that I am convinced he fabricated facts in an effort to make Zamora appear as a scoundrel Noland v. Buffalo Insurance Co, 181 F 2d 735, 738 (C.A. 8, 1950); L C. Sutton Handle Factory v. N.L.R.B., 255 F.2d 697, 698 (C.A. 8, 1958), cert. denied 358 U S. 865. 8 Rios also testified that neither he nor Zamora mentioned the Union when he was terminated and that he had advised the Board agent investigat- ing the case that "nothing was said about the- Union " the effect he doubted a supervisor would tell the employees not to do their work, "especially when I was onto him to get Leisure Life shaped up." Faurot then stated that he was going to respect Zamora's decision because if he didn't back his supervisors he wouldn't have much of an organization. He stated that he would review the matter further and give them a final decision when they came back for their checks on Monday. About noon on Saturday, April 13, Joseph Al- varado, the Union's field representative, talked to Faurot. He advised Faurot that Rios and Martinez had contacted him, and asked if Faurot knew that 100 percent of the employees had signed up with the Union. Faurot responded that he had not been aware of that fact and that it had no bearing on the terminations, that he "expected, an honest 8 hours of work. And that I was letting the men go because they had not performed their work." On the following Monday, Rios had another conversation with Faurot in which he "... informed me [Faurot] and in fact he accused Jesus of smoking marijuana among other things. And I said, well, it would be hard to prove something of that nature. And I think I in- formed him then that he should not indicate such things as this." Faurot then advised Rios and Martinez that he was "sticking to the decision that they were dismissed." It is my opinion, and I find, that the General Counsel has failed to prove by a preponderance of the evidence that the discharge of Rios and Martinez was motivated by their union or protected concerted activity. Rios and two others had been suspended in late 1973 or early 1974 for stopping work early; Valdez had been admonished but a week prior to the termina- tion for working slowly; Rios testified that Zamora ".. . wanted work. He demanded work." Furthermore, on the day of their discharge, Rios and Martinez were told that they had to work, and if they wanted to watch women wearing bikinis they should punch their cards out and go to the beach. More- over, Martinez admitted that he was working at a slow pace on the day of his termination. To sum up, I find that the evidence is insufficient to prove a violation of the Act in the face of evidence which establishes a legitimate cause for the terminations. Upon the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent constitutes a single integrated business enter- prise and a single employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the mean- ing 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. The General Counsel has failed to establish by a pre- ponderance of the evidence that Respondent engaged in un- fair labor practices proscribed by Section 8(a)(1) or (3) of the Act. [Recommended Order for dismissal omitted from publication.]