Silvercrest Industries, Inc.

SILVERCREST INDUSTRIES, INC. 135 Silvercrest Industries, Inc. and International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, U.A.W. Case 21- CA-12730 September 5, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On March 31, 1975, Administrative Law Judge E. Don Wilson issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed a brief answering Respondent's exceptions.' 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 2 of the Administrative Law Judge to the extent consistent herewith. The Administrative Law Judge found Respondent violated Section 8(a)(1) of the Act through the con- duct of its supervisors which included coercive inter- rogation of employees concerning union activities and threats of discharge, plant closure, and reprisals for supporting the Union. He also found a violation of Section 8(a)(3) and (1) in the mass discharges of 48 employees on May 24, 1974. We affirm the finding of 8(a)(1) violations 3 but reverse the conclusion that the discharges violated Section 8(a)(3) and (1). In holding that the discharge of 48 employees on May 24, 1974, was motivated by a desire "to destroy union activity" and violated Section 8(a)(3) and (1) of the Act, the Administrative Law Judge noted (1) the union animus manifested by the 8(a)(1) violations i The General Counsel has filed a motion to strike portions of Respondent's brief because they refer to evidence not of record We find it unnecessary to rule specifically on General Counsel's motion , since in reaching our decision we have not relied on the evidence to which General Counsel objects. 2 Respondent has charged the Administrative Law Judge with bias based principally on his crediting the testimony of General Counsel 's witnesses, not crediting Respondent's witnesses, and reaching conclusions adverse to Respondent. No external evidence of bias has been presented It is funda- mental that a claim of bias cannot be predicated on adverse credibility rulings and we find no evidence of bias in the record. Further, although we do not adopt, and find unwarranted , the Administrative Law Judge's per- sonal comments with respect to evidence offered by Respondent , we find his findings of fact, apart from such comments, to be from judicial bias. 3 It is not clear whether the Administrative Law Judge found an 8(a)(I) violation based upon surveillance . In any event, the complaint did not allege and the evidence does not support a violation based on surveillance. Ac- cordingly, our affirmance does not embrace a surveillance violation. by several of Respondent's supervisors, (2) Respondent's knowledge of the union organizational drive, (3) the statement of one supervisor to an em- ployee upon informing him of his discharge "to eat union," (4) the hiring of a new employee on the day 48 others were discharged, and (5) the coincidence of the discharges with the heightened union activity during the month of May .4 Respondent denied any antiunion motivation and claimed it discharged the employees because adverse economic conditions had caused a decline in sales in May and indicated a continuing decline in the future. Its witnesses testified that, since it manufactured mo- bile homes only on orders and not for inventory, effi- cient operation required the maintenance of a sub- stantial backlog of orders. To maintain such a backlog in the face of declining sales, according to the testimony, it decided to reduce daily production from nine units to seven and ordered a proportionate reduction of its work force. In support of its econom- ic justification Respondent points out that the em- ployees were selected for discharge without regard to their attitude toward the Union and that known union protagonists were kept on. This was acknowl- edged by the Administrative Law Judge. The General Counsel's evidence confirms Respondent's claim of a sharp reduction of orders from 245 in April to 161 in May and a further decline to 102 in Junes Reduction of production in June with the smaller work force resulted in the mainte- nance of a constant backlog of unfilled orders for that month. The conclusion to be drawn from the drastic reduction in employees on May 24 is ren- dered uncertain by Respondent's history of wide fluctuations in its work force unrelated to union ac- tivity. Thus, in November of 1973 it laid off 40 em- ployees, closed its plant for 2 weeks at the end of December, laid off 40 employees again in January of 1974, and, after the layoff of May 24, laid off approx- imately 50 employees in October of 1974. Employees were rehired in the intervals between layoffs and a significant number of those discharged on May 24 have been rehired. In the light of these circumstances, since there is no direct evidence linking the discharges to anti- union motivation,6 we do not consider that the Gen- 4 On the day of the discharges Ozzie Fetter, Respondent's vice president in charge of plant operations who instructed the foremen to effect the dis- charges received a letter from the Union demanding recognition as collec- tive-bargaining agent. Fetter did not deny receiving this letter before an- nouncing the discharges but claimed that he had not seen it until after they had been announced. The Administrative Law Judge did not refer to this letter in arriving at his conclusion concerning the discharges. 5 April did not represent a normal month since a price increase had been announced and dealers were permitted to order at the preincrease prices in April. There were 175 orders in March 6 1t does not appear that the supervisor who told a discharged employee Continued 220 NLRB No. 24 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel has sustained his burden of proof and we reverse the Administrative Law Judge's finding of an 8(a)(3) and (1) violation. AMENDED CONCLUSIONS OF LAW Delete the Administrative Law Judge's Conclusion of Law 4. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Sil- vercrest Industries, Inc., Santa Fe Springs, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities or threatening its employees with dis- charge, plant closure, or other reprisals because of their support for the Union or to induce them to for- go such support. (b) In any like or related manner interfering with, restraining, or coercing any employees in their right to join, assist, or support the Union herein, or any other labor organization, or engage in any other ac- tivities protected by the Act, or to refrain from so doing. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its Santa Fe Springs, California, plant copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately 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. (b) 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. "to eat union" was privy to the discharge decision . As to the employee hired when the discharges were effected , it appears that arrangements for his employment were made before the decision to cut daily production from nine units to seven was made 7 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" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about their union activities and sympathies, or such activities of their fellow employees. WE WILL NOT threaten any of our employees with reprisals to induce them to forgo support of the Union, nor threaten them with closure of all or part of our plant or with discharge or other economic reprisals because they engage in union activities or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employees in their right to join, assist, or support the Union, or any other labor organization, or en- gage in any other activities protected by the Act, or to refrain from so doing. SILVERCREST INDUSTRIES, INC. DECISION STATEMENT OF THE CASE E. DON WILSON, Administrative Law Judge: Based on an original charge filed by International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, U.A.W., herein the Union, on June 4, 1974, and amended by it on August 7, 1974, the Regional Director for Region 21, of the National Labor Relations Board, herein the Board, issued a complaint and notice of hearing on August 8, 1974. It was therein alleged that Silvercrest Industries, Inc., herein Respondent, committed various vi- olations of the Act. Respondent timely denied the same. Pursuant to due notice, a hearing in this matter was heard before me on December 4 through 6, 1974. Briefs were received January 21, 1975, and have been fully con- sidered. Upon the entire record in this case,' and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS At all material times, Respondent has been a California corporation engaged in the manufacture of mobile homes; 'General Counsel's motion, unopposed , to correct transcript is granted SILVERCREST INDUSTRIES, INC. 137 its principal place of business being in Santa Fe Springs, California. In its normal business operations, it annually sells and ships goods valued in excess of $50,000 directly outside the State of California. It has at all material times been an employer engaged in commerce within the mean- ing of the Act. If. THE LABOR ORGANIZATION At all times material, the Union has been a labor organi- zation within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES 2 A. The Issues Included among the issues are whether Respondent in- terrogated employees about their own and their fellow em- ployees' union activities; did Respondent threaten employ- ees with discharge because of their union and other protected concerted activities; did Respondent threaten employees with reprisals in order to encourage them not to support the Union; did Respondent threaten employees that the plant would be closed if the Employees selected the Union as bargaining representative; did Respondent threaten employees with discharge and other reprisals be- cause they had engaged in union and other protected con- certed activities; did Respondent, about May 24, 1974,1 lay off or discharge about 48 employees and has it since failed and refused to reinstate them because of their union activi- ties? 4 B. Facts 1. Restraint, coercion, and restraint by Respondent in violation of Section 8(a)(1) of the Act and Respondent's union animus Union activity began at Respondent's plant early in May. It increased into the middle of May and progressed. The plant had about 200 employees. Some of them signed cards authorizing the Union to represent them at the plant. Respondent's witness, Fernando Garcia, an agent of Re- spondent, I find, testified he asked an employee of Respon- dent, Oscar Zuazo, if he had signed a card for the Union. Allegedly, an employee had given Garcia 10 authorization cards, and Garcia signed one of them. Garcia allegedly wanted to find an employee who had "not signed." 5 He did not distribute the other cards to employees because 2 The transcript and exhibits have been meticulously read, and, in many instances. reread I am most conscious of the demeanor of each witness I am aware that although Respondent had many employees, much testimony of witnesses for General Counsel has not been corroborated To the extent that Respondent's virulent union animus inhibited other potential witnesses, I do not know I find that the testimony and demeanor of General Counsel's witnesses most impressed me. I credit their testimony even where denied 3 Hereinafter all dates refer to 1974, unless otherwise stated 4 Some have been reinstated . As of the time of the hearing , some had failed to accept an offer of reinstatement , if received, and some could not be located by Respondent . Compliance can handle details. 5 Nonsense! "they all had one." 6 He allegedly dust signed his card and gave the others back to the union steward who had given him the 10. He testified he didn't distribute the cards, he just signed his. He asked everybody in his department if he had signed a card for the Union, each replied he had.7 Agent Arredondo, called by Respondent as a witness, testified he heard "rumors" about the Union before the May 24 layoff.8 He heard from a "guy" that "the Union's coming in." He "probably" heard about that "a couple of times." He swore he asked "the Union steward," Raymond Lopez, for a U.A.W. union card. He swore he asked Lopez, "Where's mine, Raymond?" Lopez gave him one. He put it in his pocket, didn't sign it, and brought it home. He asked for the card so he could see "what it was." He was "inter- ested" in the "Union card." He was interested because Lo- pez was "handing them to everybody else." 9 He "could just see." 10 Lopez said to him, "Here's yours, John" when John asked Lopez, "Where's mine?" Not for a moment do I believe he did not know union cards were being distribut- ed or that he did not ask for one. He didn't he would have me believe, tell his superior about this because he didn't think he should. He asked me why he should have, I keep asking myself why he should not have. I have no doubt he did and his "rhetorical" question convinces me that he was attempting to conceal the truth. Why not reveal innocent actions about union activities to anyone who might have an interest? He felt Respondent II could find out for itself,12 These admissions of unfair labor practices by Arredondo, establish 8(a)(1) violations by Respondent on a large scale, no matter the thinness of the skin with which Arredondo would attempt to conceal them. Another of Respondent's witnesses was Ed O'Briant, also an agent of Respondent. He was a "foreman." Before May 24, he too heard "rumors" 13 about the "Union" in the plant, but he never before may 24 heard that a layoff might take place.14 It was at lunch time on May 24, when Ozzie Fetter first told him and Ralph Calzaretta, that there was going to be a layoff that day.15 He never had-heard there was going to be such a layoff. I have noted that I have meticulously studied this record, and it reveals to me that had Respondent determined upon an economic layoff, even as late as May 23, O'Briant would so have been advised by the end of May 23 or as early as could be on May 24.16 The "rumors" about the Union were "throughout the 6 Company knowledge 7 These interrogations violated Section 8(a)(I) of the Act 8 Discharge9 9 Company knowledge 10 Surveillance9 ii He was Respondent's agent Iz He signed up with the U A W after the Respondent lost the election u What an innocent word' 14 He was not a small time operator for Respondent . He was, at least, foreman over electrical, plumbing, and heating 15 I refuse to find, that absent improper reasons for the layoff of 48 people a supervisor of the status of O'Briant , would have been kept in ignorance of the imminence of a layoff, even though all the big men of the Respondent came to the decision the day before If such decision had been made, O'Briant would have known of it before he started to eat that lunch 16 O'Briant kept things moving Respondent was not stupid enough to give him a minimum of time to decide on whom should be laid off Respondent's witnesses, especially at the higher level, impressed me as men of such exceptional intelligence that they would not alert foremen that al- Continued 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shop." 17 It was "all through the day," as he'd go through the shop,is particularly May 22 and May 23. The "ru- mors" from his lips became realities. "They were saying the Union was trying to get into the shop." He knew "a few people, you know, that had signed cards." A "leadman" told him "they" had given him a card, and "he didn't want to join the Union, you know, uh, but is it okay if he signed the card, and I said yes, you know, it's okay with me." 19 He testified there was discussion about whether the Union would or wouldn't make it on May 22 and 23.20 Some would say yes and others no. The discussions were pretty "much constantly going on all day or throughout the days of May 23rd and May 22nd." He didn't bring this to the attention of anybody else, "because most of the people knew about it, you know." He was sure Ozzie Fetter knew about it. "It was general conversation throughout the plant." It would have been almost "impossible for Ozzie Fetter not to have learned this." Fetter made his rounds through the plant.21 He must have known of the union discussions. He discussed the Union "some," on up from Fetter. About May 22 or 23, he and Fetter discussed, `you know, the Union trying to get in." The U.A.W. was mentioned. Fetter told him he had heard the "rumors." 22 Ozzie Fetter was vice president of plant operations for Respondent. His story of the most sudden meeting and decision to lay off or discharge a most substantial number of employees on May 24 will be discussed later .21 Fetter swore he hadn't "heard" of the Union's organiz- ing activities until May 24,24 the day of the layoff. He hedged immediately, and said, he, also, had "heard some rumors." He swore he "didn't know anything for definite." This was false testimony, in light of the record as a whole. It was brazen testimony. He first heard the "rumors" about 2 weeks before the mass discharge. The rumors stayed the same-no increase or decrease. He would say he heard rumors more than twice. He wouldn't say "more than five times," he couldn't be that "specific." No supervisor or leadman reported a rumor to him-'just by certain men." They just "volun- teered" that the Union was trying to organize the employ- most 25 percent of the force was to be laid off, only a couple of hours before the selection of those to be discharged. 17 Company knowledge) 18 Rumors? 19 Why give or withhold permission9 20 Obviously before May 24 21 Daily' 22 The soft beauty and innocence of a euphemism. 23 Especially in view of my findings above, I here find Respondent's knowledge or lack of knowledge as to union activities, if any, of individuals on May 24, is immaterial. Sometimes it matters little whether you're a sheep or a goat if you're shot for a goat, and it can mean nothing if the big chopping axe demonstrates that the wielder thereof has power . Respondent, possessing union animus, knowing that unionism was rampant . got rid of a most substantial number of employees, union or not, as individuals. An artful, but as revealed by the entire record in this case, unsuccessful way to decimate the employee complement so as to eliminate unionism among Respondent's employees, was engaged in by Respondent on May 24. Re- spondent argues in his so able brief, that there is insufficient evidence that Respondent was aware of the union sentiments of the individuals discharged on May 24. But the record makes more than abundantly clear that this Respondent knew very well of the intense interest of "its" employees in the Union 24 Basely untrue ees-"voluntarily." Probably before the "two weeks" referred to above, Re- spondent began to check on union activities among its em- ployees. Stanley Putrzenski, herein called Pert, as he was in the plant, was Respondent's foreman of House Siding and Roofing. In May, he had about 25 employees under him. He didn't learn of the May 24 mass discharge until 11 a.m. that day.25 Ozzie Fetter told him. Pert then testified his leadman told him there was talk about the Union on May 23. Pert reported that to Fetter. This was about 7 a.m. or 9 a.m. I do not credit Pert's denials of conversations he had with employees, as testified to by Felipe Valenzuela and Silvestre Saucedo.26 Valenzuela most credibly testified, that when he testified he was employed by Respondent and had been so em- ployed in May. He had signed a union card. Contrary to Pert, whose denials, as I have said, I do not credit, in the middle of May, Pert came to Valenzuela and asked him if he knew what Pert wanted to talk to him about. Valenzue- la, herein V, said "yes. For the Union." Pert asked him if he had signed for it. V asked, "Me?" Pert again asked him, "Did you sign?" V replied, "We all signed." 27 Pert asked him if he had signed for the Union, to which V replied, he as well as, everyone else had. Later on, Pert asked him the same question. s These questions violated Section 8(a)(1) of the Act. Pert spoke on these occasions, through an inter- preter. Silvestre Saucedo was an employee of Respondent, when he testified. I credit his testimony. He was honest and forthright. He talked to Pert in the middle of May. Pert asked him if he wanted the Union. Saucedo said, "maybe." 29 Pert said the Union would not protect him. (I find this particularly violative of Section 8(a)(1) of the Act.) Pert then said, "you want a union, maybe you lost the job." (Obviously violative of Section 8(a)(1) of the Act.) Pert added, "you and the guys." (Again violative.) He signed the card for the Union after Pert gave him the coer- cion. General Counsel's witness, Oscar Ramirez Zuazo, was laid off by Respondent on May 24. He signed a card for the Union about the middle of May. Supervisor Fernando Garcia spoke to him a couple of days after he signed the card. One unnamed employee was present. Garcia told him he had signed a union card. Zua- zo agreed. Garcia said all who had signed for the Union would be laid off. Zuazo said it didn't matter because he had already signed. Zuazo came back to work for Respondent about 6 weeks after the May 24 layoff. Garcia called him back. Garcia in his conversations, interrogations, etc., violated Section 8(a)(1) of the Act. 25 Foreman O'Briant had "mentioned " there might be a layoff about a week before. 26 Pert further testified an employee came to him on May 23 and said he wanted to quit "because all the fellows were signing cards." It's reasonable to infer, as I do, that Pert reported this to Fetter. Timing ! Timing' 27 1 presided at this trial . I observed the witnesses . I studied the tran- scripts, exhibits, and briefs I repeat, General Counsel's witnesses were hon- est and truthful , despite Respondent's attacks upon their credibility. 28 Of course, such repeated interrogation becomes more coercive . Pert. I find, intended to coerce. 29 See how coercive interrogation can be! SILVERCREST INDUSTRIES, INC. Garcia's testimony, rebutted or unrebutted, is not cred- ited. It is incredible. Garcia testified to receiving 10 author- ization cards for an alleged shop steward. He testified he asked Zuazo if he had signed a union card and I properly infer from his testimony, he wanted to find an employee who had not signed for the Union.30 The testimony and favorable demeanor of Ray Lopez shown forth with credence, and I entirely credit his testi- mony. When he testified, he was in the employ of Respon- dent. He conversed with Agent John Arredondo about the Union in the week of May 24. They and about nine other persons were present.31 Arredondo's denials of Lopez' testi- mony are specifically not credited. At a 1:30 p.m. break, the group was discussing the Union and Arredondo, with E.S.P., in part or otherwise, stated that if the Union came in, Respondent would close down.32 The witness named others who were present but who did not testify for either General Counsel or Respondent. Timing! How important! On or about May 23, Agent Sandoval met with employees. Rafael Peregrino was em- ployed by Respondent when he testified. His honesty was as evident as the pureness of a real gem, even though he testified through an interpreter. His supervisor, in May, was Pedro Sandoval. He signed a U.A.W. or union card and thereafter had a discussion with Sandoval in the mid- dle of May about the Union, and 10 or 12 other workers were present. Sandoval spoke to all of them. Respondent's counsel properly points out in his excellent brief that San- doval denied violations attributed to him. I do not credit the denials. Sandoval said to Peregrino and the others that he want- ed to talk to them. He said he wanted to talk as Respon- dent wished him to. He said, "All of those who have not presented their papers" 33 "to bring them." "Because the Company doesn't want to have any more workers here ille- gally, because the Immigration could come, and they don't want to have any problems." He added, in gross violation of Section 8(a)(1) of the Act, "because you're here in this Company, already have a bad record for having signed for the Union." He then said, "I give you until the end of this week to present your papers." 34 Sandoval said, "Well it's not my fault, you signed for the Union, now you wait for the result." He added, "Possibly all those that signed are going to be laid off." 35 This, to a group of perhaps a dozen, was clearly a threat that that which happened on May 24, would happen. I suppose I'll devote time to the so-called economic defense.3 If such there even should be, it would be so intertwined, so integrated, with an antiunion motive to destroy union activity by decimation, or more, that the May 24 mass layoff-in light of Fetter's alleged timing- learn the 23rd-fire the 24th-and Respondent's virulent and abiding union animus-violated Section 8(a)(3) and 30 Further violation of Section 8(a)(1) of the Act. 31 If others did not corroborate, I find Respondent's Section 8(a)(1) viola- tions were all coercive. 32 He was only 75 percent right, but violated Section 8(a)(1) of the Act. 33 The green immigration cards. 34 How many of his listeners were illegal aliens, if any? Any good charge of lack of corroboration'' 35 Section 8(a)(l). 36 I've considered it often and deliberately. 139 (1) of the Act. I find, because it is so obvious to me from the entire record that a and a controlling reason for the mass discharge of May 24 was to destroy, annihilate, and leave the remains of union activity for cremation. Sandoval's denials were but consonant with the rest of a defense devoid of merit and unworthy of either illumina- tion or detailed elaboration. We come to Adolfo Guante Mora whose employment for Respondent ceased on May 24. Sandoval was his super- visor. He signed a union card. On May 23, Sandoval, in the presence of perhaps 12 others, after calling them together, asked them who had signed for the Union, one at a time. Mora said he had signed. Sandoval said he was going to lay off anyone who had signed for the Union.31 Sandoval laid off Mora. I am not slightly interested in the fact that only some of the group were discharged by Respondent on May 24. That was the day Respondent showed its muscle and its strenght of Atlas. It was antiunion. It knew many if not most of its employees, even though not identified, wanted the Union. On May 24, with no prior warning- SWAT!-25 percent of the employees were ex-employees. Res Ipsa Loquitor is not limited to negligence. On this rec- ord-"economics"-"fiddlestick." It is so nonsensical to argue the lack of value to be attached to nonsense! I won't. Respondent, in his outstanding brief, appears to suggest that the absence of names of people or their failure to testi- fy is an indication that their testimony was apparently not "solicited" by the General Counsel. Spurious speculation! As would be mine that he solicited the testimony of every employee but was unsuccessful because each had been suc- cessfully restrained, interfered with, and coerced by Re- spondent during the course of his employment. Of course, I shall not engage in such impermissible, pure speculation. Counsel for Respondent, very properly, points out appar- ent contradictions in answers by Peregrino to questions place by me. Peregrino testified through an interpreter, as have many other witnesses. However, here, I am convinced and find Peregrino was an honest witness, who, through an interpreter, answered all questions truthfully, to the best of his ability. It is not impossible that he or the interpreter were confused. My questions may have been confusing to each. After most careful and diligent consideration, I find Peregrino did tell Sandoval he had signed a card. I find Sandoval by the various acts or statements I have found him to have made violated Section 8(a)(1) of the Act. Of particular virulence was the linking of possible "illegal en- try" with any union activity. A combined coercive interro- gation and at least a threat of dreaded deportation for union activity. It is in this light particularly that I view the credited testimony of Joe Calderon as to events of May 23. He was employed by Respondent when he testified. He signed a card for the Union about May 15. On May 23, he had a conversation with Sandoval. Two employees, whose names he did not remember or know, were present for part of the conversation. Sandoval was present when Calderon told the employees they had rights to union representation. Sandoval said, "Look, Joe, I have orders from Ozzie Fetter 37 The May 24 discharges were probably not so restricted but were atom- bomb like in their effect 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that he was putting the monkey on our lap and to get the guys straightened out." He added the guys who didn't have any green papers 38 and had signed for the Union would be the first ones to be terminated. I find this was a real twist to the shaft. I find he told the truth when he quoted Fetter.39 Calderon told him he was violating Sec- tion 740 Sandoval then said, "Look, Joe, some of these guys are my friends. I don't want no trouble for them, but Ozzie" 41 "put the monkey in our lap," 42 and Sandoval added "and the guys who don't have green cards are going to be the guys who are going to be terminated." 43 He add- ed that the guys who did not have green cards and who had joined the Union would be the first to be terminated. Calder- on again told Sandoval he was violating Section 7 of the Act. He showed Sandoval a pamphlet to read. Sandoval asked if he could keep it and was told yes and to read it good. The next morning at 8 o'clock, Sandoval told Calderon he'd gotten results. He pulled out a green card and said two guys had brought in green cards . He continued, saying guys who didn't bring in green cards would be the first ones terminated. Having been told of Section 7, he, of course, didn't mention the Union. And this was decimation day, May 24. Of course, he did not mention the Union this day. It would be like orange on St. Patrick's Day. He had taken Calderon from his work. The pamphlet given to Sandoval in the earlier conversa- tion was entitled "An Employee's Guaranteed Rights Un- der The National Labor Relations Act." 43 Sandoval learned a lot between May 23 and 24 46 Respondent's counsel fails to see the obvious, as revealed in his brief. I refuse to be caused to possess the naivete Respondent's counsel would wish I possess as expressed in his brief. The deep, the great, concern of Sandoval and "Ozzie" for ille- gal immigrants indeed! Probably an economic reason for the mass discharge.47 2. The unlawful mass discharge of 48 employees by Respondent ; some incidental union animus and the pretextual economic defense Respondent's economic defense is based largely on fig- ures prepared by it.48 A large amount of testimony was giv- en to support it and to detract from some parts of its value, if any. This decision would be improperly extended were I to discuss the alleged economic defense in great and utmost detail. Not only the transcript but also the exhibits have been examined, studied, digested, and exhaustively ana- 76 Immigration permits. 39 The man who knew nothing , and then something, and then-. 40 Of the Act. 41 Fetter' 42 This is May 23. 43 Economic defense9 44 This wouldn't fool the silliest oaf this side of Venus 4s G C Exh. 7. 46 No doubt a bright and able student Did he instruct Fetter? Maybe not'' Of course! 47 Ridiculous! 48 Some not substantiated by documentary evidence which was not pre- sented to support the truth thereof, and the absence of which was not satis- factorily explained by it. lyzed. Respondent's testimony in support of its economic defense has been viewed in the light of its union animus as already found and to be found. On May 24, 48 employees were laid off or discharged by Respondent. There had been previous layoffs for economic reason or even a short shutdown. I do not close my eyes to the fact that we have been undergoing, inflation, depres- sion, recession, call it what you may. I cannot and don't close my eyes to the fact that Respondent, on May 24, did not want the Union in the Plant. Of course, on May 24, the antiunion Respondent had known for at least a couple of weeks that the Union was organizing its employees. Fetter's alleged lack of knowl- edge was spurious. His animus, Respondent's union ani- mus, has been established by a preponderance of the pro- bative and credible evidence. All management shared such knowledge. The mass layoff was determined on May 23, and communicated to its supervisors about noon, May 24, and to the employees about the end of the day. While they had long been threatened with discharge because of their Section 7 activities, this was the claim of economic motives. What Vice President Fetter knew, all management hierar- chy knew, as was true of the knowledge and threats of its supervisors. Respondent was a corpus. There is insufficient evidence that Respondent was aware of the union preferences, if any, of each of the em- ployees it discharged May 24. White sheep may have suf- fered along with the black.49 Respondent had a demon- strated motive to discourage union activity when it discharged 48 employees en masse. This was an outstand- ing violation of Section 8(a)(3) and (1) of the Act. Majestic Molded Products v. N.L.R.B., 330 F.2d 603, 606 (C.A. 2, 1964). When Sandoval distributed final paychecks to em- ployees on May 24, he told them, "to eat union." 10 Respondent contended the discharges were required by a reduction in number of orders concomitant with an in- crease in production. Loads of sometimes conflicting or meaningless records of Respondent are in evidence. What is or is not an "order"? Certainly, I may reasonably con- clude, as I do, that an order was "firm" when received from the sales department. Respondent did not produce for inventory. It submitted G.C. Exh. 5 to General Counsel before the hearing with respect to orders received by it. Respondent endeavored, at the hearing, to establish that the figures or conclusions to be drawn from G.C. Exh. 5 were inaccurate. Towards the close of the hearing herein, it introduced Respondent's Exh. 7 as being accurate, with much testimony. At least one of Respondent's witnesses, Controller Kelsey, testified G.C. Exh. 5 was reliable. Most interesting and informative in connection with the offered economic defense, Kelsey testified no precise figures as to backlogs of order were mentioned on May 23. Kelsey testi- fied that on that date, he relied on G.C. Exh. 5. Respondent has suggested that there are "cancelled" or- ders reflected in G.C. 7, not shown in G.C. 5. No memos of cancellations were offered. So? I find Respondent produced and provided G.C. Exh. 5 as evidence in support of its economic defense. I attach no 491 don't prefer the comparison. 50 Vilely unlawful. SILVERCREST INDUSTRIES, INC. 141 weight to vacillation. A study of G.C. Exh. 5 11 reveals there were about 100 more orders received from January through June 1974, than July through December 1973. Of course , circum- stances and demands varied from month to month. There is an attachment 2 to General Counsel's brief . It would be a miscarriage of justice were I to analyze again here at length what I find General Counsel has done. In June 1974, Respondent had a large backlog of orders. The num- ber was exceeded only in April. In G.C. Exh. 8, Respon- dent, in its annual report by its chairman and by its presi- dent, forecast great improvements in sales 52 in 1974 and 1975. Testimony as to Respondent's Exh. 7 was exhaustive, if not exhausting. The fact is that Respondent's Exh. 7 ig- nores the large backlog of orders as of October 1973. Kel- sey put any value to be attached to Respondent's Exh. 7 in great question.53 In any event, I find from the documents, Respondent had about 175 floors not produced by June, although it laid off 48 employees on May 24. The backlog was substantially similar on May 24. Unfilled orders were similar in number between October 1973 and May 24. In October there was no union activity. On May 24, there was much . Respondent received more orders in the first 6 months of 1974 than in the last 6 months of 1974. I place no credit in the undocumented testimony of Fet- ter, that "lead time had been reduced from 10 to 2 days." 54 Testimony or records from suppliers were never produced. A word from Fetter, or pages of testimony does not sup- plant the deficiency . Mere testimony as to "lead time" from these witnesses impresses me not at all.55 Whether you let Respondent, at last, choose between G.C. Exh. 5 or Respondent's Exh. 7, on May 24 there was a backlog of orders awaiting filling and shipping. Respondent's Exh. 7, when considering the situation as of May 24, erroneously assumes no more orders would be received and is blind to the large backlog of October 1973. May 24 was seized upon for the mass discharges of May 24, not because of economic, but because Fetter and his betters believed the time was at hand to destroy union ac- tivity. Respondent's economic figures, choose your own, show and demonstrate a vain attempt to conceal the union animus with a mirage of numbers , and numbers alone. Pre- texts, not facts, an attempted mirage . No documents, which must have been available, were ever offered to estab- lish the bases, if any, for prior layoffs.56 Timing! Timing! I have already found such was the an- swer to the mass discharges, which had been threatened by an employer who stooped to threaten illegal aliens who had joined the Union, not only with discharge but also "depor- 51 See attachment I, annexed to General Counsel's brief. 52 Orders. 53 I have in my hand a stipulation which should be entered in the record as Respondent's Exh . 8. It demonstrates that as of October 1, 1973, Respon- dent had orders for 269 floors which had not as yet been produced I trust it will be in Respondent's exhibit file, if and when the Board receives it. I am nop/acing it in, though not attaching it to said file. Why not documented? Especially when Fetter was generally a witness whose testimony did not warrant credence? 55 Where is the documentary evidence? 56 Testimony, yes. Documents, no. tation." 57 On May 22, Fetter never discussed a backlog problem with his supervisors. No! They got word to wield the axe about noon on D Day. Respondent fearlessly "hires " a new employee on the day Fetter testified they decided to fire 48 employees.58 Sandoval's testimony is most revealing, when he discuss- es the seniority of those to be laid off. He evidently consid- ered me or any reviewing body to be fools. The employees could, "eat union." 59 Respondent's economic defense is rejected as unworthy of any belief. It is most unfortunate that so much time was devoted to a matter much less devoid of substance than Gossamer. This Respondent's antiunion animus was virulent. I am not at all impressed that Respondent did not discharge all or most it knew to be pro-union. Keep the blood off the machines. Be septically pure. Rehire a couple of union ad- herents you had discharged, you may fool the inexperi- enced. Threaten certain people. Do not follow through. Decimate. Economic phantasies, as finally, perhaps pieced together from whole cloth, were as nothing compared with the brutal antiunion realities of Respondent and its mode of fighting. At least, it may be said for Respondent that its agents clearly warned union sympathizers, and through them, all its employees, that Respondent was determined to eliminate union activity. It made a real good try. Its violations shall be corrected. Of course, the mass dis- charges of May 24 violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that on May 24, Respondent engaged in a mass discharge of about 48 employees and has thereafter failed and refused to reinstate them because of their actual or suspected, or part of a group, union and other protected concerted activities, I shall recommend that Respondent make them whole for loss of wages or pay they may have suffered by reason of Respondent's discrimination against them, in violation of Section 8(a)(3) and (1) of the Act, in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest on backpay computed in the manner set forth in Isis Plumbing & Heating Co., 138 57 Maybe it was just being 100 percent American? 58 Not being my beloved Dad, I won't say, "I wasn't born yesterday." 59 Synonym? 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 716 (1962). It shall also be ordered that Respondent cease and desist from violating the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By interfering with, restraining, and coercing and threatening its employees because of their union and other protected concerted activities , Respondent has violated Section 8(a)(1) of the Act. 4. By its mass discharge of May 24, and any failures to reinstate, Respondent violated Section 8(a)(3) and (1) of the Act. [Recommended Order omitted from publication.]