De Marco Concrete Block Co.

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD De Marco Concrete Block Company and Local #675, International Union of Operating Engineers. Case 12-CA-6571 May 25, 1976 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 8, 1976, Administrative Law Judge John P von Rohr issued the attached Supplemental Decision in this proceeding I Thereafter, Respondent and the General Counsel filed exceptions and sup- porting briefs 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 I of the Administrative Law Judge and to adopt his recommended Order, as modified here- in Contrary to the Administrative Law Judge, we find that the issue concerning the status of employee Joe Lewis Hawkins as an unfair labor practice striker was sufficiently litigated to justify a finding that he became an unfair labor practice striker when he re- jected Respondent's offer of reinstatement After being informed by Superintendent Ambrozik on Saturday, June 8, 1974, that his discharge was the result of his signing a union card, employee Hawkins received a phone message on June 9 requesting that he show up for work on Monday morning, June 10 After arriving at 7 am, Hawkins first encountered Ambrozik who suggested that he punch in and begin work Hawkins declined stating that he wanted to speak with Mr De Marco, the brother of 221 NLRB 341 (1975) 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3 1951) We have carefully examined the record and find no basis for reversing his findings 3 The Administrative Law Judge erroneously stated that Respondent con tended that the dispatcher and cleanup office clerical employee should be excluded from the unit Respondent in fact contended that these two classi fications should be included The Administrative Law Judge nevertheless excluded them from the appropriate unit upon the ground that they did not have a community of interest with the other unit employees We agree and shall similarly exclude them The Administrative Law Judge also inadver- tently failed to exclude temporary employees and the cleanup office girl from the unit description of the appropriate unit We shall amend that description so as to exclude these classifications Respondent's president and sole shareholder, Mrs Kearns After a brief waiting period, Mrs Kearns appeared and engaged Hawkins in conversation Kearns asked Hawkins why he was not working since it was decided that there was plenty of work for him to do In response, Hawkins asked Kearns "what was going to happen to the rest of the guys " Kearns replied that there was no work available for them Hawkins testified that he then left the premises and did not return to work because "it was unfair to the rest of the guys just working me " We find that Hawkins' refusal to return to work at that juncture as a result of Respondent's earlier dis- criminatory practices transformed his status from that of discriminatee to unfair labor practice striker His decision to decline reinstatement was based on the fact that he alone among his discriminatorily dis- charged coworkers was being allowed to return and believing that to be unfair, he decided to remain off the job We therefore find that on June 10, as the result of the above-described circumstances, Haw- kins became an unfair labor practice striker and as such he is entitled to reinstatement following an un- conditional offer to return to work However, con- trary to the General Counsel, while Hawkins became an unfair labor practice striker on June 10 as a result of his refusal to accept Respondent's unconditional offer, that same offer served to terminate his status as a discriminatee Therefore, while he is entitled as an unfair labor practice striker to reinstatement, he is not due backpay as a discriminatee because his sta- tus as such ended before he lost any paid working time 4 AMENDED REMEDY Add the following to the Remedy provided by the Administrative Law Judge "Having found that as of June 10, 1974, discrimi- natee Joe Lewis Hawkins' status was converted to that of an unfair labor practice striker, we shall order that the Respondent, upon application, offer Haw- kins reinstatement to his former position or, if such position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any employees hired on or after June 10, 1975, for such position " AMENDED CONCLUSIONS OF LAW Substitute the following description of the appro- priate unit for that contained in the Administrative Law Judge's Conclusion of Law 3 4 See National Business Forms Inc 189 NLRB 964 (1971) enfd 457 F 2d 737 (C A 6 1972) 224 NLRB No 9 DE MARCO CONCRETE BLOCK CO 87 All production and maintenance employees, in- cluding machine operators, fork-lift operators, mechanics , yardmen, handymen and/or labor- ers employed at Respondent's Pompano Beach, Florida, plant, excluding all office clerical em- ployees, dispatchers , salesmen, professional em- ployees, temporary employees, office cleanup girl, guards and supervisors as defined in the Act ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby adopts as its Order the recom- mended Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, De Marco Concrete Block Company, Pompano Beach, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order, as so modified I Add the following paragraph 2(e) to the Order and renumber the present 2(e) as 2(f) "(e) Upon application, offer to Joe Lewis Hawkins reinstatement to his former position, or, if such posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any employee hired on or after June 10, 1975, for such position " 2 Substitute the attached notice for that of the Administrative Law Judge Upon application WE WILL offer to Joe Lewis Hawkins reinstatement to his former position or, if such position no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority or other rights and privileges, and WE WILL dismiss if necessary any employee hired on or after June 10, 1975, to his former position WE WILL, upon request, bargain with Local No 675, International Union of Operating En- gineers, as the exclusive bargaining representa- tive of our employees in the unit found appro- priate concerning rates of pay , wages, hours of employment, and other terms and conditions of employment If we reach an agreement WE WILL sign a contract with the above -named Union covering the terms of such agreement The ap- propriate unit is All production and maintenance employees, including machine operators , fork-lift opera- tors, mechanics, yardmen, handymen and/or laborers employed at our Pompano Beach, Florida, plant, excluding all office clerical em- ployees, dispatchers, salesmen, temporary em- ployees, cleanup office girl, professional em- ployees, guards and supervisors as defined in the Act WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them in Sec- tion 7 of the Act, as amended DE MARCO CONCRETE BLOCK COMPANY 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 con- cerning their union activities WE WILL NOT lay off or otherwise discriminate against any employees because of their union activites WE WILL offer Sidney Cascoe, Ellis Duhaney, Benny L Morris, Lorenzo Pink, Sam Swiney, Johnny Mack Turner, and Winston Wright im- mediate and full reinstatement to their former positions, or, if these jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suf- fered as a result of the discrimination against them SUPPLEMENTAL DECISION JOHN P VON ROHR On November 5, 1975, the Board issued its Decision and Order of Remand in this proceed- ing wherein it reversed my Decision that the case be dis- missed on jurisdictional grounds and directed that a Sup- plemental Decision be issued on the merits In accordance therewith, I proceed as follows I THE UNFAIR LABOR PRACTICES A The Issue On June 8, 1974, Respondent, with the exception of one employee, laid off or terminated its entire crew of produc- tion employees, these consisting of the following Sidney Cascoe Lorenzo Pink Ellis Duhaney Sam Swiney Joe Lewis Hawkins Johnny Mack Turner Benny L Morris Winston Wright The complaint alleges that the above-named employees were discharged for reasons proscribed by Section 8(a)(1) 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (3) of the Act It is also alleged that Respondent re- fused to recognize and bargain with the Union in violation of Section 8(a)(1) and (5) of the Act B The Organizational Activity, Appropriate Unit, Majority Status The individual responsible for organizing Respondent's employees was Oscar Robinson, an employee of Maule Industries who worked at a Maule yard adjacent to Respondent's premises Although not a paid union organ- izer, Robinson was the shop steward for the Charging Union at the said Maule plant Robinson came to Respondent's plant and spoke to Ben- ny Morris at the latter's work station a few days prior to May 31, 1974 Details of any discussion which ensued are lacking and there is no evidence that Respondent was aware of this meeting' After the end of the workday on May 31, 1974, a Friday, all of the aforenamed alleged discrimmatees met with Rob- mson at Croft's Grocery Store, which is located approxi- mately 1 mile, or somewhat less, from Respondent's plant 2 After explaining union wages and other benefits, Robinson proffered the employees union authorization cards for signing According to the credited testimony of Robinson, he explained the purpose of the card as follows See, I told them this was the first step, first you sign these cards, apply Then the next step would be to have an election or a vote or whatever whether you wanted the union in on the job or not I told them they were not in the union, you know, and I gave them some literature to read I really explained to them, you know, that no money would be deducted I told them they would be represented by the union if anything would happen, you know, since they had signed the card I told them that this signing of the card would be an application for the union to have an elec- tion on theirjob [to] represent them as a bargain- ing agent after they had an election, and then I also told them that if anything would happen to them because they signed the card, too Employees Sidney Cascoe, Ellis Duhaney, Benny Morris, Lorenzo Pink, and Johnny Turner, respectively, credibly tes- tified that they signed a union card at this meeting and gave it back to Robisnon Each of these cards was received in evidence Sam Swiney, who cannot read or write, credi- bly testified that he placed an X at the space provided for signature and authorized Robinson to fill out the balance of the card for him This card was received in evidence Winston Wright, who cannot read or write (except for his name) credibly testified that he took an authorization card i A principal defense of Respondent in this case is predicated upon its contention that it was unaware of any union activity prior to the June 8 1974, layoff Although in this section of this Decision I set forth the facts of the union activity as testified to by the employees I shall decide the issue of company knowledge at a later point herein 2 Respondent's president Mrs Kearns, had knowledge of the location of this store and indicated that she was familiar with it home There his wife read the card to him and filled in all the blanks except that provided for signature Wright thereupon signed the card (dated 6/1/74) and returned it to Robinson His card is in evidence Similarly, Joe Haw- kins, who cannot read, took his card home and his wife filled out all blanks except that provided for signature, when he then signed 3 His card, which is dated 6/1/74, is in evidence The parties are in agreement, and I find, that the appro- priate unit consists of all production and maintenance em- ployees at Respondent's Pompano Beach, Florida, plant, excluding office clerical employees, temporary employees, and guards and supervisors as defined in the Act Respon- dent contends that the dispatcher and cleanup office girl should be excluded from the unit Respondent's products are delivered by an independent contract hauler The dis- patcher writes the tickets and coordinates block deliveries through the contract hauler He works different hours than the production employees and has no contact with them As to the cleanup office girl, she works only 2 hours per week In view of the foregoing, I think it clear that these two employees do not have a community of interest with the production and maintenance employees With their ex- clusion, which I find appropriate, the record reveals that there were 11 employees in the appropriate unit as of June 1, 1974 11 find that as of June 1, 1974, the eight employees noted above signed valid union authorization cards and that as of that date the Union represented a majority of the employees in the unit Respondent contests the validity of the cards on the ground that they allegedly were represented to the employ- ees as being only for the purpose of obtaining an election I find that Robinson did not inform the employees that the sole purpose of the card was to obtain an election The cards are, therefore, valid N L R B v Levi Strauss & Co, 441 F 2d 1027 (C A D C, 1970), N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969) By letter to Respondent dated June 11, 1974, the Union asserted its majority and requested recognition and bar- gaining This request was denied in a letter by Respondent dated June 15, 1974 C The June 7, 1974, Incident Joe Lewis Hawkins was Respondent's most senior and most experienced employee, having been employed when Respondent first started operations in Pompano Beach in 1955 5 Hawkins testified that around 12 noon on Friday, June 7, he was called to the office of Mrs De Marco Kearns, Respondent's president and sole stockholder, by the dis- patcher, Chester Kause Alone with Mrs Kearns in the office, Hawkins testified that the following conversation between them ensued 3 Respondent conceded at the hearing as Hawkins testified that Hawkins clearly indicated his intention to Join and become a member of the Union ° G C Eh 4 5 Hawkins testified that he first started working for the Company in Ala bama in 1950 However whatever the background of Respondent Company in Alabama this was not developed on this record DE MARCO CONCRETE BLOCK CO She asked me had anybody contacted me I said, "No, nobody contacted me," and she said, "Well, some- body is dipping in my business and I don't like it" and she asked me if I knew anything about it and I said, "No, I don't know anything about it, what do you mean'?" Then she said, "Well, if you don't know any- thing about it, dust let it be and don't let this conversa- tion leave the room " She said, "I am going to close the plant down for three weeks and you know everybody will get a letter " Mrs Kearns denied that Hawkins came to her office on June 7 and that she had any conversation with him on that day Hawkins impressed me as a credible witness and I do not believe that he fabricated his testimony as set forth above This testimony was not shaken after vigorous cross- examination and I credit it 6 D The Layoff of June 8, 1974 1 The employees' testimony All of the employees who were terminated on June 8 and whose testimony is related below are blacks As was evi- denced by their manner of speech, their backgrounds are from the Bahamas or the West Indies It is undisputed that the employees worked a half day on Saturday, June 8 At approximately 1 p in, Alex Ambro- zik, Respondent's plant superintendent, handed each of the employees an envelope, bearing the name of each re- spective employee, which contained a letter and a check The letter to each stated as follows June 8, 1974 Effective with the end of todays work, the manufac- turing plant will be shut down for two and even possi- bly three weeks while the company finishes the new kiln It has become too costly for us to continue opera- tions as they presently exist Your check for the past week will be enclosed You may contact the office by phone (943-1511) June 28th to verify if the plant is ready to resume manufacturing and we will then inform you when to report for work We are indeed sorry to have this happen but the company can no longer afford to continue losing the money we have been losing the past three months Please leave your telephone number with Mr Am- brozik as to where you can be reached 6 At one point during cross-examination Hawkins was queried as follows Q Joe, if I told you that Mrs Kearns had plane reservations and had left on the plane prior to noon on that Friday what would you say then9 A I'd say you were wrong Significantly, Mrs Kearns was in the office on the morning of June 7 and in fact concededly did not leave the office until shortly after 12 noon and although she testified that at this time she left to go home and prepare for an early afternoon plane trip to meet her brother in Atlanta she testified that she in fact did not make the trip because she received a call from her brother that he was unable to meet her that day 89 There is a sharp conflict in the testimony as to what was said to the employees at this time Without at this point passing upon the credibility of their testimony, set forth below is the testimony of the individual employees con- cerning their conversations with Ambrozik when he hand- ed them their envelopes Johnny Mack Turner, a yardman employed since Janu- ary 1973, who serviced the machinery and also acted as forklift operator, testified that he was the first to leave that day About 12 30 p in he went up to Ambrozik to say that he had finished his work Ambrozik at this point handed him an envelope and stated, "You are fired because you joined the union " He added that Turner should not open the letter until he got home Turner thereupon departed Sidney Cascoe was employed by Respondent since De- cember 1973 Cascoe testified that on the morning of June 8 he was working upstairs assisting in construction work involving the erecting of columns Cascoe testified that he came down about the 1 p in quitting time and was walking away from the plant when Ambrozik called to him to re- turn Benny Morris, who also was about to leave, came up to Ambrozrk about the same time he did According to Cascoe, Ambrozik at this point stated that he had a letter for him and handed him an envelope Cascoe asked, "For what9" whereupon Ambrozik stated, "I understand that you guys joined the union and Mrs Kearns no want a union here and you are fired " Continuing, Cascoe testified that at this point Benny Morris spoke up and asked "why he was firing a man like that " According to Cascoe, Am- brozik thereupon turned to Morris and said, "I got a letter for you, too " Cascoe said that he merely stated to Ambro- zik "thank you," took his letter, and left the premises Benny Morris worked for Respondent for approximately 15 years and was second in seniority only to Hawkins Morris' testimony concerning his termination on June 8 was substantially corroborative of Cascoe's On the morn- ing in question, Morris was performing sandblasting up- stairs At quitting time he came downstairs and came up next to Cascoe as Ambrozik was about to hand Cascoe his letter Morris testified that at this point Cascoe asked what the letter was for According to Morris, Ambrozik stated "that he [Cascoe] was fired because he joined the union or signed the union card, one or the other " Morris then spoke up, he said, and asked why he "fired the man like that " Ambrozik thereupon turned to him [Morris] and stated, "I have one for you, too " He then handed Morris his letter Morris testified that he returned to Respondent's plant about 3 weeks later because he had heard that the plant was operating On this occasion he encountered Ambrozik near the office and asked if there was any work available for him According to Morris, Ambrozik responded by tell- ing him "that I was fired ever since I received my letter because I joined the union " Ellis Duhaney was employed with Respondent since Au- gust 1971 Duhaney, who had been sandblasting upstairs, testified that he came down at the 1 p in quitting time, that he first went to the restroom to wash his hands, that he punched out, and that Ambrozik came up to him and handed him an envelope According to Duhaney, he asked Ambrozik what it was about, whereupon Ambrozik re- plied, "We understand that you guys joined the union and 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the boss-lady fire you all " He also told him not to open the letter until he reached home Lorenzo Pink was a Respondent employee since Novem- ber 1973 Pink was also engaged in sanablastmg upstairs on June 8 Pink testified that Ambrozik handed him a letter when he punched out about 1 p in According to Pink, when he asked what the letter was for, Ambrozik re- sponded that he was being fired because he joined the Union Pink further testified that he called the plant about 3 weeks later He said at this time Mrs De Marco also told him he was fired because he joined the Union Sam Swiney was employed by the Company for approxi- mately 2 years Swiney testified that he was working out- side in the block yard on the day in question when Ambro- zik handed him the envelope According to Swiney, Ambrozik at this point told him he was fired because he joined the Union Swiney said that Ambrozik also told him not to open the envelope, but that he told Ambrozik that he would do so anyway because he did not want to come back from Fort Lauderdale to Pompano Beach to cash the check Winston Wright worked at cubing blocks since he was first employed by Respondent in April 1973 He was en- gaged in sandblasting with Hawkins on June 8 when Am- brozik told them to quit about 1 p in Wright testified that after he punched his timecard Ambrozik came up to him while he was alone between two machines and handed him a letter When he asked what the letter was for, Ambrozik responded, "When you go home, read this letter " He then went to the restroom, washed his hands, came outside, and opened the envelope He noted it contained a letter and a check He then ran to catch up with other employees with whom he rode who were ahead of him and they left in a car Wright cannot read When he arrived at home his wife read the letter to him Pursuant to the statement in the letter that the plant would be shut down for 2 or 3 weeks, Wright testified that he returned to the plant 3 weeks later and spoke to Ambro- zik Ambrozik, he said, told him to check back in 3 weeks' time Wright returned 3 weeks later, this time in a car driv- en by Ellis Duhaney While Duhaney remained in this car, Wright got out and spoke to Ambrozik, who was on the premises 8 Wright testified that at this time Ambrozik stat- ed to him as follows "Winston, look, I tell you this, I never tell you from the first day, but I told all the rest of the guys that Miss Kearn understand that you all join the union and that, Saturday, when you all got that letter, you are fired and no need check back again " Joe Lewis Hawkins, as previously noted, was Respondent's most senior employee Hawkins testified that after Ambrozik announced that it was quitting time on June 9, he (Ambrozik) handed him a letter and told him not to open it until he got home According to Hawkins, Ambrozik at this time further stated that he understood the employees had signed a union card, and if you had signed you were fired 7 Swiney resides in Fort Lauderdale His testimony reflects that for some reason he would have difficulty in cashing the check in Fort Lauderdale 8 Wright testified that Duhaney was not close enough to overhear his conversation with Ambrozik 2 The testimony of Respondent's witnesses Having set forth the testimony of employee witnesses concerning the events and statements made to them at the time of their layoff on June 8 , I set forth below the versions of Respondent witnesses concerning the same subjects Ambrozik testified that late in the morning of Friday, June 7, Mrs Kearns called him into the office to tell him that she could not carry on because of business conditions and that she would "write letters concerning this layoff for all people " The letters were typed up by a clerical during the afternoon and were given to him at the end of the day Ambrozik testified that he took the letters home in his car and returned with them the next morning, June 8 He testi- fied also that, although he did not read any of the letters, he was aware of their content and also that a check was enclosed According to Ambrozik, about 12 30 p in he procured the letters from his car and summoned the employees to come to him He testified that they all assembled in a group at the side of a machine At this point he testified as follows Q Were all of the men in the group9 A All of the men were in the group Q Were there any outside, spread around, any- where9 A Not that I noticed, no They were all there in- cluding Willard, the maintenance man Q Did you hand each letter to each man person- ally A Personally I called his name and gave him his letter in his hand Q What did you say , if anything, at this time9 A I didn't say anything I just passed out the let- ters But what I did notice was that some of the people were opening their letters and I know that some of them can't read or write, so they were going back and forth to each other, you know, and at that time I no- ticed that this was going on so I said , "Now, if you want, take these letters home with you and read them at your leisure " Q Did they say anything to you9 A Only one man said something to me and that was Benny Morris He opened his letter and he said to me, "Why me7" He says, "There's enough work around here for us " I had no answer for him, so I just shrugged my shoulders and walked away I felt the letter was self-explanatory Q Did you say anything else9 A No, sir Q Did they say anything else9 A No, sir Q Then what happened" A Then they all punched out and went home Willard Farley, employed by the Company for 18 years is presently Respondent's mechanic He acted as plant su- perintendent for the 2 years preceding Ambrozik's being hired for this position Farley testified that he was present when Ambrozik handed out the letters He testified that all the employees were grouped near a machine at this time, DE MARCO CONCRETE BLOCK CO that one asked "what's this" and another "why me" to which Ambrozik replied, "Well, the best thing to do is just take it home and read it or open it up and read it " Insofar as the testimony of Mrs Kearns is concerned, her testimony concerning the preparation of the letters and her conversation with Ambrozik on June 7 was substantial- ly the same as that of Ambrozik Additionally, however, Mrs Kearns testified that the first time she became aware of any union activity was either on June 14 or 15 when she received the Union's letter of June 11, 1974, requesting rec- ognition and bargaining I turn now to a resolution of the disputed testimony con- cerning the layoff as it occurred on June 8 It hardly need be said that primarily at issue is whether the employees, with one exception, were at this time informed that they were being terminated because they joined the Union 9 Upon the entire record in this case, and from my observa- tion of the witnesses, I credit the testimony of the employ- ees that they were so informed by Ambrozik 10 Except for the reservation hereinafter made as to Pink and some addi- tional comment as to Swiney, these employee witnesses, individually and collectively, impressed me as being truth- ful I do not believe their testimony as to what Ambrozik told them at this time was contrived or fabricated The fact that some of them were illiterate and that most spoke with an island dialect does not give me cause to doubt their basic veracity To be sure, there were some minor variances in the testimony and the testimony was not always given as best it should Thus, with regard to the latter, I am not unmindful that on direct examination Hawk ms testified only that he was told by Ambrozik, when handed his enve- lope, that he should not open it until he reached home and that it was not until cross-examination that he related Ambrozik's also stating that he understood the employees had signed a union card and that they were being dis- charged for this reason The foregoing notwithstanding, I am persuaded that Hawkins' omission on direct was an oversight and that his testimony on cross-examination was not a fabricated afterthought Indeed, it was corroborated by the other employees who testified that Ambrozik told them substantially the same thing Respondent points to the testimony of Ambrozik and Farley to the effect that the employees were all assembled in a group when he gave them their envelopes, which is contrary to the testimony of the employees who testified that they were spoken to mdi- 9 The exception was Winston Wright who however testified that he was so informed by Ambrozik 3 weeks later Insofar as Benny Morris is con cerned he testified of being present when Ambrozik informed Cascoe that he was fired for having Joined the Union and that when he entered into the discussion and let this be known to Ambrozik Ambrozik stated that he had a letter for him, too' Under the entire context of this discussion as set forth in more detail previously hereto it may be reasonably concluded that Morris was informed that he was being terminated for the same reason given to Cascoe namely because he joined the union 10 1 have heretofore quoted Ambrozik s testimony in its entirety concern ing his version of what transpired when he handed out the letters on June 8 Inasmuch as he testified that nothing further was said during this conversa- tion other than he related, I have considered this testimony as being a denial of the employees testimony in every respect that it differed from his and have made my credibility resolutions accordingly However in view of the fact that Ambrozik was present when the employees testified it is not with- out significance that he had nothing to say about the topic of the Union to which they so pointedly referred 91 vidually 11 Ambrozik also testified, however, that upon handing the employees their envelopes, "they all punched out and went home " This is not borne out by the time- cards, for the timecards reflect that Cascoe punched out at 12 20,12 Turner at 12 38, Morris at 1 05, Hawkins at 1 09, and Wright, Duhaney, and Swiney at 1 10 13 Now as to Pink It will be recalled that he testified to having called the plant about 3 weeks after June 8 and that at this time Mrs De Marco told him he was fired because he joined the Union Pink's testimony on this point was somewhat confusing, for on direct examination he testified that when he called in "I said I wanted to talk to Mrs De Marco " He thereupon testified that when "somebody an- swered the telephone he said Lorenzo, you are fired, you joined the union " On cross-examination, however, he testified that Mrs De Marco answered the telephone and that she made the statement in question In view of this confusing testimony (and, in my opinion, the unlikelihood that Mrs De Marco would so state), I do not accept or in any way rely on Pink's testimony concerning this conversa- tion 14 I am also bound to comment on the testimony of Sam Swiney On cross-examination, Swiney readily conceded that he had memory problems and that he could not re- member everything that happened or all that was said However, when asked about his discharge conversation, I think it noteworthy that Swiney testified, "I remember that Anybody tell me if I'm fired I remember that I re- member that, but reading them letters, I forgot about them, but I remember that If I died tomorrow and anybody tell me that, he say you fired, Sam, I remember that, and that's all " Swiney, notwithstanding his memory difficulties, im- pressed me as being basically an honest witness I credit his testimony concerning his conversation with Ambrozik on June 8 Aside from the demeanor of the witnesses and the sub- stantially corroborative nature of their testimony, I have also taken into account the element of the plausibility of their testimony Obviously, there was some reason for the termination of these employees on June 8 Respondent as- serts that this action was taken for solely economic rea- sons If this defense were to be substantiated by the evi- dence, surely the plausibility of the employees' testimony would be open to question This, however, does not prove to be the case, for it is my view that Respondent's defense does not stand up under scrutiny and must therefore be rejected A discussion of this evidence and my reasons for so finding are discussed in a later part of this Decision Correctly pointing out that there is no direct evidence of company knowledge of the union activity, Respondent as- Except for Cascoe and Morris, who were together at the time 1z Cascoe testified that another employee punched out for him that day Pink s card was not produced 13 Moreover not only were the conversations between Ambrozik and the individual employees very brief but I think Benny Morris put it quite hon estly when upon being questioned on cross examination as to just where the conversation with Ambrozik was held he answered, "Yeah but I was paying attention to what he was saying I wasn't paying attention to where I was at 14 The courts have long recognized that a witness testimony may be be lieved in part notwithstanding that it is not accepted in its entirety N L R B v Universal Camera Corp, 179 F 2d 749 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD serts this as a further defense and urges that the complaint be dismissed on this ground However, as found above, Ambrozik's statements to the employees on June 8 are tan- tamount to an admission to them that Respondent had become aware of their union activity Not only were these statements sufficient to establish the General Counsel's case of company knowledge, but they are also sufficient to establish that he has made out a prima facie case of dis- crimination E Events Subsequent to June 8 1 The dispute concerning the return to the plant of Hawkins and Morris Preliminarily, it is to be noted that Mrs Kearns has a brother, Joseph De Marco, who resides in Atlanta, Geor- gia The record reflects that on occasion Mr De Marco lends an advisory hand to Mrs Kearns in running the busi- ness and that from time to time he appears at Respondent's plant and is known to the employees 15 Mrs Kearns testified that she had a plane reservation to Atlanta where she had arranged to meet with her brother concerning business problems on Friday, June 7 However, she received a telephone call from him in the early af- ternoon on that date stating that he would be out of town but that he would see her Saturday or Sunday She there- fore did not make the trip Mr De Marco flew to Pompano Beach late Saturday night According to Mrs Kearns, he went to the plant without her on Sunday morning where he met with Ambrozik "and went over all the problems that were involved " Testifying about this discussion, Ambrozik said that he and Mr De Marco discussed the installation of new automated equipment at the plant as well as some construction that was then taking place He further testi- fied that at this time he recommended to De Marco that they recall "people like Benny Morris and Joe Hawkins who had a lot of experience in the plant [and who] would be very helpful in building up this new equipment " Am- brozik stated that De Marco agreed with him and asked him to contact these employees and ask them to come to work He testified that he thereupon made several tele- phone calls to the homes of Morris and Hawkins, that he could not reach either of them, but that he left messages in each case for them to come to work the following morning Hawkins acknowledged that on Sunday he received a message from his wife to the effect that "Mr Ambrozik called and told me to report to work on Monday " He testified that he went to the plant alone about 7 a in on Monday, June 10 He first saw Ambrozik who told him he could go to work He declined to do so, stating that he wished to speak to Mr De Marco After waiting around for awhile, Mrs Kearns appeared and talked to him Ac- cording to Hawkins, Mrs Kearns asked him why he wasn't 15 With reference to Mr De Marco, Hawkins testified, When he come there he give me orders on what to do and what not to do When Ambrozik was asked if Mr De Marco held any position with the Company, he re sponded that he did not know However Ambrozik did say, My orders always came from Mrs Kearns Any discussion I had with Joe De Marco were always about the equipment, the automation, because he was more familiar with it than I was ' working She then stated that she had talked it over with her brother, that they were putting in new equipment, and that they had plenty of work for him to do He said that he thereupon asked her, "What was going to happen to the rest of the guys," to which she replied that she did not have any work for them to do Hawkins testified that after this he left the premises and did not return to work because "it was unfair to the rest of the guys just working me " Morris testified that he did not receive any message on Sunday asking him to report to work the next day and that he did not come to the plant on Monday As related earli- er, Morris testified that following the termination on June 8 he did not return to the plant until approximately 3 weeks later, his return at this time occasioned by his having heard that the plant was operating Concerning all the foregoing, Ambrozik testified that on Monday morning he observed that Morris had come to the premises and was standing outside his car He said that he walked over and asked Morris to punch in and go to work, but that Morris responded only that he would wait Am- brozik further testified that about 20 minutes later he ob- served Hawkins' car parked next to Morris' and that the two were standing together At this point he walked over and said, "Fellas, punch in and let's go to work " This time Hawkins responded that he would wait, so he went back to the plant According to Ambrozik, it was a short while later that he noticed Hawkins talking with Mrs Kearns outside the office while Morris remained at his car He did not overhear the conversation between Hawkins and Mrs Kearns, but when it was over, he said, Hawkins and Morris got in their cars and departed Mrs Kearns testified that she came to the plant about 8 o'clock Monday morning and abserved Hawkins and Mor- ris standing in front of their cars She called to Hawkins, she testified, and they met at a point halfway between the office and their cars Morris stood about 30 feet away but was not part of the conversation which ensued According to Mrs Kearns, she asked Hawkins why he was not work- ing whereupon Hawkins asked if the other men would not be going to work She replied no He thereupon com- plained that other people had been brought in over him, that because of his seniority he should have had Ambrozik's job as plant superintendent,16 and that he did not think his pay was what it should be Mrs Kearns said she responded that he could not hold Ambrozik's job be- cause he could not read or write and reminded him that she had previously proposed that he go to night school She finally asked him again if he was going to work, but he responded no According to Mrs Kearns, she asked "does this go for Benny Morris," to which Hawkins responded, "I don't know what Benny intends to do " She said that Hawkins then got in his car and left, Morris following be- hind him Farley testified that on the morning in question, "I was working on the lift truck and I saw Benny Morris and Joe Hawkins standing up there in front of the office " He said he did not observe anything further Upon the entire record and upon consideration of all the circumstances, I am persuaded and conclude that Morris 16 Ambrozik was brought in as plant superintendent on January 18 1974 DE MARCO CONCRETE BLOCK CO was not present on the morning of June 10 Both Hawkins and Morris impressed me as being truthful and convincing when testifying to this fact If one of them conceded being present at this time, it is difficult to perceive why the other would not also if indeed such were the case While Haw- kins' testimony on direct examination concerning this event was relatively brief, on cross-examination he readily recalled the substantially longer conversation which he had with Mrs Kearns at this time, concerning which she testi- fied after he left the stand, yet he steadfastly denied the presence of Morris Similarly, the testimony of Morris was not shaken under extensive cross-examination Indeed, at this point Morris recalled that upon his return to the plant 3 weeks later he was able to see the lift truck being operat- ed (by someone unknown to him) and that he heard noise of machinery which indicated that the plant was operating This testimony indeed is quite plausible, for the fact is, as will be later noted, that Respondent in fact continued oper- ations after the June 8 layoff Moreover, neither did Am- brozik specifically deny the damaging testimony of Morris concerning his being told by him (Ambrozik) on this occa- sion that he was fired from the time he received the letter because he joined the Union Thus, when queried as to events subsequent to June 10, Ambrozik testified only as follows Q After that time, when is the next contact [except for Morris and Hawkins] you had with any of the em- ployees who were laid off? A Well, maybe a week and a half I'm not sure About a week and a half, maybe two weeks later, Ellis Duhaney drove in and he had someone with him I am not sure whether it was Winston Wright or Cascoe or one of those men, because they always rode together anyhow and Ellis got out of the car and came to me and asked me if there was work for him to do and I told him, "No Not at this time because we are under construction We are not operating at this time " Q All right Did you see Duhaney, then, at subse- quent times after this9 A Yes, several times He would stop by from time to time and he always had at least someone with him Like I said, I am not sure which one it was, but Ellis always drove the car, so Ellis was always the one that came to me Q Did you have any conversation with any of the other employees who were laid off on that Saturday? A Well, I had a couple of phone calls, but not from a man that was laid off In any event, even assuming the above testimony to be a denial of Morris' testimony concerning his return to the plant 3 weeks later, as well as a denial of Morris' testimony concerning the conversation which ensued at that time, I still would credit Morris on the point 17 17 Ambrozik did, however, testify concerning a later visit to the plant by James Atchley, a union business agent in October at which time he was accompanied by several other employees is Again this testimony was spontaneously brought out while under cross-examination 93 2 The efforts of other employees to determine their employment status Other employees also testified that they came to the plant after June 8 to see about their job status To put this aspect of the case in proper context, I would first refer to the previously related testimony of Winston Wright, name- ly, that he credibly testified as to having returned to the plant on two occasions within the first 6 weeks after his layoff and that on the second occasion he was told by Ambrozik that he was fired from the time he received the letter because he had joined the Union and there was no need for him to check back again Ellis Duhaney testified that he called the plant on Mon- day, June 10, and spoke to Mrs Kearns Before relating this conversation he testified, quite spontaneously, that his reason for calling her at this time was as follows Well, I call her over the telephone I want to find out really if I really get fired, what Alex told me, the letter stated I must report back, the plant was closing for three weeks So I figure that's two different story (Em- phasis supplied) Concerning the conversation, Duhaney credibly testified that he asked Mrs Kearns if he still had his job, but that "she told me the plant will be down for a couple of weeks and I must still check " As Ambrozik conceded in the testi- mony previously cited, Duhaney returned to the plant a number of times subsequent to talking with Mrs Kearns, but was always told by Ambrozik that there was no job for him Additionally, on cross-examination Duhaney testified that he observed the plant producing block not only on the occasions of his return to the plant, but almost daily there- after This, he explained, was occasioned by the fact that after his termination by Respondent he obtained a job at Atlantic Steel He testified without contradiction that this plant is in close proximity to Respondent's facility and this enabled him to see that the Respondent plant was operat- ing Concerning these observations Duhaney testified as follows 18 Q Well, do you know whether the block plant was producing any block? A Yeah, it was producing block Q Oh, it was? A Yeah, it was Q How do you know that9 A I saw Alex setting up material, I saw the cement truck dumping cement, I saw the rock truck bring in rock, I saw the block truck tooking block outside Q But you don't know if the block truck was tak- ing blocks out of inventory or whether those blocks had been produced? A Yeah, it was running, it was running Q How do you know that9 A I worked there three years I know when the plant running or when it didn't run Q But all you told me so far is that you saw a cement truck- 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A (Interposing) Yeah Q And you saw a rock truck9 A Yeah Q And you saw a block truck, and you saw Alex around the plant, but you haven't told me that you saw any blocks being produced A I saw him doing myjob every day, if that's what you mean Q Who9 A Alex, the boss-man was doing myjob, and I saw the block machine running The one that they put up last year was running, not the new one We got two new machines, one finished, and one unfinished Johnny Mack Turner testified that he returned to the plant 2 weeks after the June 8 layoff Not finding Mrs Kearns or Ambrozik present, he spoke to Chester Kause, the dispatcher, and asked when the employees would be returning to work Kause stated that he did not know but that he should check again with him Turner testified with- out contradiction that he called in every Monday for the next 13 or 14 weeks, but that, although he would ask to speak with Ambrozik or Mrs Kearns, he was never able to speak to anyone but the dispatcher Sidney Cascoe testified that he called the plant on a Fri- day about 3 weeks after the layoff and asked Ambrozik if he could return to work the following Monday According to Cascoe's testimony, which I credit, Ambrozik responded that he was fired and that there was no job for him He did not call again Finally, about the middle of October, four or five of the terminated employees went to the plant with Union Repre- sentative James Atchley Atchley spoke to Ambrozik and asked why the men were not working inasmuch as the plant was running Ambrozik went inside to see Mrs Kearns As Ambrozik testified, Mrs Kearns advised him that he should tell Atchley that he should contact Respondent's attorney for any further discussion Ambro- zik thereupon conveyed this message to Atchley, telling him also that he and the men should leave the premises I F Respondent's Economic Defense, The Continuance of Operations After June 8, 1974 In considering the evidence discussed below, it is rele- vant to first note that this is not a case involving a plant closure or complete cessation of operations While un- doubtedly at some point and for some periods there was a curtailment in production activities, the record reveals that not only did Respondent continue to sell concrete block to its customers subsequent to the June 8, 1974, layoff, but that it also continued to manufacture them In addition, it is noteworthy also that following the June 8 layoff Respon- dent purchased block for resale from another company which is in the same manufacturing business as Respon- dent This company, Meekins Incorporated, is owned by Mrs Kearns' husband As previously related, Mrs Kearns testified that she had arranged to meet with her brother in Atlanta on the late afternoon or evening of Friday, June 7 This was not a last-minute arrangement, for she testified that she had called Mr De Marco earlier in the week to make the ap- pointment Concerning the purpose of this meeting, Mrs Kearns testified "We had been losing money for some time I had called my brother in regard to my problems because he's well familiar with the operation that I have We arranged to meet in Atlanta on Friday " Mrs Kearns further testified that she compiled some figures in prepara- tion for the meeting She began working on these figures at home on Thursday evening and completed work on them in the office on Friday morning It was upon completing these figures, Mrs Kearns testified, that she made the deci- sion to lay off the employees At the hearing she gave two reasons for this decision One was because the Company was operating at a loss, the other that business was declin- ing Elaborating further, she testified, "Business was drop- ping, decreasing, sales were decreasing, the construction business was falling off " It appears that the figures compiled by Mrs Kearns in preparation for meeting with her brother related only to the cost to manufacture and deliver, and the selling price, a comparison of which would reflect a profit or loss The actual worksheets, or whatever original documents, reflect- ing the compilations of Mrs Kearns on the Thursday eve- ning and Friday morning in question were not produced According to Mrs Kearns, however, the figures reflecting these compilations were exactly reproduced on Respon- dent Exhibit 3, which is in evidence This exhibit, which is set forth in its entirety immediately below, was prepared in connection with this proceeding and the data contained therein was brought up to date through the year 1974 November 1973 Dollar Volume 120,312.10 December 1973 Production - 319891 Cost to Mfg . and Sold 8" Equivalent - 253,884 Deliver $0.2405 Selling Price $0.30 Each 94,561.68 January 1974 Production - 326,956 Cost to Mfg. and Sold 8" Equivalent - 305,786 Deliver $0.3172 Selling Price $0.30 Each 115,059.70 19 Atchley and the employees had appeared in two cars inside the gate DE MARCO CONCRETE BLOCK CO February 1974 Production - 285090 Cost to Mfg. and Deliver $0.3293 March 1974 Production - 109,968 Cost to Mfg. and Deliver $0.3472 April 1974 Production - 185,484 Cost to Mfg. and Deliver $0.3054 May 1974 Production - 266,532 Cost to Mfg. and Deliver $0.2776 June 1974 Production - 74,709 Cost to Mfg. and Deliver $0.5868 July 1974 Production - 31,020 Cost to Mfg. and Deliver August 1974 Production - 134,401 Cost to Mfg. and Deliver Sold 8 " Equivalent - 212,834 Selling Price 0.28 Each Sold 8" Equivalent - 191.483 Selling Price $0.27 Each Sold 8" Equivalent - 177,983 Selling Price $0.26 Each Sold 8 " Equivalent - 260,775 Selling Price $0.26 Each Sold 8" Equivalent - 138,125 Selling Price $0.25 Each Sold 8" Equivalent - Resale Selling Price $0.25 Each Sold 8" Equivalent - Resale Selling Price $0.23 Each September 1974 Production - 108,630 October 1974 Production - 95,228 November 1974 December 1974 Sales November 1973 thru October 1974, $995,367.58 Respondent also introduced a summary of its monthly November 1973 December 1973 January 1974 February 1974 March 1974 April 1974 May 1974 June 1974 July 1974 $120,312.10 94,561.68 115,059.70 88,997.93 77,075.28 69,274.95 96,733.93 78,681.21 70,749.74 88,997.93 77,075.28 69,274.95 69,274.95 78,681.21 70,749.74 64,608.78 56,225.57 63,086.71 27,611.22 22,707.21 95 sales covering the period reflected below 20 These were as follows August 1974 September 1974 October 1974 November 1974 December 1974 January 1975 February 1975 March 1975 64,608.78 56,225.57 63,086.71 27,611.22 22,707.21 23,931.89 32,418.21 19.687.63 20 Resp Exh 4 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I shall reserve for later discussion a consideration of the above data insofar as it relates to Respondent's defense However, insofar as Table II is concerned, this data indis- putably reflects that Respondent continued to produce its products in the months following the June 8 layoff 21 I deem it therefore relevant to first note, to the extent re- vealed in the record, the means and circumstances whereby this was accomplished Preliminarily, it is noted that Respondent utilized two machines in the production of concrete block, one desig- nated as a V 312 machine, the other a V 3R machine It is undisputed that since November 1973 the V 312 machine was not operating properly and was in need of extensive repair or replacement Mrs Kearns testified that this en- tailed not only "putting in a new system of manufacturing whereby we would get maximum efficiency out of this equipment," but it also involved construction work on Respondent's plant facility The construction work on the main building began in November 1973, and was continu- ing at the time of the layoff An outside contractor, George E Weed, performed some of the construction until he was let go in or about March 1974, after which some construc- tion continued with the use of Respondent's own employ- ees As to the work performed with respect to the V 312 machine, the testimony is confusing Mrs Kearns testified that work on the frame of this machine was being per- formed by two engineers who were employees of the Go- Go Corp, Incorporated, that the frame was completed at the time of the June 8 layoff, and that the engineers had left by that time 22 However, I find rather puzzling the tes- timony of Mrs Kearns and Ambrozik to the effect that two part-time employees were hired just prior to the June 8 layoff to assist the engineers Thus, Ambrozik testified, "We had engineers from Gold [sic] Corporation and they insisted that they need some help, so we hired these part timers for this prime purpose This, by the way, is what spurred me to ask for Bennie and Morris because I felt they would be much better in that field than these part timers that I had " In any event, both Mrs Kearns and Ambrozik testified that Respondent did not hire any new employees as re- placements for the employees who were laid off on June 8 In this connection, the record reflects that the only employ- ees not laid off on June 8 were Willard Farley, the mainte- nance man, Plant Superintendent Ambrozik, and one Frank Levers, concerning whom more need be said Levers was a relatively new employee, having been hired about 3 weeks prior to June 8 According to the testimony of Mrs Kearns and Ambrozik, the purpose for hiring Levers at this time was to train him as a replacement for Johnny Mack Turner who they asserted was an unsatisfactory employee In essence these witnesses further testified that inasmuch as the June 8 layoff coincided with the time they had in mind to lay off Turner, it was at this time decided to keep Levers on as a replacement for Turner 2i Mrs Kearns testified that Respondent produced approximately 150,000 blocks after the layoff 22 Mrs Kearns further testified They [the yineers] were to come back when we were ready to start the machine bu ,,ve have never been able to complete it It is just exactly the way it was in June Nothing further has been done' Returning to Respondent's post-layoff production activi- ties, the record is not entirely clear as to just how, when, and by whom this work was performed No payroll record or other data were introduced to reflect the duration or frequency of the operations, the number and identity of the employees who were engaged in this work or the amount of time they were so engaged However, exclusive of Ambro- zik, Farley, and Levers, who admittedly were so engaged, Mrs Kearns testified that after the layoff Respondent peri- odically hired temporary and/or part-time employees to work at the plant Some of these were procured under a work release program operated by the State of Florida whereby trustee prisoners were released to work as outside employees on a part-time basis 23 Other part-tune or tem- porary employees were hired directly from customary out- side sources Ambrozik conceded that the work performed by these employees, although of an unskilled or semiskilled nature, was directly related to production 24 G Conclusions Starting with Respondent's economic defense, Mrs Kearns cited a decrease in business as one reason for de- ciding to lay off the employees on June 8 Table II, set forth in the preceding section, was submitted by Respon- dent in support of this testimony However, insofar as the timing of the layoff is concerned, it seems to me that these statistics show just the opposite to be true Thus, while Respondent's monthly sales are shown to have been declin- ing in the months of February, March, and April, 1974, the figures reflect that Respondent's sales for the month of May 1974 took a decided step upward In fact the sales for this month were second only to those of January 1974, and were higher than those shown for December 1973 More- over, in assessing the significance of the data shown in Table II, it must be borne in mind that the latest data available to Mrs Kearns at the time of the layoff was that for the month of May 1974, which showed the increase It hardly need be said that the figures pertaining to the de- crease in sales which occurred in June and the months fol- lowing were not known at the time the layoff decision was made on June 8 Furthermore, there is no evidence to re- flect that at the time of the layoff Respondent was experi- encing a decrease in incoming orders or that the layoff was taken for any such reason In short, and in view of the timing of the layoff, Respondent's assertion that this action was taken because of a decrease in business must be reject- ed as untenable and not supported by Respondent's own records The other reason asserted by Respondent as prompting the layoff is that it was operating at a loss Assuming the validity of the data shown on Table 1,25 these figures do 23 Mrs Kearns testified that Respondent had utilized this help from time to time before the layoff 24 Thus at one point after describing the type of work involved which testimony need not be detailed here Ambrozik was queried as follows Q (By Mr Hamilton) Now this work that you have dust described as being semi-skilled but as part of the production of block did any of the work-did any of this release labor perform any of this work3 A Yes 25 The record does not reveal the underlying financial data which Re- spondent utilized as the basis for arriving at the cost figures shown on Table DE MARCO CONCRETE BLOCK CO reflect that the cost to manufacture and deliver the blocks for the period shown was, indeed, in varying degrees, in excess of the selling price Nevertheless, and upon consid- eration of the totality of the evidence, I am persuaded that this was not the motivating factor for laying off the em- ployees on June 8 Thus, Mrs Kearns gave every indica- tion of being an astute and knowledgeable businesswoman I have little doubt but that she kept up with the business affairs of the Company and that she was fully aware of the operating results for the 5 months prior to the layoff In- deed, it was conceded that at the time material hereto Re- spondent retained an auditor who provided her with quar- terly reports,26 including a statement of profit or loss I find it, therefore, hard to believe that Mrs Kearns was taken by surprise as to the Company's financial status when she completed her compilations on Friday morning, June 7 Recalling her testimony that it was at this point that she made the decision to lay off the employees, I find it equally hard to believe that considerations other than those of an economic nature did not enter into this decision Finally, and as having further bearing upon the entire merits of this case, there are two other points worth noting The first is, if Respondent found it necessary to lay off the employees on June 7 because the cost to manufacture the blocks was not economically justified, why did it continue (or shortly thereafter resume) production activities after the layoff? 27 The second point relates to the retention of the newly hired employee, Franklin Levers It will be re- called that Respondent hired Levers 3 weeks before the layoff purportedly as a replacement for Turner Signifi- cantly, Levers, a white employee, was the only member of the production crew who did not engage in any union ac- tivity and did not sign a union authorization card Assum- ing arguendo that Levers was hired with the intention of training him as an ultimate replacement for Turner, it is clear that at the time of Levers' hire, Respondent did not contemplate that there would be a layoff of all the produc- tion employees dust 3 weeks later Accordingly, and in view of the fact that some of the other employees 28 were quali- fied to perform the work for which Levers was hired (yard work and operating the forklift truck) absent some outside reason, it would seem reasonable to conclude that one of these more experienced employees would have been re- tained instead of Levers In sum, upon the entire record as a whole, and for all the reasons and findings hereinabove set forth, I find and con- II For example, it is not shown whether such factors as depreciation inter- est expense income taxes and the like were taken into account Perhaps more significantly, the final figures do not reveal whether the construction costs related to the construction project, which was being undertaken at Respondent s facility ever since November 1973, were included in determin- ing the cost to manufacture the concrete block for the period shown Not- withstanding the foregoing, however, I have accepted Respondent's figures in arriving at the conclusions which follow 26 These were not introduced Mrs Kearns testified that Respondent re- ceived quarterly reports from the auditor for the prior two quarters of the fiscal year ending June 30, 1974 She testified that Respondent received no reports "to speak of" from the auditor since June 30, 1974 7 The V 312 machine still had not been repaired or replaced at the time of the hearing 28 At the very least, as Ambrozik conceded, this would include Morris and Hawkins 97 clude that Respondent's termination 29 of the employees on June 7, 1974, was, if not entirely at least in part, for the reason given to the employees at the time of the layoff, namely, because they had joined the Union Accordingly, I find that Respondent thereby violated Section 8(a)(1) and (3) of the Act I further find that the commission of the unfair labor practices found above are so substantial as to preclude the holding of a fair election and that the bargaining order sought by the General Counsel is therefore warranted N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969), Trading Port, Inc, 219 NLRB 534 (1975) Further, in view of the continuing nature of the unfair labor practices here- in found, and since the Union represented a majority of the employees at the time Respondent declined the request for recognition, I find that Respondent's refusal to recognize and bargain with the Union after June 15, 1974, violated Section 8(a)(1) and (5) of the Act 30 Finally, in view of the other unfair labor practices found, I find that Mrs Kearns' interrogation of Hawkins on June 7, 1974, constituted an independent violation of Section 8(a)(1) of the Act 11 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the 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 relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce III THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act Having found that Respondent unlawfully laid off Sidney Cascoe, Ellis Duhaney, Joe Lewis Hawkins, Benny L Morris, Lorenzo Pink, Sam Swiney, Johnny Mack Turner, and Winston Wright, I shall recommend that except for Joe Lewis Haw- kins,31 Respondent offer them immediate and full rein- statement to their former or substantially equivalent posi- tions and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to them of a sum equal to that which they normally would have earned from the date of the discrimi- 29 I include in this finding the termination of Johnny Mack Turner I do not deem it necessary to set forth the testimony concerning Turner s pur ported deficiencies Whatever these may have been Turner was told that he was discharged because he joined the Union and his termination occurred in the same context as the other employees who it has been found were unlawfully terminated This is sufficient to establish a violation as to this employ 3 ee Cf Roman Catholic Diocese of Brooklyn and St Leo s Parish 221 NLRB 996 (1975) 3i As previously related, Hawkins declined an offer of reinstatement which was made to him on the next workday following his layoff The offer to reinstate was unconditional it was not stated to be of a temporary nature and it did not involve a decrease in pay The case was not tried on the theory that Hawkins thereafter became an unfair labor practice striker 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nation to the date Respondent shall offer to each of them, respectively, proper reinstatement as herein provided, less net earnings during that period Backpay provided herein shall be computed in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum comput- ed in the manner prescribed in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) In view of the unusual circumstances in this case, I rec- ognize that compliance with the foregoing is not as simple as in the usual type case wherein discrimination has been found Thus, while I have found that the layoff on June 8, 1974, was unlawfully motivated, this is not to say that some or all of the employees would not have been laid off at a later date and/or that the employment of some or all of them would have been on a less than regular basis I find the foregoing to be evident not only because Table II, here- inabove set forth, reflects that at a point subsequent to the layoff Respondent experienced a substantial decline in its business, but I also take official notice of the fact that construction activity in the United States, and in the State of Florida in particular, has experienced a substantial de- cline during the better part of the period material hereto All this shall be taken into consideration when determining the amount of backpay due at the compliance stage of this proceeding, at which time the relevant books and records shall be made available There is also testimony in the rec- ord that Respondent's plant was all but completely shut down at the time of the hearing If Respondent is not in operation at the time of the recommended Order provided herein, the offers of reinstatement shall be made consistent with the extent of future operations In view of the nature and extent of the unfair labor prac- tices herein found, I deem it necessary and appropriate to recommend a broad cease-and-desist Order CONCLUSIONS OF LAW 1 De Marco Concrete Block Co is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local No 675, International Union of Operating En- gineers, is a labor organization within the meaning of Sec- tion 2(5) of the Act 3 The following employees constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(a) of the Act All production and maintenance employees, including machine operators, fork-lift operators, mechanics, yardmen, handymen and/or laborers employed at Respondent's Pompano Beach, Florida, plant, exclud- ing all office clerical employees, dispatchers, salesmen, professional employees, guards and supervisors as de- fined in the Act 4 At all times since June 1, 1974, the Union has been the duly designated bargaining representative of the em- ployees in the aforesaid bargaining unit 5 By refusing on and after June 15, 1974, to bargain with the Union as the exclusive representative of the em- ployees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) of the Act 6 By discriminating in regard to the hire and tenure of employment of Sidney Cascoe, Ellis Duhaney, Joe Lewis Hawkins, Benny L Morris, Lorenzo Pink, Sam Swiney, Johnny Mack Turner, and Winston Wright, thereby dis- couraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 7 By the foregoing conduct, and by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 8 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act Upon the basis of the foregoing findings of fact, conclu- sions of law, and on the entire record in this case and pursuant to Section 10(c) of the Act, I hereby make the following recommended ORDER32 Respondent De Marco Concrete Block Co, Pompano Beach, Florida, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees concerning their union ac- tivities (b) Discouraging membership in Local No 675, Inter- national Union of Operating Engineers, or any other labor organization, by laying off employees or otherwise discrim- inating against them with respect to their hire or tenure of employment (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities (d) Refusing to recognize or bargain collectively with the above-named Union as the exclusive representative of the employees in the appropriate unit set forth in the con- clusions of law, above 2 Take the following affirmative action which is deemed necessary to effectuate the policies of the Act 32 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and Order and all objections thereto shall be deemed waived for all purposes DE MARCO CONCRETE BLOCK CO 99 (a) Upon request, bargain with above-named Union as the exclusive bargaining representative of all its employees in the appropriate unit set forth above, with respect to rates of pay, wages, hours of employment, or other terms of em- ployment and, if an understanding is reached, embody such understanding in a signed statement (b) Offer to Sidney Cascoe, Ellis Duhaney, Benny L Morris, Lorenzo Pink, Sam Swiney, Johnny Mack Turner, and Winston Wright immediate and full reinstatement to their former jobs or, if these jobs are no longer available, to substantially equivalent positions, and make them whole for any loss of pay they may have suffered as a result of the discrimination practiced against them in the manner set forth in this Decision entitled "The Remedy " (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order (d) Post at its facility in Pompano Beach, Florida, copies of the attached notice marked "Appendix " 33 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent rep- resentative, shall be posted by it 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 Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director, for Region 12, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 33 In the event that the Board s Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading "Posted by Order of the National Labor Relations Board' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board