Central Casket Co.

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Casket Co. and Upholsterers' International Union of North America, Local No. 3, AFL-CIO and Irma Lara. Cases 20-CA-9316 and 20-CA- 9867 June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On October 21, 1975, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting 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 of the Administrative Law Judge and to adopt his recommended Order as modified herein.' We agree with the Administrative Law Judge that the Respondent in discharging Anastacio Gomez and Margaret Huerta violated Section 8(a)(1) and (3) of the Act. However, contrary to the Administrative Law Judge, we find for reasons set forth below that the discharge of Irma Lara also violated those provi- sions of the Act but that Alex Gonzales' quitting was not an unlawful constructive discharge. Irma Lara: Irma was assertedly discharged for not coming to work for a week without proper excuse. The Administrative Law Judge found that she had secured permission to be absent, that Respondent had gone to some effort to create the appearance of a situation which would justify her discharge,' and that its proffered reason for the discharge was wholly pre- textual. He further found that Respondent's presi- dent, Thompson, believed that Irma might well be instrumental in reviving union activity in the plant 1 In par 1(d) of his recommended Order, the Administrative Law Judge provides that Respondent shall cease and desist from "in any like or related manner" infringing upon employee rights guaranteed in Section 7 of the Act However, in cases of this kind, involving unlawful discharges, It is the Board's established policy to use the injunctive language "in any other man- ner " See N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941), Centeno Super Markets, Inc, 220 NLRB 1151 (1975) 2 Thus, during Irma's absence in Mexico, Thompson had Cunel, a depart- mental head, send Irma a letter directed to her local residence stating that if she did not return to work by Friday, November 12, with an adequate medical excuse for her absence she would be terminated At the time the letter was sent, Respondent knew that Irma was out of the country and would not receive the letter in time to be able to return to work by Novem- ber 12 It also knew that she had no medical reasons for her absence and that she was a troublemaker because she had urged or caused employee Conde to file certain vaca- tion pay claims. Nevertheless, he found her discharge not unlawful because the evidence was, he held, in accord with the conclusion that she was discharged solely for urging Conde to file her claims. That con- duct on her part was, he acknowledged, concerted, but he found, nonetheless, that it was not protected under the Act. In consequence he concluded that Irma's discharge was not unlawful. We believe that the Administrative Law Judge er- red on several grounds. First, Irma's urging Conde to file her claims was not only concerted but, as the conversation between the two employees was directly concerned with terms and conditions of their employment, it was clearly protected as well. Consequently, Irma's discharge was unlawful under Section 8(a)(1) even if its sole cause was her urging Conde to file the claims. Sec- ond, Thompson was bitterly opposed to the Union and, as indicated, strongly suspected that Irma might stir up union activity again. These facts, in conjunc- tion with the patently contrived pretextual reason for the discharge, fully support the conclusion that Irma's dismissal was caused in substantial part by Thompson's concern that she might in the future en- gage in lawful union activities. Therefore even if Irma's urging Conde had not been protected activity, as the Administrative Law Judge erroneously held, her discharge was, we find, nevertheless unlawful be- cause it was in substantial part motivated by such antiunion considerations.' In summary then, we find that Irma's discharge violated the Act as alleged in the complaint whether it was caused by her urging Conde to file her claims or by fear she would revive union activities in the plant, or by both such reasons. In view of our finding that Irma Lara was unlaw- fully discharged, we shall order, inter alia, that she be offered reinstatement and be made whole for any loss of pay she may have suffered as a result of the discrimination against her in the manner and to the extent prescribed in that section of the Administra- tive Law Judge's Decision entitled "The Remedy" for the other employees found to have been unlaw- fully discharged. Alex Gonzales: On June 19, 1974, Respondent President Thompson talked in his office to several employees about their production and other matters. Gonzales, who had signed a union card and who had been otherwise active in the Union, was one of them. Thompson told Gonzales he had been overheard sol- iciting fellow workers for the Union; that such con- 3 See N L R B v Jamestown Sterling Corp, 211 F 2d 725, 726 (C A 2, 1954) 225 NLRB No. 37 CENTRAL CASKET CO. 363 duct was contrary to the Company's previously post- ed no-solicitation rule; and that, further, such con- duct would result in his discharge. He also criticized Gonzales' work habits and his worksheets, which al- legedly were not being kept properly, and warned him that he was going to be closely watched with respect to those matters. Gonzales returned to his job, completed his shift, but never again reported back to work. A week or so later Respondent sent him a letter formally discharging him for unexcused absences. The Administrative Law Judge concluded that the broad prohibition on Gonzales' union solicitation, coupled with the threat to watch him at work and check out his worksheets, was intended to convince Gonzales that further support of the Union would result in his discharge. He further concluded that in consequence Gonzales feared harassment and possi- ble reprisals and therefore was, as the General Coun- sel contended, prompted to quit. From all this, the Administrative Law Judge finally concluded that Gonzales' quitting was not voluntary, and was an un- lawful constructive discharge intended by the Re- spondent to upset the Union's organizational cam- paign. We find this result unwarranted. Initially, there is no evidence whatsoever that Gonzales feared "harassment or possible reprisals" on the job. That idea apparently came into the case by way of a suggestion by the General Counsel, not by way of evidence.' Furthermore, as of June 19 when Gonzales quit, no employee, as far as the rec- ord shows, had been subjected to harassment or on- the-job reprisals for union activity.' Second, there is no evidence that Gonzales quit because of the unlaw- ful restriction on his engaging in solicitation for the Union. All we have is the sequence of events of June 19, culminating in Gonzales' final departure, from which to speculate that in some unclear way his leav- ing was related to Thompson's earlier criticism of him. But factually that is hardly enough, despite Thompson's clear antiunion proclivities, to spell out a constructive discharge here. This is especially so since Gonzales himself, as the General Counsel con- cedes, advanced to Respondent another reason for his absence after June 19 totally unrelated to those events, namely, that he was sick. Thus, according to apparently credited and uncontradicted testimony, Gonzales appeared at the plant on June 21 to collect a paycheck at which time he stated he had been ab- sent because of illness and, further, that he would return to work the following Monday, which he nev- er did. Hence such testimony as there is concerning Gonzales' reasons for quitting belies and refutes the already questionable inference that Gonzales quit work because of the order to the effect that he must cease engaging in certain lawful solicitation for the Union. But even assuming that Gonzales quit because he feared "harassment and possible reprisals" or be- cause of the threatened unlawful restrictions on his union activities, there still would not be enough here to spell out a constructive discharge. Gonzales' work- ing conditions were not adversely affected as a result of Thompson's talk; rather he went back to the same job to be performed basically in the same old way. He was not given undesirable tasks or undesirable hours or anything of that nature. At most he was told he would have to produce more, but the standard imposed was that generally applicable in the plant. He was also warned he had to do a more accurate job on his worksheets. But these conditions can hard- ly be considered onerous impositions, and, even cou- pled with a threat of being closely watched to see that they were being complied with, they do not con- stitute harassment or reprisal.' In fact, as noted, there is no evidence that the Respondent actually harassed any employees or engaged in any on-the-job reprisals to force any employees to quit. If Gonzales harbored any fears of such treatment, they rested on no objec- tive basis but were simply the product of his subjec- tive misgivings. In any event, there is nothing posi- tive in the record to conclude that Gonzales' quitting was caused by any harassment or reprisals or by any realistic justifiable fears of being subjected to such conduct. Furthermore, it does not follow that an employee's quitting over a threatened restriction on union activi- ty is as a matter of law a constructive discharge. A threat is not the equivalent of the actual imposition of unlawful conditions of employment;' it does not in any meaningful sense render the conditions of em- ployment so intolerable as to compel an employee to leave his job. The Act provides an appropriate and direct remedy for the infringement of rights protect- ed by Section 7 and there is nothing in it which pro- vides that all threats unlawful under Section 8(a)(1) should or can be converted through unilateral em- ployee action into a discharge. Also, Gonzales was not really compelled to stop engaging in lawful solici- tation. He could have continued to do so and, if he had, Thompson, as far as we know, may have done 4 Gonzales was not called as a witness , and thus, of course, did not testify 6 Cf Kintner Bros, Inc, 167 NLRB 57, 57-58 (1967), enfd sub nom Retail 5 Though Respondent discharged employees because of their union activ- Store Employees Union Local 880 v N L R B, 419 F 2d 329 (C A D C., ity, there is no evidence it discriminated against them by way of assigning 1969) them to undesirable jobs or to working under unfavorable conditions be- r Cf Block-Southland Sportswear, Inc, Southland Manufacturing Company, cause of such activity Inc, et al, 170 NLRB 936,938 (1968), enfd 420 F 2d 1296 (C A D C, 1969) 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing and his unlawful threat would have been shown up to be only an unlawful bluff.' Yet again, Thompson may in such circumstances have acted on his threat and discharged Gonzales. In that event, we would not have before us the case the Administrative Law Judge has rather prematurely decided. In view of the foregoing observations it seems ob- vious to us, and we find, that Gonzales was not con- structively discharged, that he simply quit, and that therefore his departure did not violate Section 8(a)(3) and (1) of the Act.9 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Cen- tral Casket Co., Fresno, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modi- fied herein: 1. In paragraph 1(d) substitute the word "other" for the words "like or related." 2. Substitute the following for paragraph 2(a): "(a) Offer Anastacio Gomez, Jr., Margaret Huer- ta, and Irma Lara immediate and full reinstatement to their former positions or, if those positions no lon- ger exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay which they may have suffered by reason of the dis- crimination practiced against them, in the manner set forth in the "Remedy" section of the Decision." 3. Substitute the attached notice for that of the Administrative Law Judge. 9 It is on this point, among others , that Playskool, Inc, a Division ofMilton Bradley Company, 195 NLRB 560 (1972), which the Administrative Law Judge cites in support of his result, is inapposite to the present case In that case the employee was faced with complying with unlawful union-security and checkoff provisions as a condition of continued employment She did sign the required papers but then quit On those facts the Board found a constructive discharge However, in Playskool the employee was not just faced with a threat of discharge but with a fait accompli with respect to her employer's having entered into an unlawful contract requiring her compli- ance if she wished to continue on the job Also relevant to the holding in that case is the fact that the type of conduct involved in Playskool con- cerned conditions of employment that Congress specifically sought to pros- cribe in Sec 8(a)(3) of the Act The Administrative Law Judge also cited Sargent Electric Company, 209 NLRB 630 (1974), in support of his result That case is, however, clearly inapplicable as it turned on the issue of the on-the -job safety of the employ- ee who "quit," a matter not of concern here In that case the employer would give the employee no assurances with respect to his on-the-job pro- tection when he was faced with a coworker 's not-to-be-ignored threat to beat him up because of his engaging in certain unpopular intraunion activi- ty The employee's consequent quit was held to be a constructive discharge 9 In agreeing with the Administrative Law Judge 's conclusion that Fran- cisco Lara was not constructively discharged when he quit after being repre- hended, probably unfairly by Thompson, we rely, inter alia, on (1) the fact he was not subjected to any harassment or other on -the-job treatment that rendered his continuing to work intolerable-in fact his terms and condi- tions of employment remained unchanged-and (2) that the reason he gave for his quitting at the time he quit-which we find was the real reason for his leaving-was he would not put up with Thompson 's speaking to him as he had In these circumstances , we find no basis for concluding that Thompson , whatever his intent , forced Lara to quit APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argument, it has been determined that we violated the law by committing an unfair labor practice. In order to rem- edy such conduct, we are being required to post this notice. We intend to comply with this requirement, and to abide by the following commitments: The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a freely chosen representative To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything which interferes with these rights. WE WILL NOT discharge employees, or discrim- inate against them in any other manner with re- gard to their hire or tenure of employment, or any term or condition of their employment, be- cause of their participation in union organiza- tional activities, or their participation in concert- ed activity for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT limit the right of our employees to engage in union solicitation on company premises, while on nonwork time. WE WILL offer Anastacio Gomez, Jr., Marga- ret Huerta, and Irma Lara immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL, further, make these workers whole for any pay losses which they may have suffered by reason of the discrimination practiced against them, with interest thereon at 6 percent per annum. CENTRAL CASKET CO. CENTRAL CASKET CO. 365 DECISION STATEMENT OF THE CASE co, California, before me. Following its close, General Counsel's representative and Respondent's counsel filed supplementary briefs; together with their initial briefs, these supplementary briefs have been duly considered. MAURICE M. MILLER, Administrative Law Judge: Upon a charge and successive amended charges filed on June 20, August 26, and November 6, 1974, which were duly served, the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing with re- spect to Case 20-CA-9316, dated October 2, 1974, to be issued and served on Central Casket Co., designated as Respondent within this Decision. (When the Complainant Union's second amended charge with respect to the case in question was filed on November 6, General Counsel con- currently issued his amended complaint and notice of hear- ing, which was duly served.) Therein, Respondent was charged with the commission of unfair labor practices af- fecting commerce within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent's successive answers, duly filed, conceded cer- tain factual allegations within General Counsel's complaint and amended complaint, but denied the commission of any unfair labor practices. Pursuant to notice, a hearing with respect to Case 20- CA-9316 was held before me on various dates between November 19 and December 6, 1974, in Fresno, California. The General Counsel and Respondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence with respect to pertinent matters. Follow- ing the hearing's close, General Counsel's representative and Respondent's counsel filed briefs. Concurrently with his brief, General Counsel's representative moved for a re- opening of the record and requested my reconsideration of a partial dismissal order, previously entered while the hear- ing was in progress, with respect to the claimed construc- tive discharge of Francisco Lara, a designated discrimina- tee. Shortly thereafter, on a charge filed January 16, 1974, which was duly served, General Counsel caused a com- plaint and notice of hearing with respect to Case 20-CA- 9867, dated March 21, 1975, to be issued and served on Respondent; the latter was charged, therein, with further 8(a)(1) and (3) unfair labor practices, bottomed upon the termination of Irma Lara, complainant, and Francisco Lara's wife. Respondent's answer, duly filed, denied the commission of the unfair labor practices newly charged. On April 17, 1975, General Counsel moved for a consoli- dation of Cases 20-CA-9316 and 20-CA-9867; pursuant to my subsequent order, dated April 25, 1975, the cases were consolidated. Further, the record previously made was reopened, and my dismissal order, disposing of Gener- al Counsel's charge relative to Francisco Lara's challenged termination, was revoked. Thereafter, pursuant to my May 5 order granting a fur- ther motion which General Counsel had filed, seeking per- mission to introduce certain newly discovered evidence, and various telegraphic orders, the reopened hearing with respect to these consolidated cases was held on May 8 and 9 in Fresno, California, and May 20, 1975, in San Francis- FINDINGS OF FACT Upon the entire testimonial record, documentary evi- dence received, and my observation of the witnesses, I make the following findings of fact: 1. JURISDICTION Respondent raises no question herein with respect to General Counsel's jurisdictional claim . Upon the relevant factual declarations within Case 20-CA-9316's amended complaint herein-specifically, those set forth in detail within the second paragraph thereof-which have not been denied, and upon which I rely, I find that Respondent herein was, throughout the period with which these consol- idated cases are concerned , and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business operations which affect commerce within the meaning of Section 2 (6) and (7) of the statute. Further, with due regard for presently applicable jurisdic- tional standards, I find assertion of the Board's jurisdiction in these cases warranted and necessary to effectuate statu- tory objectives. II. COMPLAINANT UNION Upholsterers' International Union of North America, Local No. 3, AFL-CIO, designated as Complainant Union within this Decision, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain of Respondent's employees to membership. III. THE UNFAIR LABOR PRACTICES A. Issues This case, despite its relatively complex factual setting, presents a limited number of substantive questions which have been thoroughly litigated, and comprehensively briefed. For present purposes those questions may be sum- marized as follows: 1. Whether Respondent's management representatives, Peter "Bill" Thompson and Marshall Ostlund, prohibited union discussion within Respondent's Fresno facility, or threatened worker participants in such discussions with possible discharge. 2. Whether Respondent, within a 2-1/2-month period, terminated or constructively discharged six workers be- cause of their union sympathies , or their participation in some "other" concerted activity for mutual aid and protec- tion. 3. Whether Respondent subsequently terminated the employment of Irma Lara for similar reasons, statutorily proscribed. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Whether Respondent's course of conduct, when con- fronted with Complainant Union's campaign for represen- tative status, compassed unfair labor practices sufficiently pervasive and serious to preclude the possibility that a fair representation vote could presently be conducted. 5. Whether Complainant Union can properly be consid- ered the designated and selected representative of some uncoerced majority of Respondent's Fresno employees, within a defined group appropriate for collective-bargain- ing purposes. 6. Whether a Board Order directing Respondent to bar- gain with Complainant Union is necessary and proper to remedy Respondent's purportedly massive and pervasive unfair labor practices. With respect to these questions, General Counsel, of course, seeks affirmative responses. Respondent, however, requests a rejection of General Counsel's 8(a)(1) and (3) contentions. Further, Respondent contends that Com- plainant Union's representation claim derives from "taint- ed" proof regarding its purported designation by a majon- ty of Respondent's Fresno workers, since its presently proffered designation cards were solicited directly by su- pervisors, or with supervisory support. Respondent seeks a Board determination, therefore, that no current "bargain- ing order" can properly be considered warranted. B. Facts 1. Preliminary statement Some portions of General Counsel's testimonial and documentary presentation, herein, have not been disputed. Much of his presentation has, however, been contested. Thus, with respect to numerous matters mired in testimo- nial conflict, significant credibility determinations will be required. In that connection, certain preliminary comments should be made. Throughout the period with which this case is con- cerned, most of Respondent's Fresno plant workers bore Spanish surnames; so far as the record shows, this may still be true. For many, Spanish constituted, and continues to constitute, a primary language of communication; their ca- pacity to speak, read, and/or comprehend spoken English has been, and remains, limited. For others, English seem- ingly constitutes a possibly familiar second language, with- in which their capacity to communicate, however, can hardly be considered well-rounded. Consequently, several witnesses, presented in General Counsel's behalf, testified generally with a translator's help; others requested such assistance with greater or lesser frequency when momen- tarily nonplussed. And, since General Counsel's testimo- nial case herein deals significantly with purported speeches, conversations, communications, and representa- tions couched in English verbiage, the capacity of various Spanish-speaking witnesses who purportedly heard them to comprehend their substance and to relate with sufficient completeness their recollections with respect thereto, will necessarily require evaluation before any well-grounded credibility determinations can be made herein. The testimonial record further reflects the presence of certain familial, social, and business relationships, between particular witnesses, which could conceivably have molded or influenced their testimony. Wherever such relationships have been testimonially demonstrated or conceded, the possible presence of countervailing interests, bias, or sub- jection to influence generated thereby must be, and they have been, considered. Therefore, readers of this Decision should note that, with due regard for these factors, which may have affected the testimonial capacity and believability of various wit- nesses, my factual determinations herein will be derived, not merely from my courtroom observations, and not sole- ly from completely self-contained testimonial recitals which some particular witness or witnesses deemed gener- ally credible, may have proffered, but likewise from rea- sonable syntheses compounded following a review of the full record, with due consideration of their probable "inter- nal" consistency, their susceptibility to possible "external" verification, and the natural logic of probability. Further, I have proceeded with due regard for relevant judicial pro- nouncements defining a trier-of-facts role. See, particular- ly, Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496 (1951); N.L R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408, (1962); and N.L.R.B. v. J.P. Stevens and Co., 464 F.2d 1326, 1328 (C.A. 2, 1972), in this connection. With respect to particular wit- nesses whose testimony, set forth within the record, may have been partially or completely rejected, pursuant to my factual determinations herein, readers should merely note that their proffered recollections have been rejected be- cause I found conflicts reflected therein, with the divergent testimony provided by more credible witnesses, or because I considered their testimony generally unworthy of belief. All such testimony though perhaps not set forth with par- ticularity, has been, nevertheless, reviewed and considered. No portions of the record have been neglected or disre- garded. 2. Background Respondent maintains a comparatively new Fresno, Cal- ifornia, casket manufacturing plant. That facility, so the record shows, commenced productive operations during August 1973, some 8 months before the developments with which we are herein concerned. The firm's principal stock- holder and current president, Peter W. "Bill" Thompson, Jr., has been for some time likewise president of a much older, well-established casket manufacturing firm, Ameri- can Burial Casket Company, which maintains an Oakland, California, plant. Complainant Union herein has been a recognized em- ployee representative, and has maintained contractual rela- tions with American Burial Casket, for some 25 years. Their successive contracts, so the testimonial record shows, have routinely covered workers who would be considered supervisors within the meaning of the National Labor Re- lations Act. Archie Bayless, Complainant Union's current business representative, had previously worked for American Burial Casket for some 12 years; he had been a casket trimmer. While so employed, he had likewise functioned as Com- plainant Union's shop steward and president. When this CENTRAL CASKET CO. 367 case was heard, however, Bayless was no longer in Ameri- can Burial Casket's hire. He had been designated Com- plainant Union's full-time business representative, and had held that position for some 19 months. When Respondent's Fresno plant was ready to com- mence productive operations, several American Burial Casket workers had been transferred to Respondent's pay- roll; most of these had been given supervisory positions. Jose Gonzalez, Sr., designated Jose herein, had been named Respondent's Fresno plant manager. (Jose had, by then, worked for American Burial Casket some 8 years; his precise position, however, has not been specified. During this period, he had, so the record shows, maintained union membership; that record, further, reflects his maintenance of friendly personal relations with Bayless, who had then been serving as Complainant Union's president.) Likewise transferred were Guadelupe "Lupe" Curiel, and Marshall Ostlund. Pursuant to Jose's suggestion, his wife, Maria Gonzalez, had likewise been hired for prospective "sewing room" work within the Fresno plant. Maria had never previously done "commercial" sewing work; she had, therefore, been given a 6-week training course, within American Burial Casket's Oakland plant, with respect to various sewing tasks which she would be required to perform. She had reported for work several weeks after Fresno plant operations began. Her son, Jose Gonzalez, Jr., designated "Pepe" herein, had likewise been hired for regular production work. In Fresno, Respondent's plant had been divided into four functional sections-the metal department, mill de- partment, trim department, and sewing room, respectively. Cunel had been designated assistant plant manager in charge of Respondent's metal department; Ostlund, with a similar title, had been given supervisory responsibility for the firm's mill (wooden casket) department. The trim department's top supervisor, when operations began, can- not be determined from the present record; the record does show, however, that Kathleen Rodriguez, hired several months later, had shortly thereafter been designated the department's supervisor. Maria Gonzalez, when she finally reported on August 28, 1973, for Fresno work-some 4 weeks after Respondent's plant operations began-had been placed "in charge" in the firm's sewing room. By May 1974, when the developments with which we are concerned began, Respondent's Fresno plant was in full production, with a total crew complement-exclusive of conceded supervisors-which numbered some 35 workers. 3. Chronology a. Complainant Union's campaign Sometime in May, Respondent's plant manager had been told by employee Francisco Lara that two fellow workers-Alex Gonzales and his sister, Rachel Borunda- had been discussing union representation with various Fresno and Los Angeles union spokesmen. Thereafter, probably on May 22, Jose arranged a telephone message for Bayless. When he responded, Complainant Union's business representative was told by Respondent's plant manager substantially that Respondent's Fresno workers "needed someone to help them" collectively. Bayless was asked whether he could meet with Respondent's employ- ees. Subsequently, Complainant Union's business represen- tative visited Fresno on May 30. Jose's wife, Maria Gonza- lez, together with their son, Pepe, had completed arrangements for a late afternoon get-together at a Fresno public park. Bayless described the benefits which Respondent's workers might derive from union representation. His re- marks were translated and repeated in Spanish for those who could not understand English. Some 20 workers there- upon signed union designation cards. (Further details with respect to this meeting, the substance of Bayless' speech remarks, Pepe's role as his speech's translator, and Maria Gonzalez' participation, will be detailed subsequently with- in this Decision.) On May 31, Francisco Lara, Pepe, and Maria Gonzalez solicited further designation cards within Respondent's plant from workers who had not been present during the park meeting ; eight more signed designation cards were procured thereby. These were subsequently forwarded to Complainant Union's business representative. b. Respondent's reaction Sometime during June's first full calendar week, Bayless visited Bill Thompson at American Burial Casket's Oak- land plant. He reported that Complainant Union had been designated by a majority of Respondent's Fresno workers, and requested recognition as their representative. Thomp- son declared, however, that he lacked the requisite authori- ty to make any decision with regard to recognition; he directed Bayless to Jeanette Lopez, Respondent's corpo- rate secretary. (Thompson, though currently a 50-percent shareholder with Respondent herein, then held no "offi- cial" corporate position. He characterized his relationship with Respondent's management as merely "advisory." Subsequently, on June 13, he was formally designated Respondent's president.) On June 5, following Lopez' rejection of his recognition request, Complainant Union's representative filed a Board petition for certification docketed as Case 20-RC-12113; he sought a representation vote, thereby, for Respondent's Fresno plant workers. The following day, Thompson vis- ited Fresno; Respondent's principal supervisory person- nel-Jose Gonzalez, Sr., Curiel, and Ostlund-were quer- ied, inter aka, with respect to whether there was plant "activity" seeking union representation. They reported, however, that no union campaign was currently in prog- ress. On Friday, June 14, Thompson, who had just been des- ignated Respondent's president, visited Fresno again. Jose Gonzalez, Sr., Curiel, Ostlund, and Valerie Massengale, then Respondent's office secretary, were collectively told that Complainant Union had filed a representation peti- tion; they were again queried regarding their knowledge of union activity within the plant All denied knowledge, however, with regard to Complainant Union's campaign. During his Fresno visit, further, Respondent's president directed Plant Manager Jose Gonzalez, Sr., to promote six designated workers to so-called "supervisor" positions, 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with concomitant pay raises. (Effective Monday, June 17, when Respondent's next pay period began, these workers received raises; they were thereafter paid $3 .40 per hour. So far as the record shows, their duties and responsibilities with respect to production were not changed. They were, however given additional responsibility for the training of newly hired workers.) Concurrently, Kathleen Rodriguez, previously a designated supervisor within Respondent's trim department, was named the firm's third assistant plant manager; she was transferred forthwith from Respondent's hourly payroll, since she would thereafter be receiving a $160 weekly salary. c. The first discharges On Wednesday, June 19, when Respondent's president next visited Fresno, four mill department workers were summoned to successive conferences within the plant of- fice. Thompson, Respondent's plant manager, Mill Depart- ment Manager Ostlund, and Massengale were there. Alex Gonzales and Elsie Ledger were separately reprimanded for their purportedly poor production records. Anastacio Gomez and Margarito Ceniceros were terminated. (A sum- mary list derived from Respondent's payroll records, which counsel proffered for the record herein pursuant to stipulation, shows Monday, June 17, as Ceniceros' termi- nation date. The testimonial record, however, clearly re- veals that he was notified of his dismissal on June 19; I so find.) The record further warrants a determination that all four workers had previously signed Complainant Union's desig- nation cards. Alex Gonzales, nevertheless, was the sole worker summoned whose union sympathies or prounion conversations were discussed. Certain comments in this connection, purportedly chargeable to Respondent's presi- dent, will be subsequently considered. Complainant Union's first charge with respect to this case was filed on June 20. Respondent was charged with 8(a)(1) and (3) discrimination, bottomed upon the termina- tion of Anastacio Gomez and the purported dismissal of two other workers, not named. On Friday, June 21, when Alex Gonzales and Elsie Ledger visited Respondent's plant to collect their pay- checks, both were taxed with absences from work since their separate Wednesday, June 19, conferences with Respondent's president. Replying, each contended, sepa- rately, that his or her failure to report for work had been due to illness. Ledger's proffered excuse was acknowl- edged; she had previously reported sickness. Gonzales, however, was reminded that he had not previously report- ed. Later that day, in a letter which Respondent's president signed, Gonzales was admonished that "company rules" required workers to notify their supervisors when absent, but that he had failed to provide such notice. Further, he was reminded that he had been "warned in the past" re- garding company work rule violations; President Thomp- son declared that his firm would not tolerate "any more violations of company work rules or policy" thereafter. Gonzales did not report for work during the calendar week which followed. (General Counsel, conceding that the mill department worker's failure to report was voluntary, con- tends that Respondent's course of conduct, so far as he was concerned, should be considered a constructive discharge. The merits of this contention will be considered subse- quently within this Decision.) On Monday, July 1, Respondent sent Gonzales a second letter-signed by Plant Manager Jose Gonzalez, Sr. (no relation), pursuant to President Thompson's direction- wherein he was notified that, because of his continued "ab- sence without permission" between Monday, June 24, and the letter's date, he was being terminated forthwith. d. Representation case developments Meanwhile, on Thursday, June 27, a hearing with re- spect to Complainant Union's representation petition had been conducted in San Francisco. Business Representative Bayless had formally noted his appearance in Complainant Union's behalf; however, his organization's counsel of rec- ord, Robert LeProhn, had not been present. Respondent's president, Bill Thompson, had been the sole witness. And Complainant Union's representative had left San Francis- co bound for Fresno directly following the hearing's con- clusion. A second union meeting had been scheduled in a Fresno restaurant. However, the meeting's location had been somewhat hastily changed to the residence of Re- spondent's plant manager, Maria Gonzalez, and their son Pepe. Bayless had met with a group of Respondent's workers gathered in the Gonzalez' backyard; he had reiterated his May 30 remarks, and had answered various questions. Save for a brief, postdiscussion "social" contact with those present, Respondent's plant manager had, however, re- mained inside, conversing with Assistant Plant Manager Curiel, who had dropped by for a visit. He had not spoken with any worker regarding Complainant Union 's represen- tation campaign. During Bayless' visit, one more Fresno plant worker, Pedro Banuelos DeLeon, had signed Com- plainant Union's designation card. Sometime on Monday, July 1, presumably after the plant manager's termination letter directed to Alex Gon- zales had been dispatched, Thompson was notified by Respondent's newly designated assistant plant manager, Rodriguez, that Plant Manager Jose Gonzalez, Sr., togeth- er with his wife Maria, had provided the original stimulus for Complainant Union's representation campaign. e. Further discharges On Thursday, July 4, while Respondent's plant was open for production (so that the firm's workers could thereafter be given a substituted Friday holiday, with a consequent 3-day weekend) the firm's president, mindful of Kathy Ro- driguez' report, previously noted, discharged Plant Manag- er Jose Gonzalez, Sr.; with respect to his motivation and statements, Thompson testified: In talking to him, I explained to him that, as a supervi- sor, he was being fired for prejudicial and detrimental conduct to this firm. CENTRAL CASKET CO. 369 Jose, while a witness herein, was not questioned regarding his termination; the president's testimony with respect thereto stands in the record without dispute. Directly there- after, Maria Gonzalez was summoned to President Thompson's office, and likewise terminated, with a simi- larly stated reason. On Monday, July 8, with work in Respondent's sewing room somewhat slack, Margaret Huerta and Norma Flores, the firm's most recently hired sewing room workers, were transferred to Respondent's trim department. They worked there for 2 days. On Wednesday, July 10, however, Respondent's president summoned a management confer- ence during which the firm's high level inventory stock of completed caskets, Respondent's seasonally reduced vol- ume of new orders, and the firm's presumptively conse- quent need to reduce its labor force, were considered. De- cisions with respect to a layoff were made; consistent therewith, four workers were designated for "lack of work" terminations. Huerta and Flores, who were-despite their recent transfers-still considered Respondent's sewing room workers with least seniority, were notified of their terminations. When Flores thereupon queried Re- spondent's president with regard to her possible recall, she was told that Huerta and she would be recalled before any new plant workers were hired. Concurrently, one mill department worker, Tomas Per- ez, together with a single trim department employee, Emi- lio Briseno, were similarly terminated. Perez and Briseno were, like Huerta and Flores, the workers with least senior- ity within their respective Fresno plant departments. f. Further representation case developments Meanwhile, on Monday, July 8, Respondent's counsel had filed a motion with the Board's Regional Director re- questing a dismissal with regard to Complainant Union's representation petition. Counsel's motion, so the record shows, derived from his contention-bottomed upon two affidavits which had been procured from plant workers- that certain designated supervisors had participated in pro- curing the signatures of those employees whose designation cards had been previously submitted to provide Complain- ant Union's purported "showing of interest" required to support its petition. This motion was taken under submis- sion. While Complainant Union's representation petition and Respondent's motion were being considered, certain fur- ther developments transpired. On July 16, Huerta filed an 8(a)(3) charge with the Board's Fresno subregional office; thereafter, on July 19, so the record shows, she likewise filed a state complaint, specifically charging Central Casket with employment discrimination violative of California's Fair Employment Practice Act, with the State's Depart- ment of Industrial Relations. That complaint (which can be found within the present record) derived from her July 10 layoff, purportedly for lack of work, following which Central Casket had-so Huerta charged-hired "Anglo- Caucasian" workers, presumably as replacements. On July 23, Flores filed a similar State FEP charge. Meanwhile, sometime during this period, Respondent's president had, pursuant to employee Francisco Lara's request, given him a letter, presumably directed to some American consul serving in Mexico, which he planned to submit during a visit to his natal country. The letter cited Lara's period of service in Respondent's hire; likewise, it further declared that he was expected to continue in Respondent's employ following his return. Lara's Mexican visit, so he declared, was being made primarily to arrange for his "green card" renewal; that card's renewal would permit his return to this country with legal "resident alien" status. On Friday, August 2, the Acting Regional Director is- sued her decision with respect to Complainant Union's representation petition. Respondent's July 8 motion re- questing the petition's dismissal was therein denied; a rep- resentation election was directed. The eligible voters were to be Respondent's workers, within a defined bargaining unit, employed during the last company pay period com- pleted prior to the decision's issuance date. The present record warrants a determination that Respondent's em- ployees declared eligible thereby were those listed as work- ing during the firm's July 22-28 payroll period. On Friday, August 9, Respondent's counsel filed with the Board his request for review of the Acting Regional Director's Decision and Direction; therein counsel sought Board reconsideration particularly with respect to the va- lidity of Complainant Union's designation card showing; he contended that his motion to dismiss previously filed- bottomed on his claim that supervisory personnel had par- ticipated in procuring the signatures of workers whose cards had thereafter been submitted to establish Complain- ant Union's representational claim-should have been granted. On August 23, 2 weeks later, the Board granted Respondent's request for review. A telegraphic order was dispatched; therein, the Acting Regional Director's Deci- sion and Direction of election were remanded, so that she could consider Respondent's proffered "supervisory taint" charges. Earlier that day, however, Regional Office person- nel had already conducted the representation vote which the Acting Regional Director had previously directed. (When that vote was conducted, Respondent's prepared eligibility list showed 16 eligible voters, of these, 8 voted favorably with respect to union representation; 7 votes were cast against such representation. There were no chal- lenged ballots.) Also on August 23 Respondent's president sent Margaret Huerta a letter. She was notified that, be- cause production was being increased, the firm was rehir- ing workers previously laid off in the order of their senior- ity. Huerta was requested to report for work on Monday, August 26. g. Further discharges On Monday, August 26, Complainant Union filed a sec- ond charge herein. Anastacio Gomez, Maria Gonzalez, Alex Gonzales, Margaret Huerta, and Norma Flores were designated therein as victims of statutorily proscribed dis- crimination. The following day, however, pursuant to Respondent's previously dispatched recall notice, Huerta reported to be- gin work. She was reassigned to Respondent's sewing room; there she resumed her regular "seamstress" work 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject to direction from Rachel Borunda, Maria Gonza- lez' designated replacement. On Wednesday, Francisco Lara, then preparing for his Mexican vacation trip (during which he was planning to renew his "green card" permit, certifying his right to enter this country legally) was verbally reprimanded by Respondent's president. Thompson, so Lara testified, de- clared himself distressed because, while attempting to col- lect his vacation paycheck, he (Lara) had presumably "by- passed" his immediate departmental supervisor. Further, so Lara testified, Respondent's president questioned his (Lara's) recent failures to meet their firm's claimed produc- tion standard for workers holding purportedly "superviso- ry" training positions. He recalled that he was told should he fail to meet Respondent's declared standard following his return his wage rate would be reduced. Lara, disturbed by these reprimands, left Respondent's plant; he did not work the rest of that week. On August 30 Lara left for his Mexican trip. Though he subsequently returned, he never reported back for work in Respondent's plant. (With mat- ters in this posture, General Counsel contends that Lara was constructively discharged. When President Thompson notified the metal department worker that he would be required to satisfy a too stringent production standard, he could, so General Counsel suggests, properly deduce-with due regard for the complete circumstantial context within which his final conversation with Respondent's president had taken place-that he was being marked for a subse- quent discharge.) Sometime that same day, Rachel Borun- da notified Huerta that she was being dismissed, following 3 days back at work, purportedly for poor production. Huerta has not worked for Respondent since her August 30 termination. (With respect to Huerta, General Counsel contends, presently, that Respondent's proffered rationale for her second termination should be considered pretex- tual. This contention will be considered subsequently with- in this Decision.) Sometime during early September, President Thompson sent Flores a recall letter, similar to that which Huerta had received, proffering work with a September 10 proposed resumption date. Flores, however, never reported to re- claim her position. h. Procedural developments Meanwhile, on August 29, Respondent's counsel had drafted a set of objections to the election, contending, inter alia, that the Regional Office's August 23 morning repre- sentation vote should be considered "null and void" since the Board had, later that very day, granted Respondent's request for review of the Acting Regional Director's Deci- sion and Direction of Election. These objections, which may have been filed with the Board's Regional Director on the date when they were prepared, were served on Com- plainant Union's business representative by mail the fol- lowing day. On August 30, however, the Board's Regional Director by telegraph order had declared the August 23 election a nullity, because it had been conducted while Respondent's request for Board review of the Acting Re- gional Director's decision was pending, which review re- quest had subsequently been granted. On October 2, General Counsel's original complaint herein whereby Respondent was charged with 8(a)(1) and (3) violations was filed. On October 15, however, Respon- dent filed a motion with respect to Complainant Union's still pending representation case. The Board was requested to direct the Regional Director's compliance with its prior mandate: ". . . to investigate the Petitioner's showing of interest based upon the Employer's motion to dismiss the petition on the grounds of supervisory taint." More particularly, Respondent requested a Board direc- tion that the Regional Director should not solicit a withdrawal of Complainant Union's petition; that he should forthwith investigate Complainant Union's designa- tion card showing; and that he should dismiss the pending petition because the "supervisory taint" which affected those cards merits characterization as sufficient to void them. This motion, however, was subsequently denied for lack of merit. On October 25, Complainant Union's representation pe- tition in Case 20-RC-12113 was withdrawn without preju- dice. Shortly thereafter, on November 6, Complainant Union's second amended charge herein was filed; Francis- co Lara was designated a discriminatory dischargee there- in. Concurrently, General Counsel issued his amended complaint; therein, Respondent was charged with several 8(a)(1) violations of law, plus six instances of 8(a)(3) dis- crimination. A remedial bargaining order was further re- quested. i. The final discharge Sometime during late October 1974 or November's first full week, Irma Lara, Francisco's wife (who, since Septem- ber 1973 had been a seamstress in Respondent's hire), de- termined that, for reasons never clearly detailed in the pre- sent record, she would be required to revisit her Mexican home community. The precise purpose which motivated her determination cannot be deduced from the present record; for present purposes, however, no finding with respect to her trip's purpose seems required. Since Lara had, however, previously taken her paid va- cation following the completion of her first year's service she knew that management's permission, with respect to her projected week's leave of absence, would be required. And Mrs. Lara's testimony, taken at face value, would war- rant a determination that she promptly sought such per- mission-first, from Rachel Borunda, who was then Respondent's sewing room supervisor, and secondly from "Lupe" Curiel, Respondent's plant manager. Whether the record preponderantly supports a determination that she really did seek or receive permission to leave work for a week will be considered subsequently. (When Mrs. Lara testified with respect to whatever steps she took, for this consolidated case's reopened record, Borunda was no lon- ger in Respondent's employ; no one summoned her for testimonial purposes. And Curiel's testimony with respect to Lara's claim that she sought and received permission lacks clarity and reflects certain contradictions. The prof- fered recollections of both Lara and Curiel will be weighed hereinafter.) CENTRAL CASKET CO. 371 Following her shift's completion on Friday, November 8, Mrs. Lara left Fresno, on her Mexican trip. She believed then that her trip's purpose could be consummated within a week ; consistently with this belief she was planning a November 18 return to work. However, during her week's absence, on Wednesday, November 12, Respondent dispatched a letter to Lara by certified mail; she was told therein that if she failed to provide Respondent's plant manager, before 9 o'clock on the morning of Friday, November 15, with a sufficient "medical" reason for her absence from work, she would be terminated. Mrs. Lara did not receive this letter before No- vember 15; she was still on her Mexican trip. (The circum- stances which surrounded the preparation and dispatch of Respondent's November 12 letter-with particular refer- ence to whatever roles President Thompson and Plant Manager Curiel, respectively, may have played in connec- tion therewith-will be discussed supra.) Lara could not return from Mexico before Monday, No- vember 18. When she reported for work on Tuesday, No- vember 19, she noticed that her timecard had been re- moved from Respondent's rack. The firm's sewing room supervisor, Rachel Borunda, professed a lack of knowledge when queried with regard to this development. However, Valerie Massengale, Respondent's plant secretary, told Mrs. Lara that she had been terminated. When Lara re- quested a statement with respect to Respondent's reason, she was referred to Curiel, the firm's plant manager. Later that day, Mrs. Lara did query Respondent's plant manager outside the Fresno courtroom within which this case was then being heard. First she requested the reason for her termination; then, without waiting for a reply, she asked whether Curiel had previously received a report from her fellow worker, Pedro Banuelos, whom she had request- ed to notify Respondent's management that she would be unable to report on Monday, November 18, but would re- turn for work the following day. Confronted with Curiel's denial that Banuelos had, pursuant to her request, relayed such a communications, Lara did not pursue their conver- sation further. j. Subsequent procedural developments Two months later, on January 16, 1975, Mrs. Lara filed her charge (Case 20-CA-9867) previously noted. The procedural developments which followed and led to the consolidation of Mrs. Lara's discharge complaint with General Counsel's previously presented case have been de- tailed. The record herein, which may now be considered com- plete, warrants a determination that none of Respondent's terminated workers whose separations are presently in question have worked since their respective terminations within Respondent's Fresno plant. 4. Complainant Union's campaign and Respondent's reaction I have thus far provided a general "overview" with re- spect to Complainant Union's campaign and Respondent's reaction. Now, these developments must be considered in further detail. During their May 22 telephone conversation, previously noted, Respondent's plant manager had notified Business Representative Bayless that Respondent's workers were considering union representation; he had suggested that a meeting be set up, during which Bayless could detail the possible advantages which Respondent's workers might de- rive from Complainant Union's designation. Bayless had concurred, volunteering that he could visit Fresno on May 30. Thereafter, Jose's wife Maria and their son Pepe had planned the meeting in Roeding Park, one of Fresno's pub- lic parks, sometime after work on the date designated. Pepe and Francisco Lara, together with Maria Gonzalez, had notified Respondent's workers by word of mouth with re- spect to the meeting's time and place. Bayless reached Fresno on May 30, sometime during the afternoon; he proceeded directly to Jose's home, where he spoke briefly with both Respondent's plant manager and his wife. Pepe, together with a friend, was likewise present. (Complainant Union's business representative testified, credibly, that Respondent's plant manager was told his po- sition might be jeopardized should his personal interest with respect to union representation for the firm's Fresno workers become known; Bayless therefore directed Jose to "stay out" of Complainant Union's campaign. Thereafter, the business representative left for the scheduled Roeding Park meeting, accompanied by Maria; Pepe and his friend likewise made the trip, with a second car.) The park meeting, which convened at 6 o'clock, lasted a half hour; some 21 plant workers were present. They had gathered a relatively compact circle around Complainant Union's business representative while he detailed unionization's possible benefits. Since many of those pres- ent could not comprehend English well, Pepe translated Bayless' remarks into Spanish for the group. (Maria Gon- zalez had previously introduced Bayless. The record, con- sidered in totality, will not warrant a determination that she subsequently translated his remarks. She may, howev- er, have proffered periodic comments with respect to their substance, speaking directly to those in her immediate vi- cinity; I consider it highly likely that she did.) Following a considerable discussion between Re- spondent's workers and Complainant Union's business representative, with regard to wages and certain other ben- efits which Complainant Union would seek to procure for the firm's employees, Bayless produced a supply of blank union designation cards from his briefcase. He then read the card language aloud, speaking English; Pepe repeated his recapitulation in Spanish translation; Bayless told the workers he would, on their behalf, request Respondent to bargain after they had signed union designation cards; and he would, if Respondent declined to recognize Complain- ant Union herein, seek a Board representation vote. With regard to Bayless' remarks concerning Complain- ant Union's initiation fee, the record reflects a testimonial conflict. The business representative's composite testimony during cross-examination, with respect thereto, slightly modified merely to promote clarity, reads as follows: [With regard to fees, I said] on the normal of negoti- ating or organizing the plant, when the plant was fi- 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nally settled, we took all the members in on a low admission fee into the union . . . I never said [there would be a low admission fee if they joined before the plant went union] but what you are trying to [ask] is did I say to the people that were there at the meeting, if they signed the cards would I give them a reduced rate? No I did not. Q. Did you tell the employees that the initiating fee was between fifty and one hundred dollars? A. Yes, I did. Q. What sort of rate did you mention to them . . . if they signed the cards right then and there? A. I did not mention no fee. I said when and if the Union bargained for them, we had the contract, and we took them into the Union, we would take them in as a group, at a low admission fee, in the whole group-not at this particular time, not when they signed the cards. There is no way I would say some- thing like that. Q. Were you talking about those who became char- ter members would have a reduced initiating fee? A. If you mean charter members, when we had the contract ready to service and administer the contract, yes. They would come under a lower initiating fee, but this is after you had all that done. Not a specified group of people that had signed cards before .. . Q. Did you mention any amount of . . . initiating dues at all? A. Did I mention, I might have. I don't-to be per- fectly frank with you I don't remember, but I do re- member telling them that when we organize a place, when the contract was ready and the people are ready to go to work for the Union, under a Union contract, then we blanket them all in under a lower initiating fee ... everyone that is working at the plant at that time. Francisco Lara, testifying through an interpreter and presumably proffering recollections bottomed upon Pepe's Spanish translation of Bayless' remarks, declared Re- spondent's workers were told, "that if [they] were a ma- jority . . . [they] would not have to pay anything; that whoever came in afterwards would have to pay." However, Lara could not recall references to specific sums in either case. When summoned as Respondent's witness, Assistant Plant Manager Kathleen Rodriguez testified in English, with respect to Bayless' remarks. She had been present dur- ing the May 30 Roeding Park meeting; Rodriguez had then been a so-called "supervisor" within Respondent's trim de- partment previously noted. She recalled that- He [Bayless] told us that the initiation fee would be $17.00 before the union came in. Anybody who came in after the union would have to pay $50.00 to $100.00 .. . [We] had asked how much the initiation fee would be. Mr. Bayless says he was going to give us a discount. He said we would have to pay $17.00 before the union got in. Anyone who came in after the union was in, would have to pay $50.00 to $100.00 . . . he told us that the initiation fee would be $17.00 for any employee who joined before the union got in . . . he said that any employee who joined after the union got in, would pay . . . [an] . . . initiation fee between $100.00 and $50.00 When queried further with respect to Bayless' remarks Rodriguez qualified her testimony somewhat; she declared that she had "understood" the firm's current workers would be required to pay a $17 initiation fee to become union members, but that, "if a new employee comes into the factory . . . anytime after the Union was in" his initia- tion fee would be higher. Rodriguez then declared, categor- ically, that this was "all" the business representative said. However, despite her positive recollection that his remarks had been limited, the Assistant Plant Manager purportedly recalled that Bayless had stated or suggested that, ... [He] was going to give us-gee, how could I put it-a discount, really . . . the ones that are working there right now, at that time. In other words, he was going to give us all a discount because we were the ones who were going to start it .. . JUDGE MILLER: What did you understand him to be saying as to when the discount would be over? What condition, what changing circumstances would elimi- nate the possibility of a discount? THE WimasS: After the vote was taken place. In other words, how they vote for it-for the union. In other words, when he says, when we sign these cards, it was a authorization card, to try and get a vote. He says that, if-it was-if everybody passed it and they signed "Yes," okay, the union would be in. In other words, anybody who didn't sign these yellow cards, would have to pay the full amount of $50.00 to $100.00... that's the way he put it . . . That, if we signed these yellow cards and somebody new comes in, and they don't have one signed, well, they have to pay the full amount. Considered in totality, Rodriguez' testimony thus recapi- tulated reflects deviations from the prehearing statement which she had given Respondent's counsel. Further, her testimony reveals a certain degree of confusion or lack of certainty with respect to what Business Representative Bayless really said regarding "discounted" membership ini- tiation fees. The record, in my view, warrants no determi- nations consistent with any portion of Rodriguez' purport- ed testimonial recollections. Specifically, I find, despite the assistant plant manager's final suggestion, that Bayless did not promise Respondent's workers reduced membership in- itiation fees solely for those who would sign designation cards before Complainant Union finally won representa- tive status. The business representative's contrary testimo- ny previously set forth herein merits credence. Following Bayless' talk, Complainant Union's designa- tion cards were distributed among those present. Before the meeting concluded, 20 workers had signed cards. (Ma- ria Gonzalez, so the record shows, signed two cards; on one, she designated her position as "Sewing Room Fore- women" [sic] while the second merely described her work as making "head panels" for caskets ) While at Respondent's plant the following day, Pepe and Francisco Lara obtained signed designation cards from four workers who had not attended the park meeting; Ma- CENTRAL CASKET CO. 373 na Gonzalez solicited and received three more signed cards. Norma Flores, a sewing room cutter, signed one in Gonzalez' presence; the others were signed, likewise in her presence, by two trim department workers. By June 5, two more workers-Emilio Briseno and Elsie Ledger-had likewise signed designation cards; Bnseno was a newly hired trim department worker who had commenced work the previous day. On May 31, so Respondent's payroll record shows, the firm had 35 regular rank-and-file production workers, with Maria Gonzalez counted; by June 5th, when Complainant Union's petition was filed, there were 36, following Briseno's hire. Sometime during June's first full calendar week, Bayless had called on Thompson, presumably at American Burial Casket's Oakland plant. There he had reported, correctly, that Complainant Union had been designated by a majon- ty of Respondent's Fresno plant workers and had request- ed recognition as their representative. The record warrants a determination that Bayless had been referred to Jeanette Lopez, Respondent's corporate secretary. (Neither Bayless nor Thompson could, testimonially, fix their meeting's date. Complainant Union's representation petition, [Case 20-RC-12113] subsequently filed, however, reflects Bay- less' sworn declaration therein that his request for recogni- tion had been proffered and declined on Monday, June 3; that declaration stands herein without challenge. Consis- tently therewith, I find that Thompson, certainly, and Lo- pez, possibly, were visited on that date.) While a witness herein, Thompson declared that he had not "believed" Bayless' designation card claims, and that Complainant Union's business representative had been so advised. Nevertheless, when he subsequently visited Respondent's Fresno plant on Thursday, June 6, Thomp- son queried Respondent's principal supervisory person- nel-Jose Gonzalez, Sr., Curiel, and Ostlund-with respect to whether the firm's workers were participating in pro- union activities; Thompson was told that no union cam- paign was then in progress. The record, nevertheless, provides considerable support for a determination that Thompson had, by this time, re- ceived information sufficient to put him on notice that some of Respondent's Fresno workers were indeed consid- ering unionization. Earlier that week, as noted, Bayless had visited him and requested Complainant Union's recogni- tion. On Wednesday, June 5, Complainant Union's repre- sentation petition had been filed; the Regional Office's no- tice, with respect thereto, directed to the firm's Fresno address, would-normally-have been dispatched prompt- ly. It could, conceivably, have reached Respondent's Fres- no plant by Thursday, June 6, while Thompson was pres- ent, or by the following day. Thus, by week's end, Respondent's principal stockholder, though he may not have been disposed to credit Complainant Union's majon- ty representation claims, could hardly have lacked knowl- edge, or reason to believe, that some of Respondent's Fres- no plant workers, at least, had manifested an interest with respect to Unionization. This much he would reasonably have known, or could have deduced. Certainly, by Friday, June 14, when Respondent's prin- cipal stockholder-who had just been designated the firm's president-next visited Fresno, he concededly knew that Complainant Union's petition had been filed, and could rationally conclude, consequently, that a previously report- ed union campaign had presumably made some progress. Jose Gonzalez, Sr., Curiel, Ostland, and Valerie Massen- gale were told about Complainant Union's petition; that organization's campaign was discussed . (Thompson's claim , while a witness, that his several supervisors and sec- retary collectively disclaimed knowledge with respect to Complainant Union's presumptive "presence" within their plant, strains credulity. See N.L.R.B. v. Walton Manufac- turing Company, supra. However, if they did concurrently proffer such disclaimers, Respondent's newly designated president could only have concluded, reasonably, that they were singularly lacking in perception, or that they were withholding, from him, relevant knowledge which they probably possessed.) With matters in this posture then, Thompson directed Jose to grant raises and nominal promotions for six work- ers. Francisco Lara in Respondent's metal department, and mill department workers Gary Crawley and Dewey Sherwood, together with trim department workers Jenny Delgadillo, Betty Lulan, and Kenneth Rodobough, were to receive $3.40 per hour, commencing Monday, June 17, when Respondent's next pay period would begin. Refer- ence has been made to their concurrent designation as foremen or supervisors with responsibility for training new- ly hired workers. Likewise on this date, Kathleen Rodriguez, previously a designated supervisor with comparable responsibilities within Respondent's trim department, was named the firm's third assistant plant manager ; she was transferred effective Monday, June 17, from Respondent's hourly pay- roll, since she would be receiving a salary of $160 weekly thereafter. Concurrently, so the record shows, President Thompson directed a 25-cent-per-hour raise for Kirk Ha- gopian, a rank-and-file mill department worker; his rea- sons for this last raise have not been reported. Maria Gonzalez, then designated as Respondent's sew- ing room manager, likewise received a raise. Effective June 17 she was to be paid $3 60 per hour; this made her the highest paid hourly rated worker in Respondent's plant. While a witness, Respondent's then plant manager testi- fied that President Thompson had, during this June 14 dis- cussion, declared his desire to make "supervisors" of some Fresno plant workers, so that they would then be disquali- fied from casting ballots during a possible representation vote. Apart from Jose's presently proffered recollection, the record herein shows that during the June 27 hearing subsequently held on Complainant Union's petition the firm's president did, indeed, contend that this Board should consider the Fresno plant's various departmental "foremen" statutory supervisors. Mindful of this, I credit Jose's testimony, thus corroborated, that President Thomp- son did, during their June 14 conference, declare his pur- pose to grant the workers previously mentioned raises and purported promotions, for the purpose of compassing their consequent exclusion from a conceivable "bargaining unit" group. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The discharges Respondent's newly designated president next visited Fresno on Wednesday, June 19; there he conferred once more with Jose, Curiel, and Ostlund, while Massengale was present. Inter aka, they discussed the purportedly poor pro- duction record of Respondent's mill department personnel. The daily production records of that department's workers were reviewed. Some two months previously, Respondent's manage- ment had promulgated and posted notices with respect to a so-called "point" system, whereby worker productivity would thereafter be measured and rewarded. For the firm's mill department, this production incentive system func- tioned as follows: The various productive tasks which mill department workers were required to perform were listed, together with the total time-measured in minutes-within which Respondent would require each task's completion; the posted list, further, detailed, with respect to each pro- ductive task, the number of times it could be performed within an hour. Workers were directed to record the van- ous tasks-both productive and nonproductive-which they performed, on slips of plain "scratch" paper which they were to submit daily to Assistant Plant Manager Ost- lund, following the completion of their day's work. For each task reported as completed, workers were to be cred- ited with "points" calculated to match the total number of minutes normally required for that particular task's com- pletion, pursuant to Respondent's posted standard. Mill Department Manager Ostlund or Secretary Massengale were, therefore, required to compute the total daily "points" or "minutes" which Respondent's workers had earned. According to Thompson, Respondent's manage- ment considered it mandatory for Fresno plant workers- following a vaguely defined training period's completion- to perform, daily, productive or nonproductive tasks which carried at least 400 point or minute credits; they were told that failure to meet this standard would result in their ter- mination. Workers credited regularly with 480 points or more, per 8-hour day, could, however, qualify for weekly $10 bonus payments, supplementing their regular pay. The firm's mill department manager complained that he had been "warning" his subordinates, but that they had been "standing around" talking, rather than working full time ; whether Respondent's plant then had actually suffi- cient work in progress to keep them all busy full time, satis- fying specific customer orders or producing for stock, was not discussed. Following his review of various mill department produc- tion records, Thompson determined that departmental workers Anastacio Gomez and Marganto Ceniceros should be terminated, and that Alex Gonzales and Elsie Ledger should be reprimanded. These workers were there- upon summoned separately to Respondent's plant office. General Counsel's presentation raises no question with respect to Respondent's treatment of Ledger and Cenice- ros, particularly, though both had previously signed union designation cards. Respondent's president told Ledger that she had proved she was a good worker, who could earn 400 points daily, but that her productivity during the previous 3 or 4 days had slipped. The worker was told that it was "up to [her]" to do better work. Ledger acknowledged this ad- monition ; she was not terminated. Ceniceros had been brought in previously. Ostlund had told him that he had been working in Respondent's plant for quite a while; that his point credits were, nevertheless, quite low; that he had shown no signs of improvement; and that he was therefore being terminated. a. Anastacio Gomez Anastacio Gomez had been hired on January 7; during his 5 months of service he had received two raises . Before his discharge, Gomez had never been warned or repri- manded with regard to purportedly substandard work per- formance. The record reflects merely his testimonial con- cession that he had once been criticized for talking during working hours. On that occasion , according to his testimo- ny which I credit, Gomez had been discussing a work-relat- ed question with a Spanish-speaking fellow worker who could not communicate directly with Assistant Plant Man- ager Ostlund. The latter, mistakenly believing that they were engaged in idle conversation, had instructed Gomez to resume work. (In June 1974 Respondent's complement of nine mill department workers included four with Span- ish surnames . By June 5, the department's four Spanish- surnamed workers, including Gomez, together with three of their five fellow workers, had signed Complainant Union's designation cards.) On June 19, however, Gomez was summoned to Respondent's Fresno plant office. There, with President Thompson present, Ostlund declared that his daily produc- tion level had "recently slipped" below the 400 point stan- dard which Respondent required. Because of this, Gomez was told he was being terminated. Gomez protested that he had not been given credit for all the work which he had been doing, and that, though he, together with Alex Gon- zales, had "worked the same jobs" concurrently, the latter was always given more credit for work which they had both performed. Gomez' daily production records for 10 days between June 5 and 18 were then reviewed; some token adjustments were made with respect to his June II tally. President Thompson declared, however, that Gomez was being terminated, effective that very day. He left Respondent's office. Later, however, while Respondent's management repre- sentatives were conferring with Alex Gonzales , Gomez re- turned and demanded his final check. When Respondent's president declared that he would have it within 3 days, Gomez protested that, since he had been discharged, he could rightfully demand his final check forthwith. Presi- dent Thompson told him that, if he felt he was being treat- ed unfairly, he could file a Labor Board protest. Respondent pleads a privileged justification for Gomez' discharge solely because his productivity during the 2-week period which directly preceded his termination had been substandard. And Respondent's records do, indeed, pro- vide some colorable support for this contention. His daily production reports for the period in question do reveal that he fell short of Respondent's minimally required 400 points per day, on every day save one. (During 6 or 9 working days, for which reports are presently available, Gomez' CENTRAL CASKET CO. 375 submissions reflect tasks performed which were worth 344- 395 points; for 2 days, however, his record fell within the 237-250 point range. While a witness, Gomez contended that his daily production reports had not accurately reflect- ed the tasks which he was being required to perform. More particularly, he testified that, pursuant to Ostlund's fre- quent directives, he had regularly performed a variety of time-consuming tasks which Respondent's previously post- ed "point" list did not cover, and which he had not re- corded within his daily production reports. Those reports, however, detailed both productive and nonproductive tasks which Gomez claimed to have performed throughout 9 full working days; they purport to cover complete 8-hour daily periods. All nine reports, inter aka, reflect time spent on various miscellaneous nonproductive tasks for which Gomez did, indeed, receive proper "point" or "minute" credit. General Counsel's contention that Gomez had "failed to include" such tasks when preparing his daily pro- duction reports, because he had been "confused over whether such jobs as those were to be recorded" lacks rec- ord support. With respect to Gomez' two significantly low record days, his reports show some time spent on nonpro- ductive work; however, they likewise show substandard performance in connection with certain production tasks for which Respondent's management had previously desig- nated "point" values. On June 11, inter aha, Gomez had reported productive work worth 207 points performed within 450 minutes of his 8-hour, 480-minute, working day. For June 14, he had reported productive work worth 110 .75 points, completed within 320 minutes. General Counsel does suggest in his brief that Gomez' claimed "point cred- it" productive tasks may have been completed within a shorter time span than his reports set forth and that he had "consistently failed to record [nonproductive work assign- ments for which point values had not been specified within Respondent's posted list] because he assumed he was to record only those jobs" which the posted list specified. However, the record, considered in totality, will not sup- port such a determination. Gomez, I find, was neither con- fused nor lacking in knowledge with regard to his right and duty to record miscellaneous nonproductive tasks which he performed. And his reports show, (1) that he did, consis- tently, record his non-productive work, and (2) that he was given "point" credit for such work, whenever reported.) Nevertheless, Respondent's present contention, that Go- mez' seeming record of repeated failures to satisfy the firm's designated daily "point" or "minute" standard moti- vated his termination, merits rejection as pretextual. His work record could, conceivably, have generated legitimate managerial concern; I am satisfied, however, that Presi- dent Thompson's belief with respect to Gomez' participa- tion in prounion conversations really constituted the basic "moving cause" for his discharge; alternatively, the record will, in any event, support a determination at the very least that Gomez' suspected union sympathies contributed to President Thompson's discharge decision. These conclusions derive from a persuasive evidentiary foundation. First: The present record warrants a determi- nation that Respondent's president, despite his purported concern with respect to plantwide production figures con- fined his June 19 performance review to null department workers; that department, however, contained no more than 9 of Respondent's 37 workers then on payroll. No rationale has been proffered for Thompson's failure to con- duct a plantwide review. Comparable production records for the firm's metal department, trim department, and sew- ing room were not studied; certainly, no workers within these other departments appear to have been censured, warned, or terminated. Second: President Thompson con- ducted his purported mill department performance review less than 3 weeks before Respondent's July 10 layoffs for lack of work, previously noted. His professed concern with respect to substandard performance by particular workers, thus, was being manifested during a period when specific customer orders were, presumably, declining with the grad- ual onset of Respondent's summer "slow" season, while a major portion of Fresno's production was, therefore, being stock piled. (During this period, Respondent's warehouse stock pile of completed caskets was rising from a normal 150 to better than triple that number, which it reached within 3 weeks.) And nothing within the present record would warrant a determination that Respondent's wooden casket production levels, during the two-week period which preceded June 19, would really have permitted every one of the firm's presumptively qualified mill department workers to reach the firm's required 400 point productive standard. Third: Gomez' testimony, that he had never been repri- manded or warned before June 19 concerning his work record, stands without contradiction. (Ostlund, who had been his departmental supervisor, was present in the hear- ing room when General Counsel's presentation com- menced, and for some time thereafter. He was never re- quested to testify in Respondent's behalf, however, with respect to Gomez' purportedly deficient work perfor- mance. Though no longer in Respondent's hire when this case was heard, Ostlund could have been summoned for testimony, both in this connection and with respect to cer- tain relevant statements-noted hereinafter-properly chargeable to him. Respondent made no claim, while its defense was being presented, that Ostlund was not avail- able, nor has any rationale for Respondent' s failure to summon him been proffered.) Further, Gomez, so his credible uncontradicted testimo- ny shows, had received two separate raises within his 5- month period of service. With due regard for Respondent's patent willingness to grant Gomez raises, and management's failure to warn him that his performance record might be considered substandard, his abrupt dis- charge, while Complainant Union's presently filed repre- sentation petition was pending, persuasively suggests that President Thompson's claimed justification for his dis- charge should be considered pretextual. "The abruptness of a discharge and its timing are persuasive evidence as to motivation." See N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2, 1957); N.L.R.B. v. James- town Sterling Corp., 211 F.2d 725, 726 (C.A. 2); N.L.R.B. v. Evans Packing Company, 463 F.2d 193, 195 (C.A. 6, 1972); N.L.R.B. v. Stemun Manufacturing Company, Inc., 423 F.2d 737, 741-742 (C.A. 6, 1970), in this connection. Fourth. During a prior shop conversation with Pepe (Jose Gonza- lez, Jr.) on or about June 11, Ostlund had declared that, "Alex [Gonzales presumably] and Gomez, they are solicit- 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the people-about the Union-talking about the Union." The assistant plant manager had further declared that, "[We] are going to fire them." These factual determi- nations derive from Pepe's testimony. Since Jose Gonzalez, Sr., then Respondent's plant manager, is Pepe's father, I have scrutinized his testimony with care. I have, however, found it consistent with other testimony which would clearly warrant a determination that President Thompson believed Gomez and Gonzales had been discussing Com- plainant Union's campaign within the Fresno plant. Fur- ther, I have noted, inter alia, that Respondent never sum- moned Ostlund for the purpose of proffering a denial. Pepe's recital, therefore, has been credited. Fifth: Elsie Ledger, though a troubled hesitant witness still in Respondent's hire, testified with patent sincerity and fideli- ty to her best recollection (1) that, within a week following her June 5 signing of Complainant Union's designation card, Ostlund had-without qualification-directed her "not to talk" about her card's significance, or Complainant Union's goals; (2) that her departmental supervisor had subsequently declared he didn't want "anyone" talking about unionization, and that he would discharge "the whole damn lot" who did participate in such conversa- tions; (3) that Ostlund had told her he considered Anasta- cio "Joe" Gomez a principal union protagonist; and (4) that, sometime between June 19 and 27, the mill depart- ment supervisor told her Gomez and Gonzalez had been discharged because they were talking about the Union, and that he had the right to discharge workers who were parti- cipating in such talk. (During cross-examination, Ledger conceded that Ostlund's various declarations-more par- ticularly his last comment noted-were vouchsafed while he was under the influence of liquor. I have not been per- suaded, however, that his various statements revelatory of Respondent's distaste for worker conversations relative to unionization, or management's motive for discrimination directed against two of her departmental fellow workers, should be disregarded as nonprobative, or nonbinding on Respondent, for that reason. "Wine is wont to show the mind of man." Theognis, Sententiae, No. 500. Further, the maxim, "In vino veritas," has been commonly considered a truism of credibility determination since Pliny's day. Natu- ral History, book XIV, sec. 141. Certainly, I would not find Ostlund's several summary restatements of Respondent's position probative merely because he may have been "un- der the influence" when he spoke. His possible lack of complete sobriety, however, provides no compelling reason for dismissing his reported statements as lacking in rele- vance or materiality.) I find Ledger's testimonial recollections worthy of cre- dence. Her testimony reflects declarations, proffered by a responsible management representative, which reveal Respondent's determination to proscribe "union talk" within the Fresno plant, generally, and to discriminate against workers with respect to their hire and tenure and the terms and conditions of their continued employment, should management's proscription be flouted. Since those declarations were herein found chargeable to Ostlund, and were likewise consistent with further declarations by Presi- dent Thompson noted hereinafter, I find-relying upon Ledger's somewhat disjointed but persuasive recitals-that they were made, and reflect Respondent's motivations for conduct which General Counsel has challenged herein. Sixth: While a witness, Jose Gonzalez, Sr., testified that, during a private June 19 conversation before the firm's mill department workers were confronted by Respondent's president, the latter had conceded his knowledge "from somebody else" that Alex Gonzales and Gomez were two of the company people who supported Complainant Union's representation bid. According to Jose, Thompson had declared that he did not want Respondent's Fresno plant unionized; therefore "those two people" would be terminated. (President Thompson, while a witness, conced- ed that Ostlund had indeed told him Gomez was "actively soliciting and etcetera" for Complainant Union herein, thereby violating a Fresno plant rule. He insisted, however, that violations of the firm's no-solicitation rule were "never a factor" with respect to Gomez' discharge.) Mindful of Jose's possible witness-chair bias herein, I have reviewed his testimony, like that of his son, carefully. With particular reference to his proffered recollection that President Thompson mentioned information, previously received, regarding Alex Gonzales' and Gomez' presump- tively prounion conversations, I credit the former plant manager's testimony. However, since Respondent's presi- dent clearly made no definitive move, then and there, to discharge Alex Gonzales, I reject Jose's purported further recollection that Thompson had designated both mill de- partment workers for immediate termination. The former plant manager testified additionally that: . . . he [Thompson] explained to me that he could not fire Anastacio because regarding the question of the Union. Mr. Thompson asked the secretary . . . for Gomez' time sheet. He told us that that was the reason that he was going to fire him because he did not have enough time marked... . Since Plant Manager Curiel's subsequent testimony, inter aha, reflects his substantial corroboration with respect to this portion of Jose's quoted recital I credit the former plant manager's testimonial proffer. Compare Glass Guard Industries, Inc., 212 NLRB 285 (1974), in this connection. Within my view, therefore, his witness-chair recollections persuasively buttress General Counsel's contention that, regardless of Gomez' demonstrated work related deficien- cies, he would not have been terminated but for President Thompson's conceded "belief" that he (Gomez) held union sympathies. I so find. Alternatively, I am persuaded that Gomez' presumptive union sympathies-if they did not provide the sole statuto- rily proscribed "moving cause" for his termination-con- tributed, nevertheless, to President Thompson's discharge decision. N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (CA. 1). Terminations bottomed upon statutorily pro- scribed considerations, principally or partially, call for Board redress. b. Alex Gonzales Alex Gonzales, likewise a Fresno plant mill department worker, was summoned to Respondent's office following Gomez' departure. The record warrants a determination CENTRAL CASKET CO. 377 that President Thompson told Gonzales he had been over- heard "soliciting" fellow workers. Gonzales conceded that he had been "talking about" unionization, but denied that he had done so within Respondent's plant. (Gonzales had signed Complainant Union's designation card on May 30. Though no determination would be warranted that Respondent's president knew this, he conceded-while a witness-that he had told Jose he considered Alex Gon- zales "smart enough to organize" their plant.) President Thompson then declared that Gonzales' conduct was di- rectly violative of the firm's previously posted rule against solicitation, and that "further action of this sort" would result in his discharge. Additionally, Gonzales was told that, within his department, he was "doing just enough" to get by; that there was some doubt regarding the correct- ness and validity of his daily production reports; and that, because of this doubt, both his work and his reports would be "watched very carefully" thereafter. Within a summary statement, prepared by Respondent's office secretary, wherein this confrontation was purportedly recapitulat- ed-which Jose, Ostlund, Cunel, and Massengale signed- President Thompson's further remarks were summarized as follows: Bill Thompson then stated that Alex was a good work- er but he had been goofing off, and taking too much time, especially when he was driving the truck. Bill Thompson said that he did not feel that the times turned in by Alex, when he was on the truck, were valid, and although he had an excuse for each time, such as the truck breaking down, Bill Thompson did not feel that the excuses Alex gave were valid either. Alex was told that he was not being fired or layed off, that he was being issued a warning, and being in- formed that his work and worksheets were being watched. Gonzales then left Respondent's office; following his Janu- ary 19 shift's completion, he never again reported for work. On Friday, June 21, Respondent sent him a letter-which Thompson signed-reminding him that, pursuant to Respondent's rule, employees were required to notify their supervisors when absent from work; that he had failed to do so; that he had been previously warned, specifically on June 19, regarding work rule violations; and that Respon- dent would not tolerate any more violations of company rules or policy thereafter. Earlier that day, June 21, Gonzales had visited Respondent's plant to collect a paycheck; he had, then, claimed that he had been absent from work because of illness. However, when Ostlund asked whether he had called Respondent's office for the purpose of reporting his sickness, Gonzales conceded that he had not done so. He was reminded that he was "supposed to notify" the firm's office whenever he could not report, and that if he failed to do so within 8-12 hours, Respondent had a right to dis- charge him. Gonzales then, when asked whether he would be returning to work, replied that he would-but he never did return. On July 1, Respondent sent him a letter which read as follows: On June 21, 1974 you were warned in writing regard- ing your violating company rules by your absence from work without notifying your supervisor. At that time you were told "We will not tolerate any more violations of company work rules or policy in the fu- ture." Since that date, you have been absent without permission, from June 24 through today, July 1, 1974. This letter is to inform you, that because of this con- tinued abuse, you are terminated immediately. The letter was signed by Jose Gonzalez, Sr., in his capacity as Respondent's plant manager. The record, however, war- rants a determination, which I make, that Jose signed the letter pursuant to Thompson's directive; the company president's order was noted, thereon, within a postscript. General Counsel contends, herein, that Gonzales despite his statement that he would be returning to work, was "prompted to quit" by Thompson's threat to discharge him, should he persist in discussing unionization with his fellow workers. I find merit in this contention; Gonzales was-within my view-thereby constructively discharged. This Board has held, consistently, that workers who re- sign or cease reporting for work-when told that their continued tenure will be contingent upon their relinquish- ment of union representation or some other statutorily guaranteed right-will be considered victims of statutorily proscribed discrimination. Compare Playskool, Inc, 195 NLRB 560, 561, 572 (1972); Sargent Electric Company, 209 NLRB 630 (1974) in this connection. And the record, here- in, fully warrants a determination that Gonzales did relin- quish his position after being notified that further "solicita- tion" conducted in Complainant Union's behalf would result in his termination. (Respondent contends that Presi- dent Thompson's warning was merely calculated to com- pel Gonzales' compliance with a no-solicitation rule, claimed to be valid, which had been previously promulgat- ed and conspicuously posted, within the Fresno plant, for some 6 months. The firm's several posted rules, set forth in both English and Spanish phraseology, did declare, inter aha, that: "Solicitation of any type by employees or non- employees during working hours is prohibited." [Emphasis in original]. And General Counsel's representative herein has-for the record-specifically disclaimed any challenge with respect to the validity of Respondent's rule. He con- tends, nevertheless, that President Thompson's verbal rep- rimand, directed to Gonzalez, discloses-facially-the latter's "overbroad prohibition" with respect to worker so- licitations, since he sought to proscribe such activity by Gonzales, generally, without limiting his restriction to plant "working time" merely. Consistently with General Counsel's disclaimer, no determination will be made, here- in, regarding the legality of Respondent's rule, though I note, parenthetically, that it could be considered impermis- sibly restrictive, since it bars solicitation by workers during their "working hours" without qualification. Essex Interna- tional, Inc, 211 NLRB 749 (1974). Cf. Florida Steel Corpo- ration, 215 NLRB 97 (1974); The Ohio Masonic Home, 205 NLRB 357 (1973); KDI Precision Products, Inc., 185 NLRB 335, 336 (1970). Compare E. H., Limited, d/b/a Earring- house Imports, 227 NLRB No. 118, wherein Administrative Law Judge Stevens found a posted rule, which Respondent's no-solicitation rule herein substantially tracks, valid because it barred solicitation during "working 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time" merely. Further, with the record in its present pos- ture, no determination will be made that the facial "illegali- ty" which presumptively taints Respondent's rule pre- cludes the firm from relying upon it as a defense. See Harold R. Bursten and Dr. Robert Bursten, a Partnership, d/b/a Shorewood Manor Nursing Home & Rehabilitation Center, 217 NLRB 33, fn. 1 (1975). Rather, I find that Thompson's verbal prohibition-directed to Gonzales dur- ing their conference specifically-was "phrased in such a broad and unqualified manner, specifying neither the time, nor the place, nor the persons allegedly solicited, that the only reasonable interpretation to be placed on [it] was that [it] [was] intended to encompass [his] union activities as a whole rather than merely being directed towards the en- forcement of [Respondent's] rule." Compare Shorewood Manor Nursing Home & Rehabilitation Center, supra, fn. 1, in this connection.) Thompson's June 19 reiteration of Respondent's broad prohibition, with respect to Gonzales' solicitation of fellow workers, particularly when coupled with a warning that his daily production reports were considered suspect and would be scrutinized closely thereafter, was, within my view, clearly calculated to persuade Gonzales that contin- ued manifestations of support for Complainant Union herein would lead, finally, to his discharge. His consequent failure to report for work (which derived, so I find, from his fear of harassment and possible reprisal) cannot, there- fore, be considered voluntary. I find, consistently with General Counsel's contention, that he was constructively discharged for the purpose of discouraging Complainant Union's representation campaign. c. Maria Gonzalez Previously, in this Decision, Maria Gonzalez' position in Respondent's plant has been briefly noted. To recapitu- late: Her husband, Jose Gonzalez, Sr., had been designated as Respondent's Fresno plant manager on or about August 1, 1973. Before taking over that position, Jose had suggest- ed Maria's hire for work in the Fresno plant's sewing room. Although she had never done seamstress work commercial- ly before, she was hired and given a 6-week training course, within American Burial Casket Company's Oakland plant, with respect to various types of sewing which Respondent's Fresno facility would require. On August 28, 1973, she re- ported for work. In Fresno Mrs. Gonzalez was "put in charge" with respect to Respondent's sewing room; throughout her tenure, so far as the record shows, four more seamstresses, plus a cutter, worked within her juris- diction. Maria's participation in Complainant Union's card sign- up campaign-more particularly, her personal role with re- spect to setting up and publicizing Complainant Union's May 30 Roeding Park meeting; the preliminary "introduc- tion" which she delivered there, whereby Business Repre- sentative Bayless was presented so that he could speak with Respondent's workers; and her subsequent solicitation of several union designation cards, presumably within Respondent's plant-has previously been noted. On July 4, shortly following President Thompson's purported July 1 discovery with regard to her participatory role in Com- plainant Union's behalf, she was terminated. Reminding her that she had been considered a supervisor, Respondent's president declared-so I have found-that she was being discharged for "prejudicial and detrimental" conduct, because of her union activities, herein noted. (1) The question of Maria Gonzalez' supervisory status (a) Duties, powers, and responsibilities With matters in their present posture, Respondent con- tends that Mrs. Gonzalez' termination involved no statuto- ry violation, because she had been a supervisor, within the firm's Fresno plant, before her discharge. However, Gener- al Counsel contends, contrariwise, that: The credible evidence adduced in this proceeding es- tablishes that Maria functioned in the capacity of a "lead person" responsible for directing the routine [work] of a small number of employees, that her limit- ed supervisory duties did not entail the exercise of in- dependent judgment, and that she lacked any genuine management prerogatives or authority characteristic of a true supervisor. The question thus presented for determination has been most thoroughly litigated and comprehensively briefed. With respect thereto, credible testimony-within my view-warrants the following factual determinations: 1. Within the Fresno plant's sewing room, Maria was required to train workers, newly hired as seamstresses, with respect to the type of sewing which Respondent required. While discharging her training responsibilities, she rou- tinely "inspected" their work. (Mrs. Gonzalez did testify that her inspections were perfunctory; that she discharged her review responsibilities, in this connection, while "tak- ing" completed work to Respondent's trim department where casket assemblies were completed; and that she nev- er had to return sewn materials for corrective work, since the firm's seamstresses, when fully trained, made no errors. Her testimony stands, within the present record, without contradiction. Nevertheless, some reservation of judgment, with respect to her credibility, seems warranted. Newly hired seamstresses, while being trained, would hardly have been likely to produce perfect casket linings, consistently, from their very first working day. While a witness, Mrs. Gonzalez conceded that some seamstresses, following their hire, had demonstrated their lack of capacity to perform properly. Maria was likewise required to perform sewing work herself, making "head panels" for Respondent's cas- kets. The record warrants a determination, which I make, that she spent some 70 per cent of her shift time in produc- tive work; the balance of her time (30 per cent) was spent training seamstresses, and giving or relaying directives with regard to work which they would be required to do. 2. Throughout her period of service, Mrs. Gonzalez was hourly paid, while Respondent's specifically designated de- partment heads, previously noted, were salaried. Assistant Plant Manager Ostlund, who supervised Respondent's mill department, received $250 weekly; Curiel, the firm 's metal department supervisor, was similarly compensated. When CENTRAL CASKET CO. 379 Maria started, she received $3.35 per hour ($134 for a 40- hour week); her hourly rate was matched when Betty Lu- jan, then Respondent's highest paid trim department work- er, with 3 weeks' less seniority, was hired. However, effec- tive June 17, 1974, when six other workers in Respondent's various departments were given pay raises-together with nominal "foreman" payroll designations-Mrs. Gonzalez' pay was raised to $3.60 per hour ($144 for a 40-hour week); her position, thereby, became the highest paid hourly rated position in Respondent's plant. (Concurrently, the firm's newly designated trim department manager, Kathleen Ro- driguez, who had previously been receiving $3.15 per hour, was granted a $160 weekly salary.) When queried with respect to why Maria had not been transferred to Respondent's salaried staff, President Thompson told Plant Manager Jose Gonzalez, Sr., and his wife-so I find-that he could not make her a salaried worker since "company policy" prohibited two members of the same family from holding salaried management posi- tions, concurrently. (According to both Jose and Maria, they were told that "federal law" forbade Mrs. Gonzalez' transfer to Respondent's salaried payroll while her hus- band was serving as the firm's plant manager; with due regard for probabilities, however, I am persuaded that Jose and Maria must have misinterpreted or misremembered President Thompson's proffered rationale. No Federal statute mandating such a policy, with respect to family members employed by a single firm, has been cited; I know of none. Thompson 's testimonial recollection with respect to his comment, in my view, merits credence.) When required, Mrs. Gonzalez worked weekdays and weekends overtime; she was paid for all her overtime hours. Respondent's three designated department manag- ers, however, were paid solely for their weekend overtime work. 3. Maria was regularly furnished with pink "sewing de- partment" copies of customer work orders which had been prepared by Respondent's plant secretary; other copies- differently colored-were forwarded to both Ostlund and Cunel, in their respective departments. Mrs. Gonzalez re- tained her department's work order copies. Relying on them, she gave Respondent's several seamstresses and cut- ter directions, with respect to what they would have to do, when filling designated orders. Those orders normally specified which of several standard casket linings would be required; likewise they specified the design, fabric, and col- or required. General Counsel contends, herein, that what- ever directions Maria gave Respondent's seamstresses and cutter, based on these orders, were repetitive, unvarying, and mundane , because they called for standard materials which the seamstresses were required to fabricate, together with standard processes which they had been trained to pursue, following their eatablished routine. This may very well have been true; I am satisfied, however, that Mrs. Gonzalez could, within her discretion, designate which seamstress should handle particular orders. 4. Mrs. Gonzalez could, likewise, prepare, and did pre- pare, purchase orders-handwritten in the English lan- guage-for materials which Respondent's sewing room personnel would require. These she would submit to Respondent's Fresno plant secretary. Maria was likewise required to maintain the firm's inventory record of materi- als on hand and completed casket linings. She could requi- sition help from Respondent's rank-and-file workers- when required-to inventory fabrics and other materials currently on hand for sewing work. Her periodic reports, with respect thereto, were likewise submitted directly to Respondent's plant secretary. 5. For a short period-not specified for the record, but probably no more than 2 weeks-Maria kept departmental production records, pursuant to a request from President Thompson which her husband had relayed; these showed the departmental work, (1) which she had done, and (2) which other sewing department workers had performed. (Respondent's three specifically designated departmental managers may have kept similar records, covering the work done by their subordinates. They kept no records with re- spect to their personal production; the present record, however, will support no determination with respect to whether they regularly performed production work within their respective departments.) The record warrants a determination, which I make, that President Thompson had requested production records, which Mrs. Gonzalez prepared, so that he could develop a set of productivity standards, with "point values" set for various "sewing room" operations. Maria's records were finally submitted pursuant to Thompson's request. Respondent's management, however, never did develop production standards whereby the performance records of sewing room workers could be measured; thus, no "point" system, whereby sewing room productivity and compensa- tion could be determined, resulted. 6. Maria held a key, throughout the period with which we are now concerned, for Respondent's sewing room. However, she was never given comparable keys for Respondent's plant, though her husband held such keys. Further, Jose had complete "freedom of access" with re- spect to Respondent's Fresno plant files, for both custom- ers and plant personnel. Mrs. Gonzalez may have been given comparable file access privileges; the record with re- spect thereto cannot be considered clear. In my view, how- ever, her testimony that she never really consulted Respondent's files, save pursuant to her husband's direc- tion, merits credence. 7. Maria was never summoned or required to participate in management level meetings, between June 13 and the date of her termination, when President Thompson visited his Fresno plant. The firm's specifically designated depart- ment heads-Ostlund, Curiel, and Rodriguez-were, how- ever, summoned regularly whenever managerial confer- ences were being conducted. 8. Mrs. Gonzalez, like the rest of Respondent's sewing room workers, punched the firm's timeclock daily. She was, nevertheless, authorized, pursuant to her husband's direction, to fill in missing timeclock entries for sewing room workers who had failed to "punch in" or "punch out" properly. Further, she could " initial" such cards, thereby confirming the concerned worker's right to be paid for hours shown as worked, on timecards which she had completed. (Maria testified that Jose had given her this authority merely to save himself the time and trouble re- quired to verify "check-in" and "check-out" times posted 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by sewing department workers. This may very well have been true; there can be no doubt, however, that Jose had, thereby, vested his wife with "apparent authority" pur- suant to which she could make decisions which would de- termine the compensation sewing room workers received. I so find.) Respondent's two relatively longtime departmental man- agers, Ostlund and Curiel, were the sole department heads comparably privileged, with respect to completing and ver- ifying timecards for rank-and-file workers within their re- spective departments. 9. When Respondent's plant manager decided that "ov- ertime" was required, the firm's entire sewing room com- plement would be requested to work late. Mrs. Gonzalez would, concededly, relay her husband's overtime work di- rectives to Respondent's sewing room staff. ("I was the one that had to tell them, because I was the one in charge, by order of Jose.") Whenever particular seamstresses could not remain for scheduled overtime work, because they may have had prior personal commitments, or found themselves unable to get a babysitter, Mrs. Gonzalez was the person who could, and did, excuse them from that particular day's overtime work requirement. "They told me about their problem because I was in charge of the department," she testified. Conversely, when work was slow, Respondent's plant manager would direct his wife to schedule short term layoffs-normally 1 day per week-for various seamstress- es within her department. On many occasions, Jose would himself tell the workers, scheduled for a day's layoff, when they would not be working; sometimes, however, he would direct Maria to prepare a rotational schedule for these day- by-day layoffs, and to notify sewing room workers with respect to their scheduled nonwork days. This, I find, she did. 10. When sewing room workers were absent, they would telephone Respondent's plant. Sometimes they reported to Secretary Massengale; frequently, however, they would ask to speak with Maria, and report to her. The record war- rants a determination-which I make-that Mrs. Gonzalez was authorized to tell such absent workers, when they called, that their absences would be excused. 11. The testimonial record, in my view, will support a factual conclusion that Maria did not, within her sole dis- cretion, hire seamstresses, or designate them for required transfers within the Fresno plant, save in very infrequent nontypical circumstances. I am persuaded, however, that within Respondent's managerial hierarchy she could, and did, make effective recommendations with regard to new hires. While a witness, Mrs. Gonzalez did claim that she did not interview job applicants, and that she neither pos- sessed nor exercised hiring authority. And further testimo- ny can be found in the record-consistent with hers-that Respondent's seamstresses, save in one case, were hired by Jose directly. (Reference is made to record testimony that Respondent's plant manager hired Irene Hernandez and Sally Smith; that he was the management representative who gave them their sewing room assignments ; and that Maria was the person who told them, thereafter, what their work would be.) However, Connie Garza, mother of Respondent's assistant plant manager , Kathleen Rodri- guez, and employee Betty Lujan, testified that, during Sep- tember 1973 when she was first hired, Respondent's secre- tary initially took her to see Mrs. Gonzalez, and that it was the latter who directed her to prepare a job application. (Later, it was Maria who told her-so Garza testified- that she plus another worker were being transferred to mill department positions.) Likewise, record testimony which I credit reveals that, when Esperanza Delgadillo, Respondent's cutter, was ter- minated because of repeated failures to report for work, under circumstances which will be discussed hereinafter, Maria's husband directed her to select a replacement, from a book listing various job applicants which Respondent maintained within its Fresno plant office; Mrs. Gonzalez, concededly, made a decision to call Norma Flores, for the purpose of filling the vacant position . Flores was selected, so Maria testified, solely because she spoke Spanish; and when she reported for work, Mrs. Gonzalez was the person who told her she would be trained as Respondent's cutter, so that she could replace Delgadillo, who had been func- tioning in that capacity. 12. The transcript herein reveals considerable testimo- nial conflict with respect to whether Mrs. Gonzalez was ever really vested with "authority . .. to suspend, lay off ... discharge, assign . . . or discipline" workers within her departmental jurisdiction. With respect to whether she ever really exercised some of these powers, there may be room for doubt. I am fully persuaded, however, that her husband, the firm's plant manager, did describe her to Respondent's workers as vested with such authority, and that he knowingly permitted her to function as though she possessed these powers. (While a witness, Maria did claim that she neither possessed nor exercised discharge powers, and that she never recommended a termination . She did concede that several sewing room workers had been termi- nated, but contended that her husband had made the dis- charge decision in every case . For example: Mrs. Gonzalez testified, with respect to Esperanza Delgadillo's termina- tion previously noted herein, that she had merely reported Delgadillo's frequent absences to Respondent's plant man- ager; that, sometime in May 1974 she had passed on word with respect to a particular failure by Delgadillo to report for work when a rush order had to be filled; and that Jose had thereupon directed her to notify Delgadillo she was being terminated . Further, Maria denied telling Secretary Massengale either that she "would" discharge Delgadillo or that she "had" done so. Nevertheless, Delgadillo's testi- mony-which I credit in this connection-will support a conclusion that Mrs. Gonzalez did, during their final tele- phone conversation, specifically direct her not to come back for work, without claiming that Jose had been the decision maker, in connection with her termination.) Respondent's witness, Irene Hernandez, testified credi- bly that Maria was the person who had discharged her, following her very first week's work in Respondent's sew- ing room, because she was failing to meet production stan- dards. Thereafter, when she protested her termination, dur- ing a subsequent conversation with Respondent's plant manager, he declared-so Hernandez recalled-that Mrs. Gonzalez was in charge with respect to Respondent's sew- ing room, and that when she "wanted to fire" workers she could do so . Sally Smith, likewise a sewing room dischar- CENTRAL CASKET CO. gee, testified credibly that, following her third or fourth day at work, Maria told her she could not be retained be- cause she "wasn't as fast as the other girls" working there. And Connie Garza testified that sometime in September 1973 Mrs. Gonzalez had personally terminated another worker, whose name Garza could not recall. (While a wit- ness, Maria categorically denied these testimonial recitals, by Hernandez, Smith, and Garza, respectively. Neverthe- less, their proffered recollections, in my view, merit cre- dence. They testified straightforwardly; their recitals were mutually consistent; within my view, their composite testi- mony comports with logical probability. While a witness, Mrs. Gonzalez persistently described her functions and re- sponsibilities in terms which reflected her desire to mini- mize them; repeatedly, she sought to portray herself as her husband's mouthpiece, solely. Her testimony conveyed a picture of Respondent's managerial organization signifi- cantly at variance with sound practice; within my view, her descriptions lack the ring of truth. With due regard for the record considered in totality, I am persuaded that Maria, precisely because of her relationship with Respondent's plant manager, did consider herself "authorized" to termi- nate sewing room workers, whenever she found such action reasonably warranted-and that she did, consistently with her belief regarding her proper managerial role, discharge those workers whom she considered deficient.) When a representative of the State of California's unem- ployment compensation bureau telephoned Respondent's Fresno plant, seeking information with respect to Delgadillo's termination, Jose could not be located; Secre- tary Massengale thereupon summoned Mrs. Gonzalez to describe the circumstances which had precipitated Delgadillo's discharge. (b) Conclusions Question with respect to whether particular persons should be considered supervisors, within the statutory de- finition, have frequently been presented for Board resolu- tion; factual predicates, with respect to such questions, have frequently been quite complex. The statutory provi- sion which governs, Section 2(11), must be construed- pursuant to well-settled decisional doctrine-disjunctively; workers who possess "any [single] one" of the several pow- ers which the designated section lists will be considered supervisors. Pacific Intermountain Express Company v. N.L.R.B., 412 F.2d 1, 3 (C.A. 10, 1969); Ohio Power Com- pany v. N.L.R.B., 176 F.2d 385, 387 (C.A. 6, 1949). More- over, Section 2(11) does not require a showing that some particular employee regularly exercise a supervisor's power or powers, described therein, throughout his working time, or some definite portion thereof; the power's mere "exis- tence" will determine his classification. Ibid at 388. Never- theless, when determinations must be made with respect to whether some particular employee possesses a power or powers set forth within the statutory definition, triers of fact confront no simple task. Determinations regarding a worker's supervisory status cannot be based on hard and fast rules. Rather, conclusions with respect to whether some designated employee possesses such powers must be bottomed on factual data considered and weighed with due 381 regard for a particular case's relevant context. Cf. American Book Division, Litton Educational Publishing, Inc., 214 NLRB 413 (1974), in this connection. Considered in totality, the testimonial and documentary record proffered for Board consideration herein-previ- ously summarized-warrants a determination, within my view, that Maria Gonzalez, throughout the period with which this case is concerned, functioned as Respondent's sewing room supervisor, within the meaning of Section 2(11)'s statutory definition. Although Mrs. Gonzalez, while a witness, consistently tried to minimize her participatory role with respect to both new hires and discharges, credible testimony will sup- port a determination-which I make-that her participa- tion, with respect to both functions, was more than passive. For example: She was clearly delegated responsibility for the selection of Esperanza Delgadillo's replacement; when she selected Flores, Maria's selection-concededly-re- flected her "independent judgment" that a Spanish-speak- ing seamstress should, preferably, be hired. Assuming, ar- guendo, that Mrs. Gonzalez may not have, herself, given Flores the definitive commitment which confirmed her hire, there can be no doubt that, minimally, her participa- tory role reflected "effective" recommendation. Similarly, with respect to several seamstress discharges, the record, taken as a whole, clearly reflects Maria's participation. Certainly, she communicated Respondent's termination decisions; testimony which I have found credible provides support, within my view, for a further determination that she personally had previously made those decisions. Alter- natively, the record will, at the very least, support a deter- mination that she recommended them. (Mrs. Gonzalez' contrary testimony-that she was merely functioning as Jose's conduit-when Hernandez, Smith, and Delgadillo were notified regarding their terminations-must be con- sidered disingenuous; certainly, nothing in the present rec- ord suggests that these workers were ever told Maria was merely a messenger conveying Jose's decision. See Ameri- can Book Division, Litton Educational Publishing, Inc., su- pra, in this connection.) Upon this record, conclusions seem clearly warranted that Jose's wife was, throughout her period of service, vest- ed with discharge powers, so far as Respondent's sewing room workers were concerned; that Respondent's plant manager had-certainly once, and possibly several times- himself declared her vested with such powers; and that she had, consistently, been permitted to "hold [herself] out" as possessing "lay off" and/or "discharge" authority when notifying workers with respect to their terminations. Certain additional factors, previously noted herein, pro- vide further support for my conclusion that Maria should properly be considered a supervisor. For example: Al- though her fob-related functions and responsibilities, with- in Respondent's sewing room, may not have required her to exercise "substantial" independent judgment, she did, within her sole discretion, make work assignments; further, she concededly reviewed sewing room work done by Respondent's seamstresses following its completion. When required-particularly while newly hired workers were being trained-she formulated and communicated person- al judgments with regard to their work's quality, the pace 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their work, and their capacity to satisfy Respondent's production standards. (These factors, in my view, provide more than sufficient support for a determination that Mrs. Gonzalez possessed the power "responsibly to direct" work done within Respondent's sewing room. I so find.) Further: Maria's delegated authority with respect to sup- plying missing timecard notations-together with her con- comitant power to validate, through her signature, time- cards bearing such handwritten notations-persuasively reflects her status as Respondent's effective management representative within the Fresno plant'a sewing room. Fi- nally: The fact that she could, within her discretion, con- done reported absences, grant sewing room workers "ex- cuses" from required overtime work whenever hardship situations developed, and schedule such workers for short- term layoffs, provides further support for a determination that Mrs. Gonzalez held a supervisory position. True, she was hourly paid, spent a major portion of her plant time doing productive work, and never partici- pated-so far as the record shows-when top level man- agement conferences were being held. These factors in Maria's situation, certainly, could most reasonably be con- sidered contraindicative, with respect to Respondent's con- tention that she should be considered a supervisor; weighed within their total context, however, they cannot- in my view-persuasively foreclose such a determination. (In this connection, I note parenthetically some substan- tially "parallel" testimony, which Maria, Jose, and Presi- dent Thompson proffered, suggesting that she [Mrs. Gon- zalez] was told she could not be salaried, because of certain "extrinsic" considerations, not related to her work respon- sibilities. Both Jose and Maria testified that President Thompson had cited "federal law" when explaining why his plant manager's wife could not be salaried; Respondent's president testified that they were told "com- pany policy" proscribed such a compensation readjust- ment. Their composite testimonial recollections, though not congruent, clearly "imply" that Maria would have been salaried, like Ostlund and Curiel, but for one or the other of these restrictive considerations.) Finally, I note-separately and apart from these factual and/or testimonial considerations-that, within her Deci- sion and Direction of Election promulgated in Complain- ant Union's representation case, the Acting Regional Di- rector found Mrs. Gonzalez vested with supervisory "authority" within the statutory definition. True, her deter- mination may not be controlling herein. Cenco Medical/ Health Supply Corporation, 207 NLRB 123, 128 (1973); compare Spruce Up Corporation, 181 NLRB 721, 722, fn. 4 (1970), in this connection. (The Acting Regional Director's decision may not be considered "controlling" for several reasons. Inter aha, I note that neither the General Counsel nor Mrs. Gonzalez were formally privy to Complainant Union's representation petition. Further, Respondent's president was the sole witness; his testimony with regard to Maria's supervisory status was proffered without chal- lenge, dispute, or contradiction.) Nevertheless, this representation case determination can hardly be disregarded; clearly, within its total context it possesses some relevance. Business Representative Bayless, though present when the representation case hearing was held, never challenged or contradicted President Thompson's testimony therein. Though presumably cogni- zant that such testimony-presented and received without dispute-nught well result in Maria's formal exclusion from whatever bargaining unit the Acting Regional Direc- tor could find appropriate within Respondent's Fresno plant, Bayless never even requested that his representation case's record should be "held open" for the subsequent presentation of countervailing testimony. Further, when the Acting Regional Director finally rendered her deci- sion-wherein Mrs. Gonzalez was specifically excluded from the bargaining unit designated-no requests for Re- gional Office reconsideration or Board review were filed. My determinations herein, with regard to Maria's supervi- sory status, therefore coincide with those which Complain- ant Union had, presumably, considered "acceptable" while pressing its representation petition. (2) The question of her discharge Since I have found that Mrs. Gonzalez was-throughout her period of service-the Fresno plant's sewing room su- pervisor, within the meaning of Section 2(11) of the Act, she cannot-for present purposes-be considered a statu- tory "employee" legally protected with respect to her exer- cise of rights which Section 7 of the Act guarantees. Cf. Beasley v. Food Fair of North Carolina, Inc., et al., 416 U.S. at 653 (1974). Consequently, her discharge-though specif- ically bottomed upon her conceded course of conduct in Complainant Union's behalf-cannot be considered a stat- utorily proscribed unfair labor practice. d. Margaret Huerta and Norma Flores (1) The layoffs Huerta and Flores had been hired as sewing room work- ers; they had commenced work on March 19 and May 20, 1974, respectively. Huerta worked as a seamstress ; she had had some 15 years of previous experience doing commer- cial sewing. Flores, following her hire, had required train- ing so that she could function as Respondent's cutter. Both Huerta and Flores had signed Complainant Union's designation cards. Huerta had done so on May 30 during the Roeding Park meeting; Flores had signed her card the following day, while at work, pursuant to Mrs. Gonzalez' solicitation. (The record herein, contains no sub- stantial, reliable, or probative evidence that Respondent's management representatives-save for Maria Gonzalez, their sewing room supervisor-knew, or had reason to be- lieve, that these workers had signed union designation cards. General Counsel, in his brief, cites certain testimony which Huerta proffered during her direct examination, which-he contends-will persuasively support a deduc- tion that President Thompson knew her union sympathies. That testimony's probative worth will be discussed subse- quently. Neither Huerta nor Flores, so far as the record shows, participated as protagonists in Complainant Union's representation campaign thereafter. Throughout the period with which we are concerned, they were-so I find-merely passive union supporters. CENTRAL CASKET CO. 383 On July 8, since work in Respondent's sewing room had become somewhat slack, Huerta and Flores were transfer- red to the firm's trim department, which Assistant Plant Manager Rodriguez supervised. There they were assigned to Respondent's production line; they inserted casket pad- ding, linings, and placed protective covers over completed caskets. Shortly thereafter, on Wednesday, July 10, Margaret Huerta, together with Miguel Huerta, her husband-like- wise a trim department worker-spoke with Respondent's president, while Assistant Plant Manager Rodriguez was present, regarding a pay raise. (Both had previously re- ceived 25-cent raises, from their March 1974 starting rates, effective June 3; for slightly more than 1 month, therefore, they had been receiving $2.50 per hour.) Mrs. Huerta de- clared she had heard that "everybody" would be getting raises; she asked whether she and her husband would like- wise receive one. With respect to Thompson's reply, Respondent's former seamstress-testifying in direct exam- ination-recalled that: He said, no. And he said that because we have signed union cards, that we have activities to do with the union. And I told him that everybody did, everybody had signed union cards and that they were getting raises, including Kathy Rodriguez. And he said that that was his business [emphasis supplied]. When queued with respect to Huerta's testimony, Respondent's president conceded that they had, indeed, discussed raises; however, he proffered a somewhat differ- ent version of their conversation. Thompson-with Rodri- guez' corroboration-claimed he had merely stated that, since Complainant Union had filed a representation peti- tion, he could not grant raises, for fear of being charged with a statutory violation. Huerta had mentioned raises which certain other workers had received; replying that Respondent's president-so he testified-had told her that such raises were limited to certain workers who had been "jumped" into so-called "foreman" positions. Thompson categorically denied that Mr. and Mrs. Huerta were ever told he could not give them raises because they personally had signed union cards. These testimonial recitals--patently divergent when tak- en at face value-seemingly cannot be reconciled. With respect thereto, Respondent's counsel and General Counsel's representative have therefore contended for fa- vorable credibility determinations. (In this connection, Respondent's counsel has suggested, inter aka, that Huerta's complete failure to mention this purported "raise" conversation within two prehearing statements, signed and sworn to by her-which she gave Regional Office represen- tatives-should dictate her version's refection; substantial- ly, counsel would have this Board disregard her direct testi- monial recital because it reflects, in his view, nothing more than a belated witness-chair fabrication. However, General Counsel's representative-for the purpose of countering Respondent's contention-has produced a previous state- ment, which Huerta had personally drafted some 8 days following her July 10 conversation with Respondent's pres- ident; she had-so the record shows-submitted that type- written statement, without her signature, to a Regional Of- fice representative, within 2 weeks following the conversa- tion in question. Certain relevant portions thereof, so Gen- eral Counsel suggests, should therefore be considered a complete refutation of Respondent's presumable " recent fabrication" contention.) Though satisfied that Huerta's witness-chair recollec- tions proffered during her direct testimony reflect no re- cent contrivance or fabrication, I nevertheless find Presi- dent Thompson's testimonial version, with respect to their July 10 conversation, more worthy of credence. I note, par- ticularly, that in Mrs. Huerta's first of three prehearing statements-which she had concededly prepared, person- ally, shortly following the conversation now in question- her recorded recollections, properly construed, do not really "match" those set forth in her direct testimony; rather, they comport, substantially, with President Thompson's testimony. In relevant part, Huerta's prior statement (with grammatical and spelling corrections noted, solely for the purpose of promoting clarity) reads: On July 10, my husband Miguel Huerta and I [asked] Bill Thompson if we were going to get a raise since everybody was getting one and we were still making $2.50 [an] hour... .Instead, Bill told us that he [knew] that we had [signed] the union cards and he could not give us a raise because he would get in [trou- ble] with the [government]. I told him if he knew that everybody [signed] the union cards why [were] certain people . . . making good money even if they [didn't know] how to do [their] work. He said that was his business and that it was up to Cathy the supervisor. [If] we qualified for a raise we would get one and for that we had to make 480 min. a day and every day .... [Emphasis supplied.] Mindful of the fact that, for Mrs. Huerta particularly, Eng- lish constitutes a second language-with respect to which her comprehension and capacity for verbal or written ex- pression could hardly be considered facile-I find that her quoted prehearing statement reports President Thompson's conversational remarks with connotations significantly dif- ferent from those conveyed by her witness-chair declara- tions, but substantially consistent with President Thompson's recollection. With due regard for the record considered in totality, my observations of the witness, and logical probabilities, I cannot therefore give Huerta's direct witness-chair testimony, with respect to Thompson's prof- fered rationale for rejecting her raise request, the "credibil- ity gloss" for which General Counsel presently contends. Compare N.L.R.B. v. Marland One-Way Clutch Co., Inc., 89 LRRM 2721 at 2724, 2729 (C.A. 7, 1975), in this con- nection. Rather, I must credit Thompson's version of their conversation-particularly with respect to the context within whici- "union cards" were mentioned-partially be- cause of Rodriguez' corroborative testimony, but primarily because Huerta's previously recorded recollection, with re- spect to what Thompson said, can reasonably be construed consistently therewith. Specifically, I find-despite former General Counsel's contrary suggestion-that Respondent's former seamstress did not really, within her previously re- corded statement, report, consistently with her testimony herein during direct examination, that Thompson had de- 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glared himself disposed to deny requested raises "because we [Margaret and Miguel Huerta] had signed" union cards, or because "we [Mr. & Mrs. Huerta] had activities to do" with Complainant Union herein. Rather, her first state- ment-properly construed-merely reflects what she con- sidered a declaration by Respondent's president that he knew "we [signifying "everybody" i.e., numerous Fresno plant workers] had "signed" union cards, and, therefore, that raises granted within the context of Complainant Union's campaign for representative status would generate "trouble" with the government, presumably because Re- spondent could then be charged with an unfair labor prac- tice. Mrs. Huerta's previously prepared statement, thus con- strued, reflects no significant deviation-in my view-from President Thompson's testimony. Further, her statement comports with Assistant Plant Manager Rodriguez' corrob- orative testimonial recital. Thompson's proffered recollec- tions, with respect to their July 10 conversation, have there- fore been credited. Considered in context, his remarks clearly reflect no claimed "knowledge" with respect to Mrs. or Mr. Huerta's presumptive union sympathies; nor do they reflect a determination to withhold raises from both workers, particularly, because Respondent's manage- ment considered them union supporters. Earlier, during the morning of July 10, Respondent's president had conferred with his three assistant plant man- agers-Ostlund, Curiel, and Rodriguez-regarding the firm's reduced business volume. Respondent's department heads were told that new orders were coming in slowly, and that Respondent would lose money unless they could lay off some workers. (Respondent's defensive presenta- tion, herein, will support factual determinations-which I make-that no more than "one or two" new orders were then being received daily; that some 500 completed caskets were then still being held in warehouse facilities, whereas Respondent's normal stock on hand would have com- passed no more than 150-200 caskets; that such "normal" stock quantities would support a week's sales; and that Respondent's president, therefore, considered his complet- ed casket inventory significantly high. General Counsel has not herein challenged Respondent's testimonial claims; I find them credible. Consistently therewith Rodriguez testi- fied further that-during their July 10 conference-the firm's president was told her department then had 6 work- ers [though Respondent's payroll records show 8] working on some 12 caskets, whereas her crew normally completed some 30 caskets daily. Rodriguez declared, credibly and without persuasive contradiction, that many of her trim department workers were "standing around talking" be- cause there was no work.) Decisions were therefore reached that several layoffs for "lack of work" would be made. Pursuant thereto, Respondent's management effectuated a net reduction of four employees; three of these were trim department work- ers. Huerta, Flores, and Emilio Briseno, who then pos- sessed the lowest departmental seniority, were summoned to Respondent's plant office, where they were notified of their layoff. (The record shows further that Huerta and Flores who had concededly been transferred to Respondent's trim department less then 2 days previously, then were likewise workers holding the lowest seniority in Respondent's sewing room; their July 8 transfers had pre- viously reduced Respondent's rank-and-file sewing room complement from five to three workers.) Shortly thereafter, Respondent's president-with Curiel serving as his translator-notified Tomas Perez, then the firm's most junior metal department worker, that he was likewise being laid off because of his junior status, but that, when production increased, he would be recalled. Perez thereupon requested his final check forthwith; Curiel, how- ever, told him to "cool it" since he would be receiving his check on Respondent's next regular payday. ( Perez is Curiel's brother-in-law; throughout the period with which we are presently concerned he was living in Curiel' s home. He had, however, signed a union designation card on May 31 and had been transported, by Curiel, to Complainant Union's June 27 meeting at the residence of Jose Gonzalez, Sr.) Respondent's payroll records further reveal two more se- parations, coupled, however, with two new hires during this period. Specifically, they show July 9 as Raynaldo Al- varez' last day worked; Alvarez had been, as of July 9, the firm's metal department worker with lowest seniority, since he had been hired less than a month previously. The rec- ords likewise show July 10 as Edward Morales' last day worked. Though a regular trim department worker, like Briseno, he was not then that department's next most "jun- ior" worker; the record is silent regarding his termination's rationale. Within the plant's mill department, however, payroll records show Randy Crowley with a July 10 hiring date; no specific testimony with respect to Respondent's reason for hiring him, concurrently with a reduction in force, has been proffered. (The firm's payroll records, how- ever, do show that on May 30, when Complainant Union's campaign began, there were nine mill department work- ers. During June 1974 four of these-Gomez, Alex Gon- zales, and Ceniceros, together with Bill Masters-had either resigned or been terminated. Tomas Perez, though initially hired for mill department work, had been trans- ferred. Crowley was the department's very first replace- ment hire.) Concurrently, so the record shows, Respondent hired a third truckdriver, Richard Boline. With these personnel changes, therefore, Respondent had effectuated a net re- duction in force; though two workers had been newly hired, six-distributed throughout the firm's various pro- duction departments-had been terminated. Within the context of Respondent's reduction in force program, Huerta and Flores were told-specifically-that they were being laid off because they were "junior" work- ers, and that "no prejudice" whatsoever was involved. Flores queried Thompson, then, with regard to their possi- ble recall; she was assured-so Secretary Massengale and Flores testified-that when production increased she and Huerta would be rehired. (Huerta declared, while a wit- ness, that Thompson had promised to recall those termi- nated "before hiring anybody" within the departments where they had worked. However, with due regard for the record considered in totality, together with my observation of General Counsel's and Respondent 's witnesses, I credit the testimony proffered by Massengale and Flores, rather CENTRAL CASKET CO. 385 Thompson's commitment.) Huerta then requested a letter declaring that she had been laid off, so that she could col- lect unemployment compensation. She, Flores, and Brise- no were given such letters; Perez subsequently received a similar letter. (2) Conclusions Upon this record, General Counsel seeks a determina- tion that Huerta and Flores were really "discharged" be- cause of their union sympathies. However, I have not been persuaded. Respondent's contrary contention, that they were merely "laid off" pursuant to management's planned reduction in force-within my view-merits Board concur- rence. Several considerations, developed through credible testi- mony and various documentary proffers, have led me to this conclusion. First. Respondent's witnesses did testify, credibly and without contradiction, that their firm's busi- ness fluctuates seasonally; that July and August have nor- mally been low volume months; and that-during 1974 particularly-this pattern of seasonally reduced sales, cou- pled with a substantial inventory buildup of completed cas- kets, had been repeated. Second: Huerta and Flores, con- cededly, were not singled out discriminatorily for termination. They were "laid off" during a plantwide re- duction in force which ultimately touched each of Respondent's four production departments. A net reduc- tion of four workers resulted. Third: Nothing within the present record would warrant a determination that Huerta and Flores were discriminatonly selected for inclusion with others laid off. Whether Respondent's management con- sidered them sewing room employees or trim department workers on July 10, they clearly held the lowest seniority, then, within both of these Fresno plant divisions. Their fellow workers who were likewise terminated-Briseno and Perez-were also Respondent's most "junior" workers within their respective departments. Fourth: General Counsel's suggestion, that Respondent's management "knew" both sewing room workers were union card signers and/or sympathizers before they were terminated, lacks substantial, reliable, and probative rec- ord support. General Counsel's first contention-that Pres- ident Thompson had revealed knowledge with regard to Miguel and Margaret Huerta's particular designation card signatures and particular union sympathies during their earlier July 10 conversation relative to possible raises-has, previously herein, been rejected; his personally proffered recollections with respect to their conversation, which I have credited, reflect no such revelation. Further, with re- spect to Flores, no persuasive testimony-susceptible of construction as probative of company knowledge-can be found in the present record. Maria Gonzalez' knowledge, though presumably readily provable or deducible, could hardly be "imputed" reasonably to Fresno's higher man- agement, with due regard for this case's peculiar circum- stances. General Counsel has suggested that Kathleen Ro- driguez had signed Complainant Union's designation card, and had, likewise, for a short time, generally supported Complainant Union's campaign. Thereafter, following her June 17 designation as Respondent's assistant plant man- ager, she had concededly told Respondent's president "practically everything that went on" within the plant. General Counsel, therefore, would have this Board deduce directly-from Rodriguez' broadly phrased testimonial concession-that Respondent's president had somehow ac- quired knowledge, particularly regarding the union sympa- thies of both Huerta and Flores, from her. Such a supposi- tious deduction with respect to President Thompson's source, and the state of his knowledge-though conceiva- ble-cannot be considered warranted, within my view. Save for Huerta's and Flores' decisions to sign Com- plainant Union's designation cards and Huerta's subse- quent decision to attend the June 27 meeting at Jose's resi- dence, the present record is completely devoid of testimony regarding their participation in that organization's cam- paign. Fifth • The record, considered in totality, does not, in my view, persuasively support General Counsel's conten- tion that Huerta and Flores were terminated because of President Thompson's hostility toward unionization. Be- yond Respondent's directly defensive presentation-prof- fered to persuade me that these disputed July 10 layoffs should be considered derived from business consider- ations-the record, inter aha, clearly reveals that Miguel, Margaret Huerta's husband, was permitted to continue work shortly thereafter despite a July 12 failure to report for work which had initially persuaded President Thomp- son to discharge him. Yet Miguel had, like his wife, been present during Complainant Union's May 30 and June 27 meetings ; he had likewise signed a designation card. Presi- dent Thompson's willingness to excuse his July 12 failure to report for work-in my view-persuasively reflects his lack of hostility toward the Huertas, and negates General Counsel's contention that President Thompson's prior lay- off of Mrs. Huerta derived from a purpose of reprisal. Fur- ther, with respect to Flores particularly, no proof of hostili- ty, bottomed upon union considerations, has convincingly been demonstrated. Sixth: General Counsel's further con- tention-that Respondent's discriminatory motivation for these July 10 layoffs can be deduced, retrospectively, (a) from Fresno plant management's subsequent failure to re- call them, specifically for trim department work, during a period within which five new trim department workers were being hired; (b) from Huerta's final discharge, for what General Counsel calls pretextual reasons, following her subsequent recall for sewing room work; and (c) from Respondent's so-called "illusory offer of recall" which Flores subsequently received-carries no persuasion. The firm's failure to consider either Huerta or Flores as possi- ble candidates for reemployment when trim department work increased cannot realistically be considered "highly technical and strained" consistently with General Counsel's contention; they were, I find, considered reason- ably qualified primarily for sewing room work, whereas their trim department tenure had compassed no more than 1-1/2 days. Further, Respondent's operative motive for Huerta's August 27 recall and subsequent discharge can be deduced, logically and most reasonably, in my view, from President Thompson's testimonially described reaction to certain developments which followed her July 10 layoff; these will be discussed further in this decision. Finally, I 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that Thompson's decision to send Flores a recall letter derived, likewise, from these postlayoff developments; his ultimate course of conduct, therefore, provides no retro- spective illumination with respect to Respondent's motiva- tion for her prior July 10 layoff. Mindful of these considerations, I conclude-specifical- ly with reference to Huerta's and Flores' July 10 termina- tions-that General Counsel's discriminatory discharge claims and derivative 8(a)(1) contentions lack adequate record support. e. Francisco Lara Francisco Lara was hired on August 30, 1973, for metal department production work; some 8 months later, during May 1974, he, together with two fellow workers, began to consider possible union representation. He told Jose Gon- zalez, Sr., then Respondent's plant manager, that contacts were being sought with some labor organization which could represent Respondent's employees. When thereafter Complainant Union's business repre- sentative commenced a card signup campaign, Lara be- came active therein. Shortly before Complainant Union's May 30 Roeding Park meeting, he told Curiel, his department's manager that a meeting had been scheduled. Curiel commented-so Lara's credible testimony shows- that Respondent's unionization would be "fine" for several reasons, but that he didn't "want [Thompson] to know" that such a campaign would shortly begin. (These factual findings derive from Lara's testimony, which I credit in this connection. As previously noted, he had spoken with Respondent's plant manager, declaring his interest with re- spect to Respondent's possible unionization ; the record, considered in totality, warrants a determination that Lara knew Curiel and Jose Gonzalez, Sr., were then friendly. Further, Curiel and he [Lara] were then, likewise, main- taining a friendly social relationship. Mindful of these con- siderations, I find Lara's testimony-that he told Curiel, beforehand, about Complainant Union's scheduled May 30 meeting-consistent with the probabilities.) Lara, to- gether with "Pepe" Gonzalez, had, in fact, helped to ar- range Complainant Union's scheduled meeting, and had personally notified various Fresno plant workers with re- spect thereto. When the meeting was thereafter held, he was present, and signed Complainant Union's designation card. The following day, while at work, he-together with Pepe, the plant manager's son-persuaded four of their fel- low workers to sign Complainant Union's cards. Respondent's payroll records show that, within a short time thereafter, Lara, who had previously received several raises, received another 5-cent raise, effective with the commencement of Respondent's June 3-9 payroll week. Further, on June 14, he received one of Respondent's six "foreman" designations, together with a pay raise from $2.75 to $3.40 per hour, effective the following week. His duties, however, were significantly modified solely in one respect; he would be required thereafter to help train his department's new workers, most of them Spanish-speaking like himself. (1) President Thompson's reprimand and Lara's resignation On July 21 or 22, Lara, who is a Mexican alien, request- ed and received a letter-signed by both President Thomp- son and Respondent's metal department manager-which would presumably support steps which he proposed taking to confirm his legal immigrant status. Therein, Re- spondent's management representatives-so Lara credi- bly testified-declared: That [he] earned $3.40 an hour; that [he] worked 40 hours and sometimes overtime, when it was necessary; that [he] was a supervisor; and that, when [he] re- turned from Mexico, that [he] would have [his] work as long as [he] wanted. Under relevant Federal Government immigration statutes and regulations consistent therewith, with respect to which I take official notice, aliens seeking legal entry to this coun- try-regardless of their original nationality-must satisfy the United States Immigration and Naturalization Service that they will not become public charges, when permitted to cross the border with "legal immigrant" status; this nor- mally requires them to submit proof with respect to their financial resources, sponsorship, or prospective gainful em- ployment. Where Mexican nationals are concerned, such proof is normally submitted to United States consular rep- resentatives within that country; these consular representa- tives then prepare and partially draft "green cards" which-when subsequently reviewed, completed, and vali- dated at border stations-provide the newly received resi- dent alien with proof of legal immigrant status. The letter which Lara received was-so the record shows-provided so that he could thereafter commence the process pursuant to which his legal immigrant status would ultimately be confirmed. Sometime during August 1974 Lara requested and re- ceived President Thompson's permission to take a vaca- tion-following the completion of his first year's work on Friday, August 30-during which he planned to undertake a Mexican return, for the specific purpose of procuring a valid "green card" whereby his legal "resident alien" status would be confirmed. With the date of his scheduled departure drawing near, Lara questioned Curiel repeatedly with respect to when he would be receiving his vacation pay, which he wanted by August 30 before his planned Mexican trip could begin. (The record warrants a determination-which I make- that Lara had likewise contacted Massengale, Re- spondent's plant secretary, twice, for the purpose of soli- citing her help in procuring his vacation check by August 30; no determination would be warranted, however, that Massengale had taken any particular action pursuant to his request.) Finally, sometime during the late morning hours of Wednesday, August 28, when he could not reach his department's manager, Lara finally sought Kathy Ro- driguez, then Respondent's trim department manager, and possibly the firm's acting plant manager, with inquiries re- garding his vacation check. Since he spoke English poorly, while Rodriguez could merely listen but not participate in Spanish language conversations, Lara requested Connie CENTRAL CASKET CO. 387 Garza, Rodriguez' mother, to provide interpretive services. Both women thereafter tried to help Lara converse with Massengale regarding his vacation check. (Though Rodri- guez did suggest that Lara's problem didn't fall "within [her] department" but concerned something which Curiel should handle, she did not reprimand Lara for coming to her; neither did she turn him away. She did not question his claim that Cunel had, previously, failed or refused to help him procure information with regard to his vacation check.) While Lara, Rodriguez, and Garza were convers- ing, Cunel passed them, but said nothing. President Thompson likewise saw Lara, Rodriguez, and Garza in conversation, from a distance, but could not hear what was being said. Later, during the afternoon, Respondent's president- with Cunel functioning as his interpreter-confronted Lara. Thompson, with his voice raised, reprimanded Lara vehemently for speaking to Rodriguez, rather than Curiel, his designated departmental manager, regarding his vaca- tion check. Lara's defensive protestation, that he had not been able-then-to locate Curiel within Respondent's Fresno plant, was disregarded; Respondent's president, I find, made no reply. In this connection, Thompson de- clared-further-that Lara and he "didn't have any busi- ness" requiring immediate disposition. Then Respondent's president told Lara, bluntly, that his most recent produc- tion records reflected a level of performance which did not satisfy Respondent's production standards; Lara was told-substantially-that, unless his performance im- proved, his gross pay would be reduced. (The record re- flects a significant testimonial conflict between Thompson and Lara with regard to this portion of the former's lecture. According to Lara, Respondent's president declared that- since he was considered a so-called "foreman" or "supervi- sor" within his department-he should be doing productive work sufficient to make 500 production "points" per day. Further, so Lara testified initially, he was told that, should he fail to make 500 daily points consistently, his "salary" would be reduced. Ultimately, however, while testifying during the reopened hearing herein, Lara declared that President Thompson had merely told him Respondent's management would withhold the firm's standard $10 week- ly "bonus" payment which he had previously received, should he thereafter fail to meet Respondent's 500-point standard. With respect to this portion of their conversa- tion, Respondent's president-while a witness-has prof- fered a somewhat different recollection. According to Thompson, Lara was told: That, since he was a designated "foreman" he was considered a proficient worker, who could reasonably be expected to make 500 production `points" per day; that his production reports for Monday, August 26, and Tuesday, August 27, however, had merely shown 445 and 405 points posted, respectively; and that, should his future reports reflect his failure to satisfy Respondent's designated 480-point standard, he would re- ceive no $10 weekly bonus payments. The record, consid- ered in totality, preponderantly supports President Thompson's testimony that Respondent's production in- centive system specified 480 points as the regular "break" point with respect to weekly bonus payments. I credit Thompson's testimony, therefore, with respect to what Lara was told. Lara's present witness-chair declaration- that he was told he would be required to satisfy a higher 500-point requirement before becoming entitled to bonus payments could, conceivably, have derived from Curiel's failure to report correctly, while functioning as Thompson's translator, that Thompson merely "expected" departmental "foremen" to make 500 points daily, but that bonus payments would be contingent upon their consistent satisfaction of the firm's regular 480-point requirement merely. Alternatively, Lara-disturbed by President Thompson's reprimand-may have misconceived the thought which Thompson was trying to convey.) Respondent's president testified, further, that Lara was reprimanded for treating newly hired trainees harshly, for "degrading" them, and for his "loud yelling" directed to- ward them. However, Lara denied, initially, that Thomp- son had lectured him with regard to "mistreating" fellow workers. The testimony proffered by Respondent's several witnesses, considered in totality, provides no substantial, reliable, or probative record-within my view-which would warrant a determination that Lara had actually been guilty as charged. I am satisfied, however, that President Thompson himself had seen Lara conversing vehemently, once, with a particular metal department trainee, while "yelling" and making vigorous gestures. Without determin- ing whether his critical reaction could reasonably be con- sidered justified, I find, consistently with Thompson' s testi- mony, that he did reprimand Lara for such behavior during their August 28 conversation. (During cross-exami- nation, Lara-while declaring that a Regional Office res- presentative had not "correctly" grasped or recorded his prehearing report with respect to what Thompson said- testimonially conceded that Thompson had told him, "that [he] didn't have to be in front of the people entertaining them or bothering them" while at work. With due regard for its record context, I consider Lara's ultimate testimony a concession that he was reprimanded, inter alia, for "both- ering" fellow workers.) Lara was told that, from that day forward, he would be required to "observe [the] things" which he had just been told. According to Thompson-whose testimony with re- spect to their confrontation's conclusion stands, herein, without dispute-Lara merely "stood there" and nodded his head; however, mindful of Curiel's corroborative recit- al, I conclude that Lara may have-further-promised to remember Thompson's directive. In any event, Lara-so I find-manifested no immediate resentment. Lara, though he was, so he testified, quite "upset" fol- lowing President Thompson's vehement lecture, returned to work. Within an hour, however, he called for Curiel, declared that "nobody, but nobody" would speak to him in such a fashion, took off his gloves, dropped them where he stood, and stated that on Friday, August 30, he would be back for his check. Shortly thereafter, Lara left for Mexico, pursuant to his previously formulated plan. He never reported for work thereafter. On September 11, following his return from Mexico, he queried Curiel with regard to his right to claim vacation pay. According to Lara, Curiel replied: 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You left, you left work. You had two days yet to make your vacation, but, he said, I'm going to talk to Bill so he can pay you half a week so you won't go to the Labor Commission. The record is silent, however, with respect to whether Lara ever received a partial payment, calculated to cover a portion of his conceivable vacation pay claim, consistent with Curiel's suggestion. (2) Conclusions General Counsel's representative seeks a determination herein that Lara was constructively discharged. His ratio- nale, with respect thereto, can be recapitulated briefly. He suggests that the so-called "tirade" which Respondent's president directed against Lara reflected a "total reversal" of management's disposition to consider him a valuable and productive worker, previously demonstrated; that Thompson's lecture was deliberately calculated to generate "fear and outrage" within Lara, sufficient to prompt his resignation then and there; that Thompson's motive for harassing Lara derived from his hostility toward Lara's union activity; that his harassment did, finally, persuade Lara to resign; and that Respondent's discriminatorily mo- tivated tactic should, therefore, be considered a construc- tive discharge, violative of law. General Counsel's contention-that "what otherwise might appear to be bizarre conduct on Thompson's part" really derived from antiunion considerations-rests, pri- marily, on Maria Gonzalez' testimony; she purported to recall a prior conversational declaration, chargeable to Cu- riel, that Respondent's president had belatedly discovered Lara's active union involvement, and had determined to force his resignation. Specifically, Mrs. Gonzalez, while a witness, testified : That on Sunday, August 25, Curiel, who had previously been friendly with Jose Gonzalez, Sr., and his wife, telephoned the latter, that he declared his desire to tell her what was happening within Respondent's plant; that he then mentioned Assistant Plant Manager Ostlund's recent discharge; and that his telephonic declaration fur- ther compassed the following report: The next one to be fired is Francisco Lara. Mr. Thompson found out that he was involved in the Union things and he really regrets very much having given the letter-work letter so that he could get his papers but now he can't get it back, they can't take it back. He is going to find a way in which he can make him quit so that he won't have to hire him back. According to Maria's testimony, she relayed Curiel's hear- say report-with respect to President Thompson's pros- pective ploy-promptly to Irma Lara, Francisco's wife. The latter, while a witness herein, made no reference to Maria Gonzalez' purported communication. Francisco Lara's testimony, however, reflects his recollection, inter alia, that his wife had communicated Maria's report. Thus-with respect to General Counsel's contention that President Thompson's so-called "abusive" treatment of Lara had prompted the latter's resignation-he (General Counsel) cites, within his brief, Lara's testimony that: My wife told me that Maria Gonzalez had called her . [We're] talking about why I left . . . Well, I didn't have any other choice. I knew that they were going to fire me . . . That day he approached me angrily, and I thought, well, it's probably true that they're going to fire me. That's when I left. Substantially, therefore, Lara testified that his "quit" deci- sion was prompted by President Thompson's angry state- ments, which-mindful of his wife's recapitulation of Maria's report, with respect to Curiel's hearsay communi- cation-he construed as probative of Respondent's pur- pose to discharge him or provoke his resignation. With Maria Gonzalez' testimony regarding Curiel's com- munication taken as datum-consistently with General Counsel's contention-the present record, in my view, nev- ertheless provides something less than sufficient support for a determination that Lara was constructively dis- charged. Assuming, arguendo, that Respondent's assistant plant manager did-during a conversation with the Fresno plant's former sewing room supervisor-describe the pur- ported determination of Respondent's president to "find a way" whereby Lara could be persuaded to resign, I con- clude that Thompson's critical lecture-construed with due regard for its context and content-did not constitute a deliberate ploy calculated to render Lara's working con- ditions intolerable, or to generate "fear and outrage" suffi- cient to prompt his resignation, then and there. (In this connection, I note-first-the present plant manager's de- mal that he gave Mrs. Gonzalez a conversational report regarding President Thompson's purported plan to force Lara's resignation. Indeed, Curiel went further; while a witness, he denied having spoken to Maria, with regard to any subject whatsoever, following her July 4 discharge. Since Mrs. Gonzalez' testimony-taken at face value- purports to reflect a clear concession, proffered by a con- ceded member of Respondent's management team, that President Thompson was planning to provoke Lara's resig- nation for statutorily proscribed reasons, the present plant manager's testimonial denial , with respect thereto, raises a credibility question. The conflict noted-which General Counsel calls "direct and inescapable" within his brief- could conceivably be considered critical. General Counsel's representative has therefore cited record testimo- ny, within his brief, which-so he contends-clearly re- veals Curiel's self-contradictions and sometimes inconsis- tent recollection, coupled with a narrative which reflects his lack of fundamental honesty. Detailed findings, bot- tomed upon General Counsel's presentation with respect to Curiel's claimed witness-chair gaffes and demonstrated lack of probity, would extend this decision-already too long-unduly; suffice it to say that, persuaded by these considerations, I cannot credit the present plant manager's denial of Mrs. Gonzalez' testimony with regard to their August 25 conversation. My conclusion that Maria's testi- mony merits credence, however, connotes no favorable de- termination with respect to her testimony's probative worth. Within my view, Mrs. Gonzalez' recapitulation of Curiel's vicarious "admission" cannot be considered sub- stantial, reliable, or probative evidence with respect to President Thompson 's state of mind, purpose, or back- ground motivation, when Lara was being reprimanded. CENTRAL CASKET CO. 389 Compare Ben Hur Produce, 211 NLRB 70 (1974) in this connection. Her testimony reflects "double" hearsay; clearly, Cunel's report-which purportedly recapitulated President Thompson's declaration of purpose-could only have been bottomed upon some prior conversation with Respondent's president. When a purported hearsay declar- ant-herein, Respondent's present plant manager-has, al- legedly, proffered statements which merely recapitulate someone else's prior declaration, that hearsay declarant's reportorial reliability , sometimes, must be taken on faith; herein, however, Curiel's reliability has been trial tested. With respect to several other matters about which he testi- fied, I have credited General Counsel's witnesses, rather than his proffered recollections . Further, I have noted his self-contradictions and lack of consistency, together with his demonstrated readiness-in one specific instance-to proffer a deliberate misrepresentation when he considered such action necessary to compass a desired result . For the very reasons, cited by General Counsel within his brief, which have persuaded me that Cunel's credibility, with re- spect to various other matters, may reasonably be doubted, I question the reliability of his hearsay report regarding President Thompson's purported plan to stimulate Lara's resignation.) My conclusion-despite Mrs . Gonzalez' report with re- gard to Curiel's statements-that Thompson's determina- tion to reprimand Lara, personally , reflected no deliberate tactic calculated to generate a resignation , rests upon sev- eral grounds . First: I note that Lara was, during this late August period, Respondent's sole metal department work- er with seniority, known experience , and proven proficien- cy. (On May 30, when Complainant Union's campaign be- gan, there were nine metal department workers. Between that date and July 9, Respondent hired one worker, but sustained two terminations . On July 28 and 30, seven metal department employees were separated from Respondent's payroll under circumstances which need not be detailed; certain voluntary comments, proffered herein by counsel, suggest-but do not prove-that these seven workers may have been taken into custody by U.S . Immigration Service representatives, as presumptively illegal alien residents. Following this massive depletion of Respondent's metal department complement , Lara was the sole worker left. Be- tween July 31 and August 26, nine new workers were hired; two of these were, however, terminated within a short time. By August 28, therefore , Respondent's metal department crew consisted of Curiel, then the designated department's head, Lara, and seven newly hired trainees.) With matters in this posture , I consider it highly unlikely that Respondent's president would have undertaken , delib- erately, to "engineer" his concededly most qualified worker's departure . Second: The record, considered in to- tality, reflects President Thompson 's previously favorable disposition toward Lara particularly with regard to his compensation and job tenure . He (Lara) had received two June 1974 pay raises; concurrently with the second, he had been given "training" responsibilities. Credible testimo- ny-not previously noted within this Decision-reveals that during the following month , while Curiel was on vaca- tion, Respondent's president had sanctioned the payment of three weekly bonuses, ($30), which Lara had claimed as really earned, though departmental production records suf- ficient to validate his claim could not be found . Further, sometime during July's latter days, Thompson had given Lara a letter-for presentation to some United States con- sular representative-declaring that he was currently in Respondent's hire, and that he would retain his position for whatever period he (Lara) desired should his United States reentry, with legal immigrant status, be permitted. The likelihood that President Thompson shared Curiel's previously gained knowledge with regard to Lara 's union sympathies, within my view, must be considered great; with due regard for the present record, considered in totali- ty, I conclude that he did, indeed, share his subordinate's knowledge. Nevertheless, while presumptively knowledgea- ble with respect to Lara's union involvement , Thompson had previously sanctioned two hourly rate raises, together with several weekly bonus payments specifically bottomed upon his readiness to credit Lara's unsupported work that such bonuses were deserved ; further, he had provided Lara with a written declaration that his job tenure could be con- sidered secure. Third: No persuasive evidence-proffered to describe a supervening development during August 1974 which could have generated, within Respondent 's presi- dent, some special animus focused upon Lara particular- ly-can be found within this record . Fourth: President Thompson's critical lecture, in any event, cannot-reason- ably-be considered, within my view, harassment or verbal abuse sufficiently sharp to render Lara 's working condi- tions intolerable . Compare Mary Pupillo d/b/a Marie An- toinette Manufacturers, 193 NLRB 396, 397-399 (1971), in this connection. He was merely told: (1) That complaints or queries which he might wish to pursue should be pre- sented first to his particular department head, rather than supervisory personnel within a different department; (2) that, when dealing with new, relatively inexperienced workers, he should refrain from strongly presented verbal chastisements, violent gestures, or comparable conduct which might make such workers feel badgered, embar- rassed, or intimidated ; and (3) that, should his personal production-thereafter-fail to satisfy Respondent's nor- mal daily 480-point production standard consistently, he would no longer receive $ 10 weekly bonuses. True, Respondent's president may have, indeed, reprimanded Lara vehemently ; his cautionary directives may, likewise, have been grounded in some misconception with regard to Lara's true production record or his in-plant behavior. The record will not, however , support a determination-consis- tent with General Counsel's contention-that President Thompson's lecture and directives were totally baseless, contrived, or deliberately calculated to generate "fear and outrage" sufficient to prompt Lara's resignation . The sev- eral behavioral standards which Respondent 's president di- rected Lara to follow were consistent with sound manageri- al practice ; with respect to production, Lara was told, so I have found, that he would merely be required to satisfy a generally applicable standard, prerequisite to his continued receipt of weekly bonus payments . Compare Kisco Compa- ny, Inc., 192 NLRB 899 ( 1971). Thompson's requirements, in my view, were neither unreasonable nor burdensome. Further, this is not a case, like Tudee Products, Inc., 176 NLRB 969, 972, 975 ( 1969), wherein pressures have been 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applied, deliberately, bottomed upon a demonstrated oppo- sition to unionism, and a purpose to retaliate against union supporters. Fifth: When reprimanded, Lara-though he may have protested that President Thompson's variously professed concerns lacked factual justification-did not, so far as the record shows, react fearfully, angrily, or resent- fully while in Thompson's presence. The latter, however, tried no further tactic reasonably calculated to provoke Lara's resignation. He was not threatened with possible discharge; President Thompson never even suggested that his performance record, or compliance with managerial di- rectives, would be closely monitored thereafter. Cf. N.L.R B. v. Tennessee Packers, Inc, Frosty Morn Division, 339 F.2d 203, 204 (C.A. 6, 1964; Zinke's Foods, Inc, 185 NLRB 901, 905-907 (1970), in this connection. Thomp- son's failure to press Lara, with suggestions of possible fu- ture harassment, promises of surveillance, or threats of dis- charge persuasively negates General Counsel's contention, in my view, that his lecture constituted a calculated strata- gem. I reject, out of hand, General Counsel's supportive sug- gestion-not previously noted in this Decision-that Presi- dent Thompson's hostility toward Lara, because of the latter's union sympathies, may be deduced retrospectively from a subsequent declaration which he purportedly made to Lara's wife, that Francisco had been denied his vacation pay, inter alia, because he had signed Complainant Union's designation card, and had likewise distributed union cards. (When summoned as General Counsel's final rebuttal wit- ness, on the very last day of the reopened hearing herein, Mrs. Lara testified: That during September 1974 several days after Lara's departure for Mexico, she had asked President Thompson why her husband had not received his vacation check; that Thompson had declared Francisco had not been paid, "because he had left, and that Lupe [Curie]] had reported that he had made his points [sic] and that he [Francisco] had signed a union card" and likewise distributed union cards. Mrs. Lara had then queried Respondent's president-so she testified-with respect to why he was taking reprisal against Francisco Lara solely when Curiel, together with "all the other" women workers, had been at Complainant Union's meeting; she purported- ly recalled Thompson's reply that he "knew all about" the situation.) Careful consideration-bottomed upon Mrs. Lara's wit- ness-chair demeanor, plus a detailed record review-per- suades me that her last minute testimony, with respect to the matter now in question, reflects merely a belated fabri- cation. The testimonial record shows that Mrs. Lara had spoken with Regional Office representatives- presumably for the first time-on November 19, following her discov- ery that she herself had been terminated. When asked, while a rebuttal witness herein, whether she had then told Michael Gonzales, a Regional Office representative- whose capacity to speak and comprehend Spanish seems to be conceded-what President Thompson had previously said to her, during their September talk regarding her husband's vacation check, Mrs. Lara declared, "I believe I told him [Michael Gonzales] everything that had hap- pened." Her initial witness-chair appearance, thereafter, on December 4, 1974, followed a recess during the first hear- ing. Before taking the witness stand, she had, so the record shows, conferred, once more, with General Counsel's legal representative. Her testimony with regard to their Decem- ber 4 conference-proffered during cross-examination while she was testifying as General Counsel's final rebuttal witness-followed a question by Respondent's counsel spe- cifically with respect to whether she had, then, told General Counsel's representative about her prior September con- versation with Respondent's president. When so queried, Mrs. Lara replied that, "I told them. [General Counsel's representative and his interpreter.] When I talked to them, I told them everything that had happened, all about me." The present record nevertheless shows that Mrs. Lara, when she subsequently took the witness stand for the first time on December 4, was never questioned about her prior September 1974 conversation with President Thompson; further, it shows that she volunteered no testimony with respect thereto. With matters in such a posture , I can mere- ly conclude that-while telling everything-she then had nothing to report about a September conversation with Respondent's president. I note, further, that Mrs. Lara's final testimony in rebuttal-wherein she belatedly purport- ed to recapitulate President Thompson's September refer- ence to her husband's production "point" record-reflects a disconnected, nonrelevant remark, which Respondent's president would hardly have been likely to make within the context of their purported conversation. Likewise, I note Lara's testimony that-following his return from Mexico- he himself had had a September 11 conversation with Cu- nel, during which he had questioned the latter regarding his failure to receive a vacation check. If Mrs. Lara had previously been given three stated reasons for Re- spondent's decision to withhold the check, her husband would presumably have been told, following his return, about Thompson's comments; thereafter, Francisco Lara's September 11 query would have been repetitive and super- fluous. Finally, I find that Respondent's president would hardly have been likely to concede-with unfair labor prac- tice charges pending-that any decision chargeable to him had been motivated by a worker's union sympathies. I con- clude, therefore, that Mrs. Lara's purported last-minute recollection-with respect to President Thompson's con- ceded knowledge of her husband's union activities, and his presumptive antiunion motivation for withholding a vaca- tion check-merits no credence. One final word: With respect to Lara's conceded resig- nation, General Counsel's final contention, previously not- ed, derives from a relatively straightforward rationale. He has suggested-within a brief-that: [T]his case depends upon whether Respondent's har- assment of Lara was motivated by a hostility toward Lara's Union activity. If Respondent's treatment of Lara was so motivated, and Lara was prompted to quit as a result of that harassment, then it follows that Respondent's discriminatory tactics amounted to a constructive discharge. . . . Previously within this decision, however, I have found: First, that record testimony-which I have considered sub- stantial, reliable, and probative-will not support a deter- mination that President Thompson's decision to reprimand CENTRAL CASKET CO. 391 Lara derived from hostility, or from some purpose of repri- sal, bottomed upon his union sympathies. Second, that President Thompson's critical lecture-though presumably delivered with some vehemence-cannot, reasonably, be considered "harassment" herein, since his directives, taken at face value, were consistent with sound managerial prac- tice, or suggested-merely-that Lara could lose bonus payments, thereafter, should he fail to satisfy a generally governing production standard. With these factual deter- minations taken as data, the fact that Lara's reaction to Thompson's lecture may have prompted his resignation provides no persuasive justification for calling that lecture's consequence a constructive discharge. General Counsel's presentation, however, does suggest a further contention-that Lara, mindful of Curiel's report with respect to President Thompson's purported plan to force his resignation, could reasonably have construed Thompson's lecture as calculated "harassment" which presaged his discharge, and that his (Lara's) logically con- sequent "fear and outrage" prompted his quit. However, this suggestion-that Lara's subjective personal reaction to President Thompson's August 28 directives, bottomed upon Mrs. Lara's hearsay report with respect to what Assis- tant Plant Manager Curiel had told Maria Gonzalez previ- ously, would warrant a Board determination that he quit because his position had been rendered intolerable-fails to persuade. Compare Franklin Stores Corporation and its Wholly Owned Subsidiaries, Barkers of Willimantic, Inc., and Barkers of Wallingford, Inc., 199 NLRB 52, 61-63 (1972) (Paulette Lucas), in this connection. Although Curiel's statement, purportedly descriptive of Thompson's purpose to force Lara's resignation, certainly could reason- ably have been considered a vicarious "admission" by a management representative , chargeable to Respondent herein-whether or not the company president's intentions had been described therein correctly-Lara's concededly subjective determination, that his department head's re- layed comments "probably" presaged his discharge , cannot be considered warranted. First- It should be noted that Lara learned of Curiel's declaration indirectly, through a chain of hearsay reporters, rather than directly-himself- from Respondent's assistant plant manager . Thus, Lara's presumptive belief-that his wife's final recapitulation had correctly reflected Curiel's prior declaration with respect to Respondent's retaliatory purpose-could only have been derived from his personal faith and trust regarding her re- portorial reliability; without persuasive proof, however, that Curiel's declaration had been twice correctly recapitu- lated, by Maria Gonzalez and later by his wife, Lara's claimed "knowledge" that Respondent's management rep- resentatives were currently planning his "discharge" can hardly be considered warranted. Second- In that connec- tion I note-further-that Lara's testimony, taken at face value, actually reflects his prejudicial misconstruction of Curiel's purported declaration. According to Mrs. Gonza- lez' recollection, which I have credited against Curiel's de- nial, Respondent's assistant plant manager had merely re- ported that Thompson was "going to find a way in which he can make [Francisco Lara] quit" whereby the latter's possibly consequent reinstatement could be forestalled. While a witness, however, Lara declared his belief, based upon what he had heard , that "they [Respondent's man- agement representatives] were going to fire" him. Subjec- tive reactions bottomed upon such a serious misconception could not-in my view-transform President Thompson's August 28 reprimands and cautionary directives regardless of the vehemence with which they may have been prof- fered, into calculated "harassment" statutorily proscribed. f. Margaret Huerta (1) Recall and discharge Previously within this Decision reference has been made to the fact that Huerta, following her July 10 layoff, togeth- er with Norma Flores, filed 8 (a)(1) and (3) charges against Respondent herein on July 16. (Subsequently-following the Regional Office filing of Complainant Union's August 26 amended charge wherein Huerta and Flores were desig- nated as 8(a)(3) discrimmatees together with others previ- ously terminated-the former's separate July 16 charge was withdrawn.) When Huerta thereafter visited Respondent's plant, pre- sumably on Friday, July 19, to collect her final paycheck, she purportedly noticed-so her testimony shows-that Respondent had a new "Anglo-Caucasian" worker per- forming various trim department tasks. When queried with regard to her reaction, Huerta testified that she had filed a complaint of employment discrimination with the State of California Fair Employment Practice Commission. Her credible testimony with respect thereto, inter aka, reads: First, when I saw that guy working there in my depart- ment where I was working and then my husband told me later that they had hired white people. And I inves- tigate what I could do about it. And Norma and I, we went to the office and we went to the wrong office. They told us where to go . . . And they give us that office where we went [emphasis supplied]. Within her FEPC complaint, which the State Commission docketed on Friday, July 19, Huerta charged Respondent with a discriminatory layoff or termination, bottomed upon her Mexican ancestry. Flores likewise filed a charge. The State Commission interviewer, presumably, drafted hers with precisely parallel language; Flores' charge, how- ever, was not really docketed until Tuesday, July 23, be- cause of circumstances never detailed for the present rec- ord. Thereafter, on Friday, August 23, Huerta again visited Respondent's Fresno plant, presumably-so she testified- to pick up her husband's paycheck. Respondent's presi- dent, then, handed her a letter-which he had previously prepared for dispatch by registered mail-requesting her return to work. Huerta promptly agreed. Subsequently, however, she notified Respondent that a prior commitment would preclude her return on Monday, August 26; with permission, she resumed work in Respondent's sewing room the following day. Previously, sometime during Thursday or Friday, Au- gust 22 or 23, President Thompson had-so I find-confer- red with Rachel Borunda, who had replaced Maria Gonza- lez as Respondent's sewing room supervisor , regarding his determination that Huerta and Flores should be recalled. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to their conversation, particularly regarding Huerta's recall, Borunda's testimony, which I credit in this connection, reads as follows- Q. [By Mr. Koslow] Let's take Margaret first. Did you have a conversation with Mr. Thompson about Margaret? A. Yes .. . Q. Could you tell us what was said in the conversa- tion? A. Yes. He wanted to have Margaret fired, and he wanted me to find a way-he wanted me to find fault with her, and I said, "Okay." Q. Did he give you any explanation? A. Yes, because she had filed a suit against him for discrimination for being laid off before. Q. [By Mr. Magor] In your direct examination you testified that Bill Thompson told you that Margaret had filed a suit against him, do you recall that testimo- ny? A. Yes, I do . . . . Q. Were you aware of the fact that both Margaret Huerta and Norma Flores had filed a complaint of unemployment discrimination with the State of Cali- fornia? A. Only of Margaret, not Norma ... . Q. You did talk to an investigator of the Fresno office of the Fair Employment Practices Commission, did you not, with respect to that complaint? A. Yes .. . . Q. Did he tell you that Margaret had complained that she was discharged because she was Mexican? A. Yes ... . Q. [By Mr. Magor] Did you ever discuss the fact with Bill Thompson that Margaret had filed this com- plaint with the FEPC? A. Did I ever discuss it [?] [It] was dust what he told me. Q. Did he tell you the charge was ridiculous be- cause everybody working there except you [sic] was Mexican? A. That is what he told me. Borunda's further testimony warrants a determination- which I make-that during their conversation President Thompson likewise showed her a document, briefly, which he verbally designated as Huerta's FEPC complaint. While a witness, President Thompson conceded that- during their conversation, when Borunda was told Huerta would be recalled-he had, inter alia, mentioned Huerta's FEPC suit, which he had characterized as ridiculous. Fur- ther, he conceded that Borunda had then been directed to "watch [Huerta's] work" closely, to determine "how she was fitting in" with Respondent's organization. He denied, however, that Respondent's sewing room supervisor had been told to "find fault" with Huerta's work, or that she had been directed to discharge Huerta for any reason. Within my view, Thompson's testimony-so far as it may contradict or deviate from Borunda's reluctantly proffered recollections-merits no credence. On Friday, August 30, during her third day back at work, Huerta was notified of her discharge by Respondent's sewing room supervisor. While a witness, Borunda professed a partial failure of recollection with re- gard to their final conversation. However, Huerta's testi- mony with respect thereto, which I credit, reads as follows: She [Rachel Borunda] went up to me. I was in the cutting room. She said: Margaret, she say, you're fired. And I thought, at first, that she was joking. I said: Why? She said: You're fired. I said: Well, what reason? She said: You're slow. And then, I ask her: Who told you to fire me? Did Mr. Thompson tell you to fire me? She said: Yes. And I said: Why? I cannot answer you any more questions, she said, that's all. And she turned around and walked out. According to Huerta, Borunda had previously told her- during a breaktime conversation following her recall, with two other seamstresses present-that she [Huerta] was going to be discharged; Borunda-so Huerta testified- had claimed, however, that she did not know when such action would be taken. Further-so Huerta testified-her supervisor had reported: That Respondent proposed to "do the same thing" with Florea, rehiring and then dis- charging her; that she [Borunda] did not know why such action was being taken; but that Flores would shortly be receiving a registered recall letter. While a witness, Borunda could not recall such a pre- discharge conversation. With due regard for the record considered in totality, I would, if it were necessary, find Huerta's recapitulation of Borunda's predischarge com- ments worthy of credence. Since Huerta's testimony in this particular connection, however, provides no "essential un- derpinning" for whatever factual determinations may here- in be required no definite conclusions with respect thereto need be drawn (2) Conclusions President Thompson claims that Huerta was discharged by Respondent's sewing room supervisor-pursuant to a decision which the latter had, herself, reached-because, following her recall, the seamstress had not performed ade- quately. Denying that he had ever directed Borunda to find some purported or pretextual ground for Huerta's termina- tion, Thompson declared that he had merely requested his sewing room supervisor to "watch" the seamstress, follow- ing her return. Upon this record, however, a determination seems clear- ly warranted that Respondent's presently proffered justifi- cation for Huerta's discharge merits characterization as pretextual; I so find, for several reasons. First: Huerta tes- tified, credibly and without contradiction, that she had re- ceived no reprimand or warning, with respect to her work, before her termination. Second: While a witness, Borunda did claim that she had proffered a nondetailed derogatory report, with regard to Huerta's performance, during a con- versation with Respondent's president. She did not testify, however, that Huerta's work had actually deteriorated; nor did she testify that Huerta had, been failing to satisfy Respondent's presumptive production standards. Mindful CENTRAL CASKET CO. 393 of Borunda's failure to proffer such claims, I find-consis- tently with General Counsel's contention-that, when she allegedly reported to President Thompson that Huerta was not "cutting it" with respect to work performance, she was simply complying with his prior directive, instructing her to "find fault" with Respondent's newly recalled seamstress. Third: Respondent's president has claimed-con- trariwise-that he merely suggested Borunda should watch Huerta's work, declaring that her supervisorial decision with regard to Huerta's performance, and continued ten- ure, would be determinative. Assuming, arguendo, that this was what he said, I would find Thompson's purported di- rective-which clearly conveyed a suggestion that Huerta should, from the outset, be singled out for close supervi- sion-wholly incompatible with his further testimonial concessions regarding her previously demonstrated profi- ciency and prior work record. With respect thereto, Respondent's president testified: Margaret was an exceptional seamstress. She could do more work than any other employee in that sewing room. She was much better than Irma Lara; she was faster and more skilled than Delores Conde; and she was much more intelligent than Maria Gonzalez. She was a very capable person . . . . Now, with Margaret Huerta, we have an employee who was very, very ca- pable, who understood the jobs and was a seamstress 15 years before she came to work for us. So she knew these jobs as a seamstress and she picked up casket work very, very well. Since Respondent's president, concededly, held such a high opinion with respect to Huerta's capabilities, a suggestion by him, a priori, that her work performance should be closely checked, merely for the purpose of determining whether she was "fitting in" with Respondent's organiza- tion, would have been completely gratuitous and lacking in rational justification; as previously noted, I conclude that Thompson's denial-with respect to Borunda's testimony that she was really directed to find some "fault" with Huerta's work, sufficient to justify a discharge, merits no credence. Fourth: Irma Lara was the sole witness, herein, whose testimony reflects direct observations with respect to Huerta's performance. In that connection, she testified, (a) that she had been a seamstress in Respondent's hire throughout Huerta's dual period of service; (b) that her work station had been close to Huerta's, so that she could, and did, regularly observe the latter's performance; (c) that she had, particularly, noted Huerta's work because she was proud of her own speed as a seamstress, and had deliber- ately sought to match Huerta's pace, and (d) that Huerta had-both before her July 10th termination and during her postrecall period of service-worked "very" rapidly, with her fellow seamstresses "hurrying to keep up" comparable performance records. Though I have-previously in this Decision-suggested some reservations with regard to Mrs. Lara's credibility, her testimony's reliability, in this partic- ular connection, has not been challenged or disputed. Fifth: Assistant Plant Manager Rodriguez and Valerie Massengale, Respondent's plant secretary, both testified that they had separately questioned Borunda, repeatedly, with regard to Huerta's performance, following her recall, and that Borunda had characterized Huerta's work as less than satisfactory. Their testimony provides further support for my determination, noted, that Respondent's presently claimed justification for Huerta's discharge merits rejection as pretextual. Consistently with General Counsel's sugges- tion, I find it highly "improbable" that Massengale, who functioned solely in clerical capacities, with no supervisory responsibility, had any right or legitimate reason to inquire with regard to a sewing room worker's daily performance. And Rodriguez' persistence in questioning Borunda, like- wise, persuasively suggests that she was merely implement- ing a ploy calculated to buttress Respondent's subsequent- ly claimed rationale for Huerta's termination. (During this period, following Respondent's dismissal of Jose Gonzalez, Sr., President Thompson had been functioning as his firm's Fresno plant manager. Whenever his varied business inter- ests, however, had precluded his physical presence within Respondent's Fresno plant, Rodriguez had been function- ing as his designated surrogate. Curiel, who was subse- quently designated Respondent's plant manager, did not receive his promotion, formally, until some time during October, thereafter.) Rodriguez proffered no explanation when queried- while a witness-with respect to why she had questioned Borunda regarding Huerta's performance, particularly, but had raised no comparable questions relative to the perfor- mance records of Respondent's other sewing room work- ers. A conclusion seems clearly warranted, therefore, that Rodriguez' and Massengale's queries were actually calcu- lated to prod Borunda, reminding her to proceed with her required role in President Thompson's pretextual "dis- charge" strategem; I so find. Previously I have, however, found that Respondent's president harbored no particularized "animus" directed to- ward Huerta, because of her participation in Complainant Union's representation campaign. Therefore, assuming, ar- guendo, that he may have been personally disturbed by Huerta's July 16 8(a)(1) and (3) charge, I cannot follow General Counsel's presumptive contention that, ergo, her rehire and subsequent discharge derived from a purpose of reprisal, bottomed upon her unfair labor practice charges. Huerta had previously been separated, pursuant to a re- duction in force. Her recall and final termination-for a patently pretextual reason-could hardly have been calcu- lated to buttress Respondent's previously defined and pre- sumptively valid defense, particularly with reference to her July 10 layoff. I am satisfied, however, that Huerta was really recalled and promptly terminated, pretextually, because of her pro- tected concerted activity, when Flores and she jointly, filed State of California FEPC charges. Respondent's president conceded as much-substantially-when, as I have found, he coupled a reference to Huerta's state complaint with his directive that Borunda should "find fault" with Huerta's work, following her recall. (Since Respondent's work force, throughout this period, had compassed Spanish-surnamed workers, primarily, Huerta's and Flores' complaints of dis- crimination for ethnic reasons may well have been base- less; nevertheless, Respondent's president, so I find, pat- ently considered a countermeasure, reasonably calculated to forestall the possibility of some adverse state determina- 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, necessary. Clearly, Huerta's putative recall following her July 10 layoff, coupled with her subsequent termina- tion for purported slowness, would be reasonably calculat- ed to defuse and demolish her state claim, that she had previously been subjected to discrimination because of her Mexican ancestry.) Whenever a Respondent's true motive for a challenged discharge must be determined-which, in this case, would require the probing of President Thompson's state of mind-direct evidence which is not self-serving will seldom be available. In such cases, self-serving declarations by management representatives can hardly be considered conclusive; triers of fact, therefore, may "infer" their true motives from the total circumstances proved. Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966). As Circuit Judge Duniway noted therein: If [the Trial Examiner-now Administrative Law Judge] finds that the stated motive for a discharge is false, he certainly can infer that there is another mo- tive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surround- ing facts tend to reinforce that inference. In this case, then, I find General Counsel's suggested "al- ternative" contention-that Huerta's termination was ex- clusively a consequence of her having filed a State of Cali- fornia FEPC complaint-fully warranted, upon the present record. That Huerta and Flores were engaged in conduct "for the purpose of . . . mutual aid or protection" when they jointly determined to file their state complaints cannot be doubted. Advance Carbon Products, Inc., 198 NLRB 741 (1972); cf. Washington State Service Employees State Coun- cil No. 18, etc., 188 NLRB 957, 959 (1971); Mason and Hanger-Silas Mason Co., Inc., 179 NLRB 434, fn. 1 (1969); Tanner Motor Livery, Ltd., 148 NLRB 1402, 1403-04 (1964), remanded 349 F.2d 1 (C.A. 9 (1965) ), reaffd. 166 NLRB 551, enfd. 419 F.2d 216, 218 (C.A. 9, 1969), in this connection. Likewise, a determination that Huerta and Flores were, jointly, pursuing a concerted "activity" statu- torily protected cannot be gainsaid herein. Advance Carbon Products, Inc., supra, Mason and Hanger-Silas Mason Co, Inc., supra at 439-440; cf. Detroit Forming, Inc., 204 NLRB 205, 212-213 (1973); Gates Air Conditioning, Inc., 199 NLRB 1101 (1972); Walls Manufacturing Company, Inc., 128 NLRB 487 (1960), remanded on other grounds 299 F.2d 114 (C.A.D.C., 1962), 137 NLRB 1317 (1962); Texas Natural Gasoline Corporation, 116 NLRB 405, 406, 414 (1956), enforcement denied 253 F.2d 322 (C.A. 5, 1958). See further, Oklahoma Allied Telephone Company, Inc., 210 NLRB 916, fn. 1 (1974) (last paragraph), in this connec- tion. The fact that Huerta and Flores may have been press- ing mentless claims provides Respondent with no exculpa- tion. In Mushroom Transportation Co., Inc., 142 NLRB 1150, 1158 (1963), this Board noted that: The "wisdom or unwisdom of the men; their justifica- tion or lack of it" N.L.R.B. v. Mackay Radio and Telegraph Co., 304 U.S. 333, 334), is irrelevant to the question of whether employees are engaging in pro- tected concerted activity. N.L.R.B. v. Washington Alu- minum Co., 370 U.S. 9, 16. Thus, without regard for whatever plans Respondent's president may have been making directed toward Flores' prospective recall and possible termination, I find that Huerta's August 30 discharge, following her rehire 4 days previously, constituted proscribed interference, restraint, and coercion, bottomed upon her prior exercise of rights statutorily guaranteed. g. Irma Lara (1) Mrs. Lara's discharge Irma Lara had been a seamstress in Respondent's hire since September 7, 1973; when the situation with which we are concerned herein developed , she was Respondent's se- nior sewing room worker. Like her husband, Francisco, Mrs. Lara had favored Respondent's unionization ; she had attended Complainant Union's May 30 Roeding Park meeting, and had signed a designation card there . Likewise, she had been present dur- ing Complainant Union's subsequent June 27 meeting at Jose and Maria Gonzalez' residence. (Kathleen Rodriguez and Rachel Borunda, who later became Respondent's trim department manager and sewing room supervisor, re- spectively, had likewise attended Complainant Union's first Roeding Park meeting . Curiel, then Respondent's met- al department manager, had concededly visited with Jose Gonzalez, Sr., while Complainant Union's business repre- sentative was meeting with Respondent's workers on Gon- zalez' patio; while there, he had-so I find-seen Mrs. Lara, and had greeted her.) Mrs. Lara's testimony-which I credit in this connection-reveals further that, while Complainant Union's representation campaign was in progress, she had "often" spoken about Complainant Union with Rachel Borunda, together with her fellow sew- ing room workers. Sometime during September and October 1974, follow- ing the Regional Director's decision to declare the result of Complainant Union's August 23 representation vote void, but while Complainant Union's charges herein were still being investigated, Respondent's president had several conversations with Massengale , who was then his Fresno plant secretary, during which Irma Lara's name was men- tioned. With respect thereto, Massengale, whom Respon- dent had subsequently discharged several months before the reopened hearing herein convened , testified as follows: Delores Conde had filed a suit against us saying that she deserved a week's worth of vacation pay, and it was [rumored?] when we were in the plant that Irma Lara had pushed Delores into filing the suit, and we were discussing it in the office, and Bill [Thompson] said that it looked like Irma was going to be a real troublemaker. Q. Did you ever hear any Central Casket manage- ment official discuss Irma Lara's involvement with the Upholsterers Workers union , or any other union? A. Yes . . . Bill Thompson . . . It seems like it was in October . . . Well, I was talking to him about how CENTRAL CASKET CO. 395 it seemed like every rumor that circulated through the company started out in the sewing room . And he said that he had never seen a casket company where the sewing room wasn't the main bit of gossip. And he said that if the union ever did start again at Central that it would come out of the sewing room , probably from Irma Lara, Delores Conde. President Thompson , when queried with respect to these matters, conceded that sometime during 1974's fall months, Delores Conde had indeed initiated proceedings before the State Labor Commissioner , claiming a week's vacation pay; that he had been "aware" there was "some sort of a rumor" that Conde had possibly been "pushed" by Mrs. Lara to initiate such proceedings ; that Curiel had "handled the matter" for Respondent herein ; and that he [Thompson] had, at some time, told Massengale Mrs. Lara was going to be a real troublemaker . (While a witness, Thompson declared, however, that his fall of 1974 charac- terization had "probably" been bottomed upon his recol- lection regarding a previous July conversation with Mrs. Lara during which she had blackguarded Cunel , describing him as responsible for Respondent 's union problems and calling him a poor departmental manager ; Respondent's president further proffered a witness -chair speculation that he had "proceeded to assume" comparable conduct, by Mrs. Lara, would continue.) Further, President Thompson conceded that, sometime during September or October 1974, he had commented to Massengale that casket factory rumors always seemed to start in their sewing departments ; that "gossip or rumors" would flourish wherever employees desired unionization; and that, should rumors start in Respondent 's sewing room, Mrs. Lara or Conde would "probably" be responsi- ble. Following the conclusion of her Friday, November 8 workday, Mrs. Lara left the Fresno area , bound for Mexi- co; she believed then-so the record shows-that she would be gone for a week . According to Mrs. Lara, she had-sometime during October's last week-requested and received permission from Borunda, Respondent's sewing room supervisor, for a week's leave of absence . (The record warrants a determination -which I make-that Mrs. Lara had previously taken a week's vacation with pay, following the completion of her first year's service. Since her Novem- ber departure, therefore, would presumably involve a fur- ther week's leave, without pay, management's permission was required. Mrs. Lara's testimony that Borunda granted the requisite permission-though proffered during the re- opened hearing herein when Borunda was no longer in Respondent's hire-stands without dispute . Curiel's testi- mony warrants a determination-which I make-that Respondent's department heads were authorized to grant workers a week's leave, upon request.) Mrs. Lara testified, further, that on Monday, November 4, she had likewise requested and received Curiel's permis- sion for her projected leave. The record, considered in to- tality, provides collateral support for Mrs. Lara 's testimony that Respondent's newly designated plant manager had given her the requisite permission; I find that he did. (I have noted that Curiel's testimony, in this connection, re- flects considerable vacillation . At one point, he conceded that Mrs. Lara had requested permission for a week's leave, but claimed he had told her he would have to check with Respondent's Oakland headquarters . While a witness, however, he could not recall whether he had , indeed, checked with Respondent's headquarters representative; he further claimed that he had never given Mrs. Lara a firm "yes" or "no" reply. Previously , during his direct testi- mony, Cunel had initially denied that Mrs. Lara had ever discussed a Mexican trip with him; then he recalled that she had once done so. Having so testified , he first professed a failure of recollection , nevertheless with respect to wheth- er Mrs. Lara had, during their talk, reported a prior discus- sion with Borunda regarding her request for leave ; subse- quently, he declared categorically that Mrs. Lara had never told him she had spoken with Borunda, or that Respondent's sewing room supervisor had given her per- mission to go. Finally, during cross-examination, Cunel re- iterated his testimony that Mrs. Lara had indeed requested a week's leave, but then went on to declare that she had not stated where she wished to go. With matters in this posture, Mrs. Lara's proffered recollections , previously noted, have been credited.) Sometime after Mrs . Lara's request for leave , but before she departed, Curiel and Respondent's president discussed her request ; Massengale was present. While a witness dur- ing the reopened hearing herein , Respondent's former plant secretary testified with respect thereto as follows: Well, Lupe told Mr. Thompson , Bill, about Irma wanting to go to Mexico for a week; and Bill thought on it for a minute and then he said "Well, tell her that when she returns from Mexico the company would consider rehiring her. Of course, we won't." Massengale testified further that, during a subsequent No- vember 8 conversation with Curiel in the Fresno plant's office, the latter had requested her to refresh his recollec- tion with respect to what Mrs. Lara should be told. Ac- cordingly to Respondent's plant secretary, she had recapi- tulated Thompson's full comment , previously noted, which Curiel had thereupon acknowledged. Testifying in Respondent's behalf, Cunel conceded that he had indeed had a conversation with Massengale , during which he had requested Respondent's plant secretary to repeat what President Thompson had previously told him to say. When queried with regard to Massengale 's reply, however, Curiel made no direct response . He merely prof- fered a witness-chair recollection wherein he recapped what President Thompson had purportedly told him direct- ly-namely, that , should Mrs. Lara leave pursuant to her personal decision, Respondent would "consider" her re- hire. With due regard for Curiel's seeming evasion and pro- fessed lack of further recollection , I find Massengale's tes- timony-with regard to both the Thompson -Curiel and Curiel-Massengale conversations recapitulated herein- worthy of credence. On Tuesday, November 12, Respondent sent Mrs. Lara a letter by certified mail; she was advised therein that if she did not return to work with a sufficient "medical" reason for her absence by Friday, November 15, she would be terminated . Mrs. Lara did not, however, see the letter dur- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the calendar week within which it was dispatched, since she was then out of the country. (Plant Manager Cunel, who signed the letter, testified that when he discussed its preparation and dispatch with Respondent's president they never considered the possibility that Mrs. Lara's reply, or her return to work by November 15, might not be possible. The record shows that Postal Service deliveries, with re- spect to Respondent's letter, were attempted both on No- vember 14 and 22, but met with no success; the letter was not "picked up" by Mrs. Lara until November 29.) Respondent's president-summoned by General Coun- sel when the reopened hearing herein convened-initially testified that he had not seen the November 12 letter now in question until a week or more following its preparation and dispatch. He denied authorship with respect to the let- ter; further, he denied any participatory role whatsoever with respect to its preparation. Finally, he testified that Mrs. Lara had already been terminated before he saw the letter. Later, however, when questioned by Respondent's counsel, Thompson professed a revived recollection; he conceded that, before the letter was sent, he had raised a query with respect to whether it had been dispatched-and that he had, in fact, read the letter and directed that it be modified, by the insertion of the word "medical" between the word- "sufficient reason" which the letter then con- tained. When asked whether he had told Respondent's plant secretary-while directing her to revise the letter in ques- tion-that he knew Mrs. Lara would not have a medical reason for her absence, Thompson conceded that he had done so. Mrs. Lara was in Mexico from November 9 through Monday, November 18. She returned, prepared to resume work, on Tuesday, November 19, which happened to be the date on which the original hearing in this case was first convened. (The record shows-as previously noted-that Mrs. Lara had sought, and believed that she had received, permission to be absent for 1 week, merely. However, pur- portedly because of problems connected with her motor car's condition, and because of delays encountered with respect to the processing of certain "papers" which had presumably motivated her trip, she could not return on schedule. Her testimony warrants a determination, which I make, that she sent word, with regard to her probably de- layed return, to Respondent through Pedro Banuelos, the firm's glue department supervisor, whom she had encoun- tered by happenstance that weekend. Banuelos, however, never delivered Mrs. Lara's message. The fact that she had missed a day's work, however, does not appear to have been significant with respect to her termination; I have concluded, consistently with General Counsel's contention, that Respondent's management had already taken steps deliberately calculated to generate a ground for her dis- charge on November 12, when Curiel's letter was prepared and dispatched.) Upon her return, Mrs. Lara noticed that her timecard was missing. She asked Borunda whether she had been discharged; the latter professed a lack of knowledge and referred her to Respondent's plant secretary. Later that day, Massengale, with Borunda functioning as her inter- preter, told Mrs. Lara that she had been terminated. She was directed to consult with Curiel, to learn the reason for her termination. Her subsequent conversation with Respondent's plant manager directly outside the courtroom within which this case was then being heard-which provided Mrs. Lara with no definitive word relative to Respondent's rationale for her discharge-has been noted previously. Conclusions Upon this record, a determination seems clearly war- ranted-consistently with General Counsel's contention- that Respondent's proffered rationale for Mrs. Lara's dismissal merits rejection as pretextual. The claim that she was terminated-specifically-because of her week's ab- sence from work, without permission and without a suffi- cient "medical" justification, simply cannot stand. Mrs. Lara was, so the record shows, given "permission" for a week's leave; Respondent's plant manager and Mrs. Lara's immediate supervisor further knew-so I find-that she had requested leave because she was planning a Mexi- can trip. (Alternatively- assuming, arguendo, that record proof with respect to Borunda's and Curiel's specific grants of permission could not be found -determination would still be warranted, in my view, that Mrs. Lara was given "reason to believe" she had such permission. Neither Borunda nor Curiel had warned or cautioned her that her prospective "absence" from work would be considered un- authorized; neither had protested, or sought to proscribe, her departure.) When apprised with respect to Mrs. Lara's projected trip, however, Respondent's president-so the record pre- ponderantly shows-conceived a stratagem pursuant to which her termination could thereafter be effectuated. Cu- nel was directed to inform her that, following her return, Respondent would "consider" her rehire; concurrently with this directive, Respondent's plant manager was told, nevertheless, that Mrs. Lara would not be permitted to re- sume her position. And thereafter, consistently with his de- clared purpose, President Thompson specifically directed Massengale to draft a letter wherein Mrs. Lara was notified that, without a sufficient "medical" reason proffered to justify her absence, she would be terminated. Concededly, when he did so, Thompson knew that Mrs. Lara would not be able to provide the required medical justification. Fur- ther, Mrs. Lara was given a time limit within which to reply which Respondent's management representatives had good reason to believe she would not be able to satisfy. One question, however, remains: Wherein lay Respon- dent's motive? General Counsel contends, of course, that Mrs. Lara was terminated because of her union sympathies. He notes: First, that Respondent's various department heads-together with the firm's president- knew she had been, and presumably still was, a pro-union worker; second, that President Thompson's various Sep- tember and October 1974 comments with respect to Mrs. Lara's presumed behavior reveal his persistent belief that she might cause future "union" problems within Respondent's Fresno plant; third, that she was terminated, finally, upon pretextual grounds. These considerations-so General Counsel suggests-mandate a determination that CENTRAL CASKET CO. 397 Mrs. Lara's discharge was effectuated for discriminatory reasons, statutorily proscribed. Under well-established decisional doctrine, conclusions with respect to whether or not some particular discharge may properly be characterized as discriminatory must, nec- essarily, derive from a preliminary determination as to the respondent firm's true "underlying" reason for taking such action. And, though some lawful or nonproscribed cause for discharge may be available, that fact constitutes no de- fense whenever a worker has really been discharged be- cause of his prounion conduct. N.L.R.B. v. Ace Comb Com- pany and Ace Bowling Co., Division of Amerace Corp., 342 F.2d 841, 847 (C.A. 8, 1965), cited with approval Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966). When reaching determinations with respect to such cases, triers of fact need not consider the concerned employer's self-serving declarations conclusive; they may deduce his real motive from the total circumstances proved. Further, should they find a stated motive for dis- charge false, they may legitimately "infer" that the respon- dent employer really acted from some other motive. More- over, they can further deduce that the concerned employer's true motive is one which, because of its unlaw- ful character, he desires to conceal, whenever the particular discharge situation's factual context tends to reinforce such a deduction. Shattuck Denn Mining Corporation v. N.L.R.B., supra. The final qualification mentioned, howev- er, suggests a significant caveat which triers of fact must consider. Specifically, the relevant "surrounding facts" which General Counsel would rely on, to "reinforce" his suggested "inference" that a challenged discharge was real- ly motivated by the concerned employer's desire to dis- courage union activity, must be established by record evi- dence sufficiently substantial, reliable, and probative to warrant such a determination. Within numerous decisions which various courts of ap- peal have promulgated, this Board has repeatedly been in- structed: That the mere fact of some worker's participation in union activity, taken alone, constitutes no proof that his or her subsequent discharge was effectuated for that rea- son; that the mere fact that good cause for a discharge cannot be convincingly demonstrated provides no suffi- cient basis for a deduction-reflecting a trier of fact's 180- degree reversal-that the discharge derived from a statuto- rily proscribed motive; and that no such motive may, rea- sonably, be inferred when the record provides equal support for deductions inconsistent therewith . See Shattuck Denn Mining Corporation v. N.L.R.B., supra, at 468-469. In short, General Counsel cannot meet his burden, with re- spect to proving a discharge wrongfully motivated, with- out citing "something affirmative" which preponderantly supports his contention. Compare N L. R. B. v. Patrick Pla- za Dodge, Inc., 522 F.2d 804 (C.A. 4, 1975), in this connec- tion. Evidence which points equally in two directions points in neither and therefore cannot be relied on to satis- fy General Counsel's burden of proof. Herein, General Counsel had-in my view-persuasive- ly shown that President Thompson was moved by "ani- mus" rather than by sound business discretion, when he conceived the strategem pursuant to which Mrs. Lara was ultimately discharged. However, the complete rec- ord-considered with due regard for the "total circum- stances" proved-provides something less than preponder- ant support for a determination that President Thompson's hostility derived from strong "anti-union" feelings focused on the seamstress herein . First: I note that Mrs. Lara's par- ticipation in Complainant Union's representation cam- paign had actually been comparatively passive. She had been present during two preliminary union meetings; she had signed a designation card; and she had participated in several casual conversations during which Complainant Union's campaign was discussed. Second: The seamstress's conceded prounion sympathies had been manifested-so far as President Thompson knew-merely during June and July 1974 some 3 months previously. Subsequently, Com- plainant Union's August 23 representation vote had been voided, General Counsel's first complaint herein had been served, and Complainant Union's June 5 representation petition had been withdrawn. Respondent's president could conceivably have been considering the possibility that Complainant Union's representation bid might be re- vived subsequently; the record, however, provides no sub- stantial, reliable, or probative basis for a determination, in my view, that he really considered such a revival, within the predictable future, likely. Compare States Steamship Company, 219 NLRB 1252 (1975), in this connection. With Complainant Union's campaign for representative status presumptively dormant, General Counsel's representatives cannot, in my view, claim-persuasively-that President Thompson still considered Mrs. Lara's termination neces- sary or desirable to forestall Respondent's unionization. Third: Though I have-previously in this decision-found Alex Gonzales' and Anastacio Gomez' terminations viola- tive of law, none of Respondent's subsequent terminations, challenged herein, have been found discriminatory because they were bottomed upon "anti-union" considerations. More particularly, Respondent has not been found "con- structively" responsible for Francisco Lara's termination. Having found that President Thompson did not deliber- ately harass Francisco Lara, to force his resignation for statutorily proscribed reasons, I consider it less than likely that he would have thereafter discriminatorily discharged Mrs. Lara, whose prounion sentiments had been less prom- inently manifested (True, Complainant Union' s second amended charge and General Counsel's amended com- plaint herein-with Francisco Lara belatedly designated therein as a discriminatory dischargee-had been filed on November 6, shortly before the situation with which we are now concerned developed. General Counsel' s representa- tives, however, have not contended herein that Mrs. Lara was "set up" for termination specifically in reprisal for Complainant Union's newly filed charge, or General Counsel's consequent complaint.) Certainly, General Counsel's presentation with respect to Respondent's purported "anti-union" motivation for Mrs. Lara's discharge could, conceivably, provide grounds for suspicion. Since the record, however, points "equally" toward another motive-which I would find beyond statu- tory proscription-General Counsel's contention that Respondent's seamstress was discriminatorily terminated for a statutorily proscribed reason cannot be considered preponderantly demonstrated. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Previously, in this Decision, reference has been made to President Thompson's conceded declaration that Mrs. Lara was considered a real "troublemaker" because she had, presumably, sparked Delores Conde's vacation pay claim. Her discharge-which may logically have derived from Thompson's resentment of her presumptive role as Conde's prompter-cannot, under such circumstances, be considered a termination for statutorily protected conduct. Concerted, it may have been-with Mrs. Lara function- ing as her fellow seamstress's prime mover, and Conde sub- sequently pursuing Mrs. Lara's suggestion. Clearly, howev- er, Conde's claim was personal; nothing in the present record would warrant a determination that a resolution with respect to her vacation pay demand would have af- fected Respondent's other workers, or that her claim was being pursued "for the purpose of . . . mutual aid or pro- tection" statutorily guaranteed. Compare Buddies Super- markets, Inc., 197 NLRB 707 (1972), enforcement denied 481 F.2d 714 (C.A. 5, 1973) in this connection. President Thompson's determination to dispense with Mrs. Lara's service-so far as it may arguably have been bottomed on her participatory role as Conde's persuader-may well de- serve characterization as invidious; I cannot, however, find it subject to statutory interdiction. Years ago, Mr. Justice Frankfurter, speaking for the Su- preme Court in N.L.R.B. v. Donnelly Garment Company, 330 U.S. 219, 229 (1947), commented therein-with refer- ence to a somewhat different problem in deductive reason- ing-that: According to an early English judge, "The devil himself knoweth not the mind of man," and a modern reviewing court is not much better equipped to lay bare unexposed mental processes. Bureaucratic triers of fact, certainly, cannot claim immuni- ty from the disability described. Where, then, as here, Pres- ident Thompson's motivation for Mrs. Lara's discharge must be deduced from testimony which provides "equal support" for two inconsistent determinations, the trier of fact's presumed competence to draw inferences and make selections cannot generate a record "preponderance " suffi- cient to support a conclusion favoring one determination with respect to motive, rather than another And General Counsel's burden of proof, therefore, cannot be considered satisfied. With respect to Mrs. Lara's termination, I find myself constrained to reject General Counsel's proffered "discriminatory discharge" contentions. C. Conclusions 1. Interference, restraint, and coercion Previously in this decision, I have found that Marshall Ostlund, Respondent's mill department manager-during conversations with "Pepe" Gonzalez and Elsie Ledger spe- cifically-declared that workers who participated in dis- cussions, with respect to unionization, in Respondent's plant would be discharged. Such statements, quite clearly, restrain and coerce employees; Respondent violated Sec- tion 8(a)(1) of the Act, thereby. Compare New Castle Lum- ber and Supply Co., Division of Peter Kuntz Co., 203 NLRB 937, fn. 1 (1973); Carolina Quality Concrete Co., 193 NLRB 463, 469 (1971), in this connection. (With respect to Ostlund's comment to Pepe , General Counsel 's representa- tive disclaimed any contention that Section 8(a)(1) was vio- lated thereby, though he did claim that it revealed Respondent's antiunion motivation for the challenged dis- charges of Gomez and Alex Gonzales, found discriminato- ry herein. The factual situation with respect to Ostlund's comment was, however, fully litigated. Compare Free-Flow Packaging Corporation, 219 NLRB 925 (1975), in this con- nection. In any event, since Ledger's credited testimony reveals that Ostlund made comparable statements, viola- tive of the statute, to her, my conclusions with respect to General Counsel's 8(a)(1) charge will stand, whether or not Pepe's corroborative testimony is considered probative.) Further, I have found that Respondent's president-dur- ing his June 19 conversation with Alex Gonzales particu- larly-declared that further solicitation in Complainant Union's behalf, on Gonzales' part, would result in his ter- mination. Since President Thompson concededly laid down this prohibition without "time" or "place" limita- tions, his directive was likewise reasonably calculated to interfere with, restrain, and coerce Gonzales, together with Respondent's other workers, with respect to their exercise of rights statutorily guaranteed. 2. The discharges Within their consolidated complaints, General Counsel's representatives have challenged eight designated termina- tion decisions as discriminatory. Previously herein I have found the June 19 termination of Anastacio Gomez, Jr., together with Alex Gonzales' concurrent constructive dis- charge, violative of law. Maria Gonzalez' July 4 discharge I have found beyond statutory proscription-since Mrs. Gonzalez was then Respondent's sewing room "supervi- sor" within the meaning of the statute . Margaret Huerta and Norma Flores were-so I have found-laid off July 10 for lack of work. I have, however, further found that Huer- ta was subsequently recalled, pursuant to a calculated stra- tegem, so that she could be discharged on August 30, be- cause of her participation in concerted activity for mutual aid or protection. Francisco Lara, so the record shows, left work voluntarily on August 28; with due regard for his resignation's background, I have found-contrary to Gen- eral Counsel's contention-that Lara was not constructive- ly discharged. Finally, with respect to Mrs. Lara, who re- ceived notice of her termination on November 19 when she reported for work following a week's leave, General Counsel's representatives have-in my view-failed to pro- duce evidence which would, preponderantly, warrant a de- termination that she was discharged, discriminatorily, for a reason statutorily proscribed. 3. General Counsel's request for a bargaining order General Counsel contends herein that Respondent's course of conduct-since it compassed several statements violative of Section 8(a)(1) and discriminatory discharges likewise violative of law-has rendered the conduct of a free and fair representation election impossible within CENTRAL CASKET CO. 399 Respondent's Fresno plant. General Counsel's representa- tives, therefore, suggests that the situation requires the pro- mulgation of remedial orders, compassing a directive, inter alia, that Respondent bargain with Complainant Union herein. Determinations with respect to whether a so-called "bar- gaining order" remedy may be necessary and proper-in a given case-currently derive from the principles defined within the Supreme Court's Gissel decision. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). Therein, the Court held that bargaining relationships can be imposed, under certain circumstances, on concerned employers, by means other than Board-conducted representation votes; that valid union designation cards, signed by a majority of workers in some unit appropriate for collective-bargaining purposes, will be sufficient to support bargaining orders; and, finally, that such relief may be granted when con- cerned employers have pursued courses of conduct reason- ably calculated to render the holding of subsequent "free and fair" representation elections less than likely. To sup- port a bargaining order promulgated consistently with these principles the record must show: First, that a labor organization has procured valid designation cards from a majority of the concerned employer's workers, within a group deemed "appropriate" for collective-bargaining pur- poses; second, that the concerned employer has engaged in conduct which has destroyed the conditions necessary for the holding of a fair and free representation vote; third, that employee sentiments with respect to unionization, when expressed through designation cards, can best be protected, under the circumstances, by some "bargaining order" remedy. a. The bargaining unit Within its formal answer, Respondent initially denied General Counsel's complaint specification that a group composed of all Respondent's Fresno plant workers, in- cluding truckdrivers, but excluding office clerical employ- ees, guards, and statutory supervisors, constitutes a unit appropriate for the purposes of collective bargaining. Respondent's counsel, however, pressed no such conten- tion when this case was heard; nor has such a contention been reiterated in his brief. Pursuant to well-established decisional doctrine, plantwide bargaining units-with of- fice clerical workers, guards, and statutory supervisors ex- cluded-have long been considered presumptively appro- priate for collective-bargaining purposes (Absent some competitive claim, proffered by a labor organization which seeks to represent truckdrivers separately, their inclusion within plantwide production and maintenance units clearly will not render such units inappropriate for collective-bar- gaining purposes.) Within her decision and direction of election with respect to Respondent's Fresno workers, the Acting Regional Director found the unit described above appropriate; her determination therein was never chal- lenged. I find the bargaining unit defined within General Counsel's complaint appropriate for collective-bargaining purposes. b. Complainant Union's card majority Thirty designation cards, signed by Respondent's Fresno workers, have been proffered for the record, and received. Of these, 27 had been signed by May 31; 2 more had been solicited and signed before June 5, when Complainant Union's representation petition was filed. (The 30th desig- nation card was signed subsequently by Pedro Banuelos during Complainant Union's June 27, meeting at the resi- dence of Jose Gonzalez, Sr. For present purposes, this card may be disregarded ) On May 31, Respondent's production, maintenance, and driver work force compassed 35 employees. By June 5, Respondent's payroll had been augmented by one trim de- partment worker; Emilio Briseno had been hired. With Complainant Union's first 29 authorization cards counted, therefore, that organization had-clearly-been designated and selected by a majority of Respondent's Fresno plant workers when its June 5 demand for recognition was made. (1) Complainant Union 's initiation fee forecast Respondent claims that Complainant Union's designa- tion card majority should be considered "vitiated" because that organization's business representative-when he solic- ited card signatures-had promised reduced initiation fees for those workers who had signed cards before any repre- sentation vote which might be conducted, or before Re- spondent granted Complainant Union recognition, while workers who "joined" later would be required to pay some larger fee. In N.L.R.B. v. Savair Manufacturing Co, 414 U.S. 270 (1973), the Supreme Court disapproved a union's promise that initiation fees would be completely "waived" for workers who had signed union designation cards before a Board-conducted election; it declared that endorsements, whether for or against the labor organization concerned, should not be "bought and sold" thusly. The Court com- mented, however, that unions have a legitimate interest with respect to promised initiation fee waivers, when they have not yet been chosen as bargaining representatives, since workers otherwise sympathetic to the union might well be reluctant to pay out money before that organi- zation has done anything for them. This interest, the Court noted, can be preserved by making initiation fee waivers available not only for those workers who might have signed up with the union before a representation vote, but-like- wise-for those who might "join" during some limited or "open-end" period thereafter. Previously in this Decision, Business Representative Bayless' comments with respect to Complainant Union's reduced "initiation fee" policy have been reviewed. I have found that he did not promise reduced initiation fees limit- ed to workers who would sign designation cards before Respondent granted Complainant Union recognition, or before a possible representation vote. His witness-chair recollections-previously set forth verbatim-reveal that Respondent's workers were merely told that lower "admis- sion" fees would be charged those taken into membership "when the plant was finally settled." The business representative's further testimony-proffered to clarify his 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commitment's substance, though not its precise tenor-re- veals that Respondent's workers were told substantially that a reduced rate would be charged all those who were in Respondent's hire "when and if the Union bargained for them, [and] we had the contract." He specifically denied that Complainant Union's lower initiation fee commitment had been limited to some "specified group of people that had signed cards" before a contract's negotiation . So pre- sented, Bayless' reduced rate promise cannot be considered improper within Savair's rationale . Compare Smith Compa- ny of California, Inc., 215 NLRB 530 (1974); Western Refri- gerator Co., Subsidiary of the Hobart Manufacturing Co., 213 NLRB 227 (1974); S & S Product Engineering Services, Inc., 210 NLRB 912 (1974), enfd. 513 F.2d 1311 (C.A. 6, 1975); Wabash Transformer Corporation, Subsidiary of Wabash Magnetics, Inc., 210 NLRB 462 (1974), enfd. 509 F.2d 647 (C.A. 8, 1975), in this connection. (2) Supervisory participation in Complainant Union's campaign Respondent contends, finally, that-since Complainant Union's claimed designation card majority had been "ob- tained" with the direct partisan participation and support of Fresno plant management representatives-those cards provide no valid or proper basis for the designated labor organizations' present claim to representative status. More particularly, Respondent contends that Jose Gonzalez, Sr., and Maria Gonzalez made such "vital and extensive" con- tributions to Complainant Union's promotional campaign and designation card solicitations-while functioning in a fashion which "must have been widely known" among Respondent's workers who signed designation cards-that their coordinated course of conduct merits characterization as conduct which "tainted" the Complainant Union's ma- jority showing, vitiating the bases on which Complainant Union's present claim to representative status rests. This contention raises a close question ; that question's resolution will depend on the significance which certain facts-substantially conceded for the present record-may reasonably be considered to carry. In a recent representation case decision-Gary Aircraft Corporation, 220 NLRB 187 (1975)-which dealt with elec- tion objections bottomed upon a low-level supervisor's par- ticipation in the concerned union 's preelection campaign, this Board declared that: Mere supervisory participation in a union's orga- nizing campaign does not, without a showing of possi- ble objectionable effects, warrant setting aside an elec- tion. Turner's Express, Incorporated 189 NLRB 106 [192 NLRB 561 (1971), enforcement denied 456 F.2d 289 (C.A. 4, 1972)]; Stevenson Equipment Company, 174 NLRB 865 (1969). As we noted in those cases, there are two situations where such participation could have an objectionable effect. First, employees may be led to believe the supervisor was acting on behalf of the employer and that the employer favors the union . Second, employees may be coerced out of fear of future retaliation by union-oriented supervisors into supporting the union. Whether the present record-which deals, however, with claims that Complainant Union' s card showing should be considered tainted, rather than claims that the Board's election processes have been subverted-presents these sit- uations, conjunctively or disjunctively, must be de- termined. General Counsel has conceded that Jose, Respondent's plant manager, was the particular person within the firm's Fresno plant who directly contacted Complainant Union with respect to organizing Re- spondent's employees . His son, Pepe, pursuant to his di- rection, participated-actively-when Business Represen- tative Bayless' first meeting with Respondent's workers was planned and publicized. When that May 30 meeting was held, Jose's wife, who had accompanied Bayless to the meeting's site, was the person who introduced Complain- ant Union's business representative . Jose's son translated the business representative's remarks ; further, he translat- ed Complainant Union's designation card language, when those cards were produced for signature. And subsequent- ly, before Complainant Union' s representation petition was filed, Pepe, together with Francisco Lara, solicited more designation card signatures. Maria Gonzalez likewise solicited Respondent's workers, both within and without the plant section which she supervised . With due regard for these conceded matters of record, I conclude-consistently with Respondent's contention-that General Counsel has not herein persuasively demonstrated Complainant Union's majority representative status, within a truly "un- coerced" group of Respondent's workers, appropriate for collective-bargaining purposes. Of course, we do not have , in the present record, con- crete "proof" that Respondent's workers-when a majority of them signed designation cards during the May 30 park meeting-were actually persuaded that their supervisors were functioning in Respondent's behalf, or that their cor- porate employer favored unionization . They knew, howev- er, that Respondent's corporate officials were really "ab- sentee" managers who visited the Fresno plant as part-time supervisors , with Jose functioning day-by-day as their facility's direct, responsible management representative. Further, they knew or reasonably could have determined- through conversational contacts within Respondent's plant, or within Fresno's Mexican-American community- that Respondent's plant manager, together with the firm's metal department manager , Curiel, had previously been union members while they were working within the Oak- land, California, plant maintained by Respondent's sister corporation. With matters in this posture, Respondent's workers could certainly have believed-before President Thompson made his contrary disposition known-that their employer, personified by Plant Manager Jose Gonza- lez, Sr., favored unionization. Jose concededly did not attend Complainant Union's May 30 Roedmg Park meeting . Nor did he personally soli- cit workers in Complainant Union's behalf. He did not directly seek to persuade employees that Complainant Union merited their support. Since Maria and Pepe, how- ever, had both participated-actively-when Complainant Union's May 30 meeting was being arranged , publicized, and conducted, Respondent's employees, in my view, could reasonably have concluded that their Fresno super- CENTRAL CASKET CO. 401 visors, more particularly Respondent's plant manager and his wife, were union-oriented, and that future supervisory pressures or retaliation, directed against workers not dis- posed to welcome unionization, might be possible. (In his brief, General Counsel has noted the lack of concrete evi- dence, herein, that Maria and Jose's son "held [themselves] out" as Jose's representatives, in haec verba, or that they were generally so regarded by Respondent's employees. However, since their familial relationship with Respondent's plant manager was certainly known, no spe- cific "holding out" would have been required; Respondent's workers, in my view, could reasonably have deduced that Jose's wife and son did reflect his views- particularly since the record reflects no statements or con- duct, chargeable to him, calculated to counter or negate their conceivable deduction.) True, Pepe was merely a rank-and-file worker, and Maria merely a low level super- visor whose nominal authority covered no more than five sewing room workers. Nevertheless, their family relation- ship with Respondent's plant manager-in my view-nec- essarily invested their statements and conduct with a per- suasive thrust, reasonably calculated to influence the choice of their fellow workers, with respect to unionization. Since the record herein shows that Plant Manager Jose Gonzalez, Sr., touched off Complainant Union's organiza- tional drive; that his son, together with his wife-likewise a statutory supervisor-participated, actively, while designa- tion card solicitations were being made; and that both sub- sequently played key roles in connection with Complainant Union's campaign, I conclude that, in this relatively small plant, Complainant Union's majority representative status was "tainted" materially thereby. Sopps, Inc., 175 NLRB 296 (1969); Welding & Industrial Products, Ltd. & Carbonic Products Corp., 167 NLRB 881 (1967). Compare Dayton Motels, Inc., d/b/a Holiday Inn of Dayton, 212 NLRB 553 (1974); Dexter Foods, Inc., d/b/a Dexter IGA Foodliner 209 NLRB 369 (1974); A.T.I. Warehouse, Inc., 169 NLRB 580 (1968), in this connection. With matters in this posture, General Counsel has not persuasively demonstrated that Complainant Union has ever represented a truly "un- coerced" majority of Respondent's workers, within the bar- gaining unit herein found appropriate. And no remedial "bargaining order" predicated on Respondent's proven un- fair labor practices would therefore be warranted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III above, occurring in connection with Respondent's opera- tions described in General Counsel's complaints has had, and continues to have, a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. In view of these findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Central Casket Company is an employer within the meaning of Section 2(2) of the Act engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Upholsterers' International Union of North America, Local No. 3, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, which admits certain employees of Central Casket Company to membership. 3. When Respondent's management representatives (a) forbade employees to solicit in Complainant Union's be- half, without limiting their prohibition's scope to plant lo- cations or times with respect to which such a restriction would be legally permissible, and (b) threatened employees with discharge for participating in discussions with regard to their possible unionization, Respondent interfered with, restrained, and coerced employees with respect to their ex- ercise of rights statutorily guaranteed. Thereby Respon- dent engaged in, and continues to engage in, unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and Section 2(6) and (7) of the Act. 4. Respondent's management representatives-when they discharged Anastacio Gomez, Jr., and constructively discharged Alex Gonzales, because of their demonstrated interest in unionization, and their concerted and protected activities in Complainant Union's behalf-discriminated against these employees with respect to their hire and ten- ure of employment and further interfered with, restrained, and coerced Respondent's employees, generally, with re- spect to their exercise of rights statutorily guaranteed. Thereby Respondent engaged in, and continues to engage in, unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act, as amended. 5. Respondent's management representatives-when they directed and/or consummated Margaret Huerta's Au- gust 30, 1974, discharge, because of her participation in protected concerted activity-interfered with, restrained, and coerced her, together with Respondent's employees generally, with respect to their exercise of rights statutorily guaranteed. Thereby, Respondent engaged in, and contin- ues to engage in, an unfair labor practice affecting com- merce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act, as amended. 6. General Counsel has not herein produced substantial, reliable, and probative evidence sufficient to justify a de- termination that Respondent's management representa- tives-when they terminated Maria Gonzalez on July 4, laid off Margaret Huerta and Norma Flores on July 10, reprimanded Francisco Lara on August 28, and notified Irma Lara on November 19, 1974, that she had been dis- charged-discriminated against these employees with re- gard to their employment tenure, for the purpose of dis- couraging union membership. Thus, General Counsel has not established by a preponderance of the evidence that Respondent did thereby engage in, or continues to engage in, unfair labor practices affecting commerce, within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act, as amended. 7. General Counsel has not herein produced substantial, reliable, and probative evidence sufficient to warrant a Board directive whereby Respondent would be required to 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain collectively with Complainant Union as the exclu- sive representative of Respondent's workers, within a de- fined Fresno plant unit considered appropriate for collec- tive-bargaining purposes.' THE REMEDY Since I have found that Respondent has committed, and has thus far failed to remedy , specific unfair labor practices which affect commerce , I shall recommend that it be or- dered to cease and desist therefrom , and to take certain affirmative action, including the posting of appropriate no- tices, designed to effectuate the policies of the Act. Specifically, since I have found that Section 8(a)(1) and (3) of the statute were violated when Respondent's man- agement representatives terminated Anastacio Gomez, Jr., constructively discharged Alex Gonzales, and subsequently directed and/or consummated the August 30, 1974, dis- charge of Margaret Huerta, for statutorily proscribed rea- sons, I shall recommend that Respondent be required to offer these workers immediate and full reinstatement to their former positions or, should those positions no longer exist, to substantially equivalent positions , without preju- dice to their seniority or other rights and privileges. Re- spondent should further be required to make Gomez, Gon- zales, and Huerta whole for any pay losses which they may have suffered because of the discrimination practiced against them, by paying them sums of money equal to the amounts which each of them would normally have earned as wages from the dates of their respective terminations to the date or dates of Respondent's reinstatement offers, less their net earnings during the periods designated . The back- pay due should be computed by calendar quarters, pur- suant to the formula which the Board now uses. F. W. Woolworth Company, 90 NLRB 289 (1950). Interest thereon should likewise be paid, computed at 6 percent per year. See Isis Plumbing & Heating Co., 138 NLRB 716 ( 1962), in this connection. Upon the foregoing findings of fact, conclusions of law, and the entire record, pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Respondent Central Casket Company, Fresno, Califor- nia, its officers , agents, successors , and assigns , shall. i Errors in the transcript have been noted and corrected 2 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 1. Cease and desist from: (a) Threatening employees with discharge for participat- ing in discussions with regard to unionization. (b) Forbidding employees to solicit in Complainant Union's behalf within Respondent's Fresno plant premises, without limiting such a restrictive rule or policy to periods during the work day when such a restriction with respect to solicitations would be legally permissible. (c) Discharging employees, or discriminating in any other manner with regard to their hire or tenure of employ- ment, or the terms and conditions of their employment, because of their participation in union organizational ac- tivities, or their participation in protected concerted activi- ties, for the purpose of collective bargaining or other mutu- al aid or protection (d) Interfering with, restraining, or coercing employees, in any like or related manner, with respect to their exercise of rights which Section 7 of the statute guarantees. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Anastacio Gomez, Jr., Alex Gonzales, and Margaret Huerta immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay which they may have suf- fered by reason of the discrimination practiced against them, in the manner set forth within the "Remedy" section of this decision. (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all pay- roll records, social security records, timecards , personnel records and reports, and all other records relevant and nec- essary to reach a determination with respect to the amounts of backpay due in this Order. (c) Post at its place of business in Fresno , California, copies of the attached notice marked "Appendix." 3 Copies of said notice, prepared both in Spanish and English on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous 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, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 3 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"