Paramount Metal & Finishing Co., Inc.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paramount Metal & Finishing Co., Inc. and Para- mount Plating Co., Inc . and Teamsters Local Union No. 408, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Cases 22-CA-6265 and 22-CA-6325 June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 1, 1975, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. In agreement with the Administrative Law Judge, we find that Respondent, through its president, Vin- cent Fuschetti, engaged in unlawful surveillance by observing a meeting between Union I Organizer Di Leo and several employees, thus violating Section 8(a)(1) of the Act. We further find, in agreement with the Administrative Law Judge, that Respondent vio- lated Section 8(a)(3) of the Act by unlawfully laying off employee Joseph Policastro. However, we find merit in Respondent's exceptions to his finding that the lay off of employee Jose Rodriguez violated Sec- tion 8(a)(3) and (1) of the Act. The Administrative Law Judge found, and the rec- ord shows, that Joseph Policastro initially contacted the Union in August 1974, served as the Union's ob- server at the October 25 election, and throughout the Union's campaign was one of the Union's most ac- tive adherents. The Respondent soon became aware of Policastro's activities and, in late August, one of Respondent's officers, Richard Fuschetti, interrogat- ed Policastro about his protected activities and 1 In the absence of exceptions thereto, we adopt the Administrative Law Judge's finding that the Respondent did not violate Sec 8(a)(1) and (3) by granting wage increases to its employees in October 1974 2 Teamsters Local Union No 408, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union promised certain benefits if he identified other em- ployees who had signed authorization cards.' Policas- tro spurned these overtures, but he did admit to Fus- chetti that he had signed a card. In addition, as noted above, shortly before the election, Respondent's president, Vincent Fuschetti, engaged in unlawful surveillance of a union meeting attended by Policas- tro, Jose Rodriguez, and several other employees. Thereafter, on February 7, 1975, Policastro was per- manently laid off. The Respondent maintained that its decision to lay off Policastro was motivated only by business con- siderations rather than discriminatory reasons. In support of its defense, the Respondent asserted that the department where Policastro was last assigned had no work in early 1975, that (as the Administra- tive Law Judge found) the Respondent had experi- enced a decline in business, and that from July 1974 to August 1975 the Respondent had laid off or termi- nated some 20 of its 46 employees. We agree with the Administrative Law Judge that Policastro's termination was motivated at least in part by his union activities. In reaching this result, we rely on the General Counsel's showing of knowledge and union animus, and the unconvincing nature of the Respondent's asserted reasons for the layoff. Policastro, a man with 35 years of experience in the industry and 7 years with the Respondent, was admittedly a "valuable" employee who, because of his thorough knowledge of the industry and with Respondent's operation in particular, was capable of performing a wide variety of production and mainte- nance jobs. Indeed, in view of Policastro's skills, ex- perience, and the fact that he "saved the company money," Supervisor Walter Alina recommended to President Fuschetti that Policastro not be laid off. Finally, as the Administrative Law Judge found, Po- licastro was among the more senior employees in Respondent's plants, and, had strict plantwide se- niority been followed, Policastro would not have been laid off in February 1975, or at the least would have been recalled before August. In any event, it is clear that work which Policastro could perform was available in other departments when Policastro was laid off in February. In explaining his decision, President Fuschetti tes- tified that he relied on departmental seniority, atten- dance, and "many other factors"-presumably skill, versatility, and experience. We agree with the Ad- ministrative Law Judge that this explanation simply does not withstand scrutiny in view of Policastro's admitted value to the Respondent. Accordingly, we 3 This conduct occurred outside the 10(b) period and is, therefore, not found to be violative of the Act However, we agree with the Administrative Law Judge that such conduct is background for events which followed 225 NLRB No. 61 PARAMOUNT METAL & FINISHING CO. find that the Respondent's unconvincing reasons for the layoff actually support the General Counsel's pri- ma facie case of unlawful discrimination. However, in considering the layoff of Jose Rodri- guez we are compelled to reach a different result and, contrary to the Administrative Law Judge, we find that the General Counsel has not proved by a pre- ponderance of the evidence that the Respondent vio- lated Section 8(a)(3) and (1) of the Act. The Administrative Law Judge's finding that Jose Rodriguez was discriminatorily laid off rests on his belief that the Respondent should have selected em- ployees for layoff on the basis of objective criteria; here, plantwide seniority.4 But the National Labor Relations Act does not require that an employer act wisely, or even reasonably; only,-whether reasonable or unreasonable, that it not act discriminatorily.s Even if we find an employer's action unreasonable, that is only evidence that it may have acted discrimi- natorily, and hence unlawfully. In the context here, we cannot conclude that the decision to retain Mar- cellino Rodriguez instead of Jose was unreasonable, nor do we find other evidence sufficient to convince us that the decision was discriminatory. Vincent Fuschetti testified that he decided to lay off Jose Rodriguez, when he returned from a 3- month absence caused by a nonwork-related acci- dent, because of a slowdown in business. Marcellino Rodriguez, who had been transferred to Jose's job while he was recovering from his accident, was re- tained although he had been hired about 2 months later. Fuschetti explained that Marcellino was a more dependable employee. During the 14 weeks before his accident, Jose Ro- driguez worked a full week only seven times and only 16 hours during the last 2 weeks of that period. Ac- cording to Fuschetti's uncontroverted testimony Marcellino Rodriguez showed up for work every day. Despite Jose's seniority, his replacement had little, if any, less experience on the job, particularly when considered in light of the Administrative Law We disavow the Administrative Law Judge 's apparent finding that the Respondent's use of departmental , as opposed to plantwide , seniority is unjustified Such a finding is beyond the allegations contained in the com- plaint, and we make no finding in this regard Nor do we find, as the Administrative Law Judge did, that adoption of a plantwide seniority sys- tem is necessary to remedy the instant violation of Sec 8(a)(3) and (1) 5 Unlike our colleague, we see nothing to bewilder anyone in the differ- ence between an employer's decision to cut back its work force by laying off employees and its subsequent selection of the employees who will be laid off There is nothing in the National Labor Relations Act that requires layoffs to be made only on the basis of seniority or any other particular criterion , so long as union or concerted activities have no role in the deci- sion In the absence of an established formula , a decision to lay off employ- ees does not automatically identify the employees to be laid off At the risk of belaboring the obvious, an explanation of the reason that an employer has decided to cut back its work force is not an explanation of the reason that a particular employee has been selected for layoff the former decision determines the size of the work force , the latter, its composition 465 Judge's finding that there is little difference in the skills involved in different departments. Nor does it appear that experience would be an overriding fac- tor; many of the Respondent's employees are un- skilled. Fuschetti's statement to Jose Rodriguez that he was being laid off because of business conditions does not conflict with his later explanation of the reasons he selected Jose rather than Marcellino Ro- driguez. They simply involve different consider- ations: there is nothing in the former which even sug- gests a reason for Jose Rodriguez' selection for layoff. Nor do we find it unusual or significant, in itself, that the Respondent selected one employee for layoff rather than another for reasons which it did not consider sufficient for discharge-in selecting an employee for layoff, an employer cannot always have the luxury of choosing between a "good" employee and one it would discharge in any event. This is not a case where the employee's faults have demonstrably been contrived or are so outrageous that they never would have been tolerated and thus fall of their own weight. The record does not establish that the Respondent departed from any established and uniformly applied practice in selecting employees for layoff; there was no practice. The Respondent's attempt to explain Policastro's layoff on the basis of departmental se- niority, which we have rejected, scarcely proves that some seniority system should have been followed in the case of Jose Rodriguez. The record shows that the Respondent chose to retain the more dependable of two employees with comparable experience. That is not an unreasonable basis for decision and it does not become so merely because the Respondent was hostile to the Union. We find that a preponderance of the evidence does not establish that Jose Rodri- guez was laid off for discriminatory reasons. In view of the foregoing findings, we shall issue a new Order as provided below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Paramount Metal & Finishing Co., Inc. and Para- mount Plating Co., Inc., Newark, New Jersey, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Engaging in unlawful surveillance of its em- ployees' union activities. (b) Laying off or otherwise discriminating against employees in any manner, with regard to their hire and tenure of employment, or any term and condi- 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of employment, because of their union activities. (c) In any other manner interfering with, restrain- ing, or coercing any employee in the exercise of his rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Joseph Policastro immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prej- udice to his seniority or other rights previously en- joyed, and make him whole for any loss of pay due to the discrimination against him by awarding him backpay from the date of his discharge to such time as he receives a valid offer of reinstatement, the com- putation of such moneys to be in accord with the Board's Decision in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Newark, New Jersey, copies of the attached notice marked "Appendix." 6 Copies of said notice on forms provided by the Regional Director for Region 22, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER JENKINS, dissenting in part: Unlike my colleagues, with whom I agree in all other respects, I find, as did the Administrative Law Judge, that the Respondent unlawfully terminated employee Jose Rodriguez in violation of Section 8(a)(3) and (1) of the Act. As my colleagues agree, the record shows that Ro- driguez, along with fellow employee Joe Policastro, took an early and active interest in the Union's cam- paign. Rodriguez was the leading union advocate 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " among the Respondent's Spanish-speaking employ- ees, and clearly was the dominant figure in soliciting their support for the Union. On several occasions- and once within view of Supervisor Alina-Rodri- guez and Policastro handbilled employees near the plant doorway. Furthermore, as my colleagues have found, Respondent President Fuschetti engaged in blatant surveillance of a union meeting attended by a few employees, including Rodriguez. Thus, the Ad- ministrative Law Judge found, the Respondent was well aware of Rodriguez' union activities before it terminated him. The record also shows that from the very begin- ning of the union campaign the Respondent was openly hostile to the protected activities of its em- ployees and, in an early effort to thwart the union drive, offered benefits to Policastro if he would iden- tify employees who had signed authorization cards. Several months later, following the Union's victory in the October 1974 election, the Respondent finally resorted to the only recourse left at its disposal-the patently unlawful discharge of Policastro in Febru- ary 1975. Nonetheless, against this background my col- leagues conclude that the General Counsel failed to prove that Rodriguez' discharge on March 14 was also motivated, at least in part, by the same discrimi- natory reasons which prompted Policastro's termina- tion. In effect, they find that there existed indepen- dent nondiscriminatory reasons for Rodriguez' discharge which overcome, or at least meet, the Gen- eral Counsel's prima facie showing of unlawful con- duct. I cannot agree because the reasons advanced by the Respondent do not withstand scrutiny and, in consequence, offer support to the General Counsel's affirmative case. Thus. the Respondent initially asserted that Rodri- guez was not rehired in March 1975, following an accident suffered on December 31, 1974, because business was slow and there was no work then avail- able for Rodriguez in his department. Thus, as with Policastro, Rodriguez was led to believe that his lay- off was necessitated by the implementation of some departmental seniority rule. However, with regard to Rodriguez, the Respondent readily conceded that it deviated from its own rule. Thus, Marcellino Rodri- guez, Rodriguez' replacement, was spared although he had less seniority than Rodriguez. In these cir- cumstances, it is abundantly clear that Respondent's shifting reliance on its own rule, which at times was disparately enforced, strongly suggests that the real reason for its conduct rests elsewhere. In obvious recognition of its unconvincing expla- nation on March 14 that Rodriguez' layoff rested on the nondisparate application of some objective stan- PARAMOUNT METAL & FINISHING CO. 467 dard or rule, such as seniority, the Respondent later asserted at the hearing below that Marcellino Rodri- guez was retained because he was "more dependa- ble" than Jose Rodriguez. The only evidence present- ed by the Respondent to support this additional defense is that Jose Rodriguez worked a full 5-day week only seven times in the 14 weeks prior to his accident on December 31, 1974. There is no showing in this record that these absences were not excused or explained to the satisfaction of Rodriguez' supervi- sors. Nor is there any showing that Rodriguez was told that his job was in jeopardy because of alleged attendance problems. Indeed, following his accident Rodriguez periodically visited the Respondent and with his superiors discussed his return to work when his injured hand had healed. Yet, it is undenied on this record that the Respondent at no time informed Rodriguez he would not be reemployed because of his previous attendance record. And, perhaps even more important, there is no showing that Rodriguez' attendance record was any worse than Marcellino Rodriguez', or any other employee's, record. Indeed, since this information was readily available to the Respondent, I find it significant that the Respondent failed to present this evidence. Such a failure of proof warrants the drawing of an inference that such evi- dence, if produced, would have been adverse to the Respondent's interest. But, at the very least, the fail- ure to present the evidence of other employees' atten- dance records exposes the weakness of the Respondent's further explanation that Rodriguez' discharge was dictated because of his alleged poor attendance. In sum, I find that the Respondent has failed to rebut the General Counsel's prima facie showing that Rodriguez' discharge was motivated, at least in part, by reasons proscribed by the Act. Indeed, as shown, Respondent's failure to advance anything other than shifting, patently false, and unsubstantiated reasons for its conduct not only bolsters the General Counsel's showing but also lays bare the real reason for Rodriguez' discharge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off or otherwise discriminate against our employees in any manner, with re- gard to their hire and tenure of employment, or any term and condition of employment, because of their union activities. WE WILL NOT engage in unlawful surveillance of the Union activities of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed under Section 7 of the Act. WE WILL offer Joseph Policastro immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights, and WE WILL make him whole for any loss of pay suffered by reason of the unlaw- ful conduct against him. PARAMOUNT METAL & FINISHING CO., INC. AND PARAMOUNT PLATING CO., INC. DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Teamsters Local Union No. 408, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, Local 408, or the Charg- ing Party, filed the charge in Case 22-CA-6265 on March 4, 1975,' and the charge in Case 22-CA-6325 on April 14, against Paramount Metal & Finishing Co., Inc. and Para- mount Plating Co., Inc., herein collectively termed the Re- spondent or Company, alleging that Respondent violated Section 8(a)(1) and (3) of the Act. An order consolidating cases, complaint and notice of hearing was issued by the Acting Regional Director of Re- gion 22 on May 30. It alleges that the two companies con- stitute a single employer within the meaning of the Act, were engaged in interstate commerce and violated the Act by surveilhng union activities of its employees and by granting wage increases to undermine support for the Union and by laying off employees Joseph Policastro on or about February 7, and Jose Rodriguez on or about March 14. Respondent's timely answer was amended at the hear- ing, and as amended, Respondent admitted, for the pur- pose of this proceeding, that it was a single employer en- gaged in commerce within the meaning of the Act; that Vincent Fuschetti its president, Richard Fuschetti its secre- tary and treasurer, and Walter Alina its plant manager are management agents and that Respondent laid off Joseph Policastro on or about February 7, 1975. Respondent de- nied that it had violated the Act in any way. The parties were afforded full opportunity to appear, to examine and cross-examine the witnesses, and to argue or- ally at the hearing held in this matter in Newark, New Jersey, on August 7 and September 9, 1975. General Coun- sel and Respondent filed briefs which have been carefully considered. 1 Unless specifically stated otherwise the events in this case took place during the latter months of 1974, and the early months of 1975 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The principal question is whether Respondent was moti- vated by antiunion considerations in laying off Policastro and Rodriguez. On the basis of all the evidence I have concluded that Respondent was motivated by antiunion considerations in these layoffs and that Vincent Fuschetti did surveil employees' union activities on 1 day, but that the evidence is insufficient to find that Respondent violat- ed the Act in granting raises to employees during October 1974. While there is evidence of an economic downturn, which apparently caused Respondent to lay off some of its employees, the conflicting standards used and the lack of candor from some of Respondent 's witnesses has con- vinced me that Respondent would not have laid off Poli- castro and Rodriguez when it did but for their union activi- ties. Accordingly, an appropriate remedial order will be entered. On the entire record in this case, including the exhibits and the testimony offered, and my evaluation of the reli- ability of the witnesses based on the evidence and their demeanor, I make the following. FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION'S STATUS Paramount Metal & Finishing Co., Inc. and Paramount Plating Co., Inc., are each New Jersey corporations with their place of business on South 16th Street in Newark, New Jersey, where they are engaged in the manufacture, sale, and distribution of metal platings and related prod- ucts. During the past year Respondent sold and distributed finished products which were shipped in interstate com- merce directly to States other than the State of New Jersey and were valued in excess of $50,000. Respondent admits and I find that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Facts Respondent's business consists basically of two opera- tions: A plating and anodizing operation wherein parts are plated and coated with metal of all types including pre- cious metals and a spray painting operation which is locat- ed across the street in a separate building. Except for un- skilled labor, the skills and duties of employees in these two operations are different and employees are not inter- changed. The exception is that unskilled employees have been transferred from the paint shop to the plating and anodizing shop in 1975. The plating and anodizing busi- ness up through the early part of 1975 was the biggest part of Respondent's business and was under the control of Vincent Fuschetti and the immediate supervision of Walter Alina. The paint shop operation was run by Richard Fus- chetti, Vincent's brother. Respondent has been in business for some 18 years at this location. The normal workweek was 5 days with occasional overtime on Saturday and weekdays when needed by the volume of orders. Vincent Fuschetti testified that the economic recession began to catch up with orders in latter 1974 and some lay- offs thereafter took place. From a total of some 46 employ- ees in October the complement had dropped to approxi- mately 26 by September 1975 when this case was heard. The Company also experiences a high rate of turnover caused in substantial part by the working conditions in the plating department where a large volume of electricity is used while the employees are wet and standing in water, together with the use of acids with the accompanying odors. New employees are frightened by the combination and the conditions under which they must work. Although some employees have been with Respondent for a number of years there is a substantial number of new employees. Joseph Policastro testified that he worked on all the types of plating at the Company in addition to performing various maintenance jobs including carpentry, electrical, and plumbing work. Vincent Fuschetti denied that Policastro had worked on precious metals, but Alina partially corroborated Policas- tro by stating that Policastro could handle the different kinds of metal plating in addition to the enumerated types of maintenance work. He enumerated some types of plat- ing that Policastro had performed. Employees were as- signed to specific areas or departments and worked mostly there except when a rush order dictated that other work must be done first. Alma recommended to Vincent Fus- chetti that Policastro be retained because he was a good and valued employee, which Alma stated Fuschetti admit- ted. With such a plethora of skills and some 35 years of experience in the plating field it is easy to see why Policas- tro would be considered a valuable asset to a company and one who would save a company considerable money with his maintenance skills. Rodriguez started with Respondent in April 1974 and his whole experience in this field was with Respondent Union Representative Di Leo testified that he first con- tacted Respondent's employees around the second week of August and met with Policastro and gave him authoriza- tion cards to distribute to employees. Policastro distributed the cards and returned signed cards to him. A meeting of employees was held in latter August and the Union sent a letter to Vincent Fuschetti dated August 26, demanding recognition and requesting bargaining for a production and maintenance unit, stating that it was willing to demon- strate its majority status by submitting cards to a neutral third party. The Union filed a petition with the Board on September 3 and the parties agreed to a stipulation for certification upon consent on September 25. The election held on October 25, had 16 votes for the Union, 15 against, and 3 challenges. Timely objections were filed by both par- ties and on March 14, the Regional Director issued a re- port on objections and challenged ballots. Respondent filed exceptions to the report on March 23, and on May 23, the Board certified the Union as the bargaining representa- tive for Respondent's employees. Prior to the election Respondent held two meetings for all employees and Richard Fuschetti was the sole speaker at both. PARAMOUNT METAL & FINISHING CO. 469 There is some disagreement as to what he told the em- ployees with the employees stating that he discussed the amount of the raises and that no third party was involved, but if the Union represented the employees , the Company door would no longer be open to them. Respondent denied saying anything about raises or union dues or deductions. The parties agreed that Richard Fuschetti told the em- ployees that there had been a petition filed with the Board, that there was going to be an election and where and when it was going to be held, and that it was by secret ballot and no one would know how they voted . He said that signing an authorization card or expressing an interest in the Union did not obligate an individual to vote for the Union. He urged the employees to be present and vote and hoped that they had confidence in his brother and himself. He admitted saying that General Motors and Western Electric were both large unionized companies and were experienc- ing massive layoffs and that being unionized did not pre- vent employees from being laid off. He said that Respon- dent had a history of not laying off people and hoped this would continue in the future. Vincent Fuschetti denied hearing anything said which would have indicated how Respondent felt about the Union. It is also agreed that prior to the union election for the pay period ending October 11 , Respondent gave the em- ployees two checks , the second one for $8 of their wages and enclosed a note which stated that sum would be the approximate amount of monthly union dues they would have to pay under a usual contract and urged that they vote against the Union for a full paycheck every week. The slip and the two paychecks were distributed to the employ- ees by Plant Manager Walter Ahna. B. Disputed Background Testimony Joseph Policastro who had some 35 years of experience in plating metal was first employed by Respondent in Sep- tember 1964, until he left in February 1971. He was reem- ployed in January 1974 and worked until February 1975 when he was laid off, making a total of 7-1/2 years with Respondent . Vincent Fuschetti testified that Policastro had been employed by Respondent for about 5-1/2 years, al- though the dates of Policastro 's employment were available to him. Policastro said he and a few others talked about a union, picked one out of a telephone book , called and met the organizer, and started organizing. Ordinarily they met the organizer on the streets near the plant. In August , Walter Alma told Policastro that Richard Fuschetti wanted to speak to him across the street in the paint department. He went over and Richard Fuschetti asked if Policastro knew anything about a union , since he had heard a union was trying to get in. Policastro said he had heard about it and had also heard that Fuschetti had spoken to two other employees about it . Fuschetti asked if he knew anything about union cards being given out and Policastro admitted he did. Fuschetti next asked who had received the cards , who had signed them , and what union it was. Policastro asked whether they were talking man-to- man, and when he was assured they were, he asked why Vincent Fuschetti had called at 9 o'clock one night and told him not to bring his son to work any more , and wheth- er that was because of the Union . Richard Fuschetti said that Vincent did not do it because of that, that Policastro knew Vinny and said Vinny was angry and if that was what was bothering him, they could put Policastro 's son back to work with no loss of pay. Policastro said his son already had a job . Fuschetti said that, if Policastro would give him the names of the people who had signed the union cards, he would give Policastro not a little raise but a very big raise . Policastro did not tell Fuschetti who had signed union authorization cards but admitted that he had done so. Richard Fuschetti denied having such a conversation with Pohcastro, and Walter Alma said he had no recollec- tion of instructing Pohcastro to go see Richard Fuschetti, denied it. This testimony concerns statements made prior to 6 months before the filing of a charge in this matter and cannot be considered as evidence of violations of the Act. This testimony serves only to show Respondent had knowledge of the union organizational attempts and of Policastro's part in it at the early stages of organization. I credit Policastro that this conversation occurred as he testi- fied and do not credit Richard Fuschetti 's denial. As may be seen from the evidence the Fuschettis and Alina sought to deny knowledge of union activity and of animus toward the Union, when it is clear under the cir- cumstances that they had such animus and knowledge. This will be detailed further, infra. Policastro and Jose Rodriguez distributed at least two leaflets to employees . Rodriguez says he distributed leaflets to the Spanish-speaking employees outside the plant and on one occasion saw Alma in the plant doorway watching them . Policastro additionally gave out leaflets in the plant and at employees' homes. Rodriguez also explained to the Spanish-speaking employees what the Union was about and asked them to sign cards. C. The Surveillance Incident Ordinarily the employees would meet with Union Or- ganizer Di Leo on the streets near Respondent's premises. In late September or early October Di Leo met Policastro, Jose Rodriguez, Jasper Stewart, who assisted Policastro, and Dominic Tanzola after work and they stood talking on 19th Avenue about 30 feet south of the intersection with South 16th Street , near Di Leo's car. Policastro, Rodriguez, and Di Leo testified that they saw Vincent Fuschetti drive his car west on 16th Street, pull into the intersection and stop and observe their meeting for a minute or more before driving ahead. Several minutes later they saw Fuschetti re- peat this performance , again going in the same direction. The four employees and Di Leo thereupon walked to the corner and went into a tavern . In a few minutes one of the barmaids said their boss was coming by again and Policas- tro looked out the window and saw Fuschetti driving his car in the opposite direction on 16th Street, coming back towards the plant. Policastro said Fuschetti stopper! at the intersection paused for a minute or so looking around and crossed 19th Avenue and turned into the driveway at the paint shop. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the next day Vincent Fischetti told Policastro that his meeting did not last too long, and Poltcastro replied that it did and Fuschetti should have come into the tavern and they would have bought him a beer. There was testimony that the most direct route home for Vincent Fuschetti would have been to go up 18th Avenue and that he would only proceed across 19th Avenue and turn at the next intersection if he was going to get gasoline for his car before proceeding home. Fuschetti denied that he had ever spied on the employ- ees' union activities but did recall seeing groups of men outside the shop from time-to-time. He testified that he did not know who Di Leo was and did not recall seeing him until he met him at the election. Fuschetti did not recall driving around the block but did recall one occasion on which he had driven past the intersection and then had come back to check whether the gate was locked in the driveway to the paint shop. He said he would not have pulled into the intersection and looked down in that direc- tion because 19th Avenue was a busy street, particularly in the late afternoon, and to do as the employees testified, he would have been asking for an accident. He said that he had stopped at the stop sign at that corner and from that position could have easily seen a group of men south of the intersection on 19th Avenue where the men testified they had been. Vincent Fuschetti denies making the comment about the meeting attributed to him by Poltcastro. Vincent Fuschetti was equivocal in his testimony con- cerning this incident. Considering all the testimony it is clear that Fuschetti would not have driven twice in the same direction past 19th Avenue and returned the third time in the opposite direction if he had not been trying to observe the meeting of his employees with Di Leo. Certainly with the employees meeting Di Leo on the street in the vicinity of Respondent's premises, the identity of the employees most interested in the Union was easy for Respondent to determine. Fuschetti testified that he did see groups of employees talking in the vicinity of the plant and I credit Di Leo, Policastro, and Rodriguez that Fus- chetti paused long enough to observe them and determine who they were. D. The Layoffs According to Joseph Policastro, in February, Walter Ali- na called him to the front office and said things were get- ting slow and the Company accountant said it looked pret- ty bad and they had to lay him off. Alina gave him a check and a layoff slip. Policastro asked why they were laying him off, when there were others there with less seniority and named some of them. Alina replied that they had given him his job back and when Policastro asked what that meant, Alma said there was also the thing with the Union. Policastro said he was not going to take this easy and was going to make waves. The helper Stewart was also laid off the same day. In July 1974 there were 46 people on the payroll. Re- spondent produced a payroll for latter August 1975 which showed 26 employees on the payroll. According to Respondent's August 1975 payroll, of the 17 employees on the payroll, excluding the 9 people in the paint department, only 7 employees had more plantwide seniority than Polt- castro and of the 10 lower in seniority, I was employed in 1969, 1 in 1972, and the remaining 8 in 1974 and 1975. Walter Alma testified that he told Policastro it was un- fortunate that he did not have work at that time, that since business had gone way down, he could no longer use him and asked Poltcastro to stay in touch and if business picked up they would reemploy him. During cross-exami- nation Alma testified that he was consulted about the deci- sion to lay off Policastro but not the decision to lay off Rodriguez and recommended to Fuschetti that Policastro be kept as long as possible, acknowledging he was a good and valuable employee. Alina denied that any mention was made of the Union while they were talking. Jose Rodriguez fractured a bone on New Year's Eve, and his hand remained in a cast until March. In the interim he visited the plant on several occasions and spoke to Alina and the Fuschettis concerning when he would be able to come back to work. On March 14, he returned to the plant stating that his doctor had released him and he was ready and available for work. He was given a layoff slip and told that business was too slow and to come back later. Rodri- guez testified that his sister-in-law, a longtime employee of Respondent, told him a man from the paint shop had been put on his job and that another man had been hired for the paint shop. Rodriguez said that during his visits to the plant he saw Marcellino Rodriguez (no relation) and Hay- wood Griffin both working in the department where he had worked and said that both of these men had started to work for Respondent after he did. Considering Respondent's August 1975 payroll, it is clear that at least 7 of the 17 employees (excluding the paint department's 9 employees) had less plantwide senior- ity than did Jose Rodriguez if we accept Rodriguez' testi- mony that he started to work for Respondent in April 1974. However, Respondent's Exhibit 4 gives a date of hire for Jose Rodriguez of June 11, 1974, and by such a date 5 of the remaining 17 employees had less plantwide seniority than Jose Rodriguez. Rodriguez also testified that while handing out union leaflets with others on one occasion he had seen Walter Alma near the front door of Respondent's premises looking at them. Vincent Fuschetti testified that Policastro worked in the tin-bismuth plating area with Jasper Stewart and per- formed what maintenance work they had. He said that 80 to 90 percent of the work in that particular plating area came from one company, Atlantic Metal, which in Decem- ber 1974 told him to cut back on production and thereafter the work dropped from 40 to 50 percent. Stewart was doing most of the work in the department at that time while Poli- castro was busy on maintenance. In February, he received a letter which said that all production for Atlantic Metal was to stop immediately, and he then laid off both Policas- tro and Stewart and there was only 3 days' work done in that department from February until the hearing. Fuschetti said that most of the necessary maintenance work had been done by that time and he had one employee who had been with the company a number of years, who performed whatever maintenance work was left. Alma testified and Vincent Fuschetti confirmed that PARAMOUNT METAL & FINISHING CO. 471 Fuschetti alone made the decision as to who was laid off. Fuschetti said he decided who to layoff and, "I went most- ly by their activity, their attendance, their seniority, by de- partment, and many other factors were involved." Fuschet- ti said he laid off Policastro and Stewart because there was no work for their department, and in effect states that de- partmental seniority was the deciding factor there. When Jose Rodriguez sought work in March, Fuschetti said he checked as between Marcellino Rodriguez (who he states was hired about 2 months after Jose) and Jose and in comparing their attendance records found that Jose's rec- ord was so bad that he decided to keep Marcellino Rodri- guez. He said he had no idea that Jose Rodriguez was "with the union" when he decided to lay him off. In regard to general business conditions, Vincent Fus- chetti further stated that one of the main sources of Respondent's business, Wayne Electric, is preparing to close down and when that happens most of Respondent's business will be affected and it is possible that the Compa- ny may have to close. Respondent's plant manager, Walter Ahna, testified that during the layoff conversation with Policastro he did not say anything about union problems being part of the rea- son for the layoff. He was asked whether he knew if Poli- castro was involved with the Union and answered that he did not know, and that the same was true of Rodriguez. During cross-examination he admitted that he knew Poli- castro had something to do with the Union at the time of the election when Policastro had something to do with the voting, after saying first he did not know of Policastro's inclination towards the Union. He also testified that in lat- ter August he had not been told of a demand by the Union to represent the employees, but then said the first notifica- tion he received was from the Union's August 26 letter. Alma said he did not recall ever being told by Richard Fuschetti to bring Policastro to his office in August and therefore denied the occurrence. Further, Alma did not re- call saying anything to Policastro about being involved with the Union or that because of such involvement that Policastro's son was discharged. He did recall that the em- ployees received two paychecks but said that he never heard the employees say anything about it nor did they question him about it. Indeed he said he had never heard any talk about the Union nor saw any gatherings of any employees or any leaflets handed out or the leaflets them- selves. Despite all this he said the Fuschettis did tell him what he could and could not say to the employees about the Union. According to Respondent's Exhibit 5, and the testimony, Michael Orlatti was the main man in the precious metal department, which apparently is called the small barrel de- partment on this exhibit. The other two individuals work- ing in that department in late August 1975 were Carmen Heddi, who was employed on May 20, 1974, some 2 weeks before Jose Rodriguez, and Marcellino Rodriguez who was employed on August 20, 1974, some 2 months after Jose Rodriguez. With Marcellino Rodriguez being retained it is clear that departmental seniority was not followed in this instance. Considering the whole situation we have Alma and Vin- cent Fuschetti claiming that they knew nothing of the union activity of Jose Rodriguez, and Fuschetti (according to Respondent's brief) saying he only learned of it in the hearing in this matter. Fuschetti acknowledged learning at some undetermined time of Policastro's union activities and Alina claimed he had very little information regarding Policastro's sentiments. Both Fuschetti and Alma denied seeing employees on the street engaged in any union activity, distributing leaf- lets, or meeting with Union Organizer Di Leo. The testimo- ny concerning Vincent Fuschetti riding around the block twice and coming back a third time from a different direc- tion makes a clear case that he was attempting to see what the employees were doing with Di Leo. Fuschetti admitted driving around the block twice, seeing men and offered a variety of reasons why he might have ridden around the block. The only logical reason is the surveillance as Fuschetti's remark to Policastro the following day made clear. Whether Fuschetti knew who Di Leo was by name is not dispositive since clearly he would have assumed the men were meeting a union agent. This is not a very big plant, and the comings and goings of the employees and their meetings on the street and dis- tributing leaflets would have been noticed and commented about. In these circumstances I cannot believe that Alina and Fuschetti did not know of the activities of Policastro and Rodriguez. Respondent argues in its brief that since Respondent did not discharge Dominic Tanzola, one of the four employees who was with Di Leo when Vincent Fus- chetti repeatedly drove by, this proves that Respondent was not seeking to rid itself of the union activists. It would seem that since Respondent laid off three out of four em- ployees in that meeting, the argument would be much more persuasive the other way. I credit the testimony establishing that Vincent Fuschetti did stop at or near the intersection of 19th Avenue and viewed the employees engaged in a meeting with Di Leo and that he did so a few minutes later on a second occasion and returned to the intersection a third time looking for the men and what they were doing and that he did make the comment on the following day to Policastro. I do not credit Fuschetti's denial of this comment. I also credit Pohcastro's testimony concerning his meet- ing with Richard Fuschetti. I make no findings of viola- tions of the Act based on that meeting and only find that Respondent at that time knew of the union organization and Policastro's activity. I do not credit the denials of the Fuschettis and Alina in regard to their lack of knowledge of the distribution of union literature inside and outside the plant. Any distribution of union literature would certainly have been called to their attention in this small plant and I credit Jose Rodriguez that Walter Alma watched such a distribution and observed those distributing the literature. In regard to these layoffs we have Vincent Fuschetti claiming that departmental seniority controls when it con- cerns Policastro, a man with much more seniority and much wider and more varied experience than most of the employees who were left. When it comes to Jose Rodriguez departmental seniority is dispensed with and the layoff is justified on the basis of absenteeism. I find and conclude that one of the principal reasons why Vincent Fuschetti determined to lay off Joseph Poli- 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD castro and Jose Rodriguez was because of their union ac- tivities and that they would not have been laid off at that time but for their union activity. I also find and conclude that Vincent Fuschetti decided on the layoffs and testified that he used standards which fit the end he desired and did not use reasonable objective criteria in determining who should be laid off. In a small plant such as this where the skills were not particularly different in the departments and where a lot of unskilled labor was used, it would appear that the most versatile people should be kept and that an objective criteria such as plantwide seniority should have been used provided that the individuals had sufficient knowledge and expertise to fit the remaining positions. If objective criteria had been used it is apparent that Jose Rodriguez would have re- mained and certainly with Walter Alina's recommendation Policastro would have been one of the last employees to leave. I therefore will order the reinstatement of Policastro and Rodriguez on the basis of their plantwide seniority. If Respondent's business declines to a situation where Poli- castro and Rodriguez would have been laid off under plant wide seniority as Respondent indicated was possible, then they are to be placed on, a recall list in the order of such plantwide seniority. Although noting that a meeting being held by a union on a public street is apt to be observed by anyone I conclude and find that Vincent Fuschetti did engage in illegal sur- veillance by stopping and observing the meeting of the four employees with Di Leo on two separate occasions and coming back a third time looking for them. From the testi- mony Fuschetti would not have driven by that corner twice in the same direction if he had not been trying to observe the actions of these employees. Certainly what Vincent Fuschetti did was not an ordinary occurrence. If he had driven by one time looked at the group and left that would be one thing but repeatedly circling back to see what was going on constitutes unlawful surveillance. See Emily Tweel Jacobs, Russel Jacobs, and Emil Tweel d/b/a L. Tweel Im- porting Co., 219 NLRB 666 (1975). raises over the previous years seemed to be in the 10- and 15-cent area but there were a few raises on occasion that were as much as 50 or 60 cents and others of 25 and 30 cents. The wage increases for October 14, 1974, seemed to be in the area of 25 cents. According to Respondent it had always reviewed its business of the previous 12 months before October and had given the employees a percentage of what Respondent's profits had been, and that up until that month it had been a good year. Respondent stated that it could not say that 1974 as a whole was a good year because it is evident that business declined after October to some extent and Re- spondent during latter 1974 and early 1975 laid off some of its employees as its business declined. Although there may be some suspicion that it granted larger raises than it ordinarily had done in order to seek favor with the employees and have them turn against the Union there is no consistency in the past practice or any other method set forth which would allow such a determi- nation. Looking at the previous years and comparing them with the wage raises for this time and considering the amount of inflation this country was undergoing at that point, the wage raises which appear to be less than 10 per- cent do not seem excessive. Therefore I cannot find that the wage increases given by Respondent in October 1974 were of such a nature as to make a clear impression on the employees that they were granted to undermine their union support and sentiment and I therefore will order this alle- gation of the complaint dismissed. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, and therein found to constitute unfair labor practices in viola- tion of Section 8(a)(1) and (3) of the Act, occurring in con- nection with Respondent's business operations as set forth above, in section I, 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. E. The October Raises The complaint alleges that on or about October 14 Re- spondent granted wage increases to its employees to induce them not to become or remain members of the Union or to give assistance or support to it. Initially it was urged by General Counsel that the date of the increases was not a date when Respondent ordinarily gave any increases to its employees. Respondent disproved this claim by estab- lishing that it had over the years given raises to its employ- ees on dates in October ranging between the 9th and the 20th and on one occasion gave a raise to its employees on November 29. General Counsel then argued that the raises were usually large and were therefore not the ordinary raises given to employees and could only have the purpose of trying to persuade them not to support the Union. Voluminous records were put into evidence giving vari- ous wage increases data for various employees. There was no true continuity in this information. The majority of the IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Having found that Respondent laid off Joseph Policas- tro on February 7, 1975, and Jose Rodriguez on March 14, 1975, and did not thereafter offer them reinstatement, I recommend that Respondent offer them immediate and full reinstatement to their former positions or, if such posi- tions have been abolished or changed in Respondent's op- erations, then to any substantially similar position, without prejudice to their seniority or other rights and privileges and that Respondent make them whole for any loss of pay they may have suffered by reason of Respondent's discrim- inatory layoffs, by payment of a sum equal to that which they would have normally received as wages from the dates of their layoffs, until Respondent offers them reinstate- PARAMOUNT METAL & FINISHING CO 473 ment, less any net earnings for the interim. Backpay is to be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 ( 1962). I further recommend that Respondent make available to the Board, upon request, payroll and other records in order to facili- tate checking the amounts of backpay due them and any other rights they might be entitled to receive. Having found that Respondent did not use an objective standard in making these layoffs, I conclude that an objec- tive standard such as plantwide seniority should be used in determining the length of the backpay periods, and for re- instatement if Respondent undergoes substantial layoffs due to economic conditions , providing that the discrimina- tees are capable by objective standards of performing the work available. Having further found that Respondent violated Section 8(a)(1) of the Act by engaging in surveillance of the union activities of its employees and since it is a part of the pur- pose of the Act to prevent the commission of unfair labor practices, I recommend that Respondent be ordered to cease and desist from violating the Act in the same or a similar manner. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by un- lawfully surveilling its employees ' union activities. 4. Respondent violated Section 8(a)(1) and (3) of the Act by its discriminatory layoff of Joseph Policastro and Jose Rodriguez because they engaged in union and con- certed activities for the purpose of mutual aid and protec- tion. [Recommended Order omitted from publication.]