Colorflo Decorator Products, Inc.

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Colorflo Decorator Products, Inc. and District 65, Distributive Workers of America (Independent). Cases 21-CA-14266 and 21-CA-14273 February 23, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On August 31, 1976, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and the General Counsel filed a motion to strike Respondent's exceptions.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and motion and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Colorflo Decora- tor Products, Inc., Riverside, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. I We hereby deny the General Counsel's motion to strike Respondent's exceptions. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge' s resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard by me in Riverside, California, on May 19 through 21 and on May 24, 1976. On February 27, 1976, the I Unless otherwise stated , all dates occurred in 1975. 228 NLRB No. 53 Regional Director for Region 21 of the National Labor Relations Board issued an order consolidating cases, consolidated complaint, and notice of hearing, based upon an unfair labor practice charge filed in Case 21-CA-14266 on December 24, 1975,1 as amended on February 25, 1976, and upon an unfair labor practice charge filed in Case 21- CA-14273 on January 2, 1976, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, upon the briefs, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION At all times material herein, Colorflo Decorator Pro- ducts, Inc., herein called Respondent, has been a California corporation engaged in the manufacture of resin gift items at its facility located at 12155 Magnolia Avenue, Riverside, California. In the normal course and conduct of these operations, Respondent annually sells and ships products valued in excess of $50,000 directly to customers located outside the State of California. Therefore, I find, as admitted in the answer, that at all times material, Respon- dent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, District 65, Distributive Workers of America (Independent), herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES 1. Whether leadwomen Mary German,2 Rosalie Her- nandez, and Rebecca Vargas are supervisors within the meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(2) and (13) of the Act? 2. Whether Respondent, through Vargas, violated Sec- tion 8(a)(1) of the Act by engaging in the following conduct: Between July and September through December, threatening employees with discharge and other reprisals in order to discourage them from joining or assisting the Union; in July and September, giving employees the impression that Respondent was engaging in surveillance of their union activities; on or about September 2, interrogat- ing employees concerning their union membership, activi- ties, and sympathies, and the union membership, activities, and sympathies of their fellow employees; and, on or about 2 Also referred to in the transcript as Mary Zubia. COLORFLO DECORATOR PRODUCTS 409 December 12, promising benefits to employees in order to encourage them to forego their support of the Union? 3. Whether, during the first week of October, Respon- dent, through German, threatened employees with dis- charge and other reprisals in order to discourage them from joining or assisting the Union, thereby violating Section 8(a)(1) of the Act? 4. Whether Respondent discharged and failed to rein- state Catalina Castillo because she had engaged in union or other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection and, if so, whether this discharge occurred subsequent to July 2? 5. Whether Respondent terminated Carmen Verdugo on July 25, Maria Leon and Gloria Cota on September 4, and Connie Alvarado, Patricia Anaya, Luisa Asencia,3 Teresa Cacho, Esperanza Cruz, Evangelina Gonzales, Norma Osterhout, Lupe Quiroz, Margaret Sierra, and Lucia Valencia on December 12 because they had engaged or Respondent suspected that they had engaged in activities supporting the Union, thereby violating Section 8(a)(3) and (1) of the Act? IV. SUPERVISORY STATUS OF THE LEADWOMEN Respondent operates a seasonal business centered on the Christmas season and the Valentine's Day-Easter-Mother's Day season. Thus, its peak periods are from August to November and from February to April. During those periods, Respondent employs 45-47 production employees, including leadpersons and 3 maintenance employees, and, additionally, approximately 4 shipping department employ- ees. For the remainder of the year, between 16 and 20 production employees and 2 shipping employees suffice to conduct operations. Respondent's president is Lester Mendell, who makes daily tours through the production area, making certain that quality control standards are maintained, taking care of mechanical conveyors and, generally, being certain that repairs are effected and that everything is functioning properly. So far as the record discloses, Mendell does not become involved with personnel matters nor with the supervision of the production and shipping employees. Frances Ninow serves as credit manager, office manager, and personnel director. As credit manager, she clears all orders by obtaining and checking out credit references on customers to ascertain if they will be accorded open accounts or will be required to submit prepayments. As office manager, Ninow manages the office and is responsi- ble for financial matters, including billing. Finally, as personnel manager, she is responsible for "the hiring and the dismissal of the employees, their benefits, the timecards, the payroll." In this capacity, Ninow testified that she does all interviewing of applicants and, additionally, visits the production and shipping areas daily where she may spend "up to an hour or more" watching the employees at work. Since March 1976, Robert Billings has occupied the position of plant manager. Prior to that time Lanell Clark served as plant manager. Ninow's description of the duties performed by the plant manager was as follows: The plant manager oversees all of the production within the plant from the time that an order is received in-house and goes through the credit process and is turned over to the plant manager' s section, he then makes sure that those parts are logged in and that parts are made up for the production. He also oversees all of the employees in the produc- tion area. He handles all of the purchasing involved with the manufacturing. He handles all of the maintenance of the plant. He just generally handles the entire plant functions. According to Ninow, these duties require the plant manag- er to spend 90 percent of his working time on the production floor. Respondent employs three leadwomen: Mary German, the shipping department leadwoman; Rebecca Vargas, the leadwoman for the large conveyor, the frame conveyor and the large trivets; and, Rosalie Hernandez, the leadwoman for pressing and storing flowers. Contrary to the contention of the General Counsel, Respondent denies that these leadwomen are supervisors within the meaning of Section 2(11) of the Act. Yet, every employee or former employee appearing as a witness testified that the leadwomen had made daily work assignments. A number of them testified that they had regularly been transferred from uncompleted tasks to different jobs by the leadwomen. Whenever they had completed assignments earlier than anticipated, testi- fied the employees, they would be reassigned to different duties by the leadwomen. Several testified that they had been instructed to telephone their leadwomen whenever they were to be absent or tardy and several also testified that they had been reprimanded by the leadwomen. Five testified to having requested permission of the leadwomen to leave work early and to having been granted permission by the leadwomen. It is undisputed that the leadwomen make corrections on timecards whenever the timeclock malfunctions or whenever employees forget to punch their timecards. It is the leadwomen who distribute paychecks on paydays. Vargas and Hernandez share an office, where they have desks and signs bearing their names, with a window through which they can observe the production area. Leadwoman German shares the plant manager's office, which also has a window through which the shipping area is visible. Respondent does not dispute the accuracy of these matters but contends that the employees had been viewing but a part of an overall picture which, examined as a whole, shows that the leadwomen are mere conduits for the directions of higher management and that they lack the requisite independent judgment to qualify as supervisors under Section 2(11) of the Act. For example, testified Ninow, work assignments are made on the basis of production cards which are prepared by the plant manager and then distributed by the leadwomen to work stations based upon the locations where the work described on the cards is performed. Similarly, Ninow testified that employ- ee reassignments are made pursuant to production require- ments established by the plant manager and when more 3 Although spelled other ways in the briefs , the spelling used in this Decision conforms with the manner in which Asencia spelled it when called to testify 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than one job remains for completion at the time that an employee completes an assignment, the leadwoman must ask the plant manager to which job the employee should be reassigned . Ninow denied ever having told employees to call their leadwomen if they intended to be absent or tardy, claiming that she had merely told them to call the office. While conceding that leadwomen could excuse employees early from work, Ninow asserted that this authority was severely circumscribed, exercisable only if the employee had a doctor's appointment or would be absent for a short period and, then, only if no higher management official was present. Ninow flatly denied that leadwomen possessed authority to reprimand employees and described an incident where, allegedly, three employees had complained about Vargas telling them to punch out if they did not like being forced to work so hard. Ninow testified that she had immediately told the three employees that Vargas lacked such authority, had then spoken with Vargas about the matter and had told the three employees that they should report any further problems. Ninow also described an incident where she had given similar information to Esperanza Cruz. Finally, while conceding that the leadwomen did have offices, Ninow testified that very little of their working time was spent there, estimating that Hernandez and Vargas spent 95 percent of their working time during the slow seasons and all of their time during the busy seasons on the production floor doing the same types of work as the employees. Similarly, Ninow claimed that German spent 80 percent of her time during the slow seasons and 20 percent of her time during the busy seasons performing shipping work. Accord- ing to Ninow, when working in the office, German was occupied handling the routing of orders and receiving documents. It is not disputed that the leadwomen are hourly paid, receive time and a half for overtime work, are docked for being tardy or absent, have no special benefits, do not attend management meetings , and enjoy the same fringe benefits, are subject to the same personnel policies, punch the same timeclock, and wear the same type of work clothing as do the employees. On the other hand, these matters are not determinative in appraising supervisory status. Section 2(11) of the Act defines a supervisor as: ... any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Possession of any one of these powers is sufficient to confer supervisory status. N.L.R.B. v. Edward G. Budd Manufac- turing Co., 169 F.2d 571, 576 (C.A. 6, 1948), cert. denied 335 U.S. 908 (1949); Ohio Power Company v. N.LR.B., 176 F.2d 385, 387 (C.A. 6, 1949), cert. denied 338 U.S. 899 (1949). Notwithstanding Respondent's contentions, several factors dictate that, at the very least, the leadwomen do exercise independent judgment in responsibly directing employees. First, no corroboration was provided for Ninow's testi- mony. Neither former Plant Manager Clark nor present Plant Manager Billings was called by Respondent to testify concerning the day-to-day supervision of the employees. No explanation was proffered for failing to do so. More- over, while Respondent called each of the leadwomen as witnesses and while each testified in a manner favorable to Respondent in other areas, no questions were put to them on direct examination concerning their duties and authori- ties. All questions on cross-examination which touched on these subjects were met with objections under Federal Rules of Evidence, Rule 611(b). Thus, in the area of day-to- day supervision of employees, it was as if the leadwomen had never been called by Respondent and, again, no explanation was advanced for pursuing this course. The absence of this testimony was quite significant for even accepting Ninow's testimony about the amount of time that she spent in the production area, it is clear that, with respect to the day-to-day supervision of employees, Respondent had chosen to rely on a witness less qualified than others who were at Respondent's disposal. "The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause. " 2 Wigmore on Evidence, sec. 285, p. 162 (3d ed. 1940). See also International Association of Bridge, Structural and Ornamen- tal Iron Workers (AFL-CIO), Local 600 (Bay City Erection Company, Inc.), 134 NLRB 301, 306, fn. 11(1961). Second, as discussed more fully in section V, B, infra, Ninow was not a credible witness, displaying a tendency to make generalized assertions favoring Respondent' s inter- ests and then to avoid answering and to answer evasively when interrogated regarding specific information underly- ing those generalized assertions. In addition, were Ninow to be credited, it would mean that the only supervisors in Respondent's facility were she and the plant manager. Considering that the peak seasons last approximately half of the year, this would mean that two supervisors were supervising almost 50 employees for a substantial portion of the time. In fact, since Ninow does not actually supervise the employees while in the production and shipping areas, it would mean that during the peak seasons, the plant manager would be supervising 50 employees, a ratio which the Board has held to be disproportionate. The Banta Company, 145 NLRB 1141, 1143, fn. 6 (1964). Moreover, given the extensive responsibilities and duties which both Ninow and the plant manager discharge, as described above, it is unlikely that they would have the time to provide any significant degree of direct day-to-day supervi- sion to the employees during even the nonpeak seasons. Third, Ninow acknowledged that Vargas and Hernandez were responsible for being certain that production is performed properly. She admitted that the leadwomen would tell employees when the work had not been per- formed properly and that the employees would be expected to "do it over again." Moreover, Respondent conceded that on production cards appears a blank prefaced by the punted word "Supervisor" and that the name of the appropriate leadwoman is written on the space beside those blanks. However, Respondent argues that the work is not complex and, accordingly, that the decisions made by the COLORFLO DECORATOR PRODUCTS 411 leadwomen are not complicated. Yet, as the Board pointed out in Dunkirk Motor Inn, Inc., d/b/a Holiday Inn of Dunkirk-Fredonia, 211 NLRB 461, 462 (1974): The test of responsible direction does not depend on the complexity and difficulty of the . . . work or of the corrective measures invoked.... Adoption of that test would unrealistically rule out a finding of responsible direction in all situations where the work involved does not require a high degree of skill and technical compe- tence. The proper test . . . is that [the supervisor] exercises independent judgment without consultation ... in ascertaining the deficiencies in the . . . work, however prosaic and uncomplicated, and utilizing the authority to order that the work be done correctly. Finally, a great deal of the General Counsel's testimony concerning specific events illustrating exercise of indepen- dent discretion by leadwomen went unrefuted. Thus, while Ninow testified that production cards were distributed to the employees, Respondent did not dispute Catalina Castillo's testimony that, when she had been hired initially in September 1974, the cards had been used until her leadwoman, Rebecca Vargas, returned from vacation, after which use of the cards to assign work had been discontin- ued. Similarly, Respondent did not dispute the testimony of several employees that, on various occasions when they had completed their assigned duties, their leadwomen had assigned them to other work, immediately upon being advised that they had completed their work without having consulted with anyone. Significantly several of these assignments resulted in the transfer of employees to an area where a different person served as leadwomen. For exam- ple, shipping department employee Gloria Cota had been assigned, occasionally, by shipping department leadwoman German to help leadwoman Hernandez - immediately upon Cota's report that she had completed her work and without having consulted with any other person. Further, Vargas did not deny having directed Maria Martinez, Castillo, and Esperanza Cruz to call her if they intended to be tardy or absent. Indeed, such a direction was consistent with the nature of Respondent's operation wherein the plant opened at 7 a.m., but the offices did not open until 8 a.m. Thus, if an employee wanted to call to report that he or she would be late or absent, that report would have to be made near the beginning of the day's work (particularly with regard to tardiness, since a belated report, made only after the office had opened, would hardly be sensible) when only the leadwomen were in the plant. This latter point is of some significance as well , for Ninow did not report for work until between 8:30 and 9 a.m. and the plant manager sometimes did not report until much later. Thus, the leadwomen, each of whom had keys to the facility and were responsible for opening it each morning, would be the highest officials in the plant for a significant portion each working day. Finally, there were no denials of Castillo's testimony that Vargas had threatened to discharge her for sloppy work and inattention and of Lupe Quiroz' testimony 4 No differentiation is attached by Respondent to the terms "layoff" and "discharge." 5 During 1975, there had been a close relationship between Vargas and Varela, as the former had ridden the latter to and from work and had also, that Vargas had threatened to discharge her if she again failed to put catalyst in the resin. Nor was it disputed that German had once told Maria Leon, Carmen Verdugo, and Cota that if they had to be warned a third time for excessive talking, all three of them would be terminated. Therefore, in view of the undisputed evidence and of the fact that Respondent has failed to present credible evidence sufficient to contradict or to explain the matters testified to by the General Counsel's witnesses, I find that the leadwomen - Mary German, Rebecca Vargas, and Rosalie Hernandez - are supervisors within the meaning of Section 2(11) of the Act and, concomitantly, are agents of Respondent within the meaning of Section 2(13) of the Act. See American Book Division, Litton Educational Publishing, Inc., 214 NLRB 413 (1974); Screwmatic, Inc., 218 NLRB 1372 (1975). V. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged 8(a)(1) Conduct To appreciate the relationship of some of the following statements, allegedly violative of Section 8(a)(1) of the Act, the order of the discharges should be kept in mind:4 Catalina Castillo in late June or early July, Carmen Verdugo on July 25, Maria Leon and Gloria Cota on September 4, and the remaining 10 employees were terminated on December 12. Esperanza Cruz testified that on September 2, she had been in the lunchroom where Vargas and Ernestina Varela, an employee,5 were together at another table. According to Cruz, Vargas had told Varela "There are some crazy ones organizing the Union, but they don't know what they are doing" and, then, had turned and asked what Cruz thought about the Union. Cruz testified that she had replied that she did not know anything and that Vargas had then told Varela, "If we had known before that they were talking about the Union, they would have been terminated earlier." Cruz conceded that no names had been mentioned by Vargas. Both Varela and Vargas denied that the latter had made the statements "The crazy employees are organizing the Union" and "If the company had known they would have been fired earlier." However, Vargas' denials were directed to statements made on December 2 and neither Varela nor Vargas denied that the latter had asked Cruz what she thought about the Union. Maria Leon testified that, following Cota's and her terminations on September 4, they had been returning to the shipping department when they had encountered Vargas who laughed at them and said, "That's what you get for messing around with the union. We don't want any union here, and whoever signed the cards are going to be laid off." Vargas denied telling Leon on September 4 or at any other time, "That's what you get being for the Union." Cota, who gave a full recitation of the events surrounding the September 4 terminations, made no mention of such a statement by Vargas. Nor was there mention of such comments by Leon in her prehearing affidavit, dated occasionally, dropped off Varela's paycheck on paydays when Varela had been absent from work. The two women also sat together during their morning and lunch breaks. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 26. In explanation, Leon asserted that she had reported Vargas' comments to the Board agent, but that he had replied, "I have everything that's important in here, so you can go ahead and sign it." Maria Martinez testified that on September 5, while she worked in the same area as Virginia Keaveny, Vargas had approached Hernandez and German, who had been conferring near where Martinez was working, and had said that Cota and Leon had been laid off because they were "pushers of the Union." Keaveny, who preceded the three leadwomen as a witness for Respondent, testified that she had not heard such a remark by Vargas on September 5. The three leadwomen, while denying that Vargas had said that Cota and Leon had been laid off for supporting the Union, admitted that they had participated in a discussion in September, during which the two terminations had been discussed. However, they testified that the discussion had involved rumors, to the effect that Cota and Leon had been discharged for supporting the Union, which were allegedly circulating through the facility. While this might well have explained the words that Martinez had heard, the fact is that when pressed for details of this conversation Hernan- dez and Vargas, to whom German attributed the statements which she had heard concerning the rumors, became quite vague. Their testimony in this respect is quite instructive for it displays a lack of detail which pervaded Respondent's case, as discussed more fully in the next section. Thus, questioned about the matter, Hernandez testified as fol- lows: Q. Will you please tell me the entire conversation as best you can recall? What was said by the individuals present, including yourself? A. I don't remember. I can't remember that far back exactly what we were saying, you know. Q. You mean to tell me that all you can remember is the fact that she said there was rumors? A. No, I mean we were talking and all that, I know that. But I mean I can't tell you - I can't remember exactly every word we could have said. Q. Well, I'm not - as best you can remember, what was said by the people present during that conversa- tion? What did you say and what did Becky Vargas say and what did Mary German say? A. I can't remember that. Regarding this conversation, Vargas testified as follows: Q. What did you tell Mary German about that? A. Well, we said probably maybe that's why it was. Q. Maybe that's why what was? A. That that's why the rumor was going around, maybe that's what it had to do. Q. What had to do? I don't understand. A. Well, there was talk around about the union, so maybe that's why. Q. Maybe what's why? I'm not trying to be diffi- cult, but I don't understand. You are referring to something and I don't know what you are referring to. A. Well, I am referring to that that's maybe that's why the rumor was going on. Q. What's why the rumor was going on? A. Well, it was all the topic after - that they were laid off. First they were laid off for lack of work. Then later on they said that, the girls who were talking, said maybe it was due to the union. That's when we really found out about the union. Q. Now, I want to know - you in your conversa- tion with Mary German when you talked about the girls and their union activities, I want you to tell me what was said, okay? A. Well, I just told you. : r * s s A. Well, the only thing the three of us said that maybe it was because of the union. Q. All three of you said that? A. Well, that was the topic of the conversation. A. I really don't know how to say it except it's just a topic we got onto and said, "Well, maybe it is." JUDGE: Well, what led you to say that? Tim WrrNEss: Well, because all the rumors that were going around the plant. JUDGE: Well, but somebody apparently said some- thing in the conversation that led you to say, "Yes, maybe it was that." Tim WITNESS: Maybe I guess we were talking about that. JUDGE: Do you remember who said what? Tim WITNESS: I'm not sure if it was Mary or Rosy. I can't say really it was one of them when we got onto it. s s w s Q. The only thing you remember, then, is that you talked about some rumors, but you don't know who said what, is that correct? A. Right. Moreover, though she asserted that she had heard these "rumors" at various points in the plant on September 5, including in the lunchroom where she admitted that the tables are sufficiently close to hear conversations, Vargas was unable to specify the name of even one employee whom she had overheard making the comment that Cota and Leon had been terminated due to the Union. Cruz testified that, approximately 4 days later, she had been bending over, removing a cart from beneath a worktable at which Varela and Opheliz Gutierrez were talking with Vargas, and she had heard Vargas saying that she knew there had been union meetings in the home of Castillo and Verdugo. Varela and Vargas both denied only that the latter had said that she knew that Verdugo and Leon had been having union meetings or union members in their homes .6 6 Although her affidavit states that Vargas had been two or three tables "from where I was, and I heard her,. " Cruz explained that it had been her work station that had been two or three tables from where Vargas had been conversing with the two employees, while she had been searching for a cart to take to that work station COLORFLO DECORATOR PRODUCTS 413 Lucia Valencia testified that she had been in the dining room on approximately September 8 with Lupe Quiroz and Teresa Cacho when she had heard Vargas tell four employees, whose names she did not recall , at the next table, "Maria Leon and Gloria Cota were fired because of the Union and because of me, because of myself." Vargas denied having made this statement. Quiroz and Cacho did not testify to having heard Vargas make such a statement, although Valencia was unable to recall if they could have heard Vargas' remark. The lone unlawful statement attributed to German is based upon the testimony of Maria Leon, who claimed that, during a telephone conversation 1 or 2 weeks after her termination, she had inquired of German about the reason for her discharge, telling German that she had found out that the true reason had been because of the Union. According to Leon, German had said that this was true, that Ninow had said that Cota and she had been laid off because they were supporting the Union, and that anybody else who signed cards for the Union would also be fired. This alleged conversation was also omitted from Leon's affidavit and she again attributed to the Board agent the decision to omit it. German conceded that she had spoken with Leon on the telephone after September 4. But she contended that the first conversation, occurring on Septem- ber 5, had consisted of Leon asking why she had been laid off and of German replying that it had been occasioned by lack of work, adding that there were rumors that it had been because Cota and she were pushing for the Union. German failed to explain why she had felt it necessary to raise the subject of these rumors. The second conversation, accord- ing to German, had been confined to Leon asking for German's opinion of the Union to which German had responded that she was not favorably disposed. Luisa Asencia testified that, approximately 2 weeks after the September 4 terminations, she had been in the lunch- room, removing food from the refrigerator, when she had overheard Vargas telling Varela, Esmeralda, and three others, "You see, because of being involved or of dealing with this about the Union, that's why Maria Leon and Gloria Cota were thrown out. If you also get involved with that of the Union you also will be let out or let go ." In her prehearing affidavit, Asencia had placed this comment as occurring in November and, confronted with this, she explained that as she was unable to read , the Board agent had read the statement to her and while she had realized that he had written November, rather than September, she had not said anything. More significant was the portion of the affidavit which recites Vargas' words : "See, because of going around, or making around, or being around with that one of the Union, you are going to be fired." Confronted with the omission of any specific reference to Cota and Leon in the affidavit, Asencia appeared quite puzzled, inquiring "It's not written on my statement?" Interestingly, neither Vargas nor Varela specifically denied that the remark about Cota and Leon had been made by Vargas in late September. They merely denied that Vargas had ever said that Verdugo and Leon had been fired because of the Union and this denial, at least in the case of Vargas, appeared to be directed more to Valencia's description of the September 8 dining room incident. By contrast, both did deny specifically that Vargas had said that those who got involved with the Union or had anything to do with it would lose their jobs - which, of course, is the portion of the conversation which does appear in Asencia's statement. Valencia testified that in latter September Vargas had approached her and had asked if she had signed a union card. Valencia further testified that when she had pleaded lack of knowledge about the matter, Vargas had stated that where the Union had become the representative of employ- ees, wages at those factories had been reduced and that the same would happen at Respondent were the Union successful in becoming the representative of the employees. Vargas denied only that she had stated, around the latter part of September, that if the Union got into the plant, wages would be lowered. Three employees - Cruz, Lupe Quiroz, and Teresa Cacho - testified to an incident occurring in the lunch- room in October. Each recited that Vargas had entered, had warned that the employees should not organize for the Union or "the boss" would run them off, and had then left. Though Cruz made no mention of the fact, both Quiroz and Cacho testified that Vargas had seated herself at another table while there. Vargas denied having stated in October that employees who organized for the Union would be fired and denied stating that employees should not sign for the Union because "the boss" would get rid of them. Neither Cruz nor Quiroz had included an account of this incident in their prehearing affidavits and both claimed that they had not recalled the incidents at the time that those affidavits had been taken. The same three employees testified that in November, as they had worked together, Vargas had stopped and had warned Quiroz not to organize for the Union since those who did so would be fired. Vargas denied having made the statement and this incident is omitted from the affidavits of all three women. In the fall, St. Edwards Parish had a carnival. Leon testified that she and her two sisters , Micaela and Transita Marquez, had attended and, while there, had encountered Vargas working at a food stand. According to Leon, Vargas had asked what Leon was doing and when the latter had responded that she was not working, Vargas had retorted: "That's what you get for messing around with the Union. We don't want any union in there and whoever signs the card [sic ] are going to get fired, too." Micaela Marquez, who acknowledged that she had never seen Vargas at Respondent and had only encountered her in connection with parish affairs, testified that Vargas had said that Leon had been fired because she was in the Union, conceding that she (Micaela Marquez) had not been interested in the conversation apparently since, at the time , she was running for queen in the carnival. Transita Marquez testified that all that Vargas had said was that whoever signed a union card was going to be fired and, like her sister, acknowledged that she had not encountered Vargas at Respondent's facility. Vargas admitted having worked at a food booth during the carnival, but denied having made the statements attributed 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to her by Leon and her two sisters, contending that she had been too busy in the booth to engage in discussions. The final incident allegedly occurred on December 12, the day of the mass layoff alleged as a violation of Section 8(aX3) and (1) of the Act. Quiroz and Cacho testified that, as they were leaving the lunchroom, they encountered Vargas who, from a distance of approximately 50 feet and in the presence of other employees, taunted them by saying that because of her (Vargas') "huevos," the two employees were "going out" and her wish had been granted, that whoever else organized or signed for the Union would also be fired like Quiroz and Cacho, that those who did not sign for the Union would be given a week's Christmas vacation, and that Respondent wanted no union. This was not included in the prehearing affidavit of Quiroz, who testified that she had not recalled it at the time that her statement had been taken. Vargas denied having spoken to Cacho and Quiroz on December 12, denied having said,"You are going now. What I wanted has happened. Those who helped the Union have to go because we don't want the Union here," and denied saying, "Those who sign up with the Union will be run off, and those that don't sign will get a bonus." Further examination elicited denials from Vargas that she had ever used the word "huevos" at work, that she had seen Quiroz and Cacho outside the lunchroom and that she knew that they were to be terminated or laid off. Yet, Ninow admitted that in 1975 Respondent had instituted a new benefit - giving a week off at Christmas time for which employees who had been employed for at least a year were compensated. Though she claimed that this benefit had been announced early in the year, there was no corroboration for this assertion. A considerable portion of Respondent's brief is devoted to highlighting a series of statements made by the General Counsel's witnesses, showing, for the most part, discrepan- cies between the testimony and the prehearing affidavits. This, of course, does not constitute per se grounds for discrediting witnesses. It should be kept in mind that the General Counsel's witnesses were not highly educated professional persons. Moreover, forgetfulness and confu- sion are common traits. Thus, I am considering the omissions from the affidavits, the conflicts between testi- mony and affidavits, and the various explanations for discrepancies only to the extent that they truly appear to have arisen from an effort to embellish the General Counsel's case. First, there are two witnesses who were most impressive when they testified and whom I credit without reservation, based upon their demeanor - Lucia Valencia and Teresa Cacho. At no point was Valencia's testimony rendered suspect by any objective or subjective criteria. Though there were occasions where the questioning confused her and while she displayed the normal tenseness of persons not experienced in testifying, she answered the questions put to her in a forthright manner and seemingly made every effort to be precise in her responses to questions. Consequently, I find, consistent with Valencia's testimony, that on approxi- mately September 8, Vargas did tell four employees "Maria Leon and Gloria Cota were fired because of the Union and because of me, because of myself," and that in late September Vargas had asked if Valencia had signed a card for the Union and did threaten that wages would be reduced if the Union succeeded in becoming the represent' tative of Respondent's employees. As will be discussed at greater length below, I do not credit Vargas and, conse- quently, do not credit her denials to these statements. Therefore, I find that by this conduct Respondent threat- ened to discharge employees who supported the Union, interrogated employees concerning their union activities, and threatened wage reductions should the Union become the employees' bargaining representative. While Cacho's affidavit omitted mention of Vargas' November warning to Quiroz, her explanation that she did not recall why she had failed to mention the statement when interviewed seemed a sincere acceptance of fault for the omission - in contrast to Leon's effort to place the blame on the investigator. Cacho's attitude in this respect was consistent with her overall demeanor, which was unaffected and virtually childlike in its sincerity. I fully credit her and, this being the case, do not consider it material to review in detail Cruz' and Quiroz' explanations as to why they had failed to include in their affidavits descriptions of the incidents in October and November, as well as Quiroz' effort to explain why she had not earlier told the Board about the December 12 comments of Vargas - a portion of Cacho's testimony that was particularly convinc- ing. Therefore, consistent with my finding regarding Cacho's credibility, I find that in October Vargas did warn that if the employees organized for the Union the "boss" would run them out; in November Vargas did wain Quiroz that those who organized for the Union would be terminat- ed; and on December 12 Vargas did express extreme satisfaction over the terminations of Quiroz and Cacho, did warn that whoever else organized or signed cards for the Union would be similarly fired, and did promise a week's paid vacation to those who refrained from supporting the Union. The latter is, of course, consistent with what did subsequently happen, when the employees were given an additional week's paid vacation (at least, those employed for a year or more) for the first time in Respondent's history. Consequently, I fmd that Respondent did threaten to discharge employees who supported the Union, and did promise benefits to employees to encourage them to forego their support of the Union. Second, Hernandez' and Vargas' efforts to explain their conversation of September 5 was totally unpersuasive. Not only were they unable to describe the words that they had exchanged, beyond the generalized mention of rumors that Cota and Leon had been discharged for supporting the Union, but Vargas was totally unable to recall even a single source of this asserted rumor. In fact, so confused did she become in her effort to construct a plausible recitation that would satisfy the questions being put to her, that Vargas, in effect, admitted having said exactly what Maria Martinez had testified having overheard her say - that Cota and Leon had been discharged because they were supporting the Union. I credit Maria Martinez' testimony to this effect. Third, two facets of Maria Leon's testimony were rendered unbelievable by her explanation of why they had been omitted from her affidavit: her account of Vargas' purported statement to Cota and her on September 4 and her recitation of the telephone conversation with German COLORFLO DECORATOR PRODUCTS 415 following those terminations . Both of these matters per- tained directly to Respondent's motive for effecting the terminations. Surely their significance would have been evident to any employee who had been terminated and who was charging the employer with an unfair labor practice because of that termination. Moreover, even the most novice Board agent would appreciate their significance. Consequently, her explanation for their omission from her affidavit - that the Board agent had, in effect, said that they were not important - is quite clearly at odds with the realities of the situation. It is also of great significance that Cota, who fully described the events of September 4, made no mention of any statement such as Leon attributes to Vargas. True, German did admit having mentioned the Union during her first telephone conversation with Leon following the discharge. Yet, German did not appear to have been making an effort, as was Vargas, to intimidate the employees and to make sure that they appreciated the unlawful consequences resulting from their efforts to obtain representation. I do not credit Leon's testimony regarding the September 4 comments of Vargas nor concerning the purported telephone comments made by German. This, however, does not end the matter, for there is also Leon's testimony concerning Vargas' carnival statement. The fact that a witness's testimony is not credible in some respects does not render it not credible in all respects. See Bloom/Art Textiles, Inc., 225 NLRB 766 (1976). Leon's testimony concerning Vargas' carnival statement is corrob- orated when the testimony of her two sisters is put together - with Micaela Marquez corroborating the part about Leon being discharged "for messing around with the Union" and with Transita Marquez corroborating the part about others suffering a similar fate if they also supported the Union. The fact that neither sister overheard all of Vargas' remarks does not impair their credibility. To the contrary, it enhances it, for if they were fabricating their testimony in league with their sister, it is unlikely that they would each omit portions of Vargas' statement. Both were young and Micaela Marquez admitted that she had not been fully attentive. That Vargas may have been very busy does not militate against a fording that she made such a statement . After all, it was a brief exchange, hardly requiring any significant departure from the task in which Vargas was engaging. Moreover, the Marquez sisters' identification of Vargas is not impaired by their failure to have seen her at Respondent's. Respondent has produced no evidence that would support the likelihood of a second parishioner named Rebecca Vargas. I credit the three sisters and find that, at the carnival, Vargas did say that Leon had been fired for "messing around with the Union" and that she did threaten that other employees who did so would also be fired. One could only sympathize with the plight of Luisa Asencia. Unable to read and obviously too timid to challenge an agent of the Federal government, she had not challenged the Board agent's inaccurate transcription of the date of the lunchroom comments which she overheard Vargas make in late September. Her shocked and uncom- prehending reaction to the discovery that her full account of those comments had not been transcribed in the affidavit could only have been genuine. She simply did not appear to be sufficiently devious to have been dissembling. I credit her testimony that, approximately 2 weeks after the September 4 terminations, Vargas did say that Leon and Cota had been discharged because of their involvement with the Union and that others would be discharged if they engaged in such activity. Finally, there is the testimony of Esperanza Cruz. A considerable segment of the events which she described when she testified had been omitted from her prehearing affidavits - one taken on September 26 and a second taken on January 12, 1976, each by a different Board agent. Respondent argues, quite ably, that these omissions are evidence of Cruz' attempts to embellish the General Counsel's case. Without belaboring the matter, the simple fact is that I have already found, based upon Cacho's testimony, that the October lunchroom comments and the November warning to Quiroz by Vargas both did occur. Both incidents which Cruz described as occurring in September - the one in the lunchroom on the 2nd where Vargas was with Varela and the one at the workbench approximately 4 days after Leon and Cota had been terminated - were included in Cruz' initial affidavit. Consequently, Respondent's argument concerning Cruz' credibility is inapplicable to these matters, particularly as the first affidavit was taken prior to the time that the Acting Regional Director dismissed the initial charge against Respondent, which Respondent, in essence, argues was the event which led the General Counsel's witnesses to embell- ish their testimony in an effort to make a case against Respondent. True, Cruz' affidavit could be interpreted in such a manner that it appeared to show Cruz standing in a position other than she testified she had been in at the time of the second conversation. But, this is entirely too ambiguous a factor to discredit her entire testimony. I have already found that Vargas was not a credible witness. Similarly, Varela, apparently influenced by her close relationship with Vargas, was not an impressive witness. I find that Cruz did overhear Vargas on September 2 saying that "crazy" employees were organizing a union, that she did question Cruz concerning the latter's opinion, and that she did say that the employees would have been terminated earlier had Respondent learned sooner of their activities. I also find that, following Leon's and Cota's terminations, Vargas did say that she knew that union meetings had been occurring in Castillo and Verdugo's home. Accordingly, Respondent did give employees the impression that it was engaging in surveillance of their union activities, did interrogate employees regarding those activities, and did threaten termination as a reprisal for engaging in such activities. B. The Terminations Respondent contends that the 14 alleged discriminatees were terminated as part of an overall pattern of termina- tions occasioned by the seasonal nature of its operations and by the fact that its projected business had exceeded its actual volume of business. It points to the fact that between April and the end of the year, 30 employees, in addition to the alleged discriminatees, were terminated, 21 others quit and 3 were granted leave. While not disputing these facts, the General Counsel argues, in effect, that the selection of 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 14 alleged discriminatees and the timing of their terminations was such that Respondent took advantage of its general economic situation to eliminate the Union's supporters and those which it suspected of supporting the Union. Catalina Castillo had been hired originally by Respon- dent in 1968 and she testified that her last day of work had been June 28, though her timecard disclosed that it had actually been June 26. She had signed an authorization card for the Union on June 1 and, thereafter, distributed cards at work and encouraged other employees to support the Union until June 5 when, discouraged with the lack of enthusiasm shown by the employees, she ceased her activities on its behalf. She acknowledged that her activities had been conducted in "private so the Company wouldn't know and wouldn't suspect that I was involved in union meetings in the Union." She testified that, due to a family illness, she had gone to the office on Monday, June 30, to speak with Ninow about obtaining time off, but that when she arrived, receptionist Jerry Hughes had said that Ninow was in a meeting. Through the open door to Ninow's office, Castillo had observed Ninow conferring with Clark and Mendell. According to Castillo, Ninow had looked out at Hughes and her, but had continued the meeting with the result that Castillo, impatient to depart due to the nature of her need to be absent, had asked Hughes to request permission for a leave of absence from Ninow. At this point, testified Castillo, Ninow again looked out the door and, after turning to look at Ninow, Hughes said that Castillo had permission and that she (Hughes) would tell Ninow. This was the first time that Castillo had ever directed such a request to Hughes. Upon returning on July 7, Castillo was advised that she had been terminated for being absent without permission. Hughes did not testify nor was the failure to call her as a witness explained, although Respondent conceded that it knew that she was in St. Louis . Ninow denied having seen Castillo on the last day of June and asserted that Hughes had no authority to grant leaves of absence. According to Ninow, the backlog of orders on June 27 dictated the reduction of the employment complement in the pouring department and she had selected Castillo because the latter had not reported for work since June 27 and Respondent did not know where she had gone. Packing department employee Carmen Verdugo testified that she had signed a card for the Union on June 2 and, thereafter, had distributed literature and cards to a couple of employees, had attended seven union meetings, and had talked to approximately seven other employees on behalf of the Union. However, she admitted that she had conducted this activity in secret to avoid discovery by Respondent. On July 27, she testified, Ninow had said that she was to be laid off "for a couple of weeks." However, she was never recalled. In fact, Verdugo was one of two employees terminated that day and Ninow testified that these layoffs had been necessitated by a lack of orders with the result that she and the plant manager made the determination to lay off two employees. The selection of Verdugo, testified Ninow, was the result of her complaints about lifting boxes and having to pack too quickly, which she began to make upon her return from a week's sick leave in late May or early June. Recalled as a rebuttal witness, Verdugo denied ever complaining to Ninow about lifting boxes and testified that she had been absent in the spring for only a day and a half due to a twisted ankle. However, Respondent pro- duced a slip from the Corona Medical Group, dated May 27, which bore Verdugo's name and the inscription: "The above named person may return to work 2nd June '75." Gloria Cota and Maria Leon were two of five employees laid off on September 4. Both had been working in the packing department at the time of their terminations and Ninow acknowledged that they had been the only two full- time employees in that department on September 4. Both had signed authorization cards for the Union on August 28 and, thereafter, both had attended meetings and had spoken with other employees in an effort to encourage them to support the Union. Both were told that they were being laid off for lack of work. Ninow testified that completion of the packing of a large order had left Respondent with very few future orders. Thus, she testified, that she and the plant manager had determined that two packing department employees and three pouring department employees could be terminated. Cota was selected, according to Ninow, because of her allergy to resin, discussed in greater detail below, and Leon was selected because her limited experi- ence in packing did not permit the degree of flexibility in working in other departments which Respondent desired. On December 12, 10 employees were terminated. Marga- ret Sierra and Norma Osterhout had been rehired in November by Respondent with the understanding that their employment would be short-term in duration. Neither of them engaged in any union activity prior to their December terminations. There is, moreover, no evidence of any union activity by Patricia Anaya or Evangelina Gonzales, two others terminated that day. The six others terminated on December 12 - Connie Alvarado, Esperan- za Cruz, Lupe Quiroz, Teresa Cacho, Lucia Valencia and Luisa Asencia - had signed cards authorizing the Union to represent them and on October 1, Respondent had been notified by the Union that Cruz had been chosen to act as shop representative. Ninow testified that by December 12 all Christmas orders had been shipped with the result that a layoff was dictated by the absence of orders to pack. She testified further that Sierra and Osterhout had been selected due to the short-term nature of their employment, Gonzalez had been selected on the basis of the money which she cost Respondent when she had twice failed to flush guns properly for the automatic pouring equipment, and Anaya had been chosen since she was scheduled to leave shortly due to being pregnant. Cruz, Quiroz, Valencia, and Cacho had been chosen, according to Ninow, because they had been working on the frame conveyor and no more frames were needed due to the large number which were in inventory. Ninow testified that the reduced number of orders had left it necessary to retain only one employee in the grinding area and as Asencia had been encountering problems lifting baskets with finished parts due to a possible hernia and since Alvarado had twice been warned for failing to wear safety glasses, they were the two grinding area employees chosen for layoff. Although Respondent's defense appears quite reason- able, a number of factors undermine its validity. First, it COLORFLO DECORATOR PRODUCTS was unsupported by documentary evidence. Ninow testi- fied that, in making determinations of when employees should be terminated, she looked primarily to the cardex records showing the backlog of orders and the inventory records showing the merchandise which was in inventory. Yet, neither these records nor a summary of these records was produced at the hearing - even though Respondent did produce a series of other documents to support its defense, including a list of employees who quit and were terminated from April through February 29, 1976, a list of employees hired and rehired between June 15 and April 30, 1976, a summary of profit-and-loss figures for the fiscal years ending March 31, 1974, 1975, and 1976, and a list showing gross sales for each month from April 1974 through February 1976. No explanation was afforded for failing to produce at least a summary of the cardex and inventory records which, of course, were items that were obviously central to Respondent's entire defense. Having failed to do so, it is fairly inferrable that they would not support Respondent's defense. Borg-Warner Controls, Borg- Warner Corporation, 128 NLRB 1035, 1044-45 (1960); Missouri Transit Company and its President, P. W. Fletcher, 116 NLRB 587,600-601 (1956), enfd. 250 F.2d 261 (C.A. 8, 1957). Second, though Ninow continually brandished lack of sufficient business as a shield to defend the need to terminate the alleged discriminatees , she was unable to provide any specific testimony to support the validity of that defense. Illustrative of this fact was her testimony, reminiscent of that of Hernandez and Vargas quoted previously, concerning the situation at the time that Castillo was chosen for termination: A. We had a need to cut back, as I have told you previously, and since Cathy had not shown up, we decided that we would lay Cathy off. Q. What was the need? Why did you have to cut back on this employee, or an employee? A. We did not have enough business. Q. What does that mean? A. Just what I have told you before. We were not receiving enough orders to keep all of the people on that we had. Q. Well, what's enough orders? A. That's difficult to say exactly, but we can tell when the orders come in the dollar amount involved with the order and the ship date as to how much business we have. Q. Well, you must have made that decision, and in order to make that decision you would have had to consult with the orders. A. Yes, we would have seen them. Q. You must have looked at them? A. Yes. Not at each individual order, no. I would look at the backlog. Q. Well, how was the backlog? A. It was apparently very low. We had been working very little. Q. What do you mean by apparently? Didn't you see it? A. Yes, I am sure I must have. Q. And what were the figures? A. I do not recall. Q. What did you look at? A. The backlog. * * * * 417 Q. And was it a single document you could look at and see what the backlog was like? A. Yes. Q. And do you have that document? * * * A. Yes. Q. A. Q. A. Where is it? In my office. And what would it show? A dollar amount. * Q. If you compared it to the week before would it be a greater or lesser amount? A. I have no way of knowing. Q. Didn't you consider that? A. At the time I did, yes. Q. But you don't remember what it was? A. No, I don't. Ninow testified to similar effect when interrogated concern- ing the backlog at the time that Verdugo had been terminated on July 25 and at the time that Cota and Leon had been terminated on September 4. In other words, examination of Ninow concerning the specific information which underlay her general assertion of lack of business was precluded not only by the absence of the records - it was also precluded by her constant retreat to lack of memory. Third, the plant manager was, according to Ninow, involved in the decisions that led to the selections of the alleged discriminatees for termination. Yet, as noted above, Clark was never called and the failure to call her as a witness was never explained. This is yet a further basis for concluding that Respondent's defense lacks validity. A similar conclusion is warranted by Respondent's failure to call Hughes to rebut Castillo's testimony concerning the events which took place in the office on the day that Castillo sought a leave of absence. Fourth, a series of discrepancies arose in Ninow's testimony concerning the circumstances of the selection of the particular employees who were terminated. Thus, while Ninow claimed that Cota's allergy to resin had been the reason for selecting her for termination, it is undisputed that due to that very allergy Cota had been transferred to the shipping department where she had then worked continuously without apparent ill effect. Leon, according to Ninow, had been selected for termination because she lacked experience in other departments. Yet, Leon had originally worked in production areas after being hired by Respondent on January 18, 1973. Moreover, a basic element of Respondent's defense is that it has a policy of 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not seeking out former employees for rehire, in part, because its production work is so simple to learn. This being true, one wonders why Leon had to be terminated rather than retrained. German admitted that on the day after the two terminations she had spent 2 additional hours working at shipping duties. Maria Martinez and Keaveny, both of whom had been working in shipping part time prior to September 4, spent 60 percent of their working time in that department thereafter and the following week saw Linda Castaneda added to the part-time complement in the shipping department, with 60 percent of her time spent there. Simple mathematics dictates that if three employees each spend 60 percent of their time working in a given area, that adds up to a total of almost 5 full days for two employees (60 percent, of course, translating into 3 days per week). Yet, the matter did not end here , for within 5 to 10 days following Cota and Leon's terminations April Carson was also assigned to the shipping department on a part-time basis. It is not surprising that these assignments had to be made, for by September, Respondent's business has begun to pick up, according to Ninow's testimony regarding the seasons when Respondent is busy, and it is obvious that shipping work would have had to be performed to meet customers' orders. Ninow's testimony also disclosed conflicts in the area of the employees selected for termination in December. While it is true that Alvarado had twice been warned about failing to wear safety glasses, the second warning had occurred in October and there is no evidence that she ever again failed to wear the glasses. Thus, the matter was somewhat stale. Moreover, Ninow admitted that not until approximately 6 weeks prior to December 12 had Cruz, Quiroz, Valencia, and Cacho been transferred from the large conveyor to framing work and that the large inventory of frames had been accumulating for 6 weeks to 2 months prior to December 12 . Unexplained was the need to transfer so many employees to this work in circumstances where the inventory had obviously been building and, further unex- plained was why the four employees had simply not been transferred back to the large conveyor . The latter is a more significant question than might appear at first blush, for Respondent intended to close down for 2 weeks over the Christmas-New Year's holiday period . When it reopened after the first of the year, its second big season would be about to begin as Valentine's Day was little more than 6 weeks in the future. Assuming it intended to have its products on the market sufficiently in advance of that holiday to give customers a chance to purchase them, this would mean that production would commence shortly after January 5, 1976, when the employees returned from leave. This is precisely what did happen - only rather than use its own employees to meet production demands, Respondent relied on Tempo employees. Although Ninow contended that the Tempo employees had been but a part-time affair, and that the number of such employees had varied from day to day, no records were produced to support this assertion, though Ninow freely admitted having them in Respondent's possession. In sum, Respondent's defense consists of but a series of generalizations regarding the purported status of its busi- ness at the time of the terminations of the alleged discriminatees. No documentation was provided to support these generalizations. Ninow resisted efforts to ascertain the specific conditions which prevailed at the time that these employees were terminated . To the extent that she did testify about specific matters, much of that testimony was inconsistent with objective considerations . Plant Manager Clark, who assertedly participated in the decisions regard- ing the selection of employees for termination, was never produced as a witness and no explanation was advanced for failing to call her. I find that Ninow was not a credible witness and that Respondent's defense is not credible. This being the case, it is proper to infer that Respondent's motive for terminating the alleged discriminatees was improper so long as "surrounding facts tend to reinforce that inference." Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.RB., 362 F.2d 466,470 (C.A. 9, 1966). All of the employees terminated, save Sierra, Osterhout, Gonzales, and Anaya, had been active on behalf of the Union, albeit some of them had not been active to a great extent. In the case of Cota and Leon, Respondent's pleas of lack of knowledge are refuted by Vargas' numerous statements to employees , statements which clearly demon- strated that their terminations had been because of their support for the Union. Although Respondent contends that the leadwomen were not involved in the selection of employees for termination and that the leadwomen would have no basis for knowing what factors had led to this selection, this contention is based upon the testimony of Ninow, whom I have found not credible, and appears to be at odds with the fact that it is the leadwomen who, as found above, supervise the day-to-day work of the employees, thereby being the logical persons to participate in decisions involving the selection of employees from their departments for termination. In any event, the selection of shipping department employees for termination is contrary to the objective fact that they were terminated during one of Respondent's two busy seasons and, further, to the fact that following their terminations, Respondent then assigned employees to work part-time in the shipping department , with the total such time, based upon Ninow's own estimate, being such that it was equal to the total which Cota and Leon had worked in that department. Moreover, it is clear that the reasons advanced by Ninow for selecting these two employees for termination were pretextual, since Cota had been trans- ferred to the shipping department to avoid the adverse effects which resin had upon her and she worked there without apparent ill effect. Similarly, contrary to Ninow's assertions concerning Leon's limited experience, the latter had started working for Respondent as a production employee and, in any event, Ninow, herself, admitted that the production work is not complicated and is easily learned. Thus, the explanations advanced for selecting these two employees for layoff do not withstand scrutiny. Rather, what appears to have happened is that Respondent chose to avail itself to a layoff of employees as a means of disposing of two union supporters. Therefore, I find that Respondent was motivated by unlawful considerations in selecting Gloria Cota and Maria Leon for termination on September 4. COLORFLO DECORATOR PRODUCTS 419 The terminations of December 10 appear to have been a mixed situation. Respondent's Christmas season had con- cluded and, as shown by the fact that it laid off employees in late November 1974 and by the further fact that Sierra and Osterhout had been advised when rehired that their employment would be for short periods, a layoff did appear to have been warranted by the nature of Respondent's business. Accordingly, the pertinent question in regard to these terminations involves the selection of the employees who were terminated. As noted above, Sierra and Oster - hout hadengaged in no activities on behalf oftheUnion and, further, there is no evidence which would support a finding that Respondent had believed that they had engaged in such activity. The same is true of Gonzales and Anaya. Moreover, the terminations of Sierra and Osterhout is consistent with the short-term nature of their reemployment and no evidence was presented to refute Ninow's explana- tion that Anaya was scheduled to leave shortly due to pregnancy and that Gonzales had twice cost Respondent money through mistakes in her work. In these circumstanc- es, I find that the evidence does not support a conclusion that the selection of these four employees was motivated by unlawful considerations. A quite different result prevails with regard to the termination of the other six employees on December 10. Notwithstanding the seasonal nature of Respondent's business, the fact is that the 2-week closure of Respondent's business was imminent and following the first of the year Respondent would be confronting the second of its busy seasons: the Valentine's Day-Easter-Mother's Day season. In these circumstances, and in the absence of any corrobo- ration for Ninow's assertions of a need to layoff 10 employees in December, there is considerable basis for doubting the need to terminate this many employees. Moreover, assuming that there was a need to terminate 10 employees, the selection of Cruz, Quiroz, Valencia, Cacho, Alvarado, and Asencia is not as clear a matter as Respon- dent seeks to portray. Cruz was a known supporter of the Union; the October letter made that abundantly clear to Respondent. It is obvious from the facts of the various conversations which occurred in this matter that she associated quite regularly with Quiroz, Valencia, and Cacho. Thus, there was a basis for Respondent to suspect that these three employees, like Cruz, would be supporters of the Union. In fact, these three workers, and Alvarado and Asencia as well, had all signed cards for the Union and had attended meetings conducted on its behalf. This, of course, places all six employees in the category of employ- ees whom Vargas had warned that Respondent would terminate. Moreover, the defense advanced for selecting these employees was not without its infirmities - the selection of Alvarado was based upon warnings almost 2 months old and the four framing area employees had been reassigned to that department, without explanation, at a time when the inventory of frames was already accumulat- ing and were terminated, rather than reassigned to their former duties, without explanation for the failure to 7 It is manifest that Castillo was incorrect about the date of the last day on which she had worked. However, this appears to have been occasioned by Castillo's confusion about dates, less than an effort to fabricate evidence, as best illustrated by her testimony that she had gone to the office on June 31, retransfer them. In view of the activities of these employees, the untrustworthiness of Respondent's defense and its clear animus toward the Union's supporters, I fmd that Respon- dent took advantage of the seasonal nature of its operations to rid itself of employees who it, at the very least, suspected of supporting the Union. Like Cota, Leon, Alvarado, Asencia, Cruz, Quiroz, Valencia, and Cacho, Carmen Verdugo had signed a card for the Union, and had distributed its literature, had attended meetings on its behalf, and had encouraged other employees to support the Union. Although she had made every effort to maintain the secrecy of her activities, they had come to Respondent's attention, possibly in a some- what erroneous form, as Vargas had said that she had become aware that union meetings were being conducted in Castillo and Verdugo's home. Her termination occurred at the end of July, immediately prior to commencement of Respondent's Christmas season, which Ninow placed as beginning in August. No explanation was advanced to explain the timing of this termination. While it appears that Verdugo had been absent in the spring for a week, as Ninow testified, the cause of the absence is disputed and, in any event, neither records nor the plant manager was produced to corroborate Ninow's contention that she and Clark had determined that Verdugo had to be terminated because of the status of Respondent's business at the end of July. Therefore, I fmd that Respondent did terminate Carmen Verdugo because of the information it had received that Verdugo was sponsoring a campaign on behalf of the Union. Lastly, Catalina Castillo had been one of the Union's early supporters. While she, like Verdugo, had attempted to keep secret her activity, Vargas' September statement demonstrates that she had been linked with Verdugo as an advocate of the Union. That Respondent would possess this knowledge is not surprising since her termination occurred during the off-season when less than 20 employees would have been employed under Ninow's estimate. Her recita- tion of the emergency nature of her need for time off and of her experience in the office where she spoke with Hughes was not controverted, as Hughes was not called as a witness to corroborate Ninow's denial of having seen Castillo that day .7 Nor was any explanation advanced for having failed to call Hughes as a witness to this crucial conversation, though it is clear that Respondent was aware of Hughes' whereabouts. Moreover, as set forth above, Ninow's testimony concerning the business need which assertedly occasioned Castillo's termination was hardly a model of specificity and forthrightness. Neither records nor the plant manager was produced to corroborate either the need for a termination at the time or the basis upon which Castillo had assertedly been selected. Moreover, Ninow's assertion of the selection of an employee for layoff, solely because of a single day's unexplained absence, hardly comports with the carefully enumerated criteria for terminations which she claimed were used. In these circumstances, I find that Respondent has simply chosen to attempt to link Castillo's which, of course, is a nonexistent date and one which, in any event, would not have aided the General Counsel's contention that an order remedying her discharge was not barred by Sec. 1l0(b) of the Act 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination with that of another employee, occurring on June 27, in an effort to cloak its true motive of terminating Castillo to discourage activity on behalf of the Union before it had a chance to flower into a full organizational campaign. It should be noted that Respondent contends that the decision to terminate Castillo occurred on June 27, outside the 6-month limitation period for remedying a violation under Section 10(b) of the Act. However, the only evidence supporting this assertion is the testimony of Ninow, which, as found above, is not credible. No documentation was provided to support this contention . Neither was Plant Manager Clark called to support the date of this action. So far as the record discloses, therefore, the discharge did not become effective until July 7, when Castillo was first notified of her termination . As the charge alleging her termination was filed on January 2, 1976, and as July 7 falls within the 6-month period preceding that charge , I find that Section 10(b) does not serve to bar a finding that that termination was unlawful . See Butchers Union Local 115 affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (Ernest S. Cerelli), 209 NLRB 806, fn. 1, 811, fn. 17 (1974). C. The Reinstatement of the Employees Respondent alleges that a number of these employees have been reinstated. The only one, however, whose reemployment was litigated was Cota. She was rehired on March 22, but was assigned to work in an area where she was subjected to resin, to which she was allergic. She contacted a doctor and his note concerning her allergy led Respondent to transfer Cota to another production area. When this proved to be no solution to the problem, as Cota was still exposed to resin fumes, Respondent terminated her once more. Ninow admitted that Respondent had been aware of Cota's allergy to resin, that it had originally transferred her to the shipping department to remove her from the source of her allergy, and that she had worked in that department without apparent ill effect until her termination on September 4. In these circumstances, I find that while Respondent may have reemployed Cota in 1976, it did not reinstate her. See Hydro-Dredge Accessory Co., 215 NLRB 138 (1974); Kansas Refined Helium Company, Division of Angle Industries, Inc., 215 NLRB 443 (1974). Moreover, in light of what took place with respect to Cota and in the absence of any evidence concerning the positions in which other employees , who were terminated unlawfully and then returned to employment with Respondent, were placed and concerning the circumstances under which they were reemployed to Respondent, I shall make no finding concerning the effect of their reemployment . Rather, that is a matter best left to the compliance phase of this proceed- ing. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above , occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Colorflo Decorator Products, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 65, Distributive Workers of America (Inde- pendent) is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with discharge, wage reductions, and other reprisals ; by giving employees the impression that Respondent was engaging in surveillance of their union activities; by interrogating employees concern- ing their union membership, activities and sympathies and the union membership, activities and sympathies of their fellow employees ; and, by promising benefits to employees in order to encourage them to forego their support of the Union, I find that Respondent has violated Section 8(axl) of the Act. 4. By discharging Catalina Castillo on July 7, 1975, by discharging Carmen Verdugo on July 25, 1975, by discharg- ing Maria Leon and Gloria Cota on September 4, 1975, and by discharging Connie Alvarado, Luisa Asencia, Teresa Cacho, Esperanza Cruz, Lupe Quiroz, and Lucia Valencia on December 10 because they engaged in union or other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection, I find that Respondent has discriminated in regard to hire or tenure of employment or any term or condition of employment to discourage membership in a labor organization in violation of Section 8(aX3) and (1) of the Act. 5. The evidence is not sufficient to establish that Respondent unlawfully terminated Patricia Anaya, Evangelina Gonzales, Norma Osterhout, and Margaret Sierra and is not sufficient to establish that Mary German engaged in any activity in violation of Section 8(axl) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirma- tive action to effectuate th,. policies of the Act. To the extent that it has not already done so, Respondent will be required to offer Catalina Castillo, Carmen Verdu- go, Maria Leon, Gloria Cota, Connie Alvarado, Luisa Asencia, Teresa Cacho, Esperanza Cruz, Lupe Quiroz, and Lucia Valencia reinstatement to their former positions or, if those positions no longer exist, to a substantially equivalent position, without prejudice to their seniority or other rights and privileges, dismissing, if necessary , anyone who may have been hired to perform the work which they had been performin prior to the times that they were terminated. Additionally, Respondent will be ordered to make these employees whole for any loss of earnings they may have suffered by reason of their unlawful terminations, with backpay to be computed on a quarterly basis, making COLORFLO DECORATOR PRODUCTS 421 deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER8 The Respondent, Colorflo Decorator Products, Inc., Riverside, California, its officers, agents, sucessors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge, wage reduc- tions, and other reprisals in order to discourage them from joining or assisting the Union, giving employees the impression that Respondent is engaging in surveillance of their union activities, interrogating employees concerning their union membership, activities, sympathies, and the union membership, activities, and sympathies of their fellow employees, and promising benefits to employees in order to encourage them to forego their support of the Union. (b) Discharging or otherwise discriminating against employees with regard to hire or tenure of employment or any term or condition of employment for engaging in activities on behalf of a labor organization or for engaging in activity protected by Section 7 of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) To the extent that it has not already done so, offer Catalina Castillo, Carmen Verdugo, Maria Leon, Gloria Cota, Connie Alvarado, Luisa Asencia, Teresa Cacho, Esperanza Cruz, Lupe Quiroz, and Lucia Valencia immedi- ate and full reinstatement to their former positions of employment, dismissing, if necessary, anyone who may have been hired to perform the work that they had been performing prior to the dates on which they were terminat- ed, or, if their former positions do not exist, to a substantial- ly equivalent position, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records necessary to compute the backpay and reinstatement rights set forth in "The Remedy" section of this Decision. (c) Post at its Riverside, California, facility, copies of the attached notice marked "Appendix." 9 Copies of the notice, on forms provided by the Regional Director for Region 21, after being duly signed by the Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the consolidated complaint be, and it hereby is, dismissed insofar as it alleges violations concerning the discharges of Patricia Anaya, Evangelina Gonzales, Norma Osterhout, and Margaret Sierra, and insofar as it alleges Violations of the Act by virtue of statements by Mary German. 8 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. 8 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TIM NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities, except that the employees' bargaining representa- tive and employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT threaten you with discharge, wage reductions, or other reprisals in order to discourage you from joining or assisting a labor organization. WE WILL NOT give you the impression that we are engaging in surveillance of your activities on behalf of a labor organization. WE WILL NOT interrogate you regarding your mem- bership, activities, and sympathies in a labor organiza- tion nor regarding the membership, activities, and sympathies of your fellow employees. WE WILL NOT promise you benefits in order to encourage you to forego your support of labor organiza- tions. WE WILL NOT discharge or otherwise discriminate against you for engaging in activities on behalf of District 65, Distributive Workers of America (Indepen- dent), or on behalf of any other labor organization. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act. WE WILL offer Catalina Castillo, Carmen Verdugo, Maria Leon, Gloria Cota, Connie Alvarado, Luisa Asencia, Teresa Cacho, Esperanza Cruz, Lupe Quiroz, and Lucia Valencia immediate and full reinstatement to their former positions, if we have not already done so, dismissing, if necessary, anyone who may have been hired or retained to perform the work which they had been performing prior to the time that they were terminated, or, if their former positions do not exist, to a substantially equivalent position , without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of our discrimination. COLORFLO DECORATOR PRODUCTS, INC