Marti, Jacobo, & Sons, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jacobo Marti & Sons, Inc. and United Food and Commercial Workers Union, Local 298, char- tered by United Food and Commercial Workers International Union, AFL-CIO-CLC. Case 6- CA-13804 September 22, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND JENKINS On January 6, 1982, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief. 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, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 I Respondent hals excepted to certain credibility findings made by the Administrative Lass Judge. It is the Board's established policy not to overrule an administrative lax' iudge's resolutions with respect to credi- bility unless the clear plcpiondcrancc of all of the relevant evidence con- vinces us that Ihe res.-iltolls are incorrect Srtandard Dry Wall Products. Inc.. 91 NI[B H 544 (1I150), enifd. 188 F,2d 362 (3d Cir. 1951). We have carefully examined the leccrd and find no basit foir reversing his findings No excepilons were filed to the Adininisiratic Iaw Judge's findings that Robert Syphrit and IDaxid Rolol are niit supervisors within the mean- ing of Sec 2(11) of the Act We agree with the Admnilstralive lIaw Judge that David Root is Re- spondent's agent. but llly fo tiihe following reasons. Root worked on the night shift. directinge eimployeeis n cleaning ihe equipment arid the plant. He also had some responsibili',' fot plant security. Root telephoned Jacobo Marti wAheever- there .trce any problems. lie exercised virtually no independent judgmeit Iit essence. Root's duties were to keep an eye oni the plant and to rlfort an'y anid all problems to Jacobo Marti. Root was Respondent's genclal agent aidl could be expected to act within the parameters ofI his authority See I' & D Eierpriies. inc., d/b/a Westward Ho Iltoti, 251 NLRB 1199. 1207-(18 (1980), International Lonig;ihoremCen and f'arehousemen', Unioni. C10 (Sunset Line and Twine Compuanv), 79 NLRB 1487, 1509 (1048). We also agree with the Administrative Law Judge that Robert Syphrit was Respo ndcint's agent for the purpose of un- ccveriing the identity !it union activists, in tlai Jacobo Marti authoirized him to find out who started the organizational campaign. While agreeing with the Administrative Law Judge that Respondent harbored uniont atimus, ste also rely upon our findings in Jacobo Mutil & Sons, Inc.. 255 NLRB 1428 (1981). enfd. 676 F.2d 975 (3d Cir. 1982). In that case. we found that Respondent violated Sec. 8(a)(l) of the Act by threatening to close the plant if the ecnployecs obtained union representa- tion, and by promising employees increased wages and better working conditions if they did not support a union. 2 The Administrative I. aw Judge found that Robert Syphrit. Respond- ent's agent, asked Lester Custer if lie knew anything about solicitation of authorization cards. and accused Custer of soliciting. The Administrative Law Judge's Decision is unclear with respect to whether thiis incident constitutes an interrogation in violation of Sec 9(iXl) of the Act We find that it does Member Jenkins does not rely on Wright Ime Inc. a Divisionl of Wright Line. Inc., 251 NL RB 1083 (1980), enfd. 062 F 2d 899 (Ist Cir 1981). That decision concerns idetifving the cause of discharge where a genu- ine lawful and a genuinle unlawfill reason exist Where its here, the assert- 264 NLRB No. 7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Jacobo Marti & Sons, Inc., New Wilmington, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ed law ful reason is found to be a pretext, onl , one genuine reason re- mains-the unlawful one. The attempt to apply Wright Line in such a sit- uation is futile, confusing, and misleading : Member Jenkings would award interest on backpay in accordance with the formula set forth in his partial dissent in Olyvipic Meidical Corpo- ration, 250 NLRB 146 (1980). DECISION STATEMENT OF THE CASE BENJAMIN SCHLESINGER, Administrative Law Judge: This proceeding was heard by me in West Middlesex, Pennsylvania, on July 9, 10, 15, and 16, 1981. The com- plaint' alleges that Respondent Jacobo Marti & Sons, Inc., violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 28 U.S.C. § 151, er seq., by discharging Robert Reighert and laying off Lester Custer and James Elliott2 because of their activi- ties on behalf of the Union and engaging in one act of interrogation. Respondent denies that it violated the Act in any manner and affirmatively denies that it is subject to the Act's jurisdiction. Upon consideration of the entire record herein, includ- ing my observation of the demeanor of the witnesses as they testified and my review of the briefs filed by the General Counsel and Respondent, I hereby render the following: FINDINGS OF FACt AND CONCL USIONS OF LAW Although Respondent denies that it is an employer subject to the jurisdiction of the Act, I am bound by the Board's prior determination in 255 NLRB 1428 (1981), wherein the Board found that Respondent was an em- ployer and that it would effectuate the purposes of the Act to assert jurisdiction over it. Therefore, I conclude that Respondent is a Pennsylvania corporation with an office and place of business in New Wilmington, Penn- sylvania, where it engages in the manufacture, process- ' The relevant docket entries are as follows: The unfair labor practice charge was filed by United Food and Commercial Workers Union, Local 298, chartered by United Food and Commercial Workers International Union, AFL-CIO-CLC (herein the Union), oi September 2, 1980, and amended on October 3. 1980 The complaint issued on November 26. 1980. Respondent conceded that its layoff of these two employees was per- manenit without any intention to recall them. and that the layoffs were constructive discharges They w.ill be so treated In light of this. Re- spondent's motion to dismiss the complaint because there was no allega- tiol that Respondent failed to reinstate them is denied In the circum- stances herein, that omission is insignificant and the omitted allegation is now admitted. 30 JACOBO MARTI & SONS, INC ing, and distribution of cheese and related products. During the calendar year ending October 31, 1980,3 Re- spondent, in the course and conduct of its business oper- ations, provided services valued in excess of $50,000 for Farmer's Cheese Co-Op Association, a Pennsylvania cor- poration located in New Wilmington, Pennsylvania, which derived gross revenues in excess of $500,000 and sold goods valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. I further conclude that Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.4 I also conclude, as Respondent admits, that United Food and Commercial Workers Union, Local 298, char- tered by United Food and Commercial Workers Interna- tional Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. The central question involving each of the discharges herein is whether Respondent had direct or implied knowledge of each employee's union activities. If it did not, as Respondent vigorously contends, the General Counsel cannot meet its burden of proving that the dis- charges were motivated by reasons illegal under the Act, because it is well established that, otherwise, an employ- er may discharge an employee for good reason or for bad reason or for no reason at all. Edward G. Budd Man- ufacturing Co. v. NV.L.R.B., 138 F.2d 86, 90 (3d Cir. 1943), cert. denied 321 U.S. 773 (1943). The union campaign commenced, according to Custer, in mid-July, when he was given union authorization cards and began distributing them to employees for their signature. Within a month, on August 11, Custer over- heard Respondent's president, Jacobo Marti (hereafter Jacobo), telling Robert Syphrit, who is alleged to be Re- spondent's supervisor or agent, to find out "who it was that started this and got the cards going." Custer, how- ever, admitted that the investigatory affidavit that he had originally given to a representative of the Board's Re- gional Office stated only that Syphrit was to "try to find out who it was." Custer also testified that, 2 days later, on August 13, Syphrit asked employee Michael Yearian what he thought about the Union, to which Yearian replied that Jacobo would never go for it. Syphrit turned to Custer, first asking if Custer knew anything about the union cards. Custer answered that some employees had signed cards; Syphrit then accused Custer of having instigated the union activities. The sole evidence of Respondent's knowledge of the union activities of Elliott, who signed a union authoriza- tion card and spoke to five employees about the Union, was a conversation with Jacobo's son, Tim, who on August 21 asked Elliott whether he was going to the union meeting (which was, in fact, scheduled to be held 3 All dates hereinafter refer to 1980, unless otherwise stated I The parties stipulated that Respondent preserved all its defenses con- cerning the Board's jurisdiction to its petition to set aside the Board's ear- lier Order, now pending before the United States Court of Appeals for the Third Circuit (Case No 81-19711 However, Respoldent abandoned its defense that its employees were agricultural employees exempt from coverage of the Act that day). Elliott asked, "what union meeting?" and Tim walked away. Robert Reighert testified that he and Custer were the principal solicitors of union cards. In or about late July, employee Kerrigan, who had signed a card, reported that he had told another of Respondent's alleged supervi- sors or agents, David Root, of Reighert's soliciting activ- ities. As a consequence, Reighert asked Root the next day whether Root was going to turn him in. When Root replied that he would not tell Jacobo, Reighert asked Root to sign a card, but Root declined to do so on the ground that he was a "salary worker." Jacobo, Syphrit, and Tim denied these conversations; Root did not testify. Furthermore, Respondent denied that Syphrit, Tim, and Root were its supervisors or agents, as alleged in the complaint. There is little doubt as to Tim, who conceded that he scheduled Respond- ent's part-time employees (students) for work. He hired one part-time employee He received more pay than most of the employees. He signed numerous warning, termination, and separation notices, recommending that certain employees never be rehired or, in case of warn- ings, recommending discipline if the employees should continue to engage in their conduct. That Respondent believed that he had supervisory functions is demonstrat- ed by its later instruction to him not to talk to employees about the Union. I find that Tim is a supervisor within the meaning of Section 2(11) of the Act. Syphrit's and Root's status is more difficult to resolve. Although Syphrit was the person entrusted with ensur- ing that Respondent's cheesemaking process was accom- plished and was introduced to new employees as their supervisor or foreman, he performed principally unit work, was paid no more than some of Respondent's other employees, and received the same benefits as all of the other employees, as did Root. It is true that he was entrusted with menial powers of directing that the chee- semaking process be followed; 5 but there appears little that he did which required the exercise of independent judgment and there is no evidence that he was entrusted with those attributes which Section 2(11) of the Act de- fines as supervisory. Root worked from midnight to 8 a.m. on the night shift, the principal function of which was to clean the vats, pipes, forms, machines, molders. and cookers (as well as the floors) in order to prepare for the processing of cheese in the morning. Root was to ensure that this was done,6 but there is no evidence that he hired, fired, or otherwise disciplined employees or that he was any- thing other than an employee within the meaning of the Act, except as herein set forth. Reighert testified that he s Jacobo testified that the cheesemaking process is an assembly line and generally runs by itself. In describing the duties of Reighert. whom he selected to direct the employees in the room which processed swtss cheese. which duties I find to he the same as Syphrit's, %When he directed employees in the mozzarella room.. acobo stated he ,as "to supervise the other people or keep and [sic] eye on them so that nothing happened. don't get cut: do the job right; the cheese is cut right; the cheese is stamped right . You've got to) keep them mo'ing Rxoot also< walked through the parking lot. checked the sump pumps. and made sure that the cooler do)rs sere locked--functions that are no different from those entrusted to a night watchman 31 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was told by both Jacobo and Ronald Miller, Respond- ent's plant superintendent, that Root was the foreman, and he said that, on one occasion, Root threatened to send him home because he was tired. Yet, on another oc- casion, when employees were engaged in horseplay, Root said that the employees would have gotten in trou- ble if Jacobo or Miller were present. Although Reighert testified that Root gave him an oral warning because of that incident, such testimony appears to be inconsistent with Root's implied disclaimer of authority to discipline employees and with the manner that Jacobo governed Respondent's operations, discussed infra. The General Counsel argues, however, that Root received a salary, rather than an hourly rate paid to most employees; but Jacobo credibly explained that Root's wages resulted from long-standing practice and that both he and a chee- semaker, an employee, received salaries. The General Counsel also relies on a warning notice allegedly signed by Root as a "supervisor" and on the fact he discharged his brother for hitting him, an incident which prompted Respondent to oppose the brother's ap- plication for unemployment benefits on the ground that he hit his "supervisor." My examination of the warning slip leads me to conclude that Root did not sign it and that Miller did. Furthermore, even though Root and Syphrit were sometimes referred to as foremen or super- visors, mere nomenclature is insufficient under the Act to prove supervisory status. N.L.R.B. v. Southern Blea- chery & Print Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958), cert. denied 359 U.S. 911 (1959). Although Re- spondent opposed Root's brother application for unem- ployment benefits on the ground that he hit a "supervi- sor," Respondent's payroll records showed that Root was not treated by it as a "supervisor" and it cannot be said that Respondent's tactical opposition in the unem- ployment proceeding is sufficient to determine Root's status. More worrisome is the General Counsel's argument that, if Root and Syphrit were not determined to be su- pervisors under the Act, there would be no supervisors present in the plant for substantial periods of time. The record shows that Respondent's operations were con- ducted in three shifts: day, from 7 a.m. to 3 p.m.; after- noon, from 3 to 11 p.m.; and night, from 11 p.m. to 7 a.m. Ronald Miller, Respondent's plant superintendent and an admitted supervisor, normally came to work at 5:30 or 6 a.m. and remained until 4 or 4:30 p.m. The only other admitted supervisor was Jacobo, who normally worked about 16 hours each day, had not taken a vaca- tion for years, and was described by one witness as a "workaholic." Often, Jacobo would remain at work until several hours into the night shift when cheese was still being processed in order to ensure that it was finished properly. There were times during the day that no supervisor was present at Respondent's facility-typically, from 5 to 7 p.m., when Jacobo went home for dinner, and during the night shift when no cheese was being processed. But, even when Jacobo was at his home, which was only a mile or so from the plant, he maintained close contact with the plant. All incoming phone calls to the plant from 5:30 p.m. to 8 a.m. were routed directly to his home. Both Syphrit and Root were under orders to call Jacobo for any instructions and almost all witnesses agreed that Syphrit and Root were frequently in contact with Jacobo and made few decisions on their own. Indeed, if Jacobo's personal attention was required to be given to any matter (such as broken machinery or cheese not being made properly), Jacobo would within a few minutes return from his home to the plant to take direct control. Thus, Jacobo was so easily accessible and so close to the plant that it may be stated that he was realis- tically present in the plant at all times and that the plant was never wholly unsupervised by him. I find that both Syphrit and Root are not supervisors. Although they were instructed by Jacobo to see that the work was performed properly, that is a function fre- quently held to be possessed but leadmen-employees Ross Porta-Plant, Inc., 166 NLRB 494 (1967), enfd. 404 F.2d 1180 (5th Cir. 1968). Their slightly greater responsibil- ities were essentially of a routine and repetative nature, seldom if ever requiring the exercise of independent judgment, and do not establish supervisory authority. B- P Custom Building Products, Inc.; and Thomas R. Peck Mfg., 251 NLRB 1337, 1338 (1980); Kendick Engineering, Inc., 244 NLRB 989 (1979). Syphrit's adjustment of em- ployees' lunchtime breaks has not been held to be an in- dicia of supervisory status. Cumberland Shoe Corporation, 144 NLRB 1268, 1270 (1963), enfd. 351 F.2d 917 (6th Cir. 1967); Edgar L. Landen t/a Speed Mail Service, 251 NLRB 476 (1980). Indeed, the Board has held that em- ployees with arguably far greater supervisory functions are nonetheless employees. Hydro Conduit Corporation, 254 NLRB 433 (1981). The General Counsel argues alternatively that they are at least agents of Respondent. I agree. Clearly, they acted as Jacobo's "eyes and ears" in his absence. They reported all unusual happenings and received directions from Jacobo and Miller. They transferred employees only with Jacobo's and Miller's approval. Similarly, they gave directions to employees only after having talked with Jacobo and Miller first. ' Jacobo testified that both Syphrit and Root frequently called him, and he, as fre- quently, gave them directions which they then relayed to the employees. The employees often knew that when Syphrit and Root directed them in their work, they were merely relaying Jacobo's orders and acting as Jacobo's agents. They were thus placed in a strategic position where employees could reasonably believe they were acting on Respondent's behalf. Samuel Liefer and Harry Astrecher, a copartnership, River Manor Health Related Facility, 224 NLRB 227 (1976); Community Cash Stores. Inc., 238 NLRB 265 (1978), enfd. 87 LC § 11,593 (4th Cir. 1979). They were introduced to employees as Re- spondent's supervisors or foremen, Helena Laboratories Corporation, 225 NLRB 257 (1976); and, as Respondent's brief concedes, they served as conduits of its supervisors, an indicia of agency status. Edgar L. Landen, supra. I conclude that under Board law both Syphrit and Root are Respondent's agents. 7 The contested warning slip, allegedly signed by Root, was signed by Miller, w ho instructed Root to gi e It to the employee 32 JACOBO MARTI & SONS, INC Although certain testimony' of the three dischargees appears to be inconsistent with their precomplaint inves- tigatory affidavits," I found each to appear sincere and candid, and I credit their testimony at the hearing. As stated above, Root never testified, and I find the unre- butted testimony of Reighert not improbable.9 That means that at least Root knew of Reighert's attempts to obtain union authorization cards before he was terminat- ed, and, in light of events which followed and the failure of Root to testify, it is not unlikely that Root relayed that information to Jacobo.' ° In so finding, I am not im- puting knowledge to Respondent merely because its agent had knowledge of an employee's union activities, an argument that appears implicit in the General Coun- sel's brief. Although that knowledge must be imputed when a supervisor has knowledge, no presumption ap- plies to agents (although a principal is bound by its agent's acts). However, when an agent is specifically au- thorized by its principal to obtain knowledge of union activities, a different rule applies, because the agent is then acting within the principal's specific authority and it must be presumed that the agent carried out the princi- pal's direction. Accordingly, when Syphrit was told by Jacobo to find out who started the union organizing campaign, it must be assumed that part of Syphrit's function was to report back to Jacobo what Syphrit had learned. II In light of the most improbable reason for Custer's subsequent layoff, only a day after he wuas interrogated by Syphrit, it follows that Jacobo was duly informed by his agent. Fi- nally, it is true that Tim's interrogation of Elliottl2 was not really meaningful. Although I credit Elliott, the con- versation merely shows that Tim was aware of the union meeting long before Labor Day, when Respondent al- leged it first knew of any union activities. Other than that, Elliott denied to Tim that he knew of any union meeting; and the only conclusion which may be drawn is either that Tim knew of Elliott's union activities, which were not as significant as those of Custer and Reigh- " In particular. Ihe conversations betwecen Reighert and Root and be- tween Tim and Elliotll ere omitted front Reighert's and Elliolt's affida- vits, but both testified that they were never asked by the Board's agent about employer knollcedge. Custer omitted from the conversation be- tween Jacobo and Syphrit the portion about who got the cards going, but I find it probable that thait ;as said in light of Syphrit's subsequent interrogatlion 9 Admittedly. Root was no longer employed by Respondent at the time of the hearing However, he regularly delivered milk to Respond- rnt's facility, and no reason appears why Respondent could not have elic- ited his testimony. Syphrit testified that he first found out about the em- ployees' union activities the day before labor Day and told Jacoho the next workday. when Jacoho alleged that he first knew of the union activ- ities 'O Syphrit testified that hie first ound out about the employees' union activities the day before l albor Day and told Jacoho the next workday. when Jacoho illeged that he first knew of the union activities. :1 Because I have credited Custer's narration of the conversation be- tween Jacobo and Syphrit, there is no doubt as to Syphrit's status as agent Quality Drywall Conipany , Inc., 254 NLRB 612, 620, fn 5 (1981) 12 Tim's interrogation wasa not alleged as an independent violation of Sec 8(a)(1) of the Act Hosus cr, it was fully litigated and related to) the heart of the complaint; and I conclude that it sought to obtain informa- tion regarding Elliott's union actil ties Sourhestern Bell Ielephone Com- pany, 237 Nl RB I10 (tlt7) ert,'3 or that he did not know, but was trying to find out. As stated above, the credibility findings as to Respond- ent's knowledge of union activities are also based on events which followed the conversations to which the three discharges testified. The permanent layoff of 12 employees from August 6 to 25 was not illegal per se. I am satisfied that milk supplies had diminished to a point where Respondent could no longer produce the amount of cheese it was capable of producing and that it had reason to reduce the number of its production employ- ees. Indeed, in 1979, Respondent had laid off 12 employ- ees when a similar shortage of milk occurred. Contrary to the contentions of Respondent, however, the 1979 and 1980 layoffs were not wholly identical. Although Re- spondent contends that its selection of employees was not based on seniority but was based on whom it consid- ered to be the least capable (for a variety of reasons) as well as its needs for employees on certain jobs in the plant, all the employees laid off in 1979 had been first employed only in 1979. In 1980. Respondent selected only a few employees who had first been employed in 1980; the majority had been employed for much longer periods of time and included Elliott, who commenced employment on April 12, 1977. Further, Respondent contends that in 1979, just as in 1980, employees were laid off, with no intention of recalling them. But the number of permanently laid off employees is substantially different. Of 12 employees laid off in 1979, all but 5 were recalled to work.' 4 Of 16 employees laid off 1980, 12 lost their jobs permanently. i5 I deem it more than coin- cidental that of those 12 employees, only I had not been signed an union authorization card, a significantly higher percentage of union adherents than what might have been statistically expected. H6 As stated above, Respondent's selection of employees in 1980 was allegedly based on the work performance of the employees. The one exception was Custer, whom Jacobo conceded to be one of his best employees. His discharge was premised upon two interlocking themes: that Custer had indicated an intent to leave his employ- ment and go to work on his father-in-law's farm and that, because he occupied a position of singular impor- tance, Respondent could not afford to keep him on the payroll with the expectation that, inevitably and soon, it would have to train a new employee for the same posi- 13 Elliott had signed a union authorization card anid talked to five em- ployees about the Union. When those five indicated their interest, he re- ferred them to Reighert. Custer and Reighert each obtained approximate- ly 20 cards, and Custer was the one who gathered all cards and gave them to the Union. in Custer and Syphrit both testified that they were laid off in 1979. but their layoffs are not reflected on an exhibit prepared by Respondent and stipulated to as representing the employees laid off then. If their testimo- ny were to be credited. 14 employees were laid off in 1979 and 9 were recalled to work. 1i There is no record evidence that three of the four recalled employ- ees had or had not signed union authorization cards. Three were em. ployed on the wrapping line. The tine who signed a card performed the same kind of work as Elliott and Custer and was recalled the day after the Union's original unfair labor practice charge was received by Re- spondent. He was subsequently discilarged "I Approximately 70-75 employees of Respondent', 120 employees signed union authorization cards 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. On the surface, this is an appealing argument. How- ever, a month before Custer was laid off, he was trans- ferred from being the assistant loader of trucks (which he did not perform full time in any event) to a laborer in the mozzarella room, a job most anyone could perform. It was that position from which he was laid off, and the "important" job of loading is at present filled in by Tim and Syphrit, when assistance is needed for loading a truck. Accordingly, Respondent's principal justification for the discharge of Custer, only I day after he was interro- gated by Syphrit, is not supported by the record herein. Further, even assuming that Custer occupied a position of great importance to Respondent, it should have known that he did not in fact go to work on his father- in-law's farm. Shortly after he was laid off, the unfair labor practice charge herein was filed (the amended charge alone relates to Custer) and Custer had earlier ap- plied for unemployment benefits, of which Respondent had been advised. In light of these facts, I discredit Jaco- bo's testimony that he was unaware that Custer was not working on the farm at any time and that he became aware of Custer's lack of employment only at the hear- ing. 17 Nor do I credit Jacobo's explanation of why he select- ed Elliott for layoff; to wit, his temper, his intimidating nature, and his sometimes violent attitude. Elliott had not been laid off in 1979 and had received only one written warning from Respondent for an incident in which other employees were similarly warned. Although Jacobo claimed that Elliott was constantly fighting with new employees, it appears that he talked with Elliott only once, before the 1979 layoff, but he did not lay off El- liott as one of the "worst" employees. The evidence of his continued fighting was supported by the most general hearsay statements attributed by Jacobo to other employ- ees. Yet, even those allegations were not enough to prompt Jacobo to lay off Elliott first from the mozzarella room. Instead, he laid off another employee, admittedly only "so-so", whom he recalled to work in early Sep- tember; and he laid off Elliott only on August 22, the day after the union meeting he attended, as to which Tim had interrogated him.'8 The General Counsel's complaint regarding Reighert is based on claims that he did not engage in interfering with the orderly flow of processing cheese, of which he was accused, and that, even if he did interfere with the processing, such reason was either pretextual or was ap- plied disparately. On August 14, Jacobo reprimanded Reighert for talking with another employee, Bill Sigler, while he was supposed to be carrying out his duties. Both Reighert and Sigler, admittedly not a union adher- ent, were sent home early. The following day, according to Jacobo, Reighert continued to talk with other employ- ees, for which he was fired. I discredit Jacobo's testimony concerning his reasons for discharging Reighert. First, I note that, during cross- 17 I also discredit Jacobo's narration of a conversation with Custer on the morning he was laid off. In crediting Custer, I find that he gave Jacobo no cause to believe that he was imminently going to leave Re- spondent's employ to work on his father-in-law's farm. is Three other union card signers were discharged on August 22. examination of him by the Union's counsel, Jacobo's abil- ity to recall many events surrounding the discharge sud- denly abandoned him. Second, his testimony was wholly improbable. Reighert, according to him, was for months and months constantly talking, thus interfering with the cheesemaking process. However, Jacobo selected Reigh- ert to be the lead person in the swiss cheese room, di- recting up to eight employees to ensure that the job was being performed efficiently. Why Reighert, with his al- leged history of interference with Respondent's oper- ations, should have been selected as Jacobo's "eyes and ears," to a position similar to those of Syphrit and Root, was lamely explained. I further discredit Jacobo's testi- mony that Reighert was derelict in his duties in the past and that Reighert was talking and interfering with Re- spondent's operations on August 15. Specifically, I find that, when he was discharged, he was neither talking nor interfering with the cheesemaking process, because the conveyor belt was not running and no adequate and credible proof was elicited that the process was not being attended to. Further, in light of the fact that other employees were shown to have engaged in conduct equally as bad as that of which Reighert was accused,' 9 without punishment, I find that Respondent's discharge of him constituted disparate treatment, which further supports the conclusion that, but for Reighert's known union activity, he would not have been discharged. The touchstone of any 8(a)(3) complaint is motivation. It is well established that if "the stated motivation for discharge is false . .. [one] can infer that there is an- other motive." Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966); N.L.R.B. v. Bird Machine Company, 161 F.2d 589, 592 (Ist Cir. 1947). The other motive is easily ascertain- able, for the stipulated facts in the earlier Board proceed- ing establish that Respondent had reason to fear that, if the union organizational efforts were successful, it would lose its supply of milk from its Amish suppliers. Further, both Jacobo and Miller conceded that they opposed the Union, and I find it not improbable that Jacobo's at- tempt, through Syphrit, to ascertain who started the Union was not solely for informational purposes but to do something about it. The timing of the discharges and who was affected by them also supports the inference that employees' union activities were at the core of the actions taken. Although it may be coincidental, Custer was discharged a day after he was interrogated, Elliott a day after he was interro- gated and after he attended a Union meeting, and Reigh- ert within two weeks after he had requested Root to sign a union authorization card. Illegal motivation has often been inferred from the timing of an employer's actions. California Bake-N-Serv Lid., 227 NLRB 548, fn. 2 (1976); Inland Motors, 175 NLRB 851, 853 (1969), enfd. 439 F.2d 82 (9th Cir. 1971). Further, the fact that the permanent layoff affected almost exclusively union adherents sup- ports the inference of illegal motivation. Camco, Incorpo- rated, 140 NLRB 361, 365 (1962), enfd. with modifica- 19 Sigler, when found talking again, was not discharged or even warned. According to Jacobo. Sigler did not "interfere with work that much." 34 JACOBO MARTI & SONS, INC. tions not here relevant 340 F.2d 803 (5th Cir. 1965); N.L.R.B. v. Midwest Hanger Co., et al, 474 F.2d 1155, 1158 (8th Cir. 1973). Under Wright Line. a Divsinon of Wright Line. Inc., 251 NLRB 1030 (1980), enfd. 455 U.S. 989 (Ist Cir. 1981), where there are two reasons presented for the discipline of an employee, one in violation of the Act and the other not in violation, the General Counsel meets its burden of proof by showing, prima facie, that the employee was disciplined for reasons which violate the Act. Respond- ent's contention that the employees went to "extremes" to keep secret their union activities does not necessarily prohibit the inference that it had knowledge of them. C.S.C. Oil Company, a Division of Cook United, Inc.. d/b/a Ontario Gasoline & Car Wash, 228 NLRB 950, fn. 2 (1977). In addition to the credited proof that Tim knew of the union meeting on August 21 and that Jacobo knew of union activities a week before and requested Syphrit to find out who started them, it appears that some union activities were conducted in the Respond- ent's lunchroom and parking lot. Jacobo's long work hours and his concessions that "usually nothing gets by in this place," that he has "people [whom] I know real well," and that "sooner or later, somebody probably would say something about" the union activities lends some support for the inference that, despite the employ- ees' attempts at secrecy. it is not wholly unlikely that their efforts failed. In sum. I find that Respondent's knowledge of union activities, its union animus, the timing of the discharges, and the invalidity of its reasons for the discharges support a conclusion of illegal motiva- tion. W H. Scott d/h,/a Scott's Wood Product, 242 NLRB 1193, 1197 (1979). Having established that a prima facie case exists for finding a violation, Wright Line holds that Respondent must demonstrate that, for legal cause, it would have taken the same actions against the three employees even without consideration of its illegal motivation. Because I have found that its reasons for selecting Custer were spu- rious; for Elliott. inflated; and, for Reighert, unsupported and disparate-I find no support for Respondent's posi- tion and conclude that, but for the illegal motivation, Re- spondent would not have discharged them and that Re- spondent has violated Section 8(a)(3) and (1) by so doing. The unfair labor practices engaged in by Respondent, occuring in connection with its operations described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. TH K RI-liI)Y Having found that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Lester Custer, James Elliott, and Robert Reighert in order to discourage their union activities, I shall recommend that Respondent reinstate them to their former positions or, if those positions no longer exist, to substantially equivalent positions, replacing if necessary any employees hired for their positions after they were discharged, "0 without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay, benefits, or other rights and privileges they may have suffered as a result of the discrimination against them. Backpay thereon shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corpo- ration, 231 NLRB 651 (1977).2i Because Respondent has previously been found to have violated the Act, I con- clude that Respondent has demonstrated a proclivity to violate the Act sufficient to warrant the imposition of a broad order against further violations of Section 7, par- ticularly in light of its attempt herein to target the two leading union adherents for discharge. Hickmott Foods, Inc., 242 NLRB 1357 (1979). Upon the foregoing findings of fact, conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 22 The Respondent, Jacobo Marti & Sons, Inc., New Willmington, Pennsylvania, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their union activ- ities and the union activities of its other employees. (b) Discharging its employees because they joined, supported, or assisted the Union and in order to discour- age membership in, support, and assistance of the Union by all its employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Re- lations Act, as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Lester Custer, James Elliott, and Robert Reighert immediate and full reinstatement to their former positions or, if those positions no longer exist, to substan- tially equivalent positions, replacing if necessary any em- ployees hired for their positions after they were dis- charged, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay, benefits, or other rights and privileges they may have suffered as a result of the dis- crimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all 2O Respondent admitted that new employees were hired to replace the dischargees 2I See, generally, Iis Plunhbing & Hearing Co., 138 Nl RH 716 (1%2). In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted h) the Board and become its findings. conclusions. and Order. and all objections thereto shall hbe deemed waived for all purposes 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payroll records, so,:ial security payment records, time- cards, !erilimnel records and reports, and all other records nucc(ssaly to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant and facility in New Wilmington, 'Pennsylvani;i, copies of the attached notice marked "Ap- pcndix."' C(opies of said notice, on forms provided by the Regional !)ir-ctor for Region 6, after being duly signed hy Rcslponillcnt's authorized representative, shall be postcd by Respolden t immediately upon receipt thereof anld be nTaintlailed by it for 60 consecutive days thereaftcr. in c(onlspictous places, including all places wherc noticcs to employees are customarily posted. Rea- sonablc steps shall bc taken by Respondent to ensure that said noti.cs art. not altered, defaced, or covered by any other niatcri;i] (d) Ntt1l1 tihic Rcgional Director for Region 6, within 20 days from ltci datc of this Order, what steps Respond- ent has taktii to coirnpl licirewith. ::: Ill the cs IIha thl Ihis ( )rlcr s enflorced by a Judgment of a United Slaltls (uMil [I >1 lpt'll., It:hi cords il the notice reading "Posted by Order (if the Nmlliil I.ilalio Rclalionls Board" shall read "Posted Pursu- ril to a Judgirnltt of the Uniicd States Court of Appeals Enforcing an Order of thl Nalltilal I .hor Relati ois Bioard." APPENDIX NoTlc E To EMPI ON t I S POSTEl) BY ORDIIR 01: I IH NATIONAl LABIOR R.A'IIONS BOARD An Agency of the United States Government WE WILI. NOT1 interrogate our employees about their union activities and the union activities of our other employees. WE WI.lL NOT discharge our employees because they joined, supported, or assisted United Food and Commercial Workers Union, Local 298, chartered by United Food and Commercial Workers Interna- tional Union, AFL-CIO-CLC, and in order to dis- courage the membership in, support, and assistance of the Union by all our employees. WE WIL.L NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed them in Section 7 of the National Labor Relations Act. as amended. WE WILt. offer to Lester Custer, James Elliott, and Robert Reighert immediate and full reinstate- ment to their former positions or. if' those positions no longer exist, to substantially equivalent positions, replacing if necessary any of our employees hired for their positions after they were discharged, with- out prejudice to their seniority or othler rights and privileges previously enjoyed, and WE wlt.l make them whole for any loss of pay, benefits, or other rights and privileges they may have suffered as a result of our discrimination against them, with inter- est. JAoHO MART I & SONS, IN( 36