Proler International Corp.

DECISIONS OF NAIIONAL LABOR RELATIONS BOARD Proler International Corp. and Carpenters District Council of Houston and Vicinity, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 23-CA-6914, 23-CA- 6920, 23-CA-6958, and 23 CA-6996 June 1, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELL O AND TRUESDALE On February 20, 1979, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.l I Respondent and the General Counsel have 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr' Wall Products. Inc.. 91 NLRB 544 (1950), enf'd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The General Counsel excepted to the Administrative Law Judge's finding that "there is no proof that Herman Taylor, who actually discharged Brous- sard, had any knowledge of his union activity." There is, in fact, no credible evidence that anyone whose knowledge could be attributed to Respondent was aware of Broussard's union activity. 2 The Administrative Law Judge found that the discharge of Roy Perkins was motivated in part., if not totally, by Perkins' union and/or concerted activity, and, thus, was violative of the Act. On the basis of the entire record and because of the facts cited by the Administrative Law Judge in his Deci- sion, we find that Perkins was discharged solely because of his union and/or other protected activities and that the reasons given by Respondent are clearly pretextual. We note here and correct two inadvertent errors in the Administrative Law Judge's Decision regarding Perkins' discharge. First, Perkins testified that he returned to work after the strike about a week before he was discharged: he was. therefore, reinstated on or about March 22, 1978, rather than February 1, 1978, as stated by the Administrative Law Judge. In addition, Administrative Law Judge Rasbury stated that tire repairman Jones left the tire shop, but, instead of returning directly to his truck. stopped at the front gate to pick up a union handbill. It is clear from the record and the Administrative Law Judge's own narrative that it was Perkins rather than Jones who did so. The Administrative Law Judge determined that backpa) for the dis- chargeu strikers be computed from January 31, 1978, after the strikers' un- conditional offer to return to work. For the reasons set forth in Abilities and Goodwill, Inc., 241 NLRB 27 (1979), Chairman Fanning and Member Trues- dale find that the unlawfully discharged employees are entitled to backpay from January 18, 1978, the date of the discharges, plus interest, and will modify the recommended Order accordingly. Member Penello would adhere to the more than 30 years' Board precedent set forth in his dissenting opinion in Abilities and Goodwill, supra, and find that employees who are unlawfully discharged while on strike must indicate abandonment of the strike and a willingness to return to work in order to initiate the running of' the backpay eligibility period. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Proler International Corp., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: I. Substitute the following for paragraph 2(a): "(a) Offer Samuel L. Ellis, Jessie Ferguson, Sammy L. Hall. Larry W. Hartley, Johnnie R. Henderson, Henry Johnson, James E. Kedzieski, Frank Miller, George Moore, Roy C. Perkins, Howard Predom, Er- nest J. Rainwater, Lionel Richardson, David R. Shel- vin, Virgil L. Smith, Leroy Stubbs, Archie W. Waines, Raleigh V. Williams, Willie L. Williams, and Kenneth R. Wright immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and make said employees whole in the manner set forth in the Board's Decision." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX No(ii(E To EMPL.OYEES POSTED BY ORDER OF THE NAIIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights: To organize themselves To form, join, or help unions To bargain as a group through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT question our employees about their union membership, activities, or desires. WE WILL. NOI threaten our employees with discharge or discharge employees because of their union activity and/or other concerted pro- tected activities. 242 NLRB No. 102 676 PROI.ER INTERNAI'ONAL CORP. Wt Wit.. NOi threaten to discharge employees who strike or employees who fail to cross picket lines of striking employees. WE W. II1. N01 threaten employees with loss of employment because they have filed charges with the National Labor Relations Board. WE Wi.T. NOT interfere with employees' rights by soliciting their signatures on petitions seeking a new election to establish their collective-bar- gaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. WE wit.t. offer Samuel L. Ellis. Jessie Fergu- son, Sammy L. Hall, Larry W. Hartley Johnnie R. Henderson, Henry Johnson, James E. Kedzie- ski, Frank Miller, George Moore. Roy C. Per- kins, Howard Predom, Ernest J. Rainwater, Lio- nel Richardson, David R. Shelvin. Virgil L. Smith, Leroy Stubbs, Archie W. Waines. Raleigh V. Williams, Willie L. Williams. and Kenneth R. Wright full reinstatement to their former jobs or. if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previ- ously enjoyed. WE WIL.L reimburse said named employees for their loss of wages suffered as a result of' the dis- crimination against them, plus interest, in the manner more fully set forth in the Board's Deci- sion. PROLER INTERNAIO()NAI. CORP. DECISION STATEMENT OF TlE CASI JAMES T. RASBURN'. Administrative Law Judge: This case was heard before me in Houston, Texas. on August 22 and 23, 1978.1 The charge in Case 23-CA-6914 was filed on February 14. the charge in Case 23 CA-6920 was filed on February 17. the charge in Case 23 CA 6958 was filed on March 9. A consolidated complaint alleging violations of Section 8(a)(1 ) and(3) of the National Labor Relations Act, as amended (hereinafter Act). was issued and served on Respondent on April 6. Respondent's answer. served on the parties on April 19, acknowledged certain prerequisite juris- dictional data but denied the commission of any unfair la- bor practices. The charge in Case 2.3-CA 6996 was filed on March 31, and a complaint alleging a violation of Section 8(a)(3) and (1) was issued and served on Respondent on May 8. On the same date an order consolidating the four cases was served on all parties. A new amended com- plaint-apparently dealing with Case 23 CA 69 96 was I All dates hereinafter shall refer to he year 1978 unless otherwise indi- cated. issued on August 7. Respondent filed its answer to the last amended complaint on August 16. Based upon the entire record including my observations of the witnesses and their demeanor as well as the briefs submitted by each of the parties. I hereby make the follow- Irg: FINI)IN(S ()F FA(I 1. IJ RISD)( i1ION Respondent is, and at all times material herein has been, a Delaware corporation with its principal office and place of business in Houston. Texas, where it is engaged primar- ily in purchasing. processing. and selling scrap iron, steel, and other metals. During the preceding 12 months, which is a representative period. Respondent purchased and re- ceived goods and materials valued in excess of $50.000 from firms located at points outside the State of Texas. which goods and materials were shipped directly to Respondent at its Houston. Texas. facility. During the same period of time Respondent sold and shipped goods and materials alued in excess of, $50.000 directly to firms located outside the State of Texas. Based upon this admitted information I herewith find Respondent to be, and at all times material herein to hae been. an emplober engaged in commerce within the meaning of Section 2(2). (6). and (7) oft the Act. 11. 111 I ABlOR ()R(\NIZ.AItIN The Carpenters District Council of' Houston and Vicin- it. affiliated with the nited Brotherhood of Carpenters and Joiners of America. AFl. (10. is. and at all times ma- terial hereto has been. a labor organization within the meaning of Section 2(5) of' the Act. II. ill: AI..ti.GL) t'NI-AIR I AI)R PRA( i( ES A. 7The lsSuI There are several issues insolved in these consolidated cases which relate to the activities of' Respondent and its employees during the first 6 months of the ear 1978. The first of these activities concerns a walkout that occurred on January 18. () Was this walkout protected. concerted ac- tiSity? (2) Did Respondent wrongfully discharge and there- after refuse to reinstate a number of those employees en- gaged in said alleged concerted activity? (3) What was the true motivating cause of the discharge of Roy Broussard on January 20? (4) Was the discharge of Roy Perkins which occurred on March 29 associated with his union and/or concerted activity, or was it because of nondiscriminatory reasons? (5) Did Respondent and/or its supervisors or agents interfere with. restrain, or coerce any of its employ- ees through a number of remarks or questions allegedly directed to them? B. The Jtlutirn 18 1ialkoutu According to the testimon of Leroy Stubbs. a number of the truckdri,ers had met on several occasions to discuss 677 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among themselves their working conditions particularly the condition of the equipment. As a result of these meet- ings they asked the assistant dispatcher, Willie Williams, to arrange a meeting with Mr. Oliver, or some other represent- ative of management with whom they could discuss their grievances. There is a minor and inconsequential conflict as to whether Mr. Oliver. a vice pesident of Respondent, ever received advanced knowledge of the employees' desire to meet with him. Willie Williams testified that in response to Leroy Stubbs' request that he arrange for a meeting with a representative from management on January 18, that he spoke to Doug Murphy, who was the chief dispatcher at that time. Murphy later reported back to Williams that the meeting was on it was okay. Williams then told Stubbs that the meeting had been arranged. However, Oliver testi- fied that he had not consented to the meeting, and Leroy Stubbs testified that Oliver appeared to have had no ad- vance warning or knowledge of the meeting. Nevertheless, the truckdriving employees -some 20 in number gathered in the conference room on the early morning of January 18.2 Before any representative of man- agement joined the employees, the employees had written on a blackboard a list of those grievances which they wished to discuss. This list included such items as a retire- ment plan, improved equipment, better working hours, and a pay increase. Mr. Clyde Underwood first spoke to the employees and apparently acknowledged that the equipment needed some necessary repairs and that he would take care of them just as rapidly as possible. (Mr. Underwood had only been on the payroll in his capacity as maintenance supervisor for approximately I week at the time of this meeting.) According to Mr. Oliver, he was advised when he first came to work sometime between 7:30 and 8 a.m. on Janu- ary 18 that the employees were in the conference room and wished to talk to him. ie testified that when he joined the group he noticed that there were a list of "driver demands" written on a blackboard. At that time he explained that he was only a vice president of the Company, not the owner, and that it would be impossible for him to negotiate on the employees' grievances at that time. ie stated that the em- ployees demanded that the issues be settled right then and there. Mr. Oliver then replied. "Well, look. I can't settle it here and now. As far as I'm concerned, you people that are sitting here, my trucks are sitting out there, you are insubor- dinate and either get up and go to work or hit the clock." Leroy Stubbs' testimony did not differ too much from that of Mr. Oliver. Stubbs testified that "he [Oliver] told us after we tried to tell him what we wanted to talk about, he re- fused to listen, and then, he told us the meeting was no meeting, and that if we wasn't going to go back to work, then to go home." The employees left the conference, but did not go back to work. They all went across the street to a restaurant to 2 The names of these emploees, all of whom are alleged to have been wrongfully discharged following the aforementioned meeting, are Samuel L. Ellis, Jessie Ferguson. Samm I.. Ilall. l.arry W Ilartle. Johnnie R. Hen- derson. enry Johnson, James F1'. Kcdzieski t r;ank Miller, George Moore, Roy, (c. Perkins, oward Predom, Ernest J. Rainwater. I ionel Richardson. David R. Shelvin, Vergil .. Smith, Leroy Stuhbbs, Archie W. Waines, Raleigh V. Williams. Willie . Williams, and Kenneth R. Wright. (Willie Williams was part f the group. but testified he joined them after the conference room meeting.) discuss their future action. According to Stubbs, one of the employees, E. J. Rainwater, had made some posters and employees started carrying these and walking in front of the plant. About 9 a.m. that same morning, Mr. Oliver went across the street and asked to speak to Leroy Stubbs. At that time Oliver tried to explain some of the Company's problems and the fact that he could not do anything about the situ- ation immediately. Little or no progress was made and very shortly Mr. Vaughn, an employee of Respondent, came across the street and told Mr. Oliver that he was wanted in the plant. According to the testimony of Leroy Stubbs, as Mr. Oliver was leaving he said, "Well, if you're not back to work by 10:30, he say, you are all fired." According to Stubbs, he replied by saying, "Well, I guess we're all fired, then, because we're not going to come back to work under those conditions." Later in the morning a union representative, Al Cortez. came by and after ascertaining the problems the employees were having and obtaining clearance from his union to rep- resent the employees he began counseling the employees and having them sign union authorization cards. Later in the day Mr. Oliver called to the truck stop or restaurant and advised Stubbs that he would be willing to meet with the employees in his office. A committee of five employees were selected with Leroy Stubbs as their spokesman and they were joined by' Al Cortez, the union representative, and Ronnie Angel, another union representative, and pro- ceeded to Mr. Oliver's office. After reaching Mr. Oliver's office, there followed the usual introductions and light con- versation. Mr. Oliver then inquired as to the identity of the two strangers. Upon being informed that they were union representatives, Mr. Oliver told the group that he was will- ing to discuss their "bitches," but he would not negotiate grievances or discuss grievances with them and that the union officials were not welcomed on the premises. The en- tire party then left Mr. Oliver's office without anything hav- ing been accomplished. The complaint alleges, and Respondent acknowledges and admits, that the striking employ,ees made an uncondi- tional ofer to return to work on or about January 30. The complaint also alleges that since on or about February 1, Respondent has returned the following named employees to its payroll: Samuel L. Ellis, Sammy L. Hall, Frank Miller, Jr., George Moore, Roy C. Perkins (later terminated on March 29 - which will he discussed hereinafter), Lionel Richardson, David Shelvin. and Leroy Stubbs. Analysis After studying the testimony of Oliver and Leroy Stubbs carefully, I find their testimony not to be at great variance with one another except in one instance. That instance re- lates to the alleged remark made by Mr. Oliver after he had gone across the street to the restaurant or cafe to talk to the employees. I credit the testimony of Leroy Stubbs and I believe that Mr. Oliver did tell the employees that unless they were back on the job by 10:30 a.m. on January 18 that they would be "fired." The evidence is undisputed that the employees had gathered together for the purpose of discuss- ing their mutual working conditions and exercising their legal rights to protest these working conditions to Respon- 678 PROLER INTERNATIONAL CORP. dent. They were exercising their concerted, protected rights when they walked off the job and began their rather crude form of picketing on the morning of January 18. The dis- charge of these employees followed their failure to report to work at 10:30 a.m. as ordered by Mr. Oliver. Respondent. by its action, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby did engage in an unfair labor prac- tice affecting commerce within the meaning of Section 8(a)( ).3 C. The Discharge of Roy Broussard Roy Broussard has been employed by Respondent since 1970. During his employment period he has had an unbe- lievably bad attendance (or absenteeism) record. Besides frequent absences of I or 2 days in a week, in 1977 he missed 30 days at one time having been placed in jail be- cause of failure to support; in 1976 he missed 60 days at one time for the same reason; it was also acknowledged that he had a similar loss of time for nonsupport in 1975. On January 20, 1971, Broussard received a warning for ab- senteeism from his then foreman, Garcia. On May I. 1975, Broussard was regarded as a quit for failure to show up for work. (See Resp. Exh. 2.)' In August 1977, Broussard was terminated by Herman Taylor. his supervisor at the proler- izer. However, this again seemed to have been some form of a mistake, because he was again placed on the payroll at the direction of Mr. Oliver. According to Mr. Herman Tay- lor, he was reduced in status from a leadman to an opera- tor.' According to the testimony of Broussard, he went to work around I p.m. on January 18, at which time he saw the striking truckdrivers and asked if everyone was on strike. Upon being advised that it was only the truckdrivers. he asked if it was permissible for him to go to work, and when they replied "yes," he went in and remained at work for his regular working day. According to Broussard's testi- mony, he was scheduled to report to work the next day at approximately 4 p.m. He came to the plant at 2 p.m. and assisted the strikers by soliciting other employees for their signatures on union authorization cards and generally min- gling with the striking employees. Although he was sup- posed to have reported for work at 4 o'clock, he testified that he did not attempt to go into work until approximately 7 p.m. at which time he was stopped by the guard and then later informed by Herman Taylor. his supervisor. that he was being fired for absenteeism and "organizing." (The wit- ness was never sure whether he was told he was being dis- charged for absenteeism and organizing or was told he was being discharged for absenteeism and "reorganizing." He Wauhington Aluminum Conpan. Inc., 30 U.S. 9 (1962) 4While there is no explanation in the record, his failure to report for work may very well have been occasioned by his being placed in jail because of his failure to provide adequate support for his wife and family. In any event. he seemed to have been rehired or reinstated thereafter. 5Again the record is not entirely clear, but apparently he was discharged by Mr. Taylor because of unexcused absenteeism. There is evidence n the record to indicate that he had come to work on the particular occasion, but that he had been too drunk to perform his duties and had been stopped by the personnel office and told to return home. Apparently, on the basis that the personnel department had sent him home. Mr. Oliver felt that he should not have been discharged and therefore had him reinstated changed his own testimony several times and it can hardly be said that he was a convincing witness as to just exactly what he was told at the time of his termination.) The timecard records (Resp. Exh. 6) provide a definite conflict with the testimony of Broussard. It was established that the first day of the workweek for Respondent is on Tuesday, and the week carries through the following Mon- day. The week ending January 23 was the week during which Broussard was discharged. The first day of that workweek Tuesday., January 17 indicated that Brous- sard worked 13-1/4 hours. There is no indication that he worked at all on January 18, but on January 19 he worked for 11-1/4 hours. The same timecard (Resp. Exh. 6) indi- cates that he worked 24-1/2 hours that week and carries the notation as follows: "Discharged. Terminated. Excessive absenteeism and reorganization of dept. per Herman Tay- lor. /s/ Mike Cleary. Dated: 1/24 78." The handwritten notation on the timecard corresponds to the same language that is contained in General Counsel's Exhibit 8 which is a company form reflecting "record of termination of employ- ees." Neither of these records bears the signature of Her- man Taylor who testified that he was the supervisor who made the decision to terminate Broussard. This was ex- plained because Taylor was transferred to a totally different job for Respondent and no longer works at the plant site where the activities discussed herein had taken place., Analysis Although the record is undisputed that Broussard was sympathetic with the truckdrivers who were on strike and that he may have actually assisted and aided them in solic- iting union authorization cards, there is no proof that Her- man Taylor, who actually discharged Broussard. had any knowledge of his union activity. Broussard was employed as an operator in the prolerizer section of the plant and was not involved or directly concerned with the truckdrivers. Admittedly his record of absenteeism was deplorable, and he might have been discharged at some earlier date las in fact, he actually was). but the mere fact that an employer has been lenient or considerate of an employee over a pe- riod of time does not deprive that employer of the right to discharge an employee for the same incident. There only arises the rebuttal inference that perhaps the actual timing of his discharge may have been motivated by his union activity. Under all the circumstances of this case I find Broussard to have been a very unconvincing witness and I credit the testimony of Herman Taylor. I believe that Tay- lor had no knowledge of Broussard's union activity but was completely "fed up" with Broussard's absenteeism and that Taylor fully intended to reorganize the department in an effort to improve its efficiency. The fact that only one other employee was transferred out of the department stems en- ' Nor do I find an, serious dlscrepancy between I lylor', estimnl, n that Broussard was discharged effectise January 20 because (i'. Exh 8 indi cates that the effective date of the discharge as January 19. 1978 (learls. the timecard of Broussard shows that he worked 11-1 4 hours on January 19, and according to his own testimon he was discharged after he was attempting to report some 3 hours late The date ol the discharge would hase had to occur on Januars 20. 1978. Broussard's last da.: otf ,ork v al Januar 19. 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tirely from the fact that Taylor himself was transferred to a new and different job. I find Broussard's discharge not to have been associated with his concerted, protected activities and/or his union activities and specifically find that he was discharged for appropriate and legal nondiscriminatory rea- sons and shall recommend that this aspect of the General Counsel's complaint be dismissed. sions concerning Perkins' discharge nor was he consulted for a recommendation. He did not learn of Perkins' dis- charge until after it had actually taken place. Marvin Jones, the tire repairman, testified that he re- moved the tire from the truck, repaired it, and since that date the tire has been placed back into service on another company vehicle. D. The Discharge of Roy Perkins Roy Perkins was a truckdriver who had participated in the heretofore discussed meeting between the truckdrivers and Mr. Oliver on January 18. The pleadings and record indicate that he continued to participate with the striking truckdrivers until their unconditional offer to return to work on or about January 30 and his subsequent reinstate- ment on February 1. On March 29, Perkins was discharged under the follow- ing circumstances. He was driving a dump truck from the prolerizer on the concrete road (see G.C. Exh. 2 for a map of the plant) westward toward the truck shop when he re- ceived a signal from a fellow employee indicating that he had a flat tire. Perkins testified that he stopped within 10 feet of the time he received the signal and that he was not traveling at a high rate of speed. (The letter H on G.C. Exh. 2 indicates the point at which Perkins received a signal that he had a flat tire, and the letter S is the point at which he stopped the truck.) According to Perkins' testimony, and this was pretty much confirmed by Marvin Jones, the tire man, Perkins proceeded to the tire shop and told Jones that he had a flat tire and asked him what he should do about it. Jones saw how far the truck was from the tire shop and told Perkins to drive it into the shop and he would fix it. Jones departed the tire shop but instead of going directly to his truck he walked out to the front gate (which appears as a capital A on G.C. Exh. 2) and there picked up a flyer or handbill that was being distributed by the union represent- ative. (See G.C. Exh. 6 for a copy of the flyer.) Perkins then returned to his truck where he was confronted by Mr. Her- man Proler, the executive vice president of Respondent. Mr. Proler asked him if he knew that he had messed up a $200 tire. According to Perkins he replied, "no he did not." Proler then asked Perkins his name and who had authorized him to drive the truck. Perkins returned to the tire shop where he showed Marvin Jones the union bulletin and then informed Jones that he was not going to drive the truck in. He said, "There it is, Mr. Proler's out there. I'm not going to drive it in." According to Perkins, while he was still standing there with Marvin Jones he received a message over the interplant communication system advising him to report to the dispatcher's office. The dispatcher, Harvey Wessels, informed Perkins that the wrong man had seen him and that he was being terminated and should see Mike Clear, in the personnel office. Mike Cleary sent Perkins home for the remainder of that day and the next day in- formed him by telephone that he was being terminated for destruction of company property. Clyde Underwood, the transportation superintendent, was called by Respondent and testified that he inspected the tire while it was still on the truck and in his opinion it had been too severely damaged to be capable of being re- paired. However, he further testified that he made no deci- Analysis Based upon this record it is apparent that the man who made the decision to discharge Roy Perkins was never called to testify by Respondent. The concerted and/or union activity of Roy Perkins is undisputed-his participa- tion in the strike of January 18 until he was recalled to work on February 1, and at the time he returned to the truck on March 29 he had a union flyer or bulletin in his hand which was undoubtedly seen by Mr. Herman Proler. While I regard the testimony of Clyde Underwood as being very signficant, I cannot regard it as controlling, because by his own testimony he did not inspect the tire after it was removed from the truck. Marvin Jones testified without contradiction that he took the tire off the truck, repaired it, and placed it in service on another truck. While there was considerable testimony regarding the distance from the pro- lerizer to the truck stop, or the place where Perkins stopped the truck, I do not regard this as significant because there was no proof that the tire was flat or even soft at the time Perkins left the prolerizer and I credit Perkins' testimony that he stopped immediately after being signaled by a fel- low employee that he had a flat or soft tire. The issue here, as it was with Broussard, and is true in every 8(a)(3) termi- nation case is a resolution of the "true motive or real mo- tive" for the discharge. Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675 (1961), quoting The Radio Officers' Union of the Commerical Telegraphers Union, A FL [A. H. Bull Steamship Companyl v. N.L.R.B., 347 U.S. 17, 43 (1954). If Perkins was in fact discharged because of his union activi- ties, it makes no difference that there may also have been a legitimate reason for firing him. Local 152, affiliated with International Brotherhood of Teamsters, Chauffeurs and Helpers of America [American Compressed Steel] v. N. L. R. B., 343 F.2d 307, 309 (D.C. Cir. 1965). Conversely, if Perkins' discharge was not discriminatorily motivated, it is immaterial whether the dishcarge was arbitrary, unfair, or unreasonable. In this instance, based on the rather superfi- cial and inconclusive investigation of the incident by Re- spondent, the credited testimony of Marvin Jones that the tire was repaired and placed on another vehicle, and the total lack of any prior warnings or indication that Perkins had committed other offenses which might have indicated his unworthiness as a truckdriver, I must conclude and find that the discharge of Perkins by Herman Proler on or about March 29, 1978, was motivated in part, if not totally. by Perkins' union and/or concerted activity and thus violated Section 8(a)(3) and (I) of the Act. 680 PROLER INTERNATIONAL CORP. E. The 8(a)(1) Allegations Ofelia Ortiz, who was first employed by Respondent in 1973 and after a period of employment left for a period of 2 years and then returned and has been employed for the past 2 years, testified that a man came to her department on or about May 23 and introduced himself as Cesar Navarro, who was "there ready to give us any help that we might need, and if he said-and he told us if we needed anything at all for us to just go to the personnel office." During this conversation Ms. Ortiz said that Maria Landeverde and Rosa Urebea were present and that Mr. Navarro stated that "he knew that that day there was going to be a meeting of the Union, and he asked us if we were going to go to the meeting." After testifying that she replied she did not know, Ms. Ortiz stated that Navarro continued and said, "f we did go to the union meeting that we should not sign any papers because the Union was lying to us and, it was just trying to [do] business with us." Mr. Melchor Ortega, who has been employed by Respon- dent since July 20, 1977, and works as a crane operator, testified that about the second week in May, Mr. Navarro approached him on the job and said, "tell me about this union trying to get in up here." When asked if Navarro gave him any instructions to relate to other employees, Or- tega replied, "Well, he told me that he don't want nobody to induce anybody to join the Union because he might be something against your job. He didn't tell me much of, you know, he didn't tell me my job, he tell me everybody." Justin Ferguson, who has been employed by Respondent for approximately 4 years, testified that he was working in the warehouse the latter part of May and attended a meet- ing in which Navarro, Ben Wyner, a supervisor, and Hor- ace Strickland, a supervisor, had talked to the assembled employees in the metal warehouse. During this meeting Na- varro told them that he had heard there was "going to be a strike, if anyone walked out, that their job wasn't guaran- teed." Ferguson also testified that on May 30, Mr. Horace Strickland, "asked me did I know anything about the strike. He asked me did I attend the meeting that-a little before, you know a little before that day." The witness continued to explain that the meeting had reference to a union meet- ing. When Ferguson answered that he did not know, Strick- land then said, "He wanted to know, because they were going to probably work the hell out of them, you know, and I told him I still didn't know." Horace Strickland specifically denied questioning Fergu- son regarding the strike and attendance at the union meet- ing as testified by Ferguson. Will Stidhum, who has been employed by Respondent for approximately 9 years, testified that he attended a meet- ing of the employees of department 22 on or about May 30 at approximately 1 p.m. Stidhum said that Navarro did all the talking at this meeting and that it started out as a safety ' While there were numerous minor and inconsequential errors in the tran- script, in some instances the English of the Spanish-speaking employees lef something to be desired. However, the full meaning and intent of the last quote comes through rather loud and clear. While Cesar Navarro did not testify, and therefore I had no opportunity to evaluate either his English or Spanish or to observe his demeanor, it was made clear through the testimony of several other witnesses that Cesar Navarro spoke fluent Spanish and fre- quently served as a translator for Respondent when it was necessary to do so. meeting in which Navarro discussed "safety glasses, safety helmets and things like that." According to Stidhum, after he (Navarro) finished talking about safety he then con- cluded by saying, "Ya'll know that rumors goin' around that we're going to have a strike, and as you all know, as of-as of to date, we doesn't have a contract with the Car- penters Union. Anyone goes out on strike and don't cross that picket line, they will be fired. Automatically fired and replaced. Will be replaced." Howard Predom, employed by Respondent for approxi- mately a year and a half, testified that he recalled attending an employee meeting in department 22 at which Cesar Na- varro spoke, and after spending some time discussing var- ious safety items he concluded by saying that "He had heard rumors that there would be a strike within the week, in fact, he specified that Tuesday of that week. And, he said that anyone that participates in the strike that they would automatically lose their job because Proler was not repre- sented by any union." Predom further testified that about a week after the May 31 strike that Mr. Navarro told him that he (Navarro) had heard that Predom had filed charges against him. "And, that whether I won the charges or lost the charges, I would lose my job, and he asked me would I be willing to take this chance."' Analysis The testimony of the various witnesses regarding the in- terrogation and threatening remarks made to various em- ployees by Cesar Navarro stand in the record undenied. Navarro was not called as a witness by Respondent, nor was the failure to produce him explained. Thus, the record lacks his version of his remarks to the various employees as heretofore set forth in this Decision. Under the circum- stances, it is a fair inference that, had he been called b) Respondent, his testimony would not have been favorable to Respondent's cause.' Accordingly, I find that the interro- gation of Ortiz and Ortega by Ceasar Navarro interfered with, restrained, and coerced the employees of Respondent in violation of their Section 7 rights and thereby violated Section 8(a)() of the Act. Equally violative of Section 8(a)(1) of the Act were the undenied remarks made by Na- varro concerning the fact that the Carpenters did not repre- sent the employees and therefore those employees who might go out on strike would automatically lose their jobs because Proler was not represented by any union. I am convinced that Navarro conveyed the message to the em- ployees that if they engaged in a strike they would be re- placed and would lose their jobs permanently. As the Board has frequently held, such instructions to employees is not an accurate statement of the law, and "could have no other than a coercive effect upon the employees in their exercise of their statutory right to select the Union as their bargain- I Par. I I(a) of the complaint in Case 23-CA-6996 alleges that charges were filed in Case 23-CA-7107 alleging Respondent to have discriminated against Howard Predom. Par. Xl of Respondent's answer to the complaint in Case 6996 admits that charges alleging discrimination against Howard Pre- dom by Respondent had been filed. I Colorflo Decorator Products. Inc.. 228 NLRB 408 (1977): Inrernaional Union United Automobile. Aerospace and Agricultural Implement Workers America (UA W) Omni Spectra, Inc.] v. N L.R B 459 F.2d 1329. 1335-38 (D.C. Cir 1972) 681 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing agent."' ° Likewise, I shall find Navarro's statement to Predom, that he (Predom) would lose his job regardless of whether he won or lost the charges filed with the National Labor Relations Board, to be an interference with the em- ployees' Section 7 rights in violation of Section 8(a)(1) of the Act. F. Activities of Respondent Away From the Plant Martha Carnalla testified through an interpreter that she has been employed by Respondent for a period of 4 years and currently works in the 01 department. She testified that on February 16 she and others in her department were in- vited to attend a luncheon at a restaurant named Chela's. They were told Respondent would pay for the lunch and that any time lost from work would not be charged against them. She attended the meeting and there a "supervisor" named Earl Ramey spoke in English which was then inter- preted by Felipa Torres, who was identified as Ramey's girlfriend and a former employee." At the luncheon the employees were told that the Company wanted their "sig- natures to withdraw the Union, to take it away." Mrs. Carnalla testified that she was invited to attend an- other luncheon on February 17 at a restaurant named Adolpho's. Mrs. Carnalla testified that there were approxi- mately 7 employees who attended the first luncheon, but that approximately 17 employees attended the second lun- cheon and that she was driven to Adolpho's restaurant in one of the company cars. She testified that they were again told that their signatures were needed to withdraw the Union and that the Union was only there to steal our money. Mrs. Carnalla testified that they were not offered anything to sign but were told to "make up our minds and to tell the mechanic." Mrs. Lucille Davila testified that she has been employed by Proler for 4 years and works in the 01 department. Mrs. Davila confirmed the date of the meeting at Chela's restau- rant on February 16 and further testified that Felipa Torrez had called the department about 10 a.m. inviting them to the luncheon meeting. Mrs. Davila generally confirmed the testimony of Mrs. Carnalla then added that after the meet- ing at Chela's restaurant the employees were invited to go to the personnel department where Ramey had a letter ac- cusing "the Union saying that they were going to fire all the wetbacks." Some of the employees were asked to sign their names on a piece of paper to "reopen the union voting." The testimony of Mrs. Carnalla and Davila further revealed that the luncheons each took approximately 2 hours and that they were not charged with any time lost from work and that the Company paid for their luncheons. Analysis Respondent elected not to offer any rebuttal testimony to that given by Mrs. Carnalla and Davila as set forth above. 'l See Indana Rayon Corporation, 151 NLRB 130. 134 (1965). See also St. Anthony's Center, 227 NLRB 1777, 1785 (1977), and the numerous cases cited therein. tl Earl Ramey was never adequately qualified as a supervisor. He was identified as a working mechanic who wore a white hardhat of the same type worn by other supervisors. Based on the status of his record, I am unable to conclusively find that Ramey was a supervisor. As indicated earlier, the status of this record is insufficient to find Earl Ramey to be a supervisor of Respondent. How- ever, the undenied and undisputed testimony of Carnalla and Davila as to the Company's tacit endorsement and willingness to pay these employees for time away from the job caused me to believe that even though Ramey and Fe- lipa Torrez were not supervisors of Respondent they were limited agents acting at the direction of responsible supervi- sory management. Even though attendance at the lun- cheons were voluntary and there is no evidence that anyone was forced to sign their signatures seeking a "revote," nev- ertheless this conduct did tend to interfere with, restrain, and coerce Respondent's employees in the exercise of their Section 7 rights, and I shall find it to be violative of Section 8(a)(l) of the Act. IV. TIlF EFFE(CI OF THE UNFAIR LABOR PRACIICES UPON COMMERCE The activities of Respondent set forth in section III above, occurring in connection with the operations of Re- spondent described in section , above, have a close, inti- mate, and substantial relationship to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW I. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, engaged in commerce and in an indus- try affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The strike which occurred on January 18 was a lawful exercise of the employees' concerted, protected activities, and Respondent's subsequent discharge and refusal to rein- state some of said employees following their unconditional offer of reinstatement was violative of Section 8(a)(3) and (I) of the Act. 4. Respondent's unlawful action of advising the striking employees on January 18 that unless they returned to work by 10:30 a.m. that day they would be discharged and re- placed converted what would otherwise have been an eco- nomic strike, into an unfair labor practice strike. 5. The discharge by Respondent of employee Roy Per- kins was motivated, at least in part, by Perkins' concerted, protected activities and/or his union activities and was vio- lative of Section 8(a)(3) and (I) of the Act. 6. The interrogation of employees on the part of Cesar Navarro concerning their union activity restrained and co- erced employees in the exercise of their Section 7 rights and was violative of Section 8(a)(1) of the Act. 7. Respondent, through the action of its supervisor, Ce- sar Navarro, threatened employees with discharge and/or other reprisals if they engaged in union activity and thereby interefered with, restrained, and coerced employees in the exercise of their Section 7 rights and violated Section 8(a)(l) of the Act. 8. Respondent, by the conduct of its personnel director, Cesar Navarro, threatened Howard Predom with loss of 682 PROLER INTERNATIONAL CORP. employment because he (Predom) filed charges with the National Labor Relations Board and thereby interfered with, restrained. and coerced him in the exercise of his Sec- tion 7 rights and violated Section 8(a)(l) of the Act. 9. Respondent, by its passive consent to and its actual payment of wages to employees participating in the meet- ings at which they were solicited to sign a petition seeking a new election did interfere with, restrain, and coerce em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act and thereby violated Section 8(a)( ) of the Act. 10. Other allegations contained in the complaint not spe- cifically found herein to be violative of the Act are herewith found to be without merit and are dismissed. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to 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 striking employees Samuel L. Ellis, Jessie Ferguson. Sammy L. Hall, Larry W. Hartley. Johnnie R. Henderson, Henry Johnson, James E. Kedzieski, Frank Miller, George Moore, Roy C. Perkins, Howard Predom. Ernest J. Rain- water, Lionel Richardson, David R. Shelvin, Virgil L. Smith, Leroy Stubbs. Archie W. Waines, Raleigh V. Wil- liams, Willie L. Williams and Kenneth R. Wright and failed to reinstate them after receipt of their unconditional offer to return to work on or about January 30, 1978, I shall recom- mend that Respondent offer to each of them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent postions without prejudice to their seniority or other rights and privileges." I shall also recommend that Respondent make them whole for any loss of earnings suffered as a result of the discrimi- nation against them by payment to them of sums equal to those which they normally would have earned as wages from January 31, 1978, to the date of Respondent's offers of reinstatement, less net earnings during such period. See Drug Package Company, Inc., 228 NLRB 108 (1977). shall also recommend that Respondent offer immediate and full reinstatement to Roy Perkins under the same conditions and reimbursement for moneys lost because of the discrimi- natory and wrongful discharge of him on March 29, 1978. Backpay is to be computed on a quarterly basis in the man- ner prescribed by the Board in F . Woolworth Company, 90 NLRB 289 (1950). and with interest thereon as provided in Florida Steel Corporation. 231 NLRB 651 (1977). See generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962. In view of the nature of Respondent's unfair labor prac- tices found herein, I shall recommend that Respondent cease and desist from infringing in any other manner on the rights of its employees as guaranteed by Section 7 of the u The record is clear that some of the striking employees were reinstated forthwith, but it is not clear as to when, if at all, others among the named striking employees were reinstated. This matter should he resolved during the compliance stage of this case Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER" The Respondent. Proler International Corp.. Houston, Texas, its officers, agents, successors, and assigns. shall: I. Cease and desist from: (a) Interrogating employees about their union activities and desires. (b) Threatening employees with discharge if they partici- pate in a strike or fail to cross any picket line that might be established. (c) Threatening employees with loss of employment be- cause they have filed charges with the National lVabor Rela- tions Board. (d) Discharging employees because of their union activi- ties and/or concerted, protected activities. (e) Interfering with an employee's Section 7 rights by soliciting and encouraging employees to sign petitions seek- ing a new election to select their collective-bargaining rep- resentative. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Samuel L. Ellis. Jessie Ferguson, Samm L. Hall, Larry W. Hartley. Johnnie R. Henderson. Henry Johnson, James E. Kedzieski. Frank Miller, George Moore, Roy C. Perkins. Howard Predom Ernest J. Rainwater. I.io- nel Richardson. David R. Shelvin. Virgil L. Smith, Leroy Stubbs, Archie W. Waines, Raleigh V. Williams, Willie . Williams and Kenneth R. Wright immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make said employees whole 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 pay- roll records, social security records. timecards. personnel records and reports, and all other records necessary to ana- lyze and compute the amounts of backpay due under the terms of this Order. (c) Post at its Houston facilit copies of the attached no- tice marked "Appendix."" Copies of the notice, on forms i~ In the event no exceptions are filed as provided hby Sec 10246 of the Rules and Regulations of the National abor Rlations 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. 14 In the event that this Order is enforced b a Judgment of a United States Court of Appeals, the words in the notice reading "Posted hbs Order .of the National abor Relations Board" shall read Posted Pursuant to a Judg- ment of the Ulnited States ('Court of Appeals Enforcing an Order tof he Na- tional I.abor Relations Board " 683 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided by the Regional Director for Region 23, after steps shall be taken by Respondent to insure that the no- being duly signed by Respondent's representative, shall be tices are not altered, defaced, or covered by any other mate- posted by Respondent immediately upon receipt thereof rial. and be maintained by it for a period of 60 consecutive days (d) Notify the Regional Director for Region 23, in writ- thereafter, in conspicuous places, including all places where ing, within 20 days from the date of this Order, what steps notices to employees are customarily posted. Reasonable have been taken to comply herewith.