Caribe Ford

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 74 1108 Caribe Ford and Union Nacional de Trabajadores de Puerto Rico and Generoso Perez. Cases 24–CA– 8291, 24–CA–8435, and 24–CA–8356 November 13, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW On December 29, 2000, Administrative Law Judge George Alemán issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed a brief in support of the judge’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Or- der, and to adopt the recommended Order as modified and set forth in full below.2 The judge found, inter alia, that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by discharging employee Generoso Pérez in January 19993 for engaging in protected union activity. In its exceptions, the Re- spondent contends that the requisite elements of a viola- tion have not been met because the judge erroneously inferred, in the absence of direct evidence, that the Re- spondent knew about Pérez’ union activity. We find merit in the Respondent’s argument.4 To prove a violation of Section 8(a)(3) and (1) under our decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F. 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In addition, some of the Respondent’s exceptions imply that the judge’s rulings, findings, and conclusions demonstrate bias and preju- dice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit. 2 We shall modify the judge’s recommended Order to conform to the violations found and in accordance with Ferguson Electric Co., 335 NLRB 142 (2001). We shall also substitute a new notice to conform to the Order as modified and in accordance with Ishikawa Gasket Amer- ica, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). 3 All dates herein are 1999, unless otherwise indicated. 4 The Respondent also argues that the judge erroneously inferred an- tiunion animus. Given our finding that there is insufficient evidence of the Respondent’s knowledge of prounion activity, it is unnecessary to address the Respondent’s argument regarding antiunion animus. 989 (1982), the General Counsel must first prove, by a preponderance of the evidence, that the employee’s pro- tected conduct was a motivating factor in the employer’s adverse action against that employee.5 Once the General Counsel makes a showing of discriminatory motivation by establishing the employee’s union activity, the em- ployer’s knowledge of it, and the employer’s animus against it,6 the burden of persuasion shifts to the em- ployer to establish that it would have taken the same ad- verse action against the employee even in the absence of the employee’s union activity. We find that the General Counsel failed to establish a prima facie case of unlawful discharge under the Wright Line standard. Specifically, we find that the General Counsel failed to prove that the Respondent had knowl- edge of union activity at the time of Pérez’ discharge. The record clearly establishes that the Respondent be- came aware of the union organizing drive in mid-March, almost 2 months after Pérez’ discharge. Rolando Fal- gueras, the Respondent’s general manager, testified that he learned of the union activity from Jose Carrasquillo, the Respondent’s service department manager, sometime in March; and there is no evidence that Carrasquillo sat on that information before communicating it to Fal- gueras. Even the General Counsel concedes that there is no direct evidence that the Respondent was aware of any union activity among its employees prior to Pérez’ Janu- ary 22 discharge, let alone evidence that Pérez supported the Union or had engaged in union activities. Despite this uncontradicted evidence that knowledge was acquired in March, and despite the complete absence of any direct evidence of knowledge before that time, our dissenting colleague posits that circumstantial evidence can be relied on to show that the Respondent learned of the union activity in January. More particularly, our dis- senting colleague argues that knowledge of union activ- ity can be inferred from, inter alia, animus toward union activity. We agree that where an employer displays animus to- ward union activity, there is presumably employer knowledge of that activity. Further, where there is gen- eral knowledge of union activity and animus toward that activity, one might infer knowledge of union activity by an alleged discriminatee. For example, in Montgomery Ward, 316 NLRB 1248, 1254 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996), the employer argued that it did not vio- late Section 8(a)(3) in April when it discharged employ- ees Guss and Groenwoldt because it had no knowledge specifically of their union involvement. However, the 5 Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996). 6 Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). CARIBE FORD 1109 Board found that the employer displayed strong anti- union animus in March, after learning generally of the union organizing effort among its employees. Thus, ac- cording to the Board, specific knowledge of Guss’ and Groenwoldt’s union activities could be inferred from the employer’s general knowledge of union activity and demonstrated hostility toward such activity. Similarly, in Pan-Osten Co., 336 NLRB 305, 308 (2001), the employer was aware of union activities among its employees generally and had displayed hostil- ity toward a known union supporter. Despite the fact that there was no evidence of the employer’s specific knowledge of employee Mosby’s union activities, the Board concluded that Mosby was unlawfully discharged. The Board stated that a reasonable inference of knowl- edge could be drawn based on the employer’s general knowledge of union activity among its employees and its demonstrated hostility toward such activities preceding Mosby’s discharge. Id. at 308. By contrast, in the instant case, there is no evidence that the Respondent was even generally aware of union activity among its employees at the time it discharged Pérez. The conduct allegedly showing animus began in March 1999, when the Respondent became generally aware of union activity. With no evidence that the Re- spondent had any knowledge of union activity among its work force at the time it discharged Pérez, we find its later-displayed animus insufficient to infer that it knew specifically of Pérez’ union activity. Our colleague also relies on the purported openness of Pérez’ union activities to support an inference of knowl- edge. The record makes clear, however, that Pérez was discreet about those activities. After meeting with a un- ion representative on January 8, Pérez assembled some coworkers to tell them that there would be a union in- formational meeting on January 27. According to Pérez and another employee witness, no one from management was present when Pérez conveyed this information to employees. And, after this meeting, up through the time of his discharge, there is no evidence that Pérez or any other employee spoke to management about the Union or Pérez’ support of it. Finally, when Pérez was discharged on January 22, the Respondent said nothing to indicate that his discharge bore any relation to his union activi- ties.7 The cases our colleague cites in support of inferring knowledge from open union activity are distinguishable. In Vibra-Screw, Inc., 301 NLRB 371 (1991), the em- ployees at issue “went around Respondent’s plant to tell 7 The letter given to Pérez at the time of his discharge indicated that he was being discharged for low production. most of the unit employees what transpired” at a union meeting the day before. Id. at 373. Here, by contrast, Pérez’ union activity was localized and brief. Moreover, it was unwitnessed by and undisseminated to manage- ment. In NLRB v. Hospital San Pablo, Inc., 207 F.3d 67 (1st Cir. 2000), enfg. 327 NLRB 300 (1998), the dis- criminatee had engaged in “extensive and prolonged [u]nion activities.” 327 NLRB at 300. In addition, the respondent in that case already was aware that its em- ployees were engaging in prounion activity and that the activity had begun in the discriminatee’s department. Here, Perez did not engage in extensive and prolonged union activities, and the Respondent did not have even general knowledge of union activities. Our dissenting colleague also relies on the timing of Pérez’ discharge to support the inference that Respon- dent knew of his union activities. We acknowledge that the Respondent discharged Pérez soon after he contacted the Union, and that this circumstance may raise suspi- cions. However, under Wright Line, supra, the General Counsel bears the burden to prove employer knowledge as part of his Wright Line case. Mere suspicion arising from coincidental timing alone is insufficient to sustain that burden. See, e.g., Lasell Junior College, 230 NLRB 1076 fn. 1 (1977). In NLRB v. Novelty Products Co., 424 F.2d 748, 750 (2d Cir. 1970), enfg. 170 NLRB 466 (1968), cited by the dissent on the issue of timing, there was abundant evidence of both employer knowledge of union activity and demonstrated animus at the time of the mass layoffs at issue in that case. Here, both of those elements are missing. In sum, where, as here, there is insufficient evidence that the Respondent had knowledge of Pérez’ union ac- tivity at the time of his discharge, the General Counsel has not satisfied his burden of proof under Wright Line.8 8 Chairman Battista agrees with Member Kirsanow that the evidence does not establish that the Respondent knew, at the time of Pérez’ January discharge, of any union activity by Pérez. In addition, Chair- man Battista concludes that the evidence does not establish antiunion animus as of that time. At most, the evidence shows such animus in March, 2 months after the discharge. Contrary to Member Liebman, assuming arguendo evidence supporting a finding of knowledge of Pérez’ union activity, it does not follow that proof of one element of the General Counsel’s prima facie case will constitute proof of another element, antiunion animus. “To hold otherwise is to pile inference on top of inference.” Alldata Corp., 327 NLRB 127, 128 (1998) (dissent), enfd. denied 245 F.3d 803 (D.C. Cir. 2001). In denying enforcement of the Board’s order as it related to the discharge of employee Abbadessa, the D.C. Circuit stated: “We agree with the dissenting Board member that there is simply no evidence that [the respondent] ever manifested any hostility to Abbadessa’s protected concerted activity.” Further, even if there were such animus in January, that would not show knowledge of union activity in January. In this regard, Chairman Battista does not agree that animus toward union activity yields a pre- sumption of knowledge of union activity. The two elements of an DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110 AMENDED CONCLUSIONS OF LAW Substitute the following for the judge’s Conclusion of Law 4. 4. By issuing an 8-day suspension and discipli- nary writeups to Jose DeDiego on April 27 and Au- gust 10 and 13, respectively, and thereafter discharg- ing DeDiego on September 3, for his union activi- ties, the Respondent violated Section 8(a)(3) and (1) of the Act. AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. To remedy its discriminatory treatment of Jose DeDiego, the Respondent shall be ordered, within 14 days from the date of the Board’s Order, to offer him full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privi- leges he previously enjoyed. The Respondent shall also be required to make Jose DeDiego whole for any loss of earnings and other benefits he may have suffered due to his unlawful discharge and his 8-day suspension in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest on such amounts to be com- puted as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent will also be required, within 14 days from the date of the Order, to rescind and remove from its files any and all reference to DeDiego’s unlawful April 27 8-day suspension, August 10 and 13 disciplinary write-ups, and September 3 dis- charge, and within 3 days thereafter, to notify him in writing that this has been done and that the unlawful con- duct will not be used against him in any way. Finally, the Respondent shall be required to post an appropriate notice.9 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the 8(a)(3) violation are not the same. An employer may well fear union activity and display animus toward union activity, even if there is in fact no ongoing union activity or knowledge of any union activity. In addition, even if there is ongoing union activity and employer animus toward that activity, that does not yield a presumption of knowledge that alleged discriminatee X engaged in that activity. 9 Nothing herein shall require the Respondent to rescind any benefits or improvements in employee terms and conditions of employment that were unlawfully granted or made by the Respondent to dissuade em- ployees from supporting the Union. Respondent, Caribe Ford, San Juan, Puerto Rico, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Cease and desist from (a) Threatening to close its facility if a union were brought in; prohibiting employees from distributing un- ion literature during their nonworking time and threaten- ing them with discharge if they do so; creating an im- pression of surveillance of its employees’ union activi- ties; and soliciting, promising to remedy, and remedying employee grievances in an effort to dissuade them from supporting the Union. (b) Suspending, issuing written warnings to, and dis- charging Jose DeDiego or any other employee for sup- porting Union Nacional de Trabajadores de Puerto Rico, or any other union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Jose DeDiego full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Jose DeDiego whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him in the manner set forth in the amended remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful 8-day suspen- sion of, disciplinary warnings issued to, and discharge of Jose DeDiego and, within 3 days thereafter, notify him in writing that this has been done and that the suspension, warnings, and discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in San Juan, Puerto Rico, copies of the at- tached notice marked “Appendix.”10 Copies of the no- 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- CARIBE FORD 1111 tice, on forms provided by the Regional Director for Re- gion 24, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since March 24, 1999. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply. MEMBER LIEBMAN, dissenting in part. It is well established that circumstantial evidence can suffice to prove that the employer knew of the em- ployee’s union activity, one element required to establish a discriminatory discharge under Section 8(a)(3) of the Act. Here, contrary to the majority, I would infer that the Respondent knew that Generoso Pérez was a leading union supporter, when it discharged him promptly after he engaged in open union activity. As the judge did, I would go on to infer that the Respondent was motivated by antiunion animus, based on (among other things) the adjudicated unfair labor practices committed by the Re- spondent after Pérez’ discharge. Finally, the General Counsel having carried his initial burden of proof, I would find that, given the shifting and inconsistent grounds it offered, the Respondent failed to prove that it would have discharged Pérez even absent his union ac- tivity. I. The record clearly establishes that Pérez, one of the Respondent’s salesmen, engaged in protected union ac- tivity. Indeed, as found by the judge, Pérez met with the Union about organizing the Respondent’s employees in early January 1999. Thereafter, Pérez convened a public meeting of his coworkers, in the Respondent’s show- room, to tell them that he had contacted the Union and to set up a union informational meeting for all interested employees, to be held later that month. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Within days of this employee meeting, the Respondent initiated a performance evaluation of its sales force. The results of that evaluation revealed that at least four sales- men had worse sales records than Pérez.1 Nonetheless, only Pérez and one other employee were discharged. After Pérez’ discharge, when the employees’ union ac- tivities culminated in the March 1999 filing of an elec- tion petition, the Respondent reacted further against the employees’ organizing activities by committing a series of unfair labor practices, including threatening employ- ees with plant closure, creating the impression that em- ployee union activity was being surveilled, soliciting grievances and promising to remedy them, and disciplin- ing and discharging an additional employee because of his union activities.2 II. The majority argues that, on these facts, the General Counsel failed to satisfy his Wright Line3 burden, be- cause there is insufficient evidence that the Respondent knew of Pérez’ union activities. Separately, Chairman Battista also posits that the record fails to establish that the Respondent had demonstrated animus toward Pérez’ activities. I disagree. A. With respect to knowledge, it is “well established that, in the absence of direct evidence, an employer’s knowl- edge of an employee’s union activities may be proven by circumstantial evidence from which a reasonable infer- ence may be drawn.” Pan-Oston Co., 336 NLRB 305, 308 (2001). Such circumstantial evidence may include the “em- ployer’s demonstrated union animus, the timing of the discipline or discharge, and the pretextual reasons for the discipline or discharge asserted by the employer.” Id. The Board has also held that an employee’s open union activities may constitute circumstantial evidence giving rise to a “proper inference of an employer’s prior knowl- edge of a discriminatee’s protected activities.” Vibra- Screw, Inc., 301 NLRB 371, 373 (1991). In regard to animus, “[i]t is well established that a dis- criminatory motive may be inferred from circumstantial evidence and the record as a whole, and that direct evi- dence of animus is not required.” Tubular Corp. of America, 337 NLRB 99 (2001). 1 Indeed, as noted by the judge, a Respondent-produced document shows that during the 6-month period prior to his discharge, Pérez’ production exceeded that of at least six other sales employees. 2 We are unanimously adopting these violations, as found by the judge. 3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112 B. Here, the circumstantial evidence creates a strong in- ference of both the Respondent’s knowledge and its ani- mus with respect to Pérez’ union activities. 1. As to knowledge, sales employee Pérez contacted the Union and conducted a meeting about the Union in an open, public area within the Respondent’s facility. In these circumstances, it is reasonable to believe that someone dropped a hint, if not more to management. Human nature is not to the contrary. NLRB v. Hospital San Pablo, Inc., 207 F.3d 67, 74 (1st Cir. 2000) (noting that the discriminatee was a “committed un- ion activist and actually solicited co-workers” in the work- place), enfg. 327 NLRB 300 (1998). Just a few days after Pérez’ open union activities, he was discharged. As one court has put it, the timing of the discharge was “stunningly obvious.” NLRB v. Novelty Products Co., 424 F.2d 748, 750 (2d Cir. 1970). Fur- thermore, Pérez’ was discharged purportedly for poor performance, even though he had a better record than at least four other salespeople. The Respondent’s stated reason for Perez’ discharge therefore appears to be a pre- text, a point more fully discussed below.4 Finally, as I will explain, there is abundant evidence of animus, which is relevant to the issue of employer knowledge, as well as to the issue of motive. This combination of open union activity, timing, pre- text, and animus provides sufficient circumstantial evi- dence to establish the Respondent’s knowledge of Pérez’ union activity. In concluding that the General Counsel failed to estab- lish that the Respondent had knowledge of Pérez’ union activity, my colleagues rely significantly on the testi- mony of Ronald Falgueras and Carrasquillo that they first became aware of the employees’ organizing drive in March 1999. That the Respondent’s officials admitted having knowledge 2 months after Pérez’ discharge, how- ever, does not establish that they lacked knowledge ear- lier. It is clear that the judge, in inferring knowledge from circumstantial evidence, implicitly discredited Fal- 4 The Board has also inferred knowledge where there is a delay be- tween the employer’s discipline and the employee’s alleged miscon- duct. Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996). Here, the Respondent asserted at one point that Pérez had been discharged based on two disciplinary warn- ings he had received months before his January 22, 1999 discharge: one on April 22, 1998, when the company was under different ownership, and the other on October 2, 1998. Pérez denied receiving either warn- ing. gueras’ and Carrasquillo’s testimony that they were un- aware of Pérez’ prounion efforts in January 1999. 2. Contrary to Chairman Battista’s view, there was also good reason to infer animus with respect to Pérez’ dis- charge. The timing of Pérez’ discharge so soon after he con- tacted the Union, as well as the Respondent’s disparate treatment of Pérez in relation to other sales personnel, support a finding of animus. See, e.g., Medic One, Inc., 331 NLRB 464, 475 (2000), citing Adco Electric, 307 NLRB 1113, 1123 (1992), enfd. 6 F.3d 1110 (5th Cir. 1993). The Respondent’s later violations of the Act, in which antiunion animus was openly displayed, are also relevant to assessing whether Pérez’ discharge, early in the union organizing effort, was unlawfully motivated. As em- ployee union activity increased, the Respondent reacted with multiple violations of Section 8(a)(1) and (3). For example, the Respondent told employee DeDiego that the mere fact that he had tried to bring in the Union was enough reason for the Company to fire him, and it told DeDiego and other employees that if the Union did come in the Respondent would close down the business. It is reasonable to infer, based on the course of the Re- spondent’s conduct, that the Respondent harbored ani- mus against Pérez’ union activities. That a more wide- spread display of animus followed Pérez’ discharge, rather than preceding it, simply suggests that the Re- spondent saw a need to coerce employees on a wider scale than it did at the time it fired the leading union sup- porter. Given the intensity of the Respondent’s animus, it seems implausible to conclude that it was not engen- dered until after Pérez was discharged. In concluding that the elements of knowledge and animus reasonably may be inferred from all of the cir- cumstances, I have also considered the Respondent’s shifting explanations for Pérez’ discharge. “‘Shifting explanations for discharge may, in and of themselves, provide evidence of unlawful motivation.’” U.S. Coach- works, Inc., 334 NLRB 955, 957 (2001), quoting NLRB v. Henry Colder Co., 907 F.2d 765, 769 (7th Cir. 1990). “The Board has long expressed the view that ‘when an employer vacillates in offering a rational and consistent account of its actions, an inference may be drawn that the real reason for the conduct is not among those asserted.’” Sound One Corp., 317 NLRB 854, 858 (1995), enfd. 104 F.3d 356 (2d Cir. 1996), quoting Aluminum Technical Extrusions, 274 NLRB 1414, 1418 (1985). Here, the Respondent gave inconsistent explanations for Pérez’ discharge in its answer, at the hearing, and in its brief. In its answer, the Respondent cites the reason CARIBE FORD 1113 for Pérez’ discharge as poor performance. At the hear- ing, the Respondent blamed Pérez’ discharge on low production and a poor attitude. In its brief, the Respon- dent claims that Pérez was discharged due to economic problems that it was having. The judge appropriately drew an adverse inference from the Respondent’s incon- sistent explanations and concluded that the actual reason for the Respondent’s conduct was not among those as- serted. C. Based on all of these circumstances, I would adopt the judge’s finding that the General Counsel carried his ini- tial Wright Line burden of proving that the Respondent had knowledge of Pérez’ union activity, and that his dis- charge was motivated by antiunion animus. In turn, I would also adopt the judge’s finding that the Respondent has not carried its Wright Line rebuttal bur- den of demonstrating that it would have discharged Pérez even absent his union activity. As discussed, the Re- spondent’s claim that Pérez was discharged for low pro- duction is unsupportable. The record evidence estab- lishes that several employees with worse performance records than Pérez were retained. Further, as found by the judge, the Respondent’s additional justifications were pretextual or after-the-fact rationalizations. III. For these reasons, and those stated by the judge, I would find that the Respondent’s discharge of Pérez vio- lated Section 8(a)(3) and (1) of the Act. Ismael Rodriguez Izquierdo, Esq., for the General Counsel. Jesus Diaz Rivera and Rebecca Diaz, Esqs., for the Respon- dent. Luis Alvarez Colon, for the Charging Party. DECISION GEORGE ALEMÁN, Administrative Law Judge. A hearing in this matter was held on June 21–23 and 29–30, 2000, in Hato Rey, Puerto Rico, following the filing of unfair labor practice charges by Union Nacional de Trabajadores de Puerto Rico (the Union) and Generoso Perez, an individual, and issuance of a consolidated complaint on November 30, 1999,1 by the Re- gional Director for Region 24 of the National Labor Relations Board (the Board). The complaint alleges that the Respondent, Caribe Ford, violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The Respondent, in a timely- filed answer, denies having engaged in any unfair labor prac- tices. All parties at the hearing were afforded full opportunity to call and examine witnesses, to submit oral as well as written evidence, and to argue orally on the record. On the entire re- 1 All dates herein are in 1999, unless otherwise specified. cord,2 including my observation of the demeanor of the wit- nesses, and after considering posthearing briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is a Florida corporation with an office and place of business in San Juan, Puerto Rico, where it is engaged in the wholesale and retail sales and servicing of motor vehi- cles. During the 12-month period preceding issuance of the complaint, the Respondent, in the normal course of its business operations, had gross revenues in excess of $500,000 and, dur- ing the same period, purchased and received at its above place of business goods and materials valued in excess of $50,000 directly from points located outside the Commonwealth of Puerto Rico. The complaint alleges, the Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Allegations Specifically, the complaint alleges that the Respondent vio- lated Section 8(a)(1) by: creating the impression that its em- ployees’ union and other concerted activities were being kept under surveillance; threatening employees with plant closure; discharge and other unspecified reprisals if they brought in a union or engaged in union activity; interrogating employees about their union or concerted activities; soliciting employee withdrawal of support for the Union; soliciting and remedying employee grievances, and promising and granting employees increased benefits and improved terms and conditions of em- ployment to convince them to refrain from union activity and to undermine the union movement. It further alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to assign alleged dis- criminatee Jose DeDiego sufficient work, thereby preventing him from meeting his assigned mechanic’s quota; issuing him a disciplinary warning and several disciplinary memoranda, sus- pending him for 8 days, and subsequently discharging him for his union activities. Finally, the complaint alleges that the Re- spondent violated Section 8(a)(3) by discharging alleged dis- criminatee Generoso Perez because of his activities on behalf of, and support for, the Union. B. Factual background In June 1998, the Respondent began operating its San Juan dealership facility after acquiring the business, managerial staff, and employees (including alleged discriminatees DeDiego and Perez) from its predecessor, Automotores de Puerto Rico. Ro- 2 Reference herein to testimonial evidence will be cited as “Tr.” (transcript) followed by the page number(s). Exhibits received in evi- dence will be referred to as either “GCX” for a General Counsel exhibit or “RX” for a Respondent exhibit, followed by the exhibit number(s). Finally, reference to arguments made by the parties in their posttrial briefs will be cited as “GCB” for the General Counsel’s brief, or “RB” for the Respondent’s brief, followed by the brief page number(s). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114 lando Falgueras, formerly employed by Automotores as general sales manager, currently serves as Respondent’s general man- ager and has general managerial responsibility over five sepa- rate departments. John (J.P.) Poldruhi, apparently also serves as a general manager. The record, however, does not reveal his duties or responsibilities.3 Tito Avendaño, formerly employed by Automotores as sales manager, currently holds the same position with the Respondent with supervisory authority over the sales personnel. Mariano Perez (M. Perez), Automotores’ former parts manager, serves in a similar capacity with the Respondent with responsibility over parts inventory control and the parts department personnel. Jose Carrasquillo, Automoto- res’ former service department manager, holds essentially the same position with the Respondent, and is responsible for em- ployees in the service department and all matters relating thereto. Finally, Jorge Cruz Detres, formerly employed by Automotores as workshop supervisor, holds the same position with the Respondent and has direct supervision and control over the automotive technicians, dispatchers, and workshop in general.4 1. Generoso Perez Perez worked for the Respondent from June 1998, until dis- charged on January 22, 1999. Prior to June 1998, Perez, as noted, was employed by Automotores and was being super- vised by Avendaño and Falgueras.5 He testified that after ac- quiring Automotores, the Respondent made certain operational changes which caused “uneasiness” among its sales staff of some 20 salespersons. The changes in question, he explained, affected the sales staff financially and placed additional pres- sures on them. Perez further testified, without contradiction, that 2 weeks before being discharged, e.g., around January 8, he discussed the employees’ concerns with Teamsters representa- tive Negron and asked him to come and speak to the salesper- sons at the Respondent’s facility.6 Negron agreed to talk to the employees but suggested it might be better to hold the meeting at his house. Perez agreed and a meeting was set for January 27, at 6:30 p.m. After his discussion with Negron, Perez met for about 10 minutes at the lot 2 showroom with several em- ployees from both lots, notified them of the date, time, and place of the meeting, and gave them Negron’s name, address, and phone number. Employee Luis Reyes, who was discharged days after Perez, corroborated Perez’ claim of his union-related discussion with employees. Thus, he recalled that at one meet- ing of some four or five salespersons, Perez provided them information about the Teamsters and informed them of the upcoming January 27 meeting at Negron’s house. Perez could 3 DeDiego’s reference to Poldruhi as a general manager was not dis- puted by the Respondent (Tr. 147). 4 Falgueras, Avendaño, Perez, Carrasquillo, and Detres are all admit- ted supervisors within the meaning of the Act. 5 According to a document received in evidence as RX–2, on April 22, 1998, before the Respondent took over Automotores’ operation, Perez was given a letter by Falgueras stating he had failed to attend a meeting of sales employees, and urging him to make more of an effort to comply with the Respondent’s obligations. Perez, however, testified that he never saw the letter prior to the hearing. 6 There were two sales lots—lot 1 and lot 2—at Respondent’s facil- ity. Avendaño was manager over lot 1. not recall if any of the Respondent’s managers or nonsales employees were nearby or observed his meeting with the sales- persons at the lot 2 showroom. He also admitted that no man- agement official ever discussed or raised his union activities with him. Falgueras testified that on or around January 13, 1999 (just days after Perez met with union representative Negron and held his employee meeting), he received a phone call from the Re- spondent’s president, Steve Westphal, directing him, on behalf of Respondent’s board of directors, to conduct an evaluation of all sales personnel working at Caribe Ford. There is nothing in Falgueras’ testimony to suggest that he was ever directed to terminate any employee following the evaluation. Rather, he recalled being told only that “if we had to take a measure against, or in favor of, someone, we should do so.”7 He claims that any decision to terminate or retain an employee was left up to him. (Tr. 837.) Following receipt of Westphal’s directive, Falgueras claims he instructed Avendaño to conduct this re- view. Avendaño, he contends, then evaluated all the sales staff and, on January 21, presented him with a list of five salesper- sons purportedly having the lowest production records, two of whom were Perez and Reyes, and recommended that both Perez and Reyes be terminated. Avendaño’s testimony regarding the evaluation and dis- charge of Perez is as follows. Sometime in January, Falgueras called him to his office and told him about Westphal’s directive to conduct an evaluation of the salespersons. Avendaño claims Falgueras told him that an evaluation of the salespersons should be done “to see if the ones that were at a lower echelon, or had a lower production, would be replaced by us, by salespersons who we would try to get from other dealers, with high sales averages.”8 (Tr. 726–727.) Falgueras does not corroborate Avendaño in this regard for there is no mention in his testimony of a discussion with Avendaño regarding replacement employ- ees. Avendaño then asked the accounting department to pro- vide him with the sales production figures for each salesperson. Following his conversation with Falgueras, Avendaño asked the accounting department to provide him with the sales pro- duction figures for each salesperson. The accounting depart- ment then purportedly furnished him with the information which included a chart listing the names of 13 salespersons, and the number of vehicles or units each sold during the period June through December 1998 (GCX-7).9 He testified that the chart 7 The Respondent’s assertion on brief (p. 3), that Falgueras received the directive from Westphal and the board of directors sometime in December 1998, lacks factual support and, more importantly, is contra- dicted by Falgueras’ own testimony that he received the call “around January 13, 1999” (Tr. 843). Avendaño’s testimony, infra, that Fal- gueras informed him sometime in January about Westphal’s phone call also appears to contradict the Respondent’s claim that the instructions from Westphal were received in December 1998. 8 Avendaño’s testimony as to what Falgueras said to him, it should be noted, is at odds with Falgueras’ testimony that he was only in- structed by Westphal to conduct a review of the salespersons, and that Westphal did not discuss the termination of any employee. 9 Avendaño’ testimony as to how and when he received GCX–7 was somewhat evasive and self-contradictory. Asked, for example, who prepared the chart, Avendaño replied, “I don’t know, it must’ve been prepared by. . . the accounting department.” As to when he might have CARIBE FORD 1115 (GCX-7) prepared for him by the accounting department was not accurate because the names of other salespersons in the Respondent’s employ had been omitted, and that, on January 21, he prepared a more accurate report of his own covering the period from July 1998 through January 1999, and then dis- carded GCX-7, after using the information contained therein as a base to prepare his own report.10 (Tr. 773.) Avendaño claims that in his report, he evaluated each salesperson based on their total sales for the 7-month period between June 1998-January 1999, and took into account “the average of the utilities, and the total utilities that those sales represented for the company.”11 He purportedly also took into account whether a particular salesperson “dedicated a bit more time to the clients,” the price of the cars sold by the salespersons, and the accessories a sales- person may have sold with the vehicle. (Tr. 727.) In sum, Avendaño claims that the overall profit made by the Respon- dent on the sale of a vehicle, not merely the number of vehicles sold by the salesperson, was given consideration in his evalua- tion of the sales staff. Avendaño claims that on the basis of his report, he con- cluded that Perez, salespersons Reyes, Salgado, Abraham Ne- gron (A. Negron), and a fifth unidentified individual, were the five with the worst production ratings. (Tr. 746.) Of these five, Reyes, according to Avendaño, had the worst record, leading him to immediately conclude that Reyes should not be retained. Avendaño claims he then compared the production records of Perez and A. Negron in deciding which of the two to recom- mend for discharge. Both, according to Avendaño, had similar production records. He then decided to compare their person- nel files to determine which of the two might be the better em- ployee.12 Avendaño claims that when he examined Perez’ file, he found two disciplinary writeups that purportedly had been issued by Falgueras to Perez on April 22, 1998, while both received it, Avendaño, in response to questioning by the General Coun- sel, stated he “must have” gotten it after Perez’ January 22 discharge. However, in response to my questions, Avendaño stated that the chart was part of the file generated in connection with the evaluation Fal- gueras asked him to conduct, and that it had been prepared before, not after, Perez’ discharge. (Tr. 774, 776.) I am convinced that the chart was prepared by the accounting department in response to Avendaño’s request. 10 Avendaño’s report was offered and received into evidence without objection as RX–17. The Respondent subsequently withdrew RX–17, presumably in order to provide opposing counsel and the reporter with the requisite number of copies (Tr. 732–734). It did not, however, prior to the close of the hearing, furnish the reporter with duplicates as re- quired by the Board’s rules (see fn. 16, supra), nor did it reintroduce the document into evidence following its withdrawal. While citing to RX– 17 in its posthearing brief (RB:13–4), the Respondent has made no posthearing request to have RX–17 reintroduced and made a part of the record. Accordingly, I give no weight to RX–17 as it was expressly withdrawn as an exhibit by the Respondent at the hearing. 11 Avendaño admits that based solely on the number of sales by each salesperson during the period reviewed, Perez had a better production record than at least three other salespersons. (Tr. 747.) 12 Avendaño’s testimony, that he compared only the personnel files of Perez and A. Negron to see which of the two he would recommend for dismissal, contradicts the Respondent’s assertion on brief (p. 13), that Avendaño also reviewed Salgado’s personnel file to see if it con- tained any disciplinary writeups. were still employed by Automotores, and on October 2, 1998.13 He found no similar writeups in A. Negron’s file. Rather, he contends that A. Negron’s file contained a copy of an e-mail letter dated March 3, 1998, from a customer praising A. Ne- gron’s work while the latter was employed by Automotores (Tr. 733–736). His review of the files, Avendaño claims, “tipped the balance in favor of Negron,” and led him to conclude that Perez should be terminated along with Reyes. On January 21, after preparing his report and completing his evaluation, Aven- daño claims he discussed his findings and recommendations with Falgueras. Falgueras purportedly agreed with Avendaño’s recommendation and instructed him to call the two employees into his office and notify them of their dismissal. Falgueras agreed that Avendaño came to him on the after- noon of January 21, with his report and recommendation that Reyes and Perez be terminated. Falgueras claims that the deci- sion on how many salespersons were to be terminated was made by Avendaño. Avendaño, however, offered no explana- tion as to how he arrived at the number of employees he felt should be terminated. Falgueras claims he agreed with Aven- daño’s recommendation, and then directed the accounting de- partment to prepare the paperwork necessary to effectuate the discharges. Both Falgueras and Avendaño testified that Perez and Reyes were notified the next day of their termination. Their testimony in this regard, however, is disputed by Reyes’ testi- mony, and by his discharge letter, which reflect that he was not discharged at the same time as Perez, but rather 5 days later, on January 26. (Tr. 130; GCX-33.) I credit Reyes and reject as not credible Falgueras’ and Avendaño’s testimony to contrary. Perez’ testified as follows regarding the discharge interview. At around 4:50 p.m. on January 22, Muñoz told him that Re- spondent’s general manager, Rolando Falgueras Jr. wanted to see him. On receipt of Muñoz’ message, Perez suspected that the Respondent might somehow have learned of his union ac- tivities and was about to fire him. Once inside Falgueras’ of- fice, Perez met with Falgueras and Avendaño, and was handed a letter stating that he was being discharged because of his low production during the past 7 months (GCX–2). Perez ex- pressed surprise at the letter as he considered his production numbers to have been satisfactory, and asked Falgueras to pro- vide him with the true reason for the discharge. He claims that neither Falgueras nor Avendaño responded to Perez’ inquiry. Instead, Avendaño simply asked him to turn in his key to the office. Perez replied that it was already late, and that he would turn in the key the following day after retrieving his personal items. The entire meeting lasted some 20 minutes. Perez did in fact return the next day to collect his belongings and turn in his key. Falgueras denies that the reasons for the discharge were not explained to Perez. Rather, he claims that when Perez ques- tioned him about the letter, he told Perez that the Respondent had been having problems with Perez “relating to production, 13 See RX-1. The writeup charged Perez with having a defensive and aggressive attitude towards his coworkers and customers, and failing to meet his sales quota of 12 vehicles per month. Perez denied having ever received the October 2, 1998 warning which is RX-1 (Tr. 88). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1116 and the continuous problem that we had related to attitude against clients and fellow workers.” (Tr. 808.) Falgueras’ claim in this regard was not corroborated by Avendaño. Thus, while the latter recalled Perez questioning Falgueras on why he was being discharged, Avendaño in his testimony makes no mention of Falgueras providing Perez with any further explana- tion for the discharge other than what was stated in the dis- charge letter. I credit Perez and find that Falgueras did not mention anything about the discharge having been based in part on an alleged poor attitude or the warnings presumably found in his file by Avendaño. 2. Jose DeDiego DeDiego worked as an automotive technician with the Re- spondent, as he had done with Automotores, from June 1998, until discharged on September 3, 1999. The record reflects that in late February, Poldruhi implemented a production quota for all automotive technicians. Thus, by memo dated March 2, the Respondent notified all technicians that as discussed during a February 25 meeting, technicians would have to complete a minimum of 25 production hours per week, and that employees who failed to do so would receive a written warning informing them of their low production (RX-8).14 On March 8, DeDiego received such a warning from Poldruhi. On receipt of the warning, DeDiego claims he met with Poldruhi and Shop Su- pervisor Detres to explain why he had not met his production quota, at which time he declined to sign the letter to indicate he had received it. At some point during this meeting, Poldruhi, according to DeDiego, instructed him in front of other co- workers to pick up his toolbox and leave, at which time DeDiego signed the letter. Poldruhi did not testify, and Detres, while called as a witness, did not specifically recall discussing the March 8 memo with DeDiego, and testified only that such memos were often discussed with employees. On March 18, DeDiego and other employees engaged in a work slowdown to protest Respondent’s failure to pay them the monthly incentive check that was due them on March 15. He recalls that during the slowdown, Detres and other managers instructed them to leave the work area if they did not plan to continue working. He contends that employees nevertheless stuck together and continued the slowdown, but that tempers remained fairly high among employees. DeDiego claims that at one point, he phoned his uncle, Oscar Ortiz, a union organizer, for advice, and was told that employees should remain in the work area.15 Following his phone conversation with Ortiz, DeDiego returned to the employees and urged them to remain calm. Employees eventually received their incentive pay around noon that same day, along with a letter signed by Fal- gueras expressing Respondent’s surprise at the work slowdown and admonishing them against further similar job actions 14 Employees unable to meet the 25-hour-per-week production quota due to illness or because of vacation time would not be issued written notices (Tr. 420). 15 Contrary to the Respondent’s suggestion at the hearing (Tr. 308– 309), DeDiego’s denial on cross-examination, that he spoke to Ortiz about an incident involving a Ford Explorer, is not inconsistent with his testimony on direct examination that his discussion with Ortiz involved the work slowdown. (Tr. 143.) (Tr.153).16 On receiving the letter, DeDiego told employees he was go- ing to the Union to discuss the events of the day. He testified, without contradiction, that some of his coworkers agreed to accompany him to the Union’s office and followed him in their cars. On arriving, DeDiego, and between 16 and 22 other em- ployees who showed up, met with union officials Manuel and Oscar Ortiz. At this meeting, employees signed union authori- zation cards on behalf of the Union. DeDiego and others also received blank authorization cards for distribution to other em- ployees at Respondent’s facility. DeDiego testified, again without contradiction, to having solicited cards from other em- ployees and returning them, along with the cards solicited by other employees, to the Union. Carrasquillo testified that he learned from employees Carlos Perez and Eric Lugo that employees in the service department were becoming interested in organizing themselves and that DeDiego appeared to be the one behind the movement. It ap- pears that Carrasquillo then passed on this information to Fal- gueras, for the latter testified that he learned of the union activ- ity from Carrasquillo sometime in March. According to Fal- gueras, he told Carrasquillo that employees were fully within their rights to organize provided they did not campaign during working hours because that would interfere with production. On March 24, the Union filed a petition with the Board seek- ing to represent all of the Respondent’s auto mechanics and auto parts dispatchers (GCX-9). On or about the same date, DeDiego was talking to employee Carlos Perez about the union and/or signing a union card. Some 10 minutes later, Detres approached DeDiego and instructed him to go to Falgueras’ office. DeDiego then went to Falgueras’ office where Fal- gueras, Detres, Carrasquillo, and Poldruhi were all present. According to DeDiego, Falgueras began the meeting by telling him, “You’re the one who’s trying to bring the Union in here.” DeDiego told Falgueras he felt uncomfortable discussing the matter in the presence of Carrasquillo and Detres. Falgueras then instructed both to leave the room, at which time DeDiego admitted responsibility for bringing in the Union, explaining he did so because he wanted to know what rights he and other workers had. Falgueras replied that he had been trying to as- certain since the March 18 work stoppage, who had been stir- ring up his employees, and further remarked that he could not allow a union to come in because he would lose the opportunity given to him by the “North Americans,” referring to Respon- dent’s corporate owners. Falgueras, according to DeDiego, further stated that if the Union were brought in, the Respondent would close down the business. DeDiego responded that he and other employees had rights under the law, and that “if we wanted to have someone represent us, the law would guarantee those rights to us.” Falgueras went on to mention that if he, Falgueras, did not feel comfortable at a particular place, “he would just leave.” DeDiego replied that he had felt the same way when Poldruhi gave him the earlier warning. Falgueras then asked DeDiego to talk to the union leaders and ask them to end their efforts to bring the Union in, and that if Poldruhi was 16 Falgueras’ comment to employees about not engaging in any fur- ther job actions is not alleged as a violation of the Act. CARIBE FORD 1117 the problem, he would fire Poldruhi. Falgueras added that he “did not want anyone from the outside” telling him how to run his business, and that he was going to speak to other employees in an effort to resolve whatever complaints they had. Finally, Falgueras gave DeDiego until 1p.m. the following day to report to him that the unionization efforts had been halted. Detres, who testified at the hearing, was not asked to confirm or deny DeDiego’s account that he directed DeDiego to go to Falgueras’ office, or that he was in attendance at the meeting between Falgueras and DeDiego. Carrasquillo, also a witness in this proceeding, was similarly not questioned about this al- leged meeting. Poldruhi, as noted, did not testify and, while Falgueras did testify, he did not expressly deny that such a meeting with DeDiego took place. Rather, he testified only that he never meets individually with employees, and that all his employee meetings occur in group sessions, never alone. (Tr. 802.) I credit DeDiego and find that such a meeting took place, and that Falgueras made the comments attributed to him by DeDiego. In so doing, I rely not only on DeDiego’s sound demeanor as a witness and his detailed explanation of the meet- ing, but also on the fact that, except for Falgueras’ general as- sertion that he never meets individually with employees, DeDiego’s claim went unchallenged. The Respondent could have, but did not, elicit any denial from either Detres or Carras- quillo that such a meeting was held. Nor did the Respondent call Poldruhi who, according to DeDiego, was present at the meeting and presumably heard the remarks Falgueras allegedly made to DeDiego, to deny that such remarks were made or that he attended any such a meeting. The Respondent’s failure to question Detres or Carrasquillo regarding this meeting, or to call Poldruhi to confirm or deny DeDiego’s account, warrants an adverse inference that had Detres and Carrasquillo been asked, they would not have denied that such a meeting was held, or that had Poldruhi been called, his testimony would not have been favorable to the Respondent. A-1 Portable Toilet Services, 321 NLRB 800, 803 (1996); Casa San Miguel, Inc., 320 NLRB 534 (1995); Northway Nursing Home, 243 NLRB 544 (1979). After his meeting with Falgueras, DeDiego returned to work and, at the end of the day, notified the Union of Falgueras’ remarks. DeDiego claims that the next day, Falgueras, together with Carrasquillo, met with all the automotive technicians. At this meeting, Falgueras told employees that the Respondent intended to build a new facility across the street from the cur- rent one, and possibly another one in Fajardo, Puerto Rico, and that employees who remained could expect to have a good future with the Company. DeDiego recalls Falgueras also tell- ing employees that he knew of the Union’s organizational drive, that employees had signed authorization cards, and which employees had been part of the union movement. Fal- gueras further told employees that he had met with DeDiego the day before. According to DeDiego, he asked Falgueras for permission to speak to employees after Falgueras had finished, explaining that he did so because he feared employees might assume from Falgueras’ reference to their meeting the day before that DeDiego had disclosed to Falgueras which employees had signed union cards. Allowed to do so, DeDiego proceeded to tell employees that he had in fact met with Falgueras the day before and had informed him his own involvement with the Union. He assured employees, however, that he had not dis- closed to Falgueras the names of any other employees who had signed cards. He also told employees that he had mentioned to Falgueras some of the concerns they were having, including the fact that employees were being asked to take unpaid vacations, and that they were not being credited with the proper amount of seniority when requesting employment certification letters from the Respondent. DeDiego further recalls that at this meeting, Falgueras agreed to correct some of the employee concerns, which in- cluded providing them with paid vacation time, and reschedul- ing employee start time to accommodate their need to avoid traffic problems. DeDiego further recalls that at one point dur- ing the meeting, Carrasquillo asked employees to forgive him, that he was going to change, but that they should not allow a union in because unions, in his view, did not resolve anything. According to DeDiego, the changes promised by Falgueras, as well as others, were subsequently implemented by the Respon- dent (Tr. 233.) Falgueras recalls meeting with employees sometime in late March, presumably the same one testified to by DeDiego. The purpose of the meeting, he claims, was to determine whether there was a need to purchase additional tools for the shop. He did, however, recall telling employees at this meeting that if they wished to engage in an organizational campaign, they should do so during nonworking hours, but that a union would result in additional costs to them. Asked what prompted him to make the remark, Falgueras explained that he was simply re- sponding to a discussion that was taking place at the time among employees regarding union quotas or dues. As to the restriction imposed on employees at this meeting regarding union activity during working hours, Falgueras explained that this policy applied only to group discussions of union matters by employees during working hours, and did not apply to one- on-one conversations between employees who wished to en- gage in union talk. (Tr. 840–842.) Carrasquillo was not asked about this March meeting, but testified generally to having attended various production- related meetings held by Falgueras in 1999. His testimony about being in attendance at Falgueras’ meetings in 1999, and DeDiego’s specific assertion that Carrasquillo was present at the March meeting, convinces me that Carrasquillo did indeed attend this late March meeting. Although Carrasquillo recalls Falgueras mentioning to him that employees had the right to organize themselves and to engage in union activity, he did not state that it occurred at the March meeting. DeDiego testified that following this March meeting, several employees feared retaliation and asked to have their authoriza- tion cards returned to them. One employee, DeDiego claims, went so far as to threaten to shoot DeDiego if he (the em- ployee) was terminated. (Tr. 177.) On March 30, the Union responded to the Respondent’s attempts to dissuade employees from supporting it by circulating, through DeDiego, a memo to employees cautioning them against the Company’s “divide and conquer” strategy, and urging them to be wary of Respondent’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118 tricks. (GCX–13.) DeDiego testified, credibly and without contradiction, that he distributed the flyer at the Company park- ing lot on his free time. DeDiego recalls that on returning to work after his distribution activities, he was met by Carras- quillo who instructed him to go to Falgueras’ office. He testi- fied that when he got to Falgueras’ office, Falgueras handed him one of the leaflets and asked if he had been distributing them. DeDiego told him he was, and that he had been advised by the Union to distribute the literature on his own free time. Falgueras, according to DeDiego, then threatened to fire him if he handed out the literature again. (Tr. 194.) DeDiego, how- ever, ignored Falgueras’ instructions and continued with his distribution activities. Falgueras generally denied engaging in any discussion about the distribution of literature with employees, or having seen anyone engaging in distribution activity at the facility. He did recall Carrasquillo bringing him a union flyer one day and tell- ing him that the flyer had been left in the Respondent’s cafete- ria after working hours. Carrasquillo was not asked about this incident, leaving undisputed DeDiego’s claim that he was di- rected by Carrasquillo to Falgueras’ office after completing his distribution activities on his lunchbreak. I credit DeDiego’s claim that soon after he finished distributing union literature during his lunchbreak, Carrasquillo directed him to Falgueras’ office and that, once there, Falgueras questioned him about his leafleting activities and threatened to fire DeDiego if he did not cease his distribution activity. While the record does not spec- ify if Carrasquillo or anyone else from management in fact saw DeDiego distributing union literature, it is reasonable to infer from Carrasquillo’s conduct in directing DeDiego to Falgueras’ office soon after DeDiego completed his activity, and from Falgueras’ threat to discharge DeDiego for such activities, that Carrasquillo did indeed observe DeDiego engaging in such activity during his lunchbreak and reported the matter to Fal- gueras. On March 31, an incident occurred involving a Ford Ex- plorer vehicle DeDiego had been assigned to repair some 3 weeks earlier, on March 8. Thus, on March 8, DeDiego re- ceived a work order from dispatcher Alfonso Reyes to replace a leaking windshield washer reservoir on a 1999 white Ford Ex- plorer owned by Noemi Valentin. The work order, received in evidence as General Counsel Exhibit 15, reflects that Valentin purchased the vehicle in February 1999. DeDiego explained that in making the repair, he followed the normal company procedure of taking the job order to the parts department to obtain a replacement reservoir for the vehicle. The parts de- partment employee, DeDiego further explained, in turn pre- pared a receipt for, and handed him, the replacement part which he then installed in the vehicle.17 He testified that after install- 17 DeDiego testified that the part he installed was in fact not a new replacement part but instead one which had been cannibalized from a Ford Bronco damaged when Hurricane Georges struck the island, and whose parts the Respondent was using as replacements in other vehi- cles (Tr. 202). His testimony in this regard is corroborated by Respon- dent’s own document, RX–11, a computer printout used by Respon- dent’s parts department to keep track of reservoir assemblies used in repairs. Thus, RX–11 shows that a “-1” notation was made on March 8, the date the Ford Explorer was brought in for repair. Such a nota- ing the new part, he took the damaged reservoir to dispatcher Eddie Sanchez, who stamped the back of his work order with the words “scrap parts” to identify the damaged part removed from the vehicle as “scrap,” and closed the job order to reflect it had been completed. DeDiego’s testimony in this regard is unrefuted. Sanchez did not testify. Regarding the storage of used or replaced parts, M. Perez testified that when such parts are removed from a vehicle, they are labeled or marked for identification and kept for 2 or 3 days in a separate storage area, after which they are stored in a ware- house for 3 months in the event a question arises regarding the warranty coverage, or in case Ford Motor Company wants to confirm the part as being damaged. He explained that once a claim is paid under the warranty, the part is discarded. (Tr. 689–690.) Detres also provided testimony regarding the storage and disposition of used or replaced parts which differs in some respects from M. Perez testimony on the subject. He explained that once a part is removed from a vehicle, it is stored in a “scrap” storage area within the parts department, where it re- mains for 1 or 2 days at most, after which the “scrapped” part is relocated by a parts department employee to a separate ware- house located outside the service department where it remains until picked up by a Ford Motor Company representative. He further explained that when the Respondent replaces, pays for, and receives reimbursement from Ford Motor Company for a warranted part, it retains the “scrapped” part for 30 days, during which period Ford could, “at any moment”, show up to reclaim the part. Further, he testified that while the Respondent does not maintain a record of what parts Ford has taken from the “scrap” warehouse, Ford does record what it has taken on “ser- vice sheets” it obtains from Respondent’s service department. He claims that the absence of those sheets would indicate that a part has been picked up by Ford, and that the presence of such sheets would suggest the contrary. (Tr.448–449, 461–462.) According to Detres, the storage and warehouse area where the scrap parts are stored is secured and that only two parts depart- ment employees have access to said facility. DeDiego, by con- trast, testified that scrapped parts are kept outside the parts department in an unsecured area readily accessible to other personnel. (Tr. 222–223.) On March 31, the owner of the Ford Explorer brought the vehicle back to the shop complaining that the windshield washer fluid reservoir was leaking. Testimony regarding what occurred next was provided by Carrasquillo, Detres, DeDiego, and employee Wilfredo Vasquez, an automotive technician. Carrasquillo claims that on receiving the complaint from the customer, he asked Detres to inspect the vehicle to see what the problem was, and that Detres in fact did so. Detres testified that he inspected the vehicle, as requested, observed that the reservoir was empty, and that when he filled it with water, it all drained out. He claims he reviewed the March 8 work order and learned that DeDiego had been as- signed the task of replacing the reservoir, and that the docu- tion, as Detres stated on direct examination, means that a needed part is not in stock and is being acquired from another vehicle for use in the vehicle needing the repair. (Tr. 444.) CARIBE FORD 1119 ments showed that DeDiego received a replacement part from the parts department and that a replaced “scrapped” part had been turned over to the parts department. (Tr. 519.) He then purportedly asked M. Perez to check the “scrap” storage area to see if the old part was still there.18 Detres further claims that on visually inspecting the vehicle, he observed that the reservoir did not have a sticker containing the part number, which he avers is always found on new replacement parts,19 and that the bolts holding the reservoir in place did not appear to have any scratch marks on them, suggesting to him that the part which should have been changed on March 8, was not. He testified that had the original part been removed from the vehicle, as shown on the work order, the bolts would have contained some scratch marks left there by the ratchet and socket used by the mechanic, in this case DeDiego, to remove them.20 Detres claims he then asked three or four other mechanics, one of whom I find to have been Vasquez, to inspect the vehi- cle to see if the part had indeed been changed.21 Of those me- chanics asked by Detres to inspect the vehicle, Vasquez was the only one called to testify. He testified that on inspecting the vehicle, he noticed that the washer reservoir was clean and white. He claims he then asked Detres if he had checked the “scrapped parts” department to see if the old part was there, and 18 M. Perez was not questioned about this incident nor asked if he had been directed by Detres to look for the part in the “scrap” storage area. 19 Detres testified that all parts contain some kind of marking on it. Thus, a factory-installed part which comes with the vehicle will contain a different marking, such as a number stamped on it, while a replace- ment part, e.g., one maintained by the parts department, will typically have a sticker. Detres, however, did not explain if the reservoir he saw on the vehicle on March 31, contained a factory-installed marking. There is in this regard no evidence to suggest that Detres removed the reservoir from the vehicle to see if it contained a sticker on some other unseen portion of the reservoir, or to ascertain if had some marking identifying it as a factory-installed item. 20 A photo taken by Detres of the vehicle’s washer reservoir, offered to corroborate Detres’ claim that the bolts on the reservoir contained no scratch marks, was received into evidence as RX-10. The Respondent subsequently withdrew the photo for the purpose of providing the re- porter with duplicates as required by Sec. 102.38 of the Board’s Rules and Regulations (Tr. 435). The Respondent, however, apparently did not return the photo or duplicates to the reporter prior to the close of the hearing, for the photo has not been included with the record provided to me. Its omission from the record has no prejudicial effect on either party to this proceeding, for Detres’ own conflicting testimony regard- ing the photo renders it of no probative value to the issue at hand. Thus, while he claimed on direct examination that a viewing of the photo confirmed that the bolts on the reservoir contained no scratch marks, on cross-examination, Detres admitted that no such conclusion was possible simply from looking at the photo. (Tr. 433, 541.) The photo therefore is of no help in deciding whether or not the reservoir was removed. 21 Detres could not recall if Wilfredo Vasquez was among the group of mechanics he asked to check out the Explorer. Carrasquillo identi- fied employees Eric Lugo and Luis Pensa as two of the individuals who inspected the vehicle, but claims he never asked Vasquez to do so, and believes Detres likewise did not ask Vasquez to look over the vehicle. Vasquez, however, testified that he in fact was asked by Detres to in- spect the Explorer. I credit Vasquez in this regard and find he indeed was asked by Detres to conduct a visual inspection of the vehicle. that Detres told him he had done so but that the replaced part could not be found. Vasquez then questioned how Detres could prove the reservoir had not been changed, and reminded him that there were times when new parts came in defective, sug- gesting the possibility the replacement part installed on the vehicle by the mechanic in question might also have been de- fective to begin with.22 Despite what Vasquez may have told him, Detres neverthe- less concluded from the lack of an identifying sticker on the reservoir then on the vehicle, the apparent lack of scratch marks on the bolts holding the reservoir in place, and the fact that the replaced “scrap” part could not be found in the “scrap” storage area, that DeDiego had not changed the part on the Ford Ex- plorer on March 8. Detres then took photos of the vehicle and asked DeDiego to go to his office. DeDiego’s recollection of the incident is that on returning to work from lunch on March 31, he noticed several co-workers standing around the Ford Explorer, and after clocking in was told by Carrasquillo to go to the vehicle. When he got to the vehicle, he saw its owner standing nearby and Detres taking photos. Carrasquillo informed him that company records showed the Ford Explorer had been assigned to DeDiego for repair on March 8. He recalls that at some point, Detres asked Vasquez to inspect the car to verify if the part had, in fact, been replaced. DeDiego claims that after Vasquez inspected the vehicle, Carrasquillo told DeDiego he wanted to see him in his office. DeDiego requested and was allowed to have Vasquez serve as a witness at this meeting. (Tr. 219.) DeDiego recalls that at this meeting attended by Carras- quillo, Detres, and Vasquez, Carrasquillo accused him of not repairing the Ford Explorer on March 8, of stealing the re- placement part, and of committing fraud. DeDiego denied the accusation, and pointed out to Carrasquillo and Detres that the work order reflected that the part had been replaced, and that the old part had been turned over to the parts department for storage as scrap. According to DeDiego, after confirming that the work order contained such a notation, M. Perez was sum- moned and asked to search the scrap storage area for the dis- carded reservoir. After M. Perez’ departure, DeDiego com- mented aloud that the accusation being lodged against him was simply part of the Company’s efforts to persecute him for try- ing to bring in the Union, to which Carrasquillo responded that the mere fact that DeDiego had tried to bring the Union in was 22 Vasquez apparently did not yet know that DeDiego had been the mechanic on the car. None of the other mechanics who, along with Vasquez, purportedly inspected the vehicle at Detres’ request were called to testify. Nor were sworn statements taken from them regarding this incident. Carrasquillo nevertheless testified that when asked their opinion on whether or not the washer reservoir on the Ford Explorer had been replaced, the other mechanics simply responded that they “did not believe so.” I reject as not credible Carrasquillo’s testimony in this regard. In so doing, I note that Detres, who was responsible for con- ducting the investigation and who, by Carrasquillo’s own admission, was the one who purportedly asked the mechanics to inspect the vehi- cle, never testified to having received any such report from the mechan- ics. However, even if Carrasquillo’s assertion as to what these mechan- ics may have said to him was accepted as true, the somewhat ambigu- ous nature of their opinion does not establish that DeDiego did not change the reservoir on March 8. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120 enough reason for the Company to fire him. (Tr. 227.) When M. Perez did not return to the office, DeDiego was directed to return to work. While there are minor discrepancies between DeDiego’s and Vasquez’ description of that meeting, in most material respects Vazquez corroborated DeDiego’s account. Vasquez, for exam- ple, recalled that it was M. Perez who accused DeDiego of stealing the replacement part, and that Carrasquillo expressed agreement with M. Perez’ accusation by stating, “that’s what happened, he stole it.” Vasquez, however, recalled hearing DeDiego complain that the Respondent was looking for a way to fire him, and Carrasquillo responding that he was tired of DeDiego, and that the “mere fact that he (DeDiego) had “joined the union” was reason enough to suspend him. Detres testified that after inspecting the vehicle, he called DeDiego to a meeting, attended also by Carrasquillo, and told DeDiego that while the service sheet showed the damaged res- ervoir on the Ford Explorer had been replaced, he (Detres) was of the opinion that the work had not been done. DeDiego, ac- cording to Detres, stated that he had replaced the damaged part on the vehicle, and that the Company was attempting to build a file against him and trying to “screw” him up. On cross- examination, Detres added that DeDiego also told him and the other managers that they could do whatever they wanted to him. Detres denied that DeDiego was ever threatened during the meeting, and testified that nothing much happened after this brief conversation, and that DeDiego “continued working at the workshop as usual.” (Tr. 456–457, 524.) Carrasquillo’s testimony regarding the meeting was very limited. Thus, he testified that after Detres inspected the vehi- cle and concluded that the part had not been changed, he and Detres informed DeDiego of their findings, and that DeDiego, in response, simply asked, “What is it that you’re going to do with me?” According to Carrasquillo, he and Detres informed DeDiego they would decide what to do later. Carrasquillo de- nied that DeDiego was ever threatened by anyone at the meet- ing, or that profanity was used against him. (Tr. 614.) M. Perez likewise provided little testimony regarding the meeting. He recalled, for example, DeDiego being accused of committing fraud in connection with the March 8 repair to the Ford Explorer, but did not identify the accuser, and recalls DeDiego responding that the Company was trying to “screw” him. He denied, however, hearing DeDiego state that he was being persecuted for his union activities, and claims that the union was never mentioned at the meeting. (Tr. 695.) DeDiego claims that following the meeting, as he was on way to his work station, he noticed Falgueras driving a blue vehicle (Explorer). According to DeDiego, when Falgueras saw him, he, Falgueras, while looking at DeDiego, ran his thumb across his throat, in a “throat-cutting” motion. DeDiego claims that following the March incident, his work assignments were reduced, affecting his productivity and, ultimately, reduc- ing his ability to earn monthly incentives. On April 20, a Board-conducted election was held which the Union lost by a vote of 33 to 7.23 DeDiego testified that fol- lowing the election, the Respondent held a party for employees and supervisors at one of its offices to celebrate its victory. Although he did not attend, DeDiego claims he could overhear employees repeatedly chanting, “Roly, Roly, Roly . . . ,” in an apparent display of support for Respondent’s general manager, Rolando (Roly) Falgueras. DeDiego also testified to an incident that occurred on April 26. Around 10:30 a.m. that day, as he headed from his service area to the lot across the street to pick up a job order, M. Perez approached him, angrily accused him of pouring brake fluid on his newly purchased van, and threatened to physically harm him. DeDiego claims he asked M. Perez for an explanation of what he meant, but that M. Perez simply continued talking and directing obscenities at him. Soon thereafter, DeDiego was approached by an angry Carrasquillo who directed him to go the office. DeDiego claims that when Carrasquillo opened the office door for him to enter, he, DeDiego, said he would not go in without a witness. Carrasquillo, however, purportedly re- plied, “What the f—k are you talking about, a witness? Forget about this witness. We’re already fed up with you, what we have to do is fire the hell out of you.” (Tr. 255.) DeDiego re- calls that a short while later, employee Lugo was passing by and that Carrasquillo then told DeDiego that Lugo would serve as his witness.24 When he entered the office, DeDiego noticed Detres was already there sitting behind a desk. Once inside, DeDiego claims he told those present that he was simply there to work, and that his efforts to bring in the Union had been a clean one and that he had not been disre- spectful to anyone. Soon thereafter, according to DeDiego, M. Perez, accompanied by one Nancy Martinez, showed up with a bottle of brake fluid in hand and again accused DeDiego of pouring the fluid on his van. He also recalls that M. Perez, at one point, started coming at him stating, “[T]his is shit, just like you are,” and that Carrasquillo had to intervene and escort M. Perez and Martinez outside the office. DeDiego then remarked to Carrasquillo, “Now they also want to hit me,” and asked Carrasquillo if they had any evidence to prove he was responsi- ble for the alleged damage. He further told Carrasquillo, “Well, just go ahead and call the police. And if you want to fire me, well, fire me.” (Tr. 256.) DeDiego, however, was instructed to return to work. DeDiego testified that, to his knowledge, the incident was never reported to the police, nor were criminal charges ever brought against him for this alleged incident. Nor was he asked to pay for any of the alleged damage caused to M. Perez’ vehicle. However, the following day, April 27, DeDiego was suspended without pay for 8 days, in part, for this alleged incident. M. Perez also testified regarding this incident. His version is that at around 8 a.m. on April 26, he parked his van in a parking 23 Detres admitting knowing prior to the Board’s April 20 election, from comments made by employees and managers alike, including possibly Carrasquillo and/or Falgueras, that DeDiego was a leader in the union movement (Tr. 512–513). 24 DeDiego described Lugo as Falgueras’ personal mechanic who opposed the Union. CARIBE FORD 1121 spot located just outside DeDiego’s work area in the service department. Approximately 1 or 2 hours later, he took Carras- quillo and Detres to see his van and, while doing so, overheard DeDiego singing in the shop. He was unable to say for sure, however, if there were other employees in the shop besides DeDiego. After showing Carrasquillo and Detres his new van, and presumably after the latter two had left to their respective offices, M. Perez claims he went into the shop to get his car keys for the purpose of retrieving some items from his vehicle, and returned some 3 or 4 minutes later. M. Perez testified that when he got to his vehicle, he noticed paint and liquid dripping down one of the van’s rear windows, and on the cyclone fence right behind the vehicle. On close inspection, M. Perez deter- mined that the liquid was brake fluid. He testified that as he turned to go back into the shop, he ran into DeDiego. He then confronted DeDiego and accused him of pouring the brake fluid on his van and staining it. According to M. Perez, his assump- tion that DeDiego was the guilty party was based on the fact that he had overheard DeDiego singing in the shop moments earlier. M. Perez claims that on confronting DeDiego, the latter admitted responsibility by stating, “Yes, so what? What are you going to do about it?” M. Perez further testified that after confronting DeDiego, he went into the shop and found an opened bottle of brake fluid next to DeDiego’s toolbox. He claims he then took the brake fluid bottle, went to Carrasquillo’s office, showed the latter and Detres, who was also present, the brake bottle, told them of the damage to his vehicle, and that he had found the bottle near DeDiego’s toolbox.25 M. Perez does not contend that DeDiego was in attendance when he reported the incident to Carrasquillo and Detres. He did, however, testify that this meeting with the latter two managers was the one and only time he ever met with Carrasquillo and Detres over this incident (Tr. 687).26 M. Perez claims he next went to Falgueras to report the incident, showed him the brake fluid bottle, and repeated what he had told Carrasquillo and Detres. Falgueras, according to M. Perez, assured him he would look into the matter and would let him know what, if any, action would be taken. While Falgueras testified at the hearing, he was never asked to confirm or deny meeting with M. Perez regarding this incident. M. Perez claims he then took photos of the alleged damage and some 20–30 minutes later drove the van to a body repair shop for an esti- mate and to have it repaired.27 He admits he never bothered to 25 The Respondent’s assertion on brief (p. 10), that M. Perez first found the opened brake bottle in DeDiego’s work area and then con- fronted DeDiego, does not square with M. Perez’ testimony which, as discussed, reflects that the latter first accused DeDiego and then mo- ments later allegedly found the brake fluid bottle. 26 Carrasquillo and DeDiego, however, both testified that M. Perez did attend a subsequent meeting at which Detres was also in attendance, during which M. Perez in a somewhat belligerent manner, accused DeDiego of throwing brake fluid on his vehicle. Carrasquillo’s and DeDiego’s mutually corroborated testimony is credited over M. Perez’ implicit denial that he met with Carrasquillo just one time to report the incident to him. 27 The photos were received in evidence as RX–15(a–d), and, like RX–10, withdrawn by the Respondent for duplication purposes. (Tr. 684.) As with RX–10, the Respondent failed to return the photos or copies thereof to the reporter prior to the close of the hearing. RX–15 wipe the oil clean from the vehicle before taking it to the body shop, but claims it would not have helped because the brake fluid had already damaged the paint on the van. Detres was also questioned about this incident and testified as follows. Early in the morning of April 26, M. Perez drove his van into the shop to show it to others. Detres, however, informed him the van could not stay inside the shop and would have to be left outside. (Tr. 547.) A short while later, around 9–10 a.m., M. Perez took him to see his new vehicle. Like M. Perez, Detres also recalls hearing DeDiego singing in the shop. Detres testified that some 20 minutes later after he returned to the shop, M. Perez came to him and complained that brake fluid had been thrown on his new van damaging the paint, and that he had found a bottle of brake fluid on DeDiego’s table. Detres recalls that when he went to inspect the damage, the van was being washed in an effort to remove the oil. His testimony in this regard is at odds with M. Perez’ version. Thus, M. Perez makes no mention in his testimony of having had the van washed at any time during this incident. In fact, M. Perez, as noted, testified that he made no effort to wipe the brake fluid off the vehicle because the damage had already been done, and that he instead took the van to a body shop to have the damage assessed and repaired. Detres, by his account, did not investigate the incident him- self nor did he participate in any investigation with others. Rather, he testified that any such investigation was conducted by Carrasquillo (Tr. 549). He did, however, admit there were no eye witnesses to the incident, and that management simply assumed that DeDiego was the responsible party because DeDiego was at work and physically present in the shop that morning, because his workstation was closest to where M. Perez’ van had been parked, and because three bottles of brake fluid, one of which was opened, were found on DeDiego’s work station. (Tr. 543–544.) He also acknowledged, however, that similar bottles of brake fluid were found in the work areas of other technicians. M. Perez, it should be noted, made no mention in his testimony of having seen three bottles of brake fluid at DeDiego’s work station, or of noticing similar bottles at other employee work stations. Carrasquillo testified as follows regarding this incident. He testified that on the morning of April 26, he and Detres were looking at M. Perez’ new van, and overheard DeDiego singing aloud in the shop nearby. About one-half hour later, after re- turning to his duties, M. Perez reported to him that someone had thrown brake fluid on the rear portion of his van. Carras- quillo makes no mention in his testimony of Detres being pre- sent when M Perez first reported the incident to him, placing his version of this meeting at odds with M. Perez’ assertion that Carrasquillo and Detres were both present at this meeting. In fact, it would appear from Carrasquillo’s testimony that Detres may not have been present when M. Perez first made his report is of no probative value to issue for which they were submitted, e.g., whether DeDiego was responsible for the damage caused to M. Perez’ vehicle. Thus, the photos revealed only what DeDiego’s work area looked like, and where M. Perez had parked his vehicle. Consequently, the absence of these exhibits from the record, resulting apparently from the Respondent’s own neglect, has no prejudicial effect on either party. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122 to Carrasquillo, for Carrasquillo claims that after receiving the report from M. Perez, he, Carrasquillo, went to inform Detres of the incident. Carrasquillo further expressed the belief that, after reporting the incident to him, M. Perez reported the matter to Falgueras.28 Carrasquillo further explained that on arriving at Detres’ of- fice, he and Detres summoned DeDiego to the office to discuss the incident. Once at the office, DeDiego denied responsibility for the damage done to M. Perez’ vehicle, and asked Carras- quillo what they were trying to do to him and whether anyone had seen him commit the alleged act. Carrasquillo did not re- spond to DeDiego because they were still waiting for M. Perez to return to the office. He does recall, however, that M. Perez arrived 5 minutes later with the bottle of brake fluid in hand and began accusing DeDiego of damaging his vehicle.29 Carrasquillo recalls M. Perez telling DeDiego, “[Y]ou’ve messed up my van; and you know you were the one.” DeDiego purportedly replied, “Well, go ahead, do what you have to do.” At one point during the meeting, M Perez became indignant over the whole incident and, according to Carrasquillo, he and Detres had to intervene to “control the situation so it would not get out of hand.” (Tr. 620.) He then purportedly informed DeDiego that the matter would be investigated and that a deci- sion would later be made to decide if DeDiego should be disci- plined for the incident. Carrasquillo claims he and M. Perez then conducted an investigation late that afternoon, after all employees had left. Their investigation, he further stated, con- sisted of inspecting the site where the van was parked. During the investigation, Carrasquillo claims he observed brake fluid on the rear of the van and on a section of the fence adjacent to the rear of the van. Based on these findings, and the alleged discovery of a bottle of brake fluid at DeDiego’s workstation, Carrasquillo concluded that DeDiego was the one responsible for damaging M. Perez’ vehicle. (Tr. 622–623.) M. Perez, it should be noted, made no mention in his testimony of having taken part in any such investigation with Carrasquillo. On April 27, a decision was made to suspend DeDiego for the brake fluid incident and for the March 31 Ford Explorer incident. Carrasquillo testified that the decision was made between him, Detres, and Falgueras. Falgueras was not ques- tioned about this incident and consequently did not corroborate Carrasquillo’s claim that he participated in the suspension deci- sion. Detres’ testimony on who took part in the decision to suspend DeDiego was ambiguous and self-contradictory. Thus, asked by the General Counsel who made the decision to sus- pend DeDiego for the brake fluid incident, Detres answered, “I 28 While Carrasquillo’s testimony about M. Perez going to see Fal- gueras appears consistent with M. Perez’ claim that he did so, I am not convinced that such a meeting between M. Perez and Falgueras regard- ing this incident took place. My doubts in this regard stem from Fal- gueras’ failure to confirm that any such meeting took place. Further, Carrasquillo’s testimony about M. Perez going to see Falgueras was couched in uncertainty. Thus, his actual testimony was that, “If I’m not mistaken,” M. Perez went to report the incident to Falgueras. 29 Carrasquillo gave inconsistent testimony regarding the brake fluid bottle. Thus, he initially took credit for finding the bottle at DeDiego’s workstation. He subsequently changed his testimony, however, by stating that M. Perez, not he, found the bottle (Tr. 617–618). understand it was service manager, Mr. Carrasquillo.” (Tr. 549.) Further, when asked if Carrasquillo consulted anyone, presumably either himself and/or Falgueras, before making the decision to suspend DeDiego, Detres replied, “I could not tell.” However, further in his testimony, Detres admitted having taken part in that decision. He did not, however, corroborate Carrasquillo’s claim as to Falgueras’ involvement, testifying in this regard that “if there was somebody else who participated, I wouldn’t dare to answer, because I don’t really know it for a fact.” (Tr. 549–550.) Asked to explain why DeDiego was suspended for the March 31 Ford Explorer incident 1 month after its occurrence, Carras- quillo stated that he and the other two managers had decided to wait before disciplining him for the reservoir incident to see if DeDiego would engage in some other act of misconduct. Again, Carrasquillo’s claim in this regard is not corroborated either by Falgueras or Detres. Carrasquillo further testified that had the brake fluid incident not occurred, DeDiego might never have been disciplined for the Ford Explorer incident. (Tr. 639– 640.) Despite the inconsistencies and the rather dubious explana- tions provided by Detres, Carrasquillo, and M. Perez regarding this incident, there is no question that on April 27, DeDiego was suspended without pay for 8 days, in part, for this particu- lar incident. DeDiego testified that at the end of the workday on April 27, as he was leaving, Detres and Carrasquillo sum- moned him to the office where Carrasquillo handed him an envelope containing a letter notifying him of the suspension (see GCX–18).30 DeDiego claims he took the envelope, picked up his toolbox, and left. According to Detres, when DeDiego returned from his 8 day suspension, he had “an aggressive atti- tude towards his fellow workers in general, and there was a sense of uneasiness among the personnel.” (Tr. 467.) On August 10, DeDiego received a disciplinary writeup signed by Carrasquillo and Detres. Although the memo lists the subject matter of the writeup as “INTIMIDATION AND COERCION TOWARD FELLOW WORKERS,” the memo also charges DeDiego with having been disrespectful to Carrasquillo on July 6,31 more than 1 month earlier, and with having an “inferior productivity and efficiency” performance. As to the intimidation conduct referenced in the writeup, the memo accuses DeDiego of telling an employee, on August 2, that she was on the Company’s side, and yelling at her on Au- gust 3, and further telling the employee that he, DeDiego, was “going to bring in the union no matter what, whether anyone 30 The suspension letter states that it was being issued by Carras- quillo and Detres, confirming Detres’ involvement in that suspension decision. It does not, however, list Falgueras as a participant in that decision and simply reflects that he was served with a copy of the writ- ten suspension decision. I am convinced that Falgueras did not take part in that decision and that Carrasquillo was not being truthful in claiming that he did. 31 The memo states that on July 6, DeDiego entered the dining area where Carrasquillo was chatting with coworkers and began shouting “Roly, Roly, Eh . . . , now you have to put up with Roly, and there is no ‘boggie’ [sic], no money, take that now.” Carrasquillo notes in his memo that through his remark, DeDiego demonstrated a lack of respect for him because DeDiego knew that Falgueras was a friend of his. CARIBE FORD 1123 likes it or not (this again during working hours.” The writeup warns that “if there is no corrective action on your part, we will not have any other alternative but to take the corresponding disciplinary action applicable to the case.” (See GCX–20.) When asked to describe the nature of the intimidation DeDiego allegedly engaged in, Carrasquillo stated that it re- ferred to complaints he purportedly received from employees Lillian Rodriguez and Carlos Perez regarding comments DeDiego made to them about the union during working hours.32 Carrasquillo admitted, however, that the intimidating and har- assing nature of DeDiego’s conversation with Rodriguez was not its contents, but rather the fact that it occurred during work- ing hours, stating in this regard that DeDiego had the right to discuss whatever he wanted during the “lunch hour or quitting time.” (Tr. 646.) DeDiego admits having discussed the union with Rodriguez, but claims it occurred during his lunchbreak, and not during working hours. Neither Rodriguez nor Carlos Perez was called to refute DeDiego’s claim in this regard. Carrasquillo’s claim in the writeup, therefore, that the conver- sation occurred during work hours, lacks any evidentiary sup- port. Accordingly, I credit DeDiego and find that his discus- sion with Rodriguez occurred during his lunchbreak. On August 12, 2 days after receiving the above-warning let- ter, DeDiego responded with a letter of his own addressed to Carrasquillo and Detres. In his letter, DeDiego admits being a union activist and states that in said capacity, he was exercising “the right granted to me by the National Labor Relations Act to campaign on behalf of the Union during nonworking hours.” Regarding the August 2 and 3 incidents referenced in the Au- gust 10 warning letter, DeDiego stated: I would like to clarify to you that the situations mentioned in your memo, that took place on August 2 and 3, 1999, were during non-working hours. Also, I point out to you that the ones who are intimidating and threatening are yourselves with the memo that you addressed to me. The next day, in response to DeDiego’s August 12 letter, Carrasquillo and Detres issued him another disciplinary writeup. In this August 13 writeup, Carrasquillo and Detres first acknowledge receipt of DeDiego’s August 12 letter and then accuse him of not telling the truth in his letter because the alleged acts of misconduct for which he was issued the prior warning had, in their view, occurred during working hours.33 32 Carrasquillo in his testimony made reference to employee Carlos Perez in connection with this alleged intimidation conduct by DeDiego. It is unclear from his testimony, however, if Carlos Perez was being mentioned as the recipient of that conduct by DeDiego, or whether he had simply corroborated Rodriguez’ story to Carrasquillo regarding DeDiego. 33 Carrasquillo’s testimony was ambiguous and confusing on who prepared the writeup. Thus, asked who wrote the memo, Carrasquillo replied, somewhat hesitantly, “It could be that I generated a draft, and Jorge [Detres] reads it.” When asked which of the two actually wrote the memo, Carrasquillo again replied, without much conviction, “It must have been me.” I was unimpressed with Carrasquillo’s responses to my questions in this regard, and am convinced he was being deliber- ately evasive in answering questions regarding this particular incident. Adding to his lack of credibility on this matter is Carrasquillo’s unwit- ting admission that he did not believe there was anything wrong with an They further advised DeDiego that his conduct was to be re- viewed and evaluated in other “forums,” and that his conduct was affecting the rights of his co-workers. (GCX–22.) By letter dated August 17, addressed to Carrasquillo and Detres, DeDiego advised them that he adheres to the position taken in his August 12 letter, and asks for an explanation as to what forums they were referring to in their August 13 letter (GCX– 24). DeDiego testified that on September 3, at around quitting time, Carrasquillo called him to his office where Detres was also present. Once there, Carrasquillo handed him an envelope containing a discharge notice. The discharge letter, received into evidence as General Counsel Exhibit 23, states that for the past few months, DeDiego had engaged in “an intolerable pat- tern of misconduct.” The acts of misconduct cited in the letter as the basis for the discharge included the following: low pro- duction warnings issued to him on March 8, and August 11, 20, and 27; his April 27 suspension; and the writeups issued to him on August 10 and 13. When given the letter, DeDiego re- marked, “[T]hey finally fired me,” to which Carrasquillo pur- portedly replied, “Yes.” (Tr. 295.) The decision to terminate DeDiego, according to Detres, was made by him and Carras- quillo “maybe one, two weeks” prior to the September 3 dis- charge date. When Falgueras was asked by Respondent’s counsel to state the reasons for DeDiego’s termination, he ex- plained that DeDiego “was dismissed because of his productiv- ity and behavior towards fellow employees and managerial personnel (sic).” (Tr. 802.) C. Discussion 1. The 8(a)(1) allegations The complaint, as noted, alleges, and I agree, that the Re- spondent violated Section 8(a)(1) in several respects. Thus, I find that the Respondent created the impression that it was keeping DeDiego’s union activities under surveillance when, during his March 24 meeting with DeDiego, Falgueras accused DeDiego of being the one “who’s trying to bring the Union in here.” In determining whether an employer has created an impression of surveillance, the Board looks at whether an em- ployee could reasonably assume from the statement in question that his or her union activities have been placed under surveil- lance. United Charter Service, 306 NLRB 150 (1992). While the record evidence makes clear that DeDiego was principally, if not exclusively, responsible for the Union’s organizational drive among the Respondent’s service employees, there is no evidence to suggest, nor does the Respondent contend, that DeDiego had, prior to the March 24 meeting, conducted his activities in the open, or publicly declared himself to be a union supporter. In fact, DeDiego’s reluctance to discuss the union with Falgueras in the presence of his two immediate supervi- sors, Carrasquillo and Detres, suggests that he may have felt uncomfortable doing so. Clearly, had DeDiego been open about his union activities prior to his meeting with Falgueras, it is highly unlikely he would have felt so reticent about discuss- individual defending himself, as DeDiego had done in his August 12 memo. (Tr. 649.) Yet, Carrasquillo and Detres issued DeDiego the warning for this very reason. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124 ing his union activities in the presence of his supervisors. Thus, while there is no disputing that DeDiego was the Union’s lead- ing adherent at the facility, I am not persuaded that DeDiego conducted his activities out in the open prior to his March 24 meeting with Falgueras. When Falgueras therefore called DeDiego to his office and accused him of being the one respon- sible for the Union’s organizational efforts at the facility, DeDiego could reasonably have believed that the Respondent had been keeping his union activities under surveillance. By engaging in such conduct, the Respondent, I find, unlawfully created an impression of surveillance and violated Section 8(a)(1) of the Act. The Respondent also violated Section 8(a)(1) when Fal- gueras, during his March 24 meeting with DeDiego, and again at the employee meeting held the following day, Falgueras threatened to close the facility if the Union were brought in. The Board has long found such threats of plant closure to be highly coercive and unlawful. See Springs Industries, 332 NLRB 40 (2000); Highland Yarn Mills, Inc., 313 NLRB 193, 206 (1993); Middle Earth Graphics, Inc., 283 NLRB 1049, 1057 (1987). The Respondent, in my view, also violated Sec- tion 8(a)(1) when Falgueras, at the March 24 meeting, told DeDiego he would be willing to fire Poldruhi if that is what it took to convince employees to end the union drive, and that he intended to talk to employees “to resolve the complaints that they had.” Apparently true to his word, Falgueras, at the em- ployee meeting conducted by him the following day, listened to employee complaints on changes the Respondent had made since taking over on matters relating to vacation and seniority, and agreed to remedy them by rescinding the changes which had been made in these two areas. There is no evidence here to show, nor does the Respondent contend, that it had a practice of regularly looking into and resolving employee grievances or complaints. It is well settled that in the absence of such a prac- tice, a solicitation of employee grievances accompanied by a promise to remedy them constitutes coercive conduct and vio- lates Section 8(a)(1) of the Act. Maple Grove Health Care Center, 330 NLRB 775 (2000); Waste Mgmt. of Palm Beach, 329 NLRB 198(1999); Reno Hilton, 319 NLRB 1154, 1169 (1995); Ring Can Corp., 303 NLRB 353, 356 (1991); Reliance Electric, 191 NLRB 44, 46 (1971). Indeed, as described above, Falgueras in fact remedied some of the complaints brought to his attention during the employee meeting. Accordingly, I find that by soliciting, promising to remedy, and indeed remedying, employee grievances, the Respondent, as stated, violated Sec- tion 8(a)(1) of the Act. Lastly, I find that the Respondent violated Section 8(a)(1) when on March 30, Falgueras prohibited DeDiego from distrib- uting union literature during his lunch hour and threatened to fire DeDiego if he continued to do so. Although Falgueras denied having discussed the distribution of Union literature with any employee, I have, as noted, credited DeDiego’s claim that he was ordered to Falgueras’ office where he was ques- tioned about the distribution of literature and thereafter threat- ened by Falgueras with discharge if he continued to do so. It is well settled that employees have a Section 7 right to distribute union literature in nonwork areas of the employer’s premises during nonworking periods and that employers may not inter- fere with this right except to the extent necessary to maintain production or discipline. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Eastex, Inc. v. NLRB, 437 U.S. 556, 570– 572 (1978); Eby-Brown Co. L.P., 328 NLRB 496 (1999); Ford Motor Co., 315 NLRB 609, 610 (1994); NCR Corp., 313 NLRB 574, 576 (1993). No showing or claim has been made here by the Respondent that DeDiego’s distribution activities had in any way disrupted its operations. As such, the restriction against distributing union literature imposed by Falgueras on DeDiego, and his threat to fire DeDiego if he failed to comply, unlawfully interfered with DeDiego’s Section 7 rights, and, as noted, violated Section 8(a)(1). 2. The 8(a)(3) allegations a. Generoso Perez’ discharge The General Counsel contends that Perez was discharged in violation of Section 8(a)(3) and (1) for his attempt to organize the Respondent’s sale staff. To establish a violation of Section 8(a)(3) and (1), the General Counsel, under the causation test set forth by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), must make a prima facie showing sufficient to support an inference that protected or union activity was a motivating factor in an employer’s decision to discipline or discharge an employee. See Manno Electric, 321 NLRB 278 fn. 12 (1996). The General Counsel makes out a prima facie case by demon- strating, through a preponderance of evidence, that the alleged discriminatee engaged in union or other protected activity, that the employer was aware of that activity, and that it harbored antiunion animus. Once a prima facie showing is made, the burden of persuasion shifts to the employer to prove it would have taken the same action even if the employee had not en- gaged in any protected activity. There is no question here, and I so find, that Perez was en- gaged in union activity just prior to his discharge. Thus, Perez’ credible and uncontradicted testimony reveals that he contacted the Teamsters Union some 2 weeks prior to his discharge in an attempt to organize the salespersons. Perez also held a meeting with employees at the Lot 2 showroom, presumably an open area, to advise them of the upcoming meeting with a Teamster official, and engaged in individual conversations with employ- ees regarding the Teamsters. His testimony in this regard is corroborated by Reyes and is also credited. The question of whether the Respondent had knowledge of Perez’ activities, however, is not so readily apparent, for, as The General Counsel concedes on brief, there is no direct evi- dence to show that the Respondent was aware of such activities. Nevertheless, it is well settled that employer “knowledge” need not be established directly, but may rest on circumstantial evi- dence from which a reasonable inference of knowledge may be drawn. Aero Ambulance Service, 327 NLRB 639(1999); Casa San Miguel, 320 NLRB 534. 551 (1995); Dentech Corp., 294 NLRB 924, 954 (1989); Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995). The Board, for example, may infer knowl- edge where the reasons for the discipline are baseless, unrea- sonable, or contrived so as to raise a presumption of wrongful motive, or where the “weakness of an employer’s reasons for adverse personnel action can be a factor raising a suspicion of CARIBE FORD 1125 unlawful motivation.” Montgomery Ward & Co., supra. I find such an inference fully warranted here. Several factors lead me to conclude that the Respondent’s explanations for discharging Perez are baseless and wholly contrived. There is, first of all, the shifting nature of the expla- nations proffered by the Respondent for its decision. In its answer, for example, the Respondent states that Perez was dis- charged because he had a “poor job performance and was the object of two written warnings.” The two warnings alluded to in the answer, which Perez denies receiving, are the April 22 memo issued to Perez while employed by Automotores, and the October 2 memo (see RX–1, 2). At the hearing, Falgueras and Avendaño testified, somewhat, but not totally, in conformity with the reason given in the answer, that Perez was discharged for his low production and a poor work attitude.34 (Tr. 718, 807–808.) In its brief, however, the Respondent raises for the first time, and in my view as an afterthought, an economic hardship de- fense for the discharge. Thus, it contends that sometime in December 1998, its board of directors discussed with Falgueras the “economic problems” it was then experiencing, and that the evaluation Falgueras was directed by Westphal to undertake in January, and inferentially the discharges of Perez and Reyes that followed, was directly related to its weak economic condi- tion. (RB:12-13.) Falgueras, however, never testified to having had any December conversation with Respondent’s board of directors regarding economic problems it might be having. Nor did he mention having any discussion with Westphal during the January phone call about the Respondent’s economic condition, or of being told by Westphal that a reduction in the sales force might be needed because of the alleged economic problems the Respondent claims on brief it was experiencing. Nor was any such testimony offered by Avendaño. Indeed, when asked by the General Counsel why the Respondent wanted an evaluation done in the first place, Avendaño speculated that the Respon- dent might simply have “wanted to know what position the salespersons were at, since they were new at it,” suggesting implicitly that the Respondent was simply interested in know- ing how its sales staff was doing after 6 months on the job.35 (Tr. 754.) In sum, there is absolutely no record evidence to support the Respondent’s economic hardship defense to the Perez discharge. The absence of such evidence, coupled with the Respondent’s belated attempt to raise this as defense, sup- 34 Falgueras gave conflicting and confusing testimony when asked if the April 22, 1998 memo played a role in Perez’ discharge, stating at first that it did not, then vacillated somewhat by stating, “it could have been taken into account,” and finally claiming, “You could put it [as] having been considered.” (Tr. 805–806.) Given his admission that it was he who discharged Perez, Falgueras’ above-ambiguous responses as to whether he relied on the April 22 memo to discharge Perez casts serious doubt on his explanation for the discharge. 35 Avendaño’s further testimony about the Respondent’s intent to re- place those it terminated with salespersons from other dealerships, if accepted as true, would also serve to undercut the Respondent’s eco- nomic hardship defense to the Perez (and presumably Reyes) discharge, for it is highly unlikely that the Respondent would be hiring replace- ments if it indeed was experiencing financial difficulties. Avendaño’s claim in this regard is not credited, particularly since it was not cor- roborated by Avendaño. ports an inference that the true reason for the discharge is an unlawful one. Tracer Protection Services, Inc., 328 NLRB 734 (1999); Atlantic Limousine, Inc., 316 NLRB 822 (1999); Carambola Beach Hotel & Golf Club, 307 NLRB 915, 929 (1992), Gurabo Lace Mills, Inc., 265 NLRB 355, 370 (1982). Equally without foundation is the Respondent’s contention that Perez was selected for discharge because of low productiv- ity, for the evidence of record establishes that Perez’ sales fig- ures for the 6-month period exceeded that of other salespersons not selected for discharge. There is, first of all, GCX–7, which, as noted, was prepared by the Respondent’s own accounting department at Avendaño’s request. While, as will be shown below, another Company document received in evidence as General Counsel Exhibit 3 reveals that the accounting depart- ment in preparing General Counsel Exhibit 7 significantly un- derstated the number of units sold by Perez during the 6-month period between June and December 1998, General Counsel Exhibit 7 by itself shows that Perez’ production numbers (59) were higher than that of A. Negron (56) and Salgado (45), nei- ther of whom was discharged. However, as noted, General Counsel Exhibit 7 does not accurately reflect Perez’ productiv- ity level for the 6-month period in question. GCX–3, received into evidence without objection, are copies of monthly reports for the period June to December 1998, which the Respondent routinely provided to Perez on a monthly basis containing his sales figures and commission earned for the months in question. The Respondent, as noted, did not object to its admission, nor did it question the reliability of the data contained therein. Review of that data reveals that Perez’ actual sales from June through December 1998, totaled 74 units sold, not the 59 units stated in General Counsel Exhibit 7. As- suming, therefore, that the production figures set forth in Gen- eral Counsel Exhibit 3 are correct, and the Respondent makes no claim that they are not, then Perez’ productivity level for the period June through December 1998, clearly exceeded that of at least 6 of the 13 salespersons listed by the Respondent’s own accounting department in General Counsel Exhibit 7,36 seri- ously undermining, if not rendering patently false, the Respon- dent’s contention that Perez’ productivity was among the low- est of its sales staff.37 The Respondent’s contention in this 36 Avendaño admits that GCX–7 did not include the names of all the salespersons in the Respondent’s employ during the 6-month period in question. Thus, it is quite possible that Perez’ production figures may also have exceeded that of the salespersons whose names were omitted from GCX–7 by the accounting department. 37 The General Counsel also produced at the hearing a daily sales re- cord which Perez maintained in the course of his employment with the Respondent wherein he recorded the date of each sale made by him, the customer’s name, the stock number assigned by the Respondent to the vehicle, and the amount being financed by the customer. This record was received into evidence as GCX–4 over the Respondent’s objection. Perez credibly explained that he kept this record in order to verify the accuracy of the monthly reports furnished to him by the Respondent in the form of GCX–3. Perez further testified, and a comparison of GCX– 4 with GCX–3 shows, that there were sales made by him in the months of July and November that were not reported in GCX–3. The Respon- dent did not contest his testimony in this regard. The upshot of his testimony is that when the additional sales are taken into account, Perez’ production total for the period in question was closer to 78 (see DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126 regard is further undermined by the fact that at no time prior to his discharge was Perez ever told or warned about his alleged low production.38 In sum, the weight of the evidence convinces me that Perez could not have been discharged for low produc- tivity. Further, assuming, arguendo, that the two warnings, e.g., April 22 and October 2, 1998 memos, purportedly found by Avendaño in Perez’ personnel file were in fact issued to him by Falgueras, a claim denied by Perez (Tr. 88, 114), the weight of the evidence convinces me they were simply dredged up by the Respondent after the fact and had nothing to do with the real reason for Perez’ discharge. The pretextual nature of the warn- ings as a basis for the discharge is made patently obvious by the fact that the April 22 warning was purportedly issued to Perez by Automotores, the Respondent’s predecessor, for conduct that allegedly occurred before Perez became employed by the Respondent. Thus, for the Respondent here to suggest that this memo could have played any role in Perez’ discharge simply defies logic and common sense. Indeed, if, as claimed by the Respondent, the April 22 memo was part of Perez’ personnel file while he was employed by Automotores, then it can be safely assumed that the Respondent knew full well of its exis- tence when it chose to retain Perez as an employee after its acquisition of the Automotores business. Incredulously, the Respondent would now have me believe that this April 22 memo, which it chose to ignore when it decided to keep Perez on as an employee, suddenly became a factor in the decision to discharge him some 9 months later. I find the Respondent’s contention in this regard simply too absurd to warrant further discussion. As to the October 2 warning, Avendaño admitted he had no first-hand knowledge as to the reason for its issuance, and testi- fied only that the warning was issued to Perez by Falgueras based on an incident reported to the latter by Carrasquillo. Carrasquillo, however, was never questioned about this warn- ing or the incident(s) that purportedly led up to it, leaving un- corroborated Avendaño’s testimony about Carrasquillo’s in- volvement in it. Falgueras did testify about the warning but his testimony was anything but persuasive. He vaguely explained, for example, that he issued the warning to Perez because “we continued to have problems with his attitude towards fellow workers and clients,” and that the purpose of the warning was GCB:5). The Respondent, who undoubtedly maintained production records on all its salespersons, including Perez, produced no evidence to refute Perez’ testimony or the data contained in GCX–3 and GCX–4. Accordingly, I credit Perez’ testimony regarding the discrepancies between GCX–3 and GCX–4, and find that his production figures for the period between June and December 1998 indeed totaled approxi- mately 78 units. As such, Perez’ production numbers was higher than 7 of the 13 salespersons listed in GCX–7. 38 Avendaño gave conflicting testimony on whether the matter of low productivity was ever discussed with Perez. Thus, he initially testified to having met with Perez “on different occasions” prior to his January discharge to discuss his production, and that once such a meet- ing occurs with an employee, it becomes an “official” matter (Tr. 745). He subsequently admitted, however, that the first time Perez was noti- fied of his low production was when he was discharged. I give no credence to his testimony. Rather, I find that Perez, prior to his dis- charge, was never spoken to by anyone regarding low production. to let Perez know “that this is not the first time that we face this situation of a defensive and aggressive attitude towards fellow workers and clients.” (Tr. 806.) Yet, he offered no details on what specifically triggered his decision to issue the warning. Nor did he indicate that he issued the warning based on a report from Carrasquillo, as claimed by Avendaño. Falgueras further testified that he personally gave the memo to Perez and advised him “to improve your attitude towards your fellow workers and clients.” His testimony in this regard conflicts with Perez’ claim that he never received any such warning. I found Perez to be the more credible of the two and accept his denial over Falgueras’ claim that he personally gave the warning to Perez. Falgueras’ testimony in this regard simply lacked the ring of truth and came across as somewhat scripted. Thus, rather than testifying specifically about the problems Perez was purport- edly having with “fellow workers and clients,” Falgueras, when asked why he issued the warning, what he discussed with Perez regarding that warning, why Perez was discharged, and what he told Perez during the discharge interview, simply parroted the theme that it was Perez’ “attitude” towards his fellow workers and clients which led to the October 2 warning and discharge. Perez, I am convinced, never saw this warning prior to being shown it at the hearing. In sum, Perez’ credited testimony that he never saw either warning prior to the hearing, that he was never told about the warnings during the discharge interview, and the lack of any mention in the discharge letter to the warnings as a basis for the discharge,39 leads me to conclude that like the Respondent’s “low production” defense, the warnings, even if they had been in Perez’ personnel file, were mere afterthoughts used by the Respondent to conceal its true reason for discharging Perez. I am convinced from the patently false and pretextual nature of its defense to the discharge, and the fact that the discharge oc- curred within 1 week of Perez’ commencement of his union activities, that the Respondent indeed knew of, and was op- posed to, Perez’ union activity before firing him. I find that it was the Respondent’s desire to nip the growth of any such un- ion movement in the bud which prompted it to move against Perez on January 22. Accordingly, I find that the Respondent discharged Perez on January 22, not for low production or be- cause of previously-issued warnings, but rather for his union activities, in violation of Section 8(a)(3) and (1) of the Act. b. The discipline imposed on and discharge of DeDiego The General Counsel contends that DeDiego was suspended for 8 days on April 27, issued the two disciplinary writeups on August 10 and 13, and discharged on September 3, because of his activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. The General Counsel, I find, has established, prima facie, that the actions taken against DeDiego were all motivated, at least in part, by antiunion considerations. DeDiego’s union activities, and the Respondent’s knowledge of said activities, are well documented in the record. Thus, it was DeDiego who, 39 A failure to mention to an employee an asserted reason for an ad- verse action at the time the action is taken can indicate a discriminatory motive for the demotion. Delta Gas, 282 NLRB 1315, 1317 (1987). CARIBE FORD 1127 as noted, first contacted the Union seeking guidance as to how to proceed with the work stoppage he and other employees had undertaken in March, and who essentially led employees to the Union’s office where they signed authorization cards on behalf of the Union. In addition to signing a card, DeDiego solicited signed cards from other employees, and assumed responsibility for returning to the Union the authorization cards he and others had solicited. DeDiego distributed literature on behalf of the Union to other employees during his free time, and personally sought to persuade employees into supporting the Union. The above makes patently clear that DeDiego was the Union’s most ardent supporter. The evidence also makes clear that the Respondent, prior to taking the disciplinary measures against him that are the subject of the 8(a)(3) allegations, was fully aware of DeDiego’s role as a leading union adherent. Carrasquillo, as noted, testified to learning of the Union’s organizational drive and of DeDiego’s possible involvement in those efforts from employees Carlos Perez and Lugo. Falgueras similarly testified that Carrasquillo informed him of such union activity among the service depart- ment employees sometime in March. DeDiego likewise credi- bly testified that he disclosed his involvement in the Union to Falgueras on or around March 24, after Falgueras summoned him to his office and interrogated him about his activities. Finally, the record amply supports a finding that the Respon- dent harbored animus towards the Union and its supporters. Thus, the Respondent revealed its animus when, through Fal- gueras, it unlawfully questioned DeDiego about his union ac- tivities, created the impression it was keeping his activities under surveillance, and prohibited DeDiego from distributing union literature on his own time under threat of discharge. The Respondent further demonstrated its animus towards the Union by soliciting employee grievances and promising to, and there- after remedying, them. Its conduct in this regard, I find, was designed to convince employees not to support the Union by demonstrating that the Respondent, not the Union, was capable of resolving their employment-related problems. Accordingly, I find that the General Counsel has made a prima facie showing that the Respondent suspended DeDiego on April 27, issued him disciplinary writeups on August 10 and 13, and finally discharged DeDiego on September 3, because of his activities on behalf of the Union. Under Wright Line, the burden now shifts to the Respondent to rebut the General Counsel’s prima facie case by demonstrating that each of the above-described disciplinary measures taken against DeDiego would have occurred even if DeDiego he had not taken part in union activity. (1) The suspension The Respondent, as stated, contends that DeDiego received the 8 day suspension for damaging M. Perez’ vehicle with brake fluid, and for failing to repair the Ford Explorer on March 8. Both stated reasons, in my view, are nothing more than pretexts. Regarding the brake fluid incident, DeDiego, as noted, de- nied vandalizing M. Perez’ vehicle, a denial bolstered by the absence of any direct, or credible circumstantial, evidence link- ing him to the incident. Detres readily conceded that to his knowledge, no one actually saw DeDiego commit the alleged act, and M. Perez, who purportedly discovered the brake fluid on his van, does not claim to have seen DeDiego do so. Rather, the Respondent’s belief in DeDiego’s guilt, as stated by Detres, was based on nothing more than the fact that DeDiego’s work station was the one closest to where M. Perez parked his van on the morning of April 26, and because an opened bottle of brake fluid was found at his workstation. Perez’ assumption of DeDiego’s guilt, however, was based on much less than that. Thus, Perez assumed, rather incredulously, that DeDiego was the one who vandalized his vehicle because moments earlier he had overheard DeDiego singing aloud in the shop. Perez, as noted, accused DeDiego even before finding a bottle of brake fluid at the latter’s work station, and without so much as ques- tioning DeDiego first or conducting an investigation into the matter. Carrasquillo claims that he did investigate the incident be- fore imposing the suspension on DeDiego. Inconsistencies in his testimony, and his generally poor demeanor, render his claim in this regard unreliable and not worthy of belief. Carrasquillo’s assertion, for example, that M. Perez took part in that investigation was not corroborated by the latter. M. Perez, as noted, testified that his only meeting with Carrasquillo re- garding this matter occurred in the morning of April 26, soon after he purportedly found the brake fluid on his van, but made no mention of taking part in the investigation Carrasquillo con- tends took place around 5 p.m. that day. Carrasquillo’s further assertion that he discovered brake fluid on the vehicle during his investigation is likewise inconsistent with M. Perez’ testi- mony that he took his vehicle to a body shop for an estimate and repair that same morning, and with Detres’ claim that he saw M. Perez’ vehicle being washed earlier that day. Clearly, if the van had been washed, as claimed by Detres, or been re- paired earlier that day, as testified to by M. Perez, then it is highly improbable that Carrasquillo would have seen any brake fluid still on the vehicle when he purportedly conducted his investigation. Given the inherent inconsistencies and improb- abilities in Carrasquillo’s testimony, and his questionable de- meanor, I simply do not believe that Carrasquillo conducted any investigation into the matter. Rather, I am inclined to be- lieve that Carrasquillo was not being truthful in claiming that he did. However, even if I were to believe that Carrasquillo investi- gated the matter, the investigation was at best a perfunctory one consisting of nothing more than a visit by Carrasquillo to the site where M. Perez had his vehicle parked when the incident allegedly occurred. Thus, there is no evidence that Carras- quillo, or any other management official, so much as ques- tioned other employees to see if anyone had heard or witnessed anything that might shed light on who could have vandalized M. Perez’ vehicle. Carrasquillo, it should be noted, never testi- fied to having uncovered anything during his investigation that incriminated or linked DeDiego to the incident. It is patently clear, therefore, that to the extent an investigation was con- ducted, which I doubt, it was at best a cursory one. The Board has held that an employer’s failure to adequately investigate alleged misconduct supports an inference of unlawful motiva- tion. Sartorius, Inc., 323 NLRB 1275, 1280 (1997). The Re- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128 spondent, I find, has not established that DeDiego vandalized M. Perez’ vehicle on April 26. Rather, I am convinced that this allegation of misconduct was a pure fabrication created for the sole purpose of retaliating against DeDiego for having at- tempted to unionize the service department employees.40 The other reason cited by the Respondent for the suspension, e.g., DeDiego’s alleged failure to repair the Ford Explorer on March 8, is also pretextual in nature. Initially, DeDiego testi- fied that he did indeed perform the necessary repair work on the vehicle on March 8. I credit his testimony in this regard, par- ticularly since the Respondent’s own documents support his claim. Thus, the work order given to DeDiego on March 8, directing him to perform the repair shows that the repair in question, replacement of a leaking windshield washer reservoir, was performed, and that the damaged reservoir or “scrapped” part was turned over to the parts department by DeDiego that same day. Indeed, Detres readily admitted that the documents do reflect that a windshield washer reservoir was installed by DeDiego on the Ford Explorer on March 8. The Respondent, however, contends that despite what its re- cords show, it had reason to doubt, based on Detres’ inspection and observation of the vehicle on March 31, that DeDiego re- paired the Ford Explorer on March 8. It asserts that given De- tres’ observations, and its failure to locate the old reservoir DeDiego claims was removed from the Ford Explorer on March 8, in its scrap storage area, it had reason to believe that the reservoir on the vehicle on March 31, was the one that should have been but was not replaced on March 8, by DeDiego, and that DeDiego committed fraud by falsifying the work order to show that work had been done. I disagree, for the Respondent’s belief in this regard is based on nothing more than speculation and conjecture. Initially, I was not particularly impressed by Detres’ testi- mony regarding this and other matters both because of his gen- erally poor demeanor as a witness, and because his testimony contains too many self-contradictions and inconsistencies ren- dering it unreliable. Thus, I view with some skepticism his testimony regarding the alleged investigation he conducted on March 31, into whether DeDiego repaired the Ford Explorer on March 8. While I do not doubt that Detres may have inspected the vehicle,41 I find that the Respondent could not reasonably have concluded from the observations made by Detres during said inspection that DeDiego had not repaired the Ford Ex- plorer on March 8. Thus, the fact that the reservoir in the Ford Explorer was leaking when the vehicle was brought in on March 31, does not establish that DeDiego failed to make the necessary repair on March 8, for as credibly explained by Vasquez to Detres, and as latter reluctantly admitted at the hearing, new parts are often- times found to be defective, making it quite possible that the reservoir DeDiego installed in the Ford Explorer on March 8, 40 DeDiego, as noted, was never asked to compensate M. Perez for the alleged damage caused to his van, leading me to believe either that M. Perez had no proof of DeDiego’s involvement in the incident, or that the incident never occurred in the first place. 41 My belief that Detres looked at the vehicle is based on Vasquez’ testimony that he was asked by Detres to inspect the vehicle. was may have defective, thereby accounting for the continued leaking. There is also the likelihood that the replacement reser- voir installed by DeDiego on the Ford Explorer on March 8, may have been damaged after the repair was made. The vehi- cle, as noted, was not returned to the shop until some 3 weeks later. Detres admits he never questioned the owner, Valentin, to ascertain what, if anything, may have occurred with the vehicle after it was driven out of the shop on March 8. Thus, he never bothered to learn if the vehicle continued to leak washer fluid when it left the shop on March 8, or when during the 3week period between March 8 and 31, the owner first noticed the problem. Nor did he inquire from the owner whether anyone else might have looked at or tampered with the vehicle during that time period. The Respondent further contends that it was justified in con- cluding that the defective reservoir on the Ford Explorer had not been removed on March 8, as no scratch marks were found on the bolts which held the part in place. Its contention, how- ever, is based on Detres’ testimony which I find highly ques- tionable. I am convinced from his demeanor on the witness stand that Detres was not being fully candid regarding this par- ticular incident. Thus, I do not believe his assertion regarding the lack of scratch marks on the bolts. Vasquez, who credibly testified he was asked by Detres to inspect the vehicle, made no reference in his testimony as to the presence or absence of scratch marks on the bolts, and in fact opined to Detres that he could not tell simply from looking at the reservoir whether or not it had been changed by DeDiego on March 8. Inconsis- tency in Detres’ testimony regarding the photos he took of the reservoir on March 31, further serve to undermine his credibil- ity in this regard. Thus, on direct examination, Detres stated that the photos he took of the reservoir clearly demonstrated that the bolts were devoid of scratch marks. On cross- examination, however, Detres conceded that it was not possible to discern from the photos whether or not the bolts had scratch marks, and that his testimony was based only what he purport- edly observed on March 31. The Respondent, as noted, did not call any of the three mechanics that Detres claims were asked inspect the vehicle to corroborate his account. Consequently, I place no credence on Detres’ assertion regarding the presence or absence of scratch marks on the bolts.42 Nor would the Respondent have had any reason to suspect that DeDiego did not replace the faulty reservoir on the Ford Explorer on March 8, merely because it could not find the old reservoir among its “scrapped” parts. Thus, assuming the truth of Detres’ assertion, that said parts are stored in a “scrap” stor- age area for 1 or 2 days at most, then it stands to reason that the faulty reservoir which DeDiego removed and turned in as “scrap” to the parts department some 3 weeks earlier would not 42 Other than evidence showing him to be a workshop supervisor, there is no indication that Detres was an experienced mechanic or that he was trained in the installation or removal of windshield washer reservoir systems. Nor is there any evidence to suggest that Detres had any special training or experience in the field of metallurgy that might render him capable of providing a credible opinion on whether the use of a tool, such as a ratchet and socket, to extract the metal bolts used to hold a Ford Explorer windshield washer reservoir in place, would leave scratch marks of the type testified to by Detres. CARIBE FORD 1129 have been found in the “parts” storage area, but would instead have been moved to a separate warehouse. Detres’ testimony, which, as noted, was not corroborated by M. Perez, is that he asked M. Perez to look in the “scrap” storage area for the part. He made no mention of having directed M. Perez to also search the warehouse for the part. I do not, in any event, believe, par- ticularly in the absence of corroboration from M. Perez, that Detres’ made any such request of the former. Rather, I am convinced that no such search of the “scrap” storage area or the warehouse was ever conducted by the Respondent. Even if I were to believe that such a search was made and that the part was not found, it still would not prove that DeDiego did not turn the faulty reservoir over to the parts department on March 8, for, as noted, the Respondent’s own documents confirm DeDiego’s claim that he did turn in the faulty reservoir to the parts department. Further, there may be other explanations for why the part might not have been in storage on March 31. It is quite possible, for example, that a Ford Motor Company repre- sentative came to claim the part, for both Detres and M. Perez, as noted, testified that this was what typically happened to a part within 30 days of storage. There is no evidence to indicate that Detres, as part of his investigation, sought to contact Ford Motor Company to ascertain if one of its representatives may have already retrieved the “scrapped” reservoir from the Re- spondent’s “scrap” storage area. Further, given DeDiego’s testimony, which I credit, that “scrapped” parts are not main- tained in a secure area, it is also possible that the defective res- ervoir turned in by DeDiego on March 8, may been “appropri- ated” by another employee for personal use. Again, there is no indication in the record that Detres or any other management official made any such inquiry of other employees. Thus, I find that the Respondent did not have a reasonable basis for concluding from Detres’ rather perfunctory investiga- tion that DeDiego failed to perform the work in question on March 8. Indeed, the fact that the Respondent took no action against DeDiego following Detres’ purported investigation leads me to believe that either the Respondent itself did not take the investigation very seriously or that it had doubts as to whether the factors cited by Detres sufficiently established that DeDiego had not changed the defective part on March 8. In this regard, I find it inconceivable that the Respondent would have allowed DeDiego to return to work without so much as a verbal warning if it truly believed that DeDiego had perpetrated a fraud against it by falsifying records to cover up a job not done. Carrasquillo’s rather lame explanation, that he did not take immediate action against DeDiego because he preferred to wait and see if DeDiego would engage in other acts of miscon- duct, borders on the absurd and is rejected as not credible. As stated, a more plausible explanation is that no action was taken on March 31, either because DeDiego had in fact done the work in question on March 8, or because the Respondent was unable to prove that DeDiego had not done so. In sum, I find that DeDiego was not guilty of either of the of- fenses which the Respondent contends formed the basis for the April 27 suspension. Thus, it produced no credible evidence to show that DeDiego failed to repair the Ford Explorer engaged in the misconduct attributed to him in the April 27 suspension letter, nor that it had a good-faith believe that DeDiego was guilty of the alleged misconduct. Accordingly, it has not met its burden under Wright Line of establishing through a prepon- derance of credible evidence that DeDiego would have been suspended for 8 days on April 27, even if he had not a union supporter. Avondale Industries, 329 NLRB 1064 (1999). In- deed, the timing of the suspension, 1 week after the Union lost the Board-conducted election, leads me to believe that the Re- spondent, emboldened by its success over the Union, seized the opportunity to not only punish DeDiego for his union activities, but to also send a message to other employees that such activi- ties would not be tolerated in the future. Both explanations for the suspension, I am convinced, are mere pretexts conjured up by the Respondent to hide the true retaliatory and unlawful nature of the suspension. For these reasons, I find that DeDiego’s April 27 suspension violated Section 8(a)(3) and (1) of the Act, as alleged. (2) The August 10 and 13 disciplinary writeups As previously found, the General Counsel has made a prima facie showing that the writeups, like the suspension, were moti- vated, at least in part, by DeDiego’s union activities. As to the writeups, the Respondent has presented no credible evidence to rebut the General Counsel’s prima face case. Both writeups, in my view, are clearly pretextual. As to the August 10 disciplinary write-up, that warning, as found above, was issued to DeDiego, in part, for discussing union matters with Rodriguez during his nonworking hours, an activity which Carrasquillo readily concedes was permitted by the Respondent and which, more importantly, has long been deemed to be protected activity under the Act. Waste Manage- ment. of Palm Beach, 329 NLRB 198 (1999); Hale Annie Re- habilitation, 326 NLRB 335 (1998); Ford Motor Co., 315 NLRB 309, 610 (1994). Accordingly, by issuing the warning to DeDiego, in part, for engaging in union activities during his free time, as was his statutory right, the Respondent, I find, violated Section 8(a)(3) and (1) of the Act.43 While the August 10 warning cites two other reasons for its issuance, I find them to be pretextual in nature. Thus, the one incident mentioned in the memo accusing DeDiego of having been disrespectful to 43 In fact, Falgueras’ testimony, that employees could discuss the un- ion individually among themselves during work hours, but not in groups, meant that DeDiego’s discussion with Rodriguez would have been permitted even if Carrasquillo’s claim about the incident occur- ring during working hours was accepted as true. Detres’ testimony that the Respondent had no prohibition whatsoever on employee solici- tation and distribution during working hours is at odds with Falgueras’ claim as to the existence of a limited rule prohibiting group discussions during working hours. As between Falgueras and Detres, I am inclined to believe the latter that the Respondent did not have a no- solicitation/no distribution rule applicable to working hours. The Board, it should be noted, has held that in the absence of a formal no- solicitation rule, an employer has the right to discipline an employee for engaging in union activity only if the employee’s conduct interfered with production on the occasion in question. Harry M. Stevens Ser- vices, Inc., 277 NLRB 276, 282 (1985). Thus, assuming, arguendo, that DeDiego’s discussion with Rodriguez did take place during work- ing hours, the Respondent here neither contends, nor has produced evidence to show, that DeDiego’s solicitation of Rodriguez interfered with production. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130 Carrasquillo occurred on July 6, more than a month before the disciplinary memo was issued. Carrasquillo did not explain why he waited so long to impose discipline on DeDiego for this particular incident. Further, there is no indication in the record that DeDiego was even spoken to about this incident either by Carrasquillo or any other management official, prior to receiv- ing the August 10 warning. Carrasquillo’s failure to immedi- ately call to DeDiego’s attention conduct which he purportedly deemed to be personally offensive and disrespectful, and the unexplained long delay in meting out punishment for this al- leged misconduct, simply makes no sense, leading me to be- lieve that it was afterthought resurrected by the Respondent a month after its occurrence so as to bolster its decision to retali- ate against DeDiego for his union activities vis-à-vis Rodri- guez. The August 13 memo also violated the Act as it was issued to DeDiego for disagreeing with the unlawful August 10 disci- plinary writeup issued to him. Thus, the Respondent’s claim in its August 13 writeup, that DeDiego was not being truthful in asserting that his activities occurred during nonworking hours, was simply wrong. The indignation expressed by DeDiego at having been wrongfully accused of certain misconduct was therefore fully justified, and could not serve as the underpin- ning for the issuance of the August 13 writeup. While the Board does not require an employer to condone an employee’s insubordination or abusive behavior, it has nevertheless held that an employer cannot provoke an employee into committing an indiscretion and then rely on this indiscretion as a basis to discharge or take some other disciplinary measure against the employee. See Caterpillar, Inc., 322 NLRB 764, 678–679 (1996), and cases cited therein; see also NLRB v. Steinerfilm, Inc., 669 F.2d 845 (1st Cir. 1982); Trustees of Boston Univer- sity v. NLRB, 548 F.2d 391, 392–393 (1st Cir. 1977); Felix Industries, Inc., 331 NLRB 144 (2000); R&W Landscape & Property Management, 324 NLRB 278, 281–282 (1997). The Respondent, in any event, has not contended that DeDiego’s statement in his August 12 letter amounted to insubordination or was in any way abusive. Further, Carrasquillo, as noted, readily admitted that he did not find anything particularly wrong in an employee, such as DeDiego here, “defending him- self or herself” against charges brought against him. (Tr. 649.) In these circumstances, I find that the August 13 write-up, like the August 10 write-up, was unjustifiably issued to DeDiego not for disagreeing with the Respondent, but rather in retalia- tion for his union activities. Its issuance, therefore, violated Section 8(a)(3) and (1) of the Act. (3) The September 3 discharge The General Counsel, as previously discussed, has made a prima facie showing that DeDiego’s discharge, like the suspen- sion and disciplinary writeups that preceded it, was likewise motivated by antiunion considerations. The Respondent, on the other hand, has not sustained its burden of showing that DeDiego was discharged for legitimate, nondiscriminatory reasons. As set forth in DeDiego’s discharge letter, the Re- spondent based its decision to discharge DeDiego on what it claims was a pattern of misconduct by DeDiego that included the 8-day suspension, and the two disciplinary writeups given to him on August 10 and 13. As found above, however, all three of these disciplinary measures taken against DeDiego were unlawfully motivated by discriminatory reasons and vio- lated Section 8(a)(3) and (1) of the Act. It is well settled that an employer may not justify a discharge on the basis of prior unlawfully issued disciplinary warnings. Teledyne Advanced Materials, 332 NLRB 539 (2000); Care Manor of Farmington, Inc., 318 NLRB 725, 726 (1995); Equitable Gas Co., 303 NLRB 925, 932 (1989); Dynamics Corp., 296 NLRB 1252 (1989); Celotex Corp, 259 NLRB 1186 (1982). Application of this principle thus renders untenable the Respondent’s claim that DeDiego’s discharge was motivated by legitimate, nondis- criminatory reasons. The Respondent, of course, also cited DeDiego’s receipt of four production warnings as a further reason for his discharge. However, the burden of demonstrating that it would have reached the same decision without reliance on the discriminato- rily issued warnings and suspension clearly rests with the Re- spondent. Fermont, 296 NLRB 1252, 1253 (1989). That bur- den has not been met here. First, it should be noted that the Respondent here makes no claim that DeDiego would have been discharged on September 3, for low production even if he had not been suspended on April 27, or been issued the August 10 and 13 disciplinary write-ups. In fact, Detres readily admit- ted that one incident alone of those mentioned in DeDiego’s discharge letter would not have been enough to cause his dis- charge, and that it was his accumulation of events which led the Respondent to terminate him (Tr. 510–511). Further, there is no evidence to indicate that any employee has ever been dis- charged by the Respondent based solely production warnings. Nor is there evidence to suggest that the accumulation of a set number of such production warnings would lead to termination. In fact, the record reflects that other employees who received numerous production warnings remain in the Respondent’s employ.44 In sum, the Respondent has not met its burden of establishing that DeDiego’s discharge would have occurred without reliance on the unlawfully issued warnings and suspen- sion. Accordingly, because his discharge was based on the unlawfully issued warnings and suspension, it follows that DeDiego’s discharge was also unlawful under Section 8(a)(3) of the Act. Fermont, supra at 1254.45 CONCLUSIONS OF LAW 1. The Respondent, Caribe Ford, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Union Nacional de Trabajadores de Puerto Rico is a labor organization within the meaning of Section 2(5) of the Act. 44 See warnings issued to employee Ernesto Rojas (GCX-26, 27, 28) and to employee Mario Perez Diaz (GCX-29, 30, 31). 45 The complaint at par. 6(a) also alleges that beginning on or about April 20, the Respondent unlawfully reduced DeDiego’s work load thereby preventing him from meeting his assigned monthly production quota. Other than DeDiego’s statement in this regard, no documentary evidence was produced to show that the amount of work assigned to DeDiego after April 20, was inconsistent with that being assigned to other employees. Accordingly, I find no evidence to support this alle- gation. CARIBE FORD 1131 3. By threatening to close its facility if the Union were brought in, creating the impression it was keeping Jose DeDiego’s union activities under surveillance, prohibiting DeDiego from distributing union literature on his own free time and threatening him with discharge if continued to do so, and by soliciting, promising to remedy, and thereafter remedying employee grievances, the Respondent has violated Section 8(a)(1) of the Act. 4. By discharging Generoso Perez on January 22, 1999, is- suing an 8-day suspension and disciplinary writeups to Jose DeDiego, respectively on April 27 and August 10 and 13, and thereafter discharging DeDiego on September 3, for their union activities, the Respondent violated Section 8(a)(3) and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. To remedy its discriminatory treatment of Generoso Perez and Jose DeDiego, the Respondent shall be ordered to, within 14 days from the date of the order in this case, offer them full reinstatement to their former positions or, if those positions no longer exists, to substantially equivalent positions, without prejudice to the seniority or other rights and privileges they previously enjoyed. The Respondent shall also be required to make Generoso Perez and Jose DeDiego whole for any loss of earnings and other benefits they may have suffered due to their unlawful discharge and, in DeDiego’s case, his 8-day suspen- sion, in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest on such amounts to be com- puted as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent will also be required to, within 14 days from the date of this Order, rescind and remove from its files any and all reference to their unlawful discharges, and, in DeDiego’s case, to the unlawful April 27, 8-day suspen- sion, and August 10 and 13 disciplinary writeups issued to him, and within 3 days thereafter, notify them in writing that this has been done and that said unlawful conduct will be used against them in any way. Finally, the Respondent shall be required to post an appropriate notice.46 [Recommended Order omitted from publication.] 46 Nothing herein shall require the Respondent to rescind any bene- fits or improvements in employee terms and conditions of employment which were unlawfully granted or made by the Respondent to dissuade employees from supporting the Union.