Jenkins Index Co.

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jenkins Index Company and Southern California Printing Specialties and Paper Products Union, Local 388, affiliated with the International Printing and Graphic Communications Union. Case 21-CA-21994 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON . AND MEMBERS ZIMMERMAN AND HUNTER On 15 February 1984 Administrative Law Judge Earldean V. S. Robbins issued the attached deci- sion. The Respondent and the General Counsel each filed exceptions and supporting briefs. , - . The National Labor Relations Board has delegat- ed 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,' and conclusions 2 and to adopt the recommended Order as modified. The judge found that the Respondent laid off employees Celedon Armenta and Michael Negrete in violation of Section 8(a)(3) and (1) of the Act. We agree. The judge further found, however, that the General Counsel did not make a prima facie case in regard to the layoff of employee Ambrosio Contreras. We find merit to the General Counsel's exception and find that the Respondent acted un- lawfully when it laid off Contreras. According to the credited testimony, employees met with a union representative to discuss organiz- ing on 29 January at Negrete's house. A few days prior to the meeting -Contreras telephoned the Re- spondent's supervisor Jose Curiel to inquire if Curiel were attending the meeting. Curiel was un- aware of the meeting and asked Contreras a series 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Cif 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge found that the Respondent violated Sec 8(a)(1) of the Act by interrogating, threatening, and creating the impression of surveillance of its employees The Respondent has failed to state any grounds for an exception to these findings. Although citing in a numbered list to the page and line of the judge's conclusions of law on this issue, the Re- spondent makes no argument in its brief that the judge erred Rather, the Respondent's bnef focuses exclusively on the judge's findings concerning layoffs of employees The Respondent concludes its bnef by requesting only that the judge's decision be amended to dismiss the findings of an unlawful layoff It thus appears that the Respondent has limited its excep- tions to the 8(a)(3) issue Accordingly, without passing on the analysis or cited authorities, we shall adopt the judge's findings that the Respondent violated Sec 8(a)(1) Member Hunter adopts the judge's finding that the Respondent violated Sec 8(a)(1) under all the circumstances but does not rely on those cases cited by the Judge of questions, including the time arid location of the meeting_ and whether Contreras had joined the Union or signed a union authorization card. 'In re- sponsè to, COntreras', affirniative answers to thege final .question, Curiel said, "You're making a big mistake because if in the office they find you sign- ing a card, they will fire you." Immediately follow- ing Contreras' layoff with eight other employees on 10 February, Curiel telephoned Contreras and told him; "I told you they'd v[sic] get fire if you signed." We find that the General Counsel has established a prima facie case of unlawful discrimination. We agree with the judge's analysis which imputes to the Respondent its 'supervisor's knowledge of Con- treras' union activity and sentiments. While this knowledge is combined with the timing of the layoff so close to the organizing campaign and the Respondent's animus expressed by Curiel to Con- treras, including a threat of discharge-for signing a union authorization card, the General Counsel has met its burden. We find that the Respondent has not established that it would have laid off Contreras in the absence of his union activity. The Respondent asserted that Contreras -was selected for layoff because he oper- ated only a vertical press, which it did not use very frequently, and because he had an absenteeism and tardiness problem. Both Contreras and his supervi- sor testified, however, that Contreras also operated two other presses. While the Respondent's vice president testified that Contreras had an attendance problem, the Respondent introdked only two written warnings, marked as "first offense," re- ceived by Contreras on 17 August 1981 and on 19 October 1982. The judge found that the Respond- ent did not contend that such a record was suffi- cient to justify discharge but rather was one factor in the decision. As it appears to be the only factor, we do not find that it rebuts the prima facie case made so directly by the General Counsel. In this regard we note that, although the Respondent's vice president Anderson testified that the Respond- ent obtained input from department heads on em- ployees to be selected for layoff, Contreras' depart- ment head, Kamoto, testified he had no input into the layoffs and no one informed him beforehand of the layoffs. Accordingly, we find that the Re- spondent laid off employee Contreras in violation of Section 8(a)(3) and (1) of the Act and we shall modify the judge's order and notice to conform with our finding. ORDER The National Labor Relations Board adopts the recommended Order of the adminstrative law 273 NLRB No. 100 JENKINS INDEX CO 737 judge as modified below and orders that the Re- spondent, Jenkins Iiiaex Company, Montebello, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 2(a) and (b). "(a) Offer to employees Celedon Armenta, Am- brosio Contreras, 'and Michael Negrete immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. "(b) Remove from its files any reference to the layoff of Celedon Armenta, Ambrosio Contreras, and Michael Negrete on -10 February 1983 and notify each of them in writing that this has been done and that evidence .of their unlawful dis- charges will not be used against them in any way." 2. Substitute the attached notice for that of the adminsitrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of 'the United States Government The National Labor Relations Board has found that we violated the National Labor Relations. Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- ties of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. In recognition of these rights, we hereby notify our employees that: . WE WILL NOT lay off or otherwise discriminate against any employees for supporting Southern California Printing Specialties and Paper Products Union, Local 388, affiliated with the International Printing and Graphic Communications Union, AFL-CIO or any other union. - WE WILL NOT coercively interrogate employees as to their union activities and support and the union activities and suppbrt of fellow employees. WE WILL NOT create the impression that the union activities of employees are under surveil- lance. WE WILL NOT threaten employees with dis- charge, plant closure, or other reprisals if they engage in union or other protected concerted ac- tivity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to employees Celedon Armenta, Ambrosio Contreras, and Michael Negrete immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus inter- est. WE WILL remove from our files any reference to the layoffs of Celedon Armenta, Ambrosio Con- treras, and Michael Negrete on 10 February 1983, and notify each of them in writing that this has been done and that the discharges will not be used against them in any way. JENKINS INDEX COMPANY DECISION • STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge. This matter was heard before me in Los Angeles, Cali- fornia, on October 27 and 28, 1983 The charge was' filed by Southern California Printing Specialties and Paper Products Union, Local 388, affiliated with the Interna- tional Printing and Graphic Communications Union, AFL-CIO (the Union) on February 17, 1983, and a copy thereof was served on Jenkins Index Company, Respond- ent, on February 18, 1983. The complaint which issued on July 26, 1983,' alleges that Respondent violated See- tin 8(a)(1) and (3) of the National Labor Relations Act. The basic issues are whether Respondent discharged or laid off employee Celedon Armenta, Michael Negrete, and 'Ambrosio Contreras because they engaged in union or other protected concerted activities, and whether Re- .spondent unlawfully interrogated and threatened employ- ees and created the impression that the union activities of 'their employees were under surveillance. - On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed 'by the parties, I make the following The General Counsel's unopposed motion to correct the official tran- script of the proceedings is granted 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION At all times material Respondent, a California corpora- tion, with a facility located in Montebello, California, has been engaged in the manufacture of paper folders and binders Respondent, in the course and conduct of said business operation, annually sells and ships goods and products valued in excess of $50,000 directly to custom- ers located outside the State of California. The complaint alleges, Respondent admits, and I find that Respondent is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent is a job shop engaged in the production of paper folders and binders. In February 1983, it had 40 to 50 production employees and about 9 production depart- ment heads, including Jose Curiel, an admitted supervi- sor, who is head of the cutting and tabbing department, and Kenneth Kamoto, head of the printing department. Jerry Biggins was vice president and general manager, Gene Nicool was vice president of administration, James A. Anderson was vice president of operations, Marvin Berman was plant foreman, Virginia Califano was per- sonnel manager, and Bob Frantz did purchasing and preparation of samples for the production and sales de- partment. In October 1982, Respondent laid off about five em- ployees. According to Anderson, these layoffs were for financial reasons and were not by seniority. Rather, Re- spondent basically laid off higher paid employees. In November certain of Respondent's employees dis- cussed the desirability of obtaining union representation and Armenta contacted the Union in this regard. There- after, in November, union representatives Dennis Hay- den and Jeff (last name unknown) visited Armenta in his home, gave him union authorization cards to be distribut- ed to employees for their signatures, and cautioned him that signatures on the card ihould be solicited only during nonworking time. From November until Febru- ary: but principally from' the latter part of December to mid-January, Armenta and Negrete distributed between 20 and 25 union authorization cards to fellow employees. Insofar as they know, no supervisor observed them doing this. By mid-January more than 50 percent of the approximately 45 production employees had signed union authorization cards. Armenta signed a card on Jan- uary 10, 1983, 2 and Contreras and Negrete signed cards on January 18. Armenta then called,Hayden and. ar- ranged for Hayden to meet with some of the employees at Mike Negrete's home on January 29. , Contreras testified that he and Curiel are friends and that in the third week of January he telephOned Curiel and inquired if he was going to the meeting. Cunel asked, "What meeting?" When Contreras explained that he was referring to the union meeting, Curie] said, "I don't know anything about it." Contreras said, "I made a mistake." Curie] asked why, and Contreras explained that he thought Curiel knew about it. Cunel said, "I don't know," and asked where the meeting would be. When Contreras said it would be at Mike, Negrete's house, Cunel asked when. Contreras said, "Next Saturday." Cunel then asked, "Are you in the Union ?" Contreras said, "Yes." Cunel then said, "Oh, you're making a big mistake because the office, they 'don't want anything to do with the Union." Cunel then asked, "Did you sign al- ready that card for the Union?", Contreras said, "Yes." Curiel said, "You're making a big mistake because if in the office they find you signing the card, they will fire you because they don't want anything Cvlith the Union. The Union is not good because they take , only 20,000 a year as employees. And if somebody comes -from the Union to Jenkins, 'they will close the door. They don't want anything And if they come, they close down all the plant. They will send out the jobs to Universal "3 Contreras asked who told Curiel this; , and Curie] said, "Bob Frantz explained everything to me about what they are going to do if the Union comes. They don't want anything to do with the Union. They were going to close the plant and send the jobs out to another com- pany and if they find you signing already that card from the Union, you are going to get fired" Curiel then said, "This is a secret between you, and me. Bob Frantz told me." The meeting was held as scheduled on Saturday, Janu- ary 29, at Negrete's home. From 10 to' 12 eniployees at- tended including Armenta and Negrete. Hayden and an- other union representative were also present. Contreras did not attend. Armenta testified that around 6.15 on Monday morn- ing, January 31, shortly after he reported to work, Cunel asked him; "How was the meeting Saturday?" When Ar- menta did not reply, Curiel said, "Sal, I know all about it. You guys had that meeting down at Mike Negrete's house. For having those _kind of meetings you can get into a lot of trouble." Armenta said, "Those meetings are not secret, the next time we have one you are welcome to attend." Curie] said, "Well, by the way how many employees showed up to that 'meeting." When Armenta made no reply, Cunel laughed and returned to his work area. • On January 31, Biggins had a meeting of employees at which he announced a freeze on wages. He further said that they did not know how long it would continue but the freeze would stop any further layoffs That evening, Negrete and his girl friend had a social engagement with 3 Universal Paper Products and 'Respondent are both owned by Office Products Corporation, a holding company 2 Unless otherwise indicated, all dates herein will be in 1983. JENKINS INDEX CO. 739 Cunel and his wife. According to Negrete, during the course of the evening he mentioned the adverse effect the wage freeze would have on him and said what the employees needed was a union. Curie! responded, "I know what you guys are up to. You guys are making a big mistake," and further said that all unions were "fucked up." Negrete said that a union . was as good as "you make. " Cunel said that employees had previously tried to get a union in and the Company had said then that they were going to close down the plant. Curie] fur- ther said they would do it again, that before they would go union, they would close the plant..Negrete said there had been a meeting with union representatives and em- ployees at his house and it was illegal for the Company to close the plant when the employees were trying to un- ionize it. Nekrete further testified that he said Universal had tried to' get a union and, from what he understood, the union lost there by only a couple of percentage points, and that the employees had to stick together. Cunel said the employees were just making a big mistake by doing that Cunel also said he knew who was behind this. Ne- grete - asked who and Curie] replied, "Sal Armenta " Ne- grete then said, "I'm one of the main people involved too, because I believe I am going to benefit the most of " Cunel asked if Lupe Ruble, and Esther Barrios had signed a card for the Union 4 ‘ Negrete said he' did not know Cunel said he had told Rubio she should not go for the Union, that she was just asking for trouble if she did. Negrete asked why Cunel did not want a union. Curie! said the Company would change a lot of things if the employees were represented by a union. He said his job was good and, if he lost it, it would be difficult for him to find another job that paid as well. Curie] further said if Negrete wanted the Union that was his business, but he did not want anything to do with it. Cunel then concluded the discussion by saying that they were friends and the conversation would end right there and nothing. else would be said about it. Employee Carlos Ortado testified that on February 10 Curiel approached him at his work station, told him to turn off his machine and go to the warehouse. When ' Curie! and Ortado were in the warehouse, Curie] told Ortado that the guys who were going to start up the Union, Sal and Mike, would be fired that day. Ortado asked. how he knew and Curie! said that Bob Frantz had fold ,him. Ortado said he felt this was going to happen Curiel said he felt bad about it. On ,that same day, eight or nine employees were laid off, including Armenta, Negrete, and Contreras. Negrete testified that he first learned of his layoff about 5 minutes before the end of his shift when he opened his paycheck and found a notice headed,' "Employee Termination Record," which indicated that he was laid off. The reason checked was "lack of work—indefinite." Accord- ing- to Negrete, he immediately asked Kamoto if he knew about his layoff Kamoto said yes, he had just found out about it and he was surprised that Negrete was one of those laid off. Kamoto further said that he had just talked to Berman because he had some questions about 4 According to Negrete, Cunel, Rubio, and Barrios are good friends Negrete being laid off and that Berman told him that it was management's doing, that they were the ones that selected Negrete for layoff and that even he did not have any say about it. On* the following day, when Negrete returned to the plant to pick up his belongings, he asked Berman if he had prior knowledge of Negretes layoff. Berman said that he had just found out the day ' of the layoff, that he did not have anything to do with it and it was all man- agement's doing. Berman further said he could not sleep that night- because of all of the people who had been laid off, that Respondent expected him to get production out, but they were -getting rid of his employees. Berman said he was going to try to get Negrete's job back for him. Negrete said the only way he was going to get his job back was through the agency because Jenkins did all its hiring through a temporary agency. Negrete then asked why he was laid off for lack of work when everything was picking up. Berman said he brought that up to man- agement and they said it was dollars and cents, that Ne- grete was making too much money from the Company. Contreras testified that Califano also gave him'his pay- check on February 10, and that it contained a termina- tion notice that he was laid off for "lack of work—in- definite." He showed the notice to Kamoto and said he did not understand. Kamoto said, "Today is the last day" Contreras asked why. Kamoto said, "I just knew about this a few minutes ago 'and I'm sorry." Contreras said he had more experience and more seniority than other employees. Kamoto said he did not know anything about it Contreras further testified that Curie! telephoned him about 2 hours later at his home 'and said, "I told you they'd get fired if you signed," and asked what Contreras was going to do. Contreras said he was going to collect from unemployMent Armenta's paycheck,. which he did not open until after he got home, also contained an unexpected termination notice stating that he was laid off Indefinitely. According to Armenta, he immediately telephoned Berman, told him he had just seen the termination notice, and asked why he had not been told that he was being laid off. Berman said he did not know anything about it. Armenta asked why he was being terminated Berman said he did not know anything about it, that there was nothing he could do. On the following day when Armenta returned' to the plant to pick up his tools, he .asked Berman, who was at the compressor, if the compressor was broken. Berman said no, he was teaching Ted Dazies how to maintain the compressors. He further said he was so upset he couldn't sleep last night because Of what man- agement had done by terminating his best employees." Berman said he had a meeting with 'Management that morning and he was going to try to get Armenta's job back. . Armenta further testified that, on the following Monday when he returned to the plant to get reimburse- ment for a mileage claim, Berman said he was glad Ar- menta had come in, 'that he was having a lot of trouble in maintenance with all of the requisitions, that he did not know where they stood and that Ted did not know 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anything about it, and asked Armenta if he would help him. Armenta did help him to sort out what parts had been ordered and what parts to pick up. Berman then told him he had the meeting with management and tried to get Armenta his job back, but that management was "real mad and upset." Berman said he told management that Armenta was the best mechanic and that his produc- tion was going to drop because of letting his best people go. Berman said management told him they knew what they were doing, that they were running the plant, not Berman. Berman said, "My best people are gone, my best mechanic is gone, what am I supposed to do," and he said management was real mad and upset but did not say why they were. Berman said he was told by manage- ment that they were running the plant and knew what they were doing, and that he was further told if he needed any help to get Rudy from Universal Paper to repair the machines 5 • B. Respondent's Defense Respondent adduced no testimony in contradiction of the testimony of employee witnesses as to statements made by Curiel. However, Respondent did adduce testi- mony -with regard to the layoffs. James Anderson, Re- spondent's vice president of operations, testified that the February 10 layoffs, as well as the earlier layoffs in Oc- tober, were financially motivated. In both instances, the layoffs were not by seniority. Rather, according to An- derson, they laid off the higher paid employees. For the fiscal year ending June 30, Respondent had a loss of a quarter of a million dollars and, as of the time of the hearing herein, had lost $112,000 for the current fiscal year. As part of Respondent's economic retrenchment, within the 6 weeks prior to the hearing, Respondent ter- minated its vice president and general manager, its vice president of administration, its personnel manager, and its plant foreman. At the time of the hearing, their various functions were being performed either by other manage- ment personnel at Jakins or by management personnel from Universal and OPC, who continued on the payroll of Universal and OPC while working for Jenkins. An- derson further testified that the,selection of persons to be laid off on February 10 was made by him and Biggins Virginia Califano was also present at the meeting where the decisions were made. According to Anderson, they had input from department heads. However, he 'does not recall whether the department heads actually attended the meeting or whether they were contacted individually at the plant.' 1. Celedon Armenta' Armenta commenced working for,Respondent in April 1980. As a maintenance mechanic, his duties were to repair and maintain all of Respondent's machinery. There was only one other maintenance mechanic in Respond- ent's employ, Ted Danes, who had been employed about a year and had been trained by ,Armenta. The only other 5 According to Armenta, Universal Paper does similar work to that done by Jenkins, sometimes Rudy would help him repair some of the Jenkins machines and sometime Armenia would go over to Universal and help Rudy repair some of the Universal machines person who worked in maintenance was a trainee Who had been in Respondent's employ about 6 months. Of the three, Armenta was the highest paid employee -and was the only one who worked throughout the plant on all the machinery. Anderson testified that during the meeting when he and Biggins were making the determination as to whom to' lay off, they discussed the maintenance department. At that time they had three people in maintenance and Armenta was receiving the highest wages of the thiee, so the determination was made to lay him off. Since Ar- mento left Respondent's employ, Respondent has used an outside contractor and employees from Universal Paper to do the work previously performed by him., Anderson testified that since Armenta left, Respondent's mainte- nance cost has decreased. However, he also testified that work previously performed by Armenta was done by an outside contractor and an employee from Universal. This employee is paid at time and a half the rate he is paid at Universal. The outside contractor is paid in the range of $30 an hour. Anderson testified that the rationale for the selection of Armenta was his wage rate and the fact that he could be replaced by the other two employees in maintenance and, if required, help could be received on a part-time basis from Universal. However, no documentation was introduced into evidence to corroborate Anderson's testi- mony that maintenance cost in fact decreased after Ar- menta left , Armenta testified that no one . asked him if he would take a cut in pay in order to keep his job. 2 Michael Negrete Michael Negrete, whose employment commenced in November 1978, worked in the printing department which is staffed by about 12 employees and is divided into the letterpress and the offset areas Except for a short period of time, he has worked principally in letter- press. At the time of his layoff, he was assistant printing department head With responsibilities in the letterpress department. As such, if other pressmen needed assist- ance, he would assist them if he could and would check the quality of some of the work coming off the press. Negrete testified, without contradiction, that at the time he was made assistant department head, Berman told him the printing department was going to grow and they were going to start thinking about a printing-night shift which would start in January 1983. He told Negrete that being night shift supervisor would be more money for him but would also mean more responsibility, he - asked if he wanted the position and who he thought should be on the night shift Negrete named some em- ployees he would like to have on the night' shift. Both Berman and Kamoto told Negrete they wanted the night shift to be a strong shift. However, about the last week in December, Berman told Negrete that he did not think they were going to start the night shift in the beginning of January as planned, but that they were going to have a night shift and would just have to take it day by day and maybe towards the end of January the night shift could be started Berman said Respondent had enough work at the moment but in order to start a new night JENKINS INDEX CO 741 shift they would have' to have about six to eight more people and there was not enough work to start a whole new shift Annette Williamson, Berman's secretary,' was present- during this conversation. However, neither Wil- liamson nor Berman-testified. Anderson testified that, in making the selection of em- ployees to be laid off, Negrete was discussed. Specifical- ly, they discussed that when Negrete was running the department when Kamoto was.absent one day, they had .a couple of problems. Also they tried-him on the Solna, a large two-color offset press which is the most difficult press to operate at Respondent's facility, but Negrete. could not, operate the Solna. so they had to move him back to the press that he had been running. -Negrete was unhappy about that and Biggins and Anderson felt that he was not going to be happy being moved back so they decided to let him go. , However, Kamoto testified that about a year prior to Negrete's layoff they had started to train him on the Solna press and that he worked full time on the Solna for about a month. Negrete. testified that he started oper- ating the Solna in November 1982 and ran it every time there was a job for the Solna, which was about half of the , time. According to Kamoto, Negrete was removed from the Solna because they thought they had mechani- cal problems with the press and needed someone with more experience.° Later, prior to Negrete's layoff, ,they discovered thai the poor quality they were experiencing in the product was caused by a chemical pro6lem with the ink and the solution In February', Respondent placed an ad in the paper for a Solna operator and, as a result of that ad, hired James Hill after Negrete's layoff.-Kamoto testified that he con- sidered , Negrete as a good worker in the letterpress de- partment and that he was not working on the Solna at the time of his layoff. Anderson testified that Negrete was not selected for layoff because he could not operate the Solna but be- cause it was felt his attitude would be bad as a result of his demotion. When asked specifically what he observed about Negrete's attitude after he was taken off the Solna, Anderson testified as to an incident when he entered the production area and heard Negrete tell one of the other pressmen something to the effect that if he did not re- ceive a raise that day he was going to tell them what to do with it. Negrete then turned around, saw Anderson, appeared to be embarrassed and that was the end of it. Anderson testified that offset presses were becoming more important to Respondent and he and Biggins just felt that since Negrete could not run the Solna, he could not be the assistant department head and thus -had no op- portunities for advancement. He was' young and bright and they just felt he would be frustrated. Anderson admits, however, that Negrete was only assistant depart- ment head ,in the letterpress area and That he does not recall , whether he was removed from that position. Ac- cording to Anderion, , when Negrete was reassigned to the letterpress, he did not have the same dedication. He was wandering around More and had more conversations 6 The General Counsel does not contend that the transfer of Negrete from the Solna press back to the letterpress was unlawful with employees in other departments when he should have been tending the press. Karnoto testified that Negrete was a trainee on the Solna and his production was slow on that press, but admits that he never gave Negrete a warning for his pro- duction on the Solna or for his attitude and that after Negrete was removed from the Solna machine he did not notice any negative change in his attitude at work. Further, Negrete was never removed from his position as KamOto's assistant At the time of his layoff, Negrete was making $8 10 an hour and was the highest paid person in the department, other than Kamoto: Negrete was receiving training in printing at Los Angeles Trade Technical School at night: His superiors at Respondent were aware of this and encouraged him to continue. Negrete testified that, on February 10, the work load was increasing and they were working a full 40-hour, 4-day week. In addition to running the letterpress machines, Negrete also ran the Harris offset machine on occasion which in terms of dif- ficulty is the second or third most difficult machine in the department. Negrete testified that prior to his layoff he did hear from some supervisor, a member of management, that the Company was going to hire a Solna operator He also 'testified, without contradiction, that he was not ac- tually told he was being transferred from the Solna press. Rather, he was told they wanted him to watch employee Earl Luevano closer because he was having a lot of problems at the time and he, Negrete, was not going to be spending that much time on the Solna. This was within a couple of weeks prior to February 10. Negrete further testified that he continued to work On the Solna off and on _up to the time of his layoff He does not recall whether he worked on that press on his last day of work, but he testified, again without contradiction, that he did work on the Solna within his last week of em- ployment. He denies ever stating in the production area that if Respondent did not give him a raise he would quit or take some action against the Company, or making a statement in the production area indicating hostility for some management action; nor did anyone in management ever tell him that his attitude was improper 3. Ambrosio Contreras Contreras began work for Respondent in October 1980 as a pressman in the letterpress area of the printing de- partment. At the time of his layoff he was paid $7.20 an hour. Anderson 'testified that in reaching a determination as to who should be laid . off, they considered Contreras' ab- senteeism and tardiness and thelact that he ran the verti- cal press, which was not used all the time; and decided they could do without him because it was not one of the presses that ran continually They also discussed another person in the , printing department, Earl Luevano. The reason Contreras was selected instead of Luevano was probably because Luevano ran the big presses and Con- treras ran the vertical, a small press which was not used that much. The other operators in the printing depart- 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, according to Anderson, were offset pressmen, all of whom were busy and had good production. Kamoto testified that ,Contreras operated the vertical press and also two other presses. He further testified that he had no input into the layoffs, that no one told him be- forehand that layoffs were going to take place and he was not asked whom he would select to be laid off., He also testified that the same was true as to the October and November layoffs Kamoto further testified that Contreras had an attendance problem and that, although he does not recall issuing a warning to 'Contreras for his absences Or tardiness, he does recall bringing it to his at- tention. He admits that some of Contreras' absences were excused. He also testified that he does not recall if other employees in the department also had attendance prob- lei* although other employees admittedly had absences. According to him, absenteeism was not a consistent problem for most of the employees in the depaitment. C. Conclusions 1 The alleged unlawful statements and interrogations All the alleged statements and interrogations were by Curiel, an admitted supervisor."' I credit Contreras, Ar- menta, Negrete, and Ortado as to these undenied state- ments. 8 They impressed me as honest, reliable witnesses Who were endeavoring to tell the truth Further, their' testimony tends to be mutually corroborative. Thus, al- though they testified as to separate conversations, their accounts of their conversatiOns with Curiel contain a similar thread of warning by Curie] that there would be reprisals from Respondent because of their union activi- ties. I find _unlawful Curiel's interrogation of Contreras as' to where the union meeting would be, whether Con- treras wA in the Union and whether, he had signed a union authorization card; his interrogation of Armenta as to how many employees attended the union meeting; and his interrogation of Negrete as to whether Rubio and Barrios had signed union authorizatidn cards. Interroga- tion of this nature is inherently 'coercive and is therefore violative of Section 8(a)(1) of the Act. Quartrol Corp., 266 NLRB 120 (1983); Fruehauf Corp., 237 NLRB 399 (1978); General Electric Co., 264 NLRB 953 (1982), Knogo Corp., 262 NLRB 1346 (1982); Washington Beef Producers, 264 NLRB 1163 (1982); Airborne Freight Corp., 263 NLRB 1376 (1982); United Sanitation Services, 262 NLRB 1369 (1982); Marion Rohr 'Corp., 261 NLRB 971 (1982); Metropolitan Life Insurance Co., 256 NLRB 626, 629 (1981). It is immaterial that Cunel is a friend of Con- treras and Negrete and that the interrogation of Negrete occurred in a social setting. Quetrzetco, Inc., 223, NLRB 470 (1976). In'its answer, Respondent did not specifically deny the complaint 'al- legation that 'Curie] is a -supervisor within the meaning of the Act Ac- cordingly, under Sec 102 20 of the Board's Rules and Regulations, that allegation is deemed to be admitted Further, the record establishes that Curiel possesses and exercises'indicia of supervisory i'uthority e 8 Although Cunel testified on Respondent's behalf, he was not ques- tioned in this regard I further find violative of Section 8(a)(1) of the Act Curiel's threat to Contreras that he would be fired if the office learned he had signed a union authorization card and that Respondent would close its plant if the employ- ees were represented by a union; to Armenta and Ne- grete.that employees could get into a lot of trouble for attending union meetings and otherwise supporting the Union; and to Negrete that the employees were making a big, mistake by seeking to .obtain union representation. Such statements constitute clear threats of reprisal for engaging in union activities. Marion Rohr Corp., supra; Donnell)) Mfg. Co., 265 NLRB 1711(1982); Cumberland Farms Dairy, 258 NLRB' 900, 905 (1981); Han-Dee Pak, Inc., 249 NLRB 725, 727, 729 (1.980). It is immaterial that Curiel is a friend of Negrete and Contreras. The Board . has held that the "impact of such statements, coming from a `friend' who is part of management, is probably greater in yiew of the authenticity and credibility of the source." Coach & Equipment Sales Corp., 228 NLRB 440 (1977); Stewart-' Warner Corp., 253 NLRB 136 (1980). also find that Curiers' statement to Armenta that he' knew all about the meeting, and to Negrete that he was aware of 'what the employees were up to and knew who was behind the union organizing, Created the impression of surveillance 'of the employees' union activities and is violative of Section 8(a)(1) of the Act. Dutch Boy, Inc., 262 NLRB 4 (1982); Ace Machine Co., 249 NLRB 623, 629 (1980) I further find iliUt Respondent violated Section 8(a)(1) of the Act by Cunel's statement to Ortado that the em- ployees involved in the union organizing—Negrete and Armenta—were going to be fired. Such a statement con- veys the impression that they were being discharged be- cause they engaged in union activities. I also find, in. view of his earlier statements to Contreras, that Curiel's statement shortly after the, layoff reminding Contreras that he had told him `4they'd, get fired if you signed," conveyed the same impression and is also violative of Section 8(a)(1), of the Act. Sumco Mfg. Co., 251 NLRB 427, 434 (1980). 2. The. layoff The General Counsel argues that *the layoffs of Ar- menta, Negrete, and' Contreras 'were unlaWful in view of (1) the extensive union activities engaged in by Armenta, Negrete, and to a lesser degree Contreras; (2) consider- able animosity on the part of Respondent toward union activities engaged, in by Armenta, Negrete, and to a lesser degree Contreras; (3) considerable animosity on the part Of Respondent toward union activities as exem- plified by Curiel's conduct; (4) lack of any valid reason for the selection of these emplOyees for layoff,; and (5) the layoffs of these particular , _employees in circum- stances which show the purported reasons for their se- lection to be spurious. Respondent argues that it had no knowledge that these employees were engaged in union activities and asserts that it had legitimate business justifi-_ canon both for the decision to lay off employees on Feb- ruary 10 and for the selection of Armenta, Negrete, and Contreras. JENKINS INDEX CO 743 The record is clear that Curiel had knowledge both of the union activity in general and of Armenta's and Ne- grete's leadership roles therein Although he denies tell- ing anyone in management that Negrete and Contreras signed union authorization cards, he does not make the same denial as to Arrnenta or the union organizational campaign in general, nor does he deny making. state- ments to Contreras and Ortado which indicated that he felt the Union was a threat to his :own job security and that he had discussed the union activities with Frantz. Further, Respondent's facility is a small plant with about 45 production employees and Armenta and Negrete dis- tributed union authorization cards at Respondent's facili- ty during the lunch break. In the circumstances, I find that knowledge of the union activities and the leadership role of Negrete and Armenta therein can be. imputed to Respondent. Anderson testified thatat Respondent had been losing money and the layoffs 'were economically motivated in an attempt to cut costs. Although arguing that' this eco- nomic defense is suspect, the General Counsel's case es- sentially rests on the contention that the selection of Ne- grete, Armenta, and Contreras was unlawfully discrimi- natory. I conclude that the record supports this conten- tion as to Armenta and.Negrete. Respondent had announced on January , 31 that the wage freeze put into effect on .that day would obviate the necessity for further layoffs. At the very least, this would 'seem to indicate that Respondent planned to avoid a layoff, if possible. Further, the work load was beginning to increase; yet, within 10 days it laid off two of , its key employees. Armenta was Respondent's only mechanic skilled enough to work on machinery through- out the plant Negrete was assistant department head and was being groomed for a position' as supervisor. The justification for their selection is not persuasive. Anderson testified that maintenance costs decreased after Armenta was laid off. However, no documentary evi- dence was introduced to corroborate this testimony. Fur- ther, the record indicates -that the spread between Ar- menta's wage rate and that of the other mechanic wa less than $2 an hour, that the other mechanic was 'not skilled enough to replace Armenta, and that the employ- ee brought in from Universal received premium pay, for his work for Respondent and the outside contractor uti- lized for some of the work previously done by Armenta was paid more than triple :Armenta's wage rate. These circumstances raise questions as to the accuracy of An- derson's testimony regarding the cost savings involved and I find that Respondent's failure to offer supporting documentary evidence gives rise to an inference that Re- spondent's records would not support this assertion. Further. the claim that Armenta was selected because of his relatively high wage rate is belied by Respondent's other selections. Thus, except for Negrete, Armenta, and Contreras, the employees laid off on February 10 had little, seniority and were paid in the range of $3.80 to $4.10 an hour. Their selection is inconsistent with the po- sition that Respondent 'was trying to rid itself of employ- ees who had achieved relatively high wage rates. As to Negrete, Anderson testified that he was selected for layoff because there were "a couple of problems" when he substituted for Kamoto I day as acting depart- ment head; he could not be assistant department -head be- cause-he could not operate the Solna press and thus had no opportunity for advancement—potential for frustra- tion—and his attitude deteriorated after he was removed from the Solna. However, the record establishes that Ne- grete's responsibilities as- assistant department head were confined to-the letterpress area and Kamoto testified that he was competent in that area, had not been removed from his position as assistant department head, and had not exhibited any negative change in attitude Upon a consideration of the evidence set forth above, I find that the reasons asserted by Anderson for the se- lection of Armenta and Negrete for layoff are pretextual. In all the circumstances, including Armenta's and Ne- grete's roles as leaders in the union organizational cam- paign, the timing of the layoffs, the animus expressed by Curiel, Curiel's statement to Ortado that the union lead- ers, Sal and Mike, would be fired that day, Berman's statement that he could not get Armenta reinstated be- cause management was "real mad and upset," and the pretextual nature of the reasons asserted' by Respondent for their selection, I find that the General Counsel has established a prima facie case that Armenta and Negrete were selected for layoff because of their activities on behalf of the Union, and that Respondent has failed to demonstrate that they would have been laid off-even in the absence of such protected activity. Accordingly, I find that they were laid off in violation of Section 8(a)(3) and (1) of the Act. As to Contreras, the record does not establish that he engaged in any union activities different in kind from those of a numbei of other employees. The General Counsel argues, however, that this is immaterial since he was told by Curiel that his discharge stemmed from en- gaging in union activities. I do not agree. In this regard, I note that, while perhaps suspicious, the record fails to establish that Respondent did not have a legitimate moti- vation for. a layoff of some size on February 10., Thus, the only issue as to Contreras is whether his selection for layoff was unlawfully motivated. It is undisputed that Contreras received a written warning for excessive tardiness on October 19. Respond- ent does not contend that this was sufficient for a dis- charge for cause but, rather, that it .Was a •factor which influenced his selection. Thus the fact that he was not laid off, or terminated, earlier or that this was merely a first warning in a progressive warning system is not indi- cia of unlawful motivation. Nor does the record establish that his selectiOn was -so unreasonable as to support an inference of unlawful motivation.- • , I therefore cannot conclude that Curiel's statement is sufficient to establish unlawful motivation In this regard, I note that Curie' did not participate in the layoff deci- sion nor was he Contreras' supervisor. Thus it 'cannot 'be inferred that he would have had knowledge of the ab- sence of legitimate reasons for Contreras' selection, an inference which would lend credence to his assertion of unlawful reasons. I also note that when he told Ortado that the layoffs would take place, he specifically identi- fied Armenta and Negrete as the union leaders who 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be laid off and made no mention of Contreras. I therefore conclude that the record does not establish that his statement represented anything more than conjecture on his part. • In these circumstances, I •find that the General Counsel has failed to establish; that Respondent was motivated by unlawful considerations when it laid off Contreras: Ac- cordingly, I find that, by such conduct, Respondent did not violate Section 8(a)(3) and (1) of the Act. -CONCLUSIONS OF LAW 1. Respondent is an employer engaged in Commerce within the meaning of :Section 2(2); (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. , 3., By unlawfully laying , off employees Celedon menta and Michael •Negrete because they engaged in union or other protected concerted-activities for the pur- poses Of collective bargaining or other mutual aid or pro- tection, Respondent has committed unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4.. By coercively interrogating employees concerning their union membership, activities, and sympathy, and the union membership, activities, and sympathies of fellow employees, by creating the impression that the union activities of employees were under surveillance-by Respondent, by threatening.employees with plant closure and other reprisals because of their union activities, and by threatening employees with discharge in order to dis- courage employees from engaging in union or other pro- tected concerted activities, Respondent has committed unfair labor practices in violation -of Section 8(a)(1) of the Act. , 5. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated Section 8(a)(4) and (3) of the Act by laying off Ambrosio ,Contreras. THE REMEDY Having found that Respondent has engaged in certain unfair labor praCtices, I shall recommend that ReSpond- ent cease and ,desist therefrom and take certain affirma- tive action in order to effectuate the purposes of the Act. Having found that Respondent unlawfully laid off Ce- ledon Armenta and Michael Negrete, I shall recommend that Respondent be ordered to offer each of them imme- diate and full reinstatement to his former job or, if that job no longer exists, to a • substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make each of them, whole for any loss of earnings suffered by reason of. the discrimination against him, plus interest, in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289. (1950), and. Florida Steel Corp., 231 NLRB 651 .09771. 9 . .9 See generally Isis Plumbing Go, 138 NLRB 716 (1962) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" • , ORDER The Respondent, Jenkins Index Company, Montebello, California, - its officers, agents; successors, and assigns, shall ' •1. Cease and desist from (a) Laying off or otherwise discriminating against em- ployees because of their union and other protected con- certed activity. (b) Coercively interrogating employees as to their union activities and sympathies and the union activities and sympathies of fellow employees.' (c) Creating the impression that the union' activities of employees are under surveillance., (d) Threatening employees with discharge, plant do- inre, 'or 'other reprisals if they engage in union or other protected concerted activity. (e) in any like or related manner interfering with, re- straining, Or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to employee Celedon Armenta and Michael Negrete immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or'any other rights or privileges previously enjoyed,•and 'make _eaCh of them whole for any loss of earnings he may have suffered by reason of the discrimination against. him, plus interest. (b) Remdve from its files any reference to the layoff of Celedon Armenta and Michael Negrete on February 10, 1983; and notify each of them in writing that this has been done and that evidence of their unlawful discharges Will not be used against them in any way. (c) Preserve and, on reqUest, make available to the Board or its agents, for examination and copying, all payroll records, social securitj, payment records, time- cards; 'personnel records and reports, and all other records necessary to analyze the amount of backpay due under the teims of this Order. (d) Post at its facilities in Montebello, California, copies of the attached notice marked "APpendix." Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Re- spondent's authorized representative, shall be posted, by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily . _ • 10 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses " 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" JENKINS INDEX CO- 745 posted. Reasonable steps shall be taken by the .Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. - IT IS ALSO ORDERED that the complaint is dismissed.in- sofar as_it alleges that the layoff of Ambrosio Contreras was violative of Section 8(a)(1) and (3) of the Act.