Corrugated Partitions West, Inc.

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corrugated Partitions West, Inc. and Graphic Com- munications Union, District Council No. 2, af- filiated with Graphic Communications Interna- tional Union, AFL-CIO. Case 21-CA-23170 28 June 1985 - DECISION AND ORDER, By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 January 1985 Administrative Law Judge Jerrold H. Shapiro issued the attached decision. The Respondent filed exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Corrugated Partitions West, Inc., Santa Fe Springs, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. The hearing in this case which was held November 14-15, 1984, is based on an unfair labor practice charge filed on May 7, 1984, against Corrugated Partitions West, Inc. (Respondent) by Graphic Communications Union, Dis- trict Council No. 2, affiliated with Graphic Communica- tions International Union, AFL-CIO (the Union),' and an amended complaint issued October 24,. 1984, on behalf of the General Counsefof the National Labor Relations Board (the Board) by,the' Board's Regional- Director for Region. 21, alleging that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The complaint alleges that' Respondent 'violated Section 8(a)(3) and (i) of the. Act'1 y laying off or'dis. charging a group of employees on: May 2, 1984,,and by failing and refusing to recall these •employees^ because of their union sympathies and activities. The complaint also alleges that Respondent violated Section 8(a)(1) of the i The charge was amended June 4 and July 12, 1984 275 NLRB No. 126 Act by interrogating employees about their union sympa- thies and activities and those of their fellow employees; by threatening employees with the loss of employment and plant closure if they supported the Union; by telling employees the union adherents would not be recalled from layoff; and by threatening employees that -it would call the Immigration and Naturalization Service if the employees supported the Union. Respondent filed an answer, which it amended during the hearing, denying the commission of the alleged unfair labor practices.2 On the entire record, from my observation of the de- meanor of the witnesses and having considered the posthearing briefs, I make the following FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Business and the Union's Organizational Campaign Respondent manufactures and sells the cardboard di- viders used in cardboard boxes to separate bottles or other breakable receptacles. It operates a plant in Cincin- nati, Ohio, which is its headquarters, and another in Santa Fe Springs, California. The Santa Fe Springs plant, which Respondent purchased in June 1981, is the one in- volved in this case. The employees employed at the Santa Fe Springs plant are not represented by a labor or- ganization. John Wyatt is Respondent's president and general manager. Paul Reynolds is its operations manager. Wyatt's and Reynolds' offices are in the Cincinnati plant. The person responsible for the operation of the Santa Fe Springs plant is Ken Bowers, the plant manager, who has held this position since approximately November 1982. In September 1983 Respondent's Santa Fe Springs plant began to use two work shifts. The first shift operat- ed from. 6:30 a.m. to 3 p.m. The second shift operated from 3:30 p.m. to 12 midnight. During the time material the two shifts each employed the same number of work- ers, 13 or 14 per shift. Joe Rodriguez, the second-shift leadman, was in charge of that shift. A significant number of Respondent's employees employed at the Santa Fe Springs plant had either little or no understand- ing of the English language. In the middle of April 1984 first-shift maintenance me- chanic Lee Childress spoke to union organizer Dell Shields about .the Union organizing Respondent's Santa Fe Springs -plant. Subsequently, union organizers Dell Shields and Jeff Cuellar visited the plant on three sepa- rate occasions; once on April 23 and twice on May 1, 1984.3 2 Respondent ' in its answer admits that it meets one of the Board's ap- plicable discretionary jurisdictional standards and is an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act Re- spondent in its answer also admits that the Union is a labor organization within the meaning of Sec 2 (5) of the Act 2 Almost everyone who testified about the last two plant visits by the union organizers testified that they took place May 1, 1984 However, with' respect to the union organizers ' first visit, all of the witnesses, Continued CORRUGATED PARTITIONS WEST - - 895 On April 23 ,. 1984, union organizers Shields and Cuel- lar visited the plant for 1 hour, approximately 2:30, to 3:30 p in., the period during which the. first -shift employ- ees leave the plant and the second-shift workers enter. They stood outside the 'plant and distributed leaflets with attached authorization cards to the employees as the em- ployees entered and left the plant . They were observed doing this by Plant Manager Bowers who asked them to either step off of the Company 's property or to be sure not to come onto the Company's property. Bowers im- mediately telephoned 'Operations Manager Reynolds in Cincinnati and informed him about the Union's organiza- tional campaign. • On May 1 , 1984, union organizers Shields and Cuellar returned to the plant at the same time they were there April 23 and engaged in the same organizational conduct as they had engaged in on that day. During the hour they were there, Plant Manager Bowers from time to time looked outside to observe them and promptly tele- phoned Operations Manager Reynolds in Cincinnati that they had returned to the -plant and resumed their organi- zational efforts. Some of the employees who union organizer Shields spoke to on the afternoon of May 1 , 1984, indicated that the employees would be more comfortable talking to the union organizers if the organizers returned to the plant that evening during the second 'shift's lunch break, when Plant Manager Bowers would not be on the premises. Accordingly, Shields and Cuellar returned to the plant that evening at approximately 8 or 8 : 15 p.m., when the second-shift employees took their lunch break. Shields and Cuellar spoke to the employees, who were congre- gated outside the plant in the vicinity - of the lunch truck.' They solicited the employees to support the Union by signing union authorization cards . They succeeded `in' persuading only one employee , Gale-Barrett, to sign an authorization card . Barrett, however, at Shields' request, took some of the cards into the plant during the lunch break and - handed them' to a group of employees. -Eight or nine of these employees -signed the cards -which the employees ' returned to Barrett , who took them back out- side to the union organizers. Previously the Union had received seven or eight union cards from employees : - through the mail: ' • - - - • • As described in detail infra , on May 2, 1984, Respond- ent discontinued its second shift and laid off all: but three, of the second-shift workers, and on May 2 and :3„ 1984; also laid-.off five other employees on the first shift: ;, - On May 3 , 1984, the Union filed a representation ,peti tion with the Board's Regional; Office seeking a represen-' tation election in a= bargaining , unit; of Respondent's, pro- duction,, maintenance, -and •truckdriver • employees,, ,em- ployed at the Santa Fe Springs plant: -Pursuant to an-, except for union organizer Cuellar , were only, able to give an approxima- tion of the date Cuellar' who ho mazntams-a calendar, on which he-.contem- poraneously notes his activities, testified that, based on his calendar,-the, first visit that he and Shields made to Respondent 's plant- took, place . April 23, 1984 This testimony is consistent with Childress ' testimony, that' it was approximately 5 days after he contacted Shields in, mid-April 1984 that the union organizers first visited the plant Cuellar's testimony is also consistent with the testimony of Plant Manager Bowers that the first visit of the union organizers took place during the last week or the . last -10. days in April 1984. election agreement entered into by the parties, the Board conducted an election on June 15 ,, 1984, in which 13 em- ployees cast votes against and 1 'in favor of union repre- sentation. B. The Threats and Interrogation Attributed to Plant Manager Bowers' • 1. During the last week in April 1984, after the union organizers ;first visited the plant, Bowers walked up., to where first-shift employee Gerardo Martinez was work- ing and asked Martinez , "if [Martinez] knew who called the union?" When Martinez answered , "No," Bowers re- sponded by stating that if Martinez knew who called the Union, that it would be better for that person to quit his employment because Bowers would find a way to "get rid of him." Martinez asked whether Bowers thought that he was the one who called the Union . Bowers an- swered, "No," and walked away.5 I am `persuaded that Bowers ' threat to discharge the employee who was responsible for initiating the' Union's organizational campaign was, the -type of conduct which, it may reasonably be said, tended to interfere with the free exercise of. employee Martinez ' right under the Act to support the union organizational campaign . Also, ' under all of the circumstances set forth hereinafter, Bowers' `interrogation: of. Martinez,- likewise, reasonably tended to interfere with the free exercise of-'this statutory ` right. The interrogation was engaged in-by the highest' ranking management official employed at the Santa Fe Springs plant. The interrogation cannot be characterized as a chance, spontaneous, or casual occurrence , inasmuch as it was Plant Manager. Bowers 'who 'initiated the con- versation by interrogating Martinez `about the identity of, the' employee who had called the. Union,, and left Marti- nez' workplace as soon asi Bowers said what he had to say concerning this topic . The interrogation was not worded in terms of generalities , but sought the identity of the person who was responsible ; for the Union's orga- nizational campaign . The nature of the interrogation did not indicate to Martinez - that it was being engaged in for a validT purpose ; No assurances against reprisal were given to Martinez by ;Bowels but,:instead; in violation of Section .:8(a)(1) 'of the - Act,' Bowers threatened to' idis- charge' : the employee responsible for contacting ihe- Union if Martinez revealed his identity . All of these cir- cuinstances persuade me that Bowers' interrogatio'n'. of Martinez was coercive , within ' the meaning of Section' 8(a)(l);of'tlie Act. Based on the foregoing; iI find-that Respondent 1violat- 4'Section 8(a)(1) of the Act `when; during the last week' in .Ap it 1984;' Plant Manager Bowers-questionedem`, ployee` -(jerardo Martinez' about "the identity .of the em ..ail=:-.'l __r';:, 1•,+':'J_,r" r'{^ t ; f^i ;. t ''fi.. . Respondent,, in its answer to the'complamt ,,admitted that Bowers is a supervisor within the meaning of Sec 2(I1)•of ihe'Act and.an agent ofd Respondent within the' meaning of Sec ' 2(2) and' (13) of the Adt ' ' a-•Tne descnption'of!this con'versation' is based 'on-Martinez' testunony i Bowers,,generally deniedtthreatening to discharge employees . because.of: their union . activities,. but did -.not testify - about, this ,conversation nor,spe-, cifically deny the conduct attributed to him by Martinez nor even gener- ally deny asking employees if they knew who called the Union In view of these circumstances and inasmuch as Martinez' testimonial demeanor was good, I have credited his testimony ,,, 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee who was responsible for the Union's organization= al campaign and further violated Section 8(a)(1) by threatening to discharge the employee who was responsi- ble for the Union's organizational campaign. 2. During the last week in April 1984 or the first 2 days in May 1984, Bowers visited the work station of first-shift employee Gerardo Martinez and initiated a conversation with him6 by asking if Martinez knew who signed cards for the Union. Martinez answered, "No," and told Bowers that the only way for Respondent to keep its employees happy without having problems was to grant them occasional pay raises. Bowers stated that he agreed and that in fact he had recommended pay raises for some of the workers, but that the owner of Re- spondent had rejected his recommendations. Bowers ended the conversation by telling Martinez that if Marti- nez learned who signed union cards, to tell Bowers.' I am persuaded by all of the circumstances set forth hereinafter that Plant Manager Bowers' interrogation of Martinez reasonably tended to interfere with the free ex- ercise of Martinez' right under the Act to support the Union's organizational campaign. The interrogation was engaged in by the highest ranking management official- employed at'the plant. The interrogation cannot be char- acterized as a chance, spontaneous, or casual occurrence inasmuch as it was Bowers who initiated it by visiting Martinez' work station and asking him if he knew who had signed union cards, and left Martinez' workplace as soon as he said what he had to say about this topic. The interrogation was not worded in terms of generalities, but sought to identify the employees who signed cards authorizing the Union to represent them. The nature of the interrogation did not indicate that it was-being en- gaged in fora legitimate purpose. No assurances against reprisal were given to Martinez by Bowers, but quite the opposite; as I have found supra, in violation of Section 8(a)(1) of the Act, Bowers, during this same period of time, was informing Martinez that when Bowers learned of the name of the employee who was responsible for contacting the Union that he intended to discharge that employee. These are the considerations which have per- suaded me that when Plant Manager Bowers asked em- ployee Martinez if he knew who signed union cards and asked him to_ give this information to Bowers if he dis- covered who signed the union cards, that Bowers en- gaged in illegal interrogation and violated Section 8(a)(1) of the Act. 3. On April 30, 1984, early during the second shift, Bowers jumped, up into the back of; the truck in which employee Jesus Rodriguez, was working by himself. Bowers asked what Rodriguez thought about-the Union and asked whether Rodriguez intended to join the Union. Rodriguez replied, "I don't know," whereupon Bowers jumped off the truck and left the area.8 I am persuaded by all of the circumstances set forth that Plant Manager Bowers' interrogation• of Jesus Ro- driguez tended to interfere with the exercise of Rodri- guez' right under the Act to support the Union's organi- zational campaign. The interrogation was engaged in by the highest ranking management official employed at the plant. The interrogation cannot be characterized as a chance, spontaneous, or casual occurrence, inasmuch as it was Bowers who initiated the conversation by jumping onto the truck where Rodriguez was working and asking whether Rodriguez intended to join the Union, and then promptly jumped off the truck upon hearing Rodriguez' answer.9 The interrogation was not phrased in terms of generalities, but was designed to learn if Rodriguez, whose union sentiments were not a matter of public knowledge, intended to join the Union. The nature of the interrogation did not indicate that it was being en- gaged in for a legitimate prupose. No assurances against reprisal were given. And, as I have found supra, the in- terrogation took place in the context of Bowers' unlaw- ful threat to discharge the employee who was responsi- ble for contacting the Union and his further illegal state- ment that Respondent's owner would probably close the plant if the Union succeeded in organizing the,employ- ees. These are the considerations which have persuaded me that when Plant Manager Bowers, ,on April 30, 1984, asked employee Jesus Rodriguez whether he intended to join the Union , that Bowers engaged in illegal interroga- tion and violated Section 8(a)(1) of the Act. 4. During the morning of Saturday, April 28, 1984, only two of Respondent's employees worked: first-shift maintenance mechanic Earl Childress and second-shift production employee, Gerardo Martinez. Childress' was working in the maintenance shop rebuilding 'a machine and Martinez, who was doing maintenance work, in an- other area of_ the plant, was in and out of the mainte- nance shop. Sometime during the - morning, in separate conversations initiated by Childress and Martinez, Plant Manager Bowers spoke to them separately about the Union. Childress testified that he asked Bowers how Respond- ent felt about the union organizing its ,employees, that Bowers answered by stating that he thought union orga- nization was not a bad idea for the employees, that .the employees could probably use a union, and noted that Respondent's eastern plant had a "company union," but stated that he did not believe that Respondent's owner would abide-with a union at the -Santa Fe Springs plant and -"would probably ' close the plant down, if it, came down to that." ' Martinez testified that he asked Bowers whether Re- spondent's Cincinnati plant had a union, that Bowers an- 8 There'were some other employees present helping Martinez but, inas- much as they could not speak English , they presumably could not under- stand what was said by Bowers and Martinez, who spoke in English The description of this conversation is based on Martinez ' testimony Martinez' testimonial demeanor was good and his testimony was not denied by Bowers. 8 The, description of this conversation is based upon Rodriguez ' testi- mony Rodnguez'. testimonial demeanor was good'ahd his testimony was not denied by Bowers - 9 Plainly Bowers' method of'conducting this interrogation was reason- ably calculated to lead Rodriguez to believe that Bowers' interrogation was not merely a casual occurrence, but that Bowers came to Rodriguez' workplace.for the specific purpose of interrogating him about his union sympathies CORRUGATED PARTITIONS WEST swered that the union at that plant was not really a union but a "company union," and that when Martinez asked what would happen if a union succeeded in coming into the Santa Fe Springs plant, Bowers replied by stating that 'Respondent's owner would not like that and that Respondent would prefer to close down the plant or move it somewhere else. On direct examination, Bowers was not questioned about his April 28 conversations with Childress or Marti- nez. On cross-examination, he testified that he remem- bered a Saturday conversation with these employees where, as he testified, "I was asked several times about the union" by both Childress and Martinez "at different times." Bowers further testified that, among other things, Childress and Martinez asked him what he thought about the Union and whether Respondent's Cincinnati plant had a union and testified in response to their inquiries about union representation that he stated: I responded not as myself [but] as the owner of the company. . . I am not sure about the exact words . .. but I said we may invite them in or we may close the doors. And it was not really myself talk- ing, it was-I was talking as a mouthpiece, as Wyatt [referring to Respondent's president and general manager]. I find that during his April 28, 1984 separate conversa- tions with employees Childress and Martinez that Bowers warned them that if the Union succeeded in or- ganizing the Santa Fe Springs plant's employees, Re- spondent's owner would- probably close the plant. This finding is based upon the above-described testimony of Childress and Martinez, whose testimonial demeanor was good, and on the fact that, as described above, Bowers failed to deny their testimony. Quite the opposite, his tes- timony tends to buttress the conclusion that Bowers stated to Childress and Martinez that Respondent's owner would probably close the plant if the Union suc- ceeded in organizing the employees. I further find Plant Manager Bowers' April 28, 1984 statement to employees Childress and Martinez (that if the Union succeeded in organizing the employees employed at Respondent's Santa Fe Springs plant, Respondent's owner would -prob- ably close the plant) constitutes the type of conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act to support union organization . I therefore find that by en- gaging in this conduct Respondent violated Section 8(a)(1) of the Act. 5. On May 4, 1984,:1aid-off employee Gerardo Marti- nez returned to the plant and, in the presence of Re- spondent's salesman Chuck Walzer, asked' Plant Manager Bowers whether his paycheck was ready. Walzer stated that one' of his checks was `ready and just ' needed Bowers' signature . Bowers signed the check and-handed it to Martinez and asked whether Martinez was working. Martinez answered in the affirmative. 'Martinez asked whether Bowers intended to recall him' and the other laid-off employees. Bowers replied by stating that some of them would be recalled "once everything settled," but that Martinez was not going to work 'for Respondent 897 anymore. Martinez asked if Bowers had learned who called the Union.' ° Bowers replied by stating that Marti- nez "knew better," whereupon Martinez asked whether Bowers thought he was- the one who called the Union. Bowers answered, "Yes." Martinez asked why Bowers believed this. Bowers answered that some of the employ- ees had told him that Rodriguez was the person who called the Union. When Martinez asked him to identify the employees who had accused him of doing this, Bowers refused. I t I am persuaded that Plant Manager Bowers' statement to Martinez that some of the laid-off. employees would be recalled but that Martinez would never be reem- ployed by Respondent, when viewed in the context of Bowers' contemporaneous statement that he thought Martinez was responsible for the Union's organizational campaign, warrants the conclusion that the inevitable effect of Bowers' statements would be to lead Martinez to believe that Bowers' stated refusal to ever reemploy Martinez was based on Bowers' belief that Martinez was the employee responsible for the Union's organizational campaign. I therefore find that Respondent violated Sec- tion 8(a)(1) of the Act when, on May 4, 1984, Plant Manager Bowers implied to laid-off employee Martinez that Martinez would never be reemployed by Respond- ent because of Bowers' belief that he was responsible for the Union's organizational campaign. C. The Threats and Interrogation Attributed to Leadman Joe Rodriguez 1. Albert Perez, an employee employed on Respond- ent's second-shift, testified that' in the last week in April 1984, during the employees' 5:30 p.m. break period, a group- of the second-shift employees, including himself and Ramon Magallanes, Andres Flores, Gustavo Lopez, and Jesus Rodriguez, gathered together and were joined by ladman Joe Rodriguez. Perez further testified that several of the employees asked Rodriguez what he thought about the Union's organizational campaign. Ro- driguez, according to Perez, replied by stating that he had no opinion, but had asked Plant Manager Bowers about the Union and that Bowers had told him that he did not care about the Union and would close the plant. Perez also testified that Rodriguez stated Bowers had told him-since Bowers knew that several of the employ- ees were "undocumented," that Bowers would "fix" them by calling the "Immigration" to the plant. Gustavo' Lopez, an "employee employed on Respond- ent's second shift, testified that in the last week of April 1984, during the 5:30 p.m. break period, a group of em- ployees, including himself, Jesus Rodriguez, Ramon Ma- gallanes, Alberto Perez,- and others were standing ap- proximately 30 of 40 feet from where ' Bowers and Joe Rodriguez were standing and talking when Rodriguez, in the presence of Bowers, turned toward the employees !0 As I. have found supra, Bowers, had previously asked Martinez whether Martinez knew who called the Union The above description of Martinez' May 4, 1984 conversation with Bowers is based on Martinez' undenied testimony When he gave this tes- timony, . Martinez', testimonial demeanor was good Bowers was not ques- tioned about this conversation 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and in Spanish stated that Bowers had- told him'that if the employees brought in the Union, Respondent would close the plant or call Immigration. Lopez further testi- fied that subsequently the same evening, and again 2 or•3 days later, Joe Rodriguez, visited, Lopez' work - station and told Lopez that Bowers had stated that if, the Union came'into the plant, Respondent would close up.' Andres Flores, an employee employed on Respond- ent's second shift, testified that in the last week 'of April 1984, while he and employee Gustavo Lopez were changing a blade on the machine Flores was operating at work, Joe Rodriguez, after asking them what they were doing with the blade, told them the Union. was not "con- venient'.' for -the employees because it would close the plant and that Bowers had told Rodriguez "if the issue 'of the union would continue, the Immigration would be called." Joe Rodriguez testified that a long time before. he began work for Respondent he had worked for an em- ployer located in Fresno, California. , which, Rodriguez testified, had "the same problem" as Respondent 'and had closed its plant. Rodriguez further testified that when the employees on the'second shift asked him questions about the' Union, Rodriguez told them that, based on his expe- rience with this employer in'Fresno, "it could be possi- ble" that Respond'ent' "in order' not to get' the "union" would `close 'the "plant." Rodriguez also testified' that soon after the Uriioii began ' its organizational campaign, -employee Alberto Perez told' Rodriguez that someone had told Perez the` plant was going to be'closed because of the Union,' and asked' Rodriguez if this was true. Ro- 'dnguez initially testified he 'replied to Perez that he did not know,-but -later, testified. he replied by stating: "It, might be, 'you -know; could -be, possibly, probably.".Ro- driguez testified that -Bowers did not instruct him to tell employees, the plant would be closed because of -their union activities, but did not specifically deny that he.told .employees -Bowers had, made such a statement to him. Regarding -Respondent calling,"Immigration". because of the employees'- -,union activities, Rodriguez testified that he -would joke with the, employees. on his shift. and _-that ,once he told,, one of the employees, ;whom he did .not identify, "-`how. ,about if they [referring 'to the Re- spondent] called the Immigration and.,get rid 6f you?" Rodriguez failed to place. this remark in context.,; While 'testifying that. Bowers did not instruct him to tell em- ploy`,ees, that the Company ,not call Immigration if the Union came ;iii; Rodriguez did not, specifically a deny he toldt employees_{that' Bowe'rs' had''made' this statement' to him. The testimonial `demeanor of'em.ployees` Perez,' Lopez, and Flores when they gave their above=described te'ti- ninny was good; • and 'they' impressed'iiie with' their 'sin- ' cerity.• Rodriguez' testimonial dem6rior2' 'as"-poor: and his manlier-of testifying=left'me with the-impression-that he was more interested : in tailoring'his'"testiinony to-suit what' het thought `was Respondent'•SP;p'osition, rather'than the .truth.lf-'I• recognize[ that 'employees Perez, Lopez, 12 I note that in order to support Respondent's position that the May '2-3, 1984 layoffs were economically motivated , Rodriguez at one point gave testimony which the record as a whole reveals was patently false and Flores, as alleged discriminatees, are interested' wit- nesses and that their above-described testimony, is suspect in certain respects, as follows. Lopez and' Perez failed to corroborate each other's description of the context in which Rodriguez `spoke to the employees during their break period. Lopez was not called to corroborate Flores' testimony about what Rodriguez stated to them while they were changing the blade on Flores' machine. And Flores was not called to corroborate the testimony of Perez and Lopez about what was stated by Rodriguez to the employees during the break period. Nonetheless, in view of Rodriguez' poor testimonial demeanor and the impressive testimonial demeanor of Perez, Lopez, and Flores and their apparent sincerity when they testified, as described above, that Rodriguez threatened' Respondent would 'called Immigration and close the plant if the -em- ployees supported the Union, I have credited this portion of the testimony. i 3- Based on the foregoing, I find. that during the last week in April. 1984 Rodriguez told several second-shift employees employed by Respondent that Plant Manager Bowers told him if the employees supported the Union, Respondent would "fix" the undocumented workers em- ployed by calling "Immigration" and would close the plant. 2. Gustavo Lopez, a second-shift employee, testified that on April 23, 1984, following the. union organizers' visit to the plant that day, and on more than one occa- sion during the following days, Joe Rodriguez came to Lopez' work station and asked whether Lopez signed a union card. Lopez testified that the first time Rodriguez asked this question Lopez replied by stating he possibly would not sign the' card 14 and that on the other occa- sions did not reply to Rodriguez' question. Lopez also ,testified that on more than one occasion during this same period -of time Rodriguez visited Lopez' work station :and asked whether Lopez knew if employees Jesus Ro- driguez, Alberto' Perez, - Andres Flores, and Gerardo -Martinez had signed union cards. Lopez testified.he told Rodriguez that he did not know.--Lopez', testimonial de- meanor was good when he gave the aforesaid testimony. Joe 'Rodriguez did not deny engaging in the above-de- scribed conduct attributed to him by Lopez. Quite the He testified that 1 or 2 weeks before the union organizers first visited the plant's second shift, that employee Perez ran out of work to do and, after being assigned to do cleanup work by Rodriguez , asked Rodriguez why work was so slow and why the warehouse was getting empty, and that Rodriguez told him that during this time each year "we get slow and we lay 'people , off, and we may have a layoff later on " Rodriguez further testified- that at the time "we were kind of slow and the warehouse was getting empty " However','the record reveals that the May 2-3, 1984 lay- offs were the first layoffs ever made by Respondent and further shows that during the tune in question- 1 to 2 weeks before the April 23, 1984 plant visit of the union organizers-there was so much work for the plant's employees virtually all were working substantlal'amounts of over- nine and that Perez `was working over 50 hours a week is I have not, however, credited the part of Lopez' testimony which "placed Rodriguez talking with Bowers 30 to 40 'feet away from the em- ployees when he made the threats attributed to'him ' I am persuaded that "if this was the context in which Rodriguez made his remarks about the Union, Perez would have remembered it 14 On April 23, 1984, on his way into the plant to go to work; Lopez had taken 'one of the union authorization cards being distributed by the union organizers CORRUGATED PARTITIONS WEST opposite, he testified that it was a common thing for the employees to ask one another whether they had signed union cards and testified that he asked several of the em- ployees, including Flores,.whether they had signed union cards. Based on the foregoing , I find that during the last week of April 1984 Joe Rodriguez , on more than one oc- casion, interrogated employee Gustavo Lopez at Lopez' work station about whether he had signed a union au- thorization card and whether employees Jesus Rodri- guez, Alberto Perez, Andres Flores, and Gerardo Marti- nez had signed union authorization cards. 3. Alberto Perez, a second-shift employee laid off on May 2, 1984, testified that approximately 1 week after his layoff he returned to the plant during the employees' break period on'the first shift for his paycheck and spoke to Joe Rodriguez . 15 Perez further testified that Rodri-, guez, during this conversation, asked whether Perez wanted to return to work and when Perez answered, "Yes," Rodriguez told him to return that afternoon to pick up his paycheck and to talk about returning to work. When Perez returned that same afternoon , he tes- tified that Rodriguez told him he could not return to work because Bowers had stated Perez' name was in- cluded among a list of employees who signed union cards. Rodriguez specifically denied telling Perez that he was not eligible for rehire because Bowers had received a list of union card signers which included Perez' name. Rather, Rodriguez testified that when Perez , after being laid off, visited the plant to get his paycheck, Perez told Rodriguez he wanted to return to'work and that Rodri- guez went to Bowers and told him that Perez wanted to return to work, and that Bowers replied by telling Ro- driguez Respondent did not need Perez because he was no good as a worker Rodriguez further testified that this was the message from Bowers that Rodriguez relayed to Perez, namely, that Perez was not eligible to be rehired because of his-poor production. When they presented the above -described conflicting testimony, ' Perez' testimonial demeanor was good, whereas Rodriguez' was poor. t 6 I therefore credit Perez' testimony and find that approximately 1, week after his May 2, 1984 layoff Joe Rodriguez informed him he could not- return to work for Respondent because Bowers had stated Perez ' name was included among a list of employees who signed union cards. • , - D. Rodriguez ' Position As I have found previously, from September -1983 until the May ,2, 1984 layoffs, Respondent's"Saute' Fe Springs - plant employed two work shifts , a .first ' shift from 6:30 a.m. to 3• p.m. 'and a second shift from 3:30 15 Rodnguez, with the discontinuance on, May 2, 1984, of .the second shift, was transferred to the first shift 16 I also note that Rodnguez' testimony that Bowers in effect told him that Perez was not eligible for reemployment because of his poor produc- tivity conflicts with the testimony of Bowers which was that none of the laid-off workers, including Perez, were ineligible for reemployment be- cause they were unsatisfactory workers, but they were all eligible for re- employment when Respondent needed additional employees (Tr 374- 375) . 899 p.m. to 12 midnight. Each shift employed 12 or 14 pro- duction and maintenance employees . Plant Manager Bowers was the person responsible for the operation of the plant . Under Bowers in the chain of command, with respect to the production and maintenance employees, were Respondent 's leadmen . During the time material, Joe Rodriguez was a leadman on the second shift . Rodri- guez was not a supervisor within the meaning of Section 2(11) of the Act and voted without objection in the June 15, 1984 representation election conducted by the Board. On a daily basis, at the start of the second shift, Bowers gave the second shift's work orders to Rodri- guez who assigned the work to the employees , directed the employees in their work, checked to see if their work was satisfactory, repaired machinery which broke down, initialed employees' timecards and, when the shift ended at 12 midnight, Rodriguez, who had the keys to the plant, was responsible for being sure that everyone left the plant and that it was locked. When Plant Manager Bowers left the plant for the day during the time material herein , usually at approximately 7 p.m., Rodriguez was.left in charge of the second-shift employees for the remaining 5 hours of work . In carry- ing out his duties, he was in contact with Bowers via telephone . several times during the evening . Rodriguez testified that when Bowers was absent from the plant, Rodriguez was Bowers' "representative in the plant," that Bowers would. tell Rodriguez what the employees were expected to' do and that Rodriguez would relay Bowers' messages to the employees and, if any problems occurred when Bowers was - not present, Rodriguez would telephone Bowers °at home. As Bowers phrased it, "I expected him [Rodriguez], if we had problems to tell me," that Rodriguez was expected to "keep track of things" 'in the plant for Bowers when Bowers was not there. ' Bowers, Rodriguez, and the second-shift employees all regarded Rodriguez as being in charge of the second- shfit employees when Bowers was not there , and the em- ployees' were' told Rodriguez was in charge. Bowers tes- tified about his 'relationship with Rodriguez as follows: Rodriguez acted as a "conduit between" Bowers and the second-shift employees; "[Rodriguez] was in between myself and the people in ' the plant when I was not there"; "in other words, he was [my] voice when [I] was not there." Rodriguez, while testifying, described his job as they second-shift leadman as being "in charge to' [sic] the company," and further testified when Bowers was not present ,that Rodnguez acted as Bowers' "representa- tive in the plant." , :;Regarding the May,,2,,1984 layoffs of the second-shift employees, Bowers, who was _ not present in the plant when,the second shift was laid off, did not notify the second-shift - employees that they. were being laid off. Rather; it was,, Rodriguez who, in.: the middle of the second shift, directed - the ' workers to stop work and leave the plant because, he told them, they had been laid off. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Legality of Rodriguez' Conduct As found supra second-shift leadman Joe Rodriguez engaged in the, following conduct-. Late in April 1984, Rodriguez told several second-shift employees that Plant Manager Bowers stated that if the employees supported the Union, Respondent would "fix" the "undocumented" workers employed by Respondent by calling 'Immigra- tion" and would close the plant; late in April 1984, Ro- driguez questioned second-shift employee 'Gustavo' Lopez on more than one occasion about whether he signed a union card and whether four other employees, whom Rodriguez named, also signed cards; 1 ' week after the May 2, 1984 layoffs, Rodriguez told Laid-off second- shift employee Alberto Perez that Perez could `not return' to work because Bowers stated that Perez' name was in- cluded among • a list of employees who signed union cards. The questions to be decided are whether' Rodri- guez' above-described conduct was attributable to Re- spondent, even though Rodriguez was not a statutory su- pervisor, and, if so, whether Rodriguez'- conduct may reasonably be said to have coerced the employees in the' exercise of their statutory right to support• the Union. I; am persuaded, for the, reasons set forth below; that, these questions must be answered in the affirmative. An employer is liable for unfair labor practices' com- mitted by an employee who acts as an- agent. of the em- ployer. Machinists' Local 35 v. NLRB, 311• U.S. 72,80-81 (1940). In determining whether an employee: is, acting, as an employer's agent with-,respect to improper ;conduct under the Act, the question of whether the specific. acts performed were actually authorized or subsequently rati-• feed is not controlling (Machinists Local- 35 v. NLRB, 311 U.S. at 80); rather, the general rules of agency,, and par- ticularly the rules of apparent authority, are. applicable. NLRB v. Bel-Air Mart Inc., 497 F.2d 322, 324 (4th Cir. 1974); NLRB v. Johnson Sheet Metal Inc., .442 F.2d 1056, 1060 (10th. Cir. 1971). It is settled that "to establish that an agent had appar ent authority.to bind its' pnncipal, ' it must be'shown that the principal, knowingly permitted ,he agent, to exercise the authority in question, or in some manner manifested' its consent that such authority be ' exercised." ' V' avelers Insurance Co. v. Morrow, 645-F.2d 41, 45 (10th-Cir. 1981). See also Mechanical Engineers v. Hydrolevel, Corp.,, 456 U.S. 556, 566 fn. 5 (1982), where, quoting with approval' from 'the Restatement of Agency, the ' Supreme Court stated" that apparent authority is the power , to ' ;affect the legal relations of, another person by: transactions with third persons, professedly as agent for, the other,. arising from and in accordance with the"'other' s manifestations to such third persons." And, as the Ninth Circuit `Court of Appeals: in NLRB'k k ,Donken's• Inn, 532 ' F:2d' 138, •`141- (197,6), has stated: The principal's manifestations giving, rise' to appar- ent authority may consist of 'direct statements -to the third ;person, directions to''the- agent-'to"tell 'some= thing to the third person, or the, gi•anting of,; eririis= sion to the agent to perform acts under circum- stances which; create in him .reputation of.-;authority in the area which the agent acts . . . . _ = ^ + _ --: Consistent with the above-described - principles of agency; the Board has long held that where an employer- places a rank-and-file employee in a position where em- ployees could reasonably believe that the employee spoke on behalf of management, the employer has vested the employee with apparent authority to act as the em- ployer's agent, and the employee's actions 'are attributa- ble to the employer. Helena Laboratories v. NLRB, 557 F.2d 1183, 1187 (5th'Cir. 1977); NLRB v. Solboro Mills' Inc., 572 F.2d 936, 941 (2d Cir. 1978); NLRB v. Broyhill Co., 514 F.2d 655, 657 (8th Cir. 1975). Here, I am per- suaded that the record 'establishes Respondent placed Rodriguez in a position where the employees on the second shift could reasonably believe that when Rodn- guez, as described in detail supra, spoke to them about the Union and interrogated them, he was speaking on behalf of management - - First, I note.-that this is not the usual case of a leadman who, acting as a conduit between management and the employees, routinely assigns, directs, and checks the em- ployees' work., Rather, second-shift- leadman Rodriguez' assigned, directed, and checked the second-shift employ-. ees' work in the context of being the highest, ranking member of "supervision" in the plant,-inasmuch as Plant Manager Bowers usually left the plant at 7 p.m., thus leaving Rodriguez responsible for the'management-of the second shift during the 5 hours remaining on: that shift. Respondent placed Rodriguez in a position where he was viewed by everyone involved-Plant Manager Bowers, Rodriguez, and the employees themselves-as being Re- spondent's representative in charge, of the second shift, who, in that capacity, served as Bowers' voice, eyes, and ears. Thus, Rodriguez testified that he was Bowers'' "rep- resentative in the plant" and was "in charge [of] the company.'" Bowers testified that Rodriguez. acted as a "conduit", between -Bowers and the employees and. fur- ther testified,that `[Rodriguez] was [my] voice when [I] was not there." Each-of the second-shift employees, who was - questioned : about . Rodriguez' position -,Lopez, Perez, Flores,,, and ., Barrett-testified -that--.he-was "in charge"• of. the. shift. Also, the, record- reveals that second-shift employees were informed by Plant Manager Bowers -that. Rodriguez was in charge of the shift.- More- over,-it was Rodriguez rather than Bowers who notified the second=shift -workers that they had been laid off and should • stop, work and leave the plant. I- also note that Rodriguez' conduct, described supra, paralleled in sub- stantial part the -same antiunion activities engaged in by Plant Manager- Bowers. Thus, Rodriguez'. interrogation of 'employee' Lopez was similar in substance to Bowers' interrogation of 'employees Martinez and Jesus: Rodri= guez and took place during-the same time period. Like- wise; Rodriguez' comment that -Plant Manager Bowers told him Respondent would close the plant if the em- ployees. supported the .Union- was identical in -'substance to. Bowers' -threat to, close the, plant made to•employees Martinez and - Childress during the same time period. Also, Rodriguez' postlayoff statement to laid-off employ- ee Alberto Perez, that Perez could not return to work because, Bowers had' stated Perez'.,name was included among a list of employees who signed union' cards, was . CORRUGATED PARTITIONS WEST - ' 901 similar in substance to Bowers' postlayoff illegal state- ment to laid-off employee Martinez which implied that Martinez would never be reemployed because of Bowers' belief that Martinez was responsible for the Union's organizational campaign. - I . It is therefore apparent that, Respondent placed Rodri- guez in a status visibly -superior to that of the other second-shift employees. -Respondent designated Rodri- guez to act as its representative in charge of the second shift during the 5 hours each day that Plant Manager Bowers was absent. During this period Rodriguez was the highest ranking company representative in the plant. In this status, among other things, Rodriguez, with the knowledge of the second-shift employees, served as, a conduit from Plant Manager -Bowers to the employees with respect to such important employment matters as job assignments and layoffs and generally served as Bowers' voice, eyes, and ears. Moreover, Rodriguez' conduct at issue in this case was in substantial part simi- lar to the illegal and antiunion conduct engaged in by Bowers and took place during the same period of time. The foregoing circumstances, when considered in their totality, persuade me that the General Counsel has estab- lished that the employees on the second shift could rea-' sonably believe that when Rodriguez spoke to them, as described supra, he was speaking on behalf of manage-, ment as its agent.17 Speed Mail Service, 251 NLRB 476, 476-477 (1980); Injected Rubber Products Corp., 258 NLRB 687, 692-693 (1981); Helena Laboratories Corp. v. NLRB, 557 F.2d 1183, 1187 (5th Cir. 1977). According- ly, the remaining question to be decided is whether Ro- driguez' conduct constitutes the type of conduct which, it may reasonably be said, tends to coerce employees from freely, exercising their statutory -right to support the Union. • - - ' - I am of the opinion that when, during the last week of April 1984, Rodriguez told several second-shift employ- ees that Plant Manager Bowers stated if the -employees supported the Union, Respondent would "fix" the Com- pany's "undocumented" employees by calling the Immi- gration and Naturalization Service 'and would close the plant and, when Rodriguez, a 'week after they May 2, 1985 layoff of•the second shift, told -laid-off second-shift employee Alberto Perez that Perez could 'not - return to work because Plant Manager Bowers had stated Perez', name was included among a list of.employees' names who signed union cards, Rodriguez, as Respondent's 17 The complaint in this case was amended ni oider'to include the alit' gations pertaining to the illegal -conduct engaged m'by Rodriguez and to further allege that Rodriguez was an agent of Respondent In its answer, to the amended complaint, Respondent admitted that during the, time ma- tenal Rodriguez was an agent of Respondent within 'the meaning of Sec 2(2) and (13) of the Act' However„ after the hearing !opened and-the General Counsel was questioning his second witness, Respondent 's repre- sentative, when this admission , was.called to his attention, • moved to amend Respondent's answer to deny Rodriguez; agency status I granted this motion over the General Counsel's objection I'note 'that while a statement in a party's pleading is an admission which' is binding on the party making' the admission,. it is also well established : that - when ari amended pleading is filed, the admission loses its binding effect and is subjected to explanation and rebuttal by the party making the admission D A Collins Refractories, 272 NLRB 931 (1984) Here Respondent's rep- resentative represented that the admission in Respondent 's answer that Rodriguez was an agent of Respondent was "a mistake " • -- -i agent, engaged in conduct which, it may, reasonably be said, tends to coerce employees from freely exercising their statutory right to support union organization. Likewise, I am persuaded by all of the circumstances set forth below that Rodriguez' repeated interrogation, during -the last' week of April 1984, of second-shift em- ployee Gustavo Lopez about whether Lopez and four of Lopez' fellow employees had signed union cards, was the type of conduct which, it may reasonably be said, tends to coerce Lopez from freely exercising the statuto- ry right to support union organization. Thus, the interro- gation cannot be characterized as a chance, spontaneous, casual, or isolated occurrence inasmuch as Rodriguez re- turned to Lopez' work station on more than one occa- sion within the space of a week and repeated this interro- gation . The interrogation was 'not phrased in terms of generalities, but was designed to learn if Lopez and four of. Lopez' fellow' employees, whose union sentiments were not a matter of public knowledge; had signed cards authorizing the Uniorf -to represent them. The nature of the interrogation did not -indicate to Lopez that it was being engaged in for a legitimate purpose and Lopez was not specifically informed that it was being engaged.in for any legitimate purpose.' No assurances against reprisal were given. Lastly, the- interrogation- took place in the context .of Respondent's hostility- toward union represen- tation which is evidenced by the illegal threats and inter- rogation, found supra; which Respondent was engaged in during the same period of time. t 8 - - Based - on 'the - foregoing, I_'find that Respondent, through Joe Rodriguez, violated Section 8(a)(1) of the Act by asking employee Gustavo Lopez whether Lopez and four of his fellow-employees signed union cards, by telling, laid-off employee Alberto Perez that Perez could not return to work because'Plant Manager Bowers stated that Perez' name was included among a list of employees who signed union cards, and , by telling employees 'that Plant Manager Bowers- statedthat if the employees sup- ported'the Union,' Respondent would "fix" the "undocu- mented" employees by' calling the Immigration and Nat- uralization, Service and 'would close the plant. IS In concluding , that Rodriguez' conduct here was reasonably calcu- lated to, coerce employees from exercising their statutory right to support the, Union's, organizational campaign, I have considered that Rodriguez voted without objection in the June 15, 1984 representation election con- ducted'by'the 'Boazd' In Montgomery Ward '& Co ,'I 15-NLRB 645 (1956), and its p'rogehy, the'Board ' held'that - an-employee who is normally an agent iof, a respondent-employer by virtue 'of- his.status as a statutory su- pervisor,,but,,who is -a member, of the bargaining unit and. is permitted to vote m a representation , election, is presumably, regarded by the other- em-ployees in:the voting unit as one of themselves -ratherahan as- a represent- ative of management `Thus, 'the respondent-em - p'loyer is not responsible for the antiunion conduct of such a supervisor "absent' evidence that the employer encouraged, authorized , or ratified the supervisor's activities or acted' in such - a:manner as to lead - the, employee's to reasonably -believe that the superyisor;was.acting on,'behal f• of, management Bennington Iron. Works, 267 NLRB -1285,-1286 (1983) In the instant case , as I have found supra, the. evidence ,establishes that Respondent acted iin such a manner as to lead its second -shift employees to reasonably believe that Rodriguez was acting for and on behalf of management when he engaged in his antiunion conduct See-Union Oil Co. of California, 258-NLRB 1373 fn 2 (1981) 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The Layoffs 1. Evidence On May 2 and 3,,1984, 13 of the 27 production, main- tenance, and truckdriver employees employed at Re- spondent's- Santa Fe Springs plant were laid off: Gale Barrett, Joe Contreras, Gabriel Durazo, Andres-Flores, Francisco Landa, Ismael Lomeli, Gustavo Lopez, Ramon Magallances, Gerardo Martinez, Alberto Perez, Leonard Rivera, Jesus 'Rodriguez, and Renato Valen- zuela: Five of these employees (Contreras; Durazo, Mar- tinez, Rivera, and Valenzuela) were employed on the first shift and the remaining eight on ,the second shift. All of the first-shift employees who were laid off except for Martinez were laid off Wednesday,' May, 2, 1984, at the conclusion of their shift.-Martinez was laid off on May 3, 1984, at the conclusion of the shift., The eight second- shift employees were laid off on • May 2, 1984, in the middle of the work shift. Rodriguez, the second-shift leadman who was in charge of the shift, explained to a group of the laid-off employees that they were being laid off due to a lack of work. Likewise, on May 3 Plant Manager Bowers explained to Martinez that he was being laid off due to a lack of work. The second shift was discontinued effective with the May 2, 1984 layoffs and the three second-shift employees who were not laid off (leadman Rodriguez, Rinel Viera, and Juan Delatorre) were transferred to the first shift. Respondent, following these layoffs, 'did not hire any employees until the last week in June 1984 when it also reinstituted the second 'shift. Initially the second shift, when it was reinstituted, employed approximately four or five employees. Late in June 1984, coinciding with the reinstitution of the second shift, and during the first half of July 1984, Respondent hired seven new produc- tion employees. Also, on June 27, 1984, Respondent re- employed one of the laid-off employees, Valenzuela, and on August 8, 1984, reemployed four more of'the laid-off employees: Lopez, Magallanes, Rivera, and either Landa or Lomeli. Regarding the remaining eight laid-off work- ers, two of them (Durazo and Flores) were asked to return to work during the second week in May 1984 be- cause Respondent needed someone to do 1 or 2 days of nonproduction work;19 four (Barrett, Martinez, Jesus Rodriguez, and -either Lomeli or Landa) were asked to return in August 1984; and the remaining two (Contreras and Perez) have never been asked to return to work. _ Gustavo Lopez, one of the laid-off employees from the second-shift, testified that on May 2, 1984, after having been laid off in the middle of the shift, testified that he returned to the plant at approximately 8:30 p.m. accom- panied by, laid-off employees Flores and Rodriguez. He further testified that from the outside of the plant, look- ing in through one of the windows, they observed first- shift employee Oscar Viera • at woik.' Neither Flores nor Rodriguez, witnesses for the General Counsel, corrobo- rated this testimony. Lopez ' testimonial demeanor was 19 Durazo was apparently never actually contacted by Respondent, rather, Plant Manager Bowers apparently , unsuccessfully toed to reach him by telephone on several separate occasions . , poor when he gave this testimony. It is for these reasons that I have rejected his above-described testimony. Earl Childress, Respondent's first-shift maintenance mechanic, testified that approximately 2 days before the May 2, 1984 layoffs Respondent's salesperson, Chuck Walzer, told Childress that Respondent was so busy it was having to turn down orders and that Plant Manager Bowers had- instructed Walzer that no orders were to be taken until after May 7 because they were too busy.20 Childress further testified that later the same day, or the next day, he went to where Walzer was talking with Bowers and, in response to Childress' inquiry, Walzer, in the presence of Bowers, repeated that Respondent was so busy it was 'turning orders away and that no further orders -were being accepted until after May 7, 1984. Chil- dress' demeanor was good when' he gave this testimony. Also,-neither Walzer, who did not testify, nor Bowers, who testified for Respondent, denied Childress' testimo- ny. I therefore have credited Childress' testimony. 2. Discussion and conclusions I am persuaded that the General Counsel has made a prima facie showing that a motivating factor in Respond- ent's decision to lay off employees on May 2-3, 1984, was Respondent's desire to discourage employee support for union representation. This conclusion is based on the following considerations. Respondent's contemporaneous unfair labor practices engaged in by the representative of management who made the decision to lay off the employees supports an inference of illegal -motivation. Immediately after Plant Manager Bowers learned of the Union's organizational campaign on April 23, 1984, the . day the. campaign began,-Bowers, the person who made the layoff decision, engaged in conduct which demonstrates that Respondent was not only adamantly opposed to- the Union's organi- zational campaign, but was willing to - defeat the cam- paign through the use of illegal means. As I have found supra, during the last 'week of April 1984, Bowers, in an effort to discover - the identity of the union adherents among the employees, violated Section 8(a)(1) of the Act by questioning employees about their union sympathies and activities and those of other employees. Also, in order to discourage the employees from supporting the Union, Bowers, during the same period of time, violated Section 8(a)(1)-by threatening employees with plant•clo- sure if. the Union's organizational campaign succeeded and threatened to discharge the employee who was re- sponsible for the Union's organizational campaign if he discovered this employee's - identity. Then, immediately 'after the layoffs, Bowers-further violated Section 8(a)(1) by implying to laid-off employee Martinez that'Martinez would - never. be reemployed because Bowers thought - zo I note that while the overtime being worked by Respondent's em- - ployees had decreased as the month of April progressed, during the week ending April 29, 1984, the last full week prior to the week prior to the week of the layoffs, all but five of the employees on Respondent's payroll worked overtime, more than 40 hours, and that of the five who did not work overtime it appears that one quit and another one began work during,the middle of the pay period Also I note that on Monday, April 30, of the 28 employees on Respondent's payroll, 14 worked overtime CORRUGATED PARTITIONS WEST that he was responsible for the Union 's organizational campaign. The timing of the 'layoffs,. coming hard on the heels of the commencement of the Union's organizational cam- paign, supports an inference- of illegal motivation. The layoffs occurred only 9 days after the Union commenced 'its organizational campaign. Also, Plant Manager Bowers made the layoff decision within a week after learning of the Union's campaign. Also significant is the fact that the layoffs occurred within 24 hours of the May 1, 1984 visit by the union organizers to the second shift where they succeeded in getting union authorization cards signed by a majority of the employees employed on that shift.2 i Also significant in evaluating Respondent's motivation in deciding to lay off the employees is the abruptness of. the layoffs. They 'occurred without prior notice to the employees, during the middle of the employees' work week and pay period, and the second-shift employees were laid off in the middle of their work shift when they were told abruptly to cease work and leave the plant. Additional evidence of-Respondent's illegal motivation is the failure of Respondent to recall any of the laid-off employees until after the June 15, 1984 representation election even though the shutdown of one of its custom- ers' furnaces which supposedly triggered the layoff was scheduled, as far as Respondent had been told, to last only 30 days.22 In this regard, I note that despite the ad- mitted temporary nature of the layoffs, Respondent's Ex- celsior list submitted to the Board in connection with the June 15, 1984 representation election did not include the names of any of the laid-off employees as eligible voters,23 and when during the 2- to 3-week penod fol- 2 i It is 'undisputed that second -shift leadman Joe Rodriguez was present during the second-shift lunch period on May 1, 1984, when the union organizers, as described in detail supra, succeeded in getting a ma- jonty of the second-shift workers to sign union cards I am persuaded that there is sufficient circumstantial evidence to warrant the inference that Rodrigues informed Plant Manager Bowers of the union organizers' visit that evening and of their success securing employees' signatures on union cards for, as, I have found supra, as Respondent's representative in charge of the second shift in Bowers' absence, Rodriguez, as part of his job duties, was expected to act as a "conduit between" the employees on the second shift and Bowers and to "keep track of things" and to inform Bowers of any "problems" which took place in Bowers' absence As a matter of fact, Rodriguez kept in constant communication with Bowers via the telephone about any problems which occurred in Bowers' ab- sence Moreover, it is clear that Bowers viewed the Union's organization- al campaign as a problem and was intent on trying to discover the identi- ty of the union adherents Likewise, it is undisputed that Rodriguez con- sidered the Union's organizational campaign as a "problem" for both himself and Respondent (see Rodriguez, Tr 425) Under these circum- stances, I am convinced that it is a fair inference , absent evidence to'the contrary, that Rodriguez promptly notified Bowers about the union orga- nizers' May 1, 1984 visit to his shift and their success , in getting employ- ees to sign union cards Injected Rubber Products Corp, 258 NLRB 687, 692-693 ( 1981) Neither Bowers nor Rodriguez testified that this was not the case 22 As described infra, Respondent takes the position that the layoffs were triggered by the loss of business from•one of its largest accounts, the Latchford Glass Company, due to the shutdown by Latchford of one of its furnaces for repairs Respondent's president and general manager Wyatt testified that at the' time of the layoff Respondent had been in- formed by Latchford that the furnace would be shut down' for 30 days and that Wyatt relayed this information to his subordinates 29 The election agreement entered into by Respondent in connection with the June 15, 1984 representation election provided , inter alia, that those employees eligible to vote would include unit employees employed during the payroll period ending May 20, 1984, "and also employees who 903 lowing the election Respondent reinstituted the, second shift and increased its complement of employees by hiring seven employees , all but one of them were new hires rather than laid-off employees.24 - Also, the fact that on two occasions within 2 days of the May 2, 1984 layoffs, once in the presence of Plant Manager Bowers, that Respondent 's salesperson, Chuck Walzer, told maintenance mechanic Childress that Bowers had instructed , him that no further orders would be taken until after May 7 because Respondent was 'too busy and that pursuant to this instruction Walzer was turning down orders, warrants an inference that Re- spondent's,'May 2 layoffs were discriminatorily motivat- ed. Lastly, a further indicia of Respondent's discriminato- ry intent is the undisputed fact that in laying off the em- ployees on May 2 , 1984, Respondent treated them differ- ently than had been the case prior to the Union's organi- zational campaign . Thus it is undisputed, as described in detail infra, that in January 1984, when Respondent pro- duced 12-percent fewer orders than it did in May 1984, not one worker was laid off. The above-described circumstances , in their totality, persuade me that the General Counsel has, by a prepon- derance of the evidence, made a prima facie showing suf- ficient to support the inference that a motivating factor in Respondent's decision to lay off the employees on May 2-3, 1984, was its desire to discourage its employees from supporting the Union's organizational campaign.25 Having found that the General Counsel has made a prima facie showing sufficient to support the inference that Respondent's desire to discourage its employees from supporting the Union was a motivating factor in its decision to lay off the employees herein, the burden shifts to Respondent to-demonstrate by • a preponderance of the evidence that the layoffs would have occurred absent the employees' union activities. 'Wright Line, 251 NLRB 1083 (1980). In this regard; the Board has specifi- cally' held that the burden shifted, to an employer under Wright Line , is' one of persuasion whereby the employer must , demonstrate by a preponderance of the evidence that the same action would have taken place even in the did not work during said payroll period because they were _ tempo- rarily laid off" 24' Plant Manager Bowers' explanation for hiring six new employees -during. the period immediately following the representation election, rather than reinstating laid-off employees, was, as he testified, "I honestly thought, personally, that the company was going to be in bad trouble if I called them all [referring to•the laid-off employees] back to work:' When asked to explain this answer, Bowers further testified , -If I were to call these people back to work at this time, five more of them, that would be like admitting that I'd doiiethem wrong " In my opinion,'this explanation reinforces theimference of discnminatory'motivation herein . 25 I note that' where, as -here, the General Counsel has made a puma 'facie showing that an- employer's decision to, institute a mass layoff was motivated . by a desire to discourage employee support fora union, it is unnecessary for the'General 'Counsel'to establish knowledge'of the union activities or sympathies-of each affected employee or that each one of the laid-off employees -had. actually supported the Union See MS P Indus- tries Y NLRB, 568 F 2d 166, 176 (10th Cir 1977), Majestic Molded Prod- ucts v NLRB, 330 F 2d 603, 606 (2d Cir 1964) See also NLRB Y Rich's Precision Foundry, 667 F 2d 613, 628 (7th Cir 1981), Merchants Truck Line Y NLRB, 577 F 2d 1011, 1016 (5th Cit. 1978), ,NLRB Y. Tesoro Pe- troleum Corp, 431 F 2d 95, 97 (9th Cir, • 1970) ` . ' 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence of the protected conduct. If an employer fails to satisfy its burden of persuasion, the General Counsel's prima facie case stands unrefuted and a violation of -the Act may be found. Roure Bertrand DuPont, Inc., 27-1 NLRB 443 (1984), citing NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983). I shall now set out and evaluate the evidence. presented by Respondent in support of its contention that its decision to lay off the employees herein was motivated entirely by legitimate business considerations.. Respondent presented evidence, Respondent's Exhibit 1, which shows that Respondent's sales of its partitions produced and shipped from its Santa Fe Springs plant from January 1984 through July 1984 were as follows:, January $ 95,630 February 164,685 March 157,515 April - 194,696 May 109,385 June- 117,752 July 137,768 John Wyatt, Respondent's president and general manag- er, testified that the "main" factor for the abrupt decline of sales in May 1984 from the previous 3 months was the shutdown for repairs of a furnace early in May 1984 by one of Respondent's customers, the Latchford Glass Company, which caused Latchford Glass to- cease pur- chasing Respondent's partitions.26 President Wyatt further testified it was sometime in January 1984 or February 1984 that he was first notified by a representative of Latchford Glass, its director of purchasing, Robert Todd,,that late in March 1984 Latch- ford Glass intended to shut down one of its furnaces for repairs for 30 , days, 2 7 and that in anticipation of this shutdown intended to build up its current inventory'of glassware substantially. Todd asked whether Respondent would be in a_ position to meet Latchford Glass' in- creased demand for Respondent's partitions. Wyatt an- swered in the affirmative. Subsequently, in March 1984, according to Wyatt's testimony, Todd told Wyatt that the shutdown would be delayed until approximately May 1, 1984, and told Wyatt that in the meantime Latchford Glass intended to order an increased number 'of parti- tions for its inventory.28 President Wyatt and Plant Manager Bowers testified, as indicated by Latchford Glass' director of purchasing Todd, that, starting- in February 1984, Latchford Glass substantially increased its orders from Respondent. Bowers also testified that during the time material herein Respondent's shipments of partitions to Latchford Glass constituted between 50 percent and 60 'percent of Re- 26 Wyatt failed to identify any other factor other than the "main" one which caused Respondent's decline in sales , , • - i 27 Wyatt testified that he relayed Todd's information that Latchford Glass' furnace would be shut down for 30 days to his subordinates How- ever, Plant Manager Bowers, as indicated infra, testified that Wyatt in- formed him the shutdown would last from between 30 to 60 days 28 I note, for the sake of accuracy, that virtually all of the partitions shipped to - Latchford Glass during the time material herein were- the result of orders placed with Respondent by a third company, Container Corporation, to be shipped by Respondent to Latchford Glass spondent's total business. Thus, it is not surprising that Respondent's sales for the month of February 1984 through April 1984, as described supra, drastically in- creased in comparison to its sales in January 1984. As a matter of fact, by April 1984, as noted supra,. Respond- ent's sales more than doubled from January-1984 and the record also 'shows that during the pay 'period ending April 1 through the pay 'period ending April 29, 1984, Respondent's-work force worked substantial amounts of overtime hours in order presumably' to produce the parti- tions necessary to fulfill Latchford Glass' increased re- quirements.29 Plant Manager Bowers testified that in approximately February. 1984'President Wyatt 'told him that-Latchford Glass would be shutting down one of its furnaces for re- pairs' for anywhere from 30-to - 60 days and that during the period of the shutdown there would be a big reduc- tion in Respondent's business unless Respondent succeed- ed in replacing the loss of Latchford Glass', business with other business. According to Bowers, Wyatt stated that he intended to try his hardest to get additional business so a layoff of employees would not be necessary. There- after, approximately 2 weeks before the May 2, 1984 lay- -offs, Bowers testified that he was told by...the salesperson at Respondent's Santa Fe Springs plant, Chuck Walzer, that Respondent had received its last orders from' the Latchford Glass Company.30 Since Respondent did not succeed in getting additional business to replace the Latchford Glass business Respondent would lose during the shutdown of its furnace for repairs, Bowers testified that 3 to 5 days prior to the May 2, 1984 layoffs he noti- fied his supervisor, Respondent's operations manager Reynolds, that since Respondent had received its last order from Latchford Glass, when these orders were fin- ished Respondent would be short of work for its employ- ees and, in view of this situation, Bowers intended to lay off employees in a few days. Reynolds, according to Bowers, agreed with this course'of action and, in an an- ticipation of the layoff, reviewed with Bowers the work performance and employment history of the several workers employed at the Santa Fe Springs facility. Bowers testified that the delay in laying off the em- ployees from the date of the decision, 3 to 5 days before the May 2, 1984 layoffs, and the reason the second-shift employees were abruptly. laid off, in the middle of their work shift, resulted from the fact that the layoffs ' were implemented when the employees completed their work on orders which had been promised for delivery. Wyatt and Bowers testified that the layoffs herein were the first layoffs at the Santa Fe Springs plant since 29 I note, however, that the amount of overtime worked decreased as April 1984,progressed Thus, the employees' timecards in evidence reveal that for the pay period ending April 1, 1984, Respondent's work force ,worked 1591 hours, pay period ending April 8, 1984, 1523-hours, pay ,period ending April 15, 1984, 1484 hours, pay period ending April 22, 1984, 1464 hours, and pay period ending April 29, 1984, 1246 hours 30 I note the General Counsel', witness Earl Childress testified that late in April 1984 he overheard Bowers-telling Walzer that one of Re- spondent's customers was going to shut down a blast furnace that pro- duced glassware and that as a result this customer would not have as much of a demand for Respondent's partitions while the furnace was out of service - CORRUGATED PARTITIONS WEST Respondent began to operate it in June 1981. Bowers further testified that his only action resembling a layoff took place during periods when work was slow for a couple of days due to a temporary shortage of raw mate- rials, which Bowers- knew would last only for a 'few days, and that Bowers on these occasions, rather than lay off employees, asked them voluntarily to take a couple of days off. Lastly, Bowers testified that the complement of em- ployees employed at Respondent's Santa Fe Springs plant during 1984, before the May 2, 1984 layoffs, re- mained "stable." I note that this period includes January 1984; the month before Latchford Glass drastically in- creased its orders of partitions from Respondent, when Respondent's sales were the lowest for 1984, even lower than its May 1984 sales. Respondent did not present evi- dence-to explain why layoffs did not take place in Janu- ary `1984. As described supra, in order to prove that its decision to lay - off the employees was motivated by legitimate economic considerations and would have been made absent the employees' union activities, Respondent pre- sented the testimony of President- Wyatt, Plant Manager Bowers, and the record of its Santa Fe Springs plant's monthly sales to customers during the first 7 months of 1984. I am of the view, for the reasons set forth, that this evidence is not sufficient to satisfy Respondent's burden of persuasion that the decision to lay off the employees would have been made in the absence of the employees' union activities. _ In evaluating the iegitimacy behind Respondent's layoff decision, -President Wyatt's testimony does not help Respondent because Wyatt did not play a role in this decision. Although Plant Manager Bowers first testi- fied that the layoff decision was jointly made by himself, Wyatt, and Reynolds, Bowers subsequently testified re- peatedly and emphatically that the decision was his (Tr. 326, 337-338). Also, Wyatt testified that in effect he played no part in the decision to lay off the employees. He testified that Respondent's "local people," referring to Plant Manager Bowers, are responsible for deciding whether employees should be laid off due to a lack of orders inasmuch as, he testified, it is the "local people" who are familiar with the plant's orders and manpower (Tr. 475-476). As a matter of fact, Wyatt, as he testified, learned of the decision to lay off the employees and to eliminate the second shift only after the decision was made and already implemented (Tr. 471-473).31 - Plant Manager Bowers' testimony concerning his moti- vation for deciding to lay off the employees and about the events leading up to his decision to lay off the em- ployees is not credible. First, Bowers' testimonial de- 31 I recognize that Wyatt testified that he was not surprised to learn of the May '2, 1984 layoffs and further testified that "in this case we knew ahead of time that there would be a layoff " However he failed to put any flesh and blood onto these conclustonary declarations by being more specific Likewise, nowhere in Wyatt's testimony is there any indication that he played a part in the plant manager's decision to lay off the em- ployees When viewed most favorably to Respondent, Wyatt's testimony, albeit ambiguous, seems to be that he had a discussion with Operations Manager Reynolds before- the layoffs about the instructions which Reyn- olds should issue to Bowers for the operation of the plant , if Bowers de- cided that it was necessary to lay off employees - 905 meanor was poor. Second, Bowers testified in a vague and evasive fashion. His testimony was-punctuated with these and similar phrases: "I would say," . "I would think," "I'm going to say," "I 'mm guessing," "I'm assum- ing," "I think," "Probably something was said," and "I probably told him." My observation of Bowers left me with the impression that his vagueness and evasiveness -were not the result of personal habit nor-the product of a memory dulled by -the passage of time, but resulted from the fact that he was not telling the truth .3 z Third, in cer- tain significant respects Bowers' testimony was contra- dicted by Wyatt's testimony and was internally inconsist- ent. Wyatt testified that he notified his subordinates that one of the Latchford Glass Company's furnaces would be shut down for repairs for a period of 30 days, where- as Bowers testified that Wyatt told him that the furnace would be shut down for repairs for anywhere from 30 to 60 days. Bowers first testified that the decision to lay off the employees was a joint one made by himself, Wyatt, and Reynolds; whereas he later inconsistently testified repeatedly and emphatically that he was the person who made this decision. Bowers initially also testified that it was Operations Manager Reynolds who dictated to Bowers the time of the layoff and the number of employ- ees that Bowers- should lay off (Tr. 335, LL. 21-22, and 336, LL. 21-24), but later inconsistently testified that he, Bowers, was the person who made, these decisions.33 Respondent's monthly sales records for the first 7 months of 1984, which show a• drastic reduction in sales for May 1984, in comparison with February 1984 through April 1984, do not, in the -circumstances of this case, warrant the inference that Respondent, during the normal course of business, absent the employees' union activities, would have decided to lay off the employees herein. Thus, Respondent's monthly sales records, which coincide with the- plant's monthly production, also estab- lish Respondent's production for January 1984 was sub- stantially less than its production for May 1984; yet,,as I have found supra, it is undisputed that not one employee 32 I note that even though certain significant parts of Bowers ' testimo- ny pertaining to his decision to lay off the employees could have been corroborated by Respondent's salesperson Chuck Walzer and its Operat- ing Manager Reynolds, neither was called to testify 33 Illustrative of Bowers' inconsistent testimony and his tendency to testify in a vague and evasive fashion is the following When asked how long it was before the May 2 layoffs that he received confirmation that Latchford Glass Company was, in fact , going to shut down one of its furnaces, Bowers initially testified , "I can only guess , I'm going to say April, maybe even March " Then later , in response to the same question, Bowers inconsistently testified, "I'm going to say approximately two weeks" before the May 2 layoffs (Tr 322-324) And when this question was posed to him a third time , Bowers now testified , "The date was never really set, I don't think," and further testified that he, never re- ceived notification that Latchford Glass Company was, in fact, closing one of its furnaces Rather, he-testified that "it was a,rumor as far as I was concerned " Continuing, he testified that "the only thing that I re- member about this [referring to the date on which it was confirmed to him that Latchford Glass had shut down a furnace] is that the office re- layed the message to me that when you run these orders out, we will not have any more orders for Latchford Glass" (Tr 324) When asked when this message was'relayed to him, Bowers testified , "that's when I say about approximately • two-give or take, two weeks before the layoff' (Tr 324) And when asked who from the office gave him this message, Bowers, with a lack of,conviction , testified that "I believe it was Chuck Walzer " 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was laid off in January 1984 even though Respondent during that period employed the same complement. of employees, including a second shift, as. were employed immediately prior to the May 2, 1984 layoffs.34 Re- spondent failed. to present evidence to explain why it treated its employees differently in May 1984 than in January 1984.' Respondent also failed to explain why almost simultaneously with Bowers' decision to lay off the employees, - Respondent's salesperson Walzer, in Bowers' presence, =stated -that Respondent was turning away customers' orders because it was so busy and no future orders were being accepted until after May 7.35 These are the reasons why I have concluded that Re- spondent's drastic drop in sales in May 1984, in compari- son to its sales for the previous 3-months, fails to estab- lish. that Respondent would have decided to lay off its employees absent the employees' union activities. It is for the foregoing reasons that. 1 am persuaded that Respondent has failed to demonstrate by a preponder- ance of the evidence that it would have decided to lay off the employees ,in the absence of the employees' union activities.36 Consequently, I find that in the circum- 34 I note that, as described in detail supra, the drastic increase in Re- spondent's sales which began in February 1984 and lasted from February 1984 through April .1984 was the result of an unusual situation where one of Respondent's principal customers during this 3-month period increased its purchases of Respondent's'product by a•substantial amount in order to build up its inventory Under these circumstances, absent evidence to the contrary, it is a fair inference that Respondent 's sales for the month or months immediately preceding January 1984 were comparable to its Jan- 'uary 1984 sales and that the sales figure for January 1984 was not an iso- lated occurrence Respondent did not present evidence of the amount of its sales for the months immediately preceding January 1984 - 35 As I have•indicated supra, neither Walzer nor Bowers disputed that this conduct occurred. I also note that Bowers in effect testified that it was Walzer who triggered his decision to lay off the employees when Walzer informed -him that no new orders for shipment to Latchford Glass Company had been received 38 In reaching this conclusion , I considered the undenied testimony of Bowers that in February or March 1984, in answer to employee Barrett's inquiry'aliout the reason for all of the overtime work,'Bowers told Bar- rett the reason the employees were working overtime was that one of Respondent's customers anticipated shutting down one of its furnaces, and also explained to Barrett that when in fact the customer shut down its furnace, "there will probably be a cut-back in our operation " Barrett, an alleged discnminatee who testified for the General Counsel, did not deny this conversation ' But, as I have indicated supra, Bowers, on ac- count of his -poor demeanor, did not impress me as being a reliable or truthful witness Moreover, this ambiguous statement-"there will prob- ably be a cut-back in our - operation"-when viewed in its context, Bowers' answer to Barrett's inquiry concerning the reason for the em- ployeei' overtime, may be reasonably construed as a statement -to the effect that Respondent intended to cut back its operation by eliminating -the employees' overtime work when Latchford Glass Company shut down- its furnace for repairs Likewise, I have considered Barrett's testi- mony that in April 1984 either leadman Rodriguez or an employee named ' "Roland" told her that when Latchford-Glass Company shut d6wn ' its'furnace for repairs,-employees would either be laid off or would -not have,any-work because business would be slow This statement was not made by,Rodnguez, who testified that he did not speak to the em- ployees about this, matter, and further testified that it was "Roland," a rank-aiid-file employee, who seemed to be familiar with the situation in- .• volving 'Latchford Glass Company, who spoke to employees about that matter--(Tr: 1432, L. 19-25) Indeed Rodriguez testified, to the effect that Plant Manager Bowers did not tell him that employees would be laid off when Latchford Glass : Company shut down . its furnace for repairs, rather, Rodriguez testified that when he and Bowers discussed the even- tual shutdown of the Latchford Glass Company's furnace, Bowers simply told him when that event occurred "we were going to be slow " (Tr 432, LL. 13-18) stances of this case Respondent has failed to satisfy its burden under Wright Line. -Based on the foregoing, I find that the General Coun- sel has proven by a preponderance of- the evidence that, in laying off the employees employed at its Santa Fe Springs plant on May 2 and 3, 1984, Respondent.was motivated by a desire to discourage its employees em- ployed at that plant from supporting the Union's organi- zational campaign. 37 I further find that by engaging in this conduct Respondent violated Section 8(a)(1) and (3) of the Act. On the basis of the foregoing findings of fact and the entire record, I make the following CONCLUSIONS OF LAW 1. The Respondent, Corrugated Partitions West, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. ,The Union, Graphic Communications Union, Dis- trict Council No. 2, is a labor organization within the meaning of Section 2(5) of the Act. - 3. By threatening employees that if the-Union's organi- zational campaign succeeded Respondent would close the plant, Respondent violated Section 8(a)(1) of the Act. 4. By questioning an employee about the identity of the employee responsible for the Union's organizational campaign and by threatening to discharge the employee who was responsible for the Union's organizational cam- paign if Respondent discovered that 'employee's identity, Respondent violated Section 8(a)(1) of the Act. 5, By asking an employee to identify the employees who signed union authorization cards and by asking the employee to give this information to Respondent if he eventually discovered who signed the union, authoriza- tion cards, Respondent violated Section 8(a)(1) of the Act. 6. By asking an employee whether he intended to join the Union, Respondent violated Section 8(a)(1) of the Act. 7. -By implying to a laid-off employee that the employ- ee would never be recalled to work by Respondent be- cause Respondent believed that the employee was re- sponsible for the Union's organizational campaign, Re- spondent violated Section 8(a)(1) of the Act. 8., By telling employees that if they supported. the Union, Respondent would call the Immigration and Nat- uralization Service to the plant to investigate the undoc- umented workers and would close the plant, Respondent violated Section 8(a)(1) of the Act. . 9. By asking an employee if he signed a union authori- zation card and whether other employees signed union authorization cards, Respondent violated Section 8(a)(1) - of the Act. 10. By telling a laid-off employee that he was not eligi- ble to be recalled to work because his name was includ- 37 In view of this conclusion, I-have not considered the General Coun- sel's further contentions that; even if the decision to lay off the employ- ees was motivated by legitimate economic considerations, employees Bar- rett, Flores, Martinez, and Perez were selected for layoff because of their union activities and that Respondent refused to recall Perez because of his union activities CORRUGATED PARTITIONS WEST ed among a list of employees' names who signed union authorization cards, Respondent violated Section 8(a)(1) of the Act. 11. By laying off the employees named below for the purpose of discouraging Respondent's employees from supporting the Union, Respondent violated Section 8(a)(1) and (3) of the Act: Gale Barrett Ramon Magallanes Joe Contreras Gerardo Martinez Gabriel Durazo Alberto Perez Andres Flores Leonard Rivera Francisco Landa Jesus a/k/a Jesse Rodriguez Ismael Lomeli Renato Valenzuela Gustavo Lopez 12 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (3) of the Act by laying off the 13 employees named in paragraph 11•of the Conclusions of Law, supra, I sliall recommend that Respondent offer to each of these em- ployees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially -equivalent positions of employment without prejudice to their seniority or other rights and privileges, and pay them for loss of earnings suffered by reason of their ille- gal layoff. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner set forth in Florida Steel Corp., -231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). As I have noted, supra,- several of the illegally laid-off discriminatees returned to work for Respondent, and. others who did not return to work for Respondent were offered reinstatement by Respondent. The question of whether this conduct satisfied Respondent's obligation to comply with the above-described recommended remedial order was not litigated in- most cases.- Accordingly, except in the cases of discriminatees Andres Flores, Jesus Rodriguez, Gerardo Martinez, and Gale Barrett, any dis- putes concerning this question are left for the compliance stage of this proceeding. In the case of- Flores, Rodri- guez, Martinez, and Barrett, the circumstances. surround- ing Respondent's offers of reinstatement were fully liti- gated. The evidence pertinent to an evaluation of-Re- spondent's offers of reinstatement in those cases is set forth and discussed immediately below. Andres Flores - Flores was employed as a machine- operator on the second shift. It is undisputed that the, week of the layoffs, after the layoffs, or early the next week, Flores returned to the plant to get his paycheck. Bowers testified that on 907 the day Flores came into the plant for his paycheck, Re- spondent had 1 or 2 days of temporary cleanup work for him and, in connection with this work, Bowers asked Flores, "Are you willing to come back to work for us if we need you?" and that Flores answered, "No, I'm going back to Mexico" (Tr. 293, LL. 2-5).38 Flores testi- fied that he was never notified by Bowers that work was available for him nor did Bowers ever ask him to return to work, and he further testified that he never told Bowers that he could not work because he was going to Mexico. Assuming, arguendo, that Bowers' testimony is credi- ble, I am of the view that his above-described conduct did not satisfy Respondent's obligation to offer Flores immediate and full reinstatement to his former job or, if that job, no longer existed, to a substantially equivalent position. First, the question Bowers asked Flores-"Are you willing to come back to work for us if we need you?"-did not constitute an unequivocal offer of rein- statement. Second, the 1 or 2 days of temporary cleanup work which Bowers had in mind for Flores did not con- stitute reinstatement to his former job and was not rein- statement to a job which was substantially equivalent to his former job. In any event, I reject Bowers' testimony because of his poor demeanor and credit the testimony of Flores, whose testimonial demeanor was good, that he was not offered reemployment by Bowers and did not tell Bowers that he could ' not work for Respondent be- cause he was going to Mexico. Gale Barrett Barrett, who was employed by Respondent since Sep- tember 1983, was employed at the time of her layoff on the second shift as a machine operator. About August 9, 1984, Barrett received a letter from Respondent dated August 8, 1984, which read as follows- [Respondent] is beginning to rehire qualified laid-off employees from its work force of April 1984. Your employment record with the company shows a his- tory of tardiness, absenteeism and low production performance; however, we will consider your reem- ployment with our firm on a qualification or proba- tionary status, subject to your proving yourself ca- pable of performing all of the requirements of your job. If you decide to be considered for recall from layoff under these terms and conditions, call this office by 12pm Friday August 10th. Barrett testified that in response to this letter she took the letter and _ visited the plant where 'she told Bowers that she did not like the letter, that the statement con- cerning her low-production was not.true, and that when she first began working for Respondent she - had told Bowers that she would be'. tardy. Bowers responded by asking her to return to, work,on the first shift and, in this respect, advised, Barrett that, since Respondent had 38 A "termination slip" in Flores' personnel file maintained by Re- spondent,which was made out and signed by Bowers states that Flores was "asked to return to work on 5/8/84 He said he was going to Mexico and would have to quit " . 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changed the machines, she would be retrained to operate her machine on the first shift and after the training period would be moved to the second shift. Barrett re- plied by stating that she wanted to return to work on the second shift because that -was where she was working when she was laid off and wanted to be brought back as a "whole person." Bowers, on the other hand, testified that Barrett told him, "I really cannot accept this job" because "she was in a training program with the unem- ployment bureau to-become a carpenter." Bowers further testified that Barrett also asked him why she was being reinstated to the first, rather than the second shift, where she had previously worked, and that Bowers,told her that the machinery in the plant was now fully automat- ed, whereas before it, was semi-automatic so that she would be trained in the first shift to operate the new equipment Without resolving the conflict in Bowers' and Barrett's testimony,39 I am persuaded that Bowers' offer of rein- statement to Barrett, which admittedly was conditioned upon Barrett's acceptance of reemployment as a proba- tionary employee until she.proved herself capable of per- forming all of the requirements of her job, was not an offer of reinstatement to Barrett's former position or to one substantially equivalent to her former position, inas- much as at the time of her layoff it is undisputed that Barrett's status as an employee, who had been employed by Respondent for approximately 8 months, was not that of a probationary employee. Jesus Rodriguez Rodriguez. was a forklift driver employed on the second shift. It is undisputed that about August 20, 1984, Bowers telephoned Rodriguez. and told him there was a job available for him on the first shift and asked whether he wanted to return to work the. next day .at 6:30 a.m., the start of, the first shift. Rodriguez answered in the af- firmative. However, the next day Rodriguez did not arrive at work as scheduled because during the evening of August 20, 1984, .his brother, -who does not drive an automobile or speak English,, asked Rodriguez to drive him to court the next morning and act as his interpreter in connection with his court appearance. The next morn- ing Rodriguez telephoned Respondent's office and, fol- lowing the usual procedure used by employees who know they will be late-for work, told the person in the office to advise Bowers that he would be late for work that day. Rodriguez testified that when he eventually ar- rived at work on August 21, 1984, at approximately noontime, Bowers told him-that because he did not show up •for 'work at the 6:30 a.m. starting time, Bowers con- sidered - Rodriguez ias having - quit his - employment. Bowers, on the other hand, testified Rodriguez did not report .for work until 2 or 3 days after the day he was scheduled to report for work, and that when he did report for work at midmorning, Bowers. told him there was no work available for him and terminated his em- ployment. • 39 I note, however, that when Barrett-testified about the circumstances surrounding her offer of reinstatement, her testimonial demeanor was good, whereas Bowers' testimonial demeanor was poor Without resolving the conflict in Rodriguez' and Bowers' testimony,40 I am persuaded that even if Bowers' version is credible, the first-shift position he of- fered to Rodriguez was not reinstatement to his former position or to one substantially equivalent, for it consti- tuted a substantial change in working conditions inas- much as Rodriguez had been employed on the second' shift. Thus, as the Board observed in a similar situation, the "reinstatement offers, if accepted, would have forced the returning strikers to make substantial changes in their lifestyles, i.e., eating and sleeping habits, etc." Providence Medical Center, 243 NLRB 714, 739 (1979). Accordingly, Respondent's August 20, 1984 offer of reinstatement to Rodriguez did not satisfy its obligation to offer him his former position or one substantially . equivalent if his former position no longer existed. - Gerardo Martinez On Thursday, August 9, 1984, Martinez, who at the time - of the layoff was employed on the first shift, re- ceived a letter from Respondent dated August 8, 1984, and read as follows: - [Respondent] is beginning to rehire qualified laid-off employees from its work force of April 1984. Our records indicate that you. voluntarily quit employ- ment on May 3, 1984. If this is in error and you are available for employment at this time, report to work at 6:30am on Friday, August 10, 1984. If you fail to report to work at this time, we will remove your name from our inactive files It is undisputed that immediately upon receipt of this letter Martinez telephoned Bowers. There is a dispute about what was stated during their conversation. Marti- nez testified that he told Bowers he did not intend to show up for work the next day as required by Respond- ent's letter, that he had another job which paid him more than he had been earning at Respondent, asked ' whether Bowers would pay him what he was earning at his new fob, and told Bowers he needed some time to think the situation over and needed at least a week to give his new employer notice he was quitting.4 t According to Marti- nez, Bowers responded by stating that he would indicate in' Respondent's files that Martinez had quit his employ- ment with Respondent. Bowers, on the other hand, testi- fied that when Martinez telephoned him on August 9, 1984, Martinez "just indicated that he would not be re- turning to work for our company" and that -Martinez ex- plained to Bowers that "he could not accept employment with our company unless the pay scale was considerably higher than it was when he left." Since Martinez' testi- 40 I note, however, that when Rodriguez testified about the circum- stances surrounding his offer of reinstatement his testimonial demeanor was good, whereas Bowers' testimonial demeanor was poor 41 Asked why, when his new job paid him better wages and benefits, he would even consider quitting his new job to return to work for Re- spondent, Martinez testified that he had only been working for the new employer approximately 1 or 2 months and was not sure about'his job there and was having problems with " it, whereas, he knew his job at Re- spondent where, at the time of his layoff, he had been employed for almost 1 year ` CORRUGATED PARTITIONS WEST monial demeanor -was good and Bowers' was poor, I have credited Martinez' description of this conversation. The above-described job offer did -not toll Respond- ent's backpay liability or reinstatement obligation because a discrimmatee must be given a reasonable period of time to consider whether to accept an offer of reinstatement, the' length of which depends upon the factual circum- stances of each particular case. See Murray Products, 228 NLRB 268 (1977), enfd. 584 F.2d 934 (9th Cir. 1978). An offer demanding that in less than 24-hours after the re- ceipt of the offer a discriminatee accept it and return to work is not sufficient to terminate the backpay period or end Respondent's obligation to offer to reinstate the dis- criminatee. . On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed42 ORDER The Respondent, Corrugated Partitions West, Inc., Santa Fe Springs, California,,its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Laying off or otherwise discriminating against em- ployees for the purpose of discouraging employees from supporting Graphic Communications Union, . District Council No. 2, or any other union. (b) Threatening employees that the, plant will be closed if they support Graphic Communications Union, District Council No. 2, or any other union. (c) Questioning employees about their own or other employees' union sympathies or activities. (d) Threatening to discharge employees because, of their union sympathies or activities. (e) Threatening not to recall to work laid-off employ- ees because of their union sympathies or activities. (f) Threatening employees that if they support Graphic Communications Union, District Council No. 2, or any other union that it would call the Immigration and Natu- ralization Service to the plant to, investigate those em- ployees who are illegal aliens. (g) In any like or related manlier 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 which is nec= essary to effectuate the policies of the Act. (a) Offer to the employees named immediately-,below, if it has not already done so, immediate and full reinstate- ment to their former positions or, if those .positions no, longer exist, to substantially equivalent positions; without prejudice to their seniority and' other rights-and';privi= leges, and make them whole for any loss of'eamings they.. may have suffered by reason of Respondent's" action in laying them off, in the manner set forth in the section of this decision entitled- The Remedy Gale Barrett ' . ' 'Ramon Magallanes 42 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 Joe Contreras - Gabriel Durazo Andres Flores Francisco Landa - Ismael Lomeli Gustavo Lopez 909 Gerardo Martinez Alberto Perez Leonard Rivera Jesus a/k/a Jesse Rodriguez Renato Valenzuela (b) Rescind all adverse personnel actions issued to the above-named employees as a result of the discrimination here found to have been practiced against them , and ex- - punge from Respondent's records any reference thereto and notify said employees, in writing, that such actions have been accomplished and that the expunged material will not be used as a basis for future personnel actions against them . See Sterling Sugars, Inc., 261 NLRB 472 (1982). - (c) Preserve and, on request , make available- to the Board or its agents for examination and copying , all pay- roll records, :social security payment records , timecards, personnel records and reports, and all other records nec- essary -to analyze the, amount of backpay due under the terms of this Order. - (d) Post at its, facility in , Santa Fe Springs, California, copies of the attached notice marked "Appendix."43 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 customanly 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. (e) Notify the , Regional Director in writing within 20 days from the date of this Order what steps the, Re- spondent has taken to comply,, 4.1 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 he' United States Court of Appeals Enforcing an Order oethe Nation- al Labor Relations -Board " 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 "Nati'onal' Labor. Relations' Act and has-.or- dered- us to post -and abide by thisnnotice: : - Section"n 7 of the Act gives employees these * rights.: .i ,To organize To form; loin; 'or assist -any union, To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- •tioii" 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To choose not to engage in any of these protect- ed concerted activities. Accordingly, we give you these assurances: WE WILL NOT discourage membership in Graphic Communications Union, District Council No. 2, in any other labor organization by laying off employees or oth- erwise discriminating against employees because he or she decides to join, assist, or otherwise support represen- tation.by a union. WE WILL NOT question employees about their own or other employees' union sympathies or activities. WE WILL NOT threaten to discharge employees be- cause of their union sympathies or activities. WE WILL NOT threaten that laid-off employees will not be reemployed because of their union sympathies or ac- tivities. WE WILL NOT threaten employees that the plant will be closed if they support Graphic Communications Union,. District Council No. 2, or any other labor organi- zation. WE WILL NOT threaten employees that if they join or the Immigration -and Naturalization Service to investi- gate those employees who are illegal aliens. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by the National Labor Relations Act. WE WILL offer. the employees named immediately below, if . we have not already done so, immediate and full reinstatement to their former positions or, if no longer in existence,-,to substantially equivalent positions without prejudice to their seniority or other rights and privileges and WE WILL make them whole for any loss of earnings they may have suffered by reason of our dis- crimination against them, with interest: Gale Barrett Joe Contreras Gabriel Durazo Andres Flores Francisco Landa Ismael Lomeli Gustavo Lopez Ramon Magallanes Gerardo Martinez Alberto Perez Leonard Rivera Jesus a/k/a Jesse Rodriguez Renato Valenzuela otherwise support a labor organization that we will call CORRUGATED PARTITIONS WEST, INC.