Hedaya Brothers, Inc.

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hedaya Brothers, Inc. and Local 155, Knitgoods Workers' Union, International Ladies' Garment Workers' Union, AFL-CIO and Local 966, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 29-CA-10928, 29-CA-11025, 29-CA- 11025-2, 29-CA-10971-1, 29-CA-10971-2, 29-CA-11069, and 29-CA-11069-2 5 December 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 14 September 1984 Administrative Law Judge Harold B. Lawrence issued the attached de- cision. The Respondent filed exceptions and a• sup- porting brief, and a motion to reopen the record.' The General Counsel filed limited cross-exceptions, a supporting brief, a motion to strike the Respond- ent's exceptions, 2 and a motion to reopen the record and remand to the administrative law judge.3 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, ftndings,4 and i The Respondent moves to reopen the record to admit evidence con- cerning posthearing negotiations between it and Local 966 at which an agreement over "paid vacation entitlement" was allegedly reached. We deny the motion, as the evidence sought to be adduced would not require a different result See Sec 102 48(d)(1) of the Board's Rules and Regula- tions 2 The General Counsel moves to strike the Respondent's exceptions, claiming its brief in support of its exceptions is too lengthy, and does not contain a subject index with page references and an alphabetical table of cases cited Although part III of the Respondent's brief does not fully comply with Sec 102460) of the Board's Rules and Regulations, we accept it as the brief is not so deficient as to warrant striking See, e.g., Viracon, Inc, 256 NLRB 245 fn 1 (1981) Accordingly, we deny the General Counsel's motion to strike The General Counsel subsequently filed a motion to withdraw its motion to reopen the record and remand to the administrative law judge, stating that the Respondent and Charging Party Local 155, Knitgoods Workers' Union, International Ladies' Garment Workers' Union, AFL- CIO, opposed its motion to reopen Accordingly, we grant the motion to withdraw 4 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 In par 5(c) of his Conclusions of Law, the judge inadvertently referred to Nathan, rather than Joseph, Hedaya. We correct the error No exceptions were filed to the judge's findings that the Respondent did not violate Sqc 8(a)(1) by posting a notice informing employees it would not grant them a holiday in lieu of the New Year's Day holiday, or otherwise not abide by the terms of the collective-bargaining agree- ment between it and Local 966 after it expired 31 December 1983, or to the judge's finding that the Respondent did not unlawfully interrogate Maritza Rosario on 25 November 1983, or violate Sec 8(a)(3) and (1) by discharging her on 5 December 1983 conclusions as modified and to adopt the recom- mended Order as modified. The judge found the Respondent violated Sec- tion 8(a)(1) of the Act by threatening employees with discharge if they went on strike, telling em- ployees unionization would be futile, and by threat- ening to close its business if employees elected a union as their collective-bargaining representative. The Respondent has not excepted to these findings, and they are therefore affirmed. The judge further found that the Respondent violated Section 8(a)(1) by interrogating employees whether or not they in- tended to strike. We affirm this finding.5 We also affirm the judge's finding that the Respondent un- lawfully discharged Elisa Cruz in violation of Sec- tion 8(a)(3) and (1) of the Act. Finally, for reasons more fully discussed below, we affirm the judge's finding that the Respondent violated Section 8(a)(5) and (1) by failing to bar- gain in good faith with Local 966 (the Teamsters), and by unilaterally changing certain terms and con- ditions of employment before impasse had been reached. The judge also found that the Respondent did not unlawfully threaten Elisa Cruz with loss of un- employment insurance benefits because of her union activities, and that the Respondent's new system of written warnings to employees for late- ness and absenteeism did not violate Section 8(a)(3) and (1). The General Counsel excepts to these find- ings. We find merit in the exceptions as discussed below. 1. The judge found that the Respondent, in vio- lation of Section 8(a)(5) and (1), unilaterally elimi- nated existing holiday pay benefits before impasse had been reached, and did not bargain in good faith with the Union. We agree, but only for the reasons stated below. The salient facts follow.' The Respondent manu- factures towels and related products at its two Brooklyn, New York plants. The Teamsters repre- sented the Respondent's production and mainte- nance employees and executed with the Respond- ent at least one collective-bargaining agreement 5 In addition to Gonzalez' testimony, cited and credited by the judge, Myriam Dominguez specifically testified that Supervisor Virginia Ramos approached her, asked her to "witness" Ramos' questioning of employees whether or not they intended to strike, and then observed Ramos ques- tion several employees Elisa Cruz testified that Supervisor Hector Vargas approached her at her machine and asked her whether she was going to strike. 6 The complaint alleges, and the judge found, that the Respondent un- lawfully failed to grant employees a paid weekday off in lieu of New Year's Day, 1984, and unlawfully required employees to work on Wash- ington's Birthday, 24 February 1984, at straight time, rather than holiday rates r The facts are more fully set forth here than in the judge's decision, and are based on uncontradicted testimony 277 NLRB No. 93 HEDAYA BROS. that expired 31 December 1983. On 4 October 1983 the Teamsters sent the Respondent notice of its intent to modify the agreement and requested the Respondent to "contact this office so that arrange- ments can be made to commence negotiations." On 27 October 1983 Local 155, Knitgoods Workers' Union, International Ladies' Garment Workers' Union, AFL-CIO (Garment Workers), timely peti- tioned to represent the Respondent's employees, and the Regional Director ordered an election by Decision and Direction of Election dated 23 De- cember 1983. Around the last week of December, the Respondent posted the following notice to its ennplo yees: Due to the fact that the I.L.G.W.U. is look- ing for an election, the law does not permit your union to negotiate a new contract until after the election. The old contract expires December 31, 1983. Therefore, on January 1, 1984, there is no contract by law and no obligation by the company to pay the New Years' Day holiday. Accordingly, the company will not pay for not working on New Years' Day holiday, or otherwise, live up to the other benefits of the expired contract. However, New Years' Eve will be paid for according to the terms of the old contract. Hedaya Brothers, Inc. On 1 January 19848 the Respondent eliminated the New Year's Day holiday, and did not give em- ployees a paid weekday off in lieu of the holiday even though it fell on a weekend. Around the first week of January, the Teamsters distributed a leaflet to employees informing them that they were entitled to the New Year's Day hol- iday, and that the "only reason" employees were not paid was the Garment Workers' "interference," which made the agreement "ineffective." According to employee Elisa Cruz' credited tes- timony, on 6 January Production Manager Jimmy Vargas gave a speech to employees in which he stated if the employees selected a union, "the com- pany would have to close because they didn't want any union . . . and that the company did not want the contract, that they were not going to sign the contract, that they were not going to sign the con- tract with either one of the unions but particularly Local 155 [the Garment Workers]."9 The parties stipulated that Vargas also told employees it would be better to work without a union because they 8 All dates are in 1984 unless otherwise indicated s Cruz testified that Vargas also told her 19 January that the Respond- ent would not sign a contract with either union. 943 would still get the "same benefits" but they would not get a raise." The parties further stipulated that Reyna Fajarvo,1 ° a company secretary, read a letter from the Respondent's president Joseph Hedaya over the loudspeaker that the employees would be better off without a union because Hedaya would not negotiate with either union and would be forced to close if a union won the elec- tion. h 1 The election was held 20 January and the ballots were impounded. On 8 February the Teamsters sent another letter to the Respondent requesting negotiations. On 13 February the Respondent replied that it was will- ing to meet and requested the Teamsters to tele- phone and arrange a meeting. The parties sched- uled and participated in bargaining sessions on 17 and 24 February, 27 March, and 11 April. At the 17 February meeting, Edwin Gonzalez, the Teamsters business agent, submitted to the Re- spondent proposals regarding a nondiscrimination clause (new language), hours and overtime, holi- days, vacations, rest periods, health and pension, second and third year reopener (new language), the Teamsters Pension Fund contributions (new lan- guage), work clothing allowance, contract term, wages, sick days (new language), Christmas bonus (new language), and a protection of rights clause (new language). According to Gonzalez' uncontra- dicted testimony, Nathan Hedaya, the Respondent's general manager, replied that it could not afford the proposals or the most recent collective-bargain- ing agreement, and made a counterproposal elimi- nating all vacations, the clothing allowance, and all holidays except New Year's Day and Christmas Day. Gonzalez testified Hedaya also proposed to reduce wages to the Federal minimum wage and breaktime to two daily 5-minute breaks. Gonzalez testified he caucused with his negotiat- ing team for 45 minutes, and returned to the table and asked Hedaya if the Respondent had reconsid- ered its position. According to Gonzalez, Hedaya said his position was unchanged and that "foreign competition was killing them, from Mexico and Europe, and in order for them to survive [the Re- spondent] needed these cuts." Gonzalez told Hedaya "this wasn't negotiations," that lie was "jerking [the Union] off," and threatened to file unfair labor practice charges against the Respond- ent. The meeting ended and the parties agreed to meet 24 February. 10 The parties stipulated to Vargas' and Fajarvo's statements to avoid cumulative testimony. In his decision, the judge inadvertently referred to Rayna, rather than Reyna, Fajarvo We correct the error 11 The judge found these statements violated Sec 8(a)(1) As noted, the Respondent has not excepted to the judge's findings 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the 24 February session, Gonzalez testified the Respondent restated its proposals and empha- sized its position was unchanged. The Union cau- cused, and Gonzalez testified he came back with a counteroffer modifying the vacation, work clothing allowance, holiday, pension, and wage demands. Gonzalez said Hedaya responded that he could not afford the proposals and "need[ed] the givebacks just to survive." Gonzalez asked Hedaya several times if the Respondent was absolutely sure of his position, and Hedaya told him "we had no choice ... that this was something that the company had to do and we were firm on it." According to Gon- zalez, Hedaya also stated it was "better to keep two hundred people working and have jobs rather than . . . have to close down." The third meeting was held 27 March.12 The Respondent's attorney, Benjamin Wyle, presented the Union with a new set of "company rules," 13 and indicated he was now willing to discuss the contract's term and the no-discrimination clause. According to Hedaya, Wyle told the Union that after reviewing its proposals the Respondent could negotiate on "most of the noncost items," but that it was "impossible . . . to meet them on the cost items because the company was facing bankrupt- cy," and offered "the books" for the Union's in- spection. Gonzalez testified that he told Wyle that the Respondent was "not touching on the main issues" and that the Union's positions were not its "bottom line," but that since the Respondent was "not moving," the negotiations "weren't going any- where." The meeting adjourned. The fourth and final meeting was held 11 April. Wyle announced he had "good news and bad news," that the Respondent would be closed on Good Friday, but that it had decided to pay the employees for New Year's Day. Gonzalez testified Wyle also proposed to eliminate the rest periods and washup periods 14 and expressed willingness to discuss the term and nondiscrimination clauses. He again offered "the books" for the Union's inspec- tion. Gonzalez testified he again stated such issues "were nothing" compared to the Union's main con- cerns, that the parties were a "mile apart," and that 12 Gonzalez testified he unsuccessfully attempted to telephone Hedaya the week following the 24 February meeting, and finally called Jimmy Vargas and learned Hedaya was out of town 13 The General Counsel did not allege the new rule's implementation violated the Act, and Gonzalez testified he told Wyle that if he wanted to issue new rules, "that's his business," but that Gonzalez would use the parties' grievance procedure if a rule was unreasonably enforced 14 Hedaya testified that at the 27 March negotiating session, Wyle pro- posed eliminating the rest periods and washup periods In its brief to the Board, however, the Respondent states its rest period and washup period proposals were made to the Union at the 11 April negotiations We there- fore credit Gonzalez' version he was not going to discuss them until the parties negotiated the issues that were "really important to the [employees]." Wyle then proposed freezing wages at the current levels,15 rather than reducing them to minimum wage, if the Union would con- sider eliminating all other economic benefits. The Union rejected this,proposal, and there was no fur- ther discussion nor bargaining sessions between the parties. 16 In determining whether a party is bargaining in bad faith, the Board looks to the totality of the cir- cumstances in which the bargaining took place. See, e.g., Joy Silk Mills v. NLRB, 185 F.2d 732, 742 (D.C. Cir. 1950), cert. denied 341 U.S. 914 (1951); Continental Insurance Co. v. NLRB, 495 F.2d 44, 48 (2d Cir. 1974); Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). Thus, the Board looks not only at the parties' behavior at the bargaining table, but also to the conduct away from the table that may affect the negotiations. 117 In Oldfield Tire Sales, 221 NLRB 1275, 1276 (1975), the Board found the employer committed numerous 8(a)(1) violations, both before and after the union was certified and bargaining had com- menced. The Board further found the employer failed to bargain in good faith, relying particularly on an employer's statement several weeks after the parties' initial bargaining session that he thought a strike would result because he did not intend to recognize the union or negotiate with it. The Board found this statement shed "considerable light ... on Respondent's attitude towards both bargain- ing and his prospective relationship with the Union," and found the employer's total conduct, as evidenced by the numerous 8(a)(1) violations, "the very antithesis of good-faith bargaining [belying] any claim that he was fulfilling his statutory obliga- tions." Id. at 1277.18 as Schedule "A" of the expired contract had a $3 35 per hour starting rate for all new employees, and $3.40 after 60 days of employment On I January 1981 all employees received a 40-cent-per-hour wage increase, on 1 January 1982, $1 25 per hour, on 1 January 1983, $1 25 per hour; on I July 1983, $1 25 per hour 16 The Respondent subsequently filed a motion to reopen the record, alleging that another bargaining session between the parties was held 17 July 1984 at which an agreement on paid vacations was reached See fn 1 above 11 See, e.g, Chevron Chemical Co, 261 NLRB 44, 47 (1982), enfd. men, sub nom. Oil Workers Local 4-447, 701 F.2d 172 (5th Cir, 1983) "(no other unfair labor practices are involved . and the record reflects no conduct by Respondent away from the bargaining table which would suggest that its negotiating positions were taken in bad faith)" ; M.R & R Trucking Co, 178 NLRB 167, 171 (1969), enfd. in part and denied in part 434 F,2d 689 (5th Cir 1970) ("the totality of the conduct by Respondent at and away from the bargaining table plainly reveals a state of mind anti- thetical to the concept of good-faith bargaining and committed to the un- dermining of the union and the collective-bargaining process in the eyes of its employees") 18 See also Gulf States Mfrs, 230 NLRB 558, 570 (1977) (The employ- er's 8(a)(1) violations, including antiunion statements, statements express- Continued HEDAYA BROS. Here, like Oldfield and Gulf States, the Respond- ent has made remarks and taken actions reflecting an attitude contrary to good-faith bargaining. Vargas told employees the Respondent would close rather than deal with a union, that it was not going to sign a contract "with either Union but particularly Local 155," and that it was better for employees to work without a 'union because they would still get the "same benefits but they` would not get a raise." Joseph Hedaya also told employ- ees through his letter that he would not negotiate with either Union and would be forced to close if a union won the election. These statements reflect an unwillingness to engage in serious collective bar- gaining and imply that the Respondent alone would determine terms and conditions of employ- ment. Further, the Respondent's economic benefit pro- posals, all of which reduced the amounts currently received by employees, and its proposals to freeze or reduce wages demonstrate conduct consistent with Vargas' statement that if employees rejected unionization, benefits would be maintained and im- plying a reduction otherwise.19 The Respondent during negotiations made no counterproposals on benefits except to eliminate all vacations, the cloth- ing allowance, and all holidays except New Year's Day and Christmas Day, and to reduce wages to the minimum wage and breaktime to two daily 5- minute breaks. It never moved from this position until the final negotiating session,20 where it pro- posed to eliminate all economic benefits in ex- change for the Union's agreement on freezing wages rather than reducing them to the minimum wage, and to eliminate the rest periods and washup periods. Other unlawful conduct supports our finding. In NLRB v. Katz, 369 U.S. 736, 747 (1962), the Su- preme Court stated an employer's unilateral action before impasse is reached often discloses "an un- willingness to agree with the union." Here, the Re- spondent's unilateral elimination of the New Year's mg a desire to get rid of the union, and statements that unionization would be futile, are "clearly relevant to a determination of [a party's] good or bad faith " is In agreeing with his colleagues that the Respondent 's bargaining proposals support the judge's conclusion that the Respondent has not ne- gotiated in good faith, Chairman Dotson does not attempt to evaluate the reasonableness of the Respondent's bargaining proposals. See Allbritton Communications, 271 NLRB 201 (1984). Like his colleagues, he finds that the Respondent's bargaining proposals were directly related to the Re- spondent's threat that the level of benefits that it would offer to employ- ees would be determined on whether they sought to be represented by a labor organization. Member Babson also would not attempt to evaluate the reasonableness of bargaining proposals in assessing a party 's good faith in negotiations, but agrees with his colleagues that the totality of the Respondent's con- duct here requires a finding that it failed to bargain in good faith. e10 As noted, the Respondent did offer to negotiate over the contract's term and the no-discrimination clause 945 Day and Washington's Birthday holidays itself vio- lated Section 8(a)(5) and (1), and clearly indicates bad faith. We find, therefore, that the totality of the Re- spondent's conduct, prior to and throughout the course of negotiations, establishes that it bargained in bad faith.21 2. The judge found, and we agree, that Elisa Cruz was discharged in violation of Section 8(a)(3) and (1) because of her union activities on the Gar- ment Workers behalf. In support of the complaint allegation, the General Counsel, inter alia, intro- duced evidence that the Respondent harbored animus towards Cruz and the Teamsters by increas- ing the number of written warnings following the 20 January election. In this respect, the General Counsel argued that although the Respondent issued only 224 warning letters to employees in 1982, and 247 in 1983, it issued nearly 323 warnings in the 5-month period between 20 January and 21 May 1984.2 2 The Respondent offered no explana- tion for this precipitate increase of warning letters, and the judge found it reflective of the Respond- ent's animus towards Cruz and the Unions. The judge specifically found the Respondent's warning system to be a "confused and contradictory pattern of activity," and concluded the large number of warnings issued after 20 January was part of the Respondent's "pattern of illegal conduct" because of the disproportionate number of warnings issued and the new system's inconsistent application.23 Accordingly, the judge found Cruz' discharge un- lawful. The General Counsel also separately alleged that the new system of warnings after 20 January sub- 21 In adopting the judge's conclusion that the Respondent violated Sec. 8(a)(5) and (1), Chairman Dotson and Member Dennis find it unnec- essary to rely on RCA Del Caribe, Inc, 262 NLRB 963 (1982). The Board has been administratively advised that the representation petition filed by Local 155, Knitgoods Workers' Local Union, International Ladies' Garment Workers Union, AFL-CIO, on 27 October 1983 has subsequently been withdrawn Member Babson also finds it unnecessary to consider RCA Del Cartbe, Inc., supra, in finding that the Respondent violated Sec 8(a)(5) and (1) since the Respondent's failure to bargain in good faith concerning the terms of a new contract was an integral part of its total repudiation of its bargaining relationship with Local 966, and its repudiation of collective bargaining in general by threatening not to sign a contract with either union, threatening to close if the employees selected a union, and com- mission of other unfair labor practices. 22 Although the Respondent excepted to the judge's finding that the number of warnings issued after 20 January was "part of a pattern of ille- gal conduct," it did not specifically except to the judge's calculations. 22 The judge found that, despite the new system 's requirement that employees be discharged on the third warning's receipt, few employees were discharged after receiving three warning notices Vargas testified, for example, that employee Iturralde received warnings on 1, 3, and 16 February , yet was not discharged because she was a "very good worker" Hedaya also testified that employees Lozano, Rodriquez, and Hernandez received their third warning notice after 20 January and were discharged (Lozano was subsequently rehired), while employee Molina, like Iturralde, was not 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jected employees to more onerous working condi- tions under which no excuse was acceptable and which resulted in discharge on the third warning's receipt, all in violation of Section 8(a)(3) and (1). The judge, however, despite his earlier findings on the system's illegal operation, found this complaint allegation unmeritorious, concluding that the new system's purpose was merely to "scare" employees into better attendance, and was not any more oner- ous because the warnings were "almost never car- ried out," and, therefore, "[n]o new system was in- stituted." We disagree. In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transporta- tion Management Corp., 462 U.S. 393, 403 (1983), the Board adopted a causation test for cases alleg- ing 8(a)(3) or 8(a)(1) violations turning on employ- er motivation. Our initial inquiry under Wright Line is whether the General Counsel has made a prima facie showing that protected activity was a moti- vating factor in the Respondent's decision to imple- ment a new system of written warnings for lateness and absenteeism after 20 January. The General Counsel has made such a showing in this case. The Respondent's unlawful motives are amply demon- strated by its numerous statements to employees violative of Section 8(a)(1),24 its unlawful dis- charge of, and statements to, Elisa Cruz, its precip- itate and disproportionate number of warnings issued to employees after 20 January, and the in- consistent application of the warning system .2 5 As the General Counsel has established her prima facie case of unlawful motivation, the burden shifts to the Respondent to demonstrate that it would have implemented the new warning system even in the absence of protected conduct. The Re- spondent, however, introduced no evidence justify- ing the sudden increase in the number of notices issued after 20 January. Thus, Vargas testified he began issuing written warnings in Spanish only around November or December 1983. While Vargas testified that "his production had dropped down around five percent" and that he "addressed the employees with respect to lateness and absen- teeism," this alleged production loss and conversa- tion with employees also took place around No- 24 As noted, the Respondent did not except to the judge's findings that it threatened to discharge employees who went on strike, that it threat- ened to close its plants if employees selected a union, and that it advised employees that unionization was futile Further, we have affirmed the judge's finding that Vargas and Ramos unlawfully interrogated employ- ees whether they intended to strike 25 See Electrt-Flex Co, 228 NLRB 847 (1977), enfd. 570 F.2d 1327, 1334-35 (7th Car 1978), cert denied 439 U S 911 (1979) (increase in number of written warnings issued after union's arrival violated, inter aha, Sec 8(a)(3) and (1) despite failure to show illegal motivation behind each notice's issuance) vember or December 1983, well before the new system's implementation. Further, while Hedaya testified to a company "policy" concerning absen- teeism and lateness, he testified only to a require- ment that "if someone is absent or late more than 3 times during the course of a month . . . they should be terminated," and not to any changes in the "policy" on 20 January. Accordingly, we find the Respondent has not overcome the General Counsel's prima facie case and that its implementation of the new warning system around 20 January violated Section 8(a)(3) and (1) of the Act. 3. We now turn to the judge's finding that the Respondent did not unlawfully threaten Cruz with loss of unemployment insurance benefits around 8 February. According to Cruz' credited testimony, she left work on sick leave 6 February and was told by her doctor not to return to work until 13 February. On 8 February, Cruz' husband tele- phoned Jimmy Vargas to inform him of the doc- tor's orders. Vargas said he "was sorry [and] he would talk to the boss . . . [but] they had already let go [sic] several people because of their absentee- ism."26 That Friday, 10 February, Cruz returned to the plant to pick up her paycheck. She showed Vargas her doctor's order, and explained she had been sick. Vargas said he "was sorry," but that Nathan Hedaya, the Respondent's general manager, had told him to discharge her. Cruz then asked Vargas whether she could collect unemployment insurance benefits, to which Vargas replied, "I'm sorry, we cannot give you unemployment." Cruz testified further as follows: Q. Did [Vargas] tell you why he can't give you unemployment? A. [Cruz] He said that the reason why they couldn't take her back or give her unemploy- ment was because those were orders from Nathan [Hedaya].27 Q. Did he say why Nathan had made those orders? A. Yes he said because I was one of the people who had been active in trying to get Local 155 in. The judge found Vargas' statement was not a threat, as Cruz had already been fired, but was merely a "simple statement by Vargas of Hedaya's position." The judge concluded the statement was 26 Although Vargas was asked on direct examination whether he had discharged Cruz on "February 3, 1984," Vargas testified he did not recall the exact date, but admitted discharging her 27 Cruz testified through an interpreter, who inadvertently used the pronoun "her" rather than the first person singular pronoun "I" in char- acterizing Cruz' testimony HEDAYA BROS. a "punishment" and an "accomplished action," but did not violate Section 8(a)(1). Contrary to the judge, we conclude Vargas' statement to Cruz that the reason the Respondent would not "give her unemployment" because of her union activities on Local 155's behalf violated Section 8(a)(1). In Campo Slacks, 250 NLRB 420, 423 (1980), enfd. mem. 659 F.2d 1069 (3d Cir. 1981), the Board found an employer's statement, 2 weeks following an employee's discharge, that, as long as the employee did not give the employer a "hassle," she could receive unemployment compen- sation, violated Section 8(a)(1). The Board found the employer's statement was motivated by the em- ployee's union activities. Id. In the present case, the Respondent's statement that it would oppose Cruz' unemployment compensation claim because of her union activities is, on its face, indicative of unlawful motivation and violates Section 8(a)(1).28 Accordingly, in light of our finding of additional violations, we shall issue Amended Conclusions of Law, an amended remedy,29 a new Order, and issue a new notice to employees. AMENDED CONCLUSIONS OF LAW 1. Insert the following as paragraph 5(e). "(e) By threatening Elisa Cruz with loss of un- employment insurance benefits because of her union activities." 2. Substitute the following for paragraph 6. "6. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Elisa Cruz on 8 Feb- ruary 1984 because of her activities on Local 155's behalf', and by implementing around 20 January 1984 a new system of written warnings to employ- ees for lateness and absenteeism in retaliation for their union and other protected concerted activi- ties." AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices , we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. 28 Member Babson agrees with his colleagues that the Respondent's statement to Cruz, subsequent to unlawfully discharging her, that it would oppose her unemployment compensation claim because of her union activities violated Sec 8(a)(1), inasmuch as the Respondent's state- ment, on its face clearly interferes with the exercise of rights embodied in Sec 7 of the Act 29 The judge found that the Respondent violated Sec 8(a)(5) and (1) by unilaterally rescinding the New Year's Day and Washington's Birth- day holidays In her exceptions, the General Counsel argues the judge inadvertently failed to provide for an affirmative remedy of restoration of the holidays and backpay to the employees We agree and shall amend the remedy correspondingly 947 We shall order the Respondent to offer Elisa Cruz immediate and full reinstatement to her former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or any other rights or privileges pre- viously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimination against her. Backpay shall be computed as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See gen- erally Isis Plumbing Co., 138 NLRB 716 (1962). We shall also order the Respondent to remove from its files any reference to Cruz' unlawful discharge on 8 February 1984 and to notify her in writing that it has done so and that the discharge will not be used against her in any way. Having also found that the Respondent violated Section 8(a)(5) and (1) by failing to bargain in good faith with Local 966 and by unilaterally eliminating existing holiday pay benefits, we shall order it to cease and desist, restore the New Year's Day and Washington's Birthday holidays, and reimburse em- ployees. Backpay shall be made in a manner con- sistent with Board policy as stated in Ogle Protec- tion Service, 183 NLRB 682 (1970), with interest as prescribed in Florida Steel Corp., above. We shall also order the Respondent, on request, to bargain in good faith with Local 966. Having found that the Respondent violated Sec- tion 8(a)(3) and (1) by implementing around 20 Jan- uary 1984 a new system of written warnings to em- ployees for lateness and absenteeism in retaliation for their union and other protected concerted ac- tivities, we shall order it to rescind and withdraw the new system and restore the status quo as of 20 January 1984.30 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Hedaya Brothers, Inc., Brooklyn, New York, its officers, agents, succes- sors, and assigns, shall so The complaint merely alleges that the Respondent "subjected its employees to more onerous working conditions by instituting a new system of written warnings for lateness and absenteeism, under which system no excuse was acceptable, and which would result in discharge upon receipt of a third warning by an employee " The complaint does not allege any employees discriminated against by this new system, how- ever, and, although the General Counsel introduced evidence of discipli- nary action taken against several employees, the issue was not fully liti- gated at the hearing Accordingly, we find it inappropriate to order the Respondent to remove from its personnel or other files any warning no- tices issued since 20 January 1984, or to make whole any employee for discipline taken under the warning system effective 20 January 1984 See, e.g, Olympia Plastics Corp, 266 NLRB 519, 542 In '74 (1983) 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from (a) Interrogating employees respecting their in- tention to go out on strike. (b) Threatening employees with discharge if they went out on strike. (c) Threatening employees that it would close its plant if the employees elected a union as their col- lective-bargaining representative. (d) Advising employees that electing a union to represent them would be futile. (e) Discharging or otherwise discriminating against any employees because of their union ac- tivities. (f) Refusing to bargain with Local 966, Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America as the exclu- sive representative of the employees in the bargain- ing unit. (g) Unilaterally eliminating existing holiday pay benefits without notice to or bargaining with Local 966. (h) Threatening employees with loss of unem- ployment insurance benefits because of their union activities. (i) Implementing a new system of written warn- ings to employees for lateness and absenteeism be- cause of their union or other protected concerted activities. (j) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with Local 966 as the ex- clusive representative of the employees in the fol- lowing appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees and shipping and receiving employees em- ployed at the Third Avenue (Bush Terminal) and the 18th Street facilities in Brooklyn, New York, excluding office clerical employees, truck drivers, guards and supervisors as de- fined in the Act. (b) Make whole all employees for any losses suf- fered as a result of its unilateral elimination of ex- isting holiday pay benefits, as provided in the sec- tion of this decision entitled "Amended Remedy." (c) Offer Elisa Cruz immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, in the manner set forth in the section of this decision entitled "Amended Remedy." (d) Remove from its records any reference to the unlawful discharge of Elisa Cruz and notify her in writing that this has been done and that the unlaw- ful discharge will not be used against her in any way. (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due Elisa Cruz under the terms of this Order. (f) Post at its facilities in Brooklyn, New York, copies of the attached notice marked "Appen- dix."31 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 31 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National 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 National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT threaten you with discharge if you go on strike. WE WILL NOT threaten to close our plant if you elect a union as your collective-bargaining repre- sentative. HEDAYA BROS 949 WE WILL NOT tell you that electing a union to represent you is futile. WE. WILL NOT discharge or otherwise discrimi- nate against any of you for supporting Local 966, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or Local 155, Knitgoods Workers' Union, Internation- al Ladies' Garment Workers' Union, AFL-CIO or any other union. WE WILL NOT refuse to bargain with Local 966 as the exclusive representative of the employees in the bargaining unit. WE WILL NOT unilaterally eliminate existing holi- day pay benefits without notice to, or bargaining with, Local 966. WE WILL NOT threaten you with loss of unem- ployment insurance benefits because of your union activities. WE WILL NOT implement a system of written warnings to you for lateness and absenteeism be- cause of your union or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees and shipping and receiving employees em- ployed at our Third Avenue (Bush Terminal) and at our 18th Street facilities in Brooklyn, New York, excluding office clerical employ- ees, truck drivers, guards and supervisors as defined in the Act. WE WILL make you whole for any losses suf- fered as a result of our unilateral elimination of ex- isting holiday pay benefits. WE WILL offer Elisa Cruz immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL notify Elisa Cruz that we have re- moved from our files any reference to her dis- charge and that the discharge will not be used against her in any way. Benjamin Wyle, Esq., of New York, New York, for the Respondent. Bryan C. McCarthy, Esq. (O'Connor & Mangan, P.C.), of Mineola, New York, for the Charging Party. Stanley L. Goodman, Esq. (Chaikin & Chaikin, Esqs.), of New York, New York, for Local 155. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. These consolidated proceedings were tried before me on May 29, 30, and 31 and on June 1, 1984, at Brooklyn, New York. They involve allegations respecting 21 inci- dents involving violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The Respondent, Hedaya Brothers, Inc., is accused of: having unlawfully refused to bargain with Local 966, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; having unlawfully discharged two employees who were supporting Local 155, Knitgood Workers' Union, International Ladies' Garment Workers' Union, AFL-CIO, in its bid for recognition; having com- mitted numerous instances of unlawful interrogation and threats against employees because of their support of either union; having told them that selecting a union would be futile; and having announced that provisions of an expiring collective-bargaining agreement would no longer be complied with. All these events are alleged to have taken place during the late autumn of 1983 and the ensuing winter. Local 155 and Local 966 filed charges on seven occasions from December 15, 1983, through Feb- ruary 29, 1984,1 and, after several preliminary consolida- tions, all the complaints issued thereon were consolidated by an order dated May 25, 1984. The Respondent denied all allegations of wrongdoing and statutory violation. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses; and to in- troduce any relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel and the Re- spondent. On the entire record and based on my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION There is no issue about jurisdiction. The various com- plaints allege, the answers admit, and I accordingly find that the Respondent, a manufacturer and distributor of towels and related products maintaining facilities at 255 18th Street and 882 Third Avenue, Brooklyn, New York, typically purchases and has delivered to it from suppliers outside of the State of New York cloth, fabric, thread, and other merchandise valued in excess of $50,000 per annum and that it is, and at pertinent times was, an em- HEDAYA BROTHERS, INC. 1 All dates are from October 1983 until May 1984 unless otherwise in- Jane B. Jacobs, Esq., for the General Counsel. dicated 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. The Respondent also admitted in its answer, and I accordingly find, that Local 966 and Local 155 are, and at pertinent times have been, labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background On the basis of the undisputed and credited testimony, admissions contained in the answers and stipulations be- tween counsel at the hearing, the following is set forth as a brief summary of the background against which the acts complained of are alleged to have been committed. The Respondent operates two plants at which towels and related products are manufactured, and employs ap- proximately 300 people. Its organization is broken down into a printing department, a shipping department, a sewing department (known as Department 112), and an embroidery department which runs on a day and a night shift, which are known respectively as Departments 114 and 117. Nathan Hedaya is the general manager of Hedaya Brothers. James Vargas is the production man- ager, supervising the plant at Third Avenue. Hector Vargas is a supervisor there; John Fisher, a foreman in department 112; and Reyna Fajarvo, a secretary in Re- spondent's office at the Third Avenue plant. The Respondent had a collective-bargaining agreement with Local 966, effective for the period from January 1, 1981, through December 31, 1983, recognizing it as the exclusive representative of all employees, excluding guards, supervisors and office clerical help. On October 27, Local 155 filed a petition to represent the employees. The appropriate unit is designated as All production and maintenance employees and shipping and receiving employees employed by the employer at its Third Avenue and 18th Street Brooklyn, New York facilities, excluding office clerical employees, drivers, guards and supervisors as defined in the Act. The Regional Director for Region 29 ordered an election by order dated December 23. It was held on January 20. The ballots have been impounded. Under the terms of section 1 of article VII of the col- lective-bargaining agreement, Respondent agreed to pay its employees full salary for certain holidays provided they worked the day before and the day after the holi- days. The holidays were designated as New Year's Eve, New Year's Day, Washington' Birthday, Holy Thursday, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Eve (the entire day), and Christmas Day. Section 3 of article VII provides that no employee may be required to work on any of the holidays specified; however, if an employee does work on one of these holidays, he is entitled to be paid at the straight time rate of pay and, in addition, a day's pay at the same rate for the holiday. In addition to the contractual provision, the Respond- ent also had a practice, acknowledged by the Respond- ent, of giving its employees a paid weekend off when a paid holiday which was enumerated in the contract fell on a weekend. The Respondent concededly terminated this practice as of January 1, 1984, when it declined to give the employees a paid holiday during the week for that New Year's Day, which was a Sunday. On November 29, the Respondent discharged Maritza Rosario. She was reinstated on December 1, but dis- charged again on December 5 and has not been reinstat- ed. On February 8, the Respondent discharged Ellsa Cruz, and has not reinstated her. On October 5, Local 966 sent a notice by certified mail to the Respondent. It was dated October 4 and read as follows: Pursuant to the agreement presently in effect be- tween your company and this Local Union, notice is herewith given that we desire to modify the aforementioned agreement. Kindly contact this office so that arrangements can be made to commence negotiations. The Respondent did not reply to the certified letter. On February 8, Local 966 sent the Respondent a tele- gram demanding commencement of negotiations respect- ing terms and conditions of employment. On February 13, the Respondent sent Local 966 a letter stating that it was prepared to meet for that object at any time and suggesting that the Local call to make arrangements. They met on four occasions during the months of Febru- ary, March, and April without reaching any agreement. B. The Discharge of Maritz Rosario The evidence clearly establishes that James Vargas re- garded Rosario, who worked for the Respondent for 4 years, as an excellent employee. She contends that he fired her on December 5 because of her support of one of the unions. The evidence to support this consists of her testimony that he began exerting pressure on her im- mediately after discovering her interest in Local 155. Ac- cording to Rosario, she was at her machine during her lunch break on November 25 reading a booklet put out by Local 155, entitled "Your Health and Welfare Bene- fits." (The booklet was printed in both English and Span- ish.) Vargas approached her and asked her which union she had signed with. She told him it was none of this business. From then on, she had nothing but trouble. On November 28 he discharged her after an altercation over a half-filled box of bobbins. These were usually placed in a box at a corner of her worktable (she was a die cutter); the operators would come for them as needed and later return the empty spools to the same box. When the box was filled with spools, she would get another box from Vargas and place it at the corner of her table. On November 28, however, he refused to give her an- other box of bobbins because the box she brought back to him was only half filled with empty spools. Rosario testified that she had noticed, when she originally re- ceived that box from him, that it was only half filled and pointed it out to him when he questioned the shortage on the return, but he was completely unreasonable and HEDAYA BROS. 951 an argument ensued in the course of which she was or- dered to leave and did so. Several days later she contact- ed him and obtained his permission to return to work after she suggested that she would go to the "Labor De- partment" if necessary. She had, in the interim, tried un- successfully to reach the business agent of Local 966 by telephone. She returned to work, but on December 5 Vargas again acted unreasonably by directing her to take a broom and sweep the floor of the plant. She told him that that was not her job and refused to do it. He became angry and shut off her machine, telling her she was fired. The- picture thus presented is of an excellent worker, with no prior disciplinary record, being unlawfully inter- rogated, having more onerous working conditions im- posed upon her, and being terminated, all within a few days of the discovery by the plant manager that she was interested in the benefits available through membership in Local 155, whose organizational campaign was, of course, in progress. She had threatened to seek protec- tion of her rights by going to a governmental agency. Altercations had seemed to boil up over contrived situa- tions: a half-filled box of spools, for which she was not really responsible since distribution of bobbins was not part of her job, and a demand that she perform an oner- ous cleaning duty which was also not part of her job and which she had never before performed or been asked to perform. The bobbins situation was also attended by an- other unusual circumstance, in that whereas normally Vargas left the bobbins on the table, this time he put the box right into her hands to distribute. Having adduced evidence of the existence of these cir- cumstacnes, the General Counsel made out a prima facie showing of discriminatory discharge. The burden of showing that she would have been discharged in any event, for one or more reasons none of which are viola- tive of the Act, thereupon shifted to the Respondent. NLRB v. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). I find that the Respondent has met that burden. James Vargas testified that there had been, indeed, a discussion about the bobbins, because he wanted the full box of spools returned. His explanation of the need for their return was not a model of clarity, but I did not feel that the shortcomings of his testimony in that respect af- fected his credibility. He testified that during their dis- cussion she became excited and he told her to leave and come back and discuss it with him when she was calmer: "At the moment I said, do me a favor, leave and when you can speak to me in a proper manner return." Con- trary to what he had expected, she punched out on the time clock and left the plant. She returned the next day accompanied by her mother. It was on this occasion, ac- cording to Vargas, that she was fired, because when she and Vargas resumed their discussion, she again started using foul language. He testified that this time he told her, "Do me a favor. You are not employed by Hedaya Brothers. I don't want you here anymore. Leave." Edwin Gonzalez, the Local 966 business representa- tive, telephoned him. I found Vargas' testimony respect- ing that telephone call highly plausible and realistic and Gonzalez, who was present in the hearing room during Vargas' testimony, did not refute it in any respect. Vargas testified that when Gonzalez called him, he de- scribed Rosario's truculent behavior, giving that as the reason for her dismissal, but Gonzalez persuaded him to take her back on the basis of her, excellent work and lack of previous disciplinary involvement: Mr. Ed Gonzalez called me up and . . . I ex- plained it to Mr. Gonzalez actually what had hap- pened, and there was no way that I was going to take her back using the language that she used to- wards the supervision. That I was not going to tol- erate it and regardless what lie would say was going to change my opinion on it. In that turn Mr. Gonzalez said you have to remember one thing, she's been with you a long time. He said, I want to ask you a question. I she a good employee? I said, she is a very excellent worker. He said, Jim, don't cause me any problems. Take her back. Which in turn I said, but Ed-he said, Jim, you yourself stated she's an excellent worker. Why create prob- lems for yourself and myself. I said, okay . .. . Consequently, when she returned several days later, apparently unaware that Gonzalez had seen the tele- phone messages from her and had act ed on her case, the decision to take her back had already been made. About 3 o'clock in the afternoon of December 5, shortly before her quitting time, Vargas had occasion to pass her work station and noticed that her work area, which she normally tidied up before ]leaving for the day, was in complete disarray. Unravelled bolts of cloth cov- ered with lint were lying about. Aware of the lateness of the hour, he suggested to her that she clean up the area that afternoon or when she came in the next day: "I was looking around her work area and I approached her and I said, Rosario, would you please do me a favor and straighten up this area, if you can't today, tomorrow." He testified that, to his suprise, she responded that she would not do it. In disbelief, he asked her again and, again, she refused. Vargas summoned John Fisher, her immediate supervisor, and Guillermina Torres, the Local 966 shop steward. Vargas told Fisher he wanted Rosario fired. Fisher then told Rosario that she was fired for dis- obedience and directed Torres to tell it to her in Spanish, which Torres proceeded to do. In the course of his testimony, Vargas explicitly denied that he had ever seen Rosario reading a Local 155 benefits pamphlet or that he had, on any such occa- sion, approached her work station and asked her which union she had signed with. He also denied that he had ever told her to sweep the floor of the plant. Vargas' testimony is not completely trouble free. His explanation for the need for return of all of the spools was, as I have noted, somewhat murky and he has, over the course of time, given several different, though not in- consistent, explanations. In view of the fact that the re- sponsibility for collecting them was not really part of her job, his severity with her seems out of place. In addition, it is unclear to me why Vargas, who was such a stickler for protocol, on December 5 when he summoned Rosar- io's foreman and the shop steward to fire her, adhered to 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no such procedure when he fired her on November 29. Nevertheless, I found Vargas to be a credible witness with respect to Rosario's situation on the basis of his de- meanor and the quality of his testimony overall. He ex- plained some points satisfactorily. For example, he ex- plained his suggestion to her that she tidy up her work area, which would seem to have been unnecessary inas- much as that was her normal practice, by the fact that the hour was late and it was extremely close to her quit- ting time, and that he was actually giving her an option to do it the following day Most importantly, his testimo- ny is corroborated by other witnesses. The General Counsel's observation that Fisher testified that when he joined Vargas and Rosario, Vargas was upset and Ro- sario was calm, is consonant with the description of the events as related by Vargas, for Fisher also testified that it became Rosario's turn to get upset when she learned she was being fired. In contrast, I found Rosario's testimony to be com- pletely untrustworthy by virtue of its omission of details verifiable from other sources. In her recounting of the events at issue, she not only failed to make any mention of her return to the plant on November 29, but explicitly denied having gone back on that day. This is a point on which she could easily have rebutted Vargas' testimony if he was making up a story, for she could have brought her mother in to testify. She did not do so, and I draw from her failure to do so an inference that, had her mother come in and testified truthfully, her testimony would have been unfavorable to Rosario and would have confirmed the description of the events of November 29 as testified to by Vargas. Walker Steel Corp., 252 NLRB 311 (1980); Teamsters Local 959 (Northland Maintenance), 248 NLRB 693, 698 (1980). Rosario's testimony respecting her first discharge is outweighed by that of Vargas, which presented a version which Gonzalez did not refute. Her description of the events of December 5 is contradicted by the testimony of Vargas, Fisher, and Torres, the shop steward. In her re- cital of the event, there was no mention of Fisher and Torres. When asked who else was present, she men- tioned only that women were working at machines nearby, implying that they were busy and not attentive to her conversation with Vargas. In Rosario's version, all her material was already put away in bins, except for some material she was working on, which was on top of her table, and the material was clean. Vargas personally fired her when she refused to sweep the floor: "He didn't say anything. He came over and he turned my ma- chine off and he said that I should punch out and go." This version is wholly contradicted by the testimony of Fisher and Torres. Fisher confirmed that the area was in disarray. Torres, who works on the floor as a packer, testified that she was instructed by Fisher to tell Rosario she was fired for refusing to do what the boss told her to do. She latter spoke to Rosario about it and testified that Rosario told her she was fired because Vargas "told her to clean up and that was not her job." This substantiates Vargas' testimony, for Rosario did not tell Torres, as tes- tified before me, that Vargas "said that I should clean the entire plant The factory and my table." I note, finally, that there is no evidence that Rosario's activities in support of Local 155 were so intensive that it was likely that the Respondent would know about it. In fact, Rosario testified that the Respondent did not know that she was speaking to the other employees be- cause she took care to do so under circumstances which would tend to keep it secret. Accordingly, I find that Maritza Rosario was dis- charged because of her insubordination and foul and -dis- respectful language to Vargas, and that she would have been discharged for those reasons at that time regardless of any other circumstances then existing. C. The Discharge of Elisa Cruz The General Counsel established a prima facie case with evidence to the effect that the Respondent, with knowledge of the fact that Cruz was supporting Local 155, discharged her, displaying animus by a remark which James Vargas attributed to Nathan Hedaya to the effect that because of her assistance to Local 155 she would not be permitted to collect unemployment insur- ance benefits. The Respondent countered by offering evi- dence that she had a terrible record of absenteeism which, according to Vargas, was having a deleterious effect on the discipline of the other employees, and that Vargas decided to make an example of her, and fired her even though he would have preferred to keep her on be- cause she was an anchorwoman who trained new em- ployees and was a good worker. The evidence of Hedaya's remark to Vargas comes solely from Cruz, who testified that Vargas related it to her. It is not corroborated by any other evidence, which is important, for her credibility cannot be termed exem- plary. For example, she denied ever having received more than a few warning letters, whereas the evidence shows that in fact she received 9 warning letters in 1982, covering 9 absences, and 4 letters covering the period January 1 through August 23, 1983, relating to 10 ab- sences. Nevertheless, a real credibility issue does not exist with respect to whether Vargas told Cruz that Hedaya said he would not permit her to collect unem- ployment insurance because she had supported Local 155. Vargas never denied making that statement to Cruz, thus leaving her testimony uncontroverted. The point was only lightly touched in his testimony which, com- pared to the highly specific testimony which Cruz had given, seemed evasive and unresponsive. Cruz testified that she returned on Friday, February 10, after having been absent several days. Vargas had originally approved her absence on February 7, but not on the subsequent days. Consequently, though she had been treated at a hospital and came in with a doctor's note, Vargas told her that, on orders from Hedaya, he had to fire her. The following colloquy thereupon took place: Q. Did Jimmy Vargas say anything else to you on that day? A. So I said to him "as long as you are firing me, could I collect my unemployment, will you give it to me?" He said, "I'm sorry, we cannot give you unemployment " HEDAYA BROS. Q. Did he tell you why he can't give you unem- ployment? A. He said that the reason why they couldn't take back or give unemployment was because those were orders from Nathan. Q. Did he say why Nathan had made those orders? A. Yes, he said because I was one of the people who had been active in trying to get Local 155 in. This very serious testimony by Cruz was not refuted by 'Vargas. The sole mention of it, and the response which such reference elicited, is contained in the follow- ing testimony by Vargas under examination by Respond- ent's own counsel: Q. Is there any reason other than her frequent and consistent absences and lateness that caused you to discharge her? A. No. Q. There was some testimony here that some- body said that she was discharged for her Union ac- tivity. Was that a fact? Was she discharged for Union activity? A. That is not so. Q. Did anybody tell you to fire her because she was involved in Union activity? A. Nobody told me nothing. The failure of Vargas to deny explicitly that he made the statements attributed to him by Cruz leads me to conclude that her recitation of their conversation was factual; that he told her that Hedaya was going to block her unemployment insurance benefits because of her sup- port of Local 155; and, notwithstanding his answer to the question put to him by Respondent's counsel, that Hedaya actually made the statement which Vargas at- tributed to him. The Hedaya statement, and his action with reference to Cruz' unemployment insurance benefits, clearly be- speak union animus. It joins remarks attributed to Hector Vargas and quoted elsewhere in this decision and' it joins evidence of the increase'in the number of written warn- ings issued as part of the picture of the severe animus which governed the conduct of the Respondent in its re- lations with the employees and with Local 966. Cruz was fired ostensibly because of her numerous ab- sences, but the evidence shows a confused and contradic- tory pattern of activity on the part of the Respondent with respect to its system of warnings and actual imple- mentation of the company rule which purportedly re- quired discharge of an employee who was absent three times within a period of a month. A large number of warnings were issued after January 20. I[ conclude that these were part of the pattern of ille- gal conduct on the part of the Respondent firstly, be- cause of the truly disproportionate number of warnings issued and, secondly, because of the failure to enforce the purported company rule consistently. The increase in the number of written warnings issued for absenteeism and lateness was so great that the number issued during the period from January 20 to May 21 ('with none at all being issued during a portion of that 953 period, from March 16 to May 9) exceeded the total numbers issued in either 1982 or 1983. Furthermore, all but 66 of the warnings were issued between January 20 and March 16. The exhibits in evidence included 224 written warnings issued in 1982, 247 issued in 1983, and 323 issued between January 23 and May 21, 1984. Of the 1984 warning notices, 257 were issued between January 23 and March 16 and 66 were issued between May 9 and May 21. Though the warning notices stated that issuance of three such notices to an employee would result in termi- nation, the evidence clearly establishes that there was no uniform and consistent practice. In fact, the evidence about what the practice was is thoroughly confused. Vargas testified that few people were fired for having re- ceived three warning notices. He even testified that Cruz was not fired for that reason, but to make an example of her for the others. Vargas testified that the notices were used chiefly to scare the employees into better attend- ance, and he admitted that if the company policy had ac- tually been enforced, he would not have been able to meet his production schedule. Only 10 employees had actually been fired for lateness or absenteeism since early 1982. In the cases of five employees who received no- tices endorsed with a legend, "You are terminated from this company," it appeared that three were actually fired, of whom two were subsequently rehired, and two were not fired at all. Vargas, in fact, at one point in his testi- mony, stated flatly that "There was no employee ever terminated on three letters." In the case of one of the five employees (Iturralde), whose letters were endorsed with the dismissal legend John Fisher interceded to save her job because she was a good worker. Nathan Hedaya, who is vice president as well as gen- eral manager, testified that he did not know if the com- pany policy requiring discharge of an employee for three absences was applied consistently; he testified that "often times their discharge is reconsidered." Nevertheless, the company policy was rigidly applied in the case of Elisa Cruz, and the question is why. A review of the evidence leads inexorably to the conclu- sion that she was fired, not because of her record of ab- senteeism, but because of her activity on behalf of Local 155. The Respondent was aware of it from sometime late in December or early in January. There was an occasion on which Hector Vargas conducted a survey to find out who would go out on strike if the union called one. He went around to the operators at their machines and asked them point blank, noting their response that she would go out on strike if the majority did, and asked him what kind of replies he was getting from the other em- ployees. He showed her a list with about 12 names on it, with markings next to some of the names. He comment- ed that employees who struck would be fired because they were no longer represented by a union. She coun- tered with the statement that they could strike and also could obtain help from the government. There is no dis- pute about Hector Vargas' position as a supervisor. His change in attitude toward her was apparent on January 20, the day of the election. Many employees stopped at her machine to ask her advice about how to vote, and 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD many stopped by on their return to tell her that they had voted for Local 155. Hector Vargas threatened to fire her if she kept talking. There had been earlier occasions when he had tried to suppress conversation among the employees, but he had never threatened to fire anybody on account of it. She was placed under further pressure later in the day. She had been absent the day before, Jan- uary 19. When Hector Vargas gave her her paycheck, he delivered it together with a warning notice which, unlike the normal notice, was not a form letter but one pre- pared and typed personally for her, in Spanish. It ad- vised her that further absences and latenesses , with or without excuse, would no longer be tolerated and that she would be fired if it happened again. As he handed it to her, Hector Vargas suggested that she "go to unem- ployment." Cruz continued working in routine fashion until late in the afternoon on Monday, February 6, when she became ill while she was working. Rayna Fajarvo gave her per- mission to go home. Because of her concern about the consequences, she asked Fajarvo specifically whether she could leave without losing her job. Her uncontroverted testimony is that Fajarvo assured her that Jimmy Vargas said she could go home. Because her doctor advised her to remain home until February 13, she had her husband call James Vargas; he finished the telephone call under the impression that she was fired. She went in on Friday, February 10, to get her last paycheck, and on this occa- sion was told by Vargas that Hedaya would not allow her to collect unemployment insurance because she had been instrumental in assisting Local 155 to organize the plant. In view of my earlier observations about the lack of uniformity in enforcing the company policy relating to the penalty for absenteeism and the apparent animus of the Respondent, the lack of flexibility in the case of Elisa Cruz, an admittedly excellent worker but known to be sympathetic to Local 155, is a prima facie violation of the Act. The explanation for the Respondent's action, as set forth in the testimony of James Vargas, was not at all convincing. Vargas testified that Cruz was an older em- ployee and an excellent worker; moreover, she was on the night shift for which it was hard to get replacements. Consequently, he did not want to fire her if it could be avoided. However, her absences were getting out of hand and were affecting the discipline of -other employ- ees. He could no longer overlook it. It was essential to keep all the machines operating and he finally decided to make an example of her. The first problem with this story is, of course, the timing. The representation question was pending. Why did Respondent's tolerance of her terrible record end when it did? In 1982 Cruz received warnings for nine ab- sences. In 1983 she received warnings for 10 absences and had actually been absent considerably more times than that. In December alone, she was absent 8-1/2 days, on two occasions in groupings of 3 days each. She was not fired then. In 1984, up to the date of her discharge, she was absent 1 day in January and February 6 with the succeeding days, her discharge being fixed as of Febru- ary 7. Her attendance record had improved and her re- gressions had been the result of demonstrable illness. Her absences were authorized in advance in both cases. If there was the slightest inclination to be flexible in the case of an excellent worker, the basis for it was there. Instead, the assurance that her job would not be affected was ignored on the pretext that permission was granted only for 1 day's absence, as though illness was an alto- gether controllable incident of life. The timing of the discharge is therefore not satisfacto- rily explained in the testimony, and the omission is not cured by the contention in the posthearing brief submit- ted on behalf of the Respondent that "an arbitrary date had to be chosen at some point or the employee would continue to engage in the extensive practice unendingly." This argument removes even the slender connection which Vargas had tried to make between the discharge and her most recent absences; now the date was selected arbitrarily. This in effect says that there was no reason for the timing. Actually, there is no evidence in the record to support the assertion that the date was selected arbitrarily. Vargas' testimony is to the contrary, for he asserted that the night supervisor complained to him that her "absences and lateness was very consistent and he couldn't tolerate it any more" and that that had been going on since January. We know, of course, that she was absent only once in January and that he personally had excused her absence in February, a fact he should have made known to the night supervisor. None of Cruz' testimony on that point was refuted by Vargas, who tes- tified at the hearing, or by Fajarvo, who did not, though she was present in the hearing room during a portion of the hearing. Asked specifically why he took no action in Decem- ber, when Cruz was absent 3 days in each of 2 different weeks and was absent 2-1/2 days in a third week of that 1 month, whereas he acted in February, when her record had improved but she had to be absent because 'she was ill, Vargas gave a confused dissertation on the need to keep the machines operating (as it was, they were oper- ating at 95 percent capacity) and how hard it was to get people to come in on the night shift. His solution for these problems was to make an example of her by firing her. Not only was his explanation illogical, but it contra- dicted his own testimony that other women were absent- ing themselves at a rate of "once or twice in two months, once a month." It is apparent to me that Cruz actually was not affecting the conduct of other employ- ees if that was their absenteeism rate. The circumstances surrounding the discharge of Cruz leave no room for doubt that the reason furnished by the Respondent for her discharge is pretextual. There is too much evidence contradicting Vargas' assertion that he fired her "because it was affecting on the rest of the em- ployees, it was a thing that I had to set an example, and it so happens she took more time off than anybody else in the entire place." His description of the effect on them was extremely vague. The only portion of the explana= tion I would be inclined to credit would be the statement that Respondent wanted to make an example of Cruz, but an example of what? They were setting an example by firing a union supporter and activist, who was con- cededly an excellent worker and who would be hard to HEDAYA BROS replace on the night shift , at a time when the results of an election were undecided, and they were doing it after exerting pressure on her and demonstrating union animus in a number of ways. 1[ find that Cruz was discharged in violation of the Act on the basis of all the factors which normally support such a determination-the timing of her discharge, the Respondent's knowledge of her sympathies , the Re- spondent's knowledge that she was supporting Local 155, the backdrop of other coercive unfair labor prac- tices as discussed elsewhere in this decision , the utter in- adequacy of the explanations furnished for her discharge and the record as a whole. Cf. Jim Baker Trucking Co., 2411 NLRB 121 (1979), enfd. 106 LRRM 2968 (9th Cir. 1980) (no published opinion). D. Alleged Unlawful Interrogations Unlawful interrogations are alleged to have been com- mitted by James Vargas, Hector Vargas, and Virginia Ramos, a forelady. Maritz Rosario testified that on November 25 James Vargas asked her which union she had signed with while she was reading a Local 155 pamphlet on benefits. I have described the situation in connection with the discussion of her discharge, and noted that Vargas denied having had any discussion with her under the circumstances as she described them. I credit his denial in this respect, having already found her relation of the events of her discharge to be entirely untrustworthy. Furthermore, even if I accepted her version of the facts, I would fail to find an unlawful interrogation because the circum- stances, as she herself described them, indicate that the putting of the question was not coercive in intent, tend- ency, or effect. The question as she quoted it, far from suggesting disapproval on the part of management or of Vargas personally of the fact of her union interest, and instead assumed that she had signed an authorization card and related entirely to the question of which union she favored. Athough the fact that she was not actually intimidated , telling him it was none of his business, would not affect the Respondent's liability if the question were coercive in tendency, the nature of her response is some evidence of the proper interpretation to be accord- ed the statement attributed to Vargas . I find no coercive tendency. Accordingly, I find that James Vargas did not conduct an unlawful interrogation of Maritza Rosario on November 25. The testimony respecting the alleged interrogations by Hector Vargas and Virginia Ramos, on the other hand, is not controverted. Neither Hector Vargas nor Ramos tes- tified at the hearing. The testimony respecting Ramos was furnished by Edwin Gonzalez, the Local 966 business representative, whom I found to be a creditable witness Gonzalez testi- fied that he visisted the plant on December 12 and found the employees agitated by the fact that Ramos was going around asking people whether they intended to strike or not. Gonzalez immediately asked her what she was doing and she told him that she was following Jimmy Vargas' orders. Vargas was home with the flu. Gonzalez got him on the telephone and Vargas said he 'was following orders from Nathan Hedaya. I should note at this point 955 that Hedaya, who testified extensively at the hearing, never denied having ordered the inquiry. The Respond- ent made no attempt to explain this investigation, not even contending that it was simply keeping acquainted with what was going on in its plant. In fact, not every- body was interrogated ; according to Mynam Domin- guez, only 10 or 12 persons were interrogated. The incident involving Hector Vargas was apparently an outgrowth of the aborted interrogation by Ramos. Gonzalez testified that when he saw Ramos on Decem- ber 12, he demanded the list from her and tore it up. Cruz fixed the time of the incident with Vargas as late December or early January, which is plausible and indi- cates that Hedaya was insisting on obtaining the informa- tion. Vargas asked the same question Ramos had asked. The only difference was that now he was asking every- body. The coercive nature of his interrogation is appar- ent from his concurrent remarks that the employees were no longer represented by a union and would be fired if they struck. Accordingly, I find that the Respondent unlawfully in- terrogated its employees in December and January, acting through Virginia Ramos and Hector Vargas. E. Alleged Unlawful Threats 1. Loss of unemployment insurance benefits It is contended that James Vargas' statement to Cruz that she would not be permitted to collect unemploy- ment insurance benefits constituted an unlawful threat. The evidence wholly fails to support , this allegation. Her own testimony made it sound like a simple statement by Vargas of Hedaya's position. Moreover, she had already been fired at the time it was made. Cruz testified that she had her husband call in on February 8 and had the im- pression from that call that she was fired; none of her testimony about the call mentions unemployment insur- ance benefits. Her testimony respecting the conversation with James Vargas when she saw him on Friday, Febru- ary 10, was that, so long as she was fired, could she have her unemployment insurance benefits; then and only then did Vargas make the statement on the basis of which the General Counsel seeks to fasten liability on the Respond- ent. All he said , however, was that Hedaya had already forbidden it because of her support of Local 155. What Cruz testified to was not a threat, but a punish- ment. It was an accomplished action. The employer's in- tention to block benefits was not subject to any condition or qualification and was not subject to rescission if she performed in any particular manner There is no evi- dence that the intention to block her unemployment in- surance was communicated to any other employees. Consequently, I find that Cruz was not threatened by James Vargas about February 8 with loss of unemploy- ment insurance benefits. 2. Threat of discharge Elisa Cruz testified that Hector Vargas, while making a list of operators who were and were not going out on strike if a strike was called, declared that strikers would be dismissed. He made such a statement directly to Cruz, '956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD together with the observation that the employees no longer had union protection. He was making a threat which clearly violated the Act . There is no issue about his having made the statement ; her testimony is uncon- troverted. 3. Threats of plant closure Myriam Dominguez testified that late in December James Vargas summoned the employees of Department 112 to a meeting and told them that the situation in the company was very bad and they would have to close the company or move it else- where . . . . Because there was no money .. . . He said something about moving the company to Mexico. Something like that. The linkage of these dire prospects to the negotiation of a new union contract was made express in the testimo- ny of Elisa Cruz: Jimmy said, and he repeated it again, that if we elected a union, whether it was either one of them, that the company would have to close because they didn't want any union, neither one of them . . . that if we elected one of the unions , either one of them, that they would be forced to close the company . ... that the company did not want the contract, that they were not going to sign the contract with either one of the unions but particularly Local 155. Luisa Rodriguez fixed the date and time of the meet- ing at which James Vargas made the quoted statements as 3:45 p.m. on January 6. Rodriguez testified that Vargas began the meeting by disclaiming personal re- sponsibility for what he ' was about to say and asserting that he was delivering a message from the boss: So he says that the union election was scheduled for January 20, 1984 in the same building on the second floor and the best for everybody was to vote no union . . . . Because the owner of the company was not going to sign the contract and he [would] rather close the company and everybody was going to end without a job than having a union in the company and after that he stated again-he stated please not to come to him, to ask no questions or to argue with him because he's got nothing to do with what he had just said. Vargas' speech, according to other uncontroverted tes- timony, was followed by the reading over the loudspeak- er system, by Reyna Fajarvo, of a letter from Nathan Hedaya's father, to the effect that he could not face any of the unions, was not willing to negotiate with either one of them, and would have to close the factory if he was compelled to do so. The making of these statements was witnessed by a number of employees who were prepared to testify, and it was stipulated that if they testified , their testimony would embrace the facts substantially as I have just recit- ed them. In addition, according to the stipulation, which is in the record of the hearing, Vargas stated that if the employees voted for no union , they would have the same wages and benefits that they had in the past but would not get a raise, and that if Local 155 won the election, they would be forced to close the plant. It was also stip- ulated that Hedaya's letter stated that if a union came in, they would be forced to close. None of this was controverted by Hedaya and Vargas. Fajarvo did not testify, though she attended a portion of the hearing, and I infer that had she testified , her testi- mony would not have been favorable to the Respondent. I find that the quoted statements were made to the em- ployees under the circumstances described , were in vio- lation of the Act, and are illustrative of the Respondent's animus toward the unions. F. Alleged Imposition of More Onerous Working Conditions The Respondent is alleged to have violated Section 8(a)(1) and (3) of the Act by instituting a new system of written warnings to employees for lateness and absentee- ism. It is contended that this subjected the employees to more onerous working conditions, and this is alleged to have happened on January 20, 1984, which was the date of the representation election. The credible testimony, backed up by documentary evidence, establishes only that the forms were changed around November and that, beginning around January 20, warnings were issued in vastly greater numbers than before. My examination of the old and the new forms fails to disclose any respect in which the official compa- ny policy can be said to have changed, though the new forms broaden the list of offenses which can result in dis- charge. The old form read as follows: Please be advised that this firm cannot tolerate unauthorized excessive absenteeism . This is your warning. After the third warning, you will be automatically terminated. The form adopted in November set forth the following message in English and in Spanish: Please be advised that this Company will not tol- erate any more lateness, absenteeism and negligence of production. This is your warning after your third warning you will be terminated. EMPLOYEES FAILING TO FOLLOW ORDERS WILL BE TERMINATED IMMEDIATELY. The evidence establishes quite clearly that, in fact, the dire threats contained in the warnings were almost never carried out and that the chief purpose of the letters was to try to scare the employees into better attendance. There is no respect in which the Respondent's actions in this regard made the working conditions of its employees any more onerous . No new system was instituted. Noth- ing really changed. The General Counsel introduced evidence of discipli- nary action taken against several employees, citing them as examples of the Respondent's "agressions against its employees." However, there is no evidence that any of the persons involved were union activists or sympathiz- HEDAYA BROS. ers, for either union. All that was provided was that there was instances of sporadic enforcement of the Com- pany's stated policy unrelated to any alleged violation of the Act. Thus, one employee was shown to have been discharged after more than 6 years with the Respondent, without any remarkable record of absences and late- nesses, because she punched in 1 minute late on February 2. There is no evidence of union involvement or Section 7 activity on her part. The only relationship to events in the plant is the date when this happened, which fell during the period when the results of the election were in dispute. The same deficiency exists in the case present- ed of an employee who had worked for the Respondent for 4 years, cleared permission through Fajarvo to absent herself for 1 day because she was required to be at her son's school, and then was fired. The same deficiency exists in the case of another employee who was not fired, but who received warning letters for latenesses of only a few minutes, something which is claimed not to have oc- curred before January 20. The General Counsel also cites the large increase in the number of warning letters issued, beginning around January 20, and theorizes that the Respondent was seek- ing retribution against its employees for their engage- ment in activities protected by Section 7 of the Act. The General Counsel relies on RAHCO, Inc., 265 NLRB 235 (1982), and Teamsters Local 164, 267 NLRB 8 (1983). In both cases cited, the employer's system of written warn- ings to employees was made significantly more severe after they began organizational activity. Those cases differ from the present case, however, in that the inten- tion of those employers to penalize their employees was established by independent evidence. In the RAHCO case, the employer explicitly threatened to penalize the employees for their activities. Neither case relied simply on the fact that the number of warnings issued was in- creased. As I have indicated elsewhere, the increase in the number of warning letters issued is a circumstance which has some significance. However, whether viewed by itself alone or in conjunction with the evidence that the threats contained in the letters were seldom implement- ed, the increase in the number of letters issued cannot reasonably be held to constitute the imposition of more onerous working conditions on the employees. 0. Posting of Notice Respecting New Year's Holiday and Union Contract In December, Nathan Hedaya posted a notice to the effect that the Respondent would not grant the employ- ees a paid day off in lieu of the New Year's Day holiday, which in 1984 fell on a Sunday. The notice also set forth that the Respondent would not otherwise abide by the terms of the collective-bargaining agreement between it and Local 966 after it expired at the end of December 31. No coercive effect is apparent merely from the action of the Respondent in putting up the notice. It merely set forth the Respondent's position respecting its liability- or rather its lack of liability-for holiday pay for that holiday, which came after the expiration of the collec- tive-bargaining agreement. The Respondent gave its em- ployees the New Year's Eve holiday, which fell during 957 the period of the agreement. The employees were, by means of the notice which was posted, given timely advice respecting a matter of concern to them. There is no evidence that the Respondent's objective was any- thing other than to inform the employees that they would be expected to.work New Year's Day. Accordingly, I find that the posting of the notice did not violate the Act. H. Advising Employees of the Futility of Electing a Union I have had occasion to refer to remarks made by James Vargas to the effect that the Respondent had no intention of signing a contract with either union. He said it to Cruz on January 19. He said it to everybody in a meeting which he held with the operators on January 6, regarding which Luisa Rodriguez testified. It was stipu- lated, in order to avoid cumulative testimony, that a number of the employees, if called to testify, would testi- fy that Vargas told that same meeting, which was the meeting at which Rayma Fajarvo read Hedaya's letter over the loudspeaker, that it was better to work without a union because if they voted for no union, they would continue to have the same wages and benefits that they had had in the past, though they would not a get a raise. The Respondent thus told its employees that a vote against the union would not result in a reduction in pay and that electing a union would not result in an increase in pay or benefits. It thereby committed a blatant inter- ference with the right of its employees to engage in con- certed activities protected by Section 7 of the Act and to organize, assist, and support a union of their choice. It was an attempt to induce them to abandon their collec- tive-bargaining representative by means of an implied threat that the election of either union would result in loss of wages and job security and that such action by them would be futile, because the best that they could hope to accomplish would be to retain the present wage and benefit structure, which they could do without any union at all. This action by the Respondent violated the Act. See Oak Mfg. Co., 141 NLRB 1323 (1963). 1. Failure to Bargain in Good Faith Section 8(d) of the Act requires that the employer meet with the employees' representative at reasonable times and "confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiations of an agreement or any question arising thereunder." Nevertheless, "such obligation does not compel either party to agree to a proposal or require the making of a concession." The Act contains very specific requirements for service of notice where a party seeks modification of a contract already in effect; when such a notice is served, pending discussions pursuant to it, "no party to such contract shall terminate or modify such contract." The agreement between the Respondent and Local 966 was, by its terms, effective as of January 1, 1981, for a period of 3 years, to 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continue from year to year thereafter unless either party shall give the other notice of intention to ter- minate or modify this Agreement by written notice given not less than sixty (60) days prior to such ex- piration date. As of January 1, therefore, the agreement was due to be renewed automatically unless a notice was served as therein provided. On October 4, Local 966 sent the Re- spondent a notice by registered mail stating that it de- sired to modify the agreement and inviting Respondent to get in touch with it to arrange for commencement of negotiations. The Respondent did not do so. In the last week in December, the Respondent posted the above-mentioned notice to its employees, which read as follows: Due to the fact that the I.L.G.W.U. is looking for an election, the law does not permit your union to negotiate a new contract until after the election. The old contract expires December 31, 1983. Therefore, on January 1, 1984, there is no contract by law and no obligation by the company to pay the New Year's Day holiday. Accordingly, the company will not pay for not working on New Year's Day holiday, or otherwise, live up to the other benefits of the expired contract. However, New Year's Eve will be paid for according to the terms of the old contract. Hedaya Brothers, Inc. On February 8 Local 966 sent the Respondent a tele- gram demanding "on behalf of your bargaining unit em- ployees" that terms and conditions of employment be ne- gotiated. On February 13 the Respondent replied that it was prepared to meet at any time and invited Local 966 to telephone to make arrangements. The parties scheduled and held meetings on February 17 and February 24 at the Respondent's Bush Terminal office (which was the one on Third Avenue). Further meetings were held on March 27 and April 11. No agreement was reached. As the notice to the employees, which I quoted above, indicates, the Respondent unilat- erally took certain steps upon the expiration of the col- lective-bargaining agreement. After the first two meet- ings, the Respondent took additional action. Charges were filed as a result of the Respondent's unilateral ac- tions and it was further alleged that the Respondent had failed to bargain in good faith. Violations of Section 8(a)(1) and (5) are alleged on four counts: Since January 1, the Respondent unilaterally changed terms and conditions of employment by re- fusing its employees a paid weekday off to compen- sate them for a paid holiday for New Year's Day 1984. Since February 8, Respondent has refused to bar- gain with Local 966 as the exclusive collective bar- gaining representative of its employees in the unit consisting of all production and maintenance, ship- ping and receiving employees of Respondent at its two locations, exclusive of office clerical employ- ees, truck drivers, guards and supervisors, over terms of the contract to replace the contract which had been effective from January 1, 1981 to Decem- ber 31, 1983. At negotiation sessions with Local 966 on Febru- ary 17 and February 24, Respondent failed to bar- gain in good faith. Since February 20, Respondent unilaterally changed terms and conditions of employment by paying only at straight time rate for work done by employees on Washington's Birthday and by com- pelling employees to work on that day. The Respondent concedes the basic facts respecting its refusal to be bound by contractual terms of the expired contract, asserting its posthearing brief: Respondent notified employees that it would not abide by the terms of the expired contract and uni- laterally changed terms of employment. Respondent was entitled to do so inasmuch as a dead-lock or impasse in bargaining had been reached. There has been no effort on the part of the union to bargain before February 8, 1984 or to continue further bar- gaining after April 11, 1984. Under these conditions the respondent is not required to maintain the eco- nomically devasting labor costs ad infinitum. The issues are thus squarely presented whether the Re- spondent was entitled to take the actions which it took unilaterally and whether it negotiated in good faith. The law is well settled that pending negotiation of a new agreement under circumstances, such as those which existed in the present case when negotiations are sought and while they are in progress, the existing terms and conditions of employment are carried forward into the period of negotiations and, unless and until an im- passe is reached, those terms and conditions may not be unilaterally changed or repudiated by the employer. Taft Broadcasting Co., 163 NLRB 475 (1967), affd. sub nom. Television Artists AFTRA, Kansas City Local, 395 F.2d 622 (D.C. Cir. 1968). The Respondent contends that negotiations did, in fact, reach an impasse. That argument does not help it insofar as its actions in December 1983 are concerned. At that time, before negotiations had begun, the Re- spondent repudiated the contract provisions governing the New Year's Day holiday. Neither does the argument help it in connection with its repudiation of the provi- sions respecting Washington's Birthday, for at that time only one negotiating session had been held and a second session was scheduled for about 1 week after the holiday. Furthermore, I do not find that the negotiations be- tween these parties ever reached an impasse. Notwith- standing its contentions in these proceedings, and He- daya's quotation in the course of his testimony, of state- ments by Gonzalez, in which Gonzalez used the term, it is apparent that at the time the Respondent did not con- sider an impasse to have been reached. It never called on Federal or state mediation services. After the first two negotiating sessions, the Respondent sent Local 966 an invitation to continue negotiating and Local 966 accept- HEDAYA BROS. ed the invitation, with the result that further sessions were held in March and April. Most importantly, I find that the Respondent did not negotiate in good faith. My reasons for this conclusion are set forth below, but I mention it at this point because without good-faith bargaining on its part , there cannot have been an impasse which justified the Respondent's actions. United Contractors, 244 NLRB 72 (1979), enfd. mem. 108 LRRM 3152 (7th Cir. 1980). Besides the lack of good faith and the fact that only one bargaining session had been held as of Washington's Birthday (there had been none as of New Year's Day and at second meeting was scheduled but had not yet been held), there are the additional circumstances that as of the time the unilateral actions had been taken, neither side had yet presented any alternative proposals. There cannot be an impasse until the parties have exerted their best efforts to reach an agreement: A genuine impasse in negotiations is synonymous with a deadlock: the parties have discussed a sub- ject or subject in good faith and, despite their best efforts to achieve agreement with respect to such, neither party is willing to move from its respective position. NLRB v. Herman Sausage Co., Inc., 275 1F.2d 229, 234 (5th Cir. 1960). None of the commonly accepted requisites of an impasse exist to the present case: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the ne- gotiations, the importance of the issue or issues about which there is disagreement, the contempora- neous understanding of the parties about the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining exist- ed. Taft Broadcasting Co., WDAF AM-FM TV, 163 NLRB 475, 478 (1967), affd. sub nom. American Federation of Television and Radio Artists, AFL-CIO, Kansas City Local, 395 IF.2d 622 (D.C. Cir. 1968). My review, below, of the circumstances of the bargain- ing which took place will amply demonstrate the failure to approach the criteria set forth in the cases. It is clear that there was no impasse at the time the Respondent ini- tiated any of its unilateral changes in working conditions. The Respondent somewhat lamely attempted to justify its unilateral actions on the basis of statements purported- ly made by Gonzalez, in which he referred to the situa- tion in the negotiations as an impasse, and on a leaflet distributed by Local 966 referring to the contract as having expired on December 31 and being no longer ef- fective. Gonzalez, in his testimony, did not concede having made references to an impasse, but even had he clone so, it would not be binding on the parties or on me. There is no way that an impasse can be found to have existed during the period up to Washington's Birthday. Concerning the leaflet, a question of interpretation pa- tently exists but, in any event, a waiver of rights under a collective-bargaining agreement must be explicit and will not be presumed. No such waiver exists in the present 959 case. This would be obvious even from the fact that the leaflet was not addressed to the Respondent, but to its employees. Finally, Hedaya testified that he made the de- cision not to pay for New Year's Day before he saw the leaflet, so he could not have acted on the basis of it, and his testimony that it "confirmed " his opinion is under- mined by the fact that he telephoned Gonzalez to advise him of his decision, something he would not be expected to do if he were so sure that the contract was no longer effective. This brings us squarely to the question whether the evidence establishes a pattern of behavior which is in effect a refusal to negotiate, or which directly obstructs or inhibits the actual process of discussion, or which reflects a cast of mind against reaching agreement. NLRB v. Katz, 369 U.S. 736, 747 (1962). The Court remarked in the Katz case that the taking of unilateral action by an employer before an impasse has been reached is symptomatic of an unwillingness to come to an agreement with a union . The Respondent's actions in that regard are therefore indications of its lack of good faith, but they are not the first such indication chronologically. I noted earlier in this decision that the Respondent did not respond to Local 966's request for negotiations sent by registered mail in October . The Re- spondent attributed its failure to respond to its erroneous belief, as set forth in the notice to the employees which it posted in December, to the fact that negotiations with Local 966 had to be deferred pending the outcome of the election sought by Local 155. I do not find this excuse credible, but even if it were true , the Respondent's igno- rance of the law or mistake about the law is no excuse. I note that the Board's holding that mere filing of a repre- sentation petition by a challenging union would no longer require or permit an employer to withdraw from bargaining was more than a year old when Local 966 served its notice of intent to seek modification of the ex- isting contract. RCA Del Caribe, Inc., 262 NLRB 963 (1982). I note further that no basis for the asserted belief that Local 966 may no longer have represented a majori- ty of the employees existed other than the filing of the petition by Local 155. The Respondent's bad faith, and its animus, are dem- onstrated by Nathan Hedaya's explicit promise to the employees that the wage and benefit structure of the ex- pired contract would be kept in effect if they voted for no union. Respondent thereby sought to bypass the union, with which it was obligated to negotiate, and to negotiate directly with the employees , which is precisely the type of conduct which the Act prohibits . NLRB v. General Electric Co., 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1979). The Respondent's animus is also indicated in James Vargas' statements to employees that the Respondent did not intend to sign a contract with either union, and by its commission of the unfair labor practices which I have found it to have committed. See also NLRB v. My Store, 345 F.2d 494 (7th Cir. 1965), cert. denied 382 U.S . 927 (1965). 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The character of the negotiations themselves was en- tirely in character with these inauspicious beginnings. On February -17, Gonzales presented proposals respecting wages, overtime pay, paid holidays , vacation pay, work breaks, sick days, Christmas bonus, work clothing allow- ance, health and pension plan, nondiscrimination clause, contract term, protection-of-rights clause (pertaining to employees' right to refuse to cross a picket line or handle struck goods). Hedaya's response to all this was that the Respondent could not afford to maintain even the cur- rent wage structure, let alone improve on it. He pro- posed, instead, to eliminate all holidays except New Year's Day and Christmas Day, all vacations, the cloth- ing allowance, and reduce the breaktime to two daily breaks of 5 minutes each. On February 24, Local 966 presented a scaled-down version of its initial demands. Hedaya made a remark to the effect that it was better for Local 966 to accept his proposals and keep the employ- ees working. He made no change in his own counterpro- posals and refused to discuss the noneconomic proposals of the union. Gonzalez thereafter had difficulty reaching Hedaya to set up another meeting. None of the charges in this case relate to the subse- quent negotiating sessions , but it is noteworthy that no other counterproposals were ever made by the Respond- ent, except that they were changed to the extent that it was proposed to eliminate work breaks altogether and a proposed set of company rules was presented for consid- eration by Local 966. At the same time, counsel for the Respondent asserted the Respondent 's willingness to con- tinue talking and suggested that the nondiscrimination clause be discussed. In these sessions, the Respondent declared that it was in economic difficulty. At the final session it was asserted that the Respondent had been losing money for 2 years. At the fourth session, examination of the Company's books was offered to Gonzalez, and Gonzalez' testimony indicated, in direct response to questions which I put to him, that they had been offered to him on earlier occa- sions but he had not examined them. They were not pro- duced at the hearing and the Respondent made no at- tempt to prove that its bargaining position was justified by a condition of financial extremity . The fact that it of- fered inspection of its books to Local 966 does not estab- lish that it was in financial difficulty and that those diffi- culties controlled its bargaining position . Its failure to offer proof of its financial condition at the hearing, on the other hand, suggests that its bargaining position did not truly reflect its financial condition . The bottom line of its tax return would have answered a lot of questions. I never heard of a business which did not claim a tax loss if it had one. As it turned out, the only evidence of the Respondent's financial condition which was available at the hearing was a Dunn & Bradstreet report on the company for November 1983 which stated, Sales for the last ten months ending October 31, 1983 were up compared to the same period last year and the profit for the period was even and expected to continue. Hedaya testified that he furnished truthful information to Dunn & Bradstreet, so their report may be taken as authoritative. The Respondent 's insistence on the wage position which it originally proposed, with no hint of any possi- bility for compromise, modification, or substitution of some benefit in some other area of negotiations if its al- ternate proposal were accepted by Local 966 , is conduct which was characterized in the General Electric case as violative of the Act. It is true, as the Respondent con- tends, that the Act specifically protects an employer from being pressured into an agreement, but the Respon- ent appears to be ignoring the well-settled principle that an employer may not utilize that statutory protection as a cloak for bargaining in bad faith. NLRB v. Herman Sausage Co., 275 F.2d 229, 232 (5th Cir. 1960). Cognizance must also be taken of the unreasonable nature of the Respondent's proposals . The presentation of proposals with knowledge that the other side is cer- tain to reject them demonstrates bad faith , and I cannot believe that the Respondent thought for a minute that Local 966 would give serious consideration to its propos- als. NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir. 1953), cert denied 346 U.S. 887 (1953); United Contractors, 244 NLRB 72 (1979), enfd. mem. 108 LRRM 3152 (7th Cir. 1980). The Respondent 's adamance and its presentation of un- reasonable and unacceptable proposals are not offset by its display of willingness to meet and talk with Local 966. Unquestionably, it accepted Local 966's second invi- tation to meet and talk, and it took the initiative in set- ting up the third meeting (after charges of violation of Section 8(a)(5) of the Act were filed by Local 966). Nev- ertheless, mere willingess to meet and talk is insufficient if good faith is lacking , as it was in this case. The ada- mant attitude and background of other violations which I have found to have taken place before the negotiations commenced are factors which cannot be overlooked. NLRB v. Denton, 217 F.2d 567 (5th Cir. 1954), cert. denied 348 U.S. 981 (1954). The Respondent's bad faith is clearly established by the background of other unfair labor practices, its failure to respond to the initial invitation to negotiate, its unilat- eral change in the terms and conditions of employment, the statements made to employees that the Respondent would pot sign a contract with either Local 966 or Local 155, the substantive contents of the Respondent's propos- als, its failure to make any reasonable counterproposals, and its inflexibility. The totality of the Respondent's con- duct has to be considered in determining whether it bar- gained in good faith with Local 966. NLRB v. Reed & Prince Mfg. Co., supra; Continental Insurance Co. v. NLRB, 495 F.2d 44 (2d Cir. 1974). A review of this Re- spondent's overall conduct leads to the inescapable con- clusion that it never intended to and did not negotiate with Local 966 in good faith. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The violations of the Act found to have been commit- ted by the Respondent have a close, intimate, and sub- HEDAYA BROS. stantiial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Hedaya Brothers, Inc. is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local 966, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Local 155, Knitgoods Workers' Union, International Ladies' Garment Workers' Union, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees and shipping and receiving employees employed by the Re- spondent at its Third Avenue and 18th Street facilities in Brooklyn, New York, excluding office clerical employ- ees, truck drivers, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining. 4. Local 966, at all material times, was the exclusive representative of the employees in the above-described unit for purposes of collective bargaining with respect to rates of pay, hours of employment, and other terms and conditions of employment. 5. The Respondent violated Section 8(a)(1) of the Act. (a) By unlawfully interrogating employees respecting their intention to go out on strike, acting through Hector `Vargas and Virginia Ramos in December 1983. (b) By threatening that employees who went out on strike would be dismissed, acting through Hector Vargas in December 1983. (c) By threatening that Respondent's plants would have to close and Respondent would go out of business if the employees elected a union as their collective-bar- gaining representative, acting through James Vargas and Nathan Hedaya on January 6, 1984. (d) By advising employees that electing a union to rep- resent them would be futile, acting through James Vargas on January 6 and 19, 1984. 6. The Respondent violated Section 8(a)(1) and (3) of the Act by discharging Elisa Cruz on February 8, 1984, because of her activities on behalf of Local 155. 961 7. The Respondent violated Section 8(a)(1) and (5) of the Act (a) By unilaterally changing terms and conditions of employment, by repudiating holiday pay provisions con- tained in the collective-bargaining agreement between the Respondent and Local 966 which expired on Decem- ber 31, 1983, though Local 966 had requested negotia- tions to modify said agreement. (b) By failing to bargain in good faith with Local 966 on February 17 and 24, 1984. 8. The Respondent did not commit any other viola- tions of the Act except as herein found. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in unfair labor practices, I recommend that the Respondent be di- rected to cease and desist therefrom and take certain af- firmative action to effectuate the policies of the Act. Ac- cordingly, I shall recommend that the Respondent be di- rected to bargain in good faith with Local 966 and confer with Local 966 respecting changes in terms and conditions of employment pending an accord. Having found that the Respondent discharged Elisa Cruz in vio- lation of Section 8(a)(1) and (3) of the Act, I recommend that the Respondent be ordered to offer her reinstate- ment to her former, or a substantially equivalent position, without prejudice to her seniority rights and privileges, and make her whole for any loss of earnings and other benefits which she may have suffered by reason of her discharge on February 8, 1984, with backpay to be com- puted in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977) and Isis Plumbing Co., 138 NLRB 716 (1962). I further recommend that the Respondent be required to remove from its records any reference to its unlawful discharge of Elisa Cruz and provide her with written notice of such removal and that her unlawful discharge will not be the basis of any future personnel action against her. [Recommended Order omitted from publication]