15Th Avenue Iron Works, Inc,, And Abitat Builders And Management Corp.

15TH AVENUE IRON WORKS 15th Avenue Iron Works, Inc., and Abitat Builders and Management Corp. and Shopmen's Local Union No. 455 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO 15th Avenue Iron Works, Inc. and Shopmen's Local Union No. 455 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Cases 29-CA-10125, 29- CA-10234, 29-CA-10799, and 29-CA-10969 29 April 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 29 November 1984 Administrative Law Judge Steven Davis issued the attached decision. Exceptions thereto were to have been filed with the Board by 24 December 1984. As no exceptions or requests for an extension of time appeared to have been filed, the Board pursuant to Section 10(c) issued an Order on 2 January 1985,1 adopting the decision and order of the judge. Thereafter, the Respondent contacted the Board and later sent an affidavit saying that it had mailed a request for an extension of time to file exceptions on 23 Decem- ber 1984. On 4 January the Board rescinded the Section 10(c) Order and instructed that 23 January was the last date for filing exceptions. On 16 Janu- ary the Union objected to the rescission and re- quested that the Board reinstate its original Order. Thereafter, on 18 January the Respondent re- quested another extension of time for filing excep- tions. Over the Union's objection the Board grant- ed a second extension and set 25 February as the due date for exceptions. On 1 March the Respondent's exceptions were received in the Board's mailroom at headquarters. The exceptions are dated 21 February and post- marked 26 February. No certificate of service was included with the exceptions. In view of the late filing, the Board on 25 October issued a Notice to Show Cause why the exceptions should not be deemed waived as untimely filed. The notice stated that responses were to be received on or before 8 November. Counsel for the General Counsel re- sponded timely, stating that he took no position on the issue. Thereafter, the Board received a letter from the Respondent, dated 26 November, which stated in relevant part: We did not reply to the Notice to Show Cause because the documents submitted in February, 1985 contained an •affadavit [sic] of service in- 1 Unless otherwise indicated all dates refer to 1985 643 dicating that the exceptions were filed on or before February 25, 1985. I am responding at this late date so that the Board does not assume that I am ignoring their Notice to Show Cause. However, I reit- erate that the records speak for themselves in that the exceptions were timely filed. 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 record in this case. No good cause having been shown why the Respondent's exceptions should not be deemed waived as untimely, the Board has de- cided to reject the exceptions and to affirm the judge's rulings, findings, and conclusions and to adopt his recommended Order. Section 102.48(a) of the Board's Rules and Regu- lations states: In the event no timely or proper exceptions are filed as herein provided, the findings, con- clusions, and recommendations contained in the administrative law judge's decision shall, pursuant to section 10(c) of the act, automati- cally become the decision and order of the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all pur- poses. Section 102.46(a) of the Board's Rules further specifies that exceptions to the judge's decision must be filed with the Board, in Washington, D.C., within the time period allowed by the Board, and Section 102.114 of the Board's Rules states that such exceptions must be received by the Board before the close of business of the last day of the time limit. In Central Motor Express, 276 NLRB 1205 (1985), we stated that documents are "filed" with the Board when they are received in the Board's mailroom at its headquarters in Washington, D.C. We also stated, "When a party places documents in the mail at a time when he can reasonably expect that such action will result in their timely receipt, that party has the right to assume that such will occur." The Respondent could not have reasonably ex- pected a timely receipt of its exceptions inasmuch as they were not posted until the day after the date set for filing exceptions. Further, the Respondent intentionally disregarded the due date set in the Board's Notice to Show Cause and thus did not timely avail itself of the opportunity to explain the late submission by responding to the Board's 279 NLRB No. 91 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Notice to Show Cause. Moreover, the Respond- ent's belated 26 November letter is insufficient to justify acceptance of the exceptions, based on the bare claim that an affidavit of service indicated that the exceptions were filed on or before 25 February 1985. Contrary to the Respondent's assertion, its February submission does not contain an affidavit of service.2 Under these circumstances, we deem the exceptions waived, and we adopt the decision and recommended Order of the judge. ORDER It is ordered that the Respondents, 15th Avenue Iron Works, Inc. and Abitat Builders and Manage- ment Corp., Brooklyn, New York, their officers, agents, successors, and assigns, shall take the action set forth in the judge's recommended Order. 2 Inasmuch as the purported "affidavit of service" attached to the ex- ceptions was mailed to the Board, the Respondent could not have validly attested to anything more than the date that these documents were placed in the mail The record does not indicate when this event oc- curred Elias Feuer, Esq., for the General Counsel. Richard Berg, and Salvatore Spinelli, Esqs., of Flushing, New York, for the Respondent. Vicki Erenstein, Esq. (Sipser, Weinstock, Harper, Dorn & Leibowitz), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Pursuant to charges filed in December 1982; in February, October, and November 1983; and on January 9, 1984, by Shop- men's Local Union No. 455 of the International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (the Union) complaints were issued on March 31, 1983, December 7, 1983, and February 16, 1984, by Region 29 of the National Labor Relations Board, and were thereafter consolidated for hearing, which was held before me in Brooklyn, New York, on October 17-21 and December 22, 1983, and March 5 and 6, and April 18-20, 1984. The complaints, as amended at the hearing, allege that 15th Avenue Iron Works, Inc. (15th Avenue) and Abitat Builders and Management Corp. (Abitat), or both called Respondent, violated Section 8(a)(3) and (1) of the Act by (a) Discharging Angel Rosario and laying off Francis- co Garcia and Jose Rodriguez because of their member- ship in and activities on behalf of the Union. (b) Discharging Mario Castro and Haun Corrales be- cause of their membership in and activities on behalf of the Union, and because they gave testimony at a hearing. (c) Withholding from Carlos Arias money from a bank loan. (d) Ceasing the assignment of overtime following the Board election. (e) Assigning Mario Castro to more arduous and less agreeable job tasks. The complaints also allege that Respondent failed and refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act by (a) Failing to provide certain requested information concerning unit employees. (b) Canceling negotiation sessions. (c) Withdrawing all its bargain proposals and its agree- ments with the Union on certain items previously agreed to. (d) Demanding as a condition of reaching agreement that the Union agree to liquidate Respondent's backpay liability in the unfair labor practice cases, and also agree not to maintain such unfair labor practice charges. The complaints finally allege that Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their union membership; threatening employ- ees with discharge, plant closure, and removal of the plant if they became or remained members of the Union; threatening employees with discharge if they voted in the Board election; keeping under surveillance the meet- ings of the Union by photographing a meeting; and threatening a union official with bodily harm if he did not cease his organizing activities. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION 15th Avenue, a New York corporation, having its principal office and place of business at 1676 61st Street, Brooklyn, New York, is, and has been at all times mate- rial herein, engaged in the manufacture, sale, and distri- bution of iron staircases, railings, window guards, and re- lated iron products. During the year ending December 31, 1982, 15th Avenue, in the course and conduct of its business oper- ations, purchased and caused to be transported and deliv- ered to its place of business supplies and materials valued in excess of $50,000, which were delivered to its Brook- lyn, New York place of business directly from locations outside New York. Respondent admits, and I find, that 15th Avenue is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Abitat, a New York corporation, having its principal office and place of business at 6016 15th Avenue, Brook- lyn, New York, is and has been at all times material herein, engaged in business as a masonry contractor on construction sites. The General Counsel alleges that 15th Avenue and Abitat constitute a single integrated business enterprise. Inasmuch as I have found, for the reasons discussed hereafter, that 15th Avenue and Abitat are a single inte- grated enterprise, jurisdiction over Abitat is obtained by 15TH AVENUE IRON WORKS virtue of the Board having jurisdiction over 15th Avenue. II ALLEGED UNFAIR LABOR PRACTICES A Single Integrated Enterprise 1 Facts 15th Avenue has been in business for 25 years. It man- ufactures and installs iron rails, fences, stairs, cellar doors, and small structural steel items. The officers of 15th Avenue are three family members: Giovanni (presi- dent and sole stockholder), Pat, and Steve Degliuomini. i The office of 15th Avenue is at 1676 61st Street, Brook- lyn. Abitat was organized in January 1982. The address listed on its incorporation papers for the service of proc- ess is the address of 15th Avenue Ironworks. Its officers are Pat and Steve Degliuomini, president and treasurer, respectively, Thomas Galletta, vice president, and Biagio Lamberti. Galletta, Pat, and Lamberti each have a 30- percent interest in the Company, while Steve has a 10- percent share It is engaged in such work as masonry and concrete, brick, block, and foundation jobs. It was de- scribed as a general contractor which subcontracts much of its work. It was testified that if Abitat is engaged in a job needing iron work it will "favor" 15th Avenue and, similarly, 15th Avenue will "favor" Abitat if it needs a general contractor. It was stipulated that from the time that Abitat was created, until about March 16, 1982, when Abitat opened its own bank account, 15th Avenue issued checks to Abitat, Abitat's suppliers and subcontractors, and to Gal- letta However, even thereafter, 15th Avenue occasional- ly paid Abitat's bills, for example, if Abitat was short of money 15th Avenue would advance sufficient funds to Abitat to pay Abitat's payroll. 15th Avenue was thereaf- ter reimbursed by Abitat. Prior to March 1982 Abitat shared an office with 15th Avenue but paid no rent for it, and Abitat's clerical work was performed by 15th Avenue personnel and by Galletta. In March 1982 Abitat opened its office which is 2-1/2 blocks from 15th Ave- nue's office. Pat and Steve Degliuomini have continued to sign Abitat's checks. The accountants, insurance brokers, and labor attorney for 15th Avenue and Abitat are the same. Although it was testified that 15th Avenue and Abitat are separate companies, Abitat worked on only one job at which 15th Avenue played no role. When Abitat performed renovation work on the build- ing leased by 15th Avenue, Abitat was paid by 15th Avenue on the basis of payroll plus cost of materials. No profit was included in the pricing of the job. During such renovation work, employees of 15th Avenue were asked to and did work with Abitat's employees, but were paid by 15th Avenue. During the period October 1982 to January 22, 1983, Abitat Officials Galletta and Lamberti were included in the same Blue Cross coverage, on the account of 15th Avenue, as Pat and Steve Degliuomini. Similarly, all 3 For clarity, they will sometimes be referred to as Pat and Steve 645 those persons were included in the same U.S. life cover- age, on Abitat's account, during August 1982. Pat and Steve Degliuomini make the day-to-day deci- sions concerning the operation of 15th Avenue, and Gal- letta makes such decisions for Abitat. According to Pat, Galletta does not work at 15th Avenue and has no voice in 15th Avenue policy. Pat Degliuomini stated that Galletta is in charge of the operation of Abitat, adding however that Galletta keeps him advised of its daily operation. Although Galletta makes the decisions covering Abitat's operation, Pat is occasionally consulted concerning certain jobs. For ex- ample, Pat suggests different ways of doing certain work, in order to obtain a less expensive, faster result. From January 1982 to the summer of that year, Pat and Steve Degliuomini performed such work for Abitat as checking some jobs and giving their opinion on certain work. Since March 1982 Pat and Steve Degliuomini have been in Abitat's office less than 5 hours per week. There are times when they do not visit that office for months at a time. Pat and Steve spend most of the week perform- ing physical labor at 15th Avenue's jobsite. Pat Degliuomini stated that Galletta does the hiring for Abitat. Pat never told him not to hire someone. However, as to discharge, when Union Official Schifano attempted to question Galletta concerning the discharge of Angel Rosario, an Abitat employee, Galletta told Schifano to speak with Pat. Pat told Schifano that he had a lot of problems with Rosario, "could not take it," and did not want to see Rosario any more. Pat admitted that Galletta tried to recall Rosario to work. Moreover, Rosario received unemployment insurance on the ac- count of 15th Avenue. Also, Pat Degliuomini testified that he told Galletta that certain 15th Avenue employees would be available to him to work on the renovation of the 15th Avenue premises, and in this connection 15th Avenue employee Frank Garcia was given orders by Galletta to perforn certain work but he refused. Thereaf- ter, Steve Degliuomini told Garcia that he was disap- pointed with him for refusing Galletta's instructions. 2. Analysis The Supreme Court held in Electrical Workers IBEW Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255, 256 (1965), that in determining whether enterprises con- stitute a single employer: The controlling criteria, set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership. The Board in Blumenfeld Theatres Circuit, 240 NLRB 206, 214-215 (1979), held that a "single employer" status, for the purposes of the National Labor Relations Act, depends on all the circumstances of the case and that not all the "controlling criteria" specified by the Supreme Court (in Radio & Television Broadcast Technicians, supra) need be present. The Court in NLRB v. Deena Artware, 361 U.S. 398, 402 (1960), held that the "single employer" standard is 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relevant to the determination that "separate corporations are not what they appear to be , that in truth they are but divisions or departments of a single enterprise." The Third Circuit in NLRB v. Browing-Ferris Indus- tries, 691 F.2d 1117, 1122 (3d Cir. 1982), held: A "single employer" relationship exists where two nominally separate entities are actually part of a single integrated enterprise so that, for all pur- poses, there is in fact only a "single employer." The question in the "single employer" situation, then, is whether the two nominally independent enterprises, in reality , constitute only one integrated enterprise. The evidence establishes that 15th Avenue was the prime mover in the creation of Abitat and its initial orga- nization . The Degliuominis are officers and stockholders of both companies. Angelus Block Co., 250 NLRB 868, 876 (1980). Abitat used 15th Avenue as its office when it opened but paid no rent for doing so, listed 15th Ave- nue's address as the location for the service of process; and 15th Avenue issued checks to Abitat, its suppliers, and subcontractors, and thereafter paid Abitat 's bills if it was short of funds for payroll . Edward C. Kelly Co., 230 NLRB 337, 338-339 (1977). The interrelationship of 15th Avenue and Abitat is clearly shown in the fact that Abitat worked on only one job at which 15th Avenue played no role, and that Gal- letta, Abitat 's manager, keeps Pat Degliuomini informed of its daily operations . In addition Pat is consulted as to the ways in which Abitat should perform its work. Concerning labor relations, employees of 15th Avenue such as Rosario were transferred to Abitat's payroll but, when Rosario was discharged , Galletta told Union Offi- cial Schifano to speak with Pat Degliuomini who said he had problems with Rosario's unemployment and did not wish to see him anymore . Pat and Steve Degliuomini have signed all of Abitat's payroll checks which were re- ceived in evidence . United Contractors Inc., 220 NLRB 463, 464 (1975). In performing the renovation work at 15th Avenue, Abitat received no profit for such work and its manager, Galletta, supervised 15th Avenue's em- ployees. The officials of both companies were listed together on certain medical and life insurance policies of either company Edward C. Kelly Co., supra, and both compa- nies employ the same accountant and law firm . United Contractors, supra. Thus, although 15th Avenue and Abitat are now tech- nically separate corporations having separate bank ac- counts and separate payrolls, their operations are interre- lated . Angelus Block, supra. The Degliuominis' father is the sole owner of 15th Avenue , Pat and Steve own a 40- percent share in Abitat and they are apprised on a daily basis of Abitat's operations . Pat and Steve also give advice to Galletta on how to perform work, and have checked some of Abitat 's jobs. The companies perform interrelated tasks. Abitat, a general contractor, performs concrete , masonry, and foundation work while 15th Avenue manufactures non- structural steel items such as rails, fences, and stairs Each company "favors" the other when a job requiring the expertise of the other is required. Although it is true that Abitat has its own employees, payroll, and office, the evidence supports a finding that Abitat, formed with the active assistance of 15th Avenue, continues to have a close business relation to it. Although Galletta is the nominal head of Abitat, it is clear that he looks to the Degliuominis for advice (con- cerning jobs) and direction (concerning the discharge of Rosario) in the performance of his work. I accordingly find and conclude that 15th Avenue and Abitat constitute a single, integrated enterprise as alleged in the complaint B. The Supervisory Status of Nikolas Molfetas 1 Facts The General Counsel alleges that Molfetas is an agent and supervisor of Respondent. Respondent denies this. Molfetas, the foreman of 15th Avenue , received health benefits that other employees did not enjoy He was the only employee who received paid vacations. The reason for this, according to Pat Degliuomini , was that although no company policy existed concerning paid vacations, Molfetas received such a benefit because he was a trust- ed and long-tenured (7 to 8 years) employee, and the other employees did not receive such pay because they had not worked for Respondent long enough . His $10 hourly wage was far higher than the following wages re- ceived by employees prior to the election Arias, $6.50; Castro, $5; Corrales, $4.25; Garcia, $4.25; Pierre, $4 75; Rivers, $5; Rodriguez , $4.50, Rosario, $4.75, Schiava, $6.25, and Yale, $6. Employee Juan Corrales testified that Molfetas as- signed overtime to the workers , and employees Carlos Arias, Francisco Garcia , and Jose Rodriguez stated that Molfetas gave orders and directed their work . Molfetas, who did not testify, also performed physical work with the employees. Testimony was received concerning Molfetas' dis- charge of employees . Employee Arias testified that about 1 week after the Board election , Arias and employee Al- berto Encarnacion conversed in Spanish . Molfetas told Encarnacion to stop talking . Encarnacion refused and Molfetas physically tried to eject Encarnacion from the shop. They went outside, Molfetas, holding a piece of pipe, chased Encarnacion who held a rock . Molfetas told Encarnacion that he never wanted to see him at the shop. Later, Encarnacion spoke to Steve Degliuomini, who shrugged his shoulders. Encarnacion did not retun to work thereafter.2 On another occasion, Arias heard a worker who had been employed only 1 day tell Molfetas that he (the new employee) could do better work than Molfetas. Molfetas replied that if that was true he must leave and wait for Steve Degliuomini . The new worker replied that Molfe- tas is not the boss and, inasmuch as Steve hired him, 2 Employee Francisco Garcia testified about a prior fist fight between Molfetas and Encarnacion , as a result of which Encarnacion was not dis- charged 15TH AVENUE IRON WORKS only he could tell him when to leave. The man did not work for Respondent after that day. Employee Jose Rodriguez testified that he heard Mol- fetas tell his brother-in-law, Antonio Roldriguez, that since Antonio failed to appear at work on Saturday, or if he did work Saturday he would take off 1 day during the week, "he no longer works for me," and I "no longer have any work for him" Antonio did not work for Respondent thereafter. As will be discussed more fully, infra, following the Board election overtime for the union adherents was se- verely curtailed. Employee Castro repeatedly requested more overtime work and Molfetas refused to assign such work to him on the ground that he voted for the Union. This uncontradicted testimony clearly shows that Molfe- tas had the authority to assign and refuse to assign over- time work. Also, Castro gave uncontradicted testimony that on the day of his discharge he asked Molfetas for and received permission to leave the job early. 2. Analysis Section 2(11) of the Act defines a supervisor as "any individual having authority, in the interest of the em- ployer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such au- thority is not of a merely routine or clerical nature, but requires the use of independent judgment." It is well settled that Section 2(11) must be read in the disjunctive, and that supervisory status is established by the presence of any one of the criteria listed above. Southern Indiana Gas Co. v. NLRB, 657 F.2d 878 (7th Cir. 1981), NLRB v. Publishers Printing Co, 625 F.2d 746 (6th Cir. 1980), enfg. 233 NLRB 1070 (1977); Hopp Topp Mfg. Co., 250 NLRB 232 (1980); Gurabo Lace Mills, 249 NLRB 658 (1980). The evidence set forth above clearly establishes that Molfetas possessed the authority, which he exercised, to direct the work of the employees, assign overtime work, discharge employees, and grant permission to leave work early if an employee is sick. Although Molfitas is the foreman who performed physical labor with the men on the jobs, it is clear that he was endowed with more power than a mere working foreman with no supervisory authority According to Pat Degliuomini, Pat and Steve would be at the jobsite in the morning to set up the work and start the job off and then would not generally return. Therefore, it is obvious that someone must have been in charge of the men during the workday. That person was Molfetas. If Molfetas were not found to be a supervisor, no one with authority over the men would be at the jobsite I accordingly find and conclude that Nikolas Molfetas is a supervisor within the meaning of the Act. Leyen- decher Paving, 247 NLRB 28, 32 (1980). C. The Layoffs of Garcia and Rodriguez and the Discharge of Rosario 1. Facts 647 In early August 1982, Francisco Garcia was the first employee to learn about the Union. Union Official Johnny Bel spoke to him about the possibility of higher wages and greater benefits with union representation, and asked Garcia to speak to the other employees. Garcia did so and a meeting was held on August 12, at which Garcia, Mario Castro, and Jose Rodriguez signed cards for the Union. Carlos Arias and Angel Rosario signed cards later on August 24, and Juan Corrales signed a card on August 30. Sometime after August 12, Supervisor Molfetas3 asked Castro if he signed a card for the Union and whether he liked the Union. Castro replied that it was his right to sign a card and that he would find out later if he liked the Union. In other conversations, Castro told Molfetas that Garcia introduced him to the Union and, as the Board election of October 15 approached, Molfetas ad- vised Castro that if the Union won the elecion there would be no overtime, and that the Company would no longer lend money to employees. Also in August, before Rosario signed his card on August 24, Molfetas asked him if he was a member of the Union Rosario replied that he was in favor of it. Molfetas then said that "all the Union followers . . and the other Hispanic workers . . are going to lose their job." On August 30, Union Official Anthony Schifano vis- ited the shop, and with Molfetas facing them he asked employee Garcia where the boss was.4 Schifano then in- troduced himself to Respondent Official Pat Degliuo- mini, told him that the employees selected the Union to represent them, and asked for recognition Pat replied that Respondent is a small shop, adding that if Respond- ent became organized he would "get rid" of all the workers and operate with himself and his brother only. Schifano answered that other shops were the same size or smaller and that there was nothing wrong with em- ployees joining the Union. Pat then said that the owner of Respondent was in Europe and that Schifano would be called, noting that "as of now, if worse goes to worse, me and my brother we'll get rid of everybody." Schifano filed a petition for an election with the Board the following day. Apparently as a result of the Schifano request for rec- ognition, Pat and Steve Degliuomini discussed the Union with the employees as their paychecks were distributed on August30:5 Pat Degliuomini said that he learned that 8 Molfetas did not testify I may draw an inference from his failure to testify that his testimony would have been adverse to Respondent had he been called Maxwell's Plum, 256 NLRB 211, 213 fn 9 (1981) 4 Garcia placed this visit at August 27 In view of the discussion be- tween Respondent's officials and the employees on August 30, and the petition filed on August 31 which stated that the demand for recognition occurred on August 30, I find that Schifano 's visit to the shop occurred on August 30 S The following is a composite of the testimony of employees Arias, Garcia, Rodriguez, and Rosario, whom I credit because of their essential Continued 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD someone was attempting to organize the shop and who- ever was responsible for that would be fired. He also said that he suspected Garcia, Rodriguez, and Rosario of being the organizers. Steve Degliuomini told the men that whoever signed cards for the Union would be fired, that there would be no more overtime, and that he would close the shop or move and change the Compa- ny's name. Pat asked Arias and Alberto Encarnacion if they signed cards and they denied doing so. Steve asked the workers if they had signed cards and there was no response. About 1 week later, Arias heard Pat talking to himself as he walked through the plant saying that whoever brought the Union into the shop would be fired. In early July 1982, 15th Avenue hired Victor Jason who only worked about 2 weeks and was then apparent- ly replaced by Juan Corrales. In the weeks ending Sep- tember 2 and 9, respectively, Stephen Rivers and Frank Marino were also listed on payroll of 15th Avenue.6 On September 8, Garcia and Rodriguez were working as helpers of Arias on a job that had been in progress for 2-1/2 to 3 weeks. At quitting time that day more work was left to be completed. Steve Degliuomini told Garcia and Rodriguez that they were laid off for lack of work, and that they would be recalled when there was work. Arias asked Steve to lay off the new employee, Corrales, arguing that Corrales was not a good worker whereas Rodriguez worked well. Steve replied that if Arias wanted them retained Arias should pay them. Respondent mailed a letter dated May 10, 1983, to Ro- driguez which stated There is now a position available with our com- pany. We would like to know if you are interested in this postion. Please contact us within 48 hours of receipt of this letter Rodriguez stated that although he was asked to return to work, he did not do so. Garcia, who began work in April 1981, performed inside and outside work for Respondent. Company records show that Garcia did not work from June 18 to June 25, 1981. He then worked from June 26 to August 27, 1981, when he was injured on the job. He was out of work, but returned on April 9, 1982, and worked until September 9, 1982. Jose Rodriguez was employed from January 3 to Sep- tember 8, 1982, performing inside and outside work Pat Degliuomini testified that Garcia and Rodriguez were laid off because they had just completed a job on which he needed extra workers and therefore had no fur- ther need or them. He added that he attempted to use them for the renovation work on his building but they refused to work on that project. Pat noted specifically consistency and mutual corroboration of this incident Although there is some confusion regarding the date this event occurred-August 27 or 30, it is clear that it took place following Schtfano's demand for bargaining In a letter sent to the Board agent in February 1984, it was asserted by Respondent that Rivers worked from August 23 , 1982, to September 1983, and that Marino worked from March 1978 to July 1980, returned on September 5, 1982, and was still employed by Respondent at the time the letter was sent in February 1984 that Garcia refused to help him remove certain wood beams, and both men told him that such work was "con- struction" which they did not and would not perform. Pat had assigned them to work in the renovation project because there was no outside work for them and told Molfetas and Galletta that the two employees would be available to help them, but he later learned that they re- fused to help, saying that they would not work for Abitat. The work that they refused to do consisted of moving and cutting material such as blocks and steel joints. Garcia, who was the Union's election observer, con- firmed that during the renovation project he was asked several times by Galletta to work on that project and he refused because the work-carrying cement blocks-was to heavy and because he was not paid enough for such work.7 They argued and Galletta said that he would speak to Steve or Pat Degliuomini. Thereafter, Steve told Garcia that he was disappointed in him because he refused to work with Galletta. Garcia replied that for $4.25 per hour he did not want to work on another job Garcia stated that he was not asked to work on the ren- ovation job thereafter, and it appears that he continued to work on other projects after his refusals. Rodriguez, however, maintained that he worked, as in- structed, for Abitat during the renovation, which work ceased before he was laid off. After returning from his regular job at 15th Avenue at the end of the day he would then, as directed, move materials as ordered. Other employees corroborated that they saw Rodriguez perform such work In this connection, Pat Degliuomini noted that prior to the election the workers and supervisors were friendly and cooperative, with the men following orders and Pat buying them lunch, soda, and beer. However, after the election he noted a marked changed in their attitude- they refused to paint or sweep. If they worked late one day they would arrive late at work the following morn- ing, and at the end of the day, at 4:30 p.m., they left abruptly without telling him what they had accom- plished on the job they were working on It was Pat's belief that the employees were being "coached" by the Union in their behavior, including their refusals to work on the renovation. Angelo Rosario, who began work for 15th Avenue on February 1981, testified that he was transferred from the 15th Avenue to the Abitat payroll on September 8, 1982. Union Official Schifano testified that at a preelection conference held on September 22, at which an election agreement was signed, he observed that Rosario's name was omitted from the list of eligible voters. He was told that Rosario was transferred to a construction company where he would help in the renovation of the 15th Avenue building, and that he would be returned to the payroll of 15th Avenue in a couple of weeks. Rosario conceded on cross-examination that after his transfer to Abitat on September 8, Galletta called him on ' Garcia conceded that other employees carried cement blocks Pat Degluiommi testified that generally employees engaged in construction work such as that done by Abitat are paid more than a worker employed by an ironworks company such as 15th Avenue 15TH AVENUE IRON WORKS 649 September 29 and told him that there would be no work for him for 1 week. Accordingly, Rosario did not work until October 4. Galletta called and told him to work on October 5 which he did. He did not work on October 6 to 13 because he was told there was no work. He re- ceived unemployment benefits. Galletta called him about October 13 and told him to report to work the next day October 14, which he did Rosario stated that on Octo- ber 14 Galletta warned him not to come to work the fol- lowing day, which was the date of the Board election, because he would lose his job, because Galletta did not want a union. Rosario went to Respondent's premises on October 15 but did not work. When the election was over Galletta approached Rosario and told him to leave, saying he did not want to see him around the shop, adding that he did not want him there to vote. Rosario reported this to Schifano that day who imme- diately asked Galletta why Rosario was sent home. Gal- letta referred him to Pat Degliuomini who replied that he had a lot of problems with Rosario concerning unem- ployment and he "couldn't take it any longer" and he did not want to see Rosario any more, and did not want anything more to do with him. Pat testified that Rosario was transferred from 15th Avenue to Abitat at Rosario's request because he wanted to work in construction and thereby earn more money. He stated that Rosario was not discharged or laid off, but added that in early October 1982, Galletta called Ro- sario and asked him to report to work. Rosario said he would, but had no carfare. Galletta then allegedly sent him a letter, which was not offered in evidence. Pat Degliuomini testified that prior to the election on October 15, there began a reduction of work at Respond- ent, and that he laid off Garcia and Rodriguez on Sep- tember 9, for that reason, and not because of the pending election. He testified generally that business declined after October 1982 and that from January 1981 to Sep- tember 1982 there was more work available than from September 1982 to the time of the hearing. With respect to the layoffs of Garcia and Rodriguez, Pat Degliuomini testified that in making the decision as to who to lay off, he does not consider seniority. Rather, he lays off the least helpful employee, even though he may have greater seniority than other workers who are retained, and he keeps the most knowledgeable employ- ee. Pat conceded that Jean Pierre and Juan Corrales, who began work on May 14 and July 12, 1982, respectively, were unskilled when hired. Carlos Arias testified that after the layoffs of Garcia and Rodriguez, Pierre and Corrales worked with him as helpers. Arias stated that Pierre was mainly an inside worker, cleaning the shop and painting, while Corrales was an outside helper Arias further stated that Rodriguez' work was very good, they having worked together for over 6 months, while Pierre could not communicate inasmuch as he spoke only Creole. According to Arias, Corrales did not know the outside helper's job and had no experience, while Rodri- guez possessed skills that neither Corrales nor Pierre had such as lifting steel beams and drilling holes. Arias added that Garcia had more experience as an insisde worker and was a better worker than Corrales and Pierre. How- ever, Arias conceded that Pierre did welding work, and Rodriguez testified that he also welded. Garcia and Rodriguez testified that before they were laid off in September 1982, they worked steadily. Garcia stated that he worked 6 days per week in September 1982 from 8 a.m. to 6:30 p.m., and on Saturday from 8 a.m. to 5 p.m. Rodriguez stated that in August 1982 he worked an average of 60 hours per week-as did other workers. They both said that it was Respondent's prac- tice to send them back to the same job the following day if there was work left to be done, and there was work to be completed on the job that they were working on when they were laid off. In May, Respondent hired Jean Pierre, and as set forth above in July, 2 months before the layoffs, Respondent hired two new employees-Victor Jason and Juan Cor- rales, who Respondent concedes was unskilled and inex- perienced when hired.8 Within a space of 2 weeks prior to the time of the September 8 layoffs of Garcia and Ro- driguez, two employees began work-Steve Rivers, on August 23, and Frank Marino, on September 5. Thus from May to September 1982, Respondent hired four employees who remained with it for some time- Pierre, Corrales, Rivers, and Marino-and laid off Garcia and Rodriguez on September 8, assertedly for lack of work It was Respondent's claim that the types of work done by the replacements was different than that done by Garcia and Rodriguez. However, Rodriguez tes- tified that he did the same type of work as Corrales, Pierre, and Rivers. It was noted that Pierre mainly per- formed welding work, and it was Rodriguez' testimony that he welded also. Garcia conceded that Marino was hired as a welder, a job also performed by Pierre-which Garcia had never done. However, Garcia did do the same work as Cor- rales. 2. Analysis The credited evidence establishes that Garcia initially contacted the Union; Supervisor Molfetas was told that Garcia introduced Castro to the Union and threatened to discharge all the union adherents. On the Union's demand for recognition, Pat Degliuomini told Schifano that he would "get rid" of all the employees if Respond- ent was organized, and told the employees that the person responsible for organizing the shop would be fired, and identified Garcia, Rodriguez, and Rosario as being the organizers. At the same time, Steve Degliuo- mini told the workers that whoever signed cards for the Union would be dischared and the shop would be closed, and conducted interrogations of the men to determine who had signed cards for the Union. Based on .these facts and the timing of the layoffs which occurred only 2 weeks after the Union made its demand for recognition, I find that the union activity of Garcia and Rodriguez was a motivating factor in Respondent's decision to lay them off. 8 Jason appears to have been employed for only 2 weeks as he was listed on the payroll for the weeks of July 8 and 15 only 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similarly, concerning Rosario I have credited his un- contradicted testimony that he was told by Galletta not to report to work on October 15, the day of the election, or else he would lose his job because Galletta did not want a union. Nevertheless, Rosario went to Respond- ent's premises and was told by Galletta to leave-that he did not want him at the shop and did not want him there to vote. I cannot accept Pat Degliuomini's testimony that Rosario was not discharged or laid off inasmuch as Schi- fano has given credited testimony that when he asked Pat why Rosario was sent home he was told that Pat did not want to see Rosario any more and did not want any- thing more to do with him. It is therefore clear that dis- cipline was meted out to Rosario for reporting to Re- spondent's shop on the day of the election, thereby dis- obeying Galletta's orders not to do so. It is therefore clear and I find that the General Coun- sel has made a prima facie showing that the union activi- ty of Garcia and Rodriguez was a motivating factor in Respondent's decision to lay them off and was a motivat- ing factor in its decision to discharge Rosario. Wright Line, 251 NLRB 1083 (1980). Respondent's defense is essentially that there was not enough work for Garcia and Rodriguez. No documenta- ry proof of a reduction of business was adduced, al- though I am aware that it was testified that the elimina- tion of the J-51 City renovation program adversely af- fected Respondent's business. It is also Respondent's po- sition that they were assigned to work on the renovation at 15th Avenue because of the lack of outside work, but that they refused to do such work. However, the testi- mony of the employees, which I credit, was that the ren- ovation work was completed some time before their layoff, that Rodriguez willingly did such work, and that they had been assigned outside jobs thereafter. In addi- tion, the employees continued to work overtime consist- ently until their layoff and indeed until the election 1 month later. The abundant existence of overtime work combined with the hire of three additional employees around the time of the layoff serves to rebut the true ex- istence of an unproven, unsupported decline of business.9 Moreover, Respondent's asserterd criterion for decid- ing which employee to layoff was not followed. Its con- sideration in such cases was to retain the most knowl- edgeable and experienced employee. Certainly, Garcia, employed for 9 months and Rodriguez for 8 months i o had more experience and possessed more knowledge at the time of their layoff in September 1982, than Pierre and Corrales who Respondent conceded were unskilled when they were hired in May and July 1982, respective- ly. Accordingly, Respondent has failed to demonstrate that it would have taken the same action against Garcia, Rodriguez, and Rosario in the absence of their union ac- tivity. i i 9 Olympia Plastics Corp, 266 NLRB 519, 534 (1983) 10 According to Respondent's records attached to its letter of Febru- ary 1984 11 Wnght Line, supra Therefore, for the reasons, set forth above, I find that Respondent's layoff of Garcia and Rodriguez B. J. & R. Machine & Gear Co., 270 NLRB 267 (1984); Smedberg Machine & Tool, 249 NLRB 534, 538 (1980), and dis- charge of Rosario Meyer Stamping & Mfg. Co., 237 NLRB 1322 (1978), violate Section 8(a)(3) and (1) of the Act. The letter sent to Rodriguez does not constitute a valid unconditional offer of reinstatement, as required. Rather, it just states that there is "a position available," and asks whether he is interested in the position which was not identified, giving him 48 hours from his receipt of the letter to contact Respondent. The Board has held that a virtually identical offer was "not specific, not unequivocal and not unconditional," and therefore not valid. Flatiron Materials Co., 250 NLRB 554 (1980). The Board, in affirming an administrative law judge, stated in Montgomery County MH/MR Emergency Serv- ice, 239 NLRB 821, 827 (1978): An employee who is discriminatorily discharged or laid off is entitled to an unequivocal and uncondi- tional offer of reinstatement to his former job, if it still exists, and if it does not, then to an equivalent position. An invitation for an employment interview or an offer of a new job is not an unequivocal and unconditional offer. Controlled Alloy, Inc. and Harlin Precision Sheet Metal Fabrication Co., Inc., 208 NLRB 882, 883-884 (1974). Nor does an in- quiry as to whether an employee is interested in em- ployment constitute an unconditional offer. E. L. Bar and Merle Barr, d/b/a Bar Packing Company, 82 NLRB 1, 4 (1949); Hydro-Dredge Accessory Co., 215 NLRB 138, 139 (1974). Moreover, the requirement that Rodriguez make up his mind in 48 hours is insufficient time Freehold AMC- Jeep Corp., 230 NLRB 903 (1977). I also find that Molfetas' question to Castro after August 12, 1982, about whether he signed a card for the Union; his question to Rosario in August if he was a member of the Union, and Pat and Steve's questioning of the employees on August 30, constituted unlawful inter- rogation. "Interrogation of employees with respect to their union attitudes and sympathies without a legitimate purpose and adequate assurance against reprisal . . . is inherently coercive, and hence violates Section 8(a)(1)." Vincent et Vincent of Allentown Mall, 259 NLRB 1025, 1026 (1981). I also find that Molfetas' remark to Rosario in August 1982 that all the union followers and the other Hispanic workers are going to lose their jobs, the August 30 state- ment by Pat Degliuomini to the workers that the person responsible for organizing the shop would be fired, Steve Degiuomini's remark at that time that whoever signed union cards would be fired, and Galletta's warning to Rosario on October 14 not to come to work on October 15 or he would be fired constitute unlawful threats of discharge. I also find that Pat Degliuomini's statement also made on August 30 that he would close the shop or move and change the Company's name constitutes an un- 15TH AVENUE IRON WORKS 651 lawful threat . Columbia Engineers International, 249 NLRB 1023 (1980). I reject Pat Degliuomini 's denial of these statements The remarks were made shortly after the same comments were made to Union Official Schifano, which makes me believe that they were in fact uttered . Steve Degliuomini did not testify. D. The Discharges of Castro and Corrales 1. The facts On the day of the Board election, Molfetas asked Castro how he had voted Castro replied you "could well imagine it . . I knew what my rights were and I was interested in my well being and my future." Molfe- tas answered that he was a "bull shit." The Union won the election. Also that day Pat told the assembled workers that there would be no work the following Saturday . Molfetas repeated the same thing and told Castro that if he wanted overtime he should go to the Union. The following workday, October 18, Castro com- plained to Molfetas that he needed to work overtime be- cause he was going to be evicted from his apartment, ap- parently for nonpayment of rent . Molfetas again told him that if he wanted overtime he should go to Schifano and the Union . Molfetas added that with the Union, he would take home less money because of deductions and, in addition, Respondent would not lend any more money to him. Castro often requested overtime and was told many times thereafter by Molfetas that there was no more overtime and that he should speak with Schifano regard- ing overtime, adding, "[D]on't talk to me about your problems. I told you why did you vote for the Union? I told you before and after. . . . Now you have many problems on account of having voted for the Union." Corrales was also told by Molfetas after the election that if he wanted a union he would not work overtime. Both Castro and Corrales testified in behalf of the Union in April 1983 at a hearing concerning Respond- ent's objections to the election won by the Union. Both men stated at the instant hearing that following their April testimony Respondent's treatment of them changed . Corrales stated that he was not greeted and he was given orders in a sharp, authoritative , and harsh tone. Castro stated that whenever he asked for help in carrying a heavy item, Molfetas told him to carry it alone, "[T]here's no union here" and when Castro ques- tioned an order Molfetas told him, "[Y]ou don 't have a union, do it." Castro conceded, however, that he never was required to carry a load that was too heavy for him, and despite the fact that he was told to carry heavy items himself, he always had help from others in doing such work. On May 4, Castro and Corrales worked on a job in Staten Island, New York. Castro testified that when he arrived at the site he told Supervisor Molfetas that he did not feel well and wanted to leave at noon . Molfetas agreed, but said that there was a lot of work to do and requested that Castro delay his departure . At noon, Castro continued working because he wanted to finish the job, and at 4:30 p .m told Molfetas that he was leav- ing. Molfetas asked him to stay at work and Castro re- minded him that he had earlier said that he would leave at noon. Molfetas said that he would see him tomorrow, adding, "no problem-come early." Castro and Corrales denied speaking to Pat Degliuomini at that jobsite that day. Corrales testified that on May 4 he was asked to work overtime but he refused, and explained that he had to pick up his daughter but he also offered to work over- time another day. Molfetas said all right . Later that day, Corrales was told by Pat Degliuomini that he was dis- charged . He asked why and was told by Pat that Re- spondent no longer needed him. The following day, Castro went to work and was told by Pat that he was no longer needed. On May 10 , Castro and Corrales were sent identical letters by Respondent: This is to inform you that we have terminated your position with our company for the following reasons. You have continuously been late for work and have failed to call in when you are absent from work. You have not performed your duties as a cooper- ative employee of this company . When asked to do a specific job that takes 15 to 20 minutes , you pro- long its completion for an hour. On May 4 and 5 , 1983, you were asked to work on a project that must be left in a safe condition. At 4:30 p.m. you chose to leave the job in an unsafe condition . This action may have caused a danger to your fellow workers, as well as the general public. We believe these labor practices to be unfair and we had no alternative but to terminate your posi- tion. Pat Degliuomini testified that on the morning of May 4 he knew that Castro, Corrales, and Arias were going to cause problems for Molfetas because he saw them congregating . He stated that at 4:30 p.m. he observed the three men depart the Staten Island site, leaving the tools and equipment unattended . Pat, who claimed not to have received any prior notification that the men had to leave, asked where they were going and was told they were leaving because it was 4:30. Pat said that they only had 30 minutes work left, adding that if they left they should not report to work the following day. Pat and the re- maining workers stayed on the job for 40 to 45 minutes. He denied knowing that any of the employees were sick that day. Pat Degliuomini testified that he fired Castro and Cor- rales because they refused to work at the Staten Island job. They were replaced by two employees-I week and 1-1/2 months later, respectively. Pat noted that on one occasion Castro asked for cer- tain materials, and based on that he knew that Castro was performing iron work on his own, for noncustomers, but Pat did not mind that. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Analysis Castro had been the subject of an unlawful interroga- tion by Molfetas sometime after August 12, 1982, and on the day of the election was asked by him how he voted. In April 1983 Castro and Corrales testified in behalf of the Union at a hearing on Respondent 's objections to the election. Castro was thereafter continuously given re- minders, when he questioned an order , that there was no union in the shop . Corrales testified to orders being given sharply, until May 1983 when they were dis- charged. Castro was repeatedly told to go to the Union if he wanted overtime, and was also told by Molfetas that he would have many problems because he voted for the Union . Corrales signed a card for the Union on August 30, 1982 Based on these facts I find that the General Counsel has made a prima facie showing that the union activity of Castro and Corrales and their testimony at the April 1983 hearing were motivating factors in Respondent's de- cision to discharge them. Respondent's evidence is that Castro and Corrales were discharged for refusing to work on May 4 , 1983. It appears that the regular quitting time was 4 :30 p.m., when they left the Staten Island jobsite . They gave un- contradicted testimony that they both received permis- sion from Molfetas to leave at that time. Respondent's letter of May 10 to the two men sets forth three reasons for the discharges : (a) lateness and failure to call when they were absent , (b) uncooperative- ness and slowing down in the performance of work, and (c) leaving the May 4 job in an unsafe condition , causing danger to coworkers and the public . At the hearing, Pat Degliuomini expressly denied firing Castro and Corrales for the first two reasons set forth in the letter . However, he conceded that the extra work they were asked to do comprised only 40 to 45 minutes and was performed by the other men remaining on the job . It does not appear likely that Respondent would have fired a person such as Castro, who had been employed by it for over 2 years, or Corrales, a 10-month employee, for such a minor reason No danger to the other workers or the public was proven and the other employees did whatever was required that afternoon. Respondent's letters of discharge made a sarcastic apparent reference to the charges then pending against it by calling the two men 's actions, two of which were at hearing conceded to be false, "unfair labor practices." I accordingly find and conclude that Respondent has not shown that it would have taken the same action against Castro and Corrales in the absence of their union activities. I accordingly find and conclude that Respondent's dis- charge of Castro and Corrales violated Section 8(a)(3), (4), and ( 1) of the Act. Modern Mfg. Co., 261 NLRB 534, 550-551 (1982). However, I am unable to find as alleged in the com- plaint that between April 7 and May 4, 1983 , Respondent assigned Castro to more arduous and less agreeable job tasks and required him to perform such tasks . Although Castro testified that following his testimony at the Board hearing in April 1983 he was told to carry heavy items himself because there was no union , he conceded that he was never actually required to carry a load that was too heavy for him, and he always had help from others in doing heavy work. The General Counsel has thus failed to set forth a prima facie case of discriminatory assignment and per- formance of arduous and less agreeable job tasks. I accordingly will recommend that this allegation of the complaint be dismissed. E. The Reduction of Overtime 1. Facts The General Counsel alleges that about October 15, Respondent stopped assigning employees overtime work that they previously had received, and which overtime they normally would have received, because of their union activities. As set forth above, on the day of the election, October 15, 1982, Supervisor Molfetas told the employees that there would be no overtime work the following day, Sat- urday, and that if employees wanted overtime they should go to the Union. Molfetas told other employees the same thing thereafter, including a remark to Corrales that if he wanted a union he would not work overtime. When Castro asked Molfetas for permission to work on Saturday, Molfetas asked why he voted for the Union, and reminded Castro that he warned him that there would be no more overtime. He told Castro to go to the Union if he wanted overtime. It was the consistent testimony of the employees that prior to the election they worked 6 days per week, Monday through Saturday, and worked up to 60 hours per week. They were paid by check for their regular Monday through Friday work, and were paid in cash for their Saturday overtime work. In addition they also worked overtime during the week, for which they were also paid in cash. After the election, however, they worked Monday to Friday, 40 hours per week, and did not work any Saturday overtime. Union Official Schifano and employee Castro said that after the election they went to the shop on various Sat- urdays. Schifano stated that he observed Molfetas, Vin- cenzo Yale, Jean Pierre, FranK Marino, and Frank Manno walk into the premises. Schifano asked Manno, a union member, who did not work for Respondent during the week, why he was working there when he knew that the Union was trying to organize it, and that certain em- ployees were fired for helping the Union. Manno replied that he needed extra income and admitted being em- ployed by Respondent. Pierre, a card signer, and Marino testified in behalf of Respondent at the hearing concern- ing Respondent's objections to the election. Pat Degliuomini testified that the shop was always open on Saturdays in 1982 and that before the election it was open for business with Molfetas and Arias employed then. He further stated that before the election there was no set daily working hours , but he doubted that employ- ees worked more than 40 hours per week. Pat noted that from July 1982 to November 4, 1982, the payroll records indicate that no overtime was given to unit employees, except Pierre who worked overtime 15TH AVENUE IRON WORKS in the week of October 28. Pat replied that it was "possi- ble" that the reason for the omission of overtime in the records was that they were paid in cash for such work. The record set forth that in each week from Novem- ber 4, 1982, to September 28, 1983, one or more unit em- ployees received overtime pay. Pat Degliuomini further stated that Frank Manno worked in Respondent's shop on weekends after October 15, 1982, but he was equivocal when asked if Manno worked for Respondent, replying that he may have per- formed work for 15th Avenue, but that he mostly did his own work there Pat did not believe that Respondent paid Manno . Other employees, including such hourly paid persons as Molfetas and Frank Marino worked when Manno worked at Respondent's shop. Pat seemed to concede that overtime was stopped be- ginning October 15, 1982, as alleged in the complaint, and he stated that such overtime was stopped because work was not available. However, he later testified that he did not know whether overtime was reduced after the election, while admitting that he previously testified that it had. He also stated that in 1983, employees worked about every other Saturday. The payroll records do not indicate that any employee worked overtime from July 1982, the earliest record pro- duced, through October 28, 1982. This could be ex- plained by the testimony that employees were paid in cash for such work. Beginning November 4, 1982, how- ever, overtime hours worked appear in the payroll records. 12 An analysis of the overtime worked from November 4, 1982, through September 28, 1983, as set forth in the payroll records establishes that employees who worked great amounts of overtime prior to the election worked fewer overtime hours thereafter. As an example, Arias, who testified that he worked an average of 65 to 67 hours per week, Monday through Saturday and occasionally Sunday from 1981 to October 15, 1982, worked a maximum of only 5 hours overtime in 1 week in the period November 4, 1982, to April 21, 1983, the last date he worked overtime He generally worked only 2 to 3-1/2 hours overtime in the weeks that he worked overtime after the election. He stated that he never worked on any Saturday after the election. Castro, who testified that prior to the election he worked 10-1/2 hours per day, Monday through Satur- day, worked a maximum of 6 hours in I week in the period covered by the payroll records. He generally worked from one-fourth to 3-3/4 hours in the weeks that he worked overtime subsequent to the election. Corrales, who testified that prior to the election he worked 10 hours per day, Monday through Saturday, worked 2 and 3 hours, and sometime 4 hours overtime per week in the weeks in which he worked overtime after the election. In contrast, the other employees, Marino, Pierre, Schiavo, and Yale, all consistently worked at least 8 hours overtime per week during each week from No- vember 4, 1982, to September 28, 1983. It is also signifi- 12 A summary of the overtime worked by each employee appears as App A 653 cant to note that following the discharge of Castro and Corrales in early May 1983 their replacements, Guiller- mo Rodriguez, who began work in the week ending May 12, and Bernan Rodriguez, who began work in the week ending June 1, immediately commenced working much overtime. Thus, in each week from May 18 to September 28, 1983, Guillermo Rodriguez worked at least 12 hours and as much as 18-1/4 hours overtime. From June 1 to September 28, Bernan Rodriguez worked from 6-1/4 to 14-3/4 hours per week in overtime. 2. Analysis The employees consistently worked a great deal of overtime prior to the election. It is readily apparent that they would have continued to do so but for the Union's victory in the election of October 15. The fact that other employees continued to work much overtime after the election supports a finding that the union adherents too would have been permitted to continue working over- time on Saturdays. The reason for the abrupt termination of overtime work can be found first in Steve Degliuo- mini's statement to the employees on the day that the Union made its demand for recognition that there would be no more overtime and later on the day of the election, and thereafter Molfetas' comments to the workers that there would be no more overtime and that if employees wnated overtime they should go to the Union. Molfetas made this even clearer when he refused Castro 's request for overtime, asking him why he voted for the Union, and reminding him that he had previously warned him that there would be no more overtime . Olympia Plastics Corp., 266 NLRB 519 , 535 (1983). This finding is further supported by the fact that the replacements of Castro and Corrales immediately began working large amounts of overtime on their hire. Respondent's defense, that sufficient work was not available to justify overtime work, is rebutted by the fact that other employees continued to work overtime, and that such overtime work stopped abruptly for the union adherents on the day of the election . This demonstrates that the real motive for terminating the overtime work was the success of the employees in voting for the Union in the election . Gorman Machine Corp., 257 NLRB 51, 58 (1981). I accordingly find and conclude that Respondent's re- duction of overtime to Carlos Arias, Mario Castro, and Juan Corrales violated Section 8(a)(3) and (1) of the Act I will not find a violation with respet to Alberto Encar- nacion since there was no proof that he worked any overtime at all.' 3 F. The Loan of Money to Arias 1. Facts The General Counsel alleges that Respondent, by Steve Degliuomini, withheld from Carlos Arias money from a loan for which Respondent has cosigned and 11 The General Counsel, in her brief, names only employees Arias, Castro, Corrales, and Encarnacion as being discriminated against in the reduction of overtime work 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which money had been sent to Respondent for transmit- tal to Arias. The facts are as follows: In early August 1982 Arias applied for a $2500 person- al bank loan . Steve Degliuomini cosigned his application and the loan was approved. The bank sent a check for the amount of the loan to Respondent. In early October, shortly before the Board election, Arias asked Steve if he received the check. Steve said he had, but he could not give him the check because he had to await the outcome of the election, adding that if the Union won the election he might be forced to close the shop or lay him off. Later, about the time of the election, Arias again asked Steve about the status of the check and was told that he canceled the loan and returned the check to the bank. In its answer to the complaint, Respondent admitted that "it had returned the alleged bank money to the bank." Pat Degliuomini testified that Respondent regularly lent money to employees if they requested it, and was re- imbursed eventually. With respect to its practice of lend- ing money to employees, Castro testified that shortly before the election Molfetas told him that if the Union was victorious Respondent would no longer lend money to the employees. 2. Analysis It is clear that the bank check, which had already been received by Respondent would have been given to Arias had it not been for the intervention of the union organiz- ing drive. Steve Degliuomini confirms this in his state- ment to Arias that the check would be held pending the outcome of the election. The return of the money by Re- spondent to the bank was then in direct conflict with its prior policy of granting a loan to the worker. I see no difference herein that Steve Degltuomim personally co- signed the bank loan, rather than directly lending the money to Arias. If anything, Respondent undertook less risk because it paid none of its own money. I accordingly find and conclude that Respondent un- lawfully withheld a loan to Arias becuase of his union activities. Land Printing, 264 NLRB 369, 374 (1982); Kermit Super Yalu v. NLRB, 631 F.2d 328, 330 (4th Cir. 1980). G. Surveillance and Threats of Bodily Harm 1. Facts The General Counsel alleges that about October 28, 1982, Pat Degliuomini engaged in surveillance by photo- graphing the meeting places, meeting, and activities of the Union, and the concerted activities of its employees, and that on the same date he threatened a union official with bodily harm if he did not cease his organizational activities among Respondent's employees. A union meeting had been set for 4:30 p.m. on Octo- ber 28, 1982. Shortly before that time, Union Official Schifano was sitting in his car on the corner where the employees leave the shop when he noticed Galletta sit- ting in a car across the street pointing a camera at him. Galletta remained there no more than 1-1/2 minutes and then left. When the employees left the shop they and Schifano moved to an area a couple of blocks away. Schifano then spoke to three employees, Arias, Castro, and Corrales, for about 15 minutes when Schifano ob- served a vehicle containing Pat Degliuomini and an un- identified man who pointed a camera at them. Pat and the man remained for 3 to 4 minutes at which time Schi- fano gestured obscenely with his middle finger. Pat said in Italian: "If I catch you around here again, I'll break your legs. You take that to your mother." Schifano could not recall what his reply was, and Pat and the man left. Corrales corroborated Schifano's account of the second incident except, however, that Corrales apparent- ly did not know what Pat said to Schifano since Pat shouted "something . . . in Italian" to Schifano Respondent denied the allegations of the complaint, but in its answer admitted "that it took one photograph of an agent of Local 455 for the purpose of protecting an employee of Respondent from physical harm that Re- spondent's agent Pat Degliuomini believed was going to be perpetrated upon said employee." 2 Analysis The Board has held in Blanchard Construction Co., 234 NLRB 1035 (1978), that photographing workers who are then engaged in activities in behalf of a union: . . necessarily tends to inhibit employees in their communications with their designated bargaining representative, in that it constitutes a form of sur- veillance of the employees' union activities, or at least creates that impression, and thereby impermis- sibly interferes with, restrains, and coerces the em- ployees in the exercise of their rights guaranteed by Section 7 of the Act. [Blanchard Construction Co., supra at 1037. See also Fluid Chemical Co., 203 NLRB 244, 246 (1973).] Respondent's admission in its answer that it photo- graphed only the union agent does not minimize the in- timidating effect on employees of having the camera pointed at them. Even if the camera was inoperative, the coercive effect of the ostensible picture taking is still present. Barnes Hospital, 217 NLRB 725, 727 (1975). Moreover, Respondent did not prove, as set forth in its answer, that the union agent's photograph was taken for an allegedly legitimate purpose I accordingly find and conclude that the picture taking on October 28, 1982, violated Section 8(a)(1) of the Act. I cannot, however, agree that the threat by Pat Deg- liuomini to Schifano violated the Act In order to deter- mine whether certain action "reasonably tends to re- strain, coerce or interfere with" employees' Section 7 rights, Rossmore House, 269 NLRB 1176 (1984), the em- ployees must be aware of the allegedly unlawful con- duct. Marchese Metal, 270 NLRB 293 (1984); Shenani- gans, 264 NLRB 908, 920 (1982). In this case, the threat was made to Schifano in Italian . There was no showing that any of the employees who were present understood Italian or were told by Schifano what Pat Degliuomini said to him. On the contrary, Corrales, the only employ- ee who testified about this incident, stated that Pat shout- 15TH AVENUE IRON WORKS ed "something in Italian" to Tony. Inasmuch as Pat's comment came immediately after Shcifano 's obcene ges- ture, the employees could have inferred that statement was just a response "in kind" to the gesture. Accordingly, I will recommend dismissal of this alle- gation of the complaint. H. The Alleged Refusal to Bargain I. The facts The Union was certified as the representative of the following employees on July 20, 1983: All full-time and regular part-time production and maintenance employees including installer em- ployees of Respondent, employed at its Brooklyn plant, exclusive of all office clerical employees, pro- fessional employees, guards, and all supervisors as defined in the Act On August 1, 1983, Respondent recognized the Union as the exclusive representative of the unit employees at the bargaining meeting held that day. At that session, Union Official Schifano requested a list of the names and addresses of the employees; a de- scription of their jobs; their dates of hire; rates of pay; and benefits, including medical, sick leave, and vacations. Schifano told Respondent's attorney and negotiator Sal- vatore Spinelli, that he needed the information in order to formulate the Union's demands concerning benefits and working conditions. Spinelli said that he would pro- vide that material. From the beginning of the negotiations it was Re- spondent's repeated position that its finances were such that there was only a certain amount of money it could pay-and if it had to pay more it could not afford to stay in business It also asserted that it had no money and very little to give to the employees. On August 17 the parties met, and Respondent gave Schifano a written list of certain names, wages, and dates. They discussed this list for 30 minutes. Schifano told Spinelli that he needed a typed letter on Respond- ent's letterhead with the names of the unit employees, their dates of hire, classification, actual duties, and bene- fits including vacation, sick leave, and medical coverage. Spinelli said that he would have his secretary type the information and send it to him soon. Schifano also asked for a list of the paid holidays provided by Respondent. Spinelli replied that the "major" holidays were given by it, but was not certain as to which ones, and agreed to tell Schifano at the next meeting. In addition, certain in- formation concerning vacations was given by Respond- ent but Spinelli stated that he was not confident on its accuracy. Schifano said that he needed precise data con- cerning each employee's vacation benefit. The parties agreed to defer a discussion of wages and classifications because Respondent had not provided specific informa- tion concerning wages. The parties bargained from the Union's standard agreement, and at that meeting they agreed on a number of items set forth in that contract, including the bargain- ing unit; the International Union's role concerning the 655 contract; recognition of the Union; union security; checkoff of union dues; payment for overtime pay, but not the actual sum payable for such work; reporting pay; grievance-arbitration provisions; no-strike-no-lockout clause, plant visitation; seniority; leave of absence; non- discrimination; bulletin boards; piecework; erection and field fabrication; paydays; saving - clause; and severance pay 14 At the next meeting on August 25, Schifano asked for the information he had previously requested. Spinelli re- plied that he was surprised that Schifano did not receive it, and said that he would have Respondent's secretary send him the data. On discussing the terms of a contract, Spinelli asked what it would take to settle the entire matter, including the contract, the outstanding charges, and the layoffs and discharges of employees. Schifano answered that regarding the (a) contract, all union benefit funds must be phased in within the 2-year contract and all employees must receive an immediate raise of $1.25 per hour, and that regarding the (b) unfair labor practices, all employees must be given offers of re- instatement and some, unspecified backpay. Schifano added that he was considering filing a claim with the Department of Labor to obtain for the employees over- time wages due but not paid. Spinelli replied that if the Union (a) withdrew all charges, (b) did not file charges concerning the dis- charges of Arias, Castro, and Corrales, and (c) did not pursue the overtime claim, Respondent would execute a contract containing a 25-cent-per-hour raise, make con- tributions to the pension and welfare fund in the second year of the contract, and give paid vacation to employ- ees with more than 1 year of service In addition, Re- spondent proposed offering reinstatement to all who de- sired it and a total payment of $4100 backpay. That sum, which Schifano believed was reasonable, was arrived at in private discussions between Schifano and Spinelli. Schifano believed that it would be beneficial to the Union and the employees to dispose of the Board cases and have a signed contract. Schifano replied that he accepted the proposal of rein- statement and the $4100 figure but insisted that Respond- ent make a better proposal on the terms of a new con- tract. At the next session held on September 12, Respondent repeated its proposal of the previous meeting with the modification of increasing its wage raise to 50 cents per hour. Respondent changed certain hourly wage rates on the list that it had given Schifano at the August 17 meet- ing. Schifano again requested a list containing the dates of hire, wages, and benefits of the employees, and said he needed it to continue the negotiations. Spinelli again agreed to provide the information "right away." Re- spondent proposed a 1-year contract with contributions to the apprentice, severence, and welfare funds and a 50- cent-per-hour wage raise if the Union withdrew its charges and agreed not to file an overtime claim. " Spinelli testified that although he agreed to certain paragraphs of a proposed contract, he agreed only to the language thereof, and that any agreements that were made were conditioned on their reaching a final contract 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schifano rejected that offer and proposed a 2-year contract with all the funds phased in during that period, including an increase in the welfare fund, two additional holidays, an immediate wage raise of $1.25 per hour, and contributions to the pension fund to begin in the second year. In addition, Schifano agreed to Respondent's offer concerning the apprentice fund, and to its proposal, pre- viously given, to settle the Board cases. Spinelli said that he would look into the Union's offer and the meeting ended. Spinelli canceled meetings on September 14, 21, and 29 and October 12 and 25 which were previously sched- uled in advance. Sometime after October 25, Schifano requested Spin- elli to provide the information previously asked for. Spinelli agreed to do so and a meeting was set for No- vember 3. On October 18 and November 1, a charge and a first amended charge were filed, alleging the discharges of Castro and Corrales. At the meeting of November 3, Schifano asked why he had not yet received the requested information. Spin- elli replied that he should have received it, and that he would have the secretary send it. Spinelli then said- "Be- cause of the charges that were filed with the Board . . . the company will . . . withdraw any offer [it has] made . . . with respect to settle the contract." Spinelli added that there would be no change in existing wages, bene- fits, or conditions, and Respondent has no money for any increases because inasmuch as it would have to pay backpay to former employees, it had no money for cur- rent workers, and further noted that everything that was previously agreed to was "off the table" and no longer agreed on because the Union continued to pursue its cases with the Board Spinelli again claimed, as he had throughout the negotiations, that Respondent could not afford to give any increases in wages or benefits. Schi- fano asked for proof of such poor economic condition and said the Union's accountant should meet with Re- spondent's accountant to review the situation, but that Schifano needed all the information he had previously requested. 15 The meeting ended with the understanding that as soon as Schifano received the requested information he would call Spinelli to arrange a meeting. Schifano called Spinelli in the week prior to January 9, 1984, and again requested the information. Spinelli agreed to send it to him. Schifano did not receive it and on January 9, 1984, filed the instant charge alleging Re- spondent's refusal to bargain. He testified at the hearing that he still had not received the information he previ- ously requested. Schifano was questioned on cross-examination con- cerning the information he requested. He testified that regarding holidays, the Union demanded 14 paid holi- days. Spinelli first stated that it paid the "major" holi- days, and then said it gave 7 holidays but never provided a list as to which holidays were paid Concerning vaca- 15 Thereafter, the Union's accountant did not call Respondent's ac- countant, and Schifano did not seek to make arrangements to have the accountants meet At that point, five sessions of the instant hearing had been held tions, he was told by Spinelli the vacation benefits for some employees, but later changed what he told Schi- fano. Concerning other workers, Spinelli did not know their vacation benefits, but as to such benefits Spinelli promised to give Schifano the correct information. Con- cerning the list of employees' names, Spinelli's original list was incomplete in that some employees' last names were not set forth, and Spinelli agreed to provide the in- formation in the form requested by the Union. Spinelli testified that Schifano requested a statement specifying the dates of hire, fringe benefits, current rate of pay, and other items. Spinelli asserted that in addition to providing a list to the Union early in the negotiations, which has been dis- cussed above as having been done on August 17, 1983, he sent a letter to the Board agent in February 1984 in response to the charge filed which alleged Respondent's refusal to bargain. The letter indicates that a copy was sent to the Union's attorney. In it, Spinelli stated, inter alia, that. The decision to break off negotiations was made jointly with the Union's consent. The economic condition of the employer makes it impossible to meet the demands of the Union The Union wishes the employer to sign a contract that the Union has negotiated with the Allied Building Metal Indus- tries, Inc The employer is not a member of this trade association and could never match the wages paid to employees in this field. In addition, the Union is aware there are pending cases (Case No. 29-CA-10125 and Case No 29- CA-10235) regarding laid off and discharged em- ployees The above-mentioned cases are monetary in nature and any collective bargaining agreement will, as a practical matter, be related to the outcome of these cases Finally, it is the employer's conten- tion that the Union has failed to bargain in good faith and that its demands are excessive and imprac- tical. The letter included a list of the names and addresses of employees and their dates of hire and termination. Spinelli further testified that during the negotiations he told Schifano that Respondent had no firm policy con- cerning vacations, sick days, and other benefits, but that he informed the Union that vacation benefits were given to employees, and perhaps workers were paid for days on which they were sick. Spinelli stated that at the meeting of September 12, each party sought a complete "package" including settle- ment of the Board cases and a contract. He added that although he agreed to certain paragraphs of a proposed contract, he agreed only to the language thereof, and that any agreements that were made were conditioned on their reaching a final contract He conceded that at the final negotiation session, Schifano renewed his re- quest for information, and thereafter he may have called Spinelli about it, and Spinelli promised to send it to him. The action apparently taken was the February 1984 letter to the Board agent with a copy to the Union's at- torney discussed above. 15TH AVENUE IRON WORKS 2. Analysis The General Counsel alleges that Respondent unlaw- fully refused to bargain with the Union by (a) failing and refusing to furnish the following information to the Union regarding the unit employees: their names, ad- dresses, dates of hire, job classifications, job descriptions, wages and job benefits including vacation, holiday, medi- cal coverage, and pension and sick leave benefits; (b) canceling five negotiation sessions previously agreed to; (c) withdrawing all its bargaining proposals and with- drawing from certain agreements on certain items previ- ously agreed to; and (d) demanding, as a condition of reaching agreement that the Union agree to accept Re- spondent's proposal to liquidate its backpay liability in the unfair labor practice cases and that the Union agree not to maintain such charges, and since November 3, 1983, failed and refused to meet and bargain with the Union unless and until the Union agreed to such propos- al. Section 8(a)(5) of the Act requires the parties to nego- tiating sessions to engage therein with "an open and fair mind, and a sincere purpose to find a basis of agree- ment." NLRB v. A. W Thompson, Inc., 449 F.2d 1333 (5th Cir. 1971). a. The request for information There is no dispute that Union Official Schifano re- peatedly requested from Respondent the information set forth in the complaint. Nor is there any question but that Respondent's attorney-negotiator repeatedly agreed to supply such information, and expressed surprise that it had not yet been furnished to the Union when reminded by Schifano. The Board has held that information of the type re- quested here "is presumptively relevant for purposes of collective bargaining and must be provided upon request to the employees' bargaining representatives." Grand Is- lander Health Care Center, 256 NLRB 1255, 1256 (1981). Although some partial information was delivered to the Union at the August 17 meeting, including certain names, wages, and dates of hire, it is clear that not all the requested information was supplied, and that which was given was incomplete and later changed, such as the wage rates of certain persons In addition, although Re- spondent's letter of February 16, 1984, sets forth infor- mation such as the names, addresses, and dates of em- ployment of certain employees, that letter was sent to the Board and not to the Union. The letter, however, in- dicates that a copy thereof was sent to the Union's attor- ney, but there has been no showing that the infromation was in fact received by the Union's attorney or the Union itself. Respondent has promised to provide the re- quested information to the Union, as it is required to do, and it has not yet done so. I accordingly find and conclude that Respondent, by failing to provide the Union with requested information relevant and necessary for the purpose of collective bar- gaining, has violated Section 8(a)(5) of the Act. 657 b. Other allegations I• do not agree with the General Counsel that Re- spondent demanded, as a condition of reaching agree- ment, that the Union agree to accept its proposal to liq- uidate its backpay liability in the unfair labor practice cases and that the Union agree not to maintain such charges The evidence is clear that the discussion of August 25, 1983, concerning a liquidated amount of backpay was en- tered into freely by Respondent and in the Union, and in fact the sum of $4100 in backpay was arrived at after dis- cussions between Schifano and Spinelli. Indeed, Schifano believed that that figure was reasonable, and he also be- lieved that disposing of the pending Board cases and ob- taining a contract would be beneficial to the employees and the Union, and to this end he accepted Respondent's propoal of $4100 backpay and offers of reinstatement to those who wished to return. However, the alleged violation in this regard, accord- ing to the complaint, occurred on November 3, 1983. At that meeting, which was the parties' last, Respondent withdrew its agreements and offers because new charges were filed against it The withdrawal of its agreements and offers was clear- ly a retaliation by Respondent against the Union for its filing the new charges. Although Respondent did agree to continue to bargain on the noneconomic items after that meeting, its agreement was illusory because the ar- rangement was that Schifano would call to arrange such a meeting once it received the requested information. Re- spondent had no intention of providing the requested data and it did not, and it therefore could rest assured that a further bargaining session would not take place. Such a withdrawal of its proposals and agreements previously made is reflective of bad faith and violates Section 8(a)(5) and (1) of the Act. Luther Manor Nursing Home, 270 NLRB 949 (1984); Pittsburgh-Des Moines Steel Co., 253 NLRB 706, 708 (1980); NLRB v. Mid valley Steel Fabricators, 621 F.2d 49, 52-53 (2d Cir. 1980). However, I can find no condition to bargaining im- posed on the Union by Respondent, as alleged in the complaint. In light of Respondent's failure to provide the request- ed information to the Union despite its repeated promises to do so, its cancellation of five negotiation sessions which had previously been scheduled, and its withdrawal of all its bargaining proposals and agreements on No- vember 3, 1983, all convince me that Respondent's entire course of action throughout the period after August 1, 1983, was lacking in a good-faith desire to arrive at a final agreement with the Union Great Lakes Coal Co., 268 NLRB 1207 (1984); Taurus Waste Disposal, 263 NLRB 309, 315 (1982). I. Overall Concluding Observations The evidence is pursuasive that from the moment Re- spondent became aware that the Union was attempting to organize its employees, it immediately undertook a course of action to defeat that campaign. Immediately on the Union's demand for recognition, Respondent's top officials interrogated and threatened the employees and 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD identified Garcia and Rodriguez as the organizers. Short- ly thereafter, it laid off Garcia and Rodriguez allegedly for lack of work, when it was clear that the reason was for their activities in behalf of the Union. On the day of the election, Rosario was discharged be- cause he disobeyed instructions and came to the shop to vote, and it was announced that no more Saturday over- time would be given to the workers. No clearer discrimi- nation can be shown than the abrupt cessation of abun- dant overtime work on the day the Union won the elec- tion. Thereafter Castro and Corrales were discharged for their union activities and for testifying in behalf of the Union at a hearing, and throughout this period, begin- ning from the time the Union was certified, Respondent unlawfully sought to delay and frustrate the bargaining process by failing to supply the Union with requested in- formation necessary to continue the negotiation process; by the concellation of meetings previously arranged; and by withdrawing from its proposals and agreements. Re- spondent's express intention to punish the Union's ring- leaders and to avoid having anything to do with the Union, first expressed by its officials with Union Agent Schifano on his demand for recognition, was fulfilled by its actions subsequent to that time CONCLUSIONS OF LAW 1. The Respondent, 15th Avenue Iron Works and Abitat Builders and Management Corp., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Shopmen's Local Union No. 455 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By laying off and refusing to recall Francisco Garcia and Jose Rodriguez, and by discharging and re- fusing to reinstate Angel Rosario because of their activi- ties in behalf of and support for the Union, Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By discharging and refusing to reinstate Mario Castro and Juan Corrales because of their activities in behalf of and support for the Union, and for testifying at a Board hearing, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 5. By withholding from Carlos Arias money from a loan and by reducing the amount of overtime work given to Carlos Arias, Mario Castro, and Juan Corrales, because of their activities in behalf of and support for the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. All full-time and regular part-time production and maintenance employees including installer employees of Respondent, employed at its Brooklyn plant, exclusive of all office clerical employees, professional employees, guards and all supervisors as defined in the Act consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 7 Since July 20, 1983, the Union has been and is now the certified and exclusive representative of all employ- ees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 8. By failing and refusing to provide the Union with requested information relevant and necessary for the pur- pose of collective bargaining; by conceling negotiation sessions previously scheduled; by withdrawing all of its bargaining proposals and agreements with the Union; and by its overall acts and conduct, Respondent failed and refused to bargain collectively with the Union and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 9. By asking its employees whether they signed cards for the Union; by threatening its employees with dis- charge, plant closure, and removal of the plant, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. It. Respondent has not otherwise violated the Nation- al Labor Relations Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the purposes of the act. Having found that Respondent laid off Francisco Garcia and Jose Rodriguez and discharged Angel Ro- sario, Mario Castro, and Juan Corrales in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that Respondent be ordered to offer Garcia, Rodriguez, Rosario, Castro, and Corrales immediate and full rein- statement to their former positions of employment or, if these positions are not available, to substantially equiva- lent positions without prejudice to their seniority or other rights and privileges previouly enjoyed. Having also found that Respondent has violated Sec- tion 8(a)(1) and (3) of the Act by reducing overtime for its employees, I deem it appropriate to order Respondent to restore its prior practice of Saturday overtime work for Carlos Arias, Mario Castro, and Juan Corrales. I shall also recommend that Respondent be ordered to make whole Garcia, Rodriguez, Rosario, Castro, Cor- rales, and Arias for any losses they may have suffered by reason of the discrimination against them. The loss of earnings for the discriminatees shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and shall include interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). I shall also recommend that Respondent be ordered to cooperate in the restitution of the loan to Carlos Arias. Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and, on request, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding 15TH AVENUE IRON WORKS 659 in a signed agreement. I shall also recommend that Re- spondent provide the Union, on request, with informa- tion relevant and necessary for collective bargaining. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed16 ORDER The Respondent, 15th Avenue Iron Works, Inc., and Abitat Builders and Management Corp., Brooklyn, New York, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Laying off, discharging, or terminating its employ- ees because of their activities in behalf of or support for Shopmen's Local Union No. 455 of the International As- sociation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Local 455) or because they testi- fied in a Board proceeding. (b) Withholding from employees money from a loan because of their activities in behalf of or support for Local 455. (c) Reducing the amount of overtime work given to employees because of their activities in behalf of and support for Local 455. (d) Refusing to bargain collectively conerning rates of pay, wages, hours, and other terms and conditions of em- ployment with the Union as the exclusive bargaining rep- resentative of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees including installer employ- ees of Respondent, employed at its Brooklyn plant, exclusive of all office clerical employees, profession- al employees, guards and all supervisors as defined in the Act. (e) Refusing to provide the Union on request, informa- tion relevant and necessary for the purpose of collective bargaining. (f) Withdrawing its bargaining proposals and its agree- ments on items previously agreed to and accepted. (g) Asking its employees whether they signed cards for the Union and threatening its employees with dis- charge, plant closure, and removal of the plant. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Francisco Garcia, Jose Rodriguez, Angel Ro- sario, Mario Castro, and Juan Corrales immediate and full reinstatement to their former positions of employ- ment or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and make them whole for any losses of pay each may have suffered by reason of the discrimination against them in the manner set forth in the remedy section of the deci- sion. (b) Remove from its files any references to the layoff or termination of Francisco Garcia and Jose Rodriguez on September 9, 1982; Angel Rosario on October 28, 1982, and Mario Castro and Juan Corrales on May 5, 1983, and notify them in writing that this has been done and will not be used against them in any way. (c) Take steps to restore the loan it had cosigned with Carlos Arias and transmit to him the money for the loan when it is received from the bank. (d) Restore its prior practice of assigning Saturday and other overtime work to Carlos Arias, Mario Castro, and Juan Corrales. (e) On request, bargain with the above-named labor organization as the exclusive representative of all em- ployees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody the understanding in a signed agreement. (f) On request, bargain collectively with the above- named labor organization by furnishing it with the fol- lowing relevant wage and employment information con- cerning unit employees: the full name, current home ad- dress, date of hire, job classification, job description, wages, and benefits presently being provided to employ- ees in the bargaining unit such as, but not limited to, va- cation, medical coverage, and pension and sick leave benefits. (g) Post at the Brooklyn, New York facilities of 15th Avenue Iron Works, Inc. and Abitat Builders and Man- agement Corp., copies of the attached notice marked "Appendix B."17 Copies of the notice, on forms provid- ed by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees 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. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. '° If no exceptions are filed as provided by Sec 10246 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 17 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 " 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A Arias Castro Corrales Marino Pierre Rivers Schiavo Yale G Rodriguez B Rodriguez 11/04/82 2 10 15.5 10-1/2 11/11 2-1/2 1-1/4 8-3/4 11 10 11/18 11 11 10 11/25 1 2 11 8 12/02 *18 ' 10 12/09 6 95 10 10 12/16 5 1/2 2-1/2 ' • 1 12/23 2-3/4 3/4 2 3-1/2 13 10 12/30 1-1/4 3-1/4 8-3/4 12 7 01/06/83 1-1/2 8-1/2 10-1/2 01/13 3 5-1/2 2-1/2 10 13-3/4 10 01/27 3-1/2 4 7-1/2 12 10 02/03 3-1/2 ' 13 5 10 02/10 3-1/4 2 1 11-3/4 13 5 10 02/17 10-1/2 15 5 ' 02/24 2 1-3/4 2-1/4 7-1/4 10 4 8 03/03 3-1/2 3-1/4 11-3/4 13 5 10 03/10 2-1/2 1-3/4 2 11 13 5 10 03/17 3-1/4 1-1/2 4-3/4 8 13 5 10 03/24 10 13-3/4 5 03/31 3-3/4 3/4 8-1/4 13-1/2 14 04/07 11-3/4 16-1/3 6 2 04/14 2-1/4 8-1/2 13 5 10 04/21 1-1/4 1-1/2 15 15 5 10 04/28 13-1/2 16-1/2 1/4 5 10 05/05 1/4 10 10 5 10 05/12 11-1/2 8-1/2 7-3/4 10-1/2 4 05/18 15 16 7 8 16-1/2 05/25 14-1/2 19 6-1/2 10 17-1/4 06/01 9-3/4 11 4 8 13 11-3/4 06/08 7-3/4 14-1/2 5 10 15-1/4 11 06/15 8 13 5 10 15-3/4 10-1/4 06/22 15 14-1/2 5 10 16 9-1/4 06/28 11-3/4 17-1/2 5 10 15 7-1/4 07/06 7 10-1/4 4 8 12 9-1/4 07/13 11-1/2 13-1/4 5 10 18-1/4 6-3/4 07/20 9 13-3/4 5 10 15 6-1/4 07/27 5 10 16 6-3/4 08/03 14-1/2 12-1/2 5 14-1/2 6-3/4 08/10 15-1/2 16-1/2 5 15 6-1/4 08/17 * 11-1/2 5 11 16 ' 08/24 17-1/2 15-1/2 9-3/4 10 16-1/2 6-3/4 08/31 15 15-1/2 5 9-3/4 15-1/2 13-1/4 09/07 12 11 4 8 13 09/14 15 18-1/2 5 10 15 09/21 16 13-1/2 5 10 15-1/2 7 09/28 13-3/4 15-3/4 5 9 16-1/2 14-3/4 * The asterisk indicates that the employee worked some overtime but the exact amount is unknown because the payroll record is illegible. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off, discharge, or terminate our em- ployees because of their activities in behalf of or support for Shopmen's Local Union No. 455 of the International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO or because they testified in a Board proceeding. WE WILL NOT withhold from our employees money from a loan because of their activities in behalf of or sup- port for Local 455. WE WILL NOT reduce the amount of overtime work given to our employees because of their activities in behalf of and support for Local 455. WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and con- ditions of employment with Local 455 as the exclusive bargaining representative of our employees in the follow- ing appropriate unit: 15TH AVENUE IRON WORKS 661 All full-time and regular part-time production and maintenance employees including our installer employees, employed at our Brooklyn plant, exclu- sive of all office clerical employees, professional employees, guards and all supervisors as defined in the Act. WE WILL NOT refuse to provide Local 455, on request, information relevant and necessary for the purpose of collective bargaining. WE WILL NOT ask our employees whether they signed cards for Local 455 or threaten them with discharge, plant closure , or removal of the plant. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Francisco Garcia, Jose Rodriguez, Angel Rosario, Mario Castro, and Juan Corrales immedi- ate and full reinstatement to their former positions of em- ployment or , it those jobs no longer exist , to substantially equivalent positions , without prejudice to their seniority and other rights and privileges previously enjoyed, and make them whole for any losses of pay each may have suffered by reason of the discrimination against them. WE WILL remove from our files any reference to the layoff or termination of Francisco Garcia and Jose Ro- driguez on September 9, 1982; Angel Rosario on Octo- ber 28, 1982; Mario Castro and Juan Corrales on May 5, 1983, and notify them in writing that this has been done and will not be used against them in any way. WE WILL take steps to restore the loan we had co- signed with Carlos Arias and transmit to him the money for the loan when it is received from the bank. WE WILL restore our prior practice of assigning Satur- day and other overtime work to Carlos Arias, Mario Castro, and Juan Corrales. WE WILL, on request, bargain with Local 455 as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay , wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. WE WILL, on request, bargain collectively with Local '455 by furnishing it with the following relevant wage and employment information concerning unit employees: the full name, current home address, date of hire, job classification, job description, wages, and benefits pres- ently being provided to employees in the bargaining unit such as, but not limited to, vacation and holidays, medi- cal coverage, and pension and sick leave benefits. 15TH AVENUE IRON WORKS, INC. ABITAT BUILDERS AND MANAGEMENT CORP.