Laborers International Union Of North America, Local 270

1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers International Union of North America, Local ' 270 and Office and Professional Employ- ees Union Local 29, Office and Professional Employees International Union. Case 32-CA- 8185 23 September 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHEN, AND CRACRAFT On 18 June 1987 Administrative Law Judge Jay R. Pollack issued the attached decision. The Gen- eral Counsel filed exceptions and a supporting brief, and the Respondent filed limited cross-excep- tions and an answering brief in support of the judge's decision and the cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint" is dis- missed. I The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or. 1951) We have carefully examined the record and find no basis for re- versing the findings Barbara D. Davison, Esq., for the General Counsel. Paul D. Supton, Esq. (Van Bourg, Weinberg, Roger & Ro- senfeld), of San Francisco, California, for the Respond- ent. Anne Andrews Ellis, Esq. (Bunch & Andrews), of San Francisco, California, for OPEIU. Lewis D. Silver, Esq., of San Jose, California, for Incar- dona and Smith. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at San Jose, California, on February 24, 25, and 26, 1987. On August 29, 1986,1 the Regional Di- rector for Region 32 of the National Labor Relations Board issued a complaint and notice of hearing, based on a charge filed on July 2 and amended on August 22, al- leging violations of Section 8(a)(1), (3), and (5) of the I Unless stated otherwise all dates occurred in 1986 National Labor Relations Act. All parties have been af- forded, €ull opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record, on the briefs filed on behalf of the parties, and on my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Laborers International Union of North America, Local 270 (Respondent), with an office and place of business in San Jose, California, is engaged in organizing unrepre- sented employers and in representing its members and other employees in collective bargaining with various employers concerning wages, hours, and other terms and conditions of employment. During the 12-month period prior to the issuance of the complaint, Respondent, in the course and conduct of its business operations, paid per capita-taxes in excess of $50,000 directly to the Laborers International Union of North America in Washington, D.C. I find that, at all times material, Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Office and Professional Employees Union Local 29, Office and Professional Employees International Union (OPEIU) is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues As noted above, Respondent is a labor organization with its principal office in San Jose, California. During June, Respondent's office clerical employees became in- terested in seeking their own, union representation. Frances Incardona, Respondent's office manager, con- tacted the OPEIU and obtained a copy of a sample col- lective-bargaining agreement and some union authoriza- tion cards. On June 12 Incardona gave each of the other four clericals the sample agreement to review and a blank authorization card to sign if they were interested in joining OPEIU. Each employee signed a card and re- turned it to Incardona. On June 16 all the clerical em- ployees met with JoAnn Jung of OPEIU and, at that time, Incardona turned over the five union authorization cards to Jung. Jung told the employees that she would send a letter to Respondent demanding recognition. On June 19 Respondent received ' the OPEIU's letter de- manding recognition. On June 27 Incardona and Jill Smith, another clerical employee, were discharged. Within this factual framework, the General Counsel contends that Respondent violated Section 8(a)(1) of the Act by interrogating Incardona about her union activities and those of other employees.2 Further, the General 2 As will be more fully discussed infra, the General Counsel also al- leged that Respondent, through Dolores Valdez, the wife of Respondent Business Manager Leo Valdez, interrogated Smith about her union activi- Continued 285 NLRB No. 134 LABORERS LOCAL1,270 Counsel alleges that Respondent violated Section 8(a)(3) and (1) of the Act by: isolating Incardona from contact with other employees; changing the work hours of its employees; eliminating overtime work for employees; changing the lunch hours of its employees; and by dis- charging Incardona and Smith because of their union ac- tivities. Finally, the General Counsel alleges that a bar- gaining order is necessary to remedy the unfair labor practices alleged in the complaint. Respondent denies all such allegations. It further contends that Incardona was a supervisor within the meaning of the Act and, there- fore, excluded from coverage under the Act. Finally, Re- spondent contends that no bargaining order can issue based on the authorization cards obtained by Incardona, a statutory supervisor. B. Supervisory Status of Frances Incardona In June 1985 Leo Valdez became the newly elected business manager for Respondent. Valdez had previously been a business agent for Respondent working in the field. In July .1985 Valdez hired Incardona to run the office for him. The Valdez and Incardona families had been friends for years and Valdez wanted someone loyal to him' to run the office. Valdez 'told Incardona that he knew nothing about running an office, and that the office staff was loyal to the union officials whom Valdez had just defeated in the recent election. Thus, Valdez wanted Incardona to learn all the clerical positions in the office so that Valdez would not be dependent on the clerical staff he had inherited. There was conflicting testimony whether 'Incardona assigned employees work and overtime and whether she responsibly directed employees in their work. I find it unnecessary to resolve those conflicts because the credi- ble evidence establishes that Incardona effectively rec- ommended the hire and discharge'of office employees. During the investigation of the unfair labor practice charge, Incardona gave an affidavit to an agent of Region 32 which stated, inter alia: I did not have the authority to hire and fire em- ployees, however I could make effective recommen- dations that someone be hired or fired. At the trial, Incardona testified that she was not sure she made these statements to the investigator. Later she testi- fied, "most likely I did." The General Counsel argues that this testimony is conclusionary and should not be credited. Further, the General Counsel argues that Incar- dona did not intend to testify in contradiction of the affi- davit. My observation at trial is that Incardona sought to avoid the consequences of the affidavit because, by the time of the trial, she was aware that if she were found to be a supervisor she would be unable to obtain reinstate- ment and backpay in this proceeding.3 ties and those of other employees This allegation was dismissed at the trial on the basis that the General Counsel had failed to establish that Do- lores Valdez was an agent of Respondent or that Respondent was liable for her conduct 3 Pursuant to Sec 102.118 of the Board's Rules and Regulations, Re- spondent sought to have the field examiner who took Incardona's affida- 1027 In any event, the trial evidence establishes that of the approximately five clerical employees hired after Incar- dona became office manager, Incardona interviewed every applicant with Valdez and recommended their hire. On one occasion Valdez hired an applicant who was not Incardona's first choice. On another occasion Valdez did not want to pay a new hire the starting pay she was seeking, but eventually, based on Incardona's recommendation, he agreed to pay the higher amount. Two clerical employees were fired on the basis of In- cardona's recommendations. In each case Valdez fired the employee simply on the basis of Incardona's recom- mendation and without any independent investigation. The General Counsel seeks to avoid the consequences of those two situations by arguing that Incardona com- plained about these employees for a long time before they were finally terminated and, with one employee, In- cardona was instructed not to attempt to counsel the em- ployee. These facts do not establish lack of authority. While Valdez decided to intervene and counsel one em- ployee, he eventually fired the employee based on Incar- dona's dissatisfaction with the employee's attitude. In the other discharge, Valdez did not fire the employee until after some period of time but there is no evidence to es- tablish that Valdez fired the employee_ for any reason other than Incardona's complaints about the employee's job performance. The employee was told that she was discharged based on 'Incardona's recommendation and Incardona was given the same reason for the employee's discharge. Valdez credibly testified that he knew little about running an office and was forced to rely heavily on Incardona's recommendations. Section 2(11) of the Act states: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employ- ees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The possession of any one of the authorities specified in Section 2(11) is sufficient to place an employee in the supervisory class. Ohio Power Co. v. NLRB, 176 F.2d 385, 387 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949); Fair Lady, Inc., 211 NLRB 189 (1974). On the other hand, the legislative history of Section 2(11) indicates that Congress intentionally distinguished between "straw vit testify in this proceeding The General Counsel denied Respondent's request Respondent argues that the General Counsel's decision not to permit the investigator to testify and impeach Incardona is a dental of due proc- ess I find it unnecessary to pass on Respondent's argument Incardona was effectively impeached by her affidavit I did not credit her self-serv- ing testimony that the statements in her affidavit resulted from deficien- cies by the investigator When there was any discrepancy between Incar- dona's pretrial statement and her testimony at trial, her pretrial statement was credited Thus, in this case, Respondent was not prejudiced by its inability to call the General Counsel's investigator as a witness 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bosses, leadmen, set-up men, and other minor superviso- ry employees, on the one hand, and the supervisor vested with such genuine management prerogatives , as the right to hire, or fire, discipline, or make effective rec- ommendations with respect to such actions." Thus,, a "leadman" or "straw boss" may give "minor orders or directives or supervise the work of others, but he is not necessarily a part of management and a `supervisor' within the Act." George C. Foss Co., 270 NLRB 232 (1985), enfd. 752 F.2d 1407 (9th Cir. 1985); Drying Shed, 263 NLRB 57 (1982); NLRB v. Doctor's Hospital of Mo- desto, 489 F.2d 772, 776 (9th Cir. 1973). In the instant case, it appears that Incardona effective- ly recommended both the hiring and firing of clerical employees. It is for this reason she is found to be a su- pervisor within the meaning of the Act. See, e.g., Wash- ington Post Co., 254 NLRB 168, 218-219 (1981); Ace Ma- chine Co., 249 NLRB 623, 628 (1980). In Parker-Robb Chevrolet, 262 NLRB 402 (1982), the Board held that the protection of the Act does not extend to supervisors discharged or otherwise disciplined for engaging in union or other concerted activity. Thus the allegation concerning Incardona's discharge and iso- lation from employees, - whether or not motivated by union activities, cannot be found to be a violation, of the Act. Further, whether or not Respondent interrogated Incardona about her union activities or the activities of other employees, I cannot find a violation in such con- duct. See Ace Machine Co., supra, 249 NLRB at 624. C. The Agency Status of Dolores Valdez The complaint alleged and the answer denied that Do- lores Valdez, wife of business manager, Leo Valdez, was an agent of Respondent within the meaning of Section 2(13) of the Act. - - - D. Valdez was not employed in any capacity by Re- spondent. Leo Valdez was the business manager for Re- spondent, elected to a 3-year term . Obviously, neither Valdez had a proprietary interest in the Respondent. Be- sides the fact that D. Valdez was married to the business manager, the only evidence offered by the General Counsel on the issue of agency was the testimony that D. Valdez liked to visit the Respondent's offices. On oc- casion she would relay messages to Incardona that Valdez would like to see Incardona in his office. I find insufficient basis to establish-that Respondent is liable for D. Valdez' acts and conduct. There is no evidence that D. Valdez had actual authority to act or speak for Re- spondent. Nor is there any evidence that Respondent held out D. Valdez to the employees or the public as one of Respondent's representatives. Family relationship is one of the facts to be considered in determining apparent authority and, when viewed in the context of other factors, may be sufficient for a find- ing of agency based on apparent authority. However, it would be an error to hold that nonemployee relatives of an agent are per se agents of an employer. Respondent's employees knew that D. Valdez was not employed by the Union and that her occasional delivery of messages was a gratuitous act requiring little or no judgment. She carried a simple message so that Valdez did not have to walk downstairs to bring Incardona to his office. Perhaps the General -Counsel confuses the question of whether D. Valdez was an agent of her husband with the question whether she was an ,agent of Respondent , her husband's employer. In - Airborne Freight Corp., 263 NLRB 1376 . (1982), relied on by the General Counsel , the Board found that employees could reasonably believe that the regional manager's wife was speaking and acting for management. However, that case found agency based on ratification of her, acts by telephone calls by her husband and another admitted agent of Airborne Freight. In the instant case, there was no evidence offered that Respondent knew of D. Valdez' remarks or in any way ratified or adopted her conduct. In the absence of any showing of agency on the part of D. Valdez, I ruled at the hearing that Smith's testimo- ny regarding D. Valdez' statements attributing antiunion statements to Valdez was hearsay . Under Federal Rules of Evidence § 801(d)(2)(D), "a statement is not hearsay if .. . the statement is offered against a party and is . . . a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the execution of the relationship." D. Valdez' re- lationship' with Respondent was as a visitor who occa- sionally delivered a simple and routine message. Her agency is so limited that the statement concerning the employees' organizational activities cannot be deemed to be related to a matter within the scope of her agency. I affirm my ruling at trial excluding this testimony as hear- say. I further affirm my ruling that Respondent cannot be found to have independently violated Section 8(a)(1) of the Act by D. Valdez' alleged interrogation of Smith. D. The Alleged Unfair Labor Practices As noted above, during June, all the office employees signed union authorization cards on behalf of OPEIU. A letter stating that the employees had designated OPEIU as their representative and demanding recognition was received by the Respondent on June 19. Smith opened the letter with the rest of the mail and placed it on Valdez' desk. Valdez found the letter with his mail that afternoon. It appears that Valdez had no prior knowl- edge of the employees' union activities. On receipt of the OPEIU's demand letter, Valdez called Incardona into his office. Valdez asked Incardona if she was aware of the letter.4 Incardona said she was. Incardona told Valdez that all the employees in the office had signed authorization cards. Valdez asked why Incardona had not spoken with him regarding the possi- bility of the secretaries joining OPEIU. Incardona told Valdez that he knew she would not do that. Valdez said that he thought they were friendsand Incardona an- swered that they were friends. Incardona said that the organizing campaign had nothing to do with their friend- ship. Shortly thereafter, while Incardona was delivering some papers to Bill Shelton, Respondent's president and 4 As previously stated because Incardona was found to be a supervisor, no violation of the Act can be found in Valdez' questioning of her re- garding OPEIU However , I shall consider this evidence in determining Respondent's motivation in discharging employee Jill Smith LABORERS LOCAL, 270 a business agent, Valdez, joined Incardona and Shelton. Valdez told Incardona to sit down and he instructed Shelton to take a letter. Valdez then dictated a letter to JoAnn Jung of OPEIU, acknowledging receipt of her demand letter and stating that he was looking forward to negotiations with her. Valdez stated he had been intend- ing to fire Maria Ramirez, a secretary, and that he hoped that this would not reflect on the negotiations. He fur- ther said that there was a possibility that he would be firing two other secretaries, Joanna Castellanos and Ro- berta Rose, but was not sure if that would actually occur. Again, Valdez stated that he hoped the firings would not reflect on the relationship between OPEIU and Respondent. Valdez told Shelton to get the letter typed and mailed out the next day. OPEIU never re- ceived this letter or any other correspondence from Re- spondent. There is no evidence that Respondent ever mailed the letter and I draw the inference that it did not. In my view, this exercise was for Incardona's benefit' and for the purpose of implying the negative consequences of unionization on the office clericals. s The next morning, June 20, shortly after Incardona re- ported to work, Valdez ordered that a piece of sheetrock be placed on the window in the bookkeeping office where Incardona worked. The sheetrock covered the opening between Incardona's bookkeeping office and the large open office where the other clericals worked. The General Counsel contends that the purpose of this sheet- rock was to isolate Incardona from the other employees. However, Valdez credibly testified that the purpose of the sheetrock was to cut down on the noise and outside interference from the main office while Valdez, Incar- dona, and others were using videotaping equipment to make an instructional tape. Maria Ramirez_ and Roberta Rose corroborated Valdez' testimony on this point. I credit Valdez and discredit the testimony of Incardona and Smith that videotaping did not take place' at this time but rather at another time. Beginning on June 20, Valdez ordered the clerical em- ployees to begin recording all dues payment on both the computer system that had been installed in April, and the handposted ledger system that had been used prior to April. Between April and June, the employees were working on an altered schedule, including increased overtime, as a result of the need to feed information into the computer. Robert Jaime, Respondent's secretary- treasurer and the person responsible for overseeing the office, informed Incardona that beginning Monday, June 23, her hours would be changed from 7 a.m. to 4 p.m. No reason was given to Incardona for the change. Jaime told Smith that her new hours would be 8 a.m. to 5 p.m. Smith asked Jaime if that meant there would be no over- time and Jaime answered that there would be no more overtime. The record shows that overtime was not a reg- ular condition of employment except for the approxi- mately 2 months when the employees were working in- creased hours to feed Respondent's records from its filing card system into its newly acquired computer. The 5 Ramirez was discharged on June 20, and later rehired after the dis- charges of Smith and Incardona Castellanos and Rose were not dis- charged. 1029 change in the employees' hours occurred at the same time the overtime stopped, apparently as a result of the end of the data input operation. On' Monday, June 23, Incardona reported for work at 7 a.m. as per Jaime's instructions. She was told by Valdez that her new hours would be 8 a.m. to 5 p.m. be- ginning the following day. Starting June 23, Respondent also required Incardona and Smith to take their lunch from 12 noon to 1 p.m. No explanation for the change in lunch hours was offered at the time. Apparently the change was necessitated by the change in hours caused by the completion of the computer project. During this week, Incardona was required to train Jaime and a new hire named Laura in her bookkeeping job. On Friday morning, June 27, Jaime approached Incar- dona in the bookkeeping office. Jaime told Incardona that he had prepared her final paycheck and that Re- spondent would no longer be needing Incardona's serv- ices. When Incardona asked him where Valdez was, Jaime said Valdez was out. Incardona said she would wait to talk to Valdez. Jaime offered no explanation, about why Respondent was firing Incardona. I find it un- necessary to go into Respondent's defense for firing ,In- cardona. As indicated earlier, having found that Incar- dona was a supervisor within the meaning of the Act, 'I cannot find her discharge, even if motivated by union ac- tivities as alleged, to be violative of the Act. Also on the morning of June 27, Jaime told Smith that Respondent would not be needing her services any longer. Smith asked what she had done wrong, and if there was a problem with her work performance. Smith said she had never received any warnings nor been told that she was doing anything wrong. Jaime said that Re- spondent did not have any problems with Smith's work performance, adding, "We just don't like you anymore." Smith asked Jaime if he realized that what Respondent was doing was illegal. Jaime answered that he "didn't have any idea." An hour or so later, Smith approached Valdez and some union members of Respondent in Respondent's parking lot. Smith told the union,members that she had been fired for union activities. Valdez said that he would like to talk to her about it but he could not. Valdez then walked 'back into Respondent's building. Shortly thereaf- ter, Smith and Incardona both approached Valdez while he was standing at the counter inside Respondent's office. There were union members and employees present. Smith and Incardona asked Valdez why they were being fired. Valdez said he would love to talk about it, but on the advice of his attorney, he could not. Again, Valdez walked away. In its defense, Respondent offered evidence that it dis- charged Smith because of the improper dispatch of an employee from Respondent's hiring hall. On June 16,6 3 days prior to receiving the demand letter from OPEIU, Valdez was accused by a member of s To the extent that Smith testified that this event took place on June 20, she is not credited The testimony of Rose, Ramirez, and Valdez es- tablished that the event took place on June 16, a rollcall day at the Re- spondent's hiring hall The surrounding circumstances further indicate that the event took place on a rollcall date Monday, June 16, is the date that most logically falls into the sequence of events 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD granting favoritism to another member. It is undisputed that Valdez ran for office on a platform of honesty and integrity. Prior to any of the events in this case , Valdez made it clear that his most important objective was an honest hiring hall and he took steps to insure that his business agents did not grant favors to friends. Valdez, on numerous occasions , told Smith and the other em- ployees that if anyone was dispatched out of order, such a dispatch would lead to termination or other severe dis- cipline. On June 16, when accused of granting an improper dispatch, Valdez physically went after the accusing member. Other members intervened and one member suggested to Valdez that if he checked Respondent's records he would find that member Chris Revuelta had been improperly dispatched . After Valdez reviewed the hiring hall records, he became furious. Valdez discov- ered that Revuelta had improperly been returned to the out-of-work list after a dispatch to his previous position, as if he had not been dispatched . Revuelta should have been returned to the list at the bottom . Waving the hiring hall records, Valdez shouted that he had "run for office on honesty and integrity and when he got to the bottom of this someone was going to be fired." Valdez testified that when he discovered the improper dispatch on June 16, he determined to fire whoever was responsible. At that time, Valdez did not know whether a business agent, Roberta Rose (his secretary), or Smith was responsible. According to Valdez, he did not ques- tion Smith or Rose because he did not expect them to tell the truth about the matter. Instead, Valdez instructed a business agent to bring Revuelta into the office to talk to Valdez. One week later, on June 23, Valdez ques- tioned Revuelta about the dispatch. Revuelta told Valdez that he had tricked Smith into placing him on the out-of- work list by telling her that he had never been dis- patched (the records showed that he had been dis- patched on April 23).' On his way out, Revuelta in- formed Smith that he had just told Valdez that he tricked Smith into placing him near the top of the out-of- work list. Smith did not go to ' Valdez to explain the dis- patch. According to Valdez, after learning of Smith's culpa- bility in the dispatch , he instructed Jaime to fire her. The termination took place at the end of the workweek. At the first union membership meeting after these events, Valdez apologized to the union membership for threaten- ing the union member who first questioned the dispatch and apologized for the improper dispatch. He further told the membership that he had fired the employee re- sponsible for the mistake. When questioned at the hearing concerning the dis- patch, Smith first testified that Jaime had failed to record the date of Revuelta's dispatch and, therefore , she could not know that Revuelta had been dispatched and could not regain his place near the top of the out -of-work list. The records show that this was not a fact . Rather, the records reveal that Revuelta was dispatched on April 23. 7 Revuelta was improperly placed on the out-of-work list on May 14. He received a dispatch on June 9 that triggered the events of June 16, the next rollcall date Clearly, Smith should have checked with Valdez or some other officer before placing Revuelta back near the top of the list. On the other hand , the manner in which Smith inserted Revuelta's name on the list clearly indi- cates that she did not believe she was doing anything wrong. She inserted Revuelta's name between the names of two other employees in a manner that clearly stood out and would be observed by anyone looking at the list. Thus, it is clear that Smith made a mistake but did not intentionally grant Revuelta an improper dispatch. E. Conclusions Regarding the Discharge of Jill Smith Section 8(a)(3) of the Act forbids an employer "by dis- crimination in regard to hire or tenure of employment or any term or condition of employment to . . . discourage membership in any labor organization." Thus, it is axio- matic that an employer who discharges employees be- cause of their support for a union commits an unfair labor practice. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The critical question herein is whether Respondent's discharge of Smith would have taken place even in the absence of her union activities. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455-U.S. 989. Under Wright Line and - Transportation Management, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. On such a showing, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. For the following reasons, I find that the General Counsel has- made a prima facie showing that Respond- ent was motivated by a desire to discourage membership in the OPEIU. On receipt of the OPEIU's demand letter, Valdez questioned Incardona and learned ' that all Re- spondent's clerical employees had signed union authori- zation cards. Shortly thereafter, Valdez dictated a letter to Shelton in which he mentioned the discharge of one employee and the possible discharge of two others. In effect, Valdez threatened to fire three of the four bar- gaining unit employees (excluding Incardona). Eleven days later, Smith was terminated by'Jaime and said, "We don't like you anymore." When Smith later confronted Valdez with the accusation that she had been fired for union activities, Valdez said only that he could not talk about it . The failure of Jaime and Valdez to give Smith a' reason for her discharge supports an inference of an un- lawful motive . See, e.g., The Mandarin, 221 NLRB 264, 270 (1975), and cases cited. The burden shifts to Respondent to establish that Smith would have been discharged even in the absence of her protected union activities. As shown above, Smith improperly inserted Revuelta's name on the out -of-work list near the top of the list. It is well settled that if an employer discharges an employee involved in "unwel- come concerted activities" for behavior that would war- rant a discharge in the absence of union or concerted ac- tivities, then "the circumstances that the employer wel- comed the opportunity to discharge does not make it dis- LABORERS crimipating and therefore unlawful." Klate Holt Co., 161 NLRB 1606, 1612 (1966). In this 'case, the integrity of the hiring hall was undis- putably a primary concern of Valdez prior to any of the events in this case. Smith and the other employees knew that an improper dispatch would result in severe disci- pline. On June 16, prior to any knowledge of the em- ployees' union activities, Valdez, furious over the dis- patch, shouted out to employees and members that when he found out who was responsible for the dispatch that person would be fired. At the time of this proclamation, Valdez did not know the identity of the person he had just threatened to fire. Consistent with this action, Valdez had Revuelta brought into his office and he learned first hand that Smith had been tricked. Consist- ent with all his actions in the matter, Valdez decided to fire Smith and instructed Jaime to fire her at the end of that week. Thereafter, Valdez informed the union mem- bership that he had fired the employee responsible for the improper dispatch. Thus,, it appears that the chain of events that started in early June would have led to Smith's discharge even in the absence of the employees' union activities. The General Counsel argues that no employee would be fired for a single such incident. However, I disagree. In effect, on June 16, Valdez clearly indicated that who- ever was involved would be terminated and that that was consistent with other statements Valdez had previ- ously made concerning dispatching. There is no evidence that other employees had been treated differently. Al- though there was evidence that Respondent's dispatchers were often called on to explain matters to employees, the Revuelta incident is the only incident in the record when in fact an improper dispatch was made during Valdez' tenure. The General Counsel argues that Valdez' and Jaime's failure to tell Smith that she was terminated for the im- proper dispatch establishes that Respondent' s defense is only a pretext used to mask an unlawful discharge. Al- though I find that the failure to give Smith a reason for the discharge helped establish the prima facie case, I find that Respondent has rebutted that, prima facie case. Re- spondent may not have "liked" Smith anymore because of her union activities, but the fact remains that her dis- patch of Revuelta would have resulted in termination in any event. F. Conclusions Regarding the Change in Working Hours and Overtime The complaint alleges that Respondent unlawfully changed the work hours of its employees and eliminated the employees' overtime work. Shortly after receiving the OPEIU's demand letter (on June 19), Respondent changed the work hours of its employees. The timing of these changes raises a strong inference of an illegal LOCAL 270 1031 motive. However, Respondent has again rebutted the prima facie case. Approximately 2'months prior to the change of June 23, Respondent's clerical employees were working an increased schedule with overtime in order to feed information from its card files into its newly ac- quired computer system. When that computer project was completed, the scheduled hours were changed and the overtime was no longer needed. There is no reason to believe that these changes would not have taken place even in the absence of the union activities. Accordingly, I recommend dismissal of these allegations of the com- plaint. To the extent that the General Counsel argues that In- cardona's hours were scheduled with the intent of retali- ating against her for her union activities, that argument is barred by the finding that Incardona was a statutory su- pervisor. G. The Remedial Bargaining Order As I have found no unfair labor practices, it follows that I cannot find that a bargaining order is required to remedy Respondent's conduct. Further, the employees' support of the OPEIU is tainted by Incardona's solicita- tion of the union authorization cards. See, e.g., Farmers Energy Corp., 266 NLRB 722 (1983); Hillside Bus Corp., 262 NLRB 1254 (1982); Hollander Home Fashion Corp., 255 NLRB 1098 (1981). Accordingly, I cannot find that OPEIU represented an uncoerced majority of the em- ployees. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. OPEIU Local 29 is a labor organization within the meaning of Section 2(5) of the Act. 3. Prior to her discharge in June 1986, Frances Incar- dona was a supervisor within the meaning of Section 2(11) of the Act. 4. The General Counsel has failed to establish that Re- spondent has violated the Act as alleged in the com- plaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The complaint is dismissed in its entirety. 8 All outstanding motions inconsistent with this recommended Order are denied. If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.