Honeycomb Plastics Corp., Honeyware Products, Inc., Laminray Corp. And Hangerplast, Inc.

HONEYCOMB PLASTICS CORP. 413 Honeycomb Plastics Corporation, Honeyware Prod- ucts, Inc., Laminray Corporation and Hanger- plast, Inc. and Local 867, Warehousemen, Plas- tic Processing, Electrical Components, Produc- tion and Maintenance Employees a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO. Case 22-CA-14455 April 8, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 20, 1987, Administrative Law Judge Howard Edelman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support of its cross-exceptions and in re- sponse to the Respondent's 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 National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Honeycomb Plastics Corporation, Honey ware Products, Inc., Laminray Corporation and Hangerplast, Inc., Kearny, New Jersey, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. The Respondent has excepted to some of the judge's credibility find- ings. The Board's estabhshed policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (34 Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The judge at one point in his discussion found the unit to have 109 employees, at other places, 108 employees. The references to 108 em- ployees are inadvertent errors. The judge also found that three employ- ees whose status was disputed—Elena Lainela, Lana Kennedy, and Wil- liam Macklin—should be included in the unit. To avoid any possible con- fusion, we note that these 3 employees are included in the figure of 109. In adopting the judge's finding that the Charging Party Union achieved majority status, we fmd it unnecessary to rely on the finding that the two Spann sisters' cards are valid authorizations. Even without counting their cards, we find a total of 56 valid authorization cards—a majority in the unit. Maria E. Balzano and Marta Figueroa, Esqs., for the Gen- eral Counsel. Lewis H. Silverman and Gregg E. Clifton, Esqs. (Jackson, Lewis, Schnitzler & Krupman), for the Respondent. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on September 22-23, 25, and 29-30; October 3, 7-9, 22-24, 27-28, and 30; and Novem- ber 6, 1986, at Newark, New Jersey. On May 15 and June 25, 1986, charges were filed by Local 867, Warehousemen, Plastic Processing, Electrical Components, Production and Maintenance Employees a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) against Honeycomb Plastics Corporation, Hon- eyware Products, Inc., Laminray Corporation, and Han- gerplast, Inc. (Respondent). On July 11 and August 29, 1986, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 22, issued a complaint and notice of hearing and a first amended complaint and notice of hearing, alleging that Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the National Labor Rela- tions Act (the Act). The complaint was further amended during the trial of the above matter. Briefs were filed by the General Counsel and Re- spondent. On my consideration of the entire record, the briefs, and my observation of the demeanor of the wit- nesses, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW Respondent operates out of a single facility in Kearny, New Jersey, four separate corporations. Honeycomb Plastics Corporation is a manufacturer of plastic prod- ucts. Honeyware Products, Inc. and Hangerplast, Inc. are corporations engaged in the sale and distribution of the plastic products manufactured by Honeycomb. La- minray Corporation is an import export corporation that handles electrical products. All the above corporations are wholly owned by Tony Sheng. Sheng is also the president of each corporation. All the employees employed by Respondent are carried on the Honeycomb payroll. All the production employ- ees employed by Respondent perform work exclusively for Honeycomb. The clerical employees and Sheng per- form work for all four corporations under the supervi- sion of Sheng. Honeycomb is reimbursed by the other three corporations for their share of payroll expenses. Honeycomb pays rental for the Kearney facility and the expense for all production and office equipment utilized at the Kearney facility. The General Counsel contends that the above-de- scribed corporations constitute a single employer within the meaning of the Act. I concur. It is clear that among the four corporations there is common ownership, man- agement, and supervision. The corporations share a common facility and equipment. There is interchange of employees who are employed in a single payroll. Addi- tionally, Honeycomb, Honeyware, and Hangerplast are interrelated in that Honeycomb manufacturers the prod- ucts sold by Honeyware and Hangerplast. I fmd the above four corporations to constitute a single employer 288 NLRB No. 51 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD within the meaning of the Act. Radio Union Local 1264 v. Broadcast Service, 380 U.S. 255, 256 (1965); Consolidat- ed Dress Carriers, 259 NLRB 627, 633-634 (1981). Respondent, in the course of its operations, annually ships from its Kearny, New Jersey facility products valued in excess of $50,000 directly to points located out- side the State of New Jersey. Respondent admits and I find that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent also admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. The parties stipulated that the following unit is the ap- propriate collective-bargaining unit: All regular full and part-time production, mainte- nance and warehouse employees, including plant clerical employees, and office clerical employees employed by Respondent at its Kearny, New Jersey facility, but excluding professional employees, confi- dential employees, managerial employees, guards and siipervisors as defined in the Act. As of May 5, 1986, Respondent employed 109 unit em- ployees.' Respondent's entire operation is run by Tony Sheng, the president. Claire Hooker is admittedly second in command and a statutory supervisor. Respondent's pro- duction operation utilizes three standard 8-hour shifts. Joe Torres, classified by Respondent as a molding man- ager, works the first shift and appears to be what is com- monly referred to as a plant manager. He reports directly to Sheng or Hooker in Sheng's absence. He is in overall charge of Respondent's production operation and is the highest paid production supervisor. It is admitted that he is a statutory supervisor. Reporting to Torres are Foremen John Maddin, Oscar Salazar, Eugene Rosario, and Fernando Frias. Also re- porting to Torres is Charlie James, an admitted supervi- sor within the meaning of the Act. All the above individ- uals are salaried whereas unit production -employees are hourly paid. Moreover, there are wide differences in their weekly pay. The above foremen receive between $460 to $500 per week, as contrasted with an hourly starting pay rate of about $3.40 per hour for production employees. The credible evidence, including the testimony of Sheng, establishes that these foremen make recommenda- tions to Sheng as to the number of employees needed to operate their shifts. These recommendations are general- ly followed. They are consulted by Sheng and Jane Hooker as to which employees should be laid off when layoffs are required. They have the authority to dis- charge employees and have on occasion exercised such The General Counsel contends that Claire Hooker is an employee with "special status" and that John Macklin, Oscar Salazar, Eugene Ro- sario, Fernando Frias, and William Macklm are supervisors within the meaning of the Act As set forth below, I agree with the General Coun- sel's contentions except as to William Macklin. Counsel for Respondent contends that Elena Lamela and Lana Kennedy are supervisors within the meaning of the Act and additionally that Lamela is a confidential em- ployee. For reasons set forth below, I reject these contentions. authority. They have authority to suspend employees for improper conduct. They have authority to grant employ- ees time off and to adjust grievances. Additionally they recommend employees for merit raises and their recom- mendations are usually followed. The foremen are responsible for the work on the shifts and in discharging such responsibility they assign em- ployees their work and transfer them from job to job when necessary to complete the work of the shift. The foremen do no production work themselves, although they may repair production machinery when necessary.2 Possession of any of the indicia set forth in Section 2(11) of the Act is sufficient to establish supervisory status. Kern Council Services, 259 NLRB 817 (1981). The facts above establish that of the above-named foremen possesses many of the supervisory indicia. Moreover, they are salaried and earn significantly more than the hourly paid unit employees. ITT Corp., 249 NLRB 441, 442 (1980); Clear Lam Packaging, 265 NLRB 701 (1982). Accordingly, I conclude that John Macklin, Frias, Sala- zar, and Rosario are supervisors within the meaning of the Act and are excluded from the bargaining unit. The credible evidence establishes that William Macklin was an hourly paid employee earning less than several other admitted unit employees. Unlike other supervisors, William Macklin performed significant production work, specifically many duties associated with a floorboy. He originated no assignments or gave no orders on his own. At best he acted on occasion as a conduit, relaying in- structions from his shift foreman to other unit employees. There is insufficient evidence to establish that William Macklin possessed any of the supervisory indicia set forth in Section 2(11). Accordingly, I conclude he is a unit employee. The credible evidence establishes that Claire Hooker is Jane Hooker's mother. Jane Hooker is Respondent's highest-level supervisor. She is in complete charge of the plant when Sheng is out of town on business. Claire Hooker began working for Respondent in March 1986 as a production employee. She worked exclusively on the hot stamping machine that was usually operated by other production workers when they had no immediate work on their own machines. She left Respondent's employ during the latter part of May 1986. She did not return until sometime in September 1986. 3 Her starting rate of 2 My findings of fact throughout this case are based on the credible testimony of the General Counsel's witnesses and on the admissions of Sheng and other supervisory employees. I found all General Counsel wit- nesses to be generally credible. I was generally impressed with their overall demeanor. Their direct testnnony was forthright and consistent with the relevant facts contained in their affidavits. Exhaustive cross-ex- amination by Respondent counsel elicited at times only minor inconsistan- cies that I would expect from a truthful witness Moreover, the General Counsel's witnesses were Often mutually corroborated and were addition- ally corroborated by Respondent's own records. On the other hand I was generally unimpressed with the demeanor of Respondent's witnesses. They were frequently evasive during cross-exam- ination and there were often major contradictions between their direct testimony and cross-examination and/or their affidavits. I will set forth below, where appropriate, additional reasons for dis- crediting specific individuals. 3 Respondent contends that Claire Hooker's absence during the summer months was due to a disability leave. This is not supported by Continued HONEYCOMB PLASTICS CORP. 415 pay was $4.50 per hour as contrasted with Respondent's usual starting rate of $3.40 per hour. Unlike other pro- duction employees she had no set hours, usually driving to and leaving work with Jane Hooker. She does not punch a timeclock nor is her name on the daily produc- tion list as all other unit employees. Her health insurance premiums are paid out of Jane Hooker's paycheck. She is permitted the use of the front office lavatory and kitchen facilities that other production employees are not permit- ted to use. On occasion she has used the company car for personal use. It is clear to me that Claire Hooker's working condi- tions are significantly different from those of other pro- duction employees, and that she enjoys a special status as the result of her relationship with Jane Hooker. I there- fore conclude she does not share a community of interest with the unit employees. Sertafilm, Inc., 267 NLRB 682, 691 (1983), enfd. 726 F.2d 1435 (3d Cir. 1985); Wesco Electrical Co., 232 NLRB 474, 483 (1977). Respondent contends that Elena Lamela was a super- visor, a managerial employee, and/or a confidential em- ployee. The credible evidence shows that Lamela was originally the secretary to Sales Manager David Pearl- man. Her duties consisted essentially of typing sales let- ters, answering phones, and filing papers. She also han- dled the accounts receivable and accounts payable for Honeyware. When Pearlman left Respondent's employ in Decem- ber 1985, Lamela took on additional responsibilities. She answered customers' and salesmen's questions regarding orders and shipment dates, scheduled pickup dates, and, on Sheng's authorization, placed orders with the vendors for labels, cartons, and other supplies. Lamela also became responsible for administering Respondent's health insurance program. In this connection, she kept track of eligibility dates for new employees, provided them with enrollment forms, assisted employees in com- pleting claims forms, and filed claims with Respondent's insurance carrier. In order to perform these functions she had access to the personnel files of the employees. Respondent contends that Lamela hired employees. The credible evidence establishes that Lamela's involve- ment in the hiring process amounted to no more than routine clerical duties that she performed at the direction of Jane Hooker or other supervisory personnel. Deci- sions to hire employees were made by Sheng in consulta- tion with Jane Hooker and Torres. When applicants ap- peared at Respondent's facility, Lamela would provide them with employment applications and assisted them in filling them out. She performed no function that could reasonably be considered interviewing applicants. After a decision was made to hire a specific number of appli- cants, Jane Hooker would instruct Lamela to call the ap- plicants and tell them to report for work. When she per- formed this function and the applicant reported for work she would, pursuant to Jane Hooker's instruction, rou- tinely place the notation "hired by" Lamela, on the ap- the record. Respondent provided no evidence to establish such conten- tion. Moreover, in his affidavit dated July 1, 1986, Sheng stated that Claire Hooker was no longer employed by Respondent and made abso- lutely no mention of a disability leave of absence for her. plication. On occasion, other office employees would perform this function, but Lamela usually did it because she spoke Spanish and most of the production employees were Spanish. Respondent also contends that Lamela was the person production employees saw when they had any problems. However, the evidence shows that the employees sought her out because of her ability to communicate with them in their native language. Lamela did not resolve griev- ances, but merely transmitted the information to Sheng who resolved the matter himself or through the foremen. The evidence clearly establishes that while working for Pearlman Lamela was no more than a secretary, an office clerical employee. When he left Respondent's employ he was not replaced and so there was a void in her duties. The duties she was assigned beginning Janu- ary 1986 until her discharge on May 3, 1986, only 4 months later were also clerical in nature. These duties in- cluded distributing health insurance forms to employees and assisting employees in filling in the blanks if request- ed. It would be expected that in the performance of such duties she would have access to the employees' person- nel files. That she had such access to personnel files standing alone is not sufficient to qualify Lamela as a confidential employee. Ohio State Legal Services Assn., 239 NLRB 594, 599-600 (1978); Greyhound Lines, 257 NLRB 477, 480 (1981). There is not a scintilla of evi- dence that Lamela possesses any of the criteria required by the Board to qualify an individual as a confidential employee. Greyhound Lines, supra at 480. Accordingly, I reject Respondent's contention that Lamela is a confiden- tial employee. It is undisputed that there was not a single employee who reported to Lamela or one over whom she had any authority. It appears Respondent's sole contention as to Lamela's supervisory status rests on Respondent's con- tention that Lamela has authority to hire employees. First, it strikes me as highly improbable that a nonde- script secretary performing the usual mundane secretarial duties as of January 1986 would suddenly be given au- thority to hire employees within the meaning of Section 2(11) of the Act. Moreover, the credible evidence estab- lishes that she did not hire employees on her own au- thority. She merely contacted applicants that Jane Hooker had determined should be hired and informed them, pursuant to Hooker's instructions, when they should report to work. That she placed her name on the employee's application indicating she had hired the em- ployee was merely a procedural and ministerial act. There is no evidence that Lamela used any discretion of independent judgment concerning the hiring of employ- ees. Artcraft Displays, 262 NLRB 1233, 1234 (1982). Ac- cordingly, I reject Respondent's contention that Lamela is a supervisor within the meaning of the Act. Respondent also contends that Lamela is a managerial employee. I see no evidence to support such contention. There is no evidence that Lamela has independent au- thority to order supplies or to commit Respondent to supply goods to customers. Washington Post Co., 254 NLRB 168, 182, 183 (1981). Accordingly, I reject Re- spondent's contention. 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent contends Lana Kennedy is a supervisor. I find Respondent's contention that an hourly paid em- ployee who receives $5 an hour and allegedly supervises six employees on an assembly line in the first shift is a supervisor but Rasario, the first-shift foreman who is sal- aried at $500 per week and supervises 57 employees, in- cluding Kennedy, is an employee to be inconsistent. In any event, the credible evidence establishes Kennedy's main duties were to prepare and pack samples and orders. Because she worked in the room where the as- , sembly line was located, Kennedy also assisted the as- sembly line employees by notifying them what items were being packed and providing them with materials. She also performed assembly line work when the work- load required it. The work assignments were given to the assembly employees by the shift foremen each day before Kennedy arrived. Although Kennedy spoke with Jane Hooker informally about assembly employees' perform- ance, that was not part of her duties and she made no recommendations in that regard. I fmd Respondent has failed to establish sufficient credible evidence that Ken- nedy possesses any supervisory indicia described in Sec- tion 2(11) of the Act. I conclude Kennedy is an employ- ee within the meaning of the Act. The Union's campaign began on April 28 when Lamela telephoned the union office and arranged to meet with union representatives on April 29. On April 29! Lamela, Lana Kennedy, and Donna Lennox met with two union representatives at a local restaurant. They dis- cussed the need for a union at Respondent, signed au- thorization cards designating the Union as their collec- tive-bargaining representative, and received blank au- thorization cards to distribute among the other employ- ees. These cards set forth the full name of the Union and, in pertinent part, read: I, the undersigned, hereby apply for admission to membership in the above Local Union and volun- tarily choose and designate it as my representative for purposes of collective bargaining, hereby revok- ing any contrary designation. That same day, Kennedy and Lamela distributed au- thorization cards to several first- and second-shift em- ployees at the plant. The following day, April 30, more cards were distributed by Lamela, Kennedy, and several other employees who had become active in the union campaign. These employees included Maureen Alday, Victor Febus, Luis Perez, Luis Valderrama, Maria De Carvahlo, Ana Santos, Carmen Silva, and Cecilia Nar- vaez. These employees worked on various shifts and in different plant areas. On April 30, after work, the Union held a meeting at a park located approximately two blocks from Respond- ent's plant. Approximately 20 employees attended this meeting. At the meeting Union Representative Joseph Szczesny among other things explained the purpose of the cards: to join the Union and the need to receive signed cards from a majority of the employees. Addition- al employees signed authorization cards at this meeting and turned them in to Szczesny. On May 1, the solicitation of authorization cards throughout the plant continued. That evening about 20 employees met at the Union's offices. Once again the purpose for the authorization cards was discussed. Addi- tional signed cards were obtained. At the conclusion of this meeting the Union had obtained 54 signed authoriza- tion cards. Two additional cards were obtained on May 5. Thereafter, undoubtedly as a result of Respondent's extensive unfair labor practices described below, the Union was unable to obtain any additional signed cards. The overwhelming credible evidence presented by a multitude of soliciting employees and card signers estab- lishes that virtually all Respondent's employees, and cer- tainly all the card signers, regardless of their native lan- guage, were made aware, one way or another, of the Union's attempt to organize the plant, and the purpose for which these authorization cards were being solicited, before they signed their authorization cards. Therefore, I find all the cards valid although Respondent was able to establish in some cases that the signers could not read their cards. World Generator Co., 242 NLRB 1295, 1309 fn. 2 (1979). The credible testimony of Maureen Alday, Alejandro Brito,4 Maria De Carvahlo, Victor Febus, Raul Gonza- lez, Tanisha Jesus, Lana Kennedy, Elena Lamela, Donna Lennox, Blanca Lopez, Maria M. Mejia, Luis Perez, Mirtha Perez, Rose Petway, Ana Santos, Luis Valder- rama, Nilda Vilca, and Regina Wierzgala established that they signed and dated their authorization cards and were aware, either by reading the card or being orally in- formed, that the purpose of the card was to join the Union so that it would represent them. I find these 18 cards to be valid authorization cards. Cumberland Shoe Corp., 144 NLRB 1268 (1963); NLRB v. Gissel Packaging Co., 395 U.S. 575, 609 (1969). Elena Lamela credibly testified that during the union campaign she spoke to many of the employees and told them the purpose of the cards was to bring in the Union. She further credibly testified she personally observed Li- liana Bustamante, Ana Maria De Luca, Edith Guerrero, Cecilia Narvaez, Grimaneza Sanchez, Elida San Martin, Jadvviga Maleszewska,5 and Anita Moncada sign their cards. These cards are unequivocal on their face, the sig- natures are clearly readable, and they are not challenged by Respondent as not being authentic. Under these cir- cumstances, I find these above eight cards to be valid au- thorization cards. Photo Drive Up, 267 NLRB 329, 363 (1983); Montgomery Ward & Co., 253 NLRB 196, 204 (1980); and J. P. Stevens & Co., 247 NLRB 420, 486, 487 (1980). Additionally, Lamela credibly testified she re- ceived signed cards from Charles A. Lutkus, Johnnie M. King, and Helen Ngo. These cards are unequivocal on their face, and the signatures are not challenged by Re- spondent. Under the rationale above, I fmd these three cards valid authorization cards. See Photo Drive Up, supra. 4 Brito's card is dated April 1. However, the credible testimony of Maria De Carvahlo who saw him sign establishes the correct date as May 1. 5 Kennedy credibly testified Maleszewska returned her signed card to her. HONEYCOMB PLASTICS CORP. 417 Luis Valderrama credibly testified that employees Nohimy Ayalo and Isilda Caetano signed their cards in his presence. These cards are unequivocal on their face, the signatures are not challenged by Respondent as not being authentic. Under these circumstances, I find these two cards to be valid cards. See Photo Drive Up, supra. Valderrama further credibly testifi,t that he received from Maria Soto, Luz Aurora Cubas, and Nieves Her- nandez \ their signed cards. These cards are unequivocal on their face, and the signatures are not challenged by Respondent. I find these three cards valid. See Photo Drive Up., supra. Lana Kennedy credibly testified that employees Maria Conceicao Miranda, Teresa Santos, Luz Gilman, and Mariana Lopez signed cards in her presence. The cards are unequivocal on their face and their signatures not challenged by Respondent. I find these four cards valid. See Photo Drive Up, supra. Maureen Alday credibly testified that Ewa Jez, Maria S. Cases, Richard Macanka, 6 and Bernard J. 0. Charles signed union cards in her presence. These cards are un- equivocal on their face and the signatures are not chal- lenged by Respondent. I find these four cards to be valid. See Photo Drive Up, supra, Alday also credibly testified that Maria I. Rodregues returned her signed card to her. This card is unequivocal on its face and the signature is not challenged by Re- spondent. I fmd this card to be valid. See Photo Drive Up, supra. Luis Perez credibly testified employees Guillermo Bel- lido and Aroldo Morales signed cards in his presence. These cards are unequivocal on their face and their sig- natures are not challenged by Respondent. I find these two cards valid. See Photo Drive Up, supra. Maria De Carvahlo credibly testified that employee Daniela Jaques signed her authorization card in her pres- ence. Regina Wierzgala and Ana Santos credibly testified that employees- Jadqiga Grodzka and Jose Penafiel, re- spectively, signed their authorization cards in their pres- ence. These cards are unequivocal on their face and their signatures are not challenged by Respondent. I find these three cards to be valid cards. See Photo Drive Up, supra. Rosa Basics testified she received a union card during one of the union meetings described above, understood the purpose of the card was to become a member of the Union, and authorized her sister Nohimy Ayalo to fill out and sign her card. She then observed Ayalo perform this function and give the card to Lamela. The Board has held one employee may authorize another employee to sign her name on an authorization card_ Limpert Bros., 276 NLRB 364 (1985). Accordingly, 1 find Bastos' card to be a valid card. Respondent produced seven employees, currently em- ployed by it, to testify as to improper solicitation con- cerning their authorization cards. In each case the card signer acknowledged his or her signature. The language of the cards was the same as all other authorization cards described above. 6 This testimony was corroborated by the credible testimony of Luis Perez. Aracelly Solano testified that she signed her union card based on the representation of Maria Soto and Ana Santos to her that the purpose of the card was to obtain new benefits from Respondents. Such testimony, howev- er was directly contradicted by her affidavit that stated: I signed a card for Local 867 Teamsters. I was given cards by Maria Soto and Ana Santos. They told me the cards were to try to bring in a union. They told me to sign it but not to say anything to Joe Torres because the company didn't want the union to come in. I signed it and returned it signed to Elena Lamela. Additionally, during cross-examination Solano was asked whether she discussed the Union's organization campaign with Supervisor Jose Torres, her boyfriend. She denied this. However, on being informed that Torres had just previously testified that such conversations did take place, she admitted such conversations. These material contradictions are sufficient in my mind to discredit Solano. Accordingly, I discredit Solano's testimony and con- clude her card is a valid card. Carmen Silva authenticated her card but testified that Lamela told her the card was for insurance. I find such testimony inconsistent with her actions. The evidence es- tablished that initially she was an active union supporter who assisted in soliciting cards, attended the union meet- ings where the purpose of the cards was emphasized in both English and Spanish, and posed for pictures with Lamela and other principal employee organizers. It is ob- vious that Silva was aware of the purpose of the card she signed. Although she was discriminatorily laid off on April 2, she was reinstated by Sheng on May 12 when she asked for her job and in return signed an affidavit for Respondent stating she was threatened with being re- ported to the Department of Immigration if she did not sign a card. On cross-examination she admitted such statement was not true. I conclude Silva was not a credi- ble witness. I also conclude she was fully aware of the purpose of her card before she signed it and that her card is valid. Jorge Valdes authenticated his card but denies he was aware of the purpose of the card when he signed. Lamela credibly testified that she told him the purpose of the card was to bring in the Union. Further, Valdes' testimony is inconsistent with his affi- davit and consistent with Lamela's testimony. Moreover, he assisted in the solicitation of cards from other employ- ees. Accordingly, I discredit Valdes' testimony as to his not being aware of the purpose of the card and find his card to be a valid card. Ana Cecelia Garcia authenticated her card and then incredibly testified at the time she signed a union card she was told she was required to sign such card because the Union was already the bargaining agent of Respond- ent. On crost-examination, however Garcia admitted she was well aware of the union organizing drive and admit- ted she was told by the solicitor of the card that as a result of the signing she might receive better benefits and wages. In view of these admissions and my conclusion 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that an employees were aware of the purpose of the cards, I find this a valid card. Moreover, Garcia attended a union meeting that same day, April 30, after work when the purpose of the union cards was again dis- cussed. She thereafter signed another card at this meet- ing written in Spanish, her native language, and handed it in to the Union. 7 Garcia identified this card and au- thenticated her signature. I fmd this to be a valid card. Moreover, it reinforces my conclusion as to the validity of the first card. Alberto Cerrato authenticated his union card signed on May 1. He incredibly testified he was given the card by Luis Valderrama, who told him the card was for the Union, but that the Union was already in the shop. On cross-examination, Cerato admitted he was familiar with union and nonunion shops through his prior working ex- perience. Moreover, he admitted Valderrama also told him if he signed the card he might get better benefits. Further, Valderrama credibly testified it was Cerrato who approached him and asked him for a card. In view of Cerrato's familiarity with unions, Valderrama's state- ments about better benefits, and my conclusion that all employees were aware of the purpose of the cards, I find his card a valid card. Cesar Veliz authenticated his card signed on May 1. The card was written in Spanish, Veliz' native language. He incredibly testified he signed because the solicitor whom he could not identify told him he would be fired if he did not sign. On cross-examination, however he ad- mitted that at the time of the solicitation, the solicitor told him that if the Union came in he might get better benefits and that his job was secure and he would not be fired. In view of the above contradictory statement, and my conclusion that all employees were aware of the pur- pose of the cards, I discredit his direct testimony con- cerning the alleged threat and find that his card is valid. Maria Rodrigues authenticated her card signed on May 1. She then incredibly testified on direct examina- tion that the solicitor, whose name she could not recall told her she would be fired if she did not sign. She then somewhat contradicted herself on direct when she testi- fied that she was just told to sign the card because it would be good for her. On cross-examination Rodrigues admitted she was aware of the Union's organization and that the Union was soliciting signed cards in order to "represent the employees." She also admitted that the so- licitor discussed the possibility of better benefits if she signed. The credible testimony of the General Counsel's witnesses established that Rodrigues attended two union meetings including the May 1 meeting where employees were informed in English and Spanish that they could not be fired for engaging in organizing activities. It was after this meeting that Rodrigues signed her card. On the basis of her contradictions in her direct testimony, her admissions on cross-examination, and the credible testi- mony of the General Counsel's witnesses, I discredit her testimony that she was threatened with discharge if she did not sign a union card. I find her card to be valid. 7 This card was marked as G.C. Ex.h. 2 but was inadvertently not of- fered into evidence. Employee Rose Petway credibly testified that on May 3 she was present at a McDonald's restaurant and ob- served employees Cynthia and Helen Spann, sisters, read, fill out, and sign union authorization cards. The Spann sisters did not submit these cards to the Union.8 Respondent contends that the missing cards of Cynthia and Helen Spann should not be counted towards the Union's majority. The General Counsel contends that their cards are valid designations of the Union as their representative. I conclude Petway's testimony that the Spanns signed cards in her presence is sufficient to estab- lish that they designated the Union as their bargaining representative. Justak Bros. & Co., 253 NLRB 1054, 1081 (Byrum and Ignaszewski). The fact that the Spann sisters failed to deliver their cards to the Union does not invalidate their cards. The Board has held that delivery of cards to the union is not a requirement for its validation. The signing of the card alone is sufficient to show a valid designation at the time of signing. Retail Clerks, 153 NLRB 204, 226-227 (1965), enfd. 366 F.2d 642 (D.C. Cir. 1966); Capital-Varsity Cleaning Co., 163 NLRB 1057, 1060 fn. 4 (1967); Interna- tional Metal Specialties, 172 NLRB 1338, 1339 fn. 7 (1968). The Board presumes that the card signer intends to communicate her designation to the organization des- ignated, absent affirmative evidence of contrary contem- poraneous conduct. Retail Clerks, supra at 226. The record is devoid of any evidence showing any contemporaneous conduct by the Spann sisters that would nullify their designations. Thus, I fmd the Spanns' cards valid cards. Accordingly, I conclude that, on May 5, the Union had obtained 58 valid union cards. On April 30, Respondent was admittedly aware of the Union's organizing campaign and of the fact that there was a scheduled union meeting that night after work. This information was conveyed to Jane Hooker and Joe Torres by employees. At this time Tony Sheng was out of the country on business and Hooker was in overall charge of the shop with Torres next in command. On the evening of April 30 Jane Hooker visited the home of Linda McCourt, Lana Kennedy's daughter, and a longtime social friend of Hooker's. McCourt is not em- ployed by Respondent. During their visit Hooker told McCourt that the employees were trying to bring in a union and she hoped her mother (Lana Kennedy) was not one of them because she could get fired. Later that evening McCourt told Kennedy about Hooker's state- ment.9 8 Petway testified she was told by the Spanns on May 5 that they were not going to turn in their cards because they needed their jobs. This is hearsay testimony and I have not considered it in making a determination as to the validity of the cards. Assuming the truth of such testimony, however such statements were undoubtedly the result of Respondent's unfair labor practices, including the discriminatory layoff of over 20 em- ployees. 9 I credit McCourt's testimony I was impressed with her overall de- meanor and her ability to recall details. Moreover, her testimony has a ring of truth to it. For the reasons discussed above, I was not impressed with Hookers credibility HONEYCOMB PLASTICS CORP. 419 I find Torres' statement to De Caravahlo that she knew what was going on to be an implication that he was aware of her and other employees' union activity and he was letting her know he knew about such activi- ties. I fmd such statement creates the impression of sur- veillance in violation of Section 8(a)(1). Eagle Headers, 273 NLRB 1486 (1985). I also find his statement to De Caravahlo and Santos that Sheng was aware of what was going on and that everybody was going to pay to constitute the impression of unlawful surveillance and a threat of unspecified reprisals. Eagle Headers supra; Frito- Lay, 232 NLRB 753 (1977), enfd. 585 F.2d 62 (3d Cir. 1978). Raul Gonzalez credibly testified that on May 1, about 11:30 a.m., Torres told him that employees were solicit- ing other employees to sign union cards. He told Gonza- lez not to sign or he might get fred. 11 I find this to be a clear threat of discharge in violation of Section 8(a)(1). On May 1, at noon, Hooker had a conversation with Lana Kennedy and told her that Respondent had intend- ed to train her for a higher paying position, but because she had signed a union card she would not receive the position. I find this to be an obvious threat to deny a promotion in violation of Section 8(a)(1).12 Sertafilm, Inc., 267 NLRB 682, 687 (1983). On April 1, about 4 p.m., Supervisor Eugene Rosario told De Caravahlo that the employees had really made a mess of things and added, "wait until Tony [Sheng] comes back." Given the nature of the day's events, I fmd Rasario was impliedly referring to the Union when he referred to a "mess of things" and that his statement about waiting until Sheng came back was an implied threat of unspecified reprisal in violation of Section 8(a)(1). 12 Midland-Ross Coq., 239 NLRB 323 (1978), enfd. 617 F.2d 977 (3d Cir. 1980). On May 1, Torres observed Raul Gonzalez talking to two second-shift operation employees in the plant lunch- room. Sometime later Torres came over to Gonzalez and told him he did not want to see him talking to the opera- tors or he would fire them. Respondent has a rule pro- hibiting talking with operators at their machines. There is no rule against talking to any employee in the lunch- room." Because Respondent's rule against talking was limited to the machine area, and because the conversa- tion took place in the lunchroom, an area not covered by the rule, and in light of the extensive 8(a)(1) and (3) con- duct described above and below, I conclude Torres' statement was an unlawful threat to discharge employees in violation of Section 8(a)(1). Laredo Coca Cola Bottling Co., 241 NLRB 167 (1979), enfd. 613 F.2d 1338 (5th Cir. 1980), cert. denied 449 U.S. 889 (1980). Tony Sheng was originally scheduled to return from Taiwan on May 5. However following his May 1 con- "For the reasons set forth above, I do not credit Torres' denial. 12 Hooker denied this conversation. For the reasons set forth above, I do not credit Hooker. Moreover, Hooker testified she spoke with Kennes- dy in connection with offering assistance to Kennedy's daughter McCourt. This is not credible because she spoke to McCourt the night before and could have offered such assistance directly. 12 I do not credit Rosario's denial. 14 Torres' testimony in connection with this incident is discredited I conclude Hooker's statement to McCourt was in- tended to be conveyed to Kennedy and constitues a threat to discharge employees in violation of Section 8(a)(1). A & R Transport, 237 NLRB 1084, 1088 (1978). On the morning of May 1 Hooker told Charles James, an admitted supervisor, that she was going to send some employees home that day because there were insufficient supplies for production. Hooker later told Lamela about this proposed layoff. Lamela immediately called the Union. The Union's attorney contacted Hooker and pro- tested the proposed layoff. Hooker thereafter instructed James to distribute appropriate supplies and no one was laid off. I conclude the proposed layoff was discrimina- torily motivated. I make this conclusion on the basis of Hooker's threat to McCourt, described above, and the subsequent massive 8(a)(1) and (3) violations described below. I conclude she withdrew the layoff on being con- fronted by the Union attorney's call, coupled with the absence of Sheng. She was reluctant to follow through and thus did not consummate the layoff. However, I find her communication of the proposed layoff of employees to constitute an unlawful threat in violation of Section 8(a)(1). Gayston Corp., 265 NLRB 1, 12 (1982). Sometime during the morning of May 1 Jane Hooker spoke with Sheng in Taiwan and told him about the Union's organization. On the morning of May 1, Charlie James, Respond- ent's supervisor, and employee Victor Febus heard Plant Manager Joe Torres tell employee Aracelly Solano words to the effect that "you have to tell me" and ob- served Solano in tears. Solano is Torres' girlfriend. Em- ployee Raul Gonzalez testified that later in the day Solano told him Torres was questioning her as to the identity of the main employee organizers. During the course of the day, Solano allegedly told other employees that Torres was questioning her about the identity of the employee organizers. Solana and Torres denied such in- terrogation. The General Counsel contends that the alleged unlaw- ful interrogation can be proven by the hearsay testimony of employees because Solano's statements to the General Counsel's witnesses were spontaneous utterances made under stress and part of the res gestae and admissible under Federal Rules of Evidence 803(2). I conclude So- lano's statements to employees were not made contempo- raneous with the event and such hearsay statements are not properly part of the res gestae. They are in my opin- ion too inherently unreliable to predicate the finding of an unfair labor practice notwithstanding the corrobora- tive testimony of the employees and my unfavorable im- pression concerning the credibility of Torres and Solano. During the morning of May 1, Torres spoke with em- ployee Maria De Caravahlo and Teresa Santos. De Cara- vahlo credibly testified she asked Torres what was going on and Torres replied she knew what was going on. Sheng was also aware of what was going on and every- body was going to pay." 10 Torres denied De Caravahlo's statements In view of my unfavor- able impression of Ins credibility, I do not credit such denial 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD versation with Jane Hooker concerning the Union's or- ganization, he rushed home on the evening of May 2. When Sheng came to the plant he questioned Torres about the union organization and Torres told him the or- ganization was widespread, that about 99 percent of the first shift, which was the largest shift," was in favor of the Union, that Lamela was the chief employee organiz- er, and that Raul Gonzalez, Maria Soto, Ana Santos, and Victor Febus were soliciting cards. It is clear that on the evening of May 2 Sheng was aware of the extent of the Union's organization and knew the identity of the lead- ing employee supporters. During the trial Sheng admitted he was unalterably opposed to a labor organization in his shop and that he would rather close his plant than to recognize and bar- gain with the Union. Such admission was consistent with an affidavit he gave in connection with the investigation of this case. I find such admission to constitute evidence of union animus of such intensity that it would support a conclusion that Respondent was willing to commit what- ever unfair labor practices were necessary to keep the Union out. Moreover, I further conclude such intense admitted animus reflects adversely on Sheng's credibility. On May 3, at 8 a.m., Sheng met with the third-shift employees as they were concluding their shift. The cred- ible testimony of the General Counsel's witnesses estab- lishes that Sheng told the employees he would rather die than deal with the Union." I conclude such statement to be a threat to close the shop rather than bargain with the Union in violation of Section 8(aX1). South Nassau Com- munities Hospital, 262 NLRB 1166, 1175 (1982). Sheng also told the third-shift employees at this meet- ing that they should not sign union cards, and that if the Union solicited then they should report it to him." In view of Respondent's numerous and serious unfair labor practices, I find such conduct interferes with the employ- ees right to organize in violation of Section 8(aX1). Union Carbide Corp., 259 NLRB 974, 978 (1982); J. H.. Block & Co., 247 NLRB 262 (1980). On May 3, about 8:30 a.m., Sheng called a meeting of the warehouse employees on the first shift. Sheng told the employees he knew everything about the Union and which employees were involved. I find such conduct constitutes conveying the impression of unlawful surveil- lance. Sierra Hospital Foundation, 274 NLRB 427, 442, 443 (1985). He also told the employees he would rather die than let a union come in. He said be would close the shop before he would deal with a union." Such state- ments constitute a clear threat to close the shop in viola- tion of Section 8(a)(1). He then asked Jorge Valdes and Luis Perez, employees present at the meeting why they had turned against him and told them one of the office employees, an obvious reference to Lamela, had started the union organization. Such statements that were accu- rate, and were obviously intended to coerce employees 15 The first shift had about 58 employees while the second and third employed about 25 employees each. 16 Sheng denied this statement. I have discredited Sheng. Moreover, such denial is totally inconsistent with his admission of union animus. 17 To the extent Sheng denies such testimony he is not credited. 18 Such statements are consistent with Shengs' admitted knowledge and animus. and to create the impression that their activities were under surveillance. I fmd such conduct violative of Sec- tion 8(a)(1). Sierra Hospital Foundation, supra; Arrow Au- tomative Industries, 256 NLRB 1027, 1029 (1981). Sheng also told the assembled employees that he was not going to give them raises that he had promised before the union campaign." In view of Sheng's threats to close the shop, his creating the impression of surveillance at this meeting, and the other unfair labor practices de- scribed above committed by Sheng and his agents, I find the retraction of a promised wage increase to be an un- lawful threat, violative of Section 8(a)(1). On May 2 Torres asked employee Raul Gonzalez to perform a job for him Gonzalez was a warehouse em- ployee under the supervision of Charlie James. It appears there was a running dispute between James and Torres whether Tones had authority over the shipping and warehouse employees. According to the testimony of James, he had exclusive authority over the shipping and warehouse employees. When Torres asked Gonzalez to perform some work for him, Gonzalez replied that he would have to clear it with James. Gonzalez went on his way and Torres said nothing. A few minutes later Torres asked Luis Perez, another warehouseman, to do the same work for him and got the same reply. According to Tones he did not ask warehouse employee Victor Febus to do this work. Indeed Torres was unable to recall if Febus was in the plant. Shortly afterward Torres confronted James and an ar- gument ensued about the supervisory jurisdiction of the warehousemen. At one point in the argument, James threatened to punch Torres.2° On the morning of May 3, during Sheng's meeting with the warehousemen, described above, Torres en- tered. At this time Sheng began a discussion of the May 2 incident between Torres and James. Perez was present, but Gonzalez and Febus were absent that day. Sheng told James that Torres was in overall charge of the plant and he could not question his authority. There was no discussion concerning Perez' or Gonzalez' deferral of au- thority to James. On May 2 Sheng had contacted his bookkeeper and asked him to come to work on May 3, a Saturday when the bookkeeper did not ordinarily work. On the morning of May 3, Sheng gave the bookkeeper a list of 17 em- ployees including Gonzalez, Perez, and Febus and asked him to prepare a special payroll run because he was laying off these employees. Sheng contends he fired James, Perez, Gonzalez, and Febus for insubordination to Torres. On May 3 at noon Sheng called James and Perez into his office. According to the credible testimony of James and Perez told them he had to lay them off because busi- ness was slow. On May 5, Monday, he told Gonzalez and Febus the same thing and gave them an economic layoff notice. As set forth above, I do not fmd Sheng to be a credi- ble witness. His testimony concerning the termination of 19 To the extent Sheng denied such statements, I discredit him for the reasons set forth above. 20 In other prior arguments, James had made similar threats. HONEYCOMB PLASTICS CORP. 421 Gonzalez, Febus, and Perez further supports my conclu- sion. Initially Sheng testified that he fired Gonzalez, `Febus, and Perez because they threatened to punch Torres. There is no evidence to support this allegation. Thereafter Sheng testified he fired the three employees because they refused to follow Torres' orders. In this connection Torres himself admitted Febus was not in- volved in the incident. In fact, Torres could not remem- ber whether Febus was even in the plant that day. Based on the generally credible testimony of Febus, Gonzalez, and Perez," I conclude Gonzalez, Perez, and Febus were not told by Sheng that they were fired for insubor- dination but rather received the same economic layoff notice as the other employees.22 I now turn to the issue whether Charlie James was dis- criminatorily terminated. The General Counsel contends that James was unlawfully terminated because he was at- tempting to stop Torres from unlawfully interrogating Solano. There was no evidence that James was aware that Torres was engaged in any unlawful interrogation when he was arguing with Solano, which argument led her to cry. In fact I found insufficient evidence that Torres unlawfully interrogated Solano. There is no evi- dence that James was engaged in any activity in connec- tion with the Union one way or the other. The Board held in Parker-Robb Chevrolet, 262 NLRB 402 (1982), that the discharge of a supervisor violated Section 8(a)(1) of the Act only in circumstances where the discharge interferes with the exercise of the employ- ees' Section 7 rights, such as discharges for refusing to commit unfair labor practices or failing to prevent union- ization. Belcher Towing Co., 238 NLRB 446 (1978), enfd. 614 F.2d 88 (5th Cir. 1980). Although there may be some inconsistency in Sheng's testimony whether James was being laid off or fired for threatening to punch Torres. I conclude in James' case it was Sheng's intention to ter- minate James for such threat and if he told him it was a layoff rather than a discharge it was to soothe his feel- ings and avoid an argument. In any case there is insuffi- cient evidence to establish such termination was discrimi- natory. On May 1 Respondent sent home four employees from the second shift and several third-shift employees after they had worked a half shift. The reason for this was that as a result of certain construction work in the plant, part of the assembly area was in disarray. On May 2, all the night-shift employees sent home early resumed their full shift. However, of the four second-shift employees sent home, only Nilda Vilca, who had not signed a union card was recalled. The other three employees, Carmen Silva, Cecilia Narvaez, and Edith Guerrero, who had signed union cards were not recalled. Vilca subsequently signed a union card after the May 5 layoffs described below and she was thereafter laid off. On the other hand, Silva was reinstated on May 12 when she went to the plant, pleaded with Sheng to take her back, and told Sheng she only signed a union 21 I have considered several minor contradictions in their testimony and conclude their credibility is not adversely affected. 22 I have concluded, as will be discussed below, that all Respondents' alleged economic layoffs were discrimmatonly motivated card because she was told it was for insurance. 23 More- over, she thereafter signed an affidavit for Respondent alleging she had been threatened with being reported to the Department of Immigration unless she signed a union card, although she admitted on trial she had never been so threatened. On May 3, a Saturday, Sheng laid off 17 employees. Some were scheduled for layoff on May 3, the others were scheduled for layoff on May 5. As set forth above, Sheng called in his bookkeeper to prepare a special pay- roll run for these laid-off employees.24 The employees laid off were primarily those employed on the first shift that was heavily prounion and included Lamela, Lana Kennedy, Donna Lennox, Maureen Alday, and Luis Valderrama, the most active union supporters. As set forth above, Sheng had been advised of the prounion support in the first shift and the names of the active union supporters by Torres on May 2. Additional- ly, the layoffs on May 2, 3, and 5 took place during the middle of the pay period and on a day other than Re- spondent's usual payday. Thereafter, Respondent laid off two additional employees, Nohimy Ayalo on May 9 and Nilda Vilca, who had signed a union card on May 5, on May 12. Many of the employees laid off were admittedly among the most senior employees. This was contrary to Respondent's usual policy where layoffs were generally made according to seniority. Significantly, aside from the usual early winter seasonal layoff, this general layoff rep- resented the first time Respondent laid off employees since 1981, which layoff interestingly followed the filing Of a petition for election by another labor organization. Moreover, 18 of the 22 employees laid off worked the first shift where the Union had by far its heaviest sup- port. Of the utmost significance, as will be discussed in detail below, is the fact that every single employee laid off or terminated signed a union card. Sheng contends that the layoff was necessary for eco- nomic reasons. He specifically contended that in March 1987 he was informed by his bank that he had reached his credit limit of $750,000 and would be unable to borrow more funds. In addition, he contends that when he came back from Taiwan on May 2 he received a letter from one of his larger accounts canceling over $500,000 in expected orders. As a result of these two oc- currences, he determined an immediate layoff was neces- sary. Sheng contended he began a reduction in his staff by terminating Raul Gonzalez, Luis Perez, and Febus for in- subordination in connection with the above-described in- cident between Torres and James. I have concluded that they were not terminated for insubordination, but rather were informed they were laid off for economic reasons in the same manner as the other laid-off employees. 23 I have concluded, above, that this was an obvious untruth in view of Silva's extensive organizing activities and her close relation with the Union. 24 Sheng testified he called the bookkeeper m for other business-relat- ed reasons and because he was present anyway he prepared the special payroll I do not credit this testimony. 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sheng contended the other employees laid off were se- lected based on a combination of factors that included seniority, work attitude, performance, and specific need for the job performed by the employee. Sheng testified that Elena Lamala was the only Hon- eyware employee. She had been employed as the secre- tary to Sales Manager David Pearlman, who left Re- spondent's employ in December 1985. After Pearlman left there was very little for Lamela to do, but Sheng kept her because he did not want to let her go right before Christmas. Sheng testified that he had been as-. signing Lamela miscellaneous duties since Pearlman's de-, parture to keep her busy but on May 2 decided to elimi- nate her position. However, Sheng also inconsistently testified that Lamela was a very important employee to him, "his girl Friday." In fact he testified that following Pearlman's departure he expanded her duties so that she was a confidential employee and supervisor. Lamela cre- dibly testified that Sheng had told her during the spring of 1986 that the company was very busy. Moreover, sub- sequent to Lamela's termination Respondent advertised for a replacement for her. Donna Lennox was Respondent's receptionist. She also was the only employee who typed invoices. Accord- ing to Sheng, she was terminated because approximately 1 month earlier she had pressured him into giving her a wage increase by telling him she had another job and 1 threatening to leave unless she received a raise. Lennox credibly testified that when she notified Sheng of her new job he offered to give her a wage increase to match the other employer's offer. For that reason she decided to stay. The records show that, pursuant to this agree- ment, Lennox received a wage increase in March 1986. A second increase effective May 1 was authorized by Sheng just prior to his departure for Taiwan on April 25. A replacement was hired for Lennox on May 19. Lennox was not recalled. Maureen Alday was the production control clerk. Her main functions were to record production and to keep track of inventory. Sheng testified that he eliminated her position because there was not enough work available for her. In Sheng's affidavit, however he stated that the reason for her termination was poor performance and bad attendance. The record evidence established that Alday was in fact replaced by another employee on May 12. Alday was not recalled. Sheng testified that Lana Kennedy was terminated be- cause there was very little work for her. Sheng testified that on Friday, May 2, Kennedy spent the day cleaning the conference room because there was no work for her. The credible evidence established that Kennedy had no work on Friday, May 2, as a result of the construction going on in the assembly area that day that made it im- possible to work there. In fact, in his affidavit, Sheng ad- mitted that the construction was the reason for the lack of work for Kennedy. This construction lasted only a few days. Sheng admitted that Kennedy's functions are now performed by a new employee hired on May 19. Kennedy was not recalled. Charlie Lutkus was employed by Respondent as a truckdriver. He was hired by Respondent approximately in April 1986 and at the time of his termination was earn- ing $6.25 per hour. Sheng testified he was terminated be- cause there were not enough driving duties to keep him occupied and he did not perform any other work. His duties were taken over by the maintenance employee, Larry Vanderlick. Respondent's records establish, how- ever, that Vanderlick was hired as a driver on May 12 at a salary of $450 per week. Lutkus was not recalled. Maria De Carvahlo was a machine operator who also worked on the assembly line. She was one of Respond- ent's most senior employees, having begun her employ- ment in 1981. Torres testified he chose her for layoff be- cause of her attitude. Torres admitted, however that from the day she began working for Respondent she had been a complainer about her job assignments. Ana Santos worked for Respondent for approximately 3 years. Torres testified that Santos was chosen for layoff because of her poor attendance. He admitted, however, that Santos had this problem since she was hired. At one point Santos quit and was rehired by Torres about May 1985 despite her alleged poor attend- ance record. Torres admits that after her return her at- tendance continued to be poor, possibly worse than before. Torres testified Maria Soto was chosen for layoff be- cause she spent too much time talking, took extended breaks, and was frequently found away from her work station. Torres admitted, however that this had always been a problem with Soto. Soto was one of the most senior employees. She began her employment with Re- spondent on October 3, 1977. Although Respondent contends that the May layoffs were necessary for economic reasons, the evidence estab- lishes that for at least 6 months prior to April 28, Re- spondent had been operating on a three-shift, 6- to 7-day- a-week schedule. Moreover, during the month of April Respondent acquired additional work from an existing customer as a result of the closing of one of Respond- ent's competitors. In addition, during this period Re- spondent's warehouse was not large enough to accom- modate the added materials needed and Respondent was forced to rent trailers to store such materials. Further, during the month of April, Respondent purchased sever- al new pieces of equipment, including an $18,000 forklift and several mixing machines to handle the added work, and on May 1 knocked down a wall to make room for an additional assembly line. Moreover, various witnesses credibly testified that the plant was extremely busy during the months of April and May. Respondent's records establish that in April 1986, he hired 28 new employees. Respondent's records further establish that from May 4 to 30, he hired 22 new em- ployees without recalling any of the laid-off employees except for Silva, under the circumstances described above. The General Counsel contends that Respondent's deci- sion to lay off 22 employees was discriminatorily moti- vated. The General Counsel has the burden of proving that the employees' union activities were a motivating factor in such alleged discrimination. Once such motivat- ing factor is established, the burden of proof shifts to Re- spondent to establish the same action would have taken HONEYCOMB PLASTICS CORP. 423 place in the absence of the employees' union activities. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1080 (1983), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). This rationale is like balancing weights on a scale. The greater the weight of evidence in the General Counsel's prima facie case, the greater the weight of evidence Re- spondent in his defense must place on the scale to shift the balance. In the instant case, the General Counsel has presented an awesome mountain of evidence to support its contention that Respondent's layoff was discriminator- ily motivated. Respondent's knowledge of the employees' union ac- tivities prior to the May 3-5 layoffs is admitted. Thus, on May 1 Hooker informed Sheng about the Union's organi- zation, and on the evening of May 2 Torres informed Sheng that such activity primarily involved the first-shift employees. Torres also informed Sheng about the identi- ty of the principal union organizers. Respondent's animus is also admitted. Sheng stated in both his investigatory affidavit and in court that he would close his shop before he would bargain with the Union. Such intensive animus tends to establish an incli- nation to discharge employees. If an employer would rather close his shop than bargain with the Union, clear- ly, he would rather discharge some employees rather than take the ultimate step of closing his whole shop. That Respondent was willing to discharge employees to crush union activity is further evidenced by Hooker's threats on April 30 and May 1 to discharge employees, Torres' threat on May 1 to discharge employees, and Sheng's numerous threats to employees individually and during shift meetings on May 2 and at various times thereafter to close the shop rather than bargain with the Union. It is further evidenced by the other extensive unfair labor practices committed by Sheng and other 25 The following represents the standard calculation in determining the probability of randomly choosing 20 union card signers from a shop of 50 P 20 Probability = 100 P 20 50 P 20= the number of permutations of 50 things taken 20 at a time. 100 P 20= the number of permutations of 100 things taken 20 at a time. 50! agents of Respondent both prior to and subsequent to May 3, which include unlawful threats to revoke wage increases, promotion, and unspecified reprisals, unlawful surveillance, circulating of a petition to revoke signed union cards, and the granting of various benefits to induce employees to abandon their union activities. The timing of the layoff is extremely strong evidence of Respondent's discriminatory motivation. Sheng was in Taiwan on May 1 when he was first notified of the Union's activities by Hooker. He aborted his trip and was back in his shop by the evening of May 2 when he learned the full extent of the Union's organization, and the identity of the main employee organizers. By the next morning, May 3, Saturday, he had prepared a list of union card signers to be laid off. Such layoff was sched- uled to take place that day and on May 5, in the middle of Respondent's pay period and on a day other than Re- spondent's usual payday. Moreover, Respondent specifi- cally called in his bookkeeper on May 3 to prepare pay- checks for the employees to be laid off, although his bookkeeper does not ordinarily work on Saturdays. In my opinion, the most astounding and significant evi- dence of Respondent's discriminatory motivation is the fact that every single employee laid off signed a union card, all 22 employees and, further, such layoff was pri- marily centered on the first shift, where the Union had its strongest support and included all the Union's main employee organizers. Given Respondent's total unit employee complement was 108 employees, of which 56 signed union cards, the approximate mathematical probability of randomly se- lecting 22 card signers is about 184,000 to 1. Such proba- bility undoubtedly increases even more astronomically when one considers the additional factor that all the Union's principal organizers were included in the layoff. 25 100 employees of which 50 employees had signed union cards Mathemat- ics, a Topical Approach Course by Douglas Bumby and Richard Klutch, pp. 310-350; Charles E. Messell Publishing Co. 50! 30! 100! 80! 50 x49 x x31 30 x29 x 28 — x 1 100 X 99 X 98 — X 81 (50-20)4 The notation 50! is 50 factorial which 100! is 50X49 — X1 (100-20)! 80x 79 x 78 — x 1 Probability = 184,000 = approx. 1 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's reasons for selecting the employees to be laid off are just totally unbelievable and further establish that the layoffs were discriminatorily motivated. For example Sheng contends he laid off Lamela be- cause following the departure of Sales Manager Pearl- man, her job functions so diminished that she became ex- pendable. Yet, following Pearlman's departure, he con- tends he expanded her job as to make her a supervisor and confidential employee. Additionally, following her layoff he placed an ad in a local newspaper for a replace- ment. Another incredible example is Donna Lennox, Sheng contends he laid her off because he was angry that she pressured him into giving her a raise in March 1986. Yet notwithstanding such anger, he authorized second raise for her on April 25, to be effective on May 1, 2 days before her layoff. Moreover, shortly after her layoff, he hired a replacement. Another incredible exam- ple is that of Maria De Carvahlo, one of Respondent's most senior employees. Torres' incredibly testified she was selected for layoff because of her poor work atti- tude. However, he also admitted She had such attitude throughout her employment. Respondent's reasons for the selecting of Ana Santos and Mario Soto were similar to its reasons for selecting De Carvahlo and are similarly incredible. Thus, Santos was allegedly selected because of poor attendance. Yet she was employed by Respond- ent for 3 years and had consistently been poor in her at- tendance. Soto, another senior employee, was allegedly selected because she spent too much time talking and taking breaks. Yet she had admittedly displayed such conduct throughout her employment. Moreover, the layoffs were not in order of seniority that was contrary to Respondent's usual practice. Fur- ther, aside from the usual seasonal winter layoff, this layoff represented the only nonseasonal layoff since 1981. In my opinion the General Counsel has presented an awesome astronomical mountain of evidence tending to establish Respondent's discriminatory motivation. I now examine Respondent's defense. Respondent contends the layoff was economically mo- tivated. Respondent specifically contends the layoff was necessitated because he had reached his credit limit of $750,000 from the Howard Savings Bank. Sheng, howev- er, was first notified of this by the bank in March 1986, more than 1 month before the May layoff. Respondent also contends that the layoff was necessitated by a May 2 letter from Durham Industries, one of Respondent's major customers canceling $500,000 worth of business. Sheng contends it was the receipt of this letter on May 2 that precipitated the layoff on May 3. Credible evidence established, however that notwith- standing that Respondent had reached his credit limit in March, Respondent was still maintaining in April a full three-shift, 6- to 7-day operation. Moreover, during this period Respondent acquired additional work when one of its competitors closed. Further during this period, Re- spondent hired substantial additional personnel, made substantial purchases of equipment costing over $18,000, and rented trailers- to store additional materials that were necessitated to fill the additional orders. This is corrobo- rated by the credible testimony of various employees who testified that Respondent was busy during the April-May period. The validity of Respondent's econom- ic defense is further diminished by Respondent's payroll records that establish that between May 4 and 30 Re- spondent hired 22 new employees. When I place Respondent's ec,onomic defense coupled with the facts that it was operating these shifts just prior to the layoffs, and that it recently purchased new and ex- pensive equipment, recently acquired the customers of a competitor, hired new employees in April, and hired 22 new employees in May after the layoffs without offering recall to the 22 employees laid off,26 on the scale, along- side the General Counsel's mountain of evidence, not even a tremor is raised. The balance is not shifted. I con- clude that Respondent has utterly failed to meet its burden under the Transportation Management and Wright Line considerations. Accordingly, I conclude that the layoffs on May 3, 5, 9, and 12 were discriminatory. I fmd such actions viola- tive of Section 8(a)(1) and (3). Moreover, assuming ar- guendo that one were to conclude that the layoffs were economically motivated, in view of Respondent's knowl- edge of the union activists, his extreme animus, and the astronomical improbability that such layoffs should com- prise only union card signers and include all the most active union supporters, I would conclude that the em- ployees laid off were discriminatorily selected. As I view 26 The General Counsel does not contend that the layoff of Carmen Silva, Edith Guerrero, and Cecilia Narvaez on May 2 was discriminators- ly motivated. The layoffs of these employees were necessitated as the result of certain construction alterations taking place at this time. Howev- er, all three were union card signers, and it is alleged and the evidence supports that they were not recalled because of their union activities except for Silva who, as discussed above, came to Sheng, begged him for reinstatement, and agreed to renounce the Union and support Respond- ent. HONEYCOMB PLASTICS CORP. 425 the evidence in this case, it is hard to imagine a more overwhelming case in support of an 8(a)(1) and (3) viola- tion. The employees laid off by Respondent on May 3 and 5 were not notified of their layoff by Respondent until they reported for work on Monday, May 5. On May 5, at 7:30 a.m., before work, many of the active first-shift employees, including Lamela, Kennedy, Donna Lennox, Maureen Alday, were outside the plant distributing union literature to the first-shift employees as they were reporting to work. The first shift begins at 8 a.m. As the distribution continued Sheng came outside and began photographing the employees. Sheng contends he photographed the employees because they were blocking his driveway. He did not produce the photo- graphs to establish this, however and in view of my credibility resolution I discredit Sheng and conclude the photographing of employees distributing union literature was done to inhibit the employees' union activities and constituted unlawful surveillance in violation of Section 8(a)(1). Crown Cork & Seal Co.,, 254 NLRB 1340 (1981). As the employees entered the plant carrying union lit- erature, they were told by Sheng, Hooker, Torres, Ro- sario, and Frias that they would have to discard the liter- ature before entering the plant." I conclude Respond- ent's actions interfered with employees' rights to receive union literature and was violative of Section 8(a)(1). Gainesville Mfg. Co., 271 NLRB 1186, 1188 (1984), and Cases cited therein. On May 5 at 8 a.m., as the employees entered the plant to begin the first shift, they were given a written notice announcing layoffs. On May 5 when Lamela, Kennedy, and Lennox came into the plant, Sheng told them "now its my time." He told them the Union was Mafia, he told them other at- tempts to organize had failed and that he would rather die before he would let a union in He said he would never sign a contract with the Union. For the reasons described above, I find these statements to be unlawful threats in violation of Section 8(a)(1). Sheng then ac- cused Lamela of being the "mastermind" of the whole organization, and expressed disbelief that these employ- ees could turn on him I find these statements logically create the impression in the minds of these employees that their union activities were under surveillance and, for the reasons described above, I find these statements violative of Section 8(a)(1). 28 On May 5, at 12 noon, and at 3:30 and 4 p.m., the laid- off employees had a union meeting at a park about 1-1/2 blocks from Respondent's plant, Sheng, Torres, and Ro- sario, Respondent supervisors, were observed by em- plyees attending the meeting photographing the meeting. Respondent offered no reason why such photographs were necessary." I conclude such activity constitutes clear and unlawful surveillance in violation of Section 8(a)(1). Crown Cork & Seal Co., supra. Employees Nilda Vilca and Nohimy Ayalo who had not been part of the May 3-5 layoff were observed in attendance at these 27 Respondent's denials are discredited. 28 Sheng's denials are discredited. 29 To the extent Respondent's witnesses denied taking such photo- graphs, such demals are not credited. meetings. They were laid off on May 9 and 12, respec- tively. Between May 5 and 12, Sheng held several meetings with the employees on all shifts. During the course of these meetings he told the employees not to sign union cards and asked them to report to him instances where union representatives asked them to sign cards. I find such conduct interferes with the employees' right to or- ganize and is violative of Section 8(a)(1). Union Carbide Corp., 259 NLRB 974 (1983); J. H Block & Co., 247 NLRB 262 (1980). Sheng also told the employees that if they joined the Union he would close the shop rather :than bargain with the Union. I find such statement to be an unlawful threat in violation of Section 8(a)(1). South Nassau Communities Hospital, 262 NLRB 1166 (1982). He also promised the employees wage increases, in- Creased insurance benefits, and a paid Labor Day trip. I fmd such statements to be unlawful promises of benefit in violation of Section 8(a)(1). Windsor Industries, 265 NLRB 1009, 1016 (1982), enfd. in part 730 F.2d 860 (2d Cir. 1984). Sheng also told employees that he was going to prepare a petition for the employees to sign that would have the effect of revoking their previously signed union cards. Sheng thereafter prepared such peti- tion and had an employee circulate it. Within 2 days 50 employees signed this petition, although 20 had not 'signed union cards. I find the suggestion of such petition and its subsequent circulation, particularly in view of Re- spondent's other massive contemporaneous unfair labor practices, to be a violation of Section 8(a)(1) of the Act. Frontier Dodge, 272 NLRB 722, 732 (1984); Gayston Corp., 265 NLRB 1, 12 (1982).3° The evidence established that Respondent granted a general wage increase about January of each year. Occa- sionally merit increases were granted during the year. However, after the commencement of the Union's orga- nization campaign and Respondent's unfair labor prac- tices that included the promise of wage increases and other benefits Sheng gave raise increases to 52 employ- ees over a period from May 6 through October 14. Addi- tionally, on May 15, Respondent posted a notice offering its employees the opportunity to purchase toys manufac- tured by Respondent at discount prices. Respondent had made such offer on only two prior occasions, both during the Christmas holidays. Also, sometime in May, shortly after the layoffs, Respondent promised its em- ployees a paid labor day trip to Atlantic City, which was granted to the employees that Labor Day. The only pre- vious trip granted was in 1981 during another union campaign. It is Well settled that the granting of benefits to em- ployees after the commencement of a union organizing drive raises a strong inference that such benefits were de- signed to influence the employees to withhold their sup- port for the union. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). Where an employer grants benefits during a period of union activity, the legality of that act depends on whether the benefit conforms to the employ- 3° To the extent Sheng has denied making such statements or engaging in such actions, his denials are not credited. 426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er's past practice or had been determined prior to the employer's knowledge of the employees' union activity. Pace Oldsmobile, 256 NLRB 1001, 1009-1010 (1981). In the instant case, the evidence established that Re- spondent deviated from its pass practice in its granting of wage increases. Thus, in a matter of 6 months, 52 em- ployees received wage increases in addition to their annual or initial increases. This represents a tremendous increase in the number of employees who received such increases in past years. This deviation in past practice, coupled with the timing of the increases that began shortly after Respondent made promises of wage in- creases at the height of Respondent's unlawful conduct and in connection with his antiunion campaign, establish that these wage increases were designed to discourage its employees from supporting the Union. Similarly, Respondent's granting of product discounts to its employees was a deviation from Respondent's past practice. Sheng admitted that he had granted such dis- counts only once or twice before, during the Christmas holidays, when such toy discounts would be logical. Never had Respondent granted such benefits at this time of the year. As to the Labor Day trip, the evidence demonstrates that the paid trip to Atlantic' City was announced by Re- spondent shortly after the commencement of the Union's, organizing drive. This was also contrary to Respondent's past practice. I find the granting of such benefits, during the Union's campaign and at a time when Respondent contends an economic layoff, was necessary is not only inconsistent with its economic defense, but tends to further establish the discriminatory nature behind the granting of such benefits. I therefore conclude that under the circum- stances described above, the granting of these wage in- creases and above benefits by Respondent constitutes a violation of Section 8(a)(1) of the Act. Holiday Inn-Glen- dale, 277 NLRB 1254 (1985); Win. T. Burnett & Co., 273 NLRB 1084, 1090 (1984); Allied Lettercraft Co., 272 NLRB 612, 618 (1984); Scott Glass Products, 261 NLRB 906 (1982). The Supreme Court has approved the practice of re- quiring a bargaining order remedy in cases where it is shown that a union has attained a majority status and an employer has thereafter engaged in such egregious and coercive unfair labor practices so as to make a fair elec- tion virtually impossible. In these cases the possibility of erasing the effects of the unfair labor practices and of en- suring a fair election by the use of traditional remedies is slight and employee sentiment regarding representation once expressed through cards would, on balance, be better protected by issuance of a bargaining order. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In the instant case, the evidence established that as of May 5 the Union had received valid authorization cards from a majority of employees in an appropriate.31 The evidence further established that the Union's ex- tremely successful organization began on April 29 and that by May 5, following Respondent's commission of 51 As set forth and described above, the Union received 58 valid cards in an appropnate unit of 108 employees extensive unfair labor practices by Respondent's presi- dent and its high-level supervisors that included surveil- lance of union activities, threats to lay off and discharge employees, threats to withhold promotions, threats of un- specified reprisal, threats to close the shop, and the dis- criminatory layoff of 22 unit card signing employees, in- cluding all the Union's principal organizers, the Union's or- ganization was stopped dead in its tracks. The Union was thereafter unable to obtain another signed authorization card. I attribute the Union's inability to obtain further cards not only to Respondent's extensive unfair labor practices between May 1 and 5 but to those unfair labor practices committed by Respondent after May 5 that in- cluded surveillance of union activities, further threats to close the shop, coercing employees to sign a petition re- voking their signed authorization card, which was so successful that 20 of the 51 employees who signed such petition had never signed union cards, and granting em- ployees' raises and other benefits. It is hard to imagine a more intensive, extensive, and unlawful retaliatory cam- paign of unfair labor practices by an employer than Re- spondent's. It was 100 percent successful. In my opinion, the only adequate remedy appropriate in this case must include a bargaining order to protect the employees' rights. Conducting a fair election in this case would clearly be impossible. Dresser Industries, 248 NLRB 33 (1980); Standard-Coosa-Thatcher, 257 NLRB 304 (1981); Modern Mfg. Co., 261 NLRB 534 (1982). Respondent contends a bargaining order is not appro- priate in this case because of unfair labor practices attrib- uted to the Union. The credible facts establish that on the afternoon of Monday, May 5, following Respondent's unlawful layoff, Lamela solicited a card from Robinson Padilla, a second- shift employee, as Padilla was arriving at the plant in a car with two or three other employees. Lamela ap- proached the car and asked Padilla if he would sign a card. At that time Sheng was on the sidewalk only, a few feet from the car, unlawfully photographing the Union's organization activity and urging employees not to sign union cards. At the same time a police car arrived and instructed the driver of the car Padilla was seated in to move as it was blocking traffic. When the car began to move, Lamela spontaneously told Padilla that if he did not sign a union card she would report him to Immigra- tion. Padilla then signed. Padilla's card has not been counted towards the Union's majority. Padilla was the last person to sign a union card. Al- though there were two or three other employees present when the threat was made, all of them had already signed union cards. There is no other credible evidence that Lamela, or any other employee, or any union repre- sentative similarly threatened any employee or engaged in other unlawful conduct to obtain signed union cards. The Board has withheld bargaining orders in appropri- ate cases when a union engages in severe misconduct in violation of the Act. Laura Modes Co., 144 NLRB 1592, 1596 (1963); Union Nacional de Trabajadores (Carborun- dum Co.), 219 NLRB 862, 863-864 (1975), enfd. as modi- fied 540 F.2d (1st Cir. 1976), cert. denied 429 U.S. 1039 (1977). In determining whether a bargaining order is 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening to discharge its employees because of their union activities, Respondent has violated Section 8(a)(1) of the Act. 4. By threatening to lay off employees because of their union activities, Respondent has violated Section 8(a)(1) of the Act. 5. By threatening to deny or withhold promotions to employees because of their union activities, Respondent has violated Section 8(a)(1) of the Act. 6. By threatening its employees with revocation of promised wage increases because of their union activities, Respondent has violated Section 8(a)(1) of the Acts 7. By threatening employees to close its shop because of their union activities, Respondent has violated Section 8(a)(1) of the Act. 8. By threatening its employees with unspecified re- prisals because of their union activities, Respondent has violated Section 8(a)(1) of the Act. 9. By creating the impression among its employees that its union activities were under surveillance, Respondent violated Section 8(a)(1) of the Act. 10. By engaging in surveillance of the union activities of its employees, Respondent violated Section 8(a)(1) of the Act. 11.By coercing its employees to spy on the union ac- tivities of its employees and report back to it on such ac- tivities, Respondent violated Section 8(a)(1) of the Act. 12. By interfering with its employees right to receive union literature and their rights to organize on behalf of the Union, Respondent violated Section 8(a)(1) of the Act. 13.By preparing, circulating, and coercing its employ- ees to sign a petition revoking their previously signed union authorization cards, Respondent violated Section 8(a)(1) of the Act. 14.By promising its employees wage increases and im- provement in other benefits to induce them to abandon their union activities, Respondent violated Section 8(a)(1) of the Act. 15.By granting its employees wage increases to induce them to cease their union activities, Respondent violated Section 8(a)(1) of the Act. 16.By granting its employees a paid Labor Day trip to induce them to cease their union activities, Respondent violated Section 8(a)(1) of the Act. 17. By granting its employees product discounts to induce them to cease their union activities, Respondent violated Section 8(a)(1) of the Act. 18.by discriminatorily terminating the employment of and or refusing to reinstate the below-named employees because of their union activities, Respondent violated Section 8(a)(1) and (3) of the Act: Maureen Alday Nohimy Ayalo Maria Casas Maria De Carvahlo Ana De Luca Victor Febus Raul Gonzalez Elena Lamela Donna Lennox Charles Lutkus Maria Mejia Cecilia Narvaez Luis Perez Ana Santos , HONEYCOMB PLASTICS CORP. 427 warranted, the Board balances the severity of the em- ployer's unfair labor practices against the union miscon- duct. Maywood Plant of Grede Plastics, 235 NLRB 363 (1978); New Fairview Hall Convalescent Home, 206 NLRB 688 (1973), cert. denied 423 U.S, 1053 (1976); Conair Corp., 261 NLRB 1189 (1982). In the instant case, Respondent engaged in an exten- sive campaign of serious unfair labor practices, including threats of plant closure and the discharge of approxi- mately 20 percent of the unit, The record establishes only one instance of misconduct by an employee during the course of the organizing campaign that could be at- tributable to the Union. 32 Padilla's card was invalidated. Moreover, Padilla was the last employee to sign a card. I conclude Lamela's actions did not affect the validity of any of the 56 otherwise valid cards previously obtained. I also conclude Lamela's action was a spontaneous and isollated act that is clearly insufficient to deny the Union a bargaining order. THE REMEDY Having found that Respondent has engaged in various unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative actions necessary to effectuate the policies of the Act. Because I have found that Respondent discriminatorily laid off and thereafter refused to recall the employees set forth above, I shall recommend that Respondent be or- dered to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges. I shall also recommend that Respondent make whole the employees set forth below for any loss of earnings they may have suffered by reason of the discrimination against them from the date of their layoff until the dates of their reinstatement or offers of reinstatement. l3ackpay for the above employees shall be computed in accordance with the formula approved in New Horizons for the Retarded, 283 NLRB 1173 (1987). I shall also recommend that Respondent remove from its records any reference to their unlawful termination and to provide written notice of such removal to those employees, and to inform them that Respondent's unlaw- ful conduct will not be used as a basis for further person- nel actions concerning them. Sterling Sugars, 261 NLRB 472 (1982). In view of the extensive and serious unfair labor prac- tices committed by Respondent and my conclusion that such unfair labor practices have made a fair election im- possible, I shall recommend that a bargaining order issue in an appropriate unit described below. CONCLUSIONS OF LAW I. Respondent is, and has been, at all material times, an employer engaged in commerce within the meaning of the Act. 32 Respondent filed unfair labor practice charges against the Union based on the facts of the above incident. The Union subsequently entered into a settlement agreement remedying the unfair labor practice alleged. 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Luz Guaman Carmen Silva Edith Guerrero Maria Soto Nieves Hernandez Luis Valderrama Lana Kennedy Nilda Vilca 19. The following employees of Respondent constitute a unit appropriate for the purpose of collective bargain- ing within the meaning of Section 9(b) of the Act: All regular full- and part-time production, mainte- nance and warehouse employees, including clerical employees, employed by Respondent at its Kearny, New Jersey facility, but excluding confidential em- ployees, managerial employees, guards and supervi- sors as defined in the Act. 20. About May 5, 1986, a majority of the unit de- scribed above in paragraph 19 selected the Union as their representative for the purposes of collective bargaining. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Honeycomb Plastics Corporation, Honeyware Products, Inc., Laminray Corporation and Hangerplast, Inc., Kearny, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge its eployees because of their activities on behalf of Local 867, Warehousemen, Plastic Processing, Electrical Components, Production and Maintenance Employees a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (b) Threatening to lay off employees because of their union activities. (c) Threatening to deny or withhold promotions to employees because of their union activities. (d) Threatening its employees with revocation of promised wage increases because of their union activities, Respondent has violated Section 8(a)(1) of the Act. (e) Threatening employees to close its shop because of their union activities. (f) Threatening its employees with unspecified reprisals because of their union activities. (g) Creating the impression among its employees that its union activities were under surveillance. (h) Engaging in surveillance of the union activities of its employees. (i) Coercing its employees to spy on the union activi- ties of its employees and report back to it on such activi- ties. (j) Interfering with its employees right to receive union literature and their rights to organize on behalf of the Union. 33 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the fmdings, conclusions, and recommended Order shall, as provided m Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (k) Preparing, circulating, and coercing its employees to sign a petition revoking their previously signed union authorization cards. (1) Promising its employees wage increases and im- provement in other benefits to induce them to abandon their union activities. (m) Granting its employees wage increases to induce them to cease their union activities. (n) Granting its employees a paid Labor Day trip to induce them to cease their union activities. (o) Granting its employees product discounts to induce them to cease their union activities. (p) Discriminatorily terminating the employment of and/or refusing to reinstate its employees because of their union activities. (q) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to the employees set forth in paragraph 18 of the conclusions of law, full and immediate reinstatement to their former or substantially equivalent positions of employment, without prejudice to their seniority or to other rights and privileges previously enjoyed. (b) Make the above employees whole for any loss of earnings they may have suffered by reason of the dis- crimination against them in the manner set forth in the remedy section of the decision. (c) Recognize and bargain, on request, with the Union as the exclusive bargaining representative of the employ- ees in the appropriate unit consisting of all regular full- and part-time production, maintenance and warehouse employees, including clerical employees, employed by Respondent at its Kearny, New Jersey facility, but ex- cluding confidential employees, managerial employees, guards and supervisors as defined in the Act, with re- spect to wages, hours, and other conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Kearny, New Jersey, copies of the attached notice marked "Appendix."34 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Re- spondent's authorized representative, shall be posted by 34 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 Nattonal Labor Relations Board." HONEYCOMB PLASTICS CORP. 429 the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (t) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDD( NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT threaten to discharge our employees be- cause of their union activities on behalf of Local 867, Warehousemen, Plastic Processing, Electrical Compo- nents, Production and Maintenance Employees alw International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. WE WILL NOT threaten to lay off employees because of their union activities. WE WILL NOT threaten to deny or withhold promo- tions to employees because of their union activities. WE WILL NOT threaten employees with revocation of promised wage increases because of their union activities. WE WILL NOT threaten employees to close its shop be- cause of their union activities. WE WILL NOT threaten employees with unspecified re- prisals because of their union activities. WE WILL NOT create the impression among employees that their union activities are under surveillance. WE WILL NOT engage in surveillance of the union ac- tivities of our employees. WE WILL NOT coerce our employees to spy on the union activities of employees and report back to us on such activities. WE WILL NOT interfere with our employees' right to receive union literature and their rights to organize on behalf of the Union. WE WILL NOT prepare, circulating, and coerce our em- ployees to sign a petition revoking their previously signed union authorization cards. WE WILL NOT promise its employees wage increases and improvement in other benefits to induce them to abandon their union activities. WE WILL NOT grant employees wage increases to induce them to cease their union activities. WE WILL NOT grant employees a paid Labor Day trip to induce them to cease their union activities. WE WILL NOT grant employees product discounts to induce them to cease their union activities. WE WILL NOT discriminatorily terminate the employ- ment of or refuse to reinstate our employees because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL offer to the below-named employees full and immediate reinstatement to their former or substantially equivalent positions of employment, without prejudice to their seniority or to other rights and privileges previous- ly: Maureen Alday Elena Lamela Nohimy Ayalo Donna Lennox Maria Casas Charles Lutkus Maria De Carvahlo Maria Mejia Ana De Luca Cecilia Narvaez Victor Febus Luis Perez Raul Gonzalez Ana Santos Luz Guaman Carmen Silva Edith Guerrero Maria Soto Nieves Hernandez Luis Valderrama Lana Kennedy Nilda Vilca WE WILL make the above-named employees whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the remedy section of the decision. WE WILL recognize and bargain, on request, with the Union as the exclusive bargaining representative of the employees in the following appropriate unit with respect to wages, hours, and other conditions of employment, and, if an understanding is reached, embody the under- standing in a signed document: All regular full and part-time production, mainte- nance and warehouse employees, including clerical employees, employed by us at our Kearny, New Jersey facility, but excluding confidential employ- ees, managerial employees, guards and supervisors as defined in the Act. HONEYCOMB PLASTICS CORPORATION, HoNEywARE PRODUCTS, INC., LAMINRAY CORPORATION AND HANGERPLAST, INC.