Horton Automatics

HORTON AUTOMATICS Horton Automatics and International Union of Elec- tronics, Electrical, Technical, Salaried and Ma- chine Workers, AFL-CIO, District 11. Cases 23-CA-10594 and 23-CA-10595 June 28, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On November 27, 1987, Administrative Law Judge William N. Cates issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in support of the judge's decision. 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,' fmdings,2 and conclusions and to adopt the recommended Order, as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Horton Automatics, Corpus Christi, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the order as modi- fied. Insert the following as paragraph 1(n). "(n) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." I The Respondent excepted to the judge 's failure to admit G.C. Exh. 22, the notes of Plant Manager Carrier, as evidence of a prior consistent statement to corroborate Carrier's testimony that since he began working at the Company, he had expressed his view to then Plant Superintendent Castillo, among others, that the plant was overstaffed. We fmd it unnec- essary to pass on this exception to the judge 's evidentiary ruling because, even if admitted, the evidence would not affect the outcome in this case. 2 The Respondent has excepted to some of the judge 's credibility fmd- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and fmd no basis for reversing the findings. 8 The judge inadvertently omitted the cease-and-desist paragraph in the recommended Order. Accordingly, we shall modify the recommend- ed Order. Tamara J. Gant, Esq., for the General Counsel. Gary L. Lieber, Esq. and Karen Ann Broe, Esq. on brief only (Porter, Wright, Morris & Arthur), of Washington, D.C., for the Company. 405 Jaime P. Martinez, International Representative, of San Antonio, Texas, for the Union. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. I heard this matter on 23 and 24 April and 27 and 28 May 1987 at Corpus Christi, Texas. The cases arose when International Union of Electronics, Electrical, Technical, Salaried and Machine Workers, AFL-CIO, District 11 (Union) filed unfair labor practice charges against Horton Automatics (Company), on 12 January 1987. Acting on behalf of the Board's General Counsel, the Regional Director for Region 23 investigated the charges and issued an order consolidating cases, consolidated complaint and notice of hearing (complaint) on 20 Feb- ruary 1987. The complaint was amended on 17 March 1987 and at trial. The Company answered admitting many background and jurisdictional contentions made in the complaint but denied all claimed wrongdoings. The General Counsel makes extensive claims in the complaint. It is claimed that the Company starting as early as October 19861 engaged in conduct prohibited by Section 8(a)(1) of the Act.2 It is also alleged that the Company violated Section 8(a)(3) of the Act, by on or about 10 November laying off 10 of its employees and thereafter on 26 November discharging them.3 All parties were given full opportunity to participate, introduce relevant evidence, examine and cross-examine witnesses, argue orally, and file briefs. Briefs filed by the Company and counsel for the General Counsel have been carefully considered. I conclude below, after examining the relevant evi- dence and applicable legal principles, that the Company violated the Act substantially as alleged in the complaint. FINDINGS OF FACT I. JURISIDICTION The Company is a division of Overhead Door Compa- ny, which is a wholly owned subsidiary of the Dallas Corporation, which is and has been at all times material an Indiana corporation with an office and place of busi- ness located in Corpus Christi, Texas, where it is en- gaged in the manufacture of glass and automatic doors. During the calendar year preceding the issuance of the complaint, a representative period, the Company in the course and conduct of its Corpus Christi, Texas oper- ations purchased and received goods and materials valued in excess of $50,000 directly from points outside the State of Texas . During the same time period the Company derived gross revenues in excess of $500,000 from its Corpus Christi, Texas operations. Further, during the same time period the Company sold and shipped from its Corpus Christi, Texas facility goods and r All dates hereinafter are 1986 unless otherwise indicated. 9 The specific 8(a)(1) allegations are fully set forth elsewhere in this decision. 8 A list of the employees that were laid off is set forth elsewhere in this decision. 289 NLRB No. 57 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD materials valued in excess of $50,000 directly to custom- ers located outside the State of Texas. The parties admit and I fmd the Company is, and at all times material has been, an employer engaged in commerce and in a busi- ness affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The parties admit and I fmd the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES In attempting to establish, or defend against, the claims set forth in the complaint, the parties called some 21 wit- nesses and presented numerous documents . The testimo- ny and responses are set forth below, essentially in the order established by the complaint with the exception that I have attempted to address all 8(a)(1) allegations before addressing the 8(a)(3) allegations. Inasmuch as credibility is a material issue in the instant case, I deem it appropriate to make some preliminary comments thereon. In deciding which of the conflicting versions of events is more credible I have given consid- erable weight to the demeanor of the witnesses while they were on the stand. I have considered each witness' testimony in conjunction with established or admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the record as a whole. With re- spect to the testimony I have borne in mind the tendency of witnesses in general to testify as to their impressions or interpretations of what was said or done, rather than attempting to give a verbatim account of what they heard, saw, or did. Further, I am not unmindful that even in the case of persons testifying about their own re- marks or actions, they may well tend to express what they said or intended to say in clearer or more explicit language than they actually used in their discussions or conversations. As to any witnesses having testified in contradiction of the findings, their testimony has been discredited either as having been in conflict with the tes- timony of credible witnesses or because it was in and of itself unworthy of belief. All testimony has been re- viewed and carefully weighed in light of the entire record. As specific credibility conflicts arise, I will state more specifically my reasons for crediting or discrediting any particular witness on any particular portion of his or her testimony. A. Background and Undisputed Facts It is admitted that President Lew Hewitt (Hewitt), Plant Manager Robert Carrier (Carrier), Plant Superin- tendent David Castillo (Castillo), Supervisor Jose Eliza- dle (Elizadle), Supervisor Hank Howski (Howski), Su- pervisor Antonio Cruz (Cruz), Supervisor Gerald McKane (McKane), and Sales Manager Renaldo Salinas (Salinas) are and were at all times material supervisors and agents of the Company within the meaning of Sec- tion 2(11) and (13) of the Act.4 It is acknowledged that at all times material herein: Allen Bashor (Bashor) was vice president of human re- sources for the Dallas Corporation, David Hewitt (D. Hewitt) was engineering manager for the Company, and Jeff Williamson (Williamson) was division comptroller for the Company. It is likewise undisputed that Christine Aloquin (Aloquin) is the daughter of Plant Manager Car- rier and Jamie P. Martinez (Martinez ) and is and at all times material has been an International representative of the Union. It is undisputed that President Hewitt was notified by the Union on 9 October that it wished to organize the employees at the Company. On 21 October the Union provided the Company a list of those serving on its em- ployee voluntary organizing committee. In a memorandum dated 3 November, President Hewitt notified all employees at the Company that a layoff was imminent and that the Company would follow its handbook with respect to layoff and recall proce- dures. In a memorandum dated 4 November, President Hewitt advised all employees that 10 of them had been specifically selected for and would be temporarily laid off effective 10 November. The 10 employees temporari- ly laid off on that date were: Rene Carreon (Carreon), Jon Eric Davis (Davis), Roy DeLeon (DeLeon), Carlos Garcia (C. Garcia), Joe Garcia Q. Garcia), Franklin Gonzalez Jr. (Gonzalez), Rolando Gutierrez (Gutierrez), Abe Herrera (Herrera), Manuel Mendez (Mendez), and Leonard S. Hoyt (Hoyt). On 26 November President Hewitt notified each of the laid-off employees in writing that they were permanently laid off, as of that date. On 12 December the Board, in Case 23-RC-5318, con- ducted an election by secret ballot among the employees of the Company. All the laid-off employees except Hoyt, who did not vote, were challenged by the Company at the election on the basis they were permanently laid off with no reasonable expectancy of recall. B. The 8(a)(1) Allegations 1. Supervisor Elizadle's alleged comments regarding the rumor of a layoff It is alleged at paragraph 11 of the complaint that about 31 October Supervisor Elizadle told an employee that he and other employees should be careful because the Company was planning to lay off employees because of the Union and other activities engaged in by employ- ees. Voluntary organizing committee member Antonio Licon (Licon), a fabricator in the header department under Supervisor Elizadle, openly demonstrated his sup- port for the Union by, among other things, wearing a union button and T-shirt at work. Licon testified Eliza- dle told him in Spanish at his work station that he should "be careful because there was a layoff coming around because of union activities." Licon placed the conversa- tion somewhere between the time the Union notified the Company on 21 October of the existence of its voluntary 4 Superintendent Castillo was termmated about 15 January 1987 HORTON AUTOMATICS 407 organizing committee and the 10 November layoff.5 Licon said he had not heard any rumors about a pending layoff prior to the time Elizadle spoke to him about an upcoming layoff. Supervisor Elizadle testified that approximately 2 weeks before the November layoff some employees who were gathered in the framing area asked him if there was going to be a layoff. Elizadle told them as far as he was concerned it was just a rumor but if a layoff did occur he would be the second person to know about it and they would be the next ones to know. Elizadle said he cautioned the employees to keep busy because business was slow. Elizadle remembered there were approximate- ly six or seven employees present in the group but he did not state if one of them was Licon. I credit Licon's testimony as outlined above. I am per- suaded his apparent and admitted nervousness while tes- tifying was as a result of his anxiety about having to tes- tify and not as a result of any willful attempt on his part to misstate the facts. Likewise, his confusion as to dates and whether others were present appeared to have been honest and not caused by any deliberate intent on his part to fabricate facts. Some of Licon's confusion while testifying appeared to have resulted from the fact the conversation he was testifying about had been in Spanish and he was attempting to testify about it in English.6 On the other hand, Elizadle was not an impressive witness. His recollection on cross-examination was selective and poor.? I find Elizadle's statement in late October or early No- vember that a layoff was coming because of the employ- ees' union activities constituted an unlawful threat of layoff in violation of Section 8(a)(1) of the Act. 2. Supervisor Elizadle's alleged comments regarding recall of laid-off employees It is alleged at paragraph 12 of the complaint that about 7 November Supervisor Elizadle informed DeLeon that (a) Elizadle doubted DeLeon and the other employees would be recalled in accordance with the Company's handbook as to layoffs and recalls, as in prior years, and (b) the employees would not be recalled in ac- cordance with the Company's handbook as to layoffs and recalls, as in prior years, because of the Union. DeLeon an active supporter of the Union8 worked, from November 1985 until he was laid off in November 1986, for his friend, Supervisor Elizadle.9 DeLeon testi- 6 Licon was somewhat confused as to when Elizadle talked to him and somewhat uncertain or confused with respect to whether anyone else was present during the conversation. 6 Licon stated that approximately 80 percent of the work force spoke Spanish. r E.g., when counsel for the General Counsel asked Elizadle about a conversation he admitted having with Supervisor McKane in 1986 he could not recall in what month it took place and even suggested to coun- sel for the General Counsel that she "pick [her own] month" as to when it occurred. 8 DeLeon commenced his union activities in October. He thereafter handbilled at the plant approximately once or twice a week for 4 to 6 weeks and he also wore union hats, buttons, and T-shirts at work. 6 DeLeon stated he considered Elizadle a friend and that Elizadle coached the softball team he was on. He said Elizadle had visited in his home and had even visited him when he was in the hospital . DeLeon on one occasion sold Elizadle a pet. feed Elizadle told him and J. Garcia t ° on 8 November that they were going to be laid off on 10 November. DeLeon stated he asked why and Elizadle told them the layoff was not up to him and he had not made out the list of those slated for layoff. Elizadle stated the list had been prepared by Plant Manager Carrier. According to DeLeon he asked if he could be transferred to the ship- ping and receiving department. Elizadle told him no, that he was going to get someone else to do DeLeon's job. DeLeon then asked if Plant Manager Carrier's daughter was going to be laid off because he had more seniority than she did. Elizadle responded that DeLeon knew very well Plant Manager Carrier's daughter would not be laid off. DeLeon asked Elizadle if anything could be done, or if anything could be worked out about the layoff. Eliza- dle told him he was sorry he had not made the list out and had not wanted to lay him off. DeLeon asked Eliza- dle: "[I]f we were really going to get called back and he said I doubt it. And I said why, and he said union. And turned around, and walked away from me." DeLeon stated he was wearing a union hat, button, and sun visor at the time. Supervisor Elizadle testified he had a conversation with DeLeon on the Friday DeLeon received notifica- tion he was going to be laid off effective 10 November. The notification of layoff was in his paycheck envelope. Elizadle testified DeLeon was "pissed off" and said to him: "[H]ey Joe, what the fuck man, what is this shit, you know . . . am I going to be laid-off a day, a year, what the fuck man." Elizadle further testified: "I told him as far as I'm concerned it's just the way the memo states. It's just a temporary layoff. Business picks up I'm pretty sure they'll call you back." Elizadle asserts at that point he left the area where DeLeon was. Elizadle first testified he could not recall if any men- tion was made about the Union or union activities during the conversation. However, when pressed further by company counsel he dutifully stated the Union was not mentioned. I credit DeLeon's above outlined testimony. Elizadle's demeanor and the full record convince me he was not fully candid in his recall of this conversation. An employer violates Section 8(a)(1) of the Act when it tells employees, as I find Elizadle did, that they will not be recalled from layoff because of their union activi- ties. Compare United Beef Co., 277 NLRB 1014, 1027 (1985). 3. Alleged comments of Superintendent Castillo regarding the layoff It is alleged at paragraph 13 of the complaint that on or about 5 November Superintendent Castillo informed an employee that the scheduled layoff of 10 November, 10 DeLeon acknowledged on cross -examination that there was no men- tion made in his pretrial Board affidavit about J. Garcia having been present for the conversation . Although called as a witness by counsel for the General Counsel, J. Garcia was not questioned about nor did he men- tion being present at any conversation between Elizadle, DeLeon, and himself. 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unlike prior layoffs, would include employees of the Company whom it considered to be "bad ones." 11 Voluntary organizing committee member Alonzo Gon- zalez (A. Gonzalez) testified that on 5 November Super- visor Elizadle read a paper to his employees about de- clining sales and the pending layoff. Superintendent Cas- tillo was also present at the time. Gonzalez testified some of the employees asked why the Company could not, as it had done in the past, go to a 4-day workweek and thus avoid a layoff. According to Gonzalez, Castillo respond- ed they had done that in the past out of the goodness of their hearts but for them to "remember . . . we are now the bad guys." Gonzalez testified the conversation ended after Castillo's remarks.12 Supervisor Elizadle acknowledged reading a memo- randum to the fabrication and door assembly employees on 5 November about the pending layoff. He stated that after he read the memorandum the employees asked Su- perintendent Castillo "if it was possible for them to .. . scatter the days [off] like they [had done] in the .. . past." Elizadle asserts Castillo replied, "last year it was done by the goodness of his heart, that we're the bad guys remember."'s The evidence is very conclusive and I find Superin- tendent Castillo not only told the fabrication and assem- bly employees that he had allowed the layoffs to be scat- tered over a number of days last time out of the good- ness of his heart, but that he also told them this time the Company was the "bad guys." The critical question is whether his comments violated the Act. Viewed in context, I find they did. The Union's campaign was active at the time. Supervisor Elizadle had a few days earlier told employees a layoff was coming because of the employees' union activities. Prior to the advent of the Union there had been at least one layoff that had been accomplished by employees' taking days off spread over a period of time. When Castillo told the employees this past practice with respect to layoffs could not be followed because the Company was the "bad guys," he clearly conveyed to them the message that the layoff was tied to their union activities.' 4 4. Washup rule and parts retrieval restrictions It is alleged at paragraph 16 of the complaint that about 17 November Supervisor McKane informed em- ployees working in the machine shop that effective that date, they could no longer wash up before breaks or lunch or at the end of the workday, as they had in the past. 11 I note the language of this paragraph of the complaint does not con- form to the findings I have made on this allegation , however, the matter was fully litigated. 12 Voluntary organizing committee member John Champion corrobo- rated Gonzalez' testimony as outlined above Champion stated Castillo did not specifically mention the Union when he made his comments 13 Castillo recalled telling the employees he had done it in the past out of the goodness of his heart but he contends he added the situation was different this time around . Castillo could not recall referring to himself or the Company as the "bad guys " 14 The coerciveness of Castillo's comments was not lessened by the fact he made them in response to questions from the employees or that he did not use the word "union" in his comments Employees at the Company are daily given 15 minutes in the morning, 30 minutes at lunch, and 10 minutes in the afternoon for breaks. All employees take their breaks at the same time. Bells signal the beginning and ending of all breaktimes. Machinist Kendall Lewis (Lewis) testi- fied that at least from May 1984 until November 1986 the employees, with company knowledge, stopped work 2 to 3 minutes before their breaktimes to go to the rest- rooms and clean up. Lewis stated Supervisor McKane, Superintendent Castillo, and Plant Manager Carrier had observed this practice without saying anything to the employees prior to November 1986. Lewis testified that on 17 November he observed: Jerry McKane start on the north end of the ma- chine shop and approaching individuals, talking to each one of them for a minute or so. And when he got to the milling area he called the people that were working on the mills, and the people that were running the saws [Xavier Cisneros, Tony Bar- rera, Genero Perez, Ron Russel, and Lewis], to- gether. And told us that we would no longer be able to wash our hands before the break bell rang. According to Lewis, McKane did not mention the Union when he announced the restrictions. Lewis stated that "a few weeks" after the 12 December Board-conducted election was held, McKane told the employees they could wash their hands before quitting time but the re- strictions on cleaning up before break-and lunchtimes would continue. Supervisor Elizadle testified the Company had a writ- ten rule that employees were only allowed 5 minutes washup time before the end of each work shift.'s He, however, said he had never enforced the rule with any of his 30 or so employees. Elizadle said Foreman McKane complained to him in November about his al- lowing the employees under his supervision to wash up 5 minutes before the noon break. According to Elizadle, McKane said his (McKane's) employees were complain- ing to him about the disparate enforcement of the rule. Elizadle said he thereafter met with the employees under his supervision and reminded them of the rule. He stated he told them he wanted them to start washing up at noon not 5 minutes before that time, however, he added he never enforced the rule and still does not pay much attention to whether it is adhered to. It is alleged at paragraph 22(a) of the complaint that on or about 23 October Supervisor Elizadle informed employees that they would no longer be permitted to leave the department to secure parts in other plant de- partments. Licon testified Supervisor Elizadle told the employees in his department, right after the Union notified the Company of the existence of its voluntary organizing committee,' a that they could no longer leave the depart- la No such written rule was produced at the trial herein 16 The Union's letter notifying the Company of the existence and makeup of its voluntary organizing committee was mailed to the Compa- ny on 21 October HORTON AUTOMATICS ment to get parts or for any other reason. Elizadle told the employees he had assigned one employee (Davis) to "run parts" and "deliver headers." Supervisor Elizadle testified that around the first of November he was instructed by Plant Manager Carrier and Superintendent Castillo to keep his employees at their work stations in order "to keep them from wander- ing around and talking to much about the Union."17 Eli- zadle stated he told the employees under his supervision that they were to remain at their work stations and if they needed anything to have Davis get it for them. Eli- zadle stated Davis was assigned the newly created parts runner position approximately 1 month to 6 weeks before he was laid off. Elizadle stated Davis was required to perform his normal fabricator duties when he was not in- volved in running parts. Elizadle acknowledged that the Company had never previous to the time in question had a parts runner position in his department. He further ac- knowledged the position was eliminated after Davis and the others were laid off on 10 November. Elizadle asserts the parts runner position was created in order to keep Davis busy and was eliminated when he no longer had a surplus of employees in his department. The Company contends that because both the washup rule and parts runner position dealt solely with employ- ees worktime not their break or lunch times its enforce- ment of these rules, restrictions, and assignments was lawful. I reject the Company's contentions. First I note the Act does not prevent an employer, such as the Company in this case, from making and en- forcing reasonable rules addressing employees conduct during worktime. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). However, the Board in Brigadier Indus- tries Corp., 271 NLRB 656, 657 (1984), held: When faced with a union organizing campaign an employer may not for union reasons promulgate a no-solicitation and/or no-distribution rule or place other restrictions on employees. Nonetheless, during the union campaign, an employer maintains a legiti- mate interest in preserving production and disci- pline. When an employer adopts a rule during a union campaign, it does not automatically follow that the rule is invalid. If the employer has acted for legitimate business interests-rather than for union reasons-its promulgation of a rule cannot be deemed unlawful [emphasis added]. The Board's principle that otherwise valid rules or re- strictions violate the Act when such are promulgated to interfere with employees' rights to self-organization rather than to maintain production and discipline have been upheld by the courts. (See, e.g., Harry M. Stevens Services, 277 NLRB 276 (1985), enfd. mem. 793 F.2d 1288 (5th Cir 1986), and Hunter Douglas, Inc., 277 NLRB 1179, 1185 (1985), enfd. 804 F.2d 808 (3d Cir. 1986).) In the instant case the Company' s rule (if in fact one existed) against washing up before break, lunch, and quitting times had not been enforced prior to the advent 11 Elizadle stated that when he talked to his employees about wander- ing around the plant he did not say anything to them regarding what they could do on their lunch and break times 409 of the Union.18 The rule, as announced and enforced by Foreman McKane, took effect in the midst of the Union's campaign and was, in part, rescinded after the Board-conducted election was held. In light of these facts, I am persuaded, in agreement with counsel for the General Counsel, that the rule was announced and for a period of time thereafter enforced, at least by Supervisor McKane, for the purpose of limiting the time employees would have off the work floor for discussing union mat- ters. There is no showing that the long practice of allow- ing employees to wash up before all breaks had suddenly become a disciplinary or production problem for the Company. Accordingly, I find the Company's purpose in promulgating (or suddenly enforcing) the rule in question was to interfere with its employees' right to self-organi- zation and as such violated Section 8(a)(1) of the Act. With respect to the newly created parts runner posi- tion, I find the evidence is overwhelming the Company was unlawfully motivated in establishing such a position. First, the parts runner position was created immediately after the Company received notification of the creation and composition of the Union's voluntary organizing committee. Second, the parts runner position was specifi- cally intended to keep employees from "talking too much about the Union." Third, there is no conclusive evidence that production or discipline was suffering as a result of employees talking while they worked. Fourth, the position was abolished after the 10 November layoffs took place. The timing of the creation of the parts runner position coupled with its stated purpose and in the absence of evidence of any disciplinary or production problems compels a finding that the rule against employ- ees leaving their work stations was discriminatorily moti- vated in that it was intended to prevent employees from discussing the Union. Accordingly, I find the Company's newly established rule of restricting its employees to their work stations by utilizing a parts runner position was motivated by the purpose of interfering with its employees right to self-or- ganization in violation of Section 8(a)(1) of the Act. 5. Confrontation between President Hewitt and International Union Representative Martinez and Plant Manager Carriers' comments It is alleged at paragraph 17 of the complaint that about 10 December, 2 days prior to the election sched- uled to be conducted in Case 23-RC-5318, outside of the plant, while employees were engaged in handbilling ac- tivities on their own time, and in the presence of the em- ployees laid off and discharged and other employees, President Hewitt and Plant Manager Carrier in the pres- ence of company agent Roy Blankenship and President Hewitt's sons David and Daniel Hewitt confronted Inter- national Union Representative Martinez whereby: (a) President Hewitt asked Martinez if he was going to call Hewitt a liar to his face; (b) International union repre- sentative Martinez stated that the handbilling was non- is Employee Lewis credibly and without contradiction testified Fore- man McKane, Superintendent Castillo, and Plant Manager Carver had observed that practice and had not said anything about it 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD violent and employees had Section 7 rights to solicit and distribute literature outside the Company's property; (c) either David or Daniel Hewitt pushed Martinez and yelled at him to "Answer the man"; and (d) as Martinez was walking away, Plant Manager Carrier told the laid- off employees that he would see to it that they would never work for the Company again. International Union Representative Martinez testified that starting in October he and various employees of the Company handbilled at the plant entrances on several occasions. Martinez stated that on one such occasion, which took place on 10 December, and at a time when approximately 30 to 40 employees were present,19 Presi- dent Hewitt came from the plant "yelling" for "Jamie Martinez."20 Martinez identified himself as an Interna- tional union representative and as the person President Hewitt was "yelling" for. Martinez testified Hewitt asked "in a very loud voice," "Are you going to call me a liar to my face?"21 Martinez testified he spoke to the em- ployees that were present and told them, "We're with the union and we've got a right to solicit," "We're non- violent," "We've got a right to be here and solicit." Ac- cording to Martinez, President Hewitt's son, Engineering Manager D. Hewitt, pushed him into the street using the palms of his hands and his chest. Martinez stated that as Engineering Manager D. Hewitt was pushing him into the street he was "yelling" into his ear, "spitting" in his face, and instructing him to "Answer the man." Martinez asserts he was pushed from the sidewalk across a curb into the street.22 President Hewitt testified the Union had circulated two handbills among the employees in December one of which implied he was a liar and the other that he was a hypocrite. Hewitt stated the leaflets were, in his opinion, extremely unfair and untrue and caused him a great deal of personal distress. President Hewitt said he met with employees of various departments at the plant on 10 De- cember. He stated that in those meetings at which mem- bers of the Union's voluntary organizing committee were present he told them he had had enough insinuations that he was a liar and a hypocrite. He told the voluntary or- ganizing committee members that if they knew how to 19 Martinez estimated there were 50 employees present after others came from the plant at quitting time on that date. 20 President Hewitt was accompanied by his sons David and Darnel Hewitt, Plant Manager Carrier, Supervisors Elizadle, McKane, Cruz, and others. 21 Martinez explained the background to President Hewitt's question as follows Martinez said he had filed charges with the Board against the Company and that President Hewitt had on 3 December informed the employees in writing the charges would delay the election scheduled for 12 December Martinez testified he put out a handbill on 5 December in- forming the employees the election would be held as scheduled and that President Hewitt's information to the contrary was "a lie " 22 Vasquez, J. Garcia, and Davis corroborated in essential parts Marti- nez' testimony as outlined above Vasquez did add that traffic was ap- proaching on the street at the time Engineering Manager D Hewitt pushed Martinez into the street Vasquez asserts, contrary to Martinez, that Martinez told President Hewitt he did not call him a liar I am per- suaded on this latter point that Vasquez was mistaken However, I do not fmd this to impact on the credibility resolutions I have made Further- more, J Garcia testified he did not hear President Hewitt talk at all but stated, "David Hewitt came up to [Martinez] and yelled in his ear, shov- mg him away" and told him "to get off the premises " Again I do not find these minor variations regarding what took place on 10 December to detract from the truthfulness of Martinez' account of what took place get in touch with International Union Representative Martinez they should do so, because he was "going to confront him that afternoon." President Hewitt stated that as the day wore on he became "more determined" to have a confrontation with Martinez and set the matter straight between them. Hewitt said he did not know if anyone actually got word to Martinez, but that Martinez was just off company property handbilling that after- noon. President Hewitt testified he walked up to Marti- nez and asked him who he was. He stated Martinez iden- tified himself and he asked Martinez if he had gotten his message. Martinez said he had not. Hewitt then told Martinez, "[Y]ou've been saying that I've been lying, and that's not true, and I want you to apologize for it." Hewitt stated Martinez looked at him for a while and then began to say something about employee rights and so forth. Hewitt testified he asked "again and again" "probably more loudly" if Martinez had called him a liar. He said Martinez would not answer him. President Hewitt testified his oldest son, Engineering Manager D. Hewitt, got within an inch or two of Martinez and re- peatedly told Martinez to "Answer the man." Martinez would not respond. President Hewitt said he then reached out and touched his son David and told him, "We're not going to get an answer, let's go." President Hewitt said they then returned to his office. According to President Hewitt the entire confrontation lasted ap- proximately 5 to 10 minutes. Hewitt denied anyone touched Martinez. Several supervisors testified regarding what they ob- served and heard during the confrontation. Supervisor Howski testified the confrontation "got pretty loud and nasty." Howski testified Engineering Manager D. Hewitt stood "face to face . . . not more than an inch away" from Martinez, but he did not see him push Martinez. Supervisor Cruz testified President Hewitt was red in the face, speaking loudly, and visibly upset. He also said En- gineering Manager D. Hewitt was very upset at Marti- nez. Cruz, however, stated he was not close enough to the confrontation to see if any touching took place be- tween the participants. Supervisor Elizadle stated Presi- dent Hewitt and Engineering Manager D. Hewitt were both "yelling" at Martinez; however, he added that be- cause he (Elizadle) was short of stature he was unable to see if the Hewitts touched Martinez. Vice President of Human Resources for the Dallas Corporation Bashor tes- tified, "they were not speaking in a civil tone" and "the emotions were increasing," but he asserts neither of the Hewitts struck nor touched Martinez. Certain facts are beyond dispute. The confrontation was deliberate and preplanned by President Hewitt. He even challenged employees who supported the Union to get the word to Martinez, that he wanted a confrontation that afternoon. A high-level representative of the parent company did nothing to discourage or prevent the con- frontation from taking place, because as the Dallas Cor- poration Vice President of Human Resources Bashor stated, "Lew [Hewitt] felt strongly about it " The chal- lenge for the confrontation and the confrontation was known to and took place in front of numerous rank-and- file employees. President Hewitt and Engineering Man- HORTON AUTOMATICS ager D. Hewitt approached Martinez in an angry, loud, and emotionally charged manner. It is in light of this background that I consider wheth- er Engineering Manager D. Hewitt physically assaulted Martinez. I find he did. Martinez' testimony that D. Hewitt assaulted him was corroborated by employees Vasquez and J. Garcia. Furthermore, it is very probable that in the emotionally charged confrontation D. Hewitt assaulted Martinez. Engineering Manager D. Hewitt, al- though still employed by the Company, did not testify, nor was his failure to do so explained in any way. Hence, the one additional person, on the part of the Company, who could have spoken with firsthand knowl- edge of the account, chose, for whatever reason, to remain silent.23 An employer violates Section 8(a)(1) of the Act, by as- saulting a union representative when it does so in the presence of one or more employees under circumstances where onlookers would likely infer from the assault that the employer would also retaliate in the same fashion against any employee who supported the union. Batavia Nursing Inn, 275 NLRB 886, 891 fn. 2 (1985). In the case sub judice, I find the employees could rea- sonably have believed that such a fate might befall them as had befallen the Union's International representative if they supported the Union. The reason announced to the employees for the confrontation grew out of the Union's campaign literature. The actual assault took place at a time when the Union's International representative was telling the employees they had a legal right to organize in a nonviolent manner. Thus, I find the Company vio- lated Section 8(a)(1) of the Act when Engineering Man- ager D. Hewitt assaulted the Union's representative in the presence of the employees of the Company. Martinez testified that one of the leaflets they were at- tempting to distribute on 10 December pertained to un- employment compensation payments for the laid-off em- ployees. Vasquez testified Herrera was one of those handbilling on 10 December and that he had copies of two unem- ployment checks that he showed Plant Manager Carrier. Davis testified that at that same time Plant Manager Car- rier's daughter was telling International Union Repre- sentative Martinez to answer President Hewitt's ques- tions about whether he had called him a liar. According to Davis, Herrera said Carrier's daughter did not have the right to say anything because she did not have any seniority and should have been one of the first to have been laid off. J. Garcia stated Herrera told Plant Manag- er Carrier that the laid-off employees would get their jobs back and with justice. According to J. Garcia, Plant Manager Carrier answered that the laid-off employees were not coming back to work.24 23 His silence is important only with respect to resolving this credibil- ity issue. 24 Vasquez, Davis, and International Representative Martinez corrobo- rated, although in slightly different ways, the essential aspects of J Gar- cia's above testimony Vasquez, for example, stated Plant Manager Cam- er said the laid-off employees would not be coming back to work as long as he was around Davis stated Carrier said Herrera would never come back to work at the Company again International Union Representative Martinez testified Plant Manager Carver said the laid-off employees 411 Plant Manager Carrier testified he did not have a con- versation with Herrera on 10 December, but he said he heard Herrera make some comment about his daughter who was standing next to him at the time. Career testi- fied he did not hear anyone say any words to the effect that certain of the employees would never work at the Company again.25 Simply stated I find unbelievable the testimony that Plant Manager Carrier stood by at this highly charged confrontation and said nothing. I find this highly unlikely especially considering the fact his daughter was actively participating in the verbal part of the confrontation and was at the same time being accused of receiving prefer- ential treatment because she was Carrier's daughter. I credit counsel for the General Counsel's witnesses re- garding the incident. I do not find the minor differences in their testimony to detract from the overall accuracy of their testimony. I find the Company through Plant Manager Carrier violated Section 8(a)(1) of the Act, when he threatened that the laid-off employees would not be considered for recall by the Company because he would see to it. 6. President Hewitt's 14 January comments It is alleged at paragraph 18 of the complaint that about 14 January, President Hewitt (a) asked employees if they were giving information to International Union Representative Martinez regarding the unfair labor prac- tice charges filed by the Union in Cases 23-CA-10594, 23-CA-10595, and 23-CA-10596; (b) told employees, when they did not respond, that Hewitt had heard that the Union was having employees sign checkoff cards on company property and that this had to stop; (c) stated to employees that even if they were signing up employees for checkoff authorizations during their breaks, they could not do it at any time and that the election was "over with"; and (d) told employees that Hewitt wanted to know of any future activities any of the employees en- gaged in on behalf of the Union. It is undisputed that President Hewitt spoke to all em- ployees and supervisors at a meeting held in the quality control room at the plant on 14 January 1987. President Hewitt said he called the meeting to bring the employees up to date on the status of the Board-conducted election and to talk about foreign competition. According to Licon and Vasquez, Hewitt stated there had been unfair labor practice charges filed against the Company and he wanted to know who was responsible for giving the in- formation to the Union on which the charges were based. Licon and Vasquez stated President Hewitt specif- would not be coming back to work and that he would see to it they did not. Herrera did not testify nor was his absence explained in any manner 25 President Hewitt testified he never heard any official of the Compa- ny say he would see to it the laid-off employees never worked for the Company again. The Dallas Corporation Vice President of Human Re- sources Bashor testified he did not hear Plant Manager Carver say any- thing during the confrontation. Supervisor Elizadle said he did not hear Carver say anything at the confrontation but added he was giving his at- tention to the "yelling" that was going on at the time Supervisor Howski testified he did not even know if Carver was present at the confrontation Supervisor Cruz could not recall what if anything Carver might have said at the confrontation but he believed Carver did not say anything 412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ically asked employee Gordon Klitzke if he was the one who had given the information to the Union. Klitzke denied doing s0.26 Licon credibly testified President Hewitt also said he had heard rumors that employees were trying to get dues checkoff cards signed at the plant, and he did not want anyone signing up employees on company property and to please stop doing so.27 After observing Hewitt, Licon, and Vasquez testify, and weighing their testimony in light of admissions made by Hewitt, I credit Licon's and Vasquez' version of the 14 January 1987 general employees' meeting. I find President Hewitt violated Section 8(a)(1) of the Act when he asked all the assembled employees who among them had been giving information to the Union that formed the basis for the Union's charges against the Company. The totality of the circumstances dictates such a finding. See Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The questioning was done by the highest official of the Company. The question asked was not rhetorical but rather was calcu- lated to invoke a response from the employees that would reveal their union sympathies at a mandatory meeting of employees. Further, President Hewitt also violated Section 8(a)(1) of the Act, when he specifically singled out employee Klitzke and asked him if he was the one who had been supplying the information in ques- tion to the Union. Other than Hewitt's assertion that he knew Klitzke had not been supplying information to the Union, there is no evidence to indicate Klitzke had ex- pressed his views, one way or the other, on the Union prior to that time. Furthermore, Klitzke was interrogated in front of all his fellow workers and for no valid or jus- tifiable reason. I also find President Hewitt's statement to the assembled employees that he did not want them to solicit union dues checkoff cards on company property and to stop doing so violated the Act. In this regard, I note such a broad prohibition would clearly restrict em- ployees from soliciting for the Union during their non- working time on company premises. It is undisputed that after the above-described meeting took place President Hewitt and Plant Manager Carrier met with Licon and Vasquez in Hewitt's office. Licon testified President Hewitt asked them if they were the ones that had been giving unfair labor practice charge- related information to International Union Representa- tive Martinez. Licon told Hewitt they had not given any 28 President Hewitt acknowledged discussing certain unfair labor prac- tice charges with the employees but stated he did so in the context of telling the employees that if the charges against the Company did not stop they would never get the Board-conducted election resolved . Hewitt also acknowledged asking Khtzke if he was the one who had supplied the information to the Union on which it based its charges against the Company He added however that he knew "beyond question that he [Klitzke] would not be the one who was making charges against us." 27 Vasquez corroborated Licon's above-outlined testimony. President Hewitt acknowledged discussing dues-checkoff cards with the assembled employees He said he told the employees he had been getting complaints that they were trying to get others to sign dues -checkoff cards. He also said he told the employees he did not think it was proper for them to ask others to sign dues-checkoff cards because the Union had not been certi- fied He asserts he told the employees it was their privilege to sign or refuse to sign such cards such information to Martinez. According to Licon, Presi- dent Hewitt said, "if there was any further union activi- ties going on that he would like to be notified, instead of being caught off [guard] . . . with rumors and stuff." Vasquez testified President Hewitt also asked if they were the ones who had been soliciting employees to sign dues-checkoff cards. Vasquez told Hewitt he had been. Hewitt asked when he had done so. Vasquez told Hewitt, "I'm doing it on my own time which is before work, breaks, lunch, and after work." Vasquez testified President Hewitt told him he preferred they stop solicit- ing because the Union had not been recognized by the Company. Vasquez protested saying he had been doing it on his own time. Hewitt responded, "but you're still on [C]ompany property." Vasquez told Hewitt he would stop because he did not want to do anything that would harm anyone. President Hewitt acknowledged he and Plant Manager Carrier met with Licon and Vasquez on the day in ques- tion. Hewitt said a complaint from an employee that Licon and Vasquez had constantly been after the em- ployee to sign a union dues deduction card prompted the meeting. Hewitt acknowledged he asked Licon and Vas- quez if they had been soliciting for the Union and he as- serts they admitted they had. Hewitt said he told them: I may be wrong, but it is my opinion that until the [U]nion is certified, that it's not proper to ask em- ployees to sign the cards. After it is certified that's fine, but until it is certified, I don't think it is proper. According to Hewitt, Licon responded they had already decided not to solicit anymore. Hewitt testified he then told them, "I think out of courtesy to us that you should tell us when you are planning to do that again." Hewitt said they indicated they would do 80.28 That a meeting between the two employees and two management officials took place after the general meet- ing on 14 January 1987 is not disputed nor is there any dispute with respect to the subject matters discussed. To the extent that there are differences between the employ- ees' and managers' versions of what was said at the meeting, I credit the employees' account. I credit the employees' account because it is clear from the record as a whole that President Hewitt was determined to find out who had provided charge-related information to the Union and who had been soliciting dues-deduction cards on company property. Not only did he attempt to ascer- tain this type of information from the employees at the general meeting, but he had also directed at that general meeting that all card signing activities cease on company property. In light of his earlier actions it is quite logical and very probable that he said exactly what Licon and Vasquez attribute to him. Furthermore, President Hewitt impressed me as a very determined individual who would do or say whatever he perceived to be in his, or the Company's, best interest without full regard for the consequences of his actions. 18 Plant Manager Carrier, in pertinent part, corroborated Hewitt's tes- timony as outlined above HORTON AUTOMATICS I find President Hewitt's questioning known union supporters Licon and Vasquez was, under all the circum- stances herein, coercive and as such violated Section 8(a)(1) of the Act. First, the questioning took place after but on the same day Hewitt had unlawfully interrogated the entire assembled work force about the same subject matter. Second, the questioning took place in President Hewitt's office and in the presence of Plant Manager Carrier. Third, President Hewitt had already, at a group meeting, attempted to ascertain who had provided the in- formation in question to the Union and after being unsuc- cessful there moved on to questioning Licon and Vas- quez in the privacy of his office in his attempt to find out what he wanted to know. I also find President Hewitt violated the Act by telling Licon and Vasquez he did not want them to solicit their fellow workers to sign dues deduction cards on company property, especially in light of the fact Vasquez told Hewitt that he had only done so during nonworking times. 7. Elizadle's alleged comments about who could vote in the Board-conducted election It is alleged at paragraph 19 of the complaint that Su- pervisor Elizadle about 1 December informed employees that Plant Manager Carrier had informed Elizadle that because the employees that were laid off were now per- manently discharged they could not vote in the election on 12 December in Case 23-RC-5318. Licon testified that about 1 December Supervisor Eli- zadle approached him while he was alone29 in his work area and told him the 10 laid-off employees were termi- nated and would be ineligible to vote in the election be- cause of their union activities. Supervisor Elizadle, after some difficulty in recalling an early December conversation with Licon about the layoffs, acknowledged such took place. However, he stated Licon asked him if the laid-off employees could vote in the Board-conducted election. He said he told Licon he did not know. As is noted elsewhere in this decision Licon was some- what confused about certain details in his testimony; however, I am persuaded his confusion was honest and not an attempt to misstate facts. I credit his testimony re- garding his early December conversation with Elizadle. I note Supervisor Elizadle had told Licon back in October that he should be careful that a layoff was coming be- cause of the Union. Furthermore, Elizadle had told em- ployee DeLeon in early November that he doubted the laid-off employees would be recalled because of the Union. It is therefore logical and probable that he told Licon the laid-off employees had been terminated and would not be eligible to vote in the election because of their union activities.30 29 On cross-examination Licon stated Vasquez could have been present when Ehzadle talked to him but he could not be certain so I noted there had been discussions at the Company among some of the managers on this subject Superintendent Castillo testified Plant Man- ager Carver told hun that because the laid-off employees had been per- manently laid off they would not be able to vote in the Board-conducted election 413 Elizadle's statement was clearly coercive and in viola- tion of Section 8(a)(1) of the Act, in that it conveyed a message to the employees that the Company's latest action against the laid -off employees was taken because of their union activities and to preclude them from voting in the Board-conducted election. 8. Elizadle's alleged comments about negotiations It is alleged at paragraph 22(c) of the complaint that Supervisor Elizadle about 1 December told an employee that it would take at least 2 years before they would reach an agreement on a contract and to cause further delay all the Company had to do was relocate or change its name in order to do away with the Union. Licon testified that on 6 March 1987 he and fellow employees Vasquez and Lopez were discussing how long it would take to negotiate a contract when Supervisor Elizadle approached them.31 Licon testified Supervisor Elizadle told them it would take at least 2 years for the Company and Union to negotiate a contract, and even if they did the Company could delay it further by chang- ing its name or relocating its facility. According to Licon, Elizadle also told them such action on the part of the Company would do away with the Union. Licon stated that after Supervisor Elizadle finished talking they more or less ended their discussion because they did not want to antagonize Elizadle. Supervisor Elizadle stated he had a 2- to 3-minute con- versation about the Union with Licon in March 1987. According to Elizadle, Licon asked if it was true that it would take 2 years or something like that for the Union to come in. Elizadle said he told Licon he did not know. Licon then told Elizadle he had heard if the Union came in all the Company had to do was change its name or move to avoid the Union. Elizadle said he told Licon he did not know anything about that. Elizadle stated that ended their conversation because Licon was walking along with a heavy item at the time. As is more fully explained elsewhere in this decision, I did not find Elizadle to be an impressive or credible wit- ness. Licon on the other hand appeared to be making a conscientious effort to tell the truth to the best of his recollection. Accordingly, I credit Licon's account of his March conversation with Elizadle as set forth above. Supervisor Elizadle's March 1987 statement to Licon and others was coercive and violated Section 8(a)(1) of the Act, in that it conveyed the message to the employ- ees that it was futile for them to select the Union as their bargaining representative . See, e.g., Thriftway Supermar- ket, 276 NRLB 1450, 1460 (1985), enfd. mem. 808 F.2d 835 (4th Cir. 1986). 9. Plant Manager Carrier's alleged comments on an employee's wage review It is alleged at paragraph 22(d) of the complaint that Plant Manager Carrier about 10 December solicited an employee's comment on his recent wage review and threatened that employee that if the employees voted for the Union the raise would be rescinded. 11 Licon assumed Elizadle overheard what they were discussing 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Voluntary organizing committee member John Cham- pion testified he was given a review for a wage increase on 9 December and the next day (10 December) Plant Manager Carrier asked him about it . He said the two of them were alone at the time. Champion testified Carrier asked him if he had been given his wage review. Cham- pion told Carrier he had. Carrier asked if it was a good one and Champion responded he had no complaints that he had gotten a raise . According to Champion, Plant Manager Carrier said, "I'm glad you got a good one, be- cause if you guys vote the wrong way we won't have this any more." Plant Manager Carrier testified Champion told him at the beginning of December he felt he had been skipped over when the other employees had been given wage re- views in November . Carrier checked into the matter and found Champion had in fact been skipped over . Carrier testified he instructed Champion 's supervisor to review him for a wage increase . Carrier stated he later followed up on the matter by asking Champion if he had been re- viewed, and if he was happy and satisfied. Carrier stated Champion indicated he was satisfied . Carrier stated the Union was not mentioned in their conversations. I am persuaded that Plant Manager Carrier made the comments Champion attributes to him . The record evi- dence as a whole supports such a finding in that Plant Manager Carrier had a keen interest in the outcome of the union election. His keen interest led him to engage in conduct that violated the Act. He , for example, stated at the confrontation between President Hewitt and Interna- tional Union Representative Martinez that the laid-off employees would not be recalled because he would see to it. As is discussed below he asked employee Lewis the day before the election how he was going to vote in the election. Although not found to be unlawful, he told Plant Superintendent Castillo the laid-off employees were permanently laid off and would not be able to vote. Although I have found Carrier's comments to have vio- lated the Act, I do not find his remarks constituted a threat to rescind the wage increase involved but rather to constitute an unlawful threat that there would not be any future wage increases if the employees voted the wrong way in the Board-conducted election. 10. Plant Manager Carrier 's alleged questioning of employee Lewis It is alleged at paragraph 22(e) of the complaint that Plant Manager Carrier about 11 December interrogated an employee concerning how he planned to vote in the upcoming election. Employee Kendall Lewis testified that on 11 Decem- ber as he was alone walking from lunch32 in the sheet metal fabrication area Plant Manager Carrier approached and asked him if he had decided which way he was going to vote in the election. Lewis told Carrier he had not decided . Lewis said that prior to Plant Manager Car- rier's talking with him he had not in any way demon- strated his preference either for or against the Union. 32 Lewis testified that on lots of occasions Plant Manager Carrier would talk to employees during their lunch breaks Plant Manager Carrier testified he could not recall having a conversation in December with Lewis about the Union. He stated he knew however, by December, that Lewis supported the Union by his "mannerisms" and by the fact he had a union decal on his toolbox. I credit Lewis' testimony as set forth above. I note Plant Manager Carrier was unable to deny the conversa- tion. In crediting Lewis' testimony I note he had not ex- pressed his views about the Union prior to Plant Manag- er Carrier's questioning him on 11 December . I find, under all the circumstances, that Carrier's questioning of Lewis was coercive. See Rossmore House, supra. Lewis had not made his union sympathies known at the time Carrier questioned him and the question specifically sought Lewis' personal sympathies about the Union. Plant Manager Carrier was a high-level management of- ficial who did not directly supervise Lewis and the ques- tioning took place 1 day before the election for no valid or justifiable reason . Accordingly, •I find the Company violated Section 8(a)(1) of the Act by coercively interro- gating Lewis. See H.S.M. Machine Works, 284 NLRB 1482 (1987). C. Temporary and Permanent Layoff of 10 Employees It is alleged at paragraph 14 of the complaint and ad- mitted by the Company in its answer that on 10 Novem- ber it laid off its employees Carreon , Davis, DeLeon, C. Garcia, J. Garcia, Gonzalez, Gutierrez, Herrera, Mendez, and Hoyt. It is further alleged at paragraph 15 of the complaint that about 26 November the Company permanently discharged the above-named employees. The Company acknowledges the above employees were notified in writing, on that date, that they were perma- nently laid off. Inasmuch as there is no dispute with respect to the fact the employees in question were laid off, first on a temporary and then later on a permanent basis, I shall examine the motives behind and the alleged necessity for the layoffs. In doing so, I shall examine the union activi- ties of the laid-off employees, whether the Company knew of those activities, and whether those activities played any part in the Company 's decision to have a layoff. Finally, I shall examine the Company's contention that the layoffs were brought about by economic necessi- ty. 1. Events leading up to employees' union activities at the Company Licon credibly testified that he and approximately 15 other employees met after work at Chiquita Park in Corpus Christi, Texas, in late June to discuss problems they perceived existed at the Company . They discussed wages, sick leave, supervision, and other related matters. Licon testified they also decided to attempt to arrange a meeting with President Hewitt or Plant Manager Carrier to discuss their problems. He said they also decided to contact a union for assistance. Licon stated that the next day the same 15 employees met with Plant Manager Carrier and Supervisor Elizadle. Licon testified Carrier told the group the Company was trying to put together a plan for an across-the-board HORTON AUTOMATICS wage increase for all employees, and promised to look into their other concerns. However, Plant Manager Car- rier told them: [T]his was America, this was a free country, and if we didn't like it there was the door. There was other opportunities you know, other places. That times were hard for the company to increase our pay rates. Licon stated he thereafter on 16 July contacted Inter- national Union Representative Martinez via telephone and arranged to meet with him later that afternoon at a local motel. They discussed the various departments at the plant and some of the problems the employees were experiencing.33 Licon stated little else was accomplished at the meeting with Martinez, however, in early October he and others started to solicit employees to sign union authorization cards. According to Licon a union volun- tary organizing committee was established and the Com- pany was notified in writing on 21 October of the exist- ence of the Union's in-plant committee. The letter of no- tification sent to the Company listed nine voluntary or- ganizing committee members. 34 Inasmuch as none of those on the voluntary organizing committee were laid off, I shall carefully examine the union activities of those who were laid off and attempt to ascertain if the Compa- ny was aware of any such activities on their part. 2. Union activities of laid-off employees Carreon testified he wore a "Yes IUE" button at work three to four times per week starting in mid-October. He stated his immediate supervisor Elizadle saw him wear- ing the prounion buttons. Carreon testified he handbilled for the Union at the plant four or five times before the layoff. He testified he saw Davis and Gutierrez leafleting prior to the layoff. Carreon stated Plant Manager Carrier observed them leafleting each time they did so. Davis testified he became involved with the Union shortly after he was hired and wore a union T-shirt to work two or three times during the 2 weeks before his layoff. He stated his supervisor, Elizadle, saw him four or five times and Plant Manager Carrier a couple of times each time he wore his prounion T-shirt. Davis also said he wore IUE buttons and leafleted in the parking lot, or inside the plant during breaktimes, six or seven times prior to his layoff. DeLeon testified he commenced wearing union T- shirts, hats, and buttons in mid-October and did so almost every day until he was laid off. He stated he lea- fleted at the plant once or twice per week in the morn- ings and after work from approximately early October until he was laid off. DeLeon stated Gonzalez, among others, leafleted with him prior to the layoff. He stated Supervisor Elizadle observed them each time they lea- fleted and Plant Manager Carrier saw them almost every time they leafleted. 33 Others present at the meeting were Janie Garcia (Licon's sister-in- law who is the president of Union Local 1029) and Josie Vela (a friend of Licon's) 34 None of the nine listed on the letter were among those laid off on 10 November 415 J. Garcia testified he wore prounion buttons daily and prounion sun visors and T-shirts at work every other day starting in late October. He stated he was observed by his supervisor, Elizadle, daily and by Plant Manager Car- rier just about every day that he wore the union-related items. J. Garcia testified he, Gutierrez, Davis, Gonzalez, and others leafleted at the plant starting in late Octo- ber .35 He said Plant Manager Carver observed them each time they leafleted. Gutierrez testified he wore a union T-shirt or union button three times per week for approximately 4 weeks before he was laid off. He stated Plant Manager Carrier, Superintendent Castillo, and Supervisor Elizadle saw him wearing the union-related items. Gutierrez testified he, along with Mendez, J. Garcia, Carreon, and Herrera, leafleted outside the plant prior to the November layoff. He asserts Plant Manager Carrier observed them doing so. Mendez testified he wore a union T-shirt approximate- ly twice and union buttons four or five times at work starting in the second week in October.36 He stated his immediate supervisor Cruz as well as Plant Manager Carrier observed him wearing the union related items. Mendez testified he as well as Carreon, Gutierrez, and others leafleted at the entrance to the plant parking lot prior to the layoff. He stated they were observed doing so by Plant Manager Carrier. Vasquez testified he wore a union button just about every day starting around 9 October and a union T-shirt twice a week commencing about that same time. Vas- quez stated President Hewitt and Plant Manager Carrier observed him doing so. Vasquez testified he and other employees leafleted at the plant from mid-October until December. He stated all the laid-off employees, includ- ing Hoyt, leafleted prior to and after they were laid-off. A. Gonzalez testified that he and others including Car- reon, J. Garcia, DeLeon, and Gutierrez leafleted at the plant several times prior to the 10 November layoff. A. Gonzalez stated Plant Manager Carrier or Supervisor Howski always observed them with Carrier doing so more often than Howski. Champion testified he and others including J. Garcia leafleted at the plant prior to the layoff. Champion stated that "most of the time" Plant Manager Carrier observed the leafleting. 3. Company knowledge of union activities of laid- off employees Supervisor Howski, who did not supervise any of the laid-off employees'37 testified he never saw any of those who were laid off wearing or displaying any union-relat- ed items, such as T-shirts, buttons, hats, or stickers. Howski acknowledged leafleting took place before the employees were laid off, but he asserted he never saw 35 He said he leafleted six or seven times before the layoff 33 He said the T-shirts had "IUE a Great Union" on them and the union buttons read "Vote Yes" or "Proud To Be IUE " 97 Howski testified Mendez was on loan to his department prior to the layoff He said he saw Mendez leafleting at the plant but that it was after the layoff 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any of those who were laid off, that he knew, participat- ing in the leafleting prior to the layoff.38 Supervisor Cruz testified that two of the laid-off em- ployees, Hoyt and Mendez, worked under his supervi- sion. Cruz stated Hoyt never did anything that indicated to him that Hoyt favored the Union. He, however, stated he believed from things Mendez said that he favored the Union. Cruz observed employees wearing union T-shirts at the plant, but he could not recall if it was before or after the layoff took place. Cruz testified he knew certain of the laid-off employees by sight only, and that of those he knew by sight only, he never observed them leafleting at the plant. Cruz, however, acknowledged on cross-ex- amination that he could not describe what laid-off em- ployees Carreon, Davis, DeLeon, Gonzalez, Gutierrez, or Herrera looked like. Cruz further acknowledged on cross-examination that on the days when there was lea- fleting he only observed it for approximately 1 minute or less as he was on his way to his car in the parking lot. Elizalde testified he supervised seven89 of the laid-off employees and he said he never saw any of them40 lea- fleting prior to the November layoff. He said he saw Herrera, Davis, and J. Garcia handbilling after they were laid off. He testified the first time he saw employ- ees wearing union T-shirts was around Thanksgiving after the layoffs had taken place.41 Elizalde stated he had seen union buttons and stickers in the plant prior to the layoff. Plant Manager Carrier stated he positioned himself so as to be able to observe the leafleting every time it oc- curred at the plant. He said the leafleting first started sometime between 9 and 22 October and that Interna- tional Union Representative Martinez along with some employees on the voluntary organizing commmittee lea- fleted once or twice a week before the layoff and some- times as much as three times per week after the layoff.42 When asked by company counsel if he knew in early No- vember the position of the laid-off employees with re- spect to whether they were for or against the Union, Carrier answered, "I don't know . . . I would say no. No, I didn't know." It is without dispute that the Company knew of the Union's presence at its facility from 9 October for- ward.49 The Company was notified in writing about 21 October which of its employees were on the Union's vol- untary organizing committee. Further, it is undisputed the Union engaged in leafleting activities at the entrances to the plant on various occasions starting in October. There is dispute with respect to the critical question of whether the employees that were laid off engaged in any 38 Howski said he saw Mendez, Davis, and Herrera leafleting after they and the others were laid off. He acknowledged he could not de- scribe what the other seven employees who were laid off looked like 29 He supervised Carreon, J. Garcia, Gonzalez, Davis, DeLeon, Her- rera, and Gutierrez 40 He acknowledged on cross-examination he never stood around and observed the handbillmg when it took place except for the 2 or 3 minutes it took him to walk from the plant to his car after work 41 He stated he observed J Garcia and Herrera wearing them at that time 42 Carver stated the first time he saw any employee leafleting that was not on the voluntary organizing committee was after the layoff 43 President Hewitt, for example, testified he received correspondence on that date relating to a petition for the Union union activities prior to their being laid-off, and whether the Company was aware of any such activities on their part. The overwhelming weight of the evidence persuades me that each of the 10 laid-off employees engaged in ac- tivities on behalf of the Union, prior to their being laid off, and that the Company knew of their activities. Vas- quez testified, and I credit his testimony, that all 10 of the laid-off employees leafleted at the plant prior to their being laid off. I note that Plant Manager Carrier ob- served all leafleting .44 International Union Representa- tive Martinez corroborated Vasquez' testimony that all 10 of the laid-off employees leafleted at the plant prior to their being laid off. Carreon, Davis, DeLeon, J. Garcia, Gutierrez, Mendez, A. Gonzalez, Champion, and Licon collectively corroborated Vasquez' testimony by identi- fying the same 10 individuals in the process of leafleting at one time or other prior to the layoff.45 Although it is conceivable that all 11 of the above witnesses called by counsel for the General Counsel contrived their testimo- ny or were mistaken regarding what they testified about, however, that is highly unlikely. As noted in Fred Stark, 213 NLRB 209, 214 (1974), the likelihood of perjury or mistake becomes more remote in direct or geometrical proportion to the number of persons who testify to a fact. Further evidence of the Company's knowledge of the union activities of its laid-off employees is demon- strated by the fact Carreon wore a union button two to three times a week starting in October and Supervisor Elizadle observed him doing so. Davis wore union but- tons and T-shirts and Elizadle also observed him doing so. DeLeon wore union buttons, T-shirts, and hats until the layoff. J. Garcia wore union buttons daily and union T-shirts and sun visors every other day and was ob- served by Supervisor Elizadle daily and Plant Manager Carrier almost every day. Gutierrez wore a union T-shirt or union button three times per week during the 4 weeks before he was laid-off and Plant Manager Carrier ob- served him doing so. Mendez wore a union T-shirt twice before being laid off and union buttons approximately five times in mid-October. The buttons Mendez wore read "Vote Yes" and "Proud To Be IUE" and the T- shirts he wore read, "IUE a Great Union." I note Mendez' testimony comports with International Union Representative Martinez' testimony that he distributed union T-shirts, buttons, and related items to the employ- ees in the second week of October with the words, "Proud To Be IUE" on some of them. Hostility for and knowledge of the laid-off employees organizing activities is further demonstrated by various 44 In light of all the record evidence I am unwilling to credit Plant Manager Carrier's testimony that the first time he saw any nonvoluntary organizing committee employees leafleting was after the employees had been laid off I likewise do not credit Supervisor Ehzadle's testimony that he never saw any of the 10 employees who were laid off leafleting prior to their being laid off 45 I place no reliance on or give any weight to Supenvsor Howski's and Supervisor Cruz' testimony that they did not observe any of the laid- off employees leafleting prior to their being laid off. None of the laid-off employees worked for Howski and he was unable to give a description of 7 of the 10 that were laid off Cruz only observed the leafleting for a minute or less on those days when there was leafleting and he could not describe 6 of the 10 laid-off employees HORTON AUTOMATICS of the unfair labor practices the Company engaged in prior to the 10 November layoff. The Company, immedi- ately after it received word of the existence of the volun- tary organizing committee , created a parts runner posi- tion in Supervisor Elizadle's department for the purpose of interfering with its employees' right to self-organiza- tion by keeping them from "talking too much about the Union." Supervisor Elizadle told Licon , in late October or early November, that a layoff was coming at the plant because of the employees' union activities. Superintend- ent Castillo conveyed to the fabrication and assembly de- partment employees the clear impression that the 10 No- vember layoff was tied to their union activities when he, in the presence of Supervisor Elizadle , told them the Company would not follow its past practice of laying the employees off for 1 day a week over a period of time inasmuch as the Company was now the "bad guys." On 8 November Supervisor Elizadle told DeLeon and J. Garcia he doubted they would be recalled from layoff because of the employees' union activities. 4. Counsel for the General Counsel' s prima facie case Considering all the facts thus far discussed, I am con- vinced, as urged by counsel for the General Counsel, that the Company was motivated , in part, to have a layoff by its hostility for and animus toward the organiz- ing activities of its employees. Additionally, there is substantial postlayoff evidence of the Company's animus toward the organizing activities of its employees. Such evidence further demonstrates the 10 November layoff was, at least in part, motivated by antiunion considerations. For example, the Company through Supervisor McKane announced in November and, for a time during the union campaign and following the Board-conducted election, enforced a rule that limited the amount of washup time employees could have off the work floor for discussing union matters. On 26 November the Company notified the laid-off employees that their temporary layoff was permanent. The Company contends it sent the 26 November notifi- cation letters not only so the employees would know they were permanently laid off but also to inform them they needed to obtain health insurance elsewhere and so they and particularly F. Gonzalez would seek employ- ment elsewhere. I reject the Company's contention that those were its reasons for sending the letters in question. I am persuaded that the Company's real motivation for sending the letters, which converted the layoff from a temporary to a permanent one, was to preclude 10 known union supporters from voting in the 12 December election. I reject the Company's contentions with respect to the letters for several reasons. First, according to President Hewitt, the layoff was to be governed by plant rules. Plant rules reflect that the laid -off employees would have recall rights for 1 year unless their total se- niority was less than that time . Therefore, the employees were already aware of their recall rights. Prior to the layoff the employees had been informed by the Company that it would continue their insurance coverage for 30 days. Thus there was no need for the Company to fur- 417 ther inform its employees of their recall rights or insur- ance coverage . Plant Manager Carrier testified he was concerned about F. Gonzalez , who is handicapped, not looking for work. Carrier stated F. Gonzalez' public agency counselor had told him F . Gonzalez was not looking for work because International Union Represent- ative Martinez had assured F. Gonzalez he would be re- called to work quickly. Martinez credibly denied ever telling F. Gonzalez he would be quickly recalled to work by the Company. Other of the Company's postlayoff conduct that re- flects on its motivation is that on 1 December Supervisor Elizadle told Licon the laid-off employees were terminat- ed and would not be eligible to vote in the Board-con- ducted election because of their union activities.46 In agreement with counsel for the General Counsel, I am persuaded the evidence establishes that not only was the initial layoff motivated by union animus , but the Company's decision and announcement that the layoffs were permanent came about as a result of the Company's desire to preclude its laid-off employees from voting in the 12 December Board-conducted election. On 10 December the Company further demonstrated its strong union animus when President Hewitt deliber- ately engaged International Union Representative Marti- nez in an angry confrontation in the presence of many employees that resulted in his son , Engineering Manager D. Hewitt, physically assaulting Martinez.47 Such ac- tions clearly alerted the employees that the same fate could befall them if they continue to support the Union. At this same confrontation Plant Manager Carrier told the employees that those who had been laid off would not be considered for recall because he would see to it. Still further evidence of the Company's overall moti- vation for its actions is demonstrated by Plant Manager Carrier's comments to employee Champion about his wage review. Carrier told Champion on 10 December that he was glad Champion had gotten a good review that resulted in a wage increase because if the employees voted the wrong way in the 12 December Board-con- ducted election they would not be getting any more fa- vorable wage reviews. On 11 December Plant Manager Carrier asked Lewis about his personal sympathies toward the Union for no valid or justifiable reason. Still further evidence of the Company's motivation is demonstrated by the fact that on 12 December it chal- lenged the right of all the laid-off employees (except Hoyt who did not vote) to vote, when they attempted to do so in the Board-conducted election, on the grounds the employees were permanently laid off with no reason- able expectancy of recall. In agreement with counsel for the General Counsel, I find the evidence demonstrates the Company continued to exhibit strong union animus even after the Board-con- ducted election . For example, on 14 January 1987 Presi- 46 I note Superintendent Castillo was told by Plant Manager Carrier after the employees were permanently laid off that they could not vote in the election 47 The Board has long abhorred violence as a means of attempting to achieve one's goals in labor relations See, e g., Jones & Laughlin Steel Corp, 1 NLRB 503 (1936). 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dent Hewitt spoke to all the employees and demanded to know who was supplying the Union with information on which the Union was filing charges against the Compa- ny. Hewitt even specifically singled out an employee in the group in his attempt to ascertain who was supplying information against the Company. President Hewitt told the assembled employees he did not want them to sign each other up for the Union on company property and directed them to stop doing so. Immediately after his meeting with all the employees President Hewitt singled out Licon and Vasquez for a meeting with him and Plant Manager Carrier in Hewitt's office. President Hewitt then asked the two if they were the ones supplying infor- mation to the Union. Hewitt told the two if there were further union activities at the Company he wanted to be notified so he would not be caught off guard. Hewitt even asked and Vasquez told him they had been attempt- ing to get employees to sign dues authorization cards before work and on their break and lunch times. Hewitt told the two they were doing it on "Company property" and he wanted it stopped. Vasquez promised Hewitt he would stop doing so. Supervisor Elizadle voiced the Company's continued animus toward the Union on 6 March 1987 when he told certain employees, who were discussing how long it would take to negotiate a collective-bargaining agree- ment, that it would take at least 2 years and even then their efforts would be futile because the Company could delay the matter further by changing its name or relocat- ing its facility and such actions on its part would do away with the Union. In view of the foregoing I find counsel for the General Counsel has established a prima facie showing sufficient to support the inference that protected conduct as a "motivating factor" in the Company's decision to lay off its employees on 10 November. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), citing with ap- proval Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Counsel for the General Counsel demonstrated union activity by all 10 of the laid-off em- ployees in that they each had leafleted at the plant prior to their being laid off. A large percentage of them had worn or displayed union insignia of one kind or another at the plant prior to their being laid off. The Company collectively, through President Hewitt, Plant Manager Carrier, Superintendent Castillo, and Supervisor Eliza- dle, knew of their union activities. The Company's strong union animus has been demonstrated through the many unlawful acts the managers and supervisors com- mitted prior to and after the employees were laid off. The timing of the layoff, which took place approximate- ly 4 weeks before the Board-conducted election, coupled with the stated reasons for the layoff, convincingly dem- onstrates the Company's motivation for having the layoff was to preclude these 10 known union supporters from voting in the Board-conducted election that was held on 12 December. Once counsel for the General Counsel makes a prima facie showing, such as she has done herein, that protect- ed conduct was a motivating factor in the employer's ac- tions against its employees, the burden shifts to the em- ployer to demonstrate that it would have taken the same actions it did even in the absence of the protected con- duct on the part of its employees. The employer's prof- fered basis must be proved by a preponderance of the evidence. 5. The Company's economic defense for reducing its work force on 10 November The Company's assertion that its 10 November tempo- rary layoff, which was thereafter made permanent on 26 November, was economically justified does not with- stand close scrutiny. The Company states, "1985 was a good year" in that its total net sales, which were $10,640,000, exceeded its projections.48 It however argues that it "never came close to achieving the'',success it had projected for .. . 1986." The evidence belies such a gloomy assessment of 1986. Although the Company never achieved its project- ed 26-percent growth in sales for 1986, it did accomplish a 14.8 percent increase in, net sales for that year over 1985. The total net sales for 1986 were $12,214,000.49 Thus if 1985 was "a good year" it is difficult to validly conclude that 1986 was a devastatingly bad one. During the last half of 1985 the Company maintained an average of 100 hourly employees per month. In the last 2 months of 1985 it employed 106 (November) and 107 (December) hourly employees. During the first 10 months of 1986 the Company maintained a monthly av- erage hourly work force of 102. In January 1986 it em- ployed 106 hourly employees and as late as September it employed 107 hourly employees. Plant Manager Carrier, who joined the Company in February 1986, testified it was evident to him at the time he came to the Company that it was overstaffed.50 He asserts the Company's 1986 staffing levels were based on its projected 26-percent growth in sales. Plant Manager Carrier's assertion the Company was overstaffed in 1986 does not square with a number of established facts. First, the evidence shows the Company's staffing levels through Octoberb t were in keeping with its staffing levels for the last half of 1985, which was at a time when the Company was doing 14.8 percent less. Second, the Company hired 13 new hourly paid employees between June (some 4 months after Car- rier became plant manager) and October .52 If a genuine 48 The Company had projected $9,697,000 in net sales for 1985. 48 The Company had in its most recent monthly type predictions pro- jected $13,500,000 in net sales for 1986 However, in its "Five Year Stra- tegic Plan (1984-1988)" it set "mmunum sales increase of 15% per year" goals. The Company, with its 14.8-percent net sales growth in 1986, was on target with respect to its long-term projections. In that same 5-year plan the Company projected net sales for 1986 at $9,520,000. Its 1986 net sales exceeded that prediction by well over $2 . 5 million. so Career testified he, from the beginning of his employment, dis- cussed the Company's overstaffing problems with Superintendent Cas- tillo. Superintendent Castillo credibly stated he could not recall any such conversation prior to the layoff addressed herein . In fact, Superintendent Castillo testified he "wasn't totally sure" the Company could fill its orders without the laid-off employees. 61 It was in October that the Company learned of union activities at its facility. 68 Plant Manager Carrier indicated he was unaware of any manufac- turing employees being hired during the time period in question. Howev- er, after being confronted with documentary evidence to the contrary, he Continued HORTON AUTOMATICS overstaffing problem had existed, I am persuaded the Company would not have continued, up until October, to have hired new employees in order to maintain its hourly work force at levels in excess of 100 employees. Third, no conclusive evidence was presented to support Plant Manager Carrier's assertion that the new facility (that opened in August) enhanced productivity and less- ened the need for employees. The Company asserts a number of things occurred in the summer of 1986 that demonstrates its subsequent ac- tions were not motivated by union considerations. For example, Sales Manager Salinas prepared a memorandum on 16 June for President Hewitt in which he pointed out: As you are aware, we are having one terrible time in filling our schedule. I would like to say that working with Bob Carrier has really help[ed] lift the burden during this trying time. I still believe the surge of work is still around the corner and sched- uling should be settling down to projections and normal lead times soon [Emp. Exh. 6]. Salinas said he wrote the memorandum because they were unable to give the shop employees the 5 days' lead- time they needed from the time an order arrived at the plant until it went to the production floor. He explained they did not have the leadtime because of a decline in orders and a declining backlog. Notwithstanding the scheduling problems Salinas discussed, the Company hired two new manufacturing employees in June to re- place two that had quit.sa President Hewitt testified he was called to corporate headquarters in Dallas, Texas, in early July for a "very intense discussion" with Corporate Chief Officer Bob Haugh and Corporate Group Vice President Andy Schwitter. Hewitt testified Haugh told him, "your sales are falling off," "your profits are falling off," "you're not going to make budget," and added he wanted something done about it. Hewitt testified the Company thereafter reduced its advertising budget and postponed some of its advertising commitments and cut two marketing consult- ants. Notwithstanding the concerns raised by the Dallas Corporation, the Company hired four new hourly em- ployees in July. No hourly employees had been dis- charged or voluntarily quit during that month. I am per- suaded that if the Company's situation had been as dire as it contends it was, it would not have continued to have hired employees (13 in all) between June and the advent of the Union in October. On 30 October Sales Manager Salinas prepared a second memorandum for President Hewitt regarding the Company's declining business. In that memorandum Sali- nas stated. Our slide door backlog has dropped considerably over the last two weeks. Based on the orders on conceded hiring had taken place dung that time including the hiring of his daughter (an hourly paid manufacturing employee) in June If Carrier had been completely candid in his testimony , I think he would have re- membered that his daughter had been hired during the period in question 5 One of the two hired in June was Plant Manager Carver's daughter and the other was Davis 419 hand we are cutting back the vent factor 10% the first 3-1/2 days of November, and at this time it looks like we'll have to cut back an additional 10 percent over the next 5 days (week of November 10th). The vent count during the week of Novem- ber 10th will be at about 22 per day average. I'm hoping by the week of the 17th we can start scheduling back to the 28 per day average. I will keep you posted as we progress through the month [Emp. Exh. 7]. President Hewitt testified he penciled a message to Plant Manager Carrier across the top of Salinas' 30 Oc- tober memorandum that read, "Bob C. let me have your plan." Hewitt stated Plant Manager Carrier's response to the memorandum was to provide him with a list of em- ployees that could be laid off without adversely affecting the business. Certain factors raise very troubling concerns about Sa- linas' 30 October memorandum. First, it came within a relatively short time after the Company learned of union activities at its facility. Second, the Company was still in a hiring posture in October. It hired two new employees to replace two that had quit that month. Third, Salinas predicted the Company would be at a 22-per-day vent count in the second week in November and expressed hope it could start scheduling back to a 28-per-day vent production average in the third week in November. Sali- nas testified on direct examination that the Company tried to maintain, "something in the vicinity of 28 moving vents a day." On cross-examination he said that was what the Company had averaged over the past 9 to 12 months. The documents on vent production do not appear to support Salinas' testimony. For example, in 1985 the Company had approximately a 19.25 average daily vent count. Through October 1986 the Company had a 20.43 average daily vent count, and for all 1986 it had a 20.28 average daily vent count. In the first 3 months of 1987, the Company had a 19.16 average daily vent count.54 Thus, it appears the Company had never averaged 28 vents per day and that the vent production for November was in line with the 1986 average daily vent count and ahead of the 1985 daily count. Therefore, it appears the November layoff was based on something other than average daily vent production. Other factors support such a conclusion. The Company had never, in the past, resorted to a layoff where the employees were not thereafter recalled to work. Supervisor Elizadle's tes- timony that he had been having to rotate four to five employees per day during the 2 months before the layoff in order to keep them busy does not strengthen the Com- pany's economic defense because he acknowledged, on cross-examination, he had to do that during the previous year. 54 I arrived at the average daily vent count by taking the total vent count per year (Emp Exhs 8 and 9) and then dividing by the number of weeks in the year and the number of days per week. The Company pro- duced approximately 5005 vents in 1985 , approximately 5275 in 1986 (with approximately 4495 being produced between 1 January and 30 Oc- tober), and approximatley 1105 in the first 3 months of 1987 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I conclude the Company has not shown it would have laid off its employees on 10 November nor would it have permanently discharged them on 26 November absent their union activities.55 Compare Sogard Tool Co., 285 NLRB 1044 (1987). Accordingly, it follows that the Company's actions toward these 10 employees violated Section 8(a)(3) and (1) of the Act and I so find. CONCLUSIONS OF LAW 1. The Company, Horton Automatics, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union of Electronics, Electrical, Tech- nical, Salaried and Machine Workers, AFL-CIO, Dis- trict 11 is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the following conduct between about October 1986 and about March 1987, the Compa- ny committed the following unfair labor practices in vio- lation of Section 8(a)(1) of the Act: (a) Threatening its employees with layoff because of their union activities. (b) Telling its employees they would not be recalled from layoff because of their union activities. (c) Informing its employees that their layoff was tied to their union activities. (d) Promulgating and enforcing a rule limiting its em- ployees washup time for the purpose of limiting the amount of time they would have off the work floor for discussing union matters. (e) Establishing a parts runner position for the purpose of restricting its employees to their work stations so they could not discuss the Union among themselves. (f) Assaulting a union representative in the presence of its employees. (g) Threatening that its laid-off employees would not be considered for recall because of their union activities. (h) Coercively interrogating its employees about their union activities and desires. (i) Promulgating and enforcing an overly broad no-so- licitation rule. (j) Telling its employees that certain actions were taken against the laid-off employees because of their union activities and in order to preclude them from voting in a Board-conducted election. (k) Telling its employees it would be futile for them to select the Union as their collective-bargaining representa- tive. (1) Telling its employees there would not be any fur- ther wage increases if they voted for the Union. 4. About 10 November 1986 laying off and thereafter about 26 November 1986 permanently discharging Rene Carreon, Jon Eric Davis, Roy DeLeon, Carlos Garcia, Joe Garcia, Franklin Gonzalez Jr., Rolando Gutierrez, Abe Herrera, Manuel Mendez, and Leonard S. Hoyt be- cause of their sympathies for, and activities on behalf of, sa Although not essential to the findings herem , I note that during the first 3 months of 1985 the Company utilized 1142 hours of overtime In the first 3 months of 1986, it utilized 1361 hours of overtime However, in the first 3 months of 1987, it utilized 2517 hours of overtime. The ap- parent increase in overtime hours worked appears to explain how the Company continues its normal production with 10 less employees the Union, the Company violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. It having been found that the Company discriminatori- ly laid off and thereafter permanently discharged em- ployees Rene Carreon, Jon Eric Davis, Roy DeLeon, Carlos Garcia, Joe Garcia, Franklin Gonzalez Jr., Ro- lando Gutierrez, Abe Herrera, Manuel Mendez, and Leonard S. Hoyt, I shall recommend that it be ordered to offer them immediate and full reinstatement to their former positions or, if they no longer exist, to substantial- ly equivalent positions without prejudice to their seniori- ty or other rights and privileges previously enjoyed and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them with interest. Backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 298 (1950), with interest as computed in New Horizons for the Retard- ed.,66 Likewise it is recommended that the Company be or- dered to remove from its laid-off employees' files any reference to their having been laid off and notify them in writing this has been done and that evidence of that un- lawful action will not be used as a basis for any future personnel actions against them. Further it is recommend- ed the Company be ordered to cease giving effect to its overly broad no-solicitation rule. Finally, it is recom- mended the Company be ordered to post a notice to its employees attached hereto as "Appendix" for a period of 60 days in order that employees may be apprised of their rights under the Act and the Company 's obligation to remedy its unfair labor practices. Counsel for the Gener- al Counsel requested that a visitatorial clause be included in the Order. The evidence does not establish the neces- sity for such a clause . Accordingly, I deny that request. On these findings of facts and conclusions of law, and on the entire record, I issue the following recommend- ed57 ORDER The Respondent, Horton Automatics, Corpus Christi, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off, discharging, or otherwise discriminat- ing against any employee for supporting International Union of Electronics, Electrical, Technical, Salaried and 66 283 NLRB 1173 (1987) Interest will be computed at the "short- term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 57 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses HORTON AUTOMATICS 421 Machine Workers, AFL-CIO District 11, or any other labor organization. (b) Threatening employees with layoff because of their union activities. (c) Telling employees they would not be recalled from layoff because of their union activities. (d) Informing employees their layoffs were tied to their union activities. (e) Promulgating and enforcing a rule limiting its em- ployees washup time for the purpose of limiting the amount of time they would have off the work floor for discussing the Union. (f) Establishing a parts runner position for the purpose of restricting its employees to their work stations so they could not discuss the Union among themselves. (g) Assaulting representatives of the Union. (h) Threatening that its laid-off employees would not be considered for recall because of their union activities. (i) Coercively interrogating its employees about their union activities and desires. (j) Promulgating and enforcing an overly broad no-so- licitation rule. (k) Telling employees that certain actions were taken against its laid-off employees because of their union ac- tivities and in order to preclude them from voting in a Board-conducted election. (1) Telling employees it would be futile for them to select the Union as their collective-bargaining representa- tive. (m) Telling employees there would not be any future wage increase reviews if they voted for the Union. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Rene Carreon, Jon Eric Davis, Roy DeLeon, Carlos Garcia, Joe Garcia, Franklin Gonzalez Jr., Ro- lando Gutierrez, Abe Herrera, Manuel Mendez, and Leonard S. Hoyt immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to its unlawful layoff and discharge of Rene Carreon, Jon Eric Davis, Roy DeLeon, Carlos Garcia, Joe Garcia, Franklin Gon- zalez Jr., Rolando Gutierrez, Abe Herrera, Manuel Mendez, and Leonard S. Hoyt and notify them in writ- ing that this has been done and that these actions will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Corpus Christi, Texas facility copies of the attached notice marked "Appendix."58 Copies of the 58 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- notice, on forms provided by the Regional Director for Region 23, after being signed by the Company's author- ized representative, shall be posted by the Company im- mediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Company to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Compa- ny has taken to comply. al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activites. WE WILL NOT threaten you with layoff because of your activities on behalf of International Union of Elec- tronics, Electrical, Technical, Salaried and Machine Workers, AFL-CIO, District 11 or any other labor orga- nization. WE WILL NOT tell you that you will not be recalled from layoff because of your activities on behalf of the Union. WE WILL NOT inform you that your layoff was tied to your activity on behalf of the Union. WE WILL NOT promulgate rules that limit your washup time or restrict you to your work stations for the purpose of restricting you from discussing the Union. WE WILL NOT assault representatives of the Union. WE WILL NOT threaten that our laid-off employees would not be considered for recall because of their ac- tivities on behalf of the Union. WE WILL NOT coercively interrogate you regarding your union activities and desires. WE WILL NOT tell you that certain actions were taken against our laid-off employees because of their activities on behalf of the Union and in order to preclude them from voting in a Board-conducted election. 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT tell you it would be futile for you to select the Union as your collective-bargaining representa- tive. WE WILL NOT tell you there will not be any future wage increase reviews if you vote for the Union. WE WILL NOT lay off or discharge our employees be- cause of their support for, assistance to, or membership in the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Rene Carreon, Jon Eric Davis, Roy DeLeon, Carlos Garcia, Joe Garcia, Franklin Gonzalez Jr., Rolando Gutierrez , Abe Herrera, Manuel Mendez, and Leonard S. Hoyt immediate and full reinstatement to their former positions or, if their jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights or privileges previously en- joyed and WE WILL make them whole for any loss of earnings and other benefits they may have suffered as a result of our discrimination against them , less any net in- terim earnings, plus interest. WE WILL notify each of them that we have removed from our files any reference to their layoff and their layoff will not be used against them in any way. HORTON AUTOMATICS