Midessa Construction Co.

MIDESSA CONSTRUCTION CO. Midessa Construction Company and United Brother- hood of Carpenters and Joiners of America, Local Union 1428. Cases 16-CA-10895 and 16- CA-10938 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On February 8, 1984, Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions, as modified below, and to adopt the recommended Order as modified.3 The judge found, inter alia, that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off two teams of sheetrock employees on February 11, 1983:4 Thomas Gallegos Jr. and Cuahtemoc Anguiano; and Salvador Machuca and Anastacio Dominguez Jr.5 We agree with the judge as to the Machuca-Dominguez team, but we disagree as to the Gallegos-Anguiano team. The Respondent undisputedly knew that Galle- gos and Machuca had been leaders of, and that An- guiano had participated in, the January 25, 1983 protected strike protesting the Respondent's wage policies. It also demonstrated strong animus against these and other strikers by the various unfair labor practices described in the judge's decision, includ- ing the temporary firing of all strikers on January ' In light of the General Counsel 's withdrawal from consideration of certain portions of the answering brief, we deny the Respondent 's motion to strike the brief in its entirety 2 The Respondent has excepted to some of the Judges credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings x In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987 ), interest on and after January I , 1987, shall 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 Interest on amounts accrued prior to January 1. 1987 (the effective date of the 1986 amendment to 26 U S.C. § 6621), shall be computed in accordance with Florida Steel Corp. 231 NLRB 651 (1977) We shall modify the recommended Order to conform to the violations found and to include a general cease-and-desist provision 4 All dates are in 1983 unless otherwise indicated 5 The judge dismissed the complaint allegations regarding the other 12 employees laid off that day 269 25 and the demotion on rehiring of Machuca after the strike. On the other hand, the Respondent laid off em- ployees on February 11 for undisputedly legitimate economic reasons and contends that it selected em- ployees for layoff based on poor productivity, rather than seniority, a legitimate factor that had been consistently relied on in past economic lay- offs. The General Counsel has not excepted to the judge's finding that no inference of unlawful dis- criminatory motive can be drawn merely from the percentage of former strikers among those laid off.6 Consequently, as found by the judge, a criti- cal factor both in the evaluation of the General Counsel's prima facie case and in subsequent con- sideration of whether the Respondent would have taken the same action in the absence of union ac- tivities is whether the Respondent's reasons for se- lecting the individual employees for layoff with- stand scrutiny and, if not, whether an 'unlawful motive can be inferred. The judge's drawing of an inference of unlawful motive from rejection of the Respondent's poor productivity allegations regarding the Gallegos-An- guiano team directly contradicts his own revised finding that: (1) this team was unacceptably slow in taking 3 days to complete a furrdown assignment on February 8 to 10; and (2) a representative of the Respondent's chief customer had specifically com- plained about this situation. Even assuming a prima facie case of unlawful motivation and the validity of the judge's rejection of the Respondent's three other criticisms of this employee team's poststrike work, we find that the foregoing evidence of legiti- mate criticism and lack of evidence of disparate treatment negates the inference of unlawful motive. We, therefore, find that the Respondent has shown that it would have selected Gallegos and Anguiano for layoff even in the absence of their union activi- ties.7 The complaint regarding these two employ- ees is dismissed. On the other hand, relying particularly on Ma- chuca's prior unlawful demotion , we agree with the judge's credibility-based rejection of the Re- spondent's criticism of work by Machuca and Do- minguez and with his conclusion that their layoff was unlawful. The Respondent has argued that this team took too much time on a poststrike assign- ment of framing and sheetrocking a ClayDesta Bank elevator penthouse compared to the time spent prior to the strike by another sheetrock team 6 Twelve of the sixteen laid -off employees participated in the January 25 strike r See Wright Line, 251 NLRB 1083 (1980), enfd 662 F2d 899 (1st Cir 1981), cert denied 455 U S 989 ( 1982), approved in NLRB Y. Transporta- tion Management Corp., 462 U S. 393 (1983) 290 NLRB No. 39 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD working on another identical penthouse. The judge, however, discredited the testimony of the Respondent's Foreman Brown and found that Ma- chuca-Dominguez worked 6 days (rather than 9, as alleged by Brown) and that the other team worked 7-1/2 days (rather than 5, as alleged by Brown). Furthermore, the judge credited Machuca's testi- mony that Brown had said that the Machuca-Do- minguez team's work on the penthouse was "look- ing real good." Finally, it is undisputed that Ma- chuca was regarded by the Respondent as a good worker prior to the strike, and the judge again credited Machuca's testimony that he worked even harder after the strike. In light of the above and the absence of any credible evidence in support of the Respondent's criticism of the penthouse work, we agree with the judge that the General Counsel has proved the 8(a)(3) and (1) complaint allegations regarding the February 11 layoff of Machuca and Dominguez. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Midessa Construction Company, Mid- land, Texas, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Insert the following as paragraphs 1(g) and (h). "(g) Selecting employees for layoff because they engaged in union or other protected activities. To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interrogate you concerning your union or other protected activities. WE WILL NOT threaten to discharge you if you engage in activities on behalf of United Brother- hood of Carpenters and Joiners of America, Local Union 1428, or any other labor organization, or if you engage in other group action protected by the National Labor Relations Act. WE WILL NOT discharge you if you engage in a strike over wages or other economic matters. WE WILL NOT require discharged economic strikers to fill out new employment applications and be reevaluated at the time of rehire, as if they were new employees. WE WILL NOT demote you because you engage in union or other activities protected by the Act. WE WILL NOT select you for layoff because you engage in union or other activities protected by the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole the below-named employ- ees because it has been found that we unlawfully discharged them on January 25, 1983: "(h) In any like or related manner interfering Cuahtemoc with, restraining, or coercing employees in the ex- Anguiano Ezequiel Mata ercise of the rights guaranteed them by Section 7 Avitio A. Carrillo Mario Matta of the Act." Jesse R. 2. Delete the names of Thomas B. Gallegos Jr. Dominquez Kevin Nichols and Cuahtemoc Anguiano from paragraph 2(b). Anastacio 3. Substitute the attached notice for that of the Dominquez Jr. Derrill Pope administrative law judge. Alvaro Fuentes James Pope Thomas B. APPENDIX Gallegos Jr. Louis Rodriguez NOTICE To EMPLOYEES Joe Gaitan James Rowe POSTED BY ORDER OF THE Bill Gleason Dale Smith Bill Leasure Elivorio Soto NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Victor Leija Orvie Springs Salvador Machuca Mike Tapia The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union WE WILL offer Anastacio Dominguez Jr. and Salvador Machuca immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of employment or, if no work is available or if they would have been included in any subsequent lay- offs, then WE WILL establish a preferential hiring MIDESSA CONSTRUCTION CO. list for the employees and offer them reinstatement before hiring or recalling others when we resume hiring, without prejudice to their seniority or other rights or privileges previously enjoyed. WE WILL make Anastacio Dominguez Jr. and Salvador Machuca whole for any loss of earnings or other benefits resulting from their unlawful layoff on February 11, 1983, less any net interim earnings, plus interest. WE WILL remove from the personnel files of the above employees any reference to the terminations on January 25, 1983, and layoffs on February 11, 1983, and WE WILL notify each of them in writing that we have done so and that evidence of the un- lawful discriminatory actions will not be used against them in any way in the future. MIDESSA CONSTRUCTION COMPANY Ruth Small and Olivia Garcia, Esqs., for the General Counsel. Charles C. High Jr. and Michael D. McQueen, ' Esgs (Kimp, Smith, Duncan & Hammond), of El Paso, Texas, for the Respondent. Jim Purcell, of Midland, Texas, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This case was tried before me in Midland, Texas, on eight dates beginning June 6 and closing July 27, 1983, pursu- ant to the April 6, 1983 consolidated complaint (com- plaint) issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 16 of the Board . The complaint is based on charges filed January 31 and March 2, 1983, in Cases 16- CA-10895 and 16-CA-10938, respectively, by United Brotherhood of Carpenters and Joiners of America, Local Union 1428 (the Union or Local 1428) against Midessa Construction Company (Respondent or Midessa).11 Did Midessa Construction Company discriminate against its former striking employees by selecting 12 of them for layoff on February 11, 1983, because of their protected strike and union activities (as the General Counsel alleges), or was Midessa motivated by a desire to correct work deficiencies and eliminate its least pro- ductive workers as it struggled to survive an economic crisis (as the Company contends)? That general question, plus subsidiary issues, is presented for resolution here. In the complaint the General Counsel alleges that Re- spondent violated Section 8(a)(1) of the Act by interro- gating employees, harassing them, threatening them with discharge, and disparately enforcing work rules relating to production, breaks, and lunch periods, and Section 8(a)(3) of the Act by terminating certain employees on January 25, 1983, requiring them to fill out new applica- ' All dates are for 1983 unless otherwise indicated. 271 tions when recalled, and terminating certain employees on February 11, 1983. By its answer Respondent admits certain factual mat- ters but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Midessa Construction Company, a Texas corporation with its principal office and place of business in Midland, Texas, does acoustical and drywall work as a subcontrac- tor in the building and construction industry . During the past 12 months Midessa purchased and received, at its Texas facility, goods and materials valued in excess of $50,000 directly from points outside the State of Texas. Respondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that United Brother- hood of Carpenters and Joiners of America, Local Union 1428 is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview On the morning of January 25, 1983, some 25 to 30 employees of Respondent gathered at the gate to one of Midessa's jobsites and refused to go to work. They wanted higher pay. Timing of the strike was unfortunate, for Midessa was experiencing a double whammy of (1) cost overruns and (2) customer dissatisfaction with qual- ity and progress on Midessa's construction jobs. Whether Respondent fired the strikers on January 25 is one of our first issues. In any event, Midessa rehired them a few days later to lay off 16 employees 12 of whom were re- called strikers) on February 11, assertedly for economic reasons. Although the General Counsel does not allege that the layoff itself was illegal , he does contend, through his trial attorneys, that Respondent was unlawfully motivated in the selection it made for the layoff. Of the 16 employees so terminated, 12 had been strikers. Moreover, the Gen- eral Counsel's argument continues, Respondent demon- strated animus against the strikers after they returned to work by, among other conduct, burdening them with higher production standards and disparately enforcing work rules against them. Countering the General Counsel's animus and harass- ment contentions, Midessa argues that its tighter enforce- ment of preexisting work rules and imposition of in- creased productivity standards were steps adopted to help save the Company from economic disaster. Re- spondent defends its layoff selection on the ground that the employees were picked in the usual fashion-the 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD least productive were elected for separation. In this se- lection process, a point Midessa considered was the (dis- puted) fact that some of the strikers selected had en- gaged in a slowdown after their return to work. B. Background 1. Midessa and its construction jobs Respondent is a commercial drywall and acoustical subcontractor. Max H . DeVilbiss, president of Midessa, established the firm in June 1978 (Tr. 274, 932). DeVil- biss explained that drywall work consists of installing the metal stud framing , plus any insulation, and hanging the sheetrock on the metal studs. The acoustical work in- volves installing ceiling frames in the form of metal grids, placing the insulation above that , and applying the acoustical pads (Tr. 275). Assisting DeVilbiss in the man- agement of his firm are General Superintendent Joe Beasley, Office Manager Warren Brown , and a job fore- man in charge of each job (Tr. 294, 933). Around January-February 1983 Respondent had about a dozen jobs under construction in the Midland-Odessa, Texas area. Nearly all the jobs were in Midland, with one being in Odessa, and another job (First State Bank) being in Abilene, Texas . There were about 100 drywall employees on Respondent's payroll at this time. The names of some of the Midland jobs appear frequently in the record . The more prominent ones are : Gulf Building, Dinero Plaza, Petroleum Center North (Petro North), and ClayDesta Bank Building (Tr. 277-278, 281, 938). 2. Unfavorable conditions develop Around mid-January 1983 Respondent became aware of two developments. First, the financial condition of Midessa was starting to deteriorate "rapidly," and second, Area Builders Inc., Midessa's chief customer, wrote DeVilbiss a strongly worded letter complaining of poor quality (Tr. 933, 943). Although DeVilbiss never specified which of the two conditions came to his atten- tion first, it appears that the letter, dated (Wednesday) January 12, probably did, for DeVilbiss testified it was about the third week of January that he began preparing a list of the jobs he was concerned about (Tr. 934, 990, 994). The letter of January 12, 1983, if from Ray Dunlap, Area Builders' general superintendent, to Midessa re- garding the Dinero Plaza job (R. Exh. 13).2 The text reads: Dear Max, Attached hereto are 5 invoices from T & M Paint Co. for corrective work done due to your work not being done correctly. I suggest you get with Ralph Madry and resolve this directly with him and advise me accordingly. Max, I know personally that Kenneth Key has many times complained about your quality of work and lack of supervision . My personal contact with the job verifies that this condition has existed. You cannot afford this kind of operation and cannot tol- erate it . The workmanship and supervision on this job is the worst I have seen in all your work done for us; however your quality has been poor in other instances. As you know, several proposed lease areas are now being considered . If you are not prepared to correct the problems above described , there is no need to start . We absolutely and positively will not accept or tolerate continuation of this situation. I was also at the Parker Building yesterday and instructed Kevan Amonett to refuse to let you in- stall sheetrock on this job until you have straight- ened the walls. By copy of this letter, I am also ad- vising him to check all your future walls before they are sheetrocked, bedded and taped. I do not see how you can keep from insisting and demanding that your people provide a straight wall, but if you can't-I can! There are times on various jobs where work is required to be done on Saturday . This sometimes occurs due to your lack of progress , ours, nature of the job or other conditions. In the past you have re- fused to do so. Certainly I want you to know that I honor and respect your belief and in no way would I discriminate against it; however there are just simply times that work must be performed on Sat- urday. My personal belief is Sunday as being the Lord's Day, however if necessity demands, I per- sonally will work on Sunday and will ask others to do so. I am not asking you to do anything that I myself would not do. I regret the necessity of having to write a letter of this nature of criticism. I hope you will accept it as being constructive-for your benefit and for ours. Sincerely yours, AREA BUILDERS, INC. Ray Dunlap General Superintendent After receiving this letter, DeVilbiss, I find, compiled his job list.3 The list contains the names of 20 jobs (R. Exh. 9). DeVilbiss discovered that labor costs were a major problem, for Midessa was spending about $1.50 to get $1 worth of production (Tr. 933). Midessa lost about $100,000 on the Dinero Plaza job. Expressing the obvi- ous, DeVilbiss testified that Respondent\would be bank- rupt if all its jobs ended as Dinero (Tr. 939). DeVilbiss testified that of the 20 jobs show on the list he compiled, 17 were either complete or substantially so (Tr. 934, 979). The jobs with significant work left were the Gulf Building, ClayDesta, and Petro North (Tr. 978, 1000). Although Dinero was not completed until late May, and not accepted by the owner until July, that was because Midessa had to do a lot of corrective work on 2 DeVilbiss testified that Area Budder is Midessa 's biggest customer. In addition to the Dmero Plaza project , Area Builders was the general contractor on the Petroleum North and ClayDesta Plaza ,lobs, plus others, where Midessa was working (Tr 944) a It is clear that Dunlap '% letter set off alarm bells at Midessa Respond- ent could not afford to lose its position as a subcontractor for Area Build- ers MIDESSA CONSTRUCTION CO. the job (Tr. 939, 992, 999). DeVilbiss testified that a sub- contractor has to absorb the cost of his own mistakes (Tr. 996). The job list contains five columns of data: name of each job, the budgeted cost figure , the amount of budget dollars remaining (or exceeding budget), and the cost as a percentage of the budgeted figure .4 Thus, DeVilbiss testified, 100 percent means that the job, if complete, is right on line with the budget target (Tr. 935). However, the list does not reflect the stage of each job (Tr. 991). The percentage figure of ClayDesta at 68, being 32 per- cent under the budget target , would be reason to cele- brate if the job were 98 percent complete, but cause for gloom if the job were at only the 25-percent completion stage. In fact, testified ClayDesta Job Foreman Marvin Brown, the ClayDesta job was about 50-percent com- plete, yet 68 percent of the budgeted cost had been used (Tr. 1034).5 DeVilbiss testified that ClayDesta was a little behind, "but not so much that we, couldn 't catch up." His concern was that if the job exceeded budget, as Northwest Elementary or Dinero Plaza had done, then Midessa was "in a heap of trouble." (Tr. 992.) Dinero, basically complete (Tr. 992), is listed at 155 percent of budget; Northwest Elementary , complete or substantially so, at 311 percent. Perhaps it should be noted that the last four jobs on the list, Dinero, Gulf, ClayDesta, and Petro North, were also Midessa's biggest in terms of budget dollars.° Gulf is the largest, at over $313 ,000, ClayDesta second, at over $196,000, Dinero third, at just over $100,000, and Petro North fourth, at over $69,000. Ten of the other sixteen weigh in at less than $5500 each . The remaining six aver- age about $30,000 each. Excluding Gulf, ClayDesta, and Petro North only three of the other jobs finished within the budgeted labor cost. The largest of those three was for $17,486, the smallest was for $291 , and the third was for $1064. Because of DeVilbiss' testimony that Midessa keeps a running total for its labor costs on these jobs (Tr. 942, 993), his assertion that the Company 's financial condition began to "deteriorate rapidly" in January 1983 is not to be understood as something that happened over a week- end. Rather, it seems clear that DeVilbiss suddenly real- ized, on compiling his running totals into a chart, that Midessa's financial condition was on a downhill slide. This financial analysis by DeVilbiss was preceded, I have found, by the letter from Ray Dunlap, the general superintendent of Area Builders, Inc. DeVilbiss, faced with the economic threat to Respond- ent inherent in both Dunlap's letter and the job cost fig- 4 DeVilbiss testified that the budget figure does not include profit or overhead (Tr. 935). It appears that the figures are in terms of direct labor costs only (Tr 934-935, 942) 5 Foreman Brown confirmed that his estimate of the completion stage of the job came from his knowledge of the job, and not from anything on the tabulated list (Tr. 1094) As earlier noted, the budget figures relate only to direct labor costs, or, as DeVilbiss phrased it, "raw" labor costs (Tr. 934, 935, 942). The listed budget is not an accounting budget. DeVilbiss testified that he bids a job by first listing the "raw" cost of labor and material (the list here apparently does not include the cost of material ), and then adds "taxes, insurance, overhead , profit, and that gives us our total for us to bid the job at." (Tr. 942 ) 273 ures, addressed his own letter, dated January 24, to Midessa's employees. He personally posted a copy at ClayDesta and Petro North on that same day, and at the other jobsites the next morning . He showed the job fore- men the job cost tabulations, told the foremen to read the letter to the employees, and to get more productivity and quality from the (Tr. 944a-945). The January 24 letter (with two typographical misspellings corrected) reads (R. Exh. 8): To All Employees of Midessa Construction Co. We have been receiving in the office many com- plaints about a lack of quality workmanship on our various jobs. I have personally inspected many jobs and found poor quality . I have also noticed in many cases there was hardly any forward production be- cause most of the crew was fixing walls, ceilings and other components that should have been done right the first time. The poor quality mentioned above has been showing up in the production figures . In the past six months there has been no job, save one , that did not go over the budget for labor. I believe this is due to a bad work attitude for a lot of you plus the fact that we are doing the same job over and over be- cause of poor workmanship. The sum of the matter is that neither of these conditions can be tolerated any more as this can lead to the death of the company and/or your jobs. Take responsibility for your work and put out a finished product that you can be proud of. Remem- ber, if you don't have time to do a job right you certainly do not have time to do it over. I regret the necessity of having to write a letter of this nature. I hope you all will accept it as being constructive for your benefit and for the company. Sincerely Max H. DeVilbiss President The memo from DeVilbiss sparked a reaction he did not expect. C. The January 1983 Strike 1. Strikers terminated, then reinstated There is no dispute that the morning of January 25, the day after DeVilbiss posted his memo to employees, some 25 to 60 employees gathered in a parking lot at the gate to the ClayDesta jobsite and declined to go to work.? Most of the ClayDesta employees were so gath- ered, and some employees from the Petro North jobsite joined them. Drywaller Thomas B. "Tommy" Gallegos Jr. was among the employees present. Gallegos is very experienced in the work of commer- cial drywalling. At this time both he and Salvador Ma- chuca (a disputed issue is whether Machuca was a lead- man at this time) were working at ClayDesta. The testi- r Estimates of the numbers vary . One explanation for the difference may be that other employees, not present at the beginning, arrived later. 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mony of Gallegos and Machuca , key witnesses for the General Counsel , disclose that employees became upset over the memo from DeVilbiss in light of the fact that they had been expecting a pay increase since January 1, 1983. Gallegos testified that the pay increase expectation was based on the fact that area unions had received a pay increase then, and that Midessa's practice, when Gal- legos previously worked for the Company, was to follow the pattern set by the union contracts in the area (Tr. 437, 598). Either Gallegos (Tr. 344, 432-440, 566-568) or Machuca (Tr. 604-606, 655-664), or both (each describes doing so himself), told Marvin Brown on January 24 that the employees wanted to meet with Superintendent Joe Beasley, or President Max DeVilbiss, about getting a raise for the employees . They testified that Brown called the office to arrange the meeting . Brown confirms that he was requested and that he did call the office and ar- range for a meeting (Tr. 1035). After his call, Brown told Gallegos and the whole crew, which had gathered, that both DeVilbiss and Beasley would be at the job shack (located on the second floor of ClayDesta Bank) at 8 a.m. the next day to talk with them (Tr. 1036). Around 8 a.m. on January 25, 1983, DeVilbiss, Beas- ley, and Brown went to the gate to talk to the employ- ees. It seems that Gallegos served as the spokesman for the employees. DeVilbiss spoke with Gallegos, to the group, and with some individual employees . Gallegos told DeVilbiss that the employees were on a walkout, and that they wanted to discuss wages (Tr. 444). It is clear that they were striking for a pay increase . DeVil- biss offered to meet with four or five of the employees if the others would return to work, but that was rejected. DeVilbiss showed Gallegos the chart of labor cost tabu- lations for the various jobs . They also discussed the memo from DeVilbiss about poor quality and low pro- ductivity. The end result was a standoff. DeVilbiss de- clined to grant a pay increase, and the employees de- clined to go to work without one. The parties stipulated that when the employees told DeVilbiss that they were leaving to go to the union hall, DeVilbiss told the group that if they were not back (at work) by 10 a.m. they no longer had jobs with Midessa (Tr. 9-11). At trial DeVilbiss confirmed that those em- ployees who had not returned to work by 10 a.m. no longer had jobs with Midessa (Tr. 326-327).8 It seems clear that he also told the group that if they were not back by 10 a.m. they could pick up their checks at 2 p.m. Indeed, DeVilbiss testified that he paid the people later that day who had not returned by 10 a .m., and that he had prepared a list of their names (Tr. 953-954). This list, containing 25 names, is in evidence as Respondent's Exhibit 14 (Tr. 975). Paragraph 8 of the complaint al- leges that on or about January 25 Respondent terminated 24 named employees. The complaint also contains an al- legation that Respondent violated Section 8(a)(1) and (3) of the Act by terminating the employees named in para- graph 8. Most of the individuals named in paragraph 8 8 At trial DeVilbiss, although declining to say that the strikers had been fired, stated that as of 10 a .m. the strikers no longer had jobs with Midessa, and that they were no longer his employees after 10 a .m. (Tr. 326, 327, 331-332) and the paycheck list (R. Exh. 14) are the same employ- ees, but there are a few differences.9 Returning for a moment to the remarks DeVilbiss made to the group on January 25, I note that at one point in his testimony he asserted that his reference to re- turning by 10 a.m. included the additional statement that he would hire people to put on the job because he had to man the job (Tr. 330). He later testified that he set a 10 a.m. deadline because he had to man the job (Tr. 947). I observed DeVilbiss closely as he testified and, on the basis of demeanor, I find that he attempted to embellish his 10 a.m. deadline statement. I do not believe him re- garding his add-on clause about manning the job. He may very well have intended to man the job. It is just that I find he did not say anything about manning the job in his remarks to the group. It was apparently shortly after 9 a.m. on January 25 that the strikers went to the union hall of Carpenters Local 1428 at the invitation of Dick Sampson, president of Local 1428, who was present at the scene (Tr. 576, 780).10 About 30 of Midessa's employees went to the union hall that morning where they conferred with representa- tives of the Union. DeVilbiss testified that around 10 a.m. Union Representative Al Spring telephone him and said he had approximately 30 of Midessa's employees there (Tr. 282, 952). DeVilbiss replied that if it was after 10 a.m. Spring did not have any employees of Midessa (Tr. 282). Spring replied that the NLRB might take a different view. He then informed DeVilbiss that he had advised the employees to return to work, and that the employees had elected a negotiating committee of about seven employees plus two union representatives to meet with DeVilbiss to negotiate. DeVilbiss at first rejected the request to meet, but then told Spring that he would think about it and call him back (Tr. 283, 953). Later that day, around 1 to 1:30 p.m., DeVilbiss called Spring back and told him that there would be no meeting, but that the men could pick up their paychecks at 2 p.m. (Tr. 283). Still later on January 25 DeVilbiss, as he testified (Tr. 284, 953), received the following mailgram from Spring (G.C. Exh. 3): PER OUR TELEPHONE CONVERSATION 10:15 AM TUESDAY, JANUARY 25, 1983, BE ADVISED THAT A MAJORITY OF YOUR EMPLOYEES HAVE DESIGNED [DESIGNATED] CARPENTERS LOCAL UNION 1428, UNITED BROTHERHOOD OF CARPENTERS AND JOIN- ERS OF AMERICA AFL-CIO AS THEIR BARGAINING REPRESENTATIVE IN MATTERS CONCERNING THEIR WAGES, HOURS OF WORK, AND WORKING CONDI- TIONS WHICH IS IN ACCORDANCE WITH THEIR 9 Ernesto Armendariz and Eliwo Ibarbo are named in par 8 , but not in the paycheck list on the other hand , paychecks were issued to Abraham Hermiz, Tony Hermiz, and Thomas Donica , but their names are not in- cluded in par 8 10 Gallegos testified that he saw Jim Purcell . business representative of Local 1428, as Purcell wt in his automobile in front of ClayDesta bank that morning (Tr 576) The night before Gallegos had called the Union for advice (Tr. 576) MIDESSA CONSTRUCTION CO. 275 RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT AS AMENDED. THE UNION HAS ADVISED YOUR EMPLOYEES TO RETURN TO WORK IMMEDIATELY AT THE RATE OF WAGES THEY WERE RECEIVING PRIOR TO THE STOP- PAGE AND THEY HAVE AGREED; PROVIDED THE COMPANY WILL AGREE TO MEET AND NEGOTIATE A COLLECTIVE BARGAINING AGREEMENT WITH THE UNION REPRESENTATIVES AND A COMMITTEE COM- PRISED OF THE FOLLOWING MIDESSA CONSTRUCTION CO EMPLOYEES: TOM GALLEGOS, JIM POPE, SALVA- DOR MACHUCA, JOE GAITON, AND DAVID WILLIAMS. THIS OFFER STANDS. THE UNION CAN ADVISE ALL EMPLOYEES TO RETURN TO WORK BY 8 AM THURSDAY, JANUARY 27, 1983, PROVIDED YOU CAN AGREE TO MEET. THE UNION AND COMMITTEE CAN MEET WEDNES- DAY, JANUARY 26, 1983, on a two hour notice. your immediate reply is urgently requested. Midessa did not respond to the mailgram. Respondent prepared the list of those to whom checks were issued (Tr. 954). The list contains the names of 25 individuals (R. Exh. 14). DeVilbiss testified that most of the group came to Midessa's office around 3 p.m. and picked up their paychecks (Tr. 954). As already noted, these 25 are substantially the same as the 24 employees the General Counsel names in complaint paragraph 8 as having been terminated by Respondent on January 25, 1983.11 Although the strikers were at the union hall they worked with Union Representative Al Spring in prepar- ing an offer to return to work. On Thursday, January 27, 1983, four members of the committee (Joe Gaiton, Thomas Gallegos, Salvador Machuca, and David Wil- liams) hand delivered the written offer to Midessa by Gallegos, presenting it to Superintendent Beasley (Tr. 287, 352, 459, 672, 958). The handwritten offer, ad- dressed to DeVilbiss and signed by 15 of the strikers, reads (G.C. Exh. 4): We the undersigned employees of Midessa Con- struction Co. unconditionally agree to return to work at the same classification and rate of pay we were receiving prior to the current dispute on Janu- ary 25, 1983. DeVilbiss testified that he was telephonically notified about the delivery of the offer and he gave instructions (to Beasley, apparently) that the strikers should fill out new employment applications. This was a means, DeVil- biss admits, of stalling for time until he could obtain legal counsel (Tr. 958-959). Paragraph 7(d) of the complaint asserts that on or about January 27, 1983, Respondent, through Beasley, "orally stated that employees who were to be rehired had to fill out new applications and be reevaluated fol- I I Complaint par 8 doe% not list the names of Thomas. Domca, Abra- ham Hermiz, or Tony Hermiz, but they are included among the names on R. Exh . 14 On the other hand, par 8 also includes. Ernesto Armen- dariz and Eliseo Ibarbo, but they are not named on R. Exh 14 The reason for the difference regarding Armendariz and Ibarbo will be di%- cus.s.ed shortly lowing their engaging in protected activity." The com- plaint alleges that Respondent violated Section 8(a)(1) of the Act by such conduct. The parties stipulated to the factual accuracy of paragraph 7(d) of the complaint (Tr. 9-10). Midessa, noting that such conduct occurred before it obtained legal counsel, expressly declines to contest the allegation of a violation in this respect (Br. 9). Jour- neymen drywallers Tommy Gallegos and Ezequiel Mata confirmed the facts. Gallegos testified that when he pre- sented the return-to-work offer to Beasley on January 27 Beasley informed him that he would have to reapply and he gave Gallegos a stack of applications. Beasley said that Midessa would reevaluate them and notify them at a later date whether they would return (Tr. 353). When Gallegos returned to the union hall, Union Representa- tive Al Spring advised him to complete the application and submit it to Midessa. Gallegos and some others did so that very day. Mata credibly testified that when he re- turned around February 1, Beasley required him to fill out a new application (Tr. 163). On Friday, January 28, 1983, DeVilbliss met with an attorney (Tr. 959). That meeting resulted in DeVilbiss sending the following letter, dated January 28, 1983, to all the individuals for whom checks had been issued on January 25 (Tr. 289, 959-960). The text of the letter reads (G.C. Exh. 5): On Tuesday, January 25, 1983, you were among the employees who engaged in a strike against the Company and failed to return to work when re- quested to do so. The newspaper accounts of this incident reported you were "fired" by the Company for engaging in such activity. I have reviewed this entire matter and under- stand that the National Labor Relations Act prohib- its an employer from discharging employees who go on strike for higher wages or because of com- plaints over wage increases. In such cases, an em- ployer can lawfully hire permanent replacements for the strikers but cannot "fire" them. The Company did hire replacements for many of the employees who failed to return to work last Tuesday. However, because of some of the things that were said, it may appear to you that you were actually fired for going on strike against us. That would be unlawful. It is not my intention to violate the law. I like- wise do not want to give you or anyone the impres- sion that you were "fired" for engaging in such ac- tivities. Accordingly, and to remove any doubt you or anyone else may have concerning this matter, we are offering you immediate and unconditional rein- statement to the job and pay rate you held on Tues- day, January 25, 1983. You should report to the foreman on the project where you were working at the normal starting time on the day following re- ceipt of this letter. The issues that prompted this strike have been turned over to our lawyers. However, we want you to know that neither you nor any other employee will be disciplined or discharged for engaging in any conduct protected by the National Labor Rela- 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions Act. We will comply with the law as we know you will. Midessa also notified as many of the strikers as it could to attend a meeting held at the company office on Janu- ary 30 so that copies of the letters could be hand deliv- ered . Gallegos testified that about 16 employees attended the meeting (Tr. 354). DeVilbiss testified that about one- half the group of 25 reported to work Monday , January 31, that most of the others returned Tuesday, February 1, and that there were a couple of others who came in a day or two later . All but five returned, he testified (Tr. 290). Although DeVilbiss testified that all the replace- ments who had been hired were laid off to accommodate the reinstatement of the strikers (Tr. 961), Job Foreman Marvin Brown , as we shall see later, identified at least three that he retained (Tr. 1049). 2. Other events during the strike a. DeVilbiss ' conversation with James Pope James Pope was one of the strikers gathered outside the fence the morning of January 25. Pope recently had been demoted from his position as job foreman of the Dinero Plaza job, and he was displeased with that action. After DeVilbiss arrived, Pope asked how DeVilbiss was doing (Tr. 718). The latter, apparently surprised at the presence of Pope, concedes that he asked what Pope was doing there involved "in this." (Tr. 318.) Pope replied that he was upset over his demotion and the fact that his brother, striker Derrill Pope, had not received a pay raise. Counsel for the General Counsel argues that the question by DeVilbiss tends to be coercive and consti- tutes a violation of Section 8(a)(1) of the Act, as alleged in paragraph 7(a) of the complaint . I find that DeVilbiss' question was more in the nature of a surprise reaction on seeing his former job foreman. Pope initiated the conver- sation, DeVilbiss' question was not followed by any other remarks alleged to be coercive, and the circum- stances fall short of showing that the bare question was violative of Section 8(a)(1) of the Act. On the other hand, the question by DeVilbiss will be considered and weighed when the issue of motivation is discussed later . This is so chiefly because there is other conduct by DeVilbiss, as discussed below. b. Conduct by Max DeVilbiss and Joe Beasley There remains other conduct to be considered in rela- tion to complaint paragraph 7(a). On the morning of Jan- uary 25 a few of the employees were concerned about the safety of their automobiles if they did not participate in the strike. These employees included Ernesto Armen- dariz, Eliseo Ibarbo, and Ezequiel Mata . There is a dis- pute in the record over whether they asked for or were given the day off. I resolve that particular point of con- tention later. The fact is that all three were among those going to the union hall on January 25. Each of the three returned to work the next day. Before the strikers left for the union hall on January 25, Mata walked over to DeVilbiss, apparently to express concern about damage to his car if he remained. When Mata approached , DeVilbiss asked, "Mata, who started all this?" (Tr. 160.) Mata said he did not know. He ex- pressed fear about the safety of his vehicle . DeVilbiss said that Mata could park it inside the fence, but Mata declined the offer on the basis that DeVilbiss could not guarantee the car's safety after work. As a witness, De- Vilbiss did not deny that he had so questioned Mata. I find that such question , asking for the identity of the person or persons responsible for leading the walkout, tends to be coercive and violated Section 8(a)(1) of the Act, as alleged in complaint paragraph 7(a). The following day, January 26, Mata reported to De- Vilbiss at the ClayDesta jobsite for the purpose of going to work or getting his job back.' 2 Mata testified that on this occasion DeVilbiss asked whether Mata had gone to the union hall. When Mata replied in the affirmative, De- Vilbiss stated (Tr. 163): Well I can't put you back to work Mata. On cross-examination Mata repeated his testimony (Tr. 186, 188). Mata's pretrial affidavit apparently has no de- scription of this conversation . Indeed, the affidavit appar- ently contains the following statement (Tr. 191): No supervisor ever talked to me personally about the walkout or about the union. Mata testified that he did not think he had made such a statement to the Board agent, that he had reported the conversation to the Board agent and that , as he does not read much English, the Board agent read the affidavit to him (Tr. 191-192). The affidavit (R. Exh. 2) was not of- fered in evidence, and DeVilbiss did not address this sub- ject in his testimony. Counsel for the General Counsel does not rely on this conversation in the brief. Neverthe- less, the testimony is before me. I observed the demeanor of Mata as he testified, and I observed that he testified in a persuasive fashion. Al- though Mata can read enough English to get by, such as with a job application, he is far from fluent in the lan- guage. Whatever the actual explanation for the mixup between Mata and the Board agent taking his pretrial statement, I credit the testimony given by Mata before me. Because there is no complaint allegation covering DeVilbiss' coercive statement, because Respondent did not seek to litigate the matter in its own case -in-chief, and as the General Counsel does not seek a finding of a violation on the fully litigated theory, I shall not find that Respondent violated Section 8(a)(1) or (3) of the Act by the refusal of DeVilbiss to allow Mata to return to work on January 26, 1983. However, I shall consider this conduct when I evaluate the motivation issue dis- cussed later. In paragraph 7(b) of the complaint, the General Coun- sel alleges that Respondent violated Section 8(a)(1) of the Act when Superintendent Joe Beasley "On or about January 26 . . . orally interrogated its employees regard- ing their union activities and threatened them with dis- ' d I need not decide whether Mata considered himself as returning to work after being granted a day off, or whether he was seeking to get his job back after deeming himself fired the day before MIDESSA CONSTRUCTION CO. charge should they be found to have engaged in such ac- tivities." The parties stipulated to the facts of this allega- tion (Tr. 9-10). The testimony of Ernesto Armendariz and Eliseo Ibarbo' a reflects that this occurred when they returned to the jobsite on January 26. Armendariz testified that he asked Beasley about getting their (Ar- mendariz and Ibarbo) jobs back. Beasley asked whether he had gone to the union hall the day before , and Ar- mendariz replied that he had not (Tr. 92, 93). He was un- truthful because he feared he would not get the job, which he needed to support his family (Tr. 116). Armen- dariz acted as the interpreter for Ibarbo , and it appears that Beasley either asked about both or Armendariz con- veyed Ibarbo's statement that he also did not go to the union hall (Tr. 130, 146). Ibarbo was untruthful because, he testified, he has eight children to support (Tr. 146). DeVilbiss testified that Respondent regularly communi- cates with its employees, who cannot converse in Eng- lish, by utilizing the services of their bilingual coworkers ("li;r: 3,19-320). Job Foreman Marvin Brown confirmed that such was the standard method of communication (Tr. 1097- 1098). In that situation, Respondent made the employee-interpreter its agent for such communication. Ibarbo's testimony, therefore, concerning what Superin- tendent Beasley conveyed to him through interpreter Ar- mendariz, ; is not hearsay . Armendariz and Ibarbo were put.to work and continued working until laid off on Feb- ruarys 11, 1983. Mata was ,not given work until reinstated with.the others or} February 1, 1983. Beasley, was not a .witness, and in light of the stipula- tion reg{krding the naccuracy of paragraph 7(b) of the complaint (T,r,,9-10), Respondent does not contest that allegation.,•j.-therefore And that Respondent, by Beasley's conduct, violated Section 8(a)(1) of the Act as alleged. 3. Conclusions, regarding termination of the strikers The General - Counsel, contends that Respondent fired the strikers, in fact,, on ianuary 25, 1983, and that Midessa violated Sectigltl8 (s)(1) and (3) of the Act in so doing. Respondent argues that the total circumstances re- flect that there is no violation , because the strikers would have understood that DeVilbiss was simply informing them that they could be replaced if they did not return to work by 10 a.m. on January 25.14 Indeed , Respondent points to elements of the testimony by which various strikers assert that they considered themselves as being on strike for 2 or 3 days. Others, however, testified that they considered themselves fired as of 10 a.m. on Janu- ary 25. I find that DeVilbiss in fact fired the strikers effective at 10 a.m. Tuesday, January 25, 1983, and that his words and actions reasonably conveyed such a message. As Re- spondent admittedly knew that the concerted walkout was to protest wages, it is clear that Respondent's threat to terminate the strikers violated Section 8(a)(1) of the Act as did the actual discharge. 1 s 'a Because Ibarbo does not speak English . he could only corroborate regarding events and what Armendariz said to him as interpreter 14 DeVilbiss admits that he "may have" told a newspaper reporter at the Jobstte on January 25 that as far as he was concerned the striking employees were fired (Tr 997) 15 The threat to terminate , although not alleged , was litigated. 277 But complaint paragraph 8 alleges that Respondent violated Section 8(a)(3) of the Act as well by terminating the strikers on January 25. That is a much closer ques- tion. So far as the record reflects, DeVilbiss became aware of the union aspect only when the employees stated they were going to the union hall. But this was only a moment before DeVilbiss set his 10 a.m. deadline. It is not clear that the deadline was related to the union issue rather than solely to the matter of setting a 10 a.m. deadline for a return to work or be terminated. As any remedial order under Section 8(a)(3) would be cumulative, I shall dismiss the complaint to the extent it alleges a violation of Section 8(a)(3) of the Act by the January 25 termination of the strikers. In citing and discussing Abilities & Goodwill, Inc., 241 NLRB 27 (1979), brief at 20, the General Counsel appar- ently seeks backpay for the discharged strikers from Jan- uary 25 to 28, 1983. My recommended Order will in- clude a provision to that effect. D. Events Leading to Layoff of February 11, 1983 1. Allegation that Salvador Machuca was demoted Paragraph 7(c) of the complaint alleges that Respond- ent violated Section 8(a)(1) of the Act on or about Janu- ary 27 when it, through Superintendent Beasley , "rehired an employee following his engaging in protected activity in a reduced classification."16 Salvador Machuca is the subject of this allegation. The General Counsel's allegation is grounded on the contention that Machuca was a leadman prior to the strike. Whether Machuca was in fact a leadman immedi- ately before the strike commenced is a contested issue. Machuca testified that he was (Tr. 605, 649, 682), and Marvin Brown , job foreman at the ClayDesta Bank job, testified that Machuca was not. According to Brown, Machuca had been a leadman until a layoff in December 1982. Before the layoff Brown had promoted Machuca to a leadman position when Brown had 44 men on the ClayDesta job.17 Machuca joined Carlos Carrillo, already a leadman, in giving Brown a total of two leadmen on the job (Tr. 1043). As the layoff, shortly before Christmas 1982, reduced Brown's need for leadmen , he cut back by one. The one he reduced to journeyman status was Machuca (Tr. 1043, 1076). He apparently made this reduction , however, without informing Machuca. The practical distinction between a leadman and a journeyman at Midessa is not great . Machuca testified that he received no extra pay as a leadman (Tr. 648).18 16 The complaint does not allege that the demotion violated Section 8(ax3) of the Act. 'r Machuca testified that he was hired in late September 1982 (Tr 601, 643), and promoted to leadman status in November, 2 months later (Tr 603, 648). 18 This may well be because Machuca already was receiving a fore- man's rate of $13.63 per hour Machuca was hired on that basis , but be- cause there was no opening for a foreman he was assigned to work as a journeyman (Tr. 601, 643-645). Former foreman James Pope testified that his hourly rate as a foreman was $13.63, and that the journeyman's rate was $12 88 (Tr 724, 746, 778) 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Foreman Brown testified that a leadman works about 80 percent of the time with his tools and the other 20 per- cent conferring with his crew and with Brown (Tr. 1097). It also is clear that normally a leadman, unlike a journeyman, carries a 2-way radio so Brown can reach him from a distance. Machuca testified that in the last days before the strike he had a radio and was functioning as a leadman (Tr. 604-605, 654-655).19 I observed Machuca's demeanor. He testified in a convincing fashion , and I credit him. By contrast, Brown's demeanor was unconvincing, and I generally do not credit him.20 I therefore find that when the strike began Machuca was functioning as a leadman and that Brown was aware of that fact. It is undisputed that from his return on January 31 to his layoff on February 11, Machuca worked as a jour- neyman. Regardless of whether Brown needed a second leadman when the strikers returned, as Machuca was a leadman at the time of his discharge on January 25, Re- spondent had no choice but to reinstate him to that posi- tion if the position existed . Respondent failed to establish that conditions were changed on the return of the strik- ers. Brown testified that at the layoff of February 11 he was left with 18 hands after laying off 10 (Tr. 1090- 1091), and that around February 1 leadman Carillo had a crew of 10 to 15 employees. Thus, essentially the same employee work force existed when the strikers returned as before they were fired . In these circumstances, Re- spondent violated Section 8(a)(1) of the Act, as alleged in complaint paragraph 7(c), by demoting Machuca.21 There is no monetary remedy to be ordered. More- over, it seems clear that Machuca would have been re- duced to journeyman (although apparently retaining his $13.63 pay rate) even if the Respondent had retained him on February 11. The ClayDesta staff was cut way back, and it appears that Respondent's jobs overall were at a reduced level. A preferential return to leadman position would appear to be the only remedy , plus the usual notice, if it is found, that Machuca was improperly ter- minated on February 11, 1983. 2. Work rule allegations a. Introduction We recall from the discussion earlier that shortly before the walkout DeVilbiss had launched what may be described as a "lean" and "mean" program designed to avoid bankruptcy . The "lean" portion relates to layoffs, and that subject is discussed later. The other half pertains to a tighter enforcement of work rules. Previously we saw that in late January 1983 DeVilbiss posted a letter at the jobsites complaining of poor quality and low productivity (R. Exh. 8). DeVilbiss directed his 19 For over a week in early January Machuca worked on a job in Odessa, Texas. It is unclear whether on that job he functioned as a lead- man, but that is a point I need not reach. ¢0 This is not to overlook that regarding some matters, mostly when he is supported by documents or other credited testimony, I do credit Brown. 41 The complaint does not allege that the demotion violated Sec. 8(aX3) job foremen to turn things around . As we have seen, the walkout occurred the next morning. Foreman Brown testified that DeVilbiss told him to get more quality, more production, and to cut dead weight (Tr. 1032). When the strikers returned, Superin- tendent Beasley told Brown to treat the strikers the same as the nonstrikers (Tr. 1041). According to Brown, some of the returning strikers exhibited an attitude suggesting that they felt they could not be laid off and did not have to produce (Tr. 1041). Brown concedes that he told each employee to pick up the pace, and to hurry up (Tr. 1041). He asserts, however, that he had said as much before the strike (Tr. 1061), and other witnesses attest to that. Cecil Patterson was the foreman at Petro North. Pat- terson testified that in order to protect his own job he tightened up to stop employees taking more time than was permissible at breaks and lunch (Tr. 1006, 1015). The Petro North job was winding down in February 1983 and was close to completion (Tr. 1006). b. Prohibition against union talk Paragraph 7(f) of the complaint alleges that on or about February 1, Respondent, by Foreman Brown, "in- timidated and threatened its employees by denying their right to discuss the Union upon threat of discharge." At 33-34 of their brief, the General Counsel moved to with- draw the allegation for lack of supporting evidence. Tommy Gallegos testified that on February 1 Foreman Brown read a set of rules. He recalled that Brown said that if any employees were caught talking about the Union other than during breaks and at lunch that such employees would be terminated on the spot (Tr. 363, 491). Brown denies referring to this subject when he read the rules, but concedes that later that week he was told to tell the men, and did tell them , not to discuss the Union on worktime, but to carry on any such discussion before work, during breaks, at lunch, or after work (Tr. 1053-1054). Brown testified that during this period he observed people stopping work and congregating to have a discussion (Tr. 1054). Gallegos testified that he was not aware that after the strikers returned employees stood around talking about the strike and union matters (Tr. 491 ). He also testified, on cross-examination , that Brown did not want employ- ees "congregating around talking about the union or any- thing else" during worktime (Tr. 490).22 A rule that restricts only conversation related to unions is discriminatory and therefore unlawful. Olympia Plastics Corp., 266 NLRB 519 (1983); Liberty Nursing Homes, 245 NLRB 1194 (1979). None of Respondent's written work rules received in evidence seeks to govern the topics of employees' conversations during worktime (G.C. Exhs. 6, 7; R. Exhs. 1, 7), and no such unwritten 22 It appears that at this point Gallegos was describing his understand- ing of what Brown meant rather than what Brown expressly said, for moments later when Gallegos quoted Brown there was nothing about employees congregating and nothing about a prohibition on subjects other than the Union. MIDESSA CONSTRUCTION CO. rule is described in the evidence.23 As noted above, I in- terpret Gallegos' testimony that "Brown did not want" people congregating to be a description of Gallegos' un- derstanding of what Brown meant. But Brown's actual words amounted to a gag rule on union talk at any time during worktime. That is far more extensive than a "no congregating" rule. However, the complaint allegation goes beyond what Brown did say. In the absence of any evidence that Re- spondent sought to enforce the gag rule on the Union as a topic of worktime conversation, and because of the pending motion, I shall grant the General Counsel's motion to withdraw complaint paragraph 7(f). c. Rules on productivity and breaks (1) Production speed Complaint paragraph 7(g) alleges that on or about February 1, 1983, Respondent, by Foreman Marvin Brown, "announced and thereafter disparately enforced its work rules relating to the amount of work to be per- formed and the length of break and lunch periods." By February 1 most of the discharged strikers had re- turned to work. The General Counsel contends that from that point until the layoff of February 11 the former strikers were harassed about their production speed. The General Counsel, in its brief, points to testimony of cer- tain strikers that before the strike there were no produc- tion quotas, but after the strike quotas were set. For ex- ample, Ernesto Armedariz testified that before the strike he normally would hang 50 to 60 sections of sheetrock a day when working on straight wallS24 and that he con- siders that number to be a good day's work (Tr. 81-82, 104). But after the strikers returned, Armendariz testi- fied, he was told by Foreman Brown that he had to hang 75 sheets a day (Tr. 27-28). He did so by pushing himself under Brown's pressuring "hurry up" (Tr. 104). On achieving an output of 86 sheets the final day he hung straight walls, Armendariz proudly reported that fact to Brown. Foreman Brown responded (Tr. 38), "It is noth- ing now. You need to hang more." Brown testified that he had crews hanging from 75 to 120 sheets a day (Tr. 1072, 1114). No employee from such crews testified. However, David Williams, who joined the strike and is named among those on the Union's proposed negotiating committee, testified that a two-man team could hang from 80 to 110 sheets a day (Tr. 887). Tommy Gallegos testified that 65 to 80 sheets would be a good day, and that while it is possible to hang 100, that achievement could not be sustained over any period of time (Tr. 413). The General Counsel called C. J. Clifton as a rebuttal witness. At the time of his testimony on July 27, 1983, Clifton was the superintendent for Rose and Sons, Inc., 23 It can be presumed that employees at work occasionally are able to discuss the weather, sports, and other topics without stopping work and congregating. 24 There is no dispute that a drywaller can hang more sheets working straight walls than when he must hang sheets in a stairwell or a bathroom ("core" work), which have frequent turns and cuts. Bathrooms particu- larly are slower because of the cuts a worker must make to accommodate the various fixtures 279 the general contractor for the First State Tower 25 in Abilene, Texas. He testified that the job began in the late fall of 1982, that Midessa is the drywall subcontractor on the job, and that in the January-February 1983 period Midessa had about 15 employees on the job (Tr. 1128- 1129). He further testified that in the Abilene area a good two-man drywall crew should hang 50 sheets a day on straight walls and that area firms find that pace to be economically feasible (Tr. 1131, 1137). Midessa's drywall crew on that job, Clifton testified, hangs about 30 to 40' sheets a day on straight walls, and about 20 sheets a day on core work (Tr. 1131, 1138). Clifton testified with a very convincing and impressive demeanor, and I credit him completely. Of course, while crediting Clifton may assist in resolv- ing credibility here, it does not necessarily establish that Midessa was unlawfully motivated in pushing for higher productivity after the strikers returned. It must be re- membered that DeVilbiss posted his letter of January 24 before the strike. Indeed, so far as the record shows, it was DeVilbiss' letter that sparked the strike. The Gener- al Counsel makes no contention that Midessa's economic plight was an illusion. Therefore, DeVilbiss still had to address the factors of quality and speed of production when the strikers returned. The strike changed none of that. (2) Reading of the rules Midessa gives a set of company rules to each of its foremen. A copy of such rules and work policies, in evi- dence as General Exhibit 7, consists of six double-spaced pages. The document covers such matters as starting times, breaks, timesheets, hiring policies, terminations, equipment, material, safety, and change orders. Although many of the provisions would be of direct interest to the employees a few provisions might be of interest only to a foreman. DeVilbiss credibly testified that such rules and policies have been in effect at all times since their formu- lation in 1979 or 1980 (Tr. 303, 963). Section 2 pertains to breaks. Section 2.1 provides for a 10-minute break in the morning and another in the 'afternoon. "In no case will they be longer than 10 minutes." Section 2.2 allows 30 minutes for lunch, and it states that each employee should be back at his work station "at the end of the 30 minutes." Section 4.2 announces that Midessa hires on a "merit shop" basis and "employs both union and non- union members." Under section 5.B1 foremen are to warn employees of rules infractions "in order to give the employee a chance to correct themselves." On repeated infractions, the fore- man is to warn the employee that he is subject to dismis- sal. Section 5.B2 provides that if an employee is "not producing the quantity or quality of work required," the foreman will warn that employee that he is subject to dismissal or a drop in pay scale. Employees frequently tardy are to be warned, under section 5.B3, that they are "subject to dismissal." 25 Clifton seemingly meant the First State Bank Tower, which DeVil- biss had earlier identified (Tr. 278). DeVilbiss himself served as the super- intendent on that job (Tr 298). 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Until about late May Joe Alvarado worked for Midessa, sometimes as a foreman . The last period he worked as a foreman for Midessa was in August 1982. He testified that he read the rules to the employees about once or twice a month, whenever they became a little lazy or began taking advantage of the breaks (Tr. 1025).26 DeVilbiss testified that the rules were not enforced as they should have been or he would not have been re- quired to issue a rules notice on August 10, 1982 (Tr. 303). There is very little question that around that date Midessa posted on its jobs, and distributed to all employ- ees, a memo from DeVilbiss to all employees (Tr. 292, 963, 1030-1031): TO ALL EMPLOYEES It has come to my attention that many employees and foremen have been taking advantage of the morning and afternoon breaks. Due to this the fol- lowing schedule for breaks and lunch will be strict- ly adhered to. Morning Break-10:00 A.M. to 10: 10 10 Minutes Lunch Break-12:00 Noon to 12:30 P .M. 30 Min- utes Afternoon Break-2:30 P.M. to 2:40 P.M. 10 Minutes Any person or crew taking a break or lunch at other times will be docked on their pay one hour. If the infraction continues then morning and afternoon breaks will be eliminated altogether. To those who have adhered to the 10 minute break & 30 minute lunch I wish to thank you for your honesty, dedication and concern for the com- pany. To those that have been abusing this privilege I admonish to get with the program. Another practice which must stop is sending a man to a store to buy cokes and candy . This is all right if the store is close and the man is not gone for more than 10 minutes, otherwise bring what you want for break with you in the morning. Max H . DeVilbiss DeVilbiss testified that most of the prestrike job appli- cation also carried on the reverse side a summary of some of the rules (Tr. 291). The application of striker Jesse Dominguez is in evidence and it reflects this sum- mary (G.C. Exh. 6). The same is true for striker Tommy Gallegos. Gallegos testified that he only filled out the front side and did not look at the reverse side and did not see the written rules (Tr. 421-423). However, to the left of Gallegos' signature on the obverse side of his June 2, 1981 application appears the following statement (R. Exh. 7): I have read the rules and conditions on the back of this application and promise to abide by these and all other company rules. 10 I do not believe Alvarado read the entire six pages to his employees on these occasions. It is far more probable that he selected the rules per- taining to breaks and productivity and read them. Despite Alvarado 's ex- aggeration on this point, I find him to be a generally credible witness. Gallegos' protestation of ignorance of the presence of the rules on the reverse side of his application was singu- larly unconvincing, and I do not credit him on this point. Lest his surname mislead the reader to wonder whether Gallegos is not fully capable in English , I should note that Gallegos is quite the contrary. The son of an El Paso, Texas contractor, Gallegos made a very persona- ble, intelligent, and articulate witness . In many respects, his demeanor seemed persuasive on the surface . But Gal- legos can also be crafty. Thus, he was the General Coun- sel's source of a copy of the six-page set of company rules (G.C. Exh. 7). Although Gallegos, in a pretrial affi- davit of February 14, 1983, told the investigating Board agent that he had obtained the set of rules by removing the copy posted on the toolroom shack (R. Exh. 10 at 4), he admitted on cross-examination that he had obtained the set from Anastacio Dominguez Jr., who told Galle- gos he had stolen the copy (Tr. 483). He testified that he gave the incorrect version in his affidavit in order to protect Dominguez (Tr. 597). In effect, Gallegos con- cedes that he misrepresented the facts in his sworn pre- trial statement given to a Board agent in order to protect another employee, but, he testified, he would not make a misrepresentation to protect his own interests (Tr. 599). It might be said that the source of a set of the rules is not really a material point in the case , and that a lie by Gallegos concerning the process by which he obtained the set is a misrepresentation regarding an ancillary matter on which we should not dwell. What makes the matter important is not the relationship of the source to the allegations of the complaint, but the impact Gallegos' conduct has on his credibility. If Gallegos would lie in a statement sworn before a Board agent, even on an imma- terial point, can I really trust him on the significant issues? Can I believe him when, in answer to Respond- ent's question, he testified that he would not misrepresent the facts to advance his own cause? Although Gallegos' pretrial prevarication may not rise to the level of an abuse of the Board's processes calling for some sanction, such as a denial of any remedial relief for him, it is a matter that adversely affects his general credibility. Returning now to the rules contained on the reverse side of Gallegos' job application, I observe that they in- clude, "If you do not turn out the quantity or quality of work expected of you, you may be dismissed, or your pay scale lowered." They also contain an underscored warning that any infraction"is cause for dismissal." Final- ly, and bearing on the expectation of the employees con- cerning a pay increase on January 1, 1983, the rules also include, "All employees are eligible for a raise on the 1st of January and the 1st of July. Raises are given on an individual basis and do not necessarily correspond to union scale." Around November 1982 Midessa eliminated the breaks at Dinero Plaza because employees, in order to go to the first floor, were taking breaks of 20 minutes rather than 10. James Pope, who was the job foreman there at the time, testified that he eliminated the breaks on instruction from Superintendent Beasley (Tr. 752-753). As the testimony reflects, before the strike, Foreman Brown was not strictly enforcing the rules pertaining to MIDESSA CONSTRUCTION CO. breaks. On February 1 Brown read the Company's work rules and policies to the assembled employees at the ClayDesta job. Both strikers and nonstrikers were present. Although DeVilbiss testified that he did not tell Brown to read the rules (Tr. 962), Brown testified that he was told, by someone unnamed in the record, to read the rules (Tr. 1047). As DeVilbiss did not so instruct Brown, presumably it was Beasley. In any event, Brown read the rules.27 Some of the employees became upset. Brown testified without contradiction that former striker Jesse Dominguez looked straight at him and stated, "We're going to make some rules of our own." (Tr. 1049, 1051) Brown wrote the comment on the timecard (R. Exh. 19) of Dominquez in order to alert the office of the matter (Tr. 1051, 1098). (3) Conclusions As DeVilbiss' crackdown letter of January 24 predated the strike, it is largely irrelevant to compare practices before and after the strike, for the General Counsel does not allege or contend that the tightening up policy was unlawfully motivated. It is alleged, however, that the rules were disparately enforced by Foreman Brown at ClayDesta against the returned strikers.28 Disparity is the key point. In support of the disparity allegation, the General Counsel points to the testimony of Ernesto Armendariz and Ezequiel Mata. Armendariz testified that on one occasion after the strike, when he had occasion to go to where some nonstrikers and re- placements were working, he observed that Brown was not pushing them (Tr. 36-37). The testimony is rather vague, and the record unfortunately has an "inaudible" at a material point (Tr. 36).29 Mata described an occasion when nonstrikers Rick Daugherty,9O David McKinney,31 and two strike re- placements took a break of over 15 minutes, and that Brown passed by and observed the fact but said nothing (Tr. 166-167, 207). Breaks are not staggered (Tr. 208). Although not specifically addressing the long break men- tioned by Mata, Brown testified, without contradiction, that he did not discipline anyone during this period for exceeding the allowed time for breaks or lunch and that everyone "pretty well" complied with the rules (Tr. 1061). 87 That evening Business Representative Jim Purcell of the Union sent Midessa a mailgram protesting Brown's reading of the rules as a coercive action violative of Sec. 8(ax1) of the Act (R Exh. 16) $s The allegation, quoted earlier, also attacks the announcement of the rules on February 1, 1983. This portion of the allegation appears to be based on the contention that the rules were read to the returned strikers only. As others besides strikers were present, I shall dismiss the an- nouncement portion of complaint par 7(g). 29 Armendariz testified that "these people [inaudible] all the time, so Marvin and that tells them nothing , and they-so-but I never saw him push the others, you know, the few guys" Arguably Armendariz testified that the others were loafing, or some similar word, in the presence of Brown, but that is not certain . On cross-examination, he testified that he did not know whether Brown was pushing the other (nonstrikers and re- placements) employee% (Tr. 109). 30 Foreman Brown testified that Rick Daugherty and Ron Daugherty are two names for the same person (Tr. 1039). 91 Although Mats said "McKenzie," it appears he was referring to McKinney, who apparently worked with Daugherty. Brown, for exam- ple, describing working with both the day the strike began (Tr. 1039) 281 On the other hand, Gallegos and his apprentice, Cuah- temoc "Temo,' Anguiano, were docked 30 minutes' pay (by not being permitted to start working until a half-hour waiting period expired) because they were late for work by 1 minute 1 day after returning from the strike. It ap- pears, however, that Respondent also docked employees before the strike for being late. Foreman Brown testified that it was his practice to require the tardy employee to wait until the nearest hour or half hour before they could clock in or begin work (Tr. 1056). David Williams, a member of the Union's proposed negotiating commit- tee, but called as a witness by Respondent, testified that he was docked both before and after the strike for arriv- ing for work 2 minutes' tardy (Tr. 896, 909-910). I do not credit Williams. His demeanor was such as to convey the distinct impression that he was seeking to advance his own cause with Respondent by testifying favorably to Midessa. He approached being hostile to the General Counsel, and he generally exhibited a highly unfavorable demeanor. I do not believe Williams on this or any dis- puted point. Moreover, it seems strange that Respondent did not offer any documentary payroll evidence to sup- port Williams' story, yet it offered prestrike timecards of other employees on this general topic. The General Counsel also observed that Respondent offered no evidence that it, too, read the rules to the nonstrikers and strike replacements during the days inter- vening between the beginning of the strike and the return of the strikers. Of course, not many workdays are involved. Discounting the Tuesday the strike began, there were only 3 workdays left before the discharged strikers began returning on Monday January 31, 1983. Brown testified that he had been told "several days" before February 1 that he would get a copy of the rules and to read them to the entire crew and answer any questions (Tr. 1047). Even if this instruction came to Brown on January 27 or 28, the record does not reflect when he received a copy of the rules.32 In short, the timeframe here is too compressed to draw inferences re- garding a failure to read the rules during the first 3 days after January 25. In its brief Respondent does not address the testimony of C. J. Clifton, the general contractor's superintendent of the Abilene bank job. Why would Midessa be pushing employees at ClayDesta, even to the point of a callous rejection of Armendariz' prideful announcement that he had achieved 86 sheets, when DeVilbiss himself, as Midessa's job superintendent at Abilene, was content with his Abilene crew hanging a mere 30 to 40 sheets a day? Moreover, why would Beasley (if not DeVilbiss) instruct only the ClayDesta foreman to read the rules? Why were the rules not read at the other jobsites? These are interesting questions, but apparently they are immate- rial. The complaint alleges disparity by Respondent, through Brown. Foreman Brown was in charge of the ClayDesta project. There is some evidence to support an argument that Midessa aimed its resentment at ClayDesta '= Although Brown ostensibly received a set when he became a fore- man, that does not necessarily mean he still had the copy in late January. 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because most of the leaders of the January walkout and the union movement worked at ClayDesta. However, the weight of the evidence favors a finding, which I make, that Foreman Brown acted in accordance with his understanding of the instructions to read the rules to his crew and to turn things around on the matters of quality and productivity. Evidence of disparity regarding more leniency on breaks favoring nonstrikers is only slight. As discussed later, the General Counsel failed to show any disparity regarding the new productivity standards, such as hanging at least 75 sheets of sheetrock a day. I there- fore shall dismiss complaint paragraph 7g. E. The February 11, 1983 Layoff 1. Introduction As amended at trial, paragraph 10, in conjunction with paragraph 11 of the complaint, alleges that Respondent violated Section 8(a)(1) and (3) of the Act by terminating the following 12 named employees on February 11, 1983, because they participated in the January 25 strike or be- cause they assisted the Union: Cuahtemoc Anguiano Victor Leija Ernesto Armendariz Salvador Machuca Anastacio Dominguez Jr. Ezequiel Mata Alvaro Fuentes James Pope Tommy Gallegos Louis Rodriguez Eliseo Ibarbo Mike Tapia The names of Armendariz and Ibarbo were added the first day of the hearing (Tr. 5-8). On resting their case- in-chief, the General Counsel moved to delete Tapia's name for lack of supporting evidence, and I granted the motion (Tr. 796-797). After Respondent opened its case- in-chief with three witnesses on Friday, June 10, the hearing was adjourned and resumed on Monday, July 28. On July 20 the General Counsel mailed her motion to reopen the General Counsel's case in order to adduce ad- ditional evidence regarding Dominguez, Fuentes, Leija, and Rodriguez and their inclusion in the layoff/- termination of February 11, 1983 (G.C. Exh. 8). Counsel expressed her intention to call three witnesses for about an hour or so of testimony (Tr. 862-863). Respondent opposed the motion on various grounds. As Respond- ent's counsel had not learned of the motion until the day before the resumption, and because Respondent's wit- nesses were present and ready to testify, and to avoid further delay, I denied the motion to reopen. However, the General Counsel was permitted to offer certain time- cards in evidence, and to make an offer of proof regard- ing the testimony she expected to elicit regarding Do- minguez, Fuentes, and Rodriguez (Tr. 871-878).99 Final- ly, I denied Respondent's motion to dismiss paragraph 10 regarding certain individuals. 2. The jobs and employees affected President DeVilbiss testified that Midessa had about 12 jobs operating in the Midland area in January -February 73 Earlier, counsel advised that her proposed evidence would not in- clude the testimony of Leija because She could not locate him (Tr. 863) 1983, employing about 100 drywallers. (Tr. 277, 281.)34 He further testified that those jobs were "winding down," ' with the exception of Gulf and ClayDesta, during the period (Tr. 967, 100). Respondent laid off em- ployees on February 11, 1983, because, DeVilbiss testi- fied, (1) Midessa was experiencing a cash flow problem with attendant economic problems, and (2) Midessa was overstaffed by 15 to 20 employees (Tr. 339, 967, 1000). Foreman Brown testified that a layoff had been planned for Friday, January 28, but the strike intervened (Tr. 1083), and DeVilbiss testified that a layoff had been planned (Tr. 945, 951). As the record reflects, it was normal for Respondent to have a layoff every few months. Salvador Machuca (Tr. 704, 706) and former Foreman James Pope (Tr. 771) testified that Midessa did not lay off by seniority. DeVil- biss testified that in a layoff Midessa seeks to release its "worst" work performers, and only if all else is equal will the senior person be retained (Tr. 305-306).35 Lead- man Salvador Machuca confirmed that in prior layoffs Foreman Marvin Brown had selected the employees who were not producing (the "worst" workers) for layoff (Tr. 633, 703-704). Former Foreman James Pope testified that the Company sought to retain the employ- ees it felt were doing the best job (Tr. 770). DeVilbiss described the procedure Midessa utilizes in selecting employees for layoff. First, each foreman makes a list of his worst producers. These lists go to Superin- tendent Beasley, who confers with each foreman before adding his approval, and then the lists come to DeVil- biss, who makes the final decision on the selection. Al- though DeVilbiss reserves the right to delete or add names to a list, he usually approves the list as submitted because Beasley and the foremen are the ones who have observed the performance of the workers (Tr. 333, 965, 1000). DeVilbiss testified that Midessa compares and selects from its overall pool of employees, in layoffs rather than from each jobsite crew independently. If Respondent did not follow that procedure, it could end up retaining some hands who are not as productive as others being laid off from different jobs (Tr. 280-281). Presumably Superintendent Beasley coordinates the layoff selection to achieve the goal DeVilbiss described. When one job is winding down, but vacancies exist on other jobs, em- ployees will be transferred to fill the vacancies, DeVil- biss testified. When there are no vacancies to accommo- date transfers, then a layoff must occur (Tr. 280). Respondent laid off 16 employees on February 11, 1983 (Tr. 281, 968). The General Counsel does not con- tend that the layoff itself was unlawfully motivated. Rather, the General Counsel argues that Respondent, in selecting the 16 to be laid off, acted unlawfully by select- 34 It appears from the record that DeVilbiss included laborers in the count of 100. Respondent was about finished with the one job it had in Odessa and had no employees there (Tr. 278, 280). Discussed earlier was the fact that Respondent was working on the First State Bank Job in Abi- lene (Tr. 278, 298). C J. Clifton, superintendent for the general contrac- tor, testified that Midessa had about 15 employees on the job with, appar- ently, about 2 of that number hanging sheetrock (Tr. 1129, 1131). ss DeVilbiss testified that Midessa looks only to the last-hire date in determining seniority (Tr 308) MIDESSA CONSTRUCTION CO. ing from those who participated in the strike of January 25 or assisted the Union (Tr. 1143; Br. 39). Thus, the evi- dence does not develop how DeVilbiss determined that 16 employees had to be laid off. Of the 16, 10 worked at ClayDesta (Tr. 282, 969, 973, 1090), and 2 each were laid off from Dinero Plaza (Tr. 282, 969), Petro North (Tr. 282, 979), and 401 Illinois (Tr. 969). Although the evidence reflects how Foreman Brown made his selections from ClayDesta , and Fore- man Cecil Patterson at Petro North, there is no testimo- nial overview by DeVilbiss or Beasley36 concerning comparisons, if any were made, between those laid off and those retained on all jobs. For that matter, the bulk of the evidence focuses on the individuals laid off, and there is but slight comparison with others retained on the same job, such as at ClayDesta. In this connection, the thrust of the General Counsel's case is that an unlawful motive is revealed by the high percentage of strikers among those laid off. That is, of 16 laid off, 12, or 75 percent, participated in the strike . An ancillary argument relies on the theory that as Respondent 's reasons for se- lecting the individual employees do not withstand scruti- ny, an unlawful motive may be inferred. At this point it may be helpful to look at Respondent's jobs affected by the layoff. All the jobs were in Midland, Texas. The following chart is based on the description given by DeVilbiss.37 Job Stage Employees Laid off Griffin-Burnett .................... SC38 4 0 Clayjon ............................... SC 2 0 401 Illinois ............................ SC 10 2 Dinero Plaza ....................... SC 20 2 Petro North .......................... SC 20 2 Gulf Building ...................... 25 0 ClayDesta Bank ................... 25 10 106 16 As previously discussed , DeVilbiss testified that all the jobs were winding down with the exception of Gulf and ClayDesta (Tr. 967, 1000). Foreman Marvin Brown testi- fied that after the strike he was seriously overstaffed at 36 Superintendent Beasley did not appear as a witness. 37 DeVilbiss testified twice He first was called as an adverse witness by the General Counsel, and he also testified during Respondent's case 38 Substantially complete . Foreman Cecil Patterson testified that Petro North was winding down at the time of the layoff (Tr. 1006). DeVllblss intimated that there was still some work to be done there , but that Midessa had to hold off until certain other work, including windows, could be finished by other contractors (Tr. 992-993, 1000). 283 ClayDesta. According to Brown , this situation devel- oped because ( 1) Midessa was catching up with the gen- eral contractor (Area Builders) and (2) several employees had been transferred to ClayDesta from other jobs (Tr. 1062). Brown testified that he therefore asked Superin- tendent Beasley when there was going to be a layoff be- cause he could not keep his hands busy (Tr. 1062). The evidence is conflicting. The record evidence re- flects, and Brown concedes, that after the strike Brown continued pushing employees to "hurry up." Some em- ployees dispute that Brown did much pushing before the strike. Witnesses from Area Builders, rather than testify- ing that Midessa was "catching up," described their con- cern with the slow progress of Midessa's employees. For example, Rod Black, the carpenter foreman for Area Builders, testified that after the strike he complained to Brown that the slow progress of Midessa 's workers was starting to hold up Area Builders and that Brown said he was doing the best he could (Tr. 834-835, 840). DeVil- biss includes ClayDesta as one of his two jobs with a substantial amount of work remaining. Indeed, DeVilbiss testified that during the strike, employees were trans- ferred from their jobs to bring ClayDesta "up to the pre- vious strength to show the general contractor that we were doing what we needed to do" (Tr. 951). Yet Brown describes the ClayDesta job as needing a layoff of employees, and most of those laid off February 11 came from the ClayDesta job. This brings us to the point of listing the names of the 16 employees actually laid off. The following chart may be helpful. Of the 16 employees named below , 4 are not named on the list of strikers DeVilbiss made checks for on January 25 (R. Exh . 14). The four are: Jorge Lozoya, Ramon Lozoya, Miguel Mendoza, and Jaime Lopez. The other 12 are named on Respondent 's list of strikers. Ac- tually, all or nearly all the 16 waited outside the gate the morning of January 25. For considering Respondent's motives, it is appropriate at this point to observe who, in Respondent's view, were strikers. Essentially they are those who failed to return to work at 10 a.m. on January 25. With the exception of Ernesto Armendariz and Eliseo Ibarbo, the General Counsel 's list is the same. In the chart below, I therefore have labeled the 16 laid off as striker (S), nonstriker (NS), and status in question (Q). As we will soon see, I find below that Respondent in fact did not consider Armendariz and Ibarbo as strikers who went to the union hall and did not return to work at 10 a.m. on January 25. In Respondent 's view, there- fore, 62.5 percent, not 75 percent , of those laid off were strikers who had gone to the union hall and, I have found, were fired at 10 a.m. on January 25. 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Job99 Laid Off Classification 40 Strike Petro North James Pope J-SR S Louis Rodriguez A-SR S Dinero Plaza Miguel Mendoza 41A-SR NS Mike Tapia J-SR S 401 Illinois Jorge Lozoya J-SR NS Ramon Lozoya J-SR NS ClayDesta Cuahteomc Angutano J-SR S Ernesto Armendariz J-SR Q Anastacio Dominguez, Jr. A-SR Q Alvaro Fuentes J-SR S Tommy Gallegos J-SR S Eliseo Ibarbo 42J-SR S Jaime Lopez L NS Victor Leija A-SR S Salvador Machuca J-SR S Ezequiel Mata J-SR S As we can see, the 16 constituted about 15 percent of Midessa's 106-man work force. Between February 11 and the time of the instant hearing, Midessa's business appar- ently languished in the doldrums . DeVilbiss testified that Midessa has not started many projects since February 11, and it employs very few men on the ones it has com- menced (Tr. 976). When DeVilbiss testified on July 26, he explained that Midessa then had about 20 to 25 work- ers on its Midland jobs, with about half being drywallers and the other half laborers (Tr. 977). These 20 to 25 were working at Gulf and ClayDesta, with about 8 em- ployees plus the foreman at ClayDesta and the balance at the Gulf Building.43 3. Selection of the 16 a. Petro North, Dinero Plaza, and 401 Illinois DeVilbiss testified that he personally added James Pope's name to the layoff list (Tr. 333, 967-968, 1000). Not because of anything Pope did or failed to do as a journeyman but, DeVilbiss testified , because of the poor quality of work done on Dinero Plaza when Pope was foreman (Tr. 968). DeVilbiss testified that he had just re- ceived a severe "chewing-out" by Kenneth Key, the general contractor's foreman at Dinero, that very day over the mistakes at Dinero, that he therefore was angry, and on returning to his office he added Pope 's name to the list. Although DeVilbiss no doubt did not then know that his loss on the Dinero job would reach the $100,000 39 As we have seen, Marvin Brown was the foreman at ClayDesta and Cecil Patterson at Petro North , and both testified Timesheets in evidence reflect that in mid-February Tony Warrick was the foreman at 401 Illi- nois The foreman for Dinero Plaza on February II apparently was Homer Gonzalez (Tr 295, 986) Neither Warrick nor Gonzales testified 40 J-SR. Journeyman sheetrocker , A-SR apprentice sheetrocker, L la- borer. 41 Although Mendoza's timesheet is not marked as to classification, his hourly pay rate of $8 is that of an apprentice (R Exh. 17a) 42 Although lbarbo's last assignment was helping Ernesto Armendariz. Brown testified that Ibarbo is a journeyman (Tr. I110) 4' Foreman Brown 's figure is a total 10 for ClayDesta (Tr. 1091). he testimonially described (Tr. 939),44 by February 11 it seems clear that he was reasonably aware that his loss would be very substantial. Pope disputes the extent of his responsibility for the losses at Dinero. Although it is true that he was only one of four different foremen at Dinero, there is no dispute that Pope was demoted to journeyman before the strike. This apparently occurred in early January, for he testi- fied that he was assigned to Petro North about 3 weeks before the strike (Tr. 746). Prior to the meeting with Kenneth Key , DeVilbiss had received the letter from Ray Dunlap of Area Builders in which, as quoted earlier, the general contractor criticized Midessa's quality of work "and supervision" as being the "worst" Dunlap had ever seen by Midessa (R. Exh. 13). I shall dismiss the complaint regarding James Pope. Cecil Patterson, the foreman at Petro North at the February 11 layoff, testified that he placed the name of Louis Rodriguez on the layoff list because Rodriguez did work of poor quality (Tr. 1007-1010).45 Former Fore- man James Pope testified that apprentice Rodriguez, before the strike, was a good follower but would have to improve his skills to become a journeyman (Tr. 732). Such faint praise is a bit beside the point . Rodriguez did not testify . As discussed earlier, I denied counsel for the General Counsel 's motion to reopen her case-in-chief so that Rodriguez and two others could testify. In passing it should be recalled that the timecards and Midessa's list of strikers reflect that a least four strikers were from Petro North : Bill Leasure, Mario Matta, Kevin Nichols, and Dale Smith . Presumably they re- turned to Petro North on being recalled . They were not 44 The final retainer check for the Dinero job was not released to Midessa until July 1983 (Tr 999). 43 Patterson testified that he also included the name of Mike Tapia, shown elsewhere in the record as having been laid off from Dinero Plaza In any event, Tapia's name was deleted from the complaint (Tr. 797). Patterson gave specific examples of poor quality work by Rodri- guez. MIDESSA CONSTRUCTION CO. laid off on February 11.46 I shall dismiss the complaint as to Louis Rodriguez. There are no names to discuss regarding Dinero Plaza, for of the two laid off from there, Tapia's name has been deleted from the complaint and Miguel Mendoza was not a striker. From 401 Illinois the Lozoya brothers , Jorge and Ramon, were laid off. As with Mendoza, they did not strike and are not named in the complaint. b. ClayDesta Bank (1) Preliminary The ClayDesta Bank job bore the weight of the layoff (10 of 16). It also was the center of the strike activity, and 70 to 90 percent of the 10 laid off from ClayDesta had participated in the strike.47 Foreman Brown testified that he made a layoff list on which he placed the names of 10 employees, and that such layoff reduced his crew to about 18 (Tr. 1062, 1090-1091). According to Brown, he selected his lowest producers, and he retained those he felt wanted to work (Tr. 1090, 1092). He testified that about 5 of the 18 re- tained were laborers (Tr. 1122). Of the 18 retained, the evidence identifies only the following 10: Name Classification Strike Carlos Carrillo Leadman4B SR 49NS Ron "Rick" Daugherty J-SR NS Abraham Hermiz L S Tony Hermiz L S David McKinney A-SR NS Norman McNeese J-SR R Matt Richardson SR R Jose Louis Sotelo SR NS David Williams J-S S Paul Young A-SR R Although the testimony of Foreman Brown clearly suggests that he retained Thomas "Butch" Donica and Bill Gleason at ClayDesta (Tr. 1123), DeVilbiss identi- fied their timecards showing that they were working at 401 Illinois the week of the layoff and reflecting that they were retained (Tr. 974). Gleason, a journeyman sheetrocker, and Donica, an apprentice sheetrocker who assisted Gleason, were both strikers. Apparently they were transferred to 401 Illinois the week of the layoff, for the preceding week they, according to Brown, re- turned to ClayDesta from the strike and worked slower than before. Brown testified that when he told Gleason 48 Of these four, only Nichols testified . Called as a witness by Re- spondent, apprentice Nichols testified that he was treated no differently after being recalled to Petro North (Tr. 921-922). 47 There is a dispute concerning whether Ernesto Armendariz and Eliseo Ibarbo should be considered strikers or whether they asked for and received permission to take off work January 25 . If they are counted as stokers, then 9 of the 10 laid off were strikers. 48 SR sheetrocker; J-SR: journeyman sheetrocker ; A-SR: apprentice sheetrocker, L laborer. 49 S striker, NS: nonstriker , R. strike replacement 285 and Donica that he needed at least 75 sheets , and prefer- ably 100 sheets a day from them , they told him they were not paid enough money to produce that much work (Tr. 1087). Brown testified that after they observed that the teams of Ron Daugherty-Matt Richardson and Norman McNeese-Paul Young were installing between 100 and 115 sheets to their 45 to 65, Gleason and Donica began hanging 75 to 80 sheets a day (Tr. 1087- 1088). Brown testified that Gleason and Donica were not laid off on February 11 (Tr. 1086). The implication is that Gleason and Donica were re- tained because they increased their output to the 75 to 100 sheets Brown told them he needed . If Brown "re- tained" Gleason and Donica by transferring them before the layoff, he failed to express that in clear terms. (2) Ernesto Armendariz and Eliseo Ibarbo Ernesto Armendariz and Eliseo Ibarbo apparently tried to straddle the fence on January 25. Although de- siring to uphold the strike , they needed to work. They, in fact, went with the group to the union hall on January 25. However, they returned to work on January 26. I credit DeVilbiss and find that he gave Armendariz and Ibarbo the day of January 25 off from work. Just how this came about is immaterial, for I find that it was the understanding of DeVilbiss that the two wanted to work but were afraid their automobile would be dam- aged if they did. Neither Armendariz nor Ibarbo is named on the list of 25 strikers DeVilbiss issued checks to the afternoon of January 25 (R. Exh. 14). I therefore find that Respondent did not consider them to be strik- ers, and that it treated them as having been granted per- mission to take off work January 25, 1983. Brown testified that he included Armendariz and Ibarbo on the layoff list because they were slow, hanging only 60 to 65 sheets a day even though both were jour- neymen (Tr. 1085). Because of his superior demeanor, I credit Armendariz that he and Ibarbo improved under Brown 's pushing so that they began hanging 75 sheets a day and even reached 86 sheets the last day they did such work (Tr. 28, 38). When Brown laid them off he told them, as he did the others, that work was slow . Those laid off were not told they were slow or that their work was other- wise unsatisfactory. In contrast to Armendariz and Ibarbo , Bill Gleason and Thomas "Butch" Donica, whom Respondent named on its list of strikers (R. Exh. 14), were retained. Brown testified that they increased their productivity to 75 or 80 sheets a day (Tr. 1088). There is no evidence that any nonstrikers or replacements who were retained did less work than Armendariz and Ibarbo. And even if there were such disparity evidence , knowledge by Respondent of the visit by Armendariz and Ibarbo to the union hall on January 25 would have to be inferred, for there is no direct evidence that Midessa was aware of their visit there. On these facts I shall dismiss the complaint allegations that Respondent unlawfully terminated Ernesto Armen- dariz and Eliseo Ibarbo on February 11, 1983. 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (3) Alvaro Fuentes and Victor Leija Neither Alvaro Fuentes nor Victor Leija testified, and the General Counsel's evidence does not cover them. As earlier mentioned, I denied the General Counsel's motion to reopen her case to allow these two to testify. Brown testified that he included the names of Alvaro Fuentes (Tr. 1083) and Victor Leija (Tr. 1081) on his layoff list. He testified that both worked slowly, and that he had planned to lay off Fuentes on Friday, January 28, but the strike intervened. Fuentes is the fifth name on the list of strikers to whom Respondent issued checks on January 25. Leija is the 11th name on the list. The presence of their names on the list, however, does not demonstrate that they were unlawfully terminated on February 11, for there are about 10 others named on the list who also returned to work and who were not laid off on February 11. I therefore shall dismiss the complaint allegations that Respondent unlawfully terminated Alvaro Fuentes and Victor Leija on February 11, 1983. (4) Ezequiel Mata Ezequiel Mata is the 25th and last name on Midessa's list of strikers (R. Exh. 14). Testifying at the trial, Mata acknowledged that he had been laid off by Midessa on three occasions prior to February 11, 1983 (Tr. 174-175). He testified that on February 11 Brown gave him two checks and told him work was slow and that he was being laid off because there was not enough work (Tr. 172). He also testified that he was never told that his work was too slow, and that he worked as fast after the strike as he had done before it (Tr. 172). He concedes, however, that after the strike Brown told him he wanted Mata and the others to hang 90 sheets a day (Tr. 166, 172, 206,. 210). Mata said nothing because he considered this an impossible goal. He testified that on a good day he can hang 60 to 65 sheets on straight walls (Tr. 196). Former Foreman James Pope testified that Mata worked for him at one time at Dinero Plaza and that Mata is a "good worker" who "knows his job," and that Mata hus- tled (Tr. 731-732). In its brief Respondent does not take issue with Mata's testimony that he worked as fast after the strike as before. It contends that Mata is a "plodder" who, when the job is running full, can be used as "filler" help, but when work gets slow he will be among the first to be laid off. Indeed, Respondent points to the fact that Meta admittedly had been laid off three times before this layoff in his 3 years of off and on work with Midessa. Respondent relies on the testimony of Foremen Cecil Patterson (Tr. 1011) and Marvin Brown (Tr. 1082) that Mata was not fast enough. Brown testified that Mats, was neither fast nor slow, and that he "filled space" when Midessa needed to show (a general contractor) that it had a sufficient number of employees on the job (Tr. 1082-1083).50 Patterson concedes that he and Mata, 60 Patterson explained that a general contractor sometimes wants to see more employees working on a job (Tr. 1019). when Mata worked at Petro North, got into an argument and Mata called him some names (Tr. 1010, 1011). Based on that concession, particular care must be taken to weigh his testimony in light of the other evidence. Actually, very little of Mata's time after the strike was spent hanging sheetrock on straight walls. Much of his time was spent on framing. The difficulty with evaluat- ing Mata's case, as with most of the others, is that there is very little evidence for comparison. That is, who was retained and how did Mata compare with them? It is true that there is some evidence to support the General Counsel's argument that Respondent sought to punish the strikers and therefore imposed artifically high work standards in order to use their inability to meet them as an excuse to terminate the strikers. Statements by DeVil- biss and Beasley on January 26 that employees who went to the union hail on January 25 could not return to work certainly reflect animus. And Midessa's toleration of 30 or 40 sheets a day at the bank job in Abilene, Texas, ar- guably tends to reflect disparity. Foreman Brown testified that there were nonstrikers and replacements hanging 100 or more sheets a day. Brown's demeanor generally was unpersuasive, and I do not believe him to the extent he suggests that such was being done as a daily average even on straight walls. David Williams testified that he considered a good day's work to be 80 to 110 sheets a day (Tr. 887).51 On the other hand, Williams testified with an unfavorable and unpersuasive demeanor. He also tended not to coop- erate when being questioned by the General Counsel, even approaching the point of exhibiting hostility. More- over, his testimony that installing sheetrock on RACO would take no longer than hanging sheetrock on the usual framing conflicts with the credible evidence (Tr. 888). It appears that much of the sheetrocking to be done in the lease area (tenant space) of the ClayDesta Bank building involved RACO. Other witnesses credibly testified that RACO slows down the hanging process. Thus, Tommy Gallegos de- scribed it as a "drown out" process that he does not con- sider the same as sheetrocking straight walls (Tr. 411- 412, 521). C. J. Clifton, job superintendent for Rose and Sons, Inc., in Abilene, Texas, so testified (Tr. 1130, 1136). DeVilbiss explained that RACO, an abbreviation for a Houston firm named Ragland Industries, consists of a suspended grid ceiling with metal tracks into which the sheetrock is slipped (Tr. 275-276). Clifton gave a similar explanation (Tr. 1137). Salvador Machuca explained that precut metal studs are inserted into the top and bottom tracks and screwed off (Tr. 612).52 That constitutes the metal framing to which the sheetrock is screwed. Machuca best described why sheetrocking on RACO slows one when he explained that the worker must meas- ure each sheet and adjust its height to the RACO fram- a' Williams had not been at work for several days before January 25, and DeVilbiss considered him as having quit. Williams is not named on Respondent's list of strikers (R Exh. 14) However, Williams did go to the union hall, was named to the Union 's negotiating committee, and is named on the Union's telegram of January 25 to Midessa (G.C. Exh 3) He was not laid off on February II and he testified he worked until being laid off around late May 1983 (Tr. 881) 52 Photographs are in evidence of the RACO system (R. Exha. 26, 27). MIDESSA CONSTRUCTION CO. ing because the floor may be uneven (Tr. 614). If there is a high spot in the floor, and a sheet, cut the same size as the others, is installed over that high spot, that sheet will lift up the grid ceiling . Finally, to facilitate sliding the sheets into the RACO tracks, the drywaller must bevel the tops at a 45 degree angle (Tr. 614). By contrast, as Clifton testified, when the sheetrocking is installed on regular straight walls, the worker merely slaps the sheet to the wall and screws it tight (Tr. 1137). Williams did not mention the measuring process, and on cross -exami- nation he conceded that he must bevel the sheetrock before installing it in the RACO system (Tr. 904). Even though I find Brown and Williams to be general- ly unpersuasive based mainly on demeanor,53 there still is some evidence, as Respondent observes at 41 of its brief, that a good day's work can consist of hanging at least 75 sheets a day. Thus, Salvador Machuca , a witness called by the General Counsel, testified that he and a good journeyman would average 80 sheets a day even though they might reach 100 on occasion (Tr. 611).54 However, DeVilbiss testified that Midessa normally tries to team a journeyman with an apprentice (Tr. 316). Former Foreman James Pope appears to have testified that in hanging on straight walls only, a responsible ,figure would be at least 75 sheets for a journeyman with a helper (Tr. 775-777). The last sentence of his mid-Feb- ruary pretrial affidavit (R. Exh. 12) states, "75 would be a real good average." Tommy Gallegos testified that although a figure of 100 sheets a day could be reached, it could not be sustained, and 65 to 80 sheets would constitute a good day's work (Tr. 413). This is in line with one of his pretrial affida- vits, described shortly, in which Gallegos, apparently de- scribing RACO, asserts that on a "good day" he could hang 100 to 110 sheets with a helper (R. Exh. 11 at 5). At another point Gallegos testified that 35 sheets would be a good half-day's work on RACO (Tr. 426). That computes to 70 sheets on RACO for a full day. I also have considered the rebuttal testimony of C. J. Clifton that 50 sheets a day is a good day's work for a 2- man crew (Tr. 1131). Although Clifton testified with a very persuasive demeanor, it must not be overlooked that ostensibly Midessa needed to increase its productivi- ty.55 I note that DeVilbiss acknowledged telling the in- vestigating Board agent that 50 sheets would be the standard average for a team (Tr. 338). Unfortunately, the testimony is uncertain concerning whether DeVilbiss was speaking of straight walls or an average for all types of work. His testimony can be interpreted in different ways. If he meant it as an average of all, both straight walls and core work (bathrooms and stairwells), then that would be consistent with Respondent's seeking an average of 75 or more sheets on straight walls on ss This is not to overlook Williams ' incredible testimony regarding the RACO, nor the fact that Brown 's testimony is inconsistent with that of DeVilbiss in certain respects as previously noted 34 His testimony that two journeymen might possibly hang 200 sheets in I day is not of much value because he qualified that by saying it could only be for I day and would involve using fewer screws than normally required for proper installation (Tr. 637). ss Respondent did not offer any surrebuttal evidence showing why DeVilbiss would have Midessa pushing for at least 75 sheets a day in Midland while tolerating 30 to 40 a day in Abilene. 287 RACO. On the face of this record, an effort to push em- ployees from an average of 50 to an average of 75 sheets on straight walls of RACO would be within the realm of the reasonably possible. However, the strikers, such as Ernesto Armendariz, when pushed hard by Brown, were hanging 75 to 85 sheets of RACO a day. As we see below in the discussion of Gallegos ' work in the lease area, 75 sheets a day on RACO, as an average, apparent- ly is not a number beyond the reasonably possible. I find that the figure for a "good day's work," "that is, one of substantially high production , for a journeyman- apprentice team would be 75 to 80 sheets a day as a con- sistent average hanging on straight walls of RACO.56 To the extent the testimony of Brown and Williams is in- consistent with this, I do not credit them . It is to be noted that with the possible exception of David Wil- liams, none of the employees Brown referred to as hang- ing 100 to 115 sheets a day testified. In light of all the record, it cannot be said that the General Counsel has demonstrated that Respondent dis- criminatorily selected Mata for layoff on February 11, 1983. 1 therefore shall dismiss that allegation regarding Ezequiel Mata. (5) Thomas Gallegos and Cuahtemoc Anguiano (a) Introduction Journeyman Thomas B. Gallegos Jr.57 and apprentices Cuahtemoc "Temo" Anguiano worked as a team. Both were strikers. Anguiano returned to work on January 31 and Gallegos returned on February 1. On February 11 Foreman Brown told them that they were being laid off because work was slow and that he would call them back later (Tr. 240-241, 410). Gallegos testified that he thought Brown's reason was a lie (Tr. 563). Although Brown said nothing to them on that occasion about their work being slow, poor, or otherwise unsatisfactory, An- guiano testified that on that February 11 he heard from someone, he could not recall from whom, that he was being laid off because he was working slowly, an accusa- tion he rejected at the trial (Tr. 241). Gallegos testified that although there were rumors of an impending layoff, the rumors said nothing about poor productivity as the basis (Tr. 411). Indeed, Gallegos testified that it was mainly the identity of those selected for the layoff that surprised him; although he testified, the job had not peaked so as to call for a layoff at that time (Tr. 418- 419). Foreman Brown, while not addressing the subject of what reason he gave Gallegos or any of the employees on February 11, testified that he named Gallegos and Anguiano to the layoff list (Tr. 10630): 56 There seems to be a clear difference between a "good day's" work and work done on a "good day" within the meaning of the testimony. With the first term the witnesses seeemed to be referring to a good aver- age, whereas with the latter they appear to have been describing days when they approached their highest production figures. sr Also referred to in the record as Tommy Gallegos 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Because they did not work. What work they did was in bad shape. I had to send people to redo the work-take it down and start over. As a witness, Brown principally criticized three specif- ic projects Gallegos and Anguiano worked on (Tr. 1063- 1075, 1020-1021): 1. Poor productivity in hanging sheetrock, and incorrectly cutting holes in the sheets for the elec- trical boxes, in a lease (tenant) area one morning. 2. Poor productivity in building two furrdowns 30 feet long on the east side of the bank building the week of the layoff. 3. Incorrectly installing some CH studs in the stairwell on the north side of the bank building on February 9, 10, and 11. In addition to these principal items, Brown also testi- fied that when Gallegos returned from the strike he as- signed him back to the south side restrooms where Gal- legos had been working before the strike. Brown testi- monially complained that Gallegos seemed to take "for- ever" to sheetrock one of the restrooms after the strike (Tr. 1071). (b) The restrooms Before we begin a discussion of the principal work projects Brown criticized, a look at the initial assignment Brown made is in order. When Gallegos returned from the strike on Tuesday, February 1, 1983, Brown returned him to the south side restrooms. Returning on Tuesday, February 1, Gallegos was back 9 working days before being laid off at the end of the day on Friday, February 11.58 Four days his first week back, and 5 days his second and final week . In his testimony on direct and cross-examination , Gallegos covered these 9 days in ex- tensive detail . That recitation, a remarkable feat in itself, not only provides support for Gallegos' credibility, but also in conjunction with his two pretrial affidavits, con- tains certain discrepancies that Respondent argues de- stroy Gallegos' credibility. Resolving credibility in this case is quite difficult. As earlier observed, Gallegos, personable, intelligent, and ar- ticulate, testified with a demeanor that had surface appeal. Anguiano testified through an interpreter and seemed sincere . The demeanor of Foreman Brown was very unfavorable and unpersuasive . On the other hand, although there are some discrepancies in Brown's testi- mony, there are numerous inconsistencies between Galle- gos' testimony and his pretrial statements or the balance of the record. These include, as we have seen, the mis- representation made by Gallegos to the investigating Board agent . 59 Naturally a witness must be granted a 58 There is an issue concerning whether Gallegos was off sick 1 day about Wednesday, February 9, 1983, but that will be discussed later. 59 The misrepresentation , pertaining to the source of a copy of Re- spondent's rules, was not about a substantive matter regarding Gallegos' case Nevertheless, because it was made in a Board affidavit , the deliber- ate misrepresentation seems to assume an importance that exceeds its in- trinsic materiality certain margin for minor errors in attempting to describe past events. The question to be resolved is whether the several discrepancies of Gallegos go beyond a reasonable margin as to number or significance. Turning now to Tuesday, February 1, see that Galle- gos agrees that he was assigned to the south side rest- rooms. Specifically, it was a fourth floor restroom. He worked there all day with Anguiano without finishing it (Tr. 360, 362, 475). Gallegos testified that the framing there was out of plumb and he pointed this out to Brown, who said he was going to fire the person respon- sible for it (Tr. 361, 489). Gallegos Anguiano had to re- frame some of the area before they could begin sheet- rocking. On Wednesday, February 2, Anguiano had car trouble and did not arrive until noon (Tr. 234, 362, 494). Brown had Gallegos on assignments with Salvador Machuca other than the restrooms that morning .60 After lunch Gallegos and Anguiano teamed up and again were as- signed to the fourth floor restrooms (Tr. 377, 516). Gal- legos testified in some detail concerning their having to go to the north end of the building to obtain the green liner board to be used, which they worked on installing the rest of the day (Tr. 378, 517-519). The next morning, Thursday, February 3, Gallegos and Anguiano were assigned to install sheetrock in the lease area of the fifth floor. Their work there is discussed below in a separate section. After lunch, however, they were reassigned to the fourth floor restroom again (Tr. 382, 531-532). On the morning of Friday, February 4, Gallegos-An- guiano were assigned to the same fourth floor restroom, where they worked until lunchtime (Tr. 382, 532). Around 1 p.m. Brown and Carrillo pulled Gallegos-An- guiano from their work in the restroom and assigned them to sheetrock a furrdown on the fifth floor (Tr. 383, 532-533). It developed that there was a construction mis- alignment between the bottom of the furrdown and the top of a window, so after about 30 minutes Gallegos and Anguiano were reassigned back to the fourth floor rest- room where they worked the rest of the day (Tr. 385, 536).81 At no time, Gallegos testified, did Brown com- plain about his work (Tr. 385). In contrast to Brown's generalized criticism of the work by Gallegos-Anguiano, Gallegos testified in detail. Although there is some discrepancy between Gallegos and Machuca regarding the last hour and a half of that Wednesday morning, it is clear that Gallegos was not re- assigned to the restrooms until after lunch , when An- guiano returned. As seen from the foregoing summary, Gallegos and Anguiano were frequently pulled off their work in the restrooms and reassigned elsewhere. In light of the foregoing, and in view of Brown's un- persuasive demeanor, I do not credit Brown regarding his generalized criticism that the Gallegos-Anguiano 60 The accounts of Gallegos and Machuca differ regarding the last part of the morning , but the significant point here is that Gallegos was not assigned to the restrooms the entire morning of February 2. 1983. 81 There is more than one restroom on each floor. Anguiano credibly testified that they worked in three restrooms (Tr 4049) MIDESSA CONSTRUCTION CO. team was slow in the work the team did on the south side restrooms. (c) The lease area Respecting the fifth floor lease area (space of the bank tenants), Brown testified that during one half-day period the Gallegos-Anguiano team installed only 21 to 23 sheets. That would be "42 in a day" which, Brown testi- fied, is not acceptable work productivity. According to Brown, during this same timeframe he had another two- man team on the fourth floor hanging 75 sheets a day, and two other groups on different floors doing identical work who were hanging 100 to 115 sheets a day. More- over, not only were Gallegos-Arguiano working slowly, they ruined four to eight sheets by cutting 4 to 6 inch holes for the electric boxes rather than the required 2 to 3 inches (Tr. 1072). According to Brown, when he con- fronted Gallegos about the oversize cuts, Gallegos assert- ed that there was no problem because the person doing the taping and bedding would fix it. 62 Rather than having Gallegos install replacement sheets, Brown, testi- fying that he was at rope's end with the poor quality and speed of the Gallegos-Anguiano team, allegedly sent Norman McNesse to redo the work (Tr. 1073).63 Gallegos (Tr. 381, 526) and Anguiano (Tr. 226) place the number of sheets hung at approximately 35. They testified that the electrical power was off that morning until the 10 a.m. break. 64 Gallegos testified that during the power outage he precut 15 sheets for installing in the RACO system, and that after the morning break he and Anguiano precut an additional 20 sheets in the process of hanging about 35 sheets by noon (Tr. 380, 526). He ex- plained on cross-examination that the 35 was not the equivalent of hanging 140 sheets in an 8-hour day (four 2-hour segments x 35 sheets because he had been able to precut 15 sheets during the power outage . Respondent, in its brief at 50, asserts that Gallegos either dragged his feet during the (alleged) morning power outage, or lied about the amount of work he did betwen 10:15 a.m. and noon. However, it appears that Gallegos was a minute late that morning and therefore had to wait 30 minutes before he could go on the clock, or to work (Tr. 378, 519, 522). The available worktime was therefore about an hour and a half before the 10 a .m. break. Although Respondent points to Gallegos ' testimony that 65 to 80 sheets would be a good day (Tr. 413), Gal- legos apparently was describing regular straight wall work at that point, not hanging sheetrock in the RACO system. Elsewhere, however, Gallegos did testify that 35 sheets would be a good half day's work on RACO (Tr. 426). That would work out to be about 70 sheets a day on RACO. At page 5 of his supplemental pretrial affida- vit of March 15, 1983, Gallegos asserts: 62 Brown erroneously places this conversation "2 to 3 days before the layoff' (Tr. 1074). As we shall see , the last 4 days of the second week devoted to the two furrdowns and the stairwell The lease area work clearly occurred in the first week that the strikers returned Ba Brown elsewhere named McNeese as one of the strike replacements he had not released when the strikers returned (Tr. 1049) 64 Gallegos testified without contradiction that Ron "Rick " Daugherty informed Brown that the power was out (Tr. 523). 289 On a good day I could hang 100-110 with a helper. It depends on the work assignment. Although it is not entirely clear that Gallegos was there referring to 100-110 on RACO, he in fact had just fin- ished describing other employees installing sheetrock on lease area walls with the RACO system (R. Exh. 11). Anguiano denied that they ruined any sheets by cut- ting oversize holes for the electrical boxes (Tr. 254-255), and Gallegos testified that the holes he cut were correct fits and that no one ever said otherwise (Tr. 532). In fact, Gallegos testified, Brown and leadman Carlos Carrillo checked the work after lunch, and Brown declared it "okay" before they reassigned Gallegos-Anguiano back to the fourth floor restroom for the balance of the day (Tr. 382, 531-532). 85 As Gallegos was not called during the rebuttal stage, Brown's statement that Gallegos said the person doing taping and bedding would cover the extra gaps is only impliedly denied by Gallegos. Because of Brown's unpersuasive demeanor, and the combined testimony of Gallegos and Anguiano, I do not accept the version given by Brown , and I credit the ac- count by Gallegos and Anguiano. (d) The two furrdowns Gallegos testified that the morning of Tuesday , Febru- ary 8, he and Anguiano were assigned to build two par- allel +furrdowns 30 feet in length at the east entrance to the bank building (Tr. 387, 537).66 The testimony on this subject, covering many pages by several witnesses, is very conflicting. The basic dispute centers on (1) wheth- er Gallegos and Anguiano had to take the time to finish building a scaffold, or whether one was already in place and (2) whether Gallegos and Anguiano took too long in building the furrdowns. A significant subsidiary question is whether Gallegos was out sick on Wednesday, February 9. It is significant because it bears on the credibility of Gallegos , who testi- fied that on that day his wife called to report his absence because of sickness (Tr. 405, 467, 555). On cross-exami- nation he acknowledged that in his pretrial affidavit at 6, February 14, 1983, he reported working on February 9 (Tr. 469; R. Exh. 10). He then seemed undecided wheth- er to assert that it was February 9 or 10 that he was out ill (Tr. 469-470). It is worthy of note that Anguiano never mentions Gallegos as having been absent . To com- pound the confusion, Gallegos thereafter testified that he was paid for the missed day through Midessa 's oversight (Tr. 591 ). Such an oversight, of course, would explain why his timecard might not reflect any absence. Re- spondent never produced the timecard for that week. It is clear that work on the two furrdowns stretched over the 3-day period of Tuesday, February 8, through Thursday, February 10, even without regard to the ques- tion whether Gallegos missed a day. This is not to say 65 Although Gallegos testified that he thought the reassignment was unusual (Tr 531 ), it certainly was in keeping with all the switching Brown was making in Gallegos' assignments. 66 On Monday, February 7, Gallegos and Anguiano worked 1 hour in a restroom on the fifth floor, and then enclosed an elevator mechanical room during the balance of the day (Tr. 386, 536). 290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Gallegos and Anguiano worked the entire time on the furrdowns. Indeed, Gallegos testified that the weath- er was so cold, around 15 degrees Fahrenheit, on Tues- day, February 8, that he persuaded Brown/Carrillo to move Anguiano and himself inside , where they worked that afternoon enclosing windows on either the third or fourth floor (Tr. 389, 404, 550, 551, 553). This brings us back to the two pretrial affidavits of Gallegos. The first affiddavit (R. Exh. 10) is dated Feb- ruary 14 just 3 days after the February 11 layoff. The supplemental affidavit is dated March 15 (R. Exh. 11). Although both statements refer to the cold weather on the furrdown job, neither refers to Gallegos as having been off work 1 day. At 6 of his February 14 affidavit, Gallegos states Prior to the walk out, when it was cold, the Com- pany would send us home; even if it was in the 30 degrees. On [a date is crossed out at this point] 2/9 it may have been 15 degrees and we were required to work outside-on 40 feet of scaffolding. The scaffolding was frozen, due to the sleet and rain and there were no hand rails, no safety belts and wooden planks for metal foot rails. I requested a safety belt from Carlos Carrillo and he told me the belt was in more need at another job detail . I asked why we weren't being sent home and Marvin Brown told us that it was entirely up to Joe Beas- ley. After lunch I asked Brown for myself and my partner to be assigned some other work, as I thought it was dangerous working on the scaffold- ing. He sent us to the fourth floor to work-this is inside work. No one else was sent on the scaffold- ing. It was still freezing working on the fourth floor. The supplemental affidavit, at 3, refers to the cold weather as being on "one of the days " they worked on the furrdown, but does specify that it was the date that Gallegos made a request for Anguiano and himself to be assigned inside because it was sleeting and the scaffold's walk boards were frozen. It states they were assigned to the third floor. By Gallegos' count, he and Anguiano worked 1-1/2 on this assignment: the morning of Tuesday, February 8, fin- ishing building the scaffolding and performing certain other odds and ends, and all day Thursday , February 9, building the two furrdowns . Gallegos concedes that they did not get the second one braced, but did get the first one built and braced and the second one built. Rod Black was the carpenter foreman for Area Build- ers on the ClayDesta project. Called by Respondent as a witness, Black testified that when the strikers came back to work he complained to Brown about Midessa's slow production speed, and that Brown replied that he would get to it and was doing the best he could (Tr. 835, 840). Brown did not describe to Black what he considered the problem to be. Black testified that his laborers for Area Builders constructed a scaffold that was there for Midessa to use in building the furrdowns at the east entry to the bank (Tr. 835, 840, 848). He described the scaffold as being in three sections, 24 feet high (Tr. 835), and that the furrdowns were to be attached to the bottom of the third floor, some 28 feet above the ground floor (Tr. 843). He did not stand and watch the Midessa employees building the furrdowns , and he concedes that he does not know what kinds of problems they may have encountered in building the furrdowns (Tr. 841). William Chandler Simonds worked on the ClayDesta project as a layout carpenter for Area Builders. After the strike, he testified, Simonds observed that Gallegos was working "quite slowly" in building the furrdown67 and "was standing around a lot." (Tr. 813) Because Simonds needed Midessa to finish so the stucco workers and then the glaziers could do their work in the east entry, he kept coming back to check on Midessa 's progress. Simonds testified that the scaffolding, 8 feet in length, was already in place, did not have to be built, and would only have to be moved four times in the process of building the 30-foot curtain wall (Tr. 814, 815, 820).68 Acknowledging that there were two curtain walls, or furrdowns, to be constructed (Tr. 815), Simonds express- ly limited his estimate of construction time for the first furrdown to 1 day (Tr. 813, 823).69 This presumes that the scaffolding was in place and ready to use. Simonds concedes that if Gallegos had to get his own materials that would add more time to his estimate of the neces- sary time (Tr. 821 ). Simonds admits that he has never built any curtain wall himself (Tr. 819). Simonds asserts that it took Gallegos and his helper 3 days to do this 1-day job (Tr. 813, 820, 823). We know, of course, that Gallegos and Anguiano worked on both furrdowns, not just the one Simonds described in his tes- timony. Simonds testified that about the second day of this work he complained to Brown that the workers were taking way too long (Tr. 813, 830). He did not recall whether he registered his complaint in the morning or afternoon. Brown, according to Simonds, replied, "Yeah, I know, but there is nothing that I can do about it." Either later that day or on the third day Simonds com- plained in stronger terms, but he received essentially the same answer from Brown (Tr. 830).7 0 Simonds concedes that while he did not stand around observing the work for the 3 days, he was on the scene frequently enough to know that if the Gallegos-Arguiano team received any other job assignments during the furrdown job, such as- signments could not have been for very long (Tr. 819- 820). Simonds explained that the slow work he observed consisted in Gallegos and Anguiano not working togeth- er. That is, "You would generally have one guy on the 87 Simonds expressly referred only to the one furrdown needing insula- tion to be scraped from the bottom of the third floor before installation (Tr. 815, 817, 818, 823) 88 A certain wall is also known as a furrdown (Tr. 812) "Thus, the two furrdowns would have taken roughly 2 days, or pos- sibly slightly less than a full 2 days 10 Foreman Marvin Brown named only Rod Black as complaining to him and, Brown testified , he went and told Gallegos to hurry (Tr. 1065) Gallegos denies this (Tr. 406). Brown testified that he complained to Su- perintendent Beasley and requested permission to get rid of Gallegos and Anguiano because they had been "up there 3 days" and only had one (furrdown ) halfway built . Beasley denied permission on the basis that Midessa first had to check with its lawyer (Tr 1069) MIDESSA CONSTRUCTION CO floor either cutting things to length or whatever, turn the laser on or what have you, and the other guy doing whatever he needs to do, shooting up, screwing up, or whatever he is doing-working together so they can both be working at the same time ." What Simonds ob- served, he testified, was one man working on the scaf- fold while the other watched (Tr. 831). Simonds appar- ently was not aware that Anguiano was not a journey- man, but an apprentice . Gallegos testified that it was very unusual to work nearly 30 feet up on a scaffold with only 2 employees (Tr. 556). In his supplemental pretrial affidavit of March 15, 1983, Gallegos explained that on such a high job there are normally two journey- men and a helper (R. Exh. 11 at 4). As Gallegos further explained there, the helper (Arguiano) operates the chop saw to cut the heavy gauge metal used and keeps the journeymen supplied with the pieces for the framing so that the journeymen do not have to come down from the scaffolding. Here the chop saw and materials were on the second floor level (Tr. 557). Moreover, Anguiano credibly testified that he did some of the installation work using the screw gun. Elaborating on his description of slow progress, Si- monds testified that he observed Gallegos and Anguiano standing around talking about nonwork matters as he walked by (Tr. 827). He then admitted that he does not understand Spanish and would not have understood a conversation in Spanish (Tr. 827). 71 However, Simonds then testified that they were not necessarily talking to each other when he walked by , for there were other em- ployees there. Thus (Tr. 828): If I were to walk by and start talking to them, they would speak to me in English . If another person who didn't speak Spanish [came by] and they were wanting to converse on some subject, they would speak in English. [Emphasis added.] Simonds followed this by testifying that on occasion he stopped to talk with them to see how the work was pro- gressing and what problems they were having (Tr. 828). He never described any specific problems at the trial. It is difficult to believe that had Simonds asked Gallegos about any problems,72 the latter would not have men- tioned the severe cold weather at the very least. An- guiano testified that it took them longer than normal on the job because of, in part, the fact that the weather was so cold it hurt his hands and he could not hold the screw gun (Tr. 132, 252, 269). As we already have seen , Galle- gos testified that it was so cold on that first day (Tues- day, February 8) that he requested Brown/Carrillo to re- assign Anguiano and himself to work inside. 73 In his pre- trial affidavit of February 14, 1983, Gallegos estimated the temperature that first day of the furrdown assign- ment to be about 15 degrees. His request was granted. 71 Anguiano, it will be recalled , had to testify through an interpreter. 72 Notwithstanding the "they" in his testimony, it is clear that Simonds never conversed with Anguiano beyond a smile and a hello Simonds does not speak Spanish , and Gallegos would have had to speak for An- guiano in English. 73 At 3 of his supplemental pretrial affidavit of 3-15-83, Gallegos as- serts that everyone else was working on the inside (R. Exh. 1I). 291 Finally, Simonds testified that after he, Simonds, placed the marks for locating the curtain walls, it was Gallegos who used a laser beam device to set the marks for drawing the chalk lines they would make and follow (Tr. 814, 818, 823). Yet David Williams testified that it was he who set line marks with the laser and did the layout of chalk lines for the furrdown in the east en- trance (Tr. 891-892, 907-908). Aside from that testimony conflicting with Simonds' regarding Gallegos having used the laser, it also conflicts with Simonds' testimony that the laser would not be used until the stucco or blown insulation material had been scraped from the first beam and then the lines marked and chalked (Tr. 822). Gallegos, indicating that someone had been there first with a laser to set pencil lines, testified that leadman Carlos Carillo set the chalk lines on the floor and aserted that he, Gallegos, set the chalk lines on the "deck" (bottom of the third floor) where the furrdowns were to be attached (Tr. 537-540, 550). It is quite possible that Gallegos used the laser device to match the lines on the deck with the chalk lines already on the floor . 74 Finally, it appears that the pencil lines were drawn by Simonds who testified that he made lines with either a pencil or soap stone, he could not recall which (Tr. 825). Returning for the moment to the time estimate, we may recall that Simonds called the one furrdown a 1-day job. With two furrdowns, the job would take roughly 2 days, or a little less, even under Simonds' estimate. Fore- man Brown testified that the job of building both furr- downs should have been completed in 4 to 6 hours (Tr. 1064-1065). That figure is based, he testified, on the scaf- folding being in place and ready to use. And David Wil- liams testified that he could do the job in a mere 2 to 3 hours (Tr. 890). I do not credit Williams. In his zeal to portray himself as a superfast worker, Williams rein- forces the disbelief engendered by his unfavorable de- meanor. Respondent asserts in its brief at 51 , that "Anguiano himself testified it should be a half day's work." (Tr. 251.) `This overlooks the fact that Anguiano testified it took Gallegos and him 1 -1/2-2 days to do the job be- cause of (1) the severely cold weather, (2) they had to get off and on the scaffolding to get the necessary equip- ment and materials , and (3) they twice had to disassem- ble the scaffolding and move it, and even then they did not quite finish the work (Tr. 231, 252-253). Although Brown testified that Gallegos and Anguiano worked 3 days on the project without finishing it (Tr. 1063, 1069, 1116), he acknowledged that in his pretrial affidavit, which he gave to the investigating Board agent, he said it took them 2 days (Tr. 1116).75 Preliminary Conclusions Brown's March 14 pretrial version of 2 days matches not only Anguiano's recollection , but also that of Galle- 7' 1 do not credit Williams regarding his testimony about setting lines here His demeanor was generally unconvincing , and his testimony con- flicts with both that of Gallegos and Simonds 75 He threw this difference off at trial with a flippant , "It took them actually 3 days , so I made them sound better than they were." The affi- davit is dated 3-14-83 (Tr. 1117). 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gos who testified, as earlier noted, to a day and a half.76 One kink in Gallegos' line of testimony is his asserted ab- sence on Wednesday, February 9 (which would have been the second day), and further complicating story that Respondent, through oversight, even paid him for the day of absence. Another kink in Gallegos story line is the building of the scaffolding. According to Gallegos, he and Anguiano spent from early morning to 11 a.m. on (1) conferring with Carrillo about the layout lines; (2) searching for the extra parts needed for the scaffolding; and (3) building the rest of the scaffold. Gallegos never asserted there was no scaffolding there; it is just that it was incomplete. Anguiano seemed to testify that the scaffolding did not have to be built, but had to be moved twice, with each move requiring 10 to 15 minutes (Tr. 231). On the other hand, Simonds, as we have seen, testified that the scaf- fold he referred to was 8 feet in length and therefore would have to be moved four times to cover the distance of the first 30-foot furrdown. Gallegos testified that not only he did he and Anguiano add a top section, but they also added three other sections-apparently lengthening the scaffolding (Tr. 542, 546-547). Although Gallegos' Testimony certainly is not a model of clarity, it dovetails with Anguiano's testimony, which I credit, that they moved the scaffolding only twice. Even this leaves open the question of whether they moved it once to reach the starting place, or whether they moved it twice from the starting point. That question probably cuts too fine. An- guiano was not examined closely regarding this point. He did testify that the scaffolding was long enough (Tr. 253).77 Thus, it would appear that the 8-foot-long scaf- fold described by Simonds had been extended by Galle- gos and Anguiano. I am persuaded preliminarily that Simonds' faulty recollection of events is the product of the passage of time before he was called on to testify. Apparently un- aided by having recorded in February or March his ob- servation of the events in question, the details of those events appear to have eluded him by the time of trail. As for Brown, his demeanor was unfavorable, and I prelimi- narily do not credit him when he disputes Gallegos or Anguiano. Arguably Gallegos and Anguiano worked on this project for 1-1/2 days, as they described. Whether Galle- gos actually was absent on February 9, or February 8, or February 10 is immaterial. It is just possible that he was not absent at all, and he started the curtain wall project on Wednesday, February 9 rather than Tuesday, Febru- ary 8. But I need not speculate if I credit them in their testimony that they worked only 1-1/2 days on the project. When the severely cold weather is considered, along with the fact that Gallegos and Anguiano built most of two furrdowns, and not one, as well as assembling the additional scaffolding, it is quite clear that 1-1/2 was well within Simonds' estimate for roughly 2 days to build the two furrdowns (even without counting the scaffolding). And even if Rod Black and Simonds complained to Brown about the progress, Brown would know that it was not any fault of Gallegos and Anguiano. Brown would know that it took time to build the balance of the scaffolding, and he would be aware that he had allowed Gallegos and Anguiano to join all other employees working inside on that bitterly cold first day. Even the second day was no doubt still cold. If, therefore, Si- monds walked by on the second day and observed, he may very well have seen Gallegos standing on the ground-trying to get warm. Certainly the fact that Gal- legos and Anguiano nearly completed both furrdowns on the second day would not have left them any time to be standing around loafing. Finally, Simonds described his visits to the east entry without any mention of the weather. One would think that he was describing a stroll on a delightful spring day, and that he found Gallegos and Anguiano enjoying the beautiful weather by standing around on the ground floor conversing (in English, no less) with whoever happened to be passing by. Simonds appeared to be a sincere witness. It seems, however, that he was unsuccessful in attempting to recall on June 10 events that had occurred 4 months earlier. (e) CH studs in the stairwell In the stairwells at the ClayDesta Bank Building, Midessa installed liner board (a type of sheetrock) in what is called CH channel or studs. The studs are so called because in their double configuration the face of each end has one half shaped like a "C" while the other is in the form of an "H." (Tr. 266.) The liner board has a green water resistent covering (Tr. 270-271). At the trial Anguiano demonstrated how the liner board fits into the CH studs (Tr. 259-260). There is no dispute that the only method by which this material can be installed is by screwing one stud to the wall, then sliding the first end of the liner board into the track of that stud, then fitting the second stud over the remaining end of the liner board, and, finally, attaching the liner board and second stud to the walls with screws. If both studs were to be installed first, there is no way the liner board can be in- serted. The only sequence is: stud, liner board, stud. Brown, as noted, testified that one of the principal rea- sons he included Gallegos and Anguiano on the layoff list was because they incorrectly installed some CH studs in three floors of the north stairwell (Tr. 1065-1066). Ac- cording to Brown, not only were the studs screwed off without the liner board being inserted, but the studs were even installed backwards (Tr. 1066). Brown testified that Gallegos and Anguiano began the stairwell project about noon on the Wednesday before the layoff of Friday, February 11, and worked on it all day Thursday and Friday (Tr. 1067). In short, it was the last 2-1/2 days of the week of the layoff.78 76 Gallegos also set the time at 1 -1/2 days at 3 of his supplemental pre- trial affidavit of 3-15-83 (R Exh 11) 77 As the furrdowns were about 10 to 15 feet apart (Tr 387), the scaf- fold had to be moved over to the second one (Tr 269). 7M Already, as we can see, there n a problem regarding time The two furrdowns were built this same week Brown testified the furrdowns took 3 days. Now the stairwell, in the same week, takes 2-1/2 days. MIDESSA CONSTRUCTION CO. Asked when he discovered this, Brown testified that he discovered "shortly after they started" that the work was being done incorrectly (Tr. 1067). However, he thought he might learn a new trick on speeding things up, so he asked some other (unidentified) people to walk by and let him know what they thought . They reported that "they" had never seen the work done that way. Brown even confronted Gallegos, asking whether Galle- gos had ever hung CH before. Gallegos responded that he was an interior mechanic and knew what he was doing and did not need Brown's advice. Brown said he did not think it would work that way. To this remark Gallegos, Brown testified , repeated his statement that he was an interior mechanic and knew what he was doing. Brown left and on Thursday (February 10) Brown brought Superintendent Beasley to the stairwell around 10 a.m. when Gallegos was two floors above. He showed the work to Beasley, who just shook his head. Brown told Beasley that the work would have to be redone, and asked permission to get rid of Gallegos and Anguiano because, "They are killing my payroll ." Beas- ley said that the "lawyer" said Midessa had to keep them. Beasley said just to let it go , to let them keep going and "we will find out if we can get rid of them." (Tr. 1067-1070, 1074- 1075). Brown testified that this was the first time Gallegos had been assigned to install CH studs on that job (Tr. 1121). Brown testified that on Monday, February 14 (after the Friday layoff) he as- signed leadman Carlos Carrillo to correct the work (Tr. 1067, 1075). In very brief testimony, Carrilo testified that he ob- served that on the second floor level on the north side the CH studs had been screwed "oft" (meaning screwed in) backwards without liner board. Although Carrillo did not specify exactly when he saw this, other than that it was after the strike, nor assert that he corrected the problem, he did testify that it was Gallegos and An- guiano who had installed the studs (Tr. 805-806). Carrillo's testimony is rather ambiguous concerning whether he observed Gallegos in the act of the installa- tion process. The testmony is subject to the interpreta- tion that Carrillo knew that Gallegos and Anguiano were working in the stairwell, or was so told, and when he went there (presumably on Monday, February 14) to correct the work he found it as he described and as- sumed that Gallegos and Anguiano had done it that way. Of course, his testimony can also be interpreted as mean- ing that he personally observed them installing the studs incorrectly. Gallegos testified that on Friday, February 11, he and Anguiano were assigned by Carrillo to enclose the north stairwell using CH studs and 1-inch liner board; that they did this for five floors, going from the second through the sixth floors; and that it was done properly , with the liner board inside the CH studs (Tr. 406-408, 558-560). Anguiano also testified that they worked on this the day of the layoff, although he recalled that they worked on three floors (Tr. 258, 261). Gallegos testified that he has performed this work for many years and he denied screwing off the CH studs without installing the liner board (Tr. 409, 559). Bringing the issue into sharp focus, Gallegos, in a straightforward 293 fashion, testified that if he had screwed off (i.e., screwed in) the CH studs without the liner board, then it could not have been a mistake and it would have had to have been intentional on his part (Tr. 561). In short, if he did it that way, Gallegos admits that such would have been sabotage by him. Anguiano testified that he was aware the liner board (which he knew as core board) could not be installed if the CH studs were both screwed in first (Tr. 260). That knowledge, plus his demonstrated assembly during cross- examination, shows that Anguiano could not have been mistaken either. 79 Anguiano denied that he installed the studs without the liner board (Tr. 261).80 Conclusions Gallegos and Anguiano testified with a fully believable demeanor on this point, and Brown's demeanor was completely unfavorable. Moreover, Brown's entire ac- count of this subject, aside from being delivered in an unbelievable manner, has no internal logic. He was total- ly unconvincing in his testimony that the same afternoon Gallegos and Anguiano started, Brown knew they were doing it wrong but did not correct them because he thought they might teach him a new trick. Yet Brown still knew it was wrong and that is why he supposedly brought Superintendent Beasley (who did not testify) over the next morning, showed him the work, and re- quested permission to "get rid of" Gallegos and An- guiano.81 I am to believe that Foreman Brown knew on Wednesday that the work was being done wrong (and backwards at that), that Superintendent Beasley knew it by 10 a.m. on Thursday, February 10, yet neither of them instructed Gallegos and Anguiano to begin doing it correctly. That tale is unworthy of belief. Even if they wanted to check with Midessa's lawyer, one cannot imagine that Midessa would permit Gallegos to continue installing the material incorrectly . Brown's account would have had a more believable logic had Gallegos been ordered to change methods, or if Midessa had fired Gallegos on the spot. Midessa did neither. But what of the testimony of Carrillo? As Respondent observes at 54 of its brief, Gallegos admitted that he and Carrillo were good friends in their working relationship both before and after the strike (Tr. 395). Carrillo never clearly testified that he saw Gallegos and Anguiano in the process of doing the incorrect installation . If he so intended to testify , then we have one more experienced leader walking away from work being done incorrectly. That story has no more logic or conviction coming from Carrillo than it does from Brown. To the extent Carrillo testified that he really did not see what had occurred until he arrived at the second 98 Anguiano testified that leadman Carlos Carrillo showed him how to acemble the CH studs and liner board (Tr 259). He did not say whether this instruction was the day of the stairwell assignment or at some earlier time. so Anguiano testified through an interpreter. At some points he had some difficulty understanding the precise question However, he testified very clearly and credibly that he inserted the liner board inside the studs (Tr. 261). Si 1 draw the inference that had Superintendent Beasely testified, his testimony would not have supported Brown. 294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD floor on Monday, February 14, to correct the problem on assignment by Brown, at which time he found the stairwell at the second floor level in the mess described, I do not credit him.82 Brown 's testimony is to the effect that Gallegos and Anguiano were allowed to continue on their merry way goofing up the entire stairwell (or at least the three floors Brown mentioned the assignment consisted of). Yet Carrillo strangely describes only the stairwell at the second level. Carrillo did not testify con- vincingly, and I do not credit him. In light of the foregoing, I find that no problem exist- ed with the stairwell work of Gallegos and Anguiano. (f) Preliminary conclusions regarding Gallegos- Anguiano At this point it would seem that Midessa , through Foreman Brown, placed the names of Gallegos and An- guiano on the February 11 layoff list to punish them, particularly Gallegos, for their union and other protected activities in violation of Section 8(a)(1) and (3) of the Act. This is especially true regarding Gallegos, who was a principal leader in the activity by the employees. In light of the demonstrated union animus of both President DeVilbiss and Superintendent Beasley , it is immaterial that the General Counsel did not allege or prove any un- lawful threats or interrogation by Foreman Brown. If Brown gave false reasons for selecting Gallegos-An- guiano for layoff, I may infer from such contrived pre- texts that his motivation, and that of Respondent, was to get rid of Gallegos because of his union and other pro- tected activities. It is well settled that when the asserted reasons for a discharge fail to withstand examination, the Board can infer that there is another reason-an unlaw- ful one that the employer seeks to conceal-for the dis- charge. Louisiana Council No. 17, AFSCME, AFL-CIO, 250 NLRB 880, 886 fn . 38 (1980). As Anguiano was the apprentice assigned to Gallegos, Anguiano also was sev- ered from employment as a natural consequence of the reasons Brown assigned for terminating Gallegos. Although Respondent has not raised the point, consid- eration should be given to the fact that Gallegos admits that he made a false statement in a pretrial affidavit, which he gave to the investigating Board agent in con- junction with consideration of the remedy. In recom- mending a remedy here, should reinstatement and back- pay be denied to Gallegos? I think not. The misrepresen- tation by Gallegos was on an ancillary matter pertaining to the source of a copy of Respondent's rules. It was not a misrepresentation of a material link in the chain of evi- dence necessary to establish a cause of action on his layoff. Stated differently, Gallegos did not mispresent in order to establish, by fraud, a cause of action by which he could persuade the Agency to order Respondent to pay him backpay or offer him reinstatement. His misrep- resentation was made to protect another, not to obtain, by fraud, a gain for himself. I therefore find that his mis- representation, while improper, does not constitute a suf- 82 The General Counsel makes no contention that someone sabotaged the second level stairwell over the weekend to leave the appearance that Gallegos and Anguiano had done the work incorrectly. ficient basis for denying the usual public remedy of or- dering Respondent to offer reinstatement with backpay. (g) Salvador Machuca and Anastacio Dominguez Jr. Foreman Marvin Brown testified that Salvador Ma- chuca and Anastacio Dominguez Jr., worked together as a team (Tr. 1075, 1079).89 Machuca testified he returned to work on February 1 (Tr. 616, 618). Brown testified that Machuca (and Dominguez) spent the entire 9 days from Tuesday, February 1, through Friday, February 11, framing the north penthouse, but did not finish the job (Tr. 1075, 1078-1081 , 1108). According to Brown, he told Machuca (apparently on February 10) that Midessa was hurting and that Machuca was taking longer than the team of Carlos Carrillo and Louis Sotelo did on framing the (identical) south penthouse (Tr. 1081).84 Brown testified that Machuca and Anastacio Domin- guez made a little more progress on February 10 and 11, "but they still never really picked up." (Tr. 1081.) He in- cluded them on the layoff list for taking so long on the penthouse (Tr. 1075). Before the strike, Brown testified, Machuca was a good , productive worker, and a leadman when there was a large crew, but he was not a good worker after he returned from the strike (Tr. 1076). Kevin Nichols, a striker and a witness called by Re- spondent, testified that after the strike Machuca still felt he was being paid unfairly (Tr. 923). Nichols, who worked at Petro North rather than at ClayDesta where Machuca was, never explained how he knew that this was Machuca's attitude after the strike. During the strike, such as when both were at the union hall, Nicols no doubt had an opportunity to hear Machuca express his opinion. It appears that Nichols actually was describ- ing an opinion that he possibly heard during the strike rather than afterwards. Machuca and Tommy Gallegos testified that on either February 1 or 2 Machuca, Dominguez, Gallegos, and leadman Carlos Carrillo spent most of the morning as- sembling a scaffold for a curtain wall they were to build.85 As we have seen, they could not proceed with the furrdown because of an alignment problem, so Brown took them to frame one of four penthouses , which Ma- chuca described as the south penthouse (Tr. 622, 691).86 The weather was cold and wet, the roof surface was frozen, and Brown and Machuca slipped and almost fell on the frozen surface. Brown soon decided that it was too cold for anyone to work there, so he sent them on different assignments. Machuca (and Dominguez) worked the balance of that day with Carrillo framing walls underneath windows on the fourth floor (Tr. 623- 624, 629, 695). 83 Known as "Junior" Dominguez (Tr. 650, 695), Anastacio Domin- guez Jr, is not to be confused with his father , Jesse Dominguez 84 Brown testified that the Carrillo-Sotelo team not only framed the south penthouse, but also sheetrocked most of it , all in 5 days the week before the walkout (Tr. 1080, 1109). 88 Machuca places the event on the 1st day of his return (Tr. 618, 687). whereas Gallegos, as already discussed , dated the event as February 2, the morning Anguiano did not come in because of car trouble 88 Tommy Gallegos, however , described it as the penthouse at the top of the west stairwell (Tr 375, 508). MIDESSA CONSTRUCTION CO. The second day (February 2, according to Machuca), and into the third, he and Dominquez were assigned to install double walls of sheetrock (one being the green covered weather board) in rest rooms (Tr. 624, 629). At one point Machuca recalled the time spent on the rest- rooms as being 2 or 2-1/2 days (Tr. 696). In any event it is clear that the first 3 days Machuca was back he and Dominguez worked on assignments other than the pent- house. Machuca testified with a persuasive demeanor. Machuca testified that his next assignment was to frame and sheetrock a penthouse where he worked for 5 days (Tr. 624, 629, 696). He and Dominguez had not completed it by the time of their layoff (Tr. 702). He tes- tified that under the prevailing conditions it would have taken the two of them a whole week, even more, to frame and sheetrock it (Tr. 696-697). The conditions in- cluded having to devote one entire afternoon to some special welding on a top track (Tr. 628, 698). About the third day of the penthouse work Brown came by and asked how they were doing. Machuca replied okay, and inquired why Brown had not sent Carrillo to check on the work. Brown, Machuca credibly testified, said he had faith in Machuca, knew that he could do the job, and that their work was "looking real good." (Tr. 628, 630). There is no point outlining the work performed on the penthouse, for other than the welding mentioned, there is no showing that the framing work on the north pent- house was any different from that done on the south penthouse by Carrillo and Sotelo the week before the strike. Preliminary Conclusions Machuca testified with a convincing demeanor, but Brown did not. I therefore find that Machuca and Do- minguez worked as many as 6 days on the north pent- house,87 and not the 9 days Brown asserted. Brown's overstatement, I am convinced, was not the product of a faulty memory. Rather, I find that Brown deliberately overstated the penthouse time by some 50 percent to cast as unfavorable a light as possible on Machuca and Do- minguez. Similarly, I find, he understated by 50 percent the time it took Carrillo and Sotelo to both frame and (nearly) sheetrock the south penthouse. Thus, I find that the actual time Carrillo and Sotelo worked on the south penthouse approximated 7-1/2 days-not 5 days. In that light, the 6 days spent by Machuca and Dominguez were well within reason. Indeed, Machuca credibly testified that on returning from the strike he worked even more diligently than before to avoid any suspicion that he would slack off after having been in the walkout (Tr. 635). I find that Midessa's reasons regarding Machuca and Dominguez are pretexts contrived to justify laying off the previously highly regarded Machuca. The motive for this contrived action was to punish Machuca for his union and other protected activities. Dominguez was a victim of this illegal punishment. I therefore find that by 87 Although Machuca testified that he worked 5 days on the pent- house, the other workdays accounted for number about 3. That leaves approximately I day of work not described 295 terminating Machuca and Dominquez on February 11, 1983, Respondent violated Section 8(a)(1) and (3) of the Act. Although Dominguez did not testify, he worked as a team with Machuca and they were laid off on that basis. His situation is therefore covered by the testimony of Machuca, Gallegos, and Brown. Finally, it matters not that Respondent chose to termi- nate some, but not all, of the strikers. It is well settled that an employer need not discriminate against all union activists or supporters for the General Counsel to estab- lish discriminatory intent regarding those terminated. Re- spondent has rebutted the showing of discriminatory intent as to Machuca and Dominguez. Nor has Respond- ent shown that they would not have been retained on February 11 in any event. Accordingly, it preliminarily appears Respondent must be ordered to offer them rein- statement. F. Further Analysis and Conclusions A question arises regarding the two furrdowns when comparing the testimony of Gallegos and Machuca. Tuesday, February 8, 1983, is the date that Gallegos described as the first day on the east entry furrdowns. He testified that as late as noon the weather was so cold there was ice on the scaffold (Tr. 389, 550). At 6 of his pretrial affidavit of February 14, less than a week after the event, Gallegos was more specific. He asserted that the temperature was perhaps 15 degrees when they were working outside (R. Exh. 10).88 Following lunch he suc- cessfully obtained a reassignment for Anguiano and him- self to work inside the bank building. According to his supplemental affidavit of March 15, this left no one out- side. Even inside, according to his affidavit of February 14, it was "still freezing." Salvador Machuca worked all that second week fram- ing the north penthouse on the roof. On February 8, Ma- chuca testified, Brown came by and complimented the work (Tr. 630). Machuca described several problems that he and Dominguez encountered on that assignment, but he did not mention weather-yet he had mentioned it when describing the frozen condition of the roof on Feb- ruary 1, his first day back from the strike. Strange. If, as described by Gallegos, it was about 15 degrees and sleeting downstairs on February 8, why would it not be at least that cold on the roof? Was it an oversight by Machuca in his testimony? Neither Brown nor William C. Simonds contradicted Gallegos regarding the conditions of subfreezing weather.89 Perhaps weath- "As earlier discussed, he also placed the date as 2-9-83. Although completely clear in his affidavit, Gallegos did seem to be describing the first day of his assignment to the east entry location . At 3 of his supple- mental affidavit of 3-15-83, Gallegos asserts that on "one of the days" he worked on the assignment it was sleeting (R. Exh . 11). His pretrial affida- vits do not contain a day-by-day account as was given in his trial testimo- ny. 89 Simonds appeared to be a sincere witness But in describing the oc- casions of his walking by where Gallegos was standing around, he im- pliedly was describing a balmy day Apparently , I initially drafted, the passage of time had caused Simonds memory to confuse dates and events. 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er reports would shed light on the matter. And there are weather reports. The National Climatic Center of the U.S. Department of Commerce is located at Asheville, North Carolina.90 Pursuant to FRE 201, 803(8), and 902(4), I take official notice of the following Climatological Data Reports (CDR), and I include them in the record as follows: January 1983 Vol. 88, No. 1 February 1983 Vol. 88, No. 2 Climatological Data, Texas, Vol. 88 ALJ Exhibit I ALJ Exhibit 2 Contemporaneous with my release of this decision, I shall mail copies of the foregoing documents, certified on their faces as official, to the parties' attorneys. For the 2 weeks between the return of the strikers and the February 11 layoff, the following weather conditions prevailed, begining Monday, January 31 (skipping the weekend of February 5-6): Temperature 1-31 2-1 2-2 2-3 2-4 2-7 2-8 2-9 2-10 2-11 Max 57 48 53 55 36 64 68 69 70 62 Min 35 34 31 26 32 26 34 39 36 36 Max 65 61 52 54 50 63 68 68 70 70 Min 40 32 31 25 30 27 35 41 36 38 The first set of figures (maximum and minimum across) is for the National Weather Service at the Mid- land-Odessa Airport (ALJ Exh. at 62). The second set was recorded at Gulf Refining Company, located 4 miles north by northeast of downtown Midland (ALJ Exh. 2 at 62, 67). The airport is midway between Midland and Odessa, or 10 miles west of downtown Midland. The ClayDesta project is on the near northside of Midland. Precipitation 1-31 2-1 2-2 2-3 2-4 .04 0 T 0 .03 0 0 0 0 0 Once again, the first line of figures was recorded at the airport, and the second line at Gulf Refining Compa- ny. We see, therefore, that on Tuesday, February 8, 1983, the morning hours would have been a bit cold at Clay- Desta Bank on the near north side of downtown Mid- land. Although brisk wind would have made it seem colder (the wind chill factor), Gallegos made no refer- ence to the wind . Accordingly, I presume that there was no more than a slight wind on these mornings. Even al- lowing some room to Gallegos for a margin of error, it seems that the temperature was more than double his 15 degrees even at 8 a.m., when he would have arrived for work. But after lunch, how can a temperature of at least 60 degrees be described as too cold to work outside? Sleeting? Even if there were a small shower over the ClayDesta project (while dry at both the airport on the west and at the Gulf Refinery on the east), the tempera- ture was far too warm for ice to form on a scaffold. 2-7 2-8 2-9 2-10 2-11 0 0 .05 0 0 0 0 0 0 0 Indeed, the weather apparently was quite pleasant that afternoon. February 9 was even warmer in the morning, and on Thursday afternoon, February 10, the tempera- ture reached a balmy 70 degrees. The weather discrepancy is too large a difference to be considered a minor variance . Gallegos simply cannot be credited regarding the furrdown assignment. Al- though that fact does not serve to verify all of Brown's testimony on the subject , it is enough that Simonds now stands as a credible witness . Gallegos apparently worked February 9 on the furrdowns and the next day as well. Counting the first day of February 8, that totals 3 days. Simonds complained to Brown about Gallegos. The complaint of Respondent's chief customer complaining about the slow progress of Gallegos would constitute a legitimate ground for including Tommy Gallegos and "Temo" Anguiano in the layoff of February 11, 1983. In view of all findings regarding Gallegos, it seems clear that the termination of the Gallegos -Anguiano team 0 The complete name is U S . Department of Commerce , National Oceanic and Atmospheric Administration [NOAA], National Climatic Data Center MIDESSA CONSTRUCTION CO. 297 falls in the dual-motive category. Thus, one termination motive was the legitimate one based on the complaint of Area Builders. The other motive, as revealed by the pre- texts involving the other grounds, was the illegal one of desiring to eliminate a union agitator from its payroll. It is now well established that in such a situation, Respond- ent had the burden of going forward with evidence showing that it would have selected Gallegos and An- guiano for layoff in any event because of the one legiti- mate ground notwithstanding the existence of the unlaw- ful motive. This, Respondent failed to do. Accordingly, I shall order Respondent to reinstatement to Gallegos and Anguiano and to make them whole, with interest. The weather reports also have a bearing on Machuca's case. Did the Carrillo-Sotelo team really do as much work on the south penthouse the week of January 17 as Foreman Brown described?91 Perhaps the weather was warm and they were able to fly. But what if the weather was cold the week of January 17? Could they still have made that much progress? No witness said they did not nor could not have made such progress. But Brown did not testify with a persuasive demeanor. The January CDR shows that the week of January 17 started mild, with the low around 40 and the high about 60 (ALJ Exh. 1 at 12). By midweek conditions became colder, and by Thursday morning the low temperature was at freezing, with the high from 42 to 46 degrees. On Friday, January 21, the low was about 28 and the high was between 32 (at the airport) and 38 (at the Gulf Re- finery). It was slightly wet that week, with a trace of rain recorded at the airport on Monday and Tuesday, .74 on Thursday (but none recorded at the Gulf refinery), and .05 on Friday (but again none at the gulf refinery). Thus, weather conditions on the roof the last 2 days of that week were rather unpleasant-near freezing temper- ature readings and moisture in the air. A brisk wind would have made working conditions downright misera- ble. The weather report does not support Foreman Brown. This is not to say that the Carrillo-Sotelo team could not have accomplished all the work attributed to them by Brown, but Brown was not a credible witness. Carrillo's testimony was limited to a specific item relating to work Gallegos allegedly did in the north stairwell, and Re- spondent successfully objected when the General Coun- sel sought to examine beyond the scope of the direct ex- amination. As Sotelo was not a witness, neither Carrillo nor Sotelo testimonially described framing the south penthouse or how much they accomplished. I do not credit Brown; I do credit Machuca. I therefore find, in accordance with my preliminary conclusion outlined ear- lier, that Brown overestimated by 50 percent the time Machuca spent, and underestimated by an equal 50 per- cent the time Carrillo and Sotelo spent on the south penthouse. Brown did so, I find, for the unlawful pur- pose of eliminating Machuca and Dominguez from the 91 As earlier noted , even though Machuca testified that as of February I the south penthouse remained unframed (Tr. 622, 691, 693), Gallegos described the penthouse they went to as the one on the west side (Tr. 375, 508). Such a disagreement between two key witnesses of the General Counsel leaves intact Brown's testimony that Carrillo-Sotelo framed a penthouse, and that it was the south penthouse. payroll because of their union and other protected activi- ties. This is particularly so regarding Machuca, who is acknowledged to have been a leadman when there were more employees on the job. I specifically do not credit Brown in his testimony that Machuca, admittedly a good employee before the strike, was not a good worker after the strike (Tr. 1076). Thus, I find that Brown valued Ma- chuca's skills, ability, and performance at all times. As also discussed earlier, Machuca credibly testified that on February 8 Foreman Brown told him that the work was looking "real good," and Machuca credibly denied that Brown complained about the progress (Tr. 630). Because of Machuca's superior demeanor, I credit him over Brown. As previously noted, it is well settled that when the asserted reasons for a discharge fail to withstand exami- nation, the Board can infer that there is another reason- an unlawful one, that the employer seeks to conceal-for the discharge. Louisiana Council No. 17, AFSCME, AFL- CIO, 250 NLRB 880, 886 fn. 38 (1980). As the reasons Foreman Brown gave for including Machuca on the layoff list have been determined to be false, I find that the true motive, which Respondent sought to conceal behind pretexts, was the unlawful one of terminating him because of his union and other protected activities. Do- minguez, Machuca's working partner,92 was terminated as a consequence of Brown's pretextual reasons for laying off Machuca. In light of the foregoing, I shall order Respondent to offer reinstatement to Machuca and Dominguez and to make them whole, with interest. Respecting the allegations I have dismissed, one final note should be made. As earlier noted, one of the Gener- al Counsel's principal contentions is that because the February 11 layoff "affected almost exclusively union ad- herents," that fact supports an inference of illegal moti- vation. Counsel for the General Counsel, at 45 of the brief, cites and relies on cases such as Camco, Inc., 140 NLRB 361 (1962), enfd. in pertinent part 340 F.2d 803 (5th Cir. 1965), for this proposition. When the factual pattern is appropriate, the Camco rule is established authority for drawing the inference sought by the General Counsel in this case. The problem is that here the factual pattern does not appear to fall into the Camco category. In Camco 16 of 95 employees in one department attended a union meeting. Shortly thereafter, 11 of the 16 were terminated. Not one of the nonunion employees was terminated . Through such means as interrogation, Camco had identified the union adherents. Thus, of the 11 terminated, 100 percent were known union supporters. By contrast, 62.5 percent of the group terminated on February 11 were deemed by Midessa to be union supporters. , There are other differences between Camco and this case, but the percentage factor is perhaps the most prominent distinction. Where the percentage factor drops as low as 62.5 percent, it does not seem reasonable to say it is a great enough factor in itself to support an infer- 92 Brown testified that Dominguez also is a brother -in-law of Machuca (Tr. 1111). 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ence of unlawful motivation . And in our case, the other factors usually considered, such as timing, reasons given for the terminations, comparisons with workers retained, and the like, do not seem to justify according much weight to the fact that over half those terminated were known by Midessa to be union supporters. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Carpenters Local Union 1428 is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees about their union and other protected activities, by threatening employees with discharge for such activities, by discharging economic strikers on January 25, 1983 , and by requiring such dis- charged strikers to fill out new applications and be re- evaluated prior to being rehired around January 31, 1983, and by demoting Salvador Machuca on February 1, 1983, when it rehired him, Respondent has violated Section 8(a)(1) of the Act. 4. By terminating the below named employees on Feb- ruary 11 , 1983, because they engaged in union or other protected activities, Respondent has violated Section 8(a)(3) and (1) of the Act: Cuahtemoc Anguiano Anastacio Dominguez, Jr. Thomas B. Gallegos, Jr. Salvador Machuca REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Respondent shall be ordered to make whole the fol- lowing 22 named employees by reason of its unlawful discharge of them on January 25 , 1983, when they were engaging in a lawful economic strike:93 Respondent's backpay obligation to them is limited to no more than 4 days, plus interest and any fringe benefits, such as medical expenses, they would have been entitled to receive during the period of January 25 -28, 1983. Respondent shall be ordered to offer immediate and full reinstatement to the below named employees to their former jobs, or, if those jobs no longer exist, to substan- tially equivalent positions94 and to make them whole with interest, because of their unlawful termination on February 11, 1983. Cuahtemoc Anguiano Anastacio Dominguez, Jr. Thomas B. Gallegos, Jr. Salvador Machuca Reinstatement is appropriately ordered notwithstand- ing there was no allegation that the layoff of February 11, 1983, was itself unlawful. The General Counsel proved that Respondent selected the four employees named above for layoff, and Respondent failed to show that the four would have been included in the layoff of February 11, 1983, in any event . Whether any or all four of the discriminatees would have been included in subse- quent nondiscriminatory layoffs, that factor, relevant to both reinstatement and the amount of backpay , must be determined at the compliance stage. In the event it is determined at the compliance stage that any or all four discriminatees would have been in- cluded in a subsequent economic layoff, then Respondent shall be ordered to place such discriminatee on a prefer- ential hiring list to be the first employee rehired in his former or substantially equivalent position. Backpay shall be computed in the manner established by the Board in F. W Woolworth Co., 90 NLRB 289 (1950), with interest calculated in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See gener- ally Isis Plumbing Ca, 138 NLRB 716 (1962). Removal of any references to the terminations of both January 25, 1983, and regarding Gallegos, Anguiano, Machuca, and Dominguez, as to February 11, 1983, from personnel records shall be ordered in accordance with Sterling Sugars, 261 NLRB 472 (1982). Cuahtemoc Anguiano Ezequiel Mata On these findings of fact and conclusions of law and Avitio A. Carrillo Mario Matta on the entire record, I issue the following recommend- Jesse R. Dominguez Kevin Nichols ed9s Anastacio Dominguez ORDER Jr. Derrill Pope Alvaro Fuentes James Pope Respondent Midessa Construction Co., Midland, Thomas B. Gallegos Texas, its officers, agent, successors, and assigns, shall Jr. Louis Rodriguez 1. Cease and desist from Joe Gaitan James Rowe (a) Interrogating its employees concerning their union Bill Gleason Dale Smith or other protected activities. Bill Leasure Elivorio Soto Victor Leija Orvie Springs 94 The former position to which Salvador Machuca is to be reinstated Salvador Machuca Mike Tapia is that of leadman if such position is in existence in light of the number of employees on Respondent 's jobsites 93 The 22 names, plus those of E. Armendariz and E. Ibarbo , are listed in par. 8 of the complaint . Armendariz and Ibarbo are not entitled to any backpay because Respondent , I have found , treated them as having been granted time off from work on January 25, 1983. 95 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulation, the findings , conclusions, and recommended Order shall , as provided in Sec . 102 48 of the Rules, be adopted by the Board and all objection to them shall be deemed waived for all pur- poses. MIDESSA CONSTRUCTION CO. (b) Threatening its employees with discharge if they engage in union activities. (c) Discharging its employees who engage in an eco- nomic strike. (d) Requiring discharged economic strikers to fill out new employment applications and be reevaluated on being recalled as if they were new employees. (e) Demoting employees because they engage in union or other protected activities. (f) Terminating employees because they engage in union or other protected activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole the employees named below, in the manner set forth in the remedy section of this decison. Cuahtemoc Anguiano Avitio A. Carrillo Jesse R. Dominguez Anastacio Dominquez Jr. Alvaro Fuentes Thomas B. Gallegos Jr. Joe Gaitan Bill Gleason Bill Leasure Victor Leija Salvador Machuca Ezequiel Mata Mario Matta Kevin Nichols Derrill Pope James Pope Louis Rodriquez James Rowe Dale Smith Elivorio Soto Orvie Springs Mike Tapia (b) Offer the below named employees immediate and full reinstatement to their former positions of employ- ment or, if such positions no longer exist, to substantially equivalent positions or, if no work is available or if any of the below named employees would have been includ- ed in any subsequent layoffs, then establish a preferential hiring list for the employee or employers and reinstate him or them from that list, before hiring or recalling other, when Respondent resumes hiring, without preju- dice to their seniority or other rights or privileges previ- ously enjoyed. Cuahtemoc Anguiano Anastacio Dominguez, Jr. Thomas B. Gallegos, Jr. Salvador Machuca 299 (c) Make the employees named above in paragraph 2(b) whole for any loss of earnings or other benefits suf- fered as a result of their termination on February 11, 1983, in the manner set forth in the remedy section of the decision. (d) Remove from its files any reference to the unlaw- ful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (e) Post at each of its Midland , Texas jobsites, and its personnel office, copies of the attached notice marked "Appendix."96 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 90 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."