Joseph Victori Wines, Inc.

JOSEPH VICTORI WINES Joseph Victori Wines, Inc. and Local 1814, Interna- tional Longshoremen's Association, AFL-CIO. Cases 29-CA-12050 and 29-CA-12105 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 22, 1987, Administrative Law Judge Eleanor MacDonald issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-excep- tions and a supporting brief. The Respondent filed an answering brief to the General Counsel's cross- exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs 1 and has decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt the recommended Order.3 i In its brief, the Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 Both the Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The General Counsel has excepted to the judge's failure to find that the Respondent unlawfully laid off Sharaz Edoo on September 26, 1985, as a result of his union activities More specifically, the General Counsel challenges the judge's credibility finding regarding Edoo and urges that it be reversed The judge found that Edoo's testimony was strongly shaded to the disadvantage of the Respondent and accordingly discredited those portions of Edoo's testimony which are contradicted by more reliable evidence In arriving at this finding, the judge noted, inter alia, that Edoo's testimony differs from the affidavit he gave in this proceeding in that his testimony was much more favorable to the General Counsel's cases than was his affidavit The General Counsel submits that this find- ing is in error and that Edoo's testimony should have been fully credited We find that the judge's credibility finding regarding Edoo is supported by the record A comparison of his affidavit and his testimony reflects a number of inconsistencies which the judge specifically noted In addition to these, the record reflects several others For example, Edoo's affidavit states that on September 7, 1985, after Carlos Prior had asked Edoo if he had signed a card for the Union, Prior said "OK" and left The affidavit further states that Prior did not then go on to speak to other workers However, Edoo testified that Prior went on to talk to other employees and spoke to everyone in the plant Accordingly, we agree with the judge that Edoo tended to shade his testimony and we affirm her finding concerning Edoo's credibility We further correct several inadvertent errors in the judge's decision Although the judge at one point in sec II,A of her decision incorrectly states that the Respondent's greatest sales in 1984 occurred in October, she elsewhere correctly identifies that peak sales occurred in September At sec II,D,2 of her decision, the judge incorrectly states that the layoff took place on Friday, August 6, 1985, rather than on Friday, September 6, as elsewhere indicated in her decsion 3 In adopting the remedy recommended by the judge that the employ- ees discriminatorily laid off be made whole for loss of earnings and other benefits, we note the seasonal nature of the Respondent's business, and 469 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Joseph Vic- tori Wines, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. the judge's recognition that a showing had been made that at some point there would have been a layoff, in view of the gradual decline in sales and the Respondent's prior layoff in October 1984 What effect this, as well as the Respondent's installation of a palletizing machine, will have on the Respondent's backpay and reinstatement obligations shall be re- solved in compliance proceedings In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be com- puted 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 amend- ment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) Alison C. Fairbanks, Esq., for the General Counsel. Arthur R. Kaufman, Esq. and Doroth Rosensweig, Esq. (Kaufman, Frank, Schneider & Rosensweig, PC), of Melville, New York, for the Respondent. Anthony Thomas Scotto, Esq. (Bogucki, Dichiara & Scotto), of New York, New York, for the Union. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was heard in Brooklyn and New York, New York, on 16 days between 23 April and 4 September 1986 The consolidated complaint, issued on 29 Novem- ber 1985, alleges that Respondent, in violation of Section 8(a)(1) and (3) of the Act, interrogated its employees, di- rected its employees to refrain from union activities, threatened its employees with discharge, and laid off and discharged its employees. Respondent denies that it vio- lated the Act and alleges that the layoffs were due to economic considerations. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties in December 1986, I make the following' FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation with a plant at 31st Street, Brooklyn, New York, manufactures and sells alcoholic beverages. The parties agree, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 1814, International Longshoremen's Association, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. i Certain errors in the record are noted and corrected 294 NLRB No. 35 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent has engaged in the wine importing and distributing business for a number of years. In 1984, Re- spondent entered the wine cooler business by purchasing the plant at issue at 31st Street , Brooklyn.2 The wine cooler business is relatively new, commercially bottled wine coolers having first been sold around 1981 and first produced in New York State since 1984. In 1984, Re- spondent began producing and selling "Calvin Cooler" in assorted flavors and sizes of bottles. The equipment in its plant was old and Respondent had no prior experience with wine coolers. Respondent had to learn by trial and error which of its flavors would be successful and to what extent there would be a market for its products. Respondent's records show that in 1984 it had its largest sales in September.3 Respondent laid off excess employ- ees at the end of October 1984. Although industry statistics through 1986 show that wine cooler sales are highest in June, July, and August, the sales experience of each wine cooler company de- pends very much on the identity and the efforts of its in- dividual distributor . Each producer employs a different distributor and thus sales results are distinct for each en- terprise. Further, in 1984, Respondent's greatest sales were in October contrary to the industrywide experi- ence. In 1985 , Respondent operated the plant with new or improved machinery and techniques, and its work force gained expertise Noubar Boursalian was engaged as the new plant manager on 3 June 1985. Changes were made in the plant and by summer of 1985, the plant was operating with two 12-hour shifts for 6 days a week excluding Sundays. The shifts began and ended at 6 a m. and 6 p.m. About 35 rank-and-file em- ployees were employed on each shift. The plant operated by means of a production line with various machines to wash, fill, cap, and box the bottles of cooler Employees took the boxes filled with bottles of cooler from the pro- duction line and n}anpally stacked them on pallets. In August 1985 , a machine, called a palletizer, was put into operation to perform this function ; this will be discussed in greater detail below About 30 employees worked on the production line per shift. The plant, while not divided into formal departments, contained a batching and mixing area where the cooler was blended . About three to five employees worked at mixing and batching per shift. There was also a shipping area . The day supervisor of this area was George Merritt; about four hi-1o drivers were employed here to load and unload trucks . At night, Sergio Larrondo worked part-time to oversee the load- 2 Wine cooler is a beverage made by combining wine with sweeteners, flavors, and chemicals Respoident's cooler is apparently carbonated. Respondent's records show the following numbers of cases sold in 1984 August 46,403 September 87,788 October 73,611 November 48,897 December 42,034 ing and unloading of trucks , with about three hi-lo driv- ers. The instant case arises out of two events which took place at the plant during the first week of September 1985: (1) The Union's organizing campaign, which was conducted on the afternoon of Thursday , 5 September, and continued during the day and night of Friday, 6 Sep- tember; and (2) the layoff of 10 day-shift employees at 6 p in. on 6 September and the layoff of the entire night shift at 6 a.m on Saturday , 7 September. Certain facts about these two events are not seriously controverted. The union organizers met with employee Sharaz Edoo away from the plant on 5 September and discussed the organization of the plant . Edoo signed an authorization card. In the afternoon of that day , the union organizers took up positions outside the plant and began talking to employees. A group of employees congregated openly with the union agents outside the plant after the day shift ended at 6 p.m. Before 6 p.m., the Union also spoke to arriving night-shift employees. Many employees signed cards on these occasions . The Union made no attempt to hide its organizing effort; indeed, it even asked permis- sion, which was denied, to go inside the plant . Union or- ganizers introduced themselves to any supervisors they happened to see around the plant , including Plant Man- ager Boursalian . Respondent's plant manager and Vice President Jose Nodar were aware of the Union's cam- paign from its inception on 5 September 1985. Indeed, on either the first or second day of the campaign, Union Agent Michael Porta told Boursalian the Union had enough cards to file a petition. It is not disputed that Respondent told certain day- shift employees they were laid off at 6 p.m. on 6 Septem- ber 1985. Boursalian stood in the office while employee Carlos Prior called certain employees in as they came up to the tinreclock to punch out for the day; ' Prior told the employees in Spanish that there was no more work for them. Some employees who worked in shipping were given the same information by Merritt. After the night-shift employees concluded work at 6 a.m. on Saturday, 7 September, they were laid off as well Boursalian was there and LeRoy Dixon made the announcement in English while a Spanish -speaking worker translated. The Union filed a petition on 10 September 1985. B. Credibility of Witnesses 1. General Counsel's witnesses A large number of witnesses testified in support of the General Counsel 's allegations. I find that some of these witnesses were not reliable and I shall not credit their testimony where it is contradicted by more reliable evi- dence. Jose Luis Diaz testified that he completed and signed his own union authorization card ; the evidence shows that Diaz did not complete the card Diaz uncon- vincingly and implausibly testified about his ability to un- derstand a phrase spoken by Supervisor George Merritt in English when it was clear that he could not repeat anything else in English . I shall not credit the testimony JOSEPH VICTORI WINES of Jose Luis Diaz. However, Diaz' testimony that Carlos Prior asked him if he had signed a union card is consist- ent with Prior's own testimony as will be seen below; I shall credit this portion of Diaz' testimony. Jose de Jesus testified as to unlawful statements alleg- edly made by a manager, but he was unable to state con- vincingly whether the individual was Vice President Jose Nodar or Plant Manager Noubar Boursalian. His testimony differed in a material respect from his affidavit given to a Board agent and his testimony was shifting and contradictory. I shall not credit the testimony of Jose de Jesus. Francisco Fermin gave implausible , seemingly fabricat- ed testimony about the completion of his union authori- zation card His willingness to testify inaccurately ren- ders all his testimony suspect. Thus, I shall not credit Fermin's testimony that Carlos Prior told him he would be fired for signing a union card and later fired him for signing the card. However, Fermin's testimony that Prior asked him if he had signed a union authorization card is consistent with Prior's own testimony; I shall credit that portion of Fermin's testimony. Ramon Mejia testified that Prior interrogated him, told him he could be fired for signing a union card, and then told him he was fired because he had signed; however, Melia did not include these blatantly unlawful statements in his affidavit given soon after he was fired. Moreover, he was uncooperative on cross-examination. I shall not credit Mejia's testimony. However, based on Prior's ad- mission, I credit Mejia's testimony that Prior asked if he had signed a card. Joel Zelman gave admittedly fabricated testimony about the circumstances surrounding his signing of a union card, his testimony contradicted his affidavit in several material respects, and he was uncooperative on cross-examination . I shall not credit Zelman 's testimony. Dennis Guerrero was uncooperative and evasive on cross-examination by counsel for Respondent He could not recall the names of the supervisors who allegedly made unlawful statements to him and his testimony dif- fered from his affidavit in a material respect. I shall not credit Guerrero's testimony. Wahid Bacchus testified for the General Counsel. Bac- chus admitted that he initially withheld his cooperation from the General Counsel because he wanted certain help from Respondent. This willingness to refrain from supplying evidence based on financial considerations makes all of Bacchus' testimony suspect. In addition, some of Bacchus' testimony is implausible and contrary to the testimony of other witnesses. I shall not credit Bacchus' testimony. Jose Ramos testified for the General Counsel. Ramos' testimony was highly implausible, was not supported by the testimony of any other witness, and was contrary to certain uncontested facts. I shall not credit the testimony of Ramos. Carlos Mora testified for the General Counsel. His tes- timony was full of contradictions, and I am convinced that he had no recollection of the material events. I shall not credit the testimony of Mora. Sharaz Edoo testified for the General Counsel. Edoo was the employee responsible for calling the Union to 471 organize Respondent's employees. Edoo's testimony dif- fered from his affidavit given to a Board agent in that his testimony was much more favorable to the General Counsel's case than was his affidavit given soon after the relevant events took place. Edoo testified as to matters which it appeared he could not have heard or observed or which he could not have understood because they were spoken in Spanish. I am convinced that Edoo's tes- timony is strongly shaded to the disadvantage of Re- spondent, and I shall not credit those portions of his tes- timony that are contradicted by other more reliable evi- dence. Michael Porta, the union delegate in charge of the or- ganizing campaign at Respondent's plant, testified for the General Counsel. Porta testified to an alleged unlawful statement made by Sergio Larrondo to several workers on 5 September 1985 at 10:30 p.m., but this statement was not in Porta's affidavit given to a Board agent on 29 October 1985 . It is implausible that a union organizer would have heard an unlawful statement and not recalled it a few weeks later when giving a sworn affidavit. In addition, Porta testified to another alleged unlawful statement by Larrondo to Edoo on 6 September 1985 at 10:30 p.m., yet Porta's affidavit states that he left the plant at 8 p in. on that day. There was obviously some confusion in Porta's mind about threats made at 10:30 p.m.; I am convinced that Porta had no clear recollec- tion of who made the threats or when they were made. Therefore, I shall not credit those portions of his testi- mony. Tony Tatum testified for the General Counsel. He had a truthful demeanor, did not contradict himself, and gave his evidence in a forthright, cooperative manner. I shall credit Tatum's testimony. Pedro Arias testified for the General Counsel. He had a truthful demeanor, did not contradict himself, and was obviously cooperative and forthright during cross-examination. I shall credit Arias' testimony. Nestor Nova testified for the General Coun- sel. He gave his evidence in a forthright and cooperative manner, and I shall credit his testimony. Julio Martinez testified for the General Counsel He tried to be cooperative on cross-examination and had an extremely impressive demeanor as a truthful witness. There was some confusion in Martinez' testimony but I attribute this to difficulties involved in the translation of the questions and answers by the interpreter. Martinez' testimony was in accord with his affidavit given to a Board agent on 11 October 1985. I give no weight to the fact that a questionnaire Martinez received at home and filled out on 3 November 1985 with the help of a relative was inconsistent with his affidavit; the lack of formality and precision in the questionnaire process leads me to conclude that the answers Martinez gave were not well considered and should not be accorded any significance. 2. Respondent's witnesses George Merritt, the warehouse supervisor, testified for Respondent. Merritt was cooperative and forthright, and I shall credit his testimony. Bertram Silk testified for Respondent. He was a truth- ful witness and I shall rely on his testimony. 472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jose Nodar is the vice president of Respondent. As to several subjects Nodar's recollection was inexact or con- trary to the documentary evidence. In these instances, discussed below, I shall not rely on Nodar's testimony. Noubar Boursalian, the plant manager, testified for Re- spondent . Some of Boursalian's testimony about neigh- borhood protests at the plant conflicted with the dates on the documentary evidence and with the testimony of Jose Nodar. Boursalian shaded his testimony about these protests to favor Respondent's case, and I shall not credit it. Boursalian's testimony about his method of choosing people to be laid off was implausible and contradictory, as will be discussed in detail below. Finally, I do not credit Boursalian's testimony about alleged Supervisor Carlos Prior. Carlos Prior testified for Respondent to deny his al- leged supervisory status and that he had made certain unlawful statements to employees. Although Prior stated that he did not assign work or direct the employees, he also testified that he frequently told employees to clean the plant, pick up debris, made sure that employees were operating machines properly, and corrected their mis- takes and recommended employees for specific duties on the production line. Based on his contradictory testimo- ny and his demeanor on the stand, I conclude that Prior displayed a willingness to shade his testimony to benefit his employer. Prior admitted asking employees if they had signed authorization cards for the Union: when asked about incidents with specific employees, he was unable to recall the facts. I do not find that Prior is a credible witness and I shall not rely on his testimony where it is contradicted by more reliable evidence. Sergio Larrondo testified for Respondent. He was an obviously well-prepared witness. Larrondo was eager to testify that he had no authority or discretion on the job, often volunteering statements about his lack of authority when such statements were not responsive to the ques- tion before him. Larrondo also showed a reluctance to answer questions on cross-examination by the General Counsel and he was uncooperative. Finally, Larrondo's testimony was inconsistent with that of George Merritt, another witness for Respondent, on the subject of Lar- rondo's duties and authority on the job. I shall not rely on the testimony of Larrondo. C. The 8(a)(1) Allegations 1. Allegations concerning LeRoy Dixon Based on the testimony of Tony Tatum, I find that LeRoy Dixon became a production supervisor on the night shift in July or August 1985.4 Dixon was the only person in charge of employees on the 6 p.m. to 6 a.m. shift. If employees had problems, they went to Dixon. Dixon changed job assignments on the production line. Dixon compiled production figures for management. He promoted competition in productivity between the night shift and the day shift. When the night shift exceeded the * Dixon did not testify to deny any of the allegations made about him No witness for Respondent identified anyone other than Dixon as being in charge of the night shift Although Day -shipping Supervisor George Merritt sometimes worked late, he did not work 24 hours per day and, in any case, he did not supervise production employees. production of the day shift, Dixon personally treated em- ployees to their night meal. Dixon was the supervisor who laid off the night shift; because he spoke only Eng- lish, Dennis Guerrero translated for the Spanish-speaking employees. Dixon was paid $16/hour while the rank-and- file employees were paid $3.75/hour. I find that Dixon observed a group of 15 employees talking to the union organizers outside the plant. Tatum signed an authorization card for the Union on this occa- sion. After he had signed the card, Tatum went back to work. Later, Dixon came up to Tatum working at his machine and asked if he had signed the card. Tatum said, "yes." Dixon shook his head from side to side and then walked away. I find that Dixon's question was an unlawful interroga- tion. Dixon was seeking specific information about Tatum's membership. The interrogation took place during working hours at Tatum's assigned machine. There is no testimony that Tatum initiated a conversa- tion about the Union. When Tatum affirmed his support for the Union, Dixon shook his head from side to side. This gesture means "no" and denotes disapproval. In sum, Supervisor Dixon sought specific information whether Tatum had joined the Union, and he indicated disapproval when he obtained an answer. This action interfered with Tatum's rights and coerced him in viola- tion of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985); Southwire Co., 282 NLRB 916 (1987) (asking employees "extent" of support for the Union "could reasonably be seen as a basis to initiate action against them"). 2. Allegations concerning Carlos Prior Julio Martinez and Pedro Arias were both employed on the production line during the day shift from 6 a.m. to 6 p.m. Both testified as to Carlos Prior's duties. Based on their testimony, I find that Prior spent much of his time as a mechanic while he repaired and maintained the machines but that he also possessed supervisory powers. Prior gave instructions to the employees on the produc- tion line. If the production line was halted because of a breakdown, he assigned other tasks to the idled employ- ees such as cleaning, picking up debris, and the like. Prior refused permission to employees who wanted to leave early on the grounds that some other employee would be absent. He granted employees the right to leave early on several occasions. He told employees to stop performing certain jobs on the production line and switched them to other tasks. If employees lingered too long at lunch, Prior called the employees back to work. Prior was entrusted with keys to the plant. Prior's own credited testimony also supports a finding that he was a supervisor. Prior shared an office with Ed Nesnick, the production manager. Prior had the author- ity to ensure that machine operators were performing their tasks properly and he told employees to correct mistakes in their performance. Prior effectively recom- mended to Plant Manager Boursalian that "Rafael" be returned to operate the filler machine instead of remain- ing at the labeling machine. In contrast with the JOSEPH VICTORI WINES $3.75/hour wage, received by the rank-and-file employees at the plant, Prior was paid $20/hour. .Prior and Boursalian both testified that whenever Prior gave an order or gave any information to employ- ees, it was at the direction bf Boursalian or else pursuant to detailed instructions from Boursalian that rendered Prior's act routine. I have found above that both Prior and Boursalian were unreliable and shaded their testimo- ny to favor Respondent 's case. Thus, I shall not credit their assertion that Prior was merely a conduit for Bour- salian's orders. Significantly , Production Manager Nes- nick, Prior's direct supervisor, did not testify at the trial. Indeed, the record is bare of any detailed information re- garding Nesnick's duties and how they meshed with Prior's. This omission leads me to conclude that in fact Nesnick and Prior both supervised the production em- ployees. My conclusion is supported by the fact that Prior said he spent 15 to 30 minutes a day with Boursa- lian, but up to 4 hours a day with Nesnick, Were I to credit Respondent's version of the facts, I would have to find that Plant Manager Boursalian made all decisions re- garding employees, even the most minute ones such as whether to grant a few hours off to one employee. This version of the facts completely bypasses Production Manager Nesnick, and I conclude that Nesnick was not brought into the proceedings because his testimony would not have favored Respondent's case. Moreover, even if I did not find that Prior was a su- pervisor, I would find that he acted as an agent of Re- spondent. The record shows that most of Respondent's production employees spoke Spanish and understood English only slightly . Neither Plant Manager Noubar Boursalian nor Production Manager Ed Nesnick spoke Spanish, and Prior was used by management to convey information and instructions to Spanish-speaking employ- ees. Prior testified that he translated "everything" for Boursalian and Nesnick . Prior was the one who gathered information from employees; thus, he testified that he canvassed the production employees to see if they wanted to work on a Sunday . Prior stated that employ- ees came to him with problems "many times." Employ- ees asked him for more money and days off. Prior stated that he took these requests to Boursalian and conveyed the response to the employees . Prior was the one who informed the day-shift production employees about the layoffs. From the point of view of the majority of Re- spondent's rank-and-file employees, Prior was their only conduit to management . They would have had no way of ascertaining that any exercise of authority by Prior was other than that delegated to him by management. Clearly, Respondent placed Prior "in a strategic position where employees could reasonably believe he spoke its behalf." B. P. Custom Buildinq Products, 251 NLRB 1337 (1980). The credited testimony of Martinez , Arias, and Nestor Nova establishes that Prior interrogated them concerning their membership in the Union. Prior admitted that he asked a number of employees if they had signed authori- zation cards. Nova stated that the day after he signed a card, Prior asked him if he had signed for the Union. Nova said, "no." Prior said, "those union business are no good for you, that's only for the purpose of taking your 473 money." Prior had a list during this encounter, but Nova did not read it.5 Arias stated that on the morning of 6 September, Prior asked Arias if he had signed a union card. Arias said, "yes." Prior said the Union was "not good " 8• Martinez stated that he signed a card for the Union on 5 September outside the plant . On 6 Septem- ber, Prior came up to him at the packing machine and said, "you signed the card." Martinez denied that he had signed. Prior said he had list of those who had signed and that all those would be "like this ." So saying, he drew his finger across his throat as if to cut it.7 Martinez stated that Prior then asked three employees standing nearby if they had signed.8 Prior. asked the employees for specific information whether they individually had joined the Union. To Nova and Arias, Prior indicated his disapproval of the Union . Prior confronted Martinez with the information that he knew Martinez had signed a card and then threatened him by a hand gesture indicating a cut throat. Prior was the only member of supervision or manage- ment in contact with the employees who spoke their lan- guage and who could communicate with them . There is no evidence that these employees were open supporters of the Union or had initiated conversations about the Union with Prior . Respondent thus violated Section 8(a)(1) of the Act by interrogating Nova and Arias and by threatening Martinez. D. The 8(a)(3) Allegations 1. Background The General Counsel asserts that Respondent laid off and discharged its employees on the day shift and on the night shift because they joined and supported the Union. In the alternative, the General Counsel asserts that the layoff was premature and accelerated as a result of the union organizing campaign. Respondent explains the layoff on the day shift by the advent of the palletizer machine and asserts that the layoff of the entire night, shift was due to a downturn of business after Labor Day. Boursalian testified that customer orders were received by the order department of Respondent at its Second Street main offices. Every Wednesday or Thursday, Boursalian received a production schedule at the plant indicating the number of cases of wine cooler the plant was to produce in the next 2 weeks beginning with the next Monday . The schedule showed specific quantities to be produced everyday. The schedule was prepared by Joseph Umbach, the president of Respondent.9 According to Nodar, orders were usually filled within 2 weeks of their receipt. 5 Nova was not laid off 8 Arias was laid off ' Martinez was laid off 8 Although I have not generally relied on the testimony of Diaz, Fermin, and Melia, I find based on their statements and Prior's admission, that Prior asked each of these day-shift , employees whether they had signed cards and that all three answered in the affirmative All three were laid off 9 Umbach did not testify in the instant proceeding 474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Boursalian, the production schedule in July 1985 called for 18,000 cases per day. Boursalian stated that after the first or second week in August 1985, orders were not coming in as heavily as before. Boursa- lian could not recall the number of cases per day re- quired by the September 1985 production schedule He said that it was "very low." Nodar testified that by the end of August, Respondent was producing 21,000 cases per day. He also testified that in late August he met with members of Respond- ent's sales department who told him that September would not be as strong as August. After Labor Day, Nodar stated he saw that orders "were not heavy" so he decided to lay off the night shift on Friday, 6 September Boursalian testified at great length that cases of coolers were accumulating all over the warehouse adjacent to the plant and on the sidewalks surrounding the plant. He tried to show that this was true mostly in late August 1985. He also testified at great length about neighbor- hood protests over the fact that goods were stacked out- side the plant, and that the night-shift operation created noise from the factory, arriving and departing trucks, and loitering employees. Neighborhood activists called in a number of environmental and law enforcement agen- cies in an effort to curb Respondent's operations. Various local politicians also responded to neighborhood com- plaints by attempting to effect a change in the plant's op- erations. Boursalian tried to show that these events were concentrated in the last weeks of August and caused the night shift to be laid off on 6 September. However, the evidence shows that the neighborhood problems ran throughout the summer of 1985 and that cases of wine cooler were stacked outside the plant throughout the summer as well. In addition, the testimony of Vice Presi- dent Nodar, the manager who made the decision to lay off, was that as long as he had orders to fill, no local au- thorities or neighborhood activists would be allowed to interfere with production and the operation of the night shift at the plant. In the face of Nodar's testimony, I cannot find that neighborhood protests had anything at all to do with the layoffs at the plant. Boursalian testified that in the last week of August 1985, Nodar told him orders were slowing up and that "We're going to have to make a decision one of these days." On Tuesday, 3 September, Nodar remarked on the fact that men were standing around the floor due to the advent of the palletizer. The two managers discussed the fact that orders were slowing down and that they would have to make a decision by Friday. On Friday, 6 September, Boursalian and Nodar met at Nodar's office at Second Street. Nodar told Boursalian to shut the night shift down that day and to lay off 10 men from the day shift. 2 Layoff of the day shift Plant Manager Boursalian testified that the palletizer machine automatically puts a case full of wine cooler on a wooden pallet. The machine performs a task that, when manually performed by Respondent's employees, was done by six or seven employees. The testimony and documentary evidence show that the palletizer was de- livered to Respondent's warehouse in the summer of not an employee with long seniority 1985 but was not then in a condition to be operated. In August 1985, Respondent engaged a repair service to put the palletizer into operation. A technician spent 2 weeks at the plant fixing the machine and adjusting it so that it would function as part of the production line. The tech- nician was on the premises for the last 2 weeks of August; he traveled home to Alabama on Saturday, 31 August. The next Monday was Labor Day, and the layoff took place on Friday, 6 August. Boursalian testified that he did not lay off any of the men who had been filling pallets as soon as the palletizer machine was actually in operation because he wanted to be sure the machine worked properly. Boursalian stated that he kept the men 1 week extra as insurance in case the machine broke down and pallets once more had to be loaded manually. According to Boursalian, on Tuesday, 3 September, he and Vice President Nodar discussed the fact that men were standing around idle because of the installation of the palletizer. Nodar told Boursalian to lay off 10 men from the day shift. Boursalian decided to lay off 9 em- ployees; he discharged an employee named Roberto Velez. Velez worked in quality control and, according to Boursalian, he was fired for incompetence. On the basis of the record before me, I do not find that the discharge of Velez was unlawful. Respondent's witnesses testified that Velez was discharged for incom- petence, and the General Counsel produced no evidence to counter this testimony. Thus, I find that Velez was discharged for incompetence. According to Boursalian, he called the payroll office to determine the nine least-senior employees on the day shift However, after obtaining the information, Boursa- lian made exceptions in six out of the nine cases. Boursa- han testified that six employees who were lowest in se- niority were not laid off for various reasons: (1) Nestor Nova knew which labels had to be supplied to the production line. (2) Rene Sanz was trusted to check that no pilfer- age took place while loading, and he was related to Boursalian's nephew. (3) Juan Torres was learning to operate the palle- tizer. (4) Luis Castillo was learning to operate the pal- letizer. (5) Sharaz Edoo mixed batches in the syrup room. (6) Jose Rodriguez had worked for the company before he quit and was rehired on 30 August 1985.10 The explanations given by Boursalian are not very convincing. As to Nestor Nova, Boursalian testified that he had received no specialized training but that "on oc- casion" over the course of 2 or 3 days, Boursalian had shown him where labels were kept. Although Respond- ent urges that there are a great variety of labels and that it is difficult to distinguish among them, a careful reading 10 Boursalian testified that Rodriguez was considered a "rehire" and JOSEPH VICTORI WINES 475 of the record shows that Nova performed a very simple task. Nova, was paid $3.75/hour. He denied joining the Union when Prior interrogated him. As to Torres and Castillo, Boursalian did not explain why they were re- tained while Jose de Jesus, an experienced and skilled palletizer operator on the night shift, was laid off the same day. As to Jose Rodriguez, Respondent implies that he was really a long service employee. However, Bour- salian's testimony shows that he was considered a rehire and as such would normally have been treated as a new employee with the lowest seniority in the plant. According to Boursalian he decided which employees would be laid off, and he gave Prior a list of the employ- ees at about 5.30 p.m. on the production floor. Prior called the Spanish-speaking employees into the office at 6 p.m. and told them they were laid off for lack of work and would be called back if they were needed. However, Julio Martinez, whose testimony I credit, testified that Prior told him, "Julio, you're out of work, you signed the card." Boursalfan also testified that on the afternoon of 6 Sep- tember, Prior told him that he knew some of the employ- ees who had signed for the Union. Prior also said he thought most of the employees had signed. Boursalian recalled that Prior said Sharaz Edoo and Jose and Diones Rodriguez had signed. These employees were not laid off on 6 September. I find that this testimony is not accurate. I have found that Boursalian shaded his testi- mony to favor Respondent's position. As detailed above, Prior admitted asking the day-shift production employees if they had signed cards for the Union. Sharaz Edoo denied to Prior that he had done so and there is no evi- dence that Jose and Diones Rodriguez had joined the Union. I am convinced that Boursalian inaccurately testi- fied that Prior told him these three men were union sup- porters to make it appear as if Respondent retained known union members. Prior did not testify that he named these three men to Boursalian. Significantly, Boursalian was unable to recall any of the other names supplied by Prior on this occasion Respondent urges that the inference of unlawful moti- vation is negated if it can be shown that not all union supporters were discriminatorily laid off or if it can be shown that some who were laid off did not support the Union. This argument has no merit Fredonia Valley Quarries, 272 NLRB 843, 847 fn. 23 (1984). The day-shift employees laid off, not including Velez, were: 11 (1) Pedro Arias who told Prior he had signed a union card. Arias filled pallets, (2) Julio Martinez who was confronted by Prior with the fact that he had signed a card. Martinez did a variety of production work; (3) Ramon Melia who told Prior he had signed a card. He worked on the filler machine; (4) Jose Castellanos; (5) Francisco Fermin who told Prior he had signed a union card; (6) Juan Torres (Paco); (7) Jose Luis Diaz, a hi-lo driver in the shipping department. Diaz signed a card; I I Boursalian testified that he told George Merritt the names of the three least-senior forklift drivers on the day shift and told Merritt to lay them off (8) Tyrone Brown,, a hi-lo driver in the shipping depart- ment; and (9) an unidentified employee. Boursalian testified that 2 weeks after the day-shift and night-shift layoffs, he recalled three night-shift employees to work on the day shift. Boursalian gave as his reason that he had "forgotten" that these three employees had worked on the day shift but had moved to the night shift at Respondent's request sometime during the summer. The' three employees were: (1) Ramdat Sambhu, a batcher; (2) Bartolo Tejia, a forklift operator; (3) Alberto Diaz, a labeling machine operator. Boursalian did not ex- plain why three day-shift employees were not laid off to make way for these three employees. Indeed, Respond- ent seems to argue that six or seven employees were laid off on 6 September because of the advent of the pelletiz- ing machine and three more were added to this number because three experienced night-shift employees were transferred to the day shift. This argument does not com- port with the evidence. The three night-shift employees were laid off on 6 September when the entire night shift was told of the layoff. Two weeks later, the three "expe- rienced" employees were recalled to the day shift. I am not convinced by Boursalian's lame excuse that he "forgot" about these three employees. In all of Boursa- lian's testimony about the day shift, he firmly recalled that he was told to lay off 10 employees. If he had indeed been instructed by Nodar to lay off 10 employees and transfer 3 from the night shift, he would have done so on 6 September and he would have testified to this effect at every opportunity during the trial. I am con- vinced that Respondent needed to lay off six or seven employees because their work was being done by the new machine. I am also convinced that Respondent used this occasion to rid itself of union adherents Prior admit- ted asking workers whether they signed cards and that he knew who had signed. Further, employees freely signed cards right outside the plant. Prior was admittedly used as a conduit to management. I find that Prior in- formed Boursalian of the names of suspected union sup- porters and that these were chosen for layoff on 6 Sep- tember. Because Respondent needed only to lay off six or seven due to the palletizer, but had laid off more due to the union drive, it then recalled three long-term and "reliable" employees 2 weeks later Respondent admittedly laid off six of nine day-shift employees out of order of seniority Its reasons for re- taining low-seniority employees in most cases are not persuasive. Thus, none of these employees had skills that could not quickly be learned on the job and all were paid $3.75/hour. Two employees who were learning to operate the palletizer were retained even though a fully trained night-shift palletizer operator was laid off. Two low-seniority day-shift employees retained had denied to Respondent that they supported the Union. Finally, Prior said to Julio Martinez, "you're out of work, you signed the card." Based on my analysis above, I find that Re- spondent discriminatorily selected day-shift employees for layoff and that Respondent thus violated Section 8(a)(3) of the Act. 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Layoff of the night shift As outlined above, Nodar and Boursalian testified that the night-shift layoff on 6 September was prompted by a downturn in business. The evidence shows that produc- tion schedules are sent to Boursalian every Wednesday and that they call for specific daily production for a 2- week period commencing the next Monday. Thus, the production schedule for the week of 2 September would have been sent to Boursalian on 21 August and again on 28 August. The production schedule for the week after the layoff would have been prepared on 28 August and 4 September. Nodar testified that he met with the sales staff in late August and was told September would not be as busy as August. Nodar and Boursalian testified that they discussed a possible layoff in the last week of August. The most convincing evidence of the fact that a down- turn was expected would have been the production schedules issued on 21 and 28 August. Although several people received production schedules every week, Re- spondent was unable to produce any of these at the trial, explaining that they had been destroyed. Thus, the alleged expected downturn must be evaluat- ed in the light of all the other evidence. First, Respond- ent hired five employees between 26 and 30 August. That was the week immediately preceding the layoff when, assertedly, Nodar and Boursalian had already dis- cussed the possibility of a layoff after Labor Day. The hiring of five employees does not support Respondent's contentions about the layoff. Second, although Boursa- lian and Nodar testified explicitly that they recalled that the production schedules called for between 18,000 and 21,000 cases per day in August, they could not recall what number of cases per day the production schedules for September required. This failure to recall is extreme- ly surprising in view of Respondent's contention that the downturn in September caused discussions of a layoff to take place in August and caused the layoff of 6 Septem- ber. Surely if Nodar and Boursalian had discussed so ex- treme a measure as the layoff of half the entire work force because of a lessening of orders for September, both men would have been fully conversant with the extent of the orders for the relevant period. Both Nodar and Boursalian purported to recall with specificity the discussions preceding the layoffs but they could not supply the vital detail supposedly justifying the layoff of the night shift. There is no reason shown why the two managers could recall figures for August but could not recall figures for September. This lack of testimony seri- ously undermines Respondent's contentions about the reason for the layoff. Finally, those records that are available do not fully support Respondent's contentions. Respondent's monthly sales and production figures for 1985 are as follows. Cases Sold Cases Produced January 46,314 35,263 February 75,589 92,868 March 70,053 87,245 April 113,287 133,946 Cases Sold Cases Produced May 165,883 142,885 June 324,475 316,301 July 425,094 422,219 August 498,173 515,481 September 279,293 260,849 October 181,447 157,491 November 91,797 70,825 December 136,297 135,980 These figures show the gradual buildup and waning of the busy season in the summer of 1985. However, these figures are not too helpful in analyzing Respondent's de- fense that it decided on a layoff on 6 September because of a decline in orders. The evidence shows that Re- spondent's plant operated by filling orders within 2 weeks of their receipt. Thus, in deciding on a layoff for 6 September, Respondent's managers would have been looking at orders received 2 weeks earlier and their effect on the weekly production schedules. As noted above, neither the production schedules nor the orders were produced. Thus, instead of looking at the informa- tion available to Respondent on 6 September, it is neces- sary to draw inferences from other data which are avail- able now. The production figures for September show a sharp decline; this is to be expected due to the layoff of half of Respondent's production force. However, the comparative figures for sales show no clear precipitate decline. Using the figures made available by Respondent, and bearing in mind that Respondent shipped and sold cool- ers 6 days per week, in August 1985, Respondent sold on the average of 18,450 cases per day. It produced on the average of 19,091 cases per day. Daily production varied from 14,494 to 23,869 cases. In September, sales during the week of Labor Day before the layoff averaged 12,622 cases per day. Produc- tion averaged 16,546 cases per day. The week after the layoff, Respondent sold 22,259 cases per day and the second week after the layoff, it sold 13,345 cases per day. Due to the layoff, however, production averaged 9037 cases per day during the 2 weeks after the layoff. According to the testimony of Respondent's witnesses, when Nodar and Boursalian thought about and then dis- cussed the possibility of a layoff during the weeks of 26 August and 2 September, they would have had before them figures showing expected shipments and sales of about 12,622 and 22,259 cases per day over the next 2 weeks. These figures do not represent such a precipitate drop in sales as would justify an immediate layoff, in view of the fact that August sales averaged 18,450 cases daily. Although Respondent's witnesses testified that there was excess inventory by early September, Re- spondent offered no figures or statistics to support this assertion. Although Respondent's witnesses testified that by late August, cases of coolers were stacked on the sidewalk awaiting shipment, all the testimony taken to- gether shows that this was normal and that there were always cases of coolers stacked outside Respondent's plant. JOSEPH VICTORI WINES I am persuaded that the motivating factor in the 6 Sep- tember layoff was the union organizing campaign. The General Counsel has met her burden by showing that the night shift was laid off within about 48 hours of the com- mencement of the Union's vigorous and open campaign, after interrogations and threats and after Respondent's managers were told the Union had enough signatures to file a petition. Although Respondent has shown general- ly that at some point there would have been a layoff given the gradual decline in sales and given its prior his- tory of laying off employees in October 1984, Respond- ent has not shown that the layoff would have occurred on 6 September 1985 even in the absence of the union campaign. Orders were not shown to have declined pre- cipitately and Respondent had hired five employees the week before the layoffs. I find that Respondent acceler- ated its decision to implement a layoff when it saw that the employees supported the Union in significant num- bers. Thus, I find that the layoff was due to the union activities of the employees and was in violation of Sec- tion 8(a)(3) of the Act. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); Hunter Douglas Inc., 277 NLRB 1179 (1985), enfd. 804 F.2d 808 (3d Cir. 1986); Corrugat- ed Partitions West, 275 NLRB 894 (1985). E. Layoff of Sharaz Edoo Edoo worked from 2 p.m. until various hours late at night mixing wine cooler. Boursalian testified that he laid off Sharaz Edoo on 26 September 1985. The asserted reason for the layoff was that Edoo was no longer needed because the night shift had been laid off and there was too little work for him. Edoo's timecards show that in the 3 weeks following the layoff, he worked 27- 1/2 hours, 36-1/2 hours, and 32-1/2 hours. Edoo testified that on 26 September 1985, he was laid off by Nodar who reproached him for being responsible for the layoff of so many employees due to their union activity. There is no other evidence that Respondent knew of Edoo's activities in bringing in the Union. In fact, Edoo testified that he denied any union involve- ment to Prior. Nodar denied making any statement to Edoo about the Union I have found that Edoo tended to shade his testimony and that, in some respects, Nodar's testimony was inaccurate. I have also found that Boursa- lian's testimony was inaccurate. Thus, all three of these witnesses are somewhat unreliable. Because the General Counsel has the burden of proof, and because Edoo's tes- timony is unconvincing, I do not find that the General Counsel's burden has been met as to the discharge of Sharaz Edoo. F. The Offer to Recall Respondent urges as further proof of its good faith in carrying out the layoffs that it recalled the employees for the 1986 busy season. Nodar testified that he told his sec- retary to send telegrams to the laid-off employees in 1986. However, Nodar's testimony and the documentary evidence cannot be reconciled. A number of telegrams were sent to some (but not all) laid-off employees on 10 March 1986 by the law firm that then represented Re- 477 spondent.12 The telegrams stated "Joseph Victori has a job available for you to come back to work immediate- ly." Employees were requested to telephone Nodar by 14 March 1986. Similar telegrams were sent out on 13 and 24 March, with later telephone dates. Then, on 28 March, telegrams were sent to a few workers, stating, "We have been unable to contact you by telephone. If you are still interested in working with us, please report to work at the plant on Tuesday, April 1, 1986, at 12 noon." A few other telegrams were sent to employees, apparently confirming that some workers had indicated a desire to return to work. Nodar testified that after the 6 September 1985 layoffs, no employees were hired until May 1986, when the busy summer Season was to begin again. Nodar stated the telegrams were sent in March "to see if they were going to be available to come back to us." Nodar testified, "I just wanted to have an idea of how many people were willing to come back to. work for us so we can plan our night shift again." The tele- grams were sent in order "to alert people." From Nodar's testimony, it is clear that Respondent wanted to hire workers for the busy months of the summer of 1986 and was only testing the future availabil- ity of the workers when it sent them telegrams in March 1986. The telegrams were not an immediate offer of rein- statement, despite the language on their face Thus, the fact that Respondent sent these telegrams does not show its good faith in trying to rehire laid-off employees, and the telegrams are not relevant to the good faith of Re- spondent in making the layoffs in September 1985. I note further that Respondent's managers were aware that most of the laid-off employees spoke Spanish and that Respondent used Spanish-speaking employees to translate instructions on the shop floor. Yet all the telegrams were sent in English. Although the telegrams instructed the employees to call Nodar himself, Nodar testified that he told his secretary, Flora, to follow up on the offers of recall and speak to the employees. Flora does not speak Spanish. Julio Martinez testified that, although he did not re- ceive a telegram from Respondent, he and his cousin Ar- senio Martinez went to the plant to ask for their jobs back on 26 March. The Union had asked them if they received telegrams and Union Agent "Arturo" drove them to the plant. Martinez and his cousin saw Prior but the latter told them there was no work. Then Prior took them to the manager, whom Martinez identified as "Nova." 13 Noubar Boursalian said there was no work. Finally, Prior told the two men that they were trying to get him into trouble, "that we had said that they had been fired because they had filled out a union card." On 1 April 1985, Martinez and his cousin again returned to the plant to seek work. They saw Prior who told them there was no work. These two incidents are further evi- dence that Respondent did not make a good-faith offer 12 Only those employees named In the original complaint were sent telegrams 13 Martinez is Spanish speaking It is clear from the record that by "Nova" he meant "Noubar " Boursalian's last name was difficult for the employees to pronounce and he was commonly known as "Noubar" in the plant 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of immediate reinstatement to its employees in March 1986. CONCLUSIONS OF LAW 1. By interrogating its employees about their member- ship in the Union and by threatening its employees with discharge if they joined the Union, Respondent violated Section 8(a)(1) of the Act. 2. By discriminatorily laying off the following employ- ees because they joined or supported the Union, Re- spondent violated Section 8(a)(3) and (1) of the Act: Joel Zellman Pedro Arias Jose De Jesus Ramon Mejia Richard Mena Francisco Fermin Arsenio Martinez Ivan Gammie Donovan Dennis Guerrero Julio Martinez Harvey Lightburn Samuel Fanqui Deodath Seojan Marcial Montero Jose Diaz Tyrone Brown Pedro Giraldo Gabriel Palacio Khalid Hussain Guillermo Davila Sajjiad Ahmed Rafael Valerio Tony Tatum Ramdatt Sambhu Muzhar Hussain Jaimram Hariram Zafar Mahmed Jose Castellanos Fausto Amigon Reuben Cevallos Mushtaq Ahmed Marvin Campbell Mario Abreo Gilberto Collado Percio Gomez 3. Respondent did not violate the Act by discharging Roberto Velez and by laying off Sharaz Edoo. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Respondent having discriminatorily laid off its employ- ees, it must offer them reinstatement and make them whole for any loss of earnings and other benefits com- puted on a quarterly basis from the date of layoffs to the date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). Respondent must remove from its records any mention of the unlawful layoffs. The General Counsel's request for a visitatorial order is denied. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed14 ORDER The Respondent, Joseph Victori Wines, Inc., Brook- lyn, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Interrogating its employees about their membership in the Union and threatening them with discharge if they join the Union. (b) Laying off its employees because they joined or supported the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate and full reinstatement to the em- ployees named in paragraph 2 of the Conclusions of Law to their former jobs or, if these jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for their loss of earnings and other benefits in the manner set forth in the remedy section of this decision. (b) Expunge from its files any references to the layoffs and notify the employees that this has been done and that the layoffs will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its 31st Street plant copies in English and in Spanish of the attached notice marked "Appendix."ib Copies of the notice in English and Spanish on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) 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 ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. 14 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 15 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " JOSEPH VICTORI WINES 479 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL " offer the following employees immediate and full reinstatement to their former jobs or , if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed and WE WILL Make them whole for any loss of earnings plus interest: The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. To refrain from the exercise of any or all such activities WE WILL NOT lay off our employees for joining the Union or engaging in concerted activities. WE WILL NOT interrogate our employees about their union membership. WE WILL NOT threaten our employees with discharge if they join the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Act. Joel Zellman Jose De Jesus Richard Mena Arsenio Martinez Dennis Guerrerod Harvey Lightburn Deodath Seojan Jose Diaz Pedro Giraldo Khalid Hussai Sajjiad Ahme Tony Tatum Muzhar Hussain Zafar Mahmed Fausto Amigon Mushtaq Ahmed Mario Abreo Percio Gomez Pedro Arias Ramon Mejia Francisco Fermin Ivan Gammie Donovann Julio Martinez Marcial Montero Tyrone Brown Gabriel Palacio Guillermo Davila Rafael Valerio Ramdatt Sambhu Jaimram Hariram Jose Castellanos Reuben Cevallos Marvin Campbell Gilberto Collado Samuel Fanqui WE WILL remove from our records any mention of the unlawful layoff of the employees. JOSEPH VICTORI WINES, INC.