Caguas Asphalt, Inc.

CAGUAS ASPHALT Caguas Asphalt, Inc. and Sindicato de Empleados de Equipo Pesado, Construccion y Ramas Anexas de Puerto Rico, Inc. Cases 24-CA-54631 and 24-RC-7095 September 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On April 29, 1988, Administrative Law Judge George F. Mclnerny issued the attached decision as corrected by his corrigendum . The Respondent filed exceptions and a supporting brief and the General Counsel filed a limited exception , supple- mental exceptions, and supporting briefs. 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 conclusions3 as modified.4 The judge found, and we agree, that the Re- spondent discharged Andres Escribano on October 9, 1986, because of his protected concerted activi- ty. Escribano, a paving crew employee who was still in his probationary period, was discharged shortly after he, with other employees, protested ' The correct case number is 24-CA-5463 and not 24 -CA-5643 as listed by the judge in the caption of his decision 2 The Respondent has excepted to some of the judge's 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 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. The Respondent contends that the Board lacks jurisdiction in this case because the Union had no standing to file a charge alleging a violation of Sec. 8(a)(1) of the Act We find no merit in the Respondent's argument because it is well settled that "anyone for any reason may file charges with the Board " Operating Engineers Local 39 (Kaiser Foundation), 268 NLRB 115, 116 (1983) We grant the General Counsel's exceptions concerning the judge's fail- ure to order reinstatement for Cesar A Vega Vega and Nestor M. Cor- dova because the record supports the General Counsel 's claim that their exclusion from the judge's order was a mere oversight However, for the reasons set forth by the judge, we do not find that Pablo Concepcion Jr. should also be reinstated We will also modify the Order , as requested by the General Counsel, to require that the notice be posted in English and Spanish The General Counsel excepts to the judge's failure to find that the strike engaged in by the paving crew was an unfair labor practice strike. We note that it is undisputed that the employees engaged in the strike to protest the discharge of Andres Escribano which is found to be unlawful. Thus, we find that the strike was an unfair labor practice strike from its inception. The judge recommended that the Board "certify the results" after opening and counting certain challenged ballots We shall modify these recommendations by remanding the representation case to the Regional Director for Region 24 to open and count the 11 challenged ballots to which challenges have been overruled , and based on that count , to issue the appropriate certification 785 the subcontracting of paving work to another com- pany, Cayey Asphalt.5 In finding that Escribano's discharge was unlaw- ful, the judge found that the Respondent failed to give Escribano a "real" reason for his discharge. The judge found that Escribano was told that it was a "management decision" and that the Re- spondent was dissatisfied with his work. The judge rejected these reasons essentially because the Re- spondent failed to define "management decision" and because the record does not support the con- tention that the Respondent was dissatisfied with Escribano's work. In this regard, the record shows that until Escribano participated in the subcontract- ing protest, the Respondent was satisfied with his job performance;6 indeed, he was complimented on his work.? The judge also noted that there was no testimony that the Respondent would have saved money or trouble under local laws or regulations by discharging Escribano before the end of his pro- bationary period, which ended on October 10. Thus, the judge concluded that there was no eco- nomic or other plausible reason for the discharge and that the real reason was Escribano's concerted activity. The Respondent argues in its exceptions that it discharged Escribano to prevent him from becom- ing a permanent employee and that this argument, contrary to the finding of the judge, is supported by the testimony of Operations and Plant Manager Roberto Soto Reyes (Soto). Soto testified that the real reason Escribano was discharged on October 9 and not the next day , when the other paving crew employees were laid off, was that he would have been a permanent employee on that day and that he, Soto, understood that a "probationary employ- ee is simpler [sic] than a permanent employee." The Respondent claims that it was unnecessary to tell Escribano the real reason for his discharge be- cause his was an employment-at-will situation and it was not obligated to reveal its real reason. The Respondent also argues that it was unnecessary to present evidence to support its contention that a discharge within a probationary period benefits an employer because the latter proposition is a matter of common knowledge. For the reasons set forth below, we find that Soto's testimony is insufficient to sustain the Respondent's most recent argument S The credited evidence shows that this concerted activity probably occurred on October 9, but at least during the week of October 6 6 The evidence is undisputed that Escribano's supervisor was pleased with his work and that the supervisor was not consulted about his work performance In fact the supervisor tried to get him reinstated. r According to Escribano's undenied testimony , Soto complimented him on his work 296 NLRB No. 97 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in support of its claim that Escribano's discharge was lawful. The Respondent has failed to explain why, if the real reason for Escribano's discharge was that it was easier to discharge him as a probationary rather than a permanent employee, the Respondent alleged as an affirmative defense in its answer to the second amended complaint that Escribano was discharged for poor work performance and, corre- spondingly, why Soto told Escribano (as the latter testified without contradiction) that he was being discharged because the Respondent was dissatisfied with his work. Perhaps the Respondent's abandon- ment of these earlier asserted reasons for discharg- ing Escribano is explained by its realization that the evidence, as well as the judge's findings, do not support its claim that Escribano 's work was unsat- isfactory. Whether that is a fair explanation for the shift in the Respondent's assertions, its contention that firing Escribano as a probationary employee was "simpler than a permanent employee " does not advance its case. According to Soto, before Escri- bano's discharge occurred, the Respondent had de- termined to lay off the entire crew of which Escri- bano was a member and to subcontract the work that the crew performed. As the judge aptly noted, the Respondent has not explained how it can square its claim of a prior plan to lay off the entire crew consisting of both permanent employees and Escribano with its claim that it needed to lay off Escribano on October 9 so as to avoid having to discharge him as a permanent employee . Of course, the judge found--for reasons we deem entirely suf- ficient in fact and law--that the Respondent's claim concerning a prior plan for the discharge of the crew was false, but we may still properly take ac- count of the contradictions in the Respondent's own explanations for its actions. In any event, we reject the Respondent's claim that because it is "common knowledge" that a dis- charge within an employee's probationary period benefits the employer , it is unnecessary to produce any evidence in support of that claim. Apart from the difficulty in defining what is "common knowl- edge" in the evidentiary or legal sense , such so- called knowledge is not a substitute for evidence. But even were we to accept the Respondent's claim that the proposition concerning discharges in the probationary period is true as a general matter, we would not find that Escribano was discharged, as the Respondent argues in its exceptions, to pre- vent his becoming a permanent employee because a "probationary employee is simpler [to discharge] than a permanent employee." There must be evi- dence that a theoretically possible reason for a par- ticular action was in fact the reason; the assertion by itself does not suffice as proof. No such evi- dence was proffered or adduced. To the contrary, the defense of the Respondent as pleaded , as well as the primary thrust of the evidence presented, such as Escribano's undenied testimony concerning the reason given him , indicate a wholly different reason from that now being asserted. Given this change in reasons for Escribano 's discharge, the Respondent could have been expected to attempt to dispel any doubts raised by its shifting reasons for Escribano's discharge by coming forward with evidence of a substantial and convincing nature. The Respondent's failure to furnish that evidence is fatal to its case . Consequently, we conclude that the Respondent's latest asserted reason for dis- charging Escribano (the approaching end of his probationary employee status) has, like the reasons that preceded it, been advanced to mask the Re- spondent's unlawful conduct. See Mastercraft Casket Co., 289 NLRB 1414 (1988), enfd. 881 F.2d 542 (8th Cir. 1989); Delta Gas, 282 NLRB 1315, 1317 (1987). Accordingly, we find, in agreement with the judge, that Escribano was discharged in violation of Section 8(a)(1) of the Act. ORDER The National Labor Relations Board orders that the Respondent, Caguas Asphalt, Inc., Caguas, Puerto Rico, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging or laying off its employees for exercising their rights to engage in protected, con- certed activity under the protection of Section 8(a)(1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer to Andres Escribano , Juan V. Cruz, Pablo Concepcion, Sr., Nestor L. Rivera, Angel de Jesus, Anastacio Baez, William Baez, Luis A. Baez, Juan Reyes, Cesar A. Vega Vega, and Nestor M. Cordova immediate and full reinstatement to their positions as the Respondent 's paving crew as con- stituted on October 9, 1986, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and make them whole for any loss of earnings and other benefits suffered by reasons of the discrimination against them, together with interest thereon as described in the remedy section of the judge's decision. (b) Expunge from its files any reference to the discharge of Andres Escribano on October 9, 1986, CAGUAS ASPHALT and the layoffs of the other employees listed in paragraph 2(a) of this Order, and notify them in writing that this has been done and that evidence of these unlawful terminations will not be used as a basis for future personnel actions against them. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Caguas, Puerto Rico, copies of the attached notice marked "Ap- pendix."8 Copies of the notice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent's authorized repre- sentative, shall be posted in English and Spanish immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that Case 24-RC-7095 be remanded to the Regional Director for appro- priate action consistent with this Decision and Order. a 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or lay off our employ- ees because they engaged in protected concerted activities under the protection of Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act. 787 WE WILL offer Andres Escribano, Juan V. Cruz, Pablo Concepcion, Sr., Nestor L. Rivera, Angel de Jesus, Anastacio Baez, William Baez, Luis A. Baez, Juan Reyes, Cesar A. Vega Vega, and Nestor M. Cordova immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights or privileges previ- ously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the unlawful discharge of Andres Escribano and the unlawful layoffs of Juan V. Cruz, Pablo Con- cepcion, Sr., Nestor L. Rivera, Angel de Jesus, An- astacio Baez, William Baez, Luis A. Baez, Juan Reyes, Cesar A. Vega Vega, and Nestor M. Cor- dova and WE WILL notify Andres Escribano, Juan V. Cruz, Pablo Concepcion, Sr., Nestor L. Rivera, Angel de Jesus, Anastacio Baez, William Baez, Luis A. Baez, Juan Reyes, Cesar A. Vega Vega, and Nestor M. Cordova that we have removed from our files any reference to their unlawful ter- minations and that the terminations will not be used against them in any way. CAGUAS ASPHALT, INC. Raymond E. Morales, Esq., for the General Counsel. Heber E. Lugo Rigau, Esq. and Alfredo Hopgood Jovet, Esq. (Lespier, Munoz Noya & Ramirez), of San Juan, Puerto Rico, for the Respondent. Luis Fred Salgado, Esq., of Caguas, Puerto Rico, for the Charging Party. DECISION AND REPORT ON CHALLENGES GEORGE F. MCINERNY, Administrative Law Judge. Based on a charge filed on October 16, 1986, and amend- ed on November 26, 1986, and May 28, 1987, by Sindi- cato Empleados Equipo Pesado, Construccion y Ramas Anexas de Puerto Rico, Inc. (the Union), the Regional Director for Region 24 of the National Labor Relations Board (Regional Director and the Board), issued a com- plaint on November 28, 1986, alleging that Caguas As- phalt, Inc. (the Company or Respondent) had violated and was continuing to violate Section 8(a)(1) of the Na- tional Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act). Thereafter, an answer was filed by Respondent de- nying the commission of any unfair labor practices. At the same time, the Union filed a petition in Case 24-RC-7095 requesting an election in a unit of the Com- pany's "production and maintenance employees, includ- ing plant operators, mechanics, loader operators, utility men, janitors, welders, and the paving crew employed by the Company at Caguas, Puerto Rico, but excluding all other employees, office clerical employees, guards and supervisors as defined in the Act." Pursuant to a Deci- 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sion and Direction of Election by the Regional Director on December 3, 1986, an election was conducted on behalf of the Board by the Regional Office on January 29, 1987, at which time 17 out of 21 eligible voters voted. Of these, 2 votes were against the Union, and 13 votes were challenged. The Regional Director undertook an administrative in- vestigation of the challenges, with the following results. Jose L. Marrero was found to be a permanent part- time employee, and the Regional Director overruled the challenge. No exception to this ruling has been filed, or is noted in this record. Nestor M. Salis and Juan Ortiz Torres were chal- lenged by the Union . Salis was alleged to be a plant op- erator with no supervisory duties, and Ortiz was alleged to be a laboratory technician with no clerical duties. Since these challenges raised substantial issues of fact and credibility which, in the opinion of the Regional Direc- tor, could best be resolved on the basis of record testi- mony, she directed a hearing on the issues. Pablo Concepcion Jr.' and Luis A. Baez were chal- lenged because their names did not appear on the eligi- bity list of employees at the January 29 election. These challenges were also referred to a hearing for resolution. The ballots of Juan V. Cruz, Pablo Concepcion Sr., Nestor L. Rivera, Angel de Jesus, Anastacio Baez, Andres Escribano, William Baez, and Juan Reyes were challenged as beginning employees discharged by the Company in October 1986. Since the discharges of these employees were alleged to violate the Act in Case 24- CA-5463, a hearing was directed as to their eligibility to vote in this election. The Regional Director then ordered that Cases 24- CA-5463 and 24-RC-7095 be consolidated for hearing before an administrative law judge. Accordingly, a hearing was held before me in Hato Rey, Puerto Rico, on August 12, 13, and 14, 1987,2 at which all parties were represented by counsel, had the opportunity to present testimony and documentary evi- dence, to examine and cross-examine witnesses, to file oral and written motions, and to argue orally. After the hearing, the General Counsel and the Re- spondent filed briefs, which have been carefully consid- ered. Based on the entire record, including my observations of the witnesses, and their demeanor, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Company here is a corporation duly organized and existing under the laws of the Commonwealth of Puerto Rico. During all times material herein, it has maintained its office and place of business in the city of ' Pablo Concepcion Jr. is also described in the record as Pablo Con- cepcion (Hilo) since his father, Pablo Concepcion Sr., also known as Pablo Concepcion (Padre) is an alleged discriminatee here 2 The General Counsel has moved to correct the transcript of this hearing in a number of places There being no opposition to this motion, it is allowed The transcript is further amended by the correction of the spelling of my name wherever it appears Caguas, Puerto Rico, where it is engaged in the manu- facture, application, and sale of bituminous asphalt prod- ucts. During the 12 months prior to the issuance of the complaint herein, the Company purchased and received at its Caguas, Puerto Rico location goods and materials valued in excess of $50,000 directly from points outside the Commonwealth. Based upon the above uncontradicted pleadings, I find that the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated that Sindicato de Empleades de Equipo Pesado, Construccion y Ramas Anexas de Puerto Rico, Inc. is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of Escribano The Company was engaged in the manufacture and application of Asphalt paving materials during 1986.$ During times material herein Carlos Monserrate was the Company's executive vice president and general manag- er. Jorge Cintron Rodriguez was the administrative vice president and controller, and Roberto Soto Reyes was operations manager and plant manager . The field super- visor and paving crew foreman was Cesar Augusto Vega Rodriguez. There is no indication in the record concern- ing the owners of the business, or who ranked above the three named managers in making decisions attributed here to "management." Cintron4 was still employed by the Company at the time of this hearing. Soto had re- signed and was working for another asphalt company; Monserrate was no longer employed by the Company and did not testify. Andres Escribano Sanchez was hired by Cesar Vega on July 10 to work as a machine operator on the paving crew. Escribano and Vega had known each other for over 20 years, and Vega had a high regard for Escri- bano's versatility as well as his ability. Thus, Escribano was hired in at a higher rate than other new employees. He operated a raking machine, could drive trucks, and was an experienced mechanic. There is some evidence in the testimony of Escribano and employee Nestor Luis Rivera Rios that other em- ployees came to Escribano to discuss complaints about their mistreatment by the Company, and about unful- filled company promises; and some very vague refer- ences while Escribano was being cross-examined (and over the General Counsel's objection) that Escribano had discussed such problems with Soto. However, this testi- mony is so isolated and imprecise that I cannot find that at any time Escribano acted as a spokesman for the em- ployees in dealing with Soto or any other representative of management. a All dates herein are in 1986 unless otherwise specified. 4 I shall follow the custom observed in Puerto Rico of using an indi- vidual's full name where given , and thence using only the patronymic. CAGUAS ASPHALT In August an incident occurred out at a job in the San Antonio district of the city of Caguas . The employees, through Vega, had asked representatives of management to come out to the job to speak to the employees about a promised pay increase. The testimony about this meeting is contradictory and inconclusive . Escribano stated that Cintron and Soto came out to the job, and that one of the employees asked a question about the Company's medical plan. Cintron began to answer, but Escribano in- terrupted, saying that "You were not called to come here to talk about the medical plan, you were called here to talk about what was the increase that was going to be given." Cintron got upset and told Escribano not to in- terrupt him . Escribano excused himself. Cintron then began to talk about the raise . Escribano did not hear him correctly, thinking he said 5 cents instead of 25 cents. When this was straightened out Escribano said he ex- pressed his dissatisfaction with the larger amount. Vega's testimony on this incident was shifting and equivocal, even though he concluded that this was the reason for Escribano's discharge in October. Rivera was likewise somewhat ambiguous about what happened at the meeting . He did say that Cintron was angered at the interruption, and added his opinion that this was the reason for Escribano's later discharge . Like Vega, he really offered no reasons for this opinion . Soto, testifying for Respondent, discounted the significance of the August meeting saying only that when Cintron an- nounced the wage increase, Escribano said 5 cents was not enough, Cintron said he did not hear him very well, it was 25 cents, not 5 cents, and nothing else happened.5 However, there was another incident involving Escri- bano and other paving crew employees , a truck carrying asphalt to a subcontrator, and Soto. Escribano testified that the incident occurred on the morning of October 9 when he and a group of employees stopped the truck and asked to see the driver's bill of lading . The bill showed that the asphalt on board the truck was being shipped to a company named Cayey Asphalt at a project which had been awarded to Caguas Asphalt. The em- ployees spoke to Soto about this, and he assured them that there was plenty of work for the paving crew. After some more discussion about contracts awarded to Caguas but being subcontracted to Cayey, Soto got the employ- ees to agree to let the truck go, over Escribano's objec- tions. Nestor Rivera was, as in his description of the August meeting, less than precise in his memory of this incident concerning subcontracting. In fact, the General Counsel had great difficulty in getting Rivera to remember what happened and what was said . Thus, this testimony is reli- able only insofar as it corroborates Escribano to the extent that there was a meeting between employees, in- cluding Escribano , and Soto concerning the shipping of 5 Soto had been present at the meeting, but did not speak there. Cin- tron testified a 611(c) witness called by the General Counsel, but was not asked about this meeting . It seems to me that the General Counsel had every opporturnity to ask Cintron about this August incident but chose not to I decline to make an inferential finding against the Respondent, because it did not bring the matter up during its examination of Cintron then or later. However, I consider the events of this meeting to be too remote to figure in Escribano's discharge on October 9 789 asphalt from Caguas to Cayey for use on a Caguas con- tract, and that, as a result, Soto agreed to discontinue such subcontracting after the current one was completed. Rivera was not sure about the dates, but using Soto's tes- timony concerning the first subcontract made by Caguas with Cayey, I can establish the dates of shipments of as- phalt to Cayey as being between September 30 and Oc- tober 9. Soto placed the meeting much earlier, but any earlier date than the end of September contradicts his testimony on the dates of the shipments to Cayey. This inconsisten- cy leads me to doubt Soto's testimony on the meeting, and I find that it occurred , probably on October 9, but at least in the week beginning October 6. Escribano did not have a good memory, and he faltered on details, such as where he had kept union cards for a period of time before October 10, and the exact chronology of events on October 9 and 10 concerning his discharge , but I did find his demeanor to be candid and open, and his version of events to be basically in accord with that of Rivera, whom I also found to be a credible witness. I, therefore, credit Escribano's version of what happened at the meet- ing of the week of October 6 concerning the subcon- tracting of paving work to Cayey. On October 9, the paving crew was working on a project at Canobocito in the city of Caguas . At some time during the afternoon Vega was notified by Soto that Escribano was being discharged .6 When the crew returned to the plant Soto called Escribano to his office and notified him formally of his discharge . Soto said, ac- cording to Escribano, that he was sorry, but that the Company was dissatisfied with his work. According to Soto, he told Escribano in the office that the discharge was a "management decision," and Soto told us at this hearing that the discharge was not his , but a "manage- ment" decision.7 Vega had serious reservations about Escribano's dis- charge. He felt that the latter was a good workman, and that the management decision to terminate him without even consulting Vega, the field supervisor, was insulting to him. Indeed, Vega instructed Escribano on the after- noon of October 9 to report for work as usual the next morning. At that time Vega remonstrated with Soto, even threatening to quit if Escribano was not reinstated. The decision, however, remained firm.8 As I have noted, the August incident seemed to me to be too remote to have influenced the October 9 dis- charge. The hints, and no more than hints, about Escri- 5 The testimony about what happened at the project on the day is lengthy, contradicting, and confusing, reflecting primarily the faulty memories of the three participants, Escribano, Vega, and Soto However, this chronology is not important to the issues here. What is important is the fact that Escribano was discharged , and that fact is undisputed. 7 Soto also claimed at a later point in his testimony that Escribano was being terminated because of management 's decision to subcontract the paving work, and that he did not tell Escribano about this because it was "unnecessary." Soto never did explain why "management " found it nec- essary to fire Escribano one day before the remainder of the crew. As Soto also testified , it had been decided to lay off the whole crew because of the subcontracting decision. 8 It is clear that Vega, who had been consulted about the Cayey sub- contract earlier, was not aware of any management decision to subcon- tract all of the paving work. 790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bano's continuing union affiliation, and his assumption of a position as a representative for himself and the other members of the paving crew in dealing with manage- ment, were not developed to the point where I could find that management was aware of the former, or that Escribano ever acted as "spokesman" for the crew. The incident with the truck was different . There it is undenied that Escribano led, or at least participated in a confrontation with Soto, and so aggressively questioned the management decision to subcontract to Cayey that Soto was forced to, at least ostensibly , back down and promise that there would be no further subcontracting. The General Counsel has thus established , first, that there was concerted activity and, second , that the Com- pany knew about it . Since Escribano's discharge fol- lowed abruptly, either on the same day, or within a day or two of the truck incident, I infer and find that the confrontation over the truck was a motivating factor in management's decision to fire Escribano.9 The Company gave no real reason for the discharge. Escribano and Vega were told that it was a "Manage- ment decision." The unsatisfactory work reason is not borne out by the facts. Soto gave no examples of poor workmanship, bad work habits, or any other neglect or dereliction of duty. The notice of discharge gave no reason for the discharge. There was no testimony that the Company would have saved money or trouble under the laws or regulations of the Commonwealth by dis- charging Escribano during his probationary period. There is, I find, no plausible or economic reason for the discharge. Therefore, the inference that the real reason was Escribano's concerted activity during the week of October 6, probably on October 9, was the real reason. I find, therefore, that the discharge was in viola- tion of Section 8(a)(1) of the Act . Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). B. The Strike On the morning of October 10, on learning that Escri- bano's discharge was final, the other members of the paving crew left the Company's premises, and began a strike in protest of the discharge. It is undisputed that Escribano and another employee obtained some authorization cards for the Union, and had the employees sign them. I do not, however, consid- er this to be significant , since there is no evidence that the Company ever knew about this." o 9 Otherwise, Soto gave no answer to this, why was it necessary to fire Escribano one day before it had already, according to Soto, been deter- mined to lay off the whole crew . Moreover, how could management fire Escribano, allegedly for unsatisfactory work during his probationary period, when his supervisor not only was not consulted , but was well sat- isfied with his work. Indeed, Escribano's testimony that Soto himself had complimented him on his work was undenied 10 Cesar Vega Vega, son of Supervisor Cesar Vega Rodriquez, testi- fied that while he was signing a card , his father came up to him and asked him what he was doing . He replied that he was signing a union card. Following the receipt of this testimony , the General Counsel moved to amend the complaint herein to allege company knowledge of the employees' union activity, because the father's knowledge was passed on to management I denied the motion to amend It seems to me, as I said at the time, that whatever remedy might exist for the proposed There is no indication of further discussions among the employees on that day , October 10. Nestor Rivera testi- fied that he, and perhaps others, it is not clear , reported on Monday, October 13, at the plant gate , but were not allowed to go in . They were told by a guard that "the crew had been suspended."11 The strike continued until Vega hired the strikers to work for him as a subcontractor to the Company. C. The Decision to Subcontract and the Layoff of the Paving Crew In August or September , the Company was faced with the problem that it had too much work under contract, and it was under pressure from the municipal authorities in the city of Caguas to finish projects which the Com- pany had been awarded by the municipality. Cesar Vega testified that he attended a meeting in mid- August with Monserrate and Soto, as well as four other- wise undentified individuals named Pacheco , Guzman, Negron, and Ivan Ortiz. 12 At this meeting the partici- pants discussed the fact that the Company had many projects, too much work, and they had to get someone outside the Company to help . According to Vega, some other asphalt paving companies were in trouble because of subcontractors doing paving work. It was decided at that time, according to Vega's testi- mony, corroborated by that of Soto, to try an experi- ment in subcontracting some work to Cayey Asphalt, a company which only did paving, rather than both manu- facturing and paving . Accordingly, a contract was led to Cayey in September, to run until the first part of Octo- ber. 13 While Vega was a participant in the August meeting which led to the experience in subcontracting , he appar- ently did not participate in further meetings . Vega did say that the experience worked out satisfactorily, as did Soto. The latter also commented in his testimony that the work was performed in a "Very positive" manner as far as concerned quality, speed , and cost. According to Soto the first Cayey subcontract was finished on October 1, a Wednesday. He then said that the Company decided in "that week," in a meeting between Soto, Monserrate, and Cintron, to subcontract all of the Company's paving work, and lay off their own paving crew . 14 It is not amendment merely duplicated that which flowed from existing allega- tions. I see no reason to change that view 11 The General Counsel argues that this testimony establishes an un- conditional offer to return on the part of the strikers . It is not entirely clear that all of the strikers reported on that morning , but is enough that the guard told those who did report that they were all suspended, to es- tablish an offer to return on the morning of October 13 Hawaii Meat Co., 139 NLRB 966 ( 1962). is Note, there is a Juan Ortiz described by the Regional Director in the Report on Challenge as a "laboratory technician ," and whose ballot was challenged by the Union There is no indication in the record that Juan and Ivan are the same person (even though the name is the same, depending on whether you are speaking Spanish or Russian). 13 Vega thought the subcontract ran until about October 9 , Soto said it was completed on the first of October 14 Soto stated in his testimony that they decided to notify the employ- ees at the "end of the week " However, they did not notify the employ- ees until October 10, more than a week later and the day the strike began. CAGUAS ASPHALT clear whether the decision to subcontract and lay off the paving crew was made as a result of Soto's recommenda- tions, or whether it had been made by Monserrate and Cintron (or others) before Soto arrived, as he said, at a meeting which was already underway. Whatever the rea- sons or motives of the Company were, it is undisputed that Soto, the plant and operations manager, and an engi- neer, made his recommendations to management, based not on cost and engineering data recorded by him, but on his "observations" of the work done by Cayey on the experimental subcontract . No facts or figures were pre- sented showing that the Company would save anything by subcontracting . There was no evidence that the Com- pany had approached Cayey, or any other prospective subcontractor to ascertain that they would be ready to take up the work on Caguas Asphalt's existing contracts so as to relieve the pressure on the Company. In short, there apparently was no study, no analysis, no figures, other than Soto's unsupported word, to con- vince either the management of Caguas Asphalt, or to convince me, that the decision to subcontract and lay off was a legitimate, considered, economic decision.15 Indeed, the decision, as described by Soto, seems to have been impetuous and ill-considered. Considering the timing (I am mindful of Soto's statement on cross -exami- nation, that the decision was made on October 9), I think it was influenced by the attitude of the paving crew toward the subcontracting already made to Cayey. Moreover, considering the lack of preparation (no substi- tutes for the paving crew had been obtained, and subse- quent events show that none were obtained until Vega was told he would be the subcontractor and the work there continued to be done by the same paving crew as before), I infer and find that the decision to subcontract was taken, not on October 1, or October 9, but on Octo- ber 10, after the employees had walked off the job. There is no other logical explanation for the timing of the layoffs, the lack of study and preparation , lack of notice, and lack of foresight in such a critical decision to the employees and to the Company as well . Ultimately, this lack of foresight led to a kind of subcontracting where the original employees constitute the crew, and their former supervisor the subcontractor, with the Com- pany continuing to supply not only the asphalt, but also the transportation of the material, the equipment and ma- chinery used in its application and compactions and in- spection of the work. This is hardly the worry-free kind of subcontract the Company might have enjoyed if, as with Cayey, it merely delivered the product and inspect- ed the finished work. The Company's motivation here is clear. It wanted to get rid of the paving crew because of their protected concerted activities in protesting the subcontracting, and their later walkout in protest of Escribano's discharge. It then laid them all off in violation of Section 8(a)(1) of the Act. United Services for the Handicapped v. NLRB, 678 F.2d 661 (6th Cir. 1982). 15 1 note also in this regard the fact that neither Cintron nor Monser- rate testified about this critical decision I do not view this failure to testi- fy as warranting adverse inferences, as argued by the General Counsel, but it certainly does not add either to the weight of Soto 's evidence or his credibility IV. THE CHALLENGES 791 1. Jose L. Marrero was found to be a permanent part- time employee by the Regional Director . Since no ex- ception to this ruling has been made, I shall recommend that this challenge be overruled and the ballot of Jose L. Marrero be opened and counted. 2. Nestor M. Solis was described by Rivera as a plant operator who worked filling Cayey trucks with asphalt. There being no further evidence on Solis, I find that he is included within the unit found by the Regional Direc- tor to be appropriate herein , and I recommend that the challenge to his ballot be overruled that his vote be opened and counted. 3. Since there is no evidence on the status of Juan Ortiz Torres,16 I cannot overrule the challenge to his ballot. I recommend that this ballot not be opened nor counted. 4. Pablo Concepcion Jr. was challenged by the Board agent because his name did not appear on the eligibility list. The evidence shows that he was a casual employee who had worked for the Company during 1987 for a short time. According to Cesar Vega, Pablo Concepcion Jr. had "abandoned his job" some months before Octo- ber 10. During the week beginning October 6 a regular employee named Cordova was out sick. Vega called Pablo Concepcion Jr. in to work . He worked 3 days, then asked to be excused because of a court appearance. He was, therefore, not present on October 9. There is no evidence that he was present for the strike on October 10, or that he was among those who presented them- selves at the Company's gate on October 13. I find that he was a casual employee who had no expectation, as of October 10, of any permanent employment with Caguas Asphalt. His subsequent employment by Vega has no rel- evance to his earlier status with Caguas Asphalt. I rec- ommend that the challenge to the ballot of Pablo Con- cepcion Jr. be sustained and that this ballot not be count- ed. 5. The ballot of Luis A. Baez was challenged by the Board agent because his name did not appear on the eli- gibility list. However, his name does appear on the list agreed upon by the parties as showing the names of those who were sent letters of dismissal by the Company under date of October 10, 1986. Luis A. Baez will, there- fore, be included among those employees , and I recom- mend that the challenge to his ballot based on ineligibil- ity be overruled. 6. The ballots of Juan V. Cruz, Pablo Concepcion Sr., Nestor L. Rivera (Rios), Angel de Jesus, Anastacio Baez, Andres Escribano, William Baez, and Juan Reyes were challenged because they were alleged as discriminating discharges in Case 24-CA-5463. They were allowed to vote under challenge pending the determination of Case 24-CA-5463. To these, as noted in the prior paragraph, I recommend that the name of Luis A. Baez be added. Since I have found that all of these employees were dis- criminatorily discharged due to the unfair labor practices of the Company, I recommend that the challenges to 16 As I previously noted, there was mention of an Ivan Ortiz, but no indication that Juan and Ivan were the same persons 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their ballots be overruled, and that those ballots be opened and counted. Having recommended that certain of these challenged ballots be opened and counted, I further recommend that the Board certify the results of the election in Case 24- RC-79005. V. THE REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom , and that it take certain af- firmative action designed to effectuate the policies of the Act. Specifically, I shall recommend that the Respond- ent: Offer to Andres Escribano, Juan V. Cruz, Pablo Con- cepcion Sr., Nestor L. Rivera, Angel de Jesus, Anastacio Baez, William Baez, Luis A. Baez, and Juan Reyes im- mediate reinstatement to their former positions , reinstat- ing them to the paving crew as constituted on October 9, 1986, and make them whole for the discrimination suf- fered by them by the payment to them of backpay to- gether with interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987).17 I do not, however, agree with General Counsel that a so-called visitatorial clause is necessary in this case . There is no indication that the Re- spondent will not heed a proper order of the Board on the issues herein. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging its employee, Andres Escribano, the Respondent has violated Section 8 (a)(1) of the Act. 4. By laying off its employees Juan V. Cruz, Pablo Concepcion Sr., Nestor L. Rivera, Angel de Jesus, Anas- tacio Baez, William Baez, Luis A. Baez, and Juan Reyes, the Company has violated Section 8(a)(1) of the Act. [Recommended Order omitted from publication.] ' ' See generally Isis Plumbing Co., 138 NLRB 716 (1962).