Felbro, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1268 (N.L.R.B. 1985)

1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Felbro , Inc, and Local 512, Warehouse and Office
Workers' Union , International 'Ladies' Garment
Workers' Union , AFL-CIO and Local 512,
Warehouse and Office Workers' Union , Interna-
tional Ladies ' Garment Workers ' Union, AFL-
CIO; and Southern California District Council,
International Ladies' Garment Workers' Union,
AFL-CIO. Cases 21-CA-20854 and 21-CA-
20988
29 March 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 4 April 1983 Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a reply brief.
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,' and
conclusions and to adopt the recommended Order
as modified
We, agree with the, judge that the Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to execute and by repudiating the collective-
bargaining agreement it reached with the Union in
mid-December 19812 and by laying 'off employees
in . late August 1981 without first notifying the
Union and giving it an opportunity to bargain; vio-
lated Section 8(a)(3) and (1) by laying off employ-
ees. Escobar, Santizo, Macias,3 F. Castaneda, and
i 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
2 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(5) and (I) of the Act by refusing to execute and repudiating the col-
lective-bargaining agreement it reached with the Union in mid-December
1981, we note that, contrary to the-judge's finding, the parties entered
into a stipulation at the hearing that the ground rules for their negotia-
tions included a provision that any agreement reached would not be
binding unless ratified by the unit employees This fact does not affect
our decision because, as the judge found, the employees did ratify the
agreement Thus, the parties actually reached a full agreement in mid-De-
cember, which was to become effective on the happening of a specified
event, ratification When that event occurred, the bargaining agreement
became effective It is immaterial that the Respondent may not have been
notified of the ratification prior to its attempt to revoke its contract offer
3 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(3) and (1) of the Act by laying off employee Macias for 2 days in the
latter half of 1981, we do not rely on the judge's finding that Supervisor
del Cast.llo's remark to employee-union activist Raul Castaneda, after
Castaneda had asked del Castillo why Macias was laid off, to the effect
,that,, if Macias was laid off because he was supported by the Union, the
Union could find him a job, constituted an admission showing that the
layoff was discriminatory
Robinson and by imposing more onerous working
conditions in response to employees' activities on
behalf of the Union; and violated Section 8(a)(1) by
making various threats and 'other coercive state-
ments regarding employees' union activities. How-
ever, we find merit to the Respondent's exception
to the judge's conclusion that the Respondent vio-
lated Section 8(a)(1) of the Act on 2 November
1981 by suspending for I day employees R. Castan-
eda, F. Castaneda, Robinson, Mendoza, and Ra-
mierez.
As the judge found, the Respondent gave em-
ployee Inda a disciplinary layoff that day. Inda's
layoff was not alleged to be a violation of the Act.
According to testimony of the employees involved,
which the judge credited over contrary testimony
of the Respondent's witnesses, immediately follow-
ing Inda's layoff the five employees alleged to have
been unlawfully suspended, led by union activist
Raul Castaneda, left their work areas and ap-
proached the Respondent's officials. Castaneda de-
manded an explanation for Inda's layoff. One of the
Respondent's officials present stated that there was
no reason to give the employees an explanation and
directed them to go back to work. The employees
again demanded an explanation, asserting a right to
know why a fellow employee had been disciplined
and stating they refused to go back to work unless
the Respondent gave them an explanation. The Re-
spondent again told the employees to return to
work and stated that, if they did not, their time-
cards would be punched and they would be sent
home. The Respondent also stated that, if the em-
ployees did not either return to work or leave the
Respondent's premises, the Respondent would call
the police. The employees replied that the Re-
spondent should call the police because they would
not move from the premises until they received an
explanation for the layoff At some point during
this exchange, the Respondent did punch the em-
ployees' timecards. The employees at first refused
to leave the premises even after their cards were
punched. There is no evidence that at any point
during this exchange they offered to return to
work. One of the employees then telephoned the
Union's office and returned to tell the others that
they should all go to the Union's office. The em-
ployees went to the Union's office, where an agent
of the Union informed them that their actions at
the Respondent's premises that day had been in
error and that they should present themselves at
the Respondent's plant for work. When the em-
ployees returned to the Respondent's plant the fol-
lowing day, they were permitted to work. There is
no evidence or contention that the Respondent im-
posed any discipline or took any reprisal against
274 NLRB No. 186
FELBRO, INC
the employees in connection with their 2 Novem-
ber protest other than to clock them out and re-
frain from paying them for the rest of the day.
It is fundamental that an employer need not pay
employees for periods of time during which they
refuse to work. Here, the employees who gathered
to protest the layoff of a fellow employee on 2 No-
vember 1981 repeatedly refused to go back to
work. At no point during their exchange with the
Respondent's officials that day did they offer to
return to work. The only action which the Re-
spondent took against them was to clock them out
and not to pay them for the remainder of the day
during which they had refused to work. When the
employees presented themselves at the Respond-
ent's plant the following morning, they were imme-
diately put back to work. In these circumstances,
the action which the Respondent took against the
five employees cannot fairly be characterized as
discipline.4 Rather, the Respondent was merely ex-
ercising its right to refrain from paying employees
for periods when they refused to work. In these
circumstances, contrary to the judge, we find that
the Respondent did not violate Section 8(a)(1) of
the Act on 2 November 1981 by its treatment of
employees R. Castaneda, F. Castaneda, Robinson,
Mendoza, and Ramierez. We therefore shall dismiss
that allegation of the complaint and modify the
judge's recommended Order accordingly.5
AMENDED REMEDY
As a remedy for the violations found herein, the
judge recommended, inter alia , that the Respondent
be required to make employees whole for pay they
lost as a result of its unlawful acts and applied the
Board's standard backpay formula. Subsequent to
the issuance of the judge's decision, the Supreme
Court issued its decision in Sure-Tan, Inc. v.
4 In finding that the actions that the Respondent took against the em-
ployees involved in the 2 November incident constituted "disciplinary
suspensions ," the judge relied on testimony by one of the Respondent's
officials to the effect that the employees had been disciplined We do not
rely on the conclusionary characterization of the Respondent 's actions by
one of its agents where the record does not support a finding that any
discipline actually was imposed in concluding that the Respondent's ac-
tions on 2 November violated the Act, the judge relied , inter aba, on
NLRB v Long Beach Youth Center, 591 F 2d 1276 (9th Cir 1979), and
Vic Tanny International v NLRB, 622 F 2d 237 (6th Cur 1980) We find
Long Beach inapposite because that case turned on the interpretation and
application of Sec 8(g) of the Act, an issue not present here In Vic
Tanny, the court upheld the Board's finding that the employer there vio-
lated Sec 8(a)(1) of the Act by discharging employees who had engaged
in a walkout in protest of working conditions As the court stated, an em-
ployer would be "entitled to refuse to pay employees who left work
or refused to perform assigned duties, just as he could refuse to pay eco-
nomic strikers in the instance of a strike led by a labor union " 622 F 2d
at 241 We note that in the present case, unlike the employer in Vic
Tanny, the Respondent did not discharge the employees, but exercised its
right to refuse to pay employees who had refused to work
b We find merit to the General Counsel's requests that the notice be
posted in Spanish as well as English and that its heading be changed
from "Notice to Members" to "Notice to Employees "
1269
NLRB, 104 S.Ct. 2803 (1984), in which it held,
inter alga, that while undocumented alien workers
are employees entitled to the Act's protection, "in
computing backpay, the employees must be
deemed `unavailable' for work (and the accrual of
backpay therefor tolled) during any period when
they were not lawfully entitled to be present and
employed in the United States." Because it appears
that a number of the employees affected by the
backpay order herein were undocumented aliens,
we shall leave to the compliance stage the issue of
the employees' entitlement to backpay consistent
with the requirements of the Court's opinion in
Sure-Tan.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Felbro, Inc., Los Angeles and South
Gate, California, its officers, agents , successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Delete paragraph 1(b) and reletter the subse-
quent paragraphs.
2. Substitute the following for paragraph 2(c).
"(c) Make whole Raul Alonzo Escobar, Manuel
Santizo, Jesus V. Macias, Jose Alfaro Castro a/k/a
Leonardo Nevarro and Michael Robinson, and
Felipe Castaneda Arizmendi for any loss of pay
they may have suffered as a result of the discrimi-
nation against them , in the manner set forth in the
section of the administrative law judge's decision
entitled `The Remedy' as modified in the section of
the Board's Decision and Order entitled `Amended
Remedy."'
3. Substitute the attached notice, in English and
Spanish, for that of the administrative law judge.
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.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT tell you that you and your co-
workers are being laid off or are being selected for
layoff because you sought representation by or se-
lected as your collective-bargaining representative
Local 512, Warehouse and Office Workers' Union,
International Ladies' Garment Workers' Union,
AFL-CIO or any other labor organization.
WE WILL NOT tell you that transfers between de-
partments are being discontinued because you
sought representation by the above-named labor or-
ganization.
WE WILL NOT threaten you with reprisals be-
cause you support the above-named labor organiza-
tion or any other labor organization, nor because
you select it as your collective-bargaining repre-
sentative.
WE WILL NOT threaten you with reprisals for en-
gaging in activity protected by the National Labor
Relations Act.
WE WILL NOT inform you that we are discon-
tinuing bargaining with the above-named labor or-
ganization or any other labor organization which
you select as your collective-bargaining representa-
tive.
WE WILL NOT discontinue the practice of tempo-
rarily transferring you between departments to
avoid layoffs whenever work in one department
becomes slow.
WE WILL NOT layoff, suspend, or otherwise dis-
criminate against you with regard to hire, tenure of
employment, or any term of condition of employ-
ment for engaging in activity on behalf of the
above-named labor organization or any other labor
organization , nor for engaging in activity protected
by Section 7 of the National Labor Relations Act.
WE WILL NOT without first notifying Local 512,
Warehouse and Office Workers' Union, Interna-
tional Ladies' Garment Workers' Union, AFL-CIO
and affording it an opportunity to bargain, lay off
employees who are in the following appropriate
bargaining unit:
All production, maintenance and shipping em-
ployees employed by Felbro, Inc. at its facili-
ties located at 4223 Liberty Boulevard, South
Gate, California and 1677 East 41st Street, Los
Angeles, California; excluding salesmen, plant
clerical employees, guards and supervisors as
defined in the Act.
WE WILL NOT on request by Local 512, Ware-
house and Office Workers' Union, International
Ladies' Garment Workers' Union, AFL-CIO
refuse to honor and execute a collective-bargaining
agreement embodying the terms of our agreement
with it, reached in mid-December 1981, covering
the employees in the above-described bargaining
unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole Raul Alonzo Escobar,
Manuel Santizo, Jesus V. Macias, Jose Alfaro
Castro a/k/a Leonardo Nevarro and Michael Rob-
inson, and Felipe Castaneda Arizmendi for any loss
of pay they suffered as a result of our discrimina-
tion against them and, also, Armando A. Castaneda
and Israel Ramierez for any loss of pay they suf-
fered as a result of our unilateral layoff of them of
22 or 24 August 1981, with interest on the amounts
owing, for periods when they were lawfully enti-
tled to be present and employed in the United
States.
WE WILL expunge from our files any references
to the layoffs or suspensions of Raul Alonzo Esco-
bar on 27 July 1981; Manuel Santizo on 22 or 24
August 1981; Jesus V. Macias for the extra day
that he was laid off between August and Novem-
ber 1981; and Felipe Castaneda Arizmendi, Manuel
Santizo, and Jose Alfaro Castro a/k/a Leonardo
Nevarro and Michael Robinson about 20 Novem-
ber 1981, and WE WILL notify each of them that
this has been done and that evidence of the unlaw-
ful layoff or suspension will not be used as a basis
for future personnel actions against him.
WE WILL execute, honor, and apply retroactive-
ly, a contract embodying the terms of the agree-
ment reached in mid-December 1981 with Local
512, Warehouse and Office Workers' Union, Inter-
national Ladies' Garment Workers' Union, AFL-
CIO covering employees in the above-described
appropriate bargaining unit, and make those em-
ployees whole with interest, for any loss of wages
and benefits that would have accrued to them but
for our unlawful repudiation of that agreement.
WE WILL reinstate the policy of transferring em-
ployees between departments whenever work in
one department becomes slow.
FELBRO, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge
This matter was heard by me in Los Angeles, California,
on December 13 through 16, 1982 On March 12, 1982,
the Regional Director for Region 21 of the National
Labor Relations Board issued an order consolidating
FELBRO, INC
cases and consolidated amended complaint and notice of
hearing, based on the unfair labor practice charge in
Case 21-CA-20854 filed on November 30, 1981, and
amended on January 21 and, again, on January 27, 1982,
and on the unfair labor practice charge in Case 21-CA-
20988 filed on February 8, 1982, alleging violations of
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act) i All parties have been afforded full
opportunity to appear, to introduce evidence, to examine
and cross-examine witnesses, and to file briefs. Based on
the entire record, on the briefs filed on behalf of the par-
ties, and on my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I JURISDICTION
At all times material, Felbro, Inc. (Respondent) has
been a California corporation engaged in the business of
manufacturing wire and tubular displays at facilities lo-
cated at 4223 Liberty Boulevard, South Gate, California,
and at 1677 East 41st Street, Los Angeles, California. In
the course and conduct of its business operations, Re-
spondent annually sells and ships goods and products
valued in excess of $50,000 directly to customers located
outside the State of California. Therefore, I conclude, as
admitted by Respondent, that at all times material Re-
spondent has been an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
At all times material, Local 512, Warehouse and Office
Workers' Union , International Ladies' Garment Workers'
Union , AFL-CIO (Local 512) and Southern California
District Council, International Ladies' Garment Workers'
Union , AFL-CIO (District Council) each has been a
labor organization within the meaning of Section 2(5) of
the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Background and Issues
As set forth above, Respondent is engaged in the busi-
ness of manufacturing wire and tubular displays Norman
Feldner and his brother Robert are the only shareholders
of Respondent , with Robert serving as its president and
Norman as its vice president . According to Norman
Feldner , almost all of Respondent 's business involves
manufacturing according to customers ' designs Respond-
ent's operations are divided into three departments a
wire or spot welding department supervised by Siro del
Castillo during the day shift and by Ken Ogilbie during
the night shift, a tubing or arc welding department su-
pervised by Alfredo Mata; and the packing and shipping
department supervised by Jerrold Feldner, a nonshare-
i The motion to amend consolidated amended complaint to delete par
I I(c)(2)(i) and (u) is granted
1271
holding cousin of Robert and Norman Feldner, who also
serves as Respondent's general manager.2
In May 1981,3 Respondent's employees conducted a 1-
day strike to protest Respondent's instruction that they
remove their hot plates from the plant Arc welder Jose
Maria Hernandez Lopes also known as Raul Castaneda
and herein referred to by the latter name4 contacted
Local 512 and an organizing campaign then followed.
On June 8, the petition in Case 21-RC-16766 was filed,
seeking an election among Respondent's production,
maintenance, and shipping employees at the above-listed
two locations. Following issuance of a decision and di-
rection of election on July 7, an election was conducted
on August 5 and, as a result, Local 512 was certified as
the bargaining representative of those employes on Sep-
tember 3.
During the time that the representation proceeding
had been progressing toward the certification ultimately
issuing on September 3, several events occurred that are
alleged to be unfair labor practices Thus, on July 27,
Raul Alonzo Escobar, an employee who had been work-
ing in the packing and shipping department since July
13, was laid off.5 The General Counsel alleges that his
layoff had resulted from Respondent's discovery that Es-
cobar's brother-[n-law-Jose Alfaro Castro, who also has
been known as Leonardo Nevarro and as Michael Robin-
son, and who is referred to herein as Robinson-was a
union supporter and, thus, that Escobar's layoff was a
violation of Section 8(a)(3) and (1) of the Act. The com-
plaint further alleges that in August, Respondent had
violated the Act by "impos[ing] onerous and vigorous
terms and conditions of employment on its employees by
barring the interchange of employees among its depart-
ments," and, further, that on August 22 or 24 Respond-
ent had laid off Manuel Santizo as a device for retaliat-
2 It is admitted that Norman and Jerrold Feldner, del Castillo and
Mata had been supervisors within the meaning of Sec 2(11) oG the Act
and agents of Respondent at all times material
Unless stated otherwise, all dates occurred in 1981
Most of the employee witnesses called by the General Counsel have
used fictitious names while working for Respondent, apparently to pro-
tect their status as undocumented aliens That status, of course, does not
deprive them of protection under the Act, see NLRB v Appollo Tire Co,
604 F 2d 1180 (9th Cir 1979), nor, of itself, does that status serve to di-
minish their credibility However, contrary to the admonition in Plywood
Los Angeles, Inc, 257 NLRB 483 fn 2 (1981), in assessing their credibil-
ity, I have considered actions that they have taken to protect that status
insofar as those actions "concern character for truthfulness or un-
truthfulness ," pursuant to Federal Rule 609 of the Federal Rules of Evi-
dence The deficiency in Plywood Los Angeles' "reasoning" is that it fails
to distinguish between status and action taken to protect that status. For
example, under Rule 609 of the Federal Rules of Evidence, a conviction
"involv[ing] dishonesty or false statement" is admissible to attack credi-
bility It matters not one whit why a witness made a dishonest or false
statement-whether to protect undocumented status or to make money
or whatever It is the act of having made the statement leading to the
conviction that must be weighed in subsequently assessing credibility
Similarly, it is not the undocumented status of witnesses in this case that
must be weighed but rather actions that they have taken-regardless of
their underlying motivation for having done so-that must be scrutinized,
as is the case with actions taken by native born or naturalized citizens, in
assessing their credibillity and the probative value of their testimonies
s Escobar was recalled on April 5, 1982
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing against the employees for having supported Local
512 in the August 5 election.6
In addition to Santizo, Respondent laid off two other
employees-Armando A. Castaneda and Israel Rami-
rez-on August 22 or 24 There is no allegation that
their selection for layoff had been motivated by discrimi-
natory considerations However, in light of the fact that
Local 512 had prevailed in the August 5 election and in
view of the further fact that Respondent admittedly did
not notify Local 512 that those two employees and San-
tizo, as well, were to be laid off, the General Counsel al-
leges that their layoffs had constituted unlawful unilater-
al action taken in violation of Section 8(a)(5) and (1) of
the Act.
On November 2, Respondent laid off an employee for
disciplinary reasons The motivation for that layoff is not
challenged by the General Counsel However, following
that action by Respondent, five employees-Raul Castan-
eda, Robinson , Manuel Mendoz , Israel Ramirez, and
Felipe Castaneda Arizmandi-questioned Respondent
concerning the reasons for the disciplinary layoff and
were themselves then laid off for 1 day. The General
Counsel alleges that the layoff of these five employees
had been motivated by their protected concerted activity
and, consequently, had constituted a violation of Section
8(a)(1) of the Act Further, the complaint alleges that a
2-day layoff of Jesus V. Macias, assertedly occurring on
November 18, and that the layoff of Felipe Castaneda,
Robinson, and Santizo on November 207 had resulted
from the union activities of Respondent's employees and,
accordingly, violated Section 8(a)(3) and (1) of the Act.
In addition to these personnel actions, the complaint al-
leges that between July 1981 and January 1982 certain
statements had been made to employees by Jerrold
Feldner, del Castillo, and Mata that interfered with, re-
strained, and coerced those employees in violation of
Section 8(a)(1) of the Act.
Finally, following the certification, Respondent and
Local 512 engaged in negotiations and by mid-December
the only issue upon which agreement had not been
reached was the duration of the contract It is not disput-
ed that during a telephone conversation on December
19, Assistant Regional Director Paul Strongin, on behalf
of Local 512, told one of Respondent's attorneys that
Local 512 would agree to a contract of the duration
sought by Respondent. Thus, Strongin testified that,
6 The parties stipulated that Santizo had been recalled to work by Re-
spondent about August 26 Santlzo did not appear as a witness Counsel
for the General Counsel represented that Santizo had said, in essence,
that he wanted no part of this proceeding Of course, the fact that San-
to does not want to be included in this proceeding does not mean that
he must be removed from the complaint For, "the General Counsel pro-
ceeds, not in vindication of private rights, but as the representative of an
agency entrusted with the power and the duty of enforcing the Act in
which the public has an interest " Ingalls Steel Construction Co , 126
NLRB 584 fn 1 (1960) Nor is the General Counsel obliged to produce a
discriminatee as a witness in order for the Board to direct a remedy on
behalf of that discriminatee Thus, Santizo ' s unwillingness to appear in
this proceeding cannot preclude the necessity for making a determination
as to whether or not Respondent had been motivated by unlawful consid-
erations in laying him off on July 27
r Felipe Castaneda was recalled to work on February 1, 1982 Michael
Robinson was recalled on April 5, 1982 Manuel Santizo was recalled on
March 25, 1982
during that conversation, he had told the attorney that
the parties had an agreement and that acceptance would
be recommended to the employees for ratification
Though Local 512's agents attempted to conduct a ratifi-
cation meeting during that same month, too few employ-
ees attended and another ratification meeting was ar-
ranged for January 5, 1982. At that meeting, a majority,
if not all, of the employees in attendance voted in favor
of ratification.8 However, Norman Feldner testified that'
Robert Feldner and myself had been discussing
that for-since mid-December and the-we made
that decision at the very beginning of January,
whatever the day we returned to work, that
Monday. Is that the 4th, 3rd? We agree going to-
that the economy had become so poor that we just
could not commit ourselves to the economic condi-
tions of that contract for 2 years
According to Norman Feldner, on approximately Janu-
ary 5, Respondent's counsel had been notified of this
change in Respondent's position However, not until Jan-
uary 7 did either party take action to notify the other
one of the ratification vote and of Respondent' s change
in position on the acceptability of the agreement. The
General Counsel alleges that, in these circumstances, Re-
spondent is obliged to execute and honor the collective-
bargaining agreement to which it had agreed and that by
failing to do so it has violated Section 8(a)(5) and (1) of
the Act.
B. The Barring of Interdepartmental Transfers
As set forth above, the complaint alleges that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
barring interdepartmental transfers of employees because
of their union and protected concerted activities In the
final analysis, Respondent acknowledged that it had fol-
lowed a practice of transferring employees between de-
partments whenever work had become slow in the de-
partment from which they were transferred and, further,
that it had made a change in that policy upon learning of
Local 512's organizing campaign. Thus, Jerrold Feldner
testified that prior to the 1-day strike in May, "there
were some difficulties in keeping people working due to
8 In essence , Respondent objects to that conclusion, arguing that the
testimony upon which it is based is hearsay insamuch as the employees
who voted that day were not called as witnesses , but rather the only tes-
timony adduced was a description of how the ratification election had
been conducted and of what the results had shown However, in the cir-
cumstances presented , the truth or falsity of the employees ' indications
favoring ratification is not the significant point Rather, the fact that they
indicated their acceptance , of itself, is the operative point , regardless of
how they truly may have felt about ratifying the contract That is, the
evidence of the employees ' indications that day was "offered , not for
their truth , but merely to show the fact of their expression ," Morgan, A
Suggested Classrficatron of Utterance Admissible as Res Gestae, 31 Yale L J
229, 233 ( 1922), for in this respect , it was only Local 512's "understand-
ing [of the employees ' desires that] was relevant " Ostroff Y, Em-
ployment Exchange , 683 F 2d 302, 305 (9th Cir 1982) See also NLRB v
H Koch & Sons , 578 F 2d 1287, 1290-91 (9th Cir 1978) In any event,
even were the employees ' indications in favor of ratification character-
ized as hearsay , the testimony regarding those indications would be ad-
missible under the exception for "[a] statement of the declarant's then ex-
isting state of mind " Fed R Evid 803(3)
FELBRO, INC 1273
lack of machinery, but, yes, we moved people, a few
here and there " Indeed, after initially denying that em-
ployees had been moved from the packing and shipping
department to the wire department and from the wire
department to the packing and shipping department on a
temporary basis, del Castillo conceded later that such
transfers had occurred fairly frequently Furthermore,
Norman Feldner conceded that he, personally, had or-
dered that that practice be stopped once he had learned
of the organizing campaign- "We wanted to be sure that
no one would misinterpret any of our actions."9 Yet,
Norman Feldner did not explain exactly in what manner
he had felt that Respondent's temporary transfers of em-
ployees between departments might be misinterpreted
and he admitted that Respondent had not received any
complaints from employees about the practice of switch-
ing them between departments.
C The July 27 Layoff of Raul Escobar
As noted above, Escobar had commenced working for
Respondent in the packing and shipping department on
Monday, July 13. Robinson testified that during the
weeks preceding that date , he had asked Jerrold Feldner
on several occasions if Respondent would hire Escobar
and, further , that during the workweek of July 6 through
10, Feldner had instructed Robinson to tell Escobar to
report for work on Monday , July 13 Escobar testified
that before starting work for Respondent , he had been
told by Robinson that the latter had spoken to Jerrold
Feldner and that Robinson had gotten a job for Escobar
at Respondent . However, while Jerrold Feldner agreed
that Robinson had spoken to him several times about ob-
taining work for Escobar with Respondent , Feldner testi-
fied that he always had told Robinson that there was no
job available for Escobar and, further , denied specifically
having told Robinson to bring Escobar into work.
In point of fact , Jerrold Feldner was not scheduled to
be at work for Respondent from July 13 through 24
since, as a reserve officer in the United States Army, he
would be attending summer camp during that period. In
his absence, Amador "Juan " Rodriguez replaced Feldner
in the packing and shipping department . However, while
he served as supervisor for day-to -day operations con-
ducted in that department when Jerrold Feldner was
absent , Rodriguez lacked authority to hire employees or
even to assign overtime to employees in that department
without first obtaining clearance from Robert or Norman
Feldner.
Both Robinson and Escobar testified that the latter
had reported to del Castillo on the morning of July 13.
While del Castillo claimed that he had no recollection of
having filled out any papers for packing and shipping de-
partment employees during the 2-week summer camp ab-
sence of Jerrold Feldner , del Castillo conceded that he
was the one who regularly filled out papers for newly
hired employees , a fact that Norman Feldner acknowl-
Significantly, Mata and del Castillo each denied having been told
that employees were not to be temporarily transferred between depart-
ments indeed, del Castillo claimed that the practice of temporarily trans-
ferring employees between departments had been continued even after
the representation election had been conducted
edged as well.10 In addition, Robinson testified that he
had begun wearing union insignia on his clothing but had
not done so until after Jerrold Feldner had left for
summer camp. Conversely, Jerrold Feldner claimed that
Robinson "had been wearing union emblems from like
mid-June." However Jerrold Feldner's assertion in this
regard tended to be contradicted by Norman Feldner
who testified not only that he had not seen Robinson
wearing union insignia until July, but that in point of fact
Norman Feldner could not recall having seen Robinson
wearing the insignia as early as the first week in July. t i
As set forth above, Escobar was laid off on July 27.
Jerrold Feldner testified that after everyone had started
work that day, he had observed an unfamiliar person
standing with nothing to do According to Feldner,
when he had asked that individual what he was doing in
the packing and shipping department, the man had re-
plied that he worked there Having testified, Jerrold
Feldner, already "assessed the situation" and knowing
that the department did not need an extra worker, he
had asked Norman Feldner if the man could be fired and
had been inctructed by his cousin only to lay off Esco-
bar Thus, argues Respondent, there had been no unlaw-
ful motive for Escobar's layoff However, certain other
evidence in the record, viewed collectively, poses diffi-
culties for that seemingly straightforward account.
First, Respondent did not contradict Escobar's testi-
mony that he had worked overtime on more than one
occasion during the 2-week period that he had worked
for Respondent. Nor did it explain, with any degree of
specificity, why a department that had been assigning
overtime work to employees suddenly had been unable
on July 27 to generate sufficient work for the entire
then-existing complement. Second, Respondent did not
dispute Escobar's testimony that he had been told of his
layoff until 4 p.m. If there truly had been no work for
Escobar that day and if Jerrold Feldner had discovered
10 In this area Norman Feldner's testimony has added significance
Robinson claimed that, during the 2-week period when Jerrold Feldner
had been at summer camp, another employee, whose first name was
Israel , had been hired for the packing and shipping department and, fur-
ther, had been hired after the date on which Escobar had started working
there Consequently, claimed Robinson, Escobar had not been the least
senior employee in that department when he had been laid off on July 27
While Jerrold Feldner claimed that Escobar had been the least senior em-
ployee in the department on July 27, Norman Feldner's testimony tended
to corroborate that of Robinson For, Norman Feldner testified that
during Jerrold Feldner's absence, Rodriguez had requested that another
employee be hired for the packing and shipping department and, further,
that Robert Feldner had instructed Rodriguez to hire another employee
if necessary While Norman Feldner claimed that Escobar had been the
employee that Rodriguez had hired, that clearly could not have been the
fact inasmuch as it is undisputed that Escobar had reported for work on
the morning of July 13 and, thus, already had been added to the packing
and shipping department employee complement about the time that Ro-
driguez had begun supervising it that day Thus, there would have been
no opportunity for Rodriguez to have assessed the situation in that de-
partment, to have sought and obtained permission for another employee
to be hired, and then to have located and hired Escobar In short, the
timing of Escobar's commencement of work precludes the possibility that
he had been the individual that Rodrgiguez had obtained permission to
hire and had hired during Jerrold Feldner's absence
11 Robinson testified that he had not participated in the I-day May
strike, an assertion that tended to be confirmed by Norman Feldner who
testified that he could not recall Robinson having participated in that
work stoppage
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that fact early during the moring. seemingly Escobar
would have been laid off at that point, rather than
having been allowed to remain standing around until the
end of the workday Third, Jerrold Feldner did not deny
Robinson's testimony that on the morning of July 27, he
had been approached by Jerrold Feldner who had asked
Robinson to identify his brother-in-law According to
Robinson's undisputed testimony, when he "pointed out
who it was[,] Jerrold told me that right now, he is going
home." Yet, if Jerrold Feldner's concern that day had
been with an individual standing around doing nothing,
it would have been logical for him to have simply laid
off that individual without having to ascertain his identi-
ty and, more significantly, without having to interrogate
Robinson concerning the identity of the latter's brother-
in-law Fourth, as noted in footnote 10, supra, Escobar
appears not to have been the least senior employee in the
packing and shipping department on the morning of July
27. Indeed, Robinson claimed that an individual named
Israel , whose last name Robinson did not recall, had
been hired after Escobar to work in that department. As
noted above and as discussed in greater detail infra,
within a month three additional employees were laid off
by Respondent, one of whom had been Israel Ramirez.
Finally, Robinson testified that when, later that same
day, he had asked Jerrold Feldner why Escobar was
being laid off, Feldner had replied, "because I and Raul
were in the union " Although Jerrold Feldner denied
having told Robinson that Escobar had been creating
problems with "the union" and further denied having
made any statement to the effect that Escobar was being
sent home because of a union problem, Feldner admitted
that Robinson had inquired why Escobar was being sent
home, claiming that he had replied that he did not need
that many employees, and did not specifically deny
having said that the reason had been because of Robin-
son's and Escobar's involvement with "the Union "12
D. The August 22 or 24 Layoffs
As set forth above, on August 22 or 24 Respondent
laid off three employees- Armando. Castaneda, Israel Ra-
mirez, and Manuel Santizo. Though Local 512 had pre-
vailed in the August 5 representation election, Respond-
ent concededly did not notify Local 512 of its intent to
lay off these three employees with the result that the
General Counsel alleges that, having not done doing so,
Respondent engaged in unlawful unilateral action. More-
over, as Santizo, the General Counsel argues, in essence,
that Respondent had taken advantage of the need for a
layoff to select him because of the employees' support
for Local 512, rather than select a less senior employee
or, at least Respondent as a welder and, accordingly,
was qualified to perform that type of work.
The evidence supporting the General Counsel' s allega-
tions with regard to Respondent's motivation for having
chosen Santizo starts with Raul Castaneda's testimony
that upon being told that Santizo was being laid off, he
12 Based on Robinson ' s description of Jerrold Feldner 's comment that
day, the complaint alleges that Respondent violated Sec 8(a)(1) of the
Act by informing employees that employees had been laid off because of
their union activities
and Santizo had gone to Mata and had inquired why
Santizo was being being off. In response, testified Raul
Castaneda, Mata had replied "to recall that we had start-
ed with the union problem and the company had decided
to separate the departments and now it depended upon
Mr. Jerrold if Mr. Santizo would continue working or
not "13 While Mata did not deny having participated in
a conversation with Santizo and Raul Castaneda, during
which he had been questioned about Santizo's selection
for layoff, he did deny generally having told Robinson,
Santizo, Santos Inda, and Raul Castaneda that people
were being laid off because they had tried to bring in the
Local 512 and, further, denied having told any employ-
ees that they were being laid off or sent home because of
problems they had caused with Local 512.14 Norman
Feldner, with del Castillo serving as interpreter, became
involved in the discussion with Raul Castaneda and San-
tizo, but though the latter disputed Respondent's calcula-
tion of his seniority, Norman Feldner maintained that
Santizo's selection for layoff that day had been based
upon seniority and that Santizo had been among the
three least senior employees 15
Aside from Mata's above-described remark, there is
additional evidence tending to support the General
Counsel's allegation that Santizo had been selected for
layoff as a result of discriminatory considerations. Jer-
rold Feldner claimed that he had been told by Robert
and Norman Feldner that one employee from each de-
partment was to be laid off that day and, accordingly,
had selected his least senior employee, Santizo, for layoff
in the packing and shipping department Yet, Respond-
ent's own payroll records disclose that Santizo, who had
been hired in March, had not been the least senior em-
ployee in that department Rather, Respondent's records
13 The complaint alleges that by having informed employees that Re-
spondent was barring the interchange of employees among its depart-
ments because of their union activities, Mata, and therefore Respondent,
had violated Sec 8(a)(1) of the Act
14 Raul Castaneda was not the only employee to attribute such a
remark to Respondent 's officials Carlos Delgado , also known as Antonio
Ramirez and herein called Ramirez , testified that, following the election,
he had inquired why he was being laid off two times during the same
week and why a less senior employee was not being laid off According
to Ramirez , Jerrold Feldner had retorted "that [the other employee] was
not in union problems " Although Jerrold Feldner testified generally that
he had followed the instructions that he had been given not to discuss
Local 512 with the employees "[t]o the best of my ability," he did not
deny that Ramirez had asked why Ramirez was being laid off twice
while another employee was not, nor did he deny specifically having re-
sponded to Ramirez in the fashion described by the latter , a response that
also is alleged as being a violation of sec 8(a)(1) of the Act
1' Later that same morning, the conversation between Santizo and
Norman Feldner, with del Castillo acting as interpreter, had resumed
Celso Zaragoza Robles and Raul Castaneda had walked over to listen to
what was being said Robles claimed that, when the reasons for Santizo's
layoff had been raised, del Castillo had said "that those were problems
that we were looking for by wanting to have the Union in the Compa-
ny," and that when Robles had asked specifically why employees were
not simply rotated as in the past, del Castillo had replied "That those are
problems that one had brought upon oneself by wanting to have the
union in the company " Yet, Raul Castaneda did not corroborate Roble's
description of such remarks having been made at that time by del Cas-
tillo Moreover , Robles was not a particularly impressive witness and his
testimony was internally contradictory at certain significant points Ac-
cordingly, I do not credit his description of these remarks, which are al-
leged to constitute violations of Sec 8(a)(l) of the Act
FELBRO, INC
disclose that three employees , Jose Solis, Armando A.
Castaneda , and Jose Valasquez , had been hired after San-
tizo, although it is correct that Valasquez had been hired
after Santizo , although it is correct that Valasquez had
been hired in June after having once worked for Re-
spondent from February 1977 until January 1981. Never-
theless, Respondent did not explain , even assuming that
it computed Valasquez 's seniority from his initial hire
date , why it had not chosen to lay off Solis that day in-
stead of Santizo . Moreover , the fact that at least one
other packing and shipping department employee, Ar-
mando A. Castaneda, had been laid off that day tends to
contradict Jerrold Feldner 's contention that one employ-
ee from each department had been selected for layoff.
Indeed , Jerrold Feldner 's testimony in that respect was
contradicted expressly by Norman Feldner who testified
that all three employees who had been laid off that day
were ones who had been working in the packing and
shipping department because, according to Norman
Feldner , that is the department that is most sensitive to
slowdowns in business . Norman Feldner 's explanation, of
course, would explain why Armando Castaneda and San-
tizo, both packing and shipping department employees,
had been selected for layoff of August 22 or 24 Further-
more, assuming that, contrary to Jerrold Feldner's asser-
tion , all of the laid-off employees had come from the
packing and shipping department , Israel Ramirez's selec-
tion tends to confirm Robinson 's account of an employee
named Israel being hired after Escobar had statrted
working on July 13. Yet, Norman Feldner 's testimony
does not explain why Respondent had chosen to lay off
Santizo rather than Solis.
E. The Post-August 22 or 24 Layoff Comments to
Raul Castaneda
Raul Castaneda testified that as he had returned to his
machine, following the exchange of remarks between
Santizo and del Castillo , acting as interpreter for
Norman Feldner , del Castillo had mentioned that there
was a lot of commotion and that Castaneda should stop
getting himself involved in so many problems . Accord-
ing to Castaneda , when he had replied that defending a
coworker did not pose a problem for him, del Castillo
had said that since Castaneda was so involved in this
union problem , why did he not, in effect, attempt to per-
suade the employees to work harder Castaneda testified
that when he replied that he had no reason to do so as
he "was nobody in the plant," del Castillo had retorted,
"If you are nobody in the plant , then why are you so in-
volved in this union problem?"
Raul Castaneda testified that approximately a half an
hour after this exchange of remarks with del Castillo, as
Castaneda had been working at his machine, del Castillo
and Norman Feldner had summoned him toward the
back of the department where del Castillo , interpreting
for Norman Feldner, had said "to stop getting myself
into so many problems , that if there was a question or if
something happened within the company , I would be the
responsible one." Castaneda testified that he had asked
"What would be the probem and Mr. Castillo told me
that for example , if the workers stopped working or
ruined , or put any kind of machinery in disrepair, I
1275
would be responsible I asked him in what way, and Mr.
Isidro del Castillo, on behalf of Mr Norman Feldner
told me that I would be aware afterwards "
Norman Feldner testified that he had not told del Cas-
tillo to tell Raul Castaneda that the latter should not be
agitating employees and that he had not told del Castillo
to tell Castaneda that if he wanted to be involved, why
did he not push the employees. Moreover, Norman
Feldner testified that he had not told del Castillo to in-
struct Castaneda that he should stop getting himself into
so many problems and that if there were problems within
Respondent, Castaneda would be held responsible How-
ever, del Castillo denied only that Norman Feldner had
told him to tell employees that they were being laid off
because they had brought union problems into Respond-
ent and, further, only that he had ever told employees
that they were being laid off because of union problems
that they had brought about and that employees were
being laid off or suspended or sent home because of their
union activities. Del Castillo did not deny having partici-
pated, as interpreter for Norman Feldner, in this conver-
sation with Raul Castaneda , nor did he deny having
made the remarks which Castaneda attributed to him. i 6
F. The November 2 1-Day Suspensions of Five
Employees
Although extensive testimony was adduced regarding
the events of November 2, the operative facts underlying
this allegation are minimal . When Jesus Lopes, also
known as Santos Inda and herein called Inda, was given
a disciplinary layoff that day-a layoff not alleged to
violate the Act-the five employees named as discrimina-
tees ceased work and, along with Inda, engaged Norman
Feldner , del Castillo , and Jerrold Feldner in a discussion
concerning the reason for the layoff Inda and Felipe and
Raul Castaneda testified that the employees had said that
they wanted to know why Inda was being laid off and,
in response, that they had been told that Respondent did
not have to give them an explanation and, further, that if
they did not return to work, their timecards would be
punched out. When the employees had persisted in seek-
ing an explanation for the layoff, their timecards had
been punched out. Jerrold Feldner claimed that the em-
ployees had "walked out" that day and that their time-
cards then had been punched out However, other than
generally characterizing the employees' conduct as a
"walk out," Jerrold Feldner did not describe in any dea-
tail the events of that day Moreover neither del Castillo
nor Norman Feldner claimed that the employees had
walked out Indeed, the former's brief description of
what had occurred tended to corrborate the descriptions
of Inda and Raul and Felipe Castaneda Further,
Norman Feldner agreed that "approximately four, five,
six, somewhere in that area" employees had been given
"disciplinary action" that day.
16 The complaint alleges that Respondent violated Sec 8(a)(1) of the
Act when del Castillo threatened employees with reprisals because of
their union activities and the union activities of other employees
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The 2-Day Layoff of Jesus V. Macias
Historically Respondent has followed a practice of at-
tempting to minimize the impact of temporary work
slowdowns by rotating 1- or 2-day layoffs through its
employee complement It is alleged that Jesus V Macias
was laid off on one occasion for 2 days because of the
employees' union or protected concerted activities. The
complaint alleges that the layoff had occurred on No-
vember 18. However, that allegation is predicated upon
an asserted admission by del Castillo to Raul Castaneda,
who testified that the conversation with del Castillo had
occurred on August 24 or 25.17 Castaneda testified that
on the day after Macias had been laid off, he had asked
del Castillo "why was Mr. Macias being laid off when
on the list of the lay offs they had one day a week and
they were giving him two days," and that del Castillo
had retorted, "[L]ook, Raul, if Macias is being laid off
because he is very supported by the union , now let him
go to the union so that the union can get him a job."18
Del Castillo denied ever having taken action against
Macias because of the latter's union activity. However,
he did not dispute that Macias had been laid off on 2
days during a week when other employees were sched-
uled for only 1-day layoffs Nor did del Castillo nor any
other official of Respondent explain why Macias had
been the employee selected to be laid off on 2 days
during that week. Further, while del Castillo denied ever
having told Raul Castaneda that del Castillo was taking
action against Macias because the latter had supported
Local 512 and, further, denied having told Raul Castan-
eda to let Local 512 find a job for Macias, del Castillo
admitted that he could not recall whether Raul Castan-
eda had asked why Macias was receiving a 2-day layoff,
thereby disclosing a deficiency in memory that renders
the reliability of his denials as to what he had said to
Raul Castaneda on that specific occasion suspect on that
ground alone.
H The Late November Layoffs
Early in the hearing, Respondent acknowledged that
Felipe A. Castaneda, Robinson, and Santizo had been
laid off about November 20. It is alleged that those lay-
offs had been unlawfully motivated and, thus, violated
Section 8(a)(3) and (1) of the Act. The only official of
Respondent who explained the reasons for these layoffs
and the basis on which the three laid-off employees had
been selected was Jerrold Feldner who testified that
"[t]here was really not a heck of a lot to do. Still re-
mained in a rotating layoff " According to Jerrold
Feldner, "sometime around November 22nd or so,"
Robert and Norman Feldner had made a decision to lay
off employees and had instructed Jerrold Feldner that
"We have to let some employees go and here are their
names." Jerrold Feldner testified that the list of employ-
ees given to him had been of employees who were the
least senior in his department. Yet, neither Robert nor
17 In the final analysis , the date is not significant inasmuch as the event
occurred during the overall period encompassed by the complaint and,
further, the matter was litigated fully
i a Del Castillo's remark, as described by Raul Castaneda, is alleged to
constitute a violation of Sec 8 (a)(1) of the Act
Norman Feldner corroborated Jerrold Feldner's testimo-
ny concerning their purported decision and the selection
of the three least senior employees in the packing and
shipping department Moreover, Felipe Castaneda works
in the tubing deparment and there is no evidence that he
ever worked in the packing and shipping department.
Indeed, Respondent did not dispute Castaneda's testimo-
ny that, when told of his layoff, he had pointed out to
del Castillo and Jerrold Feldner that Felipe Castaneda
had been working extra hours that week. It is also worth
mentioning that at the time, there were at least two other
employees-Manuel Mendoza19 and Jose Solis-who
were less senior than Robinson and, in the case of Solis,
than Santizo as well . Respondent did not explain why
Solis, at least , had been allowed to continue working
while both Robinson and Santizo had been laid off.
In addition to these objective considerations , Felipe
Castaneda testified that when he had been told that he
was being laid off, and had protested, del Castillo, with
Jerrold Feldner present, had responded "that, those
problems were because we had brought in the union,
yes And he told me that if we hadn't brought in the
union , there wouldn't be problems, we would be in
peace "20 Other than his above-described general denials,
del Castillo did not deny that this conversation had oc-
curred nor, specifically, that he had made the remarks at-
tributed to him during that conversation by Felipe Cas-
taneda. Further, Jerrold Feldner, who demonstrated the
ability to speak fluent Spanish, did not deny specifically
that del Castillo had made the remarks attributed to him
by Felipe Castaneda.
I. The Alleged December Remarks of del Castillo to
Raul Castaneda
Raul Castaneda testified that in mid-December, del
Castillo had approached Castaneda as the latter worked
at his machine and , after asking Castaneda to weld some
parts, had said, "[H]ey, Raul, from now on the negotia-
tions have ended and from now on, I can do whatever I
wish to do with any one of you." Though del Castillo
denied generally having said anything to employees
about being laid off or suspended or sent home because
of their union activities, he did not deny specifically
having engaged in this conversation with Raul Castan-
eda, nor did he deny having made the remarks that Cas-
taneda attributed to him 21
J. The Allegedly Agreed-Upon Contract
As set forth above, it is undisputed that Respondent's
attorney and Strongin had reached agreement on all
19 Although Mendoza had been hired during the same month as Rob-
inson, Respondent 's officials did not dispute Robinson's testimony that
Mendoza had less seniority than Robinson Indeed, his name is listed
below that of Robinson on the seniority list produced by Respondent at
the hearing
20 The complaint alleges that this remark constituted a violation of
Sec 8 (a)(1) of the Act
21 The complaint alleges that del Castillo 's remarks during this conver-
sation constituted unlawful threats of unspecified reprisals because of em-
ployees ' union activities and, further , constituted a statement that Re-
spondent would no longer bargain with Local 512 as the employees' ex-
clusive bargaining representative
FELBRO, INC. 1277
terms of a collective-bargaining contract , apparently
based largely on a proposal made initially by Respond-
ent, in mid -December , subject to ratification by the unit
employees . Moreover , that agreement was ratified by, at
least , a majority of the employees who had attended the
January 5 , 1982 ratification meeting However, not until
the afternoon of January 7, 1982, did Local 512 prepare
and mail a letter officially notifying Respondent of that
fact . Meanwhile , on that same date, Respondent 's coun-
sel had sent a telegram to Local 512 rescinding the un-
derlying proposal and, thus, the agreement based upon it.
Respondent argues essentially that inasmuch as Local
512 had not transmitted notification of the employees'
ratification of the agreement before notice of Respond-
ent's withdrawal of its proposal had been received by
Local 512's office on January 7, 1982, there can be no
acceptance by Local 512 of Respondent 's proposal.
However , in assessing that argument , several other fac-
tors must be considered
First , Raul Castaneda testified that on January 7, 1982,
he had observed del Castillo working at one of the spot
welding machines and has told del Castillo that he
should not be doing that work inasmuch as it was, in
effect , unit work and employees were then on layoff.
According to Raul Castaneda , del Castillo had responded
"that he was only for a moment , that the work had to
come out rapidly and that furthermore , there were only
three hundred pieces that he was going to make." Cas-
taneda testified that as the conversation had progressed,
del Castillo then had said "Hey Raul, I can 't finish be-
lieving what I have just heard about you . . . I can't
finish understanding what I 've heard about you, that you
having accepted such a bad contract . He told me if you
would have waited a little more, it would have been
more possible to have gotten a better contract ." In addi-
tion to his above -described general denials , del Castillo
denied expressly having told Raul Castaneda that if the
employees had waited a little longer , they would have
gotten a better contract . But, he admitted that Raul Cas-
taneda had complained about del Castillo doing, in
effect , unit work while employees were on layoff and,
further , conceded that there had been one occasion when
he had said that he would not be long as he had only 300
parts to finish , though he could not recall the date in
which he had made that remark to Raul Castaneda
Moreover, he was not able to recall whether or not
during the first week in January Raul Castaneda had
voiced one of his complaints about del Castillo doing
work ordinarily performed by laid-off employees.
Second , Norman Feldner testified that "[o]n January
7th [1982], Friday" during the oay, two agents of Local
512 had come to Respondent's office and had told
Norman Feldner that they were there "to discuss griev-
ances and the Union in reference to the Union contract."
In 1982, January 7 fell on a Thursday. However,
Norman Feldner testified that as between the date and
the weekday, " I'm certain of the 7th, definitely."22
22 Jerrold Feldner described a similar incident that he claimed had oc-
curred on Friday, January 8, 1982
Finally, though Norman Feldner claimed that he and
his brother had instructed their attorney to revoke their
contract proposal on January 5, 1982, this was not cor-
roborated by any other evidence. Robert Feldner did not
appear as a witness to confirm his brother's account. Nor
was any explanation advanced for Respondent 's failure
to call Robert Feldner as a witness, at least for that pur-
pose The attorney who signed the telegram was not
called as a witness to confirm that the instructions on
which he had acted had been given to him on January 5.
IV ANALYSIS
A The Remarks to Employees and Layoffs
In the final analysis , where there are allegations of dis-
crimination the crucial factor to be analyzed is the re-
spondent 's state of mind . See, e . g., Interior Alterations,
264 NLRB 677, 680 ( 1982), and cases cited therein. Al-
though Respondent 's witnesses denied having been moti-
vated by considerations unlawful under the Act when
they took the above -described personnel actions and, fur-
ther, while they denied having made the unlawful state-
ments attributed to them by the General Counsel's wit-
nesses. I was not impressed by their demeanor when
they testified and a review and comparison of the record
of their testimonies serves only to confirm that conclu-
sion . The inconsistencies among their accounts , and the
all too frequent and significant inconsistencies between
those accounts and objective factors present , serve to
support my impression that, when testifying, Respond-
ent's witnesses were more concerned with tailoring their
accounts to support Respondent's position than with
truthfully describing the events and conversations as
they actually had occurred.
An example of the former occurred when Mata and
del Castillo each denied that there had been any change
in Respondent 's policy of temporarily transferring em-
ployees between departments . In fact , del Castillo
claimed that that practice had continued to be imple-
mented even after the August 5 representation election.
Yet, Norman Feldner admitted that he had ordered the
practice ceased upon first learning of Local 512's orga-
nizing campaign In a like vein , del Castillo 's testimony
that he had no recollection of having filled out papers
for newly hired employees during the 2-week period that
Jerrold Feldner had been at summer camp appeared in-
tended more to support an argument that the hiring had
been a surreptitious action, which Escobar and Robinson
had taken in Jerrold Feldner's absence , than to have
been truthful . Indeed, Respondent did not dispute that
Escobar had been hired on July 13 Furthermore,
Norman Feldner testified that del Castillo had been the
one who had handled completion of the initial paper-
work prepared when Escobar had been hired In a differ-
ent area, while Jerrold Feldner claimed that the August
22 or 24 layoffs had involved selection of one employee
from each department , Norman Feldner testified that all
three laid-off employees had come from the packing and
shipping department Similarly, while Norman Feldner
admitted that the five employees sent home on Novem-
ber 2, as a result of the protest over the suspension of
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Santos Inda, had been subjected to "disciplinary action,"
Jerrold Feldner claimed that they had "walked out," al-
though Jerrold Feldner gave no precise description of
the exact manner in which the employees had done so
Indeed, del Castillo's description of what had occurred
that day tended to contradict any assertion that the em-
ployees had walked out and, instead, tended to confirm
the descriptions given by the employees who claimed
that their cards had been punched out when they had
persisted in attempting to find out the reason for Inda's
layoff.
Illustrations of inconsistencies between the accounts of
Respondent's witnesses, particularly Jerrold Feldner, and
objective considerations occurred in a number of areas.
Jerrold Feldner claimed that the three employees laid off
in the latter part of November had all come from the
packing and shipping department Yet, Felipe Castaneda
was an arc welder and there is no showing that he had
ever worked in the packing and shipping department.
Nevertheless, he had been one of the employees laid off
at that time. Jerrold Feldner's claim that seniority had
been the criterion for selection of Santizo for layoff in
late August and, again, for the selection of Robinson and
Santizo for layoff in latter November was contradicted
by Respondent's own seniority list of employees in the
packing and shipping department. Further, it hardly
makes sense for Jerrold Feldner to have approached
Raul Castaneda and to have asked the latter to identify
his brother-in-law on July 27-as it is undisputed did
happen-tf, in fact, Jerrold Feldner was selecting, as the
employee to be laid off that day, the one who had been
standing around with no work to do. Indeed, that there
had been a less senior employee working in the packing
and shipping department that day, contrary to Jerrold
Feldner's contention, is shown by Norman Feldner's de-
scription of Rodriguez having requested and been grant-
ed permission to hire an additional employee for that de-
partment during Jerrold Feldner's absence, taken in con-
junction with the further fact that Israel Ramirez had
been one of the packing and shipping department em-
ployees laid off in late August when, with regard to two
of the three employees laid off at that time, seniority had
been followed.
In sum, I do not credit the testimonies of Jerrold and
Norman Feldner, del Castillo, and Mata and, according-
ly, I do not credit their accounts of the factors purport-
edly leading to the layoff of Escobar, the August 22 or
24 layoff of Santizo, the 2-day layoff of Macias, and the
late November layoffs of Felipe Castaneda, Santizo, and
Robinson, as well as Jerrold Feldner's account of the cir-
cumstances leading to the November 2 1-day suspension
of five employees. Nor do I credit their denials of the re-
marks attributed to them. By contrast, save for Robles,
the General Counsel's witnesses appeared to be sincere
and honest persons who, laboring under the handicap of
a language barrier, seemed to be attempting to accurately
describe what had been said to them and what had oc-
curred following initiation of the organizing campaign
Therefore, I credit the testimony that on July 27, Jerrold
Feldner had told Robinson that Escobar was being laid
off because they (Robinson and Escobar) were in the
Union;23 that Jerrold Feldner had told Antonio Ramirez
that a certain employee had not been selected for layoff
because the latter "was not in union problems", that
Mata had told Raul Castaneda that interdepartmental
transfers were no longer being permitted because the em-
ployees" had started with the union problem and the
company had decided to separate the departments"; that,
interpreting for Norman Feldner, del Castillo had said
that Raul Castaneda would be held responsible for any
problems that arose, such as "if the workers stopped
working or ruined, or put any kind of machinery in dis-
repair"; that del Castillo had told Raul Castaneda that
Macias was being laid off for 2 days, rather than for 1
day, "because he is very supported by the union", that
when Felipe Castaneda had asked why he was being laid
off, del Castillo had replied "that, those problems were
because we had brought in the union, yes. And he told
me that if we hadn't brought in the union, there wouldn't
be problems, we would be in peace"; and, that, in De-
cember, del Castillo had told Raul Castaneda that negoti-
ations had terminated and that del Castillo now could do
anything he wanted with the employees.
It needs neither extensive analysis nor citation to sup-
port the conclusion that telling an employee that he or
other employees are being laid off as a result of employ-
ee support for unionization violates Section 8(a)(1) of the
Act. See, e.g., Capital Broadcasting Corp. v. NLRB, 479
F.2d 329, 330 (6th Cir. 1973); NLRB v. Fort Vancouver
Plywood Co., 604 F.2d 596, 599 fn I (9th Cir. 1979), cert.
denied 100 S.Ct. 1275, NLRB v. L. B. Foster Co., 418
F 2d 1, 2-3 (9th Cir. 1969), cert denied 397 U S. 990.
Indeed, even though, as in the case of Escobar, the em-
ployee being laid off or otherwise disciplined is not a
union activist, a statement that Respondent is laying him
off because it suspects him of being one suffices to cause
interference with the rights of other employees who are
or may contemplate becoming union supporters, as well
as with the right of the laid-off employee to later decide
that he or she may become a union supporter. Moreover,
it is equally unlawful to tell an employee that he or she
is being laid off because of a policy change-such as dis-
continuance of temporary interdepartmental transfers-
occasioned because an organizing campaign is being un-
dertaken.
Del Castillo's remark that Raul Castaneda would be
held responsible if the employees stopped work or if ma-
chinery was damaged requires somewhat greater expla-
nation. While it is undisputed that for a period Respond-
ent had encountered sabotage and property damage and
although Raul Castaneda was viewed as being, at least,
one leading union proponent, at no point were these two
factors connected That is, there is no evidence that Raul
Castaneda had been responsible for, or even had been in-
volved in, the damaged machinery and other incidents to
which Respondent had been subjected. Thus, by stating
that Raul Castaneda would be held responsible for future
23 Apparently, Jerrold Feldner was led to suspect that Escobar, as
well as Robinson, was a union supporter from the fact that Robinson had
begun wearing union insignia after Jerrold Feldner had left for summer
camp and, accordingly, after Escobar had started working for Respond-
ent
FELBRO, INC
similar acts, del Castillo in effect, was singling Castaneda
out for possible punishment solely on the basis of the
extent of his union involvement, thereby using Castane-
da's protected activities as a basis for threatening him
with disciplinary action. Of possibly greater significance,
del Castillo had included in his warning a threat of re-
prisal against Raul Castaneda even if the "workers
stopped working " While it might be argued that del
Castillo had meant by this only if the employees engaged
in a slowdown, it is not the motivation of the speaker
that is determinative in assessing whether Section 8(a)(1)
of the Act has been violated; rather, the words spoken
must be assessed by objective criteria. See, e.g , American
Lumber Sales, 229 NLRB 414, 416 (1977), and cases cited
therein. See also Dover Garage II, 237 NLRB 1015
(1978).24 A strike is a work stoppage. But it is also pro-
tected activity. Consequently del Castillo's words were
so all encompassing that they embraced a threat of retal-
iation for engaging in protected activity In these circum-
stances, the remarks made to Raul Castaneda by del Cas-
tillo during this conversation constituted threats of re-
prisal for engaging in protected concerted activity in vio-
lation of Section 8(a)(1) of the Act.
With regard to del Castillo's remark to Raul Castaneda
in December it was not a fact that negotiations had been
concluded at that time To the contrary, as the events of
that month show, Local 512 had continued to stand
ready to negotiate with Respondent and, indeed, had
agreed upon the terms of a collective-bargaining agree-
ment Thus, the effect of del Castillo's statement was to
leave the impression that Respondent, whose agent del
Castillo was, had decided unilaterally to cease negotiat-
ing with Local 512 and, accordingly, that it was futile
for the employees to continue supporting Local 512.
Indeed, that conclusion was but reinforced by del Castil-
lo's next statement-that in view of the fact that negotia-
tions had terminated, he now would be able to do what-
ever he wanted to do with the employees. Such a state-
ment is at least an implied threat of retaliation against
employees and Raul Castaneda testified that he had so
construed it. Consequently, del Castillo's two remarks,
taken in conjunction and viewed by an objective stand-
ard, conveyed the message that Respondent would no
longer be bargaining with Local 512, that the employees
would no longer enjoy Local 512's 'protection, and that
the employees were now at the mercy of Respondent
which, as described below, already had demonstrated a
willingness to discriminate against them because of their
efforts to obtain and support a bargaining representative.
With respect to the allegations of discriminatory con-
duct, Norman Feldner admitted that he had ordered the
practice of temporarily transferring employees between
departments-a practice designed, as Jerrold Feldner ad-
mitted, to avoid or at least minimize temporary layoffs-
discontinued when he had learned of the organizing cam-
paign. Although he claimed that he had done so "to be
sure that no one would misinterpret any of our actions,"
14 Similarly , contrary to the argument made in Respondent 's brief, the
actual effects of the statements on employees is not determinative of
whether Sec 8(a)(1) has been violated See, e g , NLRB v Triangle Publi-
cations , 500 F 2d 597, 598 (3d Cir 1974)
1279
at no point did he explain precisely in what manner the
existence of that policy of interdepartmental transfers
could lead to a misinterpretation of Respondent's actions.
To the contrary, he conceded that Respondent had not
received any complaints from employees concerning im-
plementation of that policy. Furthermore, on at least one
occasion-when Mata had spoken to Raul Castaneda-
the discontinuance of that policy was portrayed as a pen-
alty being imposed on employees for having selected a
bargaining representative In these circumstances-where
a change in policy was imposed because of an organizing
campaign, where that change had an adverse impact on
employees by leaving them more vulnerable to layoff
whenever work became slow in their own departments,
and where the change was characterized as a reprisal for
having attempted to obtain representation-a preponder-
ance of the evidence supports the conclusion that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
having made that change in its policy.
There is some basis for a conclusion that Robinson had
taken advantage of Jerrold Feldner's summer camp ab-
sence to slip Robinson's brother-in-law onto Respond-
ent's payroll. Certainly the timing of Escobar's com-
mencement of work-on the first day of Jerrold
Feldner's absence-would tend to support that theory.
Yet, obviously, Jerrold Feldner would be returning from
summer camp and would realize at that time Escobar
had been added to the packing and shipping department
employee complement Robinson did not impress me as
being an individual totally lacking in appreciation of the
long-range consequences of his actions. That is, he did
not impress me as being an individual who would fail to
appreciate that if he took advantage of Jerrold Feldner's
2-week absence to have his brother-in-law added onto
Respondent's payroll, Jerrold Feldner, once he returned,
would discover what had occurred with possible adverse
consequences not only for Escobar's ability to secure
permanent employment with Respondent but also, as the
perpetrator of what in the final analysis could be con-
strued as an act of dishonesty, for Robinson's prospects
of continued employment with Respondent. In short,
while plausible, such a theory is not all that reasonable
once its surface is scratched.
During Jerrold Feldner's absence, Robinson-Esco-
bar's brother-in-law and an employee who had not par-
ticipated in the 1-day May strike, thus, not being natural-
ly an object of suspicion as likely to join with the other
employees in concerted activity-had commenced wear-
ing union insignia. That fact had been known to Norman
Feldner with whom Jerrold Feldner had spoken on the
morning of July 27 before laying off Escobar. As shown
by the above-described accounts of its officials' state-
ments to employees, Respondent was displeased with the
employees' efforts to obtain representation, although it is
accurate that Respondent did not conduct the most viru-
lently antiunion campaign that could possibly have been
conducted. However, its willingness to resort to its con-
trol over employees' employment as a device to discour-
age support for Local 512 and to retaliate against the em-
ployees for having become involved in an organizing
campaign is illustrated by the discontinuance of its tem-
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porary interdepartmental transfers policy, thereby leav-
ing employees more vulnerable to temporary layoffs
whenever work in their own departments slowed.
Norman Feldner admitted that Rodriguez had obtained
permission to hire an additional employee for the pack-
ing and shipping department following Jerrold Feldner's
departure for summer camp. There is no evidence that
that newly hired employee had ceased working in the
packing and shipping department before Jerrold
Feldner's return. Thus, Escobar had not been the least
senior employee working in the packing and shipping de-
partment on July 27. Furthermore, if, as Jerrold Feldner
complained, Escobar had been standing around that
morning with nothing to do, then seemingly there would
have been no need for Jerrold Feldner to ask Robinson,
as it is undisputed did happen to identify his brother-in-
law preparatory to announcing that Escobar was to be
laid off. Finally, any doubts still remaining with respect
to this issue is dispelled by Jerrold Feldner's admission to
Robinson that Escobar was being laid off "because I and
Raul were in the union." In these circumstances, I con-
clude that a preponderance of the evidence supports the
conclusion that Escobar's layoff had been motivated by
considerations unlawful under the Act and, accordingly,
that by laying him off on July 27, Respondent violated
Section 8(a)(3) and (1) of the Act.
A similar conclusion is warranted with respect to San-
tizo's selection for layoff on August 22 or 24. Indeed, as
described above, Mata effectively admitted as much
when questioned by Raul Castaneda concerning Re-
spondent's reason for having selected Santizo for
layoff.25 A majority of the employees had selected Local
512 as their bargaining representative in the election held
earlier that same month. As noted above, throughout the
period encompassed by the complaint, Respondent's offi-
cials had voiced displeasure with that selection and, as
found above, had not been reluctant to display its dis-
pleasure through its control over the employment rela-
tionship of its employees. Moreover, Jerrold Feldner and
Norman Feldner gave conflicting accounts of the basis
upon which employee selection for layoff on August 22
or 24 had been made. Beyond that, Jerrold Feldner's as-
sertion that Santizo had been chosen because he had
been the least senior employee in the packing and ship-
ping department at that time is contradicted not only by
testimony but also by the presence of Solis on the de-
partment's seniority list. In these circumstances-and
particularly in the absence of a credible explanation for
Santizo's selection for layoff that day, see Shattuck Denn
Minning Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966), I conclude that a preponderance of the evidence
supports the conclusion that Santizo had been selected
for layoff that day on the basis of considerations unlaw-
25 Even though it has not been shown that Santizo was an active sup-
porter of Local 512, an employer violates the Act where, notwithstand-
ing the actual conduct of an employee, it lays off that employee because
of belief or suspicion that the employee is engaging in protected activity
NLRB v Link-Belt Corp, 311 U S 584, 589-590 (1941) Moreover, where
an employer is engaging in a pattern of discriminatory conduct against
groups of employees because many , even though not all, of them have
engaged in union activity, the discrimination suffered as a result of that
conduct by all of the employees is a violation of the Act See, e g ,
NLRB v Tesoro Petroleum Corp, 431 F 2d 95, 97 (9th Or 1970)
ful under the Act and that, accordingly, Respondent vio-
lated Section 8(a)(3) and (1) of the Act
In a like vein, the 2-day layoff of Macias, whether it
occurred on November 18 or earlier, also appears to
have resulted from Respondent's displeasure at the em-
ployees' selection of a bargaining representative. Again,
there is an admission, this time by del Castillo, of that
fact-when Raul Castaneda was told, "[L]ook, Raul, if
Macias is being laid off because he is supported by the
union , now let him go to the union so that the union can
get him a job." Of itself, that admission all but resolves
any further argument concerning the matter, eliminating
all need to further consider the intrinsic merits of Re-
spondent 's defenses. See, e.g., Advanced Installations, 257
NLRB 845, 848-849 (1981), enfd by memorandum 112
LRRM 2167 (9th Cir. 1982), and cases cited therein. In
point of fact, the only defense presented for Macias'
layoff was a description by del Castillo of an asserted in-
cident during which Macias had grumbled about work
that had been assigned to him. As concluded above, del
Castillo was not a reliable witness and his description of
that purported incident-in the course of which del Cas-
tillo vacillated between whether he had laid off Macias
for refusing to do the work or, instead, Macias had
walked off the job-was particularly unconvincing 26
Given Respondent 's animus towards the employees for
having selected Local 512 as their bargaining representa-
tive , its resort to personnel actions against employees as
a means of displaying that animus , and the absence of a
credible explanation for Macias' layoff, taken in conjunc-
tion with del Castillo's remark to Raul Castaneda when
the latter inquired concerning the basis for Macias' 2-day
layoff, I conclude that a preponderance of the evidence
supports the conclusion that Macias had been laid off for
an extra day as part of Respondent's campaign of retalia-
tion against the employees for having selected Local 512
as their bargaining represenative and, consequently, that
the extra day's layoff violated Section 8(a)(3) and (1) of
the Act.
While the November 2 1-day disciplinary suspension
of Felipe and Raul Castaneda, Israel Ramirez, Manuel
Mendoza , and Michael Robinson appears not to have re-
sulted from activity on behalf of Local 512, it did not
occur as a result of those employees' protected concerted
activity and, accordingly, violated Section 8(a)(1) of the
Act. Contrary to Jerrold Feldner' s claim that the five
employees had walked out, Norman Feldner conceded
that they had been disciplined. Indeed, del Castillo con-
firmed the employees' accounts that their timecards had
been punched out and that they had been sent home
when they had persisted in seeking an explanation for
Inda's layoff. "It is well settled that work stoppages in
protest of working conditions . . are protected by [Sec-
tion] 7 of the Act." NLRB v. Long Beach Youth Center,
591 F.2d 1276, 1278 (9th Cir. 1979). Accord- Vic Tanney
International v. NLRB, 622 F.2d 237, 241 (6th Cir. 1980).
"What the law prohibited [Respondent] from doing was
26 "A trier of fact need not accept uncontradicted testimony as true if
it contains improbabilities or if there are reasonable grounds for conclud-
ing that it is false " Plasterers Local 394 (Burnham Bros ), 207 NLRB 147
(1973)
FELBRO; INC
to [discipline] . . these employees in whole or in part
because they engaged in concerted activities " Vic
Tanney International, supra The fact that Inda's layoff
had not been motivated by unlawful considerations and
that Respondent had the right to lay him off is not signif-
icant, for employee protests of lawful disciplinary action
by an employer like "protest of a lawful discharge is a
protected activity." NLRB v. John Swift & Co., 277 F.2d
641, 646 (7th Cir. 1960).
Here, of course, it might be argued that the five em-
ployees had not been protesting in the technical sense of
the word, but were only attempting to ascertain the
reason for Inda's suspension. Yet such an argument is ar-
tificial. For, in the final analysis, the latter is but an inte-
gral part of the former These employees have become
upset that Inda had been laid off and had come to Re-
spondent collectively to voice their protest about it. That
they couched their protest in the form of a question-
one that if answered to their satisfaction possibly might
have caused them to cease further activity on behalf of
Inda-hardly serves to deprive them of statutory protec-
tion In these circumstances, I conclude that by suspend-
ing Raul and Felipe Castandeda, Israel Ramirez, Manuel
Mendoza, and Michael Robinson that day, Respondent
violated Section 8(a)(1) of the Act.
Finally, in this area, Respondent laid off Felipe Cas-
taneda, Robinson, and Santizo, again, on November 20.
Once more, there was conflict in the evidence concern-
ing the basis for selection of those employees for layoff,
with Jerrold Feldner claiming that all three laid-off em-
ployees had been in the packing and shipping depart-
ment, but with no evidence that one of them, Felipe Cas-
taneda, had ever worked there. Moreover, contrary to
Jerrold Feldner's assertions, there were less senior em-
ployees than Robinson in the packing and shipping de-
partment and, also, one employee in that department had
been less senior than Santizo but was not laid off. Per-
haps most significantly in this area, Jerrold Feldner
claimed that the decision to lay off employees in late No-
vember had been made by Norman and Robert Feldner
Yet, neither of the latter testified concerning their rea-
sons for having made that decision. "Since [their] moti-
vation was critical on the question of Respondent's
reason for [the layoffs], its failure to [elicit explanations
from them] permits an adverse inference as to its motiva-
tion " American Petrofina Co., 247 NLRB 183, 192
(1980) In addition, as set forth above, when Felipe Cas-
taneda had raised a question about his own selection for
layoff, del Castillo had told him flatly that "those prob-
lems were because we had brought in the union, yes.
And he told me that if we hadn't brought in the union,
there wouldn't be problems, we would be in peace " In
these circumstances, and in light of Respondent's other
unfair labor practices, as set forth above, and its hostility
toward the employees for having selected Local 512 as
their bargaining representative, I conclude that a prepon-
derance of the evidence supports the allegation that the
late November layoffs of Felipe Castaneda, Robinson,
and Santizo had been motivated by considerations un-
lawful under the Act and, consequently, violated Section
8(a)(3) and (1) of the Act
1281
B The Refusal-to-Bargain Allegations
There are two alleged violations of Section 8(a)(5) and
(1) of the Act First, Respondent admits that it did not
attempt to confer with Local 512 concerning the August
22 or 24 layoffs of Armando A. Castaneda, Israel Rami-
rez, and Manuel Santizo. Where an employer plans to
lay off employees represented by a bargaining agent, it is
that employer's "responsibility to notify the Union and
to offer to bargain prior to implementing the layoff."
Peat Mfg. Co., 261 NLRB 240 fn. 2 (1982) The fact that
Local 512 had not been certified at the time of these lay-
offs is not material inasmuch as it had prevailed in the
representation election conducted earlier that same
month and "an employer violates [Section 8(a)(5)] of the
Act by making unilateral changes between an election
and certification of a union." Bay Diner, 250 NLRB 187
fn 2 (1980). Inasmuch as Respondent admittedly failed
to notify Local 512 that it would be laying off employees
on August 22 or 24, at a time when Local 512 had al-
ready prevailed in a representation election among em-
ployees from whom Respondent chose those that were
to be laid off, Respondent violated Section 8(a)(5) and
(1) of the Act.
Respondent argues that no remedy should be provided
for this violation. In making that argument, it relies on
the evidence that Local 512 decided not to raise the issue
of layoffs during negotiations that commenced in late
September. Yet, the fact that a bargaining representative
later chooses not to pursue bargaining about a particular
change is not a significant factor in assessing whether an
unlawful unilteral change has occurred. For it is the em-
ployer's obligation, under the unilateral change doctrine,
to notify the bargaining representative so that it can
decide whether or not to request bargaining concerning
the proposed change(s). Here, had the layoffs been ef-
fected after the first negotiating session was held, there
might well be a basis for concluding that the factor lead-
ing to Local 512's decision not to pursue bargaining
about layoffs-the existence of in-progress negotiations
for a collective-bargaining agreement-would , justify
treatment of the matter as one presenting, in effect, a "no
harm, no foul" situation. But the layoffs of Armando
Castaneda, Israel Ramirez, and Santizo occurred on
August 22 or 23, approximately a month before negotia-
tions had commenced and, indeed, even before the certi-
fication of representative had issued. No negotiations
were in progress at that time Therefore, it cannot be
said, with any degree of certainty, that Local 512 would
have made the same decision at that point in time, when
bargaining about layoffs would not have interfered with
bargaining for a collective-bargaining agreement. That is,
it cannot be said that Local 512 would have made this
same decision in August that it later was to make at a
point in time proximate to commencement of negotia-
tions for an agreement.
In the final analysis, Respondent's layoff of the three
employees on August 22 or 24 was a unilateral change
that violated the Act That violation caused economic
injury to the three employees who were laid off. At no
point has Respondent been willing to acknowledge
having acted wrongfully in having failed to notify Local
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
512 before having laid them off. More importantly, at no
point has Respondent been willing to promise that it will
not take unilateral action in the future Indeed, relations
between the parties appear to have broken down over
the dispute concerning whether or not Respondent is
bound to the agreement reached between its attorney
and Strongin in mid-December. In these circumstances,
especially where there is no basis for concluding that,
had Local 512 been notified in mid-August of Respond-
ent's intention, it would have made the same decision as
it made a month later on the eve of negotiations, there is
no basis for absolving Respondent of its violation of the
Act nor of its remedial responsibilities for that violation.
The second alleged violation of Section 8(a)(5) and (1)
of the Act pertains to Respondent's refusal to execute
and honor the agreement reached during the mid-De-
cember telephone conversation between Respondent's at-
torney and Strongin That such an agreement was
reached during that conversation is undisputed. Cf. Log-
gins Meat Co., 206 NLRB 303 (1978). While it is true
that Strongin said, in effect, that the agreement had to be
ratified by the employees, there is no evidence that the
parties had mutually agreed to make employee ratifica-
tion a condition precedent to formation of an agreement
between them See, e.g., Houchens Market of Elizabeth-
town v. NLRB, 375 F.2d 208, 212 (6th Cir. 1975). That
Strongin said that he intended to submit the agreement
to the employees for ratification does not, of itself, con-
stitute such a mutual agreement. See C. & W Lektra Bat
Co., 209 NLRB 1038 (1974), enfd. 513 F.2d 200 (6th Cir.
1975), and NLRB v. Seneca Environmental Products, 646
F 2d 1170 (6th Cir. 1981).
In any event, the employees did ratify the agreement
on January 5 at a time when, it is undisputed, Respond-
ent had not notified Local 512 of any change in its mind
concerning its consent to the agreement reached in mid-
December. Consequently, by the end of January 5, the
remaining uncertainty that had been mentioned during
the mid-December telephone conversation had been re-
moved True, the fact of ratification was not to be com-
municated to Respondent's officials until 2 days later.
Yet, Norman Feldner admitted that during the day on
January 7, two representatives of Local 512 had told him
that they wanted to discuss grievances pursuant to the
contract and Raul Castaneda testified credibly that he
had been chided by del Castillo concerning the "bad
contract" that the employees had accepted. Consequent-
ly, while Respondent may not have received official no-
tification from Local 512 that the employees had ratified
the agreement, it certainly had been on notice of that
fact during the day on January 7, prior to the time that
Local 512 received notice of Respondent' s telegram
during the late afternoon of that same day.27
27 As set forth above, Norman Feldner claimed that it had been on
January 5 that he had notified Respondent's attorney that Respondent no
longer was satisfied with the proposals that had formed the basis of the
mid-December agreement Based upon my above-described conclusion
concerning Norman Feldner's credibility, I am not inclined to credit this
testimony of notice to Respondent's attorney on January 5 Rather,
Norman Feldner appeared to be testifying to that date in an effort to for-
tify Respondent's position that it should not be held to the mid-December
agreement In fact, Respondent is represented by experienced counsel
who appeared fully able to discern the effect of withdrawal of a proposal
Inasmuch as Respondent was on notice of the agree-
ment's ratification, the absence of earlier official notifica-
tion of that fact from Local 512 hardly seems a valid
basis for concluding that no agreement had been formed
prior to receipt by Local 512 of Respondent's withdraw-
al of its proposal. The relationship between an employer
and its employees' bargaining representative differs from
the relationship existing between parties in a commercial
setting, for the "Act compels the employer and the duly
certified union to deal with each other and to bargain in
good faith." Pepsi-Cola Bottling Co., supra, 659 F.2d at
89. Further, "federal labor policy . . encourages the
formation of collective bargaining agreements" Id. In
light of these underlying policies, traditional common
law principles of contract law are not always applied to
agreements negotiated in a collective-bargaining context.
For example, "the common law rule that a rejection or
counterproposal necessarily terminates the offer has little
relevance in the collective-bargaining setting." Id Of
greater pertinence to the instant case, "in deciding
whether, under a particular set of circumstances, an em-
ployer and a union have in fact arrived at an agreement
that the employer is then obliged to embody in a written
contract upon the union's request, the Board is [not]
strictly bound by the technical rules of contract law."
Lozano Enterprises v. NLRB, 327 F.2d 814, 818 (9th Cir.
1964). "Rather, a more crucial inquiry is whether the
two sides have reached an `agreement,' even though that
`agreement' might fall short of the technical requirements
of an accepted contract." NLRB v. Donkin's Inn, 532
F.2d 138, 141 (9th Cir 1976), cert. denied 429 U.S 895.
Here, at the very least, Respondent had agreed to enter
into a specific collective-bargaining agreement with
Local 512 if its terms were ratified by the employees.
Ratification was accomplished. Respondent was on
notice of that ratification, even though Local 512 had
not taken the ministerial act of officially notifying Re-
spondent of it, before Respondent's telegram withdraw-
ing its assent to that agreement had been received by
Local 512. In these circumstances, and in light of the un-
derlying policies in this area, I conclude that an agree-
ment did come into existence and that by rescinding that
agreement and by refusing to honor its terms, Respond-
ent violated Section 8(a)(5) and (1) of the Act.
Finally, in its answer Respondent raised several affirm-
ative defenses, two of which pertain to the violations of
Section 8(a)(5) and (1) of the Act that I have concluded
did occur. First, Respondent contends that Local 512 re-
lieved Respondent of any further bargaining duty by
having instituted, authorized, and ratified intermittent
and of the need to communicate that fact to the other party before the
proposal will be deemed withdrawn See, e g, Pepsi-Cola Bottling Co V
NLRB, 659 F 2d 87, 89 (8th Cir 1981) Accordingly, it seems unlikely
that had counsel actually been advised on January 5 of Respondent's
desire to withdraw its proposal, he would have dallied 2 days before
communicating that fact to Local 512 Rather, in the circumstances of
this case, it is not unlikely that upon discovering that the employees had
ratified what Respondent considered to be a "bad contract" during the
day on January 7, Respondent, which already had shown its antagonism
toward having to deal with Local 512, made an effort to quickly rescind
the proposal that formed the basis for the agreement that the employees
had ratified
FELBRO, INC 1283 ,
work stoppages. While there was evidence at the hearing
concerning sabotage of Respondent's equipment and
other damage, there was no evidence that intermittment
work stoppages had occurred at Respondent's facility,
nor is there evidence that Local 512 or any of its agents
had been responsible for the damage done at Respond-
ent's premises. Accordingly this affirmative defense has
no merit. Secondly, Respondent argues that it bargained
in good faith at all times That may be. However, the
two violations of Section 8(a)(5) and (1) of the Act
which have been found to have occurred did not pertain
to the manner in which Respondent conducted its nego-
tiations with Local 512. Rather, they pertained to two
specific actions-failure to notify the Union that it would
be laying off employees and refusal to execute a collec-
tive-bargaining contract embodying the terms of an
agreement reached with Local 512 Neither of these vio-
lations is predicated on Respondent's course of bargain-
ing. Therefore, these defenses have no merit 28
CONCLUSIONS OF LAW
1. Felbro, Inc. is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 512, Warehouse and Office Workers' Union,
International Ladies' Garment Workers' Union, AFL-
CIO and Southern California District Council, Interna-
tional Ladies' Garment Workers' Union, AFL-CIO are
each labor organizations within the meaning of Section
2(5) of the Act.
3 By telling employees that they and their coworkers
were being laid off and selected for layoff because its
employees had sought and selected a collective-bargain-
ing representative, by telling employees that interdepart-
mental interchange was being discontinued because they
had sought representation, by threatening employees
with reprisals because of their union activities and be-
cause they selected a collective-bargaining representative
or engaged in protected concerted activities, and by in-
forming an employee that it was discontinuing bargain-
ing with the employees' chosen collective- bargaining
representative, Felbro, Inc has violated Section 8(a)(1)
of the Act
4 By suspending employees for 1 day in retaliation for
their concerted activity of ceasing work to protest the
suspension of another employee, Felbro, Inc. has violat-
ed Section 8(a)(1) of the Act.
5. By discontinuing the practice of temporarily trans-
ferring employees between departments to avoid layoffs
when work in one department decreases, and by laying
off Raul Alonzo Escobar on July 27, 1981, Manuel San-
tizo on August 22 or 24, 1981, Jesus V Macias for 2
days between August and November 1981, and Felipe
Castaneda, Santizo, and Jose Alfaro Castro a/k/a Leon-
ardo Nevarro and Michael Robinson about November
20, 1981, because of the union activities of its employees,
2" Respondent's affirmative defense based on the asserted fact that em-
ployees are residing in the United States illegally has no bearing on Re-
spondent's bargaining obligation nor on its obligation to observe the
terms of the Act as noted in fn 4, supra
Felbro, Inc has violated Section 8(a)(3) and (1) of the
Act.
6. A unit appropriate for collective bargaining is.
All production, maintenance and shipping employ-
ees employed by Felbro, Inc at its facilities located
at 4223 Liberty Boulevard, Southgate, California
and 1677 East 41st Street, Los Angeles, California,
excluding salesman, plant clerical employees, guards
and supervisors as defined in the Act
7. At all times material , Local 512, Warehouse and
Office Workers' Union , International Ladies Garment
Workers' Union , AFL-CIO has been the exclusive col-
lective-bargaining representative of the employees in the
above-described unit within the meaning of Section 9(a)
of the Act
8. By laying off employees on August 22 or 24, 1981,
without first notifying Local 512, Warehouse and Office
Workers' Union , International Ladies' Garment Workers'
Union , AFL-CIO and affording it the opportunity to
decide whether or not to request bargaining about that
decision and, if it chose to do so, the opportunity to bar-
gain about these layoffs, Felbro, Inc. violated Section
8(a)(5) and ( 1) of the Act.
9. By repudiating its agreement to the terms and con-
ditions of a collective -bargaining contract, covering em-
ployees in the appropriate unit described in Conclusions
of Law 6 , above, reached in mid-December 1981, Felbro,
Inc has violated Section 8(a)(5) and ( 1) of the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Felbro, Inc. has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and that certain af-
firmative action be taken by it to effectuate the policies
of the Act. With regard to the latter, Felbro, Inc will be
required, upon request by Local 512, Warehouse and
Office Workers' Union, International Ladies' Garment
Workers' Union, AFL-CIO to execute a collective-bar-
gaining contract embodying the terms of the agreement,
making whole the employees in the approporiate bar-
gaining unit described in Conclusion of Law 6, above,
for any losses they may have sustained by virtue of
Felbro, Inc 's refusal to honor the terms of that agree-
ment, with interest on the amounts owing to them as
prescribed in Ogle Protection Service, 183 NLRB • 682
(1970). As part of this make-whole remedy, Felbro, Inc
will be required to make whole its employees by trans-
mitting to whatever trust funds were agreed upon in
mid-December amounts which would have been contrib-
uted had there been no unlawful repudiation of that
agreement and a refusal to abide by its terms. See
Merryweather Optical Co, 240 NLRB 1213, 1216 (1979).
In addition, Felbro, Inc will be required to make whole
Raul Alonzo Escobar, Manuel Santizo, Jesus V. Macias,
Jose Alfaro Castro a/k/a Leonardo Nevararo and Mi-
chael Robinson, Jose Maria Hernandez Lopez a/k/a
Raul Castaneda, Manuel Mendoza, Israel Ramirez, and
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Felipe Castaneda Arizmandi for any loss of pay they suf-
fered as a result of the above-described unlawful acts of
discrimination directed against them and, in addition, Ar-
mando, A. Castaneda and Israel Ramirez for any loss of
pay they suffered as a result of their layoffs on August
22 or 24, 1981, which were effected without prior notifi-
cation to their bargaining representative Backpay will be
computed on a quarterly basis, making deductions for in-
terim earnings, F. W. Woolworth Co., 90 NLRB 289
(1950), and with interest to be paid on the amounts
owing and to be computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 139 NLRB 716 (1962), enf. denied on
different grounds 322 F 2d 913 (9th Cir 1963).29
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 30
ORDER
The Respondent, Felbro, Inc, Los Angeles and South
Gate, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Telling employees that they or their coworkers are
being laid off or selected for layoff because they sought
to be represented by or selected as their collective-bar-
gaining represenative Local 512, Warehouse and Office
Workers' Union, International Ladies' Garment Workers'
Union, AFL-CIO or any other labor organization; tell-
ing employees that interdepartmental interchanges were
being discontinued beause they had sought representation
by that labor organization or by any other labor organi-
zation, threatening employees with reprisals because of
their union activities, because they selected the above-
named labor organization or any other labor organization
as their bargaining representative, or if they engage in
activity protected by the Act; and informing employees
that further bargaining is being discontinued and, inferen-
tially that their continued support for their bargaining
representative is futile
(b) Suspending employees in retaliation for engaging in
activities protected by the National Labor Relations Act
(c) Discontinuing the practice of temporarily transfer-
ring employees between departments to avoid layoffs
where work in one department slows, and laying off, sus-
pending or otherwise discriminating against employees
with regard to hire or tenure of employment or any term
or condition of employment for engaging in activities on
behalf of a labor organization or for engaging in activity
protected by Section 7 of the Act.
(d) Changing terms and conditions of employment of
employees in the appropriate unit set forth in the Con-
clusions of Law above without first notifying Local 512,
Warehouse and Office Workers' Union, International
Ladies' Garment Workers' Union, AFL-CIO and afford-
ing it the opportunity to decide whether or not it wants
to request bargaining and sufficient opportunity to bar-
gain about those changes.
(e) Repudiating the agreement upon the terms of a col-
lective-bargaining contract, covering employees in the
appropriate unit set forth in Conclusion of Law 6, above,
reached in mid-December 1981, and refusing to honor
the terms of that agreement.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Execute a contract embodying, honoring, and ap-
plying retroactively the terms of the agreement reached
in mid-December, 1981, with Local 512, Warehouse and
Office Workers' Union, International Ladies' Garment
Workers' Union, AFL-CIO covering the employees in
the appropriate unit described in Conclusion of Law 6,
above, and make whole those employees for any loss of
wages and benefits that would have accrued to them but
for the unlawful repudiation of that agreement, in the
manner set forth above in the section entitled "The
Remedy."
(b) Reinstate the policy of transferring employees be-
tween departments whenever work in one department
becomes slow.
(c) Make whole Raul Alanzo Escobar, Manuel San-
tizo, Jesus V. Macias, Jose Alfaro Castro a/k/a Leon-
ardo Navarro and Michael Robinson, Jose Maria Her-
nandez Lopez a/k/a Raul Castaneda, Manuel Mendoza,
Israel Ramirez , and Felipe Castaneda Arizmandi for any
loss of pay they may have suffered as a result of the dis-
crimiantion against them , in the manner set forth above
in the section entitled "The Remedy."
(d) Make whole Armando A. Castaneda and Israel Ra-
mirez for any loss of pay they may have suffered as a
result of their unilateral layoff on August 22 or 24, 1981,
in the manner set forth above, in the section entitled
"The Remedy."
(e) Preserve and make available to the Board or its
agents all payroll and other records necessary to com-
pute the backpay rights set forth in the section entitled
"The Remedy."
(f) Expunge from its files any references to the layoffs
or suspensions of the employees named in subparagraph
2(c), above, and notify each of them in writing that this
has been done and that evidence of his unlawful layoff or
suspension will not be used as a basis for future person-
nel actions against him.3 i
(g) Post at its Los Angeles and South Gate, California
facilities copies of the attached notice marked "Appen-
dix."32 Copies of the notice, on forms provided by the
29 The Charging Party's request for additional extraordinary remedies
is denied in the circumstances of this case
so 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
31 See Sterling Sugars, 261 NLRB 472 (1972)
az 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
FELBRO, INC.
Regional Director for Region 21, after being signed by
the Respondent 's authorized representative , 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 cus-
tomarily posted Reasonable steps shall be taken by the
1285
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-'
spondent has taken to comply.