Metro Truck Body, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1976

223 N.L.R.B. 988 (N.L.R.B. 1976)

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metro Truck Body, Inc. and Automotive Employees,
Laundry Drivers and Helpers Local 88, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Case 31-CA-
5146
April 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On December 17, 1975, Administrative Law Judge
Russell L . Stevens issued the attached Decision in
this proceeding . Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings,' and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
dismisses the complaint in its entirety.
'General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge found that Diaz various activities in
connection with his employment status demonstrate a "complete disregard
for the law ." We do not adopt this statement . While Diaz' activities may
demonstrate a willingness to violate the immigration laws, we do not believe
that any unlawful conduct by Diaz in this regard warrants the conclusion,
as implied by the Administrative Law Judge's overly broad statement, that
he has no respect for the basic laws which order society.
I Member Fanning would find Rigali's interrogation of Nuno violative of
Sec. 8(axl) and issue the appropriate order.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Los Angeles, California, on October
21, 22, and 23, 1975.' The original complaint, issued May
16, was based upon a charge filed March 13 by Automotive
Employees, Laundry Drivers and Helpers Local 88, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, hereinafter referred to
as the Union. The amended complaint 2 filed August 15,
alleges that Metro Truck Body, hereinafter referred to as
Respondent, violated Section 8(a)(1) and (3) of the Nation-
al Labor Relations Act, hereinafter referred to as the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross -examine
witnesses , and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of the General
Counsel and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is now, and at all times material herein has
been, a corporation duly organized and existing under and
by virtue of the laws of the State of California, with an
office and principal place of business located in Torrance,
California, where it is engaged in the manufacture of truck
bodies. Respondent, in the course and conduct of its busi-
ness operations, annually sells goods valued in excess of
$50,000 to its customer , General Motors Corporation. Gen-
eral Motors Corporation annually sells goods valued in ex-
cess of $50,000 to its customers located outside the State of
California, I find that Respondent is, and at all times mate-
rial herein has been, an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Automotive Employees , Laundry Drivers and Helpers
Local 88, International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America is, and at all
times material herein has been , a labor organization within
the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Background
As of March 12 Respondent employed 32 persons, of
whom 4 were office or clerical personnel, or supervisors.
Philip Rigali (Rigali) is president and general manager; Sid
Halushka (Halushka) is controller and officer manager;'
Lariano Lujon (Lujon) was shop foreman;4 Rodger Hen-
ninger is a non-Spanish-speaking shop foreman, who acted
in Lujon's stead for a period involved herein when Lujon
was ill; and Rigali's daughter, Christine, is office secretary.
1 All dates herein are within 1975, unless stated to be otherwise.
2 Hereinafter referred to as the complaint.
Halushka also acts as purchasing agent and personnel officer.
Lujon resigned in February. Name sometimes is spelled Lujan.
223 NLRB No. 146
METRO TRUCK BODY, INC.
The plant is located on a 2-acre site in Torrance, about
one-half of which is devoted to a building (about 20,000
square feet) and an outside work area. Rigali has an office
in the plant area of the building from which he oversees the
operation and handles outside sales. Halushka supervises
all office work. Lujon did all the hiring at times relevant
herein.
Most of Respondent's plant employees (about 18 of the
approximately 28 total) are of Mexican nationality, and
speak English either in a limited fashion, or not at all.
Lujon's principal function was to hire and maintain this
portion of the work force.5 Lujon actively assisted recruits
in their preparation of work applications.
Cipriano Diaz (Diaz) was employed by Lujon as a weld-
er in 1971. He was the moving force in attempting to orga-
nize Respondent, and on February 26 he distributed union
authorization cards to approximately 20 employees. The
distributions of cards, and all discussions accompanying
them, were in secret ; cards were handed only to employees
(almost entirely Mexicans) who could be "trusted" to
maintain secrecy. After receiving signed cards from distri-
butees, Diaz delivered them to the Union's office.
In October 1974 Alejandro Nuno (Nuno), who was em-
ployed by Respondent in 1968, asked Halushka for a letter
from Respondent offering employment to a friend in order
for the friend to enter the United States. The letter was
given, as Nuno requested. About 3 or 4 weeks prior to the
time when Diaz distributed union cards, Patrick J. Walters
(Walters) of the Criminal Investigation Section, Immigra-
tion and Naturalization Service (INS) visited Respondent's
plant to verify the employment offer. Walters talked only
with Halushka during his visit, and Halushka told Nuno
and Rigali about the visit.
On March 4 Stephen Williams (Williams), also with the
Criminal Investigation Section of INS, visited Respon-
dent's plant and talked with Halushka, and separately with
Diaz, concerning an immigration investigation involving
Diaz.
On March 12 Rigali telephoned his attorney (O'Neill),
who came to the plant shortly after lunch. After a discus-
sion between Rigali and his attorney, all the Mexican em-
ployees were called into the office for questioning relative
to their immigration status. After the interrogation Re-
spondent discharged the eight persons named in the com-
plaint, advising them that the reason was their status as
illegal entrants into the United States.
Contentions of the Parties
General Counsel contends that Respondent illegally in-
terrogated employees on March 11; and that, on March 12,
Respondent terminated the eight employees named in the
complaint because they signed union cards. It is contended
that Respondent used the employees' immigration status as
a pretext.
Respondent denies the allegation of illegal interrogation
on March 11, and relative to the discharges, contends that
it became fearful of possible criminal charges relating to its
5 Lujon also is Mexican , fluent in Spanish and English.
989
employees' immigration status, after the visits of Walters
and Williams; that its concern occasioned the telephone
call to the attorney, discussion with him, and questioning
of employees concerning their immigration status; that Re-
spondent did not know prior to the questioning of March
12 that it had illegal aliens on its payroll; and that it dis-
charged the eight employees solely because of fear of possi-
ble criminal involvement .6
A. The Alleged Interrogations of March II
Paragraph 8 of the complaint alleges that, on or about
March 11, Rigali unlawfully interrogated employees con-
cerning their union activity.
1. Diaz testified that he had a conversation with Rigali
in the latter's office on March 11, at which time Halushka
and Gillette also were present. Diaz said Gillette was work-
ing "just as an employee, a welder . . ," and "was one that
was translating for me." Diaz testified:
A. Well, Mr. Rigali asked me if I thought that the
union would give us some benefits. I said yes. Above
all, I said it would remove this discrimination thing. I
also-he also asked me if I thought that the union
would give us overtime. I said no, I don't think so. He
also asked me if illegals could sign these union cards. I
said yes. He also asked me about whether Mr. Lujan
has signed a certain letter. I told him I did not know.
Q. Can you please identify Lujan, please?
A. Yes, sir.
Q. Who is he?
A. He was the factory foreman.
Q. Do you recall anything else said during that con-
versation?
A. No, I don't recall any more.
On cross-examination Diaz said the conversation lasted a
half hour or an hour; that he and Rigali talked about "dis-
crimination" for about 10 minutes; and that they talked
approximately 10 minutes about Richard Rigali (Rigali,
Jr.) treating "all of us Mexicans very badly," and having
tried to strike Diaz a week or so before the conversation of
March 11. Diaz said his work was not discussed, nor did he
and Rigali discuss anything about communication prob-
lems in the plant because Lujon was ill and absent, nor
were Diaz' immigration problems discussed. Diaz summa-
rized the conversation by stating "everything was related to
the Union."
Rigali testified that he had a conversation with Diaz on
March 12 about 9 a.m. and that Gillette was present at
Rigali's request, to act as interpreter if necessary. Rigali
said the conversation lasted about 5 minutes, during which
time Halushka came into the room "just for a second."
Rigali said he opened the conversation by asking Diaz
what he had done about his immigration problem; Diaz
replied "No, nothing. But don't worry." Rigali then asked
what Diaz' problem was at work I and Diaz replied "there
6 General Counsel' s motion to strike Respondent's affirmative defenses
filed September 22, hereby is denied on the basis that the defenses have
been disposed of herein, either on the merits or by rejection.
7 Rigali said Henninger had been reporting Diaz' poor work for several
days, and he and Henninger had talked about it just before Rigali called
Diaz into his office.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no problem . We have no problem when the Union comes
in." Rigali asked "what do you mean by that ," and Diaz
replied, "I don't want to talk about it. You treat us like
dogs. . . . You have Joe and his brother working out in
the rain." Diaz also said something about , "having an al-
tercation with Richard ." Rigali denied any conversation
with Diaz about the Union , or union cards . He said he
talked with the Hernandez brothers, Jose and Apolonio,
just after Diaz left his office. Gillette also was present, and
the following conversation ensued:
Cipriano says I'm treating you like dogs. You
worked out in the rain.
They said, "Oh, yeah, we sprinkled."
I said, "Did you get wet?"
And they said, "Oh, no. We put up a piece of ply-
wood and we were working inside a van."
And I said, "How long were you out there?"
And they said, "Oh, maybe two hours."
And I said, "You ought not do that. Only Gringos
work out in the rain . Everybody else is smarter."
And they laughed. And that was it.
Rigali said he also talked with Nuno , about noon the same
day, March 12. (See discussion 2, next following.)
Gillette testified that he was present at the above conver-
sation with Diaz, to act as interpreter . He said the conver-
sation was on a Wednesday, and that he remembered the
day because he was terminated on a Thursday, the day
after the conversation , at a little after 9 a.m. Gillette closely
corroborated Rigali's version of the conversation.
Halushka testified that the conversation was on Wednes-
day, March 12, at about 9 a.m. and that he remembered
the date because later the same day he was out of the office
for the first time in several years , to attend a convention at
Culver City. He said he heard only a question by Rigali.
"What's this I hear about we treat you like dogs?", and
Diaz' reply to the effect "we won't have anything to worry
about when the Union gets here."
2. Nuno testified that he had a conversation March II
with Rigali , lasting approximately 1 minute . Nuno stated:
I was picking up some boxes of screws and he called
me and asked me about did I see somebody sign any
cards . I said no. He asked me did I sign any union
cards . And I say no. And that's it, and I go away.
Rigali denied Nuno 's statements , and said the word
"card" was not used in his conversation with Nuno.
Rigali's version of the conversation with Nuno was that it
occurred on March 12, just after the conversation with
Diaz wherein Diaz used the word "union ." Rigali testified
he said to Nuno:
When Cipriano was in when I was having a conver-
sation with Cipriano he said something about they
have no problem when the union comes in. Do you
know what he means? Do you know anything about a
union?
And Alex said, "No, I don't know anything. I've
8 Diaz is considered an unreliable witness. His testimony contains several
self-contradictions and uncredited statements and further, his admission to
worked for you for 9 years, and my father worked for
you and my brothers worked for you." He says, "If I
knew anything, I would tell you."
Analysis
1. The key to resolution of this credibility problem is
Gillette , an unusually impressive witness . His answers were
firm and straightforward , and he remained unshaken on
cross-examination . His appearance and demeanor on the
stand were those of a truthful person . Clearly he was not
biased , and certainly not prejudiced . He had been em-
ployed by Respondent as a welder for only about 5 months
when the conversation with Diaz occurred , and he was ter-
minated the day after the conversation . At the time he tes-
tified , he was employed by a firm unrelated to Respon-
dent-a firm he previously was employed by for several
years . He is black Latin , fluent in Spanish. His testimony is
credited . Based upon that testimony and the testimony of
Rigali and Halushka , it is found that the conversation in
question , between Rigali and Diaz , occurred March 12 at
about 9 a .m. and that Rigali did not interrogate Diaz about
union activities as alleged .8
2. Rigali acknowledged asking Nuno what Diaz meant
when he referred to a union . However, there is no basis for
finding that single question coercive . The question was iso-
lated and incidental , and was posed in curiosity rather than
inquisition . Under the circumstances the question was triv-
ial, and not actionable . Pepsi-Cola Bottling Co. of Los Ange-
les, 211 NLRB 870 (1974); Fearn International, Inc., Eggo
Foods Division, 209 NLRB 232 (1974).
B. Alleged Discharge of Employees
Paragraph VI of the complaint alleges that , on or about
March 12, Respondent unlawfully discharged the following
named employees:
Cipriano Diaz Joaquin Campos
Enrique Agredano Jorge Villasenor
Gregorio Hernandez Jose Isortia
Filiberto Torres Luis Villasenor
The fact of discharge of the above -named employees on
March 12 is not in dispute.
The union activity of Diaz is well established by the re-
cord , as discussed above.
Union authorization cards signed by Agredano , Torres,
Campos , and the two Villasenors were admitted into evi-
dence . No other evidence or testimony covering their
union activity was offered.
Diaz testified that he distributed cards to Gregorio Her-
nandez and Jose Isortia , but no evidence was introduced
showing that they signed the cards . Further, no evidence or
testimony was offered to show any union activity on their
working for Respondent 2 years under a false name and false social security
number casts doubt upon his truthfulness. It is, noted , among other things,
that Diaz testified to a quarrel with Rigali, Jr., a week prior to March 12.
Rigali , Jr.. testified that he has always been on good terms with Diaz except
for one brief spat about the end of the summer of 1974. No attempt to strike
was involved. Rigali, Jr ., is credited.
METRO TRUCK BODY, INC. 991
part. For all that appears, they may have been opposed to
the Union. Certainly the record is devoid of even a hint
that Respondent suspected or knew that the two were in-
terested in the Union.
General Counsel primarily relies upon the timing of the
discharges, contending they occurred the day after the al-
leged conversations between Rigali and Diaz, and Rigali
and Nuno, on March 11.
Respondent established that said two conversations oc-
curred on the morning of March 12, a few hours prior to
the discharges, as discussed above.
However, regardless of whose version is accepted, the
question of motive for the discharges still must be an-
swered.
Respondent 's Defense
1. INS investigations
Respondent's basic defense is that it discharged the em-
ployees because of fear of INS, with its authority over ille-
gal aliens and those who illegally assist them, and their
power to initiate criminal proceedings. Rigali said his con-
cern was prompted 9 by the visits of Walters about the first
of February, and Williams on March 4. He stated that,
during his 25 years of managerial experience, during most
of which time he worked with Mexicans, these were the
only times he or his company had been contacted by repre-
sentatives of INS. Rigali testified that he did not talk with
Walters, but that Halushka advised him of Walters' visit
and said Walters "was verifying a letter that we had written
for . . . Nuno." Rigali said similar letters have been writ-
ten in the past for employees, on from one to three occa-
sions.
Rigali testified that he talked with Diaz on Friday after
the Williams' visit, and asked Diaz "how are things or
what's happening." Diaz stated, "I have an appointment.
Maybe I not be back."
Halushka testified that Walters' visit in February lasted
about 3 or 4 minutes , during which time Respondent's
writing of the letter was confirmed. Nothing else was dis-
cussed . Walters then went out to talk with Nuno. Halushka
called Respondent's attorney shortly after the conversation
with Walters, and the following day the attorney advised
Halushka that such letters should not be written without
first consulting an attorney. The attorney also expressed
concern about Walters coming to the plant. The conversa-
tion with Walters was the first time since Halushka was
employed by Respondent (in 1968) that he had any contact
with INS.
Nuno corroborated the fact that Walters visited the
plant and talked with him concerning the letter.
Relative to the second visit by a representative of INS,
Rigali said Halushka told him about 2 p.m. on March 4
that Williams had come to Halushka's office that morning
and asked questions about Diaz. Thereafter, Williams
9 Rigali said he also had in mind when he discharged the employees, an
incident several years ago when Respondent was closed a few days pending
an investigation concerning stolen property . That incident obviously is im-
material herein , and it has no place in defense of these charges.
talked privately with Diaz. Halushka gave details in his
testimony about Williams' visit, and said Williams asked
several questions about Diaz, and asked to see Diaz' per-
sonnel file, which Halushka handed to him. Halushka said
he talked with Diaz just after Williams left, and asked him
what the visit was "all about." Diaz said it had something
to do with his marriage, and "don't worry. Everything is
okay." Diaz told Halushka he had to go to INS offices the
following Monday. Halushka that day reported the events
to Rigali, including his conversation with Diaz.
Williams testified that his visit with Halushka lasted
about 10 or 15 minutes, as did his visit with Diaz. The time
with Diaz was spent alone by the two. Williams asked Ha-
lushka about Diaz' employment, and whether Diaz was
married, but he did not question Halushka about Diaz'
marital status. Williams arranged for a follow-up appoint-
ment with Diaz, which the latter kept. A report was pre-
pared 2 or 3 months after the visit.10
2. Rigali's reaction to INS investigations
Rigali testified: That on the morning of March 12, he
read an article in the newspaper covering INS activities
involving Mexicans illegally entering the United States,
and "was upset about the ramifications of investigators
... . Larry Lujon used to drive five or six employees to
and from work every day." On that same morning, after he
arrived at the office Rigali talked with Diaz (as discussed
above), at about 8:45 or 9. Being apprehensive of possible
criminal involvement, Rigali called his attorney (O'Neill)
about 10 a.m., and told him, "We have Cipriano [note:
Diaz] with a problem here, an immigration problem. I'm
worried. Did you see this morning's paper?" 11 After a brief
discussion concerning illegal entrants, O'Neill said he
would come to the plant that day, about 1 or 1:30 p.m.
O'Neill came to the plant, and about an hour later his wife
(Castellanos), who is an attorney specializing in immigra-
tion matters, arrived at the plant and the two attorneys
talked with Rigali. The only subject of their conversation
was the matter of immigration and the possibility of illegal
entrants being employed by Respondent. O'Neill advised
Rigali of possible criminal problems. Following the discus-
sion, all Mexican employees individually were called into
the office. Individual files were reviewed, and the employ-
ees were asked to verify their status as entrants. Castellanos
called Williams on the telephone relative to Diaz. It was
apparent that some of the 17 or 18 called into the office
were in the United States legally, and some were here ille-
gally. Those found to be illegal entrants were discharged at
once , with Castellanos, who speaks Spanish, acting as
Rigali's spokesman. A few employees were given until the
following day to establish their status. The eight employees
involved herein were terminated solely because of their ille-
gal status, and Rigali had no knowledge, prior to that time,
about their status.12 Rigali was most concerned about pos-
sible criminal involvement.
10 Rigali credibly testified that he never talked with Walters or Williams.
11 Rigali credibly testified that O'Neill did not know prior to the call,
about the visits of Walters and Williams, so far as Rigali was aware.
12 Rigali denied he had ever been informed by Lujon that the eight were
illegal entrants. This matter is discussed below.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diaz testified that he was discharged by Castellanos
March 12, and was told the reason was the fact that he did
not hold a "green card." 13
Williams testified that he received a telephone call from
Castellanos "on or about March 12." He stated:
It was a very short conversation . She asked if I re-
called correctly three or four questions . However, at
the time it seemed to me the purpose of the telephone
call-the main question was did I tell anyone at Metro
Truck Body that it was illegal to hire illegal aliens or
that it was against the law to hire illegal aliens?
My answer to her was-no, I had not. And, as I
indicated in my affidavit , the-she did ask me some
prefactory questions , but that, at the time , seemed the
main question.
Williams stated that, as of the time he talked with Castella-
nos, INS had not given Diaz a work permit.
General Counsel's Rebuttal
1. INS investigations
General Counsel adduced testimony from Williams, and
others , to show that Williams never advised Rigali or Cas-
tellanos , or anyone else, that he was investigating any per-
son other than Diaz when he visited Respondent 's plant, or
that he was investigating Respondent 's employment prac-
tices.
General Counsel argues that the investigation conducted
by Walters was no cause for concern and no basis for de-
fense, since Respondent had issued letter offers of employ-
ment in the past , to support Mexican entrants , and further,
Walters made it clear to Halushka that he was concerned
solely with the letter given to Nuno. Further, Halushka
told Rigali only that Diaz was being investigated-no one
else was involved.
2. Respondent's knowledge of illegal entrants
General Counsel contends that Respondent knew at all
times relevant herein that it had illegal entrants on its pay-
roll and that, therefore , its defense that the eight dischar-
gees were terminated because of their illegal status, is a
sham. General Counsel relies upon the testimony of Lujon
for proof of this contention.
3. Diaz' immigration status
General Counsel argues that Rigali did not have, or
should not have had, any concern about Williams' visit to
the plant, because Williams only was investigating Diaz
marital status . The record shows that Diaz was an illegal
immigrant at times relevant herein , and that, as of the day
he was discharged , he did not have an INS permit to work
in the United States . Williams ' investigation of Diaz' mar-
riage apparently was for the sole purpose of ascertaining
whether Diaz legally or illegally was in the United States.
13 Permission to work in the United States.
Analysis
1. Animus
The record is devoid of any indication that Rigali or any
other representative of Respondent harbored union animus
at any time relevant herein. So far as Respondent is con-
cerned, the only time the word "union" was mentioned,
was when Diaz made the remark on March 12 that is dis-
cussed herein, and when Rigali later asked Nuno if he
knew what Diaz was talking about. It is found that Re-
spondent was not shown to have union animus.
2. Respondent's alleged knowledge of union activity
There is no direct evidence that Respondent had knowl-
edge of union activity on its premises when it discharged
the eight employees involved herein. In view of the credited
testimony of Gillette, who had nothing to gain by testifying
other than truthfully, the stories of Diaz and Nuno relative
to their conversations with Rigali about union activities
simply cannot be believed.
Diaz stated in definite terms that he conducted all his
union activity in strict secrecy, and that he instructed the
employees with whom he talked, to do likewise. There is no
evidence, or even hint, that the secrecy was broken prior to
the discharges. Diaz testified that he believes no one, other
than those to whom he distributed cards, knew anything
about the cards or union activity. The cards were distribut-
ed only to Mexicans, and to a couple of others who could
be "trusted" to maintain secrecy. Richard Rigali did not
receive a card.
General Counsel argues that Richard Rigali, who works
in the plant, and his father, whose office is in the plant,
somehow must have learned about the cards. Richard and
his father both denied that conclusion, and there is no sup-
port for such a conclusion.
It is quite clear that Lujon did not know about the cards
or any other union activity. He was in the hospital, or off
work, at all times relevant herein, and no employee visited
him during that period of time.
Diaz and Nuno acknowledged that they never talked
with anyone in management about union activity (other
than during the alleged conversations of March 11).
Halushka credibly testified that he had no knowledge of
the cards, or any other union activity, prior to the dis-
charges.
Rigali denied any knowledge of union activity, and said
the only time he heard the word "union" was when Diaz
made a statement containing the word, on March 12, as
discussed herein. Rigali credibly testified that the Union
was not mentioned at any time during his discussions with
his attorneys.
Diaz' testimony that Rigali indicated by his hands dur-
ing the alleged conversation of March 11 that he knew of
Diaz' union activity is not credited. It is found, above, that
such a conversation did not occur.
It is found that neither Rigali nor any other representa-
tive of Respondent. knew, prior to the discharges herein,
about union activity at Respondent's plant. The matter of
the word "union" having been spoken in Diaz' conversa-
METRO TRUCK BODY, INC. 993
tion with Rigali on March 12, is discussed below. 14
It is quite clear from the record that Lujon was the
"boss" of the Mexicans employed by Respondent, in every
sense of the word. He alone interviewed and hired Mexican
employees, and assisted them in filling out their applica-
tions. He directed their work, and assisted them in their
off-the-job activities. He socialized with them and for near-
ly all purposes was their only link with Respondent. He
issued work instructions in Spanish, and acted for Respon-
dent, without advising Respondent or seeking its guidance
in numerous ways . So far as the Mexicans were concerned,
Lujon was Respondent.
Lujon testified: In early January 1975, Rigali asked him
if he knew how many of Respondent's employees illegally
were in the United States.15 When Lujon said he knew,
Rigali asked for their names, which Lujon gave to him.
Thereafter, Lujon and Rigali had other conversations
about Respondent 's illegal aliens.
Lujon's cross-examination is replete with self-contradic-
tions and confusion. He stated that, when he hired the
eight employees involved in this case, he did not ask them,
nor did he know, whether they were illegal entrants. How-
ever, he said:
Well, I didn't have to find out, because I used to
make the forms out for them because they couldn't
write or read English, and it was obvious that they
might have been illegal. Mostly all the people that I
hired were illegal, you know, friends of friends or-
Lujon later said he did not know the eight were illegal
entrants when he gave their names (orally only) to Rigali,
yet a few moments later he testified that six of the eight
told him prior to January that they were illegal entrants.16
Lujon's testimony concerning the January conversation
with Rigali; the manner in which he found out that eight of
the employees were illegal entrants; the total number of
illegal entrants on Respondent's payroll; the nature of his
various illnesses; the periods of time when he was off work
because of illness ; 17 his alleged conversation with Rigali
about the visits of the INS investigators; and his other tes-
timony is a jumble of self-contradiction. It was established
14 General Counsel contends that knowledge of union activities can be
imputed to Rigali under the Board 's "Small plant" doctrine, and cites Bill's
Coal Company, 203 NLRB 274 (1973), and Malone Knitting Co., 152 NLRB
643 (1965). However , those cases and other cases cited therein make it clear
that the small plant doctrine is applied only where there is some supporting
evidence of knowledge on the part of the employer. Here, no such support
is found . The mere fact that Respondent is a relatively small operation does
not, standing alone , support application of the doctrine. Here the plant is
located in one of the largest industrial areas in the country; the work force
is mostly Mexican and in the past (until Lujon quit) always has been direct-
ed by a Mexican , using the Spanish language ; neither Rigali nor any other
member of management (other than Lujon ) can converse in Spanish; the
employees hired by Lujon generally are so deficient in the English language
that Lujon must assist them in filling out application forms, even to the
extent of filling in some blanks himself ; the evidence shows that the union
activity was limited to Mexicans and one or two others who could be " trust-
ed" to maintain secrecy; the evidence is devoid of any basis upon which to
conclude that Respondent knew of any union activity at the plant. The
small plant doctrine cannot be relied upon under such circumstances.
15 Rigali denied that this conversation occurred.
I6 Diaz testified quite firmly that he told Lujon on March 4, 1972, that he
was an illegal entrant.
17 Company records effectively impeached Lujon on this point.
through Lujon, as. well as others, that Lujon was an ex-
tremely heavy drinker, both on and off the job, from about
the first of January, and probably earlier, until his hospital-
ization for the problem in February and March.ls In view
of such factors, together with the fact that Lujon quit his
employment with Respondent and had reason to make
common cause with the eight dischargees because of racial
and social affinity, it is found that Lujon's testimony is not
worthy of credit.19
Rigali testified that Lujon accepted applications from
applicants, and after hiring, referred the applications to
Halushka, who merely scanned the applications to make
certain that all blanks were filled in, and then made up files
for the employees. Rigali said he had issued instructions to
Lujon when Diaz was hired under his correct name, that all
applicants must present proper immigration papers before
being hired.20 Halushka corroborated Rigali's testimony
concerning the office procedures involved, and stated that
it was his understanding that only legal entrants were to be
hired.21
4. Diaz' immigration status
As of March 12 Diaz already had shown his complete
disregard for the law, by violating it knowingly and delib-
erately. He not only entered the United States in violation
of Federal law-he falsified his work application, lied
about his status, and illegally used another person 's social
security number. Perhaps Lujon and Rigali were at fault
because they retained Diaz after they learned about his
illegal actions , but that knowledge would add to Rigali's
concern when he learned that an INS criminal investiga-
tion officer had visited the plant to investigate Diaz. Rigali
received his information about Williams' visit second
hand; he did not talk with Williams, which would only
increase his uneasiness. Finally, Diaz acknowledged that
he told Halushka and Rigali that he had to go to INS
relative to the investigation. Diaz said he was joking when
he told Rigali that he did not know whether he would re-
turn to work after his trip to INS the following Monday,
but that testimony, even if true,22 would have no weight in
view of Diaz' past actions and Williams' visit. Even had
Diaz told Rigali that the statement was meant as a joke, the
spoken words could do no more under the circumstances
than set Rigali's nerves on edge. As more fully discussed
below, Rigali probably knew he had illegal entrants on the
payroll other than Dias, and his reaction to knowledge of
Williams' nosing around the premises could be predicted.
Finally, Halushka testified that Diaz told him on Monday,
following his reporting to INS, "not to worry. Everything
was okay." Halushka reported the statement to Rigali.
However, in view of all the circumstances, that statement
could not be reassuring-certainly Diaz did not show a
work permit or anything else to provide any assurance.
is Lujon also had been treated for alcoholism in 1968.
19 Lujon refused to answer, following admonition by the Administrative
Law Judge, whether he accepted money from employees in return for hiring
them for Respondent.
20 Lujon denied this statement.
21 Halushka has no authority to hire or fire.
22 The statement is not credited.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is found that, as of March 12, Diaz' immigration status
was an open question, and that Diaz then was not a legal
entrant and had no permit to work in the United States.
5. Rigali's motive for the discharges
Resolution of the discharge issue thus is seen to depend
upon two points:
(a) Rigali's knowledge of union activity at the time of
the discharges consisted of Diaz' statement on March 12,
in response to Rigali's question about work in the shop,
"We have no problem when the Union comes in." Diaz
would not explain what he meant, and Nuno said he did
not know what Diaz meant.
(b) Rigali was fearful of INS.
So far as (a) is concerned, Diaz' statement is highly am-
biguous, particularly in view of its isolation from all other
facts of the case . The record shows no talk about a union,
so far as Rigali is concerned, either before or after the
statement and Rigali's question put to Nuno a few minutes
thereafter. There is no indication that any employee ever
talked with Rigali or any other person in management
about union activity; nor that Rigali talked with his attor-
ney about such activity; nor that Lujon, who was extreme-
ly close to all the Mexicans, knew anything about such
activity; nor that the discharges were related to such activi-
ty. Rigali's contention that he did not know the word
"union" referred to a labor organization appears strained
and far-fetched, but even if it is assumed that he was not
truthful on that point, there is no showing, or even an indi-
cation, that the eight discharges resulted from the single
unexplained sentence uttered by Diaz on March 12.
So far as (b) is concerned, it is clear that Rigali was
genuinely concerned about the INS. He was jumpy about
the investigators who visited the plant, and his attorney did
not help things by telling Rigali that he may have a prob-
lem with criminal liability. Diaz clearly was under investi-
gation , Lujon had been transporting employees to and
from work, and the topic of illegal entrants was one of
lively concern in the Los Angeles area. The reason for Ri-
gali being so apprehensive is not controlling. He contends
that he did not know how many illegals he had on the
payroll, if any, but:
(1). He has worked in the same area, using Mexican la-
bor, most of his working life.
(2). He left the Mexican work force almost entirely to
Lujon.
(3). He kept himself advised concerning illegal entrants,
through the newspapers, conversations with friends and
others, and consultations with his attorney. Therefore,
Rigali's claimed innocence about illegal entrants simply
does not square with the record. Rather, it appears that his
fear of INS resulted from his knowledge of the illegal en-
trant situation. His actions of March 12 are consistent with
such a conclusion. He called his attorney when he knew
Diaz was under active criminal investigation. His attorney
called INS about Diaz, during the conference of March 12.
The Mexican employees were interviewed individually,
and questioned only about their immigration status. Only
illegal entrants were fired-the other Mexicans were re-
tained.23 The illegals were told that the reason for their
being fired was their immigration status. Thus it is clear,
and found, that Rigali's fear of INS and possible criminal
involvement was the sole reason for discharging the eight
employees herein.
CONCLUSIONS OF LAW
1. Respondent, Metro Truck Body, is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Automotive Employees, Laundry Drivers and Help-
ers Local 88, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent did not, through alleged conduct, violate
Section 8(a)(1) and (3) of the Act, as alleged in the com-
plaint, and Respondent did not, in any manner, interfere
with, restrain, or coerce its employees in the exercise of
rights guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 24
It having been found and concluded that Respondent,
Metro Truck Body, has not engaged in unfair labor prac-
tices, the complaint herein is dismissed in its entirety.
23 Diaz said he distributed union cards to all the Mexicans.
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.