Penasquitos Village, Inc.

National Labor Relations Board - Board Decisions

May 9, 1975

217 N.L.R.B. 878 (N.L.R.B. 1975)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penasquitos Village, Inc.; Penasquitos Gardens, Inc.;
Penasquitos Hills, Inc.; and San Diego Leisure-Life
Village and Laborers ' International Union of North
America , Local No. 89 , AFL-CIO. Case 21-
CA-12632
May 9, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 7, 1974, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding . Thereafter , General Counsel filed excep-
tions and a brief in support thereof, and Respondent
filed an answering 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 of the Administrative Law Judge only to
the extent that they are consistent herewith.
The Administrative Law Judge found that the evi-
dence was insufficient to sustain the allegations that
Respondent violated Section 8(a)(1) by threatening em-
ployees for going to the Union and by interrogating
employees about their union activities and preferences,
as well as those of other employees , and Section 8(a)(1)
and (3) by discharging two employees because of their
union activities. Accordingly , he recommended that
the complaint be dismissed in its entirety . The General
Counsel has filed exceptions to the above findings
which, for reasons hereinafter set forth, we find
meritorious.
Zamora's Interrogations and Threat
The complaint alleges three separate independent vi-
olations of Section 8(a)(1) of the Act, involving conver-
sations between Supervisor Zamora and three em-
ployees, none of whom was an alleged discriminatee.
The facts relating to the alleged illegal interrogations,
as found by the Administrative Law Judge, are not in
dispute. He credits the testimony of employee Her-
nandez that in November 1973, after the organizing
campaign had begun and while he and Zamora were in
a room adjacent to the office, Zamora asked him
whether he had or was going to sign for the Union.
Employee Cuevas testified that on April 4, 1974, just
before the Board election was scheduled to take place,
while in the cafeteria, Zamora asked him who had
.started the Union. The Administrative Law Judge nei-
ther credits nor discredits the latter testimony, but
rather finds that the question, even if it was asked, did
not reasonably tend to, restrain or interfere with the
employees in the exercise of their rights.
The Decision notes that Zamora did not testify as to
the Hernandez conversation and could not specifically
deny having asked the question attributed to him by
Cuevas. Zamora's only testimony with respect to these
two conversations was that he could not deny that he
had spoken with these employees on the dates in ques-
tion, but generally denied ever threatening or interro-
gating any employee concerning his union activities.
Zamora also testified that he was in favor of the Union
and thought it was a good thing for the employees. The
record also contains general testimony by Zamora that
he and the employees under him spoke openly about
the Union and that he assumed that all the employees
were in favor of unionizing. The Administrative Law
Judge, relying on this testimony, finds these interroga-
tions were not coercive and that therefore Respondent
did not violate the Act by virtue of Zamora's questions.
There is, however, further testimony in the record
concerning Zamora's relationships with the employees
which the Administrative Law Judge did not discredit.
Two of the employees testified that they were afraid to
talk to Zamora because they did not know how he
would react. Zamora himself testified that he did not
eat lunch with the employees or socialize with them at
work or during off hours, that once an employee tried
to run him off the road, and that he did not readily
initiate conversations with employees because he is a
"quiet type of dude."
The record thus contains other evidence, not dis-
cussed in the Decision, which tends to show that there
existed the opposite of the friendly and open atmos-
phere between the employees and Zamora as found by
the Administrative Law Judge, which, in our view,
negates his finding that these presumptively illegal in-
terrogations were rendered noncoercive by the sur-
rounding circumstances.' Accordingly, we find that
Respondent, by virtue of the actions of its supervisor in
interrogating employees Hernandez and Cuevas con-
cerning their union activities, as well as those of other
employees, violated Section 8(a)(1) of the Act.
The third independent violation of Section 8(a)(1)
involves an alleged conversation between Zamora and
employee Ruiz during November 1973. Ruiz testified
that at that time he and Zamora were working together
repairing a roof on one of Respondent's units when a
union agent drove up. Ruiz testified that a discussion
ensued during which the driver was identified as a
union agent, and that Zamora then remarked that who-
I Jenkins does not regard as material any alleged "friendly"
atmosphere surrounding an interrogation of an employee by an employer
concerning his union activities or sympathies.
217 NLRB No. 155
PENASQUITOS VILLAGE, INC. 879
ever was respcnsible for calling the Union would get
laid off. When Zamora was questioned about this al-
leged incident he could not recall having worked with
Ruiz on that occasion or having made the statement
and thus did not specifically deny it. As stated above,
he only generally denied ever threatening any em-
ployee.
The Administrative Law Judge found that the con-
versation, as testified to by Ruiz, did not occur, based
on Zamora's testimony and the fact that although Ruiz
had testified that Hernandez was present and witnessed
the conversation he could not corroborate what was
said. The Administrative Law Judge also cites the fact
that Ruiz was equivocal in his testimony with respect
to whether he or Zamora identified the driver as a
union agent as a further basis for not crediting his
testimony about the threat.
Notwithstanding the Administrative Law Judge's
finding with regard to the alleged threat, we note that
the following facts are clearly established by the record.
Ruiz specifically and unequivocally testified that
Zamora made the threat and did not change or alter
this testimony under extensive cross-examination.
Zarnora, on the other hand, never specifically denied
having made the statement. Furthermore, although
Hernandez testified that he could not hear what was
said between the other two men because of the ham-
mering that was going on, since he was working under
the roof while Zamora and Ruiz were on top of it, he
did corroborate Ruiz' testimony that they were work-
ing together at that time and place. While we acknowl-
edge that the record does show that Ruiz first testified
that he identified the driver as a union agent, and later
attributed the identification to Zamora, we fail to see
the significance of this, especially in light of the fact
that Zamora admitted knowing who the union agent
was., having spoken to him about the Union at length,
and the further fact that the alleged threat was in no
way contingent upon who first identified the agent. In
light of the above, contrary to the Administrative Law
Judge, we find that his failure to find that the alleged
threat was made is clearly against the weight of the
evidence. Accordingly, we find that Zamora did
threaten the employees with layoff because of their
union activities and that Respondent has thereby vi-
olated Section 8(a)(1) of the Act.
The Discharges of Employees Rios and Martinez
The Administrative Law Judge found the evidence
insufficient to prove that Respondent violated Section
8(a)(1) and (3) of the Act by virtue of the discharges of
Rios and Martinez, in the face of other evidence which
he finds establishes a legitimate cause for the termina-
tions. The General Counsel has excepted to these find-
ings , which exceptions, for the reasons hereafter stated,
we find meritorious.
Although the Administrative Law Judge discusses
the surrounding circumstances, as well as Respon-
dent's justification for the dicharges, he fails to evaluate
the basic elements of the General Counsel's prima facie
case. In this regard, the record shows the following:
Both Rios and Martinez took an active part in organ-
izing Respondent's maintenance crew. Martinez signed
an authorization card and spoke to six employees in
November, urging them to join the Union. Rios also
signed a card and was one of the employees who made
the initial contact with the Union. He also spoke to a
group of employees at a Seven-Eleven store, urging
them to attend the first union meeting. Respondent's
knowledge of their activities is established by the un-
refuted testimony of Cuevas, who testified that, in re-
sponse to an inquiry from Zamora as to who was re-
sponsible.for bringing in the Union, he mentioned both
Rios and Martinez.
With respect to the timing of the discharges, the
Administrative Law Judge cites the fact that 4 months
previous to his discharge Rios was suspended briefly
for stopping work early. However, the record also
shows that the discharges occurred on April 12, 1974,
2 days after the Decision and Direction of Election
issued, ordering an election at the facility and within 2
weeks of the illegal interrogation of Cuevas. In connec-
tion with his finding that Zamora's threat and interro-
gations were noncoercive, the Administrative Law
Judge found that Zamora lacked union animus. How-
ever, for the reasons stated above, we have found that
Zamora's actions constitute violations of Section
8(a)(1), which findings support a general finding of
animus with respect to the discharges. In addition, the
record contains evidence of other statements made by
Zamora which show hostility toward the Union. Two
witnesses testified to a conversation between Zamora
and another supervisor in March 1974, in which
Zamora made a disparaging reference about employees
who join,the Union, using an obscene epithet. In dis-
cussing the testimony concerning this incident, the Ad-
ministrative Law Judge discredits Rios' version to the
extent that he finds that Zamora, at that time, did not
specifically threaten to fire such employees. However,
the balance of the conversation stands as evidence of
Zamora's antiunion sentiments. Finally, the Adminis-
trative Law Judge found that a week before Zamora
discharged Rios and Martinez he discovered employee
Valdez working slowly and chastised him, stating that
". . . you don't want to do anything because you al-
ready have the Union."
The facts in the record show that the General Coun-
sel has carried the burden of establishing, by competent
evidence, each of the necessary elements sufficient un-
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
der established Board law to prove Respondent vi-
olated Section 8(a)(3) of the Act. The only remaining
question, therefore, is whether the Respondent has
shown, by other evidence, that the discharges were
motivated without regard to these considerations. Con-
trary to the Administrative Law Judge, we find that the
evidence herein does not justify such a conclusion.
The Respondent justifies its actions in discharging
Rios and Martinez almost entirely on the basis of an
incident which occurred on the day they were ter-
minated. On that day they were working together hoe-
ing weeds when they noticed some women nearby who
were sunning themselves and apparently stopped work-
ing for an undetermined length of time to watch. When
Zamora observed this, he told them that if they wanted
to see women in bikinis to punch their timecards and
go to the beach. He then left the men, went to his
superior, and sought and received permission to dis-
charge them. He returned immediately and, without
stating any reasons, terminated them. The only other
contact they had had that day was early in the morning
-when Rios asked permission for himself and some other
-employees to take the day off because it was a religious
holiday, which request Zamora denied.
There is no evidence that either of the two had ever
been warned that their work was unsatisfactory and the
only other disciplinary action taken against either was
4 months earlier when Rios and two other employees
were suspended briefly for stopping work early. How-
ever, this prior incident was never cited by Zamora or
his superior to Rios or Martinez as having anything to
do with the decision to discharge them. Likewise, there
is no evidence in the record to show that Respondent
had a policy or practice of using such disciplinary
measures for similar offenses, except the incident in-
volving employee Valdez, a week or so before, where
Zamora had discovered Valdez working slowly and
merely chastised him with an unfavorable remark
about the Union.
Such a paucity of evidence showing justification for
so serious and precipitous an action by Respondent
falls far short of overcoming the prima facie case estab-
lished by the General Counsel, especially in light of the
fact that both discriminatees had been employed for
over 3 years with previously unblemished work re-
cords, excepting the single incident noted above con-
cerning Rios. Accordingly, we find that Respondent,
by virtue of the actions of its supervisor- Zamora, in
discharging employees Rios and Martinez because of
their union activities, violated Section 8(a)(1) and (3) of
the Act.
Remedy
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, we shall order that it cease and desist
therefrom and take certain affirmative action designed
to effectuate- the policies of the Act.
Having found that the Respondent has discharged
Antonio Rios and Ysidro Martinez on April 12, 1974,
and has since failed and refused to reinstate them, be-
cause of their union activities, in violation of Section
8(a)(1) and (3) of the Act, we shall order the Respond-
ent to offer them immediate and full reinstatement to
their former positions, or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privi-
leges, and to make them whole for any loss of pay they
may have suffered as a result of their discharges by
payment to them-of a sum of money equal to that which
they would have earned as wages , from the date of
reinstatement, less their net earnings during such
period, in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950),
together with interest at the rate of 6' percent per an-
num to be added to such backpay, such interest to be
computed in accordance with the formula prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Having further found that the Respondent has threat-
ened employees with discharge or other reprisals for
exercising their Section 7 rights, and interrogated them
concerning their union activities, as well as the union
activities of others, we shall order that it cease and
desist therefrom and post the appropriate notices.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3 of the
Administrative Law Judge's Conclusions of Law:
"3. By discharging Antonio Rios and Ysidro Mar-
tinez, on April 12, 1974, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act."
2. Add the following paragraph:
"4. By threatening employees with discharge or
other reprisals for exercising their Section 7 rights and
by interrogating employees about their union activities,
as well as the union activities of others, the Respondent
has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders- that the Respondent, Penasquitos
Village, Inc.; Penasquitos Gardens, Inc.; Penasquitos
PENASQUITOS VILLAGE, INC. 881
Hills, Inc.; and San Diego Leisure Life Village, San
Diego, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Laborers' Inter-
national Union of North America; Local No. 89,
AFL-CIO, or any other labor organization, by dis-
charging or otherwise discriminating against any em-
ployee with respect to hire, tenure, or any other term
or condition of employment.
(b) Threatening discharges or any other reprisals for
engaging in union activity.
(c) Interrogating employees about their, or any other
employees', union activities.
(d) In any other manner interfering with , restraining,
or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to reinstate Antonio Rios and Ysidro Mar-
tinez to their former positions or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges.
(b) Make whole Antonio Rios and Ysidro Martinez
for any loss of earnings they may have suffered by
reason of the unlawful action taken against them in the
manner set forth in the section of this Decision entitled
"Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its place of business copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms provided by the Regional -Director for Region
21, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
2 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
MEMBER KENNEDY, dissenting:
I would affirm the Administrative Law Judge' s Deci-
sion in this matter. The majority's reversal of the credi-
bility resolutions of the Administrative Law Judge is
unwarranted, in my opinion.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the La-
borers' International Union of North America,
Local No. 89, AFL-CIO, or any other organiza-
tion, by discharging employees or otherwise dis-
criminating against them because of their union
activities.
WE WILL NOT threaten employees with discharge
or any other reprisals for engaging in union activ-
ity.
WE WILL NOT interrogate employees about their
own union activities, nor those of'any other em-
ployees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL offer to Antonio Rios and Ysidro Mar-
tinez immediate , full, and unconditional reinstate-
ment to their former positions or, if such jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed by them, and WE
WILL pay them for any loss of pay they may have
suffered as a result of their being laid off on April
12, 1974, with interest at 6 percent per annum.
PENASQUITOS VILLAGE, INC;
PENASQUITOS GARDENS, INC;
PENASQUITOS HILLS, INC, AND SAN
DIEGO LEISURE LIFE VILLAGE
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This case was
tried before me in San Diego, California, on August 5 and 6,
1974. The complaint, which issued on June 13, 1974, pursu-
ant to a charge filed on April 25, 1974, alleges violations of
Section-8(A)(1) and (3) of the National Labor Relations Act,
as amended . Specifically , the charge alleges that in November
1973, Respondent 's agent threatened employees that they
would be laid off because they engaged in union activities;
and, in November 1973 and April 1974, interrogated em-
ployees about their union membership, sympathies, and ac-
tivities , and those of their fellow employees , all in violation
882 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8(a)(1); and, on April 12, 1974, discharged An-
tonio Rios and Ysidro Martinez, because they engaged in
union or protected concerted activities in violation of Section
8(a)(3). Respondent denied the 8(a)(1) allegations , and fur-
ther denied knowledge of union activities on the part of Rios
and Martinez, contending they were terminated because they
did not perform their work satisfactorily.
All parties were given full opportunity to appear, to in-
troduce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs. Briefs were filed by the Re-
spondent,.the Charging Party, and the General Counsel and
have been carefully considered.
Upon the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I JURISDICTION
union member in November or December 1973 and signed an
authorization card on January 4, 1974. Martinez signed an
authorization card on January 11, 1974. On February 25,
1974, the Union filed a petition in Case 21-RC-13612, seek-
ing an election in a unit comprised of all groundskeepers,
operators, irrigators, general maintenance men, mechanics,
gardeners, sprinkler men, painters, cleanup men, truckdrivers,
machine operators, and foremen; excluding all other em-
ployees, all professional and technical employees, guards, and
watchmen. Pursuant to said petition, a hearing was con-
ducted on March 20 and April 1, 1974, and on April 10 the
Regional Director issued a Decision and Direction of Elec-
tion. On April 25, Respondent and Union executed a Memo-
randum of Agreement for Representation Election, to be con-
ducted by the Conciliation Service of the Department of
Industrial Relations, Human Resources Agency, State of
California. On April 30, the Regional Director issued his
order permitting the withdrawal of the petition with preju-
dice in Case 21-RC-13612.
Penasquitos Village, Inc.; Penasquitos Gardens, Inc.;
Penasquitso Hills, Inc.; and San Diego Leisure Life Village,
wholly owned subsidiaries of Penasquitos, Inc., all California
corporations, are each engaged in the business of operating
apartment houses adjoining the golf course in Rancho de los
Penasquitos, a housing and country club development in San
Diego, California. Respondent interchanges employees and
has a common manager and a common labor relations policy
under the control of a single individual. Respondent annually
derives gross revenues in excess of $500,000 and purchases and
receives goods and products valued in excess of $10,000 di-
rectly from suppliers located outside the State of California.
I find that Respondent constitutes a single integrated business
enterprise and a single employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Laborers' International Union of North America, Local
No. 89, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent operates a number of apartment houses con-
taining over 1,400 units in San Diego, California. Bill C.
Faurot is the resident manager and overall supervisor of all
employees, including inter alia, the maintenance men and
groundskeepers. At all times material to this proceeding,
Jesus Zamora was the supervisor of the outside maintenance
crew consisting of approximately 25 men in various job clas-
sifications. Antonio Rios and Ysidro Martinez both worked
on outside maintenance. Both men were hired in 1971 and
were terminated on April 12, 1974. Organizing activities
among the employees commenced in late 1973. Rios testified
that he and another individual tried to "initiate" the Union
in December 1973. In a statement given a Board agent during
the investigation of the charge, he stated that the-Union was
contacted about February 1974. Rios thought he became a
B. Interference, Restraint, and Coercion
Paragraph 9 of the complaint alleges that in November
1973, at an uncompleted building, Zamora threatened em-
ployees that they would be laid off because they engaged in
union activities. --
Armando Ruiz testified on direct examination that some-
time in November 1973, he, Zamora, and Ricardo Hernandez
were working on a roof next to the office when "Well, we
were working and we saw Joe Alvarado' drive up and so
Jesus Zamora asked me who was that guy, you know. We
thought he was a narc [narcotics agent) because of his car.
And I told him he was from the Union. And he asked me who
let the Union in, and I told him I didn't know. And then he
said whoever did was probably going to get his ass laid off.
That is all I can remember." He testified on cross-examina-
tion that when the car drove up, Zamora asked who the man
was and that "I told him that I didn't know," and that
Zamora then made a statement indicating that whoever
called him would get laid off. In response to questions by the
Administrative Law Judge, he denied he had told Zamora
that the man was from the Union because "I was too scared
to tell him" and that Zamora had gotten down from the roof
and found out from another -supervisor that the man who
drove up was from the Union.
Ricardo Hernandez, who Ruiz stated was working on the
roof along with Zamora and him, testified that he was not in
fact on the the roof but was downstairs nailing some boards
and did not overhear the conversation between Ruiz and
Zamora. Zamora, who is no longer employed by Respondent
and who impressed me as an honest and forthright witness, testi-
fied that he did not recall working on the roof with Ruiz, who
was an inside maintenance man, nor did he recall any conver-
sation with him about the Union. He testified, however, that
they rode to work together a few times and he might have
talked to him about the Union because everybody discussed
the Union with him openly and freely during work and he in
fact "thought they were all in the Union" and that it was a
good thing for them because they were underpaid. In the light
I A field representative and organizer for the Union.
PENASQUITOS VILLAGE, INC.
of Ruiz' equivocal testimony, and Hernandez' failure to cor-
roborate the alleged damaging statement, I conclude and find
that the General Counsel has failed to prove by a preponder-
ance of the credible evidence that in November 1973 Zamora
threatened employees that they would be, laid off because they
engaged in union activities as alleged in paragraph 9 of the
complaint.
Paragraph 10 alleges that in November 1973 Zamora inter-
rogated employees about their union membership, sympa-
thies, and activities, and about those of their fellow em-
ployees.
Hernandez testified that in November, in a room adjacent
to the office where drapes are stored, Zamora "called me and
asked me if I went into the Union and signed for them. I told
him that this was the most convenient thing for everyone. For
himself as well as us. And that is all." He testified Zamora
"just smiled and left." His version of the conversation on
cross-examination was that Zamora said, "Hey, Ricardo, if
you can, if the Union comes in , are you going to sign with
them? And I said, that is the most convenient thing for all of
us." He testified Zamora did not respond, "He just smiled
and left." As Zamora failed to testify regarding this particular
conversation, I must assume that a conversation in which the
Union was mentioned did, ii fact, take place between Zamora
and Hernandez in November 1973. As noted above, Zamora
testified that everybody discussed the Union openly and
freely during work and that he thought the Union was good
for the employees because they were underpaid. The General
Counsel relies upon two statements attributed to Zamora to
show union animus, one in March and the other in April
1974.
Antonio Rios, an alleged discriminatee, testified that in
March 1974, about noon, he, Armando Ruiz, Miguel Gam-
boa, Ruben Velasquez, and several others overheard Zamora
and Ed Southerd, another of Respondent's supervisors, talk-
ing near the timeclock. He testified that "Zamora stated,
while stamping his foot to the ground with anger," and refer-
ring to the employees in an obscene manner, "that we were
going into the Union and therefore we were acting smart. But
even so, he could fire us and he was going to do it." On
cross-examination, he testified that Zamora, stamping his
foot, stated, "They think they are very smart because the
Union is coming in. But whether it comes in or not, whether
the Union comes in or not, I am going to try and I believe
I am going to be able to fire them." Southerd's response, he
testified, was to smile. Ruiz testified that at 8 o'clock one
morning when he, his brother Aurelio Ruiz, and another
employee named Mike were getting ready to go to work, he
overheard Zamora refer to the employees with the same ob-
scene expletive which Rios testified Zamora had used, and
that Zamora went on to say, "just because they think they are
getting the Union in, they are going to do whatever they feel
like doing. Bastards!" Asked specifically by the General
Counsel if Zamora mentioned the word "fire" during the
conversation, Ruiz stated, "No, he just said they [the
employees] were going to do whatever they felt like. That is
all he said." On cross-examination, Ruiz testified that
Zamora stated, "Now that we got the Union in, we [the
employees] weren't going to do what we wanted." Zamora
testified that he and Southerd discussed the Union several
times, principally about when the Union was coming in, but
883
that he couldn't state exactly when or what was said. No
other witnesses were called by either side to shed any further
light on the incident. I am constrained to believe, however,
and,I so find, that Zamora did not state, as Rios contends,
that "he could fire us and he was going to do it." While Rios
and Ruiz placed the conversation which they overheard at
different times, Rios at noon and Ruiz at 8 a.m., I am con-
vinced the two were testifying to the same purported conver-
sation, and Ruiz specifically denied that Zamora used the
term "fire." Further, Zamora did not impress me as the "foot
stomping" type that Rios portrays him. Moreover, Rios'
animosity toward Zamora was evident throughout his tes-
timony, characterizing him at one time as crazy, and unable
to "think as an honest person." Furthermore, as will be seen
hereafter, Rios testified in a contradictory manner regarding
his termination. I find, therefore, that the General Counsel
has failed to establish Zamora's animus towards the organiz-
ing activities of the Respondent's employees or-that Zamora's
conversation with Hernandez was either calculated to dis-
courage, or tended to discourage and deter employees in their
Section 7 rights. Accordingly, the General Counsel has failed
to establish by a preponderance of the credible evidence that
Zamora unlawfully interrogated employees as alleged in
paragraph 10 of the complaint.
Paragraph 11 alleges that in April 1974, in the employees'
cafeteria, Zamora interrogated employees about their union
membership, sympathies, and activities, and about those of
their fellow employees.
Jose Cuevas testified that on April 4, following an injury
and a trip to the doctor, he was sitting in the cafeteria when
Zamora came in. Cuevas testified that during the conversa-
tion which ensued, "I asked him if it was possible to go into
the Union. And he answered me that it was possible because
the son-of-bitches, when they got a company, they'didn't let
go of it, until they got it in the Union. That it was not possible
to go in right away, but later on he was going in.2 Then he
asked me who was the one who started . . . the Union. And
I answered that it was Tony Rios and Ysidro Martinez, Ra-
mon Valdez [and] Rodriguez." Cuevas acknowledged on
cross-examination that Zamora didn't ask him how he felt
about the Union, didn't tell him not to join the Union, express
any feeling about whether the Union was good or bad for the
employees, or threaten to terminate anyone if they joined the
Union.
Zamora testified that he remembered talking to Cuevas
following his injury, and that while he couldn't relate the
conversation, he thought they discussed politics or the United
States Government. He acknowledged the fact the-subject of
the Union may have come up since "like I said, the Union was
discussed by everyone, you know. It was the thing." He testi-
fied that he felt all of the employees employed by Respondent
,more or less" were for the Union because all of the em-
ployees discussed it openly during work; and that he never
attempted to find out which employees were doing the organ-
izing because, through conversations with them, "I thought
they were all in the Union ... .
In Frito-Lay, Inc., 151 NLRB 28, 34 (1965), the Board held
that not every interrogation of employees is violative of Sec-
2 On cross-examination, Cuevas denied that Zamora stated he was "going
to get into the Union "
884 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(a)(1) of the Act, the test being "whether under all these
circumstances, the interrogation reasonably tends to restrain
or interfere with the employees in the exercise of their rights."
The circumstances of this alleged interrogation plainly does
not fallwithin that test. It must be remembered that Cuevas
initiated the conversation about the Union, indicating, as
Zamora testified, his close relationship with the employees
and their practice of free and open discussion of the Union,
even during working hours. Further, the timing of the alleged
interrogation is an important factor. The union organizing
activities had commenced in November 1973, and presuma-
bly authorization cards had been obtained between then and
the date of the filing of the petition on February 25. There is
no evidence that Zamora or any other of Respondent's offi-
cials did.anything during this time to hinder the solicitation
of employees, although Zamora admitted he knew of the
organizing activities and felt through discussions with the
employees that they were all in favor of the Union. Had he,
in fact, been bent upon ascertaining the names of the em-
ployees responsible for contacting the Union, he would have
done so long before April 4. Moreover, the record is void of
evidence that the Respondent used the delay between the
filing of the petition and the April 25 election conducted by
the State of California, Department of Industrial Relations,
to gain time to undermine the Union. In sum, I conclude and
find that the limited query of Cuevas, even if it did occur,
does not constitute substantial proof of interference, restraint,
or coercion such as warrants remedial action under the Act.
See, for example, Dieckbrader Express, Inc., 168 NLRB 867
(1967); Frito-Lay, Inc., supra
C. The Discharges
Both Antonio Rios and Ysidro Martinez began working
for Respondent in 1971 and were terminated by Zamora
during the afternoon of April 12. The General Counsel con-
tends they were terminated for their union or other protected
concerted activities, while the Respondent contends they
were terminated because their work was not satisfactory.'
Martinez testified that in late 1973 he attended several
union meetings, and that, while an individual whose name he
didn't remember did most of the talking, all employees, him-
self included, talked in favor of the Union. He signed a union
authorization card on January 11, 1974.
Rios testified that he and Ramon (Velasquez) contacted
the Union in about December 1973 and shortly thereafter,
Rios, Ramon, and Valdez met with Joseph Alcoser, an organ-
izer for the Union, at the Seven-Eleven Store located 2 or 3
blocks from work. There were three union meetings held after
that which employees attended , a meeting at the Holiday Inn
in Escondido where a number of employees including Rios,
signed union authorization cards, and two other meetings at
the aforementioned Seven-Eleven Store. Rios testified that he
was the only one who spoke at the first meeting held with the
employees at the Holiday Inn. As noted above, Martinez
3 Martinez was returned to work on June 4, 1974, pursuant to an agree-
ment between the Respondent and the Union The Regional Director did
not give his approval of, nor participate in, the agreement The parties
stipulated that no inference should be drawn that the Respondent was
admitting any liability because of this action with respect to the allegations
in the complaint.
testified that while everyone talked in favor of the Union, an
individual whose name he didn't remember did most of the
talking. I find it hard to believe that Martinez would not have
remembered Rios as being the principal speaker, if in fact he
was. Armando Ruiz, a witness called by the General Counsel,
testified that neither Rios nor Martinez spoke at the Holiday
Inn meeting ; and Ricardo Hernandez, another witness called
by the General Counsel, testified that, while employees asked
questions, a union official was the only one who spoke at the
Holiday Inn. Accordingly, I do not credit Rios' testimony
that he was the only one who spoke at the Holiday Inn
meeting.
Rios testified that on the morning of April 12, which was
Good Friday, several employees asked him to request
Zamora for a half day off. He testified that he made the
request and that Zamora "said no, everyone to work."4 The
General Counsel contends the request "which in and of itself
was protected concerted activity, coming almost simultane-
ously with the Regional Director's Decision and Direction of
Election, aroused the fears expressed earlier by Zamora ...
that the employees would be able to do whatever they
wanted to if the Union did come in, and acted as the final
provocation which caused Zamora to decide to discharge
them [Rios and Martinez] for engaging in union and protected
concerted activities." Had nothing else occurred on April 12,
I might perhaps find some substance, insofar as Rios is con-
cerned, in the General Counsel's contention. In view of events
which transpired later in the day, however, I find no validity
to the argument.
Later that day, Rios and Martinez were working together
hoeing weeds when Zamora observed them watching some
girls attired in bikinis some distance away.' Zamora told
them that if they wanted to see women in bikinis, to punch
their timecards "and go to the beach." Zamora then con-
tacted Bill Faurot, Respondent's resident manager, to find
out if he had the authority, to hire and fire, stating he was
dissatisfied with the work Rios and Martinez were doing, and
wanted to let them go. Faurot informed him that he had the
authority to terminate employees with Faurot's approval.
Zamora explained the two men were very slow workers and
had not performed the work they were assigned to do. After
Faurot indicated he would respect Zamora's decision,
Zamora returned and advised Martinez and Rios they were
terminated because they had done very little work. Rios'
reaction to the termination was, "Well, I told Jesus that he
was probably firing me because of what we were doing be-
cause I imagine that he was aware of the Union or because
we were Mexican. And he didn't like the Mexicans of his own
race ... I told him that he was probably firing me because
of what we were getting started with, which is understood
with the Union." He also testified that neither he nor Zamora
said anything about the Union at the time of termination. At
one point in the trial he testified that he then told Zamora
that he "-Zamora had told Ysidro to work slowly because
beforehand he had already worked too much." At another
point he testified that the three of them then went to the office
where Rios told Zamora that it was wrong to terminate them
4 He had requested time off for the employees on several occasions
5 Martinez places this incident before lunch, and Rios testified it occurred
in the afternoon, approximately 20 rmnutes before they were terminated
PENASQUITOS VILLAGE, INC. 885
since they were working "and besides he had told Ysidro
Martinez to work slowly because he had worked too much on
other days." Martinez testified that when he_ started work
that morning, Zamora "he told me not to work too fast
because I had worked quite a bit before. He had seen me and
he told me not to work too fast" and that Francisco Lopez
and Joaquin Valdez were witness to the statement. Lopez was
not called as a witness. Valdez testified that he was working
with Martinez on April 11, and overheard Zamora tell Mar-
tinez "not to work too much."6 Zamora testified that he fre-
quently uses a Spanish word which is the equivalent to "take
it easy" and that he may have used the word that day. I am
convinced, however, that none of the employees construed
the term to mean they were authorized to slow down or do
less work. Valdez testified that only a week earlier he had
been admonished for working slowly, and on the very day of
the termination, Zamora had censured Rios and Martinez for
watching women in bikinis and told them to punch out and
go to the beach if they wanted to do that. Furthermore, Rios
and two other employees had been suspended for several days
in January for stopping work early .7
After telling Rios and Martinez they were terminated, all
three went to the office where, according to Rios, he asked
to talk to Faurot and also told Zamora "that I knew he was
firing me probably because of the Union, probably because we
were Mexican, and he didn't like his own race . . . . And he
laughed and he told me, think whatever you want and do
whatever you want, I don't care."8 Rios and Martinez then
talked to Faurot. Rios told Faurot that they had been work-
ing all day and were fired without motive, and that Zamora
had told Martinez to "take it easy." Faurot's response was to
6 Valdez further testified that about a week before the termination, "I was
in one yard and I was working slowly. And then he [Zamora] called this to
my attention. . He asked me why was I working so slow I told him that
the work where he had placed me was very hard. Well, he said, several of
you don't want to do anything because you already have the Union."
7 On cross -examination, Rios denied he had ever been suspended from
work. He later testified that in mid-January, about 10 or 15 minutes before
quitting time, he and Ricardo Hernandez had stopped working to discuss
who would fix a couple of sprinklers that had been reported broken, when
" . Jesus Zamora went by and he saw us stop and he became upset,
screaming , why were we stopped. That he didn't like that That he had been
sent from the office looking for a man who was slleeping in a laundromat.
He asked us if we knew who it was. We said we did not, to keep on looking
And then he told us that he was going to be scolded in the office for not
finding that person to punish her [sic] We told him that if he wanted to
punish one of us, so he wouldn't be punished in the office, to go ahead and
do it, to show him that we wanted to help him also, even though he didn't
deserve this. And therefore he decided he was going to reprimand or punish
all three of us . . . He told us that he was going to give us 3 days off but
he didn't give us any paper at all or anything. I was punished for 2 days only.
On the third day I went back to work " Zamora's version is that in the latter
part of 1973, between 4 and 4 30 p in., he and Southerd noticed Rios and
Ricardo and Manuel Hernandez standing around underneath a tree. After
watching them for 5 or 10 minutes , he approached them and asked what was
going on. The response was that they didn't have anything to do and were
lust waiting for the time to come so they could clock out. The three were
sent to the office where they were informed that they were going to be
suspended for a few days I credit Zamora's version of the incident since it
seemed more plausible and because Rios exhibited such an intense dislike
for Zamora during the trial that I am convinced he fabricated facts in an
effort to make Zamora appear as a scoundrel Noland v. Buffalo Insurance
Co, 181 F 2d 735, 738 (C.A. 8, 1950); L C. Sutton Handle Factory v.
N.L.R.B., 255 F.2d 697, 698 (C.A. 8, 1958), cert. denied 358 U S. 865.
8 Rios also testified that neither he nor Zamora mentioned the Union
when he was terminated and that he had advised the Board agent investigat-
ing the case that "nothing was said about the- Union "
the effect he doubted a supervisor would tell the employees
not to do their work, "especially when I was onto him to get
Leisure Life shaped up." Faurot then stated that he was going
to respect Zamora's decision because if he didn't back his
supervisors he wouldn't have much of an organization. He
stated that he would review the matter further and give them
a final decision when they came back for their checks on
Monday. About noon on Saturday, April 13, Joseph Al-
varado, the Union's field representative, talked to Faurot. He
advised Faurot that Rios and Martinez had contacted him,
and asked if Faurot knew that 100 percent of the employees
had signed up with the Union. Faurot responded that he had
not been aware of that fact and that it had no bearing on the
terminations , that he "expected, an honest 8 hours of work.
And that I was letting the men go because they had not
performed their work." On the following Monday, Rios had
another conversation with Faurot in which he "... informed
me [Faurot] and in fact he accused Jesus of smoking
marijuana among other things. And I said , well, it would be
hard to prove something of that nature. And I think I in-
formed him then that he should not indicate such things as
this." Faurot then advised Rios and Martinez that he was
"sticking to the decision that they were dismissed."
It is my opinion, and I find, that the General Counsel has
failed to prove by a preponderance of the evidence that the
discharge of Rios and Martinez was motivated by their union
or protected concerted activity. Rios and two others had been
suspended in late 1973 or early 1974 for stopping work early;
Valdez had been admonished but a week prior to the termina-
tion for working slowly; Rios testified that Zamora ".. .
wanted work. He demanded work." Furthermore, on the day
of their discharge, Rios and Martinez were told that they had
to work, and if they wanted to watch women wearing bikinis
they should punch their cards out and go to the beach. More-
over, Martinez admitted that he was working at a slow pace
on the day of his termination. To sum up, I find that the
evidence is insufficient to prove a violation of the Act in the
face of evidence which establishes a legitimate cause for the
terminations.
Upon the foregoing findings of fact and the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent constitutes a single integrated business enter-
prise and a single employer within the meaning of Section
2(2) of the Act, and is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent engaged in un-
fair labor practices proscribed by Section 8(a)(1) or (3) of the
Act.
[Recommended Order for dismissal omitted from
publication.]