Prototype Plastics, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 711 (N.L.R.B. 1987)

PROTOTYPE PLASTICS

711
Prototype Plastics, Inc. and Warehouse, Processing
and Distribution Workers' Union, Local 26,
International Longshoremen's and Warehouse-
men's Union. Case 21-CA-24547
30 June 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 18 March 1987 Administrative Law Judge
James S. Jenson issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed an answering briefl
and motion to strike the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, 2 findings,3
and conclusions, to modify his remedy, 4 and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Prototype
Plastics, Inc., Rancho Dominguez, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
The General Counsel moves to strike the Respondent's exceptions in
their entirety because, inter alia, they fail to set forth specifically the
questions of procedure, fact, law, or policy to which exceptions are taken
and fail to set forth with specificity the excepted-to portions of the
judge's decision. Sec. 102.46(b) of the National Labor Relations Board
Rules and Regulations states that any exception which does not comply
with the requirements of the section "may be disregarded." We find that
the Respondent's exceptions and brief adequately designate the portions
of the decision the Respondent claims are erroneous. See Churchill's Res-
taurant, 276 NLRB 775 fn 1 (1985); Rice Growers Assn. of California, 224
NLRB 663 fn. 1 (1976). Accordingly, we deny the General Counsel's
motion to strike the Respondent's exceptions m their entirety
We, however, grant the General Counsel's motion to strike three docu-
ments appended to the Respondent's exceptions and marked as Exhs.
"A," "B," and "C" These documents are not part of the record and,
thus, have been given no consideration. 0 G Industries, 269 NLRB 986
fn. 1(1984).
2 We find without merit the Respondent's allegations that the judge's
adverse rulings were an abuse of discretion. There is no basis for finding
that the judge abused his discretion merely because he resolved important
factual conflicts in favor of the General Counsel's witnesses.
3 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 credibihty resolutions unless the clear preponderance of all
the relevant evidence convmces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d (hr. 1951)
We haVe carefully examined the record and find no basis for reversing
the findings.
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
284 NLRB No. 82
Joel B. Martinez, for the General Counsel.
Warren M. Gordon, of Manhattan Beach, California, for
the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. I heard
this case in Los Angeles, California, on 25 September
1986, pursuant to a complaint, which issued on 29 May
1986. The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by failing and refusing
to recall employees Carlos Larios, Benjamin Larios, and
Juan Pacheco on 17 March 1986 1 because of their union
support and concerted activities, following a 13 March
layoff. The Respondent contends the 13 March layoff
was inspired by a lack of funds and that it terminated the
three employees for cause. All parties were afforded full
opportunity to appear, to introduce evidence, to examine
and cross-examine witnesses, to argue orally, and to file
briefs. Briefs were filed by both the General Counsel and
Respondent and have been carefully considered.
On the entire record in the case, including the demean-
or of the witnesses, and having considered the posthear-
ing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted and found that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that Local 26 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent is engaged in the manufacture and
distribution of fiberglass and plastic products in Rancho
Dominguez and Santa Fe Springs, California. Gary
Osko, George Crabtree, and Alan Mittleman are Re-
spondent's owners. Osko is president; Crabtree is vice
president; Dennis Aramaki is operations and personnel
manager; Mike Camargo is plant manager; Sergio Larios
is tooling manager; Santos Larios is mold preparation
production control supervisor; Roy Bowen is shipping
manager; Jesus Contreras is finish leadman and Jose
Leon is shop manager and laminator leadman. It is al-
leged, admitted, and found that Osko, Camargo, and Jose
Leon are supervisors and agents within the meaning of
Section 2(11) and (13) of the Act. The record also estab-
lishes, and I find, that Crabtree and Aramald are also Re-
spondent's supervisors and agents within the meaning of
the Act.
In early 1986 Respondent had approximately 25 em-
ployees. The alleged discriminatees, Carlos Larios, Ben-
All dates are in 1986 unless stated otherwise.
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
jamin Larios, and Juan Pacheco, were in the laminating
department. Jose Leon was their leadman.
In February, approximately seven employees in the
laminating department, including the alleged discrimina-
tees, contacted the Union. While the record does not dis-
close how many employees signed authorization cards,
Carlos Larios testified that he passed out 22 or 23 cards
in the Respondent's parking lot, lunch area, and union
hall. Benjamin Larios testified he also passed out authori-
zation cards. By letter dated 11 March, received by Re-
spondent on 14 March, the Union requested recognition
on the ground it represented an "overwhelming majori-
ty" of the Respondent's production and maintenance em-
ployees. On 13 March, Respondent laid off all of its em-
ployees with the exception of those in shipping and re-
ceiving. On 14 March, the Union filed a petition in Case
21-RC-17762 requesting an election in a unit comprised
of production, maintenance, shipping, and receiving em-
ployees. An election was held, the Union lost, and the
results were certified.
The Respondent's policies and procedures manual con-
tains a four-classification payscale 2 and recites that:
Pay increases will be determined either by automat-
ic increases or by merit raises and will be decided
upon at evaluation and review. Evaluation (Merit
Raise) of each employee will be conducted at the
end of each three (3) month period and review at
the end of every six (6) month period. . . . Merit
increases will be awarded for having good evalua-
tions and reviews. . . . Automatic raises (reviews)
will be awarded every six (6) months for standard
or average performance at the rate of .15 per hour.
For less than standard or average performance, the
employee may be subject to a written reprimand.
Written reprimands will determine whether or not
the automatic raise will be given. Policy on repri-
mand: One (1) written reprimand in a quarter (3
months) will rule out the automatic raise. Three (3)
reprimands in one (1) year may be cause for dismis-
sal.
This case involves the failure to recall three employees
following the 13 March layoff.
1. Carlos Larios
Carlos Larios was hired in April 1977 as a laminator
and is one of five brothers employed by Respondent.
Sergio Larios, as noted above, is tooling manager; Santos
is mold preparation production control supervisor; Ben-
jamin, an alleged discriminatee, was a laminator; and
Victor, who worked under the last name of Guzman, is
also a laminator.
As noted above, Carlos Larios was one of approxi-
mately seven employees who contacted the Union in
2 The warehouse and factory employees' payscale, as set forth in the
employee manual, hats the following rates per hour:
Leadman 7.50
Class A 6.50
Class B 5.50
Class C 3.50
February, and he was instrumental in passing out union
authorization cards. He testified that he and Jose Leon
were friends and that the employees had told Leon that
the solution to getting better benefits was to "bring in a
union." Leon had said, "It was okay, it was all right."
Later, he testified, Leon "asked me how the thing was
going on. And I told him everything is okay, and I have
some cards they gave me. And they told me that you
maybe can be with us—you maybe can get into the
Union, I told him. He said all right. Then I told him, "I
have a card for you if you want it." Then he said, 'Well,
I don't want to sign it because I am part of the Compa-
ny. But if Santos [Larios] and Sergio [Larios] sign it, I
will do it too." Carlos then asked Leon some questions
regarding the shipping department where Leon's wife
worked, which Leon apparently declined to answer. He
denied having ever threatened Leon or his wife in any
way. 3 He also denied having ever received a written
reprimand or warning even though he missed a day of
work in December 1985. He further denied having ever
engaged in a work slowdown.
Carlos testified, at the end of the workday on 13
March, Crabtree called all the employees together and
told them that everyone was laid off because the Compa-
ny was out of money; that they should apply for unem-
ployment benefits; that the Company had applied for a
bank loan, but they did not know when the loan would
go through; and that everyone would be called back
when the Company got the loan, which could be from 2
weeks to 3 months.
On 27 March, Carlos received the following by certi-
fied mail (G.C. Exh. 6):
Notice of Termination of Employment
Date:1 3/18/86
To: Carlos Larios
This is to notify you that your employment with
Prototype Plastics, Inc. is terminated effective
3/13/86.
The reason for discharge is due to the following
[sic]:
X Violation of Company Rules
X Unsatisfactory Work
Absenteeism
X Insubordination
Refused Assigned Work
X Misconduct
Other
/s/Michael R. Camargo
Supervisor 3/26/86
/s/Gary L. Osko
Corporate Officer 3/24/86
Carlos testified that, approximately 3 or 4 weeks prior
to the 13 March layoff, he received a 15-cent hourly
raise to $6.85 per hour.
3 The substance of this conversation was corroborated by Juan Pa-
checo.
PROTOTYPE PLASTICS 713
2. Juan Pacheco
Pacheco worked for Respondent as a laminator from
September 1984 until the 13 March layoff, when he was
making $5.25 per hour, having received a 25-cent wage
increase in February. Pacheco was among the seven em-
ployees who first met with a union representative. He
testified that during a work break in mid-February, Jose
Leon asked him if the employees were organizing and
warned them to be very careful because the Company
could call immigration; that he and his brother had tried
to organize while working for another employer and had
been laid off; that he could be trusted not to say any-
thing; and that when the Union came in, he was going to
be on the employees' side. He was present when Carlos
Larios asked Jose Leon to sign a union authorization
card and corroborates the substance of Carlos' testimony
with respect to that conversation. He denied he had ever
received any kind of warning from the Company. He
testified that at the time of the 13 March layoff, employ-
ees were told they would be called back. He later re-
ceived a notice of termination of employment dated 17
March notifying him that he had been terminated effec-
tive 13 March for "Violation of Company Rules, "Insub-
ordination," and "Misconduct" (G.C. Exh. 7). A "back-
up" memorandum signed by Crabtree is dated 4 days
after his termination and reads:
Date: 3/21/86
Name: Juan Pacheco
Subject: Reprimand
Causing work stoppages in his area as well as influ-
encing employees in other departments to slow
down production, agitating and conspiring to cause
other employees to lose their job by false accusa-
tions.
Pacheco was unaware of its existence.
3. Benjamin Larios
Benjamin started working for Respondent as a lamina-
tor in 1983 and was making $6.50 per hour at the time of
the 13 March layoff, having received a raise of 20 cents
per hour in February. He testified that on one occasion
Camargo had asked him whether he would like to be a
leadman because he knew how to do everything, and he
responded affirmatively.
After the employees had organized, he testified he had
another conversation with both Jose Leon and Camargo.
Leon told him that the Respondent was going to open
another facility in Santa Fe Springs, California; Leon
would be going to the new location; and Benjamin
would remain in Rancho Dominguez in his, Leon's,
place. Caniargo told him that, if he was going to become
a leadman, he should start learning how to give orders to
the employees. Benjamin was one of the seven employ-
ees who originally contacted the Union. He testified that
he also passed out authorization cards and that he told
leadmen Jesus Contreras and Jose Leon the employees
had gone to the Union and asked them to sign cards,
which they declined. He denied ever receiving a warn-
ing from the Company prior to the layoff. While the
record shows his name on a 24 March list of employees.
"eligible for rehire and should be considered for any cur-
rent open positions" (G.C. Exh. 12), approximately a
month later he received the following (G.C. Exh 10):
Notice of Termination
4/22/86
To: Benjamin Larios
This is to notify you that your employment with
Prototype Plastics, Inc. is terminated effective
3/22/86.
The reason for your discharge is due to the follow-
ing:
Insubordination
Misconduct
/s/Michael A. Camargo
Supervisor 4/22/86
/s/George W. Crabtree
Corporate Officer 4/22/86
A "backup" to the letter of termination bears the same
date and states (G.C. Exh. 11):
Name: Benjamin Larios
Subject: Reprimand
Causing work stoppages in his department as well
as influencing employees in other departments to
slow production, and attempting to cause other em-
ployees to lose their jobs by the aforementioned ac-
tivities.
By Os/Gary L. Osko
Title: President
Benjamin was not made aware of its existence.
B. Respondent's Defense
Denying that it had any knowledge of union activity
until 14 March, the Respondent contends the 13 March
layoff was for economic reasons and that the alleged dis-
criininatees were not recalled because of valid business
considerations.
Osko testified that prior to 13 March, the Respondent
had borrowed $150,000 from the bank to expand, but
that by 13 March, several things had happened—like all
of a sudden the product wasn't being made or shipped
properly, and we were losing a lot of money As a
matter of fact, the money we had borrowed was com-
pletely gone by that time. And we decided to lay off the
production unit so that we could reassemble the produc-
tion unit to find out where the problems really were be-
cause no one could really give us answers." Consequent-
ly, they decided to "clear everyone out of the factory,
assess what we had left, and start at the beginning." He
went on to testify that there had been a fire caused by
negligence that no one wanted to talk about and there
was a lot of intimidation as well as the work habits of
employees that required investigating, in addition to
which work slowdowns had caused a loss of money. As
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the investigation progressed, "facts surfaced as to why
we weren't getting the work produced. And the determi-
nations were made on the conduct of the employees and
who organized the work stoppages or slowdowns . . .
and who participated and for what reasons. And, also,
there were some threats made to other employees, and
we felt that people who made threats are not . . . the
quality we'd like to have as employees. We don't feel in-
timidation is a thing we could have within our company.
Those are the things we based our terminations on."
Osko testified he discussed the terminations with Crab-
tree, Mittleman, Aramaki, Camargo, Bowen, and Jose
Leon and that there was total agreement on who should
be terminated. He went on to testify that Juan Pacheco
was terminated because he had engaged in a work slow-
down in February because he needed more money to
live on and that Carlos and Benjamin had cooperated
with him, as did the entire laminating department, in-
cluding Jose Leon. Another reason for terminating Pa-
checo, he testified, was the fact Pacheco did not respond
to directions from his leadman, which was insubordina-
tion. Another reason was that he helped to organize
work stoppages.
According to Osko, the decision to terminate Benja-
min Larios was made on Friday, 21 March, and that Jose
Leon, Camargo, and "probably" Aramaki participated in
the decision-making process. While Benjamin's recall had
been under consideration for a week, after talking to Jose
Leon, Osko felt that Leon had been threatened and was
intimidated by Benjamin. He testified that the names of
Pacheco and Carlos Larios were also brought up with
respect to threats against Leon and his wife. In an inves-
tigatory affidavit given a Board agent, Osko stated that
Benjamin was not recalled because, on or about 27
March, he learned that Jose Leon had told Camargo that
Benjamin and Juan Pacheco had threatened bodily harm
to Jose Leon and his wife if they revealed their union ac-
tivities. Benjamin's termination was delayed until 22
April pending a thorough investigation of the allegation.
Carlos Larios was not eligible for recall, according to
Osko, because of his participation in slowdowns, influ-
encing slowdowns in other departments, his work was
not "up to the par of the rest of the people" in laminat-
ing, "It was a little sloppy" and he was slower. The oc-
casions of slowdowns were when Pacheco and Carlos
Larios received their raises in February.
Crabtree testified that discussions regarding the layoff
had taken place 2 'weeks before the layoff, and that it
was prompted because the Company could not afford to
pay the employees. The layoff took place on Thursday
because Crabtree was going to be out of town from
Friday until Monday. He testified that the final decisions
on what employees would be called back was to be
made after his return. Pacheco, he testified, was termi-
nated "Due to work slowdowns and insubordination, not
following instructions on doing his job."
Camargo denied he knew of union organizing activi-
ties prior to the March.13 layoff. He acknowledged stat-
ing in an affidart given to a Board agent, however, that,
"I do recall that on one occasion, I don't recall the exact
date Leon asked me if I had seen all the employees' cars
lined up outside. Leon said that the employees were
going to a union meeting?' As the employees were all
laid off 13 March, I conclude this conversation preceded
that date. He also testified that Jose Leon told him "that
somebody threatened him if he ever say [sic] something,"
but that Leon did not say who had made the threat, and
he did not pay any attention to it because everyone
bluffed and made fun of each other. He specifically
denied telling anyone what Leon had said.
Aramald testified that he participated in the decision
not to recall the three men, and that on 13 March he rec-
ommended they all be fired because of work slowdowns
which they "probably" caused. He testified he had earli-
er recommended the terminations of Carlos and Benja-
min Larios because they had failed to return to work the
Monday following Christmas, but that Crabtree declined
to do so, and that he had recommended the termination
of all three men "almost a year before" the layoff. Ara-
main places the alleged slowdown involving the lamina-
tors that resulted in a raise of 15 cents per hour for Pa-
checo, in September 1985. At that time, he testified, he
was approached because the laminating department
wanted to have a slowdown. Carlos, Benjamin, and Juan
Pacheco were the "main spokespeople" for the whole
group of laminators that Aramaki assembled. He learned,
however, that the real purpose of the group was to get a
raise for Pacheco instead of for the whole group. Con-
cluding that there was a "home hardship," he gave Pa-
checo a 15-cent-an-hour merit wage increase. He testi-
fied, however, that he recommended the discharge of the
three men at that time, but that Osko and Crabtree
would not go along with it. In October 1985, the Com-
pany loaned Pacheco $600, which he was to repay at $30
per week. If Pacheco received a further raise in Febru-
ary, he testified, it would have been an automatic raise.
C. Discussion
Section 7 of the Act guarantees employees "the right
to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining." Section
8(a)(1) of the Act implements those guarantees by
making it an unfair labor practice for an employer "to
interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in Section 7." Section
8(a)(3) makes it an unfair labor practice for an employer
"by discrimination in regard to hire or tenure of employ-
ment. . . to encourage or discourage membership in any
labor organization." It is axiomatic that an employer vio-
lates these provisions by discharging or failing to recall
from layoff an employee because of union activities.
Whether the discharge of an employee is unlawful de-
pends on the employer's motive, and because an employ-
er will rarely concede that a discharge was prompted by
a discriminatory motive, the Board may infer an unlaw-
ful motive from circumstantial evidence. Relevant cir-
cumstantial evidence supporting an inference of unlawful
motivation includes the failure of an employer's testimo-
ny to withstand scrutiny. Shattuck Denn Mining Corp. V.
NLRB, 362 F.2d 466 (9th Cir. 1966). Such is the case
here.
PROTOTYPE PLASTICS 715
While the Respondent contends it did not have knowl-
edge of any union activity until 14 March, the day fol-
lowing the layoff, the record evidence convinces me oth-
erwise. Carlos Larios testified without contradiction that
he had talked to Jose Leon about "bring[ing] in a union",
that at a later date Leon had asked him how the organiz-
ing was progressing, and that he asked Leon to sign an
authorization card. Pacheco testified, also without con-
tradiction, that in mid-February Leon asked him about
organizing, and warned him to be careful because the
Respondent could call the immigration service. 4 Benja-
min Larios also testified without contradiction that he
had told both leadman Leon and leadman Contreras that
the employees were organizing and asked them to sign
authorization cards. Moreover, while Plant Manager Ca-
margo testified that he had no knowledge of union orga-
nizing prior to the 13 March layoff, he admitted having
given a sworn statement to a Board agent stating that
Leon had told him about the organizing activities of the
employees and on one occasion, "Leon asked me if I had
seen all the employees' cars lined up outside. Leon said
that the employees were going to a union meeting."
Leon was not called to testify nor did Respondent offer
any explanation for its failure to call him An inference
adverse to the party who fails to call witnesses otherwise
available to it, or neglects to explain the failure to call
such witnesses, has been established law since the early
days of the Board. Freuhauf Trailer Co., 1 NLRB 68
(1936), 85 F.2d 39 (6th Cir. 1936), 301 U.S. 49 (1937), re-
versing circuit and enforcing the Board. The failure to
produce such a critical witness suggests that his testimo-
ny would have been adverse to the Respondent's posi-
tion. Interstate Circuit v. U.S., 306 U.S. 208, 226 (1939);
Golden State Bottling Co. v. NLRB, 414 U.S. 168, 183 fn.
5 (1975). Leon and Camargo are both admitted supervi-
sors and agents of Respondent. It is well established that
such knowledge by a supervisor is imputable to his em-
ployer. See, for example, Red Line Transfer Co., 204
NLRB 116 (1973). Accordingly, it is found that the Re-
spondent had knowledge of the union activities of
Carlos, Benjamin Larios, and Juan Pacheco before the 13
March layoff. Thus, the testimony of Respondent's wit-
nesses to the contrary is not credited.
Assuming that the 13 March layoff was unrelated to
union activity, however, it is nevertheless clear that the
Respondent had knowledge on 14 March, through the
Union's request for recognition, that its employees' inter-
est in the Union was for real and that the organizing ef-
forts of Carlos and Benjamin Larios and Juan Pacheco
had been successful.
I turn now to the reasons advanced by Respondent for
its failure to recall the three alleged discriminatees.
1. Juan Pacheco
Pacheco's notice of termination of employment dated
17 March states he was terminated effective 13 March
for three reasons: (1) violation of company rules, (2) in-
subordination, and (3) misconduct. Osko stated Pacheco
was terminated for engaging in a work slowdown in
February because he needed more money and that
Carlos and Benjamin and the entire laminating depart-
ment, including leadman Jose Leon, had cooperated with
him. 5 Another reason for discharge was the fact Pacheco
did not respond to directions from leadman Leon, which
constituted insubordination. Misconduct, apparently, was
Pacheco's alleged help in organizing work stoppages
and/or alleged threats made against Jose Leon and his
wife. According to Crabtree, Pacheco was terminated
because of the slowdowns, insubordination, and not
doing his job. Aramaki impressed me with being overly
enthusiastic about portraying the three men as unsatisfac-
tory employees. He testified that on 13 March he recom-
mended the termination of all three men because they
"probably" caused work slowdowns. He also testified
that a meeting was held in Crabtree's office on 14 March
with Osko, Crabtree, Bowen, Camargo, and himself.
Crabtree and Osko testified that Crabtree was out of
town on 14 March. Aramald claimed he had recom-
mended that all three be discharged "almost a year
before" the 1986 discharges. He further characterized
Carlos, Benjamin, and Pacheco as the "main spokespeo-
ple" for all the laminators. He acknowledged giving Pa-
checo a "merit" wage increase in September 1985 and
that the Respondent loaned Pacheco $600 in October
1985. Again, the absence of testimony from Jose Leon is
conspicuous. Carlos Larios denied there was a slow-
down. It is noteworthy that, if indeed there was a slow-
down, a fact about which I am not convinced, no action
was taken against the spokespersons at that time instead
of waiting until after Respondent became aware of their
union interests. It is also worth noting that, although
Jose Leon purportedly took part in the slowdown, there
is no evidence any disciplinary action was taken against
him. In my view, Respondent's supervisor would be the
natural target for discipline for participating in either a
work stoppage or slowdown. In short, I do not credit
the testimony of Respondent's witnesses, all hearsay in
nature, that the two Larios brothers or Pacheco engaged
in any slowdowns or work stoppages as claimed. Al-
though Osko testified that Pacheco did not respond to
directions from leadman Leon, which constituted insub-
ordination, no evidence of such was offered, and in the
absence of testimony from Leon, I am convinced none
exists. Also, in the absence of testimony from Leon, and
in view of the denials from the three men that they
threatened Leon, I do not credit the hearsay testimony
of Respondent's witnesses that any of the three discri-
minatees threatened Leon and/or his wife. Moreover,
Osko's investigatory affidavit states that "Camargo told
me Leon told him that Benjamin and Pacheco had said
that if Leon and Letitia [Leon's wife] said anything
about the union they would take care of them, to the
point that they would be hospitalized. Camargo reported
this to me on or about March 27, 1986." Camargo, how-
ever, denied he told anyone of the alleged threat. Thus,
Osko could have had no knowledge of any alleged threat
by Pacheco at the time of Pacheco's discharge for two
reasons: Camargo did not tell him, and the purported
4 While not specifically stated on the record, I surmise from the record
that some of the Respondent's employees were undocumented aliens. 5 Aramaki claimed the slowdown was in September 1985.
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
knowledge postdates Pacheco's termination date. I am
convinced the alleged threat against Leon is a total fabri-
cation. Furthermore, the raises given Pacheco, the loan
made to him, and the total absence of any credible evi-
dence of reprimands or warning notices convince me
that the reasons advanced for the termination of Pacheco
are a pretext manufactured to shield the actual reason
which was his activities on behalf of the Union.8
2. Carlos Larios
Carlos' notice of termination of employment sets forth
four reasons: (1) Violation of company rules, (2) unsatis-
factory work, (3) insubordination, and (4) misconduct.
Osko stated he was terminated for participating in slow-
downs, influencing slowdowns in other departments,
and, according to reports from Leon and Camargo, his
"work wasn't up to par. . . . It was a little sloppy. . . .
His work was slower than most of the other folks and
the quality just wasn't as good. There was a lot of air
left in the parts, etcetera."
For reasons stated above with respect to Pacheco's
discharge, I do not credit the testimony of Respondent's
witnesses with respect to any of the three discriminatees
having engaged in slowdowns or work stoppages as
claimed, nor that any of the three threatened Leon
and/or his wife. With regard to the quality of Carlos'
work, Leon did not testify and Camargo, although called
as a witness by Respondent, failed to testify that Carlos'
work was deficient m any way. There is an absence of
credible evidence that Carlos had ever received any
written reprimands or warning notices. He was a Class
"A" employee on the pay scale and received a pay raise
in February to $6.85 per hour, which would appear to
make him one of the highest paid employees below lead-
man (see pay schedule at fn. 2). In sum, the evidence
convinces me that the reasons given for his termination
are a pretext, and that Carlos would not have been ter-
minated but for his union activity.
3. Benjamin Larios
Benjamin's notice of termination dated 22 April gives
as the reasons for his discharge effective 22 March (1) in-
subordination and (2) misconduct. Osko claimed he was
terminated because of his involvement in work stoppages
or slowdowns and threats against Leon, which also in-
volved Carlos and Pacheco. Although Osko claimed he
found out about the threats on 20 or 21 March, he held
up Benjamin's termination until he had made a more
thorough investigation of the allegations. 7 One of the
reasons advanced for the termination of Pacheco on 17
March and of Carlos on 18 March were the threats
against Leon that involved all three men Thus, it is seen
that if I were to credit Osko's testimony regarding Ben-
jamin's termination, Pacheco and Carlos would have
been terminated for threats against Leon which Osko
had no knowledge of. As previously found, I do not
credit Respondent's witnesses with respect to slow-
6 The repnmand in his file postdates his termination, and was obvious-
ly prepared to bolster the legitimacy of Respondent's defense.
7 In his affidavit, Osko stated he learned of the alleged threats on or
about 27 March.
downs, work stoppages, or threats directed toward Leon
and/or his wife.
It is clear that until his union involvement, Benjamin
had been a highly regarded employee. In February, he
received a 20-cent-per-hour raise to $6.50 per hour,
which, like Carlos, placed him in the Class "A" pay cat-
egory. Prior to his union activity, he had been under
active consideration for a leadman's position. Other than
the written reprimand dated 22 April, which had been
prepared specifically to back up his termination effective
a month earlier, there was no evidence he ever received
any written reprimands or warnings. The foregoing and
the record as a whole convince me that Respondent's
reasons for terminating Benjamin are false and a pretext
to cover up the fact he was terminated for his activites
on behalf of the Union. By its conduct in terminating all
three men because of their union activities, Respondent
violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By terminating Juan Pacheco, Carlos Larios, and
Benjamin Larios because of their support for Warehouse,
Processing and Distribution Workers' Union, Local 26,
International Longshoremen's and Warehousemen's
Union, Respondent violated Section 8(a)(3) and (1) of the
Act.
4.The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. I shall rec-
ommend that Respondent offer Juan Pacheco, Carlos
Larios, and Benjamin Larios immediate and full reinstate-
ment to their former jobs, dismissing, if necessary any re-
placements or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their seniority
and other rights and privileges, and make each of them
whole for any loss of earnings they may have suffered
by reason of Respondent's discrimination against them,
by payment of a sum of money equal to that which they
normally would have earned as wages from the date of
their discharges to the date of the respective offers of re-
instatement, less net earnings during such period with
backpay computed on a quarterly basis in the manner es-
tablished by the Board in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon, as set forth in
Florida Steel Corp., 231 NLRB 651 (1977). 8 I shall also
recommend that Respondent remove from its records
any reference to the unlawful discharges and shall pro-
vide each of the discriminatees with written notice of
such expunction and inform each that the discharges will
8 See generally Isis Plumbing, 138 NLRB 716 (1962)
PROTOTYPE PLASTICS 717
not be used as a basis for further personnel actions con-
cerning him.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The Respondent, Prototype Plastics, Inc., Rancho Do-
minguez, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in, support for, or activi-
ties on behalf of Warehouse, Processing and Distribution
Workers' Union, Local 26, International Longshoremen's
and Warehousemen's Union, or any other labor organiza-
tion, by discharging, refusing to recall from layoff, or
discriminating in any other manner against any of its em-
ployees in regard to their hire and tenure of employ-
ment, or any term or condition of employment, because
of their union membership, sympathies, or activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Jtian Pacheco, Carlos Larios, and Benja-
min Larios immediate and full reinstatement to their
former or substantially equivalent jobs, dismissing if nec-
essary any replacements, without prejudice to their se-
niority or other rights previously enjoyed, and make
them whole for any loss of pay suffered by reason of the
discrimination against them, in the manner set forth in
the remedy section of this decision.
(b) Remove from its files and all other records any ref-
erence to the unlawful discharges of Juan Pacheco,
Carlos Larios, and Benjamin Larios and notify each of
them in writing that this has been done and that evi-
dence of the unlawful discharges will not be used against
him in any. way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze and determine the amounts of backpay
due under the terms of this Order.
(d) Post at at each of its facilities in Rancho Domin-
guez and Santa Fe Springs copies of the attached notice
marked "Appendix." 1 ° Copies of the notice, which shall
9 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.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
be in Spanish and English, on forms provided by the Re-
gional Director for Region 21, after being signed by the
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in, support for,
or activities on behalf of Processing and Distribution
Workers' Union, Local 26, International Longshoremen's
and Warehousemen's Union, or any other labor organiza-
tion, by discharging, refusing to recall from layoff, or
discriminating in any other manner against any of our
employees in regard to their hire and tenure of employ-
ment, or any term or condition of employment because
of their union membership, sympathies, or activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer Juan Pacheco, Carlos Larios, and Ben-
jamin Larios immediate and full reinstatement to their
former or substantially equivalent jobs, dismissing if nec-
essary any replacements, without prejudice to their se-
niority or other rights previously enjoyed, and WE WILL
make them whole for any loss of pay they may have suf-
fered because of the discrimination which we inflicted on
them, together with interest.
WE WILL remove from our files and all other records
any reference to the unlawful discharges of Juan Pa-
checo, Carlos Larios, and Benjamin Larios, and notify
each of them in writing that this has been done and that
evidence of the unlawful discharges will not be used
against him in any way.
PROTOTYPE PLASTICS, INC.