Pur O Sil, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1974

211 N.L.R.B. 333 (N.L.R.B. 1974)

HADBAR, DIVISION OF PUR 0 SIL, INC. 333
Hadbar, Division of Pur 0 Sil, Inc. and Stove, Furnace
& Allied Appliance Workers International Union of
North America, Local 158, AFL-CIO. Cases
21-CA-1173 5 and 21-CA-11840
June 11, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 13, 1973, Administrative Law Judge
Henry S. Salim issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
a supporting brief, and a reply brief and the General
Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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 consistent herewith.
The Administrative Law Judge found that Respon-
dent's layoff of employee Jeanne Buccola was
discriminatorily motivated in violation of Section
8(a)(3) of the Act. The Respondent excepted to the
Administrative Law Judge's finding, contending that
the complaint alleged only Respondent's failure to
recall Buccola as being violative of the Act. The
Respondent further contended that Respondent's
failure to recall Buccola was not discriminatorily
motivated. We find merit in Respondent's excep-
tions. We note, in regard to the Administrative Law
Judge's finding that Buccola's layoff was violative of
the Act, that during the course of the hearing counsel
for the General Counsel specifically disavowed an
allegation that Buccola had been laid off for her
union activities. Under these circumstances we
believe that it would be prejudicial for us to make a
finding that Buccola's layoff violated the Act.' We
also find merit in Respondent's contention that the
record fails to establish that Respondent's failure to
recall Buccola was discriminatorily motivated.
As found by the Administrative Law Judge,
Buccola was laid off on March 9, 1973, allegedly for
lack of work. The Administrative Law Judge found
based on credited testimony that, within 2 weeks
after Buccola's layoff, Respondent hired "contract"
labor to perform Buccola's duties. The Respondent's
president testified that the switch to contract labor
was made because it was less costly, in that
Respondent could use contract labor for only the
number of hours in a day it was needed, and because
it reduced Respondent's unemployment compensa-
tion premiums. Furthermore, Buccola had the least
seniority in her department and subsequent to her
layoff two other employees were transferred out of
that department.
As evidence of Respondent's knowledge of Bucco-
la's union activities, the Administrative Law Judge
found that on April 24, 1973, Buccola saw Respon-
dent's president, Buchanan, and Respondent's pro-
duction manager, Hagan, standing in a window
watching her distribute union literature. Respondent,
however, introduced into evidence an original copy
of a hotel bill which shows conclusively that
Buchanan was in Seattle, Washington, on April 24,
1973. The Administrative Law Judge made no
comment in his Decision on the existence of this
evidence.
We find that Respondent's failure to recall Buccola
was not discriminatorily motivated. In so finding, we
note that Respondent obtained the contract labor
approximately 1 month before Respondent's officials
supposedly observed her distributing union literature
in front of the plant. Aside from this evidence, the
record is totally devoid of any evidence that
Respondent knew of Buccola's union activities. In
light of this lack of knowledge and Respondent's
explanation of its economic reasons for retaining
contract labor, we cannot find that Respondent's
failure to recall Buccola violated the Act. According-
ly, this portion of the complaint shall be dismissed.
The Respondent filed further exceptions to the
Administrative Law Judge's finding that it violated
Section 8(a)(3) and (1) of the Act when it discharged
employee Gaspar Gilbert Hildago.2 We find merit in
this exception.
Hildago was hired on February 16, 1972, and
discharged on April 18, 1973, allegedly for unsatis-
factory work performance. The Administrative Law
Judge found, however, that Hildago was a satisfacto-
ry employee and, therefore, the reason given for his
discharge was pretextual. We do not believe the
record supports the Administrative Law Judge's
finding that Hildago was a satisfactory employee. In
this respect, we note that Hildago never received a
wage increase while employed by Respondent even
though other employees had received increases
during this period, and Hildago had been promised
Asia Garden Restaurant of San Francisco, Inc, 205 NLRB No 141 instead of April 18 The Administrative Law Judge also inadvertently found
2 We note that , at several places in his decision , the Administrative Law that Hildago became aware of the advent of the union organizational
Judge inadvertently referred to the date of Hildago's discharge as July 18, campaign in May 1973, rather than March 1973
211 NLRB No. 32
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an increase within 90 days after he was hired.
Furthermore, Hildago testified3 that whenever he
asked his foreman, Lovato, about a raise, Lovato
would reply that Hildago would get a raise when his
bad work habits improved. Lovato also told Hildago
that he was not producing as much as the other
employees. In December 1972, Respondent executed
a review of Hildago's work performance. The review
stated, in part, "He should work on changing his
attitude." This all took place prior to the union's
organizational campaign which commenced in Feb-
ruary 1973. Hildago himself did not become aware of
the campaign until March 1973, approximately 1
month before his discharge. On February 23, 1973,
Hildago was given a "correction interview" for
attitude, failure to call in personally when he was
absent for 2 days, and bad work habits. In this
regard, Hildago testified that Lovato told him that if
he didn't personally call in the next time he was
absent, he would be terminated. Despite Hildago's
credited testimony, the Administrative Law Judge
concluded that Hildago did not know his job was in
jeopardy. We find, contrary to the Administrative
Law Judge, that Hildago's testimony makes it
abundantly clear that he was aware of the grave
situation.
Hildago's foreman, Lovato, testified that Hildago
was absent on April 10, 11, and 14, 1973, and that
Hildago did not personally notify Respondent that
he would be absent. Although the Administrative
Law Judge did not credit Lovato's testimony, we
note that Hildago did not deny that he was absent on
those days, but testified that he could not remember
whether or not he had been absent. On April 18,
Lovato discharged Hildago for continued bad work
habits.
In light of the above, we do not believe the record
supports a finding that Hildago's discharge was
discriminatorily motivated. Hildago's work record
could hardly be considered satisfactory and there is
undisputed evidence that he had been repeatedly
warned about his work habits prior to the advent of
the Union and before he personally became aware of
the Union's campaign. The fact that a discharged
employee with a poor work record is also a union
adherent is not sufficient to support a finding that he
was discharged for his union activities. This is
particularly true where the employee has been
warned that he is in danger of losing his job prior to
his becoming involved in union activities. According-
ly, we shall dismiss this portion of the complaint.
The General Counsel has excepted to the Adminis-
trative Law Judge's failure to find that Respondent
violated Section 8(a)(1) of the Act by soliciting
grievances from employees in order to undermine the
employees' support of the Union, and directing
employees to select an employee representative to
deal with Respondent concerning grievances and
terms and conditions of employment in order to
undermine the employees' support of the Union. We
find merit in these exceptions.
On April 12, 1973, Foreman Lovato called a
meeting of the 14 employees under his supervision.
During the course of the meeting, Lovato told the
employees that he knew what they were trying to do
and that they wanted better working conditions and
benefits. He then asked the employees what other
improvements they wanted. After hearing the em-
ployees' complaints, Lovato requested them to select
a representative to confer with him and other
management officials.
We believe that where an employer, who has not
previously had a practice of soliciting employee
grievances or complaints, adopts such a course when
a union engages in an organizational campaign and
asks the employees to select a representative to meet
with management, it implies to its employees that it
will correct the inequities it discovers as a result of its
inquiries, thus making union representation unneces-
sary.4 We conclude, therefore, that, by soliciting
grievances and directing employees to select a
representative to meet with management, Respon-
dent violated Section 8(a)(1) of the Act.5
Due to the large number of Spanish-speaking
employees employed by the Respondent, we shall
order that the notice be posted in both Spanish and
English.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Hadbar, Division of Pur 0 Sil, Inc., Alhambra,
California, its officers, agents, successors , and as-
signs , shall take the action set forth in the said
recommended Order, as herein modified:
1. Delete paragraphs 1(a), (b), and (c) and insert
the following:
"(a) Interrogating employees with respect to their
union membership or activities, or as to the union
membership or activities of other employees.
"(b) Soliciting grievances from employees in order
to undermine the employees' support of a union.
3 The Administrative Law Judge credited Hildago's testimony. Respondent violated Sec . 8(a)(1) of the Act when Lovato interrogated
4 Reliance Electric Company , 191 NLRB 44 . Ybarra about the union activities of other employees, we find that the
5 Although we adopt the Administrative Law Judge's finding that record fails to establish that Lovato told Ybarra to report back.
HADBAR, DIVISION OF PUR 0 SIL, INC.
"(c) Directing employees to select an employee
representative to deal with Respondent concerning
grievances and terms and conditions of employment
in order to undermine the employees' support of the
Union."
2. In paragraph 1(d) delete the words "any other
manner" and substitute therefor "other like or
related acts."
3. Delete paragraphs 2(a) and (b) and reletter
remaining paragraphs accordingly.
4. Substitute the attached notice for the Adminis-
trative Law Judge's and publish the notice in both
Spanish and English.
MEMBER JENKINS , dissenting in part:
Unlike my colleagues, I would adopt the Adminis-
trative Law Judge's findings that Respondent's
"layoff" of employee Jeanne Buccola and its subse-
quent failure to reinstate her was discriminatorily
motivated in violation of Section 8(a)(3) of the Act.
The credited testimony shows that in late February
1973,6 the Union contacted Buccola and enlisted her
aid in organizing the employees at the plant. Buccola
agreed to help and, after signing a union authoriza-
tion card herself, she contacted her coworkers and
reported back to the Union that a considerable
number of them were interested in union representa-
tion. On March 5, Buccola invited several employees
to a meeting at her home where they were addressed
by union officials and, on the following day, Buccola
and representatives of the Union mailed union
literature and authorization cards to all employees.
On March 8, after the employees had received the
union literature, Buccola's immediate supervisor
asked her what she thought of "this union business."
Buccola replied that she had received the union
literature just like everyone else. On the following
day, March 9, Woody LaValley, Respondent's
personnel manager, summoned Buccola to his office
and told her that they had too many girls on the floor
and he was going to have to lay her off as the one
with the lowest seniority. LaValley also told her, at
this time, that employee Kelly who had been working
temporarily in the office would now be returning to
Buccola's department. Buccola asked whether she
was eligible for rehire and LaValley said that she
was, but gave her no indication as to when she might
be recalled. Following her layoff, Buccola remained
active in contacting and organizing the employees
and, on three separte occasions, she distributed
union literature and cards at the plant gate. Buccola
was never recalled.
335
The explanations offered by Respondent for
Buccola's layoff were found by the Administrative
Law Judge to be at variance with the facts. The first
such explanation was the one given to Buccola at the
time of her layoff; namely, that it was necessary to
reduce the number of employees in her department
and Buccola was being selected because she had the
lowest seniority. As the Administrative Law Judge
noted , this explanation just will not stand up under
close scrutiny . Buccola was immediately replaced
and the machine to which she had been assigned was
in continuous operation thereafter. Furthermore, the
credited evidence shows that since Buccola 's layoff,
all of the employees in her department have been
performing overtime work. The second explanation
for the layoff, i.e., that Respondent decided to use
less costly contract labor, fares no better. Not only is
it inconsistent with the reasons given Buccola at the
time of her layoff, it is absolutely contrary to the
facts which show that Respondent did not begin the
practice of using contract labor until some 2 weeks
after her layoff.
My colleagues avoid the implications of these
findings by pointing to the complaint 's failure to
allege that Buccola's layoff was unlawful and the
General Counsel 's statements at the hearing that the
layoff was not being alleged as a violation . Be that as
it may, the fact of the matter is that from an
evidentiary standpoint Buccola's layoff and the
alleged unlawful refusal to recall her are closely
related and, as a result, the facts surrounding both
were fully developed and litigated at the hearing.
Respondent was permitted to, and did , present a full
defense on the layoff issue. In these circumstances, I
fail to perceive how Respondent was in any way
prejudiced by the complaint's failure to allege the
layoff as a violation or by the General Counsel's
clarification of the complaint 's allegations and,
accordingly, I would accept the Administrative Law
Judge's determinations in regard to this issue.?
What we are left with then is , in my opinion, a
classic example of unlawful discrimination . Buccola,
the prime mover in the Union 's organizational
campaign, is abruptly discharged just 4 days after she
arranged the first contact between the employees and
officials of the Union and the reasons offered by
Respondent to justify the discharge are clearly
demonstrated to be pretextual in nature. Nor can
there be any doubt concerning Respondent's animus
towards the Union in light of the 8(a)(1) violations
found by my colleagues, with which I agree. The sole
remaining element in the 8 (a)(3) violation, that of
employer knowledge, is readily established at times
both prior to and after the discharge. Subsequent to
6 All events occurred in 1973, unless otherwise indicated
7 Tamper, Inc, 207 NLRB No 142
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discharge, Buccola passed out union literature at
the plant entrance where her activities were observed
by officials of Respondent.8 In my opinion, it is
likewise established that Respondent had knowledge
of Buccola's union activities at the time of her
alleged layoff. Like the Administrative Law Judge, I
rely principally on the fact that immediately after the
employees had received the union literature Buccola
had sent them, she was singled out by her supervisor
and asked what she thought of "this union business."
However, even without this evidence, I think it would
be reasonable to infer knowledge in a situation such
as this where the employee complement is only some
45 people and the union activist in an open and
unmasked fashion personally contacts each employ-
ee individually both within and outside the plant.
In light of the foregoing, I would find that
Respondent violated Section 8(a)(3) of the Act by
discharging Jeanne Buccola and thereafter failing to
reinstate her and I would provide the usual broad
corrective action necessary to remedy this violation.
In all other respects, I join in the determinations
reached by my colleagues.
s The fact that Buccola may have been mistaken in identifying President
Buchanan as one of the officials who observed her solicitations from a
window in the plant would seem to me to be immaterial to the issue. There
is no question that on at least one occasion, Buccola was observed handing
out union literature at the plant entrance by Respondent's officials.
APPENDIX
employee representative to deal with us concern-
ing grievances and terms and conditions of
employment in order to undermine the employ-
ees' support of a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under Section 7 of
the National Labor Relations Act, and will not
prevent them from forming, joining, or helping a
union and they can act together for collective
bargaining or other aid or protection.
HADBAR, DIVISION OF
PUR 0 SIL, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, Room
600, 849 South Broadway, Los Angeles, California
90014, Telephone 213-688-5254.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board has
found that we have violated the law and has ordered
us to post this notice and we intend to carry out the
order of the Board and abide by the following:
WE WILL NOT question our employees about
how they feel about their union activities or the
union activities of other employees.
WE WILL NOT solicit grievances from employees
in order to undermine the employees' support of a
union.
WE WILL NOT direct employees to select an
DECISION
HENRY S. SAHM, Administrative Law Judge: This
proceeding, heard at Los Angeles, California, on July 17-
18, 1973,1 pursuant to various charges filed between April
20 and May 31, presents questions whether Respondent,
called the Company, laid off and refused to reinstate an
employee and discharged another in violation of Section
8(a)(3) because they engaged in activities on behalf of the
Charging Party, herein called the Union, and whether
Respondent engaged in other acts of interference, restraint
and coercion in violation of employee rights under Section
8(a)(1) of the National Labor Relations Act, as amended,
herein called the Act.
Upon the entire record, including observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties on August 20, there are made
the following:
I All dates refer to 1973 unless otherwise indicated.
HADBAR, DIVISION OF PUR 0 SIL, INC. 337
FINDINGS OF FACT2
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
The Respondent Company, a corporation engaged at
Alhambra, California, in the sale of hoses and related
rubber products, annually ships products valued in excess
of $50,000 to points outside the state and is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
A. Introduction
This case arose in the context of a union organizational
campaign commencing in February 1973 at Respondent's
plant. The unfair labor practices are alleged to have
occurred during the time the Union was soliciting the
employees to sign authorization cards. When a sufficient
number of Respondent's employees had signed authoriza-
tion cards, the Union requested recognition on April 13,
and filed a petition for an election, whereupon an election
was held on June 29, approximately 4 months after the
organizational campaign began. The Union won the
election by a decisive margin. The tally of ballots showed
there were 48 eligible voters and that 44 votes were cast, of
which 30 were for the Union, 9 against the Union, and 5
were challenged. On August 10, the Board issued a
certification of representatives.
B. Credibility
The witnesses for the General Counsel and Respondent
are in conflict as to the salient issues in this case. However,
after observing the witnesses and analyzing the record and
inferences to be drawn therefrom, this conflict in testimony
is resolved in favor of the versions told by the General
Counsel's witnesses who appeared to be forthright and
truthful. Based upon the recital of the facts in this case,
hereinafter set out, the demeanor of the witnesses in
testifying, the substantial evidence on the record appraised
as a whole, and on the straightforward testimony of the
General Counsel' s witnesses , the testimony of Lovato,
Buchanan, and Cooksen, the company officials, is not
credited. Their recitals lacked plausibility, their vague and
equivocal denials, and self-contradictions, weighs against
ascribing credence to their version of what occurred with
respect to the salient issues in this proceeding, as
hereinafter explicated.
2 The testimony concerning some of the incidents involved in this
proceeding , particularly the dates and chronological sequence , are contra-
dictory, ambiguous , incomplete, and, in some instances, incoherent as to
specific details, due, in part, to some of the witnesses having difficulty with
the English language even though they testified with the aid of an
interpreter . Others who did not use the services of an interpreter , in some
instances , still had difficulty in expressing themselves as is reflected
throughout the transcript . Consequently, findings of fact made herein result
from an attempt to reconcile the evidence to determine not only when
particular events occurred but what occurred . In attempting to supply
coherence to those statements which in some instances approach incoher-
ence, and acts which are ambiguous because of a paucity of evidence or, in
some instances , a failure to elicit sufficient facts from a witness , necessary
Moreover, many of Respondent' s witnesses ' answers
were voiced in response to leading and suggestive questions
propounded by Respondent's counsel which also militates
against the weight to be given their testimony. As the vice
in counsel asking his witnesses leading questions is that
they suggest the desired answers , which the witnesses will
merely adopt, it may seem futile to object once such a
question has been asked and the desired answer suggested.
Therefore, little probative value has been given to such
testimony thus elicited.
Another practical consideration which cannot be over-
looked in resolving the credibility issues in this case is the
fact that three of the General Counsel' s witnesses were still
in the employ of the Respondent Company at the time they
testified; namely, Velarde, Flores, and Kelly. As such, they
depended on their jobs for their livelihood and they
understood that after testifying they must continue in the
employ of the Respondent. Moreover, the trier of these
facts is not unmindful of the predicament of an employee
who testifies adversely to his employer's interests, being
apprehensive and fearful, with some measure of justifica-
tion as to the future possibility of retaliatory action. These
practical considerations, coupled with the normal workings
of human nature, have led me to place considerable
credence upon their testimony as it is believed they were
impelled to tell the truth regardless of what consequences
might eventuate.
An additional cogent reason for crediting the versions of
the General Counsel's witnesses is the Respondent's failure
to call other witnesses ; namely, LaValley, Hogan, Charles,
and Wolman, all of whom played roles of special
significance with respect to important issues in this
proceeding. The failure of the Respondent to produce
these three material witnesses at the trial to corroborate the
testimony of Lovato, Buchanan, and Cooksen renders their
versions of what occurred dubious, and also warrants
drawing an inference that if these absent witnesses had
been produced their testimony would not have been
favorable to the Respondent .3 Their absence "not only
strengthens the probative force" of the witnesses for the
General Counsel, "but of itself is clothed with a certain
probative force. "4
C. The Alleged Unfair Labor Practices
1. The layoff of Buccola
Jeanne Buccola was employed by the Company in its
finishing department from October 1971 until she was
"laid off" on March 9, 1973. In late February, Angelo
Masi, an official of the Union, enlisted her aid in
organizing the Union at Respondent's plant. After signing
recourse has been made to other witnesses ' testimony in the context of their
testimony, as well as other facts and circumstances , in an effort to
determine what was meant or occurred. However; in all situations this was
not possible. In the interests of accuracy, the testimony of those witnesses
who testified as to the critical aspects of this proceeding has been quoted in
haec verba copiously as their flavor and nuances are frequently incapable of
literal translation or interlineal rewording so that even a metaphrase might
be considered imprecise.
3 Interstate Circuit v. U. S., 306 U. S. 208, 225, 226. N.LRB. v. Wallack &
Schwalm Co., 198 F.2d 477, 483 (C.A. 3); Concord Supplies & Equipment
Corp., 110 NLRB 1873, 1879.
4 Paudler v. Paudler, et al., 185 F.2d 901, 903 (C.A. 5), cert. denied 341
U.S. 920.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union card, Buccola contacted her coworkers and
reported to Masi that a considerable number of them were
interested in a union. Shortly thereafter, she invited some
of the employees to a meeting at her home on March 5, at
which time they were addressed by union officials. Other
union meetings were also held at the American Legion Hall
on May 14 and June 28.
On March 6, Buccola and the union officials mailed to
all the employees brochures printed in both English and
Spanish, to which were attached union authorization cards.
On March 8, after the employees had received the union
literature and cards mailed to them, Buccola's immediate
superior, Chris Charles, who is in charge of the finishing
department, asked her: "What do you think of this union
business?" to which Buccola replied, "... I got literature
just like everybody else."
The following day, March 9, Woody LaValley, personnel
manager, summoned her to his office. He told her that
"this was one of the parts of his job that he did not like of
laying people off, but they were not allowed to have that
many girls on the floor, and since I was the last one hired, I
must be the one that was laid off and that Juanita Kelly,
who had originally worked in the finishing department,
and was no[w] temporarily working in the office, was going
to come back into the [finishing] department again.5 . . . I
asked Mr. LaValley if I was eligible for rehire and he said,
'yes.' I asked him how soon and he said that he did not
know." Buccola was never recalled.6
After her layoff, Buccola continued to contact Respon-
dent's employees with respect to soliciting them to sign
union authorization cards and also by notifying them of
union meetings at her home or the American Legion Hall.
She also handed the employees union literature and
authorization cards on April 24, May 11, and June 27, as
they left the Respondent's plant at the end of the working
day. On April 24, she handed Ralph Mesa, an employee,
literature and a union card outside the plant. She next
observed LaValley and Wolman, company officials who
were 15 to 20 feet away from her, approach Mesa
whereupon Mesa gave them the union material which they
proceeded to read. Buccola testified that on the same day,
while distributing union literature to the employees, she
saw Buchanan, Respondent's president, and Hagan,
production manager, standing at a plant window, 5 feet
from her, observing her hand union literature to employ-
ees.7
Also, on April 24, Angelo Masi , organizer for the Union,
while distributing union literature at the plant to employ-
ees was asked by LaValley and Wolman, company
officials, to allow them to read the material he was
distributing. Masi refused.
It is well settled that union activities such as Buccola
S Kelly had been transferred from the finishing department to the
inspection department the last week of December 1972, and then returned
to finishing when Buccola left on March 9, where she remained until June
18 when she transferred again to inspection.
6 She had been laid off on two previous occasions : for 2 months in
December 1971 and June or July 1972 for I month.
7 Masi , the union official organizer , described the company officials as
"opening up" the window drapes of their offices and "looking out the
window" at him , Buccola, and Hidalgo, an alleged discriminatee , distribut-
ing union literature to the employees as they left the plant.
engaged in are a fundamental right accorded by Section 7
and protected by Section 8(a)(1) and (3) of the Acts Also,
reprisal against an employee in the form of a layoff or
discharge as a result of an employee exercising his or her
protected rights is a violation within the meaning of
Section 8(a)(3) and (1).9
Accordingly, the sole issue in the present case is one of
fact-whether or not substantial evidence on the record as
a whole supports, by a preponderance of the testimony, the
General Counsel's contention that Respondent's failure to
recall Buccola after she had been laid off was discriminato-
rily motivated. The Respondent Company counters this
argument by alleging that Buccola was laid off because of
lack of work and her having the least seniority of all
employees in her department. Furthermore, Respondent
alleges, a valid business decision had been made to employ
"contract labor" which cost less than full-time employees
as contract labor is paid on the number of hours actually
worked daily, whereas full-time employees are paid on an 8
hour basis regardless of whether there is work to occupy
them for the entire working day.
These contract labor individuals are claimed by Respon-
dent not to be employees of Respondent and hence not to
be considered "employees" in the context of determining
whether Respondent hired "employees" after Buccola's
layoff to perform the job she had formerly performed. The
answer to this frivolous proposition was well stated when
the Court of Appeals for the Fifth Circuit in refuting a
fatuous justification held that such an argument 10 "sticks
in the bark, is without reality and substance . . . . Drawn
to deal substantially with substantial things, the National
Labor Relations Act has been from the beginning, it must
continue to be, consistently with its avowed purpose and
the language employed in the Act, broadly construed and
as broadly given effect to cope with and prevent the
mischiefs it was designed to meet and do away with.
Shadow boxing with words, including dialectical hair
splitting, the tithing of mint, anise and cumin, and the
division of a mustard seed, to reach a formal, a technical
result, has therefore no proper place, and may not be
employed, in construing and applying it."
Moreover, Buchanan, president of Respondent, did not
leave a favorable impression because of his inability to
recall how many contract employees were hired, and for
what period of time; nor did he know the name of the
agency from whom he hired them even though he signed
the checks paying the agency for their hire. Such
implausible and incredible testimony leads one to conclude
that the contract labor argument was a subterfuge.
Cogently probative in determining whether Respon-
dent's failure to reinstate Buccola was discriminatorily
motivated are the following considerations: Buccola's
supervisor asking her on March 8 what she thought of the
8 Section 7 of the Act reads:
Employees shall have the right to self-organization , to form, join, or
assist labor organizations , to bargain collectively through representa-
tives of their own choosing , and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, ... .
9 N.L.R.B. v. Victor Otlans Roofing Co., 445 F.2d 299, 300 (C.A. 9),
enforcing 182 NLRB 898.
10 N.L.R.B. v. Metallic Building Co., 204 F.2d 827, 828.
HADBAR, DIVISION OF PUR 0 SIL, INC. 339
"union business" after the union literature was received by
the employees on either March 6 or 7, and her "layoff" on
Mg -9h 9 .._ This precipitgt coneate,pation of events, all of
which occurred within 4 days , commencing on March 5
when a union meeting was held at Buccola's home, leads
one to believe that there was more than a temporal
coincidence between - Buccola being the leading employee
proponent in the Union 's organizing campaign , the mailing
of the union literature, her supervisor inquiring after the
employees received the. union literature as to her views
about the Union, and her "layoff" the following day.11
In addition the remarks of LaValley, the personnel
manager, are noteworthy. LaValley summoned Buccola to
his office on March - 9, and without any advance notice told
her of her immediate layoff, However, before telling
Buccola of her immediate layoff, LaValley apologized for
his action by stating that he disliked doing it but there was
nothing he could do about it as "they were not allowed to
have that many girls on the floor and since I was the last
one hired , I must be the one that was laid off..." Not
only is this justification inconsistent with the facts, as
hereinafter explained , but also it casts doubt upon its
veracity and stamps it as pretextual when it is considered
that there was no economic necessity for Buccola's so-
called layoff . This is evidenced by the machine she
operated not being idle from the day of her layoff until the
time of this trial. Immediately upon her leaving , Buccola's
job was taken over by other employees and 2 weeks later,
as credibly testified to by Flores, a coworker of Buccola,
the "contract" employees - thereafter manned the same
machines which Buccola had operated and performed the
same duties as Buccola. Further militating against Respon-
dent's alleged defense for laying off Buccola is the
testimony of Buchanan, Respondent president's contradic-
tory and inconsistent reasons for her layoff. He testified
that he received a "report" from the company comptroller
recommending that contract labor be employed as it was
less costly than full-time employees . This report was
received by him on April 18, approximately 6 weeks after
Buccola's layoff and approximately 2 weeks after the
contract labor had already been employed and working.
He could not, therefore, have relied on the recommenda-
tions of the comptroller's "report" (which was not
produced at the trial) in deciding to lay off Buccola on
March 9. Moreover, the justification advanced for Bucco-
la's layoff is at variance with the reason given by LaValley
at the time when he notified her that she was being laid off.
Such assertions lead one to believe that the Respondent's
purported reason of economic necessity was a pretext
advanced in an effort to conceal its proscribed motive in
laying off Buccola.
There is not a scintilla of credible evidence that
Respondent was considering the employment of contract
11 See N.L.R.B. v. Arkansas-Louisiana Gas Co., 333 F.2d 790,796 (C.A.
8, 1964); N.LR.B. v. Montgomery Ward & Co., 242 F.2d 497,502 (C.A. 2,
1957) cert . denied , 355 U.S. 829 (1957).
12 Arbie Mineral Feed Co. v. N.LR.B., 436 F.2d 940, 943 (C.A. 9, 1971).
17 Cf. Filtron Co., Inc., 134 NLRB 1691, 1709-11 , enfd. 309 F.2d 184, 185
(C.A. 2, 1%2); Ox-Wall Products Co., 135 NLRB 840, 841 , enfd. 310 F.2d
878, 879 (C.A. 2, 1962). ,
14 Morristown Knitting Mills, 80 NLRB 731, 732.
15 Alice Velarde testified that the so-called contract employees assumed
labor before Buccola's March 9 layoff. Not only did her
protected concerted activities motivate the contrivedlayoff
decision on March 9, but also her intensive union activity
including her distributing union material at the plant after
her layoff, of which Respondent was aware. The same
factors eventuated in Respondent ultimately deciding not
to reinstate Buccola to her former job. It is well settled that
a discriminatorily motivated failure to recall a laid-off
employee is violative of the Act, even if it is only partially
motivated by discriminatory considerations.12 Thus, the
layoff and subsequent failure to recall Buccola was
unlawful, as the reason for such failure was Buccola's
union activities.13 Moreover, it is not necessary for an
employee discharged in violation of the Act to request
reinstatement in order to be entitled to it.14
Corroborative of this finding that the Act was violated is
the fact that immediately after Buccola was laid off other
company personnel assumed her duties. Juanita Kelly was
transferred from the inspection department to take over
Buccola's duties. Beginning approximately 2 weeks after
Buccola's layoff and up to the close of this trial, her
position was filled by various other contract employees
who were hired after her alleged layoff.15 Alice Velarde,
who is presently employed by Respondent, credibly
testified on rebuttal that since Buccola's March 9 layoff all
the employees in the finishing department have worked
overtime the last week of the months of March, April,
May, and June 1973. It is reasonable to infer and so found
that the employees' overtime was occasioned by a plentiful
amount of work on hand. This is cogent evidence to refute
Respondent's contention that valid economic considera-
tions were the basis for Buccola's layoff, as the record
clearly reveals there was no lack of work in the finishing
department. Moreover, it is uncontroverted that personnel
were hired after Buccola's layoff who performed and were
performing at the time of the trial the same work as
Buccola did. Also, buttressing this conclusion is Respon-
dent's union animus as indicated by its illegal discharge of
another employee and interference with its employees'
Section 7 rights, infra, all of which occurred after the
advent of the Union. These actions were motivated, it is
found, not for valid reasons , but rather, with the purpose of
aborting the union campaign by ridding itself of Buccola
who was the prime employee activist in the union
organizational campaign at its plant.
Moreover, Charles, who was Buccola's immediate
superior asked her what she thought about the Union the
day after the Union had mailed literature and authoriza-
tion cards to all the employees. This is probative of the fact
that Respondent had knowledge of her union activities
when she was laid off the next day. It is not too
unreasonable to assume that Charles not only advised her
superiors of her conversation with Buccola but that
the duties of Buccola 2 weeks after she left . These contract employees were
all hired at 2-week intervals and then replaced at the end of 2 weeks by
other newly hired contract employees. Juanita Kelly , who has been
employed by Respondent for approximately 7 years, corroborated Velarde's
testimony. Immediately upon Buccola leaving , Chris Charles took over
Buccola's job for a short time until Kelly was transferred , who continued in
Buccola's job until the so-called "contract" employees assumed Buccola's
duties 2 weeks later.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company officials might have requested Charles to ascer-
tain Buccola's views about the Union. There is evidence in
the record which appears to indicate Buccola's union
activities were of such widespread activity and intensity
that it can reasonably be inferred they could not have
escaped notice by Respondent when it is considered she
not only worked in a small plant of about 45 employees,
but also she was observed by company officials distribut-
ing union literature at the plant after her layoff, which
eventuated in her not being reinstated although there was
plenty of work.
Even though Respondent had direct knowledge of her
union activities when company officials observed her
distributing literature to employees as they left the plant,
the Supreme Court has held direct knowledge not
necessary, stating "it was not required to deny relief
because there was no direct evidence that the employer
knew these men had joined [a union J."16 Moreover by
Section 10(e) of the Act, Congress gave to the trier of the
facts power to draw inferences from the facts and to
appraise conflicting and circumstantial evidence and the
weight and credibility of testimony.17
On the other hand, economic considerations which
Respondent alleges as the cause for Buccola's layoff may
not be asserted to shield the Respondent Employer against
the consequences of its discrimination against her, since
she would not have been laid off but for her union
activities . The circumstances of each case must be weighed
to determine what motivations truly dominated Respon-
dent in laying off Buccola. In this proceeding, it is found
that Respondent was motivated, at least partly, by its
antagonism to her efforts to bring the Union into the plant.
In view of the whole record including Respondent's
opposition to the Union, infra, its knowledge of Buccola's
union activities , its patently unconvincing explanation for
its layoff of Buccola, as well as its actions subsequent to
her layoff in not recalling her, it is found that substantial
evidence supports a finding that the real reason Buccola
was not reinstated was because of her union activities.
Such conduct on the part of Respondent violated Section
8(a)(3) and (1) of the Act.
2. The discharge of Hidalgo
Gilbert Hidalgo was employed from February 16, 1972,
to April 18, 1973, at which time he was discharged for
alleged unsatisfactory work performance and being absent
from work on February 19 and 20. Hidalgo first became
aware of the Union's organizational campaign in May
when he was mailed union literature and an authorization
card. About the same time , Alice Velarde, an employee,
telephoned him and asked him if he was interested in
having a union at the plant to which he answered in the
affirmative. The same day he signed and mailed the
authorization card to the Union. He attended four union
meetings at which plans were discussed to obtain the
signatures of additional employees on authorization cards.
Hidalgo solicited 10 employees of whom 5 signed union
authorization cards.
On April 12, 6 days before Hidalgo's discharge, his
supervisor, Lovato, called a meeting of the 14 male
employees in the calender room, long press area who were
under his supervision. According to Hidalgo's testimony,
Lovato told them "There is somebody that is trying to start
some trouble here, but we don't know who it is as yet. Then
he changed his language to Spanish and he said, 'We know
about you guys trying to-that want better conditions and
better benefits and like that' and then after he asked what
did we want, some of the men there answered what they
wanted . . ." Hidalgo continued that they complained
about their wages, excessive heat, and foul air in the shop
and requested that their working conditions be improved.
Mention was also made of the profit-sharing and pension
plans which had been discontinued on July 1, 1972, when
the previous owner sold the plant to Respondent.
Lovato then requested the assembled employees to select
a representative to confer with him and Hagan, a company
official, regarding their complaints. After Lovato left, the
men elected Hidalgo to represent them. Hidalgo's testimo-
ny continues that he was selected: "because I am bilingual
and since I was passing the cards around and asking the
guys to be in the Union with me, I felt that I had a
responsibility to them to do that." However, Hidalgo never
met with Lovato or Hagan. Instead, these company
officials met later the same day with another of the
employees, Jose Torres, who is related to Lovato. Although
Lovato testified a "few" of the complaints were resolved in
his and Hagan's meeting with Torres, he failed to testify
what was "resolved," or how it came about that instead of
Hidalgo, Tones was authorized to represent the employees.
Another employee, Guillermo Contrares, in testifying on
cross-examination as to Torres' role in meeting with
Lovato and Hagan stated that "Jose Luis Torres went
because he wanted to do so. We didn't propose him." In
fact, Lovato testified that he did not know whether Torres
was selected by the employees to represent them when
Torres and he "discussed" the employees' complaints.
Tones spoke to his fellow-employees on April 16, and
according to Hidalgo he told them that Lovato and Hagan
agreed to grant them fans and brooms to keep the shop
clean and, scissors, but refused their request for a pay
increase. When Tones finished speaking to his coworkers,
Lovato then came to where the employees had gathered
and told them the same thing as Tones had. When Lovato
left, Hidalgo told the employees not to believe anything
Lovato had said "because they are just trying to buy us off
and use this meeting to keep the Union away from the
Company." Contrares', a fellow employee, version of this
incident was that Hidalgo told them "not to pay attention
to the promises being made, that if the Union got in it was
going to be better."
Two days later, July 18, Hidalgo was fired. He was
summoned about 3:15 p.m. to the office of LaValley, the
personnel director, who told him according to Hidalgo that
"I was being discharged for bad work habits and that I
missed two days without calling in and he handed me my
checks and papers saying the date of the discharge on it. I
16 N. L. R. B. v. Link-Bell Co., 311 U.S. 584, 602, Sutton Handle Factory, 19 Link-Belt, supra, at 597. See Radio Officers Union v. N.L.R.B., 347 U.S.
119 NLRB 955 , affd . 255 F.2d 697 (C.A. 8, 1958), cert . denied 358 U.S. 865 17, 40-52.
(1958).
HADBAR, DIVISION OF PUR 0 SIL, INC.
asked him . . . why did it take so long to fire me because I
was absent these two days about two months already. It
has been two months since I missed these days without
calling in." 18 He was given a written notice stating that he
was being discharged and handed his check not on the
regular payday but in the middle of the pay period.19
John Lovato, a supervisor, who was in charge of the
calender room and long press area testified that Hidalgo
was an unsatisfactory employee. He testified that this
evaluation was based on Hidalgo's inadequate production,
his "shooting the breeze with the guys, . . . playing around
a lot," his "poor work," and "his work habits and attitude."
On February 23, Hidalgo was handed a written form which
states he was "given a correction interview" for the
following reasons: "Attitude, failure to call in for 2 days
[and] bad work habits." After this notice was given to
Hidalgo, Lovato testified that he told Hidalgo: "that if he
improved within 30 days I would see about getting him an
increase [in pay ] and if he did not I would have to see
about discharging him." However, Hidalgo was not
discharged until 2 months later. On April 17, he was given
a written form notifying him that his "attitude and bad
work habits" persisted and that Lovato recommended his
discharge. On April 18, he was discharged and given a
written termination paper which again stated that the
reason was his "bad work and attitude." Furthermore,
Lovato testified that Hidalgo's absenteeism, particularly 2
days in February when he was absent, also contributed to
his decision to discharge him on July 18.
Jose Ybarra has been employed by Respondent since
October 1970. Ybarra, who is a neighbor of Hidalgo,
testified that Hidalgo telephoned him in February that he
was ill and requested him to notify Lovato he would be
absent from work. When Ybarra delivered Hidalgo's
message , Lovato told Ybarra that it was Hidalgo's
responsibility to notify him personally. The facts show that
it was not until July 18, 6 months after Hidalgo's alleged
unauthorized 2 day absence in February, that this was
resurrected as a reason for his discharge. However, it is
uncontradicted that Ybarra did notify Lovato. Assuming
arguendo that Hidalgo's absence was not properly reported,
there is still substantial evidence and it is found, as
explicated below, that Hidalgo's discharge was motivated
because of his concerted protected union activities which
violated the Act.20
Harvey Cooksen, whose testimony and demeanor left
much to be desired, is a foreman under whose supervision
Hidalgo worked for approximately 6 months in 1972.
Cooksen described the quality of Hidalgo's work as
"unsatisfactory;.... [I] did not like his attitude and the
way he performed his work . . . . And his general attitude.
He did not care whether it was done or not . . . his work
habits were very poor . . . . It seemed to me like he
worked when he wanted to and wouldn't work when he did
not want to." He concluded his direct examination in
response to leading questions by stating he told Lovato in
1972 that he "didn't think the man was worth keeping."
On cross-examination, it was elicited after some effort
18 This is an unmistakable reference to Hidalgo having been absent for 2
days in February when Ybarra notified Lovato. See infra.
's Cf. Burk Bros. v. N.L.R.B., 117 F.2d 686, 687 (C.A. 3); Materials
341
that Cooksen made out a "performance review" on
December 18, 1972 (Resp. 6). In his judgment of Hidalgo,
he rated him as "average" on the "performance review"
and in answer to a question whether Hidalgo's perform-
ance was "unsatisfactory," he slyly answered: "It was not
perfect, no." When asked how Hidalgo demonstrated his
"poor attitude" he answered: "When you were talking to
him, he was off in another part of the world somewhere,
like he was not paying attention."
Henry Bond, a foreman, testified that on a "few"
occasions Hidalgo worked for him and "He just didn't do
enough work, he just disappeared too much on the job."
On cross-examination, it was elicited that this occurred
,.not too long after he started working" for Respondent.
Further questioning revealed it was in August 1972, about
7 months before his discharge on April 18, 1973.
Jose Ybarra testified that on his own initiative he
informed Lovato that the Union was distributing authori-
zation cards to the employees. See above. Two days later
Lovato asked him, according to Ybarra, the identity of
these employees who were distributing the union cards "so
they could fire the persons." On cross-examination, it was
elicited that the reason Ybarra volunteered the information
to Lovato that employees were distributing cards was
"because I was afraid he was going to fire me because he
had stayed for a few days without talking to me." He
explained that he felt he would ingratiate himself with
Lovato if he were to reveal that the Union was organizing
the Company's employees and thereby obviate any
possibility of being fired by Lovato who had stopped
speaking to him. Ybarra stated that he feared the reason
Lovato had ceased speaking to him was Lovato might have
learned he had signed a union card. It was this fear that he
might be fired, continued Ybarra, that impelled him to go
to Lovato in order to curry favor with him and divulge
what he knew about union activity in the plant, hoping
thereby to placate Lovato and be in his good graces and
thus prevent being fired. A week later, Ybarra testified,
Lovato came to him at his work station and inquired if he
had learned anything more with respect to the Union's
organizational campaign. Ybarra replied in the negative.
After this conversation, Ybarra testified that he warned
Hidalgo, Velarde, and Rita Lamas to be careful of Lovato
"because he was looking for somebody to throw out of the
Union."
The testimony of Lovato is a maze of contradictions,
discrepancies, equivocations, generalities, and in some
instances outright improbabilities. Then, too, the vague,
unspecific, and indefinite complaints testified to by Lovato
and Cooksen with respect to the quality of Hidalgo's work,
which in the main are too intangible to refute, leaves his
discharge unsatisfactorily explained. Their testimony was
uncertain and not specific as to the reasons, identity, and
details of some of their complaints regarding Hidalgo. For
example, they described Hidalgo in such nebulous and
general terms as "attitude" and "bad work habits" and
"poor work" and "unsatisfactory work." Finally, Lovato
Transportation Co., 170 NLRB 997, 998.
20 Berland Paint City v. N.LR. B., 478 F.2d 1405 (C.A. 8, 1973)
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shifted to another reason for deciding to fire Hidalgo,
namely, because he played ball.
It should be noted that Lovato's and Cooksen's reasons
for firing Hidalgo were not related to any specific incidents.
Rather, they are broad, generalized subjective characteriza-
tions and were, therefore, quite impossible to refute and
difficult to impugn through cross-examination. The unspe-
cific, inconsistent, contradictory, and unconvincing rea-
sons given for his discharge create a suspicion that they
were offered to conceal an unlawful motive which in this
situation, it is found, was an attempt to forestall union
activity and to abort the Union's organizational activities
by discharging one of the most active union adherents
whose union activities, it is uncontradicted, Respondent
was aware of before the date of his discharge. This is
evidenced by him being selected by his fellow employees to
represent them. His statement to the other employees not
to believe that Lovato would rectify their substantive
complaints, it is not too unreasonable to assume, was
brought to Lovato's attention by Torres who was related to
Lovato and who in some strangely unexplained manner
supplanted Hidalgo as the employees' representative to
deal with Lovato and Hagan.
For the reasons hereinafter explained, it is found that the
record in this case speaks for itself in that the evidence
adduced by Respondent in support of its defense is not of
sufficient probative force to overcome the prima facie case
made out by the General Counsel. The testimony makes
plain that with respect to the layoff of Buccola and the
discharge of Hidalgo there is more than a coincidental
connection between their union activities and their
separations by the Respondent. Indeed, it is found that
"the principal events [are] really no coincidence at all, but
rather part of a deliberate effort by the [Respondent] to
scotch the lawful measure of the employees before they
had progressed too far toward fruition."21
The unconvincing character of proffered shifting and
multiple reasons given by Respondent for Hidalgo's
termination which even included the charge that he threw
rubber balls at other employees during working hours is
also a significant factor in determining whether or not his
discharge was improperly motivated.22 It is found that the
reasons stated by Respondent for Hidalgo's discharge are
not only false, as evidenced by the testimony set out above,
but also reveals that Hidalgo's performance review shows
him to have been a satisfactory employee. Inasmuch as
Respondent's stated reasons for firing Hidalgo are false, it
is reasonable to infer there is another motive. In this case,
it is found that the motive for Respondent's discharge is
one which Respondent sought to conceal-an unlawful
motive, namely, Hidalgo's union activities.23
D. Conclusions
It should be borne in mind that Buccola and Hidalgo
were the spearhead of the Union's organizational activity
in the plant. It was they who signed union cards, solicited
other employees to do likewise, attended union meetings
(including two at Buccola's home), and distributed union
21 N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2).
22 Dant & Russell, Ltd., 92 NLRB 307, 320; N.L.R.B. v. Condensor Corp.,
128 F.2d 67, 75 (C.A. 3). See Mooresville Mills, 99 NLRB 572, 600.
literature outside the plant. It was only after they engaged
in all these protected activities that the quality of Hidalgo's
work became intolerable to Respondent and it was decided
not to recall Buccola to the job she was laid off from,
thereby discharging her.
Against the feeble evidence of Hidalgo's inefficiency and
the alleged economic reasons for the layoff of Buccola,
there has been weighed Respondent's knowledge of their
union activities and the summary nature of their separa-
tions with neither knowing their jobs were in jeopardy.
This combination of circumstances is scarcely explainable
except upon the hypothesis that Respondent was discrimi-
natorily motivated and makes no other explanation
reasonable. It is found that these belated reasons were
specious afterthoughts advanced by the Respondent for its
actions and used as a pretext. The real reason was to
eliminate Hidalgo and Buccola from its work force and
thus cripple the union organizational effort as well as
discourage its employees from continuing the organization-
al campaign. Such conduct violated Section 8(a)(3) and (1)
of the Act.
Section 8(a)(1)
On the basis of the foregoing, it is concluded that
Respondent interfered with, restrained, and coerced its
employees and thereby violated Section 8(a) (1) of the Act
by the following conduct found above:
(1) Charles, who was Buccola's immediate supervisor,
interrogating Buccola on March 8, as to what she thought
about the Union.
(2) Although Ybarra's fear of discharge because he had
signed a union card impelled him to curry favor in an
attempt to ingratiate himself with Lovato by divulging to
him what he knew about union activity in the plant,
nevertheless, Lovato interrogating Ybarra a week later as
to whether he had learned anything more about the
Union's organizational campaign was a violation of
Section 8(a)(1).
(3) When Lovato asked Ybarra to report to him on what
union activities were going on in the plant, this violated
Section 8(a)(1).
There was not only a lack of the requisite preponderance
of evidence elicited by the General Counsel to prove the
other averments in the complaint alleging violations of
Section 8(a)(1), but also, in some instances, a failure of
proof. Accordingly, it will be recommended that paragraph
9, subheadings (a), (c), (d), (e), (f), and paragraph 10 of the
complaint be dismissed.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
23 Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470
(C.A. 9, 1966), enfg. 151 NLRB 1329.
HADBAR, DIVISION OF PUR 0 SIL, INC.
Upon the foregoing findings and conclusions, there are
hereby made the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union herein, Stove, Furnace & Allied Appli-
ance Workers International Union of North America,
Local 158, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3.. By interfering with, restraining, and coercing the
employees in the exercise of the rights guaranteed in
Section 7 of the Act, as specified above, the Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discharging and discriminating with regard to the
hire and tenure of employment of Gilbert Hidalgo,
Respondent discouraged membership in the aforemen-
tioned Union and committed unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. By laying off Jeanne Buccola, as set forth above,
Respondent discriminated against her in regard to her
tenure of employment, and the terms and conditions
thereof, to discourage membership in the Union and
thereby violated Section 8(a)(3) and (1) of the Act.
6. The allegations of Paragraphs 9, (a), (c), (d), (e), (f),
and 10 of the complaint are dismissed.
THE REMEDY
It is recommended that the Respondent cease and desist
from violating Sections 8(a)(1) and 8(a)(3) of the Act, and
that it reinstate both Jeanne Buccola and Gilbert Gaspar
Hidalgo and that it reimburse them for any loss of earnings
suffered by reason of the discrimination against them, by
paying to them a sum of money equal to the amount they
would have earned from the dates of their discrimination
to the date of offer of reinstatement , less their net earnings
during the period of such discrimination, with said
reimbursement to be computed as provided in F. W.
Woolworth Co., 90 NLRB 289, with interest thereon at the
rate of 6 percent per annum in the manner prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, there is issued the following recommended:
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.
ORDER 24
343
Respondent, Hadbar, Division of Pur 0 Sil, Inc., its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily discharging and/or laying off its
employees or otherwise discriminating against any employ-
ee because of his or her activity on behalf of, or
membership in, Stove, Furnace & Allied Appliance
Workers International Union of North America, Local
158, AFL-CIO, or any other labor organization.
(b) Interrogating employees with respect to their union
membership or activities.
(c) Requesting employees to report to it with respect to
its other employees' union activities.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Gaspar Gilbert Hidalgo and Jeanne Buccola
immediate, full, and unconditional reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority or
other rights, privileges, or working conditions and make
them whole for any loss of earnings they may have suffered
as a result of their discharge and/or layoff, in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and rights
of employment under the terms of this Decision.
(c) Post at its plant in Alhambra, California, copies of the
attached notice marked "Appendix." 25 Copies of said
notice, on forms provided by the Regional Director for
Region 21, shall, after being duly signed by Respondent, be
posted by Respondent immediately 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.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith.
25 In the event that the Board 's 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."