Carson Trailer, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1274 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 144
1274
Carson Trailer, Inc. and Sheet Metal Workers Inter-
national Association, Local Union No. 170,
AFL–CIO. Cases 21–CA–37999 and 21–CA–
38141
August 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On July 16, 2008, Administrative Law Judge William
G. Kocol issued the attached decision. The Respondent
filed an “Objection to the Administrative Law Judge’s
Decision and Argument in Support of Exception” and the
General Counsel filed a “Limited Exception to the Ad-
ministrative Law Judge’s Decision and Argument in
Support of Limited Exception.” Subsequently, the Gen-
eral Counsel filed a “Motion To Strike Respondent’s
Exceptions Document.”
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions2 and
arguments and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the recommended
Order as modified.3
We grant the General Counsel’s motion to strike the
Respondent’s exceptions document. The Respondent’s
exceptions do not meet the minimum requirements of
Section 102.46(b) of the Board’s Rules and Regulations.
Addressing the judge’s findings that the Respondent vio-
lated the Act by laying off Ernesto Tolentino and threat-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 No exceptions were filed to the judge’s dismissal of the allegations
that the Respondent violated Sec. 8(a)(1) of the Act by threatening to
move its business overseas or to deny unemployment benefits to laid-
off employees if employees supported the Union.
3 The General Counsel has excepted to the judge’s failure to include
in his recommended Order a provision that the notice to employees be
posted in both English and Spanish. We find merit in the exception.
The record shows that most of the employees at the Respondent’s
Broadway facility, where the violations occurred, are Spanish speaking.
After laying off Tolentino, the Respondent conducted a mandatory
employee meeting at that facility in Spanish. In addition, each of the
seven nonsupervisory employees who testified in this proceeding did so
through a Spanish interpreter. Accordingly, we shall modify the rec-
ommended Order to provide that the notice be posted in both English
and Spanish. See Caribe Staple Co., 313 NLRB 877 (1994); Sun
World, Inc., 271 NLRB 49 fn. 1 (1984), enfd. mem. 843 F.2d 501 (9th
Cir. 1988). The General Counsel sought a posting remedy at the
Broadway facility only.
We shall also modify par. 2(e) of the judge’s recommended Order to
correctly identify the appropriate Regional Office.
ening employees for engaging in union activities, the
Respondent merely refers to the judge’s conclusions and
states that the “evidence does not support such a deter-
mination.” As to the judge’s remedy, the Respondent
argues only that remedies are inappropriate because there
is “insufficient evidence” to support the violations found,
“given the General Counsel’s burden of proof.” We find
that the Respondent has failed to allege with any particu-
larity the errors it contends the judge committed, or on
what grounds it believes the judge’s decision should be
overturned. In addition, the Respondent fails to desig-
nate the portions of the record on which it relies, as the
Board’s Rules also require. In the circumstances, we
find, in accordance with Section 102.46(b)(2), that the
Respondent’s exceptions should be disregarded. See,
e.g., Metropolitan Transportation Services, 351 NLRB
657 fn. 5 (2007); Conley Trucking, 349 NLRB 308, 308
fn. 2 (2007), enfd. 520 F.3d 629 (6th Cir. 2008); Thrift-
way Supermarket, 294 NLRB 173 fn. 2 (1989). We
therefore adopt the judge’s findings and conclusions that
the Respondent violated Section 8(a)(3) and (1) of the
Act, in the absence of exceptions.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Carson
Trailer, Inc., Gardena, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its Broadway facility in Gardena, California, copies of
the attached notice marked “Appendix.”6 Copies of the
notice, in both English and Spanish, on forms provided
by the Regional Director for Region 21, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced or
covered by any other material. In the event that during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail at its own expense, copies of the notices to all cur-
rent employees, and former employees employed by the
Respondent at any time since September 7, 2007.”
Cecelia Valentine and Stephanie Cahn, Esqs., for the Gen-
eral Counsel.
Travis M. Gemoets, Esq. (Jeffer Mangels Butler & Marmaro
LLP), of Los Angeles, California, for the Respondent.
CARSON TRAILER, INC. 1275
Robert Sanchez, Organizer, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Los Angeles, California, on May 12–13, 2008. The
charges were filed on September 14 and December 4, 2007,1 by
the Sheet Metal Workers International Association, Local Un-
ion No. 170, AFL–CIO (the Union) and the order consolidating
cases, consolidated complaint and notice of hearing was issued
January 31, 2008. The complaint alleges that Carson Trailer,
Inc. (Respondent) violated Section 8(a)(1) by making several
threats to employees and violated Section 8(a)(3) and (1) by
laying off employee Ernesto Tolentino because he supported
the Union. Respondent filed a timely answer that, as clarified
at the hearing, admitted the filing and service of the charges,
interstate commerce, jurisdiction, labor organization status, and
agency status. The answer denied that Respondent violated the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following.2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the manufacture of
custom towing trailers at its facility in Gardena, California,
where during the 12-month period ending September 30 it pur-
chased and received goods valued in excess of $50,000 directly
from points outside the State of California. Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent manufactures commercial and recreational trail-
ers. It has facilities located in and near Gardena, California.
One facility is located on Broadway and another on Maple.
Employees at the Maple facility build the frames for the trail-
ers; these frames are sent to the Broadway facility where em-
ployees finish the trailers. Jesse Rebollar is plant manager at
the Broadway facility where about 40–45 persons are em-
ployed. A third facility is located on Perry where Ildefonso
Rebollar, Jesse’s father, is plant manager. According to Jesse
Rebollar, Respondent is the leading manufacturer of trailers in
California.
Ernesto Tolentino works as an organizer for the Union. To-
lentino, a licensed welder, applied for work at Respondent’s
Broadway facility. After completing an application and supply-
ing a copy of his welder’s license he was interviewed June 20
by Jesse Rebollar and Carlos Aldape, floor supervisor, and
George Rojas, an employee. J. Rebollar explained that Tolen-

1 All dates are in 2007 unless otherwise indicated.
2 Certain errors in the transcript are noted and corrected.
tino’s job duties would include fabricating custom trailers,
welding gas and water tanks, and repairing trailers. He said
that he was looking for a dependable welder who could do the
work quickly and professionally. J. Rebollar said that the per-
son who worked at the job before had done electrical, plumbing
and other work besides welding and that when there was not
welding work to do he wanted Tolentino to learn to do plumb-
ing and electrical work. Tolentino answered that he was will-
ing to learn those other trades. Tolentino said he was asking to
be paid $15 per hour, but J. Rebollar said that most employees
started at $7.50 but he offered Tolentino $9. They asked Tolen-
tino to weld a tire mount and he did so. Rebollar then offered
Tolentino $9.50 per hour and promised that if things worked
out he would give Tolentino a $1 per hour raise after 30 days.
Tolentino took a drug test and J. Rebollar explained that nor-
mally he waited for the results of the test to come back before
he hired someone but on this occasion he asked how soon To-
lentino could start working. Tolentino said he could start the
next working day, a Monday.
Tolentino worked exclusively as a welder; he never did any
electrical or plumbing work nor did Respondent offer to train
him to perform other tasks. Aldape assigned the work to him
but never assigned him work other than welding work. No one
ever criticized Tolentino’s work performance. After about a
month Tolentino reminded J. Rebollar about the promised wage
increase and Tolentino then received the $1 per hour increase.
Tolentino also began talking to the employees about the Un-
ion and passed out handbills to them. Three meetings were
held outside the workplace with employees, Tolentino, and
Robert Sanchez, another organizer for the Union. Two of these
meetings occurred in July and the third in August. A fourth
meeting was set for September 12, but it did not occur because
Tolentino was laid off on September 7.
Tolentino began work as usual at 7 a.m. on September 7; on
that day he was welding racks on a trailer. Tolentino knew that
Respondent was in a rush to complete the work on that trailer.
After lunch J. Rebollar told Tolentino to drop everything and
take a walk with him. They walked out to the trailer yard
where the completed trailers were kept. J. Rebollar pointed to
the trailers and said that business was slow and the trailers were
not selling. They then walked into J. Rebollar’s office where
Rebollar told Tolentino that although he did not want to, he had
to let Tolentino go. J. Rebollar said that they were also laying
off employees at the other facility. He told Tolentino that he
had Tolentino’s telephone number and would call him if work
picked up. Rebollar said that Tolentino was paid for the rest of
the day and could leave work immediately. Tolentino offered
to come back to return the uniforms that Respondent had pro-
vided to him, but Rebollar said that there was no need to do so.
At some point Tolentino commented that maybe “a little vaca-
tion” would not hurt. Tolentino was then escorted off the
premises. Tolentino therefore was unable to complete the work
on the trailer that Respondent was eager to finish. Tolentino
was paid for the entire day and the uniforms that Rebollar al-
lowed Tolentino to keep were worth about $300.
Before Tolentino left the premises J. Rebollar gave him a
form that said, “Work has not picked up the way we expected.
Not enough to keep him on board so we are letting him go.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1276
The form also indicated that Tolentino had been terminated and
that his work was satisfactory in the categories of attendance,
punctuality, appearance, attention to detail, and ability to learn.
A copy of the form kept by Respondent was somewhat differ-
ent in that it indicated that the “N” was circled beneath the
question “able to rehire?” Although J. Rebollar denied he made
that mark, I conclude that either he made that mark or caused it
be made. Tolentino was the only certified welder at the
Broadway facility and because there was welding work that
needed to be done there the following Monday, Respondent
temporarily transferred a welder from the Maple facility to
complete the job that Tolentino had been working on and there-
after permanently transferred another welder from the Maple
facility to the Broadway facility.
The foregoing facts are based on the testimony of Tolentino
who I conclude was a credible witness. His testimony was
consistent and logical and his demeanor was impressive. To
the extent that J. Rebollar’s testimony is inconsistent with the
facts described above I do not credit it. As indicated above,
Respondent was in a hurry to finish work on the trailer that
Tolentino was working on but he was laid off before the end of
the day and before finishing the work on the trailer. When I
asked Jesse Rebollar why he did not let Tolentino complete the
work day under these circumstances, he answered:
No reason in particular. I just—my plans were to give him
the check around 10:00 in the morning, and I try to pay—I
don’t do this very often, but when I do terminate someone, I
give them the rest of the day off.
This explanation is entirely unconvincing and his demeanor
suggested he was creating the answer rather than making a
truthful response. This is an example of why I have chosen to
credit Tolentino’s testimony over J. Rebollar’s.
The Monday following Tolentino’s Friday layoff the em-
ployees at the Broadway facility were summoned to a meeting
with Ildefonso Rebollar. I. Rebollar spoke to the assembled
employees in Spanish. I. Rebollar told the employees that
when there are big problems they call him so he can work them
out. He mentioned that he had fired someone and that in every
sack there is a rotten apple and when there is a rotten apple it
has to be removed so that it will not make the other apples rot-
ten. I. Rebollar told the employees that the employee whom he
had fired could file a claim against the Company but that per-
son would not succeed in the claim because Respondent had a
piece of paper that protected them. He talked of a nearby fac-
tory where employees went on strike and Respondent’s owner
called him so he could talk to the strikers and he did so. I. Re-
bollar said he told the strikers that the owner was not going to
bend to the stubbornness or demands of others, that he had a
little money and he would close the doors to the factory and the
workers would lose their jobs. I. Rebollar also told Respon-
dent’s employees that Respondent’s owner’s main income
came from a shipbuilding facility in China where the workers
were paid only $50 and that Respondent’s Broadway facility
meant nothing to the owner. I. Rebollar told the employees that
there were rules that had to be followed and whoever did not
want to do that, the door was open. He commented that the
welders at the Maple facility were doing a good job and that
trailers were not being sold and that there was no place to store
them. He asked if there were any comments or questions, but
no employees spoke.
Neither Tolentino nor the Union was mentioned by I. Rebol-
lar during the meeting. However, I conclude that the employ-
ees would reasonably understand that the “rotten apple” and the
employee who might file a claim against Respondent was To-
lentino. After all, he was laid off the Friday afternoon before
the Monday meeting. Indeed, records show that he was the
only employee separated from employment by Respondent in
about the 30 days preceding the meeting. There is no credible
evidence or testimony to support any other conclusion. I also
conclude that employees would reasonably conclude that To-
lentino was “rotten” and would spoil the other employees was
because he tried to get the employees to support the Union.
The foregoing facts are based on a composite of the testi-
mony of four witnesses. Thomas Bahena has worked for Re-
spondent for 5 years as an assembler at the Broadway facility.
Jose Vargas has worked for Respondent installing metal molds
since about August 2007. Jorge Rojas and Jesus Felix-Leon
also work for Respondent. All these witnesses, in general,
corroborated each other. Their demeanor while testifying ap-
peared sincere. I also take into account the fact that these wit-
nesses were current employees testifying against the interests of
their employer. Meyers Transport of New York, 338 NLRB
958, 968 (2003). I have considered the testimony of Jesse Re-
bollar that at the Monday meeting I. Rebollar spoke to the em-
ployees about sales and production. In that talk, according to
J. Rebollar, I. Rebollar did mention China but in the context
that the employees were lucky that Respondent’s owner had a
business there and could take money from there to keep Re-
spondent afloat. J. Rebollar admitted that I. Rebollar did men-
tion an employee who filed a claim against the company, but
claimed that this was in the context of a transfer of employees
several years ago to avoid a layoff; in that situation Ildefonso
Rebollar noted that one employee filed an unemployment com-
pensation claim rather than accept the transfer but Respondent
was able to successfully defend against the claim. There was
no explanation as to why I. Rebollar would raise this matter at
the meeting. When asked whether there was any discussion
about getting rid of “rotten apples” Jesse Rebollar answered
“Now, that right there, I don’t remember at all, no.” His de-
meanor when answering showed hesitancy and discomfort.
This is another example of why I have not credited J. Rebol-
lar’s testimony. Ildefonso Rebollar likewise testified that he
made no mention of “rotten apples” at the Monday meeting.
When weighed against the record as a whole in this case, his
testimony about the meeting is also unpersuasive.
J. Rebollar testified that Tolentino, although a skilled welder,
worked slowly. Carlos Razo Ortiz has worked at the Broadway
facility for almost 3 years. Razo, whose duties take him all
over that facility, has some experience with welding. He testi-
fied that Tolentino was “very good” but “very slow.” Adalpe
also testified that Tolentino was good but slow. Hidalgo
Roblido, who worked for Respondent for over 12 years, and
Mario Corona, who worked there for almost 5 years, also testi-
fied that Tolentino was very slow. I conclude that Tolentino
was a good welder but was slow. Razo, Hidalgo, and Corona
CARSON TRAILER, INC. 1277
also testified concerning the Monday meeting, but their testi-
mony seemed more designed to please their employer than
accurately relate the contents of that meeting. Aldape testified
that on two occasions he mentioned to Tolentino that they
needed to “hand over” a trailer so Tolentino “needed to accel-
erate a little bit” to which Tolentino said that he would. Tolen-
tino denied that Aldape ever told him that he was working too
slowly or otherwise criticized his work performance although
he admitted that on one occasion Aldape told him that he
needed some work to be done quickly on a trailer. I conclude
that Aldape never directly criticized Tolentino for working too
slowly. Jesse Rebollar gave an example of where a welder
might normally take 2–3 hours to perform a task, Tolentino
took over a week. I simply do not credit this exaggerated tes-
timony. As indicated, no one ever criticized Tolentino for
working slowly, much less at a pace 20 times slower than nor-
mal.
J. Rebollar testified that sales were down and inventory was
up. He admitted that Respondent’s owner tries to avoid a lay-
off even when sales are down by building up inventory stock.
In June, sales were $3,848,394; in July they were $3,758,001;
in August they were $3,580,296; and in September they were
$2,775,099. But J. Rebollar also admitted that sales are nor-
mally higher in the summer and winter and should be lower in
the spring and fall. Concerning inventory levels, in June there
were 198 units, in July there were 125 units, in August there
were 205 units, in September there were 274 units, in October
there were 292 units, in November there were 249 units, in
December there were 194 units, in January 2008 there were 194
units, in February 2008 there were 200, in March 2008 there
were 159, and in April 2008 there were 194 units.
During the time period June 2007 to May 2008, nine em-
ployees quit at the Broadway facility, including one employee
the week before Tolentino was laid off. Also during that period
one employee was fired after he threatened a supervisor with
bodily harm for the second time. There is no evidence that any
employee other than Tolentino was permanently laid off be-
cause of slow sales. During that same period Respondent hired
10 other employees to work at the Broadway facility, including
two employees who were hired after Tolentino was laid off and
one employee who was hired 15 days before Tolentino was laid
off. There is no explanation as to why normal attrition could
not have alleviated any need Respondent may have had to re-
duce payroll.
B. Analysis
I first address the 8(a)(1) allegations. The complaint alleges
that during the Monday meeting Respondent threatened em-
ployees with plant closure and job loss if they supported the
Union.3 I have concluded above that the Monday meeting dealt
with Tolentino’s efforts to organize Respondent’s employees
and that during that meeting I. Rebollar told the employees that
Respondent would close its doors and the employees would
lose their jobs rather than permit unionization. By threatening
employees with plant closure and job loss for supporting the

3 Although these are separate allegations in the complaint the Gen-
eral Counsel in his brief deals with them together.
Union, Respondent violated Section 8(a)(1). Cardinal Home
Products, 338 NLRB 1004, 1011 (2003).
Continuing, the complaint alleges that Respondent threat-
ened employees that it would move its business overseas if the
employees supported the Union. To support this allegation the
General Counsel first relies on the testimony of Felix-Leon.
While being cross-examined by Respondent’s counsel Felix-
Leon was asked “At this meeting, there was no discussion of
the owner of Carson Trailer moving the operations to China;
correct?” Felix answered “I recall he said something about
moving, but I don’t exactly recall what.” No other witnesses
corroborated even this vague reference to moving. Next, the
General Counsel argues that Respondent implied that it would
move its operations overseas when I. Rebollar told the employ-
ees that Respondent had ship- building facilities in China where
the employees were paid considerably less than Respondent’s
employees at the Broadway facility. The General Counsel is
correct to the extent that he argues that unlawful threats can be
implied and subtle; they need not be direct. But here I cannot
find that employees might reasonably conclude that Respondent
was threatening to move the Broadway operation overseas.
Rather, in context I conclude that Respondent’s message was
that it had other operations where it made money and therefore
might well afford to close the Broadway facility but this falls
short of an implied threat to relocate the Broadway facility. I
conclude that the General Counsel has not met his burden of
providing credible evidence to prove this allegation and I there-
fore dismiss it.
Next, the complaint alleges that Respondent threatened to
deny unemployment benefits to laid-off employees because
employees supported the Union. I have concluded above that I.
Rebollar told the employees at the Monday meeting that an
employee (read Tolentino) might file a claim against Respon-
dent but the claim would not succeed because Respondent had
a piece of paper that it would use to defeat the claim. But there
is insufficient credible evidence that I. Rebollar told the em-
ployees that Respondent would use false reasons or unlawful
means to defeat any claim Tolentino might file. The General
Counsel cites Campo Slacks, 250 NLRB 420, 423 (1980), enfd.
mem. 659 F.2d 1069 (3d Cir. 1981). In that case the Board
concluded that a statement that an employee would receive
unemployment compensation if the employee did not give the
employer a “hassle,” under circumstances where the “hassle”
referred to the employee’s union activities, violated Section
8(a)(1). But that case is distinguishable because here Respon-
dent did not connect the defeat of the claim with Tolentino’s
union activities or any false or unlawful reason. I conclude
these remarks fall short of violating Section 8(a)(1) and
I dismiss this allegation.
Finally, the complaint alleges that Respondent told employ-
ees to quit if they supported the Union. During the Monday
meeting I. Rebollar told the assembled employees that Respon-
dent would not give into their stubbornness or demands; that
there were rules that had to be followed and the door was open
for those employees who would not follow those rules. In con-
text, I conclude Respondent was telling the employees that
those employees who did not want to work in a nonunion work-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1278
place should quit. This violates Section 8(a)(1). Equipment
Trucking Co., 336 NLRB 277 (2001).
I turn now to the 8(a)(3) allegation. In determining whether
Tolentino’s layoff was unlawful, I apply Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See also Manno Electric, 321
NLRB 278 (1996). Tolentino engaged in union activity. Re-
spondent contends that it did not learn of his support for the
Union until after he was laid off. I disagree. At the Monday
meeting Ildefonso Rebollar spoke of how Respondent had got-
ten rid of a “rotten apple” to avoid spoiling the rest of the ap-
ples. This was a not too subtle reference to Tolentino’s union
activities, Penn Color, Inc., 261 NLRB 395, 405 (1982), and to
getting rid of Tolentino to avoid having him spoil the other
employees with his union activity. This not only shows knowl-
edge of Tolentino’s union activities but, in context, it is an im-
plied admission that Tolentino was unlawfully terminated.
Also, I have concluded above that Respondent violated Section
8(a)(1) by threatening employees with plant closure and job
loss for supporting the Union and by telling employees to quit
if they supported a union. The precipitous nature of the layoff,
coming before the end of the workday and while important
work remained to be completed, highlights the suspicious na-
ture of Tolentino’s layoff. I conclude that General Counsel has
met his burden under Wright Line.
I now examine whether Respondent has shown it would have
laid off Tolentino for lawful reasons even if he had not engaged
in union activity. T & J Trucking Co., 316 NLRB 771 (1998).
Respondent argues that it laid off Tolentino because work was
slow and inventory was high. But apparently Respondent’s
business is somewhat cyclical in nature and it has not shown
that it lays off employees during the slow periods. Respondent
hired employees shortly before and shortly after it laid off To-
lentino; this casts doubt on Respondent’s claim that it had to
reduce payroll. Respondent experiences attrition in its work-
force as employees leave for various reasons; it has not ex-
plained why normal attrition would not have resolved any pay-
roll concerns it may have had. In its brief Respondent points to
the fact that in December the employees were furloughed for
about a 10-day period over the holidays where in the past they
had been off only for Christmas and New Years days. But this
fact does not assist Respondent in meeting its burden. It must
show what motivated it to take the action against Tolentino in
early September and not what motivated it to take action in late
December.
At the hearing and in its brief Respondent argues that Tolen-
tino was a slow worker. While I have concluded above that
Respondent has exaggerated this matter, I have nonetheless
concluded that Tolentino was a good but slow worker. I note
that Respondent did not tell this to Tolentino at the time of the
layoff, nor was Tolentino even warned that he needed to work
more quickly. Keep in mind that Respondent employs about
40–45 employees at the Broadway facility; it has presented no
evidence as to how Tolentino’s good but slow work compared
to the work pace of the other employees there. Remember that
Tolentino was the only welder at that facility and he had to be
replaced by another welder. Finally, the different versions of
Tolentino’s discharge form heighten the suspicious nature of
Respondent’s claims of a lawful reason for Tolentino’s layoff.
I conclude that Respondent has failed to show that it would
have laid off Tolentino even if he had not supported the Union.
By laying off Tolentino because he supported the Union, Re-
spondent violated Section 8(a)(3) and (1).
CONCLUSIONS OF LAW
1. By threatening employees with plant closure and job loss
for supporting the Union, and by telling employees to quit if
they supported a union, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By laying off Ernesto Tolentino because he supported the
Union, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent having discrimina-
torily laid off an employee, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended4
ORDER
The Respondent, Carson Trailer, Inc., Gardena, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure and job loss for
employees for supporting the Union.
(b) Telling employees to quit if they supported a union.
(c) Laying off or otherwise discriminating against any em-
ployee for supporting the Sheet Metal Workers International
Association, Local Union No. 170, AFL–CIO or any other union.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Ernesto Tolentino full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed.

4 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.
CARSON TRAILER, INC. 1279
(b) Make Ernesto Tolentino whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove
from its files any reference to the unlawful layoff, and within 3
days thereafter notify the employee in writing that this has been
done and that the layoff will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Broadway facility5 in Gardena, California, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on forms pro-
vided by the Regional Director for Region 31, after being signed
by the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since September 7, 2007.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.

5 In his brief the General Counsel requests a posting only at this fa-
cility.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the Notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of 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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten you with plant closure and job loss for
supporting the Sheet Metal Workers International Association,
Local Union No. 170, AFL–CIO, or any other union.
WE WILL NOT tell you to quit if you support a union.
WE WILL NOT lay off or otherwise discriminate against any of
you for supporting the Sheet Metal Workers International Asso-
ciation, Local Union No. 170, AFL–CIO, or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Ernesto Tolentino full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Ernesto Tolentino whole for any loss of earn-
ings and other benefits resulting from his discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful layoff of Ernesto
Tolentino, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the layoff will not be
used against him in any way.
CARSON TRAILER, INC.