Metro Truck Body, Inc.

National Labor Relations Board - Board DecisionsApr 20, 1976

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

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