U.S.A. Polymer Corp.

National Labor Relations Board - Board Decisions

Aug 24, 1999

328 N.L.R.B. 1242 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
U.S.A. Polymer Corp. and Texas-Oklahoma-
Arkansas District Council—UNITE. Cases 16–
CA–17189 and 16–CA–17455
August 24, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On March 25, 1996, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the Charging Party filed a brief in
support of the General Counsel’s exceptions and a re-
sponse in opposition to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions to
the extent discussed below, and to adopt the recom-
mended Order, as modified and set forth in full below.2
We agree with the judge’s findings that the Respon-
dent committed numerous, egregious violations of Sec-
tion 8(a)(1), (3), and (4) of the Act and that a bargaining
order should issue under the principles enunciated in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).3
The Board will issue a bargaining order, absent an
election, in two categories of cases. NLRB v. Gissel
Packing Co., supra. The first category is “exceptional”
cases, those marked by unfair labor practices so “outra-
geous” and “pervasive” that traditional remedies cannot
erase their coercive effects, thus rendering a fair election
impossible. The second category involves “less extraor-
dinary cases marked by less pervasive unfair labor prac-
tices which nonetheless have a tendency to undermine
majority strength and impede election processes.” In the
latter category of cases, the “possibility of erasing the
effects of past practices and of ensuring a fair election
. . . by the use of traditional remedies, though present, is
slight and employee sentiments once expressed by au-
thorization cards would, on balance, be better protected
by a bargaining order.” NLRB v. Gissel Packing Co.,
supra at 613, 614–615; and Cassis Management Corp.,
323 NLRB 456, 459 (1997).

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997).
3 In its brief in support of exceptions, the Respondent contends that
there has been no determination of the appropriate bargaining unit. The
judge did, in fact, make such findings in his decision at fn. 59. and in
his conclusions of law, item 3. The Respondent has neither filed excep-
tions to these findings nor disputed the judge’s description of positions
within the production and maintenance unit. Accordingly, we adopt the
judge’s finding concerning the unit appropriate for collective-
bargaining within the meaning of Sec. 9(b) of the Act as set forth in
item 3 of his conclusions of law.
Similarly, the Respondent has not filed exceptions to the judge’s
findings that the Union attained majority status in January 1995 or to
his findings concerning the authentication of 47 authorization cards in
the unit of 64 employees. The record shows that 41 cards were signed
on or before January 21, 1995, and that the remaining 6 cards were
signed on or before January 27, 1995. Accordingly, we adopt the
judge’s findings concerning majority status.
We find that the violations at issue in the instant case
constitute category I conduct within the meaning of Gis-
sel. The Respondent embarked on a series of pervasive
and increasingly coercive unfair labor practices within
weeks of the advent of the employees’ union activity.
The first union contact with employees occurred in the
latter part of September 1994, and the Union began its
formal organizing campaign in the early part of October
1994. By January 27, 1995, the Union had attained ma-
jority status in the bargaining unit.
As more fully described in the judge’s decision, the
Respondent unlawfully interrogated employees about
their union activity and the union activity of their fellow
employees. The Respondent also unlawfully threatened
employees with more onerous working conditions,
physical harm, layoff, discharge and other unspecified
reprisals for engaging in union and protected concerted
activity. Employees were unlawfully subjected to sur-
veillance and unlawfully promised a bonus or other re-
wards for not supporting the Union. The interrogations
and threats were widespread, involving 7 different super-
visors and at least 20 different employees.4
Furthermore, the Respondent made good on its threat
of layoff or discharge by laying off 29 unit employees
between January 27 and 30, 1995. These 29 employees
represented 45 percent of the employees in the proposed
bargaining unit and included 9 of 10 members of the em-
ployees’ organizing committee.5 To compound the im-
pact of this unlawful conduct, the Respondent further
violated the Act by issuing employees being laid off in
January 1995 a letter requiring them to call on a daily
basis, with failure to do so on 2 consecutive days “(caus-

4 The Respondent’s defense to these allegations rested primarily on
its contention that it had no knowledge of the union activity. Although
the Respondent filed exceptions to these violations of Sec. 8(a)(1)
found by the judge, it did not address the individual incidents in its
supporting brief. We adopt the judge’s findings.
The Respondent also excepts to the finding that Carlos Hallatt is an
agent of the Respondent. We note that Hallatt’s conduct is at issue only
in connection with his alleged interrogation of Lucio Aviles in January
1995. In view of the numerous instances of unlawful interrogations by
other respondent officials, a finding on this allegation would be cumu-
lative and would not affect the remedy.
5 In adopting the judge’s finding that the layoff of these 29 employ-
ees violated Sec. 8(a)(3) and (1) of the Act, we find it unnecessary to
rely on the statistical analyses presented by the Charging Party and
apparently relied on by the judge.
328 NLRB No. 177
U.S.A. POLYMER CORP. 1243
ing) us to consider you unavailable for work or having
resigned your position with our company.” In addition,
the Respondent’s supervisors told remaining employees
that those selected had been chosen because of their sup-
port for the Union in accord with the policy of John Baz-
baz, the Respondent’s president.
After the General Counsel issued a complaint concern-
ing the conduct summarized above, the Respondent con-
tinued to violate the Act by penalizing employees who
testified as witnesses for the General Counsel at the en-
suing unfair labor practice hearing. Specifically, the
judge found, and we agree, that the Respondent violated
Section 8(a)(4) and (1) of the Act by interrogating wit-
nesses for the General Counsel after they had testified,
asking other employees if they had received subpoenas to
testify, and advising them that they could ignore the sub-
poenas. In addition, the Respondent suddenly disci-
plined employees who had been witnesses for talking
among themselves, although there was no rule prohibit-
ing that behavior. In this regard, one employee received
an oral warning and two received written warnings.
When one of the latter refused to sign the written warn-
ing because he believed he had done nothing wrong,
Javier Guerrero, assistant to Bazbaz, fired him.6 The
Respondent also reduced employees’ regular working
hours and overtime after they had testified, while other
employees who had not testified were allowed to keep
their normal hours and overtime. Supervisor Israel
Zepeda told another employee that he had been in-
structed by Bazbaz and Guerrero to make things hard on
him for testifying against the Company.
In view of the foregoing, we find that the Respon-
dent’s intimidating course of conduct places it among
those exceptional cases warranting a bargaining order
under category 1 of the Gissel standard, because tradi-
tional remedies cannot erase the coercive effects of the
conduct, making the holding of a fair election impossi-
ble. See Cassis Management Corp., supra at 459. It
cannot be gainsaid that the Respondent’s discriminatory
layoff of nearly one-half of the bargaining unit, coupled
with contemporaneous statements that the reason for the
layoffs was the employees’ support for the Union and the
extensive conduct violative of Section 8(a)(1) and (4) of
the Act following the issuance of the first complaint,
constitute unfair labor practices that are both outrageous
and pervasive. The restorative effect that Board–ordered
reinstatement may have on unit employees is severely
diminished by this pattern of conduct. Accordingly, we
find that a bargaining order is warranted under category 1
standards.7

6 Bazbaz subsequently rescinded the dismissal.
7 Member Hurtgen finds it unnecessary to pass on whether a bargain-
ing order is warranted under category 1 standards. He agrees with his
colleagues that a bargaining order is warranted under category II stan-
dards. Member Hurtgen finds it unnecessary to pass on the unpled
(a)(1) violations found by the judge. In his view, these alleged viola-
Even if we were to find, however, that the violations
were less than “outrageous,” a bargaining order is war-
ranted under category II standards. The Board has long
held that threats of job loss are particularly coercive and
likely to undermine the possibility of holding a fair elec-
tion for an extended period. Garney Morris, Inc., 313
NLRB 101, 103 (1993), enfd. 47 F.3d 1141 (3d Cir.
1995). When such threats are made, employees receive
an unforgettable message that any efforts they make to
improve their working conditions could instead result in
the loss of their livelihood. Electro-Voice, Inc., 320
NLRB 1094, 1095 (1996). Here, where the employer
proceeded to carry out its threats against so substantial a
number of bargaining unit members, the message is not
likely to be soon forgotten. As the Board commented in
America’s Best Quality Coatings Corp.,8 discharge of
employees because of union activity “goes to the very
heart of the Act.” The Respondent’s outrageous conduct
did not end with its massive unlawful layoff of union
supporters, “the ultimate retaliation” for supporting a
union.9 Those employees who remained received a con-
tinuing message that those who were laid off had been
“rewarded” for their union support. They also received
the message that retribution for supporting the Union or
testifying as witnesses for the General Counsel was the
policy of the Respondent’s highest official, John Bazbaz.
In these circumstances, the possibility that employees
would thereafter express their uncoerced desires through
the mechanism of an election is slight, if it exists at all.
Accordingly, under the circumstances here, it is clear that
a bargaining order is not merely appropriate, but neces-
sary.10

tions are cumulative. Member Hurtgen finds it unnecessary to pass on
the question whether employee Montes de Oca was a guard.
8 313 NLRB 470, 472 (1993), enfd. 44 F.3d 516 (7th Cir. 1995),
cert. denied 515 U.S. 1158 (1995).
9 Cassis Management Corp., 323 NLRB 456, 457 (1997).
10 We reach this conclusion despite the passage of time of 4 years
since the unfair labor practices occurred and 3 years since the judge’s
decision issued. As in Garvey Marine, Inc., 328 NLRB 991,996–997
(1999), they conclude that the passage of time does not diminish the
need for and appropriateness of a bargaining order in this case.
Finally, Member Hurtgen does not agree with the Board’s decision
in Garvey Marine, Inc., supra at 998. However he notes that, in the
instant case, the Respondent does not contend that the passage of time
militates against the appropriateness of a bargaining order.
The Respondent has excepted to the judge’s finding that it violated
Sec. 8(a)(5) by refusing to recognize and bargain with the Union on the
ground that there is no such allegation in the complaint as amended. In
the particular circumstances of this case, we will delete the judge’s
finding since the General Counsel did not request this finding, and
finding this violation will not affect the remedy here. As the Board
explained in Peaker Run Coal Co., 228 NLRB 93, 93–94 (1977), noth-
ing in the Supreme Court’s Gissel opinion makes a finding of Sec.
8(a)(5) a prerequisite for issuing a bargaining order if the Board has
found that a union has attained majority status and that the respondent
employer has committed violations of the Act, falling within either
category I or category II as described in Gissel, which have undermined
the union’s majority status and “fatally impeded the holding of a fair
election.” As further explained in Peaker Run, in the absence of an
8(a)(5) allegation, the employer’s obligation to recognize and bargain
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 9 and renumber the follow-
ing conclusion of law accordingly.
AMENDED REMEDY
Because of the serious nature of the Respondent’s nu-
merous violations of the Act and their impact on the en-
tire unit, we require the Respondent to bargain with the
Charging Party as the duly designated representative of
the employees in the appropriate unit.
Because of its discriminatory discharge of the employ-
ees named in paragraph 5(a) of the judge’s conclusions
of law, the Respondent must offer those employees rein-
statement to the bargaining unit positions they held and
make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of dis-
charge 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).11

with the union commences on “the date on which the employer em-
barked on its unlawful antiunion campaign” Id. at 93. Accord: Ellis
Electric, 315 NLRB 1187, 1188 (1994). In this case, the Respondent’s
obligation commenced on January 27, 1995, when the Union had at-
tained majority status and the Respondent began its unlawful antiunion
campaign with the discriminatory layoffs of unit employees.
In its exceptions, the Respondent contends that the merger of the
Charging Party in Case 16–CA–17189, Texas-Oklahoma-Arkansas
District Council, ILGWU, a/w International Ladies Garment Workers’
Union, with the Amalgamated Clothing and Textile Workers to form
the Union of Needle Trades, Industrial and Textile Employees (UNITE)
precludes the issuance of a bargaining order because it raises a question
of continuity of representation. As described more fully in the judge’s
decision, there was considerable testimony and documentation by the
Charging Party to support its position that the post–merger entity,
UNITE, provides for substantial continuity of representation under the
four-part test set forth in Western Commercial Transport, 288 NLRB
214 (1988). The burden of proof is on the party seeking to prove dis-
continuity. Insulfab Plastics, 274 NLRB 817, 821 (1985), enf. 739
F.2d 961 (1st Cir. 1986). Here, the Respondent has not met that bur-
den. Its reliance on Pye v. Sullivan Bros. Printers, Inc., 38 F.3d 58 (1st
Cir. 1994), is misplaced, because here, unlike there, the new entity will
utilize the same leaders for contract administration and negotiation.
Moreover, the same rules, dues and infrastructure are in place under
UNITE as were present under the ILGWU. The Respondent relies
primarily on the fact that the merger will result in an entity with a
membership that is more than double the size of the ILGWU. That,
however, is a natural result of a merger that may result in increased
clout, but does not diminish the identity of the organization. Insulfab,
supra at 823.
11 As noted by the judge, the Respondent discriminatorily discharged
Marco Posadas, but avoided any backpay liability by reinstating him
before he suffered any backpay liability.
With regard to the alleged discriminatory layoff of 29 employees on
January 27, the judge found that the layoffs of all those employees
violated Sec. 8(a)(3) and (1). He also found, however, that “a layoff of
some level would have occurred at some point well after January 1995
but before June 1995” (emphasis added). He recommended leaving to
compliance the question of which employees would have been affected
by such a subsequent layoff or layoffs. We agree and note that prece-
dent dictates that in order to cut off the backpay of any given discrimi-
natee or discriminatees, the Respondent must show that he or she would
have been laid off in any event for a nondiscriminatory reason on the
The Respondent unlawfully retaliated against employ-
ees William Rosales, Camillo Ramirez, Jose Melendez,
and Jesus Martines by denying them scheduled working
and overtime hours. It must make them whole for their
lost earnings in the manner set out above.
The Respondent must reinstate the position of electri-
cian at its facility and offer Luis Aviles reinstatement to
this position in addition to the backpay set forth above.
The Respondent must rescind the written warnings it
gave William Rosales and Marco Posadas, remove any
record of those warning from their personnel files, and
inform them in writing that this has been done and that
those warnings will not be used against them in any way.
Because of the serious nature of the Respondent’s vio-
lations and because of the Respondent’s egregious, wide-
spread misconduct that demonstrates a general disregard
for its employees’ fundamental rights, we shall issue a
broad order that requires the Respondent to cease and
desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, U.S.A. Polymer Corp., Houston, Texas, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion sympathies and activities and the sympathies and
activities of fellow employees, and demeaning the Union
in coercive conversations with employees.
(b) Threatening employees with more onerous working
conditions, physical harm, layoff, discharge, and other
unspecified reprisals for engaging in union or other pro-
tected concerted activities.
(c) Creating the impression of surveillance or subject-
ing employees to surveillance because of their union or
other protected concerted activities.
(d) Promising employees a bonus or other reward for
not supporting the Union or engaging in other union or
protected concerted activities.
(e) Permanently laying off employees because they
engaged in union or other protected concerted activities

date for which a backpay cutoff is urged. See, e.g., EDP Medical
Computer Systems, 302 NLRB 54, 55 (1991), enfd. mem. 959 F.2d
1101 (D.C. Cir. 1992) (respondent must show, as an affirmative de-
fense, that discriminatee’s job was eliminated for nondiscriminatory
reasons after his unlawful discharge, in order to cut off backpay liabil-
ity); Pacemaker Driver Service, 290 NLRB 405 (1988), affd. sub nom.
Bales v. NLRB, 914 F.2d 92 (6th Cir. 1990) (employer which caused
employee terminations when it closed a terminal in violation of Sec.
8(a)(3) carried its burden of showing that it would have closed the
terminal for nondiscriminatory reasons on a particular date nearly 3
years later and that it would not have relocated the employees else-
where; backpay ends at that point).
U.S.A. POLYMER CORP. 1245
and to discourage them and other employees from sup-
porting the Union or engaging in other protected con-
certed activity.
(f) Selecting employees for permanent layoff because
they supported the Union or engaged in other protected
concerted activity.
(g) Eliminating the job classification of electrician to
avoid rehiring its discharged electrician because he sup-
ported the Union and engaged in union or other protected
concerted activity.
(h) Verbally warning employees not to talk with other
employees or threatening employees with unspecified
reprisals because they gave testimony contrary to the
interests of the Respondent in a Board hearing.
(i) Interrogating employees about their testimony
given in a Board proceeding and advising employees to
ignore Board issued subpoenas.
(j) Reducing the working hours of employees and
withholding overtime work to employees because they
gave testimony in a Board hearing and because they sup-
ported the Union or otherwise engaged in protected con-
certed activity.
(k) Imposing more onerous working conditions on em-
ployees in order to induce them to quit their employment
because they gave testimony in a Board proceeding, sup-
ported the Union, and engaged in other protected con-
certed activity.
(l) Issuing written warnings to employees and dis-
charging employees because they gave testimony in a
Board proceeding and supported the Union or engaged in
other protected concerted activity.
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:

All production and maintenance employees, including
operators, helpers, forklift operators, packers, mechan-
ics and electricians, and excluding all other employees,
supervisors, and guards as defined in the Act.

(b) Within 14 days, offer the employees named below
immediate and full reinstatement to their former bargain-
ing unit jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the amended
remedy section of this decision.

Miguel Alanis Mario Aparicio
Lucio Aviles Julio Hector Garcia
Hugo Benavides Jose Giron
Alejandro Blasic Oscar Godines
Rudolfo Bocanegro German Joya
Edgar Gerardo Carrera Luis Martines
Luis Castro Nery Mendoza
Nicholas Chajon Pedro Molgar
Elias Escobar Miguel Molina
Miguel Angel Molina Mauro Moran
Bethuel Montes De Oca Walter Jose Orellana
Felix Jovel Palacios Noe Ramirez
Manuel Perez Nelson Rodriquez
Mario Perez Jose Rosales
Lionel Campoverde Verde

(c) Make whole William Rosales, Camillo Ramirez,
Jose Melendez, and Jesus Martines for the unlawful de-
nial of their scheduled working hours and overtime hours
in the manner specified in the amended remedy section
of this decision.
(d) Within 14 days rescind the written warnings given
to William Rosales and Marco Posadas and remove any
record of such warnings from their personnel files.
Within 3 days thereafter inform them in writing that this
has been done and that such warnings will not be used
against them in any way.
(e) Preserve and, within 14 days of request, make
available to the Board or its agents for examination and
copying, all payroll records, timecards, personnel records
and reports, and all other records necessary to analyze
the amount of backpay under the terms of the Order.
(f) Within 14 days after service by the Region, post at
its facility in Houston, Texas, copies of the attached no-
tice in both English and Spanish, marked “Appendix.”12
Copies of the notice, on forms provided by the Regional
Director for Region 16, after being signed by the Re-
spondent’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 Respondent to ensure that the no-
tices 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 Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current and former employees
employed by the Respondent at any time since Novem-
ber 1, 1994.

12 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT coercively interrogate employees about
their union sympathies and activities and the union sym-
pathies and activities of fellow employees, and demean
the Union in coercive conversations with employees.
WE WILL NOT threaten employees with more onerous
working conditions, physical harm, layoff, discharge, and
other unspecified reprisals for engaging in union or other
protected concerted activities.
WE WILL NOT create the impression of surveillance or
subject employees to surveillance because of their union
or other protected concerted activities.
WE WILL NOT promise employees a bonus or other re-
ward for not supporting the Union or engaging in other
union or protected concerted activities.
WE WILL NOT permanently lay off employees because
they engaged in union or other protected concerted ac-
tivities and to discourage them and other employees from
supporting the Union or engaging in other concerted pro-
tected activity.
WE WILL NOT select employees for permanent layoff
because they supported the Union or engaged in other
protected concerted activity.
WE WILL NOT eliminate the job classification of elec-
trician to avoid rehiring our discharged electrician be-
cause he supported the Union and engaged in union or
other protected concerted activities.
WE WILL NOT verbally warn employees not to talk with
other employees or threaten employees with unspecified
reprisals because they gave testimony in a National La-
bor Relations Board hearing.
WE WILL NOT interrogate employees about their testi-
mony given in a National Labor Relations Board pro-
ceeding and advise employees to ignore Board issued
subpoenas.
WE WILL NOT reduce the working hours of employees
and withhold overtime work to employees because they
gave testimony in a National Labor Relations Board
hearing and because they supported the Union or other-
wise engaged in protected concerted activity.
WE WILL NOT impose more onerous working condi-
tions on employees in an attempt to induce them to quit
their employment because they gave testimony in a Na-
tional Labor Relations Board proceeding, supported the
Union, and engaged in other protected concerted activity.
WE WILL NOT issue written warnings to employees and
discharge employees because they gave testimony in a
National Labor Relations Board proceeding and sup-
ported the Union or engaged in other protected concerted
activity.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All production and maintenance employees, including
operators, helpers, forklift operators, packers, mechan-
ics and electricians, and excluding all other employees,
supervisors, and guards as defined in the Act.

WE WILL, within 14 days of the date of the Board’s
Order, offer the employees named below immediate and
full reinstatement to their former bargaining unit jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
plus interest.

Miguel Alanis Mario Aparicio
Lucio Aviles Julio Hector Garcia
Hugo Benavides Jose Giron
Alejandro Blasic Oscar Godines
Rudolfo Bocanegro German Joya
Edgar Gerardo Carrera Luis Martines
Luis Castro Nery Mendoza
Nicholas Chajon Pedro Molgar
Elias Escobar Miguel Molina
Miguel Angel Molina Mauro Moran
Bethuel Montes De Oca Walter Jose Orellana
Felix Jovel Palacios Noe Ramirez
Manuel Perez Nelson Rodriquez
Mario Perez Jose Rosales
U.S.A. POLYMER CORP. 1247
Lionel Campoverde Verde

WE WILL make whole William Rosales, Camilio Rami-
rez, Jose Melendez, and Jesus Martines for the unlawful
denial of their scheduled working hours and/or overtime
hours, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the written warnings given to William
Rosales and Marco Posadas, remove such warnings from
their personnel files and WE WILL, within 3 days thereaf-
ter, inform them in writing that this has been done and
that such warnings will not be used against them in any
way.
U.S.A. POLYMER CORP.

Robert J. Levy, II, Esq., for the General Counsel.
Whitney McGee Head, Esq. and Deborah O. Cantrell, Esq., of
Houston, Texas, for the Respondent.
Liane A. Janovsky, Esq., of Dallas, Texas, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This
case1 was tried in Houston, Texas, on June 5–21 and October
17 and 18, 1995:2 Based on charges filed by the predecessor of
Texas-Oklahoma-Arkansas District Council—UNITE (the
Union) complaint and notice of hearing issued on March 21,
1995, and an amended complaint issued on May 5, 1995. The
complaints allege that U.S.A. Polymer Corp. (the Respondent
or Company) engaged in conduct in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act). Subse-
quent to the closing of the record in Case 16–CA–17189 on
June 21, 1995, additional charges were filed by the Union
against Respondent and a complaint issued in Case 16–CA–
17455 alleging that Respondent has engaged in further conduct
in violation of Section 8(a)(1) and (3) of the Act and addition-
ally, has violated Section 8(a)(4) of the Act. The General
Counsel in these proceedings filed a motion to reopen the re-
cord in Case 16–CA–17189 and consolidate it with Case 16–
CA–17455, alleging that the matters involved in the new case
are intimately related to matters already litigated. There was no
opposition to this motion and it was granted. Hearing on the
consolidated complaint was held October 17 and 18, 1995.
Based on the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the briefs
filed by the parties, I make the following

1 The Charging Party in Case 16–CA–17189 was Texas-Oklahoma-
Arkansas District Council, ILGWU, a/w International Ladies’ Garment
Workers’ Union. On July 1, 1995, this Union merged with the Amal-
gamated Clothing and Textile Workers Union to form a new union
known an Union of Needle Trades, Industrial and Textile Employees
(UNITE).
2 All dates in the months of September, October, November, and
December are in 1994 unless otherwise noted. All dates in the months
of January, February, March, April, May, June, July, and August are in
1995 unless otherwise noted.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, engages in the recycling of plas-
tic material for commercial sale at its office and place of busi-
ness in Houston, Texas. It admits in its answer to the com-
plaints and I find, that at all material times it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues for Determination
Respondent is a wholly owned subsidiary of Z. L. Star, a
holding company which owns a number of other enterprises
including a company called Polytex Fibers. In 1992, Respon-
dent was created from a division of Polytex Fibers and became
an independent company. The officers and supervisors of Re-
spondent are: Isaac Bazbaz, president of Z.L. Star, John Baz-
baz, president of Respondent, Javier Guerrero, assistant to John
Bazbaz, Luis Mendoza, plant manager, and Fernando Molina,
Sergio Palacios, German Robles, Cesar Portillo, Israel Zepeda
and Augustine Garcia, plant supervisors.3 During most of the
timeframe, January 1994 through January 1995, it employed
about 60–65 nonsupervisory employees engaged in various
aspects of recycling plastic materials. The Company recycles
high-density polyethylene and polypropylene. In its polyethyl-
ene production, it recycles postconsumer polyethylene resin,
which is derived from, inter alia, milk jugs and detergent bot-
tles. The raw material for recycling is purchased in bales, then
washed, blended, ground, and extruded or pelletized to make a
finished product. The pelletized recycled plastic is then sold to
other companies which use the product in the manufacture of
new containers and other products. In its process the Respon-
dent uses a number of machines, including washers, grinders,
and extruder/pelletizers. Its polypropylene process utilizes raw
materials obtained from commercial sources and is not depend-
ent upon consumer recycling. Employees who work on the
washers, blenders, grinders, and the extruder are called opera-
tors and helpers. The Company also employs forklift operators,
and a lab technician. Prior to a layoff which occurred in late
January it employed electricians and mechanics who performed
most electrical and mechanical maintenance duties at the plant.
Subsequent to the layoff these duties have been subcontracted.
In the event a representation election were to be held, the unit
would likely include the operators, helpers, forklift drivers,
electricians, and mechanics.
The Union’s involvement with Respondent began in the last
part of September, when a Houston man with connections with
a number of unions, Andres Reyes Garza, received a call from
an employee of Respondent, Luis Castro, who expressed inter-
est among the employees of Respondent in having union repre-
3 The names of various persons involved in this proceeding are
spelled differently in various parts of the transcript and in the pleadings
and briefs. I have adopted one spelling for each person and have stuck
with the spelling throughout this decision. If the spelling I have adopted
is not the correct one, I apologize (to) the person whose name is mis-
spelled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
sentation. Garza passed the message on to the Union and was
employed as an assistant organizer and was given clearance to
continue talking to the employees. The Union embarked on a
formal organizing campaign in the early part of October. The
Union also assigned one of its full-time organizers, Ricardo
Medrano, to work on organizing Respondent’s employees.
With the help of some interested employees, the organizers
secured the names, addresses, and phone numbers of the other
employees. They began a study of Respondent’s business, look-
ing at its ownership, management, competition, and customers.
They also looked into the wage and benefit structure and at
plant working conditions. House calls on employees were con-
ducted and meetings with employees held in October, Novem-
ber, and December. Interest in representation was high and in
January the Union established an employee organizing commit-
tee. The 10 members of this committee were Lucio Aviles,
Alejandro Blasio, Rodolfo Bocanegra, Edgar Carrera, Luis
Castro, Javier Garcia, Jose Giron, Guadalupe Leal, Luis Marti-
nes, Pedro Molgar; Nery Mendoza, Miguel Molina, Manuel
Perez, Felix Palacios, Mario Perez, Miguel Lancan Perez,
Marco Posadas, Jose A. Rosales, and William Rosales.
On January 7, the Union sent to Respondent a letter by certi-
fied mail in which it noted the names of employees on the or-
ganizing committee. Copies of the letter were given to every-
one on the committee and perhaps other employees. John Baz-
baz testified that the Respondent did not receive this letter,
testifying that it did not get the signature card which accompa-
nies certified mail. I do not credit this testimony. Instead I find
that it refused to accept the letter. The envelope in which the
letter was sent shows that the Post Office made at least two
attempts to deliver it. Company mail is received by Polytex
Fibers, which sends it to U.S.A. Polymer. Bazbaz testified that
Respondent was advised by counsel on or about February 3,
1995 not to accept certified mail from the Union to avoid a
recognition request based on a card majority. I believe and find
that assuming such counsel was given, it was given at the time
of the first certified letter from the Union, whose name promi-
nently is shown on the envelope. As will be discussed in con-
nection with various of the alleged violations of the Act, Re-
spondent had knowledge of the organizing campaign prior to
January.
During the first 3 weeks of January, the Union secured
signed authorization cards from about 58 or 59 of the 64 em-
ployees of Respondent who would be in the bargaining unit.
Then, beginning January 27, the Respondent laid off about 29
of its employees. The General Counsel contends that the layoff
was aimed at stifling the Union organizing effort and was the
culmination of a number of threats and intimidating conversa-
tions the Respondent’s supervisors had directed at employees
during the campaign. Accordingly the General Counsel argues
alternatively that the layoff itself was unlawful, or if economic
justification existed for the layoff, the selection of employees to
be laid off was discriminatory and unlawful.4 Respondent con-
tends otherwise. It asserts that it had no knowledge of any
organizing activity until after the layoff. Several witnesses

4 All of the employees laid off were employees who had signed un-
ion authorization cards prior to the layoff. Only five non-supervisory
employees did not sign authorization cards. These employees were
Hugo Barrera, Manuel Medrano, Antonio Suarez, Abraham Tobar, and
Jose El Cid. All of these employees with the exception of El Cid are
still employed by Respondent. These five employees were also unaf-
fected in the July 1995 layoff.
characterized the campaign as a quiet one, but would not agree
that it was a secret campaign. The employees did not wear un-
ion buttons or other union insignia during the campaign, having
been told by organizer Garza that they would be fired by the
Employer if they wore them. Respondent contends that the
layoff was economically motivated. John Bazbaz testified that
with the exception of 2 months in 1994, the Company has not
been profitable during its existence. According to Bazbaz,
Respondent had to undertake some action to cure the economic
problem, and that resulted in a layoff. According to the brothers
Bazbaz, the decision to make the layoff was made in the first
couple of weeks of January 1995. Though the evidence regard-
ing how the number of employees to be laid off was derived is
somewhat conflicting, at least one formula suggested was that
they decided to reduce the Company’s operating time by 30
percent. At the time of the layoff, the Company had about 64
nonsupervisory employees. It laid off 29 or about 45 percent of
such employees.
After the layoff, some of the employees came to the Union
office and informed the Union that they had been laid off. The
Union then investigated to determine the reasons for the layoff
and found that the remaining employees were fearful and would
not talk to its representatives or return their phone calls. At
least three union meetings were held after the layoff and with
the exception of a handful of current employees of Respondent,
were primarily attended by laid off employees. The involved
union organizers were told by present employees that the layoff
had instilled fear in their fellow workers. Since the layoff the
Union has been unable to get any additional employees to sign
cards. The organizers each testified that they had never before
encountered a campaign where almost half of the work force
was laid off during an organizing campaign. Following the
layoff, the Union filed charges with the Board which resulted in
the issuance of the first complaint.
The first complaint alleges that at various times during the
campaign, certain of Respondent’s supervisors committed vio-
lations of Section 8(a)(1) and (3) of the Act, primarily in con-
versations with employees. Additionally, it alleges that the
layoff of about half of the employees in January 1995 was dis-
criminatorily motivated and violated Section 8(a)(3) of the Act.
Following the first hearing in this matter, held in June 1995, a
second complaint was issued, the two complaints were consoli-
dated and the new allegations were litigated at a hearing held in
October 1995. The second complaint alleges that following the
first hearing here, the Respondent committed certain Acts in
violation of Section 8(a)(1), (3), and (4) of the Act, including
threatening employees, reducing overtime to certain employees
and laying off 10 additional employees in July 1995. Respon-
dent denies all allegations that it committed the unfair labor
practices alleged and asserts that the second layoff was the
result of a decision to cease its polyethylene production for
economic reasons. Respondent admitted the supervisory status
of Issac Bazbaz, president of Z. L. Star, John Bazbaz, president
of Respondent, Javier Guerrero, assistant to John Bazbaz, Luis
Mendoza, plant manager, and Fernando Molina, Sergio Pala-
cios, German Robles, Israel Zepeda, Cesar Portillo, and
Augustine Garcia, plant supervisors. However it denies super-
visory or agency status of a consultant named Carlos Hallatt
and asserts that one of the alleged discriminatees, Lucio Aviles,
was a supervisor and not a rank-and-file employee. Respondent
further contends that one employee, Montes De Oca, was a
guard and not a production employee. These issues with respect
U.S.A. POLYMER CORP. 1249
to the status of Hallatt, Aviles, and De Oca will be resolved
below before making findings with respect to the alleged unfair
labor practices.
B. The Supervisory Status of Lucio Aviles and Carlos Hallatt
and that of Montes De Oca as a Guard
1. Was Lucio Aviles a supervisor?
Lucio Aviles was one of the first employees of Respondent,
having been employed by it at its inception. Aviles had previ-
ously been employed by Polytex Fibers and transferred to Re-
spondent when it was formed. He performed electrical mainte-
nance and electrical installation work for Respondent and also
performed similar work on occasion for his previous employer
Polytex Fibers and other of the Z. L. Star companies. He was
active in the campaign and was one of the employee organizing
committee members. He was one of the employees laid off on
January 27 and is alleged to be a discriminatee. Respondent
takes the position that he was a supervisor with the Company
because, according to John Bazbaz, Aviles directed other elec-
trical employees’ activities. Bazbaz also testified that Aviles
also planned installations, including deciding what materials
were needed and then having the people under him perform the
work. Bazbaz was able however to remember only one em-
ployee by name that Aviles ever supervised, a Miquel Perez,
and could remember no specific jobs that Aviles had purport-
edly supervised. Bazbaz also admitted that no one can order
materials without either his approval or that of his brother Isaac
Bazbaz.
Aviles testified that he was an employee and was supervised
by Carlos Hallatt. Hallatt is employed, according to Bazbaz, as
an independent consultant to help solve critical maintenance
problems and also to build and modify equipment. Bazbaz also
admitted that Hallatt advised Aviles on a daily basis about what
needed to be done as it related to electrical matters. Bazbaz
testified that he advised Aviles of his supervisory status at the
time he began working for Respondent, adding that he told
Aviles that he was to supervise the people hired to work under
him, to train these workers and direct them. He contends he
gave Aviles the power to suggest that employees be fired and
the authority to request that employees be hired and approve
the hiring. According to Bazbaz, Aviles could request of him
that overtime be approved and could recommend wage in-
creases for employees working under him. The record contains
no concrete examples of any exercise of any of these alleged
powers by Aviles.
Aviles considers Hallatt to be his supervisor because he in-
structed him on a daily basis concerning what was to be done
that day. Additionally, John Bazbaz told him when Hallatt was
hired that he was his supervisor. Bazbaz did not tell him that
Hallatt was a consultant and not an employee of Respondent.
Aviles denied that any one ever told him he was a supervisor.
In this regard he related a conversation he had with John Baz-
baz and Hallatt in November. Aviles had a meeting with the
two and complained to them about a deduction from his pay.
Bazbaz told him it was a punishment for failing to answer his
beeper. Bazbaz agreed that the deduction would cease after the
pay period. Aviles salary had been increased because he per-
formed work for other Z. L. Star companies, Super Bag, and
Polytex Fibers. Hallatt then said that they wanted him to be a
supervisor. Aviles said he did not want that position and re-
fused to accept it. Hallatt then asked if he would be a lead man.
Aviles said he did not want that either, he just wanted to con-
tinue doing his job. Bazbaz and Hallatt agreed to honor Aviles’
wishes. Aviles denied he had any of the indicia of a statutory
supervisor. Support for this position can be found in the testi-
mony of Luis Martines.
Luis Napoleon Martines was employed as an electrician by
Respondent in August 1994 and worked with Aviles. He testi-
fied that his supervisor was Carlos Hallatt. He was not told that
Aviles was a supervisor. Hallatt told him when he was hired
that he would be an electrician and work for him. Not only did
Aviles not supervise his work, he occasionally told Aviles how
to perform some electrician’s duties, telling Aviles what to do
and how to do it.
Further support for finding Aviles not to be a supervisor can
be found from two other sources. First, Respondent uses ac-
counting codes for its various departments, assigning the 900
code series to supervisors. Aviles was assigned a 700 code, the
one for the maintenance department. Second, both Bazbaz and
his assistant, Javier Guerrero, gave some rather unbelievable
testimony regarding Aviles. Although Aviles was a longtime
employee and had been given two raises in the fall of 1994,
both Bazbaz and Guerrero called Aviles slow, undependable
and incapable of performing electrical tasks that needed doing.
This testimony came in defense of the decision to lay off Aviles
and thereafter permanently eliminate the position of electrician
at the Company. Respondent now contracts for electrical work
that Guerrero cannot perform himself. This wholly unnecessary
and unbelievable attack on Aviles competency belies much of
their testimony about him and his position with the Company.
Guerrero also testified in another context that no supervisor was
laid off in the January layoff. This testimony also belies Re-
spondent’s position that Aviles was a supervisor.
Based on the credible evidence adduced and specifically
crediting the testimony of Aviles over that of Guerrero and
Bazbaz, I find that Aviles was simply an electrician and not a
supervisor. As noted above, there is no evidence to support
supervisory status except for the testimony of Bazbaz and
Guerrero to the effect that Aviles was a supervisor and there is
clear evidence that he was not. I do not credit the testimony that
he possessed supervisory powers as no example of the exercise
of such power was given and the evidence supplied by Luis
Martines refutes such a contention. I also credit Aviles’ testi-
mony about his conversation in November with Bazbaz and
Hallatt that clearly shows that he was not a supervisor.
2. Was Carlos Hallatt a supervisor or agent?
Carlos Hallatt has been employed for 18 years as a consult-
ant by Instalaciones Anahuac, of Mexico City and is assigned
by that company to provide service to Respondent pursuant to a
consulting agreement. This assignment began about January
1994 and continues to date. Respondent pays $2000 per week,
plus about $2000 a month in expenses for Hallatt’s services.
Hallatt calls himself an industrial technician and gives advice
and direction for layouts and maintenance of the entire recy-
cling system operated by Respondent. He has known the Baz-
baz family for about 20 years and has previously done consult-
ing work for them at companies they have owned in Mexico.
Hallatt did not deny the assertions made by Aviles and Mar-
tines that they were told that he was their supervisor and that he
supervised their activity. Thus he does possess one of the crite-
ria for determining supervisory status, that of independently
directing the work of other employees. The only reason that this
matter is an issue is whether a conversation Hallat had with
Aviles on January 27 can be attributed to the Respondent. Be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
cause Hallatt was introduced to Aviles as his supervisor, I be-
lieve that Respondent cloaked him with authority to speak on
behalf of management and thus, I find that Hallatt is at least an
agent of Respondent within the meaning of the Act.
3. Was Montes de Oca a guard?
Bethuel Montes de Oca Mendoza worked for 3 years for Re-
spondent until he was laid off in January. He testified that in the
last part of 1994 and the first part of 1995, he worked on con-
veyors, feeding raw material into the grinders. An affidavit
given to the Board by the witness states: “I would say as of
September 1994, I worked guarding the door and checking on
the parking lot and taking care of the dogs only.” When asked
repeatedly what he did after September 1994, Montes de Oca
could not remember. He did not carry the employee code car-
ried by most of the other employees who worked in the recy-
cling process. The only other employee I could find who had
the same code as Montes de Oca and who testified was a
packer. In support of Respondent’s position on this matter is the
fact that after Montes de Oca was laid off, it employed an inde-
pendent security agency to provide a guard.
I find that the evidence adduced with respect to the status of
Montes de Oca is inconclusive on the issue of whether he is a
guard. Clearly he was a production employee for several years.
Thus for the purposes of this decision, I find that he was a pro-
duction employee who apparently performed some functions
that might be classified as those of a guard. I find that he should
be treated the same as the other production employees laid off
by Respondent.
C. The Alleged Unfair Labor Practices Committed by Supervi-
sors Prior to the January 27 Layoff
As noted earlier, the complaint alleges that a number of Re-
spondent’s admitted supervisors engaged in conversations with
employees prior to the January 27 layoff in which the employ-
ees were interrogated about their union activity, the union
activity of fellow employees and were threatened with a variety
of reprisals for engaging in such protected activity. The allega-
tions, if established, also demonstrate Respondent’s knowledge
of the organizing campaign almost from its inception. Specifi-
cally the complaint alleges that Respondent violated the Act by:

7. Supervisor Augustine Garcia:5

(a) In mid-December, interrogating employees con-
cerning their union activities.
(b) About January 25, interrogating employees con-
cerning their union activities.
(c) About January 27, telling employees that they had
been laid off because of their union activities.
(d) About January 27, telling employees that fellow
employees were laid off because of their union activities.
(e) In early January, interrogating employees concern-
ing the union activities of fellow employees.
(f) In early December, interrogating employees con-
cerning the union activity of fellow employees.
(g) In early December, threatening employees with
discharge if they supported the Union.

8. Supervisor Javier Guerrero:

5 The paragraph numbers used in this section relate to the paragraph
numbers in the complaint.
(a) In late November, questioning employees as to
whether they were going to continue to pass out union ma-
terial.
(b) About January 27, told employees that the time
they were on layoff status would give them the opportu-
nity to consider their involvement with the Union.
(c) About February 2, told employees that their layoffs
were because they were involved with the Union.
(d) Supervisor Javier Guerrero, about July 7, telling
employees that they had been selected for layoff because
of their support for the Union.

9. Supervisor Fernando Molina:

(a) About December 15, and at various times thereaf-
ter, interrogating employees concerning their involvement
with the Union.
(b) About December 15, threatening employees with
discharge for engaging in activities on behalf of the Union.

10. Supervisor Sergio Palacios:

(a) About January 5, interrogated employees concern-
ing the involvement of fellow employees in the Union.
(b) About January 27, advising employees that had
they identified the Union supporters to him, they would
not have been laid off.
(c) About January 24, denying an employee assistance
because he was believed to be a union supporter.

11. Supervisor Herman Robles:

(a) In November, interrogating employees concerning
their union activities.
(b) In November, threatening employees by stating
that if they were involved with the Union, they would be
fired.

12. Supervisor Caesar Portillo:

(a) About mid-December, threatening employees with
more onerous working conditions if they would not tell
Respondent who was active on behalf of the Union.
(b) In mid-December, threatening employees with dis-
charge if Respondent discovered who was supporting the
Union.
(c) In mid-December, threatening employees with
physical harm if Respondent discovered that they were
distributing Union literature.
(d) About January 7, threatening employees with dis-
charge if Respondent discovered that they were involved
with the Union.
(e) About January 7, telling employees that if they did
not like the way things were at Respondent, they should
look for another job.
(f) About January 7, interrogating employees as to
their union activities.
(g) About January 13, interrogating employees con-
cerning their union activities.
(h) About January 13, threatening employees that if
they did not like how things were going at Respondent,
they should quit.
(i) About January 20, threatening employees with dis-
charge because their names had been sent in a Union letter
to the Company.
U.S.A. POLYMER CORP. 1251
(j) About January 20, threatening employees that if
Respondent discovered that they were active on behalf of
the Union, they would be fired.
(k) About January 20, offering employees a bonus if
they would disclose the identity of union adherents.
(l) About January 24, threatening employees with dis-
charge if they continued their involvement with the Union.
(m) About January 24, creating the impression of sur-
veillance by telling employees that Respondent knew that
they had attended Union meetings.
(n) About January 23, interrogating employees con-
cerning the union activity of fellow employees.
(o) About January 25, threatening employees with dis-
charge if they supported the Union.

Hereinafter, the evidence adduced with respect to the alleged
prelayoff violations by supervisors will be discussed under
subheadings for each involved supervisor. A number of conver-
sations with or interrogations and threats by supervisors that are
not specified in the complaint were testified about by the em-
ployee witnesses. Those conversations or interrogations which
occurred before the January 27 layoff will be considered on
their merits as Respondent’s defense to these is simply that no
conversations about the Union between management and em-
ployees could have occurred before the layoff as Respondent
denies any knowledge of the union campaign until after the
layoff. Under these circumstances, Respondent would not be
denied due process as no investigation of these conversations is
necessary. On the other hand, with one exception, conversa-
tions which are not alleged to be unlawful in the complaint
occurring after January described by the employee witnesses
will not be considered on the merits as Respondent was not
given the opportunity to investigate the circumstances of these
alleged conversations.
Supervisor Ausgustine Garcia
Supervisor Augustine Garcia asked employee Guadalupe
Leal if he was in the union movement while he was working in
December. Leal said that he was. Garcia said that he was not
interested in the Union.6
Hugo Benavides, began working for Respondent in Septem-
ber 1994 as a grinding machine operator. About the middle of
December 1994, Supervisor Augustine Garcia spoke to him
while he was working. Garcia asked him if he was in the Un-
ion. Benavides replied that he was in the process of getting in
the Union.7
In the latter part of January, Supervisor Garcia approached
employee Nelson Chajon while he and Lucio Aviles were dis-
cussing the Union. Aviles left and Garcia asked him what they
were saying about the Union. Chajon did not answer and Garcia
asked why he did not want to tell him. Garcia left at this point.8
On January 25, Supervisor Garcia asked forklift operator
Manuel Perez at work, if he was attending union meetings and
Perez answered that he was not. Perez had attended such meet-
ings, but feared he would be fired if he admitted it.9
On January 27, electrical employee Luis Martines had a con-
versation with Supervisor Garcia. Garcia told him, “Do you
realize what happens to the suckers—all the stupid guys that

6 This testimony relates to complaint allegation 7(a), above.
7 This testimony relates to complaint allegation 7(a), above.
8 This testimony relates to complaint allegation 7(b), above.
9 This testimony relates to complaint allegation 7(b), above.
are involved with the union? We kicked out the first sucker and
you wait and see what is going to happen to the others.” The
witness responded, “We were going to get fired because we
were fighting against injustice?” According to the witness,
Garcia said, “We kicked out—we fired that shit, Jose Rosales,
and we are going to continue with all the others.” Garcia told
him to wait, that they were going to see what was going to hap-
pen to them.10
Martines also testified that in about November, he spoke
with supervisor Garcia while working at his job. Garcia ap-
proached him and said, “Aww, you know, quit this cock-
sucking maneuver or act. Quit this nonsense—stupid things.
John Bazbaz, Javier Guerrero already know that you are the
leader of this movement.” The witness added that Garcia also
told him to stop his involvement with the Union, because Baz-
baz fired employees who tried to get the Union in. Garcia
added that he knew that Martines was the leader of the move-
ment and that Lucio Aviles was the second in command. Garcia
then asked who were the other union supporters and when they
were going on strike. The witness did not answer. Garcia then
told him that the boss was not going to rest until he saw they
were out of a job and that the employees were going to be sorry
for organizing the Union.11
Employee Pedro Molgar testified that around January 30, he
asked Supervisor Garcia why the employees had been laid off.
Garcia told him they were laid off because of the problem they
were causing the Company, identifying the Union as the prob-
lem.12
Supervisor Javier Guerrero
On January 27, Guerrero told Castro and another employee,
Hugo Benavides they were being laid off because of a lack of
material. Castro told him that the real reason for the layoffs was
the Union. Guerrero responded by saying it is the policy or
politics of John Bazbaz. Guerrero suggested that if he wanted to
talk further to call his lawyer. Castro asked why and Guerrero
told him “Because you are going to need it.” Guerrero then
laughed at him. Castro said this was not a joke and Guerrero
said, “Take it as you wish.”
Later that day, Castro encountered Supervisor Portillo, who
said, “It has happened.” Castro asked, “What are you talking
about?” Portillo answered, “You got fired.” Castro said, “You
already knew.” Portillo responded, “Yes.” Castro said, “Thank
you for your good help.”
At a later point on the January 27, Guerrero went to Castro at
the densifier where Castro was speaking with some other em-
ployees. He was accompanied by a security guard. Guerrero
threatened the employees, saying, “Quit talking about that un-
ion. See what happened to (Castro). This could happen to you,
too. If you don’t leave, I am going to kick you out.” Castro
left.13
Employee Montes de Oca related a conversation he had in
early 1995 with Supervisor Javier Guerrero. He was waiting to
10 This testimony relates to complaint allegation 7(c) and (d), above.
11 This testimony relates to complaint allegations 7(a), and or 7(f)
and (g), above.
12 I believe the correct date for this conversation was January 27, the
date of the layoff. Molgar was not laid off until January 30. It was
pointed out that in his affidavit to the Board, Molgar did not say that
Garcia identified the Union as the problem causing the layoff. This
testimony relates to complaint allegation 7(d), above.
13 This threat is not alleged in the complaint, but is credited in any
event for the reasons set forth later in this section.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
give another employee some authorization cards to distribute.
Guerrero asked him, “What the fuck are you doing with those
cards?” Guerrero then told him that if he continued to distribute
the cards, he would fire him.14
Lucio Aviles testified that around the beginning of January,
1995, while repairing an electrical problem with a fellow em-
ployee, Luis Martines, supervisor Javier Guerrero approached
them angrily and put his hands on the panel that Aviles and
Martines were working on. Aviles told him to calm down.
Guerrero raised his hands in an agitated way and told Aviles to
“quit the cocksucking attitude, because that is what you are.
And that is what you are doing with the union.”
Electrical employee Martines also remembered this occasion.
He testified that Guerrero approached them in an angry manner
and asked, “What the fuck we were doing there.?” They were
performing electrical work on a panel. Guerrero tried to close
and open the doors of the panel and Aviles told him to be care-
ful because they had not finished repairing the panel. They had
cut the electricity to the panel while they were repairing it.
Guerrero said to “Quit all this shit. You [referring to Aviles]
and those of the union will suck my prick. These are just cock-
sucking things.” According to Martines, Guerrero was furious
and he began to roll up the sleeves of his shirt and gestured at
Aviles. The witness saw that Guerrero was angry and told Av-
iles to leave. He testified that Hallatt was observing this inci-
dent but did nothing.15
Luis Martines testified that on January 27, he was told to re-
port to Guerrero.
Guerrero told him to sign a paper, but hid what the paper
said. The witness said he could not sign without knowing what
he was signing. According to Martines, Guerrero said, “I want
to tell you the truth. This is a policy of John Bazbaz to fire all
those from the union. This is why we are going to give lay-off
to all of them.” The witness asked why all the employees were
being laid off when there was so much work to be done. Guer-
rero replied, “That is the boss’ policy.16
Alejandro Blasio learned he was being laid off on January 27
when he arrived for work about 3 p.m. A supervisor, Fernando
Molina told him to punch his timecard and report to Javier
Guerrero. When he did so he met with Guerrero in the company
of almost all of the employees on his shift, including Edgar
Carrera , Jose Giron, and Nery Mendoza. In all about 8 to 10
employees were at this meeting. The witness described the
meeting thusly: “Javier Guerrero was behind his desk. Every-
body else was around him. I arrived; I was one of the last ones.
I went in. He gave me an envelope, and he told me, ‘We are
giving you layoff because of a lack of work.’ Guerrero gave
him a letter. I opened the envelope. And Javier Guerrero told
me, ‘Sign the copy, give it to me, and keep the original.’ And I
said, Why is this? He said, ‘Because there is no work, and so
we are going to have a temporary personnel reduction.’ And
then at that time my workmate, Jose Giron, asked Javier Guer-
rero, ‘Javier, why are they laying off or letting go everyone
whose name appears on the letter of the organizing committee
that the union sent to the company?’ Javier Guerrero told him,
‘That is not true, because Nery Mendoza’s name does not ap-

14 This testimony is related to complaint allegation 8(a), above.
15 This testimony was not alleged to be a violation of the Act in the
complaint. However, for the reasons set forth later in this section, I
credit the testimony and find that Guerrero did threaten Aviles and
Martinez in violation of the Act.
16 This testimony relates to complaint allegation 8(c), above.
pear.’ And he pointed to another person whose name I don't
recall, and he said that that person’s name did not appear, ei-
ther.” “I told Javier Guerrero, ‘Listen, what are we going to
do?’ He said, ‘How is it possible that you are complaining to
me if you are going to get pay for not working? Besides, you
are going to have time to think about what you are doing.’ And
later on he said, ‘This is nothing personal. I just take orders.
But I want to give you an advice: Look well who is guiding
you.”17
On January 27, 1995, Nery Mendoza was laid off by Guer-
rero in the same meeting as was Jose Giron and Luis Martines.
According to Mendoza, in this meeting Guerrero said they were
being temporarily laid off at the direction of those above him.
Jose Giron, who was also being laid off asked him why he was
firing those employees who were on the list of Union support-
ers. Javier Guerrero said, “I don't remember what list are you
talking about.” Jose Giron said, “The list that the union sent to
you.” Guerrero responded, “I don't remember. Perhaps it didn't
get here; wasn’t delivered by the mail. I haven't seen it. Be-
sides, Nery and Mauro are not on the list.”18
Mario Perez was laid off on January 27 in a meeting held by
Guerrero with the witness and fellow employees Edgar Carrera,
Nery Mendoza, Mauro Moran, and Jose Giron. Guerrero told
them that they were being temporarily laid off because of eco-
nomic reasons and would be recalled if the situation resolved
itself.Giron asked if they were being laid off because of the list
of union (supporters), and Guerrero answered that he did not
know anything about the Union. He then commented that Nery
and Mauro were not on the list.
Jose Giron was laid off in a meeting with Guerrero and fel-
low employees Mario Perez, Nery Mendoza, Edgar Carrera,
Alejandro Blasio, and Mauro Moran. Guerrero told the em-
ployees they were being laid off because of lack of raw materi-
als. The witness asked Guerrero why they were letting go only
those who appeared on the list of the organizing committee of
the union. Guerrero named two employees being laid off and
noted they were not on the list. These two employees were
Nery Mendoza and Mauro Moran. Guerrero added that he knew
nothing about the Union.
Lucio Aviles went back to the plant 2 days after the layoff
and asked Guerrero for work. Guerrero told him that he did not
know, but that a lot of high density material had arrived. He
added that he would have to wait until Bazbaz arrived to see
what he had planned. Aviles then started to leave and Guerrero
said, “You see what you got for being involved with the un-
ion?”19
Supervisor Fernando Molina
Felix Jovel Palacios was employed by Respondent until he
was laid off and was supervised by Sergio Palacios. In the last
part of 1994 and the first part of 1995, he was asked by super-
visors what was going on about the Union and he would tell
them he did not know. One of these supervisors, Fernando Mo-
17 Luis Martinez went back to the plant to pick up his final paycheck
on January 30 or 31. He got the check and went to the parking lot with
some other laid-off employees. According to Martinez, Bazbaz came
out and told a security guard to get the men out of the lot, he did not
want to see them on his property.
18 The testimony in the preceding three paragraphs relates to com-
plaint allegation 8(b), above.
19 This testimony relates to complaint allegation 8(c), above.
U.S.A. POLYMER CORP. 1253
Molina, around the beginning of December 1994, asked him
what was going on and the witness said he did not know.20
Employee Leonel Campoverde worked for Respondent for 3
years, until he was laid off in January 1995. His supervisor was
Fernando Molina. Campoverde testified about a conversation
he had in the Company dining room with Molina together with
fellow employee Marco Posadas and two others. According to
Campoverde, Molina said: “if we were going to think about the
union—belong to the union, for us to do it well because other-
wise they were—we were going to fuck up.” Molina indicated
in this conversation that he knew the four employees were Un-
ion supporters.21
Supervisor Sergio Palacios
Lucio Aviles testified that on January 27, he and fellow em-
ployee Luis Martines were approached by Supervisor Palacios
who told them that he had seen a list possessed by Javier Guer-
rero that contained the names of employees who were going to
be fired because of their support for the Union. 22
Supervisor German Robles
Employee Nelson Rodriquez testified that the day before he
was laid off, Robles asked him if he had signed a paper for the
Union, adding that if he had he would be fired.23
About a month after the layoffs occurred, Juan Torres, a cur-
rent employee, had a conversation with Supervisor Herman
Robles. Robles told him that “[the] union was for lazy people
and that I was going to be sorry being there—that I was going
to regret being there, that the union was going to take away half
of my check.” The witness testified that Robles asked him if he
were in the Union.24
Rudolfo Bocanegra began working for Respondent in No-
vember 1994, and was employed in packing. His supervisor,
Herman Robles, spoke to him about the Union on or about
January 25, 1995. Robles told him that he knew that the witness
and another worker, Camilio Ramirez, were in the Union and
that they were going to fire them. 25
In November, Nicolas Chajon, a densifier operator, was
working at his machine when Supervisor Herman Robles came
to him. Robles asked him if he belonged to a union. Before
Chajon answered, Robles said that he knew Chajon belonged to
the Union. Robles continued by telling Chajon that the Union
was a waste of time and what Chajon was going to get was

20 This testimony relates to complaint allegation 9(a), above.
21 This testimony relates to complaint allegation 9(a) and (b), above.
22 There was no testimony elicited in the hearing supporting the
complaint allegations regarding Palacios prior other than those relating
to events in June 1995. I however credit and rely on the testimony of
Aviles set out above to establish a violation of Sec. 8(a)(1).
23 This testimony relates to complaint allegations 11(a) and (b)
above, though the dates are not the same.
24 There is no complaint allegation to support this alleged interroga-
tion and as it allegedly occured after Robles admittedly gained knowl-
edge of the union campaign is in a different posture from those interro-
gations taking place before January 27. For this reason and because it is
cumulative of other similar interrogations, I will not base a finding of a
violation on the testimony.
25 This alleged threat is not contained in the complaint, but is relied
on to find a violation of Sec. 8(a)(1) because it occurred prior to the
January layoffs and is closely related to other similar threats made by
supervisors.
fired. Chajon countered that the Union was the benefit of all
employees. Robles said, “Then you belong to the Union.”2626
Supervisor Cesar Portillo
Mario Perez began working for Respondent in December
1993 and was employed as an extruder operator. His supervisor
was Cesar Portillo. The witness was a member of the organiz-
ing committee. In the last part of November 1994, Perez was
approached in the company dining room by Supervisor Portillo.
The witness and some fellow employees asked Portillo why the
Company had discharged another employee. Portillo said that
the employee had been absent without calling one day and was
discharged for that. The witness then asked why the Company
did not call the employees on days they have no work for them
rather than having the employees come to work and then be
sent home. Portillo responded that he was not interested, even
less interested as he knew the employees were associated with
the Union.27
Forklift operator Nery Mendoza testified that in mid-
December, he was checking the oil in the forklift, when Cesar
Portillo arrived. Portillo told him to tell him who were the lead-
ers of the union. Portillo continued, “Because if you don't tell
me who are the leaders or the bosses, I am going to get you
down from this shitty forklift and I am going to send you back
to the densifier so you can screw yourself like before. So you
think well about it, because it is going to affect your job.” An-
other employee, Alejandro Blasio was in the vicinity when this
conversation took place.28
Alejandro Blasio began working for Respondent on Novem-
ber 7, 1994, having been hired by Javier Guerrero. He was a
densifier machine operator and was supervised by Cesar Por-
tillo. He described a conversation about the Union he had with
Supervisor Portillo in January. He was working at his machine
and another employee Nery Mendoza was nearby. He described
the conversation: “On that occasion, I was outside my machine.
The supervisor, Cesar Portillo, came by, and he told me that he
already knew that I was mixed with this thing of the union.
And the worst thing was that my name was on the list of the
organizing committee. And he was not a stupid guy, that
everyone whose name would be on the list that the organizing
committee sent to the union, we would be the first ones to be
kicked out or let go to the street. After that, he told me, ‘but if
you want to cooperate with us, it could be a bonus for you.’ He
told me, ‘Think about it.’”29
Mendoza also noted another instance of a threat by Portillo.
About the middle of December, Supervisor Portillo approached
Mendoza and fellow worker Edward Carrera. Portillo asked
Mendoza if he “knew who in the hell was distributing papers of
the union in that company.” The witness said he did not know.
Portillo then threatened both men with discharge if he learned
they were distributing papers for the Union inside the Com-
pany.30
26 This testimony relates to complaint allegations 11(a) and (b),
above.
27 This threat is not alleged in the complaint, but is credited and a
violation found based on this testimony for reasons set forth later in this
section.
28 This testimony relates to complaint allegation 12(a), above.
29 This testimony relates to complaint allegations 12(I), (j), (k), (l),
(m), and (n), above.
30 This testimony relates to complaint allegation 12(b), above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
Jose Americo Rosales began working for Respondent in
April 1991 and worked as a washing machine operator until he
was laid off in January 1995. During the first week of January,
he had a conversation with Supervisor Cesar Portillo. at the
plant at 6:45 in the morning. Another worker, Oscar Godines
was present during the conversation. Rosales testified that Por-
tillo asked him if he were the head or the boss of the union
movement. Rosales told him that he did not know why he was
asking him that. Portillo responded, “Don't play the fool with
me. That he already knew why he was asking me that.” Rosales
then said the was cooperating with the campaign because there
were no company benefits for employees and that it was a fair
cause. Portillo continued, telling Rosales that if he continued to
(support the Union effort), he was “going to send me to hell.
Because the company was not going to allow that. That the
company would not allow this thing about unions.” Rosales
responded that “we were fighting for a just cause. And not only
me but possibly all the workers were going to cooperate.” Por-
tillo repeated again that “if I would continue doing those shits
[supporting the Union], he was going to take my job. He was
going to fire me.”31
Oscar Godines worked for Respondent from 1992 until he
was laid off in January. He began his employment working on
the grinder and was working with the washing machines at the
time of layoff. His supervisor for the last part of his employ-
ment was Cesar Portillo. About mid-January, while at work,
Godines went to look for Luis Castro. He found him talking
with Supervisor Portillo, who was angrily telling Castro to quit
talking to people about the Union because they were going to
be fired or their jobs would be taken away from them. Godines
heard Castro respond that the reason why the people were get-
ting organized was because they were not happy with the safety
of the working conditions and that there was no reason for the
conditions. At this point Portillo saw Godines and said, “Oscar,
you also shouldn’t be surprised if, one of these days, I fire you,
because it is known that you are with this thing of the Union,
also.” Portillo then told Castro that John Bazbaz did not need
anyone to tell him how to run his Company.32
On January 24, 1995, Mario Perez was working at his ma-
chine with fellow employee Jose Giron. Supervisor Portillo
came to the witness’ machine and said, “Already I learned that
all my shift attended the meeting of the union, but they are
peeling my penis.” Giron started to comment but was stopped
by the witness. The witness considered Portillo’s comment to
be a provocation as he consider the words used to be fighting
words. A few days before, the employees on the shift had at-
tended a union meeting. Jose Giron testified about this threat.
He remembered that Portillo approached the two men and
asked, “What the fuck are you doing here?” The witness said he
was looking for trash containers. Portillo said, “I already know
that all my shift is in the syndicate or union. But if I know that
you are one of the organizers, I want to get you out and I am
going to kick you out of the company.”33
Alejandro Blasio had another conversation about the Union
with Portillo on January 24. This conversation took place on his
lunch break in the Respondent’s dining room. He was with
fellow employees Edgar Carrera, Nery Mendoza, and Jose Gi-

31 This testimony relates to complaint allegations 12(d), (e), and (f),
above.
32 This testimony, as well as the testimony in the preceding para-
graph relates to complaint allegation 12(d), above.
33 This testimony relates to complaint allegation 12 (m), above.
ron. The employees were talking about the Union when Portillo
arrived. Carrera asked Portillo for a helper on his machine and
Portillo told him that he was not going to give him a helper,
because he was one of the persons involved with the Union.
Portillo continued saying, “I know that that thing about the
Union is to help drunkards and assholes or lazy [persons] and
that we were not going to look at him with the sucker’s or
fool’s face.” “That all of us who were involved with the Union
were going to be sent to hell.” The witness stated that this
means getting fired or terminated.
Nery Mendoza remembered this confrontation and testified
that Portillo approached the group of employees and said, “that
shitty, or that shit of a union, was for the drunkards and lazy
people. And those kind of people were the kind of people the
union would protect. And if we had in our heads those ideas of
the Union, you are better off to take those shitty ideas from
your head because it is going to affect your jobs and you are
going to be damaged by it.”34
Cesar Portillo talked with Luis Castro on January 23, 1995,
with Portillo asking him how the employees were doing with
the Union. He then said, “Quit talking to the Union. I will get
you a job as a supervisor, a salary raise, and I will talk to Mr.
John Bazbaz.” The witness responded, “If Mr. John Bazbaz is
really as you say, so considerate, tell him to sit with us and let’s
negotiate a contract.” Portillo said that Bazbaz would not take
advice from anyone. Castro then told Portillo that he was not
the only one, that he had people that would support him from
all the different shifts. He then gave Portillo the names of all
the employees on the organizing committee, naming specifi-
cally, Oscar Godines, Alejandro Blasio, Jose Giron, Lucio Av-
iles, Luis Martines, Edgar Carrera, Mario Perez, Miguel Perez,
and himself. Portillo responded that he knew of the 10 union
supporters and he knew some other supporters as well. Portillo
advised him to stop talking about the Union because it would
harm the interests of the Company, which could not pay in-
creased wages and benefits to the employees Castro said that
the employees were not asking for something the Company
could not give, but only what was necessary according to law.
Portillo responded that the only thing that was going to happen
was that the Company was going to fire them.35
Supervisor Israel Zepeda
At a point in December, Supervisor Zepeda had a conversa-
tion with employee Montes de Oca in the company dining
room. Zepeda told him that if he learned that he was taking
photographs (of the Respondent’s facility) for the Union, he
was going to fire him. At about the same time, Zepeda interro-
gated employee Guadalupe Leal, asking him what the Union
was promising employees.36
Agent Carlos Hallatt
On January 27, Hallatt approached Lucio Aviles while he
was working and asked if he were involved with the Union.
Aviles said he was. Hallatt said he had known for 2 months.
Aviles then told him that to organize for the Union was a noble
thing, that he did not feel he was offending anyone, that to talk
34 These testimony in the two preceding paragraphs relates to com-
plaint allegations 12(l) and (m), above.
35 This testimony relates to complaint allegations 12(n) and (o),
above.
36 These interrogations and threats are not alleged in the complaint,
but I credit the two witnesses testimony and find that the two incidents
violated the Act.
U.S.A. POLYMER CORP. 1255
about the Union was to talk about respect and that it was neces-
sary to organize the Company. Aviles told Hallatt that 3 years
ago, the employees had a meeting with John Bazbaz at the
Company where the employees talked about benefits, salaries,
vacation time, and holidays. At the meeting Bazbaz told the
employees that by law they had no right to anything, adding
that whoever wanted to continue with the Company could do
so, and whoever didn’t like it that the doors were very wide.
Aviles then added, that through the years a seed had been
planted and that John Bazbaz was harvesting that seed. After
some further conversation, Hallatt told Aviles that he was ask-
ing him all of this because he had gone to John Bazbaz’ office
and that he had seen a list with names, on which he was able to
see the names of German Joya, Miquel Molina, and Luis Mar-
tines. This was a list of employees who were going to be fired
because of their support of the Union.37
Respondent’s defense to this overwhelming mass of evi-
dence of widespread unlawful interrogations and threats is sim-
ply to deny knowledge of any union activity until after the
January 27 layoff and thus a denial that any such conversations
did or could have taken place. Its involved supervisors all testi-
fied, as if by rote, that they learned of the campaign in the
weeks after the layoff, most of them learning of it from John
Bazbaz. Respondent’s Exhibit 10, a flyer that was distributed to
employees on March 30, 1995, is relied on by Respondent to
support its secrecy theory.
The first page of the exhibit reads: “There is no secret any
more. News: The Local of the ILGWU is on it. The secret is
out. Everything is known. The secret is outside. The com-
pany, U.S.A. Polymer, was accused by the attorneys of the
Government of the United States of North America of violating
the rights of our work mates. After a complaint was submitted
by the union ILGWU, we—your work mates—will never stop
fighting for your rights or ours. If you, my friend, have not
joined the fight for justice and benefits in employment for us
and our family, go on. Go ahead and do it. If you have a ques-
tion or you have a problem, call us at this number: 349–8860.
Organizing committee of U.S.A. Polymer. America works
better when we say, Yes, to the union. Union, Yes.”38
The flyer also invited employees of Respondent to a picnic
held by the Union. According to Aviles, several laid-off em-
ployees did attend, but no present employees showed up,
though invited. The flyer announcing the picnic reads: “Invita-
tion to a celebration. Employees of U.S.A. Polymer, Incorpo-
rated, and their friends are cordially invited this Sunday, April
9, 1995, at 3:00 p.m. until 6:00 p.m. at the office of Ganno
[phonetic] on 6006 Villareal Boulevard, Houston, Texas. If you
need information, please call telephone number 349–8860.
Note: This invitation does not include supervisors or guards.
Organizing Committee of U.S.A. Polymer, Incorporated.”
I do not credit this defense. As noted earlier, I believe that
Respondent refused to accept the January 7 letter from the Un-
ion because it feared that it would have to recognize the Union
if it accepted the letter. I agree with the Charging Party on brief
that the testimony of employees Blasio, Mendoza, Perez, and
Giron about their meeting with Javier Guerrero on January 27

37 I do not find a complaint allegation concerning this conversation,
but consistent with my ruling, do find it to have happened, and it
constitutes a violation of Sec. 8(a)(1).
38 Organizer Medrano testified that the secret was the fact that Re-
spondent had engaged in unfair labor practices contrary to what Re-
spondent was telling others.
proves that Respondent knew of the campaign and the identity
of the members of the union organizing committee. As related
by each of these employee witnesses, in response to their in-
quiry of Guerrero as to why he was laying off only the union
supporters, Guerrero denied knowing who was in the union
campaign. He then stated that he knew that employees Nery
Mendoza and Mauro Moran were not on the list of members of
the organizing committee. Obviously, Guerrero could not know
who was not on the list unless he knew who was on the list.39
Additionally, from the standpoint of demeanor of the various
supervisors and other management witnesses, I did not find
their testimony on the question of when they learned of the
union campaign to be credible. They gave this testimony almost
as if they had memorized answers. In a 4-month campaign in a
relatively small plant where almost all the production employ-
ees were active supporters of the Union, attending union meet-
ings and talking about the Union among themselves, I believe it
virtually impossible for knowledge of the campaign not to have
come to the attention of management and find that it did, prior
to the layoff. Further, to believe the simple denials of knowl-
edge by the supervisors, one would have to believe the numer-
ous witnesses who testified credibly about conversations with
those supervisors were making up their testimony out of whole
cloth. I find this scenario to be impossible given the detail and
emotion displayed when the conversations were related.40
The interrogations and conversations set out above all are
violative of Section 8(a)(1) of the Act in that they clearly tend
to restrain, coerce, and interfere with employees’ exercise of
their Section 7 right to organize and support a union. Cumula-
tively, these interrogations threaten employees with discharge,
with loss of benefits, more onerous working conditions, physi-
cal harm, and other, unspecified reprisals for engaging in union
activities or supporting the Union. They additionally give the
impression of unlawful surveillance of union activity. One or
more of the interrogations combined the threat of discharge for
engaging in union activity with the promise of a benefit if the
employee did not engage in such activity.41 Wellstream Corp.,
313 NLRB 698, 702 (1994); Rossmore House, 269 NLRB 1176
(1984); Airport Distributions, 280 NLRB 1144 (1986); and
Farr Co., 304 NLRB 203 (1991).
D. Was the Layoff of January 27 Unlawful?
Commencing on January 27 and continuing through January
30, Respondent laid off the following 29 employees:

Miguel Alanis Mario Aparicio
39 Nery Mendoza was on the list, and Moran was not. This is not im-
portant. What is important is that he knew of the list at a time when
Respondent asserts no knowledge of the campaign whatsoever.
40 I have attempted to resolve all relevant credibility conflicts in this
record. If there is an unresolved conflict between the testimony of one
of Respondent’s employees and one or more of its supervisors, I credit
the testimony of the employee. I believe that Respondent’s supervisors
would say anything that would favor Respondent and deny anything
adverse to Respondent, regardless of the truth.
41 I have found numerous violations of the Act committed by super-
visors as alleged in the complaint and not alleged in the complaint. The
violations found to have been committed fall into the categories sum-
marized immediately above. There is evidence to support findings of
additional unpled violations of Sec. 8(a)(1), (see Charging Party’s
Briefs for examples); however, these findings would be merely cumula-
tive of findings already made, and made on clearer evidence. Thus, as I
do not believe it serves any useful purpose, I will not make cumulative
findings on any unpled violation other than the ones I have dealt with.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
Lucio Aviles Hugo Benavides
Alejandro Blasio Rodolfo Bocanegro
Edgar Gerardo Carrera Luis Castro
Nicholas Chajon Elias Escobar
Julio Hector Garcia Jose Giron
Oscar Godines German Joya
Luis Martines Pedro Molgar
Nery Mendoza Miguel Molina
Bethuel Montes de Oca Mauro Moran
Walter Jose Orellana Felix Jovel Palacios
Manuel Perez Miquel Angel Molina
Mario Perez Nelson Rodriquez
Jose Rosales Lionel Campoverde
Noe Ramirez

The test for determining whether such an adverse employee
action is discriminatory and unlawful is set out in Wright Line,
251 NLRB 1083 (1980). Therein the Board held that in such
cases, the General Counsel must make a prima facie case on the
issues of employer animus, the existence of protected activity
and the employer’s knowledge of that activity. Proof of these
elements by the General Counsel warrants at least an inference
that the employees’ protected conduct was a motivating factor
in the adverse personnel action and that a violation of the Act
has occurred. The employer may rebut the General Counsel’s
prima facie case by showing that prohibited motivation played
no part in its actions. If the employer cannot rebut the prima
facie case, it must demonstrate that the same personnel action
would have taken place for legitimate reasons regardless of the
employees’ protected activity. In this regard, the employer has
both the burden of going forward with the evidence and the
burden of persuasion. It is not enough to articulate a legitimate
nondiscriminatory reason. The employer must affirmatively
introduce evidence to persuade the Board that the challenged
action would have taken place regardless of the employees’
protected activity and the employer’s antiunion animus.42
In the instant case the General Counsel has clearly made a
prima facie case of unlawful motivation. In the previous section
of this decision, I have found that Respondent engaged in nu-
merous violations of Section 8(a)(1) of the Act, including
threatening to lay off or discharge employees for engaging in
union activity. The credited testimony of several witnesses
reflects both knowledge of the activity by the Respondent and
the assertion that the layoff was in retaliation for union sup-
port.43 The timing of the layoff, coming shortly after the em-
ployees signed authorization cards and the letter naming the
organizing committee was sent to Respondent also strongly
supports the General Counsel’s position.
In the face of the very strong presentation by the General
Counsel, Respondent has offered two defenses. The first of
which, lack of knowledge of the union activity prior to the lay-
off, I have already discredited. The second defense is that the
layoff was motivated by economic factors and would have oc-

42 The Developing Labor Law, Third Edition, 1992.
43 For example, Luis Martinez testified that on January 27, he was
told to report to Guerrero. Guerrero told him to sign a paper, but hid
what the paper said. The witness said he could not sign without know-
ing what he was signing. According to Martinez, Guerrero said, “I want
to tell you the truth. This is a policy of John Bazbaz to fire all those
from the Union. This is why we are going to give layoff to all of
them.” The witness asked why all the employees were being laid off
when there was so much work to be done. Guerrero replied, “That is
the boss’ policy.”
curred regardless of antiunion animus and knowledge of the
employees’ protected activity.
Prior to the January 1994 layoff, Respondent had only been
profitable for 2 months in its history. It introduced an exhibit
which reflects its economic performance from January 1994
through June 1995.44 The exhibit reflects:

Statement of Income
January 1994—June 1995

Month Sales $ Operating Expense Income (Loss) $

Jan 94 395,012 $440,724 ($45,712)
Feb 94 364,584 405,193 (40,609)
Mar 94 379,904 421,238 (41,334)
Apr 94 352,566 406,030 (53,564)
May 94 241,254 365,226 (123,972)
Jun 94 322,419 389,029 (66,610)
Jul 94 320,782 325,648 (4,866)
Aug 94 421,449 505,925 (84,476)
Sep 94 541,303 527,696 13,607
Oct 94 577,971 560,484 17,487
Nov 94 633,803 647,421 (13,618)
Dec 94 537,913 618,174 (80,261)
Jan 95 492,774 497,510 (4,736)
Feb 95 464,887 500,851 (35,964)
Mar 95 599,421 622,021 (22,600)
Apr 95 417,176 441,164 (23,989)
May 95 368,930 380,415 (11,485)
Jun 95 216,452 240,527 (24,075)

Totals $7,648,600 $8,295,277 ($646,677)

Correction of previous
Accruals (68,009) 68,009
Corr.
Totals $ 7,648,600 $8,227,268 ($578,668)

A large part of the loss shown by the Company for Decem-
ber was caused by a very large accelerated depreciation charge
for equipment purchased in 1994. Depreciation of equipment,
which had been about $5000 monthly, was increased to
$50,000. In the following 3 months, depreciation was carried at
about $10,000 per month.
Both John and Issac Bazbaz testified about the decision to
lay off employees. They do not contend that losses per se
caused the layoffs. Rather, they took two positions with respect
to raw material problems that they say forced the layoff. First,
John Bazbaz testified that Respondent had difficulty finding
raw stock for the HDPE production because of intense competi-
tion for raw materials.45 This was somewhat modified in later
44 This exhibit was updated at the October hearing to show perform-
ance in the second quarter of 1995. It was also corrected to reduce
accruals in the amount of $68,000 previously charged against the first
quarter 1995 earnings. This reduction in acrruals would make the first
quarter marginally profitable.
45 Vladimir Ivanov is a chemical engineer and was the quality con-
trol manager for Respondent from November 1992 until his permanent
layoff in September 1995. With respect to the matter of HDPE produc-
tion, he testified that there are differences in quality and type of raw
materials which affect the type and quality of finished HDPE. Respon-
dent’s customers have varying specifications for the finished product
U.S.A. POLYMER CORP. 1257
testimony by both John and Issac Bazbaz to the position that
Respondent had difficulty in securing sufficient raw material
for HDPE production at a price that would allow them to proc-
ess it and make a profit. The Bazbaz testified that they initially
determined that the layoff was to be temporary. The General
Counsel noted that in a position paper filed in February 1995,
in response to the RC petition filed by the Union, the Company
advised the Board that it was planning to significantly increase
the work force. Bazbaz testified that at that time and for several
months previously, the Company was engaged in the installa-
tion of a conveyor system to automate and increase production
of HDPE at a lower cost per pound produced.46 According to
Bazbaz the increased production did not occur because the
market conditions affecting its ability to profitably process and
sell HDPE did not improve. Respondent introduced its exhibit 2
which reflects the rapid rise in HDPE raw stock cost as well as
similar figures for the polypropylene raw stock. This exhibit
reflects:

Monthly Average Cost Per Pound of HDPE and Polypropylene

HDPE

Month Pounds Cost Cost per Pound

Jan 94 593,824 47989 0.080813507
Feb 94 593,908 57094 0.096132734
Mar 94 1,453,444 132851 0.091404278
Apr 94 838702 76008 0.090625753
May 94 870246 93239 0.107140969
Jun 94 948712 100676 0.106118611
Jul 94 1,073,786 105397 0.098154567
Aug 94 1,611,808 183802 0.114034674
Sep 94 1,110,438 144068 0.129739796
Oct 94 1,229,140 221428 0.180148722
Nov 94 1,546,989 270206 0.174665754
Dec 94 1,545,954 313037 0.202487914
Jan 94 1,073,110 240562 0.224172732
Feb 95 959,781 235205 0.245061128
Mar 95 1,067,108 276313 0.258936302

made by Respondent, which call for different types and quality of raw
materials. Thus, there are times when Respondent may have a substan-
tial inventory of raw materials, but not have exactly the right material
to produce what its customers are asking for. This problem is com-
pounded by the need to purchase raw materials at a price that allows
profitable production, which was difficult in the market for raw materi-
als that existed at the time of the layoff. He also testified that Respon-
dent cannot switch from running one kind of material to another easily.
It requires cleaning of the equipment and resetting it for a new applica-
tion. The Company needs to run its equipment virtually non stop to
produce enough product to be profitable. Lack of proper raw mateials
causes the shut down of the operation, leading to losses. He in effect
disowned Respondent’s Exhibit 2 which gives volumes of raw material
purchased, saying that he would have to have a detailed breakdown to
the material in inventory and the orders the Company had at the time, to
see if it had the correct materials on hand to produce the kind of prod-
uct its customers wanted at the time. Ivanov admitted that Respondent
could use whatever inventory it had at any particular time to produce
inventory of finished product to meet future demands for the product
and thus avoid down time. Ivanov testified there are problems with this
approach, one being price and the other being the unpredictability of its
incoming orders for finished product.
46 All work on this conveyor system ceased in or about May 1995,
when a decision was made to cease production of HDPE.
Apr 95 1,018,775 272958 0.267927582
May 95
Jun 95

Polypropylene

Month Pounds Cost Cost per Pound

Jan 94 565229 41648 0.07368341
Feb 94 181621 11420 0.06287819
Mar 94 223900 12057 0.05384993
Apr 94 140870 10509 0.07460069
May 94 268613 18266 0.07172400
Jun 94 210595 14272 0.06776989
Jul 94 413774 25297 0.06113723
Aug 94 698411 35366 0.05063563
Sep 94 342100 31455 0.09194679
Oct 94 430454 66016 0.15336365
Nov 94 338822 41473 0.12240350
Dec 94 208113 18658 0.08965321
Jan 95 469554 55027 0.11718992
Feb 95 300550 42934 0.14285143
Mar 95 709802 88966 0.12533917
Apr 95 224677 23773 0.10580967
May 95
Jun 95

Respondent also introduced its production figures for both
types of product it processes by month for the period January
1994 through June 1995. This exhibit reflects:

Monthly Production of HDPE and Polypropylene
Month HDPE PP Cost per Pound

Jan 94 988900 206800 1195700
Feb 94 1009800 232000 1241800
Mar 94 1193500 346500 1540000
Apr 94 990000 393800 1383800

Month HDPE PP Cost per Pound

May 94 1024100 325600 1349700
Jun 94 740300 518100 1258400
Jul 94 1321100 363000 1684100
Aug 94 1133000 442200 1575200
Sep 94 1072500 325600 1398100
Oct 94 1089000 438900 1527900
Nov 94 1197900 617100 1815000
Dec 94 1097800 401500 1499300
Jan 95 793000 583000 1376000
Feb 95 614100 502900 1117000
Mar 95 582000 407600 989600
Apr 95 170800 683900 854700
May 95 677739 780862 1458601
Jun 95 301218 540499 841717

As can be seen from the foregoing exhibits, the HDPE raw
material prices doubled June 1994 to January 1995. According
to the Bazbaz brothers, because of these escalating raw material
prices, it was decided in mid to late January to reduce operating
time or production by about 30 percent, primarily on the HDPE
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
production line.47 Support for their decision to have the layoff,
though not necessarily for the timing of the layoff, was given
by an expert witness called by Respondent.48 He gave a thor-
ough picture of the polyethylene or HDPE recycling industry
and the forces driving the industry over the last year. This ex-
pert witness was Michael Kopulsky, He is the founder and CEO
of Envirothene, Inc., of Chino, California, which is a recycler
of postconsumer high-density polyethylene. It produces a post-
consumer recycled-content pellet as does Respondent. Envi-
rothene has been in business since October 1990.
Kopulsky testified that he regularly studies the market condi-
tions in the post-consumer recycling area as part of his job. He
obtains information on this subject through plastics industry
periodicals, such as Plastics News and Modern Plastic. He also
reviews the waste industry periodicals, “Waste Age,” and “Re-
cycling Today,” as well as a service called ISIS (phonetic),
which provides polyethylene industry information. He addi-
tionally has conversations with product packagers, including
Proctor & Gamble and Lever Brothers, who give him an indica-
tion as to the consumer base and where the market is going.
Kopulsky’s company supplies the companies who make bottles
and other containers for Proctor & Gamble and Lever Brothers.
Kopulsky has written many articles on the subject of post-
consumer recycling and the market conditions affecting this
business for Plastics News and other publications. He has spo-
ken on the subject on numerous panels and before a number of
seminars. He is familiar with Respondent as they are both recy-
clers of postconsumer plastics in different regions of the coun-
try. The two companies do not ordinarily come across each
other because the general rule in recycling is that if you venture
more than 5 to 700 miles away from the plant, the freight costs
become prohibitive to selling to other marketplaces. However,
he has in the past subcontracted work to Respondent that was to
be delivered outside Envirothene’s geographic market area and
inside the market area of Respondent.
Kopulsky testified that postconsumer recycling emerged in
the late 1980s, 1989, and its viability, in his opinion, is still yet
to be proven. He does not know of any post-consumer recycler
who is doing well right now. What triggered his investment in
the postconsumer plastics area was the January issue of Time
Magazine, which made evident for him that the paper industry
had a recycling infrastructure; the aluminum and the glass in-
dustry had recycling infrastructures, and the plastics industry
players who were primarily petrochemical companies had not
established an infrastructure and had no desire to establish a
recycling infrastructure.

47 This 30-percent cut in operating time inexplicably resulted in a 45-
percent reduction in employees, all union supporters. Following the
January layoff, four other employees quit their jobs with Respondent so
that in fact it lost 51 percent of its work force. The General Counsel
and the Charging Party argue that the variance between the Bazbazes’
stated intention to cut production by 30 percent and the 45–51 percent
reduction in employee complement support a finding that the true rea-
son for the layoff was to get rid of union supporters and not to solve a
temporary economic problem.
48 Though R. Exh. 2 does show that prices doubled between June
1994 and January 1995, they also show that the prices took one of their
biggest jumps in the period August–November 1994. During this period
of rapidly esclating raw material prices, the Company experienced 2
profitable months, September and October. It also had only a small loss
in November and in December, if the accellerated depreciation figure
for December is taken into account.
Hence, a cottage industry of postconsumer plastics recyclers
started to emerge in early 1990, late 1989. One of the problems
facing the producers in the industry is finding equipment that
will do the processing efficiently and with good quality. There
was and still is no standard equipment made that will do the
involved task well. It took from 6 to 9 months from installation
to work out the problems with the equipment and achieve both
efficiency and quality. A producer of HDPE constantly strives
for a balance between quality and quantity. This goal was af-
fected by the quality of raw material being processed. Certain
postconsumer HDPE products are of different grades of high-
density polyethylene and often contaminants were supplied in
the raw material.
The other major problem facing the new industry was find-
ing a market for its product, as most users of polyethylene were
used to using virgin product and were adverse to the idea of
using recycled HDPE. Thus Kopulsky and others introduced
legislation in California to require use of a percentage of recy-
cled product in the manufacture of new HDPE products. When
this legislation passed in California and Oregon, it had a dra-
matic effect on demand. Certain large users of such products,
including Proctor & Gamble and Clorox, opted not just to use
the mandated 25 percent recycled material for the States pass-
ing such legislation, but to use the recycled material in all of
their containers. This decision created a demand that far out-
stripped the availability of recycled material in the nation. As a
consequence, the waste industry, which collected and sold the
raw materials to the recyclers, sensed the shortage and started
hiking the price of raw materials on a daily basis. This created
two problems for the recyclers. Their customers had a practice
of demanding 30 days’ notice of price hikes from virgin mate-
rial suppliers, which practice they applied to the recyclers. Sec-
ond, the price for recycled material was in competition with the
price of virgin material. The recyclers had experienced raw
material prices from 1991 through June 1994 of 10 cents a
pound, which would be $200 a ton. This increased to $700 a
ton in the last quarter of 1994.
Kopulsky estimated that about 50 percent of the pure recy-
clers, like his company and Respondent, fail. Other recyclers,
who use the material they recycle to manufacture products such
as plastic lumber themselves, fail at a higher rate. According to
Kopulsky, the key to surviving is familiarity with the market-
place and processing efficiencies. It takes processing expertise
to make it work, because recyclers are constantly getting pres-
sures from two mature industries: the plastics product manufac-
turers or packagers on the top end who are the recyclers cus-
tomers and on the other end, the waste industry who are con-
stantly negotiating to get the highest price for the raw materials
they collect. This price compression, combined with the plastic
industry’s 30-day price notice practice, caused Kopulsky’s
company and others like it to take major losses. In October
1994, Envirothene, Inc. was in a break-even situation, but since
that time, the compression in the price spread between the raw
materials and the processed HDPE, which Kopulsky believes is
an aberration and not a permanent condition, caused Enviroth-
ene, Inc.’s spread to move from 18 to 20 cents per pound down
to 14 or 15 cents a pound. This raised the cost of goods sold
percentage from its norm of 70 percent to 94 to 96 percent,
where it is impossible to make a profit.
According to Kopulsky, this compression affected every post
consumer plastic recycler. Most decided to scale back produc-
tion until the supply demand ratio fell into place and a profit
U.S.A. POLYMER CORP. 1259
was possible. On the other side of the equation, the customers
of the recycled plastic found the price for recycled plastic ex-
ceeding that for virgin material. At this point, many of these
manufacturers changed their decision to use recycled plastic
for all their containers and began using this material only for
containers destined for the states where laws required the use of
recycled plastic. The effect of this decision hit the marketplace
in April–May 1995, when demand for recycled HDPE fell dra-
matically. Recylers saw orders for their product come to a
standstill. Kopulsky’s company was producing about a hundred
thousand pounds of product a day and within a 10-day period
had a million pound inventory, and no market for it. According
to Kopulsky, this problem was faced by recyclers across the
country. He noted that Quantum Chemical in Ohio and others
were attempting to dump their inventory. Those who decided to
sit on it and see if they could get rid of it slowly could do so for
a period, but they were, in a sense, affected by those who chose
to dump, because those who chose to dump were the companies
with the deepest resources and could afford to write off the
inventory. The drop in demand for recycled material was
matched by a drop in demand for raw materials and the price
dropped from 35 cents per pound to about 13 to 15 cents per
pound. Those manufacturers without high priced inventory
were able to again produce at a competitive price and take
business away from those who were forced to try to sell their
inventory at a profit or break even point.
The market situation which existed in April–May 1995
forced Kopulsky’s company to reduce its work force from 36
production employees working on four shifts of 9 people each
to three shifts of 6 people per shift, or 18 employees, a 50-
percent reduction. Administrative positions were reduced from
six to four in January 1995, when the Respondent decided to
lay off. At this point it should be noted that Respondent did not
cut any administrative or supervisory positions at the time of
layoff and in fact added administrative people in the months
following the layoff. Kopulsky’s company was engaged in a
major expansion project, as he evidently did not see a problem
coming at that time. Since taking the reduction in force, the
company is very selective in the business it seeks, taking only
profitable business and turning down orders that would not
produce a profit. It has also tried to increase automation to
achieve greater production efficiency. From an industry stand-
point, the recyclers are engaged in an education program to
increase recycling and the use of recycled materials.
Kopulsky considers reducing production time a viable solu-
tion to the mounting financial losses, until a company can con-
trol costs and make money. Laying off employees would neces-
sarily follow a cut back in production. On the other hand, he
ties cut backs in percentage of production to an equal percent-
age cutback in employees, which certainly was not the case
with Respondent. With respect to the process of selecting em-
ployees for layoff, he looks at work performance and the ability
of employees to perform more than one function. He would
also consider attendance because with a reduced work force,
attendance becomes more important. When making the selec-
tion for layoff, he would look for a person who had for exam-
ple, an electrical background and a background in quality con-
trol and would retain that employee over one with more longev-
ity and less ability. He believed retaining an employee with
electrical experience would be important because of the need to
do routine electrical work on an immediate basis, such a chang-
ing fuses. In this regard, it should be noted that Respondent
fired its most senior employee, Aviles, who had just such a
background. Kopulsky also tried in his own business to cut
costs wherever possible, including beginning to use permanent
boxes for storage over temporary ones that to be replaced con-
stantly. On the matter of cutting costs to save money, Kopulsky
agreed that one would look to cutting administrative costs, so
long as it did not negatively affect the company’s long term
market position. He would add to administrative costs only if it
would result in an overall savings. In this regard the continua-
tion of consultants to improve HDPE production when it has
been cut back or off does not make much sense. Yet this is
what Respondent has done. It also added additional administra-
tive personnel following the layoff and did not layoff any su-
pervisors.
When Kopulsky laid off people they eliminated shift super-
visors on the shifts which were eliminated and made those
eliminated shift employees. Although he did not know if it
happened at his plant, he agreed that it would make sense to
reduce the salary of a supervisor who was demoted to a shift
employee position. At Respondent’s facility, all supervisors
received wage increases at the time of layoff and a number of
employees, most notably, those not supporting the Union, also
received a raise.
He testified that he did not reduce his work force until April
because, perhaps, he was too concerned about losing customers,
and not concerned enough about the bottom line. Through that
time, he still had customers who were demanding material, and
he was doing everything in his power to service those custom-
ers and keep from losing the customers. He gave the opinion
that he should have been less service-oriented and been more
bottom-line-oriented. Until April, his company had pressing
demand for product, but at price spreads that were causing large
losses.
During some time in the end of 1994 or the beginning of
1995, it tried to subcontract some work to Respondent, but was
rebuffed, with Respondent telling him that it could not provide
the material for him without losing money. Kopulsky also testi-
fied that Respondent was also having a problem at the time
obtaining raw materials as one of its competitors, K W Plastics,
was buying up all raw materials in the Houston area. John Baz-
baz told him that Respondent was having problems sourcing the
material at a price he could make money. He testified that re-
spondent was more of an order oriented supplier, that is, plan-
ning production and buying raw materials to meet existing or-
ders, than a company like his which was producing material in
anticipation of orders. In this regard, he believed Respondent
was alerted earlier to losses than his company.49

49 On this point, the Bazbazes testified that in part their decision to
cut production in January was based on an article they read which
indicated that Proctor & Gamble was cutting back on its use of recycled
HDPE in its container production. Bazbaz testified that after this an-
nouncement, the demand for his company’s goods slackened. However,
the availability of raw material still did not meet total demand and the
price for such material remained high. Bazbaz contends that Respon-
dent was not always able to pass through the rising cost of raw materi-
als to its customers because it had promised a price before it purchased
the raw materials. On the other hand, Proctor & Gamble was not
shown to be a customer of Respondent, and the same article did not
influence Kopulsky to cut back his company’s production. Moreover,
as noted by Kopulsky, Respondent was not a company like his that was
producing in advance for the mass market that would be seriously af-
fected by the Proctor and Gamble decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
I have considered Respondent’s evidence carefully, and rely-
ing primarily on that evidence submitted by Kopulsky, I believe
that the evidence in its entirety supports a finding that though a
layoff of Respondent’s employees was inevitable and would
have occurred at some time before June 1995, its timing and
severity were dictated by anti union animus. Respondent has
used a broad brush approach in both its testimony and its exhib-
its to support its contentions that economic necessity caused the
January layoff. It has in its records the information necessary to
demonstrate with specificity the orders it had in January, the
material it either had or was buying to fill these orders, and the
price it could charge for the finished product and the price it
paid or would have to pay for the raw materials needed to fill
the orders. It did not produce such information. Its own witness,
Ivanov, indicated that such information is necessary to accu-
rately say whether the Company could profitably produce or-
ders at any given time.
Further support for the position that the layoff, or at least the
timing of the layoff was discriminatory is obviously found in
the mass of 8(a)(1) violations I have found to have been com-
mitted in the previous section of this decision. It is also sup-
ported by the timing of the layoff, coming almost immediately
after the bulk of authorization cards were signed by its employ-
ees. It is supported by the large number of employees laid off,
relative to the size of the production cut, i.e., a 30-percent pro-
duction cut and a 45-percent reduction in employees. This re-
duction in employees grew to 51 percent when Respondent did
not replaced workers who quit or were fired after the January
layoff. It is also supported by the evidence relating to overtime
paid after the layoff, which appears to me to be determined
effort to keep from recalling any laid-off employees.50
The General Counsel and the Charging Party assert that ex-
cessive overtime has been used to sustain Respondent’s produc-
tion levels and to avoid recalling any of the laid off employees.
The Charging Party points out on brief that from February 21,
through May 30, Respondent permitted 1,415.5 hours of over-
time to five of its supervisors and 3,963.25 hours of overtime to
nonsupervisorial employees, for a cumulative employee and
supervisor overtime total of 5,378.75 hours. This is enough
overtime to have rehired 8.4 employees on a full-time basis.
There is evidence in the record of overtime worked by supervi-
sors and employees both before and after the layoff. I have
compared the overtime hours for supervisors and those em-
ployees who were not laid off for comparable periods before
and after the layoff, and total overtime hours for the same pe-
riod for all employees. This comparison reflects that supervi-
sors are working almost twice as many overtime hours in the
postlayoff period as was the case in the pre-layoff period. Non-
supervisory employees are working about 56 hours overtime in
the postlayoff period as opposed to an average of about 45.5
hours overtime in the pre-layoff period.
Following the layoff, Respondent also took some economic
steps which are inconsistent with its alleged financial difficul-

50 Respondent offered testimony to the effect that overtime is worked
postlayoff because materials many times do arrive at the scheduled
time. This situation causes the production schedule to be delayed and
that generates a delay in the delivery of materials to the customer. That
creates an urgency and the need to process them immediately, thus
sometimes causing overtime to be used to be able to process the mate-
rial more rapidly. No concrete example of such an occurrence was
given in the record and certainly such situations would not explain the
very large amounts of overtime worked post-layoff.
ties. First, it granted all of its supervisors 50- to 75-cent-per-
hour pay raises. Bazbaz testified that the supervisors were
given a raise because they were going to have more responsibil-
ity or take on extra jobs after the layoff. This may have been
true, but it is still inconsistent with Respondent’s plea of pov-
erty. So is the fact that it continued to pay Hallatt’s company a
substantial sum of money for consulting work and began pay-
ing Guerrero $1615 biweekly. Bazbaz testified that some cost
savings measures were considered, but reducing management
salaries or workers wage rates were not considered. Bazbaz, for
example, did not consider cutting his annual salary of
$120,000. Bazbaz cited the automating of a bagging process as
a cost savings measure taken by Respondent, but he did not
know whether this was done before or after the layoff. Reduc-
ing overtime was not feasible as Bazbaz contends overtime is
caused by factors beyond management’s control. The reason for
this was described by Bazbaz thusly, “you don’t know at what
time you are going to receive the materials because they are so
scarce and so difficult to get that you have people sometimes
waiting for the materials. And when the materials come in,
they have to continue working until they get the materials out.”
He amplified that Respondent did not acquire raw materials
“because the customer could not pay a price that would enable
us to process the material and be profitable.” Again, no specific
examples or evidence of such a situation was offered.
Respondent’s actions with respect to Luis Aviles also strike
me as being discriminatorily motivated as opposed to having
been dictated by economics. As noted earlier, Aviles was the
Respondent’s in house electrician and was its most senior em-
ployee. Until the union campaign his work had evidently been
adequate and he performed tasks both for Respondent and its
sister company, Polytex Fibers. Indeed he was given pay raises
in October and November 1994. However, by the time Guer-
rero and John Bazbaz testified in this proceeding, he had be-
come an inadequate worker, called slow and not possessed of
the necessary skills for his job. Guerrero after the fact testified
that the raises given Aviles were unwarranted. After the criti-
cism of Aviles’ work was leveled by Guerrero, he shifted his
focus somewhat and testified that the main reason Aviles was
laid off was because the Company did not need in house elec-
trical maintenance anymore as the problems it had were mini-
mal. Guerrero testified that he recommended after the layoff
that Aviles’ position be eliminated. He testified that some in-
stallation work was performed postlayoff by electrical contrac-
tors, and though Aviles could perform the work, he could not
do it in the same time as the outside contractor. He testified that
Aviles did not have the experience or speed at this type work.
There is no proof that the work performed by the outside con-
tractors could not have been done, at least in substantial part by
Aviles and at a substantially reduced cost as he made $8.50 an
hour and the contractors charged from $8 to $19.50 per hour.
I agree with the General Counsel and the Charging Party that
Aviles’ position was eliminated primarily to keep from having
to recall Aviles. Bazbaz seemed particularly hurt by his oldest
employee’s support for the Union. Support for this position can
be found in a post layoff conversation Aviles had with Bazbaz.
Aviles and union organizer Medrano had had a run in with
Bazbaz in March when they tried to handbill the plant.51 Later
51 In March 1995, union organizer Medrano and Aviles attempted to
handbill the Respondent’s facility. According to Medrano and Aviles,
Bazbaz saw them and motioned to a security guard who was not paying
U.S.A. POLYMER CORP. 1261
that same day, Aviles saw Bazbaz at a chiropractic clinic to
which he had taken his wife for treatment for an injury suffered
in a car accident. Aviles also had his children with him. By
coincidence, Bazbaz came in to be treated and seeing Aviles,
sat near him. According to Aviles, Bazbaz told Aviles that he
was surprised by Aviles’ attitude, that he was a supervisor and
a supervisor could not be involved with the Union. Bazbaz
added that the person with whom he had been distributing fly-
ers earlier that day was very aggressive. He asked if this person
belonged to Aviles’ church. Aviles said no and Bazbaz told him
that he had read a lot of literature regarding unions, and that
unions are worse every time. Bazbaz said that the ILGWU in
some previous years had approximately 300,000 members and
now they have 150,000. Bazbaz continued saying that in unions
members have to pay dues and that unions live off those dues.
Bazbaz then said that he was paying Aviles well when he
was working for him, and asked if he were making it on unem-
ployment. Aviles answered that he was not. Bazbaz said if he
called Aviles back to work, he was not going to give Aviles the
same position of trust that he had had. Bazbaz then said that he
knew that all the people inside the Company who were in-
volved with the Union. Then he told Aviles that whenever he
wanted to go and talk to him, he could go to his office, that the
doors were open for him. Aviles told him he was ready to go
back to work then. Bazbaz said he was scared of the situation
because at this time he cannot buy materials easily. The work
is very slow and he did not believe it is going to be resolved or
it is going to be better.
Bazbaz testified about the meeting with Lucio Aviles at the
chiropractic clinic. Bazbaz confirmed this meeting occurred the
same day that the confrontation with Aviles and Medrano had
taken place. Bazbaz testified that he walked into the clinic, saw
Aviles and sat at the end of the room. Aviles come to him and
sat down next to him. Aviles asked if Bazbaz would give him a
job, and Bazbaz responded that Aviles had been in a supervi-
sory position and that he would not be able to get that position
back. On the other hand, he told Aviles that if a position for
Aviles became available, he would hire him back. At some
point after this conversation, Bazbaz eliminated the electri-
cian’s position at the plant and subcontracts that work and indi-
cated no interest in reviving the electrician’s position.
Aviles’ problems with Respondent began with it gaining
knowledge of his union activity. Almost immediately prior to
Respondent gaining such knowledge, it gave Aviles raises and
offered to make him a supervisor. I do not credit any of the
testimony about Aviles’ performance being unsatisfactory as it
flies in the face of demonstrable conflicting evidence. I do
credit such testimony for the proposition that Respondent was

attention. Bazbaz personally approached the two men and told them not
to handbill in the parking lot and told the guard to call the police.
Medrano told him to call the police that they were not handbilling on
Bazbaz’ property. According to Bazbaz, he observed union supporters
handbilling employees, and talking with his security guard. Bazbaz
testified that he approached the three men and told the guard to “let
these people do whatever they wanted to do as long as they were not in
the parking lot and not disturbing the traffic and it was okay for them.
Bazbaz then testified that Medrano said the if he did not like it to call
the police. Bazbaz did not call the police. This confrontation is not
alleged in the complaint to be a violation of the Act and I will not make
such a finding. There is little if any evidence in the record about Re-
spondent’s rules regarding solicitation and distribution and no actual
proof about whether Medrano and Aviles were on company or public
property at the time of the handbilling.
trying to create a valid reason for discharging Aviles and there-
after doing away with his position. I find that Aviles, individu-
ally, was discharged for his union activities and his position
eliminated for the same discriminatory reason.
I further believe and find that the process used to select em-
ployees to be laid off was discriminatory and aimed at ridding
Respondent of known union supporters. Javier Guerrero se-
lected the number and identities of the employees to be laid off
following the instructions of John Bazbaz. John and Issac Baz-
baz and Guerrero all testified about the manner in which the
number of employees to be laid off was selected. John Bazbaz
testified that it was decided to have a 30-percent reduction in
the operating time on the machines and the people that work on
the machines. He later testified that it was decided to slow the
production by about 30 percent. Issac Bazbaz testified that was
decided to cut operating time on the machines by about 30 per-
cent because production was dropping substantially from a high
in November. Guerrero first testified that Bazbaz told him to
carry out a reduction which would involve 30 percent of the
people. In later testimony, this changed to 30 percent of
production capacity. As noted earlier, the General Counsel and
the Charging Party assert these different versions of what was
intended with respect to the layoff is significant because over
45 percent of the production employees were laid off, not 30
percent. Twenty nine production employees out of a total of 64
production employees were laid off in January. Additionally,
four more production employees left Respondent’s employ
after the layoff and before the June hearing in this case without
any employee being recalled to replace them, thus raising the
percentage of work force reduction to 51 percent. I agree with
their position in this regard and also with their contention that
excessive overtime has been used to sustain the large cut in
workers and to keep from recalling laid-off employees.
John Bazbaz directed Guerrero to choose the workers for
layoff, taking into consideration tardiness, absenteeism, skills,
and warnings. After testifying about these factors several times,
he added that another factor was the employees’ ability to work
flexible schedules. Guerrero did as he was told and developed a
list of employees to be laid off. Bazbaz testified that Guerrero
did not discuss the list with him, instead simply telling him that
there were about 28 workers that they needed to lay off to get
production to the desired level. Bazbaz asked Guerrero if he
had taken into consideration when making the list the criteria
given him, namely, warnings, tardiness, skills, absenteeism, and
flexibility. Guerrero assured him he had and then took the list
to the personnel department to prepare layoff letters.
Maritza Patel, Respondent’s human resources manager, was
asked by Guerrero to check the files to determine employees
attendance, absenteeism, and warnings. She set up a computer
program which contained employees’ names, number, expira-
tion date for their work permit, department number, warnings,
shift, times tardy, and times absent. The tardiness and absentee-
ism columns cover the months of October, November, Decem-
ber, and January. The warnings column covers the employees’
entire employment history. This program was created a day or
two before the layoffs occurred and the printout from it was
given to Guerrero. Patel denies knowledge of any union activity
at the time the list of employees to be laid off was prepared.
Guerrero testified that he was to make sure that certain ma-
chines remained operational and to select employees to be laid
off based on warnings, attendance, and tardiness. Guerrero took
the list supplied by Patel and marked the names of employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
to be laid off, primarily the ones with warnings. This manner of
weighting the factors had the obvious effect of putting more
senior employees at risk as they would have had a longer period
of time to receive a warning than a new employee. The newest
employees at the Company were also the only ones who did not
sign authorization cards. In any event, Guerrero testified that he
maintained enough persons by department and shift to keep
operations going. Guerrero testified, for example, that in the
extruder area, there were four working groups of five employ-
ees each. He reduced that number to three. In the grinding de-
partment there were three work groups, which he reduced to
two. In each work group of five employees, that number was
reduced to three. In the washing operation there were four work
groups, which were reduced to two. One work group was re-
duced in the densifier department. Positions such as packing
were reduced as there was not going to be as much product to
pack. The materials receiver position was eliminated as there
was not enough materials being received to justify the position.
Guerrero testified that he tried to keep the employees who
had the best record, and those who could handle more than one
machine. This I do not believe nor do I believe his testimony to
the effect that he considered employee flexibility in determin-
ing who was to be laid off. The list of laid-off employees ap-
pears to me to have been prepared with an eye to defending it,
as it more than anything shows that persons were laid off me-
chanically without thought being given to individual’s abilities
and experience. As noted above, the list was weighted in favor
of the newest employees, those with the least experience and
demonstrated ability, but who were also not in support of the
Union.
At the time of the layoff, Guerrero created a new classifica-
tion group for employees, a “cross-trained utility group. He
testified that this is a group of employees who know how to
operate more than one machine and can work any shift. He
used this group to give support in the positions that he needed
to cover. Strangely, this group, which one would have assumed
would have the most skilled employees is made up in large part
with the newest and least experienced employees, including
those employees who did not sign authorization cards. Group
member Jeronimo Perez was hired by the company on No-
vember 15, 1994. Group member Antonio Pivarel was hired on
January 16, 1995. Group member Rene Iraheta was hired on
December 27, 1994. Group member Jose del Cid was hired on
December 5 of 1994. Group member Otto Barreno was hired on
January 11, 1995. Group member Orilio Barreno was hired on
January 11, 1995. These were the last persons hired by the
Company before the layoff. It is also interesting to note that
Oscar Barreno had accumulated four tardies by the date of lay-
off and his cousin Orilio had accumulated five tardies by the
time of the layoff. Guerrero said they were retained because
they did not have absences or warnings and were flexible in
work schedules. Guerrero was asked if it made any difference
to him in the selection process that these men had accumulated
four or five tardies within the 2 weeks they had worked for
Respondent. He indicated that he was aware of their tardiness,
but excused it because of weather or car trouble. Excuses for
absences and tardies were apparently not considered with re-
spect to the employees laid off though the evidence establishes
that absences and tardies were routinely excused by Respon-
dent.
All supervisors were retained regardless of their record with
respect to absenteeism or warnings. It was pointed out that
Sergio Palacios had 32 tardies and Guerrero excused this saying
that Palacios had a very flexible schedule. It was pointed out
that Cesar Portillo had 13 tardies and Guerrero had the same
answer. The same was true for Fernando Molina who had 11
tardies. Erick Hernandez was retained with 11 tardies and
Javier Garcia was retained with 17 tardies. Employee Homero
Alfaro was retained with 18 tardies and Guerrero explained that
he was a mechanic with extensive experience. It was pointed
out that laid-off employee Miguel Molina was also an experi-
enced mechanic and only had five tardies.
Guerrero testified that at the time of layoff they had elimi-
nated all the persons that it could afford to eliminate and still
keep the Company running. Yet, subsequent to the layoff, four
employees have quit and have not been replaced. Guerrero said
this was accomplished by modifications to equipment that have
made the operation more efficient and made it unnecessary to
replace these four employees. I cannot find any hard evidence
of what these modifications might have been. Work on the
conveyor system modifications ended in May 1995 without the
modifications being completed.
During the hearing, the Charging Party presented the testi-
mony of statistical expert Mary Burns, who testified as to the
statistical probability that the employees selected for termina-
tion could have been selected for non discriminatory reasons.
During her testimony, M. Burns showed that there was only a
4.26 chance that 20 union card signers could be terminated in a
reduction in force out of 64 employees, where 59 of 64 em-
ployees were card signers. Burns also demonstrated that the
probability of selecting 29 persons for layoff, 9 of whom were
members of the 10 person organizing committee, from a group
of 64 employees, was .00245, significant less than one percent.
She demonstrated that the probability that 16 of the 19 atten-
dees at a January 18, 1995 card signing/union organizing meet-
ing would be among the 29 people selected for termination was
only .00546 or 1 in 18, 310. Burns offered that such odds were
statistically significant deviations.52
In conclusion, I find that Respondent has failed to adequately
rebut the General Counsel’s strong showing of discrimination
in the layoff of January 27 for all the reasons set forth above.
Although I also believe that a layoff of some level would have
occurred at some point well after January 1995, but before June
1995, I believe that this matter can best be determined at the
compliance stage of this proceeding. Therefore I find that as
alleged in the complaint, the January 27 layoff and the process
used to select employees for layoff are in violation of Section
8(a)(3) and (1) of the Act.
E. Was Respondent’s Postlayoff Call-in Require-
ment Unlawful?
Respondent gave each laid-off employee a letter dated Janu-
ary 27 that required that each of the employees laid off to call
in daily, Monday through Friday, and their failure to do so
could result in their being terminated. Maritza Patel prepared
the letter from a form letter obtained from a company that ad-
vises Respondent on unemployment matters. She added to the
letter the times the employees were to call in and the name of

52 Statistical evidence is admissible to show the probability that a
mass termination could have occured for a nondiscriminatory reason.
Statistical evidence may support an inference of unlawful motivation.
NLRB v. Cameo, Inc., 340 F.2d 803 (5th Cir. 1965). Certain statistical
evidence submitted in rebuttal by Respondent is not considered relevant
by me as it is not based on accurate base figures.
U.S.A. POLYMER CORP. 1263
the person to call. in preparation for the layoff. The letter reads
as follows:

You are part of a temporary reduction in force. As this
reduction is “temporary” you are subject to be recalled on
a daily basis. Part of your responsibilities to maintain your
eligibility to work with our company is to call every
workday morning, Monday to Friday, between 10:30 a.m.
to 11:00 a.m. to determine if you are one of the employees
to be recalled that day. Call Rosa Benitez at [number omit-
ted]. Failure to do so for 2 consecutive days will cause us
to consider you unavailable for work or having resigned
your position with our company. If you have found an-
other job, or for another reason you will not be available to
work, call also. Failure to do so may have a direct effect
upon your benefits of future employment.

John Bazbaz testified that the letter was given to employees
because the Company did not have current phone numbers and
addresses for the employees and that the layoff was intended to
be temporary in nature. I do not believe that Respondent did not
have this information, and even if it did not, it would have been
far less cumbersome for the employees and far less costly for
Respondent to take this information at the time of layoff rather
than opting for the call-in requirement. I believe the more ra-
tional reason for the requirement, given the discriminatory mo-
tive for the layoff, was to find a way to permanently discharge
employees and have a reason for not recalling them when pro-
duction increased.53 As I find that the requirement was made in
furtherance of the discriminatory and unlawful layoff, I find
that it too was intended to unlawfully discourage the employees
from engaging in protected conduct and was thus made in vio-
lation of Section 8(a)(1) of the Act. The call in requirement was
changed in March at the request of the Board. The change re-
quired the employee only to write in or call in saying they were
interested in recall and giving their address and phone numbers.
F. Did Respondent Retaliate Against Witnesses Following
the June Hearing?
The complaint alleges that beginning during the hearing in
this proceeding which was conducted in June 1995 and continu-
ing thereafter, Respondent has engaged in a pattern of retalia-
tion against the witnesses who testified against it. The alleged
retaliation took the form of illegal interrogations, threats, warn-
ings, a discharge and a July 7 layoff of 10 more employees.
1. Did Respondent question employees as to their testimony
after their appearance at the hearing?
Camilio Ramirez was recalled as a witness after his first visit
to the stand on June 6. He testified that on June 7, he reported
for work, and was met by Supervisors Fernando Molina and
Sergio Palacios. There was also a group of employees nearby

53 Luis Castro testified that he went back to the plant on January 31,
to pick up his paycheck. He was standing in a line of other employees
waiting for their checks, when Bazbaz came up and told the group of
employees that if they wanted to work that they should continue to
call. According to Castro, Bazbaz then turned around and laughed, as
if he were making fun of the employees. With respect to this incident
Bazbaz testified that he did not laugh at the employees and simply told
them to call in as he expected to get material at any time. I credit Cas-
tro’s version of the event as no action taken by Respondent after the
layoff evidences any intent to recall anyone. To the contrary, look again
at the overtime granted those employees not laid off and the failure to
recall laid-off employees when employees quit postlayoff.
waiting to leave work. Palacios asked him what had been said
at this hearing. The witness pointed out that he could not talk
about that as he had been sequestered. Molina said, “Your
mommy told you not to say anything?” The witness did not
answer. Instead, he asked the other employees if they had re-
ceived a subpoena to testify. Palacios said that those things
(subpoenas) were “cock-sucking.” The witness said that is not
correct. Palacios addressed the employees and said, “That if
they didn't want to go to testify in Court, not to go; only to
return the subpoena by mail.” The witness responded to this bit
of misinformation by saying, “No, Sergio, because if they do
not appear in Court, the police are going to go after them to
take them to testify.” Palacios answered, “Those are just stupid
things, unimportant things.” Palacios also asked him who was
involved with the Union at this time, the real leaders of the
union. The witness told him Luis Castro and Lucio Aviles.
Ramirez also contends that thereafter, his work schedule was
reduced for a while.
Both Palacios and Molina answered “No” when asked
whether they had a conversation with Camilio Ramirez on
about June 6, 1995, about Ramirez’ testimony in this proceed-
ing. I have heretofore found that both supervisors gave less than
credible testimony when they denied knowledge of the union
campaign prior to the layoff and thus their blanket denial of a
number of unlawful conversations and threats made against
union supporters pre-layoff. I find nothing which would require
a different finding with regard to the credibility gap that exists
in this incident. I credit Ramirez’ testimony set about above and
find that Respondent thus engaged in conduct in violation of
Section 8(a)(4) and (1) of the Act.
2. Were Camilio Ramirez, William Rosales, and Marco Posa-
das warned or otherwise disciplined because they gave testi-
mony in this case?
Camilio Ramirez, who appeared as a witness in this proceed-
ing and gave testimony against Respondent returned to work
after his testimony. A day or so after his testimony, he was he
was working on a machine that compressed boxes and banded
them with straps. One of the boxes came out of the machine
with some straps broken. The forklift driver, William Rosales,
who had also testified against Respondent, arrived to pick up
the boxes and Ramirez warned him to be careful because of the
broken straps. Javier Guerrero approached the two employees
at this time and in an angry tone, told Ramirez that if he ever
saw him talking again, he would receive a warning. According
to Ramirez, Guerrero had never spoken to him like that before.
There is no rule against employees talking at Respondent’s
facility and no explanation was offered for this outburst against
Ramirez.
William Rosales testified that subsequent to this incident, he
was given a written warning for talking with another witness,
Marco Posadas, about a work-related matter. He was operating
a forklift and noticed some wires on the floor. He called to
fellow employee Marco Posadas to pick up the wires so they
did not become entangled in the wheels of the forklift. Rosales
had been told to be careful of just such occurrence by Javier
Guerrero earlier. Posadas responded and while he was picking
up the wires, Guerrero approached and angrily grabbed Rosales
by his arm, telling Rosales he was going to be given a warning.
Guerrero said that he had seen Rosales talking with Posadas six
times. Rosales did not say anything to Guerrero, though he
testified that this accusation was false. Respondent has no writ-
ten work rules and Rosales testified that he had not been told of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
any prohibition against talking with fellow employees. Rosales
testified that after Guerrero threatened him, he saw Guerrero go
to Posadas and Rosales left the area. Later, about 5 to 10 min-
utes before quitting time, Posadas came to him and told him
that he, Posados, had been fired. Rosales received a written
warning for this incident.
Posados corroborated Rosales’ testimony that he was asked
by Rosales to pick up wire from the plant floor so Rosales
could perform his work. He testified that Guerrero came up and
asked why the employees were talking. Posadas testified that he
wanted to explain, but Guerrero would not let him. Guerrero
then said he was giving them a warning for talking. Five min-
utes later, Supervisor Zepeda summoned Posadas and another
employee Guadalupe Leal to the office. Guerrero gave him a
written warning which Posadas would not sign because he did
not believe it to be true. Guerrero then asked Leal to sign as a
witness and Leal declined saying he had not seen what oc-
curred. Guerrero then told Posadas to go home. Posadas asked
for a letter to obtain unemployment compensation and Guerrero
said he could not give it to him. It was 3 p.m., the normal end
of the shift, and Posadas punched out and left. Posadas con-
tends he was fired because Guerrero said, “Leave. You don’t
work here any more.”
With respect to the alleged termination of Posadas, Guerrero
testified that Posadas was given a warning on June 14, but was
not fired. In this regard, he testified he gave Posadas a warning,
noting to him that counting the instant one, Posadas had ac-
crued three warnings Guerrero told Posados that John Bazbaz
was going to review the warnings. According to Guerrero,
Posados then said he was quitting and leaving. Guerrero testi-
fied that he said Posados could leave as his shift was ending
and that if there was something else to come from the incident,
he would tell him the following day.
According to Posadas, when he arrived home about 5 p.m.,
John Bazbaz called and said, “This is John Bazbaz, and I found
out what happened. I want you to return to work tomorrow, like
always.” Posadas returned to work the next day and worked
continuously until he was laid off on July 7. With respect to the
alleged firing of Marco Posadas on June 14, Issac Bazbaz testi-
fied that he was present when John Bazbaz spoke with Posadas
by telephone on that day. He testified that Posadas believed he
had been terminated and John Bazbaz told him that he had not
been dismissed, that he would talk further with him and to con-
tinue to work. John Bazbaz testified that he learned that Posa-
das had been warned and phoned him and told him that he un-
derstood that he had been given a warning. He told Posadas that
he was to report to work the next day, and that after the trial, he
would investigate the circumstances. According to Bazbaz,
Posadas said, “Yes, sure, no problem.”
I credit Posadas’ testimony about this incident and find that
he was discharged by Guerrero. John Bazbaz did not call Wil-
liam Rosales who received a written warning to see if he was
coming to work the next day. Unless Posadas had been termi-
nated there was no reason for Bazbaz to call him. I further find
that the basis for Rosales’ warning and Posadas’ discharge was
their testimony in this proceeding. There was no basis in either
work rules or past practice shown by Respondent for taking the
disciplinary action against the two employees and given its
animus toward the Union, I find that the discipline was meted
out in retaliation for their testimony.
3. Did Respondent deny employees Camilio Ramirez, Jose
Melendez, Jesus Martines, and William Rosales their normal
work hours and/or overtime hours in retaliation for
their testimony?
Jesus Martines was recalled as a witness, having previously
testified on June 9. After he finished testifying, he went to
work. On arriving at the plant, his supervisor, German Robles,
told him there was no work for him to do because the machine
he operated was being repaired. The same situation had existed
the day before he testified, but on that day, he was assigned to
different work. When he was sent home, he gave Robles his
phone number and was told that Respondent would call him
when they needed him. He later was informed not to report to
work until Monday, June 12, although he had been scheduled to
work Saturday, June 10. According to Martines, Cesar Portillo
has been demoted from supervisor to washing machine opera-
tor. Portillo was allowed to continue working cleaning the
washing machines on the days Martines was not.
Jose Melendez testified here on June 7. At that time he was
working as an extruder operator on the 3 to 11 p.m. shift. On
his return to work following his testimony, a supervisor, Her-
man Robles, warned Melendez and about seven or eight other
employees beginning work not to talk with anyone. Melendez,
on this day or the next, also saw his working time reduced. He
had just punched in on his shift when Javier Guerrero told him
to go home, that he was not being granted any more overtime
and that a new work schedule was being prepared. The shift
that Melendez was starting would be overtime, but was previ-
ously scheduled and had been the same for more than a month.
Guerrero also told him that if it became necessary to call him to
work, Supervisor Molina had his phone number. He was also
supposed to work the following day, but Guerrero told him not
to report for work, they would call him if they needed him. On
Saturday, he called to see if he would be needed and reached
Augustine Garcia. Garcia told him he did not know if he was
needed and to wait 10 minutes while he checked with Supervi-
sor Molina. Molina came on the line and told him to wait an-
other 20 minutes while he talked with Guerrero. Melendez
hung up and called back about 20 minutes later, but no one
answered. He tried again, but still could not get an answer and
thus did not report to work. Melendez reported to work the
following Monday and spoke with Supervisor Augustine Gar-
cia, who said he had attempted to reach Melendez on Saturday
as he had work for him. Melendez said he was lying as he did
not receive any calls Saturday. Melendez has a company
beeper.
Melendez has not worked any overtime since he appeared as
a witness in this case, though another operator performing the
same function on the same shift continued to receive overtime.
Additionally, the witnesses helper on the extruder was taken
away from him on June 25. Melendez asked his supervisor
German Robles why this was happening and Robles said he
needed him somewhere else.
Prior to his testimony on June 7, William Rosales had been
working nine to twelve hours a day. Since then, he works no
overtime. He also had been allowed to work on his normal day
off and that has been canceled. His work week has dropped
from 55 to 60 hours a week to 48 hours a week. Rosales also
testified that though his overtime was cut, other employees
were allowed overtime. Rosales specifically mentioned another
forklift operator as being an employee who continued to work
overtime. Before Rosales first testified, he was told by a super-
visor that he was working overtime because the Respondent did
not have enough personnel. Rosales further testified that after
U.S.A. POLYMER CORP. 1265
his testimony, supervisors who had normally spoken to him
would no longer do so. He noted in connection with the inci-
dent noted above wherein Guerrero warned Ramirez against
speaking with other employees, that he had seen Guerrero
speaking with Supervisor Molina shortly after the incident.
Ramirez then testified that Molina came to him and said that he
would not be needed to work on Saturdays. Saturday was one
of his 5 regular workdays.
Respondent offered no evidence in denial of these employees
testimony and I credit their testimony, finding that their over-
time hours and scheduled workdays were cut by Respondent
immediately after their testimony here. As no business reason
was offered by Respondent for these actions, I infer that they
were in retaliation for the employees’ testimony and in viola-
tion of Section 8(a)(1), (3), and (4) of the Act.
4. Did Respondent tell an employee that he had been instructed
to make things hard on him to induce him to quit
his employment?
David Contreras testified on June 8 and was recalled as a
witness. After his initial testimony, he returned to work and had
a conversation with his supervisor Israel Zepeda regarding how
many bags he was to produce on his machine. Zepeda told him
that he had to improve on the record of the previous shift which
had produced 18 bags. He told Zepeda to give him a helper and
Zepeda said he would furnish one at 3 a.m., about 4 hours into
the shift. There had been a helper on the earlier shift. He never
got a helper on this shift and produced about 15 bags by him-
self. He went to Zepeda at 3 a.m. and asked for his helper.
Zepeda said he could not furnish one because he had orders
from Javier Guerrero and from John Bazbaz to provoke him to
quit for giving testimony against the Company. By the time of
October hearing Zepeda had quit working for Respondent.
Guerrero denied ever telling a supervisor to make things hard
for an employee so that he would quit. Whether Guerrero actu-
ally told Zepeda to tell Contreras these things, I am not sure.
However, I do believe Contreras’ testimony in this regard and
find that Respondent has violated Section 8(a)(4) and (1) by
Zepeda’s actions.
5. Did John Bazbaz threaten to kill Camilio Ramirez?
As noted above, Camilio Ramirez testified in early June and
was thereafter subjected to certain harassment and loss of over-
time. He also testified in the continued hearing that subsequent
to his earlier testimony John Bazbaz threatened to kill him,
apparently in retaliation for his earlier testimony. In the main
that testimony involved a conversation he had with Bazbaz in
around April 1995. At that time, Ramirez had suffered an injury
to his hand and was having difficulty performing his work.
According to Ramirez, John Bazbaz came to him at work after
the injury and asked him if he were tired. He explained to Baz-
baz about the injury. Bazbaz told him to go to his office. At the
office, Ramirez asked Bazbaz to help him because of the injury
to his hand. Bazbaz told him not to worry about anything. The
two men then talked about the Union. Bazbaz told him that the
unions were no good, noting a company in Dallas that was
unionized and all the workers were fired. According to Rami-
rez, Bazbaz told him that at one point there were a thousand
employee members, but now there were only about a hundred.
Bazbaz continued telling him that he had laid off the other em-
ployees because of lack of work, not because of the Union.
Ramirez commented that Aviles had told him that his fellow
workers had earlier attempted to form a union to see if he
would better their wages and receive benefits and were told by
Bazbaz that they had no rights and the doors were open for
anyone who wanted to leave. Bazbaz denied saying this and
told him that Aviles was a guy that was not grateful because he
was the electrical supervisor who should not have been in-
volved with the Union. He added that he had given Aviles eve-
rything he needed. According to Ramirez, Bazbaz again told
him that unions were no good and that there was no need for
middle men. He added that if Ramirez had any problem, just
come to him. Bazbaz then told him again not to worry about his
hand, but that he wanted one small favor, to have the witness
testify for the Company in court. Out of fear of being fired, the
witness agreed. Bazbaz also asked him to keep this conversa-
tion a secret.
Bazbaz had a different version of this conversation. Bazbaz
testified that Ramirez asked to speak with him privately. Ac-
cording to Bazbaz, Ramirez told him that he was a member of
the Union and Bazbaz said he knew that. Ramirez then told
Bazbaz of a medical problem he had with one of his hands. As
Ramirez had a job requiring physical effort, Bazbaz was con-
cerned that the injury was job related. So Bazbaz said he was
sorry about the injury and not to worry. According to Bazbaz,
Ramirez then told him that he had gone to the Union and told
them of the injury and had been advised to return to the plant
and fake a fall to explain the injury. Bazbaz asked if he would
be willing to testify to this conversation with the Union and
Ramirez said he would. Bazbaz subsequently paid for medical
treatment for Ramirez’ injury.
This conversation was not alleged in the complaint as being
unlawful. On brief, the Charging Party and the General Counsel
assert that it should be found unlawful, and I agree to a degree.
Crediting the testimony of Ramirez as set out above, I find that
the conversation is coercive and demeaning of the Union, thus
violative of Section 8(a)(1) of the Act. I do not find Ramirez’
testimony about testifying on behalf of the Respondent in
“court” sufficiently specific to justify a finding that Respondent
was attempting to somehow bribe Ramirez into impeding
Board processes or to offer untruthful testimony. It could well
be that Bazbaz’ assertions in this regard are true. They are not
contradictory of what Ramirez stated.
Camilio Ramirez was recalled as a witness at the October
hearing and, according to Ramirez, about a week after his sec-
ond appearance here, he was working at about 9 or 10 in the
morning when he was approached by John Bazbaz, who was
alone. According to Ramirez, Bazbaz said, “Do you know,
Mister,54 I have not had a chance, but now that I have it, I am
going to tell you. You are going to die, you son of a bitch. I am
going to kill you.” According to Ramirez, he responded by
asking Bazbaz, “Are you threatening me, sir?” Bazbaz alleg-
edly then said, “No; I am advising you, I am threatening you; I
am telling you that you are going to die,” again calling him a
“son of a bitch.” Bazbaz added, “You know what; I already
forgave you once. Only God is missing; But not even God;
Because for—so that God may forgive you, I—you have to be a
good person.” He also told me, You know what; Be very
straight in the job because the most minor fault, that—I am
going to fire you.” Ramirez testified that at this point, he was

54 According to Rameriz, Bazbaz used the term “Maestro,” which in
Mexico is a term used to refer to persons who perform the most menial
tasks in society, and is a very derogatory term.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
frightened and left work. He amended this to say that he left
about 2 hours after his encounter with Bazbaz.
According to Ramirez, he spoke with Bazbaz again before
leaving. Ramirez went to Bazbaz’ office and asked to speak
with Bazbaz. When Bazbaz appeared, Ramirez asked to speak
with him privately. Bazbaz laughed and indicated that Ramirez
should come into his office. He did so and found that present
were Carlos Hallatt, Luiz Mendoza, and Javier Guerrero. Rami-
rez told Bazbaz that whenever Bazbaz wanted to do what he
had said that morning, he was at his disposal. Bazbaz laugh-
ingly said, “ I don't know what you are talking about. Ramirez
responded, “No, sir,” I said, “You do know what. You know
what you told me this morning, that you were going to kill me.”
That, “You are going to die.” Bazbaz laughingly said, “I don't
know anything about that.” Ramirez added that mocking him
and laughing at him were the other three management members
present. Ramirez testified that when he saw this, he told Bazbaz
that he had only come to tell him that and he was leaving. Baz-
baz said for him not to leave, that would be insubordination.
Ramirez stood up and Bazbaz continued, complaining about the
quality of Ramirez’ work. Bazbaz told Ramirez to keep the
place clean and do his work well. Bazbaz also complained that
Ramirez would not fill out necessary paperwork when he went
to see a doctor. Bazbaz then referred Ramirez to Guerrero with
regard to this paperwork. Ramirez told Guerrero that no one
had ever told him about any such paperwork. Bazbaz inter-
jected “If you didn’t know it, now you know it. Ramirez ended
the meeting by saying, “From now on, whenever I would go
out, I would look for the paper and sign it, and, regarding the
cleanliness of the place, all the time that I had a chance to
clean, I would clean.” Ramirez left, telling Bazbaz he had to
leave because of an emergency involving Ramirez’ wife. Su-
pervisor Israel Zepeda had earlier told Ramirez that he had
received a call from Ramirez’ wife about the emergency.
Ramirez returned to work the next day after the alleged
threat and continued to work until he was laid off some days
later. Ramirez testified that he reported the incident to Lucio
Aviles. He also testified that he wanted to report it to the police,
but did not, for unexplained reasons. He also said he reported
the incident to Supervisor Augustine Garcia and told union
organizers Ricardo Medrano and Andy Garza about the threat.
He gave a written statement to the union organizers about the
incident in August 1995, which was supplied to the Board in
that month. Medrano testified that he learned of the alleged
threat from Lucio Aviles. Aviles told Medrano that a death
threat was made against Ramirez and that he was very scared
and didn't know what to do. Medrano told Aviles to contact
Ramirez and have him get in touch. Ramirez called him a cou-
ple of hours later Medrano could not remember what month in
which these conversations occurred. According to Medrano,
Ramirez told him that John Bazbaz had threatened him and
threatened his life, and he was very scared; he didn't know what
to do. Medrano testified Ramirez said he wanted to leave the
Company and just forget about the whole thing. Medrano then
told Ramirez he needed to speak with the Union’s attorneys and
with the Board. Medrano relayed Ramirez’ allegations to Andy
Garza, Betty Boyer, and Attorney Janovsky.
Bazbaz testified he learned of the allegation that he had
threatened Ramirez from his attorney at some point in early
August. He also testified about the events of the day that Rami-
rez said the threat occurred, which was 2 or 3 weeks after Ra-
mirez had testified in the first hearing. He testified that he and
Javier Guerrero took a tour of the plant about 10 a.m. on that
day for about 15 minutes. They encountered Ramirez baling
paper scrap and cardboard boxes. Bazbaz testified that he ap-
proached Ramirez and said good morning and told him to make
sure that he did not scrap boxes that could be used again and
Ramirez said it was no problem. He also told him to keep poly-
propylene scrap separate from the other scrap because of a
difference in the price for the two types. According to Bazbaz,
this was the end of the conversation and he and Guerrero con-
tinued through the plant and then returned to the office.
Guerrero testified about meeting with Ramirez in the morn-
ing. According to him, they encountered Ramirez on a tour of
the plant and said hello. Bazbaz then told Ramirez to be careful
with the boxes he was scrapping, and to ask his supervisor if he
had any question. Bazbaz also told him to keep the work area
clean in order to make it safe, noting that there could be an
accident if someone walked where the scrap boxes were. Guer-
rero testified that Ramirez said okay, and Bazbaz and Guerrero
left the area.
About 2 hours later, Luis Mendoza advised Bazbaz that Ra-
mirez wanted to speak with him privately. According to Baz-
baz, he was unwilling to do that because there was confusion
about their previous conversation in April wherein Bazbaz was
accused by Ramirez of trying to bribe him into testifying
against the Union. Bazbaz told Ramirez to enter his office and
he asked in three management witnesses, Mendoza, Hallatt and
Guerrero. As they entered, Bazbaz asked Ramirez what he
could do for him. Bazbaz testified that Ramirez said, “I am here
for you to do what you were going to do to me. And I asked
him, What are you talking about? He says, Well, you know
what. Bazbaz said, No, I don't. Please explain.” Suddenly Ra-
mirez changed the subject, and said, “Well, you know, I got to
go because I have an emergency and my wife called, and I need
to go.” Guerrero asked Ramirez to fill out a form excusing his
leaving early and Ramirez nodded yes. Bazbaz told him in part-
ing, “Look, Camilio, if you do your work—if you come early to
work, if you come on time to work, if you do your job as you
should and you keep your area clean, you shouldn’t have any
problems in the plant.” According to Bazbaz, Ramirez said yes.
Ramirez returned to work the next day. Bazbaz testified that
during the meeting the other three management members did
not mock or laugh at Ramirez, but remained quiet and listened.
Guerrero, Hallatt, and Mendoza gave essentially similar de-
scriptions of this meeting. According to Guerrero, Bazbaz
asked him what Ramirez had been talking about after Ramirez
left.
I believe that Ramirez truthfully felt that Bazbaz had some-
how threatened him in the morning. His opening comments at
the afternoon meeting with the management officials, which all
participants described similarly, support this finding. Given his
treatment at the plant after his testimony in June, he can be
excused for feelings of paranoia. On the other hand, I do not
find that Bazbaz threatened to kill Ramirez or believed that he
had threatened him physically in any fashion. Ramirez could
easily had interpreted Bazbaz’ criticism of the way in which he
was performing his work that morning to be a threat of some
sort. Having observed John Bazbaz for almost a month of hear-
ing, I do not believe he would either speak to an employee in a
demeaning manner or threaten to cause them physical harm.
Bazbaz is a very intelligent, soft spoken man who appeared to
have a great deal of patience. Nothing in his demeanor would
suggest he would lose his temper and threaten an employee as
U.S.A. POLYMER CORP. 1267
Ramirez alleges. Moreover, there is no explanation as to why
this incident was not reported to the Board until over a month
after its alleged occurrence. I do not credit Ramirez with regard
to the alleged death threat and do credit Bazbaz’ denial that
such a threat was made.
6. Did the Respondent unlawfully lay off employees
on July 7, 1995?
On July 7, Respondent had a further layoff, this time laying
off the 10 employees named below:

Javier Garcia William Rosales
Camilio Ramirez Marco Posadas
Guadalupe Leal Jose Melendez
Eliseo Serrano Antonio Pivaral
David Contreras Erick Hernandez

John and Issac Bazbaz testified that the decision to make the
July layoff was prompted by continuing negative results and the
outlook for the future. They testified that a decision was made
to discontinue production of HDPE because it was not profit-
able. Ceasing this production line caused the layoff. John Baz-
baz testified that the demand for polypropylene remained con-
stant and the Company decided to concentrate its efforts in this
market. Isaac Bazbaz testified that prior to this layoff, Respon-
dent attempted to cut costs. The primary means used was to
cease allocating administrative expenses from the parent corpo-
ration to the Respondent. It hired an administrative plant man-
ager to perform some of the tasks that had been performed by
the parent. This manager, Luis Mendoza, was also a potential
investor in the Respondent, though he had not invested in the
Company as of the date of his testimony herein. Subsequent to
the layoff, Respondent did run some HDPE in order to meet the
demands of customers for its large existing inventory of HDPE.
According to Respondent, these customers were willing to buy
some of the existing stock, but only if they were also offered
some custom HDPE at the same time.
With respect to the July layoffs, John Bazbaz testified that he
instructed Javier Guerrero to tell him how many people it
would require to just run polypropylene production and then to
select the employees to be laid off based on the criteria of at-
tendance, tardiness, and skills.55 The positions eliminated by
elimination of the HDPE production were grinders, washers,
one forklift operator, and the janitor. According to John Baz-
baz, the layoff has not resulted in additional overtime for the
remaining employees. There have been occasions when over-
time was granted because a weekend shift was necessitated by
lack of material or a broken machine that made overtime neces-
sary to meet the promised delivery date to a customer.
Guerrero testified that he was instructed by John Bazbaz to
review attendance, skills, and warnings to select the persons to
be laid off. Records relating to attendance and warnings for
three months preceding the layoff were looked at in making the
selection decision. Guerrero announced the layoff to the af-
fected employees in two groups of five employees each. Ac-
cording to Guerrero, he told the employees that they did not
have enough material, and that with respect to HDPE, that pro-
duction would cease because the price was very unstable. He
denies mentioning the Union in either of these discussions and
denied that Union support played any part in the selection proc-
ess.

55 Isaac Bazbaz testitied that these criteria were absenteeism, tardi-
ness, and warnings.
Some of the affected employees had a different version of
these layoff meetings. Jose Melendez testified that at the meet-
ing at which he was laid off, Guerrero told the gathered em-
ployees that management had made an evaluation regarding
warnings and tardiness, and based on that evaluation, had de-
cided to lay off 10 employees, including those at the meeting.
Melendez complained because he had been told by Guerrero in
May that the employees retained after the January layoff should
not worry because the ones retained at that point were the best
employees. According to Melendez, Guerrero then said they
were being laid off because of being involved with the Union.
The only time Melendez had been tardy between the date of his
testimony and the layoff was the day he testified. He gave no-
tice that he would be late that day and was told that it was all
right.
David Contreras was told he was being laid off in a meeting
with fellow employees Erick Hernandez and Antonio Piveral.
According to Contreras, Guerrero told them that management
had decided to lay off some employees because there was not
much work. Guerrero said they had selected employees for
layoff taking into consideration attendance, cooperation shown
to the factory, and warnings. Contreras asked if they were go-
ing to be recalled and Guerrero said maybe they would if there
was work. Contreras was called back from layoff by Guerrero
on a temporary basis and worked 1 week in August. Eric Her-
nandez was also recalled at the same time on the same basis.
Camilio Ramirez learned he was being laid off from Super-
visor Israel Zepeda, who allegedly told him that Javier Guer-
rero wanted to know why he had taken so long with the deci-
sion.56 In any event, Ramirez was sent to the laboratory and
laid off by Guerrero. In this meeting, Guerrero also laid off
William Rosales, Marco Posadas, Guadalupe Leal, and Javier
Garcia. Guerrero told them that due to economic problems and
the inability to get materials, employees were being laid off to
keep the Company alive. Guerrero said the employees had been
selected for layoff because of warnings, absences, and tardies.
Garcia asked why he was being laid off because he had no
warnings and had not been late or absent. Guerrero told him
that the Company could not pay a person for just sweeping,
which was Garcia’s job. Leal asked why he was being laid off
and Guerrero said it was for warnings.
Rosales testified that about 3 days before he was laid off on
July 7, Supervisors Fernando Molina, Israel Zepeda, and
Augustine Garcia asked him how much he paid a month for his
car and how many monthly bills did he have. None of these
supervisors explained why they wanted this information.
Rosales speculated that it was connected somehow to the lay-
off. He was laid off on July 7 at quitting time. He was told on
that date to report to Respondent’s laboratory. When he arrived
there he was met by Guerrero, who told him to wait until some
other employees arrived. Shortly thereafter, he was joined by
Marco Posadas, Guadalupe Leal, Javier Garcia, and Supervi-
sors Zepeda, and Robles. Guerrero told the employees that
because the workload was very slow, the Company had decided
to lay off employees and the gathered employees were in that
group. Guerrero added that the laid-off employees had warn-
ings and faults, including absenteeism. Rosales testified that he
had been late for work about five times in the period between
56 I presume this is meant to refer back to the conversation Rameriz
had with Bazbaz in April when Bazbaz allegedly tried to get Rameriz to
testifiy against the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
his first testimony and the day of the layoff. He added that on
those occasions he had called in to announce that he would be
late and was not told by the supervisors to whom he spoke that
he could suffer adverse consequences by being tardy.
Since the layoff, Respondent has hired back two employees
on a temporary basis for a 1-week period, and hired back two
on a permanent basis. According to Bazbaz, to select the per-
sons recalled, he instructed Guerrero to look first to the January
layoff list and the employees on that list who had complied
with its instruction to write a letter telling of their willingness to
be recalled and giving their current address and phone number.
Bazbaz testified that only two or three of the employees laid off
in January had sent such a letter. He also told Guerrero to look
at the second group of employees laid off if he could not find
someone for recall from the January list. The employees re-
called temporarily were David Contreras and Erick Hernandez.
The employees recalled permanently were Antonio Pivaral,
Guadalupe Leal, and Erick Hernandez. Hernandez quit a few
days after being recalled. Although Respondent had the names
and phone numbers of most, if not all, of the employees laid off
in January, it did not call these people to see if they wanted to
return to work. Instead, it only called those who had complied
with its directive to write in acknowledging such a desire. Sub-
sequent to the July layoff, Respondent’s chemical engineer,
Ivanoff, and a clerical, Denise Bardon, were laid off and Super-
visor Zepeda quit.
As of the date of the second hearing, Respondent employed
about 20 production employees and about 30 some odd em-
ployees overall. The Company is currently running three shifts
4 to 6 days a week. Hallatt remains employed as a consultant
and he testified that the Company has continued to try to auto-
mate more of its processes and noted that since the last hearing
it has built cranes and modified conveyors that simplify the
labor needed. It has also increased the productivity of the ma-
chines.
I am not convinced that the July layoff or the selection proc-
ess used was discriminatorily motivated as was the January
layoff and the January selection process. Only one of the em-
ployees laid off testified that the Union was mentioned as a
reason for laying off employees. Other employees laid off at
that meeting did not corroborate this testimony. Moreover,
Respondent’s reasons for the layoff ring true given the state of
the market for HDPE. The employees laid off did not include
non card signers, but the group was also not limited to wit-
nesses in the prior hearing. Some of the actions taken subse-
quent to the July layoff for once support Respondent’s eco-
nomic defense, primarily the laying off of Ivanoff, who was
needed only to consult on HDPE production. Respondent’s
reasons for reinstating some limited HDPE production post-
layoff also seem reasonable. The timing of this layoff is also
consistent with market conditions as described by expert wit-
ness Kopulsky whereas the timing of the January layoff was
not. In all, I find that though Respondent clearly harbors union
animus, and had knowledge of the laid-off employees’ union
sympathies, it conducted the July layoff for legitimate eco-
nomic reasons.
G. Is a Bargaining Order a Proper Remedy in this Case?
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
Supreme Court approved bargaining order remedies for “outra-
geous” and “pervasive” unfair labor practices, even without a
showing that the union involved ever possessed evidence that it
was the majority representative of the unit of employees who
have been affected by such unfair labor practices. In Gissel,
supra at 614–615, the Court also approved the use of bargaining
order remedies in a second category of cases that it described
as:

less extraordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine ma-
jority strength and impede the election process. The Board’s
authority to issue such an order on a lesser showing of em-
ployer misconduct is appropriate, we should reemphasize,
where there is also a showing that at one point the union had a
majority; in such a case, of course, effectuating ascertainable
employee free choice becomes as important a goal as deter-
ring employer misbehavior. In fashioning a remedy, in the ex-
ercise of its discretion, then, the Board can properly take into
consideration the extensiveness of an employer’s unfair labor
practices in terms of their past effect on election conditions
and the likelihood of their recurrence in the future. If the
Board finds that the possibility of erasing the effects of past
practice and of ensuring a fair election (or a fair rerun) by the
use of traditional remedies, though present, is slight, and that
employee sentiment once expressed through (authorization)
cards, would, on balance, be better protected by a bargaining
order, then such an order should issue.

I believe a bargaining order remedy is warranted in this case
under either category of cases established by the Supreme
Court. Regarding the first category, the Second Circuit ex-
plained:

Certain violations have been regularly regarded by the Board
and the courts as highly coercive. These are the so-called
“hallmark” violations and their presence will support the issu-
ance of a bargaining order unless some significant mitigating
circumstance exists. They include such employer misbehavior
as the closing of a plant or threats of plant closure or loss of
employment, the grant of benefits to employees, or the reas-
signment, demotion or discharge of union adherents in viola-
tion of Section 8(a)(3) of the Act.57

In the instant case, Respondent by threatening employees
with layoff, discharge, and other, unspecified reprisals for sup-
porting the Union, and then following up the threat with a lay-
off of almost 50 percent of the work force, including only union
supporters, certainly has committed a “hallmark” violation.58 It
has followed the January layoff with further acts of reprisal
against known union supporters and against those who testified
in the first hearing, as set out above. Under the circumstances
the chances of securing a fair election at Respondent’s facility
are nil in my opinion. However, even if these violations are
considered by some appellate body to not fall into the so-called
“hallmark” category, a bargaining order should issue as the
facts of this case certainly fall into the second category of cases
in which the Supreme Court has found the bargaining order
remedy proper.
1. The Union secured authorization cards from a large major-
ity of Respondent’s nonsupervisory employees.

57 NLRB v. Jamaica Towing Co., 632 F.2d 208, 212 (2d Cir. 1980).
58 See Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251
(9th Cir. 1978); Townhouse TV & Appliances, 213 NLRB 716 (1974);
NLRB v. Balsam Village Management Co., 792 F.2d 29, (2d Cir. 1986),
cert. denied 479 U.S. 931 (1986); and Bandag, Inc. v. NLRB, 583 F.2d
765 (5th Cir. 1978).
U.S.A. POLYMER CORP. 1269
General Counsel’s Exhibit 2, 1-58 represents the union au-
thorizations cards relied on to demonstrate majority status at all
relevant times in this case.59 All of these cards were signed
before the layoff in January 1995. During the course of the
proceeding, the following cards were offered and received into
evidence: 1, 3, 4, 6, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21,
23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38, 41, 42,
43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58 (48
cards out of a unit of 64 employees). The cards were authenti-
cated in four ways; (1) the 16 people who attended the January
18 union meeting and the testimony of Andy Garza; (2) the
testimony of persons who witnessed the signing of the card,
such as Lucio Aviles and Luis Castro; (3) the testimony of the
card signer; and (4) comparison of samples of card signers
handwriting and the signatures appearing on the cards.
The cards are printed in both English and Spanish and
clearly state that their purpose is to secure union representation,
and additionally, union membership. There is no evidence that
the cards were represented to potential signers as being solely
for the purpose of securing an election. To the contrary, at a
meeting held by the Union on January 18 where a large number
of these cards were signed, Allen Dawson, the regional director
of organizing for the ILGWU, spoke to the employees. Daw-
son told the employees that signing the card was for the pur-
pose of becoming a union member and to allow the person to
be represented by the Union. He instructed them that the person
acting as a witness should make sure the signer read the card
and understood it. Dawson was asked by an employee if he
would have to pay union dues after signing the card. Dawson
answered that dues did not have to be paid until the employees
had a contract with Respondent. Dawson said the card could be
used to obtain recognition from the Company, and that if rec-
ognition was not given, then there would be an election. No
promises were made by the union representatives at this meet-
ing to induce employees to sign cards. I can find no credible
evidence that any promises were made to secure the signing of
any card admitted into evidence.
All of the card signers who were also currently working for
Respondent at the time of their testimony were asked: “Did you
know or are you aware of any news reports that officers of the
International Ladies Garment Workers Union were accused by
the US Government of taking bribes?” None of the witnesses
were so aware. The following employees testified that they
signed their authorization cards after having read and under-
stood them and additionally testified that they were not prom-
ised anything as an inducement to sign the cards: Marco Anto-
nio Posadas (46), .Alejandro Blasio (11), Julio Rodriquez (51),
William Rosales (54), Nery Mendoza (35), Camilio Ramirez
(47), German Eli Joya (29), Lucio Aviles (7), Javier Garcia
(23), Luis Castro (1 6), Mario Perez (43), Jorge Aguilar.(3),
Jose Melendez (33), Jose Giron (24), Juan Torres (57), Felix
Jovel Palacios (41), Bethuel Montes de Oca Mendoza (38), Jose
Americo Rosales (53), Rudolfo Bocanegra (12), Luis Napoleon
Martines (32), Hugo Benavides (10), Godfredo Reyna (50),
Clemente Garcia (21), David Arroldo Contreras (18), Erick
Ricardo Hernandez Estrada (27), Subrino Guerra (26), Jesus

59 With regard to the question of an appropriate unit, John Bazbaz
testified that employees who occupied positions such as operators,
helpers, forklift drivers, mechanics, and electricians should vote in an
election. Generically, that type of person is a production and mainte-
nance person. Excluded from the unit are all other employees and su-
pervisors as defined in the Act.
Martines (31), Leonel Campoverde (14), Nicolas Chajon (17),
Jose Ascensio (6), Manuel Perez (42), Efrain Villatoro (58),
Guadalupe Leal (30), Oscar Godinez (?25), Pedro Antonio
Molgar (34), Eliseo Moises Serrano (56),60 Nelson Rodriquez
(52).61 The card signed by Antonio A. Calderon (13), was
withdrawn as the individual signed the English language side of
the card and cannot read English.
I also compared the signatures on a group of cards with other
records showing individual’s signatures. By this method, I
found the following cards to be authenticated: 4, 19, 28, 48,
and 49. The remaining five cards admitted into evidence were
authenticated by the person witnessing the signing.
The Union made a written request for recognition in May
1995 and it was refused by Respondent. Despite the showing of
overwhelming support at the hearing in this proceeding, Re-
spondent continues to refuse to recognize the Union. Further,
It’s efforts to stifle support may be having the desired effect on
those employees who remain employed by it. The Union repre-
sentatives testified credibly that attempts to contact employees
who had signed authorization cards and who were still em-
ployed met with resistance. These employees would not talk
with them on the phone and would not let them in their places
of residence. Medrano characterized the campaign as dead fol-
lowing the layoffs. The filing of charges with the Board revived
the campaign to an extent, but not nearly to the level before the
layoffs. The Union has been unable to secure the signing of
cards from present employees of Respondent since the layoff.
Respondent asserts in its defense against the issuance of a
bargaining order that such an order is not permissible because
the ILGWU merged with the Amalgamated Clothing and Tex-
tile Workers Union on July 1, 1995, after a vote of the member-
ship taken in June 1995. These dates are of course after the
commission of most of the unfair labor practices found here
and after the demand for recognition made by the Union. With
regard to this defense, the key issue for determination is
whether UNITE is a new representative of the employees of
Respondent, or only a continuation of the incumbent ILGWU.
Case law demonstrates that if a postmerger entity is found to be
a continuation of the prior representative, then continuity of
representation exists and due process will permit the new entity
to represent bargaining unit employees. In Western Commercial
Transport, 288 NLRB 214 (1988), the Board enunciated a four-
part test for determining whether continuity of representation
exists.

60 On cross-examination, Serrano testified that he was promised cer-
tain benefits as a member of the Union. Specifically, he testified that
“The benefits that I have been told about are those for which we are
fighting. The benefits we don’t enjoy as workers are those for which
we want to be with the union.” “[And I] would repeat again, if they tell
you or they talk to you about joining an organization where it is be-
cause we are going to enjoy some benefits, on the contrary I would not
sign.” Serrano later explained that he was speaking about what union
organizer Medrano had told him. He said Medrano talked about the
Union wanting to represent him, that the union would try to get a con-
tract, that the Union would try in negotiations to get benefits. Medrano
said that the benefits the Union would try to get were vacation, holi-
days, and health insurance.
61 Rodriquez on cross-examination testified that Lucio Aviles prom-
ised him something with respect to wages and paid vacation if he sup-
ported the Union. Clarifying his answer, he testified that he was prom-
ised the Union would bargain for increased wages and benefits. He
further testified that Aviles told him the Union would try to get these
thing. No one guaranteed him that these things could be achieved.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
(a) Continued leadership responsibilities by the exist-
ing union officials;
(b) Perpetuation of membership rights and duties, such
as membership eligibility and dues structure;
(c) Continuation of the manner in which contract nego-
tiations, administration, and grievance processing are ef-
fectuated, and
(d) Preservation of the certified union’s physical facili-
ties, books, and assets.

Catherine Waelder is the associate general counsel for the
ILGWU. She sponsored Respondent’s Exhibit 24, with at-
tachments A and B. The exhibit is the Merger Agreement be-
tween the ILGWU and the Amalgamated Clothing and Textile
Workers Union. Exhibit A, is the constitution for UNITE; and
Exhibit B, is described as, “Certificate of Consolidation of In-
ternational Ladies’ Garment Workers’ Union and Amalgamated
Clothing and Textile Workers Union.” The Merger Agreement
was signed by the presidents, general secretary, treasurer, and
executive vice presidents for each union, the International La-
dies’ Garment Workers’Union, and also, the Amalgamated
Clothing and Textile Workers Union, on February 16, 1995.
Waelder described the merger as a consolidation and a con-
tinuation of two proud unions going forward as a new entity.
There will be some ways in which the International Ladies’
Garment Workers’ Union does continue. It is not being dis-
solved or terminated, and that is reflected in the merger agree-
ment. When the merger agreement is approved by the member-
ship of the involved unions, effective July 1, then all members
of the constituent unions will become members of UNITE.
After the merger, inter alia, the ACTWU secretary and treasurer
will become the secretary/treasurer of UNITE. and thus, the
secretary/treasurer of the ILGWU will no longer serve in that
capacity. There will be a consolidation of the executive vice
presidents of each consolidated union. The executive vice
presidents for the newly-formed union will be double the size
of the presently existing slate of vice presidents for either un-
ion. Over time, they will endeavor to reduce the number of vice
presidents. The existing constitutions for the ILGWU and
ACTWU will only remain in force and effect to the extent that
they are not inconsistent with the new constitution of UNITE.
The members of the two consolidating unions becoming
members of UNITE. Members of the constituent union shall be
deemed members of UNITE without the payment of initiation
fees or membership fees. However, new members that are
gained after the date of the merger will be charged an initiation
fee, depending upon the situation. In the context of an organiz-
ing campaign, frequently, there are no initiation dues.62 It is up
to the regions as to whether an initiation fee will be charged
once UNITE is formed. The International president, with the
approval of the GEB, has the power to set the amount or waive
the payment of initiation fees by locals formed after June 30, or
where special circumstances so require.
Respondent’s Exhibit 24 will be deemed an amendment to
and a substitution for the separate constitutions of the ILGWU
and ACTWU. The membership of the constituent unions have
been advised of the proposed merger in several ways, including
articles in the last several issues of the union’s newspaper, Jus-
tice, which goes to every member, as well as to delegates, talk-
ing about the upcoming merger vote and providing information

62 Union Representative Betty Boyer testified the involved employ-
ees of Respondent would not be charged an initiation fee.
about the merger, answering questions and providing answers.
There was also a package of information sent to all the dele-
gates to the convention, with a cover letter, including the dele-
gates’ merger guide, the merger agreement, and the UNITE
constitution. ILGWU President Mazur and, perhaps, other sen-
ior officials of the union have been traveling around the country
and have been meeting with staff and members and answering
questions about the merger.
Subsequent to the merger, there will be no change in the per-
sonnel who would represent a unit of ILGWU members in
Houston, Texas, whether the representation is by a local or a
district council. District councils, locals, joint boards, their
staffs, their offices continue unchanged postmerger. The staffs
of the Internationals will be merged. Affiliates are separate,
autonomous labor organizations affiliated with the ILGWU or
the Amalgamated. Assuming the merger goes through, post-
merger, they become affiliates of UNITE. Affiliates are inde-
pendent entities, but governed by the constitution of the organi-
zation with which they are affiliated. The operations of an af-
filiate are not changed by the merger.
A district council is an affiliated union in the ILGWU. It has
local unions, district councils, joint councils and joint boards.
All of those are affiliated labor organizations. There will be no
change in the district council, post merger. Those officers who
were elected by the members or the constituent organizations of
an affiliated union remain the same. There will be some
changes for some locals in the dues structure, not for all of
them. The minimum dues are going up, by the UNITE consti-
tution, to $17 a month, which is the current monthly dues for
the involved district council, so for them, there would be no
increase.
The merger agreement provides that UNITE shall encourage
internal mergers and consolidations of affiliate regions, de-
partments and the Canadian conferences as quickly as possible.
This however is a voluntary decision of the affected affiliates.
Internal mergers and consolidations shall require the approval,
not just of the GEB, but also of the executive boards or board
of directors of the affected affiliates. This provision survives
the expiration of the merger agreement. This means affected
affiliates never have to merge with another affiliate unless they
choose to do so.
There will be no substantive changes in procedures man-
dated by the merger that the district council uses in dealing with
units of members under its jurisdiction. Prior to the merger the
ILGWU had provisions governing the way district councils are
run, and also had provisions governing the way joint boards
were run. It had a provision that said that, in the absence of a
constitution, and most district councils do not have their own
constitution, district councils would run in the same fashion as
a joint board. The UNITE constitution followed the Amalga-
mated provisions on how the joint boards would be governed
because they have far more joint boards than the ILGWU does.
However that is not true for ILGWU’s district councils because
it has more district councils than Amalgamated does. So what
was in the joint board section of the ILGWU’s constitution was
put it into the district council section of the UNITE constitu-
tion, which means that, where it used to be a cross-reference,
now it is right there, spelled out in text for how a district coun-
cil runs. It is substantively the same.
The involved district council is serviced by the central states
region of the ILGWU. The central states region is an adminis-
trative arm of the union, not an affiliated labor organization. It
U.S.A. POLYMER CORP. 1271
is governed by the language encouraging mergers of regions.
But nothing happens without consent. So post merger, without
speculation, no immediate change will occur, and, perhaps, no
change indefinitely.
All applicants for membership shall complete and sign an
application form of the local or of UNITE. If employees of
Respondent become members of the Union, they will be mem-
bers of UNITE and a member of the district council that exists
today as a part of the ILGWU. The Union resulting from the
merger will be more than double the size of the present ILGWU
membership. The present approximate membership in the
ILGWU is approximately 160,000 members. The resulting
membership in UNITE following the merger will be approxi-
mately 350,000 active members.
Assuming that the ILGWU entity that has been involved
with U.S.A. Polymer employees has bargaining rights, post-
merger, they continue as they did before with the same staff,
the same elected leaders, the same business agents and person-
nel. There are two provisions in the merger agreement that
speak to local affiliates. One of them is section 5, entitled, “Lo-
cal Unions and Other Chartered Bodies,” on page 14. Section
A(2) of section 5, the specific statement that, “Current officers
of the affiliates of either constituent union shall, upon the effec-
tive date of the merger, continue to serve in their elected ca-
pacities.” Beginning at page 24, and running on for a few
pages, there is a section 10 entitled, “Rights and Obligations of
UNITE and the Constituent Unions.” Paragraph C on this point,
in paragraph C(1), the document explicitly provides that, “The
merger of the ILGWU and the ACTWU shall not affect, inter-
rupt or change in any way the continuing status or the rights
and duties with respect to third persons of either the ILGWU or
the ACTWU or their affiliates,” which includes the Texas/-
Oklahoma/Arkansas district council, which is an affiliate. This
includes, but is not limited to recognition agreements and col-
lective bargaining agreements or the continuity or renewal
thereof. The agreement specifically provides that the merger
does not interrupt the status or the rights and duties of the par-
ties with respect to negotiation of agreements.
Waelder testified that post-merger, there is no need to secure
new authorization cards. Members of the ILGWU and members
of the Amalgamated will become, automatically, members of
UNITE, without filling out any new documents to make that
happen.
I find that the testimony and exhibits presented through
Waelder clearly established the criteria set out by the Board and
demonstrates continuity of representation. The fact that the
employees of Respondent did not vote in the delegate conven-
tion that resulted in the merger of the ILGWU and ACTWU is
irrelevant. In NLRB v. Financial Institution Employees, 106
S.Ct. 1007 (1986), the Supreme Court held that the Act does
not require that nonmembers be permitted to vote in union af-
filiation elections. In the case of American National Insurance
Co., 124 LRRM 1116, (1986), that Court found that a union’s
exclusion of non-member unit employees from a merger vote
does not preclude finding a violation of the Act based on re-
spondent employer’s refusal to recognize and bargain with a
newly merged entity., precisely because continuity of identity
between the premerger and the postmerger bargaining represen-
tatives was established. Thus, I find that UNITE, through its
continuity of identity with the ILGWU, has the authority to
bargain on behalf of Respondent’s unit employees.
In conclusion, I find, for the reasons stated above, that the
merger does not offer any impediment to the issuance of a
proper bargaining order and I will recommend that a bargaining
order issue in this proceeding.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The employees of Respondent falling into the unit de-
scribed below for a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act:

All production and maintenance employees, including opera-
tors, helpers, forklift operators, packers, mechanics and elec-
tricians, and excluding all other employees, supervisors, and
guards as defined in the Act.

4. Respondent has violated Section 8(a)(1) of the Act by the
actions of its supervisors and agents during the months of Sep-
tember, October, November, and December 1994 and January
1995, at its facility, by:
(a) Coercively interrogating employees about their union
sympathies and activities, and the union sympathies and activi-
ties of fellow employees.
(b) Threatening employees with more onerous working con-
ditions, physical harm, layoff, discharge, and other, unspecified
reprisals, for engaging in union or other protected concerted
activities.
(c) Creating the impression of surveillance and subjecting
employees to surveillance because of their union or other pro-
tected converted activities.
(d) Promising employees a bonus or other reward for not
supporting the Union or engaging in other union or protected
concerted activities.
5. Respondent has violated Section 8(a)(3) and (1) of the Act
by:
(a) Commencing on or about January 27 and continuing un-
til on or about January 30, 1995, permanently laying off the
employees named below because they engaged in union or
other protected concerted activities and to discourage them and
other employees from supporting the Union or engaging in
other concerted protected activity:

Miguel Alanis Mario Aparicio
Lucio Aviles Hugo Benavides
Alejandro Blasio Rodolfo Bocanegro
Edgar Gerardo Carrera Luis Castro
Nicholas Chajon Elias Escobar
Julio Hector Garcia Jose Giron
Oscar Godines German Joya
Luis Martines Pedro Molgar
Nery Mendoza Miguel Molina
Bethuel Montes de Oca Mauro Moran
Walter Jose Orellana Felix Jovel Palacios
Manuel Perez Miquel Angel Molina
Mario Perez Nelson Rodriquez
Jose Rosales Lionel Campoverde
Noe Ramirez

(b) Selecting the above-named employees for permanent
layoff because they supported the Union or engaged in other
protected concerted activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
(c) Eliminating the job classification of electrician to avoid
rehiring its discharged electrician, Luis Aviles, because he sup-
ported the Union and engaged in union or other protected con-
certed activities.
6. Respondent has violated Section 8(a)(1) of the Act by is-
suing employees being laid off in January 1995, a letter requir-
ing them to call in on a daily basis or risk losing their right to
recall or termination, because they supported the Union or en-
gaged in other protected concerted activities.
7. Respondent has violated Section 8(a)(4) and (1) of the Act
by:
(a) John Bazbaz coercively interrogating employees about
their union support and demeaning the Union in April 1995.
(b) Verbally warning employees not to talk with other em-
ployees or threatening employees with unspecified reprisals
because they gave testimony in a Board hearing contrary to the
interests of Respondent.
(c) Interrogating employees about their testimony given in a
Board proceeding and advising employees to ignore Board
issued subpoenas.
8. Respondent has violated Section 8(a)(4), (3), and (1) of
the Act by:
(a) Reducing the working hours of employees and withhold-
ing overtime work to employees because they gave testimony
in a Board hearing and because they support the Union or oth-
erwise engaged in protected concerted activity.
(b) Imposing more onerous working conditions on employ-
ees in an attempt to induce them to quit their employment be-
cause they gave testimony in a Board proceeding, supported the
Union and engaged in other protected concerted activity.
(c) Issuing written warnings to employees and discharged
employees because they gave testimony in a Board proceeding
and supported the Union or engaged in other protected con-
certed activity.
9. Respondent has violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union as the
collective-bargaining representative of its employees in the
above defined unit.
10. The unfair labor practices committed by Respondent are
unfair labor practices affecting commerce within the meaning
of 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.63
The Respondent having discriminatorily discharged the em-
ployees who are named in paragraph 5(a) above, it must offer
them reinstatement and make them whole for any loss of earn-

63 I have found that Respondent unlawfully imposed a call-in re-
quirement on laid-off employees. Respondent voluntarily rescinded this
requirement prior to hearing and thus no affirmative action is necessary
to remedy this violation.
ings 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 Hori-
zons for the Retarded, 283 NLRB 1173 (1987).64 Similarly,
Respondent unlawfully retaliated against employees William
Rosales, Camilio Ramirez, Jose Melendez, and Jesus Martines
by denying them scheduled working hours and/or overtime
hours. It must make these employees whole for lost earnings as
a result of its unlawful actions in the manner set out immedi-
ately above.
Reinstate the position of electrician at its facility and offer
Luis Aviles reinstatement to this position in addition to the
actions set out in the paragraph above.
Rescind the written warnings given to William Rosales and
Marco Posadas, remove any record of such warnings from their
personnel files, and inform them in writing that this has been
done and that such warnings will not be used against them in
any way.
Respondent has unlawfully withheld recognition from the
Union and has refused to bargain with the Union, therefore,
Respondent should be Ordered to, upon request of the Union,
extend recognition to it as the collective-bargaining representa-
tive of the Respondent’s employees in the unit found appropri-
ate, and to bargain in good faith with the Union over the hours,
wages, and other working conditions of unit employees and if
agreement is reached, embody such agreement in a written
collective-bargaining agreement.
Because of the serious nature of the violations committed by
Respondent and because of the Respondent’s egregious and
widespread misconduct, demonstrating a general disregard for
the employees’ fundamental rights, I find it necessary to issue a
broad order requiring the Respondent to cease and desist from
infringing in any other manner on rights guaranteed employees
by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357
(1979).
[Recommended Order omitted from publication.]

64 Respondent discriminatorily discharged its employee Marco Posa-
das, but immediately remedied this action from the standpoint of back-
pay liability by reinstating him before any loss of earning occurred. As
I found in a preceding section of this decision, a layoff among unit
employees would have occurred for legitimate reasons at some point
after January and before June 1995, affecting an uncertain number of
employees. The evidence adduced in this record is insufficient to de-
termine the legitimate date of such a layoff and the number and identity
of those employees who would be affected by such a layoff. It will be
left to the compliance stage of this proceeding to make these determina-
tions.