Rugcrofters of Puerto Rico, Inc.

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis from the date of the discriminatory refusal to employ him to the date of completion of the project or the date on which the Union serves upon the Company the written notice, as set forth in section 2 (a) of the Board's Order, whichever shall first occur. The violations of the Act which the Union has committed are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is to be anticipated from the Union's conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coexten- sive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices , and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I shall recommend that the Union be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Brotherhood of Carpenters and Joiners of America, Local #517, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 3. By causing Gil Wyner Construction Company to discriminate in regard to hire, tenure, terms, and conditions of employment in violation of Section 8 (a) (3) of the Act, the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 ( 6) and (7) of the Act. [Recommendations omitted from publication.] Rugcrofters of Puerto Rico, Inc. and Unidad General De Traba- jadores De Puerto Rico. Case No. 24.-CA-386. May 12,1955 DECISION AND ORDER On July 28,1954, Trial Examiner Eugene E. Dixon issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and supporting brief. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with the Decision and Order herein. 1. We agree with the Trial Examiner that the Respondent inde- pendently violated Section 8 (a) (1) of the Act in the manner set forth in the Intermediate Report. 112 NLRB No. 97. RUGCROFTERS OF PUERTO RICO, INC. 725 2. The Trial Examiner also found that the general reduction in force, commencing in January 1953 and continuing to May 1953, was motivated by antiunion rather than economic considerations, and that the 8 complainants named in the complaint, as a result of being in- cluded in such layoff, were thus discriminatorily discharged.' We do not agree. The evidence and necessary background information may be sum- marized as follows : In October 1952, the Union began a new organiza- tional drive culminating in the filing of a representation petition on November 3, 1952.1 The Employer executed a consent-election agree- ment on November 12; but the Union's petition was withdrawn on November 17 for lack of showing. The independent violations of 8 (a) (1) found occurred during the pendency of the latter petition or shortly thereafter. On January 12, 1953, nearly 2 months after the withdrawal of the representation petition, the Respondent an- nounced that there would be a reduction in force "due to economic reasons," and that the layoffs would follow a nondiscriminatory method of selection based on employee records. Actual layoffs com- menced on January 27, 1953, and continued until early in May when the January complement of approximately 300 employees had been reduced to 165. In the meantime, and while the layoff was in progress, the Union filed a second representation petition on February 9, 1953. At the representation hearing on March 3, 1953 , the Respondent explained that its announced reduction in force was part of its imminent reor- ganizational plans . These plans had been under consideration for the past 6 months 3 and contemplated, inter alia, doubling the Em- ployer's manufacturing space by the construction of a new building, greatly increasing its work force, adopting mechanical needles in the place of hand needles, reducing substantially the basic types of rugs made, and overhauling administrative procedures. To enable the re- organization to proceed more effectively and to cut down the overhead, the reorganizational plans further called for a temporary reduction in the complement of employees sufficient to meet its immediate contract needs.' On the basis of the plans outlined above, the Board dismissed r Neithei the charges as amended nor the complaint allege, as found by the Trial Exam- iner, that the general layoff, affecting about 135 employees , was discriminatory but rather they merely alleged that 8 individual employees were discrmnnatoifly land off However, whether or not the eutne layoff was disciimmatory , as, in fact, litigated by way of the Respondent's defense that the eight complainants were merely caught in the general economic lavo!l 2In July 1951, the Union had filed a i epresentation petition in which the CIO intervened. A consent election followed with neither union dinning 3 As early as June 1 951, plans for a new building which would double pt oductron was, approved by the Goveinment's planning board i According to the Respondent , besides the cutting of overhead and practical considera- tions in effecting the ieorganization , employees were laid off because its sales force stopped selling the types of lugs that were eliminated in the reorganization Also most of its employees were teinales who would be unable to handle the heavy mechanical needle. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union's February 9, 1953, petition, as being premature because of a changing unit.' At the hearing herein, 11 months after the hearing in the representa- tion case, the record shows that the building which was to be finished in the spring of 1953, was not completed until December 1953. Instead of the predicted work force of approximately 1,250, there were only 418 employees. The mechanical needle was still being perfected. Production methods and job classifications had not substantially changed. However, as planned, the types of rugs made were substan- tially reduced, and a different method of computing the payroll was put into effect. Further, the number of frames on which rugs are made increased from 12 to 21, with 8 more in the process of being built, forecasting additional expansion of personnel. The Trial Examiner concluded mainly from (1) the timing of the layoff announcement in relationship to the Union's organizational campaign, and from (2) a comparison of the Respondent's projected plans in the representation case which was dismissed by the Board with the actual results revealed at the hearing herein 11 months later, that the Respondent's defense was wholly specious and showed that its reduction in force was not motivated by good-faith economic con- siderations. We cannot agree. With respect to timing, the layoff announcement was made in Janu- ary 1953, about a month before the Union's February 1953 petition, at a time when there was little evidence of any union activities among the employees. Further, the 8 (a) (1) violations found herein generally related to the union activities commencing in October 1952, and result- ing in the abortive representation petition which was withdrawn in November 1952, about 2 months before the layoff announcement of Jan- uary 1953. As it appears that the layoff announcement did not coin- cide with or closely follow the commencement of union activities, the filing of petitions or any other crucial phase of the Union's organiza- tional campaign, we are unable to infer any causal connection between the layoff announcement and union activities. With respect to the Respondent's reorganizational plans, we note that, by way of explanation, the delay in the completion of the build- ing was caused by the failure of the contractor to fulfill his contract, and that the delay in perfecting the mechanical needles was not caused by any fault of the Respondent which extensively tested them without success. Thus, the expected expansion of the work force could not be realized according to the Respondent's plans. In any event, the fact that subsequent events did not turn out entirely as predicted, while it may show faulty business planning, does not, in itself, establish dis- criminatory motivation. Nor may or should the Board substitute its own judgment for that of the Respondent respecting its reorganiza- s Case No. 24-RC-579 (not reported in printed volumes of Board Decisions and Orders). RUGCROFTERS OF PUERTO RICO, INC. 727 tional plans, including the necessity for a preliminary reduction in force as part of such plans. On the basis of the foregoing and upon the entire record, we are un- able to conclude that there is a preponderance of the evidence to sup- port a finding that the Respondent's reduction in force was discrim- inatory. Further, the record does not reveal that the Respondent failed to follow substantially its announced procedure to apply the reduction in force to those employees with the worst records' or that it had dis- criminated in the layoff as between union and nonunion adherents. Absent such showing, we are unable to conclude that any of the com- plainants were discriminatorily selected for layoff in such reduction in force. The General Counsel's Alternative Contention In view of his conclusion that the layoff was discriminatorily moti- vated, the Trial Examiner found it unnecessary to consider the Gen- eral Counsel's alternative theory that three of the complainants (Baez, Ortiz, and Guiterrez) were discriminatorily denied reemployment, a theory that he "believed the evidence would support." However, as we have found that none of the complainants was discriminatorily discharged, we have carefully considered this alternative theory, and contrary to the Trial Examiner, we are unable to conclude from the evidence before us that the Respondent discriminatorily refused to re- employ the three above-named complainants. The record shows that on March 9, 1953, while the layoff was in progress, the Respondent, as part of a strike-settlement agreement, agreed to give preference in hiring to the laid-off employees. The three complainants were among those employees subsequently caught in the layoff. After the layoff ended and rehiring began, the three complainants individually applied for work. Upon application, each was informed that no jobs were available and the record does not establish that jobs were, in fact, available for them. They never re- applied for work' and were never rehired. Eventually, the Respond- ent rehired most of the employees caught in the layoff. The record does not show that nonunion adherents were preferred over union ad- herents among those reemployed, nor is there substantial proof that the Respondent failed to comply with its agreement to give preference in hiring to the laid-off employees.' e With the exception of Complainant Baez, whose job was eliminated in the reorganization. 7 Although Guiterrez claimed to have made a second application through her sister-in-law, this has not been e.,lablished in the record. 8 Even assuming that the Respondent did not fully comply with the settlement agreement, we do not believe the evidence in the record is sufficient to support a finding of a discrim- inatory refusal to reemploy. That a violation of a strike agreement is not per se discrim- inatory but merely a factor to be considered in deciding whether discrimination , in fact, exists, see Bartlett-Collins Company, 110 NLRB 395. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances , we find no merit to the General Counsel's alternative contention that the Respondent discriminatorily refused to reemploy Baez, Ortiz, and Guiterrez. Accordingly, we shall dismiss that portion of the complaint alleging discrimination by the Respondent against any of the complainants in violation of Section 8 (a) (3) and (1) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Rugcrofters of Puerto Rico, Inc., Sabano Abajo, Carolina, Puerto Rico, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their membership in, or activities on behalf of, the Unidad General De Trabajadores De Puerto Rico, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (b) Promising its employees vacations or other benefits for abstain- ing from union activity. (c) Threatening loss of employment, the closing of the plant, or other reprisals in retaliation for a successful union organizing cam- paign among its employees or for their continued union activity. (d) Circulating or instigating the circulation of antiunion peti- tions among its employees. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant at Sabano Abajo, Carolina, Puerto Rico, copies of the notice attached hereto marked "Appendix.," I Copies of said notice, to be furnished by the Regional Director for the Twenty-fourth Region (Santurce, Puerto Rico), shall, after being duly signed by the 9 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." RUGCROFTERS OF PUERTO RICO, INC. 729 Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-fourth Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent, in violation of Sec- tion 8 (a) (3) and (1) of the Act, discriminated against the eight indi- viduals named in such complaint. CHAIRMAN FARRIER and AIEMBER LEEDO__NI took no part in the consid- eration of the above Decision and Order. APPENDIX NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their mem- bership in, or activities on behalf of, the Unidad General De Trabajadores De Puerto Rico, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT promise our employees vacations or other benefits for abstaining from union activity. WE WILL NOT threaten our employees with loss of employment, the closing of our plant or with other reprisals in retaliation for a successful union organizing campaign among our employees or for their union activity. AVE WILL NOT circulate or instigate the circulation of antiunion petitions among our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to form, join, or assist any labor organi- zation and to engage in any self-organization and other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment in conformity with Section 8 (a) (3) of the Act. RUGCROFTERS OF PUERTO RICO, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard in Santurce, Puerto Rico, January 26 to February 2, 1954, pursuant to due notice. The complaint, issued November 1953 by the General Counsel of the National Labor Relations Board 1 and based on charges duly filed and served, alleged in substance that Re- spondent had engaged in unfair labor practices proscribed by Section 8 (a) (1) of the Act by: (a) Interrogating employees regarding their union activity; (b) threat- ening them with discharge and with closing of the plant because of their union activity; (c) promising and granting them inducements to abandon union activity and discourage them therefrom; (d) assisting and encouraging the formation of an antiunion group of employees and permitting it to engage in antiunion propaganda and activity during working hours; (e) requiring laid-off employees to submit appli- cations for reinstatement to Respondent's attorney for approval; and (f) requiring repudiation of unfair labor practice charges filed by the Union against Respondent as a condition to employment or reinstatement. The complaint also alleged that the Respondent violated Section 8 (a) (3) and (1) of the Act by laying off or discharging various employees because of their union activity 2 or for the purpose of interfering with their union activity. No answer was filed by Respondent but an oral answer constituting a general denial was made at the beginning of the hearing over the General Counsel's objec- tion upon which ruling was reserved. Section 102.20 of the Board's current Rules and Regulations 3 provides that "the respondent shall within 10 days from the service of the complaint, file an answer thereto." [Emphasis supplied.] Section 10 (b) of the Act provides that a respondent "shall have the right to file an answer.. . [Emphasis supplied.] Since it should appear that the Act does not require the filing of an answer the General Counsel's objection to the Respondent's oral answer at the hearing is overruled. A listing of prior representation and complaint cases involving the Respondent was stipulated by the parties, the substance of which will be set forth below. Also 1 The General Counsel and his representative at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board Rugcrofters of Puerto Rico, Inc , is referred to as the Respondent and sometimes as the Company and Unidad General Dc Tiabajadores De Puerto Rico is referred to as the Union. All dates are in 1953 unless otherwise indicated a Juan Miguel Ortiz, Pablo Carmona, Fernando Diaz, Jose Luis Monje, Petra Guiterrez on March 13, Antonio Acevedo and Carmelo Ramirez on April 8, and Pedro Lozano Baez on April 10 3 Series 6, as amended , effective June 3, 1952. RUGCROFTERS OF PUERTO RICO, INC. 731 stipulated as part of the present case was the record in Case No. 24-RC-529, a representation hearing involving this Respondent and Union. The parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, and to argue orally. Although the right to file briefs and proposed findings of fact and conclusions of law was extended to them, the parties did not avail themselves of that opportunity. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent is a Puerto Rico corporation engaged in the manufacture of woolen rugs and operating plants in Arrayo, Caguas, and Sabano Abajo in Puerto Rico. During the 12 months preceding the hearing Respondent shipped merchandise and materials from the United States to Puerto Rico valued at approximately $941,000. During the same period Respondent purchased materials in Puerto Rico valued at $35,000. For the same period Respondent shipped merchandise valued at $1,200,000 to points outside of Puerto Rico. Respondent admits and I find that it is engaged in commerce within the meaning of the Act 4 It. THE LABOR ORGANIZATION INVOLVED Unidad General De Trabajadores De Puerto Rico is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and issues Respondent's experience with the Board, as reflected by the stipulated evidence, starts in June 1951 when its petition for determination of representatives involving the subject Union and another union, Confederacion General De Trabajadores De Puerto Rico-CIO, was withdrawn because of the filing of unfair labor practice charges against the Company. These charges were disposed of July 12, 1951, by informal settlement providing for an 8 (a) (1), (2), and (3) remedy. A few weeks later another representation petition was filed, this time by the Union. The CGT-CIO intervened. An election was held in September in which neither union prevailed. This result was certified by the Board December 26, 1951. In the meantime, on December 4, the Union had filed another unfair labor practice charge against the Company which was withdrawn March 6, 1952, for lack of evidence. In December 1953, on the basis of a hearing which developed from still another unfair labor practice charge against the Company by an individual, the Boaid affirmed its Trial Examiner in his 8 (a) (1) and (3) findings against the Company and ordered the charging party reinstated with back pay. Rugcrofters of Puerto Rico, Inc., 107 NLRB 256. Enforcement was subsequently granted by the Court of Appeals for the First Circuit, June 7, 1954, 213 F. 2d 537. On February 9, 1953, a second representation petition was filed by the Union upon which a hearing was held March 3. This petition was dismissed by the Board on April 3, 1953, as being premature by reason of an expanding and changing unit. The foregoing is significant to the case at bar for two reasons. One, it shows that Respondent is no novice concerning union campaigns among its employees and has not been averse to engaging in illegal conduct with respect thereto; and two, the evi- dence in the March 3, 1953, representation hearing upon which the Board relied in its dismissal of that petition is urged as a defense to the alleged illegal terminations. In substance, that defense is that the layoffs in question were the result of a pre- vious, carefully planned reorganization and expansion program which required a reduction in the work force from approximately 300 to 100 over a 5 or 6-month period from January 12, 1953, the date upon which the reduction in force was announced to the employees by posted bulletin which also set forth the standards by which the reduction would individually be applied. The General Counsel contends that the reduction-in-force program was effectu- ated by Respondent for the purpose of interfering with and discouraging its em- ployees' union activities In the alternative the General Counsel argues that if it should be determined that the layoffs were legal, the overwhelming preponderance of the evidence establishes that the failure to rehire three of the employees (Pedro 4Rugerofteis of Puerto Rico, Inc, 107 NLRB 256. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lozano Baez, Juan Miguel Ortiz, and Petra Guiterrez) 5 was clearly discriminatory within the meaning of Section 8 (a) (3) of the Act. I agree with the General Counsel's theory that Respondent's reduction-in-force program was not motivated by good-faith economic considerations. On the con- trary, I am convinced and find that it was designed to interfere with and restrain the employees in the exercise of their right to self-organization and to discourage their membership in or activity on behalf of the Union in violation of Section 8 (a) ( 1) as well as 8 (a) (3) of the Act. In order to see how this conviction developed, Respondent's major premise must be examined in the light of an analysis of the testimony of General Production Manager Patrick Behan 6 at the representation hearing and its comparison with his testimony before me. I am convinced that in the main Behan's testimony is not credible. Having observed him as a witness it was my reaction that his word was not to be accepted at face value. Wholly apart from this, moreover, in my view his lack of reliability is patently reflected in the record itself. B. The evidence According to the undenied and credited testimony of Frank Ruiz, the Union's general secretary, after losing the Board-conducted election at Respondent's plant in September 1951, his next contact with the employees was when he was called to the plant in October 1952 regarding the suspension of two employees. Apparently as an outgrowth of this contact another organization drive was born and an initial meet- ing was held the latter part of October attended by 40 to 45 employees. An or- ganizing committee was elected at that time and other meetings followed. Among those elected as officers of the organizing committee was Pedro Lozano Baez as vice president. In December 1952 in a speech to the employees by Respondent's president, Rich- ard C. Klein, the Union was discussed. Whether or not the subject was introduced by the employees as Behan claimed in his testimony is immaterial. Behan admitted that Klein voiced Respondent's opposition to the Union and indicated to the em- ployees his desire of matching any union-achieved benefits of other shops. A short time later the reduction-in-force program for "economic" reasons was announced to the employees. The correlation in the timing of the new union campaign, Respondent's knowl- edge thereof, and stated opposition thereto, the unheralded,, unexplained reduction-in- force program, when viewed in the light of Respondent's previous record and acts of interference, restraint, and coercion against its employees as found below, com- bine to establish a prima facie case that, as alleged in the complaint, Respondent interfered with the rights guaranteed its employees in the Act when it terminated the employees in question thus discouraging membership in the Union. Before going into the merits of Respondent's defense perhaps a brief discription of Respondent's operation would be helpful.? Jute material is stretched across frames which are 90 feet square. On this ma- terial, which constitutes the back of the rug, hookers (or punchers as they are also called) produce rugs any size up to a conceivable 90 x 90 dimension by means of hand punching through the jute wool yarn with shuttles operating needles that leave a loop of the yarn called the pile on the opposite or face side of the rug. The length of the pile is determined by the size of the needle used. When these loops are severed at their ends by cutters the rug is described as a cut pile rug. The punchers work in 41/2 to 5-foot areas on the frame laid out by timekeepers or others. The frame is adjusted or dropped by the utility crew as required for the convenience of the punchers. The wool yarn is received by Respondent in skeins which are put on machines and wound into 3-pound balls. Yarn in colors and amounts adequate for specific amounts of production is dispatched to the punchers. The puncher's work is in- spected by checkers who check on size and adjustment of needles, color of yarn, s Regarding this alternative, the General Counsel made no argument as to the others named "Respondent's defense as to these allegations is based almost entirely upon Behan's testimony before me and as the only witness to testify in the R hearing 7 This description applied to the work as it was done at the time of the hearing before me. Although Respondent would have me believe that, consistent with its R case evidence, great changes had taken place in its production techniques and overall operation from that date, I find its operations to have been essentially the same at the time of the R bearing, March 3, as at the time it was described to me by the witness Behan almost a year later. RUGCROFTERS OF PUERTO RICO, INC. 733 and defects in stitches . From the punching process the rugs go to the PV or polivulcanizing department where a rubber compound is applied to the back of the rug which binds the yarn and the jute together . After the rugs are PV'ed or latexed they go to the shearers who trim and equalize any out of proportion pile. Final inspection and shipping preparation apparently conclude the process. C. Behan's testimony at the R hearing On March 3 , 1953, Behan testified that the then plans 8 called "for the elimination of a certain amount of workers with the view, within 10 weeks, or 12 weeks, of greatly expanding the factory production facilities ." A 50 percent reduction in force was contemplated-60 or 70 employees having been already eliminated since the first of the year and another 100 being scheduled to go within a week from the time of the testimony. The reason for the program was the decision to make a different type of rug with different operations and "with different trained personnel " operating ma- chines as distinguished from performing a strictly manual operation . The machine operation would give rise to a need for "mechanics and machinemen " requiring "a large machine shop for the breakdown of those machines , to be repaired on the spot " Behan was unable to say how many of these classifications would be needed attrib- uting that responsibility to a George Smith of the U. S. A. The "machines " it appears were to be no more than power-driven needles operated with compressed air and performing the same functions as the manual operated needle.9 The program was to result in the use of "new categories of workers " which upon analysis would appear to be largely a change in position nomenclature . Respondent "would not be able to call a person a hooker or a puncher" but "would have to call them operators, because they would be operating a machine " The program would also result in the elimination of some categories of workers currently used. From Behan's description, this change too appeared to be largely one of form and not sub- stance. His explanation was that the Respondent ,was "going to take the PV crew, the utility crew, the truckmen and the needlemen and combine everything into a labor pool" so as to reduce costs and achieve the flexibility of job interchange. Ground had been broken for a new building 10 and a contract let January 30 for its construction to be completed in 10 weeks. "Machinery and looms" were to arrive in that period. A week or so would be required for the plant to begin operations there- after. It was expected that the number of operators (i. e., hookers ) was to be in- creased from 100 to 800 or 900; yarn balling girls from 6 to 342 (there would be no 9 A notice was posted by Respondent the first part of January as follows : TO ALL WORKERS of RUGCROFTERS OF PUERTO RICO, INC. This Company plans, in the near future, to have a reduction in the number of employees due to economic reasons We hope that this reduction is temporary. In order to accomplish this reduction in force, the Company will proceed in the following order in selecting the employees to be laid-off : 1st-Employees who have proven themselves unsatisfactory for any reason other than absentism 2nd.-Employees with excessive absentism. 3rd.-Other employees in order of their seniority The above-stated policy shall apply in all future reductions in force 0 There was some allusion in the testimony to the installation of power loons But for this unexplored , flat assertion it is apparent fiom the context of several statements by Behan that his references to machine "installations" and "operations" were made in con- nection with the power -driven needles In explaining what the new building would be used for he testified "New frames will be in those buildings" no mention being made here or in other pertinent places about looms. 10 After originally describing it as 1 structure with 3 sections the new construction was repeatedly referred to in the testimony either in counsel 's questions or in the witnesses' answers as "buildings " denoting the plus al. A plan of the structure was received in evi- dence which reveals it to be 1 structure of 3 sections-120 x 50, 105 x 44, and 120 x 50- all adjoining in the sequence shown . This building had been contemplated for 2 years, drawings having been approved by the governmental planning board in June 1951. It would further appear from Behan ' s testimony that the center or 105 -foot section was an existing structure upon which the two 120 -foot sections were to be added. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change in the yarn bailer's work except the requirement of more speed; but oddly enough they would need retraining); and PV men would be increased from 10 or 15 to 30 or 35. Respondent was trying to cut down its polivulcanizing operation from 33 hours for a roll to 15 minutes. Behan's estimated increase of this crew by 200 per- cent did not reflect much confidence in its success. Cutters were to be changed from 100 to either none or 300 (depending on whether the rugs would have cut pile or looped) and shearers from 6 to 42 (contingent on the kind of backing used-burlap or monk cloth). Also to be needed were 40 "extra specially intelligent" workers for the looms. In all, it was anticipated that they would have a total complement of 1,252 employees at the completion of the reorganization and expansion progi am. It was also contemplated that the average production would be increased from 1,000,000 sq. feet of rug per year to 7,240,000 sq. feet. Apparently the change in techniques and product was to be such as to require sub- stantial retraining of all employees to be used on the new work. Behan's position on the utilization of current employees in the new program was difficult to follow. He first testified that the personnel for the new program would be "difficult, trained personnel." But apparently what he meant was that the present personnel could not operate the new "machines" without retraining. The latter statement he made at least twice in his testimony leaving the implication that such retraining was contem- plated for all including the hookers. He then testified that only a "small portion" of the current hookers would fit as operators even with training because the new operation would require more intelligence or education than was reflected by the gen- eral level of the current employees. In any event it later appeared from his testi- mony that he contemplated rehiring a "good number" of the employees being termi- nated in the reduction-in-force program. Behan testified that the training program would start as soon as he received the first shipment of the power-driven needles from the United States. Yet at another point in explaining why it would be necessary to completely close down the plant to get into the new operations he testified "Trainees will be on the payroll and do the old type of work, and then switch over when the needles are ready for them and sub- stitute new trainees in here, so that it will be a completely divided operation, because I must go through Federal Wages and Hours to get a new wage rate, because I can't mix the two." Some interesting miscellaneous facts are reflected in his testimony at the R hearing: Asked by Ruiz, who appeared for the Union in the R hearing also, about the contem- plated new machinery, Behan testified that in early 1953 the Company had sent a man to him "with models of this prospective machine" which had not proved satis- factory. It was returned to the United States where it was currently undergoing fur- ther development. It is clear from Behan's testimony that the machine he was re- ferring to was the power-driven needle upon which the reduction-in-force and reor- ganization and retraining programs were largely based. It also appears that the in- strument had not been invented until November 1952. In answer to further questioning by Ruiz, Behan denied hiring new employees since the reorganization and reduction-in-force programs started in January. Yet at the questioning of the hearing officer he admitted hiring new employees during the preceding month or two in order "to augment the bad ones that [he] had to let out to finish current work." He testified he did not remember how many there were of these new hires adding that his "labor turnover is very high." It further appears from Behan's R hearing testimony that in order to keep deliveries going they were then parceling work from the Sabana Abajo factory (the only one being reorganized at that time and the subject of this proceeding) to its other two factories for finishing. Prior to this time only the Sabana Abajo factory made the better quality rugs but they were now to be made at the other two factories to allow freedom to effectuate the reorganization at Sabana Abajo When the terminations of the last contingent of about a hundred employees would take place, what work was left would be distributed to the other factories. At the further questioning by Ruiz, Behan admitted the new construction would not hinder the development of work in the old plant. Seldom does the opportunity arise to test the accuracy and reliability of testimony in the light of developments which occur almost a year after the plans and circumstances in question were first testified about. In addition to that situation, I also have a sub- stantial amount of testimony by Behan before me on the same subject matter about which he testified in the R hearing. 1. The developments 11 months later Almost 11 months after heralding a reorganization of Respondent's business that was to have increased its personnel from some 300 plus to 1,252 exact and substan- RUGCROFTERS OF PUERTO RICO, INC. 735 tially changed its production methods and type of product within a period of 10 to 12 weeks, here is what we find: There were on the payroll 418 employees. The so- called new machine or power-driven needle that played such an important part in the reorganization plans was still being "perfected" and its adoption in the production process was still to be effected in the future. No looms had been installed. If any change in the type of product occurred it did not, as will be shown, amount to much more than a change in name. Nor does it appear that production methods changed substantially enough to justify Respondent's assertions. 2. Behan's unfair labor practice testimony in 1954 Behan testified before me, in part, as follows: 11 That although the notice about the reduction in force was not posted until January 1952, the actual decision to make the layoff was made in September 1952 The production changes contemplated at that time were the adoption of a power-operated needle,12 the adoption of a new type of frame, 13 and the construction of a new oven building As indicated, as of the time of his testimony before me, it appeared that the payroll had been increased from a low of 150 to 418, moreover 8 new frames had been built or were in the process of being built which would require 100 to 150 more employees. New machinery, otherwise unidentified or described, was still to be installed in the new building. New people were currently being trained, but, strangely enough, not for the "new machinery." According to his explanation of the reduction-in-foice program, as work finished elimination of the employees started. Notwithstanding that an expansion program admittedly was in progress at the time, it was his testimony before me that the layoffs were necessary because there was no work, that he did not have the orders from January to June to maintain the number of employees he had as of January; and that he was capable of producing 30,000 feet a week but had orders calling for only 12,000 to 15,000 a week The layoff period, he testified, extended from January to June, while the rehiring started in October or November 14 Explaining what the reorganization amounted to besides the construction of a new building Behan testified that Respondent: (1) Gave courses to checkers and super- visors on how to improve operation; (2) put all the PV facilities in one building, adding 8 frames in the old PV building, (3) made a large amount of samples for new business; (4) manufactured new needles that were badly needed; (5) ". . . overhauled the whole administrative facilities of the factory" which apparently involved a revision of the payroll and accounting procedures; and (6) revised its "list of basic qualities" of rugs in that "Instead of making a hundred different quali- ties, [they] were reorganizing them and reducing them to about thirteen." Behan's entire testimony on this latter subject presents a good example of his unreliability as a witness and in my opinion contradicts the implication fostered by Respondent in the R hearing and in mine that any fundamental changes took place in either the product or the methods used in producing it. For example, soon after he testified as above, in justification for eliminating employees who he alleged could not fit into the new operation, he testified that "we had some employees that could make only one basic quality, and that's all they produce, so I expand that to thirteen, and each worker has to be flexible for the thirteen basic qualities," or be eliminated. Later, he testified that 1 week they may be making "20 basic qualities" and the next 60. At another point he testified they never make "less than 30 different qualities " Admitting that difference in shape, design, and length of stitch could "cause rugs to have different names," he testified as an example that "we made one particular quality and then we would make another quality later on and we gave it another name, but the manufacturing instructions were exactly the same except that we used a little less wool and a slightly different foundation, but actually the manufacturing technique is just the same as the other." When asked later if the manufacturing techniques were the same regardless of the number of types made Behan answered, "No, I would say the techniques in about 25 percent . . . would be completely dif- 11 Exactly what l3ehan's testimony is on some points at times is difficult to determine because of its inconsistencies and contradictions is He later testified that "New York is in the process now of making trials on new machines that we intend to bring down here. I haven't yet received word that they are coining " Ll Nowhere in the i ecord is there any explamition how the current frame differed from; those used at the time of the It hearing nor in what iespects they would be different i4 Ile admitted that even in the layoff period, some hiring was done if an exceptionally well qualified or experienced person became available 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferent techniques. The size of the needle would have a bearing on it, and the classes of designs that would be required, and the types of yarns to be used would be com- pletely different and also the foundation would be completely different, and the prices that we pay are completely different, and the prices that we sell them for are completely different. I mean it is a completely different item." Notwithstanding the explanation he was again asked if the making or punching of the rug was in effect similar in all instances to which he made this nonsequitur reply "No, no, we will sell a rug based on price although the techniques in five qualities may be the same there are separate instructions in each one because the weights of the yarn are different and at a different price, so that we must here watch out that in the manufacturing, by giving explicit instructions before beginning it that the workers do not get too much involved, in it. We give those details to the people responsible for the rugs." In effect, denying that the administrative changes could have been made without the layoff, Behan testified, "I don't think it would have been practical, because we pay on footage and Wages and Hours governs on the footage." Asked if the new building could have been put up without the layoff his answer was, "If we had had to, we could have done it, but it would have been very inconvenient for us. We built that building ourselves here in Puerto Rico and it was a type of building never before built in the world, and it needed my personal supervision. It is now con- sidered the world's largest ...," at this point Respondent's counsel asked the witness if he had understood the question to which Behan replied, "Yes " His counsel also asked Behan if the polivulcanizing "is . . . an entirely different and new process?" Behan replied, "I would say it is a new process, but basically it is the same class of operation In other words, instead of the rug being held to a rigid floor, we now anneal it to a movable platform and it is hoisted in this oven and dried; and when it is pulled out, they have already put down new pieces In other words, my facilities for latexing have been increased by 500 percent." Testifying that Puerto Ricans would like to work no more than 3 days out of 7, Behan bemoaned the extremely high absenteeism he is and was continually facing. Because of this factor and the expense of training new employees, Respondent nor- mally tolerates a great many faults in its employees so as to avoid training new ones. But in the reorganization, which required substantial reductions in force, Respondent could and did indulge in a stricter attitude and was thus able to eliminate the worst employees first.15 Nevertheless, Behan further testified before me that he had rehired the "major part of the workers" that had been dismissed and that to his knowledge he had "refused none" who presumably offered themselves for reinstatement. Moreover, he admitted that not only was it announced over the loud speaker and passed around by word of mouth that they were rehiring and "were in the market for good punchers and checkers" but they sought employees through the Insular Employment Bureau and he and supervisory employee Lanza "went to many workers' homes after work hours and asked them to come to work...." Asked why he was willing to take back unsatisfactory employees who were "chronic violators" of company rules, he explained that he took them back because it cost so much to train them and he wanted to salvage something out of his invest- ment in them Furthermore he had no alternative but to take them because it was impossible to find workers "good or bad" due to a manpower shortage in Puerto Rico.16 Moreover, his employees "were dribbling away from [him] right and left" due to the competition of 15 factories paying hourly rates which were not in the labor market when Respondent started manufacturing in Puerto Rico.17 In short, the considerable amount of investment represented in the training of personnel and the difficulty in securing personnel was summarized by Behan with the statement that "beggars can't be choosers" and the conviction that Respondent had to take any type of employee it could get. 15 Whether or not Respondent actually followed this procedure is not explored herein as being unnecessary to the disposition of the case 16 He qualified this statement by limiting it to male workers 17He also testified that competing films continually, and apparently callously, engage in personnel raiding Behan claimed to have taken some 200 employees from his former employer when Behan sintched his allegiance to the Respondent. He also testified that his former plant manager, Andres Gonzalez, whom he hired from a competitor, biought with him to Respondent sever at of the conipetitoi's employees RUGCROFTERS OF PUERTO RICO, INC. 737 D. The elimination of the needle department Except for an interim of employment with a competitor, Pedro Lozano Baez had worked for Respondent from the commencement of its operations in Puerto Rico in 1949 as a needleman. He was terminated April 10, 1953. His assistant, Carmelo Rodriguez, the only other employee of the needle department then, had been terminated at about the same time. Lozano had participated in a strike which had taken place at Respondent's plant March 9 for a few hours. According to Lozano's testimony, he made application to Behan for reinstatement in September and was refused. At that time Lozano unsuccessfully urged Respondent's ad- herence to an agreement Respondent had entered into with the Union in settlement of the strike wherein Respondent agreed to give hiring preference to laid-off em- ployees. Rodriguez had been subsequently rehired to assist a new needleman, Forte, whom Behan had hired away from a competitor in September or October. Besides rehiring Rodriguez, Behan also hired two new people to understudy Forte. Lozano was not rehired. Respondent's explanation of Lozano's termination 18 was that the needle depart- ment was eliminated for economic reasons. A summary of Behan's testimony as given on this subject shows that "needles through abuse get out of order and they make a bigger or higher shieve, and when it gets out of adjustment it is handed to the checker and the checker orders that this needle be changed to be in agree- ment with the ones on the right and left side of the rejected needle." It was Lozano's duty to adjust these needles. As of April 1953, Respondent had on hand a surplus of a thousand needles At that time the entire department was eliminated to cut down on overhead since Lozano and his helper were paid on an hourly basis Behan denied that needles were repaired in the plant after Lozano left or ever were adjusted except "in an emergency" since it "was easier to take another needle and transfer it." Having maintained that Respondent still had "that surplus of needles," at the time of his testifying in the complaint case, Behan was questioned about his need for a needle repairman. He answered, "I have people fixing any of those needles that need fixing," and then he hedged with the statement that it was not actual repair but in effect was the man- ufacture or assembly of needles. As an explanation of the apparent inconsistency in a situation where needles were being assembled despite the existence of a sur- plus Behan testified, "Yes, we have different types of needles, 15 or 20 maybe. My stock in one particular type is insufficient, and so I need that particular type and then as we sell the carpets in the States if they sell more of one quality than another and I don't have sufficient needles, I have to make more." But, Behan reiterated, in April 1953 he had a surplus in all types of needles and would not testify nor conjecture as to when he began to have a shortage in any one type. At any rate, whether or not he had shortages of any types he admits he contracted for the manufacture of the parts in Puerto Rico and reiterated that he had a surplus of only certain types of needles On this basis, while denying a need from April for a repairman, he admitted a need for an assembly man. Lozano, according to Behan, could only adjust needles and did not have the ability to over- haul or assemble them During his entire employment with Respondent Lozano overhauled only "a microscopic amount." Behan was thus asked, . so during the period from 1949 to 1953 when a needle became out of repair, was it discarded?" He answered, "Yes, well, that is a matter of opinion In comparison with our North Carolina factory, worker for worker, needle for needle, I would say that the breakage or damaging or discarding of needles in comparison with the American worker was about six to one. If a worker in North Carolina was working they would issue him one needle, but here in Puerto Rico six were issued to the worker because either through abuse or misadjustment or miscare, I had a terrific amount of broken needles. At one stage I was in a desperate state. It was generally mis- management, mishandling." Nevertheless, with such a tremendous amount of damaged needles he did not overhaul needles from 1949 to 1953-he scrapped them' He was wasting thousands of dollars in needles because the people he had (Lozano and Rodriguez) "were not capable of salvaging two needles and making one good one out of them." Admitting that Lozano applied for reinstatement in September. Behan te- fled he was not hired because he was not needed then and that when he did need a man approximately 2 months later he "hired anybody that came around" which was Forte In any event since Lozano had only one leg Forte was the better man With Lozano, when a needle needed adjustment "the worker had to take his needle and walk over is Rodriguez' termination was not alleged as an unfair labor practice. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to where Baez was working maybe five minutes away, and walk back afterward " Forte walked the frame and fixed the needles on the spot. Moreover Forte's talents exceeded Lozano's. Behan had seen the former "make from a piece of scrap iron needle points and steppers " The foregoing testimony was elicited chiefly by interrogation of Behan by the General Counsel under rule 43 b of the Rules of Civil Procedure. Later in the case Behan agam took the stand. At that time Behan testified about the experimenting Respondent had been doing with power-operated needles in secret so as not to become known to their competition. Obviously having forgotten how he had pie- viously testified that Lozano was incapable of assembling an ordinary hand-operated needle, Behan proceeded to testify how Lozano, while repairing one of the powei- operated needles, made a duplicate of it and sold it to a competitor for $50. To cap this, Behan further testified that he saw Lozano make the copy' Bearing in mind that nothing had changed in production as would have substan- tially changed the need or lack of need for a needle department from the time that department was eliminated to the time it was reestablished, 19 it seems to me Respond- ent's action in this connection merits more than casual conjecture. When Behan's story begins to unfold and one attempts to follow his twisting adaptations and rationalizations with their resulting inconsistencies and conflicts, what originally was minor doubt turns into major skepticism. A surplus of needles turns out not to be a surplus-or does it? Although Lozano was incapable of repairing needles, accord- ing to Behan's testimony before me in the R case testimony given while Lozano was the needleman for Respondent, Behan testified that among other things the needle- man repaired needles. And what a prodigal way of handling damaged needles for 5 years-just scrap them' 20 Then too, there was the 5-minute walk the worker had to take to get his needle to Lozano for adjustment which is hardly consistent with Behan's previous testimony that when a needle gets out of adjustment it is simply handed to the checker who obviously relieves the puncher of further responsibility including the necessity of seeking out the needleman. But the climax, of course, is Behan's convenient cacophony regarding Lozano's abilities. Then, not hesitating to attribute inconsistent and impossible extremes to Lozano, he has himself playing an untenable part on one of those extremes by claiming to have seen Lozano make the model with which to betray Respondent to its competitors. As indicated, the General Counsel advanced an alternative theory as to the situa- tions of Lozano, Guiterrez, and Ortiz to the effect that if their layoffs were considered lawful, the overwhelming preponderance of the evidence nevertheless showed that the failure to rehire them was unlawful. I have set forth the circumstances of Lozano's employment and termination and Behan's testimony thereon not in con- nection with the General Counsel's alternative theory (although I believe the evi- dence would support that theory) but as an example of and for the purpose of demonstrating Behan's lack of reliability as a witness and as tending to show the incredibility of Respondent's entire defense 21 18 The power-driven needle had not been adopted The average weekly employment from September through the end of the year was approximately 360. While there were only 218 employed as of the time Lozano was terminated , it would appear that when Respondent reestablished its needle department with 4 employees therein it had it higher ratio of needlemen than it did at the time Lozano and Rodriguez constituted that department- haidly an impiovement in economy particularly when 2 of the 4 employees were in effect apprentices 20 One should not confuse Respondent 's needles with the simple things to be found in milady's sewing basket While it involves the same common principle of the metal shaft slender enough and shaip enough to punch through cloth and carry with it by means of its threaded eye the yarn that is used with it, it is by no means that simple The needle point ( in which the "eye" is located ) as well as anothei piece of metal called the stepper (which holds the loop of yarn through the material while the needle point disengages or withdraws from the material preparatory to punching another loop ) are attached to spe- cially formed stocks or bases of walnut which ai e fastened together on a tongue and ground basis with sufficient tolerance and bees waxed to permit the shuttle movement of the wood pieces that enable the mechanism to operate ' In this connection I might state that I do not intend to go into the individual circum- stances of the employment of others involved in this complaint as shown by either side since the theory upon which I dispose of the case I believe makes that unnecessary As I understand Respondent's position , there is no contention that these people were discharged or terminated for cause They were merely laid off because of a ieorganization program It is apparent that iegardless of faults many were taken back and Behan expressed his willingness in principle to take them all back Under these circumstances , whether Behan RUGCROFTERS OF PUERTO RICO, INC. 739 Concluding Findings Even without the benefit of the revealing developments, or lack thereof, by which to judge Behan's R case testimony, I believe that standing alone even it is of a quality that would hardly serve to overcome the General Counsel's prima facie case. Its internal conflicts, inconsistencies, and variations from hesitant vagueness to glib pre- ciseness on the same subject matter 22 denote its unreliability. The core of the defect, of course, is the supposed adoption of the power-operated needle and its important re- lationship to the reorganization program and Behan's later amazing R testimony rev- elation that "prospective" models of the power needle had not proved satisfactory and in effect had not yet reached a successful stage of development. In addition to its inherent or internal deficiency, when Behan's R case exposition of Respondent's plans and predictions is compared with the actual results and with his testimony before me, the overall speciousness of Respondent's defense becomes ap- parent. Thus it appears that a long-standing plan of expansion 23 suddenly became a reality at a crucial time in a union organization campaign involving Respondent's employees. This program requires a substantial reduction in force by reason of the proposed adoption of a power-driven tool which has not proved satisfactory and has not yet been fully developed. Moreover, this reduction in force takes place in the face of manpower shortage so acute that it has Respondent in a position of being con- strained to take as employees any applicants it can get, condoning past derelictions and overlooking current faults Strangely enough, if one version of Behan's testi- mony is used, the time chosen to put into effect this plan for expansion is when Re- spondent's 4-year average of production has fallen about 50 percent. To get the full flavor of Behan's testimony it is necessary to analyse it question by question and answer by answer as it appears in the record. Since I believe his lack of reliability is amply reflected in the record and that the foregoing examples justify a rejection of the essentials of his testimony I see no object in belaboring this report with a more detailed analysis. Suffice it to say that Behan's testimony impressed me as an effort to take two simple facts, the long-standing construction of a new build- ing to increase its production facilities and its experimentation with and hopes of developing a power-driven needle, and embellish them into a defense to a then de- termination of a bargaining representative for its employees Notwithstanding that the effort was successful in the representation proceeding, I conclude and find in the light of subsequent events that the Respondent's position in this respect was not taken in good faith but was essentially a fabrication to discourage union activity and to forestall its employees from having the opportunity to select or reject through the processes of the Act a bargaining agent to represent them in their employment relationships with Respondent I further find that in anticipation of and to justify its position in the representation hearing Respondent inaugurated and effected its re- duction-in-force program, terminating among others those employees named in the complaint. Such interference by Respondent with its employees' rights and discrimi- nation against them constituted a violation of Section 8 (a) (1) and (3) of the Act 24 E. Interference, restraint, and coercion 1. Respondent's responsibility Evidence regarding various acts of interference, restraint, and coercion by Respond- ent against its employees was offered by the General Counsel. These acts were at- had cause to dischai ge any of the employees in question would seem to be immaterial Moreover, of the detailed reasons (marshalled at gieat expense by Respondent) given to the employees in justification of their selection for layoff, many of the items had occurred prior to the iehiring of the guilty ones and of course were no longer available to Respond- ent as cause foi discharge having been condoned by the reestablishment of their employment. 22 His testimony on the numbeis of new employees to be taken on under the new program varied from no figuie at all for mechanics or "machineinen" through a leeway of 100 in the classification of hookeis, to a precise 342 for jarn balleis The latter is of particular interest in that it amounted to an increase in that classification of approximately 5700 percent. When it is recalled that the yarn bailer's duties were not to be changed and also that the reorganization was expected to result in an increase of production of only about 725 percent, one wonders ii hat Respondent expected to do with some 300 superfluous yarn bailers 23 Certainly going back to June 1951 when the drawings for the new building were approved 23 Cf Wood Man,ufecttartinq Company, 95 NLRB 633, 641 , Somerset Classics, Inc and Modern Manufacturing Company, hac, 90 NLRB 1676, 1678 See also St Louis Car Com- pany, 108 NLRB 1523 369028-36-vol. 112-48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tributed to (1) Andres Gonzalez, the former general production manager, who died some months prior to this hearing; (2) Mrs. Gonzalez , next in command in the plant and charged with general supervision over female employees ; ( 3) Severo Serrano, as chief of the utility crew supervising that work ; (4) Carmelo Hernandez , assistant to Mrs. Gonzalez ; and (5 ) Regina Aleman, in charge of weighing and dispatching yarn to hookers. No contention was made by Respondent that any of these people were not supervisors. As to Mr. and Mrs. Gonzalez there certainly is no question. As for the others, according to Behan's testimony, both Serrano and Aleman had author- ity to recommend hiring and firing and Hernandez supervised about 10 people assign- ing and taking away their work and controlling its flow. I find that Mr. and Mrs. Gonzalez, Serrano, Hernandez, and Aleman, at all times material herein, were super- visors within the meaning of the Act 2. The incidents Lina Figueroa testified that in November 1952 in a building called the "Palamilla" at the plant in the presence of Joaquin Rodriguez she was told by Lozano that the latter had a letter for her from the Union. Mr. Gonzalez, apparently being informed of this by Rodriguez, immediately confronted her as follows : "Tell me immediately yes or no to what I am going to ask you. Is it true that you have a letter that was sent to you here by hand9" Figueroa replied that it was true but that she had not yet read it. Gonzalez continued , "I want you to tell me whether you are going to con- tinue in the Union, because Mr Pat 25 already knows that you are a member." He also told her that Behan was not pleased about it and had pointed out that it was the people Gonzalez had brought with him from Respondent 's competitor, Floor Coverings at San Just, that were supporting the Union. Gonzalez added , "I don't want you to be in the Union , because I sympathize with you and I don't want Mr. Behan to call my attention to that." Figueroa further testified that during November at noontime in a patio or open space between two buildings at the plant President Klein gave a speech to the em- ployees in English which was translated for them into Spanish by Mr. Gonzalez 26 Klein complimented them on the quality and the quantity of their work and told them he was willing to cooperate with them and give them 2 weeks' vacation on con- dition that they would continue their present course and not join in union activities. Figueroa could not recall if Behan was present at the time Klein spoke , explaining that he had some vacation about that time and had left or was about to leave for the States. 27 About 2 weeks later, at the same hour and place, Mr . Gonzalez spoke to the em- ployees telling them Klein had come back and was happy with their work progress but was not happy at what he had learned about the Union ; that there was no need of being organized because there was plenty of work and they were making good money; and that he expected them to reject the Union "otherwise these people had enough money to move the plant out, and that would cause damage and prejudice to a number of them." The essentials of Figueroa's testimony as set forth above are credited . Although Gonzalez's unavailability prevented any denial by Respondent of matters involving Gonzalez to which there were no witnesses, the questioning of Figueroa by him is not quite in that category . A denial of the part attributed to Joaquin Rodriguez in the matter would have some probative value. But Rodriguez was not called as a witness and his absence is unexplained . As for Klein's speech, his remarks are ad- mitted by Behan. In this light , Gonzalez's follow-up remarks, tied as they are to Klein's speech, seem a logical result and plausible Figueroa , Asuncion Velazquez , and Petra Guiterrez all testified as to having been asked by Aleman in November 1952 to sign an antiunion petition . According to Velazquez, Aleman requested that signatures regarding the Union be given only to 25 Stipulated to be Patrick Behan. 20 This testimony was admitted over Respondent 's objection that there was no way of checking the accuracy of the translation particularly in view of Gonzalez ' s unavailability. Since Gonzalez was a supervisor, whether or not he translated accurately would seem to me to be irrelevant The substance of his translation of course could be a matter of controversy but since it was made to all the employees Respondent should have had no difficulty in controverting it This , Respondent did not do In fact, Behan testified that he was present at Klein's speech and that he believed that Gonzalez correctly translated Klein's remarks ^ Behan's vacation trip to the States at about that time was later confirmed by Behan's testimony and reflects favorably on Figueroa's reliability RUGCROFTERS OF PUERTO RICO, INC. 741 her because if the Union won the plant would close. Although denying that she ever talked to Velazquez "about taking signatures in the plant" or that she ever told anyone in the plant to collect signatures there is no denial that she asked Figueroa and Guiterrez for their signatures on an antiunion petition. That petitions regard- ing the Union were being circulated in the plant would appear from her admission that Lozano asked her for her signature on a petition involving the Union. Claiming she did not know if his petition was for or against the Union, she did explain that when he asked for her signature he told it was because "they were going to form a union." I credit the General Counsel's witnesses in this matter 28 Miguel Ortiz Colon testified that in November 1952 Carmelo Hernandez asked him to circulate an antiunion petition and also asked at the same time an employee named Medero to circulate one. Hernandez told Ortiz he had to collect signatures because if the Union won the majority would be left without work. Ortiz returned his paper without signatures about 2 hours later. Hernandez in his testimony denied asking anyone to gather signatures. Medero did not testify. Although Ortiz's de- meanor as a witness was not superlative, on the stand Hernandez impressed less favor- ably than did Ortiz. I credit Ortiz. Benito Aleman testified that in the month of November 1952 in a conversation with Mr. Gonzalez in the plant, the latter told him "that certain people who were in favor of the union were gathering signatures in favor of the union, that the company could not order anyone by law to collect signatures, but that if any of them [the employees] wanted to gather them he had no objection to that." The record is not clear as to what answer Aleman made except that he was not in the Union. Later that day Gon- zalez gave him an envelope inside of which was the blank petition headed with a statement that "the following whose signature appear do not want the union." About 3 days later Aleman returned the paper with 13 or 14 signatures including his own. Notwithstanding that on cross-examination Aleman testified he could not remember the names of any of the others whose signatures he solicited, I was impressed with the forthrightness and clarity of his testimony. What Gonzalez was alleged to have told him squares with Regina Aleman's admission about the circulation of a petition by Lozano. In view of all the circumstances herein, I credit Benito Aleman's testimony. Fernando Diaz testified credibly that in December 1952 Aleman asked him why he had a union button pinned to his shirt and told him that he "should not use it there," that "it could do you hard." From the foregoing credited testimony it appears and I find that Respondent violated Section 8 (a) (1) of the Act by the following conduct: (1) Andres Gon- zalez's interrogation of Figueroa about her union activity; (2) Klein's promise of 2 weeks' vacation to the employees conditioned in part on their abstaining from union activity, (3) Mr. Gonzalez's statement to the employees some 2 or 3 weeks later that unless the Employers rejected the Union the plant could be moved to their damage and prejudice, (4) Regina Aleman's solicitation of employee signatures on an antiunion petition; (5) the importuning of Ortiz by Hernandez to circulate an antiunion petition and Hernandez's threat that if the Union won the majority of the employees would be without work; (6) Mr. Gonzalez's instigation of the antiunion petition circulated by Benito Aleman; (7) Regina Aleman's remarks to Diaz in December 1952 questioning his reason for wearing a union button and asserting that it could do him harm On direct examination Velazquez denied that in her conversation with Behan about reinstatement anything regarding the pending unfair labor practice charge against Respondent was discussed On cross-examination she was asked if she had not talked to Behan on this occasion in Spanish. She replied, "Yes, and then he told me that if I was willing to give up the case, he would give me work." However, she also testified that she could hardly understand Behan's Spanish so a secretary in the office she identified as David apparently acted as an interpreter. On this testi- mony I am unwilling to find that Behan offered her reinstatement conditioned on her dropping the case. The evidence shows that many employees including both those named and not named in the charges filed with the Board against Respondent were referred by Behan to Respondent's attorney for clearance when they made application for reinstatement. Few if any attempted to contact the lawyer Some who were re- ferred to counsel were subsequently rehired apparently without the benefit of such an interview.29 Behan's explanation as to why applicants were referred to Respond- ' Although Velazquez ieftected some vagueness of recollection and confusion on the stand there nevertheless was a quality of guilelessness and spontaneity about her testimony. 2D For example Asuncion Velazquez and Antonio Acevedo 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's attorney was that being unfamiliar with labor law he had instructions to defer to and accept the direction of Mr. Licari in all such matters since Licari had been re- tained as labor relations advisor to Respondent. While Respondent's motive may not have been above suspicion herein, on these facts I do not believe the General Counsel has established that Respondent's conduct in this matter violated Section 8 (a) (1) of the Act. Another allegation of the complaint that I feel has not been sustained by a preponderance of the evidence is the promising or giving employees free entertain- ment or paid admission to sports events in order to discourage union activity on their part. The evidence shows that in November 1952 a group of 11 or 12 checkers was taken to a baseoall game by Behan and treated to cigarettes and beer. Although this apparently was the first time employees were entertained at a ball game, the evidence further shows that Respondent has made a practice of giving picnics or parties for its employees yearly, and no connection is shown between this incident or any others and the employees' union activity. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent illegally terminated the employment of Juan Miguel Ortiz, Fernando Diaz,30 Pablo Carmona, and Petra Guiterrez on March 13, 1953, of Carmelo Ramirez on April 8, 1953, and of Pedro Lozano Baez on April 10, 1953, I will recommend that Respondent offer each of them immediate and full reinstate- ment to his former or substantially equivalent position, The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, without prej- udice to his seniority and other rights and privileges and make each of them whole for any loss of pay he may have suffered equal to the amount he would have earned as wages from the date of his discharge to the offer of reinstatement less his net earnings during said period, Crossett Lumber Company, 8 NLRB 440, to be com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. I have also found that Respondent illegally terminated the employment of Jose Luis Monje on March 13, 1953, and of Antonio Acevedo on April 8, 1953. At the time of the hearing Acevedo was again working for Respondent, although exactly when he was reinstated does not appear in the record. As to Monje, Behan testified, in November or December he "was given an op- portunity to work when Mr. Lanza came. He was offered employment and he refused it " Behan also testified that on several occasions, picking Monje up in his automobile on the way home at night, he offered Monje employment which was refused. Monje did not testify. 30 With respect to Diaz, Behan was asked by his counsel, "State whether or not to your knowledge Fernando Diaz was sent for by the company and notified that the company was reopening and staiting to iehine in Septenibei and October 1953." Behan answered, "I would have to check with Mr. Lanza, because I believe that I made an offer in Carolina to Fernando Diaz' sistei, an employee that I was wanting to hire as a checker, and I offered to take Fernando Diaz' sister and Fernando Dice, but both of then refused " In his testimony Diaz denied making application for reinstatement or being offered reinstatement directly of through his sister. On cross-examination, after claiming no recollection of it, Diaz admitted that his sister had told him Respondent had "come to look for her." But he denied that she had told him he could have a job with Respondent if he wanted it While DiaL' testimony- on this matter was not as forthught as it might have been, in view of my reaction to Behan as a witness and the vagueness of his testimony on this matter I am unable to find that the pieponderanco of the evidence shows that Diaz was offered reinstatement The burden of establishing that reinstatement had been offered to Diaz was on Respondent Neither Lanza nor Diaz' sister was called and there was no showing that they were unavailable NORTHEASTERN ENGINEERING, INC . 743 On the basis of the foregoing no reinstatement will be recommended for Acevedo and Monje but it will be recommended that they be made whole from the dates of their illegal terminations to the dates of their reinstatement or offer of reinstatement as the case may be 31 in the manner provided above. I have also found that Respondent has interfered with, restrained, and coerced its employees. In my opinion Respondent's conduct discloses a fixed purpose to defeat self-organization and its objectives. Because of Respondent's unlawful conduct and its underlying purpose I believe that the unfair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the course of Respondent's conduct in the past. The preventative purposes of the Act, in my opinion, will be thwarted unless the recommendations are coexistent with the threat. In order therefore to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, I will recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act.32 Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Unidad General De Trabajadores De Puerto Rico is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating with respect to the hire and tenure of its employees, thereby discouraging union activity on the part of its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 11 The exact dates to be determined by the parties in compliance. ae N L R B v Express Publishing Co, 312 U. S. 426; N. L. R. B v Entwistle Manu- facturing Co , 120 F 2d 536 (C A 4). Northeastern Engineering, Inc. and International Union of United Electrical, Radio and Machine Workers, CIO. Case No. 1-CA-1773. May 10, 1955 DECISION AND ORDER On February 21, 1955, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report which contained support- ing argument. The Respondent filed no exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and argument, and the entire record 112 NLRB No. 96.