Warner Brothers Co. of P. R., Inc.

WARNER BROTHERS COMPANY OF P. R., INC. 177 Warner Brothers Company of P. R., Inc. and American Federa- tion of Labor. Case No. 04-CA-52?. July 15,1955 DECISION AND ORDER On February 2, 1955, Trial Examiner James A. Shaw 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices alleged in the complaint. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report, together with a supporting brief.' 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 Intermedi- ate Report, the exceptions and brief of the Respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, modi- fications, and additions noted below : a 1. The Respondent has excepted to the credibility findings of the Trial Examiner. The Trial Examiner based his credibility findings in part on his observation of the witnesses and their demeanor while testifying. As demeanor is a factor of consequence in resolving issues of credibility, and as the Trial Examiner, but not the Board, has had the advantage of observing the witnesses while they testified, it is our ' The Respondent also filed a motion to reopen the record for the pi imary purpose of showing, in connection with the so -called "Dubinsky incident ," that there was no refer- ence to a contemplated visit by Dubinsky to Puerto Rico to organize the needlework indus- try on the first page of the November 19, 1953, edition of the newspaper El Mundo. In its supplemental motion in this respect , however , the Respondent in effect concedes, as asserted by the General Counsel in his memorandum in opposition to the Respondent's motion, that on page 3 of the November 19 issue of El Mundo there appeared an article stating that a representative of Dubinsky had arrived in Puerto Rico for the purpose of organizing the needlework industry and that this individual was willing to meet with all interested workers at the Candado Hotel Even if evidence of the type which the parties would adduce at a reopened heating had been part of the record before us, it would not have caused us to alter any of our findings herein. In view thereof , apart from other considerations , the Respondent's motion to reopen the record is hereby denied. 2 The Intermediate Report contains certain misstatements of fact and inadvertences, none of which affects our ultimate conclusions herein . For example , the Trial Examiner found that Asuncion Aponte preceded Lloyd B . Walker as general manager of the Re- spondent's plant whereas the record shows that Walker was the plant's manager from the time it commenced operations and that Aponte was assistant manager for some time after the plant opened The Trial Examiner also found that complainant Ramos' fist period of employment with the Respondent in 1953 was terminated on August 7 whereas it appears from the testimony credited by him , considered in the light of the entire record, that it was terminated on August 13. As no exception has been filed to the Trial Examiner 's failure to find surveillance on the facts of this case, the Board adopts the Trial Examiner's conclusion in Ibis respect without thereby passing upon its merits 113 NLRB No. 22. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy to attach great weight to the Trial Examiner's credibility find- ings insofar as they are based on demeanor. Hence, we do not over- rule a Trial Examiner's resolution of credibility except where the clear preponderance of all the relevant evidence convinces us that the Trial Examiner's resolution was incorrect.' No such conclusion is war- ranted in this case with respect to the resolutions of credibility made by the Trial Examiner in arriving at his ultimate conclusions. We therefore adopt those credibility findings. 2. The Trial Examiner found that Paula Davila Ramos, Carmen Gloria Quinones, and Matilde Fuentes were discriminatorily dis- charged and that the Respondent thereby violated Section 8 (a) (3) and (1) of the Act. We agree with this finding, for we are persuaded by the record herein that all three complainants were discharged be- cause of their protected concerted activity in connection with the "Dubinsky incident" on November 20, 1953. Such concerted activity under the circumstances of this case was concerted activity for the mutual aid or protection of the employees involved, participation in which is protected by Section 7 of the Act. A discharge for having engaged in such activity violates Section 8 (a) (1) of the Act. Be- cause this activity represented an initial step by the employees in securing union representation and the discharges therefor an attempt by the Respondent to thwart the unionization of its plant, we find that the Respondent, by discharging Ramos, Quinones, and Fuentes, also violated Section 8 (a) (3) of the Act. In any event, whether the dis- charges are viewed as violations of Section 8 (a) (1) or of Section 8 (a) (3), we find it is necessary to order the reinstatement of, and award back pay to, the discriminatees, as recommended by the Trial Examiner, in order to effectuate the policies of the Act. As indicated above, we reject the Respondent's contention that a slowdown by Ramos and Quinones "possibly along in the middle of the week" ending November 20, 1953, precipitated their discharge. While the record shows some drop in production on the part of Ramos and Quinones during the week in question, it appears from the testi- mony of Manager Walker, who terminated the employment of all the complainants, that this drop in production was not regarded by the Respondent as a substantial one and that the production of the other employees engaged in similar work had also fallen off during the same period. Walker also conceded that the complainants were not responsible for the decline in production of the other employees, and there is no showing that any of the employees, including Ramos and Quinones, had engaged in a deliberate slowdown. When, in addition to the foregoing, the facts and circumstances reported in the Inter- mediate Report are taken into account, including the reference to the complainants' November 20 activity pertaining to the unionization 3Standaid Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 302 (C. A. 3). WARNER BROTHERS COMPANY OF P. R., INC. 179 of the plant implicit in the statements made by Walker and Supervisor Mendez on the occasion of the discharges, the conclusion we have reached is warranted .4 3. We agree also with the Trial Examiner's finding that Benita Suarez was discriminatorily discharged on December 4, 1953, in viola- tion of Section 8 (a) (3) and (1) of the Act. According to Manager Walker, the motivating reason for the dis- charge of Suarez was that she gave conflicting reasons for her absence from work on December 3. On the basis of the entire record, however, we find that this reason is a mere pretext and that Suarez was in fact discharged because of her adherence to the Union. That this is so is underscored by the absence of credible testimony to support the claim that Suarez gave conflicting reasons for her absence on December 3, Walker's warning to the employees in his speech on December 3 not to sign the papers to which Ramos, Quinones, and Fuentes were solicit- ing signatures in Guaynabo,5 Walker's observation of Suarez in the company of Ramos in Guaynabo on December 3, and the discharge of Suarez upon her return to work on December 4, just after Suarez admitted to Supervisor Mendez that she had signed a union card. ORDER Upon the entire record in the 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, Warner Brothers Company of P. R., Inc., Guaynabo, Puerto Rico, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in American Federation of Labor, or in any other labor organization of its employees, by discharging any of its employees or by otherwise discriminating in regard to the hire, tenure, or any term or condition of employment of its employees. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form 4 This is so even if, as we find , contrary to the Trial Examiner, no significance can be attached to the presence of Isabel Reyes during the Ramos ' November 20 speech. In this connection we note that the record contains , in addition to the testimony set forth in the Intermediate Report, testimony by complainant Fuentes, who was considered a credible witness by the Tual Examiner, that during the afternoon of November 20, following the "Dubinsky incident," Supervisor Mendez warned her not to "talk about unions and revo- lutionize the girls here in the plant because if the American [a clear reference to Manager Walker] hears about it he will discharge you " 5 At the time Ramos, Quinones , and Fuentes were in Guaynabo soliciting signatures to applications for premiership in the Union Like the Trial Examiner , we find that the Respondent violated Section 8 (a) (1) of the Act by Walker's speech to the employees in which he warned them that , "God forbid that . . . [you] should sign those papers" Implicit in this warning under the circumstances is the clear threat of reprisal, and we so find. Accordingly, the Board's adoption of the Trial Examiner's recommendation for the dismissal of the allegations in the complaint respecting threats of economic or other reprisals relates, of course, only to other allegations which were not proved. 180 ,ECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organizations, to join or assist American Federation of Labor, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of 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, 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) Offer to Paula Davila Ramos, Matilde Fuentes, Carmen Gloria Quinones, and Benita Suarez immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimina- tion against them, in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." (b) Upon request make available to the Board or its agents, for examination and copying, all pertinent records necessary to analyze the amount of back pay due under this Order. (c) Post at its plant at Guaynabo, Puerto Rico, copies of the notice attached hereto marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Twenty-fourth Region, shall, after being duly signed by the Respondent's authorized repre- sentative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-fourth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola- tions of the Act different from those found in this Decision and Order, be, and it hereby is, dismissed. 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Ordei" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX A 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 : WARNER BROTHERS COMPANY OF P. R., INC. 181 WE WILL NOT discourage membership in American Federation of Labor, or in any other labor organization, by discharging any of our employees or by otherwise discriminating in regard to the hire, tenure, or any term or condition of employment of any of 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 American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to any seniority or other rights and privileges previously enjoyed, and we will make them whole for any loss of pay suffered as a result of the discrimination against them : Paula Davila Ramos Matilde Fuentes Carmen Gloria Quinones Benita Suarez All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of em- ployment or any term or condition of employment against any em- ployee because of membership in or activity on behalf of any such labor organization. WARNER BROTHERS COMPANY OF P. R., 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 STATEMENT OF THE CASE Upon charges duly filed by the American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, by the Re- gional Director for the Twenty-fourth Region (Santurce, Puerto Rico ), issued a 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint against Warner Brothers Company of P. R., Inc., herein called the Re- spondent, alleging that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges , complaint, and notice of hearing were duly served upon Respondent. With respect to the unfair labor practices , the complaint alleged, in substance, that since on or about November 12, 1953, by conduct specially pleaded Respond- ent interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and in violation of Section 8 (a) (1) thereof. The complaint further alleged that on or about November 20, 1953, Respondent discharged Paula Davila Ramos, on November 23, 1953, discharged Matilde Fuentes and Carmen Gloria Quinones , and on December 4, 1953, discharged Benita Suarez, and that all of said discharges were made because the named employees were members of and engaged in activities in behalf of the Union and because said employees engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection . After a request for an extension of time to file its answer, which was granted, a request for a bill of particular which was granted in part and denied in part by Trial Examiner Arthur Leff on August 3, 1954 , the Respondent filed its answer on August 12, 1954. By its answer it admitted its corporate structure , certain facts as regards its business operations, that it was engaged in commerce within the meaning of Section 2 (6) and (7 ) of the Act, and that the Charging Union is a labor organization within the meaning of Section 2 (5) of the Act, it thereafter specifically denied that it has engaged in any of the alleged unfair labor practices . As a further plea it alleged that the "Board has no jurisdiction in this case," and thereafter prayed that the complaint be dismissed. Pursuant to notice, a hearing was held in Santurce , Puerto Rico, on September 21, 22, and 23 , 1954, before the duly designated Trial Examiner , at which hearing all parties were represented by counsel . Full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence bearing upon the issues, and to present oral argument and briefs was afforded all parties . At the completion of the taking of testimony, and the parties had rested their respective cases, the General Counsel requested that the Respondent furnish him with the timecards of 25 of its employees for their entire tenure of employment. After full discussion on the record , the Trial Examiner agreed to adjourn the hearing sine die to permit the Respondent to prepare and present to the General Counsel the requested time- cards. At the same time the Trial Examiner agreed to accept them in evidence upon their presentation to him by the General Counsel as exhibits in support of his theory of the case, of which more anon below. The Trial Examiner also agreed to permit all parties to file briefs from a day certain predicated upon his formal order closing the hearing herein. Thereafter on or about November 4, 1954, the Trial Examiner received the exhibits referred to above and after marking them for identification as General Counsel 's Exhibits Nos. 19-A to 19-Y , inclusive, and 20, admitted them in evidence and issued his formal order closing the hearing herein on November 9, 1954. At the same time he granted the parties 20 days from the receipt of said order to file briefs in support of their respective positions. Only counsel for the Respondent took advantage of this opportunity , and a brief from him was filed with the Trial Examiner on or about December 20, 1954. It has been given due consideration. From his observation of the witnesses, and upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The record shows that the Respondent is a corporation organized and existing by virtue of the laws of the Commonwealth of Puerto Rico, with its principal office and place of business located in Guaynabo , Puerto Rico, where it is now and has been at all times material herein continuously engaged in the manufacture of brassieres as a wholly owned subsidiary of Warner Brothers Company of Bridge- port, Connecticut . In the course and conduct of its business operations at its Guaynabo plant it causes and has continuously caused materials , supplies, and equipment to be purchased , transported , and delivered in interstate commerce from and through States and Territories of the United States to its Guaynabo plant valued in excess of $200,000 annually, and causes and has continuously caused its entire output of finished materials , valued in excess of $300,000 annually, to be WARNER BROTHERS COMPANY OF P. R., INC. 183 sold, transported, and delivered in interstate commerce from its Guaynabo plant to and through States and Territories of the United States to its parent corpora- tion in Connecticut for redistribution to customers throughout the several States of the United States. In view of the foregoing the Trial Examiner is convinced and finds that the Respondent herein is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act; and that its business operations meet the standards recently an- nounced by the Board for asserting jurisdiction in the several States and Territories of the United States. II. THE LABOR ORGANIZATIONS INVOLVED American Fedeiation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Foreword As indicated above the Respondent is engaged in the manufacture of brassieres. At its plant in Guaynabo, Puerto Rico, as the Trial Examiner interprets the record, the parent company. Warner Brothers Company of Bridgeport, Connecticut, started its operations in Puerto Rico with the aid and assistance of the "Industrial Develop- ment Corporation of the Government of Puerto Rico," herein referred to as "Fo- mento." Its factory building is located about a quarter of a mile from Guaynabo. The building was elected by "Fomento," who in turn leased it to the Respondent. The factory building contains around 11,800 square feet and is approximately 120 feet wide and 90 feet deep. The building consists of one large room which houses the sewing machines and other necessary equipment required to operate the plant. The Respondent offices are located in a room partitioned off from the main factory. It commenced its operations on or about March 16, 1953. At the time it opened its factory "Fomento" assisted it in the recruitment of em- ployees. When the employees were hired they were given a 3-day training period without pay. Those that showed some promise were given regular employment. At the end of the first month the Respondent had around 50 employees. Month by month the number of employees increased until they numbered 168 in the spring of 1954. For the first 13 weeks of employment the employees were paid the mini- mum wage of 33¢ per hour or $13 20 per week. Thereafter they were expected to work on a piecework basis and required to produce so many tickets or dozens each day. If they produced more than the number of dozens set as a standard they were paid in excess of the minimum wage. In other words the more they produced the greater their hourly rate. The standards were set by the parent company, and similar to those established in its plants in the States. In the beginning supervisory employees from the States were sent to Puerto Rico to assist in getting the plant started and to instruct the new employees. At the time of the hearing herein the Respondent's supervisory staff consisted of Lloyd B. Walker, general manager, Rosita Mendez, production manager, Luz Had- dock, manager in charge of quality, and Lily Vego and Carmen Veley, supervisors in charge of training. Before Walker became general manager one Asuncion Aponte was in charge of the plant. The record also shows that one Victor Martinez was a supervisory employee, and at times is referred to in the record as "Assistant Manager." A. The discriminatory discharge of Paula Davila Ramos The record clearly shows that Paula Davila Ramos, herein referred to as Davila, was the moving force behind the events which concern us herein. She was, to say the least, a most controversial person. Davila was one of the first employees hired by the Respondent when it opened its plant in Maich 1953. At the time she was hired she had had considerable experi- ence in the garment industry The record clearly shows that she was a skilled and productive worker. Her production record was outstanding There is little, if any, controversy in the record on this score. From the time she entered the Respondent's employ up to the date of her discharge, November 20, 1953, she busied herself with the affairs and grievances of her fellow workers. Since she had had experience in the needle trades she knew something about the production standards established by the Respondent, and the distribution of the workload amongst the employees Dur- ing her employment she worked on operations 15-16 As the Trial Examiner sees it the employees complained to Davila from time to time that the production stand- 379288-56-vol. 113-13 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ards established by the Respondent were too high. The gist of their complaints was that as their pioduction rose, their quotas were increased accordingly, until it was almost impossible foi them to rise above the minimum standard, which consequently made it most difficult for them to earn more than the minimum wage, $13 20 per week. Davila complained to management and requested her supervisors to adjust the situation. The record indicates that her efforts were not in vain and that at least on one occasion the Respondent made an adjustment as regards the distribu- tion of work on operations 15-16 and endeavored to set the quotas of the employees on that operation on a reasonable basis. Such activities on the part of Davila even- tually led to some friction between herself and Rosita Mendez, production manager, of which more anon. Davila had two periods of employment with the Respondent. She testified that she was first hired by the Respondent on March 24, 1953. At the time she apphed for employment she was interviewed by Asuncion Aponte, then assistant manager- what transpired at that time is best told in Davila's own words, consequently her testimony in this regard follows below. Q. Will you kindly tell us about the conversation the day you were first hired, Mrs. Davila? A. When I got to the plant for the first time, they called you in always to fill out some papers and they asked some questions. He asked me if I spoke English, and I said no How many children I had, and I told him how many I had, and he asked me about other dependents I had. Then I asked him if I could ask him some questions, and he said yes. I asked him if that company gave, or if the operators had a right to vacation with pay, and he said yes, after a year. I asked him if we could organize a union, to which he replied that that was not necessary because that company was going to work on the basis of minutes Q. Will you explain that? Can you tell us what you understood by that? A. I asked him what that meant and he replied that the company had a method of giving us a package of brassicies which we had to do or complete in 14 min- utes. And, for example, if we arrived one minute after eight o'clock there would be a deduction of three to four cents by the company That was in order that the operators should arrive at the factory at the indicated hour, on time. Q. What was his answer to your question as to whether you could form a union? A. That we should not insist on that business of the union because the com- pany would be annoyed about that, and that it would look bad, and that if on entering the job a worker should ask such questions, right at the start; that the company was operating in the very best faith in the Island, with the hope that the operators would make money, and that he hoped that all of the girls would understand the situation and have good relations, because he would not like to have trouble of any kind. The Respondent did not choose to call Aponte as a witness on its behalf, nor was any showing made at the hearing herein that he was unavailable as such. Hence Davila's testimony in this regard stands uncontradicted and undenied in the record. She impressed the Trial Examiner most favorably as an honest and forthright wit- ness In the circumstances the Trial Examiner credits her testimony in this regard in its entirety. We now come to the events surrounding the termination of Davila's first employ- ment with the Respondent. She testified that sometime in the early part of August 1953, she developed a serious eye condition. She informed both of her immediate supervisors, Mendez and Haddock, of her condition and they suggested that she consult an oculist. She took their advice and went to the Optico Periz The oculist advised her to rest for a few days and fitted her with glasses. At about the same time she met a fellow employee, one "Joe," an American employed by the Respondent as a mechanic in the Alamo drugstore, and asked him to tell her superiors that she would be away from work a few days The record is not too clear as to who "Joe" was nor is there any substantial evidence that "Joe" ever delivered the message. In any event Davila was away from work for about 3 days Upon her return she found that her card had been pulled out of the rack. She then went into the office and saw Aponte, at the time, manager of the plant. She asked him about her card and he told her, in substance, that her services were no longer required and that the reason for the Respondent's action was because she had violated its 3-day absentee rule. She protested and attempted to explain to him that her absence was due to illness. She also told him that she had sent word by "Joe." Her protests were in vain and she then left the plant. WARNER BROTHERS COMPANY OF P. R., INC. 185 The Respondent contended at the hearing herein that Davila quit her job in August 1953. In support of its position it offered the testimony of Lloyd B. Walker and Rosita Mendez. Both insisted in their testimony (most emphatically), on both direct and cross-examination, that Davila quit her lob in August 1953 and that she of her own free will voluntarily walked off the job. But their testimony in this re- gard does not "jibe," so to speak, with the Respondent's own personnel records. Davila's record was furnished the General Counsel by the Respondent at the hearing herein. It was admitted in evidence without objection. The exhibit is set forth in its entirety below: This girl was hired on March 24, 1953; after receiving three days basic training. She was assigned to operation #15, which is net-face around. She proved to be a good learner, followed instructions accordingly and was able to learn her operation quite well. She was above average in her work and below average in her disposition toward the company's policies and regulations. In different occasions she showed resentfulness. In one instance, when one of her co-workers was put on the floor, as a floor girl. She went home and was absent for a couple of days, without notifying the office. A few weeks later another operator in her section, made a small amount of money more than she did and she was furious with her, up to the extent that she threatened her, that she was going to do bodily harm on her. That day because of the commotion she created she was fired. That was in August 7. Sometime in September she sent word with another girl, that she wanted to come back to work with us The supervisors passed the message on to the management. We thought that by this time she would behave in a more agreeable disposition and another opportunity was given to her. She was hired again on October 2, 1953. This girl was given all these opportunities because she was a good operator on the machine despite the fact that she was very hard to handle. At this time that particular operation was very slow and we needed the work and were working overtime for a few weeks. When the work was normal again, we noticed a slow-down of her production. This fact can be proven from our pro- duction records. The results of a slow-down are as follows: forces us to take the operators from another operation, in order to make-up the difference from the lack of production. Also causes the operators on the next operation to lose time from work. She also claimed that day that another operator, #52, was doing all the small sizes while she was doing all the big ones. This took the supervisors a good deal of time to check a whole week's production and prove her how wrong she was. For these reasons alone plus her past record caused her dismissal. [Emphasis supplied.] (Signed ) LLOYD B. WALKER, Manager. (Signed ) R. S. MENDEZ, Supervisor. (Signed) Luz CH. HADDOCK, Supervisor. It is interesting to note that both Walker and Mendez signed the exhibit. The other signer, Luz Haddock, one of the supervisors, was not called as a witness by the Respondent nor was there any showing made at the hearing herein that she was unavailable as such. In the circumstances described above the Trial Examiner credits Davila's account of the events that led up to her discharge by the Respondent on August 7, 1953. The testimony of Walker and Mendez before the Trial Examiner when considered in the light of the Respondent's own records, compels such a finding. Davila was rehired by the Respondent on or about October 2, 1953. Her testimony in this regard is set forth below. The Trial Examiner feels that since there is a most serious problem involved herein as regards the credibility of the witnesses, who appeared and testified under oath before him, that the best way to inform all parties as to his reasons for resolving this issue, as he does below, that on occasion the language of the witnesses themselves present the picture and the impression that they made upon him at the time they testified. At this time the Trial Examiner feels compelled to say that Davila impressed him most favorably. There was a sincerity in her demeanor that impressed him deeply. He is convinced from this observation that she was an inherently honest person, and that her activities during her tenure of employment with the Respondent were for the most part for the benefit of others rather than for herself. Though such a 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedure may seem to some to be burdensome and redundant , nevertheless the Trial Examiner feels that all concerned should be informed as to the "why," so to speak, of his findings above and below. As he sees it fairness demands such a procedure. Q. Now, did you go back and ask for work at Warner's, or how did it happen that you went back there to work, will you tell us? A. Well, there was a girl by the name of Lalin. I don't know what her full name is, but they call her Lalin, and she asked me if I was working and I told her that I was not. Then she asked me why I didn't go back to the factory again. I told her that I wouldn't go because they had taken the time card away from me. Then about a week later I met her again and she told me that Miss Haddock had sent word to me. TRIAL EXAMINER: That who had sent word? Mr. RoTOLO: Miss Haddock, one of the supervisors. A. (Continued.) She said she sent word to me to go to see Mr. Walker at his office. That was on a Wednesday. Q. Did you go to the factory? A. Yes, I did. Q. Did you talk with Mr. Walker? A. Yes. He was in the office alone. Q. Tell us the conversation you had at that time? A. Well, he asked me if I wanted the job again and if I was willing to work for him, and I told him yes, because I didn 't have any problem with him be- cause he was a nice person and treated the operators well. I told him that I had no objection to working for him again . Then he asked me if I could go the next day, and I said no, that I couldn't , but that I could go the next Monday. Q. And did you go back the next Monday? A. Yes, I did go back. Upon her return to work she was reassigned to sections 15-16. Her relations with her supervisor, Rosita Mendez, are well described in her testimony. Q. And what were your relations with Miss Mendez on that occasion after you started working again with Warner Brothers? A. Well, she was all right with me for about a week only. Q. For only a week? A. Yes. Q. And what happened after that first week? A. She always persecuted me. I couldn't get together with the girls and talk to them, and she would say that if I had come back to the factory to work that I should do so without making any comments with the girls. I would answer her that that was inevitable because the girls would sympathize with me, and I with them also, and they would call me. TRIAL EXAMINER: What do you mean by "sympathize"? WITNESS: Well, you see, when I arrived at the factory I would say "Hello, girls," and the girls would say "Here is Dona Paula" and they would come around me. TRIAL EXAMINER: All right, proceed. Q. Now, these gatherings that you had with the girls, were they during work hours or during rest periods or the lunch hour, or on what occasions? A. No, they were outside of working hours. Q. In the plant? A. Yes, in the plant, but in the recess periods. On November 20, 1953, Davila came to work at around noon. When she entered the factory she had with her a copy of "El Mundo," a newspaper published in San Juan and widely read throughout the Island. It was lunch time. The employees were at ease. As she entered she called them around her. What happened is like- wise best told in her own words. Q. Now, when you went to work on the afternoon of that day, during the lunch hour, did anything unusual happen in the plant? A. Well, I arrived there about twelve-thirty. I was carrying a newspaper of the day before, which was the 18th or 19th. TRIAL EXAMINER That would he of November 1953? WITNESS: Yes, of November, 1953. Q. What about this newspaper, proceed. A. Well, in those days they were announcing on the first page of the news- paper that Mr. Dubinsky would arrive there. WARNER BROTHERS COMPANY OF P. R., INC. 187 Q. Did the paper say who Mr. Dubinsky was? A. The organizer of the union. Q. What did you do with that newspaper? A. Well, I arrived there as happy as a boy at Christmas, and I said to them: "Come over here, girls, because God has come to see us. There will be no more problems here in the factory. This American is coming down to organize the needlework industry and we will soon get away from the $13.00." The newspaper said that he would be staying in the Hotel Condado, one of the hotels here, and that anyone who desired to have an interview with him on his arrival, should send him a post card. So I said to the girls: "How many of you girls would like to go with me on a committee?" Then Matilde Fuentes seconded the proposal and Mrs. Carmen Quinones, and the other girls who were there, who said that wherever I went with respect to the union they would follow me. So we agreed on that, and then we began to laugh and talk, enjoying the news. In that moment Mrs. Mendez was having her lunch near the inspection table or bench. Q. Was that in the same room? A. Yes, in the same room. I wasn't afraid of talking about these things in the same room. Q. How far would you say Mrs. Mendez' inspection desk or table was from the place where you gathered with these girls, more or less? A. About from here, for instance, to the wall outside, across the hall. TRIAL EXAMINER: We said before about 35 feet. According to Davila and other witnesses, whom the Trial Examiner credits, there were about 40 employees gathered around her when she addressed them. During the course of the "conversation" Rosita Mendez left her desk, which as indicated above was about 35 feet from where Davila was standing, and came to her and inquired as to the cause of the "commotion." Davila asked her to participate in the discussion if she cared to do so and then gave her the paper to read. At about this time the bell rang and the employees returned to their working places. Davila's account of her address to the employees was corroborated by the witnesses, Matilde Fuentes, Carmen Gloria Quinones, and Aglae Rodriquez De Arroyo. The Trial Examiner credits their testimony in this regard. The day was Friday, November 20, 1953. According to Davila she returned to her machine and resumed work. At the recess period, 3 p. in. the girls gathered around the "Coke" machine and exchanged pleasantries and the like. On this occa- sion there was an exchange of little gifts between the employees and a fellow worker who was leaving the Respondent's employment. The recess period over the em- ployees returned to their machines. At around 3.30 the paymaster appeared. What happened thereafter is best told in Davila's own words. Her testimony in this regard follows below: Q. All right, now tell us what happened when this paymaster came around as you have stated? A. Well, he gave me my envelope, which I opened, and I was very happy because that week Mr. Walker had paid me at the rate of 50 cents an hour. Q. Yes. And what happened? A. I was showing the ticket to the girls and saying to them: "Look , girls, work hard and try to produce as I produce so that when this day arrives, pay day, you will be satisfied too." Then at that moment there was an inspector from Bridgeport. I was humming a dance tune, and I saw Mr. Walker there with this inspector, and this man told me: "Go ahead and sing. Where there is song, the atmosphere is good." But when I looked at Mr. Walker I found him so strange and different from his usual self. He was not in his usual mood, because he is always so nice to us. I was surprised because he was always nice to me. He didn't say anything good about my singing, and he used to give me compli- ments when I sang. So I told Carmen, who used to be the fellow worker next to me- Q. Carmen Quinones? A. Yes, Carmen Quinones. I said to Carmen: "This gentleman who is here on a visit must have found our work unsatisfactory, because I see that Mr. Walker seems angry." Then Carmen said: "I don't know, Dona Paula." Then the two of them left for the office and Mrs. Mendez came to me and told me to go to Mr. Walker's office. I got up and even left my machine still running, because I couldn't imagine what it was all about. When I arrived there I found Mr. Walker seated at his desk and Mr. Martinez beside him. I was surprised to see him so red faced, because it appeared to me he was in a state of nerves. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Then Mr. Walker, the only thing he told me . well, he actually didn't tell me, it was Mr. Martinez who told me, since he doesn't speak my language nor I his. But he told me to punch and leave because that was my last week there. I was very surprised. Then Mr. Walker told Mr. Martinez to write up something, some note, so I went back to my machine without asking permission from Mr. Walker When I sat down and started to give some money that I had to give to the girl beside me, and to finish a cup that had fallen behind the needle in the machine, and clip the tickets together with a rubber band, Mr. Walker came out of the office, but going like the wind, and he came to me in a very angry atti- tude, and with Mrs. Mendez at his side, he said to me some of the few words he has learned in Spanish. He said: "No mas, no mas, out." I told him: "Be calm, Mr. Walker." Then Mrs. Mendez told me- "Paula, get up, he doesn't want you to operate that machine any more." I told Mrs. Mendez that I could not leave my things behind and that I had to pick them up. Then Mr. Walker grabbed the tickets from my hand and stopped the motor of my machine, and he made me get up in that attitude, something for which I didn't blame him because he didn't speak my language, and I believe it must have been Mrs. Mendez who had told him something and put me in bad with him. He didn't speak my language and I couldn't speak his so I couldn't explain anything to him, and he couldn't tell me anything. I was suffering because I could not explain to him or discuss with him the problems of the factory. Davila's account of Walker's conduct was corroborated by the testimony of the witnesses, Matilde Fuentes and Carmen Gloria Quinones. For reasons set forth below the Trial Examiner credits their testimony in this regard. Davila further testified that she had the following conversation with Mendez at the time of her discharge, in regard to certain papers she was requested to sign by Walker. Q. Who was there when you went back to the office? A. When I got up from the machine and was about to leave, Mrs. Mendez said: "Don't go, you have to go to the office and sign some papers there. This all happened because you are mixed up in these union matters, because almost always unions end by keeping the money of the workers. So this is your last day here. Go in and sign those papers." Then I went to the office and there was a paper that Mr. Martinez had written, and the paper that I read said as follows: . . . Can I state what was in the paper? Q. Tell us what you remember reading in the paper. A. It said something like this: "We have been forced to dismiss Mrs. Paula Davila today, the 20th of November, because she is a danger for the factory where she forces the workers by her attitude to reduce their production." They gave me that to sign, and I said I wouldn't sign it because it was not true. Q. Did Mr. Walker tell you anything at that time? A. No. He told me that if I didn't want to sign it, all right, but that he would sign it and Mrs. Mendez and Mr. Martinez also would sign it. I didn't sign it. Shortly after her conversation with Walker and Mendez, Davila picked up her belongings and left the plant. Her activities thereafter on behalf of herself and fellow employees will be discussed and disposed of below. The Respondent's position is that Davila was discharged for just cause. As indi- cated above its answer was in effect a general denial of each and every allegation in the complaint insofar as it related to violations of the Act. Such a pleading is permissible under the Rules and Regulations of the Board. For generations it has been recognized that a charging party, be he called "Plaintiff" or "General Counsel," must prove his allegations by a preponderance of substantial evidence when considered in the light of the "whole record." There is no essential difference between cases tried before a Trial Examiner of the Board and a jury, except 1 man instead of 12 is the "trier of the facts." Conscious of this responsibility the Trial Examiner now proceeds to examine the testimony of the Respondent's witnesses in such a "light." Lloyd Walker, the Respondent's general manager at all times material herein, testified in substance as follows as regards Davila's discharge. At the onset of the hearing herein the General Counsel called Walker as a witness under Rule 43 (b) of the Federal Rules of Procedure, for cross-examination. The gist of his testimony follows below. Close and careful examination of Walker's testimony convices the Trial Examiner that his reasons for the discharge of Davila fall into two categories: (1) that she WARNER BROTHERS COMPANY OF P. R., INC. 189 was a troublesome and aggravating person; and (2) that she engaged in a "slow- down" during the last week of her employment. Mendez' testimony corroborated Walker's in this regard. Let us again look at the record. Walker admitted time and again in his testimony that Davila was an efficient employee, and that her production was above the average. He likewise admitted that she had protested the working conditions of her fellow employees, but denied that she had been successful in her efforts. A typical example of his testimony in this regard is set forth below: Q. Particularly, can you mention any supervisor that she was having any dif- ficulty with? A. I would say Miss Rosita Mendez, Miss Luz Haddock, Miss Anne Spizak, Miss Sally Mockedicius. Those are some of those I know definitely she had difficulties with. Q. When did these difficulties begin? A. Within two to three weeks after she was employed. Q. What was the nature of the complaints that you received, if any, from the supervisors that you have mentioned concerning Miss Davila') A. Generally not conforming to the rules and regulations set down, ob- jecting to our policies and training. Q. Isn't it a fact, Mr. Walker, that she complained about the high standard you had set for the production in these operations 15 and 16? A. To me, formally, no. Q. To her supervisors? Isn't that one of her complaints? A. Possibly, yes. Q. And isn't it a fact that as a result of these constant complaints Miss Davila was making and those of the other girls, did you reduce this high standard that you had set9 A. We did not. Q You maintained the standard of 42 dozens constantly during 1953 on operations 15 and 16? A. On operations 15 and 16, as I remember, to earn 33 cents an hour mini- mum they still had to produce between 40 and 42 dozens. Q. You never reduced it' A. No. Q. Now, were those complaints being made only by Miss Davila or by the other workers in that operation, about their inability to produce this standard you had set? A. I think Miss Davila was the only one who complained. Q. None of the other girls complained? A. I haven't heard any other complain. In the main Mendez' testimony consists of flat denials of that of Davila, and all other witnesses called by the General Counsel Since the Trial Examiner con- siders Davila's speech to the employees during the lunch hour on November 20, 1953, as the key to his ultimate disposal of the issues herein, he shall devote a considerable portion of this ieport to an analysis of Mendez' testimony in this regard. Careful examination of her testimony convinces him that here likewise the parties should be reinformed by an excerpt from her testimony as it appears in the official transcript of the record: Q. Now calling attention to November 20th, do you recall anything un- usual, any unusual gathering, at lunch time or just prior to their going back to work after lunch on that day? A. No, nothing. Q. Do you remember on November 20th if Paula Davila had any copy of a paper, El Mundo? A. I haven't seen it. Q. Did she at any time on that day throw it on the table and say: "Read it" or "Look at it"1 A No Q Did you ever, at any time as long as you have been working see Paula Davila with a copy of El Mundo which she showed to you or threw on the table'1 A. No Q Did she ever at any time say anything to you about a union? A. No Q Did you ever discuss the question with her at any time? A. No, never. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you ever make a statement at any time that she was number one? A. No. Q That one of the other girls was number two, which would be Carmen Gloria Quinones, and that Matilde Fuentes was number three? A. I have never made that statement. Q. Did you ever make the statement that they were the ring leaders of the union and you were going to get rid of them, or words to that effect? A. Never. Further on in her testimony she testified in substance that nothing of an unusual nature occurred on November 20, 1953. According to her testimony she was eating her lunch at her accustomed place at the time Davila made her speech to the as- sembled employees in regard to Dubmsky's proposed visit to the Island, and that she neither heard Davila's remarks nor had any conversation with her at the time. Faced with such a flat denial of the testimony of Davila, and other witnesses, the Trial Examiner must turn to the whole record to resolve this issue as to the credibility of the witnesses. After due and careful consideration he credits the testimony of Davila, and other witnesses called by the General Counsel. Persuasive factors in this resolution have been: (1) Davila's demeanor; (2) the inconsistency of the testimony of both Walker and Mendez as regards the circumstances under which Davila left the Respondent's employment in August 1953, and (3) the demeanor of both as they testified before him at the hearing herein Quite frankly the Trial Examiner is convinced that neither of them gave a true account of the events with which we are concerned herein in their testimony before him. In such circumstances he has resolved the issue as to the credibility of the witnesses on this score. We now come to the contention of the Respondent that Davila was discharged be- cause she engaged in a deliberate "slow-down" in her production during the last week of her employment. In resolving this issue, that is as to whether or not she did engage in such a course of conduct, the Trial Examiner directs attention to the testi- mony of General Manager Walker, wherein he testified that at about the time Davila was rehired there was a "bottleneck," so to speak, in the production lines of depart- ments 15 and 16, and that in order to correct this situation the employees in those departments were required to work overtime to get the production of the entire plant back in "balance." Verbatim his testimony in this regard was as follows, ". . . It was necessary to work overtime to pick up the production and have it flow.. . A careful study of the record convinces the Trial Examiner that production in depart- ments 15 and 16 were back in line as of the week Davila was discharged. At the hearing herein the General Counsel offered in evidence an analysis of the production record of all employees in departments 15-16. It was admitted without objection by the Trial Examiner. After long and careful consideration the Trial Examiner is con- vinced that it should be made a part of this report. Consequently it is attached hereto in its entirety marked "Appendix A." Conclusion as to Davila After due consideration the Trial Examiner is convinced that Davila was dis- charged because she engaged in "concerted activities" on behalf of herself and her coworkers. Her speech to the employees concerning the contemplated visit of Dubinsky to the Island was the "disturbing factor" that caused her summary dis- charge. The record clearly shows that she was discharged within the "hour," so to speak, after she spoke to her coworkers. There is little if any dispute that she was from the beginning active on behalf of her fellow workers. She was experienced in the trade and her production was far above the average.' There is no question about her legal rights to engage in such activity. That is so well settled that extensive com- ment herein would be sheer nonsense. As regards her activity on behalf of the Union the record is not too clear in this re- gard as of the time of her discharge. Thereafter her activities are well established in the record. They of necessity will be discussed below. In his brief counsel for the Respondent points out that Dubinsky's contemplated visit to Puerto Rico was related to matters other than union affairs. He refers specifically to the edition of "El Mundo," and points out in substance that Dubinsky's visit was concerned with the industrial development of the Island, rather than "Union i See Appendix A The Trial Examiner has attached only a part of the exhibit as Appen- dix A, the weeks from October 2, 1953, to the time of Davila's discharge The only pur- pose of the Appendix is to show the "flow of production" in departments 15-16 during this period. WARNER BROTHERS COMPANY OF P. R., INC. 191 affairs" as such. That may be true. A copy of the edition of "El Mundo" is not before the Trial Examiner. Suffice it to say that Davila, as an experienced worker in the needle trades industry, was well acquainted with Dubinsky's role on behalf of those employed therein. Neither the Trial Examiner nor any trier of the facts can close his eyes and ears to matters which are of notorious and public knowledge. It would be, so to speak, to say that such a controversial figure as John L. Lewis never existed. In the circumstances the Trial Examiner rejects the Respondent's contention in this regard. A further factor in the Trial Examiner's findings as to Davila in addition to the suddenness of her discharge was the testimony of Quinones and Fuentes which will be discussed in full below. The Trial Examiner is convinced and he so finds upon the record considered as a whole, that Paula Davila Ramos was discharged by the Respondent on November 20, 1953, because she engaged in protected "concerted activities" on behalf of her- self and fellow workers. Also because she on the date of her discharge had the effrontery to urge her fellow workers to appeal to "Dubinsky" to adjust their griev- ances. The events thereafter will be fully described below and justify such a finding. The Trial Examiner has carefully considered the Respondent's position. He has read its brief. He has weighed the evidence. He realizes that an employer has the right to discharge an employee for any reason, except for the reasons set forth in the Act. But where as here he has found that the Respondent's reasons for the discharge of Davila (and others below) were mere pretext and not the true reason for such action, then he agrees with the Board in a recent case, where it said: 2 The Trial Examiner indicated that there may be "some grounds for believing Wojohn was discharged for minor inefficiencies." We disagree. Assuming arguendo that the Respondent had justifiable cause to discharge Wojohn for minor inefficiencies in his work performance, it is apparent, and we find, that this was not the motivation for the Respondent's action. The mere existence, more- over, of a valid reason is no defense to a discharge which, as here, was moti- vated by antiunion considerations. [Emphasis supplied.) So is it here, the Trial Examiner finds that Paula Davila Ramos was discharged by the Respondent on November 20, 1953, because she engaged in concerted activities on behalf of herself and fellow workers, and that by such conduct the Respondent herein violated Section 8 (a) (3) and (1) of the Act. B. The discriminatory discharge of Carmen Gloria Quinones Carmen Gloria Quinones, herein referred to as Quinones, was hired by the Re- spondent in June 1953. Prior thereto she had had some experience in the trade with the Jem Manufacturing Company in Bayamon, a small town near San Juan, Puerto Rico. For the most part her employment with the Respondent was in operations 15-16-the same department and section where Davila was employed. Her production record is set forth in Appendix A. As indicated above in that sec- tion of this report concerning Davila, Quinones was an active supporter of Davila in the latter's efforts to encourage concerted action by the employees in the plant to better their working conditions She was present at the time Davila made her speech to the employees on November 20, 1953. Moreover, credible evidence in the record shows that it was she along with Matilde Fuentes who seconded Davila's proposals on that occasion and urged united action by the employees to present their problems to Dubinsky. Her testimony in this regard follows below: Q. Now, what was the discussion that you had with Paula Davila on that day? A. Mrs. Paula Davila came to work at about twelve-thirty, around noon. She brought a newspaper with her in which there was an article about a Mr. Du- binsky, an American who was coming down to Puerto Rico to organize the needlework industry. She was quite happy, and she called us and we all got together with her, and then she stated openly: "How many of you are ready and willing to form part of a committee to visit that gentleman, or to write to him, and if you are the ones to follow, you are the ones to sign. The ones that are willing to go, let's go." Then Matilde Fuentes and myself seconded her to do either one thing or the other, either to go there in a committee to see this gentleman, or to write to him. Q. Were you the first one to second the proposal of Mrs. Davila? A. Yes, sir. 2 See The Plastic Holding Conipa'ny, Inc., 110 NLRB 2137. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And then Matilde Fuentes? A. Yes, sir. Q. Who else seconded her? A. Well, openly, nobody else. Quinones futher testified that among those present at the time Davila made her speech was one Isabel Reyes. The Trial Examiner considers this of some importance. Reyes was a floor girl. Her duties were to distribute the work to the employees. A resume of her duties and potentialities are best told in the testimony of her superior, Lloyd B. Walker. Q. What would you say the duties of those floor girls would be? A. The main duty of the floor girl is to service the operators. Q. In what way? A. To hand out work and to pick up work. Q. Do they check quality of work? A. On occasions they are required to check quality, yes. Q. Do you consider them as supervisory employees in the sense that they responsibly directed the work? A. They were potentially supervisory personnel. We developed them. Q. But they were not considered supervisors in the sense that they were re- sponsible for the production and quality of the work? A. Mrs. Mendez was in charge of production, and Mrs. Vega, quality. Q. Would you consider the floor girl as an assistant to Miss Mendez or Miss Vega? A. Yes. As the Trial Examiner sees it the Respondent rests its case on the theory that it had no knowledge of the activities of Davila, Quinones, Fuentes, and Suarez. The answer to that denial of necessity must rest upon the testimony of all witnesses, that is the record "considered as a whole." This position requires examination of the record. Mendez, at the time of Davila's speech, was seated some 35 feet away from where the employees were assembled. Her testimony in this regard was to the effect that she neither heard Davila, nor paid any attention to the commotion of the em- ployees who surrounded Davila, at the time the incident occurred. As the Trial Examiner interprets the record as a whole, Mendez' testimony in the final analysis adds up to this: (1) That such an incident did not occur; (2) if it did she was uncon- scious of it; and (3) that she at no time ever commented to any of the employees under her supervision in this regard. Quite frankly the Trial Examiner does not credit her blanket denials. On the contrary he credits the testimony of each and every witness called by the General Counsel, who testified before him under oath at the hearing herein. It must be remembered that the factory building, where the Respond- ent's operations were confined to, was 120 feet wide and 90 feet deep with an office partitioned off from the main floor near the entrance. In such circumstances the Trial Examiner simply cannot accept Mendez' flat denial that the Davila incident never occurred. In the circumstances the Trial Examiner credits Quinones' account of her discharge, which follows immediately below. Q. Did you report for work as usual on Monday morning, November 23d? A. Yes, sir. Q. What happened at the time you reported to work on Monday morning? A. Well, I went in as usual and started to work I had already completed two packages of work when Mrs. Mendez came and told me that Mr. Walker wanted me in the office. I got up and left my work and went with Mrs. Mendez to the office. Q. Did you have a conversation there with Mr. Walker? A. Yes, sir, through Mrs. Mendez. Q. You don't know how to speak English, do you, Miss Quinones? A. No, sir. Q. And Mrs. Mendez was acting as interpreter for Mr. Walker and yourself? A. Yes, for both of us. Q. Now, what did Mr. Walker tell you at that time through Mrs. Mendez9 A. She asked me if I had noticed the benefits that the Guaynabo women had had ever since the moment that the factory started working there, and if I noticed how they used to dress before and how they were dressing now. I answered that I did not live in Guaynabo, but that I was living in Rio Piedras, and that when I came to work I brought my lunch along to eat in the factory, and I didn't go out to Guaynabo or anywhere I didn't have to go in to Guaynabo. He also asked me if I had any place to go to work if I left that factory. I an- WARNER BROTHERS COMPANY OF P. R., INC. 193 swered that I didn't because I had worked formerly in the Jem Manufacturing in Bayamon. Then he asked me why I had left the work in that factory. I answered him that I was going to have a baby and I couldn't continue working, because it was well advanced . I quit because I was unable to find somebody to take care of in,,, child and couldn't go back to work in Bayamon. He asked me then who was taking care of the baby while I was working with Warner Brothers, to which I replied that nobody was, and that I was working because the child had died. Then he asked me if [ could repeat the words that he had said to me, to the other girls in the factory. Q. What words, about your child, or anything else? A. About the benefits that we had obtained from working there, and that business conditions had improved in the town of Guaynabo because of the money that the girls were making in that factory. Q. What did you answer to that? A. Then I answered him that he, as the boss, just the same as he had called me to the office, should call them into the office also, because they would pay more attention to him than to me, because I had seen during the time I had been working in the factory that the women of Guaynabo were very proud of the way they dressed, and because of the fact that I was not from Guaynabo myself, they might think I was an intruder, a buttinsky, and they might get angry at me, thinking that I would be saying that they did not dress well before the factory was established, if I told them that they were dressing better since it was opened. Then Mrs. Mendez asked him whether I was going to remain in the factoryf or if I was leaving. Further on she testified as follows: Q. What did you understand Mrs. Mendez to ask Mr. Walker? A. She told me that he had told her that he didn't want me in the factory any more, since I had started to follow in the footsteps of Mrs. Paula Davila in these matters of the union, and that these things were not convenient for them, and that 1 should punch my card and go and come back the next week on Friday to get my money for the week before. That they had already gotten rid of the leader No. 1, which was Paula Davila, and that now they were getting rid of me, who was No. 2, and that they were looking for Matilde Fuentes, who was No. 3, and that they would send to her home for her and fire her. Q. Did you leave the factory right away then? A. I became nervous and I could not'go to the office to look for my purse and lunch box, so then Mrs. Mendez went and brought me my things, and the tickets she gathered up herself and put them in the envelope where we usually put them, and she herself punched out my card, and then I left. I gave my ad- dress to Mr. Martinez so that he should send my pay envelope to my home. The Trial Examiner readily admits that he has quoted extensively from the rec- ord, however he knows of no better way to convey to all parties his resolution of the issue as to credibility which certainly is the key to the solution to the allega- tions in the complaint Unquestionably it is a difficult and thankless task. But such issues must be resolved in the light of the whole record. That task he accepts and answers below. He refuses to make findings by lifting a sentence here and there out of context.3 It is for that reason that he has quoted so extensively from the record. In further justification of its position as regards the discharge of Quinones, the Re- spondent at the request of the General Counsel, presented to the Trial Examiner the following, which was properly identified and admitted in evidence. The exhibit sets forth the Respondent's position as regards the discharge of Quinones: WARNER BROTHERS, INC. PUERTO RICO. Re Carmen Gloria Quinones This girl was hired on June 9, 1953; after receiving three days basic train- ing, and was assigned to operation # 15, which is net-face around. She had a hard time learning and had to rip and repair a good deal of work. Then she learned her operation quite well and was just average. She participated on the slow-down of production together with Paula Davila. This fact can be proven from our production records. The results of a slow- down are as follows: it foices us to take the operators from another operation, 8 See Ohio Associated Telephone Company v. N. L R B., 192 F. 2d 664 (C. A. 6), setting aside 91 NLRB 932. Hunkin-Conked Construction Co., 100 NLRB 955. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in order to make-up the difference from the lack of production. Also causes the operators on the next operation to loose time from work. This causes a lot of changes in the daily routine of work and breaks one of the regulations of the policies of the company. For this reason alone was this girl dismissed. (Signed ) LLOYD B. WALKER, Manager. (Signed) R. S. MENDEZ, Supervisor. (Signed ) Luz CH. HADDOCK, Supervisor. The Trial Examiner is convinced that when the above is compared with Appen- dix A; his observations and findings above as regards Davila; and that his ultimate conclusions below are justified when considered in the light of the whole record. Conclusions as to the Discharge of Quinones For the same reasons that he has thoroughly discussed above in the case of Davila, the Trial Examiner is convinced and finds that upon the entire record that Quinones was discharged by the Respondent because she publicly and openly supported Davila in her concerted activities on November 20, 1953. Consequently he finds that she likewise was discharged by the Respondent herein because she engaged in a course of conduct that the Act permits. That is, she exercised her statutory rights under Section 7 of the Act. The Respondent's true motive for discharging her was for precisely that reason. In the circumstances, the Trial Examiner finds that the Respondent discharged Quinones because she exercised her rights under Section 7 of the Act, and that by such conduct it violated Section 8 (a) (3) and (1) of the Act. C. The discriminatory discharge of Matilde Fuentes Fuentes was hired by the Respondent at about the time it opened its plant in Guaynabo, March 27, 1953. She first worked in operation 7, but later was assigned to operation 5. The conversations surrounding her discharge paralleled those of Davila and Quinones. The record shows that she was in attendance at the time of Davila's speech. It was she who seconded Davila's proposal that the employees contact Dubinsky upon his arrival on the Island and take concerted action to correct their working conditions. Her account of the events that led up to her discharge was in substance as follows. She testified that she was present at the time Davila made her speech, and that she along with Quinones had openly agreed with Davila's proposals. She became ill on Friday after her return from work and was hospitalized for a short time. On Monday, November 23, 1953, she did not report for work. Mendez sent for her. She arrived at the plant at about noon. Upon her arrival Mendez came to her and according to Fuentes, in her testimony before the Trial Examiner, the following conversation occurred: Q. And did you have a conversation with Miss Mendez at that time? A. Yes. Q. Tell us what happened? A. I told her: "Miss Mendez" . that is, we are not in the habit of calling her Miss Mendez. We called her Dona Rosita. So I said, "Dona Rosita, what do you want me for." Then she told me: "I am not the one. It is the American; but look, Matilde, I am so very sorry, because you are such a good girl. You are a good worker, and I am very sorry, but it has to be done. Go and see Mr. Walker, because we have already got rid of the leader No. 1, which was Paula, and the leader number 2, which was Carmen Gloria, and there was lacking only yourself, number 3. He told me also . . Mr. FRANCO: There is no question pending. If the witness will give us time, we will object. TRIAL EXAMINER: There is no question pending. Ask the witness if she was relating to the conversation she had with Miss Mendez? WITNESS: Yes. TRIAL EXAMINER. It was all part of the conversation? WITNESS' Yes. WARNER BROTHERS COMPANY OF P. R., INC. 195 TRIAL EXAMINER: All right. A. She also said to me that a person who was very loyal to the factory had told her what we were doing in the factory, and then when she had finished she sent me to the office of Mr. Walker. Shortly thereafter she went to Walker's office. Fuentes testified as follows as regards this incident: Q. Did you go to Mr. Walker's office at that time? A. Yes, sir, 1 did. Q. Did Mr. Walker talk to you? A. Yes. We both arrived at the office about the same time. Q. Did you understand English? Did Mr. Walker speak to you in English? A. No, I didn't understand. Mr. Walker was talking to Mr. Martinez, who is the manager they have in the office. He was talking to him in English and Mr. Martinez would say it to me in Spanish. The first question he asked me was: "Matilde, when one has something good, he holds on to it." I nodded my head, but I didn't speak. Then he asked me how much I was making when I came to work there . You see he would talk to me in Spanish , and then he would explain to Mr. Walker. Then Mr. Walker would say something else in English and Mr. Martinez would translate it to me. Then he asked me: "Mr. Walker wants to know how much you were making when you first came here to work." I told him I was working in an ensign factory, and that when it was good work they used to pay $3.00 a dozen, and I would make ten dozens at $3.00, which would be $30.00. Then he told me: "Well, if you were making $30.00 you would not leave to come here to make $13 00." Then when I told him that and he said I would not leave that to come here for $13.00, I answered that I had gone there because the Department of Labor, when it interviewed us, told us that after the training period of thirteen weeks we were going to earn whatever we wanted to because we were going to work by sections . I told him that was why I left that work to come to work there. Q. What else did he say to you? A. Then he asked me if my husband knew how to read and write English, and how much money he was making. I told him that he knew how to read English and to speak it , but I didn't know what he was asking because that was his own business. Then he told me: "We have gotten rid of leader No. 1, and No. 2 and you are No . 3, and you can come here and get your pay next Friday. The Respondent's position as regards Fuentes was stated to the record by its counsel at the hearing herein: Mr. FRANCO : What I have in mind , Mr. Examiner, is that it is in order to sustain our theory that she was discharged for cause, because she was not doing the work the way she should, and she didn't show aptitude, and in connection with that I want to know what she has been doing. TRIAL EXAMINER. Is that your theory as to discharge? Mr. FRANCO : For cause ; and I want to show that she didn't show aptitude or ability in her job, and I want to know what she has been doing , whether she has a comparable job or not. In addition to its position set forth above, it also takes the position that absentee- ism was a factor in her discharge. But other evidence in the record is to the contrary. For example, her timecards for the entire period of her employment show that she had about the same record of all employees in the plant. Her cards show that she did have some absenteeism. But on the whole her record is on a par with a majority of employees employed by the Respondent during this period. Her personnel record (General Counsel's Exhibit No. 5) does not "jibe" with counsel's statement that Fuentes did not have either ability or aptitude . This record is set forth below: WARNER BROTHERS, INC. PUERTO Rico. Re Matilde Fuentes This girl was hired on March 27, 1953. She was given three days basic train- ing and was assigned to operation 7, which is 1/8 " seam across. From the begin- ning she showed a disagreeable disposition . She had a hard time learning this kind of work and whenever bad work was given back to be repaired , she did not 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD like it. On several occasions she threatened to leave her work , because she did not like to repair. Once she walked out, and we had to talk to her , in order to make her come back. After several weeks we transferred her to operation #5, which is 3/ls ' underbust seam, in which she proved fairly good . After sometime she began to receive again a lot of repairs . Again she disliked to fix the repairs that were given to her. She was absent from work very often, and when she came back she had no reasonable excuse to account for her absence. Her attention was called to that fact with no results. It is important to say that his girl could have been a very good operator on operation # 5. She showed the ability to do it, but she did not seem to have interest in keeping her job. As a whole this girl's attitude toward the company's policies and regulations was below average. (Signed ) LLOYD B. WALKER, Manager. (Signed ) K. I. MENDEZ, Supervisor. (Signed ) Luz CH. HADDOCK, Supervisor. Walker, in his testimony before the Trial Examiner, insisted that Fuentes was dis- charged because she was a "chronic absentee ." He denied that he made the state- ments attributed to him by Fuentes at the time of her discharge. Mendez' testimony on both direct and cross-examination consisted in the main of flat denials of the testimony of all witnesses called by the General Counsel. Close examination of the record reveals that both Walker and Mendez testified in the main as regards Davila, who the Trial Examiner has found above to have been the "key" to the disposal of all issues herein. Conclusions as to Fuentes Quite frankly, the Trial Examiner was, at first blush , inclined to be somewhat skeptical about accepting the testimony of Quinones and Fuentes as regards their conversations with Mendez and Walker at the time of their discharges . However, after long and careful consideration he credits their account of what transpired at the time they were discharged . The extensive testimony both oral and documentary as concerns the Respondent's position as regards Davila has persuaded the Trial Examiner that all three of these girls were discharged because of the incident of November 20, 1953, which has been fully described above. As he sees it the Respond- ent discharged these employees to "nip-in-the-bud," so to speak , any idea that the employees might gather from Davila as regards unionization of the plant. Another factor that has been persuasive as regards Fuentes, is the position of the Respondent as stated by its counsel at the onset of her testimony on cross-examina- tion. As indicated above he stated that she was discharged because of her lack of aptitude and ability . Her personnel record shows that she had "ability." Moreover, the Respondent kept her in its employ regardless of her alleged absenteeism until her participation with Davila in the activities described above. In the circumstances and after due consideration the Trial Examiner is thoroughly convinced that Matilde Fuentes was discharged by the Respondent on November 23, 1953 , for precisely the same reasons as he has found above as regards Davila and Quinones ; and that by such conduct the Respondent engaged in conduct violative of the rights guaranteed employees in Section 7 of the Act, and specifically violative of Section 8 (a) (3) and (1) thereof. At this stage of the report the Trial Examiner directs attention to the testimony of Maria Luisa Fuentes and Aglae Rodriguez De Arroyo . In substance, both supported the testimony of Davila, Quinones, and Matilde Fuentes as regards the events of November 20, 1953. The importance of their testimony to the Trial Examiner in his ultimate resolution of the issues herein is that they corroborated the testimony of the discriminatee as regards Davila's activities at the time . Both testified that Davila had the edition of "El Mundo" which has been referred to above. Their testimony has been duly considered and credited by the Trial Examiner in regard to what they observed and witnessed at the time. The importance of the above finding is that it refutes Mendez' denial that she had knowledge of the "El Mundo" incident . Since he has resolved the issue he sees no necessity for further comment in this regard. WARNER BROTHERS COMPANY OF P. R., INC. 197 Interference with, Restraint, and Coercion D. The events of December 3, 1953, and what followed thereafter On the morning of December 3, 1953, Juan Eugenio Suarez, janitor in the Respondent's plant at all times material herein, went to Guaynabo on an errand for Mendez and Haddock. While in Guaynabo he met Davila, Quinones, and Fuentes who were engaged in activities on behalf of the Union at the time. With them, according to Suarez, were three men. The record is not too clear as to their identity. As the Trial Examiner sees it they were representatives of the American Federation of Labor, who were assisting Davila and others in their campaign to unionize the Respondent's employees. Davila testified that she asked Suarez to sign an application for membership in the Union, and that he refused to do so. Her testimony in this regard was corroborated by other witnesses, and is fully credited by the Trial Examiner. Suarez' testimony is not too clear as to just what he was asked to sign, nor as to the identity of the men, except to the extent that they had something to do with "labor " After he had completed his errand he returned to the plant. Upon arrival he repotted the incident to Haddock who informed Mendez. The latter then went to Walker and gave him the information. At about noon as the girls were preparing to leave the plant for lunch in Guaynabo and elsewhere nearby Walker made a speech to them. He spoke in English and Mendez inter- preted his words in Spanish to the employees. There are several versions of the speech in the record. In the considered opinion of the Trial Examiner the best account of the incident is found in the testimony of Maria Luisa Fuentes. It follows below: Q. All right, proceed, what happened on that day? A. On that day about twelve o'clock noon when we left, Mr. Walker kept us there and told us that in Guaynabo there were some girls with some papers and God torbid that we should sign those papers, and he told us that we should go on the side opposite from where the girls were, because he had called the Department of Labor on the phone, he said, and they told him that they had no agent at Guaynabo with papers. Then he went on ahead of us- Q. Just a minute , before you go on. Did he mention who these girls were that were in Guaynabo? A. Yes, he did. Q. Who did he say they were? A. Matilde, Carmen, and Paula. Q. When you say Paula, you mean Mrs. Paula Davila? A. Yes, sir. Q. And when you say Carmen, do you mean Carmen Gloria Quinones? A. Yes, sir. Both Walker and Mendez denied that the names of either Davila, Quinones, or Fuentes were mentioned in the speech. The gist of their testimony was that all that Walker said was that there were some men from the Department of Labor in Guaynabo, and that he had called the "Department of Labor and Fomento, because I know that if they were from the Department of Labor and Fomento they would come in to my office. If they ask you to sign any paper make sure of what you sign." An excerpt from Mendez' testimony follows below: Q. Did he make any statement to them that there was a union involved in this? A. Oh. no. Q. Did he make any statement to them that they should not sign anything? A. No, he never said that. Q Did he tell them that they should walk on one side of the street, so that they would not see these people? A. I don't remember that. Q. Did he in his talk make any mention of Paula Davila? A. No, he didn't. Q Or Carmen Gloria Quinones" A. No, he didn't. Q. Or Matilde Fuentes) A. No, he didn't mention her at any time. Q. Did he mention any girls at all? A. No 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Juan Eugenio Suarez' version of the speech was that Walker did mention Davila, Quinones, and Matilde Fuentes therein. He further testified that Walker also said in substance that if any of the employees "saw these people" in Guaynabo they were to tell them to come see him at the plant. In the considered opinion of the Trial Examiner, Suarez' testimony is the "key," so to speak. to the resolution of the credibility of the witnesses as regards just what Walker said in his speech to the employees. Suarez impressed the Trial Examiner in the main as an honest witness. In the circumstances he credits Maria Luisa Fuentes' account of the speech, since she likewise impressed the Trial Examiner as a credible witness. By such resolution of the testimony the Trial Examiner finds that neither Walker nor Mendez gave a full and true account of the incident. After the speech Walker got in his station wagon and drove into Guaynabo. Suarez accompanied him. The record indicates that Victor Martinez, assistant manager of the plant, was also with Walker on this occasion and acted as interpreter for him in his conversations with Davila, and other persons on that day, and as such participated in the events that followed. The record is somewhat confusing as to just what Walker did when he arrived in Guaynabo at noon on December 3, 1953. From what the Trial Examiner gleans from the credible testimony of all witnesses, particularly that of Davila, Walker stopped his car and accompanied by Martinez went over to where Davila, Fuentes, and Quinones were seated and asked them the whereabouts of the men from Insular Department of Labor. He was informed by Matilde Fuentes that they had left. Among those in the group was Benita Suarez of whom more anon below. The records shows that Walker stayed in town about an hour before returning to the factory. While he was there many of the employees were walking around on the streets. As the Trial Examiner sees it, it is the contention of the General Counsel that Walker's activities in Guaynabo constituted "surveillance," of the employees, and that by such conduct the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and consequently violated Section 8 (a) (1) of the Act. The Trial Examiner is of the opinion that the record does not support the General Counsel's position in this regard. True there is considerable suspicion that the pur- pose of his trips to Guaynabo on the clay in question were for the purpose of "surveil- lance" of the conduct of the employees, and in particular to see who engaged in con- versation with Davila, Quinones, and Matilde Fuentes and that by such conduct interfered with the rights of the employees to discuss their problems, and to join or refrain from joining the Union. But as indicated above the Trial Examiner is not convinced that the record as a whole supports the General Counsel's position in this regard. Findings of fact cannot be predicted on suspicion, they must be supported by substantial evidence. In such circumstances the Trial Examiner will recommend that this particular allegation in complaint be dismissed. This is not to say that other allegations of this nature in the complaint are not sup- ported by substantial evidence when considered in the light of the whole record. The Trial Examiner is convinced that Walker's request to the employees to refrain from talking to Davila, and her companions, constituted interference with, restraint, and coercion. It must be remembered that the Trial Examiner has found above that Davila, Quinones, and Matilde Fuentes were discharged for engaging in "protected concerted activities." In the circumstances the Trial Examiner is convinced that it is reasonable to infer that the intent of Walker's speech was to urge and warn the employees to refrain from discussing their problems with Davila and the others. That the speech had precisely that effect is supported by credible testimony in the record. Several witnesses, including Davila, testified to the effect that when the girls from the plant came into town that day, they, for the most part, avoided her and those with her. Her testimony in this regard was as follows: Q. So you and these other girls were waiting in front of this tobacco factory and waiting for the other girls to go by, is that right? A. Yes. Q. Now, after twelve o'clock of that day, were you still there at the tobacco factory entrance? A. Yes, sir, until all of them had returned to the factory. Q. Now, did you see the girls walking through town on that day after the noon hour? A Yes, sir. Q. Did you solicit them to sign these papers for you that you had? A. I couldn't do so. WARNER BROTHERS COMPANY OF P. R., INC. 199 Q. Why couldn't you? A. Because Mr. Walker was escorting or following them in his station wagon. Q. When did you see Mr. Walker on that day, in the noon hour? A. It was about between twelve to twelve-ten or twelve-fifteen. Q. Now you say you saw these other girls walking into town from the fac- tory. Will you tell us whether Mr. Walker came in with them, or came after them, or what was the situation? A. The girls took the opposite side from where we were. In view of the foregoing the Trial Examiner is convinced and finds that the Re- spondent by the conduct described immediately above, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and therefore was violative of Section 8 (a) (1) of the Act. There yet remains for disposal in this section of the report, the allegation in the complaint that the Respondent likewise interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act by. (a) urging, persuading, and warning its employees by threats of economic and other reprisals and by promises of benefit to refrain from assisting, becoming, or remaining members of the Union and engaging in or continuing to engage in concerted bargaining or other aid or protection. After a close and careful perusal of the entire record the Trial Examiner is con- vinced that it does not support the above allegation by substantial evidence. As a matter of fact he finds little if any evidence to support it. In the circumstances he will recommend that this particular allegation be dismissed in its entuety. E. The alleged discriminatory discharge of Benita Suarez Suarez was hired by the Respondent on July 21, 1953, and discharged on Decem- ber 4, 1953. At the time of her discharge she was a floor girl. Her duties consisted of delivering work to the machine operators. Before that she had worked in two other departments as an operator. She admitted that while so engaged that she was not a fast operator, and the record indicates that this was a factor in her being made a floor girl. The events leading up to her discharge were as follows. On the morning of December 3, 1953, she was in Guaynabo where she planned to take a bus to Santurce to deliver some material to her dressmaker. While she was in Guaynabo she met Davila, Quinones, and Matilde Fuentes in the Alamo drugstore. While there Davila persuaded her to sign an application for membership in the Union. She was with Davila and the other girls at the time Walker came by and talked to them about the "men" from the Insular Department of Labor. Walker admits that he saw Suarez twice that morning in Guaynabo. The first time at about 9 or 10 a. m. when he went after the mail, and the second time when she was with Davila. Suarez further testified that on December 2, 1953, she told one of her supervisors, Provi Sanchez, that she would be absent the next day, December 3, to take a dress to her dressmaker and that Sanchez told her that it would be all right. Suarez' testimony in this regard stands uncontradicted and undenied in the record, since the Respondent did not choose to call Sanchez as a witness, and no showing was made at the hearing herein that she was unavailable as such. In the circumstances the Trial Examiner credits Suarez' testimony in this regard. Suarez further testified that her mother was ill on the morning of December 3, 1953, and that this necessitated her getting a late start to Guaynabo and Santurce. On the morning of December 4, 1953, she reported to work as usual Upon her arrival at the plant she was informed by some of her fellow employees that they had learned that she had signed a union card and that ". . . if I had signed I had to notify the office about it." She then went to Mendez and told her that she had signed such a card. At the same time she told Mendez that she had not reported to work the day before because her mother was ill and that she had also gone to see her dress- maker. Mendez then informed her that Walker had seen her in Guaynabo the day before. Mendez then took her to Walker's office. Present in the office at the time were Walker, Mendez, Martinez, and Walker's secretary. Shortly after she entered the office Walker, Mendez, and Martinez left and went into another room. Upon their return they gave her a paper written in Spanish. Her testimony as regards this incident was as follows: Q. Who acted as interpreter for you on that occasion? A. I don't know because they went out back somewhere to make out some paper, a paper which they handed me to read. 879288-56-vol. 113-14 200 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Q. Was it written in Spanish? A. Yes, sir. Q. What did the paper state? A. As far as I remember it said that in the six months that I had been work- ing there I had not accomplished any type of work, that I had not been able to do any type of work; that I had been absent from work the day before when they most needed me, and that the excuse I had stated was that my grand- mother was sick, and I didn't have any grandmother, and also that 1 had no more right to work any longer in that factory. I don't remember what else the paper said. Q. Did you sign that paper? A. No. Q. Why didn't you sign it? A. Because I wasn't told to sign it. Q. Who showed you the paper? A. Mr. Martinez. Q. Weren't you asked to sign the paper? A. No. TRIAL EXAMINER: Let me get something straightened out. In this paper, do I understand the witness' testimony to be that there was a statement in there that the excuse she had given was that her grandmother was sick? Is that what she testified was on the paper? WITNESS: The paper said that I had not been to work that day because my grandmother was sick, and I didn't have a grandmother. Shortly after her interview with Walker she left the plant. The Respondent contends that Suarez was discharged for three reasons: (1) That she had a high record of absenteeism throughout her tenure of employment; (2) that she absented herself without leave on December 3, 1953; and ( 3) that she lied when she told Mendez that in addition to having an appointment with her dressmaker on December 3, 1953, she was unable to come to work on that date because her grandmother was ill. In other words the Respondent contends that Suarez was discharged for just cause. At the hearing herein the Trial Examiner admitted in evidence Suarez' personnel record. It is set forth below: WARNER BROTHERS , INC. PUERTO Rico. Re Benita Suarez Gonzales This girl was hired on July 21 , 1953; after receiving three days basic train- ing. She was assigned to operation #22, which is top and bottom facing. She proved to be very slow, and after three weeks, she could only make 2 (two) dozen, per day. On August 8 she was transferred to another section of the room, for training in operation 15, which is net-face around, where she also proved to be very slow, with an average of 12 dozen daily; which is way below the daily labor requirements. When questioned about her low production, she answered, "What else do you expect me to do?" Another opportunity was given to her on November 16th. This time as a floor-girl. Here she also was very slow and her attention was called several times toward this disposition ; in order to help her keep her job. She was sup- posed to keep the girls on the machines, supplied with work, and she had to be told several times during the day, that she was not doing so. Then on December 10, during working hours, she was seen in town and when a reason was required from her, she said in the first instance that she was taking some material over to her dressmaker , and in the next instance, when she realized how poor the excuse was, she stated that her grandmother was sick. As a whole, this girl's attitude toward her work and the company 's policies and regulations, showed a great lack of interest and was below average. (Signed ) LLOYD B. WALKER, Manager. (Signed) ROSITA MENDEZ, Supervisor. (Signed) Luz CH HADDOCK, Supervisor. In addition the Respondent contends that it had no knowledge of Suarez' mem- bership in the Union or of her activities on its behalf, and that consequently this could not have been a factor in her discharge. WARNER BROTHERS COMPANY OF P. R., INC. 201 Conclusions as to Suarez It has been well said that hard cases make bad law. So is it here. The case as to Suarez is most difficult. The solution of the case as to her in the final analysis rests on the resolution of the credibility of the witnesses. Another factor is certain undenied and uncontradicted testimony in the record as regards Suarez. As indicated above one of the Respondent's contentions is that Suarez did not notify it that she would be absent from work on December 3, 1953. The uncon- tradicted and undemed testimony in the record is to the contrary. The Trial Examiner has found above that Suarez went to one of her supervisors, Provi Sanchez, and received permission from her on December 2, 1953. The Respondent offered no pertinent testimony as regards this incident. It did not choose to call Sanchez as a witness on its behalf, nor make any showing at the hearing herein that she was unavailable as such. Now as to the Respondent's contention that Suarez lied when she told Mendez that a further factor in her absenting herself from work on December 3, 1953, was that her grandmother was ill. Suarez testified that it was her mother who was ill and that she had no grandmother. Her testimony in this regard is credited by the Trial Examiner and he finds that she did not make the statement attributed to her by the Respondent. Suarez impressed the Trial Examiner as an honest witness. At the time she appeared before him she was 21 years old. Her demeanor as a witness was excellent. In the circumstance and upon the findings made above, the Trial Examiner credits Suarez' account of the events that occurred on December 3, 1953, and rejects the contentions of the Respondent in this regard. We now come to its contention that it was without knowledge that Suarez had signed a union card. In the considered opinion of the Trial Examiner there is sub- stantial evidence to the contrary in the record. It must be borne in mind that Suarez testified that she went to Mendez upon the advice of certain of her coworkers and told Mendez that she had signed a union card on December 3, 1953, and that shortly thereafter she was discharged. The Trial Examiner has carefully examined the record, particularly the testimony of Mendez, and he finds no testimony by her or any other witness as regards this incident. The only testimony in the record that might possibly have some relevancy in this regard is that of Mendez at page 352 of the record. There she testified as follows: Q. Now on December 3 at lunch time and thereafter, did anyone tell you that any of the girls had signed any papers or cards? A. Nobody did, no. In view of the foregoing the Trial Examiner credits Suarez' testimony that she told Mendez that she had signed a union card on December 3, 1953. Consequently he finds that the Respondent had knowledge of Suarez' activities on behalf of the Union at the time it discharged her. In view of all of the above and upon the record considered as a whole the Trial Examiner is convinced and finds that the reasons advanced by the Respondent for the discharge of Benita Suarez were mere pretext, and that the true motive for her discharge was because of her union affiliation and concerted activities. The Trial Examiner is not unmindful of the fact that Suarez was not an outstand- ing employee, but it must be remembered that the Respondent retained her in its employment despite this factor. It also must be remembered that she was seen with Davila in Guaynabo on December 3, 1953, on at least two occasions by General Manager Walker. Though the Trial Examiner does not specifically find that this was the primary reason for her discharge, nevertheless he did not completely disregard the incident in reaching his ultimate conclusions herein. In the circumstances, and upon the entire records considered as a whole, the Trial Examiner finds that the Respondent discharged Benita Suarez on December 4, 1953, because of her union and concerted activities, and that such conduct was in contra- vention of the provisions of Section 7 of the Act, and therefore violative of Section 8 (a) (3) and (1) of the Act. The Role of the Union in This Proceeding Throughout the record there is testimony that the employees had had some con- tact with officials of the American Federation of Labor in Puerto Rico before the events of November 20 and December 3, 1953. Among those who were active in this regard were Quinones and Matilde Fuentes. The record shows that they had been in touch with Armando Rivera and one Juliano, at times material herein, presi- dent of a local of the Union at a glass and paper factory in the area. The difficulty 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in resolving the issue as to whether the Respondent had knowledge of this activity on the part of its employees is because it did not come out in the "open," "so to speak," until November 20, 1953, and thereafter on December 3, 1953. The record is too vague to make a specific finding that the Respondent had knowledge of union activi- ties as such, except as regards the "Dubinsky" incident on November 20, 1953. For this reason the Trial Examiner has predicated his findings as regards Davila, Quinones, and Matilde Fuentes on their concerted rather than union activity. The case as to Suarez is the only discriminatee that he has found to be within the four corners of the complaint on both union and concerted activities. For these reasons the Trial Examiner has refrained from discussing the activities of Davila, Quinones, and Matilde Fuentes as regards their visits to the union office in San Juan, and to the Insular Department of Labor in San Juan and Rio Piedras. He feels that the General Counsel's case rests on sound ground as regards his findings as regards the discrimi- natees regardless of whether they rest on either concerted or union activities. 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 set forth 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 commerce and the tree flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Paula Davila Ramos, Matilde Fuentes, Carmen Gloria Quinones, and Benita Suarez, it will be rec- ommended that the Respondent offer to all of them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and that each be made whole for any loss of pay she may have suffered by reason of the discrimination against her, by pay- ment to each of them of a sum of money equal to that which each would normally have earned as wages from the date of the discrimination to the date of the Respond- ent's offer of reinstatement, less her net earnings during such period.4 The back pay shall be computed in the manner established by the Board,5 and the Respondent shall make available to the Board its payroll and other records to facili- tate the checking of amounts due. The preventive purposes of the Act will be thwarted unless the recommendations are coextensive with the threat contained in violations of the Act herein found. It will therefore be recommended that the Respondent cease and desist from infringing in any manner upon the employees' rights guaranteed in Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Warner Brothers Company of P. R., Inc., is engaged in commerce within the meaning of the Act. 2. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Paula Davila Ramos, Matilde Fuentes, Carmen Gloria Quinones , and Benita Suarez, there- by discouraging membership in a labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] s Crossett Lumber Company, 8 NLRB 440 F W Woolwoi th Company, 90 NLRB 289 WARNER BROTHERS COMPANY OF P. R., INC. 203 APPENDIX A Total Doz WEEK ENDING OCTOBER 2, 1953 Pi od Op 15 Total Op 16 Paula Davila Ramos---------------------------------------- 242 174 Carmen Gloria Quinones------------------------------------ 80 164 Isabel Garcia---------------------------------------------- 130 76 Mercedes Diaz--------------------------------------------- 180 120 Ana Maria Acevedo---------------------------------------- 188 150 Graciela Serrano------------------------------------------- 246 184 Nicolasa Catala-------------------------------------------- 192 136 WEEK ENDING OCTOBER 9, 1953 Paula Davila Ramos---------------------------------------- 256 236 Carmen Gloria Quinones------------------------------------ 174 130 Isabel Garcia---------------------------------------------- 120 120 Mercedes Diaz--------------------------------------------- 164 142 Ana Maria Acevedo---------------------------------------- 144 138 Graciela Serrano------------------------------------------- 222 164 Nicolasa Catala-------------------------------------------- 240 220 WEEK ENDING OCTOBER 16, 1953 Paula Davila Ramos---------------------------------------- 262 250 Carmen Gloria Quinones------------------------------------ 180 180 Isabel Garcia---------------------------------------------- 108 108 Mercedes Diaz--------------------------------------------- 146 130 Ana Maria Acevedo---------------------------------------- 246 246 Graciela Serrano------------------------------------------- 190 170 Nicolasa Catala-------------------------------------------- 182 182 WEEK ENDING OCTOBER 23, 1953 Paula Davila Ramos---------------------------------------- 306 290 Carmen Gloria Quinones------------------------------------ 274 220 Isabel Garcia---------------------------------------------- 138 108 Mercedes Diaz--------------------------------------------- 186 164 Ana Maria Acevedo---------------------------------------- 24 24 Graciela Serrano------------------------------------------- 252 198 Nicolasa Catala-------------------------------------------- 308 258 Carmen Lina Avila----------------------------------------- 36 34 Teofila Flores--------------------------------------------- 2 2 WEEK ENDING OCTOBER 30, 1953 Paula Davila Ramos---------------------------------------- 246 208 Carmen Gloria Quinones------------------------------------ 246 104 Isabel Garcia---------------------------------------------- 156 96 Mercedes Diaz--------------------------------------------- 186 174 Ana Maria Acevedo---------------------------------------- 212 148 Graciela Serrano------------------------------------------- 256 200 Nicolasa Catala-------------------------------------------- 210 114 Carmen Lina Avila----------------------------------------- 54 54 Teofila Flores--------------------------------------------- 18 18 WEEK ENDING NOVEMBER 6, 1953 Paula Davila Ramos---------------------------------------- 232 130 Carmen Gloria Quinones------------------------------------ 228 134 Isabel Garcia---------------------------------------------- 172 90 Mercedes Diaz--------------------------------------------- 138 114 Ana Maria Acevedo---------------------------------------- 154 138 Graciela Serrano------------------------------------------- 246 184 Nicolasa Catala-------------------------------------------- 224 138 Carmen Lina Avila----------------------------------------- 60 58 Teofila Flores--------------------------------------------- 24 24 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Total Dog. WEEK ENDING NOVEMBER 13, 1953 Prod. Op 15 Total Op 16 Paula Davila Ramos---------------------------------------- 296 214 Carmen Gloria Quinones------------------------------------ 210 208 Isabel Garcia---------------------------------------------- 130 110 Mercedes Diaz--------------------------------------------- 76 122 Ana Maria Acevedo---------------------------------------- 162 114 Nicolasa Catala-------------------------------------------- 214 214 Graciela Serrano------------------------------------------- 204 118 Carmen Lina Avila----------------------------------------- 78 78 Teofila Flores--------------------------------------------- 34 48 WEEK ENDING NOVEMBER 20, 1953 Paula Davila Ramos---------------------------------------- 206 130 Carmen Gloria Quinones------------------------------------ 146 134 Isabel Garcia---------------------------------------------- 174 4 Mercedes Diaz--------------------------------------------- 166 6 Ana Maria Acevedo---------------------------------------- 244 28 Nicolasa Catala-------------------------------------------- 248 166 Graciela Serrano------------------------------------------- 236 106 Carmen Lina Avila----------------------------------------- 106 96 Teofila Flores--------------------------------------------- 60 60 Metco Plating Company and Local No. 1, International Union, Metal Polishers, Buffers, Platers, and Helpers , AFL. Case No. 7-CA-1074. July 18,1955 DECISION AND ORDER On February 7, 1955, Trial Examiner Lee J. Best issued his Inter- mediate 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allega- tions. Thereafter, the Respondent, the General Counsel, and the Union filed exceptions to the Intermediate Report and supporting briefs.' The Board has reviewed the rulings made by the Trial Examiner 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.2 1 Respondent also requested oral argument. In our opinion, the record, the exceptions, and the briefs fully present the issues and the positions of the parties. Accordingly, the request is denied. 2 The Trial Examiner resolved many of the credibility issues without specifically dis- cussing evidence in the record which was contrary to his ultimate findings. The Board 113 NLRB No. 23.