Allure Shoe Corp.

ALLURE SHOE CORPORATION 717 toolroom and flexible shop general foreman, the toolroom foreman, the flexible shop foreman, the engineering experimental shop general foreman and foremen, office clerical employees, professional em- ployees, all other employees, guards, and supervisors as defined in the Act. If a majority vote for the Petitioner they will be taken to have indicated their desire to constitute a separate appropriate unit and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for the unit described above, which the Board, under such circum- stances finds to be appropriate. In the event a majority do not vote for the Petitioner, they will be taken to have indicated their desire to remain part of the existing unit and the Regional Director will issue a. certification of results of election to such effect. [Text of Direction of Election omitted from publication.] Allure Shoe Corporation and Jose M. Sosa-Rivero. Cases Nos. 12-CA-92 and 12-CA-93. April 14, 1959 DECISION AND ORDER On March 12, 1958, Trial Examiner A. Bruce Hunt issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a) (1) and (3) of the Act, and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also found that certain allega- tions of the complaint involving unfair labor practices in violation of these sections of the Act had not been sustained by proof. Both the General Counsel and the Respondent filed exceptions to the Inter- mediate Report, the latter contending that it had not had a fair trial because denied access to pretrial statements of the witnesses for purposes of cross-examination. The Respondent filed a brief in sup- port of its exceptions, relying upon the decision in Jencks v. United States, 353 U.S. 657, in support of its contention that its defense was hampered as indicated. Thereafter, on September 25, 1958, in accord with similar action taken in other pending cases, the Board ordered that the record be reopened and a further hearing held before the Trial Examiner to permit the further examination of witnesses whose pretrial statements had in the interim been made available to the Respondent.' On December 2, 1958, Trial Examiner Hunt issued his 1 See, for example, Ra-Rich Manufacturing Corporation, 121 NLRB 700. 123 NLRB No. 93. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supplemental Intermediate Report and Recommended Order in which he reaffirmed the recommendations of his original Intermediate Re- port without modification. The Respondent then filed exceptions to the Supplemental Intermediate Report, which is also attached. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and except as noted above, finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has now considered both Intermediate Reports, the various exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications indicated below. 1. We agree with the Trial Examiner that the Respondent inter- fered with, restrained, and coerced its employees in violation of Sec- tion 8(a) (1) of the Act by the statements of Sal Pipitone to various employees as detailed in the Intermediate Report in the concluding paragraph of section B. However, the Trial Examiner found no violation of Section 8(a) (1) based upon certain wage raises alleged to have been made to deter continued union adherence after union activity had begun, despite his finding that the Respondent failed to prove its defense that these increases were in accord with a fixed policy unrelated to union activity. We do not agree on this record that the General Counsel failed to sustain the burden of proof as to this addi- tional allegation of activity in violation of Section 8 (a) (1). We note that the Respondent admits awareness of union activity "the middle of February." It also admits that the three cementers in the plant received a raise in February. Elena Rodriguez was one of these. She received hers on February 22, when she was called in by Sal Pipitone and asked whether she was happy in her work, and promised that her husband would be given a job at the plant "if the union didn't win out." 2 Clearly Respondent was aware of union activity at that time. None of Elena's testimony in this regard was denied, nor was her testimony that the other two cementers received raises at the same time. We also note that testimony of Dorothy de Benedittis, that she received a raise after union activity began, was not denied. Cross-examination concerning these wage raises elicited only evasive answers from the Respondent's general manager. He testified that he was actively in charge of operations at the plant and had participated in drafting the wage increase plan, but was unable to explain what this plan was. As the record clearly shows that wage raises were granted after the Respondent was aware of union activity, that the Respondent adduced no proof that the raises were decided upon independently, without consideration of their impact upon union activity, and that 8 This statement by Sal to Elena was the basis of one of the Trial Examiner's 8(a) (1) findings. ALLURE SHOE CORPORATION 719 the Respondent thereafter continued its conduct in violation of Sec- tion 8(a) (1) as found by the Trial Examiner, we find that they were made to deter continued union activity, and therefore constituted in- terference, restraint, and coercion in violation of Section 8(a) (1) of the Act. 2. The complaint alleged that Elena Rodriguez was discharged dis- criminatorily because of her union activity, in violation of Section 8(a) (3) of the Act. The Trial Examiner found that the evidence did not support this allegation. For the reasons here stated we believe that it does, and so find. As described by the Trial Examiner, Elena was an active union adherent. The first and subsequent union meeting was held in her home and her foreman observed her soliciting union authorizations. She was discharged by Foreman Goldstein on March 27 for allowing the ink from size markings on linings to imprint upon about 2 dozen suede shoe vamps being prepared for a special order. Elena had made no previous mistakes during the period of 14 months she had been working for the Respondent, and was considered a good worker. She had been told this specifically a month earlier, on February 22, when she was given a 5-cent-an-hour wage increase and promised a job for her husband if the union did not get in. When the mistake was called to Goldstein's attention he discharged her immediately, without dis- cussion and without at that time consulting anyone else. The next day, when she returned for her check and sought reinstatement, Gold- stein told her that he had been told by someone else to discharge her, but that he considered her a good worker and would try to get work for her elsewhere. Based upon Elena's excellent record, her well known union activ- ities, the precipitateness of her discharge by Goldstein, and the latter's remark later that he had been told to discharge her, we find that the mistake she made was a mere pretext for discharge, and that Gold- stein had been instructed to look for an appropriate opportunity to dismiss her. Hence, we disagree with the Trial Examiner's finding that Goldstein was not "awaiting a pretext to discharge her." Al- though the shoes were on special order, the record contains only the bare statement that an unidentified customer was displeased and said "I am through with your outfit this season." The Respondent made no effort to corroborate this or to show that the order was actually not delivered as anticipated. Although the Respondent estimated the cost of the shoes at $180, it adduced no evidence to prove that figure. There is, however, testimony by a cutter tending to show that the mistake probably cost no more than $20; also that Elena's coworkers made it known on March 27 that they would pay whatever the amount might be. As the Trial Examiner found, other employees had ruined as many vamps in a week without being discharged. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In all the circumstances we do not think that the fact that the soiled vamps were on special order changes the preponderant import of the record that Elena's known union activity and affiliation were the real reason for her discharge. Accordingly, we find that the discharge was discriminatorily made to discourage union activity, hence was in violation of Section 8(a) (3) and (1) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Allure Shoe Cor- poration, Miami, Florida, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Shoe Workers of Amer- ica, AFL-CIO, or in any other labor organization of its employees, by discharging any of its employees or in any other manner discriminat- ing in regard to their hire or tenure of employment or any term or condition of employment. (b) Granting wage raises to discourage union activity. (c) Interrogating and threatening employees concerning union activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (d) Promising an employee to hire his or her relative upon condi- tion that a labor organization shall be unsuccessful in its organiza- tional efforts. (e) Requesting employees to furnish it with information concern- ing identities of union adherents and events at union meetings. (f) Seeking to persuade employees to forego participation in Board proceedings. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Shoe Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization 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 Elena Rodriguez and Wandrijicilo Rodriguez imme- diate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights or ALLURE SHOE CORPORATION 721 privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the Remedy section of the Intermediate Report.' (b) Make whole Concepcion Gonzales, in the manner set forth in the Remedy section of the Intermediate Report for any loss of over- time pay she may have suffered as a result of the discrimination against her. (c) Preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social secur- ity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (d) Post in conspicuous places in its plant in Miami, Florida, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice to be furnished in both the English and Spanish lan- guages by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) File with said Regional Director for the Twelfth Region within 10 days from the date of this Order, a report in writing setting forth in detail what steps the Respondent has taken to comply herewith. 3In computing the amount of back pay due Elena Rodriguez-in accordance with our usual practice-the period from the date of the intermediate Report herein to the date of this Decision and Order will be excluded inasmuch as the Trial Examiner did not recom- mend reinstatement or an award of back pay as to her. 4In 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 Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in United Shoe Workers of America, AFL-CIO, or in any other labor organization of our employees, by discharging any of our employees or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition. of employment. WE WILL NOT grant wage increases to discourge union activity, or interrogate or threaten our employees concerning union ac- 508889-60-vol . 123-47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivities in a manner constituting interference, restraint, or co- ercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT promise an employee to hire his or her relative upon condition that a labor organization shall be unsuccessful in its efforts to organize our employees. WE WILL NOT request employees to furnish us with information concerning identities of union adherents and events at union meetings. WE WILL NOT seek to persuade our employees to forego par- ticipation in proceedings of the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist United Shoe Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in 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 authorized in Section 8(a) (3) of the Act. WE WILL offer Elena Rodriguez and Wandrijicilo Rod- riguez immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to any seniority or other rights or previleges previously enjoyed. WE WILL make whole Elena Rodriguez, Wandrijicilo Rodri- guez, and Concepcion Gonzales for any loss of pay each of them may have suffered as a result of our discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of United Shoe Workers of America, AFL-CIO, 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 National Labor Relations Act. ALLURE SHOE CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Charges having been duly filed, a complaint and notice of hearing and order consolidating cases having been served by the General Counsel, and an answer having been filed by Allure Shoe Corporation, herein called the Respondent, a ALLURE SHOE CORPORATION 723 hearing I involving allegations of unfair labor practices in violation of the National Labor Relations Act, 61 Stat. 136, herein called the Act, was held upon due notice at Miami, Florida, on September 10 to 19, 1957, before the duly designated Trial Examiner. The allegations of the complaint as amended at the hearing, which are denied by the answer as amended, in substance are that (a) on March 27 and April 11, 1957, respectively, the Respondent discharged Elena Rodriguez and Wandrijicilo Rodriguez, and thereafter refused to reinstate them, because of their union and concerted activities; (b) about June 10, 1957, the Respondent offered reinstatement to Wandrijicilo Rodriguez upon the condition that he write a statement that his dis- charge which was then the subject of a charge on file with the Board, had been due to inefficiency and not to union activity; (c) since February 1957, the Respondent denied substantial amounts of overtime work to Concepcion Gonzalez because of her union and concerted activities; and (d) at various times between mid-February and May 1957, the Respondent inter alia interrogated employees concerning their union and concerted activities, threatened employees with discharge and loss of steady work because of their union or concerted activities, and granted wage in- creases to deter union adherence. All parties were represented by counsel or other representative, were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. No briefs were filed. The Respondent's motion to dismiss the complaint, made near the close of the hearing, is disposed of in accordance with the determinations below. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Allure Shoe Corporation, a Florida corporation, has its principal office and place of business in Miami, where it is engaged in the manufacture and sale of women's shoes. During its annual accounting period preceding 1957, the Respondent shipped finished products, having a wholesale value exceeding $100,000, directly to points outside the State of Florida. I find, contrary to the Respondent's contention, that it is engaged in commerce and that the Board has jurisdiction in this proceeding.2 II. THE UNION United Shoe Workers of America, AFL-CIO, which is not a party to this pro- ceeding, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The question whether Salvatore Pipitone is a supervisor within the meaning of the Act A principal issue herein is whether Salvatore Pipitone is a supervisor within the meaning of the Act. Various persons named Pipitone are connected with the Respondent. They are Salvatore, called Sal, and Sam, who are brothers; Mike and Louis, sons of Sal; and Matthew, son of Sam. Sam is a vice president of the Re- spondent and the plant superintendent. Sal is a designer of shoes and an inventor of processes in shoe manufacturing. Mike is a foreman. Insofar as appears, Louis and Matthew are rank-and-file employees. According to the General Counsel, Sal Pipitone is a supervisor within the meaning of the Act. On the other hand, the Respondent takes a contrary position. Sal Pipitone was not a witness and thus the findings herein are made without benefit of testimony by him. On June 25, 1957, in Case No. 12-RC-120 (unpublished), to which the Re- spondent and the Union were parties, it was agreed that Sal Pipitone should be excluded from the appropriate unit. Jack L. Goldman, a vice president of the Respondent and its general manager, testified in that case that Sal is the designer 1 Case No. 12-CA-94 was dismissed at the hearing. 2 The Respondent asserts, in part, that (1) a work stoppage at its plant would not affect commerce or the free flow of commerce ; (2) the Respondent manufactures less than ?lpo of 1 percent of the shoes manufactured in the United States; and (3) United Shoe Workers of America, AFL-CIO, which is not a party to this proceeding but which was a party to Case No. 12-RC-120, a representation case mentioned below, is not in compliance with Section 9(f) and (g) of the Act. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and expert on shoemaking and that, as a consequence of his knowledge, Sal can make recommendations to Sam Pipitone and to the foremen concerning the hire and discharge of employees. Goldman testified further upon that occasion that Sal's recommendations concerning an employee would be given considerable weight due to his managerial status, but in- the instant proceeding, when such testimony was called to Goldman's attention, he testified that he had misunderstood the question and that Sal's "recommendations would carry considerable weight because of his status as a technical expert, and not as part of management." According to the Respondent, Sal Pipitone never had the right to hire or discharge employees but, as its expert in shoemaking, he maintains time studies of employees, sets and adjusts piece rates, supervises one employee who assists him in that work, and attends meetings of foremen. Joe Checkoway, an employee who was a witness for the Respondent, testified that Sal interviews applicants for employment, that Sal's experience enables him to determine whether an applicant is qualified, and that Sal refers applicants to foremen. Mike Pipitone, also a witness for the Respondent, testified that about December 1956, at a foremen's meeting, Goldman told Sal Pipitone to cease interviewing applicants and discussing personnel problems with foremen since such functions were not a part of Sal's work. Goldman testified that upon more than one occasion, the last time as recently as a few weeks or months before the hearing in the instant case, the Respondent directed Sal not to usurp duties of foremen and not to criticize employees. It does not appear, however, that the employees were notified of the purported directions to Sal Pipitone. Moreover, there is convincing evidence that Sal Pipitone exercised the authority to hire and discharge. As will appear, he hired Elena Rodriguez and Wandrijicilo Rodriguez and discharged the latter. In addition, Concepcion Gonzalez and Francisca Marta Gomez testified credibly, and I find, that Sal Pipitone hired them. In view of Sal Pipitone's authority and activities with respect to the piece-rate earnings of em- ployees, his attendance at foremen's meetings, his authority to make effective recom- mendations concerning employees, and his authority to hire and discharge, I find that he is a supervisor within the meaning of the Act for whose conduct, described below, the Respondent is responsible. B. Interference, restraint , and coercion During February 1957 or earlier , two or more labor organizations sought to organize the Respondent's employees. None of those organizations is a party to this proceeding, but the complainant herein, Jose M. Sosa-Rivero, is an organizer for one of them , United Shoe Workers of America, AFL-CIO, herein called the Union. The record contains insufficient evidence for findings concerning the activities of other organizations. On February 18, Sosa-Rivero commenced organizational activities by distributing literature. A representative of another organization was present and engaged in like activity. On February 20 the Union held the first of several meetings of employees . The meeting site upon this and other occasions was the home of Elena Rodriguez . Less than a dozen of more than 200 employees attended. Among them was Wandrijicilo Rodriguez, not a relative of Elena. The Respondent's employees are paid on each Friday for the workweek ending a week earlier. On Friday, February 22, the employees in various job classifications received paychecks reflecting wage increases of 5 or 10 cents per hour which had been made effective as of the preceding workweek . The affected employees had not been advised of the increases and even supervisory employees appear to have been in ignorance hereof. The complaint alleges that the increases were granted "to deter continued union adherence and sentiment," and the General Counsel argues correctly that the increases could have been decided upon at any time before Febru- ary 22 and that they were made effective during the organizational activity of at least one of the labor organizations . There is , however, no evidence upon which to fix the particular day that the increases were granted . The Respondent asserts that the increases were made in line with a fixed policy unrelated to union activity, but the record does not contain proof of that assertion or the details of the alleged policy. In view of the little evidence of circumstances surrounding the wage in- creases, coupled with the limited nature of the Union's activities before February 22 and the absence of evidence concerning the activities of other labor organizations, I find that the General Counsel has not sustained his burden of proof in connection with this allegation of the complaint. On February 22, Elena Rodriguez was called to the work area of Sal Pipitone. which he and employees referred to as his "office," where Sal told her that she was being given the wage increase because she was a good worker . Sal inquired, if she ALLURE SHOE CORPORATION 725 was happy in her work and she answered in the affirmative, saying that she would like for her husband to be employed there. Sal responded that "if the union didn't win out he would place" her husband.3 During late February, Sal Pipitone went to the place of work of Concepcion Gonzalez and told' her that if she joined the Union he would discharge her. In the same and later months , Sal Pipitone talked to Gonzalez several times , saying that unions were no good , that she should tell her friends not to join the Union, that if she signed an application for membership she would be discharged, that if she signed such an application he would cause a lot of problems for her, that if he caught her talking with anyone "it was going to go ill" with her because he believed that she would talk about the Union, and he asked her to report to him concerning events at union meetings . In response to some of his remarks , Gonzalez said that she lived in a free country, that she would do what she believed to be right, and that events at union meetings were private matters.4 During March, Sal Pipitone called at the home of Gonzalez' mother, Isabel Quinones. Pipitone does not speak Spanish fluently and Quinones does not speak English . Pipitone was accompanied by an unidentified person to act as interpreter. Edward Santana, a friend of Mrs. Quinones, who speaks both English and Spanish, is the only other person who was in the house at the time and he remained in earshot but out of sight in a bedroom. Through the interpreter, Sal Pipitone told Quinones that he was warning her that if Gonzalez became involved with the Union or solicited memberships Gonzalez would be discharged. Quinones said that she would talk with her daughter when the latter returned home.5 Upon various occasions Sal Pipitone also talked with Dorothy DeBenedittis, an employee. She testified without contradiction, and I find, that he asked her whether she favored or opposed the Union, to which she replied that she was for it, and that he asked her to furnish him with the names of union adherents. She refused. On March 27 and April 11, respectively, Elena Rodriguez and Wandrijicilo Rodriguez, were discharged under circumstances described below. On August 30 an election was held in Case No. 12-RC-120 and the Union lost. Objections were filed by the Union, but not within the time provided therefor, and in an unreported decision the Board certified that the Union had not been selected as exclusive representative of the employees. I find that the Respondent interfered with , restrained, and coerced employees in violation of Section 8(a) (1) of the Act by ( 1) Sal Pipitone's statement to Elena Rodriguez that he would hire her husband if the Union did not organize the em- ployees; (2) Sal's statements to Concepcion Gonzalez that if she joined the Union he would discharge her, that if she did so he would cause her a lot of problems, that she should tell her friends not to join it, and that he would effect reprisals upon her if he caught her talking with employees ; ( 3) Sal's request of Gonzalez that she report to him concerning events at union meetings ; (4) Sal's threat to Gonzalez through Quinones that Gonzalez would be discharged if she became in- volved with the Union or solicited memberships; and (5 ) Sal's inquiries of DeBenedittis whether she favored the Union and request of her that she furnish him with names of union adherents. C. The discharge of Elena Rodriguez The two employees whose discharges are in issue are named Rodriguez, Elena and Wandrijicilo. They are not related. To avoid confusion, hereafter Elena is called by her given name and Wandrijicilo is called Wan, a name by which he is known. 3 As related, Sal Pipitone was not a witness. The findings concerning this conversa- tion are based upon Elena Rodriguez' uncontradicted testimony. 4 These findings are based upon Gonzalez' uncontradicted testimony. According to Gonzalez, there was only one listener to one of the conversations, the remainder having occurred when she and Sal Pipitone were alone. The Respondent offered evidence to attack Gonzalez' credibility generally and on specific alleged incidents, but I do not believe that it is necessary to detail the evidence and to recite my evaluation of it. In view of the Respondent's failure to call Sal Pipitone as a witness, coupled with his other invalid conduct described herein, I credit Gonzalez' testimony. These findings are based upon the uncontradicted testimony of Santana. At the time of the hearing, Quinones was in Cuba. Sal Pipitone and the interpreter also were not witnesses. According to Santana, he was acquainted with Sal Pipitono and, at the time of the event, he was in a bedroom suffering from a headache. He testified also that he overheard the conversation and saw Pipitone , but that he did not make his presence known to Pipitone or the interpreter. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elena was hired by Sal Pipitone during January 1956. He assigned her a place to work under the supervision of Foreman Joe Goldstein . Her work was to cement parts of shoes together, a lining to leather or other material so as to make a vamp . She was a capable employee. Helen Stewart, a witness for the Respondent who was a forelady and who worked with Elena for about a year, testified that Elena was a good worker who did "quite well" and who, so far as Stewart knew, made no mistakes before the day of her discharge . Elena received two wage in- creases, one in March 1956 from 80 cents to $1 per hour, which was required by law, and one of 5 cents per hour in February 1957. As related above, upon the occasion of the latter increase, Sal Pipitone told Elena that it was being given to her because she was a good worker. Elena was active in behalf of the Union. We have seen that the initial meeting was held in her home, as were some later meetings . During lunch hours at the plant, she circulated union cards and upon one occasion when she was collecting cards from fellow employees Foreman Goldstein was looking at her.6 On March 27, the day of her discharge, Elena was working on a special order and she ruined between 2 and 21/2 dozen pairs of vamps. In an operation preceding hers, an employee stamped upon the cotton linings numbers in ink to denote sizes. Elena received the linings along with "uppers" of suede, to which the linings were to be cemented. During the morning, Elena correctly cemented the linings to the undersides of the suede. During her lunch period the cement had time to dry. After lunch she assembled the vamps for delivery to the next operation and in doing so she made a mistake which caused the suede to be ruined. She should have assembled the vamps so that suede was placed upon suede and lining upon lining, as she had been accustomed to doing. Instead, she assembled them suede to lining. The record does not disclose when the ink numerals had been placed upon the linings and whether the ink had become dry , but, because of dampness in the atmosphere or another reason, the print of the ink was transferred to that part of the suede which was to become an outer part of a shoe. After assembling the vamps, Elena took them to Forelady Stewart who promptly noticed what had taken place and who tried unsuccessfully to remove the ink stain from the suede. Since the vamps were made under a special order and all of them were ruined, Stewart called the matter to the attention of Foreman Goldstein, who went over to Elena and promptly discharged her. On the following day, when Elena went to the plant to obtain her paycheck she talked with Sal Pipitone, acknowl- edged that she had made the error, and asked for reinstatement. Pipitone replied that Goldstein had discharged her and that he could not do anything in her behalf. She talked also with Goldstein, who told her that he was softhearted, that he had been directed by someone whom he did not identify to discharge her, and he said too that he would see what he could do about obtaining employment for her else- where because she was a good worker. Sometime later, when Elena applied to Goldstein for employment, he left her for a few minutes and returned to say that there were no jobs available.? The record does not disclose the value of the 2 dozen or so vamps which Elena ruined. Goldman, the Respondent's general manager, testified that the monetary loss was about $ 180, but upon cross-examination it developed that he had not, and could not, compute the loss.8 The record does not disclose the price at which the Respondent sells a pair of shoes with vamps like those which Elena ruined, but Wan Rodriguez testified that he had seen the shoes at a local retain store for $8 per pair. Insofar as appears, no employee other than Elena ruined so many vamps at one time although other employees, some of whom were not discharged, ruined as many or more vamps over a period of a week or more. It does not appear, however, that those instances involved special orders. I conclude that (1) Elena was a capable worker who made an error in her work that was not especially costly in a monetary sense but which was of unusual im- a Elena so testified. Goldstein was not a witness. 7 The findings concerning Goldstein' s and Sal Pipitone's remarks to Elena are based upon her uncontradicted testimony. At the time of the hearing, Goldstein was in Haiti, no longer employed by the Respondent. Findings of events on the day of Elena's dis- charge are based upon her testimony and that of Forelady Stewart, a witness for the Respondent. 8 The entire vamp was not lost, the linings having been removed for use on other vamps. Goldman testified concerning an alleged extreme displeasure of the customer, who refused to do business with the Respondent again that season, but, as Goldman also testified, this alleged refusal occurred after Elena's discharge and could not have been a motive for the discharge. ALLURE SHOE CORPORATION 727 portance because it affected a special order then in production; (2) Goldstein ob- served Elena collecting union cards from employees and thus that he knew of her union adherence; and (3) the Respondent's opposition to the Union, as found else- where herein, did not stop short of unfair labor practices. Nevertheless, I do not conclude that Elena was discharged because of her union activities. Insofar as the record discloses, the supervisor who discharged her, Goldstein, did not engage in coercive conduct or otherwise display hostility toward the union activities of employees, nor was he awaiting a pretext upon which to discharge her. Moreover, while the record shows that on the day after the discharge, Goldstein told Elena that he had been directed to discharge her, there is no other evidence that another (supervisor had a part in the discharge and, indeed, it appears that Goldstein's decision to discharge her was made upon his learning of her mistake. I find that the evidence does not support the allegation of the complaint concerning Elena's discharge. D. The discharge of Wandrijicilo Rodriguez Wan Rodriguez is a cutter who was hired by the respondent upon several occasions. In 1955, when laid off for a week by another employer, Wan applied for and secured temporary work with the Respondent. In 1956, the other employer having gone out of business, Sal Pipitone went to Wan's home and offered employment which Wan accepted. In October 1956 the Respondent gave Wan a leave of absence to visit his son who was ill in Cuba. In January 1957 Wan returned and worked until his discharge on April 11. During all the periods of his employment by the Respond- ent the piece rates for cutters remained unchanged and he did not receive a wage increase, but upon occasion he received extra compensation under a plan of reward- ing cutters who used less leather than had been allotted for particular operations. On February 20, as related, Wan attended the initial union meeting at the home of Elena Rodriguez. Thereafter he visited employees at their homes and solicited memberships. The Respondent concedes that Wan "was one of the principal organizers" of the Union, but denies that it was aware of his activities at times material. During the morning of March 29, Sal Pipitone sent for Wan. He said to Wan that he knew of Wan's union activities, to which Wan responded untruthfully that Sal had erroneous information, but Sal said that his information was correct, that he was going to discharge Wan because of those activities, and that he would use mistakes in work by Wan as the excuse for the discharge.9 Later that day, Sal Pipitone talked with Armand Bolduc and Joe Checkoway, the cutters longest in the Respondent's employ, and with Wan. To Bolduc and Checkoway, Sal said: "There is a lot of mistakes [being made by cutters]. You are the two oldest men here [in seniority]. I want you to know. You will probably have to be a witness." Sal, displaying material, said to Wan that two mistakes had been made and that a third mistake would result in discharge. Wan denied having made either mistake. He asked for proof that he had made a mistake with respect to a portion of the material, and Sal answered that the material had been put aside about a week earlier when the mistake was made. Wan asked why he had not been told of the mistake when it was discovered, and Sal answered, "It is your mistake, and the third time you make a mistake I am firing you." Bolduc and Checkoway listened silently.io On April 11, Bolduc and Checkoway again were called to Sal Pipitone's place of work to observe an alleged error in work by Wan. Bolduc testified without con- tradiction, and I find, that Sal said to Checkoway and him that Wan had acknowledged being a union organizer, that "We have to get rid of" Wan, and that Bolduc and Checkoway were to be witnesses that Wan was being fired for bad work and not 9 These findings are based upon Wan's uncontradicted testimony. He testified also that Jerry Pastor, an assistant to Sal Pipitone, may have been nearby, but neither Pipitone nor Pastor was a witness. 19 Wan and Bolduc, witnesses for the General Counsel, and Checkoway, a witness for the Respondent, testified concerning this event. The findings are based primarily upon Wan's testimony. Parts of the conversation between Wan and Sal Pipitone were in Spanish and were not understood by Bolduc and Checkoway who do not speak the language. Pipitone speaks Spanish to a limited extent. It is Wan's native tongue. According to Bolduc: "I couldn't catch them all." Bolduc recalled that Sal Pipitone spoke of Fan's being discharged upon a third mistake, but he did not recall that Wan was charged with a specific mistake or that material was displayed. Checkoway was unable to distinguish between remarks upon this occasion and upon the day of Wan's discharge, discussed below, but Checkoway did recall that upon this occasion alleged faulty work by Wan was displayed. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for being an organizer. In a few moments Wan appeared. Upon observing the scene, Wan concluded that he was about to be discharged and he said to Sal: "Listen to me, Mr. Pipitone. If you want to fire me by the union, you don't have any excuse. You are the boss here. You hire me, and you can fire me." Sal answered: "I don't fire you by the union. I fire you by the mistake," and he showed certain heel covers which had been cut from raffia, saying that they had been cut by Wan and should have been cut from raffia of another color." Sal said also that when Wan completed a job on which he had been working, his employment would end.12 Soon thereafter, Mike Pipitone gave Wan a paycheck and he was discharged. The Respondent advanced several reasons for having discharged Wan. The first to be considered is the alleged faulty work which was the subject of events on April 11. The question is whether Wan in fact performed it. The Respondent asserts that the heel covers were miscut about March 20 and that the error was undiscovered until April 11 when Zyggragen, foreman of the heel cover department, reported it to Mike Pipitone. But Zyggragen was not called as a witness to explain how he learned of the alleged error or why it was undiscovered for so long a time. Moreover, while the Respondent employs a number of inspectors for various opera- tions, some of whom are named in the transcript, the evidence concerning the inspec- tion system is conflicting. Thus, according to Wan, if he had made an error it should have been detected promptly by an inspector named Stella.13 According to Checkoway, a witness for the Respondent, the inspector of heel covers is named Mary or Marion, but she was not a witness. On the other hand, according to Mike Pipitone, there is no inspection of material cut from raffia, and raffia heel covers go directly to the fitting room without inspection after being cut. Mike Pipitone testified also that following the error by Wan the covers were stitched in the fitting room and attached to heels there or in the heel cover department, and that those operations were performed by two employees, but there is no probative evidence that the two employees were reprimanded for having performed -their operations without observing Wan's alleged error.14 The Respondent has two kinds of records which are pertinent to the question whether Wan miscut the heel covers. One is a "ticket" which is used by the cutter on each job and which specifies the model, the type of leather, and other necessary information for the cutter's guidance. The other is a "cutting slip" which has little information and which may relate to more than one job. There was received in evidence upon the Respondent's offer a cutting slip which it contends is the one relating to the heel covers. The cutter's ticket on the heel covers was not produced at the hearing, however, and the Respondent asserts that it is impractical to retain numerous tickets and that the pertinent one was lost or destroyed. This assertion is unpersuasive. The evidence is uncontradicted that on April 11, when the heel covers were displayed to Wan, a ticket also was displayed, that it contained Wan's number, but that Wan insisted that he had not miscut the heel covers. As a witness, Wan insisted that the ticket was dated February 4, more than 2 months before his discharge, while the Respondent contends that it was dated in the latter part of u The evidence of the General Counsel and the Respondent conflicts as to whether the heel covers were improperly cut from black raffia instead of natural raffia as ordered, or vice versa. 13 These findings are based upon the testimony of Wan and Bolduc. On the other hand, Checkoway testified that the heel covers were displayed by Mike Pipitone, not by Sal Pipitone, but that he was not present when Wan was discharged and that he did not hear all of the conversation because he had been called only to observe the alleged faulty work, that "I went away quick, you know," after seeing the material, and that "I don't wait there for what they are talking between them." Sal Pipitone was not a witness. Mike Pipitone testified that the alleged faulty work was brought to his attention that day by Rolando Zyggragen, a foreman, that he observed that the material had been cut by Wan, that he called Bolduc and Checkoway to Sal's place of work to observe because he wanted to be certain that it was Wan who had been at fault, that when all but Wan agreed .that Wan had been at fault he discharged Wan, that Sal Pipitone did not discharge Wan, and that Sal took little part in the events. I cannot credit Mike Pipitone's testi- mony. It is largely unsupported and is sharply contradicted by testimony by Wan and Bolduc. Moreover, as will appear, Mike Pipitone was an unreliable witness on other aspects of the case. 13 Stella appears to be Estelle Segredo who also is identified in the transcript as Estelle Sorengo. She testified that she does not inspect heel covers. 14 Mike Pipitone testified at first that they were reprimanded, but his further testimony shows that he did not know their names and that he merely assumed that they had been reprimanded. ALLURE SHOE CORPORATION 729 March. The ticket, with its detailed cutting directions, might have shed consider- able light on the issue whether Wan miscut the heel covers. It was in the Respond- ent's possession as late as April 11. Its loss is to be contrasted with the Respondent's care in providing itself with propective witnesses to Wan's discharge. The loss is to-be contrasted also with the Respondent's earlier having put aside the vamps which were to demonstrate Elena Rodriguez' faulty work. We -turn to the cutting slip in evidence. It does not support the Respondent's position. It is dated March 20 and shows that Wan was assigned 3 cutting jobs simultaneously, each of 36 pairs. The job numbers, in order, are 2421, 2420, and 2419, and there is a notation that all jobs were to be cut from natural raffia. The cutting slip was prepared in the stockroom and was of use to Wan in obtaining the raffia therefrom. According to the testimony of Mike Pipitone, Wan correctly cut jobs Nos. 2421 and 2420 from natural raffia but incorrectly cut No. 2419 from black raffia. The cutting slip bears a notation, which Mike Pipitone testified that he inserted on April 11, to the effect that job No. 2419 had been cut from black raffia, but he testified also that he was unable to say what caused Wan to make the alleged error. Manifestly, the cutting slip is not proof that Wan made it. If anything, it indicates the contrary since Wan correctly cut job Nos. 2420 and 2421. Upon all the evidence, I conclude that Wan did not miscut the heel covers, and, even assuming that he did, there was no monetary loss to the Respondent.15 Turning to other reasons advanced by the Respondent for Wan's discharge, it is asserted that Wan was a troublemaker, incompetent, and insubordinate. But Mike Pipitone. testified that, insofar as he had information at the time of the discharge that Wan was ,a troublemaker, such information was at most "a minor" consideration in the discharge. As to the defense of incompetency, the Respondent offered oral evidence of several instances of alleged poor workmanship, but the evidence is sharply disputed by Wan's testimony. I believe it is unnecessary to detail this evidence. It suffices to say that Mike Pipitone testified inconsistently that Wan's fault was carelessness which was reflected in mistakes from the time he was initially hired, but, on the other hand, that Wan became careless in March 1957, the month before his discharge. Checkoway, a witness for the Respondent, testified that Mike Pipitone told him of having warned Wan but that Pipitone "always tells that to everybody. It doesn't make any difference who the man is." The alleged insubordination by Wan occurred after he was informed that he had been discharged. According to Mike Pipitone, following Wan's discharge, Wan became involved in an argument with Foreman Zyggragen, who had reported to Mike Pipitone the error in cutting heel covers, and during the argument Wan threatened to take Zyggragen outside the plant and beat him. Mike Pipitone, testi- fied further that he then was reconsidering his decision to discharge Wan and, upon learning of Wan's conduct toward Zyggragen, he decided to make the discharge effective. Mike Pipitone's testimony is sharply disputed by that of Wan, who testi- fied that he conversed pleasantly with Zyggragen after his discharge, and it also is unconvincing on its face. According to Pipitone, during the alleged argument between Wan and Zyggragen, as employees "started collecting," he "called another foreman," Tony Ballerino, to come over and together they separated Wan and Zyggragen although the men were not grappling or exchanging blows. But Wan and Zyggragen were conversing in Spanish and Mike Pipitone, by his own admission, understood little of what they said. He testified that he decided definitely to dis- charge Wan after having been told by Ballerino, who understands Spanish and who somehow had heard the conversation from the point where he had been when Mike Pipitone called him over, and by Zyggragen of the details of the argument. Thus, Mike Pipitone's testimony concerning the remarks between Wan and Zyggragen is hearsay. Testimony of probative value concerning those remarks could have been given by Zyggragen and perhaps by Ballerino and various employees, but none of them was called as a witness to dispute Wan's testimony that his conversation with Zyggragen had been entirely friendly. In view of Wan's leadership in union activities coupled with Sal Pipitone's threats to discharge him therefor, and the fact that there is no substance to the Respondent's defense, I find that Wan Rodriguez was discharged in violation of Section 8(a)(3) and (1) of the Act. About a month and a half or more following his discharge, Wan returned to the plant seeking employment. At that time a charge was on file with the Board alleging that he had been discharged invalidly. He spoke with Sal Pipitone who said that 'b Unlike the loss to the Respondent when Elena Rodriguez ruined vamps , it does not appear that there was a monetary loss in the heel covers which Wan allegedly miscut. He testified that the heel covers could be used in the manufacture of other shoes. Alike Pipitone testified that he did not know whether such use had been made of them. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wan did not "think with [his ] head" but that "we are going to see what we can do." Subsequently, Wan was called to the plant by the Respondent . Sal Pipitone referred him to Sam Pipitone, plant superintendent . Sam Pipitone told Wan that he was unfamiliar with what had taken place, and Wan gave an explanation . Sam Pipitone said that he wished to aid Wan because Wan had dependents and not because of the charge on file against the Rependent , but that he could not do so. Wan asked why he had been sent for if nothing could be done. Sam Pipitone suggested that Wan "Think, think," and Wan asked what he could do. Sam Pipitone replied by asking if Wan could write in English , and Wan said that he could do so "a little bit." Sam Pipitone then said that Wan should compose a letter to the effect that Wan wished to return to work, that he had been discharged for making mistakes in his work, and that the discharge had not been for union reasons. After the -letter was written, said Sam Pipitone, reinstatement would be given . Wan said that Sam Pipitone had "a good idea." Sam Pipitone said that he would communicate with Wan the next day, but nothing further occurred . 16 The complaint alleges that the Respondent, by Sam Pipitone's conduct, violated Section 8(a)(4) and ( 1) of the Act . I believe that it is unnecessary to determine whether there was a violation of Section 8(a) (4) because , whatever the answer, the terms of the Recommended Order below would not be altered. This is not so, however , with respect to the Section 8(a) (1) allega- tion. We have seen that Sam Pipitone , using restoration to employment as an inducement , sought to persuade an invalidly discharged employee to declare in writ- ing that the discharge had been valid and, in effect , that a pending charge was without merit. It is fundamental that the rights guaranteed in Section 7 include the right of participation in Board proceedings to secure those rights . I find , therefore, that the Respondent, by Sal Pipitone 's conduct, violated Section 8(a)(1). E. Gonzalez' loss of overtime As recited above, upon various occasions Sal Pipitone warned and threatened Concepcion Gonzalez concerning union activities, asked her to report to him con- cerning union meetings , and once went to her home and told her mother to convey a threat of discharge to her. On March 20, Gonzalez signed an authorization to the Union to represent her in collective bargaining , and on August 30 she was an observer for the Union at the election. The complaint alleges that the Respondent denied overtime work to Gonzalez because of her union activities . There is no dispute that work assignments were taken from her with a resulting loss of overtime earnings . There is a dispute, how- ever, concerning the dates that such occurred and the reasons therefor. Gonzalez testified , and I find , that upon various occasions during February and thereafter Mike Pipitone took work assignments from her and failed to give other assignments to her and that, on the first occasion upon her inquiry as to his reason , he answered that he was the foreman and that she should not "ask him anything." During the latter part of March, Gonzalez asked Sal Pipitone why she was being denied overtime work and he answered, "I am taking your overtime away because I am going to punish you, because you are in the union . . . don't ask me anything else." 17 In view of Sal 16 The findings concerning these conversations are based upon Wan ' s uncontradicted testimony . Sal and Sam Pipitone were not witnesses. 17 These findings are based upon the testimony of Gonzalez and, since Sal Pipitone was not a witness , her testimony concerning his remarks is uncontradicted . As recited in footnote 4, the Respondent offered evidence to discredit Gonzalez ' credibility , but, as also related above , we have no dispute that she was denied work assignments . Moreover, her testimony that the assignments were denied to her as early as February is supported by the testimony of Wan Rodriguez who overheard Mike Pipitone say to her in February that he was taking work assignments from her and would not give her additional over- time work . On the other hand , Mike Pipitone's version of the matter is unconvincing. On direct examination he testified that about February 15 Gonzalez began to leave her machine without reason and that he found it necessary to go after her and to tell her to return to work . On cross-examination, however, he testified that beginning with August 1 he observed that she left her machine from time to time. On direct examination he also testified that it was about August 1 that lie first took work from her and that he gave it to another employee because she was not performing her work well or fast enough or because she was away from the plant due to illness. On cross-examination , however, he would not say that it was during August when he first took work from her, and he testified that he could not recall any occasion when she was at work and he took assignments from her to give to someone else, that her speed in work was average and not slow, that she was not absent from work because of illness more than other employees , and that although she was not doing her work well it was not for this reason that he took work from her. ALLURE SHOE CORPORATION 731 Pipitone's repeated warnings to Gonzalez concerning reprisals if she engaged in union activity, his candid statement to her that overtime work was taken from her because of those activities, and Mike Pipitone's unconvincing testimony on the matter, I find that Gonzalez was denied overtime work because of her union activities in violation of Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent discharged Wandrijicilo Rodriguez on April 11, 1957, because of his union activities. I shall recommend, therefore, that the Re- spondent offer him immediate and full reinstatement to his former or a substantially equivalent position (The Chase National Bank, etc., 65 NLRB 827), without prejudice to his seniority or other rights or privileges, and that it make him whole for any loss of pay he has suffered by reason of the discrimination against him by pay- ment to him of a sum of money equal to that which he normally would have earned from April 11, 1957, to the date of a proper offer of reinstatement, less his net earn- ings (Crossett Lumber Company, 8 NLRB 440, 497-8) during said period, the pay- ment to be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. 1 have found also that the Re- spondent denied overtime work to Concepcion Gonzalez during and after February 1957 because of her union activities. I shall recommend that the Respondent make her whole for the loss thereof by payment to her of a sum of money equal to that which she would have earned as overtime absent the discrimination against her. I shall recommend further, in accordance with the Woolworth decision, that the Re- spondent preserve and make available to the Board and its agents, upon request, for examination and copying, all payroll records, social-security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of these recommendations. In view of the nature of the unfair labor practices committed, I shall recommend, in order to make effective the interdependent guarantees of Section 7 of the Act, that the Respondent cease and desist from, in any manner, infringing upon the rights guaranteed in Section 7. N.L.R.B. v. Express Publishing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Wandrijicilo Rodriguez and Concepcion Gonzalez, and thereby discouraging mem- bership 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. 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 en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The allegations of the complaint that the Respondent discharged Elena Rod- riguez and granted wage increases in violation of the Act have not been sustained. SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDED ORDER An March 12, 1958, I issued an Intermediate Report and Recommended Order in this proceeding . On September 10, 1958, the Board, in accord with the doctrine 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Ru-Rich Manufacturing Corp., 121 NLRB 700, entered an Order providing inter alia that "the General Counsel forthwith make available to Respondent such pre- trial written statements and affidavits, or copies thereof, of witnesses who have testi- fied for the General Counsel.. . On September 25, following an appropriate motion by the Respondent, the Board issued an "Order Reopening Record and Remanding Proceeding" for a further hearing to permit additional examination of witnesses for the General Counsel whose pretrial statements had been made avail- able to the Respondent. The latter Order provided further that "the Trial Examiner shall prepare and serve upon the parties a Supplemental Intermediate Report con- taining findings of fact, conclusions of law, and recommendations. .. On October 16, 1958,, the reopened hearing was held at Miami, Florida. At its conclu- sion the parties waived oral argument and the right to file briefs. Upon the basis of the entire record in the case, and from my observation of the witnesses, I make the following: SUPPLEMENTAL DETERMINATIONS Only two witnesses were examined at the reopened hearing, the Respondent hav- ing waived its right to examine others. The two are Wandrijicilo Rodriguez and Dorothy DeBenedi^ttis. Their affidavits, along with one by Armand Bolduc, were received in evidence. Wandrijicilo Rodriguez' Affidavits and Testimony Rodriguez executed four affidavits. The first two, dated March 30 and April 3; 1957, respectively, relate to events on March 29, 1957, which are described in the Intermediate Report. The affidavits were executed before notaries public becauo., as the documents recite, Rodriguez anticipated his discharge and he wished to take steps to avoid "future confusion" and to afford himself "protection." Nothing in these two affidavits or in Rodriguez' testimony warrants a modification of the findings concerning events on March 29, but one aspect of Rodriguez' testimony should be discussed. That is, in his testimony on October 16, 1958, Rodriguez con- tradicted testimony which he had given on September 12, 1957, at the initial hear- ing. As the Intermediate Report recites, on March 29, 1957, Rodriguez talked with Sal Pipitone twice. Bolduc and Checkoway, employees, were present at the second conversation. The question is whether Bolduc was present at the first conversation also. In detailing the first conversation, Rodriguez testified at the initial hearing that no one else had been present. At the reopened hearing more than a year later, Rodrigue, testified that Bolduc had been present. I do not know whether the pas- sage of time dulled Rodriguez' memory, but I am satisfied that Rodriguez sought to tell the truth and that the contradictory testimony does not represent a deliberate falsification by him upon either occasion that he testified. I am satisfied too, upon the entire record including the affidavits now in evidence, that Bolduc was not present at the first conversation between Rodriguez and Sal Pipitone on March 29. Moreover, whether Bolduc was present or absent, the facts remain, as set forth in the Intermediate Report, that Rodriguez, as a witness quoted Sal Pipitone as hav- ing threatened to discharge him because of his union activities and that Pipitone was not called as a witness to contradict Rodriguez. Rodriguez' third and fourth affidavits were executed before a field examiner of the Board during June 1957. Nothing in either affidavit constiutes a basis for alter- ing any finding in my Intermediate Report, but one aspect of the fourth affidavit requires comment. In the Intermediate Report, beginning at line 35, there is a discussion of a conversation on an undisclosed date between Rodriguez and Sam Pipitone.I In Rodriguez' fourth affidavit, the date of that conversation is given as June 10, 1957. That date is also the date of the affidavit, but Rodriguez testified that the affidavit was not executed on the day of the conversation. I see no reason to believe that Rodriguez would testify that the affidavit had been executed after the date of the conversation if, in fact, it had been executed on the same date. Therefore, the affidavit is in error in the date given for its execution or in the date it fixes as the date of the conversation. The affidavit is in longhand in the English language, and Rodriguez does not have a sufficient command of English to have enabled him to write it. The record does not establish the identity of the writer but IIn the concluding sentence of that discussion, the words "Sal Pipitone's conduct" should be "Saul Iipitone's conduct." That inadvertency is hereby corrected. ALLURE SHOE CORPORATION 733 gives the impression that the field examiner likely is the person. In any event, I do not know in which instance the date is erroneous, but an erroneous date in the affidavit affords insufficient reason to alter any finding concerning the conversa- tion between Rodriguez and Sam Pipitone. As the Intermediate Report recites, Sam Pipitone was not a witness and Rodriguez' testimony is uncontradicted. Bolduc's Affidavit Bolduc was not a witness at the reopened hearing. His affidavit, received in evidence, requires comment in one respect, namely, wherein I found in the Inter- mediate Report that it was April 11, 1957, upon which Sal Pipitone spoke to Bolduc concerning Wan Rodriguez. The reader's attention is directed to the Intermediate Report, where I found on the basis of Bolduc's testimony that on the day of Rod- riguez' discharge, April 11, 1957, Sal [Pipitone] said to Checkoway and him [Bolduc] that Wan [Rodriguez)! had acknowledged being a union organizer, that "We have to get rid of" Wan, and that Bolduc and Checkoway were to be witnesses that Wan was being fired: for bad work and not for being an organizer. Bolduc's testimony, upon which this finding was made, was uncontradicted by- Checkoway, a witness for the Respondent, and, more particularly, by Sal Pipitone whom the Respondent did not call as a witness. Bolduc testified that on the day of Rodriguez' discharge Sal Pipitone said, This guy [Rodriguez] already admits he was a union organizer, and he has been doing a lot of mistakes. We have to get rid of him. We are are not getting rid of him because he is a union organizer. It is on account of bad work.... Bolduc testified that before we seen this guy at all [Rodriguez, who had not come into Sal Pipitone's place of work], he [Pipitone] said, "This guy [Rodriguez] already admitted that he was a union organizer." He [Pipitone] said, "We have to get rid of him." He said, "We want you two guys here [Bolduc and Checkoway] to be a witness that we are not firing him on account of being a union organizer." He says, "It was on account of bad work." .. . Turning from Bolduc's testimony to his affidavit, the latter indicates that Sal Pipitone's remarks may have been made earlier than April 11. This is so because the affidavit recites: About 3 weeks before Rodriguez was fired Pipitone told me that Rodriguez had admitted he was an organizer for the union, he did not mention Rodriguez by name, he said this man is making too many mistakes. Bolduc's affidavit was made in June 1957, about 2 months after Rodriguez' dis- charge and 3 months before Bolduc testified. At the reopened hearing in October 1958, Bolduc's whereabouts were unknown and he did not testify. Thus, we do not have his explanation of an apparent contradiction between his affidavit and his testimony. But this contradiction relates primarily to the date when Sal Pipitone made certain remarks, not to the substance of the remarks. I am mindful that a witness' contradictory testimony in fixing the date of an event may reflect adversely upon his recitation of the event itself, but, as the record in this case establishes, neither Checkoway nor Sal Pipitone denied that the remarks were made by Sal. In any event, we are dealing now with the soundness of my determination that Wan Rodriguez was invalidly discharged and, if the above-quoted finding of the Inter- mediate Report were to be deleted, the record nevertheless would strongly support. the conclusion that Rodriguez was invalidly discharged. DeBenedittis' Testimony and Affidavit DeBenedittis' uncontradicted testimony is set out in the Intermediate Report_ Nothing warrants modification or further discussion of her testimony. [Recommendations omitted from publication.)