Accurate Forming Corp.

ACCURATE FORMING CORPORATION 653 CONCLUSIONS OF LAW 1. Duralite Co., Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. Local 485 , International Union of Electrical, Radio and Machine Workers,. AFL-CIO, 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 by Section 7 of the Act, as above found, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] Accurate Forming Corporation and Everlast Metal Finishing Corporation and United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO and Local 810, Steel, Metals, Alloys and Hardware, Fabricators and Warehousemen, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America and United Rubber, Cork, Linoleum & Plastic Workers of America , AFL-CIO. Cases N08.22-CA-55 and 22-CB-59. August 16,1960 DECISION AND ORDER On February 9,1959, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. On March 23,1959, the Respondent Employer filed with the Board a motion to set aside the Intermediate Report and reopen the hearing on the basis of an affidavit by employee Bertha Koskovich for the purpose of receiving further evidence bearing upon: the credibility of Koskovich and other witnesses at the original hear- ing. On June 18, 1959, the Board ordered the proceeding remanded for further hearing on the credibility issue. On November 24, 1959, upon the conclusion of the reopened hearing, the Trial Examiner issued the Supplemental Intermediate Report attached hereto affirm- ing the unfair labor practice findings made in the original Inter- mediate Report but deleting his recommendation of backpay for Koskovich. Thereafter, the Respondent Employer filed exceptions to the Supplemental Intermediate Report and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Intermediate Report and Supplemental Intermediate Report.' ' The Respondent Employer 's request for oral argument is denied as the record, exceptions, and briefs , in our opinion , adequately present the Issues and positions of the- parties. 128 NLRB No. 82. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 and the Supplemental Intermediate Report, the ex- ceptions and briefs, and the entire record in this proceeding, and hereby adopts findings, conclusions, and recommendations of the Trial Examiner in the Intermediate Report, as modified by the Supple- mental Intermediate Report.2 The record in these cases shows that on July 12, 1957, a representa- tive of the Charging Party, United Rubber Workers, contacted sev- eral employees of the Respondent Companies, including Bertha Kos- kovich, Louise Swartz, and Barbara Masker, with the view to enlisting these employees as active proponents of the Union. A meeting of employees was scheduled for July 16 at Masker's home. On that date Masker was summarily discharged by the Respondent Companies and was told, according to her credited testimony, that the reason for her discharge was the fact that she "was in contact with the Union." On the same date Koskovich and Swartz were similarly discharged. The Respondent Companies contend that the attendance record of these employees was poor. As the Trial Examiner points out, such a reason, if the real reason, would be an adequate defense to the charges. How- ever, the record shows that all three employees had been granted wage increases within days of their discharge. Indeed, Koskovich was given a raise the day before Respondents allegedly decided to dis- charge her. We must agree with the Trial Examiner that the timing of the discharges, which occurred 4 days after the Rubber Workers contacted these employees and on the very day of a scheduled union meeting at Masker's home, the fact that these employees were the leaders in the Union's organizational campaign, and the failure of the Respondent Companies to establish that the discharges were for cause, all lead to the conclusion that the real reason for the Respondent Companies' precipitate action in discharging these employees was antiunion motivation. The Trial Examiner found and the Board unanimously agrees that following these discharges the Respondent Companies made haste un- lawfully to assist Local 810 of the Teamsters by coercing its employees to join that labor organization and by executing a collective-bargaining contract in violation of Section 8(a) (1), (2), and (3) of the Act. 2 The General Counsel in his exceptions contends the Trial Examiner made two errors : (a) The Trial Examiner did not rule on the General Counsel's motion to strike the Respondent Union 's answer because there was no service thereof on the charging party; and (b ) the Trial Examiner did not provide a remedy in accordance with the Mountain Pacific decision , 119 NLRB 883. As to ( a), we agree with the Trial Examiner that no party was prejudiced by his failure to grant the General Counsel 's motion. As to (b), the Trial Examiner, in requiring that the Respondents cease giving effect to their contract and take other affirmative action provides for a remedy that is sufficiently broad to cover all the 8 ( a)(2) violations found herein. ACCURATE FORMING CORPORATION 655 The Trial Examiner also found and the Board unanimously agrees that Respondent Local 810 of the Teamsters unlawfully coerced the 'Companies' employees and unlawfully caused the Companies to dis- ,criminate against them in violation of Section 8 (b) (1) (A) and (2) of the Act. As indicated above, following the original hearing in these cases, Koskovich signed an affidavit in which she admitted that she had testified falsely with regard to a telephone conversation between ,officials of the Companies and the Respondent Union's representative and alleging further that Masker had been persuaded by a representa- tive of the Rubber Workers to testify falsely as to the reason for her discharge. At the reopened hearing Koskovich indicated that her repudiation of her original testimony was voluntary. However, she also testified that Busacco, an official of the Companies, asked her if she did not think it was better just to have a job and work and not be a "trouble-maker." Koskovich testified that she replied, "It would .be better to have a job. I had two kids to feed." Busacco testified at the second hearing that Koskovich told him that she was "fed up" and wanted a steady job. After due consideration of the issues raised by the posthearing affidavit of Koskovich, the Trial Examiner reaffirmed his original finding, except that he deleted his finding, based upon the original testimony of Koskovich, that officials of the Companies and Respond- ent Union had engaged in a telephone conversation in which payment ,of $100 was discussed. With regard to the affidavit and testimony of Koskovich, he would not accept this evidence as sufficient to over- come the testimony of other witnesses, whom he regarded as more reliable and worthy of belief than Koskovich. He concluded, accord- ingly, that his original findings of unfair labor practices were correct. The Board majority is in agreement with the Trial Examiner's -conclusions. Contrary to our dissenting colleague, we do not regard these conclusions as "unrealistic." Rather, we are of the opinion that our dissenting colleague's view that Koskovich, Masker, and Swartz were not discharged because of their union activities has been unduly influenced by the testimony of Koskovich, whom the Trial Examiner and the Board unanimously agree is a "thoroughly discredited wit- ness." Neither the Trial Examiner nor the Board relies to any extent upon the testimony of this inconsistent witness, although our dissent- ing colleague seems to rely on her statements in finding support for the allegation that Spelman suborned false testimony. Our decision that the Respondent Companies violated Section 8(a) (3) in discharging these employees summarily as soon as their activity on behalf of the Rubber Workers became known is based solely upon the evidence set forth above and in the Intermediate Reports, respecting the timing of the discharges, these employees' known union activity, and the 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence of any credible explanation for the discharges. This evidence,. which excludes the testimony of Koskovich, consists of testimony by- witnesses specifically credited by the Trial Examiner because of their personal demeanor, conduct, and attitude at the hearing as well as the inherent probabilities in the entire context of these cases.' It has long been established Board law that the Board will not overrule a Trial Examiner's resolutions as to credibility unless the clear pre- ponderance of all the relevant evidence convinces the Board that his resolutions were incorrect. Standard Dry 'Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). We do not believe the, evidence in these cases is sufficient to warrant a reversal of the Trial' Examiner in this respect. ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that: A. Respondent Companies, Accurate Forming Corporation and' Everlast Metal Finishing Corporation, their officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, or activities on behalf of, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO,, or any other labor organization, by discharging employees or dis- criminating in regard to their hire or tenure of employment, or any term or condition of employment. (b) Contributing support or assistance to Local 810, Steel, Metals, Alloys and Hardware, Fabricators and Warehousemen, International' Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of their employees, or recognizing said labor organization as the representative of any of their employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until said labor organi- zation has been duly certified by the National Labor Relations Board, as the exclusive representative of such employees. (c) Giving effect to the collective-bargaining agreement between Respondent Companies and Respondent Local 810, or to any extension, renewal, or modification thereof. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through s Thus, the Trial Examiner specifically credited Masker after full consideration of the inconsistencies relied on by our dissenting colleague and further discredited Koskovich and credited Spelman, Masker, and Swartz concerning Spelman's alleged subornation of false testimony. ACCURATE FORMING CORPORATION 657 representatives of their own choosing, and to engage in other con- Lerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action which the Board finds will ,effectuate the policies of the Act : (a) Make whole Barbara Masker and Louise Swartz for any loss of pay they may have suffered by reason of the discriminations against them .4 (b) Withdraw and withhold all recognition from Respondent Local .810 as the collective-bargaining representative of any of their em- ployees for the purpose of dealing with Respondent Companies ,concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until said organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (c) Jointly and severally with Respondent Local 810 reimburse all employees for moneys paid by them to Respondent Local 810. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the amounts of moneys due under the terms of this Order. (e) Post at their places of business in Franklin and Ogdensburg, New Jersey, copies of the notice attached hereto marked "Appendix A." 5 Copies of such notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by a representative of Respondent Companies, be posted upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered, by other material. (f) Notify the Regional Director for the Twenty-second Region, in writing, within 10 days from the date of this Order, what steps Respondent Companies have taken to comply therewith. B. Respondent Union, Local 810, 'Steel, Metals, Alloys and Hard- ware, Fabricators and Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, agents, successors, and assigns, shall: • The loss of pay shall be computed in accordance with the customary formula of the National Labor Relations Board. These employees and Bertha Koskovich have been reinstated to their former jobs. Accordingly, the recommendations herein made do not contain provisions requiring reinstatement. 5In 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." 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Giving effect to the collective-bargaining agreement between Respondent Local 810 and Respondent Companies, or to any exten- sion, renewal, or modification thereof. (b) Causing or attempting to cause Respondent Companies to. discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (c) In any like or related manner restraining or coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, except in the manner permitted by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Companies reimburse all employees for moneys paid by them to Respondent Local 810. (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying,, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary or useful to determine the amounts of moneys due under the terms of this Order. (c) Post at its business offices, copies of the notice attached hereto, marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by Respondent Union's representative, be posted immedi- ately upon receipt thereof, and be maintained by the Respondent Union for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees or prospective employ- ees are customarily posted. Reasonable steps shall be taken to insure. that such notices are not altered, defaced, or covered by any other material. (d) Additional copies of said notice hereto attached marked "Ap- pendix B" shall be signed by a representative of Respondent Union and forthwith returned to the Regional Director for the Twenty- second Region. These notices shall be posted in places where notices to the employees of Respondent Companies are customarily posted. (e) Notify the Regional Director for the Twenty-second Region, in writing, within 10 days from the date of this Order, what steps Respondent Union has taken to comply herewith. MEMBER RODGERS, dissenting in part: I disagree with the position taken by my colleagues insofar as they would find that the Respondents discriminated against employees 6 See footnote 5, supra. ACCURATE FORMING CORPORATION 659 Koskovich, Masker, and Swartz in violation of Section 8(a) (3) of the Act. In his Intermediate Report, the Trial Examiner found, inter alia, that the Respondent Companies had violated Section 8(a) (3) by the discharge of three employees-Koskovich, Masker, and Swartz. After the Intermediate Report had issued, Koskovich, one of the principal witnesses for the General Counsel and upon whose testimony the Trial Examiner placed substantial reliance, came forward with an affidavit wherein she repudiated her prior testimony and admitted that she had perjured herself on the witness stand. In addition, Koskovich asserted that the testimony given by Masker and Swartz was likewise false, and was suborned by Spelman, a United Rubber Workers' organizer. On the basis of this affidavit, the Board remanded the case to the Trial Examiner "for the purpose of receiving additional evi- dence relevant to the credibility of Bertha Koskovich, Barbara Masker, and all other witnesses at the original hearing." At the reopened hearing Koskovich testified that she had lied at the original hearing concerning the occurrence of a telephone conversa- tion,' and that Masker had induced her to testify falsely in this re- spect. Koskovich further testified that Spelman, the union organizer, had suborned the false testimony of Masker and Swartz to the effect that they were discharged for "union activities." 8 In this respect, Koskovich testified that she knew that Masker had been warned about taking too much time off, and that in fact Masker's discharge was predicated on tardiness and excessive absenteeism. Masker's testimony at the reopened hearing was so inconsistent with that which she had previously given that the Trial Examiner felt compelled to remind her of the seriousness of the matter and the testimony she was giving.9 Pointedly, the Trial Examiner asked 7 The evidence as to this telephone conversation is material to issues other than the alleged discriminatory discharges However, since the record contains independent reliable evidence sufficient to support the Trial Examiner 's findings as to these other issues, i e , that the Respondent Companies assisted the Unions in violation of Section 8(a)(2) and that the parties thereafter executed a contract violative of Section 8(a)(1) and (3 ) and 8 ( b) (1) (A) and ( 2) of the Act, I would join with my colleagues in the order which remedies these violations. 8 Thus Koskovich testified : Q. Now Airs Koskovich , do you remember driving down to Newark on the day after your were flied? A. I don't remember if it was the day after or not but I do remember going down. Q Who was in the car at that time? A. Barbara Masker, Louise Swartz, myself, and Mr. Spelman. Q. Now, do you remember Mr Spelman saying anything to Barbara about what she should tell in her statement during that trip? A. Not what she should tell . Just what she shouldn't say. Q What she shouldn't tell? A. Yes. Q. What did lie tell her she shouldn't tell" A She shouldn't state she had been laid off for taking too much time off She should stick to "it was for union activities " Because we had talked to him 0For example , at the reopened hearing, Masker strenuously denied that during the drive to Newark these was any discussion of the discharges in general or of her lateness 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Masker : "Do you realize as a result of your testimony the first time I made some findings against a man that maybe I should not have made?" Despite the testimony of Koskovich and Masker at the reopened hearing, the Trial Examiner, in his Supplemental Intermediate Re- port, adhered to his original findings that the Respondents had dis- criminated against Koskovich, Masker, and Swartz in violation of Section 8(a) (3). However, because of Koskovich's repudiation of her originally false testimony, the Trial Examiner reversed his finding that a certain telephone conversation occurred. In addition, because Koskovich had given testimony "which she must have known was false," the Trial Examiner, at the General Counsel's suggestion, rec- ommended that Koskovich be denied backpay. But, despite reserva- tions which the Trial Examiner had regarding Masker's veracity, he continued to credit her testimony. My colleagues now concur in the Trial Examiner's handling of these matters. Their action, in this regard, strikes me as unrealistic. In the first place, as the record presently comes before us, Koskovich stands as a throroughly discredited witness. Consequently, her entire testimony should be completely disregarded. Nevertheless, the Trial Examiner, and necessarily my colleagues, are relying on Koskovich's testimony to find that she was unlawfully discharged. This finding, premised as it is on discredited testimony, is, to my way of thinking, patently fallacious.I° and absenteeism in particular. On cross-examination, however, when she was confronted with her affidavit in which she stated, "On the trip to Newark with Mr. Spelman, I recall that myself, Bertha, and Louise talked about our discharge from the com- pany . . ..", she retracted somewhat and conceded that "we might have talked about the details between ourselves." Later in the hearing the Trial Examiner Inquired of Masker whether anything was said to her about lateness or absenteeism on the morning she was discharged. Masker was absolutely positive that no mention was made of such matters and the following exchange occurred : TRIAL EXAMINER : Then why were you discussing that matter in the car on the way to Newark? The WITNESS: We wasn't discussing it. TRIAL EXAMINER: You answered Mr. Brickman that there were some comments made about your absenteeism and lateness on the way.. . . The WITNESS: Well then I didn't hear him right. TRIAL EXAMINER : You are saying there was no comment made about your absenteeism and lateness on the way to Newark? The WITNESS : Oh, yes, there was. It was about the baby. s s s s * • * We were talking about the baby and I said I was absent a lot from him being sick. 1o At the first hearing, Koskovich testified that the plant supervisor had discharged her because of dissatisfaction with her work, testifying that the supervisor had said that "I must be dissatisfied . . . or I wouldn't be trying to get a union in." After the close of the hearing, Koskovich stated, in an affidavit, that : "I was laid off for excessive absenteeism and lateness . . . with Louise Swartz and Barbara Masker and was told ACCURATE FORMING CORPORATION 661 In the second place, Masker, in my opinion, is also a thoroughly discredited witness. During the original hearing Masker fully cor- roborated Koskovich's testimony as to all material issues. The Trial Examiner rightly regarded Masker's testimony as complementing that of Koskovich: thus in the Intermediate Report, the Trial Examiner observed that Koskovich and Masker had testified as to the occurrence of a certain conversation "in such a manner that a rejection of their testimony on this matter casts suspicion upon their entire testimony." This suspicion as to Masker was shown to be well founded when sub- sequently Koskovich reversed her testimony as to the conversation in question. But even aside from the doubt which Koskovich's testimony casts on Masker's veracity, the Trial Examiner observed, at the reopened hear- ing, that Masker's recollections as to the statements and events occur- ring at the time of her own discharge, matters with which she should have been intimately familiar, varied substantially from her previous sworn testimony." Consequently, to rely upon Masker's testimony in any respect would, as in Koskovich's case, be equally fallacious. In the third place, insofar as the finding of unlawful discrimination extends to the benefit of Swartz, in view of all that has transpired, especially as regards Koskovich and Masker, and in view of the equiv- ocal state of the record with respect to the activities of Spelman in sub- orning the false testimony of Masker and Swartz, I am reluctant, in the circumstances of this case, to find that she was discriminatorily discharged in violation of Section 8(a) (3) of the Act. In summary then, it appears to me that my colleagues have reasoned fallaciously by picking and choosing evidence to support a previously held position. In view of Koskovich's damaging admissions and the effective impeachment of Masker as a credible witness, their testi- mony should carry no weight and, in effect, should be regarded as excised from record. Consequently, with insufficient credible evidence to say it was for union activities. .. ' At the reopened hearing, Koskovich repudiated this last account and reverted to her original testimony that she was discharged for union activities . Thus, Koskovich has, on no less than two out of three occasions, given contradictory versions as to the reason for her discharge How my colleagues are able, in connection with Koskovich , to isolate the truthful from the untruthful version completely escapes me. u Thus, Masker had originally testified that she was discharged by Serin, secretary of Respondent Accurate and treasurer of Respondent Everlast, and that Serin had re- ferred to union activities as the reason for the discharge . Masker denied at that time that she had been discharged by Triana , the plant superintendent. However, at the reopened hearing, Masker testified that Triana had told her she was being discharged for union activities and that she was then referred to Serin. As to this variance, the Trial Examiner said : In view of this testimony and other evidence at the further hearing impugning Masker's veracity, the Trial Examiner has again pondered whether Masker's testimony should be accepted. .. [Emphasis supplied.] 577684-61-vol. 128-43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the record, I can find no basis for concluding that Koskovich, Masker, or Swartz were discriminately discharged in violation of Section 8 (a) (3) of the Act. 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 Labor Manage- ment Relations Act, we hereby notify our employees that: IVE WILL NOT discourage membership in, or activities on behalf of United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or in or on behalf of any labor organization, by discriminating in any manner .in regard to terms or conditions of employment. WE WILL NOT assist or contribute support to Local 810, Steel, Metals, Alloys and Hardware, Fabricators and Warehousemen, International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization. WE WILL NOT give effect to the provisions of the collective- bargaining agreement with the aforementioned Local 810. WE WILL NOT give effect to any provisions of any agreement which conditions the hire of applicants for employment, or the retention of employees , upon referral or clearance by labor or- ganizations, except as authorized by Section 8(a) (3) of the Act. WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the exercise of their rights to engage in, or refrain from engaging in, union or concerted activities for the purpose of collective bargaining or mutual aid or , protection. WE WILL make whole Barbara Masker and Louise Swartz for any loss of pay suffered as a result of their discharge: WE HEREBY WITHDRAW and WILL withhold recognition from the aforementioned Local 810 as the representative of any of our employees for the purpose of collective bargaining, unless and until said labor organization has been duly certified by the Na- tional Labor Relations Board as the exclusive representative of such employees. WE WILL reimburse our employees for initiation fees, dues, or other moneys paid by them to the aforementioned Local 810. All our employees and prospective employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the ACCURATE FORMING CORPORATION 663 extent that their right may, in the future, be affected by an agreement in conformity with Section 8 (a) (3) of the Act. ACCURATE FORMING CORPORATION AND EVER- LAST METAL FINISHING 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. APPENDIX B NOTICE TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT WITH ACCURATE FORMING CORPORATION AND EVERLAST METAL FINISHING CORPORATION Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify you that : WE WILL NOT give effect to the provisions of the collective- bargaining agreement with the above-named Companies. WE WILL NOT cause or attempt to cause the above-named Com- panies to discriminate against you in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except in the manner permitted in Section 8(a) (3) of the Act. WE WILL reimburse the employees of the above-named Com- panies for initiation fees, dues, or other moneys paid to our Union. Signed copies of this notice have been forwarded to the Regional Director for the Twenty-second Region for posting by the above- named Companies, those Companies willing, in all locations where notices to employees are customarily posted. LOCAL 810, STEEL, METALS, ALLOYS AND HARDWARE, FABRICATORS AND WARE- HOUSEMEN, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated- --------------- By------------------------------------- V (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. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDATIONS ISSUES The primary issues herein are: (1) whether Respondents, Accurate Forming Corporation and Everlast Metal Finishing Corporation, unlawfully discharged Bar- bara Masker, Bertha Koskovich, and Louise Swartz; (2) whether unlawful assistance was rendered to Local 810, Steel, Metals, Alloys and Hardware, Fabricators and Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called Local 810; (3) whether a certain collective-bargaining agreement should be set aside; and (4) whether certain moneys deducted should be refunded.' The issues concerning Masker, Koskovich, and Swartz are largely factual and involve major questions of credibility. The witnesses for the General Counsel are thoroughly and completely contradicted by witnesses for Respondent Companies. In addition, Masker and Koskovich testified concerning the height of a partition dividing an area where Koskovich allegedly overheard a conversation and the evidence with respect to the height of this partition was developed in such a manner that a rejection of their testimony on this matter casts suspicion upon their entire testimony. While the Trial Examiner believes and finds that Masker and Koskovich overreached themselves with respect to this matter and that their testimony concern- ing the height of the partition should be rejected, he cannot, for this reason, reject the remainder of their testimony. They appeared to be truthful witnesses, the events narrated by them follow a sequence not unusual during initial stages of union or- ganizational efforts, their testimony is not self-conflicting and contradictory, and Respondent Companies' officials who allegedly made the remarks attributed to them appeared to be of a temperament likely to make such statements under the circum- stances revealed by this record. Furthermore, in the opinion of the Trial Examiner it stretches credulity to the breaking point to believe that there was only a coin- cidental connection between the union activities of these employees and the abrupt termination of their employment (2 workdays after their initial contact with the union representative). In addition, Respondent Companies' witnesses frequently contradicted themselves and one another, gave testimony inconsistent with prior written statements, and their testimony that the discharges were because of exces- sive absenteeism does not stand up under close examination. The discharges Respondent Companies operate two plants. One is in Franklin, New Jersey, and is operated under the name of Accurate Forming Corporation (herein referred to as Accurate) and the other is in Ogdensburg, New Jersey (about 5 miles from Franklin), under the name of Everlast Metal Finishing Corporation (herein referred to as Everlast). It is alleged in the complaint and admitted in the answer of Respondent Companies that these two companies constitute a single employer under the Act. Stock ownership of Respondent Companies rests in Morris Busacco, Patrick Maloney, Andrew Serin, Sabino Bilotti, and Edward Cavaleri, each of whom is active in either the production or the sales phases of the business concerned. Prior to the events outlined herein there had been no organizing activity at either places of business. During the lunch period on Friday, July 12, 1957, Thomas J. Spelman, Interna- tional representative for United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein called the Rubber Workers Union, approached Bertha Koskovich and Louise Swartz at a ball park-parking area in the immediate vicinity of the Ogdensburg, New Jersey, plant-and arranged to hold a meeting that after- " The complaint alleges violations of Section 8(a) (1), (2 ), and (3 ) of the National Labor Relations Act, as amended (herein called the Act), by Respondent Companies and of Section 8(b) (1) (A ) and (2 ) by Local 810. Local 810 filed an answer to the com- plaint, which in effect is a general denial, but did not serve a copy thereof on the Charging Party as prescribed in the Board 's Rules and Regulations and did not participate in the hearings herein except to make a motion to adjourn . Motions to strike this answer and consider all allegations in the complaint against Local 810 as admitted to be true were made at the hearing and taken under consideration by the Trial Examiner While the Trial Examiner does not condone the actions of Local 810 he believes that rulings upon said motions are unnecessary and that no prejudice will develop by not passing upon these motions . Accordingly, the Trial Examiner makes no determination of the issues raised by these motions . ( But see County Electric Co, Inc., et at., 116 NLRB 1080, 1087, and Mechanical Handling Systems, Incorporated , 122 NLRB 396.) ACCURATE FORMING CORPORATION 665 noon at the close of business hours. About 4: 30 p.m. on July 12, Koskovich, Swartz, Barbara Masker, Rose Cilurso, and several other employees met with Spelman at the ball park and Spelman spoke to them about the Rubber Workers Union and distributed literature. This meeting concluded with the scheduling of another meet- ing with Spelman for Tuesday, July 16, 1957, at the home of Barbara Masker im- mediately after work. This meeting was not held and apparently no further or- ganizing efforts were attempted by the Rubber Workers Union. Masker Barbara Masker (an assembly line worker) did not report for work on Monday, July 15, 1957. On reporting for work on July 16, 1957, Masker noticed that her timecard was not in the rack and inquired of Plant Superintendent Rafael Triana con- cerning this matter. Triana told Masker she "had been laid off" and when asked "why" told her to see Respondent Companies' officer, Andrew Serin. According to Masker, she asked Serin why she was laid off: And he said because I was in contact with the Union. And I said I wasn't. And he said I was or I wouldn't be having a union meeting at my house after work that night .2 Masker was paid by check and was told not to speak to anyone and to leave the plant by the front door, which was not the normal means of egress for employees. Koskovich When Rose Cilurso reported for work on July 16 her timecard was not in the rack. She inquired of Serin about her timecard and was told to see Plant Super- intendent Triana. Triana told Cilurso she was being let go because she did not get along with the girls. Cilurso had not previously been reprimanded, cautioned, warned, or talked to about any difficulty in getting along with the girls. On Friday, July 19, 1957, Busacco called upon Cilurso at the latter's home and told her her discharge resulted from a misunderstanding and that she should come back to work. Cilurso was reinstated a few days later. Upon learning (about 8:15 a.m. on July 16) that Rose Cilurso had been dis- charged, Bertha Koskovich, Louise Swartz, and Stella Frankow called upon Plant Superintendent Triana and assured him that Cilurso did not have trouble getting along with the girls. About 10:10 that morning Triana told Bertha Koskovich (an assembly line worker) she was being let go because she was "dissatisfied." When Koskovich denied that she was dissatisfied, Triana replied, "I must be dissatisfied with my work or I wouldn't be trying to get a union in " 3 Koskovich was paid by check and left the plant. Swartz As noted above, Swartz was one of two employees contacted by the Rubber Workers representative on July 12 and was one of the employees who called upon Plant Superintendent Triana with regard to the discharge of Cilurso. Swartz was with Koskovich 4 when Koskovich was called to the office at the time of her discharge. When Koskovich left the plant, Swartz (another assembly line 2 Serin denied making the statements attributed to him by Masker and testified that the only conversation he had with Masker consisted of his referring her to Triana when she inquired as to why she was discharged. Serin denied that as of July 16, 1957, he "had any knowledge from any source whatsoever that any of these three girls or any of your employees had been contacted by any representative of any union or had been discussing unionization of your plant ," and testified that the first time he had any knowledge that anybody was attempting to organize was on Friday, July 26 The transcript of the hearings herein shows that on cross -examination Serin testified that before July 16, 1957, Triana "told me about the girls being absent-these three girls- several others. And he told me about the union activities and that they were good workers. He was always . . However, the parties have stipulated that the transcript may be corrected by deleting from the above quotation the words "about the union activities," and substituting therefor the words "in June about these, these girls and others, being absent and . . . Said stipulation is hereby approved and the tran- script is hereby corrected in accordance with said stipulation. For reasons heretofore and hereinafter noted Serin's denials are not credited by the Trial Examiner 8 Triana denied that he told Koskovich she was being discharged for trying to get a union. His denial is not credited by the Trial Examiner. 4 Swartz is an aunt of Koskovich. '666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worker) followed her outside and conferred with her about her discharge. On her return to the plant, Swartz was called by Triana and discharged. Triana speaks very rapidly and is difficult to understand and Swartz could not understand Triana's state- ments except that he was "sorry." When Swartz asked if she should punch her time- card Triana answered, "No, it is already punched or already taken care of." 5 Respondent Companies contend that Masker and Koskovich were discharged because of excessive absenteeism and that Swartz quit. Plant Superintendent Rafael Triana, the chief witness relied upon by Respondent Companies to support their position concerning Masker, Koskovich, and Swartz, testified that he had been having considerable difficulty (with these and other employees) because of excessive absenteeism in the plant and that he took this matter up with Respondent Companies' officials about 2 months before the discharges involved herein and was advised to carry on as best he could until after the vacation period-the first week in July-and then reexamine the situation. Triana testified further that the week after the vacation period he hired three girls and recommended that they be used as replacements for the three employees involved herein and that this recommendation was accepted on the Saturday before the discharges were made effective. Triana testified further that he discharged Masker and Koskovich because of their poor attendance records and that he told them at the time of their discharges that this was the reason therefor. Triana testified further that he was prepared to discharge Swartz (because of excessive absenteeism and for leaving her place of work without permission) but that before he actually did so she quit 6-that upon her return to the plant after conferring with Koskovich, Swartz threw down her work glove and quit. Triana's testimony on the witness stand as to when these employees were singled out for discharge is not consistent with statements made in an earlier written document. The record does not reveal the names of the three replacements and Respondent Companies' records, which purport to identify the girls working on the assembly line in 1957, reveals that the assembly line workers were working for Respondent Companies for at least several months before July 1957, and there is no indication that any of the assembly line workers were newly hired replacements. The Saturday before the discharges were made effective, which is the date Triana testified the decision to make the discharges was made, was 1 day after these employees had been contacted by the Rubber Workers Union, and was 1 day after Koskovich had been given a wage increase. The testimony of Respondent Companies' witnesses, including Serin and Triana, as to when the checks for these employees were requested and made out is, to say the least, confusing and unconvincing Masker and Koskovich (and Swartz) had been working for Respondent Com- panies for approximately 7 months. Their attendance record was poor from the inception of their employment and, if the true reason for the discharges, would be an adequate defense to the charges herein. However, in the light of the fact that Masker, Koskovich, and Swartz were the kingpins for the Rubber Workers organi- zational activities, the sequence of events-especially the timing of the discharges in relation to the organizational efforts-the failure of Respondent Companies' contentions to stand up under close examination and the statements made to the employees at the time of the discharges, the Trial Examiner is not convinced that Respondent Companies' contentions are anything more than pretexts to conceal the real reasons-antiunion motivation. Unlawful Assistance and Support Determination of the facts, relevant to the allegations concerning unlawful assist- ance and support, requires consideration of the testimony of Respondent Com- panies' officer and general plants manager (Morris Busacco) whose oral testimony, in many instances, is conclusionary, self-serving, evasive, inconsistent, contradictory, and in conflict with prehearing written statements.? Consequently, the record is far from clear as to the events now under consideration. However, the Trial Examiner, on the basis of the evidence and the reasonable inferences therefrom, believes and finds the facts to be as follows. 5 Her timecard bears a longhand notation indicating she was paid to noon 6 Swartz has steadfastly denied-before this Agency and another Government agency- that she quit. 7 One of Busacco's affidavits was marked for identification as General Counsel Exhibit No. 9 and was offered into evidence , but the Trial Examiner reserved decision on its admission. The Trial Examiner now receives said document in evidence. ACCURATE FORMING CORPORATION 667 Messrs. Morris Busacco (treasurer of Accurate and secretary of Everlast and general plants manager), Patrick J. Maloney (an officer of each Respondent Com- pany and sales manager for each), and Plant Superintendent Triana were formerly associated iwth a company known as Jarco Metal Products and, as a result of that association, Busacco and Maloney were acquainted with Henry Malamy, presi- dent and business representative of Respondent Local 810 and business representa- tive of Local 1846, International Brotherhood of Electrical Workers, ArL-C1O. During the calendar year 1957, but prior to the events involved in these proceedings, Maloney and Malamy had, on one occasion, met casually in New York City and Malamy had indicated an intention to try to organize Respondent Companies' em- ployees. On this occasion Maloney prevailed upon Malamy to give Respondent Companies more time to get their business in operation before he (Malamy) tried to organize the employees. Koskovich testified that on July 16, 1957 (the same date the discharges were effected), she overheard part of a conversation among Maloney, Andrew Serin (secretary of Accurate and treasurer of Everlast), and Busacco in which Busacco (after placing a telephone call) said "they want $100 for the Union," Maloney remarked "that was too much," and Serin responded "it was not too much." Respondent Companies' witnesses (Busacco and Serin) denied that such a conversa- tion took place. In addition, Respondent Companies adduced evidence that Maloney was not in the vicinity of the places of business involved herein on the day in question. This is the conversation which brought forth evidence concerning the height of the partition in an effort to show that Koskovich could not have overheard such a conversation. As noted above, the Trial Examiner rejects the testimony of Masker and Koskovich concerning the height of this partition. Viewing this con- versation without regard to other matters in these proceedings, the Trial Examiner would be inclined to reject all of Koskovich's testimony concerning this matter. However, it cannot be viewed in isolation. When viewed in the light of the entire record herein-the facts already noted and the facts hereinafter found 8-it appears highly probable that such a conversation occurred and that the person on the other end of the telephone conversation was Malamy. In view of this fact, and the fact that Koskovich and Masker impressed the Trial Examiner as more reliable wit- nesses than did Respondent Companies' officials, the Trial Examiner credits Kos- kovich's testimony and finds the facts to be as testified by her. On July 26, 1957 (Friday), Malamy appeared at the Franklin plant and undertook to interest employees in signing authorization cards on behalf of Local 1846, IBEW. After conferring with the plant manager, Sabino Bilotti, he (Malamy) circulated through the plant distributing authorization cards and advising employees that there would be a meeting in the toolroom immediately after the change of shifts. Such a meeting was held and at that time Malamy threatened to force Respondent Companies •out of business unless a majority of the employees signed his authoriza- tion cards (authorization cards on behalf of Local 1846, IBEW) and stated that if a majority did sign, the others would have 30 days to sign or leave. Plant Man- ager Bilotti observed this meeting in the toolroom and did nothing about it, assuming it was being held with General Plants Manager Busacco's permission since he (Bilotti) had reported Malamy's activities to Busacco and Busacco had come to the plant to handle the situation. Shortly after the toolroom meeting, Malamy presented 39 signed authorization cards to Busacco and requested recognition on behalf of Local 1846, IBEW. Busacco examined the cards, recognized the signatures thereon as the signatures of 39 of the 53 nonsupervisory employees at the Franklin plant, and prepared, in long- hand, a recognition agreement which he and Malamy then signed This recog- nition agreement reads as follows: It is agreed between Accurate Forming Corporation located at 45 Church Street, Franklin, New Jersey, and Local 1846, IBEW, AFL-CIO, located at 166 Main Street, Hackensack, New Jersey, that: 1. The employer recognizes the Union as the sole bargaining agent for all employees at the above plant. 2. The Company and the Union will go into negotiations immediately. 3. All terms and conditions agreed upon shall be effective and/or retroactive to July 29, 1957. B Also in the light of Richard Clifford's testimony, which the Trial Examiner credits, that when he inquired (about August 26, 1957) about a raise in pay, he was told by Plant Superintendent Bilotti, "You wanted a union. We got you one. I hope you are satisfied with it." 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At this same meeting, Busacco and Malamy concluded that Local 810 was in a better position to represent the employees than Local 1846, IBEW, and they signed a second recognition agreement in which Local 810 (rather than Local 1846, IBEW) was recognized as the bargaining agent for employees of Accurate (the employees at the Franklin plant) .9 At the meeting at which the two recognition agreements were signed (the meeting on July 26), Malamy requested that a committee of three named employees of Accurate (of the Franklin plant) be granted permission to go to the Ogdensburg plant (Everlast) to try to organize that plant. Busacco responded that he would not pay the employees for time spent in such activities. On Monday, July 29, 1957, the three employee members of the organizing com- mittee left the Franklin plant and went to the Ogdensburg plant to engage in organizing activities. Permission to leave the Franklin plant and engage in organiz- ing activities at the Ogdensburg plant was again requested from Busacco and he "merely stated that I will not pay for any time that the committee spends on any other activities outside of working in Accurate [in the Franklin plant]." The employees punched the timeclock and were not paid by Respondent Companies for the time spent in organizing efforts at the Ogdensburg plant. Shortly after the committee of three from Franklin arrived in Ogdensburg they were joined by Malamy and one other person and (with the knowledge and approval of Plant Superintendent Triana) ii sought, in the plant during working periods and rest periods, to persuade the employees to sign union authorization cards. In addi- tion, employees were assembled and addressed by Malamy, who threatened to force Respondent Companies out of business unless the employees signed his authorization cards. Malamy also addressed the employees relative to the terms of a proposed contract. Toward the end of the meeting Busacco approached the group and asked Malamy "how long he was going to be because he had shipments to get out." Malamy answered they were "through" and closed the meeting by collecting the signed authorization cards. The employees were asked to and did sign cards for Local 1846, IBEW, and for Local 810. The record reveals that approximately 25 of the 34 nonsupervisory employees signed authorization cards on behalf of Local 1846, IBEW. It does not reveal how many signed cards on behalf of Local 810. On this same day (July 29) Busacco, on behalf of Everlast, and Malamy, on be- half of Local 1846, IBEW, signed a recognition agreement similar to the one quoted above. Later (on July 31) at Malamy's request another recognition agreement was signed wherein Local 810 (rather than Local 1846, IBEW) was recognized as the bargaining agent. The record does not reveal the circumstances under which Local 810 cards were obtained from employees of Accurate (of the Franklin plant) except that sometime around September 23, 1957, Respondent Companies did circulate among its em- ployees at both plants authorization and checkoff cards which it requested that the employees sign. As noted above, at Everlast (at the Ogdensburg plant) employees signed two cards (one on behalf of Local 1846 and the other on behalf of Local 810) on July 29 but the record does not reveal how many signed cards on behalf of Local 810, except for Busacco's conclusionary testimony that a majority signed. Subsequent to July 1957, Respondent Companies and Local 810 executed and gave effect to a collective-bargaining contract. The date this contract was executed is in dispute but on the basis of the entire record herein, including Busacco's prehearing statements and Respondent Companies' answer which admits that this contract was executed on or about August 12, 1957, the Trial Examiner finds it was executed on or about August 12, 1957. The collective-bargaining agreement mentioned immediately above contains a hiring hall clause, a union-security clause, and a checkoff provision. The safeguards, which the Board deems necessary to rebut the inference that the hiring hall unlawfully encourages membership in a union (see Mountain Pacific Chapter of the Associated General Contractors, et al., 119 NLRB 883, Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629, and Joint Council of Teamsters No. 37, et al., 122 9 Busacco's oral testimony to the contrary is in conflict with his prehearing statements and with Respondent companies' answer to the complaint herein and his explanation of the reason for the change-namely that Local 810 was located in New Jersey-does not jibe with the written exhibits showing the addresses of these unions. His oral testimony is not credited by the Trial Examiner 10 Triana observed Malamy's activities in the plant and went to the office to inquire what was going on. Triana was informed that Malamy's activities were with the permission of Respondent Companies and he (Triana ) took no action to stop such activities. ACCURATE FORMING CORPORATION 669 NLRB 514) are not included in such clause, i.e., employers do not retain their right to reject any job applicant referred by a union and no provision is made for the posting of notices containing all provisions relating to the functioning of the hiring arrangement. Sometime around September 23, 1957, Busacco instructed the committee repre- senting Local 810 to go to each nonsupervisory employee of Respondent Companies (employees in both plants) and obtain signatures to cards, designating Local 810 as bargaining agent and authorizing checkoff of moneys on behalf of Local 810. The committee carried out its instructions and a checkoff system went into effect the week ending October 12, 1957, whereby initiation fees and dues have been deducted on behalf of Local 810. The disparate treatment accorded the Rubber Workers Union and Local 810 made it obvious to the employees that Respondent Companies favored Local 810 over other competing labor organizations. Furthermore, as detailed above, Respondent Companies actively rendered illegal assistance and support to Local 810 and through this action were the effective cause in attaining majority status for Local 810 (assuming arguendo it attained such status). By virtue of the assistance and support detailed above, Respondent Companies violated Section 8(a)(1) and (2) of the Act. Also, by entering into and maintaining in effect the collective-bargaining agreement noted above, Respondent Companies and Respondent Local 810 violated Section 8(a)(3) and (1) and Section 8(b)(2) and (1)(A), respectively. In the opinion of the Trial Examiner, effectuation of the policies of the Act requires setting aside of the collective-bargaining agreement between Respondents and reimbursement to individual employees for any dues, fees, or other moneys exacted from their earnings on behalf of Local 810. Such remedy is appropriate since the contract is unlawful on three counts. It is unlawful because it is with an assisted union; it is unlawful because the execution and effectuation thereof under the circumstances detailed above in itself constitutes unlawful assistance and support to Local 810, and it is unlawful because it contains terms and conditions of employ- ment violative of the Act. Ultimate Findings and Conclusions In summary, the Trial Examiner finds and concludes: 1. The evidence adduced in these proceedings satisfies the Board's requirements for the assertion of jurisdiction herein." 2. United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO; Local 1846, International Brotherhood of Electrical Workers, AFL-CIO; and Local 810, Steel, Metals, Alloys and Hardware, Fabricators and Warehousemen, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of the Act. 3. The evidence adduced establishes that Respondent Companies discharged Barbara Masker, Bertha Koskovich, and Louise Swartz and thereby violated Section 8(a) (1) and (3) of the Act. 4 The evidence establishes that Respondent Companies rendered illegal assistance and support to Respondent Local. 810 and thereby violated Section '8(a) (1) and (2) of the Act. 5. The evidence adduced establishes that Respondent Companies and Respondent Local 810 entered into and gave effect to a collective-bargaining agreement containing terms and conditions of employment violative of the Act, and thereby violated Sec- tion 8(a)(1) and (3) and Section 8(b)(1) (A) and (2) of the Act, respectively. ,6. The aforesaid activities are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] "Respondent Companies engage in the manufacture, sale, and distribution of pen and pencil caps and related products and in the course of their business cause substantial quantities of goods and materials to be transported in interstate commerce. SUPPLEMENTAL INTERMEDIATE REPORT On February 9, 1959, the duly designated Trial Examiner issued his Intermediate Report in the above-entitled matter. Thereafter, by order dated June 18, 1959, the Board remanded this matter for further hearing "for the purpose of receiving additional evidence relevant to the credibility of Bertha Koskovich, Barbara Masker, and all other witnesses at the original hearing" and with directions that the Trial 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner prepare and serve a Supplemental Intermediate Report. Further hearing was held on August 10, 11, 17, 18, 19, and 25, 1959. 'In the original Intermediate Report the Trial Examiner credited the testimony of Koskovich that on July 16, 1957 (the same date the discharges were effected), she overheard part of a conversation among Patrick J. Maloney (an officer of each Re- spondent Company and sales manager for each), Andrew Serin (secretary of Accu- rate,and treasurer of Everlast), and Morris Busacco (treasurer of Accurate and secre- tary of Everlast and general plants manager) in which Busacco (after placing a telephone call) said "they want $100 for the Union," Maloney remarked "that was too much," and Serin responded "it was not too much," and rejected Respondent Companies' evidence that no such conversation took place. At the further hearings held in August 1959 Koskovich repudiated her earlier testimony concerning this matter and testified that she had no personal knowledge concerning the conversation but understood from Masker that the latter had overheard such conversation. Masker denied that she overheard such conversation. In purported explanation of her repudiation Koskovich gave testimony indicating that it was voluntary in order to clear her conscience and testimony indicating that her repudiation was because she was laboring under the impression this was what she must do to maintain her job and that the latter belief was instilled by acts of Respondent Companies. At ,the time of the original Intermediate Report the only direct evidence that such a conversation occurred was Koskovich's testimony to this effect and the Trial Examiner was doubtful about accepting this testimony and did so only after exami- nation and appraisal of all elements of the evidence taken together, including the interrelationship of the testimony of witnesses, the inherent probabilities, the bearing and delivery of witnesses, and the apparent temperament of witnesses. Koskovich's original testimony (which she repudiated at the hearing in August) is still the only direct evidence that the conversation took place. It is in the main found corroborated by other convincing circumstances in the record as a whole. Nevertheless, in view of Koskovich's total testimony and the burden upon the General Counsel to establish by a preponderance of the credible evidence that this conversation took place, the Trial Examiner believes that her original testimony should not now form the basis for a finding that such conversation occurred. Accordingly, the Trial Examiner hereby reverses the finding made in the original Intermediate Report to the effect that such a conversation occurred. The primary issue involved in the further hearings held in August 1959 con- cerned Koskovich's repudiation of her original testimony that she overheard the aforementioned conversation among Maloney, Serin, and Busacco. However, additional evidence relevant to the credibility of Koskovich, Barbara Masker, and other witnesses at the original hearing was also received. In the main this evi- dence consists of testimony by Koskovich which, if it were to be credited, would tend to cast serious doubts upon the testimony given by Masker, Louise Swartz, and Thomas J. Spelman (International representative for the Rubber Workers Union) at the original hearing and would tend to cast a different light upon the entire case against Respondent Companies-would tend to establish that Masker, Swartz, Spelman, and other witnesses are unworthy of belief and that the findings of fact made in the original Intermediate Report should be disturbed. The Trial Examiner believes it is unnecessary to discuss in detail the evidence with respect to this matter because the answer to the problem involved is that he be- lieves the evidence supporting the credibility of Masker, Swartz, and Spelman and the findings of fact made in the original Intermediate Report considerably more worthy than the evidence to the contrary. In short, the Trial Examiner considers the testimony of Masker, Swartz, and Spelman (which tends to sup- port the original findings of fact) more reliable than the evidence (primarily the testimony of Koskovich) contrary to theirs The reason for such resolution is personal demeanor, conduct, and attitude of witnesses, careful evaluation and weighing of evidence (including contradictions, vacillations, discrepancies, and inconsistencies and corroboration), and inherent probability. As noted in the original Intermediate Report, Masker testified that she was discharged by Serin and that Serin indicated to her at that time that the reason for the discharge was her union activities (and that this was the first time she was given a reason for her discharge). Also as noted in the original Intermediate Report, Plant Superintendent Rafael Triana testified that he discharged Masker because of her poor attendance record and that he told her this at the time of her ACCURATE FORMING CORPORATION 671 discharge. At the original hearing herein, Masker denied that any representative of Respondent Companies talked to her about difficulties caused by her absences, and denied that she was discharged by Triana and that Triana told her he was discharging her because of "tardiness and absence." At the further hearings held in August 1959 Masker again denied that on the day of her discharge Triana said anything to her "about the fact that [she was] absent so much that [she was] of no use to [Respondent Companies]." However, the details concerning the comments made to her on the day of her discharge as given by Masker at the further hearings are at variance with the details given by her at the original hearing in that she testified at the further hearing (after her memory had been refreshed) that she was told by Triana that she was being discharged because of her union activities and that she was then referred to Serin who told her the same thing. In view of this testimony and other evidence at the further hearing impugning Masker's veracity the Trial Examiner has again pondered whether Masker's testimony should be accepted and has concluded that it should be, with the exception noted in the original Intermediate Report, and for the reasons stated throughout the original Intermediate Report At the further hearings in August, Masker testified she was told at the time of her discharge that Respondent Companies had hired six new girls. Respondent Companies now assert that in view of this testimony the findings of fact of the original Intermediate Report that, The record does not reveal the names of the three replacements and Respondent Companies' records, which purport to identify the girls working on the assembly. line in 1957, reveals that the assembly line workers were working for Respond- ent Companies for at least several months before July 1957, and there is no indication that any of the assembly line workers were newly hired replacements. should be reversed. The Trial Examiner does not agree. Masker's testimony noted above, at face value or in the setting in which given,' is not sufficient to establish that which Respondent Companies' records fail to establish-namely, that the week after the vacation period (during the second week in July) Triana hired three new girls and they were selected as replacements for the discharged employees on the Saturday before the discharges were made effective. As noted in the original Intermediate Report, there is a dispute herein concerning the date on which Respondent Companies and Local 810 executed a collective- bargaining contract. At the further hearings in August 1959 additional evidence bearing upon this issue was received. This additional evidence consists of testimony by Busacco and certain records tending to establish that the contract was executed in October 1957, rather than in August 1957. Viewing this additional evidence without regard to the evidence adduced at the original hearing it indicates that the contract was executed in October 1957. However, it may not be thus viewed- it may not be viewed in isolation-and when viewed in the light of the entire record it is of little or no help in determining this issue. In fact, it adds further confusion as to the date this contract was executed. Having further considered this matter, the Trial Examiner adheres to the findings made in the original Intermediate Report that this contract was executed on or about August 12, 1957. On the basis of the evidence adduced at the further hearings held in August 1959 and alluded to herein, the Trial Examiner has considered whether credibility reso- lutions made as a result of the first hearing should be changed and has concluded that they should not be, except that he reverses the findings made in the original Intermediate Report to the effect that Maloney, Serin, and Busacco engaged in a conversation wherein these men discussed the fact that some union wanted $100. This change does not require any change in the unfair labor practice findings. In his supplemental brief to the Trial Examiner, counsel for the General Counsel suggests that to award backpay to Koskovich would be tantamount to a condonation of her giving testimony which she must have known was false 2 and requests that 'At the further hearings Masker was shown an affidavit executed by her on July 17, 1957, in which she stated, inter alia , "I told him [Serin], I wanted my job, and that he [Serin] oughtn't to fire me, and he said that he wouldn't keep me at work in his plant, and that, as a matter of fact, he had hired six new girls and there was no room for me anymore in the plant," and asked whether Triana had told her he had hired six new girls She answered that Triana had made such a statement. 2Although the Trial Examiner makes no finding herein as to the occasion when Koskovich gave false testimony, it appears that she did so either when she testified that she overheard Maloney, Serin, and Busacco comment that some union wanted $100 or when she repudiated this testimony and Impugned the veracity of other persons involved In these proceedings. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the original Intermediate Report be modified so as to delete from the recommenda- tions therein made , the requirement that Koskovich be made whole for any loss of pay she may have suffered by reason of the discrimination against her. Said request is hereby granted. As supplemented by the information contained herein the Intermediate Report issued on February 9, 1959 , is hereby reissued. The National Automatic Products Company and United Electri- cal, Radio and Machine Workers of America , (UE). Case No. 1-CA-2992. August 16,1960 DECISION AND ORDER On April 8, 1960, Trial Examiner John F. Funke 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following modifications : 1. Unlike the Trial Examiner, we do not find that the offer of the strikers, who had previously been unlawfully discharged , made by Union Representative Tomassetti on September 28, to be an uncon- ditional offer to return to work. The evidence shows that on that date Tomassetti asked the Respondent what it was going to do about taking the strikers back to work, the Union having previously insisted upon reinstatement of both the strikers and dischargee Ziolkowski, and advised Respondent that unfair labor practice charges had been filed and that the reinstatement of the strikers and of Ziolkowski were being made part of contract negotiations. Ziolkowski had been law- fully discharged by Respondent. Not having made the offer for the return of the strikers clearly independent of reinstatement for Ziol- kowski, it cannot be said that a willingness to work by the strikers without Ziolkowski's reinstatement was shown. We do find, however, that at the hearing on February 9, 1960, Tomassetti did make an unconditional offer on behalf of the strikers 128 NLRB No. 72.