Roberto Alvaro Manufacturing, Inc.

ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 669 in Section 8 (a) (3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL offer to the following named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges : R. Bonballion Shirley Pollard Charles Coleman Isabelle Powell WE WILL make the aforementioned individuals whole for any loss of pay they may have suffered by reason of the discrimination against them. NATIONAL SEAL, DIVISION OF FEDERAL- MOGUL-BOWER BEARINGS, INC. Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles 14, California, Telephone No. Richmond 9-4711, Extension 1031, if they have any question concerning this notice or compliance with its provisions. Roberto Alvaro Manufacturing, Inc. and Roberto Alvaro, Inc. and Union de la Industria de Goma y Plastico de Puerto Rico, Local 3023, AFL-CIO. Cases Nos. 24-CA-1535 and 24-CA-1571. March 21, 1963 DECISION AND ORDER On October 19, 1962, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. 141 NLRB No. 53. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report,' the exceptions and briefs and the entire record in this case, and adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts as its Orders the Recommended Order of the Trial Examiner, as modified below : 1. In Section 1(e), the phrase "In any like or related manner" is to read "In any other manner". 2. At the end of the last paragraph of the notice, add "except to the extent that such right is affected by the provisos of Section 8 (a) (3) of the Act." 1 The following inadvertent errors in dates in the Intermediate Report are hereby cor- rected: Candelario contacted the Union about October 13, 1961, not August 13, 1961; Respondent discharged Pena Chevere, Lugardo, and De La Vega on October 21, 1961, not 1962 ; and Respondent's letter to the Board giving its reasons for discharging certain employees is dated March 30, 1962, not 1961 2 Member Rodgers does not rely to any extent on the relative smallness of Respondent's operations for finding that Respondent knew of the Union's campaign, and the employees involved therein within a few days of its inception, and well before it discharged Candelario. Thus, a day or so after the meeting of the field employees, which Respondent held on October 16, Mrs. Alvaro asked Jose Burgos if he had seen some little yellow cards (union authorization cards) which Candelarlo was distributing, if he had attended a meeting with Candelario, and if he had signed any cards. She also told him to keep her informed of everything that went on outside. Also between October 16 and 19, Benjamin Betancourt, a supervisor and Mrs. Alvaro's brother, told Candelario that lie should stop associating with "little groups." Finally, on October 20, the day after Candelario's dis- charge, Mrs. Alvaro told Julio Recci that she knew all those employees who had signed the union cards. 3 For the reasons stated in their dissenting opinion in Isis Plumbing & Heating Co , 138 NLRB 716, Members Rodgers and Leedom are convinced that the award of interest in this case exceeds the Board's remedial authority. while adhering to such view, for the purpose of this decision they are acceding to the majority Board policy of granting interest on moneys due. INTERMEDIATE REPORT Upon charges filed by the above Union a consolidated amended complaint was issued against Respondents on May 11, 1962, alleging violations of Section 8(a)(1) and (3) of the Act. The violations are alleged to consist of discriminatory discharges of employees and various statements and other illegal conduct by Respondents. Respondents deny that they have committed the alleged violations. The hearing was held in Santurce, Puerto Rico, on June 11, 12, 13, 14, 15, 18, 19, and 20, 1962.1 The transcript of testimony was received August 30, 1962, and briefs of the parties, originally scheduled to be filed on July 20, were filed on September 17, 1962, owing to the unavailability of the record prior to the end of August. Upon the record and briefs and based upon my observation of the witnesses, I make the following findings of fact and conclusions of law. 'The deposition of one witness was taken in Philadelphia, Pennsylvania, on July 11, 1962, and is part of the record. ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 671 1. THE RESPONDENTS The complaint alleges that Roberto Alvaro Manufacturing, Inc., herein at times referred to as Manufacturing, and Roberto Alvaro, Inc., herein at times referred to as Incorporated, are affiliated Puerto Rico corporations engaged together in a closely integrated business enterprise under the management and direction of common officers and directors of the two corporations. It is further alleged that for the purpose of this proceeding the two corporations constitute a single employer of the employees involved in the case. In their common answer Respondents deny that they are engaged in a closely integrated business enterprise and that they constitute a single employer as alleged in the complaint. There is ample evidence in the record that the two companies are an integrated business enterprise, with common officers and management and a common labor policy. For purposes of jurisdiction and remedy, I find that both companies con- stitute a single employer. The principal office and place of business of both companies is in Santurce, Puerto Rico. Both enterprises are housed in the same building. Roberto Alvaro is president of both companies and his wife, Lucy Betancourt Alvaro, is vice president and treasurer of both companies. William Betancourt, nephew of Mrs. Alvaro, is full- time accountant for both organizations and Felicita Betancourt de Irizarry, sister of Mis. Alvaro, is secretary of both companies. All the officers, particularly the Alvaros, participate in, or rather, run the business. Throughout lower management are various other relatives, principally Betancourts. Mr. and Mrs. Alvaro and the other officers are all housed in the same building and service both companies. The Alvaros in addition live in the building, having their living quarters on the upper floors. For certain purposes Manufacturing may be considered as being engaged in the making of billiard tables and their sale or lease. The actual fabrication of the tables is performed on the first and second floors of the aforementioned common building. There is a Manufacturing payroll and the employees who make the tables are shop employees Incorporated, for certain purposes, may be considered as engaged in the leasing of gaming equipment such as pinball machines and there is an Incorporated payroll. Employees on the latter payroll are field employees although there are also field employees on the Manufacturing payroll. Offices occupied by management and clerical employees are on the first and second floors of the same building housing the shop, and both companies are serviced by the same management and clerical personnel. Although the evidence is not specific regarding ownership of vehicles, employees on the payrolls of both companies use the same automobiles and light trucks. There are normally four teams of field employees, each team consisting of three men. These teams use company vehicles to visit various establishments throughout the island. A team consists of a driver or chauffeur, billiard mechanic, and collector. Many of the tasks are interchangeable since the coin mechanisms in the billiard equipment is relatively simple and the maintenance of this aspect is the work of the mechanic. As the name implies, the collector gathers the money from the coin devices on the billiard tables and pinball machines and allocates percentages between the proprietor of the establishment and the Alvaro enterprises. Some teams also may have a man who can reupholster billiard tables. Teams are not composed solely of employees on one particular payroll. For example, in the team of Miguel Burgos, Barreiro, and Juan Torres, Burgos was on the Incorporated payroll and the other two were on the Manufacturing payroll? Burgos, the collector on the team, had a Manufacturing record book and an Incorporated book and he collected for both companies. De La Vega was on another mixed team and although he was on the Incorporated payroll he was a billiard table upholsterer. Manufacturing owned the billiard tables and collected revenue therefrom. The record indicates that there were no book- keeping transactions between the two companies whereby one reimbursed the other for services performed on the former's equipment . In the consent election con- ducted by the Board in November 1961, all parties agreed that the single appropriate bargaining unit consisted of all production and maintenance employees employed by "the Employer" in Santurce, i.e., a unit of the field and the shop employees.3 During a representative 12-month period Respondent purchased materials and other equipment necessary for the operation of its business valued in excess of Respondent 's accountant, William Betancourt, so testified 3 On the consent agreement the Employer appeared as : Roberto Alvaro Mfg , Inc and Roberto Alvaro, Inc. By Robeito F Alvaio, Pies [ signature] 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000 that was shipped to its place of business from places outside the Common- wealth of Puerto Rico. Respondent, Roberto Alvaro Manufacturing, Inc., and Roberto Alvaro, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, Union de la Industria de Goma y Plastico de Puerto Rico, Local 3023, AFL-CIO, is a labor organization within the meaning of the Act. III, THE ALLEGED UNFAIR LABOR PRACTICES Reynaldo Candelario commenced working for Respondent in January 1961.4 For 2 or 3 months he worked as a chauffeur with the field employees. At the time Respondent did not service its own cars and trucks but sent them elsewhere for maintenance and repair. After working as a chauffeur as aforementioned, Candelario, an automobile mechanic, was placed in charge of the maintennce work for Respond- ent's vehicles. He received a $10 increase in salary to $45 per week. Candelario contacted the Union about August 13, 1961, a Friday. He secured union authorization cards and talked to the field employees about the Union and distributed cards.5 The field employees who rode daily in Respondent's cars and trucks were the people with whom the mechanic had numerous contacts. The record also shows that many of the field employees were paid $30 per week for a 6-day week. It was not uncommon for these people to leave in the morning at 5:30 or 6 a m., make 30 to 40 calls throughout the island and return to Respondent's premises at 8 to 10 p m. This group proved to be receptive to Candelario's union organizing and not only signed cards but in several instances individuals also distributed cards. Between October 13 and 15, inclusive, Candelario secured approximately 24 signed cards.6 About 12 to 15 cards had been secured on Saturday, a workday at Re- spondent Company. These Saturday cards were secured during working hours at the premises. There is no direct evidence that management observed the distribu- tion of cards and Cardelario testified that the work was done "secretly." However, in Respondent's relatively small and compact enterprise, it appears inevitable that the aforedescribed concentrated union activity would have and did have some visible manifestation, such as the grouping or huddling of these unsophisticated employees as they coped with a new and adventurous gambit into an area foreign to their normal work routine. On Monday, October 16, the field employees were summoned to attend a meeting in the company office area. While such meetings were not held regularly on a par- ticular day or at a particular time, they had been held from time to time when management wished to communicate to the employees as a group. The details of the October 16 meeting are not as clear as they might be but it appears that Ramirez, manager and supervisor, spoke and that a Mrs. Rodriguez, an office func- tionary was present and may have spoken. Since the meeting was apparently on the same floor as Mrs Alvaro's office, probably just outside her door, she either was formally a part of the meeting or at least was aware of what was said and done and participated therein 7 Many employees testified as to what Mrs. Alvaro said at the October 16 meeting but there was little or no testimony concerning what, if anything, Ramirez and Rodriguez said Mrs. Alvaro's testimony is also rather meager on this matter. Mainly as a matter of conjecture I do not disagree with Respondent's assertion in its brief that Ramirez and Rodriguez spoke to the employees about the care of equipment, co- operation, and starting and quitting time 8 From a consideration of all the evidence I find that during the meeting Mrs. Alvaro addressed the employees. I credit Candelario that in addressing the meeting * The witness testified that he worked for both companies. His name appears on the Manufacturing payroll. 5 Previously a group of 5 to 9 employees had met in Candelario's home to discuss union organization. The overall unit in the subsequent Board election consisted of 45 eligible employees. 7 Ramirez was no longer in Respondent's employ at the time of the hearing. He and Mrs Rodriguez did not testify. Dirs. Alvaro confined her testimony to one aspect of the meeting 8In an affidavit, dated November 14, 1961, Mrs Alvaro said the employees were ad. dressed about "serious problems of conduct," discipline, service, and the need for co- operation among themselves and with each other. At the hearing Mrs. Alvaro did not testify along these lines nor did she affirm such prior assertions. ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 673 Mrs. Alvaro directed her remarks to him and complimented him on his work. She suggested that Candelario should take the field personnel in hand and direct them along the same lines in which he was performing his work. Mrs. Alvaro said that little groups should be avoided and they should Corm and work together in a family group or family union. Candelario said that he was not a supervisor and had no au- thority over the other employees. Other employees who were present substantially support Candelario's version of what was said on this occasion. Many witnesses, in- cluding Candelario, asserted that Mrs. Alvaro suggested a family union and that she did not say family group or family harmony. Mrs. Alvaro testified that Candelario was "a pretty good employee in his mechanical work" but that the drivers complained about him. l here was no explanation of the nature of these asserted complaints. The witness then admitted that "maybe" she had told Candelario at the meeting that he was a good employee. She did testify that at the meeting, in order to avoid fric- tion among the employees, she said to Candelario that he should advise the em- ployees and that she urged family harmony. The witness denied using the word "union" or that she was aware of union activity until October 23, when a letter was received from the Union. Mrs. Alvaro also testified that Candelario said he was not a boss who could order the employees. With respect to discussion of starting time at the meeting (which Respondent states was one of the topics), I credit employee Pena Chevere's testimony that when he indicated at the meeting that he was not too happy about starting work at 5 a.m. Mrs. Alvaro said he was "protesting" which apparently was believed to be enough to dispose of the matter. While I am not entirely sure that Respondent on October 16, was aware that union activity had been going on among the employees, I believe that Respondent had at least noticed some ferment among the field employees, including employees gather- ing in groups and talking among themselves. In the absence of cogent evidence by Respondent that at this particular time the condition of vehicles or the work of em- ployees became a matter of concern to management, the timing of the meeting im- mediately after the inception of the union effort by Candelario and others on October 13 to 15 is too coincidental to be divored from what in fact was the union activity among the employees Mrs. Alvaro apparently had become aware that Candelario was intimately a part of the current unrest among the employees and his leadership role was recognized On no prior occasion had his role as a leader or exemplar been so recognized either in his position as mechanic or otherwise. An effort was made on October 16 to divert whatever unrest existed into an intra- company family movement with Candelario as the bellwether. This role, however, was admittedly rejected publicly by Candelario on the same date. Between October 15 to 20, the Union held a meeting at the union hall and held another meeting a few days later. Following the October 16 meeting at Respondent's plant and before October 19, Benjamin Betancourt, brother of Mrs Alvaro, advised Candelario that he was associating with too many little groups and that he should not associate with such groups At the hearing Benjamin Betancourt denied that he was the head collector or a supervisor. William Betancourt also stated that he was un- aware that Benjamin possessed supervisory functions However, in a letter of March 30, 1961, to the Board, giving reasons for the discharge of five employees, Respondent, over the signature of William Betancourt, referred to Benjamin as "the supervisor" who reported to the office regarding an employee's derelictions which led to a discharge. Benjamin was the head of one of the field teams of Respondent and did the customary work of other heads of teams. However, there is credible evidence that other heads of teams turned in their accounts or reports to Benjamin and the latter's salary of $70 per week was about double that of other employees on the field teams including the so-called heads of the teams. Benjamin admitted that he had not voted in the Board election in November 1961, because his name was not on the list of eligible voters 9 It is my opinion and I find that Benjamin Betancourt was a supervisor having authority to effectively recommend the disciplining of em- ployees, including discharge, and that, in any event, he was identified with the manage- ment of Respondent to a degree that made his statements more than mere reflec- tions of a rank-and-file or personal opinion. On October 19, Ramirez summoned Candelarto to his office and discharged him. Mrs. Alvaro and her sister were present in the office but did not speak to Candelario. 9 Since the election was a consent election I take note that the unit of employees, the names of eligible voters, the date of the election, etc , are customarily if not invariably a matter of consent by the participating parties, the Employer and the Union Also, employees performing the unit work would customarily be eligible voters unless they were temporary employees , clerical employees ( where the unit consists of production workers) or supervisors , or for some other reason that does not appear to be applicable regarding Benjamin Betancourt. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Candelario, whom I credit, Ramirez said that the discharge was due to complaints that oil had run into the next door yard.lo No other reason was given either at that time or at the hearing. When Ramirez told him of his discharge as mechanic, Candelario suggested that he be restored to his former job of driver with Respondent or that he could repair vehicles for Respondent at his (Candelario's) home. Ramirez refused to accede to either alternative or to rescind the discharge. Regarding the aforementioned matter it is found that Candelario performed all the mechanical maintenance on Respondent's vehicles. The vehicles were serviced with respect to oil and gas at a gasoline station unconnected with Respondent or near its premises and by employees of the station. There had been no prior complaints about oil running into adjacent premises and Candelario denies that the condition existed. Neither Ramirez, Mrs. Alvaro, her sister, nor anyone else testified as to why Candelario was discharged and there is no evidentiary explanation of the dis- charge offered by Respondent other than what Candelario testified was told to him by Ramirez. The asserted oil seepage complaints that Ramirez referred to are without support in the record and are in no way corroborated either by the testimony of the alleged next-door complainant or otherwise. I am unable to find support in the record for the statement in Respondent's brief that Candelario admitted that he had been told that Respondent had decided to discontinue doing their own mechan- ical work on the vehicles. Candelario denied expressly that such a statement had been made and there is no evidence that Respondent had made such a decision or the reasons or justification for such a decision if it existed. There was in fact no affirmative evidence offered by Respondent regarding Candelario's discharge. In my opinion the circumstances of, and the statements made at, the October 16 meeting, previously described, disclose an awareness on Respondent's part of concerted or union activity among the field employees relating to their interests as employees and conditions of employment; it also is disclosed that Respondent was aware of Candelario's leadership role among the employees with respect to such matters. I also believe that by October 19, when Candelario was discharged, Respondent was more fully aware of the union activity among its field employees and of Candelario's leadership in the union activity. The relative smallness of Respondent's operation, the compact nature of the premises, and the propinquity of management to all parts of the premises and to the employees , support this conclusion. Further, the timing of the discharge, occurring as it did just a few days after Mrs. Alvaro had publicly commended Candelario as an outstanding employee who should guide and serve as an example for others, is significant. Candelario refused to provide the leadership to channel the field employees into a family group or family union. Without any prior warning or intimation of any complaints from any source Can- delario was discharged 3 days after the October 16 events. The reason for the discharge I find to be a pretext and its sheer transparency is additional evidence and confirmation that Respondent was aware of his union activity and discharged him because of its opposition to union activity among the employees. I find that Candelario's discharge was in violation of Section 8(a)(1) and (3) of the Act." On October 21, 1962, Respondent discharged employees Pena Chevere, Lugardo, and De La Vega.12 Pena had worked for Respondent since March 1959 as a billiard table mechanic, chauffeur, and a money collector. In the course of his employment 10 During the course of the hearing the Trial Examiner viewed and went through Respondent's premises and buildings inside and outside in the company of Attorneys Weasler and Horn and Martinez Rigau. 11 The fact that initial charges with respect to Candelario and some others were with- drawn by the Union is not, in my opinion , determinative of the issues herein. Charges may be withdrawn for such a variety of reasons ( and with the consent of the Board's Regional Director ) that the fact itself, while it may be noted and pondered , is not dis- positive. Even if the charges were withdrawn because of a view at the time that they lacked merit , this is not the issue. What is before me are certain allegations in the com- plaint and the evidence in the record that either supports or defeats the allegations. In- sinuations, if made, do have some effect, if only subconscious in nature, but the issues must be decided upon evidence not insinuations. 12 A charge with respect to Pena was filed in November 1961. Respondent entered into an informal settlement with the Regional Director of the Board regarding the Pena charge in December 1961 . For the settlement Pena received a sum of money as backpay and he declined an offer of reinstatement ; Respondent also agreed not to interfere with the rights of employees as guaranteed under Section 7 of the Act . Subsequently, as the result of the investigation of additional charges, the Regional Director in May 1962 can- celed the aforesaid settlement and so advised Respondent The General Counsel litigated the discharge of Pena in the instant proceeding as evidence of a violation of Section 8(a) (1) of the Act but waived any remedy of reinstatement or backpay for Pena. ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 675 the only reprimand he had received was on one occasion for leaving the door of his truck unlocked at night. Apparently no action was taken regarding this other than a verbal reprimand. He was a satisfactory employee, received three increases in pay, and on occasion was delegated to instruct other employees in their work. Pena signed a union card for Candelario on October 14, and then secured the signature of a fellow worker on a card. He was among the small group of employees who attended the first meeting in Candelario's home, early in October, where plans for a union were discussed. Pena also was present at the union meeting held about October 20. Various witnesses described Pena as one of the activists and leaders in the union campaign who spoke in favor of the Union to his fellow employees. At the October 16 meeting at which Mrs. Alvaro spoke, as previously mentioned, she told Pena that he was "protesting" when he indicated that he was one of those who could not start work at 5 a.m. or who were less than enthusiastic about getting up for work at that hour. On October 20, while Pena was on his way to getting his truck from Respondent's parking area he was wearing a rosary around his neck. Mrs Alvaro was on the balcony of Respondent's building and she said to Pena that the rosary was very beautiful and that he should not listen to the others. The following day when Pena reported for work he came to Respondent's building and when he entered Mrs. Alvaro said, "Judas never used a rosary." Pena said he did not understand and Mrs. Alvaro said, "Get out of the office." While Pena was standing outside the office he was told to see Ramirez. The latter told Pena that it was "lamentable" but Mrs. Alvaro had given orders to suspend him. Pena said he knew why he was being suspended and asked for any money that was due to him. After being paid Pena left and was not recalled or otherwise offered reinstatement.13 Employee Gallardo testified that on an occasion, sometime after Pena's termination, Mrs. Alvaro said that she had done many favors for Pena and De La Vega (discusssed below) and they proved to be disloyal. On the day that Pena was suspended, em- ployee Mojica heard Mrs. Alvaro tell Mrs. Rodriguez not to give any services (work) to Pena that day and that she was not going to give him any work. Mrs. Alvaro remarked that she had never believed that Pena would betray her in her shop and that she did not want treacherous people like that in her shop. No defense as such was made by Respondent regarding all the foregoing evidence at the hearing. I find that Respondent was aware of Pena's union activity and that the reference to Judas and to disloyalty and betrayal should be so interpreted. This employee's suspension I find to have been due to his union activity and violative of Section 8 (a) (1) and (3) of the Act. De La Vega had worked for Respondent for approximately 2 years. His work had been that of chauffeur and billiard table mechanic and upholsterer in the field force. He had received one increase in pay. On occasion he apparently had been spoken to by management about not completing all his work on a particular trip I understand his testimony to be that he did speak to girls in the course of driving throughout the island but that this did not interfere with his work. The witness denied that he had wasted his worktime or that he had been reprimanded for talking to girls. He explained that he sometimes arose at 3 a.m. to get to work and did not return from some trips until 11 or 12 o'clock at night. He did admit that he had been repri- manded on October 12 for leaving the door of his truck unlocked at night. A week before his discharged Respondent had offered De La Vega a job as salesman since there was such an opening on its staff. This job would involve using a company car and quite evidently would provide the same opportunities or greater opportunities than his other work for conversation with young ladies. De La Vega declined the offer. In any event, the offer of this job indicates that the employee's care and use of company vehicles or his social proclivities were not regarded as seriously affecting his generally satisfactory work as an employee. De La Vega was in the group that attended the first union meeting in Candelario's house. He also attended a union meeting on October 18 or 20 and signed a union card around October 16 or 17.14 De La Vega was described by other employees as a union activist and he distributed some cards to his coworkers and he and Can- delario spoke at the union meetings. He was discharged by Ramirez on October 21. The latter simply said that he had received orders to do so and he had to carry out the orders. De La Vega said he knew the reason, namely the Union, but Ramirez said nothing further. None of Respondent's witnesses at the hearing testified as to " As noted above Respondent subsequently entered into a settlement regarding Pena following the filing of a charge by the Union "As we shall see at a later point there is some evidence that Respondent had an informer at the union meetings. 708-006-64-vol. 141-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD why De La Vega was terminated. As set forth in the discussion of Pena, above, Mrs. Alvaro had remarked at a subsequent date that she had done many favors for Pena and De La Vega and they proved to be disloyal. In the light of the relatively small compact nature of Respondent's operation and the proximity of management and the employees and the circumstances described above, I find that Respondent was aware of De La Vega' s union activity and sym- pathies and terminated De La Vega because of his union activity, associations, and sympathies and that this was violative of Section 8 (a)( I) and (3) of the Act Lugardo commenced working for Respondent about June 1961. He was a chauffeur on one of Respondent's trucks and testified that on several occasions Mrs. Alvaro had told him that he was performing his work well. He signed a union card for Candelario during the organizing period. On October 20, Friday, Lugardo and his assistant returned late at night from their route. As was not uncommon, Mrs. Rodriguez had left a trip ticket or note with respect to the following day's work. The ticket named two towns on the island to which Lugardo and his helper were to make deliveries on Saturday. On Saturday morning, October 21, when Lugardo came to work Mrs Rodriguez told him to see Ramirez Ramirez informed Lugardo that he had orders from Mrs. Alvaro to suspend him. When asked the reason, Ramirez simply said that he had been given an order and that was what he had to do. As he was leaving, Lugardo asked Ramirez if it was because of the "little groups" and the latter said, "exactly." After his termination Lugardo spoke to Benjamin Betancourt apparently about getting back to work. Betancourt said that if Lugardo was not mixed up in the Union, Mrs. Alvaro would put him back to work. At the hearing Betancourt denied that he had made such a statement and said that he was in fact unaware of any union activity at the time. Neither Betancourt nor any other witness of Respondent testified as to the reason for Lugardo's rather sudden termination. Employee Cruz testified that during the union campaign Mrs Alvaro had asked him if he had signed a union card and when he said, no, she said there were various names of union employees on a list that she and William Betancourt had. Mrs. Alvaro said that, although they were not sure about Lugardo, they suspected him of being mixed up with the Union. This testimony was not controverted. Although Lugardo's union activity was minimal he apparently was suspected of being sympathic to the Union or of being associated with the union activity. I find no explanation for Ramirez' failure to give any reason for the termination other than that it was due to the "little groups" among the employees. This uncontroverted reference can only mean, in the context of this case, the concerted and union activity that was going on among the employees. Quite evidently Respondent had embarked on a course of action designed to remove known or suspected union sympathizers. Respondent's failure at the hearing to state why Lugardo was terminated must also be considered since the unexplained suddenness of the discharge in the light of evidence adduced by the General Counsel is not helpful to Respondent Inasmuch as Benjamin Betancourt did not impress me as a frank and candid witness I credit Lugardo's testimony regarding his aforedescribed conversation with Betancourt after his termination. In the light of the foregoing findings I find and conclude that Lugardo was termi- nated because of his known or suspected sympathy with the Union or concerted activities then going on among Respondent's employees and I further find that this was violative of Section 8(a)(1) and (3) of the Act. Jose Burgos commenced working for Respondent in May 1961. He worked for 2 months as a helper to one of Respondent's collectors and then worked with employee Recci as a billiard table mechanic and upholsterer. Both men did the same type of work but Recci drove the car to and from the various jobs Burgos was 19 years old. He signed a union card during the campaign, apparently during the initial period in October, and also attended the meeting in Candelario's home early in October and one other union meeting. About a day or so after the October 16 meeting, at which Mrs. Alvaro had spoken, she spoke to Burgos privately in her office. Mrs. Alvaro asked Burgos if he had ever been at a meeting with Candelario, and Burgos said, "No " She asked him if he had seen some little yellow cards that were being distributed by Candelario and again the answer was, "No." Mrs. Alvaro then asked Burgos if he had signed any cards and he replied that he had not. Burgos was also asked if he drank beer with the boys at 27 de Mayo Restaurant and he said he did not since he could not afford to do so.is 15 The 27 de Mayo Restaurant is owned by a brother-in-law of Mrs. Alvaro. It is within convenient distance of Respondent's premises and was frequented for food , beverages, ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 677 Apparently satisfied as to Burgos' reliability, Mrs. Alvaro then told him that he should keep her informed of everything that went on outside and that she would give him a raise in pay. There is no evidence that Burgos said he would not comply. The conversation ended with Mr. Alvaro saying, "Don t worry, Burgos, the payroll is on its way already." 16 On a Wednesday, the date not given , Mrs. Alvaro assigned Burgos to cleaning some windows.17 There is no evidence that Burgos protested this assignment at the time or that it affected his pay. Mrs. Alvaro told Burgos that Reyes, who had performed the janitorial work in the past, had been assigned to the stockroom. While Burgos was at his new task, Mr. Alvaro came over and asked him if he was cleaning his nails. Burgos said he was working. Then, according to Burgos, Mr. Alvaro became anrgy, took him by the arm, snatched the pail trom him and said, "Are you going to obey me or not?" and then Mr. and Mrs. Alvaro laughed. I find the foregoing account rather difficult to understand. Either Mr. Alvaro was acting in an irrational manner that makes little sense or what occurred is something like this. Alvaro believed that Burgos was loafing, apparently standing at a window contemplating his nails. Alvaro sarcastically asked Burgos if he was cleaning his nails. Burgos said he was working or said something or used some tone of voice or expression that angered Alvaro who interpreted Burgos' reply as fresh or insub- ordinate. The snatching of the pail away from Burgos makes no sense unless it was accompanied by some words like, put the pail down and do thus and so or something of that nature. The purported laughter of Mr. and Mrs. Alvaro is also not readily understood unless Burgos was an awkward or sad looking cleaner or unless the Alvaros simply wanted to laugh at him. Whatever the true state of facts or the explanation, irrational conduct or something along the lines 1 have projected, I have difficulty in seeing the incident as a deliberate attempt to harass Burgos and to make his employ- ment by Respondent untenable. My reasons are stated below. Burgos cleaned windows for about a week. During this period, Burgos testified that he would be cleaning windows and Mr. Alvaro would come out and ask him what he was doing. Burgos then testified that he stayed home a week because "I was nervous. They humiliated me so much, they laughed at me, that made me un- comfortable." He returned to work on the day of the Board election and voted. When Burgos finished voting, Mr. Alvaro said, "Burgos, how did you make out?" and Burgos replied, "Fine, because I had no stumbling blocks on the way." Burgos then worked for about an hour putting glue on billiard cue tips. Mrs. Alvaro there- after sent for him to assign him to do some cleaning work. Burgos said to her that he was a billiard table mechanic and upholsterer and questioned why be should do cleaning work. Mrs. Alvaro replied that when he started to work for the Com- pany he had no skill and did not know how to do anything; she then sent for the regu- lar cleaning man, apparently Reyes, and asked him what he did besides cleaning and Reyes said he did everything required. According to Burgos, Mr. Alvaro was also present during this conversation and was laughing. Mrs. Alvaro then asked Mr. Alvaro, "Was this one of those?" What reply, if any, was given does not appear. Burgos then performed cleaning work the balance of the day. He did not see the Alvaros during his cleaning. The following day Burgos was again assigned to cleaning work. He announced that this was not his work and he was going to leave because he could not continue working like that. Mr. Alvaro then asked him why he was leaving and Burgos said, "because the chiefs [bosses] do not act properly with one " Alvaro said nothing but instructed William Betancourt to write up a letter of resignation and to give Burgos his check. Mrs. de Irizarry (Dona Felita or Felicita), sister of Mrs. Alvaro and secretary of the Company, then asked Burgos why he was leaving and he replied that it was because the bosses were humiliating him and were having him perform work he should not be required to do. William Betancourt typed up a letter of res- ignation, Burgos read it, signed it, and left. The letter said that he, Burgos, was resigning as an employee "because I cannot continue complying with my duties suffi- ciently because I have problems which will not permit me to continue working." The evidence with respect to Burgos, consisting as it does of his own testimony without any testimony from Respondent, still does not persuade me that Respondent and general social conversation by Respondent's personnel, both rank-and-file employees and others. This restaurant enters into another incident hereinafter described 11 No witness of Respondent offered any testimony regarding Burgos and the evidence relating to him was his own testimony. 17 The two possible Wednesdays would appear to be October 18 or 25 , probably the former since Burgos said he was on cleaning for a week , then was sick for a week, and returned to vote and to work on November 2. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constructively terminated his employment because of his known or suspected union activity. I recommend dismissal of the complaint allegation. Burgos had apparently convinced Mrs. Alvaro on October 17 of his loyalty, i.e., his nonparticipation in union activity. It is unlikely that she would have promised him a raise in pay for information of what was going on among the men if such was not the fact. The next day he was assigned to washing some windows It ap- pears unreasonable in view of the timing, that is, right after Mrs. Alvaro had enlisted Burgos as an informer, that the cleaning work was a discriminatory reprisal designed to force Burgos to quit. Aside from the exculpatory factor of the timing, the washing of some windows was not particularly onerous and there is some doubt that it was particularly demeaning. Burgos was a young man of 19; he apparently had no particular skill when he commenced working for Respondent; he, like other unskilled men, learned how to repair the upholstery on the billiard tables and to service the rather simple mechanism in the tables; these were not high skills but apparently Burgos regarded cleaning work as an affront to his dignity or pride; Burgos, like most of the other employees, received a modest salary as a billiard table worker and the salary was the same for the cleaning work; someone apparently had to do the cleaning and Reyes who had been doing it for over a year had been given some work to do in the stockroom; the evidence indicates that Reyes did all sorts of tasks or, as he stated, "everything"; apparently Mrs. Alvaro thought that Burgos, being a young man who had not worked too long for the Company, should be equally adaptable and she, in fact, had Reyes state in Burgos presence the nature of Reyes' duties I have previously discussed the alleged laughing by Mr. and Mrs. Alvaro. It was either some irrational expression or perhaps was due to the way Burgos handled the cleaning work. The most that can be assumed for the General Counsel's position is that after she spoke to Burgos on October 17, Mrs. Alvaro learned that he had in fact signed a union card and had attended some union meetings.18 She and Mr. Alvaro then placed Burgos on cleaning work, laughed at him and forced him to quit. The difficulty I have with this hypothesis is that it would appear, in the light of other evidence in this case, to be a relatively elaborate procedure to get rid of an employee who at best was a minor factor in the union activity. Why Mr. and Mrs Alvaro should by design take the trouble of coming out of their offices to laugh at Burgos is not apparent. We have seen that if an employee was a known or suspected union auheient he was simply suspended or terminated, in many instances without explana- tion. Similar treatment of Burgos would have presented no particular problem sinre he was certainly not an outstandingly known union activist. The conclusion that Burgos, whom I observed as a witness, was a rather nervous and sensitive young man, who was offended at doing cleaning work and who was perhaps unduly sensitive to what he regarded as a deliberate effort to laugh at him, seems at least as reasonable to me as the theory of the General Counsel. There is too much doubt in my mind about parts of his testimony and his entire case for me to recommend otherwise than I have done. But the interrogation of Burgos by Mrs. Alvaro on October 17 and the effort to procure him as an informer regarding union activities I find to be violative of Section 8(a)(1) of the Act. The day before the November 2 election Mr. Alvaro addressed the employees in either one or two meetings The substance of his remarks was that an election was coming up, business was not good, and if the Union won the election he would close the shop and continue with the field collection work, using only some relatives Alvaro also stated that if the Union did not win the election he had plans for the employees, such as Blue Cross and a Christmas bonus. The foregoing threats and promises of benefits are violative of Section 8(a) (1) of the Act. The defeat of the Union in the November 2 election was not the end of the union issue. Objections to the conduct of the election and charges of unfair labor practices by Respondent were filed. Discharged union activists maintained their contacts with employees still on Respondent's payrolls and the 27 de Mayo Restaurant continued to be frequented by employees and former employees. Two or three days after the election while employee Carmelo Gonzalez was repair- ing a fence on Respondent's premises, Mr. Alvaro called to Gonzalez and asked him if he had voted for the Union. Gonzalez said that he had voted for the Company ' Mrs. Alvaro's remark, on the day before Burgos quit , "was he one of those," If it referred to whether Burgos was a unionman , would indicate lack of knowledge and it is to be borne in mind that the treatment of Burgos was no different after the remark than it had been before. Moreover, he was not discharged thereafter but quit ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 679 and that he wanted to let him know that such was the fact since, as Gonzalez told Alvaro, Gonzalez had noticed that Mrs. Alvaro had adopted a very distant or indif- ferent attitude toward him. When Alvaro, in effect, said, are you telling me the truth about how you voted, Gonzalez assured him that he was. Gonzalez told Alvaro that he could check as to how Gonzalez had voted because his ballot was in an envelope.19 Apparently Alvaro was satisfied by what Gonzalez said because he advised Gonzalez, if he was questioned by other employees as to how he had voted, to tell them that he had voted for the Union. Under the circumstances of this case I find the interroga- tion of Gonzalez by Alvaro to be a violation of Section 8(a)(1) of the Act. Around the latter part of October 1961, Mrs. Alvaro had queried employee Cruz regarding his union activity. She said he could continue to work if he was candid with her on the matter of union activity. Cruz said that he would swear that he was not mixed up with the Union. Sometime after the election Mrs. Alvaro told Cruz to keep on working as he had been doing and to keep away from and stop going around with those in the Union. Under all the circumstances I find the foregoing conduct to constitute illegal interrogation and threats, both expressed and implied, and that it was violative of Section 8(a) (1) of the Act. Julio Recci 20 had worked for Respondent since February 1960. He performed the work of a chauffeur, billiard table mechanic, and billiard upholsterer. His original salary was $25 per week but he later received a raise to $30. He signed a union card about October 20, 1961. On that same date, which was the day after Candelario's discharge, a group of employees, who were getting ready to start out on their day's work, were told by Mrs. Alvaro that she knew the ones who had signed the cards and she pointed to various employees seriatim, one of them being Recci. During this same period prior to the election Recci returned to the plant one night at 10 p.m. This was evidently due to the fact that he had to cover a number of towns that were far apart in the island. Mrs. Alvaro spoke to him about being late and she said it was due to the signing of yellow cards and the holding of little meetings; 21 she said that she was going to take care of that matter. Recci was a/or the union observer at the November 2 election. He testified that prior to the election Mrs Alvaro used to greet him but did not do so thereafter. Also, prior to the election, Mrs. Alvaro had customarily checked Recci's (and presumably other's) worksheets but had not done so in Recci's presence. On two occasions after the election Mrs. Alvaro checked Recci's worksheets in his presence. In the postelection period, however, as we shall see, Recci had worked with two new helpers, DeJesus and Serrano. In describing one of the occasions when Mrs. Alvaro checked the worksheets, Recci said that the checking was due to the fact that his helper had been changed. He said he had pointed out to Mrs. Alvaro that his helper had been changed. Recci stated that DeJesus was assigned to him as a helper the week of the election because Jose Burgos was ill "the week of the election." 22 According to Recci, Burgos had been his helper prior to that time. Since Burgos had been ill for the week prior to November 2, the day when he came in to vote, the period of his absence was apparently October 25 or 26 to November 2. It may be noted that Recci's testimony would tend to indicate, in contrast with Burgos' previously considered testimony, that Burgos had spent very little time on cleaning duties prior to his illness but had been Recci's helper until his illness , the week prior to the election. Recci's testimony "Gonzalez' ballot had been challenged at the election (he so testified ) and only challenged ballots are placed in an envelope with the name of the voter on the outer envelope. Under certain circumstances it is possible for the parties to know which way a challenged voter, who is ultimately declared to be an eligible voter, casts his ballot. While I do not believe that a person like Gonzalez understood all the details of the Board's election procedure. I am satisfied that he thought, not unreasonably, that because his ballot was segregated in a sealed envelope the latter was therefore available for checking by the parties and that Alvaro could verify the truth of Gonzalez' statement that lie had voted against the Union I am satisfied that Gonzalez had told Alvaro the truth as to how he had voted and would not have invited what he believed was available means of verifica- tion if such was not the fact. 20 Respondent's witnesses offered no testimony regarding Recci The testimony herein- after considered is Recci's. 1 The union authorization cards are yellow 22 While De La Vega was employed he had secured a signed union authorization card from DeJesus. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicates that DeJesus was assigned to him as a helper when Burgos was ill and that DeJesus worked as helper the week of Burgos' illness and another week after that 23 In short, for about 14 working days between about October 26 and November 10, DeJesus was Recci's helper. On Friday, November 10, DeJesus was late in reporting for work and the Com- pany assigned an employee named Serrano to work with Recci. Recci complained to Mrs. Alvaro because Serrano's work was on pinball machines and Recci worked on billiard tables. Mrs. Alvaro said he was complaining before he started to work with Serrano and most people if they complained did so after rather than before the event. The two men went out in the truck together on that day, November 10. Recci testified that they did not complete their respective tasks because the pinball machines and billiard tables they were supposed to fix were in different places.24 It does not appear that at the end of the workday on November 10, Recci spoke with Mrs. Alvaro or anyone else in management. Quite possibly no one was around when Recci and Serrano returned although Recci did not testify as to this. The next day, Saturday, November 11, Recci did not report for work at 8 a m., which was his regular starting time, nor did he attempt to notify the Company that he would not be in. Instead he came to the company premises at 2 p m. He testified that he did this in order to avoid seeing Mrs. Alvaro because he believed she would give him an "argument," complain about the fact that the work had not been com- pleted the previous day. By not coming in until 2 p.m. Recci said he believed he would not see Mrs. Alvaro and that he would speak to Mrs. Rodriguez about changing his helper for the following Monday. However, the first person he encountered when he came in on the afternoon of the 11th was Mrs. Alvaro. So far as appears she did not criticize Recci. Recci proceeded to tell her that Serrano did not under- stand billiard table work and Recci did not understand pinball machines, that there was a great deal of work and with an inexperienced billiard table helper "I would not be able to perform a good job," 25 Mrs. Alvaro then called William Betancourt to prepare Recci's check. Betancourt asked Recci to wait, then called him in and said that Recci would have to fill in a paper saying that he was resigning. Betancourt gave Recci a sheet of paper and told him to write on it the reason for his resignation and "then I started to write and he [Betancourt] left." Recci testified that he himself composed and wrote the resignation. The letter stated that "I, Julio Recci . . make effective today my resignation because I don't feel happy in my work. I have decided to go of my own free will and I have not been treated badly by the bosses." On the whole, I regarded Recci as a reliable witness. His account of the helper situation impressed me as substantially accurate. As I view the situation, DeJesus, a union man, was assigned to work with Recci when Burgos was ill. This was the week before the election and the illness was apparently due to a sensitivity on Burgos' part which I believe could not normally be anticipated under the circumstances. I have previously discussed the entire Burgos case and will not repeat my views. DeJesus apparently was a satisfactory assistant or coworker with Recci. Respondent did not take the initiative to disturb this relationship. It was because DeJesus, for reasons, as far as the record shows, that were best known to himself, did not report for work on time on Friday, November 10, that Respondent found it necessary to assign Serrano to work with Recci. Burgos had not been in Respondent's employ 22 Direct examination by the General Counsel: Q. Prior to the election who had been your helper? A Prior to the election, Jose Al. Burgos. Q. How long had he been your helper? A. About three or four months. Q. Was Burgos your helper at the time of the election? A Burgos had been ill the week of the election. Then they gave me another helper for that week. Q. And who was that? A DeJesus. I don't remember his [first] name. Q And did you get any other helper? A Well, the week Burgos was sick DeJesus worked that week and another week after. 24 At the hearing Recci was asked whether, on November 10, when DeJesus did not appear, there was any employee at the plant who was available who had billiard table experience. He replied, Jose Burgos who had been placed on a cleaning job As we have seen, Burgos was terminated on November 2. 25 At one point in the conversation when Recci was telling her about the fact that neither man knew the other's type of work Mrs Alvaro said, "Why are you complaining9" and Recci said, "Well, because you know it." ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 681 since November 2, and, there being no showing that any other employee was dis- engaged at the time, I find nothing sinister in Serrano's assignment . If the two men went out on the same truck, as they did, and Recci had billiard table work at certain locations and Serrano had to service pinball machines at other locations, it is apparent that neither could do as much of their specialized work as would be the case if both were concerned with only one or the other type of work. Recci complained about Serrano on November 10, before he went out with him. Mrs. Alvaro asked him in effect what he was complaining about since he had not even started to work with Serrano. During the course of work on November 10, Recci was apparently unhappy with Serrano. According to Recci, this was due to the fact that Serrano was not experi- enced on billiard table work. This was apparently the fact but I am not convinced that the billiard work was so complicated that even an inexperienced man could not have been and was not of some help. Most of the employees, with no prior experience, had acquired familiarity with the billiard table work in a relatively short time. I would judge that what bothered Recci, and he indicated as much, was that the two men had to go to other customers who required pinball service and this, of course, meant that the entire day could not be spent on the billiard table tasks. It would seem that this situation would be primarily a concern of management and management was apparently not dissatisfied. If Mrs. Alvaro, on one occasion after or on November 10, or on many occasions, had hectored and harassed Recci because he was not completing as many billiard jobs as he had when he and his helper were working wholly on billiard tables, her position would be manifestly unreasonable It might well be indicative of a plan to harass Recci and to force his resignation. But this is not the case. After working 1 day with Serrano on November 10, Recci decided that he did not like the arrangement. Without any effort to communicate with the Company he simply failed to show up for work on November 11. He did this, he says because he believed that Mrs. Alvaro would give him an argument because he did not complete all the billiard work on the previous day. He apparently had decided that he would not work with Serrano. When Recci came to Respondent's premises at 2 p.m. on November 11, he met Mrs. Alvaro. She did not launch into any criticism of his prior day's work record but Recci proceeded to tell her in effect that he could not work with a man who had pinball work to perform and who was not a billiard tableman. Again, it seems to me, if Mrs. Alvaro was not complaining about the lesser work that Recci would accomplish under such circumstances, he, as an employee had no reasonable basis for complaint, at least if he wished to continue as an employee. When confronted on November 11, with Recci's position that he could not accomplish the work as he thought it should be accomplished, a reiteration in effect of his previous day's protest before he even started to work, Mrs. Alvaro ordered his check prepared. Recci did not protest. He did not say that he would work with Serrano since Mrs. Alvaro was apparently satisfied with the situation of having a billiard and a pinball man on the same truck. He did not inquire whether D_-Jesus would be available on the next workday, Monday, and there is, in fact, no showing that DeJesus would not have been reassigned to Recci on that day. Since the only reason why Serrano had been assigned to Recci on November 10, was because DeJesus had not appeared for work on time, it cannot be assumed what the situation would be on Monday. Perhaps DeJesus would appear, perhaps he would not. Probably neither Mrs. Alvaro nor anyone else but DeJesus knew this. In any event, all that Recci did was to compose his own resignation, stating that he was not satisfied with his situation, i e., with the experience he had in working with Serrano. It is of course apparent from this record that Mrs. Alvaro was opposed to the Union. She knew that Recci was active in the Union and the record indicates that she had no particularly friendly feelings toward him, especially after his role as union observer at the election . But she had not discharged him, possibly because of his last-mentioned conspicuous role. Nor am I persuaded, on the evidence previously described, that Respondent contrived to force Recci into an untenable and unbearable situation and thus brought about a constructive resignation or discharge. I shall recommend dismissal of this portion of the complaint. However, I find that in the period between October 15 and November 2, 1961, Mrs. Alvaro, in accusing Recci of having been late because he spent time at little meetings (union gatherings ) and in discussing or distributing little yellow cards (union cards), and saying that she would take care of that matter, was in effect uttering an expressed or implied threat that constituted interference in violation of Section 8 (a) (1) of the Act. Miguel Mojica commenced working for Respondent in June 1961 and was termi- nated on December 2, 1961. He worked as a chauffeur. During the October campaign he had signed a union card and had attended union meetings. Mrs. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alvaro had told him that he was a good boy, that he should not go around with the union people because that would harm him. Gallardo, one of Mojica's coworkers, testified that during the union movements Mrs. Alvaro had spoken to him on several occasions about Mojica. She asked Gallardo whether Mojica had signed a union card or if he had spoken to Gallardo about the Union. Gallardo had answered in the negative on both scores. Before his discharge the truck that Mojica was driving hit a car that had stopped for a traffic light. Apparently this occurred at about 11 p.m., the weather was rainy, and Mopca testified that the brakes had failed. Mojica states that the lady driver of the car agreed not to report the accident to the police if the damage to the car was paid for by Respondent. This was done. Mojica states that there was not much damage to either vehicle. According to Mojica, the accident was a week or two prior to his discharge.26 Mrs. Alvaro said to Mojica that she was discharging him because of the accident. On cross-examination Mojica states that, because of what he had heard had been told to Mrs. Alvaro about his being drunk, he had gone to her and said that he did not use liquor while working and offered to produce his coworkers to corroborate this. Mrs. Alvaro's union hostility needs no reiteration but knowledge of Mojica's union activity is minimal In fact, such intelligence as was given to Mrs. Alvaro by Gallardo was that Mojica was not active. But, even assuming that she was aware of Mojica's alignment with the Union, I am not persuaded that but for Mojica's union activity he would not have been discharged. He had only worked for the Company about 6 months; his truck hit a car under circumstances that caused the Respondent to pay for the damage; and in view of Mojica's own testimony, Mrs. Alvaro had apparently been told that he had been drinking prior to the accident; ad- mittedly, he undertook to convince her otherwise. I have difficulty in being persuaded that under these circumstances the reason for the discharge was his union activity. Of course, such may have been the case but there is sufficient doubt in my mind to lead me to conclude that the General Counsel has not discharged the burden of proof in this instance. I recommend dismissal of the Mojica allegations 27 I find, however, that Mrs. Alvaro's October warning to Mojica not to go around with union adherents because it would harm him was an implied threat under all the circum- stances and violative of Section 8(a) (1) of the Act. Carmelo Gonzalez commenced working for Respondent early in 1961. He was one of the field employees, helped deliver billiard tables, and was a billiard table me- chanic. For 2 months after the inception of his employment he was a draftee in the Army and he then returned to work for Respondent as before. He did not sign a union card but testified that he attended some union meetings. Sometimes prior to the November 2 election Gonzalez had been absent "three or six days" because of an injured finger Gonzalez had voted in the election and his vote had been challenged and had been placed in an envelope.28 Previously, in describing events in chronological order, I 21 No witness of Respondent testified regarding Molica's discharge or the related events n Aside from Mrs. Alvaro's opposition to the Union the aspects of Mojica's case that appeared suspicious was the testimony that It was not until a week or two after the accident that he was discharged. But, upon reflection, the ascertainment of the damages caused by the accident and the amount thereof, plus the making of the claim by the in- jured party and any negotiations probably took some time There is also some indication that the discharge was made on the same day that the janitor reportedly told Mrs Alvaro that Mojica had been drunk at the time, e.g.- Q How about the day you were discharged. Did anybody talk to you about your drinking at that time? s t s s s s s Q You mean the janitor talked to you about being drunk on the day of your discharge? A He told Dona Lucy [Mrs Alvaro]. Employee Pena Chevere testified that he had had three "slight accidents" and had not been disciplined therefore. He stated that in two accidents he was not at fault but was at fault in one accident. This was prior to October 1961. It is impossible to 'tell from the record what Pena meant by "slight accidents" or whether the Company's truck had been damaged or whether the Company had had to pay the other parties. I cannot say that this evidence warrants the conclusion that the Respondent would not normally dis- charge an employee of 6 months (Pena had been with the Company over 21/2 years) be- cause of an accident in which the Company incurred liability, particularly when there was an accusation of being drunk by a fellow rank-and-file employee. 21The record does not show by whom the vote was challenged. ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 683 have referred to the episode after the election wherein Mr. Alvaro had asked Gonzalez if he had voted for the Union. Gonzalez had firmly assured Alvaro that he had voted for the Company and in effect said that this fact could be verified be- cause his ballot was placed in an envelope. For the reasons previously discussed, t believe that Gonzalez was telling Alvaro the truth and convinced him of the fact since Alvaro thereafter admonished him not to reveal to his fellow workers that he had voted against the Union. On November 16, 1961, Gonzalez gave an affidavit in connection with the investigation of the Union's objections to the election . Gonzalez said that Mr. Alvaro in his speech before the election neither told the employees that he would close the plant, nor did he utter threats, nor ask anyone to vote against the Union. Alvaro, according to Gonzalez, simply told the employees to vote as they wished. Respondent could scarely harbor any resentment against Gonzalez for this statement, of which Respondent was fully aware. In the latter part of November, Gonzalez was absent for 3 days because of illness. On direct examination he testified that he went to the Respondent's office on Satur- day.29 In response to the question of who terminated his employment, the witness said that when he went in on Saturday, William Betancourt told him that he wished to speak with him because Mrs. Alvaro had left a check for Gonzalez. "Then I went upstairs and spoke with him and he started to explain to me that since I hadn't reported I was suspended `for good,' then he handed me a check for $18." On cross-examination the witness said that he had gone to the office at 5 p.m. on Saturday because another employee had told him that he, Gonzalez, had been sus- pended "and I said, `I'll go to pick up my money."' He then had the aforedescribed conversation with William Betancourt. However, Gonzalez states that when Betan- court gave him the $18 check and told him that he was suspended for not having notified the Company of his absence, Gonzalez insisted that he was entitled to 6 days' pay instead of 3. According to Gonzalez' testimony on direct and cross-examination there is no indication that he disputed or made any rejoinder to Betancourt's state- ment that his suspension was due to his absence without having notified the Company. He appears to have accepted the statement at face value and to have voiced disagree- ment only about the amount of his check. The witness then went on, during cross- examination, to state for the first time that after disputing with Betancourt about the amount of the check, he went up to see Mrs. Alvaro, apparently at her apartment on the upper floor. He asked Mrs. Alvaro why he was discharged and she said it was because of 3 days' absence without reporting. The witness did not testify that he disputed Mrs. Alvaro 's statement or that he told her that he had sent word of his absence. He did, however, tell her, as he had told Betancourt, that he was entitled to 3 extra days' pay. Mrs. Alvaro agreed, called the office, and Gonzalez went down and secured an additional $5.59 or $23.59 altogether. On redirect examination , Gonzalez stated for the first time that when Mrs. Alvaro told him that he was terminated for being absent for 3 days without reporting the absence, he told her that he had sent a message "through a co-worker." Apparently he did not name the coworker to Mrs. Alvaro nor did he name him at the hearing.30 Mrs. Alvaro then reportedly said, "I have to discharge you because I have to take on new personnel" although she said that Gonzalez behaved well and she had no complaints against him . The General Counsel then asked Gonzalez, "Did she tell you why she was reorganizing" and he answered, "because there was a certain group that was failing, that they were trying to form a union and that she had to get rid of that personnel." I have serious doubts about the last-mentioned portion of Gonzalez' testimony. Although manifestly significant on its face to even the unsophisticated, it was given belatedly on redirect examination and the context itself raises doubts. First of all, even by Gonzalez' account, he never mentioned to Betancourt that he had sent word of his illness although the reason given to him for the termination was his absence without notice. It is fairly clear that if the check that Betancourt gave him had been $23.59 instead of $18 Gonzalez would have raised no issue. The only Evidently December 2. "'The General Counsel in his brief states that the messenger was Mojica , an employee involved in this proceeding. Mojica is a cousin of Gonzalez and lives near him. Mojica testified he once gave a message to Mrs. Rodriguez that Gonzalez was ill . The General Counsel asked Mojica when this was and Modica said it was "about 3 days after the [November 21 election ." While these employees perhaps should not be held to high exactitude regarding precise dates , the date of the election was certainly a well known point of reference. I have difficulty in understanding how Mojica could be so far off in fixing the time of the incident since Gonzalez was absent at the end of November. The question arises whether Mojica might have had reference to another illness closer to the election . ( Gonzalez said he was out 3 to 6 days apparently shortly before the election ) 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter he raised with Betancourt, after Betancourt told him the reason he was being discharged, was the amount of the check. From the record and by observation at the hearing I am convinced that the personalities and the respective positions of Betancourt and Mrs. Alvaro were such that Gonzalez and the other employees would more readily offer rebuttal or argument to Betancourt than to Mrs. Alvaro. Certainly I believe that Gonzalez would have raised his defense, of having sent word of his illness, with Betancourt in the first instance since he saw him first and received his discharge and the reason thereof from him. At most, Gonzalez would put forward his argument against the discharge to Betancourt and then to Mrs. Alvaro as a last resort. It is unconvincing that he would have said nothing about having notified the Company to Betancourt but would have raised this point only with Mrs. Alvaro. I believe that Gonzalez' conversation with Mrs. Alvaro and her conversation with him was confined to the question of the amount of his check.31 There is substantial doubt whether Gonzalez had notified the Company of his illness not only for the reasons above stated but also because Mojica's purported collaboration raises a question in my mind, as already described. It is to be borne in mind that Gonzalez' union activity is virtually undiscernible. In fact, he did not sign a union card in spite of the intensive union campaign; he informed Mr. Alvaro and convinced him that he had voted against the Union in the election and the evidence indicates that he was telling the truth since he believed his challenged ballot could be checked and he invited Alvaro to do so; as late as November 16, he had given a favorable affidavit to Respondent exculpating Alvaro from interference with the election in his preelection speech; by Gonzalez' own testi- mony regarding December 2, Mrs. Alvaro told him that she was satisfied with his attitude and behavior and this is the same alleged context of her saying that there was a union group among the employees and that she had to get rid of "that personnel"; quite evidently she was not placing Gonzalez in that category and, as we have seen, she had no reason to do so. Nor is this the situation of an employer making a mass layoff for alleged economic reasons in order to disposed of union adherents and being obliged for the sake of consistency to include even nonunion employees in the layoff. The layoffs or terminations in the instant case were individual termina- tions. Finally, it is difficult to believe that if Mrs. Alvaro made the statements testified to by Gonzalez she was at one and the same time telling the victim of an alleged pretext that it was in fact a pretext; this would be surely inconsistent with the nature of a pretext which is presumably resorted to as a clandestine and devious method rather than a forthright discharge; nor is it credible that having no reason to suspect Gonzalez of union activity and having in effect referred to the union group as distinguished from Gonzalez' approved attitude, she would then advise him that he was part of her general liquidation of union adherents. The evidence does not persuade me, as urged by the General Counsel, that prior to the union campaign it was Respondent's practice to warn an employee or suspend him for 3 days if he was absent without calling in. The General Counsel cites the testimony of employees Luguera and Cruz, as well as William Betancourt on this aspect. Luguera testified first that he did not remember who had ever been absent without calling in. He then said he remembered "somebody" who was absent without calling in but could not remember who it was. This person he said was reprimanded and given a 3-day suspension. Employee Cruz was asked whether he had ever been laid off. He said, "Yes," and when asked to describe it he said: "One week I was ill Monday and Thursday and then the following week I was ill two days and then I sent word." I am not sure I understand the purport of this testimony but it does not stand for the proposition asserted above. Cruz also testified that he did not know the names of any employees who did not report for work and failed to notify the Company. But he did name Recci and DeJesus as having been absent from work and who were suspended therefor. In view of Cruz' preceding answer it appears that Recci and DeJesus had not failed to report their absence but were suspended either because of the nature of, or the reason for, their absence. Cruz stated that to some unnamed employees the Company had said, at some time. "The next time that you do this again, that you are absent you will be punished three days." I am unable to agree that the foregoing evidence points to the custom or practice claimed. As to William Betancourt, his testimony, that is cited regarding the aforementioned custom or practice, shows that ordinarily he did not mete out discipline in the form of suspensions to employees. If a man was absent Betancourt s Quite clearly the credibility issues in Gonzalez' case and in other instances is a diffi- cult one in view of the fact that Respondent offered no testimony regarding Gonzalez' discharge or regarding some of the other discharges I have given this factor serious consideration but have not used it as the sole determinant ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC 685 said that as the company accountant he would speak to the man when he returned to work. If the excuse was a good one (Betancourt said that in case of illness a doctor's certificate was necessary), then Betancourt would pay the man for the day. If the excuse was not valid Betancourt said that the extent of his responsibility as accountant was to hand in his work or attendance report and "not pay him [the employee] for the day." Again I fail to see the custom or practice of a 3-day sus- pension for unreported absences. Because I am not persuaded that the General Counsel has supported the allegation regarding Gonzalez' discharge by substantial evidence I recommend dismissal thereof. The evidence shows that he was an employee of less than 1 year and had been absent 2 months of that period for military duty. He was absent on one occasion for 3 to 6 days but apparently had notified the Company or had incurred his injury (to his finger) while at work, to the Company's knowledge. He did not sign a union card and voted against the Union as he later advised the Company. Mrs. Alvaro did not class him with the union group but regarded his attitude as commendable. About 2 weeks before his termination he made an affidavit favorable to Respondent and absolved Mr. Alvaro of any interference with the Board election as was claimed by the Union. When he was absent from work for 3 days without notifying his employer he was terminated. At the time, Gonzalez did not contest the basis of his termination but did argue that his final check was $5.59 less than it should have been. Mrs. Alvaro, when he spoke to her about the aforesaid monetary matter, arranged for the additional payment. Juan Torres had worked for Respondent since July 1961. He performed the cus- tomary work of a field employee with respect to the billiard equipment. Although Torres as a member of a field team performed billiard table repair work and parti- cipated in the collection of money from the billiard tables he was principally the driver of the vehicle that transported the team and equipment to various jobs. Torres signed a union card during the period prior to Candelario's discharge on October 19. He also asked some other employees to sign cards and attended union meetings. In October, sometime before the election, he was with De La Vega when Mrs. Alvaro asked them if they knew anything about the little yellow cards. They both denied any knowledge of the cards but Mrs. Alvaro said that she knew, who had signed them. The witness stated that he was terminated on a Saturday, which he thought was about December 4. I note that December 2, 1961, was a Saturday and therefore conclude that this was the date to which Torres referred. On that day, William Betancourt told Torres to see Mrs Alvaro. Mrs. Alvaro on this occasion, according to Torres, told him "a great many things about the work." She said she had seen a nonemployee around the Company's parked vehicles and she mentioned a fire in the company warehouse that caused losses to the Company and that the Company would have to suspend some employees. After Mrs. Alvaro had talked about many subjects in a characteristically rapid manner, Torres asked her "what the deal was, whether I was out of work." She said, "yes, that it was just for a couple of days." She gave him his paycheck, including accrued vacation pay and also gave him an application form for employment. Mrs. Alvaro said she would call him. Torres denied that Mrs Alvaro had told him that he was being suspended because he did not have a truckdriver's license and that when he secured such a license he could return He stated that he did not thereafter fill out the employment application given to him on December 2, because his fellow workers so advised him As in other instances. Respondent offered no testimony regarding Torres' dis- charge. Under letter of March 10, 1962, Respondent 32 wrote to the Board's Regional Office giving reasons for the termination of Torres and four other em- ployees 33 This letter is of course an unsworn document and it was neither affirmed at the hearing nor by any witness of Respondent testifying along the lines of the letter. As Trial Examiner, I must decide the issues on sworn testimony, including evidence upon which I may rely. 33 The letter was signed by William Betancourt, accountant, on behalf of the Company. 33 The letter stated that Torres had been driving 4 or 5 months without legal authoriza- tion He told the Company when hired that he was an authorized chauffeur. One of his coworkers reported that Torres did not have a chauffeur's license He was called to the office and admitted that he only had a driver's license (the chauffeur license is a com- mercial license to drive commercial vehicles including trucks ; the conductor's or driver's license is the customary driver's license to drive an automobile) Mrs Alvaro suspended him until he secured a chauffeur's license that would enable him to drive the company vehicles that are classified as commercial. Torres has not returned This employee was also one of those who went off his route to have lunch, contrary to company regulations 686 DECISIONS Or, NATIONAL LABOR RELATIONS BOARD Lugardo, one of the alleged discriminatees, testified that around the period of the Board election, Mrs. Alvaro asked him to keep his eyes on Torres and Gonzalez. In the course of his testimony Lugardo stated that on the day of Torres' termination, he heard Mrs. Alvaro tell Torres to fill out another application for employment and that he had to have a license for driving heavy vehicles. I credit this testimony of Lugardo. The evidence before me persuades me that on December 2, Mrs. Alvaro, as Torres testified, did talk about a great many things, including seeing a nonemployee around the company cars, the warehouse fire, and other matters. I am inclined to believe that not only because of the variety of subjects referred to by Mrs. Alvaro, but because of her rapid manner of talking, Torres did not understand the import of her remarks. I doubt also that she was specific in relating Torres to any of the matters she touched upon. At length, Torres asked her what the deal was insofar as his employment was concerned and whether he was out of work. Mrs. Alvaro replied in the affirmative and gave him his check in full and told him he was suspended for a few days. She then, I believe, gave him an application for employment form, told him that it was to be filled out, and that he would have to secure a commercial driving license. She said she would call him. The indication is that Torres left the office, and thereafter discussed the matter with some of his fellow employees They advised him not to fill out the new application, possibly on the theory that he would be thereby accepting a role as a new employee applying for a job. He did not fill out the application nor did Mrs. Alvaro ever call him. Since I have no testimony of Mrs. Alvaro or any other witness of Respondent on these events, I consider the following uncontroverted testimony of Torres: when he was first employed Mrs. Alvaro asked to see his driver's license; she examined it, held it in her hand and also showed it to Benjamin Betancourt. This testimony I credit, since in hiring an employee for fieldwork which would entail driving, or some driving of company vehicles, it appears reasonable to assume that Respondent would check his driver's license; this would be a means of verifying the important fact of whether the employee had a valid license and whether it was current and otherwise in order. The license was not a commercial license and Torres was not told at the time, or at any time before December 2, that he should secure such a com- mercial license. Thereafter, in the course of his employment, Torres was assigned to driving company vehicles. Although there is no direct testimonial evidence as to whether the vehicles were classified as commercial and required that the operator have a commercial license, I believe that at least some of the vehicles would be classified as commercial. I saw most of the vehicles in the parking lot and there are pictures of some of them in evidence . Some were passenger cars, some were panel trucks , some were light pickup trucks, and one or two were slightly larger flat-body trucks. I would surmise that the latter were probably used for deliveries of one or more billiard tables which would be of substantial weight. It is difficult to believe that the trucks, at least, would not be classified as commercial, particularly when used by a commercial enterprise 34 In the absence of evidence, I cannot determine whether the passenger type cars, used as they were by teams of field employees in the course of their work, were classified as commercial. The matter is arguable both ways but would of course depend on governmental motor vehicle regulations in the Commonwealth. Torres testified without contravention that the small pickup trucks can be driven without a com- mercial driving license and, by implication, this would certainly indicate that the same rule would apply to drivers of the passenger cars. I have considerable doubt about this testimony insofar as it applies to the trucks.35 Whatever the legal requirements with respect to driving Respondent's vehicles, it is clear that Torres for about 5 months was driving company cars and pickup trucks. The record does not indicate whether or not he drove the larger trucks. As previously indicated, the Respondent was aware from the beginning that Torres did not have a commercial license and the record indicates that he was not the only employee who drove company vehicles and did work similar to Torres who had a noncommercial driver's license 36 34 Employee Lugardo who delivered billiard tables on company trucks testified that he had a commercial license or a heavy truckdriver's license , as he put it. 351n February 1962, after his termination , Torres secured a commercial license to drive a "light truck " A distinction between a light truck and a pickup truck impresses me as dubious 36 E g., Garcia , who did field work on the pinball machines and was referred to by Respondent's witnesses as a trusted employee . Garcia was in no way identified with the Union or its activity. He was not laid off. ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 687 Respondent offered no reliable evidence to explain why Tones was paid and laid off on December 2, or why he was told to fill out a new application for employment and to secure a commercial license. Even if his work had required a commercial license there is no circumstance shown that explains why, on December 2, without any prior discussion with Torres about securing such a license, he should have been laid off at that time rather than at some earlier period when the same condition existed. The record does show, however, Respondent's hostility to union activity and to union activists among its employees. Mrs. Alvaro had questioned Torres and De La Vega about union cards and told him that she knew who had signed. The inference is drawn that she knew that these two employees had signed and were union coherents. I believe that with respect to Tones the evidence supports the finding and conclu- sion that he was laid off because of his union activity and that Respondent wished to obviate the possibility of further or continued union activity among its employees. Under the circumstances described, I believe the act of laying off this employee and having him file an application for employment as a new employee, unexplained either to the employee or at the hearing, was discriminatory and calculated to evoke his refusal. I also find, in the absence of explanation by Respondent at the hearing, that there was no more reason, except a discriminatory motive, for the requirement on Respondent's part that Tones should have a commercial license on December 2, 1961, than in July 1961, when he was hired or during the intervening period. I also find that Mrs. Alvaro did not call Torres, as promised, to seek to ascertain whether he had secured a commercial license (which he did in February 1962).37 I conclude that Torres was laid off and terminated because of his union affiliation and activity in violation of Section 8 (a) (1) and (3) of the Act 38 Porfirio Miranda entered Respondent's employ on March 7, 1961. He was a billiard table mechanic. Prior to the election he had signed a union card and had attended a union meeting. Miranda testified that "more or less about 5 months" after he commenced working he received a $3 pay raise. From August to December 7, 1961, when Miranda was discharged, he was absent from work a total of 9 days. Respondent offered no testimony regarding Miranda but the Tatter's testimony indicates that his absences were for legitimate reasons.39 The last absence before his termination was on December 6. The day before, he and employee Delgado had been out on various jobs on the island and returned just before 10 p.m. Miranda testified that he felt ill and told Delgado that he probably would not be able to come to work the next day because he felt ill. Miranda did not come to work on December 6. When Miranda came to work on December 7, Mrs. Alvaro spoke to him. She told him that he was a good employee, responsible and honest, but that he could no longer work for the Company. He testified that she did not give him any reason. She told William Betancourt to prepare Miranda's check. Later in the day, when the latter returned for his check, Betancourt said to him, "Miranda, you are a friend of mine. If you want I'll make a letter showing that you are resigning . Miranda refused to sign a letter of resignation when he learned that he was not being paid for the previous day.40 31 She had not advised Torres to call her when be secured the license but said that she would contact him Presumably, if there was good faith present on December 2 in even part of the transaction , Mrs. Alvaro was laying off Torres for a few days. She would then call him to return to work, inquiring whether he had secured his license. If Torres did not have the license he presumably could have secured it readily in view of his experi- ence with Respondent's vehicles . With the license in hand and the job offered , the em- ployee might even, under these circumstances , have been willing to fill out a new employ- ment application if the Company insisted. 88 The possible claim that Torres improperly deviated from one of his routes to eat lunch and that this was a factor in Respondent's action is, in my opinion , quite lacking in substance . I shall discuss this matter in more detail in another connection 39 August 11-took wife to hospital. August 12-stayed with wife ; wife gave birth ; baby died ; advised Respondent . August 14-went to hospital to take home ill wife. October 3-father-in-law attacked mother-in -law at Miranda's home ; wife also injured ; took wife and mother -in-law to hospital . October 30-subpenaed before jury re above attack. November 18-subpenaed before court re above attack ; showed subpenas to Benjamin Betancourt. November 20 and 21-responded to draft notice to appear at Fort Brooke. December 6-described hereinafter. *0 Miranda was one of the employees referred to by Respondent in its unsworn March 30, 1962, letter to the Board which I have previously discussed Regarding Miranda the letter stated that he was terminated for "unjustified absences " . . . "without authoriza- tion or reasonable justification." The dates of the absences, described above, are then 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence before me is such, including the failure of any witness of Respondent to testify regarding Miranda, that I believe that this employee's absences were justi- fied. At least if the term, "reasonable justification," used by Respondent in its letter, means anything, Miranda's uncontroverted testimony establishes that it existed in his case. Miranda testified that he was never reprimanded or suspended for his absences in view of the reasons he always brought to the Company's attention. With respect to his last absence, it appears that Miranda on the night of Decem- ber 5, when he returned late at night from his work, told Delgado, who was in charge of his group, that he probably would not be in the next day because he felt ill. The next day Delgado was obviously short a man, Miranda, and since management was aware of the fact, if for no other reason than that Delgado would have to so advise management or ask for a replacement, it is reasonable to infer that Delgado advised the Company regarding Miranda's statement of the night before and probably of the lateness of their return. When Miranda reported on December 7, Respondent could of course question him about his absence and normally might have been expected to do so, including a request for any proof of illness such as a doctor's certificate. But this was not done. Instead, Mrs. Alvaro told Miranda that he was a good employee, responsible and honest, but she would have to let him go41 William Betancourt's actions were also indicative of no criticism of Miranda. Betancourt did not treat Miranda as an ir- responsible and habitually absent employee who simply failed to show up for work on numerous occasions for no reason. Instead, he offered to let Miranda's termina- tion appear as a voluntary resignation rather than a discharge, an obvious advantage in seeking other employment. The evidence leads me to conclude that Miranda was a satisfactory employee who was discharged without explanation. If there was a legitimate reason it could readily have been stated to the employee at the time or, at least, in the course of the hearing, Mrs. Alvaro or William Betancourt could have stated and explained Respondent's reasons. In view of Respondent's hostility toward the union activity and union adherents and various statements in the record that it was going to take care of the situation and the evidence of other discriminatory discharges by Respondent, I find that Miranda was discharged because he had signed a union card. This record as a whole indicates that Respondent was aware of the identity of union adherents either through an informer or otherwise and that Respondent sought to eliminate any continued or future threats it conceived existed by reason of having union ad- herents among its employees. The evidence in Miranda's case satisfies me that the General Counsel has sustained the burden of proof and that Miranda's discharge was violative of Section 8(a)(1) and (3) of the Act. Barreiro had worked for Respondent from December 1960 to December 16, 1961.42 He was a field employee and in November he was in a team composed of Juan Torres (supra), Miguel Burgos (infra), and himself. Barreiro had signed a union card during the campaign and solicited signatures of other employees. Mrs. Alvaro gave Barreiro his check on Saturday, December 16. She said he was being let go because he "was unhappy there" and was letting himself be led by other persons. The only explanation that Respondent offers for this discharge is apparently to be found in the prehearing March 20 letter to the Board. Barreiro, according to the letter, as well as Miguel Burgos and Juan Torres (who were in the same field team) deviated from the regular route in order to have lunch, in viola- tion of regulations. They were, according to the letter, reprimanded and were all right for a few days and then did the same thing. As a result, customers were unvisited and unserviced. When Barreiro's derelictions were reported, "he resisted authority . . abandoned the job . . . using improper language. On this occasion Barreiro admitted it was true that they used to go and have lunch at his house, and that they would later report the vehicle had broken down or that they'd had a flat tire." It may be noted that although Respondent's letter states that Torres, Barreiro, and Miguel Burgos were coparticipants in the route deviation, Torres was terminated on December 2, Barreiro on December 16, and Burgos on December 23. set forth. The letter also states that Mrs. Alvaro and William Betancourt had repri- manded him more than six times for the absences and Miranda 's reply was that he had personal matters to attend to. "The relationship and attitude of Miranda and other employees to their employer should be understood. Miranda's only response to the news of his termination from Mrs Alvaro was, "well, you are the boss. You are the one who gives the orders " 43 This employee's testimony is in the form of a sworn deposition given in response to questions submitted by the General Counsel and Respondent. Respondent offered no testi- mony regarding this employee ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 689 In his deposition, Barreiro states that in the course of being on the route he did on four occasions go to his parents' home for lunch. The last occasion was 3 or 4 months prior to his discharge. The reason for going to his parents' home with his teammates was that it was closer than to go back to town to a restaurant 43 There is no convincing evidence that Respondent had any particular regulations about eating lunch or the time, length, or location of the lunch period. As far as this record indicates, the field employees were not paid by the hour but received a weekly salary. They worked on the basis that they were to make a certain number of prescribed calls a day and this frequently entailed starting at 6 a.m. or earlier and returning late at night. Barreiro stated that on two occasions he had reported to the Company that his vehicle had broken down or had a flat tire. He said that the garage that per- formed the repairs certified to the facts and the report was brought to the Respondent. His testimony indicated that Respondent expected the employees to produce such certification of any breakdown or repairs.44 The witness said that he was never reprimanded for failure to visit customers nor was he ever advised of customer complaints about his service. Barreiro was at the 27 de Mayo Restaurant after his discharge when he and others had a conversation with Benjamin Betancourt. This conversation is described at a later point in this report. The evidence with respect to Barreiro's discharge, viewed in the context of the evidence in this case, persuades me that he was discharged because he was a union adherent and not because of deviation from his route. I find his discharge to have been in violation of Section 8(a)(1) and (3) of the Act. Miguel Burgos was one of the oldest of Respondent's employees in point of service.45 He had commenced his employment in May 1958 and was a field employee from that date to December 23, 1961, when he was discharged. He was in charge of his field team and his primary responsibility was to balance the account, i e., to ascertain how much of the money in the billiard table coin boxes was to be retained by the proprietor of the establishment and how much was to go to Respondent. He was also a mechanic and would assist the billiard table mechanic when the problem was beyond the latter's ability. He had never been reprimanded by the Company. He had re- ceived 10 pay increases and his pay was higher than that of other field employees. Burgos had not signed a union card although he had attended union meetings. Around the latter part of November 1961, Burgos was interviewed by Romero, a labor relations consultant retained by Respondent. In the course of the interview Romero asked Burgos, "What do you think is the reason why the employees are unhappy with the Company?" Burgos said that "it was because the boys are making low salaries" and suggested that a raise might alter the situation. On December 23, 1961, Burgos was called to Respondent's office. Mrs. Alvaro and William Betancourt were present. Mrs. Alvaro said, "That I was unhappy with the Company and that any employee that was unhappy with the Company couldn't work there and for that reason only I was being discharged and for no other reason " When Betancourt had him sign for his pay, Burgos said that he was not unhappy with the Company. Betancourt replied that since the discharge was Mrs. Alvaro's act he, Betancourt, could do nothing about it. Respondent offered no testimony regarding Burgos' discharge. The letter of March 30 states, as reasons for the discharge, that Burgos neglected servicing cus- tomers and deviated from his route to have lunch with his coworkers; that, when a reorganization of the route was made, it was decided that the employee who balanced the accounts was to be the driver "and Burgos did not have a license." So uncon- vincing was the foregoing, apparently even to its author, that the next sentence was, "He [Burgos] was told to return to the Business when he got a license and he never returned." Apparently alleged deviation from the route was said to be the cause of Barreiro's discharge and it was asserted to be one of the causes of Burgos' discharge, but Burgos was allegedly told to return to work when he secured a driver's license. One of the asserted causes of Torres' discharge was also the route deviation but his license was not enough, he was told to secure another license, a truckdriver's license. These men, as we have seen, were on the same field team. At the hearing, Burgos denied that anything, than what he had testified, was said to him on December 23, when he was discharged. Nothing was said about a driver's license, deviation from route, failure to service customers or anything else. He 43 The various routes took the men throughout the island, and, away from towns of some size, the number of restaurants was minimal or nonexistent "The testimony is as follows: "... the place that did the repairs had to certify the fact . . ." 11 Benjamin Betancourt, Garcia, and one other, had greater seniority. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointed out at the hearing that he had to submit regular written reports to Respondent on the accounts on his route and this would reveal any lack of servicing a particular customer.46 The witness did admit to having lunch at the home of Barreiro's parents with Barreiro and Torres but for the same reason. It was closer than to return to a restaurant in town. Burgos testified without contradiction that he had never expressed himself about the pay or working conditions of the Company or do or say anything to express unhappiness about working for the Respondent other than the occasion when he spoke to Romero as aforedescribed. I was impressed by Burgos as a credible witness and I am persuaded that he was discharged because he had told Romero that he believed that the employees were unhappy due to Respondent's low wages and that a raise might be appropriate This is what Mrs. Alvaro referred to when she told him that he was discharged because he was not happy working for the Company. Although Burgos had not signed a union card his aforementioned view stamped him, in Mrs. Alvaro's mind, as being in the same category as the union adherents who also were plainly dissatisfied with existing conditions and hoped to alter them through their union efforts. If Burgos himself had not signed a union card his views were nevertheless such that he could be considered as sympathetic with the union adherent's dissatisfaction with the status quo. His continuation as an employee was therefore not tolerated. I find that Burgos was terminated because he was believed to be a union sympathizer or a covert union adherent or a recent convert to the employee dissatisfaction as expressed through the employees' union efforts and that his discharge was therefore violative of Section 8(a) (1) and (3) of the Act. I might add that Respondent's "defense" with respect to Burgos' discharge is so unconvincing that it adds confirmation to conclusions drawn regarding other discriminations that I have found in this case. Jose Gonzalez was employed by Respondent about 3 years. He was a shop em- ployee and is the only nonfield employee involved as an alleged discriminatee. This man was a mature individual who was a skilled cabinetmaker. Aside from, at most, one supervisor in the shop, Gonzalez was the only shop employee possessing genuine craft skill. He had received several pay raises. He was well thought of by Mr. Alvaro who appears to have devoted more personal attention to the shop operation of Respondent than to the field. Gonzalez testified that he had been connected with unions for many years and had been president of the Union Ebanistas y Pintores This union background was known to the shop foreman. However, when Gonzalez was hired, Alvaro had told him that he did not want any unions there and secured from Gonzalez the assurance that while he was employed by Respondent he would pay no attention to anyone who approached him about unions. Notwithstanding the foregoing, Gonzalez frequently and openly spoke to his fellow shop employees about the benefits of a unionized shop and had showed them his various union membership cards 47 He also made his union statements in the presence of the shop foremen, Humberto Betancourt and Rosario. As a matter of fact, my personal tour of the shop convinces me that it would be virtually impossible for anyone to speak in that area without being overheard since it is a literally cheek by jowl situation. On one occasion, about 3 days before the election, an employee named Osorio was telling the other employees of an unfavor- able experience he had with another union and he spoke against unions. Gonzalez spoke up and said that, although he had no interest in bringing a union into Respond- ent's shop, he knew from experience that working conditions were better and the workers were better off in unionized industries. Gonzalez did not participate in the instant union's organizational drive among Respondent's employees One factor in Gonzalez' attitude was probably due to what Alvaro had told him when he was hired. The other factor was, as Gonzalez testified, that he "thought it was doubtful that they [Respondent's employees] would be able to organize a union there because they were boys [young men and inexperienced] . . . ... Gonzalez also said, in effect, that his doubts about the likelihood of success on the part of Respondent's employees to unionize the shop were confirmed when, shortly after the organizing started, the leaders had been discharged. Earlier in this report reference was made to the speech of Alvaro to the employees before the Board election.48 In the course of his speech, wherein, inter alia, he expressed his awareness of the union movement and his opposition thereto, Alvaro turned to Gonzalez, said that Gonzalez was experienced in such matters, and asked 40 His reply was: "But since my job was to put down what was owed, I couldn't put down anything not owed " 47 As far as appears, Gonzalez had no connection with the Union de la Industria de Goma y Plastico de Puerto Rico, Local 3023, AFL-CIO. 41 Gonzalez and some other witnesses say that Alvara spoke on two occasions ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 691 him "to talk to the boys." Gonzalez said "he had nothing to say, that they [the boys] knew what they had to do." It is apparent that Alvaro who, when he hired Gonzalez, had received assurance from the latter that he would have nothing to do with any union movement in the Respondent's shop, expected some support for his own expressed position that Respondent's shop was not appropriate foi a union.49 Instead, Gonzalez made a noncommittal or ambiguous reply which, if anything, by saying, in effect, that the employees knew which way to vote or on which side their bread was buttered, was detrimental to what Alvaro was seeking to accomplish. In the aforementioned speech or in a speech just before the election, Alvaro had also promised a Christmas bonus and Blue Cross if the Union were defeated. On the day of the election, after the results were announced (the Union lost), Gonzalez and other employees were in the shop discussing the election results. Gonzalez stated openly that it was true that the Union had lost but that if Alvaro did not make good on his promises (the bonus and Blue Cross) Gonzalez would personally direct the next union or the next union effort and he promised that that effort would succeed. On Friday, December 22, Gonzalez had been scheduled to go on vacation. How- ever, on Thursday, the 21st, Alvaro had a conversation with him about one of the woodworking machines, a planar. In the presence of the foreman, Alvaro told Gonzalez that although his, Gonzalez, vacation was supposed to start on Saturday, Gonzalez could come to the shop on Saturday and sharpen the blades of the planer. Gonzalez testified that a result of this conversation he assumed that he was going to work on Saturday. However, on Friday, apparently at the end of the day, Gon- zalez was going downstairs when he saw Alvaro and some of the employees who were having a drink. Alvaro invited Gonzalez to join them but the latter declined, saying he did not drink. Alvaro then insisted that Gonzalez come to the office and watch a motion picture that Respondent was showing. While Gonzalez was watch- ing the film, William Betancourt called him and took him upstairs. Gonzalez made inquiry to Betancourt about his check. Apparently, since Friday was December 23, and Sunday was Christmas, the employees were being paid before the holiday.50 Betancourt then told Gonzalez that he was being terminated because there was no work. The employee thereupon went to Alvaro and the latter said he was sorry that he had to terminate him but suggested that Gonzalez leave his address so that "when another opportunity arose he could call me [Gonzalez] " Alvaro added that if Gonzalez did not secure a job within the next 2 weeks he would be paid for that period. The following day, Saturday, Gonzalez returned but Betancourt told him that Alvaro had gone out. Gonzalez told Betancourt of Alvaro's offer of 2 weeks' pay but stated that in his opinion a month's pay was due and Gonzalez said he wanted his check that Saturday. Gonzalez waited around about 2 hours and then went upstairs in the Company's building to the living quarters of the Alvaros. He succeeded in seeing Alvaro that day and insisted that Alvaro tell him the reason for his discharge. Alvaro said that although he was convinced that he would not find an operator like Gonzalez in the shop he nevertheless had to let him go. Gonzalez still demanded to know the reason and Alvaro finally said that the boys were not "at ease" with Gonzalez around because Gonzalez was always talking "about rights" and Alvaro said he "wanted each one to solve his own problems." The only witness of Respondent who testified regarding Gonzalez was Mrs. Alvaro and all she said on the subject was that no one was hired in Gonzalez' place. In its brief, Respondent, without record citation, states that from Gonzalez' testimony it is clear that "business had progressively dropped off as witness the lesser number of employees in the shop shortly before his termination." As I read the testimony, Gonzalez said that when he first started to work "there were many employees." In July 1961, he said that in the shop there were seven or eight employees, including sanders and helpers. At the time of his termination he said that the same number was employed. This testimony was not controverted. The entire matter of the state of Respondent's business, as a defense, is com- pletely undeveloped in the record. There is no evidence to support a conclusion that Respondent's business was poor and none was offered by Respondent.5i "Alvaro was certainly not calling on Gonzalez to have him oppose Alvaro's position and to advocate voting for the Union. so Gonzalez' testimony indicates that for the shop employees the workweek customarily ended on a Wednesday. The field employees, from all indications, were on a different schedule. 61 About the only thing that can be said is that Respondent introduced an exhibit show- ing that total purchases increased from $30,480 in 1958 to $267,349 in 1960, with no 708-006-64--vol. 141-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The vavroll of Roberto Alvaro, Manufacturing, Inc., on which Jose Gonzalez, Julio Recci, Angel Cruz, Carmelo Gonzalez, Alex Barreiro, Jose Burgos, Porfino Miranda, Angel Delgado, Reinaldo Candelario, among others, were listed, shows 50 employees for the week of October 12 to 18, 1961, the period before the first discharge There were 46 on this payroll the week of February 1 to 7, 1962, the week of the last complaint-listed discharge; and 47 employees the week of May 24 to 30, 1962. The payroll of Roberto Alvaro, Inc., shows 12 persons, including Pena, Miguel Burgos, De La Vega, and DeJesus for the week of October 12 to 18, 1961, and 8 for the week of February 1 to 7, 1962, and the same number for the week of May 24 to 30, 1962. During the period from October 19, to February 7, 1961, there were 21 new hires shown on the Manufacturing payroll and 40 for the period October 19, 1961, to May 30, 1962. Mrs. Alvaro testified that all the new hires were office employees but she gave no specificity as to individuals shown on the payroll. I find it difficult to believe that Respondent's physical space could contain such a number of office employees whether alone or in addition to these already working. More- over, William Betancourt, finally admitted that 17 of the new hires worked in the field or in the shop. I find the evidence of discrimination against Jose Gonzalez to be convincing. Respondent hired him with the admonition that it wanted no union in its shop and secured Gonzalez' assent not to participate in any union organizing effort that might arise Because Gonzalez was the most skilled employee in the shop Respondent was well contented to have him as an employee. There was no criticism of his work and he received several wage increases . During the union campaign Gonzalez did not participate, but, at a crucial juncture thereof, just before the election, he refused to support the antiunion position enunciated by President Alvaro in his speech to the employees. Gonzalez had also openly challenged before other employees in the shop the views of an antiunion employee a few days before the election After the election Gonzalez made no secret of the fact and promised that if Alvaro did not give a bonus and Blue Cross as promised in the preelection speech, he, Gonzalez, would personally organize the shop and would do it successfully 52 In keeping with a policy of eliminating any vestigia of union strength or potential union strength in the shop and of eliminating concerted activity among the employees with respect to working conditions, and their status as employees, Respondent discharged Gonzalez 53 The lack of work reason that was first given to Gonzalez as the cause of his discharge is, in my opinion, without evidentiary support and is manifestly pretextuous. I find the discharge to be a violation of the rights guaranteed in Section 7 of the Act and a violation of Section 8(a)(1) and (3) of the Act. Francisco Luguera started working for Respondent in January 1960. He had received two raises in pay. He testified that he spoke in favor of the Union during the campaign and had attended one union meeting There is no evidence that he had signed a union card. During the campaign and prior to the election he stated that he heard Mrs. Alvaro say that whenever there was a group of three or four of us together she knew about the little yellow cards that were being signed. In the first few days of January 1962, prior to the time of his discharge, Luguera testified that he was in charge of a group of which Garcia was a member. While the team was out on the island, the time being between 6:15 and 6:30 p.m., Garcia wanted to return to town. Luguera insisted that other calls had to be made and he apparently prevailed. I infer that after this incident there was no particular friendliness between Garcia and Luguera. Regarding Garcia it appears that in January 1962, he was one of the two oldest employees of Respondent in point of service; he was described by Mrs. Alvaro at figures given for 1961. Also, in August 1961, there was a fire in a separate warehouse that Respondent either owned or rented. Billiard tables and pinball machines were stored in the warehouse and were destroyed. Respondent's accountant testified that he was uncertain whether there was insurance coverage. The cost of the aforementioned equipment that was lost was given as $85,376.50 and the sale or market value thereof was given as $389,738.25. In the absence of evidence to the contrary I would assume that a physical loss of billiard tables and pinball machines in Respondent's warehouse would necessitate increased production of these products and greater field service and maintenance for products already in the establishments of customers since such products probably could not be replaced immediately by new tables and pinball machines. E: It does not appear whether or not Alvaro fulfilled his promises at a subsequent time Es Alvaro, in effect, told Gonzalez eventually that he was discharged because he dis- turbed the tranquility of employees by engaging in the concerted activity of talking to employees about the rights of the employees as employees. Such rights of course pertain to wages, hours, and other conditions of employment ROBERTO ALVARO MEG., INC. $ ROBERTO ALVARO, INC. 693 the hearing as the head of the pinball machine mechanics; Respondent had a high regard for Garcia, a factor in which was the apparent fact that he had been an old army comrade of Mr. Alvaro; there is no evidence of any prounion activity on the part of Garcia nor is there evidence of anti-union activity. In any event, Garcia became the driver of the team thereafter and the evidence indicates that he was also the head of the team. On the morning of January 22, 1962, before starting out on the route, Garcia spoke to Mrs. De Irizarry, telling her he would have to leave earlier on his routes in the future. He said that the next day, when the group was scheduled to go to the interior of the island, he wanted to start at 5 a.m. Mrs. De Irizarry told Luguera that Garcia wanted to leave at 5 a.m. the next day. Luguera testified that he said this was fine with him but they had always left no earlier than 5:30 or 6 a.m. Although there is no testimony by any other witness on this matter, I am persuaded that Luguera's testimony understated the situation. I believe it more likely that when Mrs De Irizarry told Luguera of the new starting time he protested to her, citing past practice. His protest was in all likelihood fairly strong, arising, as it did, from a combination of oppostion to the earlier hour on its merits, as well as on the ground that it was a departure from what was the customary starting time; also, there was the element, I believe, of some lack of good feeling between the two men, accentuated insofar as Luguera was concerned, by the fact that Garcia was now in a position where he was calling the tune with respect to Luguera's hours. This was a reversal of their prior roles when they had clashed about quitting time, with Luguera being in the position at that time to make the determinative decision. On January 22, when the foregoing incident regarding the new starting time oc- curred, Luguera did not go out with his team of which Garcia was the driver. The team on that day had a route in the metropolitan area and not out in the island. Luguera states that the reason he did not go out on the 22d was because Mrs. De Irizarry told him that he had to stay around until the problem between himself and Garcia was ironed out. He testified that she gave him the same answer when he pro- posed being assigned to other work The circumstances and my appraisal of the witness indicate to me that, as stated above, Luguera had taken a fairly strong position about the new starting time; he either refused to go out with Garcia on the 22d until the matter was settled or the situation was such that Mrs. De Irizarry believed that it would be better that he not go with Garcia until higher authority dealt with the situation. Garcia and the other man on the erstwhile three-man team handled the metropolitan route alone on January 22 and the other routes on succeeding days. Luguera did not work between January 22 and February 3. He tried to see Mrs Alvaro on January 22, but she was not there. Mrs. De Irizarry told him to write out a message of what he wanted Mrs. Alvaro to know. Dated January 22, 1962, Luguera's message to Mrs. Alvaro stated: I believe that up to the present I have performed my work in this company to the best of my ability, and have always tried to improve, but I no longer wish to work as Garcia's coworker, because he is not in accord with me, he wants to leave extremely early, and I believe the route does not require it, at least all of them, and he wants to leave early. I would like the same but I do my job. (S) LUGUERA. According to Luguera he kept coming to the company premises to see Mrs. Alvaro and finally saw Mrs. Alvaro on Friday. She said she had to investigate the matter. When he saw her on February 3, 1962, she said his team was working all right without him and his services were no longer needed. An incident that occurred subsequent to Luguera's discharge is discussed in connection with Delgado's case, below, and I shall therefore defer stating my conclusionary findings at this point. Angel Delgado, who would be 19, 2 months after the instant hearing, commenced working for Respondent in July 1961. He worked in one of the field groups and had received one raise in pay after he started. He had not signed a union card or engaged in any union activity. In the preelection period Mrs. Alvaro asked Delgado how the men on his team were performing their work and she also asked him to keep his eye on two coworkers, Juan Torres and Carmelo Gonzalez. Delgado reported that they both did their work well. On Friday, February 2, Delgado returned to company premises about 8:30 p.m. after he and his coworkers had completed their routes. Additional time was then spent at the office getting their accounts and reports in proper order. Delgado states that he felt unwell but did not tell any of his fellow workers that he might not work the next day. He did not come to work the next day, February 3, nor did he report his illness to the Company. This was his first absence from work. How- 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, Delgado, on the same day, February 3, in the afternoon, did come to the company premises to secure his paycheck since February 3, was payday. En route to the office on the last-mentioned date, Delgado met Luguera. Delgado testified that Luguera was without a job, having been suspended a week or two before, and just happened to be around. They stopped and talked with Betancourt who was washing a car adjacent to Respondent's building. Delgado and Luguera testified that they saw Mrs. Alvaro looking out of her office at them. On direct examination Delgado testified that he went in to tell her why he was absent "and that I had come to get paid"; Mrs. Alvaro said to William Betancourt, the accountant, "Here comes that fresh one to get paid" and she also pointed to Luguera who was still outside by the car and said "They are two fresh ones that are forming a union here." She told Betancourt not to pay Delgado and he left Luguera, who was outside during the foregoing, testified that he saw Mrs. Alvaro point to him while she was talking to Delgado. On cross-examination, Delgado, in describing the above incident, said that Mrs. Alvaro was wrought up and told him "it was freshness on my part to be absent on Saturday morning and come to get my pay on Saturday afternoon." He said to her, "Madam, I didn't come in to argue with you. I come to get my pay which I need. If you don't want to pay me then I know where I have to go to get my pay" "Q. That was all the conversation? A. Yes, and then I' left." On redirect examina- tion the witness again stated that Mrs. Alvaro said that we were fresh because we were trying to form a union there. Later, on the same day, Delgado, Juan Torres, Luguera, and Barreiro were in the 27 de Mayo Restaurant. Benjamin Bentacourt came in and joined them in con- versation. He bought a round of beers and for some time the group discussed pay and conditions at Respondent's and the union efforts. Delgado told Betancourt that he had been terminated. Betancourt said he was not aware of it or did not under- stand it. He told the men that they should have come to him for help about their problems and said that Mrs. Alvaro had known who was involved in the Union since she had an informer at the meetings. I am of course aware that Respondent offered no testimony regarding the termina- tion of Luguera and Delgado. Upon my observation of the witness and on the record before me I do not credit Delgado's testimony that Mrs. Alvaro in February men- tioned the Union with reference to either himself or Luguera. I believe that she was incensed that this young man had what she considered to be the audacity to stay out from work on February 3, without notification and then come in later in the day to collect his check. Her reaction was spontaneous and its emotional nature is shown by the fact that she refused to give him his paycheck 54 She had never done this when discharging even the most active union employees (and Delgado was certainly not active). I believe that Delgado's testimony on cross-examination, described above, is what Mrs. Alvaro said on February 3, and that the statement revealed the reason for Delgado's discharge. I recommend dismissal of the Delgado allegation in the complaint With respect to Luguera, I am satisfied that his note of January 22, to Mrs Alvaro reveals the basic factor in his discharge. He chose not to work with Garcia for a number of reasons, perhaps the most important of which was the matter of starting time. I am inclined to believe that, as far as Respondent was concerned, Luguera could have worked with Garcia on January 22, and thereafter but he chose to make an issue of his disagreement with Garcia. He continued his efforts to have the Company uphold his position and finally Mrs. Alvaro, in effect, told him he was no longer needed. In my opinion, Garcia's assignment as driver had no connection with Luguera's unionism, nor did Garcia's idea about starting time. Further, any ill feeling between Garcia and Luguera was personal and was not related to union matters As a matter of fact, most of the lack of compatibility with Garcia appears to have emanated from and to have been initiated by Luguera. Under the circumstances, I see nothing sinister in Respondent's failure to overrule Garcia or to sustain or to accommodate Luguera's ideas regarding his employment. Mrs. Alvaro had certainly no reason to discourage a field team from leaving for work as early as possible. She had, in fact, on one oc- casion when she addressed the field employees, told them they should leave earlier and that this would enable them to return earlier. Finally, if any partiality is discernible in Respondent's failure to accede to Luguera's ideas as opposed to Garcia, it was, I am satisfied, attributable to Garcia's long period of service, his apparent efficiency as a pinball mechanic and the fact that he was an old army crony of Mr. Alvaro. The fact that he was not a union adherent was not in my opinion a factor 5' Delgado was obliged to notify the Labor Department regarding this aspect. ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 695 in the Luguera affair nor was Luguera's almost nonexistent union activity . I recom- mend dismissal of the Luguera allegation. In concluding this consideration of the facts in the record I refer to William Betancourt's testimony that Torres and Mojica had been temporary employees. Even if this were the fact the circumstances of their discharges and the reasons adduced in the record show that it was not the reason for the terminations. More- over, if these men were temporaries it is a designation or a distinction without a difference with respect to the issues in the case . I am satisfied that they were no more temporary than other employees. Betancourt said that they were first paid on a daily basis but then , instead of being paid daily, the Company held their pay until the end of the week and paid them on payday with the other employees. There is no evidence that these employees did not work as regularly as the others and Torres, in rebuttal, said that he never was a temporary and was always paid on a weekly basis. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations of Respondent have a close, intimate, and substantial relation to trade, traffic, and commerce and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The customary remedy is appropriate, namely, that Respondent offer to Candelario, Lugardo, De La Vega, Torres, Miranda, Barreiro , Miguel Burgos, and Jose Gonzalez, immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges , and make them whole for any loss of earnings they may have suffered by reason of the dis- crimination against them by payment to each of them of a sum of money equal to that which each normally would have earned as wages from the date of termination to the date of such offer of reinstatement , less his net earnings during said period, such sums to be computed in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289, 291-294. The backpay obligation shall include interest at the rate of 6 percent . Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. By discriminating with respect to the hire and tenure of employment of Candelario, Pena, Lugardo, De La Vega, Juan Tones, Miranda, Barreiro, Miguel Burgos, and Jose Gonzalez and thereby discouraging membership in a union or participation in concerted activities, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a) (1) and (3) of the Act. 2. By threats, interrogation, and procuring informers on union activity of em- ployees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( I) of the Act 55 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions and upon the entire record in the case, I recommend that Respondent , its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of Union de la Indus- tria de Goma y Plastico de Puerto Rico, Local 3023, AFL-CIO, or in any other labor organization by discriminatorily discharging its employees or by discriminating in any like or related manner in regard to their hire and tenure of employment. (b) Threatening employees with reprisal because of their union or concerted activity. (c) Interrogating employees with respect to their union or concerted activities in a manner proscribed by the Act. 66 1 find that the Interrogation In the context of all the circumstances exceeded the bounds of simple Inquiry 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Procuring or seeking to procure informers to report on the identity of em- ployees engaging in union or concerted activities. (e) In any like or related manner interfering with , restraining or coercing its employees in the exercise of their rights to self-organization , to form labor organiza- tions, to join or assist the above -named or any other labor organization , to bargain collectively through representatives of their own choosing, to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right is affected by the provisos of Section 8(a)(3) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Reynaldo Candelario, Eduardo Lugardo, Jose De La Veega, Juan Torres, Porfirio Miranda, Alex Barreiro, Miguel Burgos, and Jose Gonzalez, im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them, in the manner set forth in the section entitled, "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, relevant to the amount of backpay due and to the reinstatement and related rights provided under the terms of this Recommended Order. (c) Post at its office and shop in Santurce, Puerto Rico, copies of the notice at- tached marked "Appendix." 56 Copies of said notice to be furnished by the Regional Director for the Twenty-fourth Region shall, after being duly signed by a representa- tive of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous 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 any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this report what steps the Respondent has taken to comply herewith 67 511f this Recommended Order Is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice If the Board's Order Is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals , Enforcing an Order" for the words "A Decision and Order." 64 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for the Twenty-fourth Region, in writing within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Union de la Industria de Goma y Plastico de Puerto Rico, Local 3023, AFL-CIO, or in any other labor organization, by discriminatorily discharging any of our em- ployees or by discriminating in any like or related manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL offer to Reynaldo Candelario, Eduardo Lugardo, Jose De La Vega, Juan Torres, Porfirio Miranda, Alex Barreiro, Miguel Burgos, and Jose Gonzalez immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and we will make them whole for any loss of pay they may have suffered by reason of the dis- crimination against them. WE WILL NOT threaten reprisal against our employees for any union activity nor will we interrogate them concerning such activities or procure informers to report on such activities. WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of the right to self-organization , to form labor organiza- tions , to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage PERKINS MACHINE COMPANY 697 in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. ROBERTO ALVARO MANUFACTURING, INC., ROBERTO ALVARO, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fernandez- Juncos Station, Post Office Box 11007, Santurce, Puerto Rico, Telephone No. 723- 3200, if they have any question concerning this notice or compliance with its provisions. Perkins Machine Company and International Union of Electri- cal, Radio and Machine Workers, Local 223, AFL-CIO. Case No. 1-CA-3894. March 22, 1963 DECISION AND ORDER Upon charges filed on August 14, 1962, by International Union of Electrical, Radio and Machine Workers, Local 223, AFL-CIO, here- inafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the First Region, issued a complaint dated September 28, 1962, against Perkins Machine Company, Warren, Massachusetts, herein called the Respondent, alleg- ing that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act. Copies of the charge, the complaint, and the notice of hearing before a Trial Examiner were duly served upon the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondent solicited its employees to resign from the Union and to revoke their authorizations to the Union for deduction of dues, and thus interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8(a) (1) of the Act. On November 5, 1962, all parties to this proceeding executed a stipulation of the record, and requested that the proceeding be trans- ferred directly to the Board for findings of fact, conclusions of law, and -a decision and order. The request states that the parties have waived their rights to a hearing before a Trial Examiner and to the issuance of an Intermediate Report by a Trial Examiner. The parties also agreed that their stipulation and certain specified documents shall constitute the entire record in the case. 141 NLRB No. 65.