John F. Cuneo Co.

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John F. Cuneo Company and International Brotherhood of Book- binders, AFL-CIO. Case 13-CA-7128. August 26, 1966 DECISION AND ORDER On April 29, 1966, Trial Examiner Arthur E. Reyman issued his 'Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief, the Charging Party filed a reply brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent that they are consistent herewith. The issue presented by this case is whether the Respondent dis- charged Brady Aldridge for the reasons it asserts or in violation of the Act. There is no dispute that Aldridge, on Friday, July 30, 1965, while on his way to coffee, passed the work station of employee Maria Luna, and made a gesture with an open knife across his throat. There is likewise no dispute that Luna promptly reported the incident to the Respondent, and that Aldridge was discharged, assertedly for that reason, on the following Tuesday, August 3,1965. The General Counsel alleges that Aldridge was discharged because of his activities on behalf of the Charging Party, and also to bolster Respondent's position in the pending litigation of an unfair labor practice case.' He asserts that Respondent's alleged reason for dis- charging Aldridge was pretextual; that Aldridge was accorded dis- parate treatment to that of other employees engaged in altercations; 'John F. Cuneo Company, 152 NLRB 929 In that case we found , inter aha, and in agreement with the Trial Examiner, that one Lazaro de Lazaro was discriminatorily dis- charged. A question arose concerning the suitability for reinstatement of de Lazaro be- cause of certain threats he allegedly made to other employees . That question was remanded to the Trial Examiner, and his finding that Lazaro de Lazaro was entitled to backpay and reinstatement was affirmed by the Board . John F. Cuneo Company, 159 NLRB 35. The hearing in the reinstatement matter began on August 5, 1965 160 NLRB No. 71. JOHN F. CUNEO COMPANY 671 and that such disparate treatment affords proof of Respondent's unlawful motive. The Trial Examiner found that Aldridge was dis- charged in violation of the Act. We do not agree. Aldridge signed a union authorization card in 1962, obtained signed authorization cards from about 18 employees preceding a 1963 elec- tion in which the Union was unsuccessful, continued to solicit cards in 1965,2 and testified (as did other employees) in an unfair labor practice case against the Respondent in April or May 1964. The rec- ord is devoid of evidence indicating Respondent's knowledge of any such activity by Aldridge except for his testimony in early 1964. We view as significant the absence of evidence of more substantial union activity by Aldridge or of Respondent's knowledge thereof. In evaluating the incident which is the asserted cause for the dis- charge and the possible connection to the Lazard de Lazard case, it is of little moment whether Aldridge in fact threatened Luna as she described the incident or in the manner described by Aldridge him- self and credited by the Trial Examiner.3 It is undisputed that Luna promptly reported to Foreman Bjornson and to General Manager Gervase that a man in the shop (later identified as Aldridge) had "pulled" a knife and told her he was going to cut her neck off within a week. The testimony of Luna, Bjornson, and Gervase is in accord, and the Trial Examiner found, that Luna, in an agitated state, reported what she deemed a serious threat. Neither Gervase nor Bjornson gave any indication that he considered it any less. Gervase immediately called Respondent's labor consultant, Ingram, for advice, but was told that Ingram was busy and would be at the plant the fol- lowing Tuesday. Aldridge was discharged that Tuesday afternoon during the course of a meeting between him and Ingram and Gervase. We do not view the Respondent's delay until Tuesday, August 3, to discharge Aldridge as requiring the conclusion that little impor- tance was accorded the knife threat incident. It is as logical to infer that Respondent merely exercised reasonable caution in the discharge of Aldridge inasmuch as it was acutely aware of the possible con- sequences of a renistatement and backpay order because of the immi- nence of the de Lazaro case. To await the advice of a labor consultant in such circumstances does not appear to us to be a foolish or sus- picious course of conduct. Moreover, the value of Aldridge's discharge as an aid to bolstering the Respondent's defenses in the de Lazaro case appears slight, except insofar as it might provide an ex post a Contrary to the Trial Examiner, the record does not reflect that Aldrldge's union activity was most pronounced in 1965, but rather that , where specified , it occurred bete een 1962 and 1964. 3 Aldridge testified to the effect that, as he walked past cleaning his pipe with a knife, Luna looked up and smiled at him and he made a playful gesture with the knife across his throat. Luna, on the other hand, stated that when she looked up , Aldridge was star- ing at her ; that he drew a knife, passed it in front of his throat, and said "I will kill you in one more week." 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facto indication of consistent managerial reaction to physical threats. We find little but the chronological coincidence to connect the two cases. We turn then to the alleged disparate treatment as found by the Trial Examiner. Several instances of altercations involving Respond- ent's employees were developed on the record. They may be` synopsized as involving a threat by one boy to beat up another, if he did not do his share of the work, and fights between women employees. None of the incidents, compared by the Trial Examiner with the knife threat herein, involved a weapon, none involved a threat of such dimensions as Aldridge's (regardless of which version is believed), and none involved such a threat made by a man against a woman. In short, none of the incidents described is comparable to the threat which we find caused Aldridge's discharge. We do not believe that such inci- dents can support a finding of disparate treatment. We are thus convinced that the General Counsel has failed to prove that Aldridge was discharged because of his union activity and/or as an attempt to bolster Respondent's defenses in the de Lazaro case, and not because of the knife threat incident. We shall accordingly dismiss the complaint in its entirety. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This is a proceeding under Section 10 (b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. On January 31, 1966, the Regional Director for Region 13 entered an order sev- ering cases, granting a request to withdraw charges, and dismissing allegations of a consolidated complaint, and the rescheduling of hearing . On the basis thereof, and for the reasons stated therein, the General Counsel of the Board, on behalf of the Board, by the said Regional Director, pursuant to Section 10(b) of the Act and the Board Rules and Regulations, Series 8, as amended , Section 102.15, issued a second amended complaint.' ' In his several actions on January 31, 1966, the Regional Director stated It having been charged in Case No. 13-CA-7128 and in Case No 13-CA-7216 by In- ternational Brotherhood of Bookbinders , AFL-CIO ( herein called the Union), that John F. Cuneo Company ( herein called the Respondent) has engaged in, and is engag- ing in , certain unfair labor practices affecting commerce as set forth and defined in the National Labor Relations Act, as amended , 29 U.S C. Section 151 et seq ( herein called the Act), the General Counsel of the National Labor Relations Board, on be- half of the National Labor Relations Board ( herein called the Board), by the under- signed Regional Director for the Thirteenth Region, ordered these cases consolidated for hearing Now, upon request of the Charging Party to withdraw the charges filed in Case No. 13-CA-7216 herein . . . the undersigned Regional Director for the Thirteenth Region , having duly considered the matter and deeming it necessary in order to effectuate the purposes of the Act, and to avoid unnecessary costs or delay, HEREBY ORDERS that these cases be, and they hereby are, severed, and FURTHER ORDERS that the request of the Charging Party to withdraw the charges filed in Case No 13-CA-7216 herein be , and it hereby is granted and, FURTHER ORDERS that the allegations in the Consolidated Complaint against the Respondent which were based on the charges in Case No. 13-CA-7216 herein be, and they hereby are, dismissed. JOHN F. CUNEO COMPANY 673 The second amended complaint issued on January 31, 1966, correctly states that the original charge in Case 13-CA-7128 was filed on August 11, 1965. The issues in the instant matter are, therefore, raised by the allegations of alleged unfair labor practices as set forth in the second amended complaint and the denials thereto con- tained in the answer of the Respondent. Pursuant to notice, this case came on to be heard before Trial Examiner Arthur E. Reyman at Chicago, Illinois, on March 14 and was closed on the following day. At the hearing, each party was represented by counsel or other representatives, and was afforded full opportunity to call, examine, and cross-examine witnesses and pre- sent evidence relevant to the issues of the case, to argue orally upon the record before the close of the hearing, to file proposed findings of fact and conclusions of law, or both, and to file briefs. Briefs have been submitted on behalf of the General Counsel, the Charging Party, and the Respondent, and carefully considered. Upon the whole record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, John F. Cuneo Company, is now, and at all times material herein, has been a corporation organized and existing under laws of the State of Illinois, and operates a bookbinding factory and place of business at Melrose Park, Illinois. During the calendar year immediately preceding the issuance of the second amended complaint the Respondent, in the course and conduct of its business oper- ation, sold and shipped goods valued in excess of $100,000 from its Melrose Park, Illinois, plant directly to States in the United States other than the State of Illinois. During such time, Respondent, in the course and conduct of its business operations, received goods and materials valued in excess of $100,000, which goods and mate- rials were shipped directly to its plant in Melrose Park, Illinois, from States other than the State of Illinois. The Respondent is, and at all times material herein has been, engaged in com- merce and its operations affect and have affected commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Bookbinders , AFL-CIO, is, and at all times mate- rial herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The second amended complaint, hereinafter called the complaint, sets forth that the Respondent on August 3, 1965, terminated the employment of Brady Aldridge "and has failed and refused, and continues to fail and refuse, to reinstate Brady Aldridge because he joined or assisted the Union or engaged in other union activity for the purpose of collective bargaining or mutual aid or protection and also dis- charged him for the additional purpose of supporting its alleged defense against the reinstatement of Lazaro de Lazaro." By such action, the complaint asserts, the Respondent engaged in and is engaging in unfair labor practices within the mean- ing of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. In its answer to the complaint, the Respondent admits that it did discharge and does refuse to reinstate Brady Aldridge but denies that the discharge and refusal to rehire was or is motivated by any activity Aldridge engaged in by joining, assisting, or supporting the Union, and further denies the discharge and refusal to rehire Aldridge has anything to do with Respondent's defense against the reinstatement of Lazaro de Lazaro. Affirmatively, the Respondent's answer asserts that it terminated and refuses to rehire Aldridge because he drew and opened a knife with which he threatened to cut the throat of a young woman employee during working hours in Respondent's plant, that when questioned Aldridge admitted threatening to kill the young woman but said he was joking; and admits "Lazaro de Lazaro did threaten and intimidate Respondent's employees with a knife and other lethal weapons." The theory of the General Counsel's case as stated by his counsel at the hearing, joined in by counsel for the Union, is two-fold: Aldridge was discharged because he was a strong supporter and advocate of the Union, that although he was discharged for fighting, other employees who caused fights were not discharged showing dis- parate treatment of employees who were adherents of the Union and those who 25 7-5 51-6 7-vol. 160-44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were not; and further that the Respondent discharged Aldridge to establish a con- sistency for its defense against the reinstatement of Lazaro de Lazaro. On December 23, 1964, Trial Examiner Horace A. Ruckel issued his decision in Cases 13-CA-6002 and 13-CA-6174, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and finding, inter alia, that the Respondent had discriminatorily discharged Lazaro de Lazaro. On May 30, 1965, the Board issued its Decision and Order upholding the finding of the Trial Exam- iner that the discharge of Lazaro was violative of the Act but remanding the pro- ceeding to the Trial Examiner to receive evidence, previously rejected by him, as to the suitability of Lazaro for reinstatement.2 Accordingly, pursuant to the order of the Board, Trial Examiner Ruckel on August 5 and 6, 1965, conducted a further hearing at which he heard the testimony of four witnesses as to Lazaro's suitability for reinstatement. In his Supplemental Decision (TXD-120-66), issued March 3, 1966, Trial Examiner Ruckel renewed his recommendation that Lazaro be rein- stated with backpay. The Discharge of Brady Aldridge The answer to the complaint admits that the Respondent terminated the employ- ment of Brady Aldridge on August 3, 1965, and that Sam Gervase is general man- ager, Rudolph Padera and Arthur Bjornson are foremen and each one an agent at the time acting on behalf of the Respondent, and supervisors within the meaning of Section 2(11) of the Act.3 Aldridge was employed in the year 1949 as a laborer at an hourly rate of pay at $1.05. At the time of his discharge he was paid $2.25 an hour. He testified that some time during the year 1962 he signed a card for member- ship into the Union at a union meeting and at that time solicited signatures of other employees for membership in the Union. Subsequently an election was conducted in September 1963, the result of that election showing that the Union lost in its effort to represent the employees. The authorization or membership cards obtained by Aldridge at this time were given by him to John Yancey, a staff organizer for AFL-CIO. Thereafter, Aldridge continued his union activities, soliciting other authorization cards, and appeared as a witness in the case involving Lazaro de Lazaro (Cases 13-CA-6002 and 13-CA-6174, mentioned above). The solicitation of employees for signatures to union cards continued during the year 1965 up until the time of his discharge. He said that at one time in early 1965 he was asked by Foreman Bjornson what he thought about the Union to which he gave no reply. On Tuesday, August 3,4 Aldridge, having missed his regular ride that morning reported at 9 o'clock instead of his regular time of 8 a.m., to Foreman Padera, who relieved another worker on a machine, put Aldridge in his place, and sent the other employee to another machine. He worked until about 3:15 p.m. when he was instructed by Padera to accompany Foreman Bjornson to General Manager Ger- vase's office. Bjornson took him to Gervase's office. Gervase and a company labor consultant, Ingram, being there when he and Bjornson arrived. According to Ald- ridge's testimony, Ingram asked him if he remembered recalling a fight with some of the employees and whether or not he drew a knife on some employees. Aldridge said "I couldn't think at the time and I thought-it came to me afterwards and I said no, I didn't draw any knife on no employee"; testified further that Ingram told him to just sit quiet and answer questions and then asked him "about how close you say you were before you drawed the knife on Luna?"; he went on to explain to Ingram that he did not draw a knife on Luna, that he was walking down the aisle during his coffee break and further told Ingram: So, as a playing motion, as we do, we were doing always, we made motions- I did like that (indicating), made a motion and kept walking. In the mean time, Luna called me back. So, I said to Luna "What is wrong with you this morning? Are you mad at me or something." She said "No, I am not mad at s In its Decision and Order the Board wrote in part : Respondent in its exceptions renewed its objection to these rulings by the Trial Examiner and contends that it should have been given the opportunity to proye,,its contention that Lazaro has disqualified himself for reinstatement and backpay. Respondent claims that it discovered the evidence of Lazaro's unsuitability while in- vestigating the possibility of reinstating him prior to the issuance of the complaint 3 The Respondent employs some 300 persons at its Melrose Park factory 4 This date and following dates refer to the year 1965 unless otherwise specifically noted. JOHN F. CUNEO COMPANY 675 you." She said, "But if you make a motion like that at me if someone see you do that and I go out of the plant and something happens to me, maybe they will say you had something to do with it." He then asked Ingram what they were trying to do, to which Ingram replied, Aldridge said, "just sit there quiet and answer the questions, you are already in enough trouble as it is." Further, according to Aldridge, he asked Gervase what they were trying to do, fire him, to which Gervase replied "you are fired." He said that he then started to leave, was told by Gervase to sit down, did sit down, thought for a moment and opened the door and "left both of them sitting there." He said that he asked whether they had anything more to say to him, went out of the office, and Bjornson followed, patted him on the back and said "don't go back down there starting any trouble with the girls." To which he replied that he had been there "this long and I never started any trouble with anyone." While in Ger- vase's office he said, Gervase called his secretary and instructed her to have his check made out for him until 4:30 p.m. that day; that he went to the locker room and while changing his clothes Bjornson "came right down behind me with my check" and that before he had finished changing his clothes he was handed his paycheck. The Luna referred to and about whom Aldridge was questioned conerning a threat was Marie Del Rosaria Luna, a book stitcher. The questioning of Aldridge by Ingram in the presence of Gervase and Bjornson occurred, as noted, on the afternoon of Tuesday, August 3. The accusation going to his alleged threat against Luna with a knife occurred on the preceding Friday, July 30. Aldridge's version of what occurred on that Friday is summarized as follows: He was walking down the aisle, cleaning his pipe with a small pocket knife on his way to his coffee break, about 10 o'clock in the morning, when Luna, from behind her machine, looked at him and smiled after which he, ". . just playing did like this (indicating) kept scraping my pipe and kept walking for my coffee." 8 At that point, he said Luna called him back, told him "don't do that to me," and cautioned him as quoted above. He said that then Edna Enriquez, a helper on Luna's machine, who was standing nearby, came up to him with Luna and told him he had better not do that to her, that she was going to tell Art [Bjornson] on you and also was going to tell Sam [Gervase] on you; to which he replied that he did not care-he had not done anything to her. About noon, he said, on that same day Luna told him she had "told Art and I told Sam on you." To which he replied he had done nothing to her and he was sorry. According to Aldridge, he had never had any argument or any trouble with Luna before that time but it was his opinion that she disliked him because of his activities in favor of the Union, she being opposed to union organization. General Manager Gervase testified that about 10:30 on Friday morning, July 30, he received a telephone call from Foreman Bjornson informing him that a girl had been threatened with a knife and told she would be killed within a week, where- upon he talked to Bjornson and called Rosaria Luna over to Bjornson's office in the plant, when she repeated to Gervase that "a man came up to her at work in the plant and had an open knife and drew it across his throat and said, 'in one week, I'm going to kill you."' Gervase said he instructed her to go out in to the plant and find the person she was talking about, that she came back in about 5 minutes and told him the man's name was Brady and he worked in the Singer Sewing Department. Gervase instructed Luna to return to her machine and not to worry, that he would take care of it, returned to his office, and telephoned Ingram. Ingram told him he was busy that day but would be out on the following Tuesday. Nothing was said to Aldridge about the affair either by Gervase or Bjornson on that day or on the following Monday, but on Tuesday afternoon, August 3, Aldridge was called to Gervase's office where, in the presence of Gervase and Bjornson, Ingram began questioning Brady as to where he was about 10 o'clock on the morning of July 30. Gervase said that Aldridge replied several times that he was walking down the aisles and then after Ingram had questioned him as to whether he had stopped in front of Luna's machine, Aldridge said that he had and at first denied having a knife in his hand, but upon further questioning by Gervase said "Yes, I did" in answer to the question "Brady, did you pull this knife out and draw it across your throat and say to Luna you are going to cut her throat G The record herein shows the word "indicating" amounts to a gesture-Aldridge drew his hand from about his left ear down across his larynx to his right shoulder. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and kill her within one week?" He said that he told Aldridge that he should know better than that, "no one pulls a knife out in my plant against another employee," that Aldridge asked him what he wanted to do, "Do you want to fire me? Go ahead and fire me" whereupon, Gervase said, he told Brady "Well, you are fired." Gervase said that he then called a guard and instructed him to stay with Brady until he got out of the plant because, notwithstanding the fact that Brady had worked on Friday and Monday, he thought, because Brady was then fired, he might go back to the machine where Luna was and "try to do something to her." Foreman Bjornson testified that on that particular Friday morning, Luna came to his door and told him that a man in the shop had pulled a knife and told her he was going to cut her neck off within a week; that she did not know the man's name; that he told her to go to the washroom and rest a while; that he went to the telephone and called Gervase, then returned to his office, then went over to the sewing machine where Luna was working and promised her that everything would be taken care of-"That Mr. Gervase would take care of everything." Bjornson said Gervase later came into his office and received his report, called Luna into Bjornson's office and requested her to go out and discover the identity of the person she said had threatened her. Regarding the meeting in Gervase's office on the following Tuesday, August 3, Bjornson's testimony generally corroborated that of Aldridge and Gervase. He added: Oh Mr. Brady says when Mr. Gervase says, "you don't fool with a knife," Mr. Brady made the crack he was cleaning his pipe, that's right. That's what he said he was doing down on the floor cleaning his pipe, and he had his pipe in his hand in the office and was showing what he was doing.6 Turning now to the testimony of Marie Del Rosaria Luna, she said that she saw Aldridge on Friday morning, July 30, at the time of the usual coffee break about 10 a.m. and in answer to a question as to the conversation which occurred between them at that time, she testified: A. Yes. I was sewing on my machine. When I lifted my head, I saw in front of me Mr. Brady Aldridge. He was looking at me, staring me fixedly, and also was looking at him. Then he took out a knife, he passed it in front of his throat, and he told me, "I will kill you in one more week." Q. Was the knife opened? A. Yes. Then I answered to him-Oh, he told me, "You know why." He told me, "You know why." Q. Then what happened? A. Then we went away walking, and I answered to him, "You crazy stupid." Q. Then what happened? A. Then I continued trying to work. Then my co-worker girl came, and she asked me what was the matter with me. Q. Who was the person that asked you what- A. My cutter. Q.-What was her name? A. Martha Marquez. She says she told Marquez that she had just been threatened, that she then went to buy her coffee and: - I received my coffee. When I turned around, I saw Brady in front of me. I told him, "I don't like that you threatened me. That is not correct, proper. You must be careful, because if anything happen to me, you are going to be responsible." Then that moment I heard the truck was approaching, and I turned around, I put the coffee on the table, then I took one of the sticks these sticks with which you move the coffee, you stir the coffee. Q. Then what happened? A. Then I said to Joe, who was coming with the truck, told Joe, if some- body come to you and threaten you with a knife, somebody would pass this knife in front of his throat, would you think that as a, proper -thing to do? d After hearing Aldridge and Bjornson describe the knife, and after the physical display of a thin pen knife I carry on my key chain, I conclude ' the knife Aldridge claimed he used to clean his pipe was not more than about 2 inches long with a 11/. inch blade.' JOHN F. CUNEO COMPANY 677 She said to a man called Joe who had asked her who had made the threat, that she pointed to Brady, that Joe asked Aldridge "You did that to hers" to which Aldridge replied in the affirmative and that Joe then told him, she said: "Don't do that because this is bad. She can tell the bosses." At that moment I picked up my coffee, then that's when Brady said, "I don't care. I am not scared of anybody. She can tell Arturo or Sam-can tell Arturo or Sam if she wants." She then went on to relate that she had reported the matter to Bjornson who advised her to go to the restroom for a time, that she was nervous, that she asked one Edna Enriquez to tell Aldridge not to threaten her, and that Edna then told her in Spanish that Aldridge said that he was fooling-was joking, that she told Edna to tell him that she never fooled or joked with anybody and did not like him to pass his knife over the throat or to threaten her; that as she was returning to her machine, Aldridge told her that he would not do that anymore but that she did not answer him because she was afraid that he might do the same thing "all over again." She later was interviewed by Gervase as to her version of the occurrence. On cross-examination, Luna was reminded that she had said that Brady had told her "you know why" and in answer to the question, Did you know why? she replied: But in 8 days period of time after that I was supposed to come here to testify in connection with the case of Lazaro de Lazaro. This is the only thing that is going to happen in 8 days after. Eight days after that I was summoned to come here. Martha Marquez, called as a witness for the Respondent, testified in substance that Luna had told her what Luna testified she had said to Marquez, that she heard Luna tell Aldridge "you crazy stupid" and that there were several people congre- gated at the coffee machine or urn where a person named Henry (otherwise called Harry) sold coffee to the employees. It is not clear from the testimony of either Luna or Marquez how many people were congregated around the coffee area; whether there was one man named Joe or two men named Joe or whether three or five or more people were congregated there when Luna said she told Aldridge he should not threaten her. Aldridge had been employed by the Company for some 15 years. Luna had been employed for some 9 years. Insofar as the- record shows, the alleged knife gesture made by Aldridge was the first altercation which had ever occurred between the two, even though Aldridge was known to be strongly prounion and Luna was opposed to the Union. Edna Enriquez was working near Luna on Friday, July 30. Apparently to corrob- orate the testimony of Luna, she could only say, in connection with this incident, that Luna had told her that "Brady said 5 more days to go or something like it." Joseph Harwood, employed as a stockman, also called as a witness for the Respond- ent, added nothing when he testified that Luna was talking to Brady in the coffee area when she turned around, came back to the table, saw him, walked over to him and asked him "What would you do if somebody reached their hand in their pocket and pulled out a knife and point at your throat like that?"; nor was any enlightenment shed on the case when he testified that he told Brady Aldridge that if Luna told the foreman "then you'll be in a lot of trouble." Another witness called by the Respondent, Joe Gariffo, was present in the coffee area on Friday morning, heard Luna charge' Aldridge with pulling a knife on her which be says Aldridge denied, that he heard Luna talking to Joe Harwood, that he saw Harwood get off his truck and approach Aldridge and heard him say that he should have more sense than to be playing around with a knife. As to the number of people present who heard Luna's accusations against Brady at the coffee table Gariffo was the most explicit. He said: There was Harry there, Richey was there, and the school teacher [Luna], and there's several other people who come and go at the table. There's women that come over from the sewing department, Puerto Ricans. They get three or four cups of coffee. He serves on an average of 20 to 30 people in the morning. In any event, it seems clear that Luna made her accusation against Aldridge to him in the presence of quite a few of the employees who had taken advantage of the coffee break. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aldridge had been employed by the Company for a number of years longer than Luna. He testified that he had known her since the time she started working for the Company, that she knew him and called him by his first name, and that they had had conversations at various times before the occurrence of July'30. He had been disciplined several years before for insubordination, but other than that, it does not appear from the record that Aldridge ever was reprimanded for poor work or had ever been engaged in any other altercation with any other employee. Further, these facts stand out clearly: Aldridge had been active in the cause of union organization since the year 1962 and was particularly active in 1965 during the weeks just prior to his discharge ; that although Luna expressed fear that he might attack her, nevertheless she and Aldridge both worked on through Friday, July 30 and Monday, August 2, and up through the afternoon of August 3, when Aldridge was discharged; that Labor Consultant Ingram had to be consulted and was required' to question Aldridge before his discharge even though General Manager Gervase indicated that at other times he had taken matters directly in hand and had dis- charged employees who had been engaged in altercations. Aldridge's version of the episode on July 30 was completely discounted and he was summarily discharged on the basis of a story told by Luna to Bjornson and individual employees and a group of employees, I shall find that the discharge of Aldridge was pretextual, andi that he was discriminated against and discharged by reason of his activities for and his membership in the Union. On a comparison of the demeanor of each as a witness, I consider Aldridge to be the more reliable and credit his testimony over that of Luna. On the second aspect of the case as presented by the General Counsel involving 8(a)(1) violations , evidence was offered and received by me to show the disparate treatment accorded Aldridge in connection with his difficulty involving Luna, as opposed to other incidents which occurred within the plant or factory of the Respondent. General Manager Gervase, it has been noted, testified that Aldridge was dis- charged after Gervase, Ingram, and Bjornson had heard his version of the occur- rence of Friday, July 30, after hearing the complaint of Luna. In so describing the discharge of Aldridge, Gervase said that one of the reasons for his discharge was that "you can never tell what would happen, [I was] just playing it safe." At this point, he was asked by counsel for the General Counsel whether fighting at the plant caused a problem for management, to which he replied that he thought fighting "causes any problem for any plant." Further in answer to questions put to him, he remembered that two employees on the night shift struck another employee over the head with a bar and he had fired those two employees. Gervase said that he had fired one of his employees some 7 years ago because, although with the Company for 37 years, this man had beaten another employee, and that employee Esther Brown had been involved in, at least, two fights but "not in the plant." In answer to another question he said that Esther Brown might have been involved in a fight with one Irene Madina outside of the plant. Disavowing any intention to "police my people if they are going to talk among themselves," he said that Madina came to him and reported to him the attack upon her and brought her daughter with her to tell Esther Brown to keep away from her because she was making trouble for her. As to this episode , he remembered that the police broke up the fight, took Esther to jail, but did not know or remember whether he had talked to Madina after the fight. He recalled that Oga Saabedra was involved in a fight with Esther Brown "outside the plant" and he told Esther Brown at that time that if they were involved in another fight he would fire them. He told them, he said, that "if you ever fight inside the plant , one of you are going to get fired." This fight, he said, occurred "outside the plant." Gervase explained that it made. a difference whether fights occurred within the plant or outside the plant- "we can't police outside the plant. What happens out in the parking lot or on the streets we cannot police that." According to the testimony of Gervase, he understood the fight between Brown and Madina started at a wedding Saturday night and they carried it on outside of the plant later. He remarked "Am I to police them? I can't tell these people what to do." On another occasion, Gervase said that a boy by the name of Ciangi, who worked with Maduta's boy, complained that the latter was not doing his share of JOHN F. CUNEO COMPANY 679 of the work, that Ciangi told Madina's boy that "I will beat the hell out of you if you don't do your work," that he talked to Ciangi about the affair but did not call him into the office? The matter of the threats made by Lazaro has been fully covered in the Decision and Order of the Board and the Supplemental Decision of the Trial Examiner in Cases 13-CA-6002,and 13-CA-6174. I have noticed the record and proceedings in those cases and it appears on the remand of the case to Trial Examiner Ruckel, that the first essential question presented to Luna, the first witness on the remand, had to do with Brady Aldridge and the expressed threat allegedly made by him, rather than anything having to do with the so-called Lazaro case. [General Counsel Exhibit 2, Cases 13-CA-6002 and 13-CA-6174.] Charles Witcher, a Melrose Park police officer, testified that at approximately 12:14 p.m. on September 20 one Miguel Ariaz, who represented himself as an agent for the AFL-CIO, telephoned Witcher's station and asked if the police could have a squad stand by at the John F. Cuneo Company plant between 4 and 4:30 that day because he had received word that an Esther Brown and a group of women were supposed to beat up an Irene Madina when Madina came out of work that afternoon. Witcher went on to testify that at approximately 4 p.m. he and his part- ner for the evening, Officer Malpier, were in position in the parking lot of the Company, 25 to 30 yards from the exit of the plant; that as the employees started coming out either singly or in groups, he and his partner noticed the groups started gathering at the exit, whereup they "jumped out of the car and ran over there, and I got in a position to see only one employee struck." He observed Esther Brown strike Madina after which the officers separated the two, and attempted to disperse the group gathered around them. As the two officers were walking away with Brown and Madina, Brown, he said, "reached around my partner and struck Miss Madina in the stomach"; he said that Brown "kept on moving around a little bit, so we picked her up off the ground, carried her to the squad car, and sat her down in the back seat along with the other parties involved in the altercation .. . and proceeded to drive to the station." He said that Madina and her daughter, who had accompanied them to the station, told the officers that Brown had threatened to do some kind of harm to Madina in retaliation for name calling; that his under- standing of the dispute between them was that Madina had been calling Brown quite a few names while at work and that Madina had threatened to do something to her "stab her, or something, if she went about hitting her." His understanding was that one of them was prounion and the other was opposed to union organiza- tion. No further official action was taken by the police department, he said, because after talking the matter over it was decided that no complaint would be signed until "they got some legal advice." Oga Saabedra, employed by the Company until November 1963, testified that she was engaged in an altercation with Esther Brown on August 16, 1963, within the factory. She testified that before this, Brown had insulted her, referring to the Union and talking about the Union. She said that on this particular day, when she was leaving work or was about to leave and was standing outside near the exit door, Brown came and attempted to scratch her face, that she struck back at Brown, that Brown attempted to push her inside the factory through the door and attempted to continue to hit her. She said that on the following day she was asked by General Manager Gervase, in his office, about the occurrence, that she explained what had happened, and that at that time "he asked me if I was in favor or wanted the Union and I told him yes." No disciplinary action was taken by Gervase against either one of the two participants in that fight except, according to Oga, he told her that if they fought again he would throw both of them out. Alphonse Saabedra, employed by the Respondent for about 9 years, testified that Esther Brown had engaged in a fight with his wife, Oga, inside the plant during the time his wife was employed 7 These incidents all occurred before the discharge of Aldridge Gervase conceded that he had made an appointment for Ingram to call at' the plant on Tuesday, August 3, to discuss the Lazaro case set for hearing for the following Thursday, but denied that the firing of Aldridge and the resistance to the reinstatement of Lazaro were in any way con- nected with the pending Lazaro case. In answer to a question put by me at the hearing, the representative of the Respondent agreed that there was no employee representative at the plant ; that management handles grievances, complaints against employees, or any- thing else involving disputes on an individual basis with the individual employee involved:. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there; he said that this fight occurred in 1963, about 4:30 p.m.; that Brown was at the door waiting for his wife and when his wife arrived, Brown started to fight with her. On the basis of other testimony in the record, I permitted the testimony of Saabedra to the effect that the fight was concerned with the fact that his wife was prounion and Brown was against the Union, to stand. What he actually saw he described in part, as follows: So, what I do, I run inside the factory and I see the last moments of the fight . . . what I see, Esther Brown was trying to hit my wife and my wife, she, was defending herself. Then when the police-the police in one corner of that place-not to far from there, just a few feet away, the police saw the fight and the police grabbed Esther Brown-I mean the police hold Esther Brown, I think, because the police saw Esther Brown so aggressive, this is why the police grabbed her. Saabedra also described his observation of the fight between Esther Brown and Madina in 1963, his testimony being substantially the same as that of the other wit- nesses, including the police, who testified concerning it. Juraj Edward Bjankini, in August 1963, was a part-time employee of Pinkerton Security Service, stationed at the Respondent's Melrose Park plant, and working a 4 p.m. to 12 midnight shift. He described the fight between Esther Brown and Oga Saabedra. He described who started the fight at the exit door within the factory, confirmed the fact that Oga's husband came in the door to help protect his wife and that: I stepped in between Esther as she was coming out and I held her, bodily held her, and Oga-now, this time it's kind of confusing and I've got Esther held back and she is trying to get out and Oga-I don't know if she stepped in- I do remember her saying, "I'm not afraid to fight you." At that very same instance I saw her husband pull up, and he said then-I said, "get your wife out of here. I can't hold Esther because Esther's a strong woman," I found out . . . He then took her by the elbow into the car, and they drove off, and the last I heard said, "I'm not afraid to fight you," and Esther was quite over wrought. "She can't talk about me like that," and I says, "It's not worth it for fighting as far as I can see." They could both be in jeopardy of losing their job.8 Concluding Findings I was not impressed with the accuracy of the testimony of General Manager Gervase, who, in relating the incident in his office on August 3, at the time Ald- ridge was fired, first gave the impression that Aldridge had conceded first that he had taken a knife from his clothing but then later on, under cross-examination, Gervase said that after Luna told him that Aldridge had threatened her with a knife, that Ingram was the first one to accuse Aldridge; and further that although Aldridge was fired on August 3 and the incident which was considered serious enough to have him fired took place on July 30, nevertheless neither Gervase nor his labor consultant considered the matter serious enough to take immediate action. Nor do I admire the uncontradicted fact that Aldridge was taken to Gervase's office, was told to sit down, and was immediately questioned by Ingram without having been first advised of the story that Luna previously had related to Gervase and Bjornson. I have commented above that I believe the testimony of Aldridge over that of Luna. In elaboration, it should be noted that, while on July 30 Luna made plain in the presence of a number of employees her complaint that she had been threat- ened by Aldridge, nevertheless, on August 3 at the afternoon coffee break, Luna asked Aldridge to buy coffee for her. It should be noted, too, that although the Respondent interrogated several witnesses regarding the coffee break on Friday 8 Neither Esther Brown nor 111adina testified at the hearing It also should be noted that Aldridge testified that the knife mentioned as being displayed by him to Luna he said had been lost. Further note should be made of the contention of the Respondent that it made no effort to patrol the parking lot or to interfere with any incidents which might have occurred between the employees at any time on the parking lot and that while Gervase testified the altercation between Saabedra and Brown took place on the parking lot, it clearly appears from the testimony of credible witnesses that it occurred within the plant. I have also noted the various instances of altercations between employees in the findings of fact in Cases 13-CA-6002 and 13-CA-6174. JOHN F. CUNEO COMPANY 681 afternoon, July 30, none of these witnesses testified regarding the coffee break on the afternoon of August 3 or otherwise contradicted the testimony of Josephina Alvarado, who said: Mrs. Luna said to Aldridge to pay for the coffee. And then he answered that she should pay it, the coffee. That was all. I conclude that it was only in Luna's imagination that there was any thought that Aldridge had threatened her in order to prevent her from testifying against Lazaro at the hearing which was scheduled, to be reopened on August 5. Beyond this, it is startling to find that Gervase suddenly became concerned about the safety of Luna to the extent of having a plant guard escort him out of the plant after Aldridge had been fired, although Aldridge had worked on July 30 and was employed by the Company through the afternoon of August 3 without being warned or spoken to or reprimanded in any way. - I conclude, and find, as contended by counsel for the General Counsel, that Luna was the willing tool in a preconceived scheme to get rid of an active union sup- porter and leader and at the same time bolster the defense of the Respondent against the reinstatement of Lazaro. It is not denied that labor consultant Ingram was in the office of Gervase on August 3 for the primary purpose of preparing the defense of the Company in the Lazaro-Jackson case scheduled for August 5. I also find that the General Counsel has supported and proved that part of his case going to disparate treatment in respect to the settlement or enforcement of its rule or policy of firing the aggressor in any fight situation. The fight instigated by Brown with Saabedra, and Brown's fight with Madina, in each of which Brown clearly was the aggressor, did not result in any discipline against any of the persons involved. I agree again with counsel for the General Counsel when he says that the Respondent's rule or policy is a rule of convenience and has been proved to be broad enough in application to permit the discharge of Aldridge, a known union leader, because of a "stupid" but playful act, after retaining Brown after arguments, threats, and police intervention. It seems to me, again in agreement with counsel for the General Counsel, that the July 30 Aldridge-Luna episode was developed between August 3 and 5 by the Respondent as an incident going to show that Aldridge tried to prevent Luna from testifying in the Lazaro case. [Cases 13-CA-6002 and 13-CA-6174; General Coun- sel Exhibit 2. I therefore find that the Respondent did, as alleged in the complaint, discharge, and has failed and refused, and continues to fail and refuse, to reinstate, Brady Aldridge because he joined or assisted the Union or engaged in other union activ- ity for the purpose of collective bargaining or mutual aid or protection and also discharged him for the additional purpose of supporting its alleged defense against the reinstatement of de Lazaro, and thereby engaged in unfair labor practices and is engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. Upon the basis of the foregoing findings of fact, I make the following- CONCLUSIONS OF LAW 1. The Respondent, John F. Cuneo, is, and at all times material herein has been, engaged in commerce and its operations affect, and have affected, commerce within the meaning of Section 2(6) and (7) of the Act; and that the Respondent is and during all such times has been an employer within the meaning of Section 2(2) of the Act. 2. International Brotherhood of Bookbinders, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Brady Aldridge and in failing to reinstate him, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Secton 8 (a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirma- 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive action designed to effectuate the policies of the Act . I shall recommend a .broad order because of the past history of antiunion activities engaged in by the Respondent. I shall also recommend that the Respondent offer reinstatement to Brady Ald- ridge to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earn- ings or other benefits he may have suffered by reason of the Respondent 's discrimi- nation against him . Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include interest in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.] Saks and Company and Retail, Wholesale, Department Store Union, AFL-CIO; International Ladies' Garment Workers Union, AFL-CIO. Case 13-CA-7337. August 26,1966 DECISION AND ORDER On May 31, 1966, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, exceptions were filed by Respondent and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner., [The Board adopted the Trial Examiner's Recommended Order]. 1 Respondent excepts to the Trial Examiner's finding that no evidence was offered in the instant, proceeding indicating that physical layout changes within Respondent's build- ings were not planned prior to the conclusion of the earlier representation hearing While the record shows that there were some minor changes made, including the expansion and relocation of a few departments, these change, clearly had no significant impact upon the validity of the initial determination as to the appropriate unit We therefore agree with the Trial Examiner's ultimate conclusion that the Respondent violated Section 8(a) (5) by failing to bargain with the certified Union 160 NLRB No. 59. ..