Washington Forge Inc.

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Washington Forge Inc. and Amalgamated Food and Allied Workers Union, Local 56, AFL-CIO. Case 22-CA-3691 January 25, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On September 22, 1969, Trial Examiner Paul Bis- gyer issued his Decision in the above-entitled pro- ceeding, finding that 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 at- tached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended the dismissal of these allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. In addition, Respondent also filed a motion to reopen the record,' alleging the discovery of certain previous- ly unavailable evidence which it asserts would have a direct bearing upon the Trial Examiner's credibility resolutions and his ultimate conclusions with respect to the unfair labor practices found . A memorandum brief in opposition to this motion was filed by the General Counsel. Also, by leave of the Board, Res- pondent was permitted to file a memorandum brief in reply to the General Counsel's brief. On April 16, 1970, the Board, by Executive Secretary's Order, granted Respondent's motion to reopen the record. In its Order, the Board directed that "the hearing be reconvened before the Trial Ex- aminer in order to provide the parties with an oppor- tunity to introduce any newly discovered or previously unavailable evidence which is relevant to a determination of the issues herein ." The Order fur- ther provided that, upon conclusion of the hearing, the Trial Examiner would prepare and serve upon the parties a supplemental decision containing findings of fact, conclusions of law, and recommendations to the Board based upon the evidence received pursuant to our Order. On September 17, 1970, Trial Examiner Bisgyer issued his Supplemental Decision, attached hereto, in which he reaffirmed his previous findings and conclu- sions, and recommended that the Board adopt his prior Decision with certain minor modifications in his Recommended Order. Thereafter, Respondent filed exceptions to the Trial Examiner's Supplemental De- cision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at both the original and supplemental hearings and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed.' The Board has considered the Trial Examiner' s Decision, his Supplemental Decision, and the entire record in this case, including the motions, exceptions, and briefs of the parties, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner as amended by the "Sup- plemental Recommendation" contained in the Trial Examiner's Supplemental Decision, and hereby or- ders that Respondent, Washington Force, Inc., Eng- lishtown, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as amended.4 The motion was supported by various affidavits and documentary evi- dence. 2 Respondent contends that the General Counsel 's representatives did not conduct a fair and reasonable investigation of the unfair labor practice charges and that this together with the Trial Examiner's refusal to permit Respondent to litigate this issue served to prejudice Respondent 's defense to the allegations of the complaint. In our Judgment, Respondent has not raised any matters which would support its conclusion that the investigation was not conducted in a fair and reasonable manner . Nor do we find that the Trial Examiner abused his discretion in refusing to permit litigation of this issue. Accordingly, we affirm the Trial Examiner's ruling and find that Respondent's contention is without merit. 7 These findings and conclusions are based, in part , upon credibility deter- minations of the Trial Examiner, to which the Respondent was excepted. Having carefully reviewed the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all the relevant evidence . Accordingly, we find no basis for disturbing those find- ings. Standard Dry Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (CA. 2). In footnote 37 of the Trial Examiner's Decision, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAVE. Blsovex, Trial Examiner : This proceeding, with all the parties represented, was heard on April 15, 16, and 22 through 24, 1969, at Newark, New Jersey, on the complaint of the General Counsel issued on March 12, 1969,' and the answer of Washington Forge , Inc., herein called the Res- pondent. In issue is the question whether the Respondent's discharge of employees Manuel Lopez, Bienvenido Lopez, Alexandra Lopez, Isabel Lopez, Felix Perez and Yvette Somerville violated Section 8(axl ) and (3) of the National I The complaint is based on a charge filed on January 27, 1969, a copy of which was duly served on the Respondent by registered mail on the same day. 188 NLRB No. 17 WASHINGTON FORGE INC. Labor Relations Act, as amended.2 At the close of the hear- ing, the Respondent argued its position orally. Briefs in support of their respective positions have been received from the General Counsel and the Respondent. Upon the entire record, and from my observation of the demeanor of the witnesses , and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New Jersey corporation with its prin- cipal office and plant in Englishtown , New Jersey, is en- gaged in the manufacturer and sale of cutlery and related products. It annually ships goods and products manufac- tured in this plant and valued in excess of $50,000 directly to points outside that State. It is admitted, and I find, that the Respondent is enga ed in commerce within the meaning of Section 2(6) and (7f of the Act. II. THE LABOR ORGANIZATION INVOLVED It is undisputed, and I find, that Amalgamated Food and Allied Workers Union, Local 56, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence This is another one of those familiar cases where the employer is charged with unlawfully terminating the em- ployment of employees for engaging in protected concerted or union activity and the employer vigorously resists the charges, insisting that his actions were prompted solely by legitimate business considerations . The events leading up to the discharges are as follows. 1. Plant washup and break period practices, the January 10, 1969, work stoppage For some 20 years it has been the Respondent's policy to allow its employees a paid 10-minute break in the morn- ing and another in the afternoon and 5 minutes to wash up immediately before their noon lunch period. Dissatisfied with the adequacy of the men's washroom facilities and the allotted washup time, the employees in the polishing section of the Blade Department in March 1968 complained to management and engaged in a brief work stoppage in pro- 2 Section 8(ax I) of the Act makes it an unfair tabor practice for an employ- er to interfere with , restrain, or coerce employees in the exercise of the rights guaranteed in section 7 ." Insofar as pertinent, Section 7 provides that '[el mployees shall have the right to ...,loin or assist labor organizations, . . and to engage in other concerted activities for the purpose of ... mutual aid or protection ...." Section 8(a)(3) prohibits, with certain qualifications not material herein, an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization ...." The morning break is from 10 o'clock to 10:10, the afternoon one is from 2:45 to 2 :55, and the combined washup time and lunch period is from 11:55 a.m. to 12 :30 p.m. An electric bell signals the beginning and end of these periods. 91 test of these conditions . As a result, the Respondent under- took to install more sinks and to enlarge and make other improvements in the men's washroom. In addition, the pol- ishing employees were ven an extra 5 minutes to wash up before lunch until the alterations were completed. Two Signs to this effect-one in English and the other in Spanish for the benefit of its Puerto Rican employees-were posted. The extra washup time, however, was not officially extend- ed to the employees in other departments. With the completion of the enlarged washroom facilities in mid-November, 1968,° the polishing employees were in- formed that the extra 5-minute washup time before lunch was withdrawn and that they were to revert to the 5 minutes previously allowed all employees. The signs mentioned above were thereupon taken down. Notwithstanding the official limitation thus placed on washup time, the polishing employees, as well as others in the Blade Department, continued not only to take extra time to wash up before lunch , but also to take 5 to 10 minutes before their morning and afternoon breaks for the same purpose.' These departures from Company policy, however, were tolerated by James Grubby, foreman of the Blade Department,6 although it appears that on infrequent occasions, when directed by his superiors, he reminded his employees to obey the washup rules. On January 10, 1969,' Foreman Grubby, under instruc- tions from management, announced to the polishing em- ployees individually that they would no longer be permitted to leave their work stations to wash up before the bells rang initiating the morning and afternoon breaks. Although the record is not clear whether Grubby also mentioned washup time before the lunch period, it is very likely that he did. This discontinuance of the washup privilege was not favor- ably received by the employees with the result that, after discussin g the matter among themselves , they requested em- ployee Manuel Lopez to confer with Milton Berger, the Respondent's president and principal stockholder, in an effort to secure the restoration of the washup time that the had been customarily taking . In the meantime, about 34 Blade Department employees, including 4 of the alleged discrimmatees (Bienvenldo Lopez, Alexandra Lopez, Isabel Lopez, and Felix Perez) refused to return to work at the conclusion of their lunch period at 12:30 p.m. and, instead, congregated in the hallway around the timeclock not far from Berger's office .8 When Berger arrived at his office about 1 p.m., Manuel Lopez, in the presence of Foreman Grubby,9 ppresented the employees' grievance . There is an irreconciliable conflict in testimony concerning the particular washup time that was the subject of the dispute and Berger's final disposition of the employees' protest. Manuel Lopez testified that he 4 The Respondent also made some improvements in the machines to con- trol the emission of dirt and dust. s It appears that prior to this announcement, it was unusual for employees in the Blade Department to leave their machines to wash up before their morning and afternoon breaks . According to Production Manager Mervin Gertler, the practice of taking washup time before the morning and afternoon breaks and more than that allotted before the lunch period was prevalent in departments other than the Blade Department, although it was indulged in to a greater extent in the latter department. 6I find, and it is not contended otherwise , that Foreman Grubby is a surrvisor within the meaning of Section 2(11) of the Act. Unless otherwise indicated, all subsequent dates refer to 1%9. Foreman Grubby testified that the March 1%8 work stoppage was sim- ilarly precipitated when he reminded the polishing employees that they were taking too much time away from their work to wash up before the morning and afternoon breaks and lunch period. 9 Also present was Jose Millet, a machine shop employee, whom Berger had invited to act as a Spanish interpreter , if it became necessary . Millet was not called as a witness by any party. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked for the restoration of the 5-minute washup time be- fore the morning and afternoon breaks and the extra 5 minutes before the noon lunch period, remarking at one point that the Company had withdrawn the washup time because the employees did not have a union . He further testified that, while Berger at first rejected the employees' demands, he ultimately agreed to reinstate the 5-minute washup time before the morning and afternoon breaks and the extra 5 minutes before the lunch period and told him (Manuel Lopez) to report this to the employees and have them return to work. This Manuel did and the employees thereupon returned to work. Berger and Grubby, on the other hand, testified that Manuel only sought the restoration of the extra 5 minutes to wash up before the noon lunch period, which would give th e polishing employees a totsl of 10 minuteso f prenoon washup time; and that Berger declined to grant it , pointing out that, unlike the situation m 1968 , the olishing employ- ees now enjoyed adequate washroom facilities and that there was no justification for treating them differently from the other employees. Grubby also testified that he then left the office with Manuel who, in reporting Berger's decision to the employees, misinterpreted it and informed them that they could retain the extra 5 minutes to wash up before lunch. For this reason, Grubby testified, he brought Manuel back to Berger who repeated his refusal to grant the extra 5 minutes of washup time and thereafter Manuel just told the employees to go to work .10 Manuel, however, denied that he had returned to Berger's office or had a second conversation with him, although Berger corroborated Grub- by in this respect. Since the employees admittedly were making it a practice to take 5 to 10 minutes to wash up before the morning and afternoon breaks and an extra 5 minutes before lunch, which Grubby announced would no longer be permissible, it is very likely that, in protesting the discontinuance, Manu- el would seek the restoration of all the washup time the em loyees were taking and not confine his efforts to regain only the prelunch washup time. Moreover, in assessing the relative credibility of Manuel as against Grubby and Ber- ger, I find Manuel the more believable witness . Obviously, Grubby's repudiation of a substantial portion of his pretrial affidavit, given to a Board agent, which contradicted much of his testimony on the witness stand, and his unpersuasive efforts to explain such inconsistencies , cannot commend him as a very trustworthwitness . As for Berger, his uncon- vincing attempts to justify the discharges here involved with implausible and shifting reasons as will later be discussed cast serious doubt on the reliability of his testimony . I there- fore credit Manuel's account which I find is in accord with the realities of the situation. 2. Manuel Lopez' discharge on January 10 As indicated above, after his meeting with President Ber- ger, Manuel Lopez returned to work. At 4:30 p.m., which was Lopez' normal quitting time, Foreman Grubby ap- proached him at his machine. Expressing the wish that he would be forgiven, Grubby informed him that he was dis- charged and handed him his final checks which included 7 days severance pay,ll although the Company did not have a severance pay policy. However, Grubby gave Manuel no reason for the discharge and Manuel, evidently angered by 10 Berger, however, testified that Grubby informed him that after the sec- ond "We take ten minutes, and let's go back to work." 11 Manuel Lopez thought that a check for one week 's pay actually repre- sented vacation pay this turn of events, didn't ask for one but mumbled some- thing Grubby did not understand. Concerning the circumstances of his decision to termi- nate Manuel, Berger testified, as follows: About 3:30 in the afternoon of the same day (January 10), he was in the As- sembly Department near Grubby's department when Grub- by informed him that, although the coTfee break had ended, Manuel was still in the bathroom; that he had an argument with Manuel regarding washup time; that Manuel said that he was going to take as much washup time as he pleased and that if Grubby didn't like it he could pay him off, as well as his brother, Demetri, who was also in the bathroom at that time. Berger thereupon told Grubby that, since this was Manuel's attitude and he was creating problems in other departments, he had no alternative but to let Manuel go.12 Without speaking to Manuel about his alleged insubordina- tion, Berger promptly directed Personnel Manager Kathy Pulaski to terminate and pay him off. Grubby's version of his conversation with Manuel, how- ever, vanes from Berger's. He testified that, while he and Manuel were returning to their department after Berger informed Manuel a second time that he would not restore the extra washup time, Manuel told him that he still was going to take 10 minutes to washu and did not care wheth- er or not management liked it or fired him. Grubby further testified that he thereupon reported this conversation to Berger who remarked that if that was the way Manuel felt, he would oblige him. Manuel denied the statements attributed to him by Grub- by. As previously noted, neither Grubby nor Berger im- pressed me as reliable witnesses. Accordingly, i credit Manuel's denial.13 The following Monday morning, January 13, Manuel Lo- pez visited the State Department of Labor in Trenton, New Jersey, to complain about his discharge. Instead of report- M for work, Manuel Lopez' son Bienvenido, Felix Perez, about 11 other employees accompanied him. Later in the day, some of these employees returned to work after the regular reporting time.14 3. The advent of the Union On January 14, the Union began to organize the Respondent's employees. On that day during the lunch peri- od, Felix Perez met Union Representative Benson outside the plant and drove away in the latter's automobile to a place where Benson discussed the benefits of unionization. At night, Felix Perez, Manuel Lopez, Alexandra Lopez, Bienvenido Lopez, Isabel Lopez, and Yvette Somerville signed union membership application cards. Thereafter, on their own time in the plant, Perez, Somerville, and Bienveni- do Lopez spoke to employees in support of the Union. Perez 12 According to Berger, Manuel's brother, Demetn, was terminated "the exact same time." However, it appears from Grubby's testimony that he terminated Demetn about an hour or "couple of hours" after Grubby had spoken to Manuel. The complaint does not allege that Demetri was unlawful- ly discharged. 13 I question the veracity of Assistant Foreman Hernandez' testimony that at a State unemployment insurance hearing Manuel admitted that he had an argument with Grubby in which he stated that he was "going to take ... [his] ten-minute break" and challenged Grubby to fire him. Although Hernandez did not mention in his testimony washup time before the breaks , Manuel denied that he testified at that hearing that he said that, if the Company did not like his taking washup time, it could fire him. I credit Manuel's testimony which appears to me to be more plausible. 1d In its brief to the Trial Examiner and the written statements explaining the reasons for the various discharges , which the Respondent furnished a Board agent, the Respondent apparently referred to this episode as the January 13 work stoppage. WASHINGTON FORGE INC. and Somerville also solicited employees to join the Union. According to the uncontradicted testimony of Perez and Bienvenido Lopez, which I credit, Assistant Foreman Miguel Duprey was standing a few feet from them within hearing distance during the morning break on January 21, the day they were discharged , while they were discussing the Union. Perez also credibly testified to another conversation he had with Bienvenido Lo ez , regarding the Union when Duprey also approached them and remarked when they stopped talking to continue because he was leaving. 4. The discharge of Bienvenido Lopez, Isabel Lopez Alexandra Lopez, and Felix Perez In the late afternoon of January 21, Foreman Grubby sent Bienvenido Lopez, Alexandra Lopez, and Felix Perez, who were then working at their machines , to the office. When they arrived there, a secretary informed them that they were discharged and handed them their previously prepared final checks . Bienvenido Lopez was also given a check for his wife, Isabel, who had not been summoned to the office. In reply to their inquiry, the secretary stated that all four of them were discharged for taking too much time to washup. These discharges reflected President Berger's decision and were effected without any prior warning that the named individuals were abusing their washup privilege and risked termination for doing so, despite Berger s assert- ed policy to issue such a warning before discharging any employee. Significantly, the reason thus given for at least the discharges of Alexandra Lopez and Isabel Lopez, admit- tedly competent workers, was contradicted by their fore- man Grubby. He testified that he had never had any problems with them over washup time or for takin g exces- sive time for breaks. Indeed, in a pretrial affidavit which he had given to a Board agent, Grubby made a similar admis- sion with respect to Perez and Bienvenido Lopez, although at the hearing he repudiated it.16 Moreover, Production Manager Gentler named only Perez and Manuel Lo pez as habitual violators of the washup rule and conceded that he knew "No others."" At the hearing, Berger testified that Alexandra Lopez was laid off because there was a slack in work and she had previously requested a layoff from Personnel Manager Ka- thy Pulaski, who did not comply with the request because he (Berger) was out of the city. Alexandra Lopez denied having ever made such a request of Pulaski , who did not testify. I credit Alexandra Lopez' denial. Referring to Berger's testimony that he laid off Alexandra Lopez because of a work shortage, the Trial Examiner ob- served that, "In other words, Alexandra Lopez was let go not for violating any rules, but because you had insufficient 13 Duprey is Foreman Grubby's assistant foreman in charge of the punch press, hammering, and blanking press section of the Blade Department. He oversees the work of approximately 25 employees , helps set up individual machines, checks the quality of the employees' work to see that it conforms with specifications and rejects it if it does not, has authority to transfer employees from one machine to another , although he may first consult with his foreman, can recommend hiring and firing and "to some degree" which employees should be laid off during a slack period , can "definitely" recom- mend discipline of employees for violating plant rules , and has the authority to settle minor grievances not affecting company policy. I, accordingly, find that Duprey possesses sufficient authority to constitute him a supervisor within the meaning of Section 2(11) of the Act. 16 Grubby's affidavit reads, in relevant part : "On January 21, when Felix, Bienvenido, Alexandra and Isabel were laid off, I don't remember any com- plaints about them taking too long on break time or too long in washing up " 17 According to Berger, before making his discharge decision he consulted with his foreman (apparently Grubby), his Production Manager Gertler, his attorney and his labor consultant. 93 work for her?" To this, Berger responded, "We had insuffi- cient work for her." Yet, later on in his testimony Berger stated that Alexandra Lopez and Isabel Lopez were "the least of the offenders of the group [here involved] .... The others were very hard core offenders" and that he later reinstated Alexandra Lopez and Isabel Lo pez" "with the agreement that they would live up to shop rules and do their work properly." On February 13, the Respondent furnished the Board agent with separate statements setting forth the reasons for the discharge of the individuals involved in this case. Al- though the document relating to Alexandra refers to her request for a layoff,19 it does not assert this as a ground for her discharge, but recites that: On the 21st [of January], after a full investigation of the background period and incidents leading to the work stoppages of the 9th and 13th , it was a management conclusion that a hard core of dissension, with the presence of Miguel L. Duprey as Assistant Foreman, and with rest period and washup rules , existed to a degree which jeopardized the supervisory rights of management. A decision was thereupon made to termi- nate this hard core of dissension in the interest of the business and the maintenance of high morale long exis- tent among the rest of a work force of around two hundred employees. 0 Under cross-examination by the General Counsel, Berger was questioned about his shifting reasons for Alexandra Lopez' discharge, as follows: Q. On direct testimony you testified that Alexandra Lopez was discharged because of lack of work. In this document, handed to Agent Goodman in February, it was mentioned that she was discharged because she was part of a hard core of dissension A. And lack of work. Q. Well, that wasn't in the document. What specifi- cally-the things that Alexandra Lopez did that caused you to come to the conclusion that she was part of a hard core of dissension? A. The same reasons as Isabel. Q. Well, did Alexandra make any threats to your knowledge? A. No, not to my knowledge. Q. Would you repeat to me what was told to you? Was it told to you or did you know this of your own knowledge? A. This was told to me. Q. Who told you about Alexandra? A. Duprey, Mike Du reyy. Q. What did he specifically report to you concerning Alexandra? A. The lack of cooperation. The-same as- Q. I would appreciate it if you would repeat them, because it is two different parties. A. The same, the same reasons. You have it doc- umented. Q. Now, are you now saying all these reasons existed 18 In March, the Respondent voluntarily reinstated with backpay, not only Alexandra Lopez and Isabel Lopez, but also Manuel Lopez and Bienvenido Lorz. Perez and Somerville, however, were never reinstated. Specifically, the document says. "On January 14th, this employee, the wife of Manuel, at 10:30 a in. asked for a `lay-off slip' but after an explana- tion of the possible results on unemployment compensation status , she re- turned to work." 20 The January 10 work stoppage is erroneously indicated as having occur- red on January 9. The above quoted statement also appears in the document relating to the discharge of Bienvenido Lopez , Isabel Lopez, and Perez. It also appears in the explanatory document concerning Somerville except that the January 24 date is given in place of January 21. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the time you discharged her? A. Yes. TRIAL EXAMINER When you refer to a hard core of dissension, what do you mean by that phrase? THE WITNESS They don't- TRIAL EXAMINER: You mean dissatisfaction with the company rules? THE WITNESS Not dissatisfaction-they don't co- operate with the foreman, they don't live up to shop rules which we have. TRIAL EXAMINER : Were you referring to the work stop- page that had occurred on January 10th? THE WITNESS. They-it could be washup time, follow- ing around at machines. It could be many things. TRIAL EXAMINER. I asked you a question. Did you in- clude their participation in a work stoppage to get addi- tional washup time? THE WITNESS: No. If they had any-I listened to them. If they had any legitimate reason for it, you know, I would grant them anything that's reasonable. Q. In the paragraph I already read, and I am ref- erring to GC-3E, ` After a full investigation of the background period and incidents leading to the work stoppage of the 9th and 13th," and essentially the same thing is said in GC-3F regarding Alexandra Lopez, and yet you just said that the work stoppages did not have any iiifluence. A. I said if there was any-if there was a legitimate reason for anything- Q. Did the work stoppages as regards Alexandra and Isabel Lopez have any part in your decision to termi- nate them? A. It did have a part. Q. It did have a part? A. They were part of the hard core group. TRIAL EXAMINER: Did you regard the work stoppage on January 10th as being unreasonable and illegitimate? THE WITNESS: Yes. The request of the ten-minute wash- up only referred to men and not to women, and that department never had any more than their regular bell breaks. As in the case of Alexandra's discharge, Berger testified that Isabel Lopez was also let go because there was insuffi- cient work for her, adding, however, that she was also the wife of Bienvenido Lopez, "who was quite dissident." In the course of the General Counsel's cross-examination of Ber- ger concerning those reasons, Berger's attention was called to the previously quoted statement which also appears in the explanatory document relating to the reasons for Isabel Lopez' discharge. Berger thereupon gave the following testi- mony: Q. On direct you testified that Isabel Lopez was laid off because of lack of work? A. That's one of the reasons. q Q. What were the other reasons? A. She and her husband were involved in this dissi- dence and her husband was quite a problem. I under- stand there were threats of all kinds going around in the plant. Q. Now, you are saying because of her husband's activities Isabel was laid off? A. Her husband's and hers. Q. Her activity. What activity did she engage in ... which you now say influenced you to discharge her? A. The fact that her husband was quite dissident. TRIAL EXAMINER: When you say dissident, what are you referring to, what activity on the part of her husband? THE WITNESS: Not obey' g rules, being belligerent and many, many things of this sort. TRIAL EXAMINER: Are you referring to the work stop- page on January 10th. THE WITNESS: The work stoppage on January 10th. TRIAL EXAMINER: And which is indicated in that exhibit as having occurred on January 9th. MR. CAPPADONA- Right. TRIAL EXAMINER It's the same incident? THE WITNESS: The same incident. I don't know the date. The date might have been a mistake. TRIAL EXAMINER. Proceed. Q. So then Isabel did not engage in any acts of dissi- dence other than the work stoppage, is that correct? A. Well, she and her husband had worked together in their department at the time and there was dissi- dence there. Q. What did she do individually? A. Well, I wasn't in this department to watch all the things that she done. Q. What was reported to you that she was doing? A. There was dissidence there. TRIAL EXAMINER: Let's use a word other than dissidence. Describe in detail what was reported to you that she did. THE WITNESS. Belligerence to the foreman. TRIAL EXAMINER: Belligerent to whom? THE WITNESS: The assistant foreman, I'm sorry. TRIAL EXAMINER: Who was that? THE WITNESS: Miguel Duprey. TRIAL EXAMINER Did he report that to you? THE WITNESS: I don't recall exactly. The big wreck is the tremendous dissidence, the tremendous upheaval, you know, with Benito (sic) and the various threats and things of that sort. TRIAL EXAMINER In other words, am I to understand that you discharged her because she was part of a dissi- dent group. Is that it? THE WITNESS That is correct, but her name was also brought up in-during the time of Miguel telling me of the problems and her name was brought in definitely in this grouping. TRIAL EXAMINER. Okay. Now, what did Duprey tell you? That 's the name, isn't it. Duprey? THE WITNESS: That's right. TRIAL EXAMINER. And when? THE WITNESS. He told me, number one, he had been threatened by this people. His English is rather poor. Q. Was it ever reported that Isabel made threats to anyone? A. No. She made no threats that I heard of. As reasons for the termination of Bienvenido Lopez, Ber- ger testified that he disobeyed shop rules relating to washup time and leaving his machine and he was "antagonistic towards" Assistant Foreman Duprey. Berger further testi- fied that the same reasons applied to Perez. However, as noted above, Bienvenido Lopez was not named by Prod- uction Manager Gertler as one of the habitual offenders of the washup rule and Foreman Grubby had recanted, amon others, the statement in his pretrial affidavit that he had never had problems with Bienvenido Lopez or Perez with respect to washup time or for taking excessive time for breaks. Moreover, there is absolutely no direct evidence in WASHINGTON FORGE INC. the record that Bienvenido Lopez, Perez, or any of the indi- viduals alleged to have been unlawfully discharged were antagonistic toward Assistant Foreman Duprey. In fact, Foreman Grubby, under whom Duprey worked, did not repudiate his admission in his pretrial affidavit that he had no knowledge of such a problem. In addition to his testimony that Perez' termination was for the same reasons as Bienvenido Lopez', Berger indicated that Perez' absenteeism also entered into his decision. How- ever, there is no mention of absenteeism in the statement of reasons for Perez' discharge given by the Respondent to the Board agent. In any event, Perez admitted that several months before his discharge Production Manager Gertler spoke to him about his absenteeism and that -he (Perez) explained his family problems and other circumstances re- sponsible for it. There is no evidence that he was subse- quently reprimanded for failing to improve. In March, the Respondent remstated with backpay Alex- andra Lopez, Bienvemdo Lopez, Isabel Lopez, and Manuel Lopez, but not Perez. 5. Somerville's discharge Somerville, with an earlier 2-year history of employment with the Respondent on a part-time basis, was last em- ployed by the Respondent about September 1967 as a full- time employee until her discharge on January 24, 1969, under circumstances related below. She had always worked in the packing room under the supervision of Foreman Merrill Campbell and Assistant Foreman Gilberto Hernan- dez?1 On January 14 she signed a union membership card, attended three or four union meetings, and became an ar- dent advocate of the Union. During her free time at the plant, she frequently discussed with employees the need for a union, soliciting their membership and distributing union cards. In the morning of January 24, about 15 minutes before the 8 o'clock bell rang to begin work, Somerville entered the Shipping Department adjoining the packing room and spoke to a group of four young men about the advantages of having a union in the plant and asked whether they were interested in sign iY union cards which she held in her hand. Somerville testified that, while so engaged and still before the 8 o'clock starting bell sounded, Assistant Foreman Her- nandez approached the group and told her that this was "an un-unionized place," that a union was not wanted, and that if she did not stop it she would be in a lot of trouble. She further testified that she answered Hernandez that she thought she had a right to do what she was doing and that Hernandez' only response was to tell her to go to work, which she did. Hernandez gave the following account of this incident. About 8:25 or 8:30 a.m., while employees were working, he noticed that Somerville was not at her work table. He thereupon inquired of her table partner where Somerville was and was informed that she was in the Shipping Depart- ment. There, he located her, asked her what she was doing and wh she was not working, and directed her to return to her table before she got into any kind of problem." Somer- ville replied that this was a free country, that she could do anything she wanted, and that she "didn't give a damn" for her job. Despite his order, Somerville remained in the ship- 21 It was stipulated that Campbell and Hernandez possessed virtually the same respective supervisory authority in their department as Foreman Grub- by and Assistant Foreman Duprey enjoyed in their own department. I, accordingly, find that Campbell and Hernandez are supervisors within the meaning of Section 2(11) of the Act. 95 ping department until about 9 o'clock when she returned to her work table. Hernandez further testified that he "really" didn't know what she was doing in the shipping department, except that she was speaking to a group of boys . He further denied knowledge of the subject of the discussion. Richard L. McGrory, a shipping department employee who was one of the group Somerville addressed , was called as a witness by the Respondent. On his direct examination, he substantially corroborated Hernandez ' version of the latter's encounter with Somerville. Thus, he testified that, after Hernandez approached the group , he told Somerville to return to her department and that she should not be in the shipping department. He further testified that this evoked Romerville's response that "it was a free country and she had a right to say what she wanted," that she did not care if she got into trouble and that she "did not give a damn about the job because she was thinking about quitting either that Friday [January 24] or the following Monday," al- though she had not yet decided on the day. He also testified that Hernandez then left without replying and that Somer- ville remained in the Shipping Department until about a quarter to 9 or 9 o'clock. Under cross-examination, McGrory insisted that Her- nandez did not ask Somerville what she had said to the group but only told her to return to her department, that neither she nor Hernandez mentioned the union to each other, that Hernandez said that she would get in trouble for being in the shipping department but not that she would be in trouble for talking about the union. McGrory was there- upon confronted with the following paragraph in his pretrial affidavit which he acknowledged reading before he signed and swore to it: On January 24, 1969, Yvette Somerville approached] myself, Henry Ferro, Stanley Cottrell, and William Reid, and asked us if we were interested in the union. She had cards with her. This was before 8:00 a.m., in the shipping area. As she was talking to us Gilberto RiveraBernandez, from the packing department, came over and asked Yvette what she had said. Yvette said that she had been telling us that it was unfair the other men were fired for talking to the union men . Yvette also told Gilberto that she was in favor of getting peo- ple signed for the union. He said it would cause turbu- ence in the department for her to hand out cards because there were a lot of people against it. She said it was unfair, because other people had unions and we should be able to also. Then Yvette went back to work. Although at first disavowing the correctness of some of these statements, McGrory later conceded their truth except that Somerville told Hernandez that she was talking to the group about the Union and that , in response, Hernandez told her that she should be in her own department; that Somerville did not tell Hernandez that "she was in favor of getting people signed up for the union," but actuall% said that she "would like to see people sign for the union ; and that it was not true that "[t hen Yvette went back to work." McGrory then repeated that Hernandez returned to the packing room and- omerville remained in the shipping de- partment until approximately a quarter to 9 or -9 o'clock when she went back to work.' 22 Henry Ferro, another Shipping Department employee who was part of the group addressed by Somerville, was called as a witness by the General Counsel . To the surprise of the General Counsel, he gave testimony contra- dicting substantial portions of the pretrial affidavit he had given a Board agent. Among other statements in the affidavit he reupdtated was that the above incident in question occurred "before 8 :00 a.m. and before the start of work." I find Ferro's testimony and his attempted explanation for the Continued DECISIONS OF NATIONAL LABOR RELATIONS BOARD Somerville impressed me as a candid witness whose testi- mony, in the context of the events herein, is plausible and convincing. Indeed, although McGrory's repudiation of statements in his affidavit by no means enhances his relia- bility as a witness, I find parts of his testimony recited above lend credence to Somerville's account. Accordingly, I credit Somerville's testimony and reject the testimony of Hernan- dez and McGrory at variance with it. Somerville also credibly testified that about 10 minutes after the bell ran g and while she was working, Hernandez came to her machine and declared that there was no need for a union in the plant. About 2 hours alter the Shipping Department incident, McGrory, Ferro, and 2 other employees informed Foreman Campbell that Somerville was in favor of the Union and that she thought it was unfair that her friends were fired because they were for the Union. They also told Campbell that she was unhappy about conditions in the plant and that she was thinking of quitting, although she was not definite about it. In the afternoon, Campbell informed Somerville that she was discharged, stating that somebody said that she was quitting. Somerville denied that she was quitting and in- gtiired who told him that. Campbell curdy responded that he didn't "want to hear it," handed her a check and told her to leave. Regarding the decision to discharge Somerville, President Berger testified that on Monday, January 20, Foreman Campbell requested permission to terminate "a girl" in his department at the end of the week because of her impossible record of absenteeism which created problems in the shop and that he authorized Campbell to take this action. Despite this purported decision to discharge Somerville at the end of the week, Campbell neither gave her advance notice of her termination, nor even apprised her immediate supervi- sor Assistant Foreman Hernandez of his intention. Camp- bell did not testify and I find Berger 's testimony not convincing. Testifying to the reasons for the discharge based on re- ports he assertedly received from Campbell and Hernandez, Berger pictured Somerville as such an extremely undesir- able and inadequate employee as to make one wonder why she had been retained as long as she was. Thus , he testified that she had a "very, very poor" record, "mostly" because of her failure to come to work or, if she came to work, she would take off for no reason; that she ignored her promises to report for work; that her fellow employees in the Packing Department made "many complaints that she was "getting away with many things '; that during working hours she took excessive time away from her work station ; that she was belligerent with and irritating to other employees; that her excessive absences "aggravated ... employees and ... supervisors"; and that she broke shop rules by going to the bathroom excessively. Under cross-examination, Berger was questioned with re- spect to the statement the Respondent had previously sub- mitted to a Board agent which, as in the case of the other dischargees, indicated that Somerville was terminated for being part of a "hard core of dissension ," but did not specify her inadequacies as related above. Berger affirmed this reason and explained that, by dissidence, he meant Somerville's previously described conduct. Like Berger, Hernandez also presented what I regard as an exaggerated description of Somerville's shortcomings. He further testified that he had spoken to her about three purported falsehoods in the affidavit totally unworthy of belief and I discred- it him. or four times about her absences and that on one of these occasions 2 or 3 months before her discharge she answered that she did not care. Campbell was not called as a witness. On the other hand, Somerville , who impressed me as a more reliable and frank witness , admitted that her at- tendance record was not too good and that a week before her discharge Campbell told her to be careful about her absenteeism and that she might be dischar ged because of it. Somerville did not absent herself after that conversation. She also credibly testified that she had never been criticized for the quality of her work and, in fact, had been compli- mented by Hernandez. B. Concluding findings 1. With respect to Manuel Lopez It is the General Counsel's contention that Manuel Lopez was discharged because he was a leader in the January 10 work stopppage, which was a protected concerted activity, and that the Respondent thereby violated Section 8(a)(1) of the Act. The Respondent, however, justifies the discharge on the ground that Manuel Lopez had invited the discharge by telling Foreman Grubby that he would continue to take more than the allowed washup time and that the Respon- dent could fire him if he did not like it. In any event, the Respondent argues that the work stoppage was not a pro- tected concerted activity. I find merit in the General Counsel's position. As noted above, the testimony relied upon by the Res- pondent to support its contention that Manuel had invited his termination, which the Respondent characterizes as a "constructive quit," was discredited. Instead, I find, that the discharge was actually prompted by his leadership in the work stoppage. This is indicated by the sequence of events, the summary nature of the discharge, and the absence of any warning, particularly in view of Manuel's 7-year record of satisfactory employment with the Respondent. More- over, it is quite clear from the statement the Respondent furnished aBoard agent that "his being a leader in ... [the] work stoppage on [January 10] ... ostensibly for the purpose of forcing a return to the ten minute wash break" entered into the Respondent's discharge decision.23 I find, contrary to the Respondent's contention, that this gage, designed as it unquestionably was to protest work stop the curtailment of washup time and to secure more free time for such purpose, constitutes "concerted activities for ... mutual aid or protection" which Section 7 of the Act guar- antees employees 24 Under settled law, employees do not forfeit this protection simply because a minority of the total work force participates in the stoppage or the employees might have acted unreasonably or unwisely.25 Nor, on the other hand, may this right be defeated because the discharge was not motivated by antiunion bias ,26 as the Respondent also argues. In sum, I find that the Respondent, by discharging Manu- el Loez, the leader of the so-called `hard core of dissi- dents, for engaging in protected concerted activities to secure an improvement in a term and condition of employ- 23 the same vein, the Respondent also asserted in the statement, "Sim- ilarly, as a leader of a work stoppage, a discharge was in order but it was only when he [Manuel] defiantly offered the alternative of being allowed to make his own rules, or he belayed (sic) off that his constructive quit was accepted." 24 N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9. 25 ' Id, While there may be circumstances where employees may lose this protection as, for example, if the strike or stoppage is in breach of an existing collective-bargaining contract, this is not such a case. 26 N L R B v Burnup & Sims, Inc., 371 U.S. 21, 23. WASHINGTON FORGE INC. ment, interfered with, restrained and coerced employees in violation of Section 8(axl) of the Act. 2. With respect to Alexandra Lopez and Isabel Lopez I find that on January 21, 1969, the Respondent also discharged Alexandra Lopez, Manuel's wife, and Isabel Lo- pez, Bienvendo' s wife, because of their participation in the January 10 work stoppage and because of their relationship with the leaders of the dissident movement.27 This is the necessary inference to be drawn from President Berger's testimony, the shifting, unsubstantitated, and implausible reasons offered, and the summary nature of the discharges without the customary prior warning, as fully discussed above. Indeed, when bluntly questioned whether the work stoppage had any part in his decision to terminate Alexan- dra Lopez and Isabel Lopez, Berger answered, "It did have a part. Moreover, in its brief to the Trial Examiner, the Respon- dent in effect, concedes that Alexandra Lopez' and Isabel Lopez' participation in the January 10 work stoppage was a motivating reason for their discharge but argues that, since they were not directly involved in the washup contro- versy, their activity was not protected 28 The law, however, is otherwise.29 Apart from the fact that as alleged violators of the washup rule, they did have an interest in improving this term and condition of employment, it is traditional for employees to hel each other and make common cause so that "each one ofpthem assures himself, in case his turn ever comes, of the support of the one whom they are all then helping."30 Thus, in a very real sense Alexandra Lopez and Isabel Lopez exercised their right to engage in protected concerted activity for mutual aid and protection and their discharge for that reason violated Section 8(axl) of the Act. As will be presently discussed, the Respondent dis- charged Bienvenido Lopez for union activities at the same time as it terminated Alexandra Lopez and Isabel Lopez. Since Berger admitted during his examination that he dis- charged Isabel Lopez because of Bienvenido Lopez' activi- ties, as well as her own, it is reasonable to conclude that her discharge was also prompted by union reasons. In addition, I have no doubt that similar considerations entered into Berger's decision to terminate Alexandra Lopez whom he regarded as belonging to the same "hard core of dissidents" as Bienvenido Lopez and Isabel Lopez. I, therefore, con- clude that the discharge of Alexandra Lopez and Isabel Lopez also constitutes discrimination to discourage union membership within the meaning of Section 8(a)(3) of the Act. 3. With respect to Bienvenido Lopez The complaint alleges that Bienvenido Lopez was unlaw- 27 The Respondent characterizes both Manuel Lopez and his son, Bienven- ido Lopez, as leaders of the dissidents. 29 Specifically, the brief states: In the cases of Alexandra Lopez and Isabel Lopez, they participated in a work stoppage related to washup time about which they had never been involved and about which they had no interest other than to accompany their respective husbands , who were trying to dictate to Management a special set of conditions against the best interests of the other employees and the employer . These women had no entitlement to any special protection from adverse management action following their own acts of misconduct on January 10th, 1969 and thereafter 29 N L R.B v. Peter Caller Kohler Swiss Chocolates Co, Inc, 130 F. 2d 503, (C.A. 2). 3e Id 505 97 fully discharged for engaging in union and concerted activi- ties. It is clear from Berger s testimony, the Respondent's written explanatory statement for Bienvenido Lopez' termi- nation and its bnef to the Trial Examiner, that Bienvenido Lopez' participation in the January 10 work stoppage," which the Respondent viewed as an unprotected and un- warranted interference with its management prerogatives, was at least a significant cause of his discharge. As the work stoppage, as found above, was a protected concerted activi- ty for mutual aid and protection, the discharge, whether or not other legitimate reasons contributed to the decision, violates Section 8(a)(1) of the Act 32 In any event, I am not convinced that the other reasons advanced by the Respondent were other than mere pretexts to conceal its true motive. Thus, one of the asserted reasons was Bienvenido Lopez' habitual disregard of the washup rule. However, not only was he not named by Production Manager Gertler as one of the habitual offenders,33 but it appears from the record that his conduct was no worse than that of other employees who apparently did not suffer the same fate. Nor did the Respondent produce any evidence of another purported reason for Bienvenido Lopez' termi- nation that he was antagonistic toward his Assistant Fore- man Miguel Duprey. In these circumstances, Bienvenido Lopez' termination without prior warning casts serious doubt on the purity of the Respondent's motive. Indeed, it suggests that it was the Respondent's newly-discovered information concerning Bienvenido Lopez' interest in the Union that brought about his sudden termination. As previously shown, it was earlier in the day of his and Perez' discharge, that Assistant Fore- man Duprey overheard their union discussion during the morning break. Their summary discharge that followed ap- pears to me to be more than an odd coincidence. Rather, I find that the discharge was plainly calculated to check un- ionization of the Respondent's plant before it progressed too far to fruition. In view of the foregoing, I find that Bienvenido Lopez' discharge was in reprisal both for his protected concerted activity and for his support of the Union and therefore was violative of Section 8(axl) and (3) of the Act. 4. With respect to Perez The circumstances surrounding Perez' discharge and the grounds advanced by the Respondent for taking this action are much the same as those in Bienvenido Lopez' case. However, the Respondent indicates that Perez' absenteeism also entered into its discharge decision. Yet, as previously noted, Perez' absenteeism was not even mentioned as a reason for his termination in the written explanatory state- ment the Respondent submitted to the Board agent. Fur- thermore, although several months before the discharge Production Manager Gertler discussed Perez ' absenteeism with him, there is no evidence that Perez was subsequently reprimanded for a repetition of this conduct. Under the circumstances, I find that absenteeism was not a moving 31 In its brief, the Respondent characterizes Bienvenido Lopez as one of the leaders. The Respondent also refers in its bnef and explanatory statement to his participation in a January 13 work stoppage. The record shows, as previously found, that on the latter occasion some 12 employees accompa- nied Manuel Lopez to the State Department of Labor to protest his discharge and thereafter reported late for work that day. Clearly, such conduct on the part of the employees was but a continuance of their protected concerted activity 32 Cf N L.R B v Jamestown Sterling Corp, 211 F 2d 725, 726 (C.A. 2) 33 As noted above, Foreman Grubby recanted his statement in his pretrial affidavit that he never had problems with Bienvenido Lopez or Perez with respect to washup time or taking excessive time for breaks 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause of Perez' discharge. On the contrary, I find that Perez was another one of the "hard core of dissidents" whom the Respondent terminated for participating in the January 10 work stoppage and thereby violated Section 8(axl) of the Act. I further find that Respondent discriminated against him because of his activity on behalf of the Union and thus also violated Section 8(aX3) (3) of the Act. 5. With respect to Somerville The General Counsel contends that Somerville was dis- charged for union activities . The Respondent denies this, insisting that she was discharged for a variety of reasons, including gross insubordination on January 24 when she refused to return to her work table as directed by her super- visor, Assistant Foreman Hernandez ; remaining in another department without working for 45 to 50 minutes after the starting 8 o'clock bell sounded; and keeping four or five employees from working during that time . In addition, the Respondent relies on her alleged poor absentee record, lack of cooperation with fellow employees, spending excessive time in the ladies room, and other shortcomings to justify its action. From a careful review of the record, I find that the evi- dence sustains the General Counsel 's position. As previous- ly related, Somerville was an outspoken advocate of the Union, discussing with employees during free time the need for union representation to improve their terms and condi- tions of employment, and soliciting their union member- ship. Here activities came to the Respondent 's attention at least in the morning of January 24, before the 8 o'clock starting bell rang, while she was talking to four employees in the Shipping Department about the advantages to be derived from unionization and soliciting their signatures to union cards. On this occasion, Assistant Foreman Hernan- dez approached the group, told Somerville that a union was not wanted there and that she would be in trouble if she did not stop her activities . In response, Somerville asserted her right to engage in that conduct . Shortly after returning to work at Hernandez' direction, Hernandez repeated to her that a union was not needed . It is significant that it was the proselytizin incident that the Respondent acknowledges precipitated the discharge, although, to be sure, the Respondent's version, which I have heretofore discredited, is different and furnishes the basis for its claim of Somerville's gross insubordination, failure to perform her work, and interference with the work of other employees. Manifestly, I find those reasons without evidentiary sup- port. Also quite revealing of the Respondent's discrimintory motivation underlying the discharge is the fact that Fore- man Campbell effected the discharge after being apprised of the morning incident by Hernandez and receiving infor- mation from the employees whom Somerville had ad- dressed concerning her union advocacy and unhappiness with working conditions at at the plant . Another factor which lends support to an inference of discrimination is that Campbell did not even mention to Somerville the very reasons the Respondent urges to vindicate the discharge. Instead, he gave her a disingenuous reason that he had heard that she was quitting but curtly declined to discuss that matter further when she denied her intention to quit. As for her absenteeism and other alleged shortcomings, these are only afterthoughts which were not even alleged in the written statement furnished the Board agent explaining the grounds for her termination. While Somerville admitted that a week before her discharge she had been warned by Campbell against further absences, it is undisputed that she had not been absent since receiving the warning. In view of the foregoing, I find that Somerville was dis- charged because of her union activity and not for the reasons advanced by the Respondent. Accordingly, I con- clude that the Respondent violated Section 8(a)(3) and (1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and its free flow. V THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I re- commend that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain firmative action designed to effectuate the policies of the Act. I have found that the Respondent unlawfully discharged Manuel Lopez, Bienvenido Lopez, Alexandra Lopez, Isabel Lopez, Felix Perez, and Yvette Somerville. Since the record shows that all but Perez and Somerville have already been reinstated by the Respondent, I recommend that the Res- pondent offer Perez and Somerville immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earn- ings they ma have suffered by reason of their discharge by payment to him or her of a sum of money equal to that which he or she normally would have earned from the date of his or her discharge, to the date of the offer of reinstate- ment, less his or her net earnings during the said period. As for the four named members of the Lopez family, it is not clear whether their reinstatement was made to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, or whether they were reimbursed in the amount customarily ordered by the Board to remedy unlawful discharges . For this reason, I recommend that the Respondent, if it has not already done so, take the same action concerning reinstatement and backpay with respect to the four named members of the Lopez family as is recommended above with respect to Per- ez and Somerville. Of course, the Respondent will be cred- ited with any moneys it had paid the Lopez employees. Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. Wool- worth Company, 90 NLRB 289-294, and Isis Plumbing cF Heating Co., 18 NLRB 716. To facilitate the computation, as well as to clarify the named employees' rights to reinstatement and emplo ent, the Respondent shall make available to the Board upon request, payroll and other records necessary and r- ate for such purposes . I further recommend that the Res- pondent notify these employees of their right to reinstatement, on application, if they are serving in the Armed Forces of the United States. The posting of a notice is also recommended. In view of the nature of the discrimination for union and concerted activities which "goes to the very heart of the Act," 34 there exists the danger of the commission by the 34 N.L.R.B v Entwistle Mfg Co, 120 F.2d 532, 536 (C.A. 4). WASHINGTON FORGE INC. Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respondent cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.35 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Manuel Lopez, Bienvenido Lopez, Alexandra Lopez, Isabel Lopez, and Felix Perez, for partic- ipating in the work stoppage on January 10, 1969, the Res- pondent interfered with, restrained, and coerced employees in the exercise of their guaranteed right to engage in con- certed activities for mutual aid and protection within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Bienvenido Lopez, Alexandra Lopez, Isabel Lopez, Felix Perez, and Yvette Somerville to discourage membership in, and activities on behalf of, the Union, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section (6) and (7) of the Act. 6. The Respondent has not violated Section 8(a)(1) of the Act by interrogating employees concerning their union membership and activities. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Washington Forge, Inc., Englishtown, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off or otherwise disciplining em- ployees for engaging in a work stoppage or other concerted activity for mutual aid or protection sanctioned by Section 7 of the Act. (b) Discouraging membership in Amalgamated Food and Allied Workers Union, Local 56, AFL-CIO, or any other labor organization, by discharging employees or discrim- inating against them in any other manner in regard to their hire or tenure of employment or any term or condition of em loyment. (cc) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: a) Offer Felix Perez and Yvette Somerville and, if the Respondent had not already done so, offer Manuel Lopez, Bienvenido Lopez, Alexandra Lopez, and Isabel Lopez im- 99 mediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their senior- ity or other rights and privileges , and make them whole for any loss of earnings they may have suffered b reason of their unlawful discharge , in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify these employees if 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, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this Recommended Order. (d) Post at its plant in Englishtown, New Jersey, copies of the attached notice marked "Appendix.-36 Copies of said notice, on forms provided by the Regional Director for Region 22, shall, after being duly signed by an theth authorized representative of the Respondent, be posted by auRespon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to in- sure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 20 days from the date of the Trial Examiner 's Deci- sion, as to what steps the Respondent has taken to comply herewith31 IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Foreman Campbell interrogated employees in violation of Section 8(a)(l) of the Act. 35 N L.R.B. v. Express Publishing Company, 312 U S 426, 433. 36 In the event that 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. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals Enforc- inq An Order" shall be substituted for the words "A Decision and Order." 7 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read : "Notify the Regional Director for Re- gion 22, in writing, within 10 days from the date of this order as to 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 Relations Act, as amended, we hereby notify our em loyees that: The Act gives all employees the following rights: To organize themselves. To form, join, or support unions. To bargain as a group through a representative they choose. To act together for collective bargaining or other mutual aid or protection. WE WILL NOT discharge, lay off, or otherwise disci- pline employees for engaging in a work stoppage or other concerted activity for mutual aid or protection, 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as guaranteed to employees in Section 7 of the Act. WE WILL NOT discharge or lay off any employee or otherwise discriminate against him because of his membership in, or activities on behalf of, Amal a- mated Food and Allied Workers Union , Local 56, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, re- strain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to oin or assist the above-named Union or any other ^abor organization, to bargain collectively through rep- resentatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of em- ployment, as authorized by Section 8(aX3) of the Act. WE WILL offer the employees listed below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniori- ty or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their dischargge: Manuellopez Isabel Lopez Bienvenido Lopez Felix Perez Alexandra Lopez Yvette Somerville All our employees are free to become , remain, or refrain from becoming or remaining, members of Amalgamated Food and Allied Workers Union , Local 56, AFL-CIO, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. WASHINGTON FORGE, INC (Employer) Dated By (Representative) (Title) Note: -We will notify the above-named employees if pres- ently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Mili- tary 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. If employees have any question concerning this notice or compliance with its provisions they may communicate di- rectly with the Board's Regional Office, Federal Bldg., 16th Floor, 970 Broad Street, Newark, New Jersey 07102, Tel- ephone 201-645-2100. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: On September 22, 1969, the Trial Examiner issued his decision in the above-entitled proceeding, finding that the Respondent discharged Manu- el Lopez, Bienvemdo Lopez, Alexandra Lopez, Isabel Lo- pez, and Felix Perez, in violation of the National Labor Relations Act, as amended, for engaging in protected con- certed activity. The Trial Examiner further found that, ex- cept for Manuel Lopez, the discharge of these employees and another employee, Yvette Somerville, violated Section 8(a)(3) and (1) of the Act because it was motivated by antiunion considerations. As the Respondent at the time of the original hearing had already reinstated the four Lopez employees,I the Trial Examiner recommended the reinstate- ment of only the two remaining employees, Somerville and Perez. Also recommended was the customary backpay rem- edy for all six employees. On or about November 17, 1969, the Respondent filed a motion to reopen the record, so designated in its covering letter, alleging, inter alia, 1. The grounds for such motion are the discovery of vital additional evidence not presented at the hearing because the same were (sic) not known to Respondent. If the same had been adduced and credited, a different result would have been required than that reached by the Trial Examiner. Specifically, the Respondent in its motion attacked the credibility of Manuel Lopez, Somerville, and Perez. On April 16, 1970, the Board issued its Order upon which this remand proceeding is based. Noting in its Order2 that the Respondent's "Motion to Reopen the Record ... alleges the discovery of certain previously unavailable evidence which would have a direct bearing upon the Trial Examiner's credibility resolutions and his ultimate conclu- sions with respect to the unfair labor practices found," the Board granted the motion. It further ordered: . that the record be, and it hereby is, reopened, and that the hearing be reconvened before the Trial Exam- iner in order to provide the parties with an opportunity to introduce any newly discovered or previously una- vailable evidence which is relevant to a determination of the issues herein. In addition, the Order provided for the preparation and service upon the parties of "a supplemental decision con- taining findings of fact, conclusions of law, and recommen- dations to the Board based upon the evidence received pursuant to the provisions of this Order ...... in accordance with the Board's Order, a supplemental hearing, at which all the parties were represented, was held on May 13, 14, and 15, 19'10, at Newark,New Jersey. At this hearing, all the parties were afforded an opportunity to present newly discovered or previously unavailable eviden- ce relevant to a determination of the issues herein and to argue their positions orally. Following the close of the hear- ing, briefs in support of their respective positions were re- ceived from the Respondent and the General Counsel. Upon the entire record in the case, including the record in the supplemental proceeding, and from my observation of the demeanor of the witnesses, and with due considera- tion being given to the arguments advanced by the parties, I make the following supplemental findings, conclusions, and recommendations: i However, appropriate reinstatement for the four Lopez employees was recommended if they had not already been restored to their former or sub- stantially equivalent positions, without prejudice to their seniority or other ngpts and privileges. Documents supporting the motion mentioned in the Board's Order con- sisted of affidavits of employee Perez and a former union organizer, Vincent J. Masso, a copy of the transcript of testimony of employee Manuel Lopez given before the Appeal Tribunal, Division of Employment Security , Depart- ment of Labor and Industry, State of New Jersey, and a certified copy of the record of criminal proceedings involving Manuel Lopez forwarded to the Board on March 23, 1970. In its letter enclosing the criminal record the Respondent erroneously stated that the crime for which Lopez was convicted was committed prior to his testimony at the original hearing before the Trial Examiner Actually, the offense was committed on May 9, 1969 , 2 weeks after the close of that hearing. WASHINGTON FORGE INC. 101 A. Scope of the Remand Pursuant to the Board's Order, and over the Respondent's strenuous and repeated objections, the Trial Examiner restricted the supplemental hearing to the receipt of relevant newly discovered evidence or that which was unavailable at the time of the original hearing and , with that exception, declined to permit de novo litigation of the issues in this case. In so doing, the Trial Examiner rejected the Respondent's interpretation of the Board's Order, reiterated in its brief to the Trial Examiner, that the Board's Order opened u the case for all purposes.3 Certainly, the rule of finality', firmly imbedded in law and reason, requires that once the parties have had their day in court and a fair trial they be foreclosed from relitigating the issues, absent special circumstances, such as the existence of newly discovered or previously unavailable evidence which could adversely af- fect determination of the issues. Any other rule would invite unwarranted and prejudicial delay in resolving litigated is- sues and would encourage the parties to withhold evidence to await the results of the first trial. Accordingly , after further careful deliberation , the Trial Examiner adheres to his rulings and finds that the Respondent's position borders on the frivolous. B. The Proffered Evidence; Findings 1. With respect to Manuel Lopez In the Trial Examiner's Decision, it was found that the Respondent, in violation of Section 8(a)(1) of the Act, dis- charged Manuel Lopez on January 10, 1969 , because of his leadership in protected concerted activity and not because he had invited the Respondent to discharge him, as the Respondent contended . At the reconvened hearin , the Respondent introduced in evidence the transcript ofgtesti- mony of Manuel Lopez taken on March 25, 1969, before an Appeals Examiner of the Appeal Tribunal , Division of Em- oyment Security, Department of Labor and Industry, Mate of New Jersey. The State proceeding was initiated by the Respondent and raised the question of Lopez' eligibility for unemployment benefits, for which he had applied short- ly after his termination. The transcript indicates that the Respondent withdrew its appeal but that its attorney re- mained as an observer. Testifying through the Respondent's assistant foreman, Gilberto Hernandez, who acted as his interpreter, Lopez attested to the truth of the statement he had previously submitted to the Division of Employment Secuny that he was terminated on January 10, 1969, without prior warning. Although in its Motion to Reopen made to the Board the Respondent represented that at the State hearing Lopez testified that he became involved in an argu- ment with his foreman when he insisted on taking a 10- minule break even if it meant being fired and then chal- lenged the foreman to fire him, the transcript of testimony does not support these assertions . Significantly, no effort was made by the Respondent to have any ambiguity or error in that transcript rectified to reflect what it claimed was Lopez' true testimony . Indeed, negating the probability that Lopez had made the alleged admission is the undisputed 3 On April 22, 1970, the Respondent was served with the Regional Director's order rescheduling hearing. Although this order plainly stated that the purpose of the hearing was "to provide the parties with an opportunity to introduce any newly discovered or previously unavailable evidence which is relevant to a determination of the issues herein," the Respondent did not seek from the Board reconsideration or clarification of its Order reopening the case. fact that had Lopez conceded that he had voluntarily quit his job without good cause or had he been discharged Tor insubordination or other misconduct he would not have been qualified under New Jersey law to receive the benefits he was actually granted." The Respondent, nevertheless, sought to prove Lopez' purported admission in question through the testimony of his interpreter, Hernandez. This individual, however, had previousl given testimony relating to that subject at the original Board hearing and his account there did not persuade the Trial Examiner, who discredited it in his Deci- sion 5 In view of the foregoing, the Trial Examiner finds nothing in Lopez' testimony before the Appppeal Tribunal mentioned above which impairs Lopez' credibility or the substantive findings concerning his discharge heretofore made by the Trial Examiner. To impeach the credibility of Manuel Lopez, the Respon- dent also introduced in evidence a judgment of conviction entered against Lopez for a misdemeanor offense of Posses- sion of Lottery Paraphernalia (N.J.S. 2A: 121-3b). It ap- pears that on November 6, 1969, approximately 6-172 months after the conclusion of the original hearing before the Trial Examiner, Lopez was indicted-for a lottery offense committed on May 9, 1969, which was 2 weeks subsequent to that hearing. It also appears that on February 25, 1970, he was convicted following a trial, receiving on May 1, 1970, a prison sentence of 1 to 3 years. The Trial Examiner has reconsidered Lopez' credibility in light of his conviction, even though the conviction was for a misdemeanor which occurred after the_ original Board N.J.S.A. 43 21-5 (a), cf. Spatola v. Board of Review, Division of Employ- ment Sec., Dept of Labor and Industry, 72 N. J. Super. 483, 178 A. 2d 635 (1962); Zielenski v. Board of Review, 85 N.J. Super. 46,203 A. 2d 635 ( 1964); Schock v. Boards Review, 89 N. J. Super. 118, 214 A 2d 40 (1965), affd. 48 N. J 121, 223 A. 2d 633. 5 Trial Examiner's Decision, sec III, A, 2, fn. 13. On August 24, 1970, 3 months after the close of the supplemental hearing , the Board's Executive Secretary received a letter from the Respondent's attorney, requesting that a certain letter dated March 25, 1969, purportedly signed by Manuel Lopez, be received in evidence or, in the alternative , that the supplemental hearing be reopened for such purpose to receive "any other admissible evidence either side wishes to present in the interest of justice ." The Respondent alleges that the offered letter is "an admission and uncontrovertible evidence of Manuel Lopez' fault" and "confirms among other things the testimony given by Lopez before the Appeals Examiner" in the State proceeding. To excuse the Respondent's failure to produce this letter at the original or reopened hearings, the Respondent alleges a lack of knowledge as to how the letter came to be misplaced among the personal papers of its president, Milton Berger On August 28, 1970, the foregoing application was referred to the Trial Examiner "for whatever action and consideration he deems appropriate " On September 2, 1970, the Trial Examiner received from the General Counsel a memorandum in opposition to the Respondent's applica- tion (The Respondent's moving papers, the General Counsel's memorandum and the Board's referral document are hereby designated Trial Examiner's Exhibits 1(a), (b) and (c), respectively) The Trial Examiner finds that the proffered evidence was neither newly discovered nor previously unavailable. No sufficient showing has been made why, with the exercise of due diligence, this evidence could not have been produced at the prior hearings. Schott Metal Products Company, 128 NLRB 415, In 1. Significantly, the letter in question was prepared in connection with the private settlement of the unfair labor practice charges herein with respect to Manuel and the other three Lopez employees and these settlement arrangements were the subject of the Respondent's motion made at the original hearing to dismiss the instant case. Nor had the Respondent pres- ented any other valid reason warranting the receipt of the proffered evidence or a second reopening of the hearing. Indeed, the Trial Examiner finds that, even if the evidence were received, it would be insufficient to overcome the overwhelming evidence of the Respondent 's unlawful discharge of Manuel Lopez for his leadership in protected concerted activitiy . Accordingly, the Respondent's application is denied. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing," and finds, on the basis of the entire record, no persuasive reason to disturb the Trial Examiner's findings with respect to Lopez' credibility. Apart from its efforts to destroy Manuel Lopez' credibili- ty, the Respondent attempted to relitigate the reasons for his termination. Specifically, the Respondent offered to prove through the testimony of its resident , Milton Berger, that, in addition to the discharge reasons given by him under oath at the original hearing before the Trial Examin- er, he terminated Lopez because of his unlawful numbers activities in the plant. Berger admitted that he had been aware of this conduct for a year before Lo pez' arrest on May 9, 1969, and for a time before the police had informed Berger of their interest in Lopez' activities. To demonstrate that this evidence was not available at the time of the original hearing, Berger testified that he was not free to disclose this additional reason at the original Board hearing because the police had apprised a company official between November and December 1968, which was a month or so before Lopez' discharge, that they were keeping Lopez under surveillance and had requested the Company not to "upset the applecart"7 Moreover, Berger testified, company counsel had advised him not to get involved in the police action. However, the Respondent has suggested no plausible reason why at the original hearing the Trial Examiner's attention was not called to this problem , if such were the case, so that appropriate measures could have been taken to receive the evidence of the alleged additional ground for Lopez' discharge without prejudicing police sur- veillance. Also not satisfactorily explained is the fact that the Respondent made no effort to reopen the record after Lopez' arrest on May 9, 1969, to present the additional reason in question for discharging Lopez and, when it did make the motion to reopen in November 1969, it did not mention that ground in the moving papers . Indeed, even though Lopez was convicted on February 25, 1970, and the Respondent submitted to the Board a copy of the judgment of conviction on March 23, 1970, the Respondent did not alert the Board to the additional discharge reason but wait- ed until May 15, 1970, while the supplemental hearing was in progress, before offering to produce that testimony. Viewing all the facts and circumstances herein, the Trial Examiner finds, as he did at the reopened hearing, that the proffered evidence of an additional reason for Lopez' dis- 6 Under the well recognized federal rule 'only convictions for felony or misdemeanors amounting to crimen Jalst . . are admissible to impeach a witness' credibility." U. S. v. Montgomery, 126 F. 2d 151 , 155 (C.A. 3); see also N.L.R.B. Y. Baldwin Locomotive Works, 128 F. 2d 39,46 (C.A. 3). Black's Law Dictionary, 4th ed. defines the term crimen Jalsi as involving "the el- ement of falsehood , and includes everything which has a tendency to in un- ously affect the administration of justice by the introduction of flasehood and fraud." It further notes that this "phrase is also used as a general designation of a class of offenses, including all such as involve deceit or falsifica- tion ...." Although, under New Jersey law, Lopez' offense is a misdemeanor which appears to the Trial Examiner not to fall within the category of crrmen falsi, the Trial Examiner, nevertheless, has considered the judgment of conviction in making his supplemental determination since the sentence imposed upon Lopez was for a term of I to 3 years and federal law defines a felony as "any offense punishable by . imprisonment for a term exceeding one year.... " 18 U.S.C.A. Sec. 1. 7 Following the supplemental hearing, the Respondent attached to its brief submitted to the Trial Examiner a copy of an Application for Search Warrant made by Detective Taranto of the New Jersey State Police on May 9, 1%9, to authorize a search of Lopez' premises, person, and vehicle . The detective's supporting affidavit was based on information secured from two unidentified informants. Apart from the manifest hearsay nature of this document, the impropriety of presenting to the Trial Examiner purported evidence in this manner needs no elaboration . In any event, it is noted that the only police surveillance indicated in the affidavit occurred on April 27 and May 4, 1%9, approximately 4 months after Lopez'.discharge. charge was available at the time of the original heanng and therefore not admissible under the terms of the Board's Order reopening the record. Accordingly, the Trial Examin- er adheres to his rulings excluding this evidence. Fur- thermore, it is perfectly clear from what has been said above that the asserted reason was urel an afterthought not warranting a change in the Trial Examiner's substantive findings.' Two other witnesses were produced by the Respondent at the reopened hearing to furnish testimony which ostensibly would adversely affect Manuel Lopez' case . One was Dimi- tri Lopez, brother of Manuel, who, according to the Respondent's offer of proof, would testify that in 1968, he prepared a sign in Spanish, which was posted in the plant, to the effect that polishing employees could take 5 extra minutes before lunch to wash up until certain alterations in the men's washroom were completed. The Respondent as- serted that it did not subpoena Dimitri to appear as a wit- ness at the original hearing because of his blood relationship to Manuel and its belief that Dimitri would be a reluctant witness. It therefore argued that Dimitri was "mentally not available" to the Respondent at that time , although he was physically available, and that his testimony should conse- quently be received. As the Respondent made no effort to subpoena Dimitri Lopez9 nor sought an adjournment from the Trial Examiner to enable it to produce him, the Trial Examiner finds, as he ruled at the heanng, that that individual was available to testify at the original hearing10 and that his presumed reluc- tance or hostility did not justify receiving his proffered testi- mony under the Board's remand order. In any event, Dimitri Lopez' testimony would be redundant as the Trial Examiner in his Decision found virtually the same facts which the Respondent claims Dimitri would establish." The other witness who the Trial Examiner found was available to testify at the original hearing was Jose Milett, an employee in the Respondent's employ for the past 9 years. As noted in the Trial Examiners Decision,12 Milett was present during the conversation between Berger and Manuel Lopez on January 10, 1969 , when the work stop- page occurred, but was not called by any party as a witness to testify to this conversation. At the reopened hearing, the Respondent produced Milett to furnish such testimony. Milett testified, in substance, that at the time of the orig- inal hearing he was working in the Respondent's plant; that he was not served with a subpoena to appear at that hearing, 13 although Berger told him that he would be sub- poenaed and brought to the hearing if needed; and that he was then ready to tell the truth. Later in his testimony, when questioned concerning his answer to Berger's request to testify at the original hearing, Milett testified that: I told ... [Berger] that f did not want to hurt anyone, that they were my fellow workers , and you know the problems with the workers, and I did not want him to have to call me a name in respect to hiding for them or covering up for them. I am earning my bread the same as they are. As discussed in the Trial Examiner's Decision, Manuel Lopez , as well as Bienvenido Lopez, Alexandra Lopez, and Isabel Lopez, were reinstated and given backpay in March 1969, about a month before the original hearing was opened. 9 It may not be assumed that a subpoenaed reluctant witness would falsely testify under oath. For the procedure in examining unwilling, hostile, or adverse witnesses, see Rule 43(b) of the Rules of Civil Procedure for the United States District Courts. 10 Cf. Wisconsin Rubber Products Co., Inc, 160 NLRB 166, 167, In. l; Intertype Company, 164 NLRB 770, 771. 11 Trial Examiner's Decision, sec. III, A, 1. 12 Trial Examiner's Decision, sec III, A, I, fn. 9. 13 The Respondent conceded that Milett was not subpoenaed. WASHINGTON FORGE INC. 103 Milett further testified that he was never threatened by Manuel Lopez or anyone else to refrain from testifying nor was he informed by anyone that Lopez did not want hun to attend that hearing. In reply to a question put to him by the Respondent's attorney whether he was asked to testify at the original hearing concerning the January 10 Berger-Lopez conversation, Milett stated that "the reason for not coming was all of my own doings because I was a friend, but they did ask me if I would come." It is clear from the above that Milett was available as a witness at the time of the original hearing, whether or not he was a reluctant one.14 In these circumstances , his testimo- ny was not receivable under the Board's remand order. 2. With respect to Somerville It is undisputed that Somerville was discharged on Janu- ary 24, 1969. The Trial Examiner found that the precipitat- ing cause for her termination was her solicitation in the plant of several employees to join the Union in the morning before the start of the workday. To impeach Somerville's credibility, the Respondent in- troduced in evidence a union authorization card which she had signed on January 22, 1969, at a union meeting held at Steve's Mainbrook Inn in Englishtwon, New Jersey. There is a sharp conflict in testimony concerning the circum- stances under which that card was signed and whether at that time she also completed another card which was back- dated to January 14, 1969. On the basis of Somerville's undisputed testimony at the original hearing, the Trial Ex- aminer found in his Decision that she had signed a union card on the latter date.'5 Manifestly, from a substantive point of view, the date Somerville signed a card is not particularly important in determining whether her discharge was discriminatory as it is quite clear that early in the union drive , which began on or before January 14, 1969, she became active on behalf of the Union. Indeed, Vincent J. Masso,16 the Respondent's principal witness who had assisted the Union in its organi- zational efforts,'7 indicated that Somerville and Perez were his first contacts at the Respondent's plant. According to Masso's account, the following transpired at the January 22 meeting : Somerville signed a union au- thorization card dated that date, which she handed to Ste- phen Hornik, a union organizer. Hornik returned the card and, in the presence of other employees, stated that the date was too late to show that other employees were discharged while they were engaged in union activities. At Hornik's request, Masso gave Somerville another blank card which, in accordance with Hornik's directions, she completed, signed and dated January 13 "or something like that" and handed it to Hornik. Thereupon, about five other employees signed cards, which he believed were dated earlier than January 22. Masso could only identify Perez as one of the signers. While Masso could not remember whether Somer- ville exhibited her card to those employees before she u See fn. 10, supra is Trial Examiner's Decision, Sec. II, A, 5. This card was submitted by the Union to the Board's Regional office on March 10, 1969, in support of a repiresentation petition it filed on that date (Case 22-RC-4316). 6 Masso is probably the "Benny Benson" mentioned by Perez in his testimony at the original hearing and referred to in the Trial Examiner's Decision. 17 Early in January 1%9, Masso began assisting the Union on a part-time basis in organizing the Respondent's employees. This association with the Union ended in a month or so Masso received $ 10 for his services , although he asked for more. signed, he testified that she gave them no instructions re- garding the cards. Masso further testified that, contemporaneously with de- livering her second card to Hornik, Somerville gave him (Masso) her January 22 card which he pocketed with the intention of disposing of it; that he, however, soon forgot about the card until September 1969, 8 months later;" and that on October 22, 1969, he turned the card over to the Respondent's labor relations consultant, Harold J. McCor- mack. Contradicting Masso's version of the foregoing episode, Hornik, testified as follows: At the January 22 meeting, attended by Somerville, Perez, and approximately 10 other employees, a union representative discussed the benefits of unionization and the need for authorization cards signed by 30 percent of the employees in order to obtain a Board- conducted election. Despite assurances that employees were protected by the Federal Government in their right to sign cards, a number of employees hesitated to do so. To dispel their fear, Hornik asked Somerville to sign a card in their view, which she did, although he was aware that on a previ- ous occasion she had already submitted a signed card to the Union. Thereupon, the union representative reassured the employees of their statutory rights and four or five employ- ees came to the table and filled out and signed cards. Somerville's January 22 card was never handed in but was left on the table. Hornik categorically denied that he or any representative instructed Somerville or any employee to backdate his or her card. The Trial Examiner finds Hornik's testimony more plau- sible than Masso's. Clearly, there was no reason for Hornik to have Somerville, who was still in the Respondent's em- ploy, to backdate her card on January 22 in order to protect her union activity. In addition, no convincing evidence was adduced either that the other signers had backdated their cards or that they had been previously discharged. Fur- thermore, Masso did not impress the Trial Examiner as a candid witness, especially in view of his incredible story concerning his retention of Somerville's January 22 card and the circumstances which impelled him to consult with the Respondent and to offer his services, and in view of his contradictory testimony regarding the distribution of union cards prior to the January 22 meeting. Accordingly, the Trial Examiner credits Hornik's testinony and fords no basis in the card episode for altering the Trial Examiner's credibility or other findings with respect to Somerville. At the reopened hearing, the Respondent also unsuccess- fully attempted to discredit Somerville's testimony by offer- in g to prove particular acts of sexual misconduct, not the subject of conviction. It is too well settled to belabor the ib Masso gave this incredible story regarding the subsequent appearance of Somerville's January 22, 1%9 card: In September 1969, while he was in a gas station, he became involved in a conversation with a group of people whom he could not identify and whom he did not "even know." In the course of the conversation, he mentioned the above incident of backdating Somerville's card and was told by one of the individuals in the group that he could get in trouble for his participation in that action. Disturbed by this development, and without funds to consult a lawyer , he promptly telephoned the Respondent and spoke to a lady who referred him to company counsel who, in turn, referred him to the Company's labor relations consultant, McCormack. In subsequent discussions with McCormack, Masso informed him of the backdating episode and was advised that he had not acted right and Masso offered his help to clear matters up . The upshot of all this was Masso's delivering Somerville's January 22 card to McCormack; Masso's signing of the October 22, 1969 , affidavit attached to the motion to reopen the record herein; his activity, on the Respondent's behalf, in securing Perez' affidavit dated October 9, 1%9, attached to the motion , and settling Perez' backpay claim without reinstatement, and Masso's unsuccessful efforts to persuade Somerville to see McCormack for the purpose of settling her back- pay claim. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD point more than it has already been at the hearing that such collateral evidence is not relevant to the question of veracitgy and therefore is not admissible to impeach the witness.] 3. With respect to Perez The Respondent introduced in evidence a statement dat- ed October 9, 1969, assertedly prepared by Masso with the assistance of the Respondent's labor relations consultant, McCormack, and signed by Perez. This statement, which was also submitted by the Respondent to the Board in sup- port of its Motion to Reopen the record, reads as follows: TO WHOM IT MAY CONCERN. The undersigned without duress or promise of monetary, or other reward, freely state that prior to my leaving Washington Forge, employment in January 1969 I did engage in the acts charged to me by our employer during the course of the N.L. R.B. hearing in Newark during March and April. Specifically I had at Washington Forge courses of conduct which included excessive tardiness, not reporting for work and department absences dur- ing scheduled work time dispite (sic) warning to correct same. When charged with offenses at the hearing I denied them or otherwise evaded our responsibilities (sic) for these acts. There can be little doubt from Masso's testimony that McCormack utilized Masso's services to approach Perez for the purpose of securing a statement of that nature, offering Perez, in return, backpay due him as a result of his dis- charge.20 Perez signed the above statement and was given a check for $736 representing his backpay. As part of these negotiations, Perez was also handed a letter dated October 8, 1969, in which he was formally offered reinstatement. As part of the same transaction, Perez declined the offer by signing another letter to that effect dated October 9, 1969, which was also drafted by the Respondent2l The Respondent apparently relies on Perez' admission of "excessive tardiness, not reporting for work and department absences." However, this introduces nothing significantly new in the case for at the original hearing Perez acknowl- edged his absenteeism, which he had explained to Prod- uction Manager Gertler several months before the discharge. On the basis of convincing evidence the Trial Examiner found that Perez' discharge was motivated by his participation in the January 10 protected work stoppage and his union activity and not by any shortcomings on his part, including absenteeism, which the Trial Examiner spe- cifically found was not "a moving cause."22 Accordingly, it is concluded that a change in the Trial Examiner's indings with respect to Perez' discharge is not warranted. 4. With respect to Alexandra Lopez At the initial hearing, the Respondent's president, Berger, iv Foster v. United States, 282 F.2d 222, 223 (C.A. 10), Salgado v. United States, 278 F.2d 830, 831 (C.A. 1); Iva Ikuko Toguri D'Aguino v United States, 192 F.2d 338, 372 (C.A. 9); N.L.R B v. Baldwin Locomotive Works 128 F.2d 39, 46 (C.A. 3). 20 Masso, on behalf of the Respondent , also made similar , but unsuccess- ful overtures to Somerville. Ii The Trial Examiner made it clear at the hearing that the above doc- uments were not received on the question of compliance with the Trial Examiner's recommended remedy in his original Decision 22 Trial Examiner's Decision, Sec. III, A, 4, Sec. III, B, 4. testified that Alexandra Lopez was laid off because there was a slack in work and she had previously requested a layoff from Personnel Manager Kathryn Pulaski, who re- fused to comply with the request for the reason that he (Berger) was out of the city. The Trial Examiner credited Alexandra Lopez' uncontroverted denial that she had never made such a request of Pulaski. Pulaski did not appear as a witness. 3 Although, in its motion to reopen the record the Respon- dent made no mention of its desire to produce Pulaski's testimony, it produced Pulaski as a witness at the reopened hearing to contradict Alexandra Lopez' denial that she had asked Pulaski for a layoff slip. To prove that Pulaski was unavailable as a witness at the time of the initial hearing which began on Apnl 15, 1969, and closed on April, 24, 1969, Pulaski testified that she was pregnant then and gave birth on May 7, 1969. However, the Respondent neither requested the Trial Examiner to postpone the hearing to enable the Respondent to produce Pulaski at a subsequent date, nor did it make an application that her deposition be taken. Under these circumstances, the Trial Examiner ruled that Pulaski was not unavailable within the meaning of the Board's remand order and rejected the proffered testimony.24 Moreover, were Pulaski's testimony received, it would not overcome the evidence in the case established that Alexandra Lopez' discharge was unlawfully motivated. Upon the basis of the foregoing findings of fact and rul- ings, and upon the entire record in the case, the Trial Exam- iner makes the following: CONCLUSION OF LAW No newly discovered or previously unavailable evidence was introduced or offered pursuant to the Board's Order reopening the record which warrants a change in the find- ings of fact, conclusions of law, or recommendations con- tamed in the Trial Examiner's Decision issued in this case on September 22, 1969. SUPPLEMENTAL RECOMMENDATION Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, the Trial Exam- iner recommends adoption of his Decision issued on Sep- tember 22, 1969, except that, in conformity with language since adopted by the Board, the following changes be made: 1. Paragraph 2(a) of the Recommended Order to read: Offer Felix Perez and Yvette Somerville and, if the Res- pondent had not already done so, offer Manuel Lopez, Bienvenido Lopez, Alexandra Lopez, and Isabel Lopez, im- mediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful dis- charge, in the manner set forth in the section of this Deci- sion entitled "The Remedy." 2. The reinstatement provision of the notice to read: WE WILL offer the employees listed below immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their discharge: 23 Trial Examiner's Decision, Sec. III, A, 4. 24 Wisconsin Rubber Products Co, Inc., 160 NLRB 166, 167, In. 1.