Tov Knitting Mills, Inc.

TOV KNITTING MILLS 11 Tov Knitting Mills, Inc. and Local 155 , Knitgood Workers, International Ladies Garment Workers Union AFL-CIO. Case 29-CA-4635 September 20, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On May 6, 1976, Administrative Law Judge Rob- ert W. Leiner issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 au- thority in this proceeding to a three-member -panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Toy Knitting Mills, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wald Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings labor practices within the meaning of Section 8(a)(1) and (3) of the Act. On January 29, 1976, Respondent, by coun- sel, duly filed an answer denying the allegations of unlaw- ful conduct alleged in the complaint. A hearing on the issues presented by the pleadings was held before me in Brooklyn, New York, on February 5, 6, and 9, 1976. A timely brief received from Respondent and General Counsel's oral argument on the record after the close of the receipt of evidence have been carefully consid- ered. Upon the entire record in this case and from my obser- vation of the-demeanor of the witnesses, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, at all times material herein, has been a corporation organized under and existing by virtue of the laws of the State of New York where at its principal office, factory, and place of business, 47 Hall Street, Brooklyn, New York, it has been, and is, engaged in the manufacture, sale, and distribution of unfinished knit goods and related products. In the year preceding the hearing, which period is representative of its annual operations generally, Re- spondent manufactured and distributed at its Hall Street place of business products valued in excess of $50,000, of which products valued in excess of $50,000 were furnished to, among others, Natex Mills, Inc., and other enterprises, each of which enterprises annually ships goods valued in excess of $50,000 directly out-of New York State. Respon- dent admits, -and I find, that it is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that Local 155, Knitgood Workers, International Ladies Garment Workers Union, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.' III. THE ALLEGED UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: Upon a charge filed on October 9, 1975, by Local 155, Knitgood Workers, International Ladies Garment Workers Union, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region. 29, Brooklyn, New York, issued a complaint and notice of hearing on November 28, 1975, against Tov Knitting Mills, Inc., hereinafter called Respon- dent, alleging that Respondent engaged in certain unfair A. Background The premises at 47 Hall Street, Brooklyn, New York, consist of an eight-story loft building which has one eleva- tor. Respondent occupies-the sixth and the eighth floors of the building. The sixth floor is devoted to the factory where the 30 knitting machines are operated by knitters. The eighth floor is used to store incoming yarn. Respondent's season in 1975 ran from July 15 to the end of October. 1 The allegations regarding Respondent's engaging in interstate com- merce, its status as an "employer," and the Union's status as a "labor orga- nization," all within the meaning of the Act, were the subject of stipulations arrived at the opening of the hearing These stipulations withdrew denials in Respondent's answer 226 NLRB No. 5 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During this time, Respondent employed 12 knitters; 6 knit- ters occupying a day shift and 6 knitters on the night shift. Each shift ran 12 hours, the night shift taking over the work of the day-shift employees at 6 p.m. and relinquishing the knitting machines to the day-shift employees at 6 a.m. Respondent's operation continued 7 days a week, around the clock. The president of Respondent corporation is Shlomo (Samuel) Mark. His wife is inactive in the daily operation of the business but has the power to sign checks and is an officer and director of the corporation. She and her hus- band each own 37-1/2 percent of Respondent's shares. Shlomo Mark's son, Harry Mark, a full-time mechanic em- ployed by Respondent to repair and maintain the 30 knit- ting machines, is a night student at the Fashion Institute of Technology in New York. He, unlike all other employees, is paid a weekly wage ($250 per week) and does not punch the timeclock. The balance of Respondent corporation's shares are owned by Harry Mark (15 percent) and by Har- ry Mark's sister (10 percent). The sister is not active in the operation of the business. Respondent also employs a full- time bookkeeper. The bookkeeper, Shlomo Mark, and Harry Mark report for work at or about 8:30 each morn- ing. The knitters are paid by the hour and punch the time- clock. The evidence is undisputed that the operation of the knitting machine requires the careful attention of the knit- ter. In case of the breaking of a needle on the machine, the knitted goods become imperfect and constitute a loss to Respondent. In case a knitter arrives late for his shift, the machine is either tended by another knitter arriving on time on the same shift or the machine is shut down. Any machine which is shut down, results in no production and therefore represents a loss to Respondent. It appears that with six knitters per shift, each knitter is ordinarily charged with the operation of five knitting machines. B. The Hiring of Santos Vasquez On Tuesday, September 23, 1975,2 Santos Vasquez was hired by Shlomo Mark as a knitter at an agreed wage of $2.50 per hour He was interviewed sometime after 10 a.m., commenced work sometime at or about 11:30 a.m., accord- ing to a written notation on his timecard, and ceased work at 6 p.m. Vasquez testified Sam Mark told him that the work hours were 6 a.m. to 6 p.m., "but if I wanted to, I could come in at 7:00 or either start at 8:00." Vasquez also testified that Sam Mark told him that Respondent's work- week was 7 days per week, 12 hours per day. Sam Mark absolutely denied telling Vasquez that he could report to work at any time other than 6 a.m. In fact, he testified that it was customary for the employees to arrive on each shift 10 to 15 minutes before the start of the shift and that this 10- to 15-minute period was used by the employees to change into work clothers and to take over the running of the knitting machines from employees who were departing on the prior shift. Vasquez testified and his timecard confirmed that on the 2 All dates herein are in 1975 unless other references are made next day, Wednesday, September 24, Vasquez punched in at 6 a.m. and punched out at 6 p.m. For Wednesday, Sep- tember 24, the actual timecard shows punching in at 6 a.m. and punching out at 6.04 p.m. Written notation on the card appears to show that Vasquez was paid for 12 hours of work. On the next day, Thursday, September 25, Vasquez testi- fied that he started at 7 a.m. and worked until 6 p m.; the timecard (Resp. Exh. I) shows that he punched in at 6:24 and punched out at 6:03. Penciled notations show that he was paid for 11-1/2 hours of work. Vasquez also testified that another knitter, one Gomez, sometimes arrived for work after Vasquez did and indeed, started at or about 8 a.m. Vasquez testified without contradiction that in spite of his punching in after 6 a.m on Thursday, September 25, neither Sam Mark nor Harry Mark nor anyone else men- tioned his lateness to him. Vasquez testified that at or about 10 a.m. on Thursday, September 25, he had a conversation with a knitter, Panta (Manta) Mahon, and at noon on the same day he had a conversation with another knitter, Gomez. In the conversa- tion with Panta Mahon, Vasquez told Mahon that "some kind of representation" was needed in the factory. The conversation with Mahon also included Vasquez' inquiring whether they should bring a union into the shop. Vasquez told Mahon that if the employees wanted authorization cards, he would bring in the authorization cards. Mahon, who did not testify at the hearing, told him that he was willing to sign the card but was afraid of losing his job. Mahon said this after Vasquez told him that there was no representation in the factory, there were too many ma- chines, too much work, not enough money, and too long a shift and no lunchtime. Vasquez told him that as long as everyone signed for the Union and the Union came in, the employees would not have to be afraid of anything. Mahon told Vasquez that he would speak to them about the matter later.3 According to Vasquez, at noon, Gomez approached him while they were working together at a knitting machine and Vasquez was replacing needles in one of the cylinders in the machine. Gomez started the conversation and told Vas- quez that he had been a member of the Union in another factory; and he would like to have a union in this factory. Vasquez told him that he could arrange the matter and would bring in the Union if the employees would sign au- thorization cards. Gomez told him that he would speak to Vasquez on the next day. After punching out at 6 p.m., Vasquez asked another employee, Sophia, if she would sign a union authorization card. She told him that she would have to speak to her husband, an employee on the night shift in Respondent's factory. On the next day, Friday, September 26, Vasquez did not go to work at all. Instead, he went to a nearby hospital in the morning to pick up some compensation forms. Vasquez never notified the Company that he would be out Friday and never telephoned the Company to notify them that he was out because he needed to go to the hospital to pick up the forms. He testified that he returned to his home from J Vasquez testified that he had been a member of Local 155 for 4 years but had never participated in the organization of an employer's employees prior to this time TOV KNITTING MILLS the hospital about 11 a.m. and waited until about 3 p.m. to receive union authorization cards from a Local 155 agent who, according to prior agreement, was to deliver them to Vasquez' home on that afternoon. Vasquez testified that he did not know the telephone number or even the name of his employer on Friday or at the time he was first hired. In any event, Vasquez remained at home on that Friday until about 5 p.m. when he went to the factory. Vasquez went upstairs and spoke with Harry Mark. He told him that he had not come to work because he had to go to the hospital to pick up forms. Harry Mark told Vasquez that it was "all right." 4 Vasquez testified that he then went down- stairs and saw Sam Mark. He told Sam Mark that he had not come into work because of going to the hospital and Sam Mark said "it was all right." Sam Mark, it is agreed, then asked Vasquez if he intended coming in Saturday and Vasquez said he was. Sam Mark then asked if Vasquez intended to come in Sunday and Vasquez said he did. Sam Mark then told him "if you don't come in on Sunday, don't bother coming in on Monday." 5 After Sam Mark left, Vasquez waited in the street with Local 155's organizational cards in his possession for the employees to emerge at the conclusion of the day shift. Vasquez testified without contradiction that he distributed approximately 9 or 1Q cards to employees on both shifts: those emerging from the day shift and those entering on the night shift. Vasquez said he gave a card to Panta Ma- hon and to four other fellow employees traveling in the same car. He told them to return the cards to him or to mail them to Local 155. The employees told them that they would fill out the cards and try to mail them. None of the employees returned a filled out card to Vasquez at that time. The actual distribution of cards was in the street, on the sidewalk, about 70 feet from the single entrance into the factory building. Vasquez then left the area before 7 p.m. Although his timecard for Saturday, September 27, shows that Vasquez punched in at 6:31 a.m. and punched out at 6, he testified that he punched in about 7 a.m. and that neither Sam Mark nor Harry Mark was there. Sam Mark does not work on Saturday of any week or any Jew- ish holidays because of his orthodoxy and sabbath obser- vance. He also testified that he and his son, Harry Mark, leave the premises well before sundown each Friday and do not work thereafter, on Friday or Saturday. He testified that Harry Mark works in the premises each Sunday. On 4 Harry Mark did not testify at the hearing Sam Mark testified that his son, Harry Mark, was in Israel studying knitting machine design and opera- tion The complaint herein, dated November 28, 1975, was not received by Respondent, according to the return receipts in evidence attached thereto, until December 4, 1975. In fact the complaint was not mailed until Decem- ber 3, 1975. In any case, Sam Mark testified that Harry Mark left for Israel on December 1, 1975. At no time did counsel for Respondent request a continuance of the hearing so that Harry Mark might testify in the matter, nor did he suggest any other device by which Harry Mark's testimony could be included in this record. 5 Sam Mark on cross-examination testified that he was very surprised that Vasquez didn't come to work on Friday and that when he saw him at or about 5.30 on that Friday evening he asked him if he were coming to work on Saturday and Sunday, "and I told him if he doesn 't come in [on] time, then he doesn't have to come in here at all ." There is no suggestion in another version of Sam Mark's testimony on this point or in Vasquez' testi- mony that the words on time were used. 13 Saturday, Panta Mahon assigned Vasquez to the machines he was to operate. On Sunday, September 28, although the timecard shows that Vasquez punched in at 6:34 a.m., he testified that he punched in at about 7:00 a.m. The card and his testimony show that he punched out at 6 p.m. Vasquez testified that on that Sunday he spoke to five or six employees about the authorization cards while they were at their machines. On Sunday, Mahon again assigned Vasquez the ma- chines to operate. Neither Harry Mark nor Sam Mark was there that day. Vasquez testified that the only person on Sunday who assigned work was Panta Mahon. He admit- ted that neither Sam Mark nor Harry Mark ever told him about the functions or authority of Panta Mahon. Vasquez also testified that aside from assigning machines to work on, Mahon would reassign him and tell him which ma- chines to run, and that only Harry Mark and Mahon had the practice of rotating employees around from machine to machine. On Sunday, Vasquez asked the employees if they were going to mail in the cards or give them to him. When he asked Mahon about signing or mailing the card, he told him that he would see Vasquez downstairs that evening. When he saw Mahon downstairs that evening, Mahon told him that the employees were going to try to mail the cards in. The following day, Monday, September 29, is the day on which the complaint alleges, and Vasquez testified, that he was discharged by Respondent. Thus Vasquez, with great vigor, assurance, and repetition testified that he was dis- charged on Monday, September 29. With equal assurance, confidence, and repetition, Respondent, by Sam Mark, tes- tified that the discharge occurred on the following day, Tuesday, September 30, rather than on Monday, Septem- ber 29. I find that no substantative issue is resolved by a resolution of the question of the date or day on which Re- spondent actually discharged Vasquez. I will, however, re- solve the question insofar as it might relate to the credibili- ty of Vasquez and to the truthfulness of the defense as interposed by and testified to by Sam Mark. The Date of the Discharge In the first place, the charge in this case, filed October 10, 1975, within 2 weeks of the alleged discharge, although filed by an agent of the Union rather than by Vasquez himself, alleges that the discharge took place "on or about September 30, 1975." The timecards in evidence, particu- larly the card covering the period of Saturday, September 27 through Tuesday, September 30, show a notation that the card was punched in on Monday at 6:45 a.m. There is a written notation rather than a punchout showing that the quitting time was 6 p.m.' The same timecard (Resp. Exh. 2) shows a timeclock "punch in" at 7 a.m. on Tuesday and a machine punchout at 10:50 a.m. on September 30. It is 6 There was no explanation by any witness as to why there was a written notation regarding the quitting time on Monday rather than a "punched" time notation. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undisputed that Sam Mark fired Vasquez at or about 10 a.m.7 Vasquez gave vacillating testimony with regard to the paychecks he received at the time of his being fired. The paychecks in evidence (Resp. Exh. 3 and 4) contain dates of September 26 and October 3. These dates indicate the conclusion of payroll periods rather than the dates on which Vasquez received the checks. However, Vasquez tes- tified at one point that he deposited the checks and cashed them on the day he was fired and received them. Thereaf- ter he also testified that he might have deposited them and cashed them on the day after he received them from Sam Mark. The checks both bear the endorsement date of Sep- tember 30, 1975. Sam Mark testified, and dollar computa- tions on the face of the checks in conjunction with the timecards indicate that Vasquez was paid through 10:50 a.m., Tuesday, September 30, 1975. In spite of extensive examination and cross-examination, no motive appeared on this record concerning why Vas- quez was so positive and insistent that the discharge took place on Monday rather than on Tuesday. In any event, however, I find on the basis of the above evidence that Vasquez was mistaken; that the records and Sam Mark's testimony indicate that Vasquez was discharged on Tues- day, September 30, rather than on Monday, September 29. On my observation of Sam Mark and on the basis of ordi- nary experience, Respondent would not have paid Vasquez for working Tuesday if he did not work that day. As above noted, it is not clear why Vasquez was so insistent that he was discharged on Monday. Whether this was an honest mistake by Vasquez or `he had some other purpose is un- known. In any case, I find that he was discharged on Tues- day, September 30, 1975. As above noted, the timecard for Monday, September 29, 1975, shows that Vasquez punched in at 6:45 a.m. and punched out at 6 p.m. The timecard for the next day, Tuesday, September 30, shows that Vasquez punched in at 7 a.m. and there was a machine purichout at 10:50 a.m. Vasquez testified that he did not go to work on the day he was fired until about 8 a.m. He testified that at or about 11 a.m., Sam Mark came over to him and told him: "Get your clothes, you're getting out of here," and that Sam Mark then took him into the office and told him he would be paid in full. Vasquez told Mark that he would have to get his clothes, but Mark locked the door of the office and said: "No, no, no, you'll have to get them when your pay is ready." Mark then ac- companied Vasquez to where Vasquez kept his clothes, then came back to the office and gave him the paychecks and then escorted Vasquez to the elevator. When Mark took Vasquez back to the office after Vasquez got his clothes, he told Vasquez "you can't be coming in here all hours of the day." Vasquez answered "from what you told me, I thought you said to me I could come in either from 8 to 6 or from 7 to 6." Sam Mark then reminded Vasquez that he had been absent on Friday. Vasquez told him that ' The evidence shows that Respondent employed a full-time bookkeeper The bookkeeper was never called as a witness to verify either the time and date of the discharge or whether any conversation took place in the presence of the bookkeeper which might shed light on the reasons for the termina- tion he had to go to the hospital and told Mark that, in fact, Vasquez had spoken to Mark about the matter and had also spoken to Harry Mark and both of them had told him that it was "all right." Sam Mark answered: "No, no, no. That's not good. You took the day off. Get out, get out." It was at this point that Sam Mark escorted him to the eleva- tor. In this terminal conversation, Vasquez also told Sam Mark that there were other employees who started at 8 o'clock or 7 o'clock and Sam Mark told him that that was none of his business. At this point, Vasquez went down the elevator and left the building. He did not return that day. On the next day, Wednesday, October 1, Vasquez returned to the plant in the late morning in order to get a written note from Respondent regarding his unemployment status. He went upstairs and spoke to Sam Mark in the plant. Present at the conversation were a truckdriver and a helper who were otherwise not identified. It is agreed that Vas- quez asked Sam Mark for the unemployment slip and that Sam Mark told him not to bother about the slip, that Sam Mark would telephone New York State Unemployment and acknowledge that Respondent had laid off Vasquez. At that time, Sam Mark then escorted Vasquez to the ele- vator and got into the elevator along with Vasquez, the elevator operator, the truckdriver, the helper, and two of Respondent's employees. The elevator went' upstairs. Ac- cording to Vasquez, but denied by Sam Mark, Sam Mark told him in the presence of these four others-and the eleva- tor operator 8 that: "You didn't succeed in bringing the Union into my shop . . . these are the two fellows you want to speak to (pointing to the two fellow employees.)" The truckdriver and the helper were not employees of Re- spondent. The elevator proceeded to the eighth floor where Sam Mark got off. The elevator then went downstairs with the remaining passengers. The two employees, the truck- driver, and the helper were in the elevator for the purpose of descending to the loading dock to pick up yarn which was being delivered by the truckdriver and helper to Re- spondent. Vasquez got off the elevator and sat down on a bench on the loading platform with the elevator operator, George, subsequently identified as George Henderson. Vasquez testified, and Henderson, called as a witness by Respondent, corroborated, that after a short time George Henderson went up in the elevator and came down with Harry Mark. Harry Mark went over and spoke to the two Respondent employees unloading yarn from, the truck and then came over to Vasquez who was sitting on the bench. According to Vasquez, Harry Mark said to him: "The rea- son you were fired was because you were trying to bring the Union in the shop, and if I catch you around here again, I'm going to bash your head in." Vasquez said that Harry Mark then cursed him out and walked away. Vas- quez stated that present at the conversation were the two fellow employees, the truckdriver and helper, and George Henderson. Vasquez then left and had no further contact with Respondent. The evidence shows that he subsequently returned, a day or two later, and spoke with George Hen- derson. According to Henderson's testimony, he told Hen- derson that he had been fired for union activities. 8 The elevator operator denied having been present at any such conversa- tion and did not remember being in the elevator with these persons TOV KNITTING MILLS Testimony of George Henderson George Henderson, for 10 years an elevator operator at 47 Hall Street, was described by Vasquez as an "acquain- tance." Henderson and Vasquez had known each other previously because Vasquez had worked in -the neighbor- hood and Henderson had seen him around . In fact, it was Henderson who told Vasquez of the possibility of Vasquez getting employment from Respondent prior to Vasquez' being hired on September 23. Vasquez denied that Hender- son was his "friend," and subsequent to Henderson's testi- mony, Vasquez said most positively that he rejected Henderson's testimony as untruthful and certainly Hender- son was not his "friend." Henderson, called as a witness by Respondent, testified that he knew that Respondent was one of the tenants in the building ; knew Sam Mark and Harry Mark , his son; de- nied recalling having been present in the elevator when Sam Mark allegedly spoke with Vasquez , the two employ- ees, the truckdriver, and helper ; and recalled that several days after Harry Mark spoke to Vasquez, Vasquez re- turned and told Henderson that he had been fired because he was trying to get the Union in the place. What Henderson did recall of the conversation between Harry Mark and Vasquez was that he (Henderson) was on the bench out on the loading platform about noon on an unknown date and Harry Mark came over to Vasquez and told him that he was "making trouble" and so "he told him to leave." 9 Henderson testified that Harry Mark then told Vasquez to "get up and take a walk." Someone rang for the elevator and Henderson had to go up in the elevator. He said that he thought they continued to talk when Hender- son was 'leaving for the elevator. Henderson also testified that he knew that Sam Mark was the boss on the sixth and eighth floors; that Harry Mark was his son; and that Harry Mark, a mechanic, "runs the machines with his father." Henderson described the fact that on "hundreds of occasions" he would stop his elevator on the sixth floor in order to get warm. On all those occasions he saw Harry Mark working on the ma- chines, like a "foreman." He testified that he saw Harry Mark on those occasions : "He tells the guys what to do." He testified that the employees did not refuse to do what Harry Mark instructed them to do and in fact they did what he told them to do. The Testimony of Shlomo (Sam) Mark The only other witness called by Respondent was its president, Sam Mark . 'Mark testified that he hired Vasquez as a knitter and confirmed that he told Vasquez to be sure to come to work on the Saturday and Sunday following Vasquez' failure to work on Friday , September 26. He also testified that Respondent's payday is Friday of each week; the payroll period runs Friday to Thursday; and payment is made each Friday, for the payroll period in the preced- ing week. Sam Mark thus stated that the Company holds back a week's pay at each payday and that the checks are 9 On cross-examination, Henderson described Harry Mark's statement as having been : "You're coming around making trouble." 15 distributed on Thursday night to the night shift and Friday morning to the day shift. He testified that he and his book- keeper go through the timecards for payroll purposes be- ginning Monday or Tuesday of each week so that the pay- roll checks can be made out by Thursday of the week in which payment is made, covering the prior payroll week. Sam Mark testified that he fired Vasquez because of Vas- quezcontinuous lateness which interfered with produc- tion.:, Sam Mark testified that on Monday, September 29, when he and his bookkeeper commenced reviewing the payroll cards to determine the number of hours each em- ployee worked so as to compute the payroll, the bookkeep- er showed him that Vasquez had come in late. Thereafter in his testimony, Sam Mark testified that it was not on Monday that the bookkeeper showed him Vasquez' late- ness but it was actually on the next day, Tuesday, Septem- ber 30, that this occurred. Although Sam Mark denied locking the door, the substance of his testimony regarding the terminal conversation with Vasquez is about the same. He testified that he could not tolerate Vasquez' continued lateness which was causing him production losses and fired him. In addition, however, Sam Mark testified that as he was escorting Vasquez to the elevator on Tuesday, Septem- ber 30, when he discharged him, Vasquez "threatened" him by saying "watch out when you're alone, I have friends; you will hear from me." Mark then said he told his son Harry of this statement and Harry Mark was very angry. Vasquez denied the threat. In subsequent examination Sam Mark testified that what happened was that his bookkeeper, on Monday, September 29, called to his attention Vasquez' lateness commencing with the first timecard (Resp. -Exh. 1) which covered only 3 workdays : ll the first workday of September 23, which was the Tuesday hiring date; the 6 a.m. to 6:04 p.m. workday of Wednesday, September 24; and the 6:24 a.m. to 6:03 p.m. lateness of Thursday, September 25. Sam Mark testi- fied that he then was put on notice of Vasquez' lateness, and was "watching him." He testified that he did not call for or inspect the timecard which Vasquez had just punched in that Monday morning because he was "too busy." He testified, however, that on inspecting the first card, he saw that Vasquez was late twice in the week end- ing Friday, September 26. His testimony was incorrect since the card shows only one such lateness. He then testi- fied that he looked at the second card on Tuesday morning and saw that Vasquez had been late Saturday, Sunday, Monday, and that morning, Tuesday. He testified that when he saw the card on Tuesday he became very angry because of the loss of production, on three machines. Sam Mark said there was a strict company policy that if an employee is late three times he would be fired. He testi- fied that although he,saw on the first week's card on Mon- day, that Vasquez had been late twice (no such statement 10 Although Sam Mark testified that Respondent keeps production rec- ords, these records were not produced to show Vasquez' actual interference with production . This became arguably significant because Vasquez testi- fied that when a knitter is not present , other knitters on the shift tend the knitting machines in the absence of the knitter and thus there is "downtime" for the machine. Ultimately, Sam Mark testified that he did not know whether Vasquez' continued lateness caused actual loss of production. 11 As above noted, new timecards are issued each Friday. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appears on the cards that Vasquez was late twice), he failed to call this to Vasquez' attention, that one more lateness would require that Vasquez be fired. The reason he gave for not warning Vasquez (after Vasquez had been late twice) that a-third lateness would result in discharge was that he had other business obligations and that he could not "look for every small thing." Sam Mark also stated that, having been advised by the bookkeeper that Vasquez had been late in the previous week, he did not ask for the new, Friday, timecard which would show Vasquez' atten- dance over the weekend. Thus Sam Mark testified that having seen the lateness on the old timecard on Monday, he wanted to see what happened in the second week's card and waited until Tuesday to check the card. On cross-examination, Sam Mark testified that although he was aware on Monday, that Vasquez was late, he did not see fit to look at the current week's card on Monday, nor did he warn Vasquez of the three-time-late policy re- garding automatic discharge.12 Vasquez had testified that he had seen a knitter, Gomez, punch in after he had and Vasquez believed that this was in conformity with the policy which Sam Mark had told Vas- quez; i.e., that although there was a 12-hour shift, Vasquez could come in at 7 or & a.m. Sam Mark testified that Go- mez was a helper rather than a knitter. The evidence showed, however, that Gomez performed substantially the same activities as Vasquez. Gomez tended the knitting ma- chines and, like Vasquez, went up to get yarn for the ma- chines. Both of them replaced broken needles in the ma- chines. Although Sam Mark testified that Gomez also swept the floor and took out garbage,, the evidence on this record indicates that Gomez was paid $3 per hour (thus more than Vasquez' wage) and came in about 7:30 a.m.13 No timecards or other records were submitted regarding Gomez. Sam Mark testified that he permitted Gomez to come in at 7:30 because it saved him money. Contentions of the Parties and Analysis General Counsel contends, and Respondent denies, that Panta Mahon is an agent of Respondent and that his knowledge of Vasquez' union activities in distibuting the cards should be ascribed by such agency to Respondent. 12 With regard to the question of what Sam Mark's actual warning to Vasquez was on Fnday after Vasquez failed to come into work when Sam Mark saw him in the evening on Friday, the transcript shows the following Q. Do you remember when it was, what time) A. It was about 5.30 in the afternoon. Q. Did you say anything to him? A. Yes, I told him, and I asked him if he is coming in to work Q. What do you mean by are you coming in to work? Can you specify? A. He's coming tomorrow and Sunday, and I told him if he doesn't come in time, then he doesn't have to come here at all [sic] However, thereafter, the question was asked- Q. Did you tell him if you don't come in on time Saturday and Sunday, or did you tell him if you don't come in Saturday and Sunday9 A. I didn't put on time, because I didn't know if he'd come on time or doesn't come on tune. Monday I saw the card, he doesn't come on time, I was aware he didn't come in Friday. [sic] 13 In September 1975, Gomez' hourly rate was raised to $3.50 per hour General Counsel does not take the position that Mahon is a supervisor within the meaning of Section 2(11) of the Act. On the other hand, General Counsel alleges that Har- ry Mark is such a statutory supervisor.14 Panta Mahon: The evidence shows that Panta Mahon is the third highest paid employee of Respondent, receiving $4.25 an hour.15 He is a full-time knitter, who is a trusted employee. The evidence shows that on Saturdays neither Harry Mark nor Sam Mark is present in the factory. Sam Mark testified that when any problem arises with the knit- ters, he is in touch with the knitter by telephone because he telephones in many times per day. Sam Mark is absent from the factory as a salesman during most of the day. Panta Mahon punches a timecard like all other knitters. Although the evidence shows that he does assign work on the weekends, there is no indication that he is an agent of Respondent for the purpose of any relations with the em- ployees in any way. Certainly there is no express or implied agency by which Sam Mark or even Harry Mark or any other supervisor or officer of the Company gave Mahon authority to deal with employees with regard to their labor relations or employment. The most that can be said of the evidence in this record is that on the weekends he assigns work. The facts of this case, as will be seen hereafter, dem- onstrate that those assignments appear to originate from Harry Mark or Sam Mark and are not the subject of inde- pendent action or discretion by Mahon. In view of General Counsel's concession that Mahon is not a supervisor, I can- not conclude on the basis of the evidence before me that he is an agent for the purpose of receiving knowledge of and binding Respondent with regard to Vasquez' union activi- ties. Similarly no mantle of agency has been placed around Mahon's shoulders by which some apparent authority to act for Respondent was displayed. Under all the circum- stances in this case, Mahon is not an agent of Respondent for the purpose of receiving knowledge of Vasquez' union activity, binding Respondent thereby. Harry Mark: Vasquez testified that Harry Mark is a' "su- pervisor" who gives out work and takes care of the ma- chines. He also testified that Harry Mark assigns the ma- chines to knitters for work and that when the job is completed he rotates or reassigns the knitters to different sets of machines. The testimony shows that at the time of such assignments, Sam Mark is not present. Vasquez also testified that on Friday, September 26, Harry Mark told him which machines he should run the next day, Saturday, and what the job was on those machines. The assignment of the machines on Friday took place near the machines and Harry Mark told Vasquez that Panta Mahon, who was standing nearby, would assign the machines the following day. The following day Mahon did assign the machines. Sam Mark was asked whether he knew that Harry Mark gave instructions to other employees. His response was: "Usually I'm just giving instructions. ^ If some problem with 14 Neither the agency of Mahon nor the alleged supervisory status of Harry Mark was pleaded in the complaint . On the other hand, Respondent, faced with these assertions at the opening of the hearing, did not plead surprise, did not ask for postponement of the hearing, and displayed a will- ingness to meet the allegations 5 Sam Mark testified without contradiction that another knitter, Joseph Lukic, was employed for 5-1/2 years, whereas Panta Mahon was employed only 5 years. Lukic is paid $5 per hour, Mahon, $4.25 TOV KNITTING MILLS a machine, then he's giving the instructions. He can run the machines or not run the machines. This I don't have to tell him because he knows." On the other hand, Vasquez testi- fied without contradiction that he saw very heated argu- ments between Harry Mark and Sam Mark conducted in a foreign language. At the end of the argument, with regard to the fixing or use of the machine, Harry Mark would prevail and Sam Mark would walk away. The evidence shows that Harry Mark is the son of Sam Mark; that according to Sam Mark there are no supervi- sors in the plant when Sam Mark is out selling in New York City; any problems relating to the mechanical opera- tion of the machinery are solved by Harry Mark; that any other type of production problem is solved via the tele- phone by Sam Mark. The evidence shows that Harry Mark owns 15 percent of the outstanding stock in the Respondent's corporation, is paid $250 a week, and does not punch a timeclock. The undisputed evidence also shows that he assigns and reas- signs work to knitters directly or through Panta Mahon. Most of the Board precedents regarding the status of sons of corporate officers relate to the question of whether the son is a supervisor or, in any case, an agent of a respon- dent in the sense that his statements or actions bind the master in a master-servant relationship for the purposes of deciding alleged violations of Section 8(a)(1) of the Act, Whiting Corporation, 188 NLRB 500 (1971); Federal Pre- scription Service, Inc., 203 NLRB 975, 986 (1973); Rubin Brown d/b/a Ace Wholesale Electrical Supply Co., 133 NLRB 480, 500 (1961). Respondent cites Page Boy Compa- ny, Inc., 107 NLRB 126 (1953) and Moe Scharfstein & Phil Scharfstein, d/bla Steinway Clothing Company, 103 NLRB 1314 (1953), in both of which cases sons or relatives were found not to be supervisors or agents sufficient to bind the respondent. To be sure the problems of supervisor status and of agency have been, and continue to be, vexing prob- lems to Administrative Law Judges and the Board. See Board Fora Inc., 222 NLRB 922 (1976). The difficulty of the problem is present in this case notwithstanding that the cases cited by Respondent are clearly distinguishable. For in Page Boy Co., supra, the close relative, unlike the instant case, had no authority whatsoever to assign work. In Stein- way Clothing Co., supra, the close relative worked short and irregular hours and unlike the present case was not regard- ed by employees as a supervisor. Moreover, he was not so closely identified with management that his conduct could be imputed to management. See Trimfit of California, Inc., 101 NLRB 706 (1952), enfd. 211 F.2d'206 (C.A. 9, 1954). As far back as 1940, the courts and the Board were wres- tling with the problem of agency-where an employee, not a supervisor, was believed in some way to act on behalf of the employer. Thus, verbal formulas were devised. The Su- preme Court in International Association of Machinists; Tool and Die Makers Lodge No. 35 [Serrick Corp.] v. N.L.R.B., 311 U.S. 72, 80-81 (1940), spoke about persons in a "strategic position to translate (to employees) the poli- cies and desires of management " In Trimfit of California, supra, the Board spoke about an employee "closely identi- fied with management" so that his conduct should be im- puted to respondent. More recently, the Board has wrestled with the problem in Board Ford, supra. 17 As in the above cases, I find it unnecessary to specifical- ly decide whether Harry Mark comes within the definition of "supervisor" within the meaning of Section 2(11) of the Act, notwithstanding that, on this record, it is uncontested that he had the apparent power to assign work and to ro- tate assignments among employees without specific author- ity from acknowledged supervisors. It is not merely, on this record, that the new employee, Vasquez, believed, perhaps erroneously, that Harry Mark had this power even though it was clear that Vasquez knew that Harry Mark was Sam Mark's son and that Sam Mark was the president of the Company. Here, we have Harry Mark assigning to Panta Mahon the responsibility of assigning machines, i.e., work, that Vasquez was supposed to do over the Saturday and Sunday weekend. In fact Panta Mahon did assign ma- chines to Vasquez. With no other supervisor present over the weekend, Harry Mark, through and with Panta Mahon, assigning work to Vasquez to be performed over the week- end, it cannot be said that Respondent did not place Harry Mark in a "strategic position" to translate to employees the "policies and desires of management." JAM, Lodge No. 35 [Serrick Corp.] v. N.L.R.B., supra. I regard Sam Mark's testimony as calculatingly evasive on the question of whether he knew that his son, Harry Mark, was assigning work to the employees. Thus, Sam Mark said in response to whether he knew that his son gave instructions to em- ployees: "Usually I give just instructions." Taken as a whole therefore the record shows Harry Mark is paid $250 a week, and is a full-time, salaried per- son, not an hourly worker; is a 15-percent stockowner; is the son of the president and chief stockholder of the Com- pany; has the power to effectively assign and reassign em- ployees to jobs; there is no other supervisor present in the factory among the six knitters and bookkeeper in view of the daily absence of Sam Mark who is off in New York selling; and, as in Board Ford, Inc., 222 NLRB 922 (1976), I find that the question of imputation of knowledge to Re- spondent through Harry Mark should be made from a pre- ponderance of all the relevant evidence in the record. Thus, even in view of the extremely small shop which constitutes Respondent's business but in the absence of contempora- neous demonstrations of unfair labor practices through threats or interrogation, I am willing to apply the precedent of or draw the inference of knowledge of union activities used in cases following the rule of Wiese Plow Welding Co., Inc., 123 NLRB 616, 618 (1959), which precedent was fol- lowed in Board Foray supra. Rather, I find that, under all the circumstances above numerated, whether Harry Mark possesses the indicia of the statutory supervisor because he has the power to assign work (especiallybecause there is no management representative present other than himself) or whether he is viewed as an "agent" of Respondent either clothed with the power to run the factory in his father's absence or with the power to translate management's de- sires for production into direct orders, and is thus a "strate- gic position" agent, I find that this conduct binds Respon- dent for purposes of this case as hereinafter noted. 1. The testimony of Santos Vasquez: The testimony of Santos viewing his demeanor during the hearing, demon- strated a surface confidence which was not borne out by the facts. Thus, I found Vasquez' insistence on the fact that 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was discharged on Monday rather than Tuesday to be unsettling with regard to his credibility. Moreover, I find no support in the testimony of George Henderson or else- where that, while nding in the elevator with Henderson, the truckdriver, helper, two employees, and Vasquez, Sam Mark mentioned the Union. Although Henderson is an employee of the real estate company whose principal ten- ant in the premises at 47 Hall Street appears to be Respon- dent, and Henderson might well have trimmed his testimo- nial sails in testifying against the interest of a tenant of his employer, I observe nevertheless that Henderson's testimo- ny with regard to the conversation in the elevator ride did not support Vasquez. Lastly, I note that Vasquez' version of his conversation with Harry Mark on the day after the discharge would have me believe that Harry Mark, bla- tantly and with no hesitation whatsoever, told this alleged discriminatee that the reason for his being discharged was his attempt to bring in a union to represent the employees of Respondent. On this ground alone, I would tend to dis- credit Vasquez and find that no such statement was made by Harry Mark. I have found above that Harry Mark's statement, wheth- er viewed as the statement of an agent or a supervisor, binds Respondent. In any event Harry Mark did not testify at the hearing and I must conclude that although he was in Israel at the time, he nevertheless was under the control of Respondent at least to the degree of causing Respondent to request that the hearing be postponed until such, reason- able time as Harry Mark's testimony might be included in the record, either by deposition or otherwise. No such ap- plication for continuance was made. While I believe that Harry Mark did not leave this country because of the pen- dency of the litigation (in view of the fact that the only record evidence is that he left on December 1, 1975, and the complaint was not issued until December 4, 1975), and notwithstanding that the charge was pending since October 1975, I draw no adverse inference from the fact, alone, that Harry Mark was not called as a witness. It appears to me, therefore, that with regard to Vasquez' conversations with Harry, Mark, the record necessarily stands unrefuted. While I am loathe, as above noted, to credit the testimony of Vasquez, and while I recognize the rule that, on occa- sion, even the unrefuted testimony of a witness need not necessarily be credited, I do not believe that either on de- meanor grounds above or because Vasquez' testimony is intrinsically unbelievable that I should discredit his version of the testimony'with regard to his conversation with Harry Mark on the day after Vasquez' discharge. In view of my unwillingness to discredit this version, I necessarily credit in fact that Harry Mark told him that he was causing trou- ble or bringing trouble and that he should "take a walk." On its face, with Harry Mark telling Vasquez that he was "bringing trouble" or "causing trouble," such a statement, it seems to me, is wholly inconsistent with a suggestion that Vasquez was discharged,for lateness. The only consistency which iti serves is that Sam Mark testified that he told his son of a threat that Vasquez made on the way down in the elevator at the time he fired Vasquez. The issue that is left for me to decide is whether Sam Mark actually did tell his son of a threat and whether the son then used the word "troublemaker" or a similar expression in telling Vasquez to "take a walk." Again, however, Harry Mark was not present in the hearing room to testify with regard to the conversation between himself and Vasquez. In a choice be- tween the direct testimony of Vasquez on one hand and the inference that Sam Mark's testimony would have me draw, i.e., that the word "troublemaker" or "causing trouble" was an expression directed against Vasquez because of Harry Mark's anger at the threat to his father, I refuse to counter- balance the direct testimony with the inference. I therefore find that Harry Mark did not speak to Vasquez with regard to any threat that Vasquez made to Sam Mark. The testimony of George Henderson is not entirely in- structive. As to whether the conversation that he overheard at the loading dock between Vasquez and Harry Mark was conducted by Harry Mark in a loud, strident voice, George Henderson's testimony was inconclusive. With regard ^ to what else might have been said by Harry Mark to Vasquez, George Henderson testified that all he heard was an accu- sation by Harry Mark that Vasquez was bringing-"trouble" and that Vasquez should "take a walk." Henderson testi- fied that, at that point he left the area because someone rang for the elevator. He also testified that he walked away toward the luncheonette. I regard the two bits-of testimony as excuses to not reveal further testimony in view of the fact that George Henderson testified that he thought that there was more to the conversation between Harry Mark and Vasquez at the time George Henderson walked away. I infer that Henderson's testimony was less than entirely accurate or truthful because he is employed by the real estate operator of the loft building in which Respondent is the principal tenant. In any case, since I have been,required to deal in infer- ences, I do not see how the use of the words "causing trouble" can reasonably be used against a person who had dust threatened the physical safety of one's father. 2.The testimony of Shlomo (Sarni) Mark: In evaluating the testimony and the credibility of Santos Vasquez, I also be- lieve it necessary, in this case, tot measure such credibility along with the credibility of Respondent's only witness and chief officer. I was more thoroughly dissatisfied with the credibility of Shlomo Mark than'I was with Vasquez'. I was dissatisfied with Sam Mark's testimony with re- gard to the chronology of when he first saw the latenesses on Vasquez' timecards. I was also dissatisfied with his ex- planation with regard to why he had not warned Vasquez that one more lateness would cause discharge under 'the iron rule in the shop that three; latenesses automatically cause discharge. Thus it is clear that Vasquez was on time in the morning only on the first day of his employment, Wednesday, Sep- tember 24. He was late on the very next day, Thursday, and was completely absent on Friday, September 25. This was known to Sam Mark. The uncontradicted testimony is that Sam Mark and Harry Markl excused Vasquez' Friday absence on the grounds that Vasquez was in the hospital. If Sam Mark can be credited, he was very angry on Friday night because Vasquez had failed to make any contact whatsoever with Respondent on Friday to tell Respondent that he would not be working at all that day. On the very TOV KNITTING MILLS 19 next day that Sam Mark was present in Respondent's premises, Monday, September 29, the bookkeeper, early in the morning, according to one version of Mark's testimony, showed him the timecard from the previous week which showed that Vasquez had been late on the second day of his employment. Vasquez' absence on Friday was the last notation on the timecard. This allegedly did not excite Shlomo Mark's interest enough to go to the time rack to check to see if this employee, dust hired, already late, al- ready absent on the third day of his employment, had even come in to report for work on Saturday and Sunday as he had been directed. Moreover, Shlomo Mark did not have enough interest to see whether this employee had been late on Saturday and Sunday, which would have caused him to be late 3 out of 4 days and missing on the fourth day. Shlomo Mark's testimony was that he was too busy with other things. Yet, Shlomo Mark, in addition, failed to tell the employee that the employee was treading a dangerous line since one more lateness would cause his discharge. At this time, of course, Vasquez had been late on Thursday, Saturday, and Sunday and had already gone over the line. Shlomo Mark testified that he had other business to do and did not have time "just to look for every small thing." It is this type of testimony that causes me to look with great suspicion upon the motive of Respondent in discharging Vasquez for continued lateness. In addition, although Shlomo Mark at one time testified that the bookkeeper showed him both cards on Monday, September 29, which would have necessarily shown even further lateness on the part of Vasquez and would have caused, on Shlomo Mark's testimony, the discharge to have taken place on Monday,' later on, Shlomo Mark changed his tetimony so that he did not see the second timecard until Tuesday, the very day of the discharge. I was also struck with the testimony that Shlomo Mark gave wherein he said that lateness automatically caused lack of production and that his production records were available to show that. Later testimony by Shlomo Mark indicated that it did not necessarily follow that because an employee was late, the lateness caused a loss of production. In addition, there is the unrefuted testimony of Vasquez that during a 2-day period, he saw a knitter care for 10 machines at one time. Lastly I noted that Sam Mark appeared to change his testimony as to whether, on Friday, September 26, in addi- tion to admonishing Vasquez to come in on Saturday and Sunday, he also told him to come in on time on Saturday and Sunday. As above noted, an early version of Mark's testimony included the use of those words whereas thereaf- ter he testified that he just told Vasquez to come in on Saturday and Sunday. Under all the facts and circumstances of this case, in- cluding my conclusion that Vasquez, while by far not a model employee, was not discharged solely because of any rule relating to continued lateness and was not discharged because of continued lateness, I conclude that he was dis- charged at least, in part, for reasons other than that. Al- though the matter is hardly free from doubt, I credit the testimony of Vasquez with regard to his conversation with Harry Mark on the day following his discharge. I have noted that Henderson was not a full and free witness per- haps because of his interest in keeping his job or at least in his belief that his job would be protected by not testifying fully with regard to Harry Mark. I am compelled, however, not to credit Vasquez' testimo- ny that on the day after the discharge, Harry Mark told him that he had been fired because he attempted to bring the Union in, and that, if he was seen around there again, Harry Mark would bash his head in. A statement of this type by Harry Mark, although unrefuted, flies in the face of otherwise reasonable conduct. I nevertheless credit Vas- quez, at least, in part, because I believe that George Henderson's testimony, in large part, is corroborative of Santos Vasquez' and indicates that one of the reasons for Vasquez being fired was that he was "causing trouble"; i.e., distributing union membership cards. The word "trouble- maker" is seen in Board cases, e.g., Princeton Sportswear Corporation of Pennsylvania, 220 NLRB 1345 (1975), often denotes a troublemaker for some purpose proscribed by the statute; i.e., one who is bringing in a labor organization to represent employees of the Respondent; but see Mush- room Transportation Company, Inc v. N.L.R.B., 330 F.2d 683 (C.A. 3, 1964). In the instant case, there is no testimony refuting Vasquez' testimony that he distributed 9 cards among approximately 12 unit employees within a few days prior to the discharge for lateness. There remains the question of whether Shlomo Mark gave Vasquez permission to arrive at the Respondent's premises at 7 or 8 a in. rather than at 6 a.m. I do not credit Santos Vasquez in this regard. I credit Shlomo Mark that he told Vasquez that the working hours were from 6 a.m. to 6 p in. I note that Santos Vasquez' testimony vacillated as to whether the workday was a 12-hour workday or wheth- er, in fact, he was told that he had to work 12 hours. I also find it difficult to believe that even assuming that Shlomo Mark told him that he didn't have to arrive at 6 a.m., he told Vasquez that he could arrive for work at 7 or 8 a.m. It is common experience that factories must have employees who arrive at a particular time rather than a variable time. I therefore do not credit Vasquez on this matter. The fact that Gomez, the knitter helper, arrived each day at 7:30 indicates that he had a set time to arrive and I credit Shlo- mo Mark's testimony that he gave him a different time to come in, in order to save money and also because Gomez acted as a helper, a sweeper, and a garbageman . I believe, on this record, that Vasquez seized upon the fact that Go- mez came in later than himself to estabish an alibi whereby he had been granted permission by Shlomo Mark to actu- ally come in late. I find that no such permission was grant- ed. It should also be noted that Shlomo Mark continuously referred to the fact that all of his employees came in on time, and that any lateness was intolerable. Even coming in on time was intolerable in view of the Company's policies to require employees to arrive 10 to 15 minutes beforehand in order to actually change their clothes and take over the knitting machines when the previous shift ceased work. In spite of Sam Mark's testimony, and in spite of having the timecards in his possession, not a single timecard was in- troduced into evidence to show the regularity of punching in and punching out of all the other knitters. I regard this 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a circumstance not favorable to Respondent. This does not mean that Respondent gave Santos Vasquez permis- sion to start at variable hours. But it does not show, on the other hand, that all of the knitters actually punched in and out on time and that Santos Vasquez was the only delin- quent. I conclude, from all the circumstances, especially my conclusion that Shlomo Mark seized on Vasquez' contin- ued lateness as a convenient pretext to rid himself of an employee, a new bad apple who was attempting to bring the Union in, that Vasquez was discharged for distributing union membership cards. I ascribe this motivation to Shlo- mo Mark by virtue of the statement of his son, his agent, on the day after the discharge. I conclude that Respondent discharged Vasquez in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section III, above, occurring in connection with its opera- tions set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist from engaging in such unfair labor practices and take cer- tain affirmative action provided in the recommended Or- der below, designed to effectuate the policies of the Act. Among these remedies, I shall recommend that Respon- dent offer immediate and full reinstatement to Santos Vas- quez to his former position, without prejudice to his senior- ity and other rights, privileges, and working conditions, dismissing if necessary anyone hired in such job, and to make him whole for any loss of earnings or other monetary loss he may have suffered as a result of the discrimination against him, less interim earnings, if any, plus interest at 6 percent per annum. Any backpay is to be determined on a quarterly basis as set forth in F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and upon the entire record within this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer 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. Respondent , by discharging and failing to reinstate Santos Vasquez because of his activities on behalf of the Union, discriminated against him , thereby discouraging membership therein in violation of Section 8(a)(1) and (3) of the Act. 4. Respondent's acts and conduct, described above in paragraph 3 hereof, are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 The Respondent, Tov Knitting Mills, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 155, Knitgood Workers International Ladies Garment Workers Union, AFL-CIO, or in any other labor organization, by the dis- criminatory discharge of any of its employees, or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condi- tion of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights pro- tected by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Santos Vasquez immediate and full reinstate- ment to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of earnings he may have suffered in conse- quence of his discriminatory discharge, in the manner set forth in the Remedy section herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay and other sums due under the terms of this Order. (c) Post at its Brooklyn, New York, factory copies of the attached notice marked "Appendix." 11 Copies of said no- tice on forms provided by the Regional Director for Re- gion 29, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, 16 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 17 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" TOV KNITTING MILLS 21 including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives you, as an em- ployee certain rights, including the right to engage in self- organization, and to form, join, help, or be helped by unions. Accordingly, we assure you that: WE WILL respect your above -stated rights under the National Labor Relations Act. WE WILL NOT dismiss any employee or in any other manner discriminate against any employee with re- gard to hire, tenure, or terms or conditions of employ- ment, so as to discourage membership in, affiliation with, sympathy for, or lawful activity on behalf of Lo- cal 155, Knitgood Workers, International Ladies Gar- meat Union Workers, -AFL-CIO, or any other labor organization. I WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form , join, or assist any union, to bargain collectively with representatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from such activity except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Sec- tion 8(a)(3) of the National Labor Relations Act, as amended. - - WE WILL offer Santos Vasquez, whom we discharged because of his ,union membership and activities, im- mediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his , seniority and other rights and privileges; and WE WILL give him backpay, plus interest, for any pay he may have lost because of our discriminatory dismissal of him. All of you are free to join or not join Local 155, Knit- good Workers, International Ladies Garment Union Workers, AFL-CIO, or any other union, except for an agreement requiring union membership as a condition of employment as authorized by law. Toy KNITTING MILLS, INC.