The Hartz Mountain Corp.

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Hartz Mountain Corporation and District 65, Distributive Workers of America and Local 806 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Party to the Contract, and Local 888, Retail Clerks International Association, AFL-CIO, Party in Interest The Hartz Mountain Corporation and Rafael Bueno and District 65, Distributive Workers of America, Party in Interest The Hartz Mountain Corporation and District 65, Distributive Workers of America. Cases 22-CA- 5693, 22-CA-5749, 22-CA-5883, and 22-CA- 6053 March 2, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On November 24, 1975, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent, District 65, Distributive Workers of America (herein called District 65), the General Counsel, and Party to the Contract, Local 806 a/w International Brotherhood of TeamstersChauffeurs, Warehousemen and Help- ers of America (herein called Local 806), filed; exceptions and supporting briefs. Respondent filed a brief in answer to the exceptions of the General Counsel and District 65, District 65 filed an answer- ing brief to Respondent's exceptions, and the General Counsel filed a brief in reply to the exceptions of Respondent and Local 806. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and i The Respondent, Local 806, District 65, and the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear prepon. derance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544(1950), enfd. 188 F 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. In sec. 11, B, 3, C, of his Decision, the Administrative Law Judge noted that "Respondent did not come forward at the trial to show that the number or proportion of District 65 members terminated did not differ essentially from the number or proportion of terminated employees (if any) belonging exclusively to Teamsters Local 806." Respondent excepts to the alleged "inference of the Administrative Law Judge that the number of District 65 members terminated by Respondent belonged exclusively to that Union at the time of their discharge " We find it unnecessary to pass on the Administrative Law Judge 's findings in this regard inasmuch as we conclude that Respondent failed to rebut the General 228 NLRB No. 49 conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recom- mended Order as modified herein.2 1. The Administrative Law Judge correctly con- cluded that Respondent violated Section 8(a)(2) and (1) of the Act by its recognition of Local 806, and the subsequent execution of a collective-bargaining agreement with that Union. In reaching this conclu- sion, the Administrative. Law Judge found that Respondent's unlawful assistance to Local 806 during the latter's organizing campaign required voiding of the recognition. We agree that Respondent's numer- ous acts of unlawful assistance to Local 806 render the authorization cards obtained by that Union unreliable as indicators of employee choice. We further agree that it is not a prerequisite for voiding the recognition to establish precisely the number of cards procured by means of the unlawful assistance and subtract that number from the total number of otherwise valid cards submitted by Local 806 to prove its majority status. However, in finding that the recognition violated the Act, we also rely on the Administrative Law Judge's further finding, which he eventually found unnecessary to the result, that Local 806 had not obtained valid cards from a numerical majority of Respondent's employees in an appropri- ate unit when recognition was granted. In view of these findings, we deem it unnecessary to make any findings regarding the Administrative Law Judge's discussion as to whether Respondent's recognition of Local 806 was also unlawful under Midwest Piping and Supply Co., Inc.3 2. The General Counsel has excepted to the Administrative Law Judge's failure to find that the discharges which violated Section 8(a)(3) and (1) of the Act also violated Section 8(a)(2). We find merit to this exception, for these discharges not only unlawful- ly discouraged membership in District 65 and encour- aged membership in Local 806, but also, by encour- aging membership in Local 806, constituted unlawful assistance to that labor organization. Accordingly, we make the following additional Conclusion of Law, Counsel's prima facie showing that the alleged discriminatees were dis- charged because of their activities on behalf of District 65 and in order to encourage membership in Local 806. 2 In par . A of his recommended Order the Administrative Law Judge inadvertently erred in referring to "collective agreements" "dated" Decem- ber 1, 1973, rather than "effective" on that date. We shall revise the recommended Order accordingly. Respondent has excepted to the portion of the Administrative Law Judge's recommended Order which requires Respondent to reimburse District 65 for reasonable counsel fees and disbursements incurred in the course of this proceeding and for expenses incurred in connection with the organizing campaign at Respondent 's Jersey City plant prior to December 1, 1973 We conclude that Respondent's defenses in this proceeding are not patently frivolous and consequently, in accord with our usual policy, this extraordinary remedy is not warranted in this proceeding. Cf. Heck's Inc., 215 NLRB 765 (1974). We shall therefore modify the recommended Order by deleting the reimbursement requirement. 3 63 NLRB 1060 (1945). HARTZ MOUNTAIN CORP. 493 which we substitute for Conclusion of Law 3 in the Administrative Law Judge's Decision: "3. By terminating the employment of 46 employ- ees (identified in attached Appendix, and further set forth in the recommended Order which follows herein), under the circumstances described and found in `II, B, 3,' supra, and failing to reinstate, recall236 or rehire them, Respondent has discriminated in regard to the hire, tenure, and terms or conditions of employment of its employees, and continues so to do, thereby discouraging membership in a labor organi- zation (Distributive Workers District 65) and encour- aging membership in another labor organization (Teamsters Local 806), in violation of Section 8(a)(3) of the Act; has unlawfully assisted Teamsters Local 806 in violation of Section 8(a)(2) of the Act; and has interfered with, restrained, and coerced employees, and continues to do so, in the exercise of their rights under Section 7, in violation of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, The Hartz Mountain Corporation, Jersey City, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the word "effective" for the word "dated" in the seventh line of paragraph 1(a). 2. Delete paragraph 2(c) and number subsequent paragraphs and footnotes accordingly. 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL withdraw recognition from Teamsters Local 806 as your bargaining representative. WE WILL stop giving any effect to the "collec- tive agreements" entered into between us and Local 806 dated December 1, 1973. However, this will not affect your wage rates, holidays, hospitali- zation, or other benefits. WE WILL stop giving any effect to your mem- bership cards in Teamsters Local 806, signed at any time after November 1, 1973, and WE WILL NOT recognize Teamsters Local 806 as your representative unless Local 806 is officially certi- fied as your bargaining representative after a secret-ballot election held by the National Labor Relations Board. WE WILL stop giving effect to any pay deduc- tion "checkoff" authorization signed by you, at any time after November 1, 1973, for payment to Teamsters Local 806 of any initiation fees, dues, or other moneys; and we will return those cards to you. WE WILL refund to you, as well as to all former employees at our Jersey City plant, all moneys withheld by us from your or their wages at any time since November 1, 1973, paid over or withheld from your wages for the purpose of being paid over to Teamsters Local 806 for initiation fees, dues, or otherwise. WE WILL provide you with alternative hospitali- zation, medical, sickness and related benefit insurance or indemnity, so that your present coverages will not be discontinued while you are in our employ. WE WILL NOT directly or indirectly give aid, assistance, support, or preferential treatment to any labor organization, in violation of the Act. WE WILL NOT directly or indirectly authorize or allow any officer, official, supervisor, or agent of The Hartz Mountain Corporation to enlist or solicit any of our employees to join any labor organization. WE WILL NOT threaten not to recognize, negoti- ate, or deal with Distributive Workers District 65 (or any other labor organization) in the event our employees select Distributive Workers District 65 (or any other labor organization) as their bargain- ing representative. WE WILL NOT terminate the employment of, discharge, lay off, suspend, furlough, reprimand, discipline, or in any other way retaliate or discriminate against any employee because he or she is a member of, active on behalf of, or sympathetic to Distributive Workers District 65 (or any other labor organization), or because he or she does not wish to join or become affiliated with Teamsters Local 806 (unless Teamsters Local 806 is elected in a secret-ballot election conducted by the National Labor Relations Board and we thereafter enter into a lawful collective agreement requiring membership in that Union). WE WILL NOT in any other manner interfere with, restrain, or coerce any of you in the exercise of your right to self-organization; your right to form, join, or assist any labor organization; your right to bargain collectively through representa- tives of your own choosing; your right to engage in concerted activities for the purpose of collective 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining or other mutual aid or protection; or your right to refrain from any or all such activities. WE WILL offer each of the following persons immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantial- ly equivalent jobs, without prejudice to their seniority and other rights, privileges, and benefits; we will eliminate from their records any indication that they were terminated for any reason reflect- ing on their work performance or conduct; and we will pay them all backpay they lost because we terminated them, plus interest. The employees are: Rita Acevedo Clara Aguilar Fernando Aguirre Julia Aguirre Maria Elena Arguello Irma Avellaneda Elesa Bello Damiana Cancel Milagros Cancel Luz C. (Celenia) Cardona Mariana Castro Dominga Cintron Marie Diana Gladys Diaz Luz Fabiola Diaz Amada Flores Alejandrina Fontanez Jacinta Fontanez Maria (J.) Gonzalez Lucia Malave Pascual Malave Alejandrina Nieves Marta Ocasio Virginia Otero Cecilia Pacheco Elsa Pacheco Alida Pagan Daisy Pagan Enriqueta Pagan Gladys Pelliccia Eloisa ("Aloisa") Perez Luis (Enrique) Ramos Amalia Rivera Lydia M. Rivera Mercedes Rivera Rosa M. Rivera Damiana Ruiz Maria del Carmen Salcedo Angel Santiago Maria Estelle Santiago Marie Teresa Santiago Ada Iris Vargas Ana Ventura Rosa Villegas Ana Zapata (DeKalb Street) Ana Zapata (Bright Street) WE WILL eliminate from the records of the following persons that they received a disciplinary warning because of their visit to Plant Manager Petrera on or about July 2, 1974, to complain about the heat in the plant and to request a fan: Nilda Lopez Carmen Navarro Alejandrina Nieves Concepcion Pastrana Eloisa (Aloisa) Perez Albertine (Albertina) Rodriguez Maria Sanchez Maritza Tiburcio WE WILL make available to the National Labor Relations Board our books and records to deter- mine the amounts due to be paid back by us to our employees and former employees. We give our assurance that you are all free to join or not to join Distributive Workers District 65 or any other union (or, if you prefer, no union), as you see fit, without any interference, restraint, coercion, threat, or retaliation from us in any way, shape, or form. THE HARTZ MOUNTAIN CORPORATION DECISION Preliminary Statement; Issues STANLEY N. OHLBAUM, Administrative Law Judge: This consolidated proceeding 1 under the National Labor Rela- tions Act, as amended, 29 U.S.C. Sec. 151, et seq. (Act), was heard by me in Newark, New Jersey, from April 9, 1974, through January 14, 1975, with all parties represented throughout by counsel and afforded full opportunity to present evidence 2 and arguments, as well as to file briefs subsequent to conclusion of the hearing. After extension of time upon application of counsel, briefs were received in mid-April 1975. All exhibits were finally received on July 22, 1975. Record and briefs, estimated around 10,000 pages, have been carefully considered. The principal issues are whether, in violation of Section 8(a)(1), (2), and (3) of the Act: (1)(a) Respondent recog- nized, entered into , maintained, and enforced labor agree- ments containing mandatory union membership require- ments on the part of its employees with Teamsters Local 806 as purported exclusive collective-bargaining represen- tative of Respondent's employees at times when Respon- dent knew that there existed rival representation claims by other unions, Distributive Workers District 65 and Retail Clerks Local 888; also, (b) Respondent improperly assisted and supported Teamsters Local 806 by soliciting and urging Respondent's employees to join that Union; and, finally, (c) Respondent recognized and executed collective agreements with Teamsters Local 806 at times when that Union did not represent an uncoerced majority of Respon- dent's employees; (2) Respondent discharged or perma- nently laid off, and has since failed and refused to reinstate, 1 (1) Case 22-CA-5693 • Charge filed on November 29, 1973, amended on December 6, 1973, further amended on January 2, 1974, complaint dated February 19, 1974. (2) Case 22-CA-5749. Charge filed on January 14,1974, consolidated with Case 22-CA-5693 by consolidated complaint dated March 21, 1974. (3) Case 22-CA-5883: Charge filed onApnl 23,1974,amended on July 11, 1974, consolidated with Cases 22-CA-5693 and 22-CA-5749 by order dated August 22, 1974 ; consolidated complaint further amended by order dated August 30, 1974 (4) Case 22-CA -6053: Charge filed on September 11,1974, consolidated with Cases 22-CA-5693, 22-CA-5749, and 22-CA-5883 by order dated September If, 1974; consolidated complaint further amended by order dated October 15, 1974. 2 With few exceptions the witnesses testified through Spanish interpreters, substantially retarding the pace of the hearing. It is recognized that some inconsistencies presented by the record (testimonial and documentary) as to name spellings and dates are irreconcil- able. Under these circumstances , where a choice has been made without discussion, it has not been deemed substantially material to the issues nor such as to affect the results reached. HARTZ MOUNTAIN CORP. 495 various employees and issued disciplinary warnings to various other employees 3 because they engaged in concert- ed activities protected under the Act, including affiliation with and support of Distributive Workers District 65, or because they failed to join Teamsters Local 806. Upon the entire record' and my observation of the testimonial demeanor of the witnesses, I make the follow- ing: FINDINGS AND CONCLUSIONS I. JURISDICTION At all material times, the Respondent, The Hartz Moun- tain Corporation, has been and is a New Jersey corporation engaged in manufacture, sale, and distribution of pet food and related products, with principal office and plant in Harrison and another plant - the one here involved - in Jersey City, New Jersey. In the course and conduct of Respondent's business operations in the representative 12- month period immediately preceding issuance of the complaint, Respondent manufactured, sold, and distribut- ed at and from its said Jersey City plant products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from that plant directly in interstate commerce to places in States other than New Jersey. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; that at all of those times Charging Party District 65, Distributive Workers of Ameri- ca (Distributive Workers District 65, Distributive Workers, or District 65) as well as Party to the Contract Local 806, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Team- sters Local 806, Teamsters, or Local 806), and Party in Interest Local 888, Retail Clerks International Association, AFL-CIO (Retail Clerks Local 888, Retail Clerks, or Local 888), has been and is a labor organization as defined in Section 2(5) of the Act. 3 Discharges or permanent layoffs- Jose Peguero (December 10, 1973), Rafael Bueno (December 27, 1973), 58 other employees (March 26 - August 23, 1974); disciplinary warnings: 8 employees (August 4, 1974). 4 The transcript, comprising 59 volumes, was paginated by the reporters - presumably to expedite simultaneous transcription of different portions - so as to omit some page numbers between volumes No contention has been raised that any testimony has been omitted from the transcript It is appropriate to comment upon the deplorable condition in which the thousands of pages of exhibits in this case were received, unassembled, in disorganized array in a large carton . Organization, assembly, and binding of these was itself a time-consuming project. Only the desire to avoid indefinite delay in disposition of an already unavoidably protracted proceeding militated against imposition of corrective measures 5 Dates with unspecified years in sec. II refer to 1973. 6 The latest collective agreement (December 1, 1970 - May 31, 1973) between Respondent and Retail Clerks specifies (G C. Exh. 7) the bargaining unit as "all its [i e , Respondent's Jersey City plant ] employees, excluding executives, supervisors, guards and professional employees , as defined in the II. ALLEGED UNFAIR LABOR PRACTICES 5 A. Respondent Employer 's Recognition and Execution of Collective Labor Agreements With Teamsters Local 806 1. Retail Clerks Local 888 decertification and its postdecertificational organizational campaign For perhaps 20 or more years prior to 1973, Respondent's production workers at its Jersey City (or predecessor locations) plant were represented for collective bargaining by Retail Clerks Local 888, Party in Interest here.6 On May 11, 1973, that Union was decertified as the result of a statutory secret-ballot election conducted under Board auspices. Following its decertification, Retail Clerks Local 888 continued to service the unit employees until May 31, 1973, the expiration date of its collective agreement; and it attempted to reenlist the unit employees into its ranks. These efforts included not only membership and bargain- ing-representation designational card solicitations , but also the holding of a general organizational meeting in late June 1973, handbilling, organizational visits to and activity around the factory in June and July by that Union's business agent, Lucas, and the procurement of more signed membership and representational designation cards by Lucas and members of an employees' organizational committee. These organizational efforts by Retail Clerks Local 888 - by Lucas as well as various of Respondent's unit employees - continued in September, October, November, and December. The organizational visits of Lucas to Respondent's plant - which are corroborated by voluminous Retail Clerks records - and organizational activities of Lucas there, such as his handbilling at the main entrance to the plant, occurred under the observation of Respondent's managerial personnel including Vice Presi- dent Kaye, Plant Manager Morris Feinberg, as well as his predecessor John Petrera, and various production supervi- sors. As a result of these membership solicitations from June to December 1973, Retail Clerks Business Representa- tive Lucas turned over to the Board's Newark, New Jersey, Regional Office over 300 membership/bargaining authori- zational cards (G.C. Exh. 8), out of about 338 unit employees (fn. 12, infra), following an earlier conversation between Lucas and Respondent Vice President Kaye around August (1973) in which Lucas indicated his belief that his Union had again attained majority support among Labor Management Relations Act of 1947; as amended. Also excluded, office employees, and outside sales employees that do not make deliveries"; and the signed appendix thereto likewise explicitly includes "porters." Respondent now claims that this contract misdescribed the bargaining unit, and that (according to Respondent) Retail Clerks Local 888 represented only its production and warehouse employees and not its maintenance and clerical employees even though the collective agreement did not "technical- ly" so state. Crediting the testimony of Local 888 Business Agent James A. Lucas, a persuasive witness, I find that the bargaining unit represented by Local 888 included maintenance employees (of whom handyman -porter Robert Buxton was established - including by his own credited testimony - to be an example). The collective agreement , as it explicitly also recites, did not include office clericals. According to Respondent Vice President Gilbert Kaye, Respondent's mechanical repairmen were covered by a company-maintained health and welfare plan and were subject to vacation and leave policy not defined by its collective agreement with Local 888 - perhaps without knowledge of Local 888 , since it was apparently not so informed by Respondent. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unit employees and offered to display the newly signed membership/bargaining authorizational cards to establish that to be a fact.? These cards (G.C. Exh. 8) range in date from July 8 to November 1973, with the bulk in July and August and also a substantial number (almost 70) in November. According to Lucas, perhaps 10 organizational or committee meetings were held by Retail Clerks with Respondent's unit employees between June and December 1973, including three or four general membership meetings such as the general meeting in Jersey City in July 1973. And even according to Juan Vazquez (Vazquez) a unit employee who acknowledged he was one of the leaders of a "fighting committee" to oust Retail Clerks and resulting in its decertification in May, as well as a leader of the Distribu- tive Workers (District 65) campaign, and eventually a seeming kingpin of the Teamsters (Local 806) recognitional operation - testifying as a Teamsters witness, to his knowledge Retail Clerks was engaged in reorganizational efforts during the summer including August, and unit employees were "giving many signatures to the [Retail Clerks Local] 888" as late as November 1973. Another Teamsters witness, Joaquin Ocana, similarly hostile to Retail Clerks - like Vazquez, a member of the committee to oust and decertify it - also testified that to his knowledge Retail Clerks Local 888 was collecting unit employees' bargaining authorizational designation cards as late as October (as well as in the preceding August and September) 1973. Even Respondent Vice President Kaye - responsible, among other things, for industrial relations at the Jersey City plant - conceded that he was told by Jersey City Plant Manager Feinberg, during July-August 1973, that Local 888 was soliciting card authorizations from employ- ees there; and also that, on a number of occasions during the summer of 1973 following the decertification of Local 888, that Union's business agent Danny Fuchs (whom Kaye knew) indicated that he was "still interested in the [Jersey City] shop." Likewise, Respondent's vice president for engineering and labor relations, James W. O'Connor, testified that he, too, was aware of Local 888's (as well as other unions') active organizational activity in the summer and - from Jersey City Plant Manager Petrera - that in September it was (with the other unions here involved) making a strong drive outside of the plant, continuing as late as mid-November 1973;9 and, indeed, that he even relayed this information on to his superior, Respondent Executive Vice President Lovitz.10 Further, Respondent's former Jersey City plant general manager, Morris L. 7 An 8(a)(5) failure-to-bargain charge was fled by Retail Clerks Local 888 against Respondent on December 7, 1973, with the Union's deposit with the Board's Regional Director of some 322 alleged new member- ship/bargaining authonzational cards of Respondent's unit employees in that Union . The charge was withdrawn by the Union on February 12, 1974. a With but a single exception , dated in May. 9 On cross-examination O'Connor conceded that he had been informed by Jersey City Plant Manager Petrera and "pipelines in the plant" that Retail Clerks Local 888 (as well as Distributive Workers District 65) was engaged in an organizational drive at the plant "through November" 1973. On redirect examination on the following day, however, in response to a leading type question, O'Connor indicated that his last information from Petrera concerning "active" organizational efforts by Local 888 was "around" Labor Day, and that between Labor Day and December 3, 1973, Petrera informed him there was "little" activity on behalf of Local 888 or District 65. I credit O'Connor's earlier testimony, elicited on cross-examination, since I view his Feinberg - in overall charge of that plant - testified that when or soon after he first came to work there, in mid-July 1973, he was informed by Respondent Vice President Kaye that after the May decertification of Local 888 various unions were attempting to organize the Jersey City plant; that he (Feinberg) was aware in late July and early August 1973, based in part upon information from subordinates, that there was employee interest in Local 888 (among other unions); that in September or October he personally observed Local 888 representatives or organizers outside of the plant and that Local 888 Organizer Lucas had identified and introduced himself to him outside of the plant; that he was aware of organizing activity by Local 888 from August through October; and that he reported this organizational activity to Respondent Vice President Kaye in September and October, adding with emphasis that "I [Feinberg] tell you, he [Kaye] saw it," as well as possibly in November and December 1973. Respondent's Jersey City plant personnel manager, Efrain Morales, also conceded that prior to December 3, 1973, he, too, knew of organizational activity on behalf of Retail Clerks Local 888 (as well as Distributive Workers District 65 and Teamsters Local 806).11 It is clear and I find that Retail Clerks Local 888 was, to the knowledge of Respondent, actively engaged in substan- tial union organizational activity among Respondent's bargaining unit employees following its decertification in May and at least through November 1973. 2. Distributive Workers District 65 organizational campaign and requests for recognition Commencing in May 1973, Distributive Workers District 65 (Charging Party here) also mounted a substantial organizational campaign, including continued meetings, at an early one of which (May 16) it received a "petition" (G.C. Exh. 14) in the Spanish language - seemingly the native if not largely the only tongue of many or most of the unit employees - containing around 225 or 230 signa- tures,12 requesting collective-bargaining representation on their behalf by District 65. These organizational activities culminated in the amassing of between 300 and 350 - almost 300 of them in May and June - signed member- ship/collective-bargaining authorizational designation cards from Respondent's employees designating District 65 as their collective-bargaining representative. Tendering or offering to establish these credentials to Respondent on May 23, 1973, officials of Distributive Workers District 65 requested recognition and bargaining as the employees' later testimony on redirect examination as a transparent attempt to overcome an unfavorable (yet truthful) admission on cross-examination, and as the equivocal, evasive, and modified testimony of a witness of poor quality whom it is impossible for me to credit in substantial part, for reasons shown in detail below. 10 Lovitz did not testify. 11 I cannot credit Morales' testimony that he was unaware of employee interest in Local 888 (or District 65) in the fall of 1973, this testimony being not only directly at odds with what was plainly going on for all to see-as, indeed, conceded by his managerial superiors as well as supervisory subordinates-but incredible considering his capacity as plant personnel manager. iz Out of - according to Juan Vazquez, a protagonist of Teamsters Local 806 and hostile to District 65 - 338 total unit employees (including maintenance workers). N HARTZ MOUNTAIN CORP. 497 authorized collective-bargaining representative. As will be shown, the request - as well as further recognitional requests - was wholly ineffectual. Meanwhile, District 65 continued its organizational activities, with the assistance of an employees organizing committee selected at a mass meeting of employees on May 16. The activities consisted not only of holding many meetings but also handbilling, membership solicitation, continuing discussions during free time in the plant as well as outside of the plant, and the accumulation from unit employees of additional member- ship/bargaining representational authorization cards (a- bout 30 or more in August, as well as some in September). Distributive Workers District 65 Vice President Julio Mojica - whom I observed to be an impressively credible witness 13 - testified at length as to the substantial nature and extent of the organizing activities of District 65 in collaboration with Respondent's unit employees. His testi- mony was substantially corroborated not only by numerous other witnesses 14 but also by documentation including records maintained by his union in the regular course of its business. On the same date that Mojica sent to Respondent the May 23 recognitional request expressing willingness to establish its majority status, he forwarded a copy thereof with an accompanying letter (May 23) to the Federal Mediation and Conciliation Service in effect offering to utilize its impartial auspices for demonstrating its majority status. A copy of each of these letters is set forth as follows. (1) District 65 letter to Respondent (G.C. Exh. 4): May 23, 1973 Hartz Mountain 305 Broadway Jersey City, New Jersey Gentlemen: Please be advised that an overwhelming majority of your employees have designated District 65, Distribu- tive Workers of America as their exclusive bargaining agent in all matters relating to their wages, hours, and working conditions. We are prepared to demonstrate our majority status to you, or to any third party, or through any impartial agency at a mutually convenient time and place. Please contact the undersigned for the purpose of arranging such a meeting. Very truly yours, Julio Mojica Vice-President JM/cpm cc: Federal Mediation and Conciliation Service 26; Federal Plaza New York, N.Y. 10007 New Jersey State Board of Mediation 1100 Raymond Boulevard, Rm. 306 Newark, New Jersey 07103 [? ] 13 Although some inconsistencies were elicited from Modica under patient cross-examination by Respondent's skilled counsel, these were principally with regard to dates and similar details - not unusual even with the most truthful witnesses - not substantially detracting from his overall truthful- ness or reflecting adversely upon his overall credibility, which impressed me ^s high, based upon my demeanor observations as well as testimonial and documentary corroboration. (2) District 65 letter to FMCS (G.C. Exh. 5): May 23, 1973 Federal Mediation and Conciliation Service 26 Federal Plaza New York, New York 10007 Gentlemen: Please be advised that we have this day demanded recognition as the exclusive bargaining agent for the employees of Hartz Mountain, 305 Broadway, Jersey City, New Jersey. Since the National Labor Relations Board has conducted an election involving another union, which was decertified only ten days ago, our Union cannot seek certification from the NLRB. Accordingly, we have suggested to the employer in a letter, a copy of which is enclosed, that an impartial agency with expertise in these matters be designated to establish our majority status. A copy of this letter is being sent to the employer. Very truly yours, Julio Mojica Vice-President JM/cpm cc: Hartz Mountain 305 Broadway Jersey City, New Jersey When District 65 received no response from Respondent to these May 23 letters, within a few days Mojica and a delegation visited Plant Manager Petrera to ascertain why the letters were unanswered, evoking from Petrera the response that the matter would have to be referred to company headquarters (located in Harrison, New Jersey). However, at least to the date of the instant hearing commencing in 1974 no response 15 has been received from Respondent, which nevertheless meanwhile on November 30, 1973, under circumstances which will be shown, recognized Teamsters Local 806 swiftly on the heels of its request for recognition. Mojica reported to another mass meeting of the unit employees on May 29 - called by their shop committee - on his meeting with Plant Manager Petrera seeking recogni- tion, and expressed his (Mojica's) opinion to the employees that the Company was "stalling." Thereafter, Mojica - in concert with District 65 Vice President John Gross and various unit employees - continued organizational activi- ties among the employees. These activities - like those of Retail Clerks Local 888, as has been shown and, indeed, admitted by Respondent's officials - were carried on openly in and near Respondent's plant, in plain view and within the observation of Respondent's officials.16 Respon- dent's plant or its immediate outside area (directly in front of the plant) were personally visited for organizational 14 Including District 65 Vice President John Gross, and unit employees Fernando Aguirre, Nelson Cansing, Luz Fabiola Diaz, Concepcion Pastra- na, and Mercedes Rivera. 15 Except for a telephone exchange between counsel for Distract 65 and counsel for Respondent in July 1973, described infra. 16 As described by Mojica, Respondent's Jersey City plant is located at or near the terminus of a dead-end road in a relatively isolated industrial area, (Continued) 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities by District 65 Vice President Mojica or Vice President Gross, or by both, on June 5,7, 11,12, 14, 15, 19, 21, 22, 25, 27, and 28. Not having meanwhile had any response to its written and oral requests for recognition, based upon advice of counsel, Mojica at a June 21 meeting of unit employees pointed out to the latter that the decertification of Retail Clerks Local 888 precluded anoth- er Board-conducted election prior to May 11 , 1974, but that the Company could recognize District 65 before then if it wished to; it was thereupon decided by the unit employees that consideration of possible collective action against their Employer - who had maintained a total silence upon the District 65 request for recognition coupled with offer to establish its majority representational credentials - should be deferred' until after vacation season. It is stipulated here by Respondent and Charging Party District 65 that in a telephone conversation between counsel for District 65 and counsel for Respondent on or about July 10, 1973, counsel for District 65 again requested recognition of that Union by Respondent; that in a further telephone conversation between the two on or about July 18, counsel for Respondent, acting on behalf of Respon- dent, denied that request; that, in one of the foregoing telephone conversations, (1) counsel for Respondent assert- ed (a) that Respondent had a "good faith doubt" concern- ing the majority status of District 65 and (b) that counsel for Respondent was surprised at the request since there was no obligation on Respondent's part to recognize any union for a year after May 11, 1973,17 and (2) counsel for District 65 stated (a) that, while the assertion in (b) was correct, Respondent would be well advised not to assert that right, which was optional to an employer, and (b ) that District 65 had "a majority of the employees of respondent signed up." In July 1973, District 65 Vice President Mojica or Vice President Gross, or both, continued personally with organi- zational activities at the plant on July 2, 3, 5, 9, 11, 12, 16 - 19, 23 - 25, and 30. At the organizational meeting of July 25, the possibility of strike action for recognition - its recognitional requests continuing to be ignored by Respon- dent - was rediscussed ; however, on counsel's advice it was decided to take no strike action but to attempt to establish some sort of interim benefit (hospitalization) program, to maintain organizational activity, and if neces- sary to await the first possible Board election date (May 11, 1974). Accordingly, in August the plant was continued to be visited regularly for organizational activities by Mojica or Gross, on August 2, 7,9, 13,15, 17, 20, 21, 23, 24, 27, 28, and 30. Meanwhile, during that month (August), soon after the advent of a new general manager for the Jersey City plant - namely, Morris Feinberg - on August 2 Mojica and Gross, with Union Organizer Nosario approached and introduced themselves to Feinberg. Prior to that date, with employees transported by company buses from Journal Square, Jersey customarily come out of the plant at lunchtime to City. Many employ7. gather around font gons, to have lunch in can, or to obtain lunch from cars and return to the plant with it. 17 May 11 , 1973, was the date of decertification of Retail Clerks Local 888. Is Formal District 65 shop (i.e., bargaining unit) mass meetings were held on June 21, July 5, August 2, September 4 and 28, October 4, November 26, and possibly December 6,1973 ; formal organizing committee meetings were additionally held on June 5 and 28, July Sand 25, September 22, November 17 (December 6, possibly), and December 15, 1973. All of these were held at the Hotel Plaza in Jersey City. however, since his arrival in July, General Manager Feinberg had 'been observing the District 65 organizing activity, and before that it had been noticeable under the observation of Plant Manager Petrera. As indicated above, although the bulk - almost 300 - of the District 65 membership/bargaining authorizational designation cards had been obtained in May and June, perhaps as many as 30 or more additional cards were obtained in August, in which month the employees orga- nizing committee, continuing its organizing activities under the leadership of District 65 Officials Mojica and Gross, itself consisted of 15 unit employees.18 Since, as also indicated above, Respondent continued to maintain total silence in the face of the District 65 recognitional requests 19 and offers to establish its bargaining credentials, a mass meeting of unit employees was held by District 65 on August 2, at which two basic decisions were made. First, it was determined to provide a basic benefit (hospitalization) program for unit employees for a monthly fee of $4, pending resolution of the "crisis" posed by Respondent's failure to meet with District 65 to enable the latter to establish its representational credentials ; 20 second, it was decided that a unit employees committee of 15 would approach Respondent directly for recognition. Also at the August 2, or possibly at a September 4, meeting of the unit employees, District 65 officials were presented with a further "petition" (G.C. Fxh. 17), contain- ing 213 signatures, to the effect that the employees were not in favor of the return of Retail Clerks Local 888 (the decertified Union) but confirming their membership in and allegiance to Distributive Workers District 65. Continuing with District 65 organizational activities, Respondent's plant was visited for those purposes personal- ly by Mojica, Gross, Nosario, or by two or all three, on September 4, 6, 7, 10, 12, 17, 19, 22, 24, 26, and 28; by Mojica on October 2, 3, 9, 12, 15, 17, 23, 24, and 29; and by Mojica also on November 1, 7, 8, 14, 16, 17, 19, 20, 23, 26, and 29. I credit Mojica's testimony that during his organizational visits and activities at and around Respon- dent's Jersey City plant from May through the end of November, he was frequently if not usually under observa- tion of managerial personnel there including Plant Manag- er Petrera, General Manager Feinberg, and Personnel Manager Morales. In mid-November 1973 Mojica learned that Teamsters Local 806 was attempting to organize the Jersey City plant employees. Thereupon, on November 28, District 65 Organization Director Frank Brown wrote Respondent and Teamsters Local 806 registered letters dispatched on November 28 or 29 and received and receipted for by Teamsters on November 30 and Respondent on December 3, reminding and calling to their attention in the clearest of 19 I.e., other than the aforedescribed telephone conversations between District 65 counsel and Respondent's counsel. 20 Although this action was voted upon favorably and some collections were made thereunder, the interim benefit program was not implemented because of an insufficient number of subscribers or registrants (i.e., short of the 200 required). At a September 1973 meeting it was allegedly decided that the funds collected should nevertheless be temporarily retained by District 65. It is not here determined, suggested, or relevant whether any impropriety or irregularity was involved in District 65's handling of these funds under the circumstances. HARTZ MOUNTAIN CORP. terms that District 65 still represented the unit employees and to desist from ignoring or invading that status (C.P. Exhs. 1, 2, 3, and 4; this correspondence is set forth in full in a subsequent portion of this decision). General Counsel witness Concepcion Pastrana, a mem- ber (later chairman) of the employees District 65 organizing committee formed after the decertification of Retail Clerks Local 8$$, testified that after the decertification of that Union the employees organizing committee obtained union membership/bargaining authorizational designation cards from Distributive Workers District 65, and distributed and obtained signatures on a few hundred of them . According to her testimony, committee members including herself spoke to Respondent Vice President Kaye and Plant Manager Petrera in the latter's office in late May 1973 about recognizing District 65 , and were informed that they "had to wait for the company in Harrison . . . . [and] would let [you ] know later." When the committee met with General Manager Feinberg and Personnel Manager Mo- rales in August, in Feinberg's office, concerning the same matter and emphasized that the employees were without "benefits" (i.e., hospitalization, etc.), according to Pastrana the committee was informed that the problem would be resolved within a few weeks, including pay increases, but that with regard to recognition of the Union (District 65), "Better forget about unions for a year . . . an election ha[s ] to be waited for," and that Kaye stated that the Company would not recognize any union for a year after the decertification election . Since all of the promised increases were not forthcoming, Pastrana and another committee member (Vazquez) kept returning to Personnel Manager Morales from August to October, with Morales giving assurances that papers were being prepared, but that on the subject of recognition of a union, "[You have] to wait for an election." Ms. Pastrana's testimony is clear that the District 65 employees organizing committee still existed and was active in organizational activities as late as October and November 1973. Indeed, on November 16, according to her testimony, she and other committee members were autho- rized by Personnel Manager Morales to leave the plant an hour early, with pay, to attend a committee meeting at her home. At that meeting (November 16, 1973), differences of opinion arose among the committee members, with some of them - apparently led by Juan Vazquez - pressing for representation by the Teamsters and actually inviting Teamsters Local 806 representatives (Colagna and Gon- zales) to join the meeting later, in view of Respondent's apparent unwillingness to recognize or deal with District 65 (or any other union on the scene). According to Ms. Pastrana, 5 dissidents out of the 12 committee members - Juan Vazquez, Eddie Sanabria, Joaquin (Alex) Ocana, Dolores Diaz, and another (Modesto Zapata) - thereupon disassociated themselves from District 65, but, nevertheless, the District 65 employees organizing committee continued to exist and function. General Counsel's witnesses Fernando Aguirre, Nelson Cansing, Luz Fabiola Diaz, and Mercedes Rivera in material essence credibly support Ms. Pastrana's account of the split off of Juan Vazquez and at the same time or soon 21 In a prehearing affidavit of January 4, 1974, Vazquez swore that "about 80 percent of the employees . . . . signed ] for District 65" (G.C. Exh. 129). 499 thereafter a few other District 65 employees organizing committee members (i.e., Eddie Sanabria, Joaquin Ocana, and Dolores Diaz) from that committee at the November 16 committee meeting at Ms. Pastrana's home and the new allegiance of those four to Teamsters Local 806; and the continued existence of the District 65 employees organizing committee thereafter in November and December . Aguirre swore that the November 16 occasion was the first introduction of Teamsters Local 806 into the picture, and that on his automobile ride with Juan Vazquez, Joaquin Ocana, and Nelson Causing to that meeting, Juan Vazquez - later to become the kingpin of the activity resulting in Respondent's recognition (on November 30) of Teamsters Local 806 - said that "he [Vazquez] had a meeting with the big ones in the company, with the bosses. That he [Vazquez ] was told to have a meeting with the committee so a third union was searched for because they didn't want to accept the 888. . . . Neither they wanted to accept the [District] 65. And besides that Mr. [General Manager] Feinberg had told him that the company was willing to spend whatever money was necessary so the [District] 65 wouldn't get in." Further according to Aguirre - a highly impressive witness, corroborated by Mercedes Rivera, another impressive witness - when they arrived at the November 16 meeting at Ms. Pastrana's home, Juan Vazquez informed the group that he (Vazquez) had met with the Company and that General Manager Feinberg had told him that "to keep on fighting for the [District] 65 was useless because they were not going to accept [it]. And to look for another union because they were not going to use the [Retail Clerks Local] 888 either," so that Vazquez was prepared to invite the Teamsters - who were standing by elsewhere - to attend the committee meeting. When the other committee members indicated they were willing to listen to the Teamsters representatives, Teamsters Local 806 Representatives Colagna and Gonzales were called in and described that organization and what it hoped to accomplish. Further, according to Aguirre, however, except for Juan Vazquez the committee voted not to back Teamsters Local 806 but to continue allegiance to Distribu- tive Workers District 65. There is also considerable testimony by numerous General Counsel witnesses indicating that the wearing of the rather large and distinctive, clearly recognizable colored button of Distributive Workers District 65 was widespread throughout the plant during the foregoing periods, and that it continued to be displayed thereafter. Concerning the foregoing, unit employee Juan Vazquez, who had been one of the leaders of the drive to oust and decertify Retail Clerks Local 888 as well as one of the Distributive Workers District 65 employees organizing committeemen, later to abandon that committee and to sponsor introduction of Teamsters Local 806, in the main essentially corroborated the testimony of District 65 Vice President Mojica. Vazquez testified that from 250 to over 300 or from 65 to 80 percent of the unit employees had signed union cards for District 65 by the end of May 1973; 21 that the District 65 May or June shop meeting at the Plaza Hotel, at which District 65 Vice President Mojica Vazquez likewise swore in his July 19, 1974, affidavit presented to the U.S. District Court for the District of New Jersey, in opposition to an application (Continued) 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed the employees he had requested recognition from Respondent to bargain for them, was attended by around 275 employees; that he personally participated in District 65 employees organizing committee meetings with officials of that Union as late as August 1973, although later meetings were also held or called; and that he still functioned as a member of the District 65 employees organizing committee in September and October. It was Vazquez who, according to his testimony, invited Team- sters Local 806 representatives to attend the aforedescribed employees' District 65 employees organizing committee meeting at the Pastrana home on November 16 - in his prehearing affidavit (likewise in his July 19, 1974, affidavit to the U.S. District Court, G.C. Exh. 130), Vazquez himself speaks of that November 16 meeting as a "committee for District 65 . . . . meeting . . . . at Concepcion's [i.e., Concepcion Pastrana's] house" which he participated in (G.C. Exh. 129) - after he and Ms. Pastrana had been refused permission by Personnel Manager Morales to hold a I-hour District 65 employees organizing committee meeting in the plant cafeteria prior to 4:30. As of this time (November 16), Vazquez testified, Respondent had to Vazquez's knowledge not declined to recognize District 65 but had merely taken no action one way or the other on that Union's recognitional request. Vazquez informed the District 65 employees organizing committee at the November 16 meeting in the Pastrana home that no benefits could be obtained from the Company through District 65 without waiting until the "decertifica- tion year" had expired (i.e., May 1974), but that Teamsters Local 806 had indicated to him that it might gain earlier recognition. After the Local 806 officials, whom Vazquez then called in, oriented the committee members concerning their organization,22 the existing situation at the plant was, according to Vazquez, discussed by the committee in terms of the seeming stalemate of representation resulting from the Company's failure to have anything to do with District 65. Then, further according to Vazquez - an evasive and at times truculent witness consistently exhibiting discrediting demeanor behaviorisms, whose testimony is punctuated with inconsistencies, and who displayed what appeared to be intense hostility toward District 65 and its employee adherents, coupled with determination to justify his own partiality and personal role as the employee linchpin for Teamsters Local 806 - the committee members thereupon, by the Board's Regional Director for a temporary injunction under Sec. 10(I) of the Act, that "We got about 80 percent of the employees to sign for District 65" (G.C. Exh. 130). Vazquez further swore that thereafter "[Retail Clerks I Local 888 got many cards signed up" (id). 22 According to Vazquez, the Teamsters Local 806 representatives - President Anthony Calagna and his assistant John Gonzalez asserted that they would attempt to obtain a contract from Respondent ; but Vazquez was allegedly unable to remember whether the Teamsters representatives were asked how they proposed to do so when District 65 had failed . According to Vazquez' aide, Ocana, Calagna and Gonzalez indicated they thought it should not be "too difficult" to secure a contract, and no committee member raised the question of why not in view of District 65's total failure to even obtain a meeting Ocana added that Calagna indicated Local 806 would be willing to do "anything" to gain recognition, including calling a strike - even though then unlawful under the Act, as the employees had been advised by District 65 acting on advice of its counsel. 23 Irma Avellaneda, whose employment termination by the Company is discussed below, II,B,3. 24 Supported only by Vazquez's loyal lieutenant Joaquin Ocana, whose at the behest of Concepcion Pastrana, with a single exception 23 agreed to request District 65 to withdraw in favor of Teamsters. I reject the latter testimony of Vazquez24 as an utterly incredible, sheer fabrication, not only because of demeanor observations and his general quality as a witness, but also because it is wholly at odds with contrary testimony of numerous other witnesses (as above described) who attended that meeting,25 and because it is utterly inconsistent with what in fact took place thereafter - namely, the continued substantial organiza- tional activities of District 65 and the employees organizing committee thereof. Soon after delivering this testimony, Vazquez also testified that on November 19 - the Monday following the described November 16 (Friday) District 65 employees organizing committee meeting at the Pastrana home - he informed Teamsters Local 806 Representative Gonzalez that the committee was split, half for Teamsters Local 806 and half for Teamsters Local 804, with Vazquez in favor of Local 806; and that later that evening Vazquez was provided by Gonzalez with a supply of Local 806 membership/bargaining authorizational cards, which he thereupon utilized for organizational purposes commenc- ing on the following day (November 20), as will be recounted below, with himself (Vazquez), Eddie Sanabria, Joaquin Ocana, Dolores Diaz, Carmen Esquilin, and Modesto Zapata26 acting as the self-designated Local 806 organizing committee while at the same time not resigning from the District 65 employees organizing committee. Asked whether at this time (November 20) if Respondent had recognized Distributive Workers District 65 upon the basis of the more than 300 membership/representational designation cards it held, he (Vazquez) would have continued with efforts to solicit signatures on Teamsters Local 806 cards, Vazquez's reply was, "No, because I was the one who brought in [District] 65." It is reasonably clear27 even from the testimony of Vazquez - hardly in any sense favorable or friendly toward District 65 - that the organizational activities of District 65 carried forward through the summer and fall of 1973, into at least November, when according to his own admission he still remained a member of and participated in the described meeting of its employees organizing committee at the Pastrana home. And Vazquez also testimony in this request I likewise do not credit. In so testifying, however, Ocana conceded that no consideration was given to ascertaining the desires of the unit employees (perhaps as many as around 350) who had signed membership/bargaining authonzational designation cards for District 65. 25 It is also inconsistent with Vazquez's own previous statement in his preheanng affidavit of January 4, 1974, wherein he swore that at this meeting at the Pastrana home, "nothing was really decided" (G.C. Exh. 129). Vazquez swore precisely the same thing in his July 19,1974, affidavit to the U.S. District Court (G.C. Exh. 130). 1 can hardly regard Vazquez as a credible witness in view of these, as well as other, contradictions under oath. 26 According to Vazquez, Zapata subsequently disassociated himself from the Local 806 "Comnuttee." 27 The expression "reasonably clear" is used in view of Vazquez's constant evasiveness, hedging, testimonial convolutions, and backing and filling, weighed carefully in the frame of reference of his open partiality toward Teamsters Local 806 and his hostility toward Distributive Workers District 65, as well as his seeming temperamental bent toward equivocation and even ill-tempered querulousness as demonstrated during a protracted performance on the witness stand. HARTZ MOUNTAIN CORP. 501 referred to the organizational meetings held by District 65 for unit employees in May, June, July, and August 2s Vazquez himself confirms a July 29 confrontation of the District 65 employees organizing committee (including himself, at that time) with Kaye and Feinberg on the subject of union recognition. According to Vazquez, these two officials of Respondent thereupon asked which Union they had. When they mentioned District 65 (and also, according to Vazquez, Teamsters - although the latter concededly was nowhere near the scene until months later), according to Vazquez the company officials wrote the names down and Vice President Kaye asserted, "[We have] a year to study that" because "according to the law they did not have to accept any union for a year [unless] they [the Employer] wanted to," and that Kaye also remarked that "there was a fight between different positions of the workers, those for 65 and those for the 888, and that someday there would be some blood." "Possibly" as late as August, according to Vazquez, Respondent General Man- ager Feinberg "knew we were supporting [District] 65" from meetings Ms. Pastrana and Vazquez had with Fein- berg on the subject of providing some medical benefits to the employees.30 According to Vazquez, Feinberg repeated- ly cautioned him to "Look for a good union" - with no mention of District 65, even though it had formally requested and continued to seek recognition with an offer to establish its majority status through its credentials from the employees. Vazquez also concedes that not only did he sign, but that he himself also obtained other unit employ- ees' signatures on the "petition" with 213 signatures (G.C. Exh. 17) opposing the return of Local 888 and confirming the employees' loyalty to District 65 - the "petition" above shown to have been presented to District 65 officials at the 28 In his characteristic fashion , after sweanng to such a meeting or meetings in August, Vazquez later attempted to backtrack concerning August, claiming he was unsure or could not really recall . After observing him carefully during the unusually lengthy opportunity afforded mein this case because of the extent of his testimony , and weighing his testimony in the counterweighed scales of his interests and hostilities, his testimonial arrogance (for example, at one point he leveled at cross-examining Govern- ment counsel the sarcastic sally, "In spite of the fact that they are lawyers, the questions do not come out as they should"), and his contrastingly excellent claimed recollective capacities in those areas where his preferences and supposed interests lie, I greatly doubt he could not recall these meetings. In any event, however, District 65's August - as well as later - organizational activities are amply established through corroborated credited testimony of numerous other witnesses, as has been shown . As a matter of fact, on cross- examination Vazquez conceded attending an August meeting of the Distract 65 employees organizing committee, as well as an August District 65 general organizational meeting for shop employees, and further conceded that District 65 general organizational meetings for the unit employees were called even after November, although he personally did not attend them. 29 Once again, Vazquez later equivocated concerning the date, to the extent of even swearing on the witness stand that he "never said July" on the witness stand, then lashing out haughtily with, "I do not have an obligation to remember a date." 30 In characteristic fashion , Vazquez later denied ever discussing with the Company a need for a medical plan; but this time he added that at one meeting General Manager Feinberg promised that the Company would provide raises for deserving employees "by steps." Apparently he was one of the deserving employees, since - as he concedes - in January 1974, after the advent and recognition of Teamsters Local 806 with Vazquez's active protagonism, under circumstances to be shown , Vazquez received a wage increase greater by 50 cents per hour on top of the 35 cents per hour required by the Local 806 contract with Respondent . So did his fellow abandoners of the District 65 employees organizing committee who joined him in bringing Teamsters Local 806 on the scene - Eddie Sanabna and Joaquin Ocana, as well as Emerson Peneherera. August 2 or September 4 meeting of unit employees.31 And Vazquez admits that during his attempts in late November to solicit employees to sign cards for Teamsters Local 806, they indicated to him that they still supported District 65. Vazquez aide Joaquin Ocana32 - like Vazquez, called as a witness by Teamsters Local 806, and somewhat on the order of Vazquez an evasive, unresponsive witness belliger- ently hostile to District 65 - also testified concerning the foregoing, as well as on other matters to be discussed. He confirmed that the employees' District 65 employees organizing committee (including himself as a member) enlisted around 300 unit employees into membership in and bargaining designational ,card-signing for District 65, and that large mass meetings of employees were held by that Union in May.and June, with smaller meetings in July and August. However, according to Ocana, collections to participate in the District 65 medical plan were made even in September by Vazquez as well as Concepcion Pastrana.33 And Ocana conceded on cross-examination that he, togeth- er with Vazquez and Concepcion Pastrana, participated in at least two meetings of the District 65 employees orga- nizing committee with Jersey City plant general manager, Feinberg, and Personnel Manager Morales, in August, September, or October, concerning a "medical plan" as well as a "raise" for employees - without result, Feinberg indicating that no election could take place for a year.34 Emerson Peneherera, likewise put forward as a witness by Teamsters Local 806 and a protagonist of its November 1973 card-signing operation, also demonstrated himself to be not only highly partial to that Union and hostile to District 65, but also a somewhat truculent testifier. He testified on direct examination that he personally observed organizational solicitation activities on behalf of Distribu- 31 Although Vazquez asserts that these signatures were obtained in June, the "petition" speaks of the "return" of Local 888 - an attempted "return" which Vazquez himself testified took place in July through October and even in November, when, also according to Vazquez, since employees were (in November) "giving many signatures to the [Local 1 888" he decided to contact Teamsters Local 806 and to introduce it to the District 65 employees organizing committee meeting on November 16 at the Fastrana home. Furthermore, as shown above (II,A,I), the bulk of the over 300 Local 888 cards are in July and August, with an additional almost 70 in November. 32 Also known as Alex Bertran (social security card) and as Alejandro Ocana Bertran (passport), Bertran being (according to his testimony) his mother's surname. 33 Ocana's testimony that as to District 65 organizational activities in September and October there was "no activity .... that could be seen . a complete silence" and that by that time "[District] 65 had disappeared," is simply untrue. 34 Also on cross-examination, however, Ocana asserted that he withdrew from the District 65 employees organizing committee in or around Septem -ber (i.e., alegedly considerably before the November 16 meeting at the Pastrana home). Shown the "petition" with 213 signatures (G.C. Exh. 17) opposing return of Local 888 and pledging continued loyalty to District 65 - delivered, as shown above, to District 65 officials at the August 2 or September 4 organizational meeting of District 65 - Ocana purported to be unable to recall whether he signed it (although he was a member of the District 65 organizing committee; his name appears on page 4 of that "petition," the same page on which Juan Vazquez's name appears); and claimed that its purpose was in June to counteract Local 888 's drive to return, which Ocana had previously sworn was in October. On cross- examination, Ocana conceded he never announced his resignation from the District 65 employees organizing committee, but that he merely indicated this to Vazquez and others who were "with me," as well as mentioning to Concepcion Pastrana in August that he was resigning. Ocana never wrote to District 65 to cancel or withdraw his membership in that Union, or for the return of dues or medical plan prepayment. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Live Workers District 65 as late as August 1973 , although he never signed a card for that Union ; and also that when Retail Clerks Local 888 was "trying to come back" during September or October to the very "end of October," he approached Vazquez, Ocana and some others suggested that they obtain another union in which mechanics like himself (there are only about 8 such - all males - out of a total male and female work force of over 400) could be represented or better represented, suggesting the Teamsters. On cross-examination, Peneherera conceded that he also personally observed District 65 organizational activity as late as October not only by its organizing committee members but also by that Union's official, Julio Mojica - indeed, by the latter, even in November. And Peneherera conceded that the first mention he heard of Teamsters Local 806 - for which he immediately participated in "card" solicitation - was during the third week of November, 4 days after a meeting of the District 65 employees organizing committee in the Pastrana home. Anthony Calagna, president of Teamsters Local 806, also testified as a witness for that Union . Calagna asserts that, when he was approached by Vazquez in November on the question of representing Respondent's Jersey City plant workers, Vazquez told him that "he" wanted a union for the place where he worked, and spelled out for Calagna the circumstances of the Retail Clerks Local 888 decertification as well as the "inability" of Distributive Workers District 65 to gain the Employer's approval for recognition 35 Subse- quently, Calagna was summoned to the November 16 meeting at the Pastrana home which has already been described. In contrast to the testimony of Vazquez and Ocana, however, Calagna swears that at that meeting he was indeed asked why or how Teamsters Local 806 could gain recognition from Respondent when District 65 had failed in that attempt ; and that he replied that his Union was the biggest union in the world, controlling all deliveries, and that this was a "good equalizer." More will be said concerning this and his Union's immediately successful recognitional request below, in connection with the subject of Respondent's recognition and contracting with Team- sters Local 806 as the exclusive representative of its employees, under the circumstances described , in rapid fire order and without awaiting a Board election or arranging for any variety of non-Board election, and without verifica- tion of the number or authenticity of the "cards" presented or the circumstances under which they were procured. There was also testimony concerning the foregoing by members of Respondent Employer's management team. This testimony does not bear out the assertion of its counsel 35 Although in this proceeding Calagna swore that he did not supply Vazquez with any Teamsters Local 806 membership/bargaining authonza- tional designation cards at this time, in an affidavit sworn to on July 19, 1974, submtted to the U.S. District Court for the District of New Jersey in opposition to an application by the Board's Regional Director for a temporary injunction pursuant to Sec . 10(1) of the Act, Calagna swore that he didgive Vazquez a large batch of Local 806 cards at this time ss Confronted on cross-examination with his preheanng affidavit sworn to January 20, 1974, after reaffirming his statement therein that "I [Kaye] was not subsequently [i.e., after receipt of District 65's letter requesting recognition ] contacted by anyone from District 65," Kaye conceded that District 65 Vice President Mojica did in fact telephone him around May 26- 28 but that he did not return Mojica s call. Kaye further explained that he omitted stating in that affidavit that he had been informed by Jersey City in his opening statement that in the "midsummer" and "fall" of 1973, except for "occasional vague rumor of chatting or gossip in the plant," Respondent had "no knowledge of the so-called interest, support and ongoing campaign" of Distributive Workers District 65. Testifying as Respondent's witness, its vice president for manufacturing and distribution, Gilbert Kaye - who has been associated with the Company since its formation by merger in 1973, as well as with its predecessor(s) since 1965 - stated that he has total responsibility for Respondent's Jersey City plant (as well as its Harrison and Bloomfield, New Jersey, plants), including industrial relations, with the plant and/or general manager there reporting directly to him. What is now and since late 1966 or early 1967 the "Jersey City" plant was formerly located in Bloomfield and previously in Harrison , New Jersey, and before that in Brooklyn, New York. For the past 20 years or so employees of that facility had been represented by Retail Clerks Local 888 until its decertification in May 1973 as has already been recounted. According to Kaye, within about 10 days after the decertification of Local 888 and prior to Respondent's receipt of any recognitional request from District 65, he met with a group of employees (at the employees' request) in the office of then Jersey City Plant Manager Petrera. Although some employees expressed support for District 65, others wanted Local 888 back; others favored "a Teamsters organization"; still others "were willing to go it alone" with no union. The employees asked Kaye if the Company would recognize a union of the employees' choice. Kaye answered that the Company was not bound to recognize any union for 1 year following the decertification election. Juan Vazquez (and his son Frank Vazquez) indicated that District 65 had been approached with a view toward representing the employees. Apparently Kaye had, accord- ing to his testimony, from March through May 1973 including a 2-week period following the May 11 decertifica- tion election, been independently advised by various plant employees during plant visits, that some desired no union at all but favored dealing with the Company directly, from all of which Kaye gleaned that there was a broad spectrum of opinion among the unit employees regarding their represen- tation desires. Kaye concedes that he received District 65's first written (recognition requesti(G.C. Exhs . 4 and 5) during the last week of May 1973 and that the Company never responded to it in writing or orally; Kaye also concedes that the signer of those letters, Julio Mojica, telephoned him a few days later and left the message for Kaye to call him back, but that Kaye never did so36 Plant Manager Petrera that Petrera had been visited personally by Mopca seeking a meeting with Kaye, because he (Kaye) did not "recall" telling that to the Board's Regional Office agent with whom he discussed the matter. Confronted thereupon with his July 22, 1974 , affidavit submitted to Chief United States District Judge Whipple in opposition to the Sec. 10(1) temporary injunction application of the Regional Director, wherein Kaye swore that he did indeed receive "one or two" telephone calls from Mojica, Kaye swore herein that it was "one only"; and, conceding that he knew the purpose of Mojica's visit to Petrera at the end of May was to secure recognition of District 65, Kaye explained that he omitted to mention this in his affidavit to Chief Judge Whipple through an "oversight." In view of these and other inconsistencies, lapses, alleged recollective failures, or carelessness under oath, I am unable to extend full faith and credit to various aspects of Kaye's testimony, particularly considering his interest and other circum- HARTZ MOUNTAIN CORP. 503 While asserting that the Company's failure to respond to District 65 was in pursuance of deliberate company policy, Kaye concedes that the Company did not know one way or the other whether the asserted District 65 claim of majority status (G.C. Exhs. 4 and 5) was false or genuine. It is necessary to weigh Kaye's assertion of company policy in this regard in connection with its contrasting reaction to the Teamsters Local 806 recognitional demand following that Union's collection of cards from Respondent's employees under circumstances to be described. Kaye further testified that on or about July 10, 12, and 18 he was informed by company counsel that counsel had (on the Company's behalf) orally declined recognition of District 65; and that around the same time company counsel informed him that District 65 Counsel Eisner was again requesting recognition of District 65, in response to which Kaye indicated that there was no change in the company position and that the Company would not recognize District 65.37 Kaye admitted on cross-examination that he was aware, from both Jersey City Plant General Manager Feinberg and Plant Manager Petrera, from May 23 to July 10, that District 65 was engaged in organizational activity among the employees there, including solicitation outside of the plant, card-signing by employees, and offplant meetings of employees at a nearby hotel. Also on cross-examination in seeming contrast to his earlier testimony,38 Kaye admitted that Petrera informed him that Mojica and an associate had visited Petrera at the plant and, after introducing them- selves, requested they be allowed to speak to a corporate officer to discuss representation, and that Petrera had supplied them with Kaye's name. Kaye somewhat crypti- cally testified that if, when company counsel informed him in July of the renewed request for recognition from District 65 Counsel Eisner, District 65 represented a majority of the employees, "then this would have constituted a crystalliza- tion of employee sentiment which did not exist in late May, 1973" - but at the same time Kaye conceded that he was not interested in seeing the District 65 cards to determine whether in fact that Union represented a majority of the employees.39 Kaye testified that he was aware - from Petrera, Feinberg, and leaflets - that District 65 was conducting general organizational meetings for employees in June and July, and even in early August (Resp. Exh. 45 and C.P. Exhs. 8A and 8B - an August 2, 1973, leaflet and letter ,stances detailed below. Thus, for example, I cannot credit his sweeping denial, during cross -examination, of awareness of District 65 card solicita- tion before receiving its recognitionsl request at the end of May; nor that Jersey City Plant Manager Petrera told him that he (Petrera - who, for undisclosed reasons, was not produced to testify) was likewise unaware of it; nor that Petrera failed to inform him about Mojica's visit. Such demals overtax my credulity and cannot but reflect adversely on their author's overall credibility. 37 Kaye first testified he told company counsel that the Company would not recognize "District 65 or any other union," but thereafter modified this to limit it to "District 65." 38 Cf. fn. 36, supra. 39 It will be recalled that Distract 65 had expressly offered Respondent to demonstrate its majority status through cards, including before the Federal Mediation and Conciliation Service (G.C. Exhs. 4 and 5) - an offer which continued to meet with stony silence from Respondent (or refusal from its counsel), in stark contrast to Respondent's later speedy recognition of Teamsters Local 806 without any cardcheck of that nature, as will be seen. from District 65, produced by Respondent from a file of District 65 literature maintained by Respondent); that District 65 was sponsoring a contributory health-medical plan in August, and had conducted a group employees' meeting thereon; and that General Manager Feinberg had alerted him to employee interest in District 65 in August. Kaye further testified that he was also aware that from June through September a group of employees was meeting with Feinberg, Petrera, and Morales concerning "conditions at the plant," including the absence of health-medical benefits and "merit" wage increases; but Kaye denies awareness that the group - most if not all of whom were members of the District 65 employees organizing committee - spoke for District 654° During subsequent cross-examination, Kaye acknowl- edged that he was aware up to the very time of Respon- dent's recognition of Teamsters Local 806 (November 30, 1973) of the interest and activities of a group of employees in and for District 65,41 with ongoing card-solicitation at least until August. Finally, Kaye asserted that as of November 15 he was unaware of the interest of any employees in any union other than District 65.42 Kaye also insisted that at no time did he discuss the matter of the undesirability or possible undesirability of District 65 as bargaining representative of the Jersey City plant employ- ees - a statement which I regard as palpably incredible on its face. James William O'Connor, Respondent's vice president for engineering and labor relations, conceded on cross- examination that he was aware in June or July, from his colleague Kaye (also a vice president, with direct responsi- bility over the Jersey City plant, among other plants), that District 65 - as well as other unions - were engaged in an organizational drive at the Jersey City plant; and that he also knew in August, September, October, and "through November" from "pipelines in the plant" and Plant Manager Petrera that District 65 was engaged in an organizational drive, including card solicitation, outside of the plant, and also employees' organizational meetings. O'Connor reiterated this on further cross-examination and, amplifying on it, additionally testified that through at least mid-November he knew through Plant Manager Petrera that various unions - including Retail Clerks Local 888 and Distributive Workers District 65 - were, simulta- neously with Teamsters Local 806, conducting organiza- 40 Under the circumstances, I would have extreme difficulty in crediting this denial or equivocation, whichever it is. Kaye's carefully chosen testimony that he personally never observed any District 65 organizational activities subsequent to August 2 at best cannot be taken other than literally; even so it must be taken with extreme reserve , and certainly not as equivalent to a statement that Kaye was unaware or uninformed of such activity. Upon the record as a whole, I reject Kaye's denial - if such it is or is intended to be - especially because of the credited testimony of Jersey City Plant General Manager Feinberg that "I tell you, he [Kaye I saw it" in at least September and October if not also in November and December, as will be shown below. 41 1 reject Kaye's later superadded equivocation or assertion that he did not know they were working "specifically" on behalf of District 65. 42 But cf. II,A,1, supra concerning the organizational activities of Retail Clerks Local 888, including its amassing of almost 70 additional member- ship/bargaining authorizational designation cards in November, and the admissions by other of Respondent's officials (Vice President O'Connor, General Manager Feinberg, and by ascription without denial by Plant Manager Petrera) of knowledge as well as upward reporting thereof. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional drives and attempting to gain recognition as bargain- ing representative for the employees , and that some employees did not desire any union at all ; and that he generally passed such information upward to his superior, Executive Vice President Lovitz. The foregoing is in contrast to O'Connor's statement in his July 22, 1974, affidavit to the district court that "I had not been aware of any rival union activity or claim [i .e., other than by Teamsters Local 806] for quite some time , at least since August" (G.C. Exh. 143). We now proceed to the testimony of Respondent's managerial officials Feinberg and Morales concerning their knowledge of District 65's organizational activities and their upward reporting thereof. Respondent Jersey City Plant General Manager Morris Feinberg first entered its employ and was assigned as general manager there on July 16, 1973 , remaining in its employ in that capacity until June 28, 1974.43 As general manager of the Jersey City plant, Feinberg functioned directly under and reported directly to Respondent Vice President Kaye who was based at Respondent 's Harrison headquarters. Efrain Morales, personnel manager of the Jersey City plant, functioned under Feinberg. Since Feinberg was not at the Jersey City plant until July 16, 1973, he had no direct personal knowledge of District 65's activities there prior to that date44 However, as he testified, when or soon after he started Kaye told him that various unions including District 65 were attempting to organize the plant. Feinberg thereafter learned from subordinate supervisors and rank-and-file employees in late July and early August that, although opinion was divided, employee interest existed in District 65 (as well as in other unions). He subsequently met with different groups or "committees" of employees, with "no one committee [speaking] for all." In July and August, he was advised that District 65 representatives or spokesmen were visiting the "perimeter" of the plant ; and after Labor Day and throughout September he received reports concerning District 65's organizing activities outside of the plant, including discussions with employees as they were leaving the plant. Although Feinberg seldom left the plant during lunchtime, on such occasions as he did he himself observed a person he knew to be a District 65 organizer (Tito Ortiz) in a car parked outside the plant, with others there with him, from time to time through the end of 1973. 43 Feinberg was no longer in Respondent's employ when he testified in this proceeding. In appraising his credibility, I have taken into account that fact and his consequent apparent lack of direct interest because of his disassociation (other than some pecuniary continuity) with Respondent, as well as his testimonial demeanor, which impressed me generally favorably with limitations as shown, arising in part from conflicts arising out of affidavits he signed for the district court. 14 His predecessor (to the extent that he can be said to have had one, since he was the first to fill the position of general manager), Petrera (plant manager, who assumed a role secondary to Feinberg with the latter's advent) was not called by Respondent to testify 4' This incident is unmentioned, and most of these circumstances are also unmentioned or greatly muted, in Feinberg's July 22, 1974, affidavit to the district court (G.C. Exh. 145). 46 This, again, is in marked contrast to the carefully worded generaliza- tions, indicative of the contrary, in Feinberg's July 22, 1974, affidavit. 17 The foregoing far more explicitly factual testimony by Feinberg may be contrasted with the following seemingly carefully drafted generalized wording in his July 22, 1974, affidavit: "I could detect no pronounced surge Feinberg further testified, with precision and decisive firmness, that he was aware of employee interest in and organizing activities by and on behalf of District 65 from July to December 1973 - including handbilling outside of the plant, as late as October, November, and December, and also by Retail Clerks Local 888 - its official Lucas had introduced himself to Feinberg outside of the plant45 - from August through October. Feinberg further swore that he reported all of this activity (September, October, November, and December) to his superior Kaye, adding that "I tell you, he [Kaye] saw it" himself. Feinberg also testified that the District 65's organizing activities were greater in September and October than before that .46 Finally, Feinberg swore that he was aware of employee interest in representation by District 65 as late as Novem- ber 15 and perhaps later, and that he saw District 65 buttons worn in the plant in "heavy concentration" in November and December 1973.47 I credit this testimony of Morris Feinberg, Respondent's own witness. Respondent's Jersey City plant personnel manager, Efrain Morales, likewise conceded knowledge of Distribu- tive Workers District 65 (as well as Retail Clerks Local 888) organizing activities at the plant prior to December 3, 1973. Since Morales only came to the plant as personnel manager near the end of August (August 26 or 27, according to his testimony), his observation of those activities must presum- ably have been in the period from then on - i.e., during approximately September through November (and later) 48 He conceded that he saw and read organizing literature and announcements of meetings for District 65 between August 1 and December 31, 1973.49 Upon the record presented, it is clear and I find that Distributive Workers District 65 was, to the knowledge of Respondent, actively engaged in substantial union organi- zational activity among Respondent's bargaining unit employees from mid-May through at least November 1973. 3. Teamsters Local 806 organizational campaign and Respondent's recognition of and execution of contracts therewith We proceed now to a review of the events resulting in the recognition of Teamsters Local 806 by Respondent as the exclusive collective-bargaining representative of its Jersey City unit employees, and the contracts entered into between Respondent and that Union. of substantial interest in any particular union." Language of this type must yield to factual testimony under observed cross-examination at a hearing. 48 I find great difficulty in crediting large segments of the testimony of Morales, who impressed me as a loyal servitor anxious to outdo himself on behalf of his employer - to the extent, for example, of swearing that he "doles ] not think" he saw any District 65 buttons in the plant prior to December 3, 1973, that he was unaware that Concepcion Pastrana was interested in District 65 but was under the impression that she was in favor of Teamsters Local 806 on November 30, and that nobody indicated to him at any time prior to December 3 that District 65 was attempting to organize the plant - statements so palpably incredible that they border on the absurd. 49 Concerning these, Morales testified in his characteristically lethargical- ly evasive fashion that (although personnel manager) he kept no file on these and could "not recall" whether he turned these over to anybody although he may have told Feinberg about some of them. He then tossed in the further qualification that he was unable to recall which union or unions were involved since a number of unions were competing for the employees' loyalty. HARTZ MOUNTAIN CORP. 505 a. November 16-30 organizational activities Following the District 65 employees organizing commit- tee meeting at the Pastrana home on November 16, 1973, which has been described, Vazquez, Ocana, Sanabria (and perhaps another or other adherents) broke off or separated themselves from the employees committee and began actively soliciting on behalf of Teamsters Local 806, having obtained membership/bargaining authorizational designa- tion cards from that Union. This activity commenced on Monday, November 19. As of November 30 - a period of about 11 days, with an intervening weekend and a holiday, Teamsters Local 806 secured from Respondent Employer a signed recognition agreement (G.C. Exh. 2). The nature of the activities - including employer support, aid, and assistance - which achieved this result in such short order, in contrast to Respondent's continued "stonewalling" with regard to Distributive Workers District 65 notwithstanding that Union's known organizational activities and substan- tial employee interest therein and its proffer to demonstrate its majority strength among the unit employees (and also Respondent's ignoring of its strong employee following in Retail Clerks Local 888), will now be shown. Various bargaining unit employees, called by General Counsel as witnesses, and generally demonstrating a high order of testimonial credibility under strong and able cross- examination, testified - almost all in Spanish through an interpreter - concerning the circumstances under which they or fellow employees were solicited, importuned, invited, or induced to sign membership/bargaining authori- zational designation cards for Teamsters Local 806 during the brief final week or so of November 1973 preceding Respondent's prompt recognition of that Union as their exclusive bargaining representative. Fernando Aguirre, a machine operator in Respondent's employ since early May 1972, who was terminated by Respondent without assignment of reason during the pendency of this hearing,50 testified that following the decertification of Retail Clerks Local 888 he became active on behalf of Distributive Workers District 65 as a member of its employees organizing committee, together with Concepcion Pastrana, Nelson Cansing, Modesto Zapata, Juan Vazquez, Joaquin Ocana, Eddie Sanabria, and others - a committee which, Aguirre confirms, was still intact at the time of its described November 16 meeting at the Pastrana home, when or soon after which a minority consisting of Vazquez, Ocana, Sanabria, and Ms. Diaz split away from it. Commencing the week after the November 16 District 65 employees organizing committee meeting, Aguirre observed Local 806 cards being distributed on the first floor inside the plant during worktime, to employees while at work, principally by Juan Vazquez, Joaquin Ocana, and Eddie Sanabria. Aguirre observed Vazquez engaged in this activity openly and without hindrance, from 50 Aguirre's termination is discussed infra, II,B,3. 51 Although Feinberg denies this episode, on comparative demeanor observations in this aspect and the record as a whole I credit Aguirre, whose testimony, as shown below, is firmly corroborated by Nelson Cansing, another impressively credible witness. 52 Although Vazquez to a degree disputed Algann 's account of his card- signing for Local 806, I credit Algarm's version. Vazquez' aide Peneherera swore he is positive it was he (Peneherera ) who gave the Local 806 card to November 17 to the end of November on an estimated 10 to 15 occasions, on his and other employees' worktime; during this period from November 17 on, Vazquez appeared to be devoting his full time to this activity, openly and without employer objection or interruption, at the same time without hindrance from any of Respondent's supervisors openly downgrading District 65 to the employees whom he solicited for affiliation with Teamsters Local 806. At times Aguirre observed Vazquez and Ocana together in this activity. As for Ocana, he also was observed by Aguirre on numerous occasions during the same period , engaged in the same activity as Vazquez, also openly and without supervi- sory hindrance during worktime, and also seemingly at times engaged exclusively in this activity. Aguirre likewise observed Sanabria engaged in the same activity on a number of occasions (estimated at four to eight), during worktime, spending as long as 10-15 minutes with a working employee in enlisting him or her into signing a Local 806 card. Around November 24 or 25, Aguirre (in the company of fellow employee Nelson Cansing - who, as shown below, corroborates Aguirre) was told by General Manager Feinberg in the plant that he (Aguirre) was a "good worker" and that Feinberg "wouldn't like having to fire me [Aguirre ] if I didn't sign the card .... If any of the employees who were working for 806 came to offer me a card, to have it signed, because that union was going in." 51 Felix Algarin, an order picker in Respondent's employ since June 1, 1973, testified that while he was at work on November 21, 1973, he was approached by Juan Vazquez, who handed him a blank Teamsters Local 806 card and told him that "by signing those cards he [Vazquez] would go and speak to that union" ; but, according to Algarin, to his surprise "it didn't happen that way" - instead, "all of a sudden the union was inside." Algarin further swore that another reason why he signed this card was that a day or two before Vazquez handed it to him, Alex Ocana, in the presence of fellow employee Francisco Altamirano, had warned him that those who did not sign cards would be fired when Local 806 came in and that Local 806 already had a majority. Algarin had previously signed a card for District 65 in or about July, which he never revoked or withdrew.52 Rafael Bueno, employed by Respondent as an order picker for a short period from late 1973 to early 1974 - and whose alleged discriminatory discharge figures as part of this proceeding and is discussed below - testified credibly that he signed a Teamsters Local 806 card on November 21, 1973, at the behest of Vazquez, who presented the card to Bueno - who can barely read English - and asserted to Bueno that the Company had indicated it would recognize Local 806 but would never recognize Local 888 or District 65. According to Bueno, although he wanted District 65 to represent him, because of Vazquez's assertion he signed the Algann in the presence of Vazquez, and that he (Peneherera) or Vazquez filled in the date on it, that the only thing said to Algarin was to read and explain the card to him after cautioning him to "pay much attention ," and to be careful in filling it out. After seeing Peneherera and Vazquez as they testified, and comparing Algann's demeanor, I have grave difficulty in picturing a scene such as described by Peneherera , whose general credibility impressed me as wanting. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card on the theory that Local 806 was the only union realistically available in view of the Employer's attitude.53 Milagros Cancel, another unit employee and a most impressive witness, testified utterly persuasively that when she applied for employment at the Jersey City plant in November 1973, after a brief wait in the waiting room of the Personnel Office she was called into the office of Personnel Manager Morales, who interviewed her in the presence of two secretaries. After questioning Ms. Cancel about her education and background and informing her as to the rate of pay, Morales handed her an application form together with a Teamsters Local 806 member- ship/bargaining authorizational designation card and told her to fill them out in the personnel office waiting room immediately outside of his office. She did so. While she was in that waiting room, Juan Vazquez came in and also told her to fill out the card; at the same time Vazquez handed out Local 806 cards to the 15 or more other persons there and told them to "fill them out" - all within the sight of Morales, who was standing in the nearby doorway between the waiting room and his office handing out employment application forms. In the waiting room, after she had signed and dated the Local 806 card (November 27, 1973), she asked Morales what it was for ; when Morales started to answer, Vazquez broke in and stated it was for the union that was "representing" the employees and "give [you your] benefits." She thereupon handed the Local 806 card together with her employment application to Morales, who hired her and she started to work that day.54 Nelson Cansing, a hi-lo machine operator in Respon- dent's employ for 4 years, confirming other employees' credited testimony to the same effect, likewise testified credibly that on various occasions toward the end of November he observed Vazquez, Ocana , and Sanabria (as well as others) soliciting unit employees, throughout the downstairs portion of the plant, to sign Teamsters Local 33 Vazquez flatly denies Bueno's version or that he ever even asked Bueno to join or sign a card for Local 806. 1 have already indicated - and shall later at greater length describe additional reasons for - my grave reservations concerning Vazquez's credibility herein. I credit Bueno's version. 54 Testifying on this subject as Respondent's witness, Morales simply denied giving Ms. Cancel a Local 806 card or asking her to sign it ; on cross- examination the following day, however , he swore he was unable to "recall" her job interview. Vazquez totally disputed the episode as recounted by Ms. Cancel ; according to Vazquez, he told Ms. Cancel and her husband Wilfredo Lorenzana in the "hallway" at the "side," outside of Morales' office, not in the presence of Morales, that Mercedes Rivera (another employee - she, as well as Ms. Cancel, were later terminated by Respondent , as is discussed in I I,B,3, infra) had told him to give them Local 806 cards and that they wanted to have "the union in" since "we did not have a union," and that this conversation took place after they had been hired . For reasons already in part indicated, and amplified hereafter, I was impressed with the poor rather than the good quality of Vazquez as a witness. Under the circumstances, my rejection of his version and my preference for and acceptance of the version of Ms. Cancel represent an easy choice. As I have already indicated, Ms. Cancel was a highly impressive witness whose demeanor and assured delivery commanded belief. Unlike most of the other unit witnesses she testified in English ; is an educated as well as intelligent , highly articulate person whose testimony rang with truth - in marked contrast, also, to the testimony of Morales, with his alleged memory deficiencies and mincing equivocations, which were perhaps in the most charitable view the product of desire not to harm or displease his employer. Respondent saw fit, for undisclosed reasons, not to produce either of the secretaries who Ms. Cancel swore were present during her interview with Morales. Incidentally, Ms. Cancel signed a card for District 65 late in December 1973 - although not directly material in the aspect of this case under immediate discussion, nevertheless further indication of that Union's continuing vitality among unit employees even in December. 806 cards, spending as much as 10 minutes with each employee, during regular working time. There is again no indication of objection by or interference from any supervi- sory personnel. Further, Cansing corroborates the credited testimony of Fernando Aguirre (supra) that on or about November 25 he and Aguirre were told by General Manager Feinberg 55 (outside of the plant cafeteria) that if they were presented with Local 806 cards they should "sign it" or else "he would be very sorry to have to fire [you]." Although Aguirre said nothing to this, Cansing responded to Feinberg, "Me no like Union 806." Two or three days later - still in November - Cansing was called to Feinberg's office, where, in the presence of Alex Ocana (acting as interpreter) Feinberg informed Cansing that he (Feinberg) was aware that Cansing had been offered a supervisory position (as he indeed had, by Personnel Manager Morales), and that Feinberg was awaiting word on this from "Harrison" who knew that Cansing was "with District 65, and they wanted to be sure I [Caning] got away from the movement and after a few days, the first of December, Union 806 was going to be recognized, and he [Feinberg] would advise me to have the benefits.... (It will be recalled that Caning was a member of the District 65 employees organizing committee.) Cansing indicated willingness to accept the supervisory position but wanted to know what benefits he would derive. Feinberg replied that he did not know but wanted to be sure that Caning was "out of [the District] 65 group"; and that Caning would be placed in charge of the machinists, with a choice of building location.56 Notwithstanding his acceptance of the invita- tion to become a supervisor when he received it from Morales earlier in November (or October), as of the date of the instant hearing he had not received it.57 Caning also brought out that at least three of Respondent's supervisors - Ildefonso Urdaneta (a foreman), Efrain de Jesus (a foreman's aide), and Carmen Cuaz (a forelady's aide) - ss As already indicated, although Feinberg denies that episode, on comparative demeanor observations I prefer and credit the mutually corroborated account of Aguirre and Canning. is While admitting that he spoke to Cansmg in his office, with Alex Ocana - a chief Teamsters Local 806 protagonist - as interpreter, in November concerning Cansing's pending supervisory assignment, and that he (Feinberg) was aware of Causing's District 65 sympathies, Feinberg would have it according to his testimony that he merely relayed on to Caning that no decision on his supervisory job might be forthcoming for a few more weeks and that the subject of District 65 remained unmentioned, but that Feinberg did remark that he would expect a supervisor to be without any union affiliation. However, in his July 22, 1974, affidavit Feinberg had sworn, concerning this episode, "I did have a conversation with Cansing in my office late in November at winch time I discussed the possibility of his being promoted to a supervisory position at the plant.... I knew Caning sympathized with District 65, so I toldhim that he could not remain affiliated with that or any union if he became a supervisor . I did not tell him that he had to abandon District 65 as a condition of being given the supervisory job." [Emphasis supplied.] (As appears from Cansing's testimony - undisputed in this regard and, indeed, conceded by Respondent as to Ildefonso Urdaneta - no fewer than three of Respondent 's supervisory employees not only belonged to Teamsters Local 806 but were also members of its organizing comnuttee.) Cansing's account of the November episode in Feinberg's office is undisputed by Alex Ocana, who according to Feinberg as well as Cansing was there and acted as interpreter for Feinberg, and who testified at length on other facets of the case. 57 Several years ago, Cansing had filled the role of an "acting" supervisor or foreman's aide for approximately a year, but was relieved of this at his own request when no pay raise was forthcoming. HARTZ MOUNTAIN CORP. 507 are members of Teamsters Local 806, and that the initial Local 806 organizing committee in November 1973 included these three supervisory employees of Respondent. Miguel Denizad, employed by Respondent since the end of August 1973, testified that 3 or 4 months after he had signed a union card for Distributive Workers District 65 (which, according to his recollection, was around a month after his employment started), he signed a card for Teamsters Local 806 which he did not date or otherwise fill out since he cannot read or understand English. According to his testimony, he signed the card after receiving notification in his pay envelope indicating that he would be discharged if he did not do sops and because Vazquez told him, "Sign the card." Although the date November 21, 1973, appears on the card, Denizad credibly insisted that he did not fill that (or any other date or information) in on the card, and his testimony - despite some confusion on his part on the subject of the date of Christmas in relation to another holiday or celebration date in Puerto Rico - in totality fairly indicates that he signed the Local 806 card after the November 30 recognition date of that Union and that, therefore, his card was predated by someone else.59 Luz Fabiola Diaz, a unit employee employed as a packer on the second floor of the Jersey City plant, testifying in similar vein to numerous other unit employees, testified credibly that on three or four occasions in November 1973 after Thanksgiving she observed Vazquez - a first-floor employee - during worktime soliciting employees on the second floor to sign Local 806 cards. (According to Ms. Diaz, at least three supervisors were assigned to the second floor - William Presutti, Carmine de Rosa, and "Mr. Ernie.") Also in November, Ms. Diaz further observed Ocana and Sanabria during their and second-floor work- time, uninterruptedly soliciting unit employees to sign Local 806 cards almost every day. At or around the same time, she saw Vazquez in conversation with Local 806 representatives in the plant, and those representatives engaged in conversation with General Manager Feinberg also. Christina Flores, who like most of the unit employees neither speaks, reads, nor writes English, testified that she started in Respondent's employ in August 1972, continuing until mid-January 1974. Shown her alleged member- ship/bargaining representational designation card in Teamsters Local 806 bearing the date November 21, 1973, she stoutly denied that she ever signed or dated or otherwise wrote anything appearing on that card, or that as It is observed that the collective agreement entered into between Respondent and Teamsters , dated December 1, 1973, contains a "union security" provision conditioning continued employment of unit employees upon membership in Teamsters Local 806 (G C. Exh. 3A). 59 Testifying on this matter, Vazquez first swore that Denizad signed the card in his presence after Ismael Reyes filled it out. When, however, it was pointed out to and conceded by Vazquez that the date on the card is in a differently colored ink from the rest of the entries on the card, Vazquez - in his characteristic testimonial style - backed away from his earlier testimony, indicated he may not have seen the date filled in, and conceded he did not see Reyes change pens ; and still later he further conceded that he did not know who wrote the date on the card or whether it was on the card when he turned it over to Teamsters Local 806. When Vazquez nevertheless insisted he "knows" he turned this specific card over to that Union prior to December 3, in the face of his testimony that he also gave out cards to employees and turned them over to the Union after December 3, Vazquez was unable to offer any explanation for his alleged ability to distinguish this she ever authorized anybody to fill out such a card for her. Further testimony elicited from her was that although her husband told her he had signed a card for her in Local 806, notwithstanding that she had no desire' to affiliate with Local 806 and had already joined District 65, the card in question with her name on it is neither in her handwriting nor in her husband's handwriting.60 Wilfredo Lorenzana (Lorenzano), a unit employee of Respondent until around April 1974, testified that he applied for a job with Respondent on November 27, 1973. After waiting in the personnel office waiting room for awhile, at or around 10 a.m. he was called into the office of Personnel Manager Morales for interview. Present in Morales' office, in addition to Morales, were two secretaries and Juan Vazquez. Lorenzana had previously observed Vazquez going in and out of Morales' office as other job applicants were entering there from the waiting room before Lorenzana's interview. In Morales' office, with Morales looking on, Vazquez handed Lorenzana a Team- sters Local 806 card and stated that it "was the union which was legally representing the workers there" and that "it was for the union that will represent you." Morales remarked "that it was true," and also told him that his ,signature on the card was "necessary to be signed to belong to the union and to be able to work there." Lorenzana filled in the card (G.C. Exh. 27), dated it on that day (November 27, 1973), and signed it. Morales thereupon gave Lorenzana an employment application form which Lorenzana filled in, asked him a few routine questions, offered him a job at $1.80 per hour, and informed him that "later on... [you] would have more benefits according to the union that they had there ... the same as the one in the card [you ]fill[ed] in." Morales then called the supervisor to whom Lorenzana was assigned. Present throughout this episode were Mo- rales, two office secretaries, and Vazquez. When Lorenzana left Morales' office to reenter the personnel office waiting room, there were an estimated 17 or 18 persons waiting there: Vazquez, who had stepped out of Morales' office with Lorenzana, began distributing Local 806 cards to the persons in the waiting room. One of them - identified by Lorenzana as Valdes, who knew no English at all - asked Lorenzana to help him fill out the Local 806 card, and Lorenzana did so without reading the card to him. Lorenzana heard Vazquez tell the employees to whom Vazquez was distributing cards there that the cards were for the Union which represented the employees working there and which would also represent them. When Lorenzana left card from the others; grappling at straws at this point, he finally offered the lame explanation that he remembered one card - not Denizad's - was turned over to Local 806 before December 3 because its signer was "very fat." Reyes was unexplamedly not called to testify. I credit Denizad's testimony that this card was not signed on November 21 or prior to Respondent's recognition of Teamsters Local 806. 60 A second Local 806 card was presented here, dated January 9, 1974, this one admittedly signed by her after Christmas 1973. Since this card is subsequent to Respondent's recognition of Local 806 here in question, it is immaterial to this proceeding. With regard to the first alleged Christina Flores card - i.e., the one bearing date November 21, 1973 - Vazquez denied any recollection of ever having seen it before . I am unimpressed by and wholly dubious of the testimony of Ocana that he remembers receiving it "precisely . or more or less" - whatever that may mean - on November 21, 1973, from Cresenziano Salcedo (who was not called to testify), but who was unable to identify the signature thereon, leaving Ms. Flores' testimony in effect unchallenged. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the personnel office waiting room, Vazquez was still there speaking to employees, soliciting them to sign Local 806 cards. Subsequently, in December, Lorenzana signed a union card for Distributive Workers District 65, and still later, in January 1974, he asked Morales to return his Local 806 card, telling him he had not authorized a continuing dues deduction for Local 806, but Morales informed him that this was not possible and that he could not continue to work for Respondent without belonging to Local 806. Lorenzana told Morales he would place the matter before the National Labor Relations Board, which he did the next day.61 Hector Lozada, another unit employee, testified with persuasive credibility to a comparable experience in Re- spondent's personnel office on November 24,1973 - also, as in the other instances which have been described, prior to Respondent's recognition of Teamsters Local 806 - while in process of interview for employment at the Jersey City plant. After Lozada had filled out an application form in the personnel office waiting room, he was approached in that room by Juan Vazquez, who asked him if he had "filled out the card for the union." When Lozada answered that he had not, Vazquez handed him a Local 806 card and told him to fill it out. At the same time , Vazquez similarly informed and handed Local 806 cards to four other job applicants there. Although Lozada filled in the blanks on the Local 806 card he had received from Vazquez, he did not sign the card at that time. Later that morning, in the office of Personnel Manager Morales, Morales asked Lozada if he had filled out the card for the Union. Lozada informed Morales that he had and showed him the card. Morales remarked that it was "a strong union . . . the union of the truck drivers" and that "that was the union that would represent [you]." Lozada actually signed the card on November 27, the day he started to work at the plant, on which date he was approached at his workplace during worktime by Vazquez, who asked him for his card, which Lozada then gave him. Lozada subsequently, in December, signed a card for Distributive Workers District 65. Lozada's employment with Respondent was terminated on March 26, 1974.62 Jose Maisonet, another unit employee, entered Respon- dent's employ as a hi-lo forklift operator on November 13, 1973, remaining in that capacity until he was terminated on 61 Vazquez testified that neither Morales nor any of his clerks was present while Vazquez solicited Lorenzana's Local 806 card, allegedly outside of Morales' office with the door to Morales' office closed ; Vazquez then appeared to indicate he (Vazquez) was not even in the personnel office waiting room but in the hallway outside, whence he grudgingly conceded he could not have seen whether Morales' office door to his waiting room was open or closed. Furthermore, it is difficult to perceive how Vazquez could have been distributing cards to and speaking with persons in Morales' personnel office waiting room from the hallway outside. After listening to Vazquez's labored version of this episode and observing him closely as he pursued his path through it, I was left with the strong impression that it was being retailored, and I accordingly reject it and credit Lorenzana's version. Furthermore, unexplainedly the two office clerks of Morales were not produced to dispute Lorenzana's testimony in any way. As for Morales, although he asserted that he did not tell Lorenzana he would "have" to sign a Local 806 card, he also testified he was unable to recall interviewing Lorenzana at all. While, to be sure, there are some variations in details between Lorenzana's testimony and his prehearing statements , nevertheless, upon the record presented , including evaluation of comparative testimonial demeanor while observing each of these witnesses under cross-examination, I prefer and credit the testimony of Lorenzana. April 26, 1974, also during the pendency of this proceeding. There has been presented here a Teamsters Local 806 card bearing Maisonet's signature, dated November 27, 1973 (G.C. Exh. 60). Maisonet's credited testimony establishes the following concerning this card. Around December 10 Maisonet was approached by Juan Vazquez, who told him that he "needed somebody for the 806 committee ." Maiso- net replied that he did not wish to be involved . Vazquez then asked him if he had signed a Local 806 card and Maisonet said no. About four times in December, during working time, Vazquez tendered a Local 806 card to Maisonet for signature, warning him that if he did not sign it he would be "put out." In January 1974, Maisonet received permission from Personnel Manager Morales to take leave for the purpose of visiting his sick father in Puerto Rico. Thereafter Maisonet was again approached by Vazquez, who suggested that he sign a Local 806 card to enable him to obtain the "benefits from the union " in case anything happened to him during his trip to Puerto Rico. Maisonet swears, and I credit his testimony, that the date "11/27/73" which appears on this card (G.C. Exh. 60) was not placed on it by him and that he signed this card in January 1974 a few days before he left for Puerto Rico on January 28, he fast having learned about his father's illness there from a telegram received by his brother around January 15, 1974.63 Jose Peguero, another unit employee, employed as a merchandise organizer, likewise testified that in November 1973 he observed Juan Vazquez distributing union cards in the plant during working time , interrupting his own work to go to different plant areas in order to do so.as Peguero testified that he signed a Teamsters Local 806 card as well as a Distributive Workers District 65 card and probably also a Retail Clerks Local 888 card, with the understanding that if he signed cards for all unions there would be an increased likelihood of an election ; he himself clearly favored District 65, of which he later became a committee member. Teamsters Local 806 presented testimony of a number of witnesses concerning its advent into the unit employees' representational picture at Respondent's Jersey City plant. At the outset it must be observed that the opening statement of counsel for Local 806 that when that Union entered the picture in November 1973 it was unaware that 62 Concerning the foregoing , Vazquez testified that he was unable to remember Lozada or his card. Ocana, however, testified that it was he who gave this Local 806 card to Lozada, who signed it in his presence "more or less before" December 3; but Ocana was unable to explain why two different dates (i.e., November 24 and 27, as credibly explained by Lozada) appear on the card. As for Morales, he appeared to be careful to limit his testimony to stating that he did not ask Lozada to sign a Local 806 card - which is not inconsistent with Lozada's testimony - and he then asserted on cross- examination that he was unable to recall his job interview with Lozada. All circumstances considered, I credit Lozada's version of the episodes. 69 Concerning the foregoing, Vazquez testified that the Maisonet Local 806 card was not signed in his presence and that he does not know who solicited it, but that he received it "before December 3." Asked how he could be certain of the date (with so many cards involved), Vazquez replied with a 11 flash of indignation, "Because I am certain... . 64 Peguero figures in an allegedly discriminatory discharge in violation of the Act, dealt with infra es Peguero's testimony to this effect is consistent with, and so amply corroborative of, like testimony of numerous other credited witnesses, that I credit it in this aspect. HARTZ MOUNTAIN CORP. 509 any other union was involved or represented employees there is at variance with the facts established here, including testimony of its own witnesses (Vazquez, Calagna, etc.). Much of the testimony of Teamsters Local 806 witness Juan Vazquez has already been reviewed, in conjunction with the countervailing testimony of numerous unit em- ployees whom I have no hesitancy in crediting singularly as well as certainly in the aggregate, over Vazquez, whom I closely observed to be an unpersuasive witness, exhibiting a seemingly highly efficient memory for details helpful to his interests while at the same time grievously deficient as to details which might not serve the advantage of those interests, within the framework of an intelligent , alert, and agile mind. He also demonstrated a testy, quick-tempered intolerance at even the usual moderate probing of typical cross-examination, not hesitating at times to lash out at his interrogators with arrogant sarcasm,66 while consistently being evasive, and blunting question after question with irresponsive and lengthily discursive "answers." His testi- mony is also replete with inconsistencies and attempted retractions, modifications, and unpersuasive after- thoughts.87 Particularly in the face of the heavy counter- vailing testimony delivered by essentially simple but straightforward witnesses, I am unable to credit Vazquez's sweeping denials of engaging in card solicitation on behalf of Teamsters Local 806 under any of the circumstances described by those witnesses. Vazquez' testimony and affidavits in evidence (G.C. Exhs. 129 and 130) are, however, consistent with testimony of the unit employees here that it was indeed Vazquez who, in the period of hardly more than the last week of November 197368 was the employee kingpin of the success- ful operation to install Teamsters Local 806 as the employ- ees' "exclusive" bargaining representative under a compul- sory membership and dues checkoff requirement,69 not- withstanding the overwhelmingly strong following of Dis- tributive Workers District 65 (to say nothing of the very strong following of Retail Clerks Local 888). Vazquez testified that in conducting his organizational activities on behalf of Teamsters, commencing on November 21 (Wednesday), he passed on to the employees the informa- tion he had received from the representatives of that Union 66 E.g., after being picked up on a date (a month) and fearing impalement thereon, he denied - still under oath - what he had testified to and indignantly exclaimed , "I do not have an obligation to remember a date." 67 In view of the length of his testimony , a comprehensive analytical enumeration of these would encompass a good sized pamphlet . Confronted with the impeaching prehearing affidavit which he supplied to the Board investigator (G.C. Exh. 129), Vazquez in his characteristic testimonial style attempted to minimize it by asserting he does not read English and that he did not know whether it was correctly translated to him before he signed it. After some more cross-examination, however, he conceded that he had first discussed it with Teamsters Local 806 counsel and satisfied himself it was the truth. But, again characteristically, this was not the end of the matter testimonially. Shortly thereafter, Vazquez insisted that he had pointed out to Teamsters counsel that there were errors or inaccuracies in that affidavit. When it was then shown to him that he had initialed corrections or changes on various pages, he belligerently constructed a totally incredible attempted explanation of why his initials appear (or do not appear), and denied that he can read any English at all. Vazquez added , "I do not remember, it [i.e., changes - initialed by him ] could have been made any time after, also, and any document that has been retouched has no validity." 88 In his July 19, 1974, affidavit to the district court (likewise in English), Vazquez swore that it was "during the last week or so in November [that ] I started getting cards signed for Local 806 at the plant " (G.C. Exh. 130). that "their union was the most powerful in the world, and that so much so that they could paralyze ships," and that in effect it could therefore presumably gain recognition even without a strike.70 It was Vazquez, according to his testimony, who was the central collecting point for all Local 806 cards regardless of by whom or how allegedly pro- cured,71 and he who transmitted them to Local 806; and he conceded he did so without taking any steps to verify signatures, even though he returned some which lacked any signature at all. His testimony concerning the alleged dates when he turned over various cards to Local 806, and how many in December as distinguished from November, is either incomprehensible, confused, or unpersuasive and incredible, at least to the extent that any fording as to the true date or dates when they were signed would be unwarranted. Indeed, at one point 72 - again contrary to his previous testimony - he conceded that he may have "skipped" checking "some" cards - in Vazquez' words, "there were quite a few" - as to whether dates were filled in before he turned them over to Local 806. Concerning the credited testimony, as has been recount- ed, of various unit employee witnesses regarding how they were solicited to sign Teamsters Local 806 cards in Personnel Manager Morales' office or his adjoining person- nel office waiting room, notwithstanding Vazquez' broad denials here, it is ofinterest to note Vazquez' statements on this subject in his July 19, 1974, affidavit (G.C. Exh. 130, emphasis supplied): "I never told or had anyone sign a card for Local 806 inside or just outside the office of Mr. Morales, the Personnel Manager. I never had anyone sign a card when I thought Morales was close by and could hear what we were saying. I'm sure he saw me sometimes in the waiting room talking with applicants. Although Vazquez denies telling unit employees he was soliciting to sign Local 806 cards, that the Company would - unlike Distributive Workers District 65 - recognize Local 806 without an election, Vazquez' lieutenant, Joaquin Ocana - who testified he assisted Vazquez in that endeavor from the very first day, November 21, and succeeded in obtaining 60 or 70 signed cards - conceded 89 If valid, this, of course - since technically lawful in New Jersey - would have had the effect, under the proviso to Sec. 8(a)(3) of the Act, of blanketing all other unit employees, without exception, into dues-paying membership in Teamsters Local 806, under penalty of discharge from their jobs. 70 Presumably also, in the context of the existing situation at the Jersey City plant, without a Board-conducted election to actually resolve the question and doubts of the representational conflicts and real desires of the employees by secret-ballot election under the Act - under any circumstanc- es the preferred modality for determining employees ' true sentiments. Cf., e.g., N.L.1LB. v. Gissel Packing Co., Inc., 395 U.S. 575, 579, 596, 602-604 (1969). 71 In view of his testimonial style, which has already been alluded to, there is difficulty at times in ascribing a definite statement to Vazquez which is not umbilically linked to subsequent equivocation, modification , contra- diction, withdrawal, or focal blurring by his later testimony. Thus, again, although Vazquez first swore with seeming assurance that it was he who turned all Local 806 cards over to that Union , regardless of by whom solicited, he later swore with equal seeming assurance that not all of those cards were turned over to Local 806 by or through him. 72 During cross-examination concerning the Peguero card (Resp. Exh. 4), the Maria Santiago card (Resp. Exh. 29), and the Lindica Mosquera card (Resp. Exh. 38). 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he (Ocana) did tell employees that "the company would recognize 806 without an election." In view of corroborated credited testimony to the contrary, I do not credit the testimony of Ocana, any more than I do that of Vazquez, that at no time did he solicit signatures for Local 806 during working time.73 Ocana testified that he solicited Local 806 cards also in December - i.e., after the date of Respondent's recognition of Local 806 - as well as in November; without any clear or credible recognition of when various cards were solicited , after first denying that he ever filled in any information left blank on any Local 806 card, Ocana later conceded on further cross-examination that he did indeed fill in information on some of the cards. Emerson Peneherera, one of Respondent's few (i.e., about 8, out of a total work force of over 400) mechanical maintenancemen, also called as a witness by Local 806, also exhibited clear partiality toward that Union and hostility toward District 65 74 as well as Local 888. He testified that, when Vazquez asked him late in November if the mechani- cal maintenancemen were willing to participate in a union, he replied in the affirmative, whereupon Vazquez and later Ocana supplied him with some Local 806 cards which he (Peneherera) distributed at the end of November among plant employees including but not limited to mechanical maintenancemen, at various locations including the plant itself as he walked through it in the regular course of his work as mechanical maintenanceman throughout the entire plant. He also, at the end of November, became and has remained a member of the Local 806 organizing commit- tee.75 It was testified by various witnesses, including Vazquez, Ocana, and Sanabria, that at no time prior to recognition of Local 806 was any Local 806 organizational meeting of the unit employees held or called. Anthony Calagna, president of Teamsters Local 806, also testified as its witness.76 According to Calagna, within about 3 or 4 days after Local 806 cards were supplied to Vazquez, Calagna was informed by Gonzalez that a majority of employees had "signed." Thereupon, without in any way checking to see whether this was true, or as to the 79 This tesimony of Ocana - like Vazquez, an unsatisfactory (as well as truculent) witness - was seemingly eroded by his own later testimony on cross-examination , that he did not do so on working time "that I remember at this moment" [emphasis supplied] ; and by his further testimony that he solicited such cards "at any time the supervisor didn't pay attention." It is not apparent why - considering his known and open advocacy of Local 806 - if Ocana restricted his solicitational activities to his lunch and workbreak times, he would be concerned about whether any supervisor was "paying attention." Ocena was employed during November 1973 as an inventory checker with a roving assignment covering the entire first floor of the plant. He later conceded he also solicited Local 806 cards on the second floor as well in November and December. 74 He indicated, for example, that he incredibly heard "not one voice" in favor of District 65. On cross-examination he anchored his recollection of first knowledge of Local 806 to a Tuesday during the third week of November 1973, 4 days after a meeting in the home of Concepcion Pastrana, whom he acknowledged he knew to be a member of the District 65 employees organizing committee. 75 Eddie Toro Sanabna, a fourth member of the employee group assisting in the operation resulting in Respondent's recognition of Teamsters Local 806, insisted that his activities were limited to distributing and not collecting such cards. 76 His aide, John Gonzalez, who figured prominently in activities herein and who served as Calagna's Spanish interpreter in dealing with Vazquez and other central actors in these events , was without explanation not called as a witness. genuineness of the names, signatures, or otherwise, Calagna telephoned Respondent's Jersey City plant general manag- er, Feinberg, and stated to him that "We have your people signed and we would like a meeting .... for recognition." The same or next day Calagna received word to meet Respondent's vice president, Kaye, at the plant. At that meeting - which was on November 2677 - present in addition to Calagna and Gonzalez were Kaye and Fein- berg, and members of an employees' "Local 806 commit- tee" (i.e., Vazquez and his aides). Further according to Calagna - but not other witnesses, except Vazquez - he displayed a bundle of cards, asked for recognition, and said, "Count them," whereupon Feinberg (Calagna correct- ed this on cross-examination to Kaye) picked them up and without counting them said it was his opinion that the Union did not have a majority and declined to recognize it ?8 Calagna thereupon remarked, "If [you] want[ed] more proof .... I will get you some more cards." 79 On cross- examination, Calagna first swore explicitly that he was not told by Kaye that the Company would recognize Local 806 when it had a majority; however, when shown his July 18, 1974, affidavit to the district court80 to the contrary, Calagna conceded that he was indeed told that in substance by Kaye. In order to preserve what appears to be a better continuity in reconstructing these past events through the maze of discontinuous narrative of a large number of witnesses, we shall at this point again pick up the testimony of other witnesses concerning the events prior to Respon- dent's recognition of Teamsters Local 806 on November 30 - i.e., in part dealing with the important issue of the circumstances under which Local 806 cards were solicited and obtained - after which we shall describe the recogni- tion scene of November 30 including Calagna's version thereof. Respondent's version of the circumstances under which signatures (or alleged signatures) on Local 806 cards were obtained and dated, or its knowledge thereof,81 is as follows. 77 On or about November 27, according to Calagna, but on November 26 according to other witnesses. 78 On cross-examination, Calagna corrected his testimony and asserted that Kaye did not even remove the rubber band which surrounded the cards. According to Calagna's uncorroborated and somewhat vague testimony, he had "about 198" cards when he left his union office in Elmhurst, Long Island (New York), and received "about 25" more upon arrival at the Jersey City plant. The unidentified and unverified (as well as apparently uncounted) nature of the cards allegedly received by the Union has already been mentioned - as have the circumstances under which Local 806 cards were solicited at the plant by the "Local 806 committee." 79 Calagna subsequently corrected this by asserting he was not sure he said this. 80 In the Sec. 10(j) temporary injunction proceeding before Chief Judge Whipple, referred to above. 81 At this point, it may be appropriate anticipatorily to observe that an employer's lack of knowledge - even a total , good-faith lack of knowledge - of the circumstances under which employees' signatures or alleged signatures and dates on allegedly valid union cards forming the foundation for the employer's recognition of a union were obtained, does not constitute a valid basis for its recognition of a union presenting cards which are not genuine as to signature and date, or which were obtained under improper circumstances, or which are otherwise not free from taint. It is clear that an employer extending recognition in any such situation does so at his absolute peril. See International Ladies' Garment Workers' Union, AFL-CIO [Bern- hard-Altmann Texas Corp J v. N.LR.B., 366 U.S. 731, 737-738 (1961). HARTZ MOUNTAIN CORP. 511 To begin with, no supervisors or personnel on a level lower than Personnel Manager Morales were produced by Respondent to testify that they had neither permitted nor observed any of the Local 806 solicitational activity by Vazquez and his aides during plant working time, repeated- ly described by numerous unit employees as so openly, visibly, and notoriously being carried on in late November. While I neither assume, find, infer, or conclude that those activities were in fact observed by any specific supervisor - excluding, for the time being, General Counsel's subpenaed Supervisor Negron (infra) - it would appear perhaps strange if in a plant of this size not a single one of the foremen and foreladies and their assistants would observe such open, notorious, and large-scale activity, or be in a position readily to testify that it did not take place, thereby challenging contrary testimony of numerous employees thus not left in contest other than by the interested and discredited card solicitors themselves. In the absence of such testimony, we are relegated to evaluating the testimo- ny of Respondent's testifying managerial personnel - Personnel Manager Morales on up - who were perhaps in not as good a vantage point personally to observe what was actually going on. We shall consider Morales first, and thence up the scale. According to Personnel Manager Morales, a native of Puerto Rico who characterizes himself as bilingual in Spanish and English in the conduct of his job, and thus able to understand what Vazquez and others were talking about in Spanish in his personnel office as well as elsewhere - although there was a company rule against solicitation during worktime, he concededly made no attempt to enforce this rule at any time prior to December 3, 1973. His reason for this, according to his testimony, was that no employee requested his permission to so solicit and because he had no personal knowledge of any infractions. I do not credit his testimony as to the latter, at any rate - i.e., that he had no knowledge of infractions - in view of at least the aforedescribed credited testimony of various employees concerning Vazquez' Local 806 solicitational activities in Morales' own office as well as in his personnel office waiting room, and also Morales' own personal role and participation therein. I also would have great difficulty in believing that, as personnel manager of the Jersey City plant, Morales - who acknowledged that he had daily discussions with General Manager Feinberg about plant conditions - was wholly ignorant of what was openly and 82 Morales admitted that in November 1973 he "heard" that Vazquez, Ocana, Sanabria, and others were soliciting for Local 806, and that he saw them doing this dung lunch and work break time as well as before working hours, but that nobody "made any complaint" to or told him they were also doing this during working time. I do not believe Morales was unaware of their activities during working time ; indeed, it was quite unnecessary that he be told about it, since he personally knew at least what was going on in his own office and personnel waiting room. And, since Morales concededly discussed plant conditions every day with General Manager Feinberg, it is quite inconceivable that the large volume of Local 806 organizational activities going on in the plant in late November would not have figured in those discussions - particularly in view of Feinberg's conceded knowledge thereof as shown below . Finally, on cross-examination Morales acknowl- edged that in the latter part of November Feinberg asked him specifically about the "numbers" of employees who had signed Local 806 cards, and that he told Feinberg that he (Morales) had "seen" Local 806 cards being distributed "in the plant." It may be of incidental interest at this point that on cross-examination notoriously going on there by Vazquez and his aides in the last week of November in the way of proselyting for Teamsters Local 806.82 With regard to Vazquez' Local 806 solicitational activities in Morales' private office or person- nel waiting room, Morales admitted that he did indeed observe Vazquez at various times handing out Local 806 cards and talking to job applicants in Morales' personnel waiting room (adjoining and interconnecting with Morales' private office), but not during Vazquez's working time.83 Whatever possibly strange definition of Vazquez's "work- ing time" may or may not be here involved in Respondent's corporate mind - e.g., that Vazquez was on "leave" or "break" during these times - was undeveloped and neither satisfactorily nor credibly explained; in view of already described credited testimony of job applicants showing that Vazquez's solicitational activity took place while Personnel Manager Morales and the members of his staff were on duty and actually engaged in interviewing job applicants and giving them forms to fill out, it would be unjustifiable to assume that they, too, were not doing this during working time - and for this reason, among others, I am not prepared to believe or find that Vazquez alone was not "on working time." Furthermore, after some hedging, backing, and filling, Morales embarrassedly appeared to conceded - seemingly contrary to Vazquez's testimony - that he had indeed observed Vazquez handing out Local 806 cards while Morales was standing in the doorway to his private office; that on those occasions when he observed Vazquez so doing in Morales' personnel waiting room , he (Morales) had no knowledge as to how long before he saw him Vazquez had been there or thereafter remained there; and that he had no idea of whether Vazquez was in Morales' personnel waiting room adjoining Morales' private office when the interconnecting door to Morales' private office was closed. Morales also swore that he does "not recall" whether he heard what Vazquez said to any of the employment candidates; that he never "invite[d]" Vazquez into his private office to hand out Local 806 cards and that he never noticed Vazquez there. On cross-examination, however, Morales acknowledged that while he was inter- viewing job applicants, including during November, Vazquez had walked into his (Morales') office (apparently un-"invited"), but that Morales had merely told him he was busy and would see him later. Morales conceded on cross- examination that he at no time attempted in any way to stop Vazquez from his Local 806 solicitational activities in Morales also acknowledged that in or around October 1973 he (together with Feinberg) discussed with Vazquez the idea of an "independent union" or "cooperative .... employees" (Morales' phrase) group for the plant - a concept which according to Morales was surfaced by Vazquez to them by his workplace on the plant production floor . According to Morales, who translated for Vazquez, Feinberg's reaction was that he "didn't want to be involved in any type oforganization. " 83 In contrast to his testimony here, Morales had sworn to the district court in July 1974 merely that, although "I [Morales] knew that Juan Vazquez and others were soliciting [for Teamsters Local 8061 from time to time [in November 19731 . . . I do not recall ever seeing them doing so on work tune." (C.P. Exh. 9, emphasis supplied.) And Morales' same affidavit is hedged with a further carefully worded qualifying clause concerning his own (i.e., Morales') actions (id, emphasis supplied): "I have never told any employee or job applicant to sign up with the Teamsters, during job interviews or at any other time, so that they would be discharge4 laid off or denied employment if they failed to do sa . " 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant personnel office ; Morales testified that it never "occur[red p' to him that if such union cards were being allowed to be distributed in the Company's personnel office candidates for employment might get a wrong impression. Morales acknowledged that no union cards were ever handed out in the personnel office on behalf of any union other than Teamsters Local 806 ; and that a person seeking employment would have no way of knowing that Vazquez, while distributing Local 806 cards there, was not employed in that very office. On cross-examination, Morales retreated into his "I don't remember" pattern when asked so broad a question as whether he ever had any discussion with any employee concerning Teamsters Local 806 ; although Morales subse- quently acknowledged informing employees that "normal- ly, the contract had to have a security clause that called for the employees to join the union," he again pulled back into denial of ability to "recall" the occasion or context of, or any person involved in, any such remarks by him. In contrast we observe Morales' assertion in his July 1974 affidavit that "I did indicate on a few occasions that I thought the Teamsters were a good union , and that once a union achieved recognition, all employees would probably have to join that union or be fired" (C.P. Exh. 9). After first denying that he ever discussed Distributive Workers District 65, Retail Clerks Local 888, or any other union, with any employee, Morales' attention was drawn to his statement in his affidavit (id) that "Occasionally I would discuss unions with an employee at his initiative" and he was asked which unions; his response, characteristically, was that he does "not recall" and, further, that he could not "remember" how that information got into his affidavit. In his July 1974 affidavit (submitted by Respondent in opposition to the Regional Director's application for a preliminary injunction), Morales swore that he, together with Vice President Kaye and General Manager Feinberg, attended a meeting on November 26, 1973 , with Teamsters Local 806 Representatives Calagna and Gonzalez and "thirteen production employees constituting the Teamsters' organizing committee" (C.P. Exh. 9).84 Morales' affidavit goes on to state (emphasis supplied): Either Vazquez or Sanabria on behalf of the employ- ees stated that the committee represented the vast majority of employees in the plant 85 Kaye asked them e4 Teamsters Local 806 President Calagna's version of this meeting has already been set forth above. as It will be recalled that the Local 806 "committee" was - unlike the District 65 employees organizing committee - wholly self-designated, unelected by the unit employees , and had never even conducted a meeting of the unit employees. u General Manager Feinberg, who was also present during this meeting, likewise testified that Calagna displayed no cards at this time. 97 It will be recalled that as of this time actually majorities of the employees had signed cards for Distributive Workers District 65 , as well as for Retail Clerks Local 888, as has been shown u The document in question is interesting . It is dated November 26, 1973, and captioned "CERTIFICATION." To begin with , there are two different versions or editions of it. One (G .C. Exh. 140), already referred to, contains a typed list of 17 names, with 13 alleged signatures; the other (G.C. Exh. 139 and Resp. Exh. 46) contains the same typed list of 17 names , with the same 13 alleged signatures but with numerous marginal notations indicating that various of the signatories were "absent" and either "replaced" or "answered for"; and two additional names and alleged signatures (Marcial and Sifbnger - the latter a terminated employee who, unlike District 65 adherents, was if they would be willing to sign a statement to the effect that they were speaking for the employees in making this recognition request on behalf of the Teamsters. They responded that they would . Kaye interrupted the meeting momentarily to prepare a written statement to that effect, which was then signed by the thirteen committee members present. Calagna, Gonzalez and the committee representatives then stated that the Team- sters had been designated by a majority of the employ- ees, and requested recognition. Kaye questioned the basis of this assertion. The committee responded that it had signed up a majority of employees and turned authorization cards over to the Union . Kaye said that the Company could make no commitment at that time, but would consider their request if in fact the Union did possess majority support . He also reminded them that the- Company had no legal obligation to recognize any union during the year following decertification. The meeting ended with Calagna stating that they would present authorization cards to the Company at a subsequent time. It will have been noted that, for example, this affidavit is inconsistent with Calagna's testimony that he presented Local 806 cards at that meeting.86 It will also have been noted that in his affidavit, Morales represented under oath that the Local 806 "committee" statement prepared by Kaye, concerning the supposed (and seemingly self-as- sumed) authority of that "committee" as the representative of "the vast majority of employees," 87 was in Morales' presence "signeby the thirteen "committee" members present. At the hearing of the instant case , however, on cross-examination Morales testified that he was unable to recall how many "committee members" were present; and, when he was confronted with the actual document they signed (G.C. Exh. 140), which only lists 13 names with some lines not signed, Morales conceded that he did not see 13 sign it as he had sworn in his affidavit to the district court.88 Finally, as already indicated in connection with the review of the testimony of unit employees regarding their late November 1973 experiences in the company personnel office - Morales' private office as well as his waiting room - involving their being solicited there into Local 806 membership, it is reiterated that their combined corrobora- recalled to work by Respondent, as will be shown infra) are added in handwriting at the bottom with some other handwritten remarks not appearing on the other copy of the November 26 "CERTIFICATION." The signatures on each copy include Ildefonso Urdaneta (No. 2 on G.C. Exhs. 140 and 139), who is admitted in Respondent's answer to have been a plant supervisor. It is stipulated here (G.C. Exh. 114) that prior to November 30 Respondent's vice president , Kaye, "had become aware that Ildefonso Urdaneta was a member of the Organizational Committee for Teamsters Local 806." Further concerning this document , Vice President Kaye , who was also present at the November 26 meeting and who prepared the document, testified that there were only eight employees present and that only those eight signed it. If - according to General Manager Feinberg and as shown by the number of names on the list - there were 17 on the Local 806 "committee," 8 would be a minority of even such a ` comnuttee." Feinberg testified that he became aware at the November 26 meeting that Distributive Workers District 65 and Retail Clerks Local 888 supporters were not present at this meeting. More will be said concerning this document in considering the testimony of Kaye ; see fn. 98, infra. HARTZ MOUNTAIN CORP. 513 tory versions of those episodes have here been credited in preference to Morales' broad scale denials, within the framework of the testimonial quality of the unit employee witnesses, the contrasting caliber of Morales' testimony,89 and the record as a whole. Respondent's Jersey City plant general manager, Fein- berg, also testified concerning the level of his knowledge concerning solicitational activities for Teamsters Local 806 at the plant in late November 1973. He simply denied that he ever personally witnessed any employee being signed up for Local 806 membership in the plant during working time90 - adding (as did Morales in his testimony) that he never received any "protests"91 about organizing activity on behalf of Local 806 during working time.82 However, on cross-examination Feinberg conceded he was aware that Local 806 card signatures were being solicited in the plant with tacit lack of interference from lower level supervisors. Feinberg denied "telling" any employee, "prior to Decem- ber 3, 1973," to join Local 806 or that the Company did not want District 65 or Local 888 in the plant; 93 it is not necessary to reiterate here specific testimony to the con- trary concerning this which has already been discussed. Feinberg acknowledged, however, that he did inform employees that they would obtain job security, better pay, and health benefits under a union; that "if a particular union was voted in by a majority of the people, that all employees were obligated to be a member of it" (emphasis supplied); and (on cross-examination) that "if [Local] 806 was successful in their drive, [you] would have what [you] were asking for [i.e., medical benefits, etc.] all the previous months." 94 In his affidavit submitted to Chief United States District Judge Whipple in opposition to the Board's Regional 89 Comment has already been made , man earlier portion of this Decision, upon Morales' quality as a witness ; more of its flavor has been provided above, including comparison of his testimony here with his affidavit to the U.S. district court . Morales' testimony on cross-examination is liberally punctuated with unfortunate alleged memory lapses concerning significant matters presumably within his knowledge as personnel manager of the Jersey City plant, as well as a discomforting general evasiveness in resistance to proper probing into matters where answers could have been damaging to the interests of his Employer. 90 During cross-examination by counsel for District 65, however, Fem- berg acknowledged that he was aware of "very heavy" card signing for Local 806 in the plant in November; that the only thing he did to interrupt this was to indicate to Morales and the plant supervisors that this should not continue, and that on his strolls through the plant he endeavored to see that these instructions were carried out. He also acknowledged telling Morales "many times" that no union cards were to be signed in Morales' own office or in the personnel waiting room. At no time did Feinberg indicate any penalty or discipline would attach to any failure to carry out these alleged instructions, nor even that a notation might be entered into an offender's or continued offender's personnel file. Feinberg conceded informing Kaye in November that "active signing" of Local 806 cards was going on "in the plant"; although Feinberg claims Kaye instructed him to have it stopped on company time, there is no evidence that any such instruction was carried out. Indeed, Feinberg concedes he was informed from time to time in November by Plant Manager Petrera (his immediate subordinate) that Local 806 card solicitation was being carried on "on company time," and , further, that Company Supervisors Rivera, Santiago, Negron, and Oest similarly indicat- ed to him in the latter part of November that this activity was widespread throughout the plant ; but Feinberg's only reaction was to tell them to "have it stopped." This testimony by Feinberg at the hearing seemingly contradicts his assertions in his preheanng affidavit (G.C. Exh. 144) that he was unaware that card signing for Local 806 was being carried on. Si Similarly in Feinberg's July 22, 1974, affidavit (G.C Exh. 145, "complaints"). "Protests" or "complaints" are hardly the test of the legality Director's application for a temporary injunction, Respon- dent Vice President Kaye - who, according to his testimony, also had responsibility for industrial relations at the Jersey City plant - had indicated - although the language of the affidavit is somewhat equivocal - that his first knowledge that Teamsters Local 806 was attempting to organize the Jersey City plant was on November 26, when General Manager Feinberg told him so based upon a request Feinberg had received from Teamsters President Calagna (G.C. Exh. 138).95 However, at the instant hearing Kaye corrected this so as to testify that he had learned this from Feinberg prior to November 26 on the occasion of Teamsters Local 806 President Calagna's request to Fein- berg to arrange a meeting in connection with Calagna's request for Teamsters Local 806's recognition as bargaining agent "for the employees of the Jersey City plant." 96 According to Kaye, only 8 (he had first sworn 13, not only upon his direct examination but also in his prehearing affidavit [" 12 or 13" ] as well as in his affidavit to the district court, but corrected himself on cross-examination when his recollection was assisted by displaying to him the actual document) employees, comprising the Local 806 "commit- tee," were present at the November 26 meeting - including Respondent's supervisor Urdaneta, in addition to Local 806 officials Calagna and Gonzalez.97 Kaye's description of this November 26 meeting differs from that of Calagna and other witnesses in significant respects. According to Kaye, Calagna and the eight-person "committee" requested recognition of Local 806 "as bargaining agent for the employees at the Jersey City plant." [See fns. 96, 85, 87, and 88.] (According to Kaye, of the eight employees there present constituting the alleged "committee" representative of all of the employees in the plant, only two were women of such activities. Since he knew about these activities , it was incumbent upon him to take effective measures to stop them. 92 Asked on cross-examination, however, whether a certain named employee (Thelma Rudolph, who was described to him and whom he conceded knowing) had not informed him or complained to him that Teamsters Local 806 solicitation was being carried on openly outside of the personnel office, whereas Retail Clerks Local 888 had not been permitted to do so, Feinberg claimed not to be able to `remember" this. 93 In his July 22, 1974, affidavit (G.C. Exh. 145, emphasis supplied), Feinberg acknowledges that "some employees occasionally asked me whether I could help them in deciding between the possible choices of unions, i.e., the Retail Clerks, District 65, the Teamsters, or a house union ," but that he forebore doing so. 94 The making of the latter statement is likewise unmentioned in Feinberg's July 22, 1974, affidavit. (G.C. Exh. 145). 95 As pointed out above, Feinberg swore at the instant hearing that he has alerted Kaye to the fact that "active signing" of Local 806 cards was going on "in the plant"; and there is other indication - even apart from Kaye's admission implied in his correction (supra) of his affidavit to Chief Judge Whipple - that Kaye was aware of it before November 26. It is true that the affidavit uses the expression "press that union's [i.e., Local 806's 1 claim for recognition"; however, the affidavit is silent regarding any previous knowl- edge by Kaye of Local 806 activity. 96 This language is quoted since there was not then nor subsequently any intimation by Local 806 that the nature of the bargaining unit was anything less than "the employees of the Jersey City plant" (assumedly with the conventional exclusions of supervisory, office clerical, and guard personnel). As will be shown, the contention that the bargaining unit was different was first introduced on Respondent's behalf considerably later, after its recogni- tion of Local 806. 97 It is observed that in his prehearing affidavit to the Board investigator (G.C. Exh. 137), Kaye omitted to mention that Calagna and Gonzalez were present at this meeting, but swore that "Subsequently, I was contacted by Anthony Calagna" (id; emphasis supplied). 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and six were men, with four women staying away. Also according to Kaye, at this time 60 percent of the production workers (and, therefore, approximate voting population of the plant) were women.) Kaye prepared a statement then and there for the eight employees to sign 88 After at least some of the employees there signed it, Kaye then remarked that their signatures alone "would not and could not be substantial evidence to support a claim for recognition either on the part of the committee representatives or on the part of the union." Calagna thereupon - still according to Kaye - stated that he "could and would" submit such evidence, consisting of cards, but he submitted none at this meeting. According to his testimony on direct examination, Kaye "invited" Local 806 to do so ; according to his testimony on cross-examination, he did not "invite" them to do so. Calagna indicated he would submit "cards .. . represent[ing] the majority of the employees at the Jersey City plant" by the end of that week. Finally on the subject of the November 26 meeting which occurred in the midst of the described Teamsters Local 806 organizational activities during the last week of November, there is the testimony of Juan Vazquez. He enumerated 10 - and he testified there were more - employees present constituting "the committee" - thus, his testimony in this respect (as well as others) contradicts that of Kaye and Morales. He also testified, widely at variance from Kaye, Feinberg, and Morales, that Local 806 presented cards at this meeting, that the Company counted the cards without otherwise examining them, and that since "some cards were still missing to reach the half plus one quantity [i.e., u See fn . 88, supra Contrary to other testimony, Kaye's version is that perhaps not all of the eight employees there signed it then and there, but that it was taken away an4 later returned to Feinberg with a few signatures added of employees who had not been at the November 26 meeting at all, with Kaye ignorant of when or how the latter had become "members" of the 'committee" or "representatives" of the unit employees. On cross-examina- tion, Kaye testified that the names of these additional employees appearing on the later list were supplied by Juan Vazquez, and "notes" were later added indicating that the nonsigning employees were "replace[d p' - again without Kaye's knowing when, how, or why; but Kaye conceded he was aware that at least Concepcion Pastrana , one of the nonsigners of the original list, was a District 65 supporter. It is further observed that notwithstanding the purported concern verbalized by Kaye at the November 26 meeting as to whether this small group of employees really represented a majority of the plant employees and would so certify in a writing he (Kaye) would then and there prepare, the document signed and returned to him (through Feinberg) later (G.C. Exh. 139) does not state that the signing employees represent a majority of the employees - and Kaye so acknowledges . Kaye also testified that Vazquez told him that this "committee" had "polled" the employees - as to which there is not a shred ofevidence - and had ascertained that the vast majority wished to be represented by Local 806; and that he (Kaye) asked no questions concerning the nature of this alleged "poll," but that Vazquez made no statement claiming to have a majority of union cards. Further cross-examination of Kaye concerning the alleged "signed state- ment" by Local 806 "commiteee" members which figured (concededly erroneously as to the " 13" he had sworn to in his district court affidavit as well as in his preheating affidavit here - corrected by Kaye at the hearing here to "eight") also in the district court injunction proceeding, educed testimony from Kaye that, when he received a copy of that statement (G.C. Exh 139) from the "committee" with all signatures thereon, he supplied a copy thereofto the Board investigator as an attachment (G.C. Exh. 140) to his preheating affidavit (G.C. Exh 137). However, inspection of these two documents, represented to the Board investigator to be copies, indicates they are not the same ; one (G.C. Exh. 139) contains two additional signatures and also some extra notations. Confronted with these two differing documents at the hearing, Kaye was unable to account for the differences between the two. Under these circumstances, he again shifted ground and further changed his earlier testimony that all signatures were on the document (G.C. Exh. 139) majority]," Kaye asserted that when Local 806 obtained a majority of cards the Company "would meet again [and ] be willing to discuss with the majority." Vazquez and his aides thereupon resumed their Local 806 card solicitational activities. As has been noted above, concededly the Teamsters Local 806 cards in question (upon the basis of which Respondent accorded recognition to that Union as the duly designated exclusive representative for all of its unit employees) were collected by Vazquez and his aides between November 21 and 30 or December 3 (depending upon which date is considered to be effective for recogni- tional purposes 99). The nature of the solicitational activities carried on to procure those cards, and Respondent's role and participation therein, have already been discussed and no repetition is here necessary. However, in view of the denials by Respondent's and Local 806's witnesses of the testimony of the unit employees testifying as General Counsel witnesses, General Counsel produced a rebuttal witness whose testimony was devastating. He was Domingo Negron, conceded by Respondent in its answer to have been one of its Jersey City plant supervisors during the period in question.100 He knows Vasquez. After having promoted Distributive Workers District 65 from May to around November 1973, at lunch in November Vazquez remarked that he was "going to Harrison 101 to see about another union . . . 806." Vazquez did not return to the plant that day. A few days later, Vazquez told Negron that he "had another union . . . Local 806." 102 Thereafter, Negron observed Vazquez distributing Local 806 cards when he received it back from the "committee"; indeed, they were not even on it when he executed his prehearing statement on January 28,1974 (G.C. Exh. 137), which was also filed with the district court as well as in the U S. Court of Appeals for the Third Circuit as part of Respondent's record on appeal. It was conceded at the instant hearing that no copy of this version of the document - i.e., G.C. Exh. 139 - was furnished by Respondent to the district court or the court of appeals; the position taken by Respondent on this at the instant hearing was that it was under no "obligation" to do so. (Kaye added that he had no knowledge of the discrepancy until a day or two before his testimony at this hearing.) 90 As will be shown, although the signed agreement recognizing Local 806 is dated November 30, Respondent claims it was not actually signed by it until December 3. 100 Negron was employed as supervisor of Respondent's Jersey City plant variety department from November 1972 to October 1974, when he was terminated by Respondent for permitting an employee - who was not himself terminated - to remove a small carton of scrap. Negron's testimony is undisputed that he was told by Plant Manager Petrera that his termination was unjustified and to return after a 3-day suspension. When he returned he was not reinstated but informed that he would be given a good recommenda- tion to any prospective employer. Considering his excellent background, the clarity, precision, and firm ring of truth with which he testified, his unshaken testimony, the fact that he has indeed utilized Respondent - at its offer - as a reference for employment purposes, and the fact that he did not seek to testify here but was sought out and subpenaed by General Counsel, and finally that he testified here under a Federal grant of immunity under circumstances to be shown, I was most favorably impressed with Negron's testimony after closely observing his demeanor on the witness stand. 101 I.e., Respondent's administrative headquarters, where its managerial hierarchy (including Kaye and O'Connor) is located. 102 The foregoing testimony by Negron is undisputed by Vazquez. Vazquez had, however, insisted (during cross-examination by District 65 counsel) that he first spoke to Respondent regarding Local 806 on November 26 or 27, 10 or more days after he had approached and introduced that Union into the picture. For reasons already explained involving testimonial evaluations and demeanor comparisons, to the extent of any inconsistency I credit Negron. HARTZ MOUNTAIN CORP. 515 throughout the plant, including in Personnel Manager Morales' personnel office (with the door to Morales' private office closed), during working hours. Negron observed this three or four times a week. He also saw Morales come out of his private office while Vazquez was distributing these cards to new or prospective employees, and Negron further saw that Morales observed this but said nothing. Negron asked Vazquez what he was doing. Vazquez answered that he was "distributing cards for 806 because he needed the cards for recognition of the union ... to back up the company." 103 Negron also knew Calagna and Gonzalez to be Team- sters Local 806 officials. He saw them in different plant areas in the Jersey City plant on several occasions during November, talking to groups of 8-10 plant employees. Negron reported this to General Manager Feinberg. Feinberg's response was, "Leave them alone." 104 Notwithstanding the foregoing, in his prehearing affida- vit of January 17, 1974 (Resp. Exh. 69),105 Negron had sworn, "I was unaware that any union authorization cards were being passed out in any part of the plant including the Personnel Manager's office or in the anteroom outside this office." Negron now swears that this was untrue; and that when he was sought out by Board agents preparing this case for hearing he pointed this out to them. His explanation for this at the hearing was that he gave that false information in the prehearing affidavit 106 because "at the time I was a company man." Asked whether he had ever been affiliated with District 65 or Local 888 or Local 806, Negron's firm response was, "I was a company man at all times." I observed Negron with extreme care while he was testifying. He demonstrated himself to be an outstandingly impressive witness whose testimony remained unshaken. I believe his explanation as to why he lied in his prehearing statement in favor of his employer, and I credit his testimony in full. City plant on November 30 (Friday). According to Calag- na's testimony - although this is denied by Kaye - the meeting was arranged by Calagna with Kaye . At this meeting, according to Calagna (The variant versions of Kaye and others are set forth below), he displayed two rubberbanded stacks of cards;107 Kaye and Feinberg each took a bundle and looked through them substantially one by one.108 When, still according to Calagna, Kaye or Feinberg removed five cards of "maintenance" employees and Feinberg also pointed out two additional cards of clerical employees,109 Calagna indicated he did not want to represent such employees "at that time" and to "disregard" those cards since "I am not interested in maintenance people. This is only for production people." (As appears below, Calagna claims he later changed his mind .) Calagna thereupon produced a document, characterized by him at the hearing as a "stipulation for recognition " but which states on its face is a "Recognition Agreement" by Respondent of Teamsters Local 806 dated November 30, 1973 (G.C. Exh. 2). Although this recognition agreement is signed by Calagna on behalf of Teamsters Local 806 as well as by James O'Connor as vice president and on behalf of Respondent Employer, Calagna as well as his Union's and Respondent's witnesses assert that O'Connor's signature was not affixed to it until December 3. The November 30 recognition agreement explicitly identifies the recognized and "mutually agree[d] . . . unit appropriate for the purposes of collective bargaining" to be as follows: INCLUDED: All the employees of the Employer. EXCLUDED: Guards, Supervisors and all private secre- taries, as defined in the Labor Management Relations Act of 1947, as amended. Whether signed on November 30 or December 3, it is this unit which Respondent and Teamsters Local 806 agreed was and which is in their agreement several times explicitly referred to as the appropriate and recognized bargaining b. November 30 recognition meeting Teamsters President Calagna and his aide/Spanish interpreter Gonzalez, together with Vazquez and his freshly hatched Local 806 "committee," met again with Respon- dent's officials Kaye, Feinberg, and Morales at the Jersey 103 All of the foregoing testimony is likewise undisputed by Vazquez. i04 This likewise stands uncontradicted by Feinberg. 105 This prehearing affidavit (G.C. Exh. 184A) was offered and received in evidence at Respondent's behest (Reap. Exh. 69). A subsequent prehearing affidavit (G.C. Exh. 184B) was offered by General Counsel , with decision reserved on Respondent's objection thereto. That objection is hereby sustained. 106 Under the circumstances, the Assistant Attorney General of the United States granted Negron immunity from prosecution for this falsifica- tion in order to pernut Negron to testify here without hazard of prosecution (G.C. Exh. 185). 107 According to Calagna on cross-examination there were "around 270" (changed from his earlier "over 300 ... about 320" on direct examination; then, on later cross-examination, changed back to 300-320), since in his estimation there were "about 270" when he left his office (Elmhurst, New York) and he received "about 50" more upon arrival at the Jersey City plant. Calagna concedes these are an "approximation" and that he has no exact knowledge. As shown below, however, Vazquez' estimate is far more modest - only "about 240." In the absence of any precise count or testimony by any witness, including Calagna and Vazquez, I decline to make a finding based upon speculation as to how many "bards" there actually were, a key issue herein being actual numbers and percentages, or arithmetical facts, the unit. According to Calagna, Kaye acknowledged at the No- vember 30 recognitional meeting that - as, indeed the November 30 recognitional agreement expressly states - Teamsters Local 806 represented a "majority of the nature of which ,is precise and not "approximate." Furthermore, I find it incredible that nobody, including Calagna and Vazquez, had counted or listed these cards, which are central to their cause, standing, and contentions, as well as to this case and their positions herein . Nor will I engage in speculation as to the nature or characteristics of the cards thus allegedly presented, other than as established on the record by substantial credible evidence at the instant hearing. 108 This is totally at variance with the testimony of Kaye and Feinberg - who might be expected to testify similarly if true - and is not credited. 109 In this regard, as well as in others, Calagna's testimony continues to be at variance with that of Kaye, Feinberg, and others there and is not credited. Feinberg, for example, was insistent in his testimony that no cards were removed from the stack on the table and, further, that there was no discussion as to how many cards were those of maintenance or clerical employees (although he also claims that Calagna and Kaye indicated employees in these categories were to be excluded). Without explanation, Calagna's aide Gonzalez was not called to testify. I find it difficult to believe that if Kaye was as "very annoy[ed ]" (Femberg's description) over inclusion of maintenance and clerical employees and as insistent that they be excluded, and Calagna as compliant in that regard, as they are both pictured to have been, that the signed "Recognition Agreement" (G.C. Exh. 2) would not have said so instead of explicitly providing the opposite. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees"; and no question was raised by Kaye or Feinberg as to any signatures or dates on any of the cards. Calagna added in his testimony here that he was then aware of no invalidity or infirmity in any of the cards since his Union had not solicited them. Calagna further testified that, at this November 30 (Friday) meeting, or at the ensuing December 3 (Monday) meeting or possibly at both of those meetings, one of the Company's representatives stated that Distributive Workers District 65 had filed charges with the National Labor Relations Board against the Company in the described situation, to which Calagna remarked, "What has that got to do with me. I am not 65." And Calagna also swore here that the possibility of a secret- ballot election was brought up by the Company (which pointed out or had pointed out that since it was in a "safe period" it was not obligated to recognize Local 806 without an election), but Calagna "wouldn't listen" since he "had the majority in my mind. I didn't want to wait for an election of a month or two."110 As already stated, Calagna expressly disclaims knowl- edge or awareness of any invalidity or infirmity in any of the cards solicited on behalf of Local 806, upon the basis that neither he nor any personnel of his Union did any of the actual card soliciting. Calagna acknowledged on cross- examination that he did not check any of the alleged signatures or dates (or identities or employment status) on or relating to any of the cards presented to the Employer resulting in its recognition of his Union; and that his belief that his Union represented "a majority" was based merely upon an alleged mechanical count of "cards.""' Calagna also conceded on cross-examination that, prior to Respon- dent's recognition of Teamsters Local 806, Distributive Workers District 65 had contacted Local 806 Secretary- Treasurer Snyder concerning what Local 806 was "doing over in Hartz Mountain"; and that Calagna was told by Snyder, his superior, to "keep on doing what [you are] doing." Calagna asked no questions. Juan Vazquez supplies a differing version of what took place at this November 30 meeting - different from that of Kaye and other Employer's witnesses as well as from that of Calagna. After the described November 26 meeting, whichever version of that meeting is accepted, Vazquez had resumed his Local 806 card solicitational activities. Accord- ing to Vazquez on direct and cross-examination, at the November 30 meeting Kaye ("or . . . O'Connor") took the cards presented to him by the Union and said he "would study those cards to see if the signatures corresponded to 110 Although the foregoing, relative to the holding of an election, is disputed by Kaye, I credit Calagna's testimony in this aspect. Calagna would hardly manufacture such language and ascribe it to himself if he did not actually utter it, since in a sense it is against interest. 111 According to his testimony, Calagna similarly swore in his July 1974 affidavit that his Union possessed a "clear majority," basing that only upon what he had been told and his mechanical count of "cards" without verification of any kind, and also in ignorance of the actual number of employees in the unit. It is not possible for me to understand how a "majority" or percentage can be calculated without knowledge not only of the numerator but also of the denominator of the fraction; i e., the number of persons in the unit. 112 Since this version, substantially reiterated by Vazquez on cross- examination, is utterly at odds with that of Kaye and the rest of those who testified, I am constrained to regard it as highly imaginative, and I reject it 113 This likewise is at total variance with the testimony of Respondent's own witnesses, including Kaye (and his stipulated testimony, G.C. Exh. 114), the workers" and "after that they would answer the union"; and that this is all that Kaye said and all that took place at the meeting.112 On cross-examination, however, Vazquez altered his direct examination testimony by indicating he now thought the cards were counted by Respondent at the meeting.113 Vazquez conceded that he himself had reviewed only some of the cards; and, as already shown, his "count" - like that of Calagna, also only an "estimate" 114 - is far more modest, 25 percent more so ("about" 240, as against "about" 320) than that of Calagna, thus seemingly estab- lishing one or the other, if not both, of them to be substantially inaccurate and therefore inexpert and unreli- able as union-card-quantity estimaters or guessers. Vazquez acknowledged that cards of persons no longer employed at the plant, as well as duplicate cards, were not removed from those submitted to Respondent as a basis for recognition of Local 806; nor were the cards even reviewed for such. (Again, speculation as to the number of such would be fruitless.) And, in explicit contradiction of Calagna, Vazquez swore that at no time at this meeting - nor at the meetings of November 26 or December 3 at which he was present - did Calagna ever indicate that some of the cards presented should be disregarded nor that Local 806 did not wish to represent some of the employees; on the contrary, according to Vazquez, that Union at all times stated.that it wanted to represent all of the employees.115 Respondent Vice President Kaye also testified concern- ing this November 30 meeting,116 and a supplementary stipulation (G.C. Exh. 114) was supplied in lieu of his further testimony. According to Kaye's testimony, he asked at this meeting why Mercedes Rivera, Juanita Mass, Luz Fabiola Diaz, and Concepcion Pastrana had not signed Kaye's "Certification" (G.C. Exh. 139), and Juan Vazquez (as well as his aides Ocana and Sanabria) explained that they "chose not to be members of this committee." Kaye neither asked nor attempted to ascertain why. Kaye further testified that Calagna placed a stack - his stipulated testimony likewise states "a packet" - of cards on the table. According to his stipulation, Local 806 therewith "requested recognition as majority representative of the employees." But according to Kaye's live testimony, Calagna said that "These cards were obtained from a majority of the employees employed at Jersey City to support the union's request for recognition," that they were approximately 300 in number,117 and requested recogni- tion. Kaye responded, according to his testimony, that he would be in touch with Calagna the following week. Kaye and must be regarded as grossly untrue, since it seems inconceivable that if Kaye or any other of Respondent's representatives counted the cards they would not have so testified here (unless the count indicated less than a majority); Respondent's witnesses' testimony that no card count was made (as shown below) is thus in a sense against interest and is credited. 114 See fn. 107, supra, regarding my views concerning "estimates" as substitutes for facts in arithmetical calculations, which are, as herein, required to be precise and not speculative. (Moreover, an unexamined "stack" or "stacks" of cards may, of course, contain blanks - to say nothing of all other imaginable varieties of invalid contents - and I shall not indulge in speculations as to their number, if any, in an unexamined collection of cards placed on a table.) 115 In this respect Vazquez' testimony is consistent with the express language of the November 30 recognition agreement (G.C. Exh. 2). 116 According to Kaye, contrary to Calagna, he attended this meeting in response to a call from Feinberg on the previous day (November 29). 117 Kaye's testimony is thus at variance with or in amplification or HARTZ MOUNTAIN CORP. 517 further testified - also in contradistinction to other witnesses with interests similar to his own - that he asked the employees there present whether the cards had been signed freely and voluntarily by the employees, and that they replied in the affirmative "very ardently." 118 Kaye took them at their alleged word. According to his own testimony on direct examination, Kaye then "glanced at" and "thumbed through" the stack of cards, without counting them or inspecting individual cards for any purpose, including authenticity of signatures. Still accord- ing to Kaye's testimony, when he questioned whether there were 300 "cards" (whatever their nature - some, many, or all might have been blank, for aught known to Kaye), Gonzalez counted off 50 and placed them beside the remainder, on the basis of which Kaye maintains it "was quite obvious in my opinion there was 300 cards in the stack." 119 When Feinberg pointed out that some mainte- nance employees had signed cards,120 according to Kaye he (Kaye) remarked that he had never "known" those employ- ees to be in the "bargaining unit for the Jersey City plant," whereupon Calagna indicated he (Calagna) would with- draw their cards since he was only requesting recognition for production employees.121 Kaye testified - consistently with Calagna and Respondent's other vice president, O'Connor - that O'Connor's signature on the November 30 "Recognition Agreement" was not affixed thereto on November 30 since O'Connor was not there on November 30.122 Finally, according to Kaye's testimony, he took the November 30 "Recognition Agreement" (G.C. Exh. 2 - signed by Calagna) with him and, after discussions over the weekend between him and his superior, David Lovitz (executive vice president of Respondent), and between the latter and O'Connor and Andersen (vice president and general counsel), it was determined to proceed with recognition of Teamsters Local 806. According to Kaye, considerations underlying this determination were the "mounting unrest" at the plant and "that the Teamsters were obviously well known very strong national organiza- tion that might have impact upon our other operations if we didn't agree to recognize them," with District 65 not mentioned "at all"; and with no consideration, contempla- tion, or discussion of the possibility of any election - not modification of not only his own stipulation (G.C. Exh. 114), but at variance with the testimony of Calagna (supra) and Vazquez (supra) - neither of whom testified that any number of cards was mentioned . Since I believe that if a specific number had been mentioned by Calagna he would have testified to it and that his (as well as Vazquez') failure to do so was in a sense against interest, I do not credit Kaye's testimony that a number of cards was mentioned. 113 Since I believe that if this had occurred at least Vazquez would not have omitted mentioning it - even if the employees' reaction was less than ardent - I do not credit this evident overblown embellishment by Kaye. 119 This testimony is, again, at variance with that of other witnesses there, including Calagna and Vazquez, who, it would seem, would have testified to so dramatic a demonstration if it had actually occurred . As for Gonzalez, since he was without explanation not produced to testify , there would be no justification in supposing that had he been produced his testimony would have supported Kaye's unique account. 120 How Feinberg would have known tlus , in his professed state of ignorance as to at least specifics of Local 806 card signing, was left unexplained. 121 It is not satisfactorily explained why Calagna would so readily acquiesce to withdraw allegedly signed cards in his possession. The November 30 recognition agreement which he presented and which he (as well as Respondent) signed states explicitly throughout that it includes all even an election involving Local 806 alone. Kaye concedes that the Company realized that if it did not recognize Local 806 at this time - around December 1, 1973 - in that event within a few months (i.e., March or April 1974) some union would file a petition for an election, compelling an election upon the expiration of the 1-year period following the decertification of Retail Clerks Local 888 (i.e., May 31, 1974).123 Kaye testified that in entering the meeting of November 30 he knew that Local 806 was required to establish that it in fact represented a majority of the unit employees, which it had not yet done; and that his purpose and function in attending that meeting was to determine whether in fact Local 806 did or did not represent such a majority. Kaye nevertheless acknowledges that he had no payroll list with him; that he only "briefly thumbed through" the cards but did not count them; that he at best "glanced at some of the cards" but "did not look at most of the cards in the batch"; that he "did not check the names against our payroll or verify the signatures with those that we have on file from the employees." The foregoing quotations are from a written stipulation by Respondent as to Kaye's further testimony here in lieu of presenting it orally in person (G.C. Exh. 114). But there is, again, as in so many instances and aspects of Kaye's testimony, a degree of apparent incongru- ity if not outright inconsistency between his own statements in the record here. For example, although his stipulated (G.C. Exh. 114) "testimony" is that he "noticed that they [i.e., "some" of the Local 806 cards presented to him by Calagna on November 30] were signed and dated," his actual testimony is that he could see no dates on any but the top card and paid no attention to any dates; while he swore in his July 22, 1974, affidavit that he "checked" a "random sample" (G.C. Exh. 138) of those cards, he testified at the hearing here that he did not take a random sample; and while he swore to the district court that he "looked" at "many" of the cards and he testified here that he "thumbed through most" (later, "looked at"; still later, "didn't look at" but merely "thumbed through") of the cards in the batch, his stipulated testimony states that "I did not look at most of the cards in the batch." 124 He then threw in that he did not "handle" the cards "at all" because Calagna employees (with only the conventional exclusions), with no exception for maintenance employees. See also fn. 6, supra, regarding the historical inclusion of maintenance employees in the bargaining unit; and further see Vazquez' testimony, supra, contradicting Kaye, that at no time was any such exception or exclusion mentioned. 122 Although Local 806 witness Peneherera testified to the contrary, that O'Connor was present at the meeting of November 30, seemingly he was plainly mistaken. 123 A petition for such an election may be filed no more than 60 days in advance of the 1-year anniversary date of the decertification so as to permit the holding of a representation election promptly in relation to that anniversary date. Randolph Metal Works, Inc., 147 NLRB 973 (1964). For reasons already indicated, I do not credit Kaye's denial, in this connection, of awareness that Distributive Workers District 65 remained in the recognitional picture as at least a substantial candidate, if indeed not the designated choice, of a majority of the unit employees. 124 Emphasis supplied. Kaye's lame attempted "explanation" at the hearing for this distinction or quibble is, seemingly , that he neither looked at nor did not look at the cards - inconsistent in yet another direction with still other testimony - but that he merely "thumbed through" most of the cards, whatever that means. Continued hedge-trimming of this nature left me with areas of grave misgiving and doubt as to the existence of a sincere purpose on (Continued) 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "cautioned" him that "picking up those cards would be tantamount to recognizing Teamsters as a bargaining agent." 125 Kaye further conceded in his testimony at this hearing that in his evaluation of the stack of cards placed before him by Calagna on November 30, he not only did not count them but also gave no consideration to whether they reflected persons currently in his Company's employ, nor to whether they contained duplicate cards; and that he made no cross-check of any cards against his Company's person- nel records, nor of any signature against any employee's signature on fWwith the Company. Indeed,Kaye acknowl- edges that no objection or , problem I of any nature was raised concerning any of the purported cards of any of the production employees allegedly placed before him. Re- spondent has categorically stipulated here (G.C. Exh. 114) that: At no time prior to the recognition of Teamsters Local 806 were the authorization cards counted or the signatures verified in any way. Kaye conceded on cross-examination that his Company's recognition of Teamsters Local 806 was in the last analysis upon the basis of mere representations of Calagna and Vazquez and his "committee," at the meeting of November 30 - without the Company's checking or processing the cards themselves, which Kaye acknowledges may have included cards of persons not then in the Company's employ; and that the nature of Kaye's inspection of those cards was such that Kaye is unable to say that he recognized even one card as being that of any employee of the Company on that day.126 Asked why the Company had agreed to treat with Teamsters Local 806 when it had declined to meet with Distributive Workers District 65, Kaye at first swore that District 65 never offered to demonstrate its cards, but, when confronted with District 65's correspondence to the con- trary (G.C. Exh. 4), he acknowledged that District 65 had indeed offered to so demonstrate. Kaye thereupon gave as explanation for the "difference" and for his Company's recognition of Local 806 that with relation to District 65's recognitional request the Company took a "wait-and-see attitude . . . let the feathers settle," until some months later the Company thought that there "no longer appeared to be all of the diverse factions at work in many directions of union organization" 127 while at the same time, neverthe- less, there were "mounting problems" and "pressures" from the employees regarding wages and health/welfare, in consequence of which "when we were contacted by Teamster Local 806 we agreed to have an exploratory information meeting. . . . I might add that the - I know - what I know of the Teamster organization is that it is a national organization and a very powerful one, and I wasn't sure what they might or might not do to us if we didn't meet the part of this highly intelligent witness to be forthright and candid in accordance with standards expected of a testifying witness. 125 This is not only inconsistent with the testimony of all other witnesses who testified, but is so preposterous and absurd on its face as to serve to solidify the misgivings and doubts expressed in the last footnote (fn. 124, supra) 126 By way of further possible interest in relation to the bona fides of the for a session" - a concern the Company evidently did not have with respect to District 65, whether or not that Union was its employees' choice. In Kaye's barometric idiom, the reasons his Company was willing to deal with Teamsters Local 806 but not with Distributive Workers District 65 were: Because when 65 approached the company with a request for recognition there was considerable turmoil in the plant with many, many factions going in different directions while there were no other external forces there was a great deal of internal forces and they were moving in different directions. In November when we agreed to explore the situation with the Teamsters we no longer had or at least I was not aware of all of the internal forces which existed back in May or June .. . that coupled with the increasing pressures with the wages and health and welfare situation. Kaye acknowledged, however, that if at any time prior to his Company's recognition of Local 806 - which Respon- dent maintains occurred on December 3, when Vice President O'Connor signed the recognition agreement (infra) - Respondent had a "current" request for recogni- tion from Distributive Workers District 65, even on December 3, Respondent would not have recognized Local 806. As to this, entirely apart from the questionable validity of this suggestion that the written and concededly renewed oral requests by District 65 for recognition, described above, were no longer "current" in Respondent's ipse dixit, it is the further incontestable fact that District 65 did indeed by its registered letter of November 28 place Respondent on the clearest of notice in this respect, in the following terms (C.P. Exh. 1): November 28, 1973 Hartz Mountain 305 Broadway Jersey City, New Jersey Gentlemen: By letter dated May 23, 1973, we advised you that an overwhelming majority of your employees designated our Union as their exclusive bargaining agent. Because of the decertification of Local 888 earlier that month you have failed to sit down and negotiate with us, relying on a legal technicality that we couldn't file a petition or strike for recognition for a year from date of that election. I want to remind you that we are still the bargaining agent for the employees of your plant and any attempt by you to deal with another Union will result in our taking immediate action to protect the workers and the Union. Please guide yourself accordingly. Company's recognition process of the purported "majority union" here, Kaye also acknowledged that if he had been dissatisfied with the Teamsters' "health plan" or any other feature of its representational program, Respon- dent would or might not have extended recognition to it "even upon the establishment of a card majority." 127 That this is palpably incorrect, see the discussion and findings supra, II,A,1 and II,A,2. HARTZ MOUNTAIN CORP. 519 Very truly yours, /s/ Frank Brown Frank Brown Organization Director FB/sf REGISTERED RETURN RECEIPT REQUESTED Official records, including postal service receipts (C.P. Exhs. 2, 3, and 4), as well as testimony and concessions, establish that this letter was dispatched by District 65 to Respondent by registered mail, return receipt requested, on November 28 or 29 and received and receipted for by Respondent, through its usual and authorized postal pickup messenger or clerk, Raymond Adams, on December 3,128 prior to its execution of the recognition agreement with Teamsters Local 806. At the same time, November 28 or 29, that District 65 dispatched the foregoing letter to Respon- dent it forwarded a parallel letter, also by registered mail, to Teamsters Local 806, as follows (C.P. Exh. 5): November 28, 1973 Mr. George Snyder, Sec't Treas. Local 806, I.B.T. 91- 31 Queens Blvd. Elmhurst, L.I., N.Y. 11373 I have tried to reach you on the phone a number of times, and did not get a reply. I am surprised and shocked that you did not find it important enough to respond to my calls. I called you to give you the facts on District 65's involvement at Hartz Mountain, located at 305 Broad- way, Jersey City, New Jersey. In May of 1973, the workers of Hartz Mountain decertified from Local 888 of the R.C.I.A. They then came to us and joined our Union. They did this on the advice of Civil Rights organizations and political figures. We accepted them as members and approached the Company for a contract on May 23, 1973, as per enclosed copy of letter. The Company said they did not have to recognize us at this time. The workers proceed- ed to take out and pay for Union books in District 65. We are now approaching the time when we will be able to take whatever action is necessary to get a decent contract. Since the workers demonstrated that they do not want Local 888, they, the Company, has told them they will bring them in a new Union. The workers have already testified to that fact. We were informed that Local 806 representatives met with the Company to discuss contract conditions. In view of the fact that the overwhelming majority of the workers are members of District 65, such a meeting constitutes an unfair labor practice, and your interven- 128 However, Kaye ("to the best of my knowledge," he says) as well as O'Connor, Feinberg, and Morales, deny seeing this letter on or before December 3. (Seemingly somewhat aslant from his affidavit [G C. Exh. 145 ], Feinberg testified here that registered mail such as this is automatically forwarded, by him or his office, directly to Kaye, unopened) Without explanation, Raymond Adams, Respondent's usual postal pickup messenger or clerk who signed the receipt for this letter, was not produced to testify. I find that the letter was received and receipted for by Respondent in the usual course on December 3, 1973. tion at this time can only be regarded by us as an out and out raid. I assume you did not know all of the facts prior to your receipt of this letter. We are therefore urging you to withdraw all your activities from Hartz Mountain. Fraternally yours, /s/ Zeke Cohen Zeke Cohen Assistant Organization Director ZC/sf REGISTERED RETURN RECEIPT REQUESTED The return receipt (C.P. Exh. 6) for this letter indicates that it was received on November 30, also before the recognition agreement was signed by O'Connor on December 3. Under these circumstances and the facts as heretofore found, Kaye's explanations for Respondent's meeting with and speedy recognition of Teamsters Local 806 in contrad- istinction to its refusal to even meet with Distributive Workers District 65 are open to serious question. Arthur J. Andersen (Anderson), vice president as well as general counsel of Respondent, also testified here, as an adverse witness called by General Counsel, largely with regard to the subject of the date of Respondent's recogni tion of Teamsters Local 806. Andersen insisted - quite unconvincingly, in my estimation - that, although he was knee-deep in the Board's investigation of the situation here, prior to as well as after issuance of the complaint herein - he had no "conscious awareness" that the investigation was in any way concerned with the date of his Company's recognition of Local 806. Andersen attended his colleague Kaye during the Board investigator's interview of Kaye and Kaye's execution of his (Kaye's) prehearing affidavit herein on January 20, 1974 (G.C. Exh. 137). After being shown that affidavit, Andersen conceded that Kaye did not "explicitly" 128 mention any recognition date other than November 30; and Andersen was unable to suggest why Kaye would not have indicated to the Board investigator any such other date (i.e., other than the November 30 date appearing on the signed recognition agreement [G.C. Exh. 2 ]) if in fact the recognition had occurred on or as of another date. Incredibly, in my estimation, Andersen insists that during the Board's prehearing investigation in which he participated, he did not know the date when his Company recognized Local 806. Acknowledging that he also participated in a conference with the Board's Newark Regional Director and Regional Attorney on February 11, 1974, after heavily hedging Andersen first insisted that he could not "specifically recall" that November 30 was mentioned as the recognition date; admitted that no December date was mentioned; and finally conceded that 129 While Andersen - exhibiting a parsimoniously grudging and equivo- cating testimonial style encountered in Kaye and Morales as well - added the qualifying word "explicitly," Kaye's preheanng affidavit not only indicates no "explicit" mention of any recognition date other than Novem- ber 30, but also no implicit or any other kind of mention or suggestion thereof. Andersen, testifying as an adverse witness, also consistently took refuge in substantial areas of alleged recollective loss or lapse which seemed out of keeping with his observed intellectual acuity. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 30 was the only specific date of recognition mentioned. Similarly in regard to a further conference attended by him with Board General Counsel Nash and Associate General Counsel Brissman in Washington on February 28, 1974 (to attempt to persuade the latter against proceeding with an application in the district court for a preliminary injunction under Sec. 10(j) of the Act), Ander- sen acknowledges that he was aware that the recognition date was a key issue; but again insists he cannot "recall" whether any recognition date other than November 30 figured in the 2-hour discussion. Acknowledging further that Respondent and the Board investigation were working with or from a November 30 payroll, Andersen concedes that at no time did Respondent indicate to the Board that it was in error in doing so since - as later claimed by Respondent for the first time during the course of the instant hearing (infra) - the correct date or dates of recognition was or were in December. Andersen likewise testified that he does not believe there was any mention at his February discussion at the Regional Office, concerning a different recognition date for a portion or split off of the bargaining unit explicitly defined in the November 30 recognition agreement , as now claimed herein (Unit 2, infra). And, further according to Andersen, soon after the issuance of the complaint here (February 11, 1974), in order to attempt to resolve the basic questions regarding Local 806 strength on the recognition date, he (Andersen) person- ally delivered to counsel for General Counsel (Mr. Kobell) Respondent's payroll records as of the date November 30, 1973 (G.C. Exh. 187: "Summary of Employment as of November 30, 1973"), without in any way referring to any other alleged recognition date. Andersen thereupon testi- fied that prior to Respondent's formal answer in this proceeding Respondent gave no indication to the Board that it relied upon December 3, rather than November 30, as the date of its recognition of Local 806; however, when then confronted with the admission, in Respondent's answer, of paragraph 12 of the complaint alleging Novem- ber 30 as the date of recognition, Andersen's rationale, consistent with an explanatory objection by Respondent's counsel, was that the admitted date of November 30 in the complaint allegation was preceded by the words "on or about," even though the answer contains specific other averrals as to that very allegation of the complaint. (In this connection, it is further observed that the same allegation (par. 12) is contained in the amended complaint of March 21 and is similarly admitted in Respondent's amended answer filed herein on March 29, 1974 (G.C. Exh. 1).) After additional probing and recollection-revival, Andersen. 130 It was served on Respondent by registered mail on November 30 and receipted for on December 4 Even assuming Respondent had no knowledge whatsoever of this charge prior to December 4, it is observed that Respondent's collective agreements with Local 806 were entered into long after that date, es will be shown. Indeed, according to Respondent Vice President O'Connor, after receipt of that charge and discussion with his superior Lovitz, it was decided nevertheless to proceed with a negotiating meeting with Teamsters on December 7. On the question of Respondent's knowledge on and prior to December 3 - indeed , even on and prior to November 30 - of the filing of the charges herein on November 29, the credited testimony of Teamsters Local 806 President Calagna (supra) will be recalled that Respondent itself expressly pointed this out (eliciting from Calagna the rejoinder, "What has that to do with me. I am not 65"). 131 Snyder did not dispute this nor otherwise testify here. To O'Connor's conceded knowledge, a recognitional strike by Teamsters under the circum- finally conceded that Respondent put forward the conten- tion that December 3 (and not November 30) was the date of recognition of Local 806, for the first time on April 19, 1974 - i.e., after the filing of its answer and amended answer herein, and during the pendency of this hearing. Under all of the circumstances presented, it is quite evident that - until it changed its position during the course of the hearing of this case, on April 19, 1974, as conceded by its vice president and general counsel, Re- spondent regarded November 30 as the date of its recogni- tion of Local 806, as its recognition agreement with that Union (G.C. Exh. 2) expressly states. c. December 3 meeting As has been indicated, the charge underlying and attached to the complaint in this proceeding was filed by Distributive Workers District 65 on November 29, 1973.130 As has also been shown, on November 28 or 29 District 65 dispatched letters - also by registered mail, receipted for by Teamsters on November 30 and by Respondent on December 3 - to Teamsters Local 806 as well as to Respondent, indicating District 65's representational status and seeking that Respondent and Local 806 abstain from recognition or contractual arrangements. On December 3 (Monday), at the-close of the day (4 or 4:30 p.m., as indicated by Morales in his affidavit here in evidence) - according to Respondent Vice President O'Connor (Respondent's vice president for labor relations, and in its employ for 45 years), after receiving a strike threat that morning from Teamsters Local 806 principal Snyder (Calagna's superior) who said he "had the plant tied up' and demanded an immediate meeting to "avoid a strike" 131 - Respondent met again with Local 806 Representatives Calagna and Gonzalez, as well as with Vazquez' "committee." According to O'Connor's testimony as Respondent's witness on direct examination, the Compa- ny had decided to recognize Teamsters Local 806 primarily to "avoid a strike or a work stoppage"; Company Executive Vice President Lovitz, who had discussed the recognition of Local 806 with O'Connor over the preceding weekend (December 1), gave the November 30 recognition agree- ment to O'Connor 132 with instructions to do 'what I [O'Connor] thought was best"133 Also present at the December 3 late afternoon meeting with O'Connor, on behalf of the Company, were Feinberg, Petrera, and Morales, with Kaye joining in later. According to O'Connor's testimony on direct examination, Calagna stated the employees' "committee" represented "the major- ity of the employees," set down a 4-inch "batch of cards," stances would have been a violation of the Act. It will be recalled that Distributive Workers District 65 had earlier passed on to the unit employees the advice of its counsel that a recognitional strike could not lawfully take place within the postdecertificational year; and District 65 had comported itself accordingly in accordance with the statute , without threat to the contrary. 132 This is contradicted in the July 22, 1974, affidavit by O'Connor's managerial colleague Kaye, who there swore that it was he (Kaye) who gave the document to O'Connor. (G.C. Exh. 138). 133 O'Connor's testimony attempted to convey the impression that in the ensuing meeting in the late afternoon of December 3 O'Connor still remained a free agent to determine whether or not to recognize Local 806. However, his July 22, 1974, affidavit indicates otherwise (G.C. Exh.143, as also does the July 22, 1974, affidavit of Kaye (G.C. Exh.138). HARTZ MOUNTAIN CORP. 521 and asked that O'Connor sign a recognition agreement; O'Connor responded that he would take it up with his superiors, and that if this is what the employees wanted this is what the Company wanted.134 Still according to O'Connor's testimony on direct examination, when Calag- na asked why O'Connor did not sign it then and there, O'Connor - also without in any way counting, checking upon, reviewing, handling, or even touching the cards - did so, adding his signature to the document which Calagna had signed on November 30 and which O'Connor had received from Lovitz (G.C. Exh. 2). O'Connor swore that at no time was the composition of the bargaining unit discussed, or "maintenance employees" or "production employees" mentioned at this meeting.135 O'Connor con- cedes that he, also, considered no alternative to recognition of Local 806 in order to solve the alleged personnel unrest problems in the plant. O'Connor asserts here that he signed the recognition agreement upon the basis of the uncounted and unverified cards because "I did not want to embarrass" (emphasis supplied) Local 806, since it would have "embar- rassed" Local 806 if he found fewer cards than that Union claimed, or unsigned cards, duplicate cards, or false signatures. O'Connor also agreed to start contract negotia- tions with Local 806 in a few days, later scheduled for that Friday (December 7). Kaye conceded that at no time did Respondent make any attempt to determine the sentiment of the unit employees concerning their desire or lack of desire for representation by Teamsters Local 806; that at no time did he discuss the question of the desirability or undesirability of representa- tion of the employees by Distributive Workers District 65; and that at no time was an election considered to determine those issues. The reasons ascribed by Kaye for Respon- dent's recognition of Local 806 - somewhat unlike those of his colleague O'Connor, who heavily emphasized Respon- dent's desire to avoid a strike (i.e., an unlawful [see fn. 131 ] strike) on the threat of Teamsters - have already been set forth. Concerning the December 3 meeting, Teamsters Local 806 President Calagna - who testified that there or at the November 30 meeting, or at both, Respondent called attention to the charges (i.e., in the instant proceeding) which District 65 had filed against Respondent with the 134 This appears in marked contrast to Respondent's reaction to the District 65 requests and proffered card demonstrations. 135 O'Connor introduced a further possible note of confusion or uncer- tainty by his testimony that , when he added his signature to this recognition agreement on December 3, the words following "tzicLUDED" and the words following "EXCLUDED' now appearing on that document (G.C. Exh. 2) for the unit description did not appear on it ; and he also professed inability to recall whether there was any date on it. According to O'Connor, he si*ned this agreement with the awareness that it contained "absolutely no definiti on of the bargaining unit" recognized, and he made no suggestion to Calagna that it be defined. Since O'Connor is alone of all witnesses in testifying to the foregoing, which is in any event somewhat incredible on its face, since I believe that the failure of other witnesses of Respondent and Local 806 to testify thereto is in a sense contrary to interest, I do not credit this testimony of O'Connor, who in other aspects, as elsewhere shown, demonstrated himself to be far less than a satisfactory witness. 136 No such document has been produced here, and Calagna's testimony that he and Gonzalez signed such a document is unsupported by any other testimony. 137 Although Respondent may not then as yet have received the charge, this testimony accords with that of Local 806 President Calagna , supra, that Respondent indicated it knew, prior to its recognition of Local 806, that the charge herein had been filed with the Board. Board (November 29) - developed an uncertainty, be- tween his direct and cross-examination, as to whether he produced any cards at all on that occasion. According to Calagna, O'Connor insisted on a statement from the "employees' committee" that they represented the employ- ees; and "all the members of the committee" [cf. fns. 88 and 85, supra. ] as well as Calagna and Gonzalez 136 signed and gave such a statement to O'Connor. In his version of the December 3 meeting, Juan Vazquez swears that no cards were presented to the Company at that meeting, but that only the recognition agreement was signed. In his prehearing affidavit, however, Vazquez had sworn that at a meeting requested of Feinberg in Decem- ber, "we presented the cards. Mr. O'Connor said he needed some time because he had received a charge from the Labor Board." 137 (G.C. Exh. 129, emphasis supplied.) 138 On cross-examination, Vazquez reiterated that before O'Connor signed the recognition agreement he indicated awareness of the charge filed with the Board. And Vazquez is insistent that at the December 3, as well as at the previous meetings, his "committee" represented "all of the employ- ees" at the plant, including even some of the office clericals, and excepting only supervisors. And according to the testimony of Local 806 witness Emerson Peneherera, a mechanical maintenanceman and Vazquez' aide in his Local 806 card solicitational activities, Local 806 President Calagna's assistant Gonzalez introduced Peneherera as there "representing the maintenance part" so as to establish that they had "a real interest in participating into the union." Under all of the circumstances, I find that O'Connor's signature on the November 30 recognition agreement on December 3 was a mere pro forma delivery of that agreement, which, as it recites and the parties explicitly therein agreed, was effective November 30,1973. d. December 7 plant cafeteria melee On the afternoon of December 7, in the wake of Respondent's recognition of Teamsters Local 806, there occurred among Respondent's unit employees a tempestu- ous scene in the plant cafeteria.139 Responding to a call over the plant loudspeaker, Respondent's employees - 138 Substantially the same statement is made in Vazquez' July 19, 1974, affidavit, except that there the "December" is changed to "November," with, however, still the following statement ascribed to O'Connor at that meeting: "Mr. O'Connor said we [sic] needed some time because he had received a charge from the Labor Board" (G. C. Exh.130). Information as to the filing of the charge at the Board's Regional Office on November 29, not being secret, could of course readily have been conveyed to Respondent informally, such as on the telephone from the Regional Office, by counsel, by the party filing the charge, or by anybody else who knew about it. 139 The description which follows is based on the composite credited testimony of all witnesses who testified concerning it. Respondent had met a few hours earlier , on a scheduled negotiating session, with Teamsters Local 806, which Respondent asserts it proceeded with notwithstanding its conceded receipt (December 4) by that time of a formal copy from the Board's Regional Office of the Distributive Workers District 65 charge filed herein on November 29. While Respondent asserts it terminated the December 7 meeting for that reason - although why it should have allowed it to convene under these circumstances , only to terminate it, is not apparent - it now speculates that the riotous scene later that afternoon (about to be described) was probably the result of its termination of that meeting and therefore indicative of a groundswell among (Continued) 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 400, more than half women, according to Respondent General Manager Feinberg - assembled in the plant cafeteria in midafternoon during paid worktime . Present also were representatives of Respondent's management- supervisory hierarchy and team, and also Teamsters Local 806 President Calagna and his Spanish -speaking aide Gonzalez. Standing on a table, Gonzalez started to make a speech describing the advantages of affiliation with Team- sters Local 806; but when Gonzalez added that his Union had been informed by the Board or the Labor Department that "bargaining should stop" 140 and that they were there to find out whether the workers "were willing to back them," he was uproariously shouted down - in the words of Fernando Aguirre, a credible witness, "All of the workers started shouting that we were not going to back them," "Get [Local] 806 out of the plant," and "We wanted an election." 141 At this, Gonzalez or Calagna - who had joined Gonzalez at the table - indicated that employees who did not want to listen or who are "not interested" should leave. Amidst a riotous scene, with "everybody .. talking and yelling at the same time" and demanding "an election" or "legal elections to see which union was going to represent the workers," a woman was punched in the belly 142 and another, according to Feinberg, in nose, and the bulk of the employees streamed out of the cafeteria, leaving perhaps only 30-35 remaining there. After the great bulk of the employees were out of the door, one of the employees remaining inside (described by Aguirre as an "American lady who works on the second floor" 143) attempted to close the door, but when another employee struggled to hold the door open the "American lady" grabbed him by the hair. In the ensuing disturbance, General Manager Feinberg attempted to come to the assistance of the "American lady" in closing the door. At this point, the mass of employees who had left and were gathered in the corridor outside of the cafeteria surged back, shouting - in Spanish and English - "[Local] 806 out!" Local 806 Official Gonzalez was now attempting to bar them from reentering the cafeteria , without success. Jose Peguero, an elected member of the District 65 employees organizing committee, among the employees who had surged back into the cafeteria, leaped onto a table and emphasized to the employees that since Teamsters Local 806 did not represent a majority of the employees it the employees in favor of Teamsters. But under the circumstances shown, equally warranted would be the contrary speculation that the riotous scene was the product of employee indignation over that recognition and its attempted implementation. I decline to indulge in speculation in either direction. 140 According to General Counsel witnesses Bueno and Pe , Gonza- lez made it a point to remark that Local 806 would already have obtained hospitalization, vacation, and other benefits for the employees if the governmental authorities - i.e., the Board - had not interfered by notifying his Union to stop bargaining. This testimony by Peguero, an elected member of the District 65 employees organizing committee , at the time, is corrobo- rated by Bueno and stands uncontradicted. 141 Inasmuch as Gonzalez was not produced to testify , the foregoing testimonial account by Aguirre, a credible witness, stands uncontradicted by him. 142 Mary Arlington (the American lady), according to Feinberg. 113 Identified by other witnesses as Mary Arlington , a Teamsters Local 806 protagonist. She did not testify here. 1 Bueno testified that, white he and Peguero were on the table thus exhorting fellow employees, General Manager Feinberg instructed them to punch in your card ... get out," but that they continued to speak since they felt they had the same right to do so as the Teamsters advocates. was not the representative of the bargaining unit. To a chorus of "Out 806" cries, Peguero emphasized the need for an election. Peguero's fellow employee, Rafael Bueno (also an elected member of the District 65 employees organizing committee at this time), who had joined Peguero on the table, also pointed out that Local 806 could not bargain for the unit without representing at least a majority of the employees, and that an election was desirable , adding that "if an agreement [is] signed without having elections ... it [is] not a good procedure.... The company should allow the people from District 65 to go in to the company in the same way the people from Local 806 did, because at no moment the 806 was representing us, because many workers who had given other signatures to 806 , including myself, did it expecting elections." 144 I reject the testimony of Local 806 witness Eddie Sanabria (regarding whose demeanor and credibility I have already had occasion to comment in another connection), who, while characterizing the December 7 episode (at which he testified he was present) as a "scandal," insists that he heard only "shouting noise but no words." (Seemingly according to Sanabria, alone, Caning and Aguirre were also on the table with Peguero and Bueno, shouting "noise but no words." In view of the overwhelming evidence to the contrary, perhaps Sanabria was, in a Freudian sense, deaf to words he did not wish to hear.) According to Respondent General Manager Feinberg, who heard employees yelling "Out 806," employ- ee Mercedes Rivera had also taken to the table with Peguero and Bueno. General Manager Feinberg, with the assistance of Per- sonnel Manager Morales, attempted to calm the mass of shouting employees who, according to his description of the stormy scene, were "angrily" yelling back and forth at each other "Down with 806," "Down with the Company," and "Go f--- [your]self and get the hell out of [t]here." Plant Manager Petrera, engaged in the same endeavor, requested Aguirre (a rank-and-file employee) to spread the word that there was to be no fighting on the premises. Personnel Manager Morales, who also was there, an- nounced that all employees should leave the plant , without the necessity for punching out their timecards. This was close to quitting time, and most of the employees thereupon left; all were paid for a full day's work.145 The witnesses' description of this tumultuous episode indicates that it was 145 Before leaving, Peguero attempted to return to his work area for his belongings, but was intercepted by General Manager Feinberg with several other executives and supervisors. Feinberg or Morales directed Peguero and Bueno (who was with him) to "leave or I call the police ." This provoked Bueno to spit on the floor at or near Kaye's feet; when he was directed to clean it up, he refused. This was on Friday afternoon. When Peguero and Bueno returned to the plant on the following Monday morning (December 10), not knowing whether or not they had been discharged by Feinberg on the previous Friday afternoon, they observed policemen outside of the office and elsewhere in the plant, and were instructed to wait in Personnel Manager Morales' office. There, in the presence of Foreman Domingo Negron (serving as interpreter), Foreman Felipe Rivera, Morales, and Local 806 President Calagna - with police outside - Feinberg stated that he regretted the episode of December 7, where among other things a pregnant woman had been mauled, and added that, "I'm [Feinberg ] going to take you back, but I want you to work and not get mixed in that union mess ... I'm going to give you back to your foremen ... so you would be under their surveillance." To this, Bueno and Peguero pointed out that Teamsters Local 806 did not represent them or the unit employees , that their affiliation was with a union they preferred (i.e., District 65), and that this constituted the HARTZ MOUNTAIN CORP. 523 by the merest touch and go that a full-scale not was averted. It is conceded by Respondent's own witnesses 148 that, during this December 7 cafeteria assembly, Respondent Vice President Kaye, General Manager Feinberg, Plant Manager Petrera, Personnel Manager Morales, and its Foremen Supervisors Negron, Santiago, Stokes, and Ur- daneta were present. According to Feinberg, he had instructed supervisors to remain there "to control the crowd." Feinberg concedes that to his observation there was opposition demonstrated to Local 806 at this assem- blage and that he heard employees there yelling, "Out 806!" Respondent Vice President for Industrial Relations O'Connor, who was not present at the December 7 happening, nevertheless indicated he was aware that there was not only expression of employee opposition to Local 806 there, but "chaos"; presumably he was well informed by his colleagues and subordinates. While Respondent ascribes the December 7 cafeteria melee to employee dissatisfaction over the Employer's slow pace in implementing its recognition of the Teamsters a few days earlier, under the described circumstances and in view of the entire background a perhaps no less plausible explanation for the melee is employee chagrin and resis- tance over having the Teamsters imposed upon them to the exclusion of another union of their choice, or without an election. Thus, Respondent's Feinberg swears in his Janu- ary 31, 1974, prehearing affidavit: "I believe the meeting [of December 7 ] . . . was called by the people themselves. The 806 people didn't call it, because they were called down to break it up, and people started coming to the cafeteria before 806 people arrived" (G.C. Exh. 144). (But by the time Feinberg signed his July 22, 1974, affidavit, Feinberg seed of the "conflict." Peguero was then returned to work but reassigned or transferred from his former job (on "Line 26"), without salary change, to repacking damaged merchandise under Foreman Domingo Negron. Later that morning, Peguero was discharged under circumstances described below (1I, B, 1, infra). As for Bueno, who in essence corroborates the foregoing account of Peguero, he had been terminated a few days before the described December 7 cafeteria scene but had been returned to work within a few days (on December 6 or 7); however, after his return to work on December 10 - also, like Peguero, to a differentjob, in Bueno's case repacking merchandise under Foremen Felipe Rivera and Ildefonso Urdaneta - he was discharged on December 27 or later under circumstances also described below (II, B, 2, infra). 146 See, e.g., Femberg's July 22, 1974, affidavit (G.C. Exh. 145), con- firmed by Morales in his like affidavit (C.P. Exh . 9). In view of these sworn statements against interest (as well as other credited testimony relating to the December 7 scene) and his own testimony to the contrary at the instant hearing, I do not credit the contradicting sworn statement of Respondent Vice President Kaye in his January 28, 1974, prehearing affidavit that "No management people were in the meeting (G.C. Exh. 137). This is but another example of what might be regarded as a penchant for misleading with words or a high degree of carelessness with candor and accuracy. i4? The "January 3," 1974, date as the date the "Two separate contracts were executed" is quoted from Kaye's July 22, 1974, affidavit (G.C. Exh. 138). However - yet again, in a seemingly endless parade of contradictions under oath - Kaye had sworn in his January 28, 1974, prehearing affidavit here that "As of today , the Co. has not signed a contract with Local 806. The Co. is dealing with 806, negotiating for a contract . Since the first meeting on Monday, Dec. 17, there have been 2 meetings ; we are now in active negotiations" (G.C. Exh. 137). These sworn statements can hardly be considered an inadvertence ; indeed, they are repeated later in the same affidavit, where Kaye again swears that "No contract has been signed.... . In my view, such factual contradictions, particularly in statements under oath to governmental authorities , like others elsewhere pointed out herein - are substantial and serious, should be seriously regarded , and merit poor marks for their affiant's credibility if, indeed , not more serious consequences. was saying, "It was my impression that the meeting had been called by the Teamsters employees committee." G.C. Exh. 145.) e. Developments subsequent to December 7 Subsequent to the described events, Respondent met with Teamsters Local 806 representatives and members of Vazquez' "committee" perhaps a few times in December (December 17 and 21 ; possibly also on December 31); and ..on or about January 3," 1974,147 executed two separate "collective agreements" - splitting the agreed-upon bar- gaining unit recognized in the November 30 Recognition Agreement into two separate bargaining units - one for "Production Workers" (G.C. Exh. 3A), and the other for "clerical and maintenance" employees (G.C. Exh. 3B).148 These "collective agreements," each signed by Kaye with Calagna and each identical (including blank spaces - e.g., no workday hours specified) except for an appended wage schedule, were also allegedly executed on the same day - January 3, 1974, but effective by their terms on December 1, 1973, each reiterated Respondent's recognition of Team- sters Local 806 as exclusive collective-bargaining represen- tative of its employees as of December 1, 1973, and each required all of the unit employees to become members and maintain membership in Local 806 as a condition of continued employment (G.C. Exhs. 3A and 3B), and each agreement required that all initiation fees, dues, and assessments of Local 806 be deducted by Respondent from its employees' wages - such "checkoffs" to be "irrevocable for a period of more than one (1 ) year, or beyond the termination of this agreement, whichever occurs sooner [sic]" (id) 149 Each agreement further stipulates, on behalf of the employees, that "there shall be no strike , slowdown, 148 Kaye testified on direct examination that no document was offered or signed for separate recognition of clerical and maintenance employees - which he, as well as Calagna (but not O'Connor), asserts occurred at the December 17 negotiating meeting - and that no Local 806 cards were displayed or offered to establish the credentials or authority of Local 806 in that regard. (On cross-examination, however, Kaye made yet another about- face by stating that he was "shown" such cards, but he acknowledged that they were neither counted nor checked.) O'Connor conceded here that not only did he not count or even look at any alleged Local 806 cards for clerical and maintenance employees, but he was unaware of exactly how many employees the Company had in those categories; but even according to O'Connor's testimony and figures, he extended "recognition" to Local 806 as a seemingly or potentially nonmalority representative of those employees since (according to O'Connor's testimony) the clerical and maintenance unit consisted of "approximately 35 people" and Local 806 allegedly claimed to have only "about 15" cards. O'Connor also conceded on the record at the hearing that - contrary to his July 22, 1974, affidavit (G.C. Exh. 143), part of paragraph 29 of Kaye's affidavit to that court (G.C. Exh. 138) is not true, and that O'Connor in effect misled the district court in that Sec. 10(j) injunction proceeding by failing to state the true facts thereon . Contrary also to his earlier testimony at this hearing itself, O'Connor swore on cross-examination that he extended recognition to Local 806 for a "clerical and maintenance unit" not on December 17 but on December 21. In view of admissions of O'Connor and Kaye contrary to interest, I do not credit Calagna's testimony that the Local 806 alleged cards for clerical and maintenance employees were "counted" by Respondent at either of the foregoing meetings. 149 After first testifying that Respondent at no time enforced this Teamsters compulsory membership ("union security") requirement or attempted to enlist employees into such membership, Kaye - again after further questioning - conceded that his Company did place notifications into its employees' pay envelopes in January 1974 that they were required to (Continued) 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stoppage, cessation of, or interference of work" for the duration of the contract (art. XIX in each). Each agreement also is for a period of 3 years (to November 30,1976), with a year-to-year automatic renewal provision thereafter (art. XXVIII in each). After the execution of these agreements in January 1974, Juan Vazquez became chief shop steward for Local 806. Also in January, he, together with his aides Ocana, Sanabria, and Peneherera, received wage increases in excess of those called for by the Local 806 collective agreement 1511 These wage increases for these four are extraordinary not only in that they were over and above those required by the new collective agreement they had so diligently assisted in bringing about, but extraordinary in another respect - they were not even known to General Manager Feinberg, according to his own testimony. In my view, the overwhelming mass of substantial credible evidence clearly indicates, and accordingly upon the foregoing subsidiary findings and the record as a whole it is found, that Teamsters Local 806 member- ship/representation authorizational designation cards con- stituting the alloged basis for Respondent's recognition of that Union, as the exclusive collective-bargaining represen- tative of its employees in a unit or units appropriate for collective bargaining, were regularly and continuingly procured, with Respondent's knowledge and approbation, on Respondent's Jersey City plant work premises - including its personnel office there - on paid working time, with the aid, encouragement, assistance, and support of Respondent and its officials, supervisors, and agents, and in some cases directly by or with direct participation of an official and agent of Respondent; and that the described membership/recognitional drive or campaign of Teamsters Local 806 was thereby tainted with substantial impropriety and illegality, including aid, assistance, and support from Respondent Employer. f. Extent of Teamsters Local 806 support among unit employees Although, in view of the foregoing findings regarding the tainted campaign and cards constituting the alleged basis upon which Respondent recognized and entered into agreements with Teamsters Local 806 as the exclusive collective-bargaining representative of its employees, no determination is essential as to whether or not that Union held valid cards from an arithmetical majority of Respon- dent's employees, nevertheless, in view of allegations in the complaint that it did not and substantial litigation of that issue at the hearing, we proceed to an abbreviated recapitu- lation of the arithmetic of the situation. Join Local 806. It is conceded that Respondent also made Local 806 dues deductions from its employees' pay until halted by a preliminary injunction issued by Chief United States District Judge Whipple in August 1974. Although the United States Court of Appeals for the Third Circuit denied Respondent's application to stay enforcement of that injunction pending appeal, it subsequently ordered the injunction to be vacated without reaching the merits of the case. 150 In Vazquez' case, according to his testimony , in excess of 50 cents per hour on top of the 35 cent -per-hour increase required by the collective agreement . Ocana ascribed his increase to an alleged "new work category" which had not existed before and is undefined in the new collective agreement, and which he allegedly could not "exactly ... remember"; he volunteered, however, that "You see when the workers cooperated with them To begin with, benchmarks or moorings involving such necessary factors as the number of employees in the unit or units on contested dates have been supplied by counsel through stipulations and statements of position (ALJ Exhs. 2a 2h, 3a-3c, 4, and 5) in consequence of an order ALJ Exh. 1) issued by me after careful prehearing and early hearing exploration with counsel. That order (ALJ Exh. 1), entered on consent, required, among other things, (1) the furnishing of Respondent's payrolls and payroll data for November 30 - December 17, 1973, with provision for access to books and records of original entry; (2) the listing of all employees in the bargaining unit or units on the foregoing dates; or, in lieu thereof, statements of conflicting positions or contentions in regard thereto ; (3) the furnish- ing of copies of all Local 806 cards relating to all unit employees, with provision for access to all original cards; (4) the furnishing by General Counsel of alphabetized lists showing each and every unit employee for whom there is a Local 806 card or cards, together with a dear and concise statement as to General Counsel's position with respect thereto - i.e, whether the card may be received into evidence without challenge, or the alleged infirmity or infirmities invalidating such card or cards; (5) thereafter, the return by Respondent and Local 806 of a copy of such lists of General Counsel (item 4, supra), with the positions or contentions of Respondent and/or Local 806 with respect thereto; and (6) permitting the contest or impeach- ment of any Local 806 card. According to those stipulations and statements of position, as subsequently modified, supplemented, or otherwise satisfactorily established upon the record. As of November 30, 1973, there were 441 employees in Unit I (production employees) and 34 employees in Unit II (clerical and maintenance), totaling 441. It is emphasized that Respondent in fact recognized a single unit of "all" employees on November 30. The breakdown into Unit I and Unit II is indulged in merely because of Respondent's splitup of the originally recognized unit into those two parts subsequently in December (December 17 or 21 allegedly) under the circumstances shown, and thereby to avoid a duplicative and circumlocutious analysis of the arithmetic of the situation. As of December 17, 1973, the number of employees in Units I and II remained the same. December 17 was specified in the order (ALJ Exh. 1) and used as a benchmark by all counsel because at all times it had and continued to be Respondent's consistent contention - in affidavits of its Vice President Kaye to the United States District Court and otherwise, as also the consistent position of its counsel - that that was the date of its alleged they cooperated with the workers too." Sanabria boldly denied receiving any extra increase, beyond that called for by the new collective agreement (35 cents per hour), insisting he received only "just what was given to the other workers that were there," until he was confronted with his personnel file showing that on January 23, 1974, he received an additional, extraordinary 25-cent hourly increase (not called for by the new collective agreement) upon authorization of Gilbert Kaye retroactively to December 1, 1973; faced with this, Sanabria pretended a sudden recollection of it, with a thoroughly incredible "explanation" of why it had allegedly slipped his nand. Peneher- era conceded also receiving the extraordinary increase in January 1974. Vazquez had been in Respondent's employ since April 19, 1972, Ocana since October 19, 1970, Sanabna since April 29,1969, and Peneherera since April 10, 1973 (G.C. Exh.113). HARTZ MOUNTAIN CORP. 525 recognition of Teamsters Local 806 as the bargaining representative for Unit II (clerical and maintenance em- ployees). It was not until Respondent's vice president for industrial relations, O'Connor, testified, late in the hearing, during Respondent's defense, that O'Connor insisted that that date was wrong and that the alleged recognition of Unit II really occurred on December 21. Since no discrep- ancy in arithmetic has been suggested by counsel as arising from this alleged 4-day difference, and in view of Respon- dent's formal adoption of position involving December 17 as its benchmark date, as well as the possible prejudice and unconscionable expense and delay which might ensue from any such seemingly unjustifiable "change" at the 11th hour of a protracted litigation ranging close to a year, and, finally, Respondent's failure to establish or claim prejudice or materiality, December 17 is continued here to be regarded as the benchmark date for arithmetical purposes in dealing with Respondent's contention as to its alleged "separate" recognition of Unit II. These figures are material only assuming arguendo that (1) Respondent's "splitup of the overall unit recognized by it on November 30 (G.C. Exh. 2) was proper, and that (2) Respondent recognized Unit II (clerical and maintenance employees) on December 17. With relation to the 441 employees (and 221 majority) in the overall unit recognized on November 30, General Counsel stipulated into evidence 192 cards (187 in Unit I and 5 in Unit II) 151 as of that date; plus an additional 5 in Unit II as of December 17. This, of course, is short of a majority in either the overall unit recognized on November 30, or in Unit I or Unit II which Respondent now claims it recognized on December 3 (Unit I) and on December 17 (Unit II). Although General Counsel (and the Charging Party, Distributive Workers District 65) stipulated into evidence only a total of 192 Teamsters Local 806 cards as of November 30, and 5 more Unit II cards as of December 17, he conceded and represented upon the record that he had more Local 806 cards in his possession, received from that Union in response to his formal written call (G .C. Exh. 127) for the production of the Local 806 cards at the investiga- tive stage of this proceeding, prior to issuance of the complaint herein. General Counsel certified in writing (ALJ Exh. 2a) as well as orally upon the record that he has supplied into this record all of the Local 806 cards which came into his possession, totaling 393,152 all of which he accounts for (ALJ Exhs. 2b-2h, and the duplications there shown) as follows, and concerning which my determina- tions and findings have been added in columns 4 and 5 of Figure 1: [omitted from publication ]. The results of the counts set forth in Figures 2 and 3 [omitted from publication] are tabulated in Figure 1, supra. From these it will be seen, as shown on Figure 4, that the number of valid Teamsters Local 806 cards upon which Respondent allegedly predicated its recognition of that Union - whether it occurred on November 30 for an overall unit or for Unit I, or on December 3 for an overall unit or for Unit I, or on December 17 for Unit II - fall substantially short of the number necessary to constitute a majority in any case: Figure 4: Local 806 Card Strength 1973 C o u n t Date Unit (Cards/Unit Emps.) % l1-30 Both 198/441 44.9 11-30 I 193/407 47.4 11-30 II 5/34 14.7 12-3 - Both 195 a/ /442 44.1 s/I.e., November 30 overall card count (198) less 3 (Juan L.. Rivera, Fernando Newname [Newmane], and Benjamin Carraballo), as shown on AL7 's Exhs. 3c and 2b. 151 By stipulation, Robert Buxton and Jose Camino were added to the original list of 185 Local 806 cards stipulated into evidence (ALJ Exh. 2b). Since Camino had been included on a separate list of Unit II employees containing six names (ALJ Exh. 2d), his transfer to the Unit I list reduced the Unit II list from 6 to 5. 152 Local 806 President Calagna asserts, however, that he turned "more" cards over to General Counsel. Thus, Calagna testified that he made two trips to the Newark Regional Office of the Board in January 1974, each time with his aide Gonzalez; that on the first occasion he delivered 380 cards to an unidentified individual, and on the second an additional 96 cards, for a total of 476 cards (or more than the number of employees in the total unit or units). Calagna concedes that as of the time when these cards were delivered by him to the Regional Office he had still not checked the dates or signatures on them. While Calagna swears he thus in January 1974 turned over "all" of the Local 806 cards of Respondent's unit employees, he obtained no receipt for them, at the same time asserting that his Union maintained no record of the cards it received or turned over, other than a list for "some" of the cards - Calagna says "around the two hundred mark" - turned over to the Board; but even that alleged list has, unaccountably, not been produced here. While Calagna testified that in a July 1974 affidavit to the district court (G C. Exh. 136) he stated that 31 cards turned over by hum to the Regional Office are "unaccounted for and missing," and that he claims to have turned over 476 while according to him the Regional Office claimed it received only 445 cards, he concedes that he has made no attempt to ascertain whose alleged cards are "missing ." Nor does he appear to have sufficient awareness of the nature of those alleged cards to know they do not contain, for example, duplicate cards for the same employees already included in the other cards. In evaluating this testimony of Calagna, it is necessary at once to consider it within the framework of what have already been shown to be his recollectional and other major testimonial shortcomings in other respects. There is also a degree of incredulity on my part that his Union maintains no meaningful records, and that his Union itself, let alone his Union with the assistance of Respondent and of Vazquez and his interested group , could not reconstruct a substantial portion if not all of so large a mass of allegedly "missing" cards. Within this frame of reference, even though Calagna's testimony is not contradicted head-on, I am unprepared to credit it as he here delivered it relating to the allegedly "missing" cards. Neither Local 806 nor Respondent asserted as a fact that there were additional Local 806 cards in the statement of position (ALJ Exh. 5) filed by them in response to my order regulating proof herein (ALJ Exh. 1) entered on consent. Furthermore, although Calagna testified that he had made Xerox copies of "most" of the cards before turning them over to the Regional Office, unaccountably he failed to produce any such copies here. Moreover, Gonzalez - who could readily have corroborated Calagna's assertions in this regard if accurate, was - also without explanation - not produced to testify. Finally, as to the alleged 31 cards now said to be "missing," there is in any event no proof as to whose they, or any of them, allegedly were, or as to when they were allegedly executed, nor as to whether the alleged signers were even employees of Respondent; nor was even any secondary evidence submitted with regard thereto. Under the circumstances, fortified by testimonial observations, it is not credited that they existed nor can it be assumed or speculated that they constituted validly executed cards to be counted toward any alleged Teamsters Local 806 majority claimed here. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1973 Count Date Unit ( Cards/Unit - Drips.) 8 12-3 I 190 1 /408 46.6 12-3 II 5 - 10/34 14.7-29.4 12-17 II 10/34 29.4 fl.e., November 30 Unit I card count (193), less 3 enumerated in foregoing fn. a. In view of the foregoing, it is accordingly found that Respondent's recognition of Teamsters Local 806 herein was not based upon and was without knowledge on Respondent's part as to whether that Union in fact represented a majority of employees in a unit of Respon- dent's employees appropriate for collective bargaining; that it has been satisfactorily shown, under all of the circum- stances and the record as a whole , that Teamsters Local 806 did not represent a majority of Respondent's employees in a unit appropriate for collective bargaining on any alleged date of such recognition ; that General Counsel has under the circumstances shown met his burden of proof of establishing that Respondent's recognition of Teamsters Local 806 was not based upon a demonstration by that Union that it represented an uncoerced majority of the employees in any appropriate bargaining unit of Respon- dent's employees; and that Teamsters Local 806 at the time of any such recognition did not in fact represent such majority. 4. Resolution and rationale a. Employer assistance and support to recognized Union (Teamsters Local 806) As has been shown, a considerable volume of credited testimony - the cumulative effect of which cannot be ignored or minimized - has been adduced establishing the assistive and supportive circumstances under which Re- spondent's recognition of Teamsters Local 806 occurred here. Following decertification of Retail Clerks Local 888 in May 1973, that Union lost little time in mounting a renewed, substantial organizational drive , under the eyes of Respondent's managerial and supervisory officials , result- ing in its filing with the Board's Newark Regional Office over 300 bargaining representational authorization cards - the bulk dated in July and August, and almost 70 in November (1973) - after that Union had been rebuffed by Respondent in its August offer to demonstrate its majority strength through an authenticative check of those cards. Running a somewhat parallel course with the Retail Clerks Local 888 re-organizational effort was the massive and extensive, full-scale organizational campaign conduct- ed by Distributive Workers District 65 - also under the eyes of Respondent's managerial as well as supervisory 153 See also NLRB. v. Hunter Outdoor Product., Inc., 440 F.2d 876, 879 (C.A. 1, 1971); NLRB. v. Jan Power, Inc., 421 F.2d 1058, 1063 (C.A. 9, 1970). "A[n ] employer may properly be held responsible for'interfering' in the affairs of a union because of participation by his supervisors even though such participation was not expressly authorized or ratified ." Local 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO [Detroit Association of Plumbing Contractors] v. NLRB., 287 F.2d 354, 360 personnel - resulting in its like deposit with the Board's Newark Regional Office of between 300 and 350 bargaining representational authorizational cards (almost 300 obtained in May and June, some 30 in August, and additional cards in September), also following total rebuffs by Respondent to even meet or talk with that Union, which had also offered to submit its cards to an impartial validating cross- check as to their genuineness as well as quantity. Any possible doubt as to Respondent's knowledge even at its managerial level, as to these continuing organizational activities, through the fall and even through November - while it would be unwarranted - was laid at rest by the admission here by Respondent Vice President for Industrial Relations O'Connor - testifying as Respondent's own witness - that he was well aware of these activities through his "pipelines in the plant," and by the candid testimony of General Manager Feinberg (also its own witness) that he had reported that activity to Respondent Vice President Kaye, in overall charge of-that plant and that "I [Feinberg] tell you, he [Kaye ] saw it." When, however, Teamsters Local 806 was introduced into the picture - and there is evidence that this was done at least with Respondent's active collaboration - in Stark contrast to the rebuffs handed to Retail Clerks Local 888 and Distributive Workers District 65, each of which had explicitly offered to establish its bargaining authorizational credentials through an impartial verifying card check, Teamsters Local 806 was speedily recognized without even any semblance of a card check, on the heels of a lightning "campaign" featuring not only widespread card solicitation by employees on Respondent's premises during company- paid working time, with the knowing tolerance of Respon- dent as credibly confirmed by one of its own supervisors at the time (Negron), but also featuring card-solicitation in Respondent's own personnel office not only by an employ- ee permitted to carry on those activities there but also card solicitation personally by and with the direct participation of Respondent's personnel manager. It is, of course, basic industrial relations law that an employer who assists in the solicitation of such cards violates the Act and vitiates any recognition of a union involving such an employer -conta- minated solicitation process. Russell Motors, Inc., 198 NLRB 351 (1972), enfd. as modified 481 F.2d 996 (C.A. 2, 1973), cert. denied 404 U.S. 1017 (1972).153 The highly suspicious and improper circumstances of Respondent's precipitate recognition of Teamsters Local 806 have likewise been shown - including the nature of its self-designated employees' "committee" under Juan Vazquez, including among its membership even supervisory personnel ; 154 and Respondent's failure to so much as count or examine, much less verify the authenticity of, the "cards" tendered to it by Local 806, or whether they were duplicate, dual, or even blank cards.155 The Supreme Court has taken occasion to point out that "If an employer takes reasonable (C.A.D.C., 1961). See also N.LRB. v. Park Edge Sheridan Meats, Inc., 323 F.2d 956 (C.A. 2,1963). 154 Unlawful employer "interference" has been predicated upon supervi- sory membership (as herein), without more, upon such an "employees committee." Local 636, Plumbers v. NLRB., supra,, Nassau and Suffolk Contractors'Association, Inc., 118 NLRB 174 (1957). 155 That "dual cards" - i.e., cards of employees who have executed similar cards for another union or unions - are not to be counted toward a HARTZ MOUNTAIN CORP. steps to verify union claims . . . he can readily ascertain their validity and obviate a Board election . We fail to see any onerous burden involved in requiring responsible negotiators to be careful, by cross-checking, for example, well-analyzed employer records with union listings or authorization cards." International Ladies' Garment Work- ers' Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.LR.B., 366 U.S. 731, 739-740 (1961). This uncalled for precipitateness of recognition and proceeding with contract negotiations and execution was accomplished in the face of registered mail protestations from District 65 to both Local 806 and Respondent, and also registered mail notification to Respondent from the Board's Regional Office that a charge had been filed and that the situation was under official investigation. Respondent's precipitate recognition of Teamsters Local 806 was also effectuated in the midst of concurrent organizational activities (as well as representa- tional status assertions) being carried on, to Respondent's knowledge, by Distributive Workers District 65 as well as Retail Clerks Local 888. Respondent's starkly contrasting treatment of Teamsters Local 806 - in contrast to its continuing "stonewall" rebuffs to the other two unions - may also be regarded as in and of itself assistive and supportive of Teamsters Local 806 and as an open signal from Respondent to its employees to affiliate with Local 806 as the union favored by Respondent and the only union it would accept, regardless of any contrary desires of its employees. The bona fides of Respondent's assertion that its recognition of Teamsters Local 806 was based upon the majority status of that Union is further thrown into sharp doubt by the concession of its employee and Local 806 arch-Organizer Juan Vazquez that he would not have sought employer recognition of Local 806 at the end of November if Respondent had at that time indicated it would recognize District 65 upon the basis of the more than 300 cards held by District 65 ; as well as by the admission of Respondent Vice President Kaye that if he had been dissatisfied with the Teamsters Local 806 health plan at the time Respondent extended recognition to that Union, Respondent would not or might not have recognized it even if it in fact established a card majority. Moreover, in determining the viability of a "recognition" as exclusive bargaining representative based upon "cards," the nature and the language 158 of those cards, as well as the character of the employee population of the alleged signers in the bargaining unit, are proper subjects for consideration. Here, the apparently substantial English illiteracy, as well as the seemingly modest educational attainments, of the many employees who testified , while no reflection against them, also militate against the fairness of counting them mechanically like wooden ballots or enforcing them me- chanically like confessions of judgment executed in blank: As was pointed out in Brancato Iron Works, Inc., 170 claimed "majority," see, e.g., The Drackelt Company, 207 NLRB 447, 451 (1973); Hi Temp Inc., A Division of Beatrice Foods Co., 203 NLRB 753, 756- 757 (1973), enfd. 503 F.2d 583 (C.A. 7, 1974); Inter-Island Resorts, Lid, d/b/a Kona Surf Hotel, 201 NLRB 139, 142 (1973), enforcement denied 507 F.2d 411 (C.A. 9, 1974); Intalco Aluminum Corporation, 169 NLRB 1034 (1968), enfd. in pertinent part 417 F .2d 36 (C.A. 9,1969); Allied Supermar- kets, Inc ,Al hed Discount Foods Division,,1691NLRB 927,(1968), and cases cited fn. 3. In the face of a substantial number of dual membership cards, an employer may not arrogate to himself the unreviewable power of resolving a 527 NLRB 75, 81 (1968): "In an ordinary case the employee's signature placed on a standard union card presumptively establishes his intent to authorize a union to represent him forthwith - for the card so states clearly. When the card is completely unintelligible to the employee, there can be no presumption ... that he meant this or that. It would seem that in such a case something more is required, either by the employee of what was said to him at the time and his understanding of the purpose for signing, or by fellow employees or solicitors of how they translated or explained the card to him before its acceptance in writing." See also Gate of Spain Restaurant Corporation, 192 NLRB 1091 (1971). There is also the matter of the substantial pay raises - considerably in excess of those called for by the collective agreements entered into by Respondent with Teamsters Local 806 after its recognition of that Union - to its employees serving as the efficient sparkplugs for the lightning Local 806 blitz - Vazquez, Ocana, Sanabria, and Peneherera - which smack of rewards for services ren- dered in helping to esconce a union of Respondent 's choice. The record as made may fairly be considered to reflect a clear preference and desire on Respondent's part for Teamsters Local 806, instead of and indeed if possible to the exclusion of District 65 or Local 888, as the "exclusive" collective-bargaining representative of its employees - an objective attained by Respondent in the manner described, thereby in effect imposing its will on its employees and selecting "their" union for them. Although unnecessary and in an absolute sense perhaps impossible to determine its true cause, the near riot in the plant cafeteria on December 7 - on the heels of Local 806 recognition - as a manifestation of the degree of employee rancor over what was being perpetrated upon them, may by no means be dismissed out of hand as fanciful. Respondent argues that since the Local 806 cards are "late?" in date than those of District 65 and of Local 888, the Local 806 cards only should be counted and the others disregarded. There are a number of answers to this contention. To begin with, not all of the Local 806 cards are "later" than the others; as shown, for example,, almost 70 Local 888 cards are dated in November. Furthermore, there are substantial - hundreds - of cards of the other two unions dated reasonably prior to then, and those cards may hardly be regarded as stale as a matter of law. No showing whatever has been made - and a finding based upon speculation or conjecture could not stand - that the hundreds of memberships evidenced by documents in evidence (in the case of District 65, cash receipts as well as "cards"), many as late as November - had expired or were no longer current. Under the circumstances, a very substan- tial number of employee memberships/bargaining authori- zational designations in and to District 65 having been real question concerning representation - otherwise he would be undertak- ing powers vested by Congress in the Board, if, indeed , not assuming to exercise powers superior to those of the Board. Cf. Epsilon Fishing Co., Inc. d/b/a M/V Denise Marie, 198 NLRB 918 (1972), enfd. 483 F.2d 952 (C.A. 9, 1973). Upwards of 100 of the Local 806 cards here appear to be dual cards (Resp. br.). 156 It is observed that all of the cards of Teamsters Local 806 (as well as those of Distributive Workers District 65) are in English, whereas a substantial proportion of those of Retail Clerks Local 888 are in Spanish. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD established to have been paid for in futuro (by three volumes of cash register receipts in evidence - G.C. Exh. 15), it is to be presumed that they continued to be in effect, in the same manner as other membership subscriptions paid in advance and unrevoked . In the absence of an unequivocal contrary showing, it is to be presumed that at least those paid memberships in District 65 were still in effect at the time of Respondent's recognition of Teamsters Local 806.157 Furthermore, if District 65 already had a majority of cards - which, as shown, it had formally offered and stood ready to demonstrate - what need was there for it to obtain more, or to keep updating those it already had at hand, or to keep reiterating (as indeed, however, it reasonably did, as shown above) its recognition- al demands, having been consistently rebuffed by Respon- dent? 158 Finally, District 65 (as established by the testimo- ny of Vice President Julio Mojica) learned for the first time in mid-November that Teamsters Local 806 was attempting to organize the unit employees - he could hardly have known of it before, since it did not happen before then; and District 65 in short order dispatched registered letter requests to Respondent as well as to Local 806 to desist from recognition under the circumstances. Thus, the activities of Mojica and District 65 spell attentive diligence rather than default, neglect, laches, or procrastination.159 In view of all of the foregoing factors, the conclusion is warranted that under all of the circumstances shown it is not feasible or possible to arrive at a rational or absolute determination which, if any, of the three competing unions here commanded the allegiance of a majority of the unit employees. Under these circumstances it was improper, in my view, for Respondent to attempt to preempt that determination in the arbitrary, high-handed, and unfair manner which it employed. Even if Respondent had the best-intentioned reasons for being averse to dealing with District 65 or Local 888 from its point of view, insofar as the exclusivity of bargaining representation is concerned the rubric of the Act is designed in terms of employees', not employers', desires. "The right of employees to be repre- sented by officials of their own choice doubtless must outweigh any principle ofpersona non grata " N.LRB. v. Signal Manufacturing Company, 351 F.2d 471 (C.A. 1, 1%5), cert. denied 382 U.S. 985 (1966). b. Majority or minority union: the Bernhard- Altmann principle All ofthe foregoing considerations apply regardless of the number of membership/bargaining designational authori- zation cards held by Teamsters Local M. Thus, findings here made concerning Respondent's assistance and support to Teamsters Local 806 preceding its recognition of that Union as exclusive bargaining representative of its employ- ees render it unnecessary to establish that Teamsters Local 806 was a "minority union" at the time it was recognized, since Respondent's assistance and support - unlawful under the Act - is a sufficient basis to require the voiding of that recognition and the contracts which it spawned. An employer may not lawfully enter into a contract with, or subject his employees to exclusive representation by, a union whose contract support derives from memberships or bargaining credentials procured with the assistance and support of the employer or his supervisors , agents, or privies. Section 8(aX2) of the Act; Russell Motors, Inc., 198 NLRB 351 (1972), enfd. as modified, 481 F.2d 996 (C.A. 2, 1973), cert. denied 414 U.S. 1062. It is thus unnecessary to establish the precise number of employee membership cards procured or assisted by the employer in order mathematically to demonstrate with scientific finality that with the subtraction of that precisely established number of cards a majority did not in fact exist. Imposition of such an onerous requirement for the benefit of one who has violated so basic a provision of the Act as Section 8(a)(2) would unduly burden administration of the Act and effectuation of its declared purposes. Employers desirous of avoiding the hazards inherent in "card" recognition in a context like that here may readily do so by arranging for a secret-ballot election under neutral auspices such as that of the Board.160 We nevertheless enter upon a discussion of the alleged majority/minority status of Teamsters Local 806 here, in view of the fact that proof forming a predicate for its possible application was extensively presented and litigated at the hearing and has been formidably briefed posthearing, and in order to avoid further litigation by serving as a guide to early pacification of the turbulent labor relations among the contending factions in Respondent's disturbed plant, including Respondent itself who would best be advised to assume and maintain a role of neutrality to the extent of not erecting roadblocks to its employees' exercise of their free choice of collective-bargaining representative if they con- tinue to want one. Even in the total absence of employer assistance or support, an employer may not - even in good faith - recognize a union as the exclusive bargaining representative of his employees, where that union is not in fact such, numerically or because of other invalidity in its bargaining credentials. International Ladies' Garment Workers' Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.LRB., 366 U.S. 731, 737-739 (1961); Intalco Aluminum Corpora- tion, 169 NLRB 1034 (1968), enfd. in pertinent part 417 F2d 36,39 (C.A. 9,1969). 157 It is not intended by the foregoing language to exclude membership in and bargaining designationsl authorizations to District 65, as well as those in and to Local 888, which are evidenced merely by valid cards without cash payment receipts. 159 District 65 is here used as an example, without intent to exclude Local 888. Cf., e.g., Hudson Berlrnd Corporation, 203 NLRB 421 , 423 (1973), enfd.I 1494 F.2d 1200, 1203 (C.A. 2, 1974), cert. denied 419 U.S. 897. 159 It will have been observed, in this connection, that Teamsters Local 806 was recognized by Respondent , without any semblance of card counting or checking, upon far fewer cards than either of its rivals had consistently offered Respondent to establish by card check : As of November 30, 1973, the stipulated number of employees in production unit was 441; Teamsters Local 806 cards, 198; Retail Clerks Local 888 cards , over 300; Distributive Workers District 65 cards , 332-350. (It is, of course, not assumed that all of the alleged card-signers were in Respondent 's employ on November 30.) 180 Within the postdecertification year , non-Board elections are not precluded. Also, of course, parties desiring a Board-controlled election may wait out the year, reduced by the time in advance of its expiration when an election petition may be filed. HARTZ MOUNTAIN CORP. 529 c. Questions or issues concerning representation: the Midwest Piping principle Complicating the matter somewhat is the partial nonac- ceptance by various courts of appeals of the Board's Midwest Piping doctrine Midwest Piping & Supply Co., Inc., 63 NLRB 1060 (1945), under which the Board will not effectuate a recognition of an exclusive collective-bargain- ing representative based upon "cards" in the presence of bona fide conflicting claims by two or more unions, the Board preferring in such a situation to determine the issue by secret-ballot election; coupled, in the instant case, with the further complicating circumstance that the recognition here described occurred within the postdecertification year during which the Board may not under Section 8(a)(3) of the Act conduct an election. Whether or not, in particular situatiofis meeting with the favor 181 or disfavor 182 of a particular court of appeals - in a legislatively intended area of unified national labor law policy and administration which the Supreme Court periodically reminds and has recently reemphasized 163 has been entrusted by Congress to the expertise of the Board, the fact is that Midwest Piping 164 remains not only a viable but a vibrant principle165 in the Board's philosophy,166 with no indication by it or intimation from the Supreme Court that so potent and seemingly reasonable a weapon in the Board's remedial arsenal should be blunted or scrapped.167 There is also no doubt that the Midwest Piping principle would be directly applicable to the situation at hand if the recognitional issue had not arisen during the postdecertifi- cational year.168 The Board, with Supreme Court approba- tion, has long regarded secret ballot elections as a preferred 161 Cf., e.g., N.LR.B. v. Hi-Temp, Inc., A Division of Beat rice Foods Co et al., 503 F.2d 583 (C.A. 7, 1974); N.LR.B. v. Hudson Berlind Corporation, 494 F.2d 1200 (C.A. 2, 1974), cert. denied 419 U.S. 897; N LR.B. v. Pepsi Cola Bottling Co., and Brewery Workers Local No. 79, 454 F.2d 5 (C.A. 6, 1972); Oil Transport Company v. N.LR.B., 440 F.2d 664 (C.A.5,1971); Iowa Beef Packers, Inc. v. N.LR.B., 331 F.2d 176, 182-184 (C.A. 8,1964); N.LR.B. v. Aaron Trosch, et at d/b/a Maryland News Company, 321 F.2d 692, 696-697 (C.A. 4, 1963), cert. denied 375 U.S. 993 (1964); N.L.R.B. v. Signal Oil & Gas Co, 303 F.2d 785, 786-787 (C.A. 5, 1962); St. Louis Independent Packing Co., Div. of Swift & Co. v. N L R.B., 291 F.2d 700,704-705 (C.A. 7,1961); Local 483, International Brotherhood of Boilermakers etc. [Standard Oil Co. of Indiana and Central States Petroleum Union, Local 1151 v N.L.R.B., 288 F.2d 166, 168 (C.A.D.C., 1961), cert. denied 368 U.S. 832. 162 Cf., e.g., Suburban Transit Corp. and H.A M.L Corporation v. N.L.R.B., 499 F.2d 78 (C.A. 3, 1974), and cases cited at 83 and 89 (fn. 1), adhering to N.L.R.B v. Swift & Company, 294 F.2d 285 (C.A. 3, 1961). See, however, fn. 166, infra, and quotation from Circuit Judge Hastie's opinion in N LR B. v. Air Master Corporation et at (C.A. 3, 1964), infra 163 E.g., Linden Lumber Division v. N.LR.B, 419 U.S. 301, 309-310 (1974); N.LR B. v. Gissel Packing Co., Inc., 395 U S. 575 (1969),passim. And cf. N.LR.B. v Gullets Gin Company, Inc., 340 U.S. 361, 363 (1951): N LR B. v. Hearst Publications, Inc., et al., 322 U.S. 111 (1944); Medo Photo Supply Corporation v N.LR B., 321 U.S. 678, 681, fn. 1 (1944); Virginia Electric & Power Co. v. N.LR.B., 319 U.S. 533, 539-543 (1943). 164 The philosophy of Midwest Piping is that a union cannot be considered as the choice of a majority of the employees and therefore accorded recognition as such in the face of existence of a "question concerning representation" (QCR) ansing, for example, out of conflicting unions' claims, massive overlapping or "dual" card signings for different unions, etc. In such a situation, the Board expects employer neutrality, not recognition of a contestant, so as to avoid a secret-ballot election. Implemen- tation of that Board expectation would seem squarely within the area of that expertise which the Supreme Court has traditionally ascribed to the Board. 165 See, e.g., Airmatics Systems Division of The Mosler Safe Company, 209 NLRB 71 (1974); Traub's Markets, Inc., 205 NLRB 787 (1973), enforcement denied 506 F.2d 730 (C.A. 3, 1974); Hi-Temp, Inc., 203 NLRB 753 (1973), enfd. 503 F.2d 583 (C.A. 7, 1974); Suburban Trust Corp., and H.A M.L Corporation, 203 NLRB 465 (1973), enforcement denied in part 499 F.2d 78 (C.A. 3, 1974), cert. denied 419 U.S. 1089 (1974); Hudson Berhnd Corpora- tion, 203 NLRB 421 (1973), enfd. 494 F.2d 1200 (C.A. 2, 1974), cert. denied 419 U.S. 897; Epsilon Fishing Co., inc., 198 NLRB 918 (1972), enfd. 483 F 2d 953 (C.A. 9, 1973); Playskool, Inc., a Division of Milton Bradley Company, 195 NLRB 560 (1972), enforcement denied 477 F.2d 66 (C.A. 7, 1973); Andersen Pharmacy, 187 NLRB 301 (1970). 166 For reasons explicated by Circuit Judge Adams, dissenting in Suburban Transit Corp. v. N.LRB., supra, at 89, which he indicates the Third Circuit had thus far ,(Swift, supra) not seen fit to accept in the case of employer recognition of an incumbent union. (It is to be noted that in the instant case Teamsters Local 806, recognized by Respondent Employer on "cards" which it concededly did not even examine, was neither an incumbent union (Swift, supra) nor a formerly unrepresented unit (Suburban, supra).) 167 In a rational and orderly national labor relations policy, it would be a travesty to charge illiterate or semiliterate factory workers as here with the consequences of conflicting views among the Federal circuits as to whether or not they are in accord with the administrative policies underlying the Board's Midwest Piping principle, upon penalty of losing all representation for a year if they wish to oust an incumbent unsatisfactory union, or as an alternative in effect to place into their employer's hands the selection of their representative for a period, as herein, much longer than a year. Such a result cries out for rectification; to the extent it is brought about by judicial conflict in acceptance of the Board's administration of the Act, the rectification cannot be said to require legislative intervention. To permit an employer to recognize - and thus impose upon all employees in a bargaining unit, perhaps particularly one as large as that here - an employer-favored union for a period of 3 years when his employees' sentiments are substantially divided among three unions in active competition, would be an affront to basic policies of the Act and to its democratic and orderly administration by the Board. Such a situation is best, and perhaps only properly, resolved by secret-ballot election within the serene anonymity of a secured polling booth. Nevertheless, seemingly major uncertainties have arisen in this important area of the Act's administration because of the seeming unwillingness of some circuits to defer to the Board's administration of the Act's machinery for determining, through elections rather than "cards," contested representa- tion questions; such circuits continuing to maintain, if not broaden, differences with the Board, in varying degrees of refinement and elaboration, as to precisely how much of a showing is essential to establish a "real QCR," with the Board hewing to its position that the filing of a bona fide representation petition based upon the required statutory-administrative "showing of interest" is sufficient to establish a "QCR." Cf., e.g., Traub's Market, Inc., supra; Suburban Transit Corp., supra; Inter-Island Resorts, Ltd, d/b/a Kona Surf Hotel, 201 NLRB 139 (1973); Playskool Inc., supra; Peter Paul, Inc., 185 NLRB 281(1970); Connie Jean, Inc., 162 NLRB 1609 (1967), Swift and Company, supra But with the foregoing cf. N.L.R B. v. Traub's Market, Inc., supra, NLRB. v. Inter-Island Resorts, Ltd, d/b/a Kona Surf Hotel: 507 F.2d 411 (1974); Suburban Transit Corp. v. N.LRB., supra, cert. denied 419 U.S. 1089 (1975); Playskool, Inc. v. N.LR.B., supra, NLRB v. Peter Paul, Inc., 467 F.2d 700 (C.A. 9, 1972); E. Abrams v. Carrier Corporation, 434 F.2d 1234 (C.A. 2, 1970), cert. denied 401 U S. 1009 (1971); N.LR.B v. North Electric Company, 296 F.2d (C.A. 6, 1961); NLRB. v Swift and Company, supra. 168 As has already been indicated, nonetheless the statutory election procedure could have been available within a few months, instead of the inordinate delay which has instead resulted from the instant litigation with its promise of indefinite protraction; or, non-Board (e.g., New Jersey Labor Board, American Arbitration Association, etc.) election procedures could have been utilized at once. It should also be noted that since the I-year statutory bar (Sec. 9(c)(3)) to another election applies only to another election in the same bargaining unit (or subdivision thereof: Krambo Food Stores, Case 13-RC-57 (1958)), and does not bar another election within a year in a more inclusive unit (Robertson Brothers Department Store, Inc, 95 NLRB 271, 273 (1951)), if Respondent's contention is correct that the traditional unit in its Jersey City factory did not include maintenance employees and if District 65 was seeking recognition for a unit including maintenance employees, Respon- dent's contention that an election for the unit sought to be represented by District 65 was barred for the year following decertification of Local 888 and that no QCR could exist within that year for such a unit is incorrect And if Respondent recognized Teamsters Local 806 as bargaining representative of (Continued) 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modality, in contradistinction to "cards," for determining employees' true sentiments concerning their representation deslres.189 To say, as has been suggested here, that unless an employer may, on the basis of "cards, 11170 recognize one of a group of rival unions, his employees will be deprived of the benefits of union representation, has a hollow ring and is utterly wrong. For one thing, it presupposes that the question concerning representation cannot more properly (or as speedily) be determined by secret-ballot election. It also implies that the employer is the one to "vindicate the rights of his employees to select their bargaining represen- tative" (a concept frowned upon by the Supreme Court, in certain contexts, in Ray Brooks v. N.LRB., 348 U.S. %, 103 (1954), and that it is the employer who should be the final arbiter of his employees' desires. Finally, it presuppos- es also that the employees desire representation at all - likewise a matter that should be decided by the employees alone in the secure privacy of the polling booth. It would be a rather shocking perversion of the Act to maintain that its purposes are served through representation of employ- ees by an employer-assisted union in the absence of proof that such a union is acting contrary to the employees' "best" interests ; or that an employer-installed union is better than none at all. Since representation of employees by a labor organiza- tion under the Act may also take place without an election (Sec. 9(a); N.LRB. v. Gissel Packing Co., supra), questions (issues, uncertainties, doubts) concerning representation 171 may also arise in a context where a statutory election for one reason or another does not or cannot take place. The postdecertification year is not an "open season" for an employer to select the union of his choice for employees upon the basis of "cards" when he is on notice that there are substantial rivalries among competing unions to repre- sent his employees. If, in such a situation, the employer recognizes a preferred competitor, the employer should be prepared to establish the basis upon which he extended that recognition and that the recognized union was in fact the lawful choice of an uncoerced majority of his employees. (As already pointed out, the Supreme Court in Bernhard- Altmann, supra, 366 U.S. at 739-740, pointed out that an employer who wishes to "obviate a Board election" can "take[s] reasonable steps to verify union claims" and that no "onerous burden [is] involved in requiring responsible negotiators to be careful, by cross-checking, for example, a new bargaining unit, that likewise would have been unlawful regardless of whether or not a QCR existed. Cf. General Cinema Corporation and its wholly owned subsidiary, Gentilly Wood, Cinema, Inc., 214 NLRB 1074 (1974); see also Graphic Arts international Union; AFL-CIO, v. NLRB, 505 F.2d 335 (C.A.D.C., 1974); Forest Crty/Dillion-Tecon Pacific, 209 NLRB 867 (1974). 169 See, e.g„ NLRB v. Gissel Packing Co., supra; Linden Lumber Division v. NLRB., supra. Gissel sanctions the Board's administrative issuance of a bargaining order without the necessity for a statutory election, where an employer through his unfair labor practices has spoiled the conditions under which a genuinely fair election may meaningfully be held; it does not (nor does Linden Lumber, supra) sanction bargaining flowing from an employer's recognition of an employer preferred union founded upon cards procured with the employer's assistance and support. As long ago as 1952, "This Board has long recognized that authorization cards are a notoriously unreliable method of determining majority status of a union as a basis for making a contract where competing unions are soliciting cards, because of the duplications which then occur." Sunbeam Corporation, 99 NLRB 546, 550 (1952). After 13 additional years of experience with well-analyzed employer records with union listings or authorization cards." It is safe to say that the Supreme Court envisioned no such recognition as took place in the instant case bwhen it wrote that language .) This is not a turnaround of the normal rule that the General Counsel has the burden of proof. To be sure he has, and he has met it here; Respondent may be viewed as having failed to go forward with a sufficient showing after General Counsel established a prima facie case. Cf. Ellery Products Manufac- turing Co., Inc., 149 NLRB 1388, 1392-93 (1964). In this view - a salutary one, in my opinion, in relation to the unusual facts here disclosed - to require Respondent to make such a showing, after the case made out by General Counsel, is a prophylactic measure, applicable to unions as well as to employers, to prevent abusive manipulation of the I -year statutory interregnum following a decertification election in such a way as to disrupt basic building-block policies underlying the Act. In concluding that an employer may under certain circumstances recognize a union upon the basis of "cards," the Supreme Court appears to indicate that such a recognition must at least be plausibly based or else it is a sham "recognition" - it is to be based upon "reasonable steps to verify union claims" (Bernhard- Alt-mann, supra, which also, at 738-739, decries the possibility of placing into "careless employer and union hands the power to completely frustrate employee realization" of the basic premise of the Act - free choice by employees of their bargaining representative if any. In the instant case, as has been shown, Respondent omitted to take any "reason- able steps to verify [the] union claims." The "recognition" under the circumstances established here would according- ly appear to warrant no deference, authoritativeness, or effectiveness countervailing root policies of the Act itself. Faced with the type of situation here involved , the Board would determine the matter by an election,172 what Respondent seeks in effect to accomplish is to compel the Board to determine the matter by cards - a huge mass of questionably procured and executed, duplicative and conflicting pieces of paper, and none of which Respondent itself chose in any way to authenticate as it should have. It will be recalled that Respondent proceeded to open contract negotiations with Teamsters Local 806 in the face of the charges pending against it in the instant case. In Telautograph Corporation, 199 NLRB 892 (1972), quoting from Shea Chemical Corporation, supra, the Board reiterated its adherence to the principle that "an employer may not go "cards," former Board Chairman Frank W . McCulloch had occasion again to point out that "There has been a spate of comment too about the reliance upon authorization cards to establish a union's majority . Now everyone knows, and my public assertions to that effect have been cited far and wide, that honest and free elections are a better test of employee choice than authorization cards, with all their known frailties." 'The Policy, the Purpose and the Philosophy of the NLRB as Revealed in Decision Trends," address to Texas Manufacturing Association, October 28,1965. 170 The argument for recognition on the basis of "cards " is usually made by a union rather than an employer. It is obviously no more efficacious when advanced by the employer. 1T1 I am aware that this use of the hoary expression "question concerning representation" may be broader than the more limited "technical" concept of QCR barnacled in the Act's linguistic lore or vernacular of its practition- ers. Cf., e.g., Buitoni Foods Corporation, 126 NLRB 767 (1960), enfd. 298 F.2d 169 (C.A. 3, 1962); Shea Chemical Corporation, 121 NLRB 1027,1029 (1958). 172 Cf., e.g., Inter-Island Resorts, Ltd, d/b/a Kona Surf HoteI 201 NLRB 139(1973). HARTZ MOUNTAIN CORP. 531 so far as to bargain collectively with incumbent (or any other) union until the question concerning representation has been settled by the Board." While this admonition was in the cited case in the context of recognition during the pendency of a decertification election to which objections had been filed, the principle would appear to be the same here in view of the fact that Respondent proceeded to bargain collectively with a nonincumbent union, Teamsters Local 806, not only in the face of ongoing conflicting unions' campaigns and recognitional demands which it had chosen to stave off and ignore , but also by its own admission after and with knowledge of the filing of the charge by Distributive Workers District 65 herein. Respon- dent thereby here also, as in Telautograph, arrogated to itself, instead of submitting to the Board as the impartial public agency established for that purpose, the responsibili- ty for determining the root, highly contested basic issue in this case, an issue in which Respondent itself was directly involved as a chief party in interest - i.e., which union really represented its employees, a union it did not want or a union it was willing to have. Finally, in connection with the supposed Midwest Piping nexus of problems to which attention has been invited by counsel, it is unnecessary here to reach those issues, since even those Federal circuits (including the Third) which have not "accepted" the Midwest Piping principle full scale or perhaps not even in part, have carefully limited their "nonacceptance" to situations where - wholly unlike here - the recognition is bona fide and the "cards" in question are not impugned. Explicating this threshold limitation for the Third Circuit, Circuit Judge Hastie stated in N.L.R.B. v. Air Master Corporation, et al., 339 F.2d 553, 557 (C.A. 3, 1964) (emphasis supplied ; only supporting citations are omitted): In brief, our view of the proper scope of the Midwest Piping doctrine is this. For an employer to recognize a union that enjoys only minority support, is an unfair labor practice under the explicit holding of the Supreme Court in the International Ladies' Garment Workers case. . . . To recognize one of two competing unions while the employees' choice between them is demonstr- ably in doubt, is an unfair labor practice under what the courts have accepted as the normal and proper application of the Midwest Piping doctrine. . . . And in principle the same result follows when majority support for the recognized union exists, but has been achieved by coercion or some other unfair labor practice. . . . But where a clear majority of the employees, without subjection to coercion or other unlawful influence, have made manifest their desire to be represented by a particular union, there is no factual basis for a conten- tion that the employer's action thereafter in recognizing the union or contracting with it is an interference with their freedom of choice. . . . This case is in this final category. Circuit Judge Hastie additionally pointed out (id.) in relying upon the Third Circuit's earlier case ofN.LRB. v. Swift& 173 That the production of hundreds of such additional witnesses would have entailed untold expense to the Government and incalculable prolonga- tion of this already greatly protracted litigation - prolongation most likely Co., supra, that in that case - also wholly unlike the instant case - not only was it established that "a majority of the employees voluntarily adhered to that [recognized ] union," but that there was "no showing that the rival union had substantial support." Likewise in the recent case of Subur- ban Transit Corp. v. N.LR.B., supra, a majority of a Third Circuit panel, in concluding that union recognition by an employer based upon cards was not improper , relied upon the fact that - unlike here - the "union represents an uncoerced majority of the employees" (id at 86) and that the union majority support was also "achieved ... without ... unlawful assistance on the part of the employer" (id). d. Unessentiality, under circumstances shown, for absolute mathematical demonstration of precise extent of employee nonsupport for Teamsters Local 806 Respondent finally contends that General Counsel has not met his "burden of proof' of establishing to a mathematical certainty that Teamsters Local 806 did not represent a majority of the unit employees at the moment it was recognized by Respondent. Under the circumstances shown and found, I can neither agree that this question need be reached nor that, if it should, that burden was not sufficiently met here. To begin with, this question also need not be reached in view of findings here made concerning Respondent's assistance and support to Teamsters Local 806 in the solicitation of cards constituting the basis for Respondent's recognition of that Union. Those findings, without more, are dispositive of this aspect of the case. Nevertheless, again because of the importance of the issue, the seeming novelty of the contention in the context tendered, and in the interest of early pacification of the industrial relations unrest in the large plant here without undue prolongation or relitigation of the case, brief comment will be made upon this issue. Respondent contends that - notwithstanding General Counsel's establishment of the size of the bargaining unit and his accounting for all cards of all unions here involved, and his demonstration that Teamsters Local 806 did not represent a lawfully procured and uncoerced majority of cards - General Counsel has still not met his burden of proof because he failed to call to the witness stand hundreds of additional witnesses, for whom neither Re- spondent nor Teamsters came forward with or claimed membership cards or any other evidence of Teamsters affiliation, to establish that they did not belong to Team- sters at the time that the Union was accorded recognition by Respondent under the circumstances described.173 However, in my opinion General Counsel has sufficiently met any burden which may reasonably be considered to be his in the situation shown, and it was unessential ffr him to establish the Teamsters nonaffiliation (or affiliation) of the large number of employees for whom neither Respondent nor Teamsters chose to come forward with cards or other evidence when called upon to do so, since adequate demonstration was made to establish that Respondent's beyond the expiration of the collective agreements here allegedly imposed upon Respondent's employees, and thereby frustrating the purpose of this proceeding to abrogate those agreements - is altogether clear. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognition of Teamsters was tainted with sufficient irregu- larity to require it to be set aside,174 without necessity for a directionlessly peregrinating inquisition into the possible union affiliations of hundreds of additional employees or former employees in a highly transient work force, with many if not most of the employees dispersed to the four windS.175 In this connection, Respondent calls attention to Ameri- can Beef Packers, Inc., 187 NLRB 996 (1971), enfd. sub nom. Arthur L Morgan Union Local No. 3 v. N.LRB.,463 F.2d 818 (C.A.D.C., 1972) and Walker's Midstream Fuel & Service Co., 208 NLRB 158 (1974). However, it may be doubted that these cases are required to be given literal application under the circumstances here presented. For one thing, those cases did not involve a situation where the union campaign and cards were tainted by employer assistance, support, and participation as herein. Beyond that, however - also unlike here - in American Beef Packers no payroll or other records were introduced to establish the number of employees in the unit; and, although General Counsel had in his possession the union authorization cards, he likewise failed - and refused under subpena - to produce those, insisting that he was under no obligation to do so.176 Thus, no basis was supplied for determination of the extent or percentage of union mem- bership, since neither the numerator (number of union cards) nor the denominator (number of employees in the unit) was supplied, reducing the whole case to "nothing more than conjecture" (187 NLRB at 997). Likewise in Walker's, again unlike here, "the General Counsel did not introduce any evidence to support his allegation that the Plant Bargaining Committee did not represent a majority of the Respondent's employees" (208 NLRB 158, 159 (1974); emphasis supplied). It would not seem that an employer who, under the circumstances here shown - including an extremely large bargaining unit, clearly visible and well-known substantial organizing activity by and competition among rival unions for employee membership, with dual cards, plus employer assistance to one of the rival unions - can, be recognizing one of the rival unions glibly unaware of whether or not it represents a majority of unit employees, saddle General Counsel (and the rival unions, who have laid all of their cards on the line) with the necessity for establishing to a scientific certainty that the favored union so recognized was not in fact the majority representative.177 General Counsel has here produced all Local 806 cards upon which recognition was based, that Union having concededly turned all of them over to General Counsel. No 174 Since, as has been pointed out, "the question of [a union's] precon- tract majority" is not necessarily "susceptible to resolution by a simple mathematical formula"-Clement Brothers Company, Inc. and United Mine Workers of America, 165 NLRB 698,699 (1%7), enfd. 407 F.2d 1027 (C.A 5, 1%9) - only 7 out of 129 cards specifically established invalid, Board held majority wholly tainted; see also Department Store Food Corp. of Penna., 172 NLRB 1203, 1208 (1968), enfd. 415 F.2d 74 (C.A. 3, 1969), scientific demonstration of taint need not be made to the last detail and tittle, particularly where, as here, the employer's personnel manager and personnel office were implicated in card solicitation. 175 Respondent Vice President Kaye testified that Respondent's Jersey City plant work force undergoes between a 50- and 100-percent annual turnover. 178 The Board also pointed out that "there is no question concerning the claim is made - except for the Union's assertion of "missing cards," which has been rejected here - that there were more. Thus, all Local 806 cards on which Respon- dent's recognition was based have been accounted for here by General Counsel; there are no more. That being the fact, it is unnecessary to indulge in speculation concerning other unit employees for whom there are no such cards; and General Counsel has in this case sustained his burden of proof of establishing that Respondent's recognition of Local 806 was not based upon a majority of valid bargain- ing authorizational designation cards. Respondent does not claim it recognized Teamsters upon the basis of cards which were not presented to it. However, Respondent admits it did not count the cards presented to it. Respondent concedes that, under the Bernhard Altmann principle, it was and is at risk in extending recognition upon the mere basis of cards unless in fact those cards represent- ed an actual majority of employees in the appropriate bargaining unit. But if, as Respondent concedes, it was thus at risk, what is the meaning or extent of that risk if, under the circumstances here shown, Respondent may lawfully recognize a union based upon mere casual glance at a stack or stacks of cards, without ascertaining their number and validity, and then - cavalierly disowning any responsibili- ty for even meaningfully describing those cards, much less establishing their volume and validity - thrust upon General Counsel the herculean if not impossible task of proving to the last tittle the membership or nonmembership of each employee in a huge and proliferating unit with a peripatetic, shifting membership? Under the circumstances here shown, elementary fairness demands that, all of the Teamsters cards having been produced in open court, and with no others meaningfully or credibly accounted for or described by Respondent or Teamsters, the burden of going forward must shift to Respondent and Teamsters to persuasively establish such other cards as allegedly were involved in the card "majority" upon which Respondent claims it based that recognition in respect to which it concedes it was at all times and still remains at risk. This, however, Respondent and Teamsters have utterly failed to do, contenting themselves instead upon here insisting that it is General Counsel's burden to disprove the alleged majority upon which they claim recognition was based. Since (as Respondent argues), technically not even cards are necessary for employees to designate a bargaining representative - they may even do this orally - a "logical" extension of Respondent's "burden of proof' argument here would mean that an employer could by glibly recognizing a 1000-employee unit on a union's mere say-so validity of the authorization cards obtained" (187 NLRB at 997 , emphasis supplied). 177 Respondent itself has appeared to recognize this, since it did not choose to rest upon General Counsel's alleged failure to disestablish all cards or to "account for" the Local 806 affiliation or nonaffiliation of all employees, but instead Respondent itself sought affirmatively at consider- able length to establish the validity of numerous asserted Local 806 cards or the supposed Local 806 membership of certain unit employees upon which it in part based its recognition of Teamsters Local 806. Under these circum- stances, it may well be that "having undertaken a determination which he [i.e., the employer ] could, under proper circumstances, insist he made by the Board, he may not thereafter repudiate the route he himself selected." Nation-Wide Plastics Co, Inc., 197 NLRB 996 (1972). HARTZ MOUNTAIN CORP. 533 of its bargaining representational authority, subject Gener- al Counsel to the "burden of proof" of calling no less than 501 employees to testify that they did not in fact authorize the union to represent them, before such a union so "recognized" could be disestablished from its "representa- tional status" as agreed between it and the employer - a process doubtfully completable before expiration of any "collective agreement" spawned by such a "recognition." Such a result would be an affront to the basic principles of the Act and a grievous wound to the employees, the public, and the unimpeded commerce it was designed to protect. It would in effect permit employers and unions to team up and install, by their own agreement, exclusive bargaining representatives for all employees without verification of the union's bargaining authorizational credentials. It would seem that, where it is established that an employer extended recognition to an employer-favored union as the exclusive bargaining representative for his employees without knowledge or reasonable belief that it was in fact such representative, the employer's failure to come forward to show that the recognized union was in fact such representative may contribute to an inference that the recognized union was not the representative of a majority of the employees. Where, as here, the proof establishes (1) the number of employees in the bargaining unit at the time the employer recognized a bargaining agent and (2) that the employer's recognition of the bargaining agent was predi- cated upon certain union cards, all of which were turned over to the General Counsel and are produced at the hearing, and (3) those cards - to the extent authenticated and valid - reflect only a minority of the employees in the bargaining unit, the General Counsel has reasonably satisfied his burden of establishing that the union recog- nized by the employer was a minority union. The burden of going forward at that point shifts to the employer and union to produce additional valid cards or otherwise to establish the claimed majority status of the recognized union; if - as here - they fail to do so, General Counsel's burden of proof is satisfied in that regard. Cf. Ellery Products Manufacturing Co., Inc., 149 NLRB 1388, 1392 (1964).178 One, if not the basic, purpose of the Act is to assure to employees free choice of their bargaining representative in the event they want one. Under the circumstances here disclosed, it is realistically impossible to determine which (if any) of the competing unions Respondent's employees really wished to represent them. In this situation to impose - in effect by legal fiat - an "exclusive representative" upon the employees would be abhorrent to the basic 178 Respondent's alleged fear of "Teamsters power" or a "strike" if it failed to recognize that Union is of course no justification for recognition. Ellery Products Manufacturing Co., Inc., supra, The Grand Union Company, 122 NLRB 589 at 603 (1958), enfd. 279 F.2d 83 (C.A. 2, 1960). 179 In Air Lacarte, Florida Inc., 212 NLRB 764, 766 (1974) the Board stated: In the circumstances of this case and upon consideration of all the evidence presented, we cannot determine whether a contract was in fact signed on June 28, 1972; nor can we determine whether on June 26, 1972, the Employer made a good-faith recognition of Intervenor at a time when it had no knowledge of Petitioner's organizational efforts. We recognize that a bargaining relationship between the Employer and Intervenor has existed since the summer of 1972, which an election at this time aught upset. However, the Board must decide what interest is paramount in each case. It must weigh and resolve the conflicting purpose and philosophy of the Act. In the situation shown, the secret-ballot election provided for by the Act - now available to the parties, since the 1-year "freeze" period following the May 1973 decertification of Retail Clerks Local 888 has expired - is the one fair and feasible solution to the problem posed. An analogy would be to award a disputed political representation office to one of the contestants based upon conflicting pieces of paper ascribed to the constituents, without a secret-ballot elec- tion.179 It would be a plain rebuff to the purposes of the Act to conclude that where the Board - with all of its assembled resources and expertise - is unable to determine which (if any) of various competing unions commanded majority support at a given moment - under circumstances involv- ing among other things duplicate as well as dual and possibly conflicting cards allegedly executed in English by persons illiterate in that language - the General Counsel has failed in any supposed "burden of proof' to establish that one of the competing unions, hastily recognized by the employer concededly upon little if any inquiry and under other questionable circumstances, is in fact not the majority representative. Suchi a result could by fiat foist upon employees an "exclusive bargaining representative" of the employer's own choosing, rather than that of the employ- ees, thereby corrupting a basic purpose of the Act and emasculating the Board's administration thereof. Is it open to reasonable debate that, in such a situation, the secret- ballot election provided by the Act is the only feasible mechanism for resolution of the Board's inability to determine the true majority representative, as well as the only proper mechanism to assure free choice by the employees themselves? 180 I have indulged in the lengthy and possibly dreary recital of the organizational activities of the three unions to which Respondent's Jersey City employees pledged their seeming- ly wavering allegiance, in part to afford a flavor of the weblike activities which occurred preceding Respondent's ,lightninglike recognition of Local 806's "cards" in contra- distinction to the immobile stance it assumed toward the substantial quantities of the District 65 and Local 888 "cards," and to show that the only fair and feasible solution to the problem of determining the true representational desires of the large number of unit employees is through that secret-ballot election process provided by the Act; particularly considering the Act's pivotal purpose of placing a quietus on industrial strife and unrest and of promoting labor peace by affording employees a visibly interests of maintaining stability in an existing bargaining relationship, and of protecting the freedom of employees to choose their representa- tives. We do not believe that the serious doubts arising out of the events of June 1972, which hindered our efforts to determine the issues, create a situation which stabilizes labor relations, and thus we conclude that no bar to the instant petition [for election I can be found. We shall therefore direct an election among the employees in the appropriate unit. 180 The credibility of Respondent's protestations also suffers from its attempt to make out a recognition date or dates other than that set forth in the recognition agreement it signed, as well as its attempt to refashion into two bargaining units the one bargaining unit specified in that agreement. These attempts merely serve to "muddy the waters," but, as has been demonstrated, to no arithmetical avail, since the Teamsters cards presented to it upon the basis of which it recognized that Union at no time represented a majority of Respondent's employees in any kind of unit at any time here material 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD democratic and honest process for expressing their true desires without pressure and in hazardless anonymity. The only alternative is continued suspicion, mistrust, specula- tion, doubt, and rancor - ingredients of a poisoned industrial relations atmosphere which it is the Act's command that the Board attempt, through the weapons provided for its choice from its statutory arsenal , to dispel. After seeing and hearing the many witnesses , and listening to and reading the arguments of the parties' counsel, in this protracted litigation, I am utterly convinced that the only feasible weapon in the Board's arsenal in the situation presented is a secret-ballot election at the earliest possible date. While it is unessential, for reasons explained, to reach or pass upon the issue of whether Respondent's recognition of Teamsters Local 806 was based upon valid majority bargaining credentials of that Union, or the issue of whether Midwest Piping in the literal sense technically applies during the postdecertificational year under the circumstances described, it is at any rate clear and I find that Respondent rendered unlawful assistance and support to Teamsters Local 806 and recognized that Union upon the basis thereof, thereby depriving Respondent's employ- ees of that free choice of bargaining representative guaran- teed to them by the Act. I further fmd that by recognizing Teamsters Local 806 and by entering into and maintaining the aforedescribed collective agreements with that Union, wherein that Union was granted exclusive collective bar- gaining rights on behalf of all of Respondent's unit employees, with union-security and checkoff provisions, under the circumstances described and found , Respondent unlawfully assisted and supported that Union, discrimi- nated against employees, and interfered with , restrained, and coerced employees in the exercise of their rights, in violation of Section 8(a)(2), (3),181 and (1) of the Act. B. Respondent's Employee Discharges, Layoffs, and Disciplinary Warnings We move now to the remaining phase of this case; namely, that involving Respondent's alleged termination and discipline of employees discriminatorily and otherwise in violation of the Act. 1. Jose Peguero Jose Peguero entered Respondent's employ in its Jersey City plant as a first-floor "porter" or "merchandise organiz- er" in September or October (1973) and, after a brief tenure, was discharged on December 10 (1973). The complaint alleges that his discharge was in violation of Section 8(a)(3) and (1) of the Act, because of his protected 181 An unlawfully applied collective agreement containing a union- security provision (as herein) discriminates with respect to hire and tenure of employment, thereby encouraging membership in the unlawfully recognized union and also discouraging membership in other unions as well as nonmembership in any union. Hudson Berhnd Corporation, 203 NLRB 421, 423 (1973), enfd. 494 F.2d 1200 (C.A. 2, 1974), cert. denied 419 U.S. 897; Schreiber Trucking Company, Inc, 148 NLRB 697,703 (1964) 182 As Peguero was leaving the plant , he taunted Calagna and Gonzalez, officials of Local 806 (for which Peguero had meanwhile signed a "card"), "Aren't you going to defend me, my leader, the employer has fired me." The answer was, "What union are you with ?" (hardly material, in my view of an organizational activism in opposition to Teamsters Local 806 and in support of Distributive Workers District 65. It will be recalled that Peguero was indeed active in opposition to Teamsters Local 806 , as manifested by his tabletop and other actions at the turbulent plant cafeteria episode on December 7. He was also a more recent member of the District 65 employees organizing committee. After Peguero was sent back to work by plant General Manager Feinberg on the morning of December 10, as has been recounted, to a different job repackaging damaged merchandise under Foreman Domingo Negron , approxi- mately an hour or two later that morning he was instructed to accompany Negron to the personnel office, where he was met by Feinberg and where they were joined later by Personnel Manager Morales. Feinberg indicated that he had just been informed that Peguero had been observed urinating on the plant floor near his workplace. When Peguero, denying the accusation, demanded to be confront- ed by his accuser, Feinberg declined to identify him by name. Peguero denies that he has ever urinated on the plant floor. He concedes that employees have never been restricted in the use of the plant toilet facilities, the closest one to his work station being at a distance of "about a half a block." Early that afternoon, Peguero was discharged by Feinberg (with Morales acting as interpreter) for urinating on the plant floor.182 Concerning the foregoing, General Manager Feinberg testified that, less than an hour after he had returned Peguero to work on the morning of December 10, Feinberg was informed on the telephone by one of Peguero's supervisors that Peguero had just been observed by several employees to have urinated on the plant floor. After visiting the scene with Morales and observing a wet, yellow area of around 2 feet square smelling of human urine - Feinberg swore he actually placed his hand in it and conveyed it to his nose to determine this 183 - and after being informed by employee Eddie Sanabria (a Teamsters Local 806 activist, it will be recalled) that he "saw it," Feinberg summoned Peguero and Negron to Morales' office. When he accused Peguero of this and asked him why he had done this so soon after the earlier warning that morning about his behavior, Peguero laughed it off without denial, demanding to be confronted by his accuser or accusers. Feinberg declined to do this and discharged Peguero. Feinberg concedes he was aware - from the cafeteria incident of December 7 - of Peguero's opposition to Teamsters Local 806, but claims he was and is unaware that Peguero was a supporter of District 65. Respondent's former supervisor, Domingo Negron, un- der whom Peguero worked at the time of his dismissal, and who acknowledged awareness that Peguero was a District 65 advocate, testified that after he (Negron) was informed exclusive representative's statutory duty toward all unit employees). When Peguero replied , "I am with the workers ... with [District) 65," their response was, "Tell 65 to speak to your employer so you get your job back." This testimony by Peguero is uncontradicted. 183 Feinberg concedes there were cats in the plant, but that, even though they presumably had excretory needs which they relieved in places other than the restrooms, he is familiar from personal experience with the difference in odor between feline and human urine . There is no suggestion that feline urination had been observed at or around the point in question at or around the time. HARTZ MOUNTAIN CORP. by Sanabria on the morning of December 10 that he had observed Peguero urinating on the plant floor, Negron reported this to Feinberg. Negron denies telling Feinberg that he himself (Negron) had seen Peguero urinating; and Negron indicates that at the aforedescribed office interview Peguero denied that he had done so. According to Negron, the smell of merchandise in the area is overpowering and he himself was unable to characterize the substance or odor in question as human urine; and that of the 10 employees under him at the time, none said they had seen Peguero urinating on the floor, although he had asked them, and - contrary to Feinberg - none indicated he was afraid to speak out.184 Respondent Supervisor Hector Santiago also testified concerning the Peguero matter. At the time in question, Sanabria worked as a machine operator under Santiago, as did Peguero briefly as a stock handler on Line 26. According to Santiago, Sanabria informed him on the morning of December 10 that Peguero was urinating on the floor of line 26. Inspecting the scene at once, Santiago observed a wet, yellow area which smelled to him like urine, and he reported the matter to Personnel Manager Morales, who soon thereafter also visited the scene with General Manager Feinberg. Peguero was then called to the office. Santiago himself did not see Peguero in any act of urination. Santiago also testified that the merchandise around the area in question consists only of dry pet foods and receptacles, with no liquid in bottles or otherwise. Eddie Sanabria - as will be recalled, a Teamsters Local 806 activist who has been characterized as lacking in testimonial credibility - testified that on the morning of December 10, when he observed Peguero at the juncture of lines 26 and 27 "zippering up" his pants, he asked Peguero what he was doing and Peguero answered that he was "urinating there"; that when he asked Peguero "why he was doing it there," Peguero replied that he "had been doing it there for quite a while"; that Sanabria observed the place to be "stinking . . . it was full of urine," and that he told Peguero that "there was some other people working in the line there and that Denisad [another employee] had seen him before and he didn't want to say anything"; that Peguero indicated he would not go to the toilet since this was closer; 185 and that when Sanabria again asked or told 184 There may, however, be no inconsistency between a person's fear to make an accusatory statement (Feinberg) and his lack of fear to make an exonerating statement (Negron). To the extent bearing upon the matter of Peguero to the degree reflected in Resp. Exh. 69 (same as G.C. Exh. 184A - January 7, 1974, preheanng affidavit of Negron), G.C. Exh. 184B (December 4, 1974, preheanng affidavit of Negron), ruling on Respondent's objection to which was reserved, is hereby received. Peguero's December 10 "Termination of Employment Notice," signed by Negron, states as "Reason for Termination": "Poor Prod., Was seen using the whse as a toilet, too long finishing a job, talk too much on working hours, mis-conduct. December 7, 1973 this man was asked to leave the premises to the fact that he was indulging the workers to a not . As a result of his action two persons were hurt . I consider this man too dangerous , for our plant. When Mr. Feinberg and Mr. Kaye asked this man to leave the premises, he refuse. He was told that we were going to call the Police. He answered, Call the god-danut Police I don't care. You may need all the Police in J.C." (Resp. Exh 68.) According to Negron's testimony, he wrote much of the foregoing at the behest of Feinberg to "put as much material there to terminate the man." 185 According to Sanabna, the distance from Peguero's workplace to his alleged unnatin$. area is about 1 foot, whereas the distance from there to the nearest men's toilet is 100-200 feet. 535 Peguero not to do this because he was hurting others who needed their jobs, Peguero remarked that was of no importance to him. Shortly thereafter, Sanabria reported the incident to his supervisors, Santiago and Negron, and later described it to Morales and Feinberg when ap- proached by the latter.lss The testimony of Personnel Manager Morales is essen- tially 187 consistent with the foregoing accounts of Feinberg, Negron, Santiago, and Sanabria. Based upon close observation of General Manager Feinberg as he testified about this matter, I was impressed with his evident sincerity and truthfulness in recounting the episode surrounding the Peguero discharge. Activism in union affairs does not, of course , immunize an employee from discharge for unrelated reasons. Union membership does not license an employee to urinate on the factory floor. It is, however, unnecessary to determine whether Peguero actually urinated on the floor, since upon the record presented I believe and fmd that Feinberg discharged him in the reasonable belief that he had. Inasmuch as it is hardly conceivable that urination on a factory floor could consti- tute or occur as a part of protected concerted activity under the Act,188 Peguero's discharge for that reason - whether or not he actually urinated on the floor - was not in violation of the Act and I so fmd. - 2. Rafael Bueno It will be recalled that Rafael Bueno (Rafael Marcelle Bueno Nunez) was Jose Peguero's tabletop comrade at the December 7 plant cafeteria melee, and the person who spat at or near Vice President Kaye's feet when asked to leave the plant after that episode. As Peguero, when he returned to the plant on Monday, December 7, he was restored to work by General Manager Feinberg, continuing from then on under Supervisors Felipe Rivera and Ildefonso Urdane- ta. From December 5 on, Bueno was also a member of the District 65 employees organizing committee. Bueno's version of his discharge is as follows. Like Peguero, the entire length of Bueno's employment with Respondent was no more than 2 or 3 months. Bueno was an "order picker." After not working on Christmas and not reporting for work on the day before (December 24), at the 186 Although Sanabria had sworn in his January 30, 1974, prehearing affidavit (G.C. Exh. 135) that "I saw Peguero urinating on Line 26 ... The next day he did it again," this is inconsistent with his testimony here, where he denied seeing Peguero urinating at any time and claimed that only his fellow employee Denizad had told him this although others had also seen Peguero urinating there. However, Sanabria testified specifically concerning his circumstantial conclusion described above, involving Peguero's zippering up his trousers and the latter's admissions. is? There is, however, a significant variance from Feinberg's testimony concerning the scene in Morales' office with Peguero on December 10. Unlike Feinberg, Morales testified that on that occasion Peguero admitted that he had used the corner in question to urinate "often" since the toilets were far away. Since Feinberg testified to no such thing (under circumstanc- es where it is likely he would have, had it occurred ), since Morales made no mention of any such thing in his July 1974 affidavit to the district court (C.P. Exh. 9), and since I regard it as most unlikely that Peguero would make any such admission, I do not credit this aspect of Morales' testimony , ascribing it - as I have in other connections - to Morales' overeagerness to embellish, if not more, in favor of his employer. 188 Cf. N.GRB. v. Burnup and Sims, Inc., 379 U.S. 21, 23 (1964). 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD end of the December 26 workday he and another employee led a large employee contingent - perhaps as many as 35- 50 - to Personnel Manager Morales' office, where Bueno, serving as spokesman, complained that although Plant Manager Petrera had allegedly promised them a full day's pay for December 24 and they had left with permission after working only a half day, the "eight full hours" previously recorded on their timecards had been cut down.189 Morales referred them to General Manager Feinberg, whom the employees visited. Feinberg disputed that they had been promised a full day's pay for a half day's work on December 24.1% When the employees insisted that Respondent keep the promise Plant Manager Petrera had allegedly made, Feinberg indicated he would take care of it, and the employees left. Bueno worked all that day and until noon of the following day (December 27), at which time he left the plant after - according to his testimony - he told his foreman, Ildefonso Urdaneta, soon after the 10 a.m. workbreak, that he was going home for lunch since he was without money to buy lunch, and that for the same reason he would be unable to return. At noon, Bueno punched out and walked home - a mile or so, about a half hour's walk, from the plant, to an apartment he shares with Jose Peguero - and did not return to work that day.191 On the following morning, December 28 - still according to Bueno - when he sought to punch in at the regular reporting time of 8 a.m., his timecard was not in the rack and he was referred to Personnel Manager Morales, who informed him his services were no longer desired since he had left his job the previous day without authorization. According to Bueno, when he told Morales that in accordance with past practice he (Bueno) had informed his supervisor, Urdaneta, Morales asserted it was necessary to inform Morales; and that, thereupon, when Bueno asked Morales for an explanatory dismissal document, Morales told him it would be with his paycheck. Finally, according to Bueno, although he did not receive such a document with his paycheck, it was subse- quently forthcoming, but he did not understand it since it was in English and he has lost it. The foregoing testimony of Bueno, who less than 2 years preceding these events pleaded guilty to charges including assaulting a policeman, is substantially disputed and contradicted by a number of witnesses. Ildefonso Urdaneta, one of Respondent's supervisors - who, it will be recalled, also served as a member of Juan Vazquez' Teamsters Local 806 "committee" - was Bueno's foreman at the time in question. According to Urdaneta, not only was Bueno's attendance irregular, with his appearance for work unpredictable, but on those occasions when he did show up "I [Urdaneta] had to be always behind him." Urdaneta denies that on the last day Bueno worked at the plant 192 he (Bueno) in any way indicated to him that he was leaving early, much less sought his permission to do so ; and he denies recalling any such prior occasion. Bueno's other supervisor, Felipe Rivera - an 189 Since Bueno had not shown up for work at all on December 24, he had no such problem with his own timecard. 180 According to Bueno, Feinberg told him to shut up and , placing his hand on his sexual organ, said that was what he would give them lei According to Bueno, he had also left work early in this way on two previous occasions . He denies that he passed his other foreman , Felipe Rivera, on his way out on this occasion. impressively credible witness, who has been in its employ for about 12 years - testified convincingly that Bueno's performance, during his short tenure of employment at the Jersey City plant, has been "very poor," since among other things he "continually made any mistakes in his arithmetic and confused one number for another, overpicked, under- picked . . . . he would forget to stamp address all cartons. He would not stack it [palettes] properly"; that he had spoken to Bueno about the quality of his work; and that as early as the beginning of December he had recommended that Bueno be terminated, which, indeed, Bueno was on December 7, although reinstated or rehired in a day or two, only to be reprimanded by General Manager Feinberg on December 10 for his "disruptive" conduct at the plant cafeteria episode of December 7. On December 27 - the last day that Bueno worked at the plant - Rivera was walking back to the plant from lunch when he saw Bueno three or four blocks from the plant at or around 12:40 p.m. Back at the plant, Rivera inquired about Bueno, whose lunchtime was from 12:15 to 12:45, and who had not returned. Rivera was told by Urdaneta (who worked under Rivera) and also by Morales that neither had given Bueno permission to leave the plant, although he had punched out just before 12:30. At no time that morning had Bueno spoken to Rivera, nor Rivera to Bueno, nor anybody else to Rivera concerning Bueno . Rivera told Morales that he had seen Bueno on the street - walking away from the plant - and that neither Rivera nor Urdaneta had authorized this. Morales remarked that he had not autho- rized it either.193 Thereupon Rivera said that he was in favor of discharging Bueno, adding that since he had already done so once it might be preferable to leave it in General Manager Feinberg's hands. Although Rivera conceded he had not previously recommended the dis- charge of an employee for punching out without authoriza- tion and subsequently failing to return, Rivera pointed out that such instances are rare; and that he recommended Bueno's discharge for that reason atop his poor perfor- mance. I credit Rivera. (When Rivera was shown the personnel file of Juan Vazquez, with no less than 15-20 occasions of punching in late or out early without indica- tion of advance permission, with no disciplinary action, Rivera was unable to account for it and pointed out he was ignorant of the circumstances involved.) Bueno did not return to work the following day (Decem- ber 28) nor for about a week later, until January 3, 1974, without obtaining permission and without notifying Re- spondent. Rivera was subsequently informed by Morales that Bueno had been discharged for failure to report or call in for several days after December 27. General Manager Feinberg also testified that on Decem- ber 27 he was informed by Supervisor Felipe Rivera that Bueno was observed by him outside of the plant after his lunchtime, and that Rivera did not want to put up with this or to have Bueno back again. After instructing Plant 192 Although Urdaneta was unable to remember the exact date, Bueno's own testimony and the record otherwise establish this as December 27. 193 Morales confirmed that, although an unauthorized employee absence would not necessarily be called to his attention (unless by reason of chronicity or otherwise a supervisor saw fit to do so), an unauthorized employee's early departure from work would be called to his attention. HARTZ MOUNTAIN CORP. Manager Petrera to check into the matter and being informed by Petrera (as well as by Morales) that there was no indication that Bueno had received permission to leave work, Feinberg determined that Bueno was to be terminat- ed upon his return. It was not, however, until January 2 or 3, 1974, that Bueno returned to the plant, at which time Feinberg dismissed him personally in Morales' office after receiving a call from Morales that he was having trouble with Bueno there. At no time did Feinberg ask - nor did Bueno say - why Bueno had stayed away from work from the afternoon of December 27 until January 3. Feinberg testified that he terminated Bueno - whose brief employment history has been described - for a variety of reasons, including not only his unauthorized leaving of his work but also for his repeated "insolence," his "freshness" to Feinberg's female secretary, and numerous other shortcomings. While some of these are not specifically reflected in Bueno's personnel file, I credit Feinberg's candid explanation that they should have been but that he did not have the time to personally follow such things up to insure that they were. On the other hand, it is a fact - as pointed out by Respondent's counsel - that Bueno's personnel file (G.C. Exh. 115), as well as his earlier (December 5, 1973) termination notice, and a subsequent (December 11, 1973) "progress report" reflect repeated work shortcomings of the nature described. As I have had occasion to point out in the case of Peguero, an unsatisfactory employee is not insulated from discharge merely because of union activism. I credit the testimony of Respondent General Manager Feinberg and his subordinates, to the effect that Bueno was terminated because of unauthorized departure from his work station on December 27 and thereafter remaining away for an additional unreasonable period without authorization or shown or claimed justification, on top of his previous alleged work derelictions. Whether or not an employer is justified in discharging an employee who leaves his work station for the day without authorization, together with or not together with the other alleged work derelictions described, is beside the point, since discharge for that reason - as here found - is not in violation of the Act. As in the case of Peguero as well, "The mere fact that an employer may desire to terminate an employee because he engaged in unwelcome concerted activities does not, of itself, establish the unlawfulness of a subsequent discharge. 194 In addition to these 58, 11 employees were dropped by subsequent amendment: Hector Alvarado, Miguel Cruz , Norma Lopez, Rose Lazcano, Hector Lozada, Petita Martelli, Manual Nieves, Candido Placire, Luis Romero, Elias Santiago, and Adalberto Torres. 195 It is to be noted that this was neither pleaded as a defense in any of Respondent's answers to the consolidated complaint as amended, nor advanced to any of the employees as a reason for their termination 196 Some of the generalities and projections verbalized at the hearing could be queried, such as that it is always "very cost,y" to carry "high" inventories (Schwartz). Aside from the question of what is "high," sometimes inventories are increased , retained, and even withheld from sale - as is well known - to await or take maximum advantage of demand and using market prices. It is further noted that, notwithstanding the picture sought to be portrayed of financial stringencies, a seemingly substantial progression in sales ($ 151 million as compared to $134 million) and in all income and earnings fronts is shown in Respondent's annual report (Resp. Exh 57) for 1973 over 1972 - the only 2 years here compared by Respondent's chief financial officer/accountant, who neglected to bring with him to the hearing even a draft or rough figures for 1974 - as well as in its total asset picture 537 If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful." Klate Holt Company, 161 NLRB 1606, 1612 (1966), quoted in Kennedy & Cohen of Georgia, Inc., 218 NLRB 1175, 1177 (1975). It is accordingly found that it has not been established by substantial credible evidence upon the record as a whole that Rafael Bueno was discharged by Respondent discrimi- natorily or for engaging in protected concerted activity or otherwise in violation of the Act. 3. Mass terminations of employees during hearing a. Reasons therefor It is undisputed that during the hearing of this proceeding Respondent terminated the employment of 58 unit employ- ees (aside from Peguero and Bueno, whose cases have already been considered separately), resulting in the is- suance by General Counsel of a number of amendments to the complaint to reflect these terminations soon after they occurred.194 General Counsel alleges the terminations were discriminatorily motivated and in interference with and restraint and coercion of employees' rights under the Act. Respondent's counterassertion that they were based upon economic or other considerations not violative of the Act presents the issue in this aspect of the case. Respondent Vice President Gilbert Kaye, as well as Chief Financial Officer Curtis B. Schwartz, testified at length concerning a decline in Respondent's business fortunes and changes or projected changes in some of its operations which they urge underlay the terminations of the employees here in question.195 It is unessential here to review the detailed financial and production projections developed at the hearing,196 for reasons to be stated, including the large number of newly hired employees interpersed with or following on the heels of the employee terminations here,197 as will be shown. Also according to Kaye - Respondent's high-level vice president - he personally made the selections, upon the basis of "efficiency," out of the many hundreds of produc- tion employees at the Jersey City plant, of the low level employees here terminated, by personally examining volu- ($93 million as compared to $72 million), and with $48 million in retained earnings in 1973 as against $32 million in 1972 ; and Respondent added over $4 million to existing property, plant, and equipment in 1973. Furthermore, the ratio of inventories of finished goods to inventories of raw materials remained essentially constant in 1973 as compared to 1972 (Resp. Exh. 57). And Respondent's "President's Message" of March 11, 1974, to its stock- holders not only pridefully boasts of "an increase of 13 % over 1972 sales" but is otherwise altogether glowing - with the possible exception of a lament on the effect of price controls upon the Company's "ability to pass through labor and raw material cost increases" - a factor possibly justifying retention of some inventories to await a better day - and, contrary to the gloomy picture sought to be delineated here, speaks of great expansion of company operations. However, as stated above, it is unnecessary to dwell here on such factors in view of other considerations to be shown. 197 And also in view of Kaye's testimony that the gross annual turnover of production employees at Respondent's Jersey City plant is between 50 and 100 percent, largely among new hires who leave soon , thus allowing adequate opportunity for recall of furloughed employees if, indeed, not their absolute retention. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minous personnel folders (some here in evidence) and upon remarks allegedly made to him - but in no way corrobo- rated by - high-ranking managers at the plant (Plant Manager Petrera and Production Manager Oest). However, without explanation, none of these managers at the factory itself, let alone even a single one of the line supervisors familiar with the work of the terminated employees, was produced by Respondent to testify here . This is the more significant in view of Kaye's alleged inability at the hearing to recall what he was allegedly told by the plant managers with whom he claims he consulted . On the other hand, credited cross-examined testimony of Respondent's former supervisor, Domingo Negron, subpenaed by General Counsel as a witness, establishes that he as a responsible line supervisor at the Jersey City plant was at no time informed why any of the employees here in question was being terminated; that other fellow supervisors of the line (identified by him by name and, without explanation, not produced by Respondent to contradict him) were likewise kept in the dark as to why some of their subordinates were being terminated; that nobody ever asked him for his opinion or evaluation of any employee thus terminated; that when he asked Personnel Manager Morales why two named, valuable employees of his - both known to be Distributive Workers District 65 supporters - were being terminated, Morales answered that it was beyond his control and referred him to General Manager Feinberg, who told him (Negron) that the "orders" had come "from Harrison"; that he found no fault with any of his employees who were thus terminated ; that as a result of those terminations his department was unable to carry out its work until other employees were supplied in their place; and that the replacements were not superior in ability to the employees terminated. The following facts in the aggregate cast a long shadow across the credibility of Kaye's "explanations" for the employee terminations here in issue: (1) the fact that a large number of junior employees, not shown to be of superior or even equivalent aptitude or performance , were retained; (2) the fact that a large number of new employees were hired contemporaneously and overlappingly with , as well as shortly subsequent to, the terminations; (3) the fact that none but one of the temporarily "laid-ofi' employees were recalled ; (4) the fact that economic retrenchment was not advanced as the reason for the terminations but, rather, in almost all cases, "poor work performance" (except for a few temporary "layoffs" - amended, to be sure, by Respon- dent belatedly at the hearing, so as allegedly also to have been for "poor work performance" assertedly misdescribed as "layoffs"); (5) the selective nature of the layoffs, carried out personally by so high-ranking a corporate executive as Kaye, particularly as affecting so large a number of Distributive Workers District 65 activists or collaborators, as shown below; and, finally, (6) the dubious credibility of the advancer of these "explanations" (Kaye), within the total framework of his testimony, as already dealt with in an earlier aspect of this case (supra). Under these circumstances, plus the credited testimony of the terminated employees as shown below, plus my grave reservations concerning the credibility of Kaye as described above, plus the fact that a comparative analysis of the personnel folders of the terminated and other employees does not persuasively sustain Kaye's position, and for additional reasons developed below, I cannot accept Kaye's testimony either as to his alleged reasons for or method of selecting the employees for termination , or as to the statements which he alleges were made to him by the unproduced managers in connection with the terminations; and, in the context of the record as a whole, I reject his testimony in those respects. b. Findings The circumstances and my fmdings concerning the 58 employee terminations here in question, at its Jersey City plant, follow. (1) Rita Acevedo Rita Acevedo entered Respondent's employ as a produc- tion employee at its Jersey City plant on February 25, 1969, and remained there for 5-1/2 years until her precipitate discharge without previous notification at the end of her workday on August 23, 1974, allegedly for "poor work performance" although at no time during her 5-1/2 years of employment had her work or conduct been criticized or questioned in any way. She had been an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Work- ers District 65, and had maintained her allegiance to that Union. She attended its meetings and while at work wore its large, distinctive button bearing its number. She never affiliated with Teamsters Local 806. In February 1974, however, she was directed by her supervisor, Presutti - undisputed by him, since he did not testify - to go to the plant cafeteria, where Teamsters Local 806 spokesman Joaquin (Alex) Ocana told her she "had to sign the card for the [Teamsters Local] 806" or "I would be dismissed from the job." She refused to sign "until that union is authorized by the Labor Department." Ocana's response was that that was "precisely what they wanted to get the signature of the people so the [Local 8061 union would be accepted by the Labor Department." She refused to sign the Local 806 card. At the end of her day's work on August 23, 1974, she was summarily terminated without explanation, paid off through that day, and handed a termination slip stating she was terminated for "poor work performance" although her work had in no way ever been criticized. On the witness stand she demonstrated herself to be an impressive and credible witness. No line supervisor familiar with her work was produced in any way to contradict her testimony or to show that her work had in any way been unsatisfactory. Upon the entire record, I find that the reason assigned by Respondent for her termination was spurious and pretextu- ous, and that the real reason was her tenacious adherence to Distributive Workers District 65 and her refusal to join Teamsters Local 806. (2) Clara Aguilar Clara Aguilar entered Respondent's employ as a produc- tion employee at its Jersey City plant on October 29, 1971 (G.C. Exh. 169), remaining there until her precipitate discharge without previous notice at the end of her workday HARTZ MOUNTAIN CORP. 539 on August 22, 1974, when she was paid off through that day and handed a termination slip indicating there was a lack of work at the factory. No dissatisfaction with her work or criticism of any kind had been expressed to her during her 2 years and 10 months of employment there. Like Ms. Acevedo, she had been an early petitioner for (G.C. Exh. 14) as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of Distributive Workers District 65; and she had attended almost all of its numerous meetings, distributed its authorization cards, worn its distinctive button, and openly engaged in discussions with fellow employees at the plant concerning its supposed merits. In March 1974 she, too, was directed to the plant cafeteria, where she was warned by a Teamsters Local 806 spokes- man to sign a Local 806 card or she would lose her job. She nevertheless refused to do so, apparently in part because of the experience of a coworker who had been unsuccessful in obtaining medical benefits even though she was a Local 806 member. However, in August 1974, about 2 weeks before her termination, she signed a Local 806 card in order "to protect my work" so as "not [to] be laid off." She was nevertheless summarily terminated 2 weeks later. The "termination notice" in her personnel folder (G.C. Exh. 169) states "poor work performance." She has never been recalled to work, and in no way has Local 806 intervened on her behalf, protested her termination, or sought her recall. No line supervisor was called to testify so as in any way to dispute her testimony or show that her work record was other than excellent, as shown by her personnel folder. Upon the entire record, I fmd that the reason assigned by Respondent for her termination was pretextuous, the real reason being her protected concerted activism on behalf of Distributive Workers District 65 and her initial refusal to join Teamsters Local 806. (3) Fernando Aguirre Fernando Aguirre was hired by Respondent on May 3, 1972, as a forklift operator and remained on that job until he was summarily terminated without notice 5 minutes before quitting time on May 10, 1974. Likewise an early petitioner for (G.C. Exh. 14) and card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of Distributive Workers District 65, he was also a known activist on its behalf and a member of its executive committee, as well as a known opponent of Teamsters Local 806 and adversary of Juan Vazquez who led the pro-Local 806 movement. Around November 24 or 25 (1973), General Manager Feinberg told Aguirre he was "a good worker, and he [Feinberg] wouldn't like having to fire me [Aguirre] if I didn't sign the [Local 806] card" because "that union was going in." After persisting in his refusal to affiliate with Local 806, while at work in March 1974, he was paged to report to the plant cafeteria, where he was confronted by Local 806 Representatives Gonzalez, Ocana, Sanabria, Peneherera, and Marta Toro. Peneherera warned him, "[11 am about to give [you] a friendly comment, a friendly advice.... [I know] that the people who had not signed the [Teamsters Local 806 ] card would be dismissed ... the bosses had said that the [Distributive Workers District] 65, the union that we wanted, would not be in." Sanabria made similar remarks. Nevertheless, Aguirre declined to sign a Local 806 card and has never done so. At the end of his workday on May 10, 1974, after 2 years with a substantially good work record, he was precipitately "laid off" by Personnel Manager Morales, who told him the layoff was not of his doing and that "it was not depending upon him [Morales], nor on the other bosses of the company in Jersey City. It was a direct order from [company headquarters in] Harrison." No reason has ever been given for his termina- tion; and no line supervisor testified as to any work discrepancy on his part. Upon the entire record, I fmd that he was terminated for his protected concerted activities on behalf of Distributive Workers District 65 and his refusal to join Teamsters Local 806. (4) Julia Aguirre Julia Aguirre was hired by Respondent as a production worker on July 16, 1972, continuing in that capacity in various jobs until she was summarily terminated on April 26, 1974. At no time during her tenure had she received any work criticism of any kind. She was also an early petitioner for (G.C. Exh. 14) as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of District 65. On April 19, 1974, she requested and was granted time off by Personnel Manager Morales in connection with her daugh- ter's illness. When she returned on April 29, Supervisor Presutti referred her to Morales. Since Morales was not in his office, she went to her workplace and started to work as usual. Shortly thereafter, Supervisor Warren Robinson told her to report to Morales' office, where she was given a check for past pay due and a termination notice (G.C. Exh. 50) dated April 26, 1974, stating: "We regret that we have to give you lay off due to raw material shortage, shipping and transportation problem. We expect that this situation will be corrected soon. Thank you." But she has never been recalled. In addition to being an early and loyal supporter of District 65, she attended all of its meetings, wore its distinctive button while at work, and openly discussed its affairs with other employees there; and she had distributed its literature at the main entrance of the plant about a half hour before starting time, as well as within the plant before punching in. She never signed a card for Teamsters Local 806. In February or March 1974 she (as well as other employees) were summoned to the plant cafeteria during working time. There, Local 806 spokesman Joaquin (Alex) Ocana said to her, "You know, we are both from Ecuador so we want to help you. You know your age, it is not easy to get a job at your age, so you should sign the card [for Local 806]." She refused. Notwithstanding the explanation given on her termination slip, as quoted above, she has (as has been stated) never been recalled to work, and the certificate supplied by Respondent to the New Jersey unemployment insurance authorities states that she was "Laid off - lack of work . . . permanent" (G.C. Exh. 148). Respondent Vice President Kaye swore at the hearing that the reason given to Ms. Aguirre on her termination slip was incorrect and that she was not laid off for material shortages. Kaye was unable to explain why she has not been recalled, but now claims she may have been discharged rather than "laid off," although her personnel folder and company certification to the New Jersey unemployment insurance authorities show the contrary. Kaye was also at a loss to explain why Ms. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aguirre, hired in mid-1972, with nothing derogatory in her personnel folder, was terminated in April 1974 when nine other women doing the same work (see G.C. Exhs. 149A through 149I), all hired in 1974, were not then (or some ever) laid off or terminated. No line supervisor was produced to testify to any work shortcoming on the part of Ms. Aguirre. Upon the entire record, it is found that the reason or reasons advanced by Respondent for its termina- tion of Julia Aguirre were pretextuous, the real reason being her Distributive Workers District 65 activism and her refusal to join Teamsters Local 806. (5) Francisco Altamirano Francisco Altamirano, who entered Respondent's em- ploy on November 16, 1973 , and worked there only 5 months until his termination in April 1974 under circum- stances not here disclosed since he failed to testify . There is no indication of District 65 activity on his part other than a late (December 5, 1973 ; G.C. Exhs. 11-25) membership therein, as well as an earlier checkoff card (November 21, 1973; G.C. Exh. 100) executed for Teamsters Local 806. Since his personnel folder shows an arguably poor atten- dance and punctuality record, as well as a warning, during his short-term employment, on the record presented it is found that it has not been established by substantial evidence that his termination was for any reason violative of the Act. (6) Miriam Arango Miriam Arango, also apparently at one time known as Miriam H. Rivera, was hired by Respondent on June 9, 1972, and terminated about 1 year and 11 months later, on April 29, 1974. She did not testify and there is no indication of any District 65 activity on her part other than mere membership . While her personnel file shows no reason for her termination, in the absence of testimony on her part I am unable to speculate as to the reason therefor, which could conceivably have been a sheer administrative error which, while regrettable, may not have been violative of the Act. Upon the record, presented, I find that it has not been established by substantial evidence, as required, that Miriam Arango's terminati on was for a reason violative of the Act. (7) Maria Elena Arguello Maria Elena Arguello entered Respondent's employ as a production worker at its Jersey City plant on February 22, 1970, continuing there in that capacity until her precipitate termination 4-1/2 years later, on August 22, 1974, without advance notification . She was also an early petitioner for (G.C. Exh. 14) as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Work- ers District 65, attended all of its many meetings, and also wore its "hat" at her workplace. In March 1974, she was directed by her supervisor, Presutti, to report to the plant cafeteria, where she was confronted by Teamsters Local 806 spokesmen Vazquez, Ocana , and Peneherera and others. Peneherera stated to her that "as a friend" he would give her a "friendly suggestion" to sign a Teamsters Local 806 card or if not she could lose her job. She indicated she would think it over. Ultimately, on June 19 (1974), she signed the Local 806 card because "I was afraid to be dismissed from the job." She nevertheless received a telegram on August 22, while at home sick, stating that she was dismissed and to call for her paycheck. When her husband did so that day, he was given a notice that she had been terminated for "poor work performance." She finally gave up attempting to ascertain from Personnel Manager Morales why she had been discharged because he was always allegedly unavailable to talk to her. Crediting her uncontradicted testimony indicating that she had an essentially good work record for 4-1/2 years, and in the absence of any testimony from any line supervisor to the contrary, it is found upon the record as a whole that the reason assigned by Respondent for her termination was pretextuous, the real reason being her Distributive Workers District 65 activism. (8) Irma Avellaneda Irma Maria Avellaneda entered Respondent's employ as a production worker on October 9, 1967 (G.C. Exh. 156), as production worker at the Jersey City plant, remaining there in various capacities under that job heading until she was terminated precipitately and without notice at the end of her workday 6 years and 8-1/2 months later, on June 21, 1974. She had been an early petitioner for (G.C. Exh 14) as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of Distributive Workers District 65 , attend- ed perhaps over 20 of its meetings , and openly discussed that labor organization as "a good union and that we had to fight for it." Around March 1974 during working time she was told she was being awaited in the plant cafeteria; when she arrived there, she was met by Teamsters Local 806 spokesman Ocana, who informed her that she "had to sign the [Teamsters Local 806] card, that if not, [you] would be dismissed." She refused, declaring, "Well, all right, but I still will not sign the card." And she never has. On June 21 (1974), at the end of her 8-hour workday, her supervisor, Presutti, instructed her to report to the personnel office, where she was handed paychecks through that day and Personnel Manager Morales told her he had "received orders concerning [you] ... from Harrison" (i.e., company headquarters), adding that "possibly [we] would call [you ] back within two weeks." But she has not been recalled. She learned later that her termination notice stated that she had been terminated for "poor work performance," but at no time had Morales or anybody else suggested that. During her 6 years and 8-1/2 months of employment at the plant at no time had her work or conduct been criticized in any way. Her testimony is uncontradicted by any line supervisor, none having been produced to testify, and there is no proof whatsoever that her work was in any way poor or unsatisfactory. Crediting the testimony of this employee of close to 7 years' standing with an excellent work record, I find that the reason advanced by Respondent for her termination was spurious and pretextuous , its real reason being her Distributive Workers District 65 activism and her opposition to and refusal to join Teamsters Local 806. HARTZ MOUNTAIN CORP. 541 (9) Elesa Bello Elesa (Elisa) Bello entered Respondent's employ as a production worker at its Jersey City plant on February 5, 1969, continuing there in that capacity in different job assignments until her summary termination without notice at the end of her workday on July 19, 1974, approximately 5-1/2 years later. She was an early card signer for (G.C. Exh. 11-14) and dues-paying member of (G.C. Exh. 15) Distributive Workers District 65. Additionally, she was an active worker on behalf of that Union, wore its distinctive button at work, and campaigned openly on its behalf among the workers . She never signed a Teamsters Local 806 card. While at work in April 1974, she was summoned to the plant cafeteria, where she was met by Juan Vazquez (shop steward for Local 806) and his aide Emerson Peneherera, who told her to sign a Local 806 card. When she declined, Peneherera said she would be out of a job the next day if she did not, and that if she returned to the plant she would be put out by the police. She nevertheless persisted in her refusal to sign, stating that she had already signed up with District 65. At the end of her regular workday on July 19, 1974, her supervisor, Presutti, instruct- ed her to report to Personnel Manager Morales' office, where she (and a few other women employees ) was told to return on Monday. When she did so, she was paid off and handed a termination notification stating the reason as "poor work performance." Crediting the testimony of this highly impressive witness indicating that her work perfor- mance in her 5-1/2 years in her job had been substantially satisfactory, and in the absence of any testimony from any line supervisor to the contrary, I fmd that the reason given by Respondent for her termination was pretextuous , its real reason being her loyal adherence to Distributive Workers District 65 and her activities on its behalf, as well as her refusal to join Teamsters Local 806. (10) Fulvia Benjumeda Fulvia Benjumeda worked for Respondent at its Jersey City factory from March 9, 1972, to August 9, 1974 (2 years and 5 months), when she was terminated, allegedly for "poor work performance" (G.C. Exh. 105). She did not testify here, and there is no evidence of any activity on her part in or on behalf of Distributive Workers District 65 beyond mere early support and membership . Since there is also no evidence of the nature of her job performance, and her personnel folder (G.C. Exh. 105) shows an arguably unsatisfactory punctuality and attendance record, I am unable upon the record presented and without speculation to find that her termination was for a reason violative of the Act. It is accordingly found that it has not been established by substantial evidence that her termination was violative of the Act. (11) Damiana Cancel Damiana Cancel (Cansel) entered Respondent's employ as a production worker at its Jersey City plant on February 10, 1970, continuing there until her precipitate discharge without notice at the end of her workday on August 15, 1974, after 4-1/2 years on the job with no essential criticism of her work performance or conduct . She was an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65. She also attended all of its many meetings and campaigned actively on its behalf. On two occasions around April 1974, she was instructed to go to the cafeteria; there she was told by Teamsters Local 806 spokesman Ocana to sign a card for that Union , but she refused. At the close of her working day on August 15, 1974, she was summarily terminated by Supervisor Presutti, who handed her a paycheck through that day and a termination notice which her husband later explained to her was for "poor work," although her work had essentially never come under criticism. No line supervisor was pro- duced to contradict her credited testimony concerning the quality of her work and the substantial absence of dissatis- faction therewith. Crediting the testimony of this employ- ee of 4-1/2 years' standing with an excellent work record, I find that the reason assigned by Respondent for her discharge was spurious and pretextual, the real reason being her continued adherence to Distributive Workers District 65 and her refusal to join Teamsters Local 806. (12) Milagros Cancel Milagros Cancel was employed as a production worker at Respondent's Jersey City factory from November 26, 1973, until her termination approximately 5 months later, on April 19, 1974. The circumstances of her signing a card for Teamsters Local 806 at the behest of Personnel Manager Morales during her job interview have already been described. She subsequently, after Christmas of 1974, signed a card for Distributive Workers District 65. Her employment was terminated by Respondent on April 19, 1974, 8 days after she was observed by Respondent Vice President Kaye at the hearing of this proceeding in the company of Distributive Workers District 65 supporters and following her suspension from work 2 days after she had thus been observed by Kaye at this hearing - the foregoing being conceded by Kaye on cross-examination. While the reason certified by Respondent to the New Jersey unemployment insurance authorities for the termination of Milagros Cancel was "lack of work" (G.C. Exh. 102), Kaye testified at the hearing that this is "incorrect" and that the real reason was "poor work performance" - as stated on a termination of employment notice in her personnel file (G.C. Exh. 102) dated May 3, 2 weeks after her termination, and which Kaye conceded he doubts she was given a copy of. And, in a prehearing affidavit furnished by Kaye, he swore on May 10, 1974, that "I know Milagros Cancel was laid off but I don't know why" (G.C. Exh. 147). After first denying he was aware of Milagros Cancel's support of District 65, Kaye conceded he did know it from observing her in the courtroom here shortly before she was suspended and then terminated. No line supervisor familiar with the work of Milagros Cancel was produced by Respondent to 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testify that it was poor. While her case is not free from doubt,198 on balance, considering Kaye's equivocal and contradictory "explanations" and memory lapses concern- ing the termination of Milagros Cancel , and Respondent's unexplained failure to produce a line supervisor to testify regarding her work performance, upon the record as a whole I find that the reason or reasons assigned by Respondent for her termination were pretextuous, the real reason being the fact that she joined Distributive Workers District 65 after she had signed a card - hereinabove found to have been unlawfully procured with Employer assistance - for Teamsters Local 806. (13) Luz C. Cardona Luz Celenia (Elenia) Cardona entered Respondent's employ as a production worker at its Jersey City factory on October 12, 1971 (G.C. Exh. 168), continuing there for about 2 years and 10 months until she was summarily terminated without notice on her return from vacation on Monday, August 12, 1974. She was an early petitioner for (G.C. Exh . 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Work- ers District 65; she attended all of its numerous meetings and displayed its button at work. She never signed a card for Teamsters Local 806. In May 1974 she, together with other employees, was told by Local 806 spokesman Eddie Sanabria to sign Local 806 cards or face dismissal. She refused to sign. On her return from vacation on Monday, August 12, 1974, she was instructed by Supervisor Presutti without advance notice to obtain her "layoff" papers in the office. Her "layoff" papers consisted of a notice of termination dated August 9, giving as the reason "poor work performance." Her credited testimony establishes that at no time during her employment had her work conduct in any way been criticized or brought into question. No line supervisor was produced by Respondent to testify other- wise. And, as in the case of other terminated employees here under consideration, at the time she was terminated employees junior in job seniority to her were retained in Respondent's employ despite its seniority policy and the terms of the "collective agreement" to which it strongly asserts here it is a party. Upon the record as a whole, I fmd that the reason advanced by Respondent for the termina- tion of Luz C. Cardona was pretextuous, the real reason being Respondent's desire to rid itself of a loyal Distribu- tive Workers District 65 adherent who refused to join Teamsters Local 806. iss While the attendance record of Milagros Cancel, as well as that of some of the other terminated employees here in issue , may on the surface seem to leave something to be desired, nevertheless on a comparative basis in the aggregate of the many personnel folders here supplied of employees who were either not terminated or who were retained in Respondent's employ, Ms. Cancel's as well as other terminated employees ' attendance records are unremarkable . Respondent Vice President Kaye , who personally made the termination selections here in issue , conceded on cross-examination that, for example, 15 absences in a year is not extraordinary, and he was unable to explain why employees with worse attendance records (Bonilla) were retained, while those here in issue were terminated ; nor why employees with substantial warnings in their files (Ramos) were retained in preference to those with unblemished records who were here terminated ; nor why employee Susan Siflinger, terminated on August 15, 1974, was - in contrast to earlier terminated long-term employees here in issue, with unblemished (14) Mariana Castro Mariana Castro (Mariana Luiz deCastro) entered Re- spondent's employ as a production worker in its Jersey City factory in September 1968, continuing there in that capaci- ty for 6 years until she was summarily terminated on August 22, 1974, while on excused sick leave at home following an automobile accident. She, also, was an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65; and she also had attended its meetings. She never signed a card for Teamsters Local 806. Toward the end of January 1974 her supervisor, Santiago, instructed her and a fellow employee to sign cards for Local 806 or they "would be dismissed as of February 7th." She nevertheless refused to sign. On February 14 she was involved in an automobile accident and was carried on authorized sick leave at the plant. On or about August 22, she received a telegram stating, "As of August 22nd 1974 your employment at the Hartz Mountain Corporation is terminated" (G.C. Exh. 75). She denies ever receiving a copy of a termination notice allegedly from her personnel file, which states that she was terminated because of "poor work performance" (G.C. Exh. 76). Her credited uncon- tradicted testimony establishes that at no time during her 6 years of employment had she received any written or oral criticism or other employer expression of dissatisfaction with any aspect of her work or conduct. No line supervisor was produced to dispute this in any way. Upon the entire record, I fmd that the reason assigned by Respondent for her termination was pretextuous, the real reason being her continued adherence to Distributive Workers District 65 and her refusal to sign a Teamsters Local 806 card. (15) Dominga Cintron Dominga Cintron entered Respondent's employ as a production worker in its Jersey City factory on April 11, 1971, continuing in that capacity for 3 years and 1 month until her summary termination without notice on July 12, 1974. She also had been an early card signer (G.C. Exh. 18) as well as petitioner (G.C. Exh. 14) for Distributive Workers District 65, and a District 65 activist as well, attending its meetings, wearing its distinctive button at work, discussing and promoting it with fellow employees, and distributing not only its membership cards but also its literature and announcements of meetings. She never signed a card for Teamsters Local 806. During working time around March 1974, she was directed to go to the plant records - reinstated shortly thereafter, in violation of Respondent's policy of not rehiring discharged employees, except that he (Kaye) was aware that Susan Silinger was a Teamsters Local 806 committeewoman. Numerous other examples could be given, but they would take on encyclopedic form and be inconsistent with the reasonable limits of decision writing as well as reading, even in a case of this length and complexity. It may finally be noted that among the employee personnel folders which Kaye conceded also "evaluating" in connection with his "selections " for termination, were those of Teamsters Local 806 leaders Vazquez, Sanabna, and Ocana (G.C. Exhs. 117, 118, and 119); although their work records, on a comparative basis, seem to measure up quite poorly in terms of attendance, punctuality, and otherwise, with records of employees here terminated, none of them, nor any Teamsters Local 806 leader, as conceded by Kaye, was selected for termination, for reasons unexplained here. HARTZ MOUNTAIN CORP. 543 cafeteria; someone else took her place at work while she went to the cafeteria. There she was met by Local 806 spokesman Joaquin Ocana , who told her to "sign the [Teamsters Local 806 ] cards because [you are ]just about to be dismissed." She nevertheless refused to sign and re- turned to work. Subsequently, around May (1974), Ms. Cintron visited the office of Personnel Manager Morales in an attempt to get fellow employee Juanita Ortiz' job back for her. Morales promised to try to help. Thereafter , Juanita Ortiz came to see Morales, accompanied by Ms. Cintron. As they were in process of discussing Juanita Ortiz' reemployment, General Manager Feinberg came in and stated that if Ms. Cintron were a member of Teamsters Local 806 Juanita Ortiz could start to work that very day. This elicited the response from Ms. Cintron that she did not care whether Juanita Ortiz worked there. Ms. Cintron did not sign a Local 806 card and Ms . Ortiz was not reem- ployed. Questioned concerning this incident, Feinberg testified that he was unable to "remember." At the end of her workday on July 12, 1974, Ms. Cintron was sent by Supervisor Presutti to the office of Personnel Manager Morales, where she was paid off and given a termination notice stating it was for "not producing well enough." When she asked Morales, "How come you wait three years to tell somebody something like that," Morales answered, "It has nothing to do with that, it is just a decision from Harrison." The credited uncontradicted testimony of Ms. Cintron - no line supervisor was produced to dispute it in any way - establishes that during her 3-year employment with Respondent she received no adverse comment what- soever concerning her work . Upon the entire record, I fmd that the reason assigned by Respondent for the termination of Dominga Cintron was pretextuous, the real reason being her activism on behalf of Distributive Workers District 65 and her refusal to join Teamsters Local 806. (16) Maria Cruz Maria Cruz (also apparently at one time known as a Maria D. Colon) worked for Respondent for 3 years and 9 months, from July 23, 1970, until her termination on April 19, 1974, allegedly for "poor performance" or for "lack of material" (G.C. Exh. 103). She did not testify here. Aside from her mere petitioning (G.C. Exh. 14) and card signing (G.C. Exh. 18) for Distributive Workers District 65, there is no indication of activity by her on its behalf; nor is there any evidence from her as to the nature of her work performance while in Respondent's employ. Under the circumstances, it is found that it has not been established by substantial evidence that her termination was for any reason violative of the Act. (17) Marie Diana Marie Diana entered Respondent's employ as a produc- tion line worker in its Jersey City factory on April 21, 1972, continuing there in that capacity for 2-1/4 years until her summary termination without prior notification at the end of her workday on July 12, 1974. She also was an early petitioner (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distribu- tive Workers District 65 . She was also a member of the organizing committee of that Union , attended its meetings, solicited members for it, and distributed not only its cards but also its literature on the street in front of the factory as well as inside the factory during nonworking time. She has never signed a card for Teamsters Local 806. During working time toward the end of March 1974, she was summoned over the plant loudspeaker to go to the plant cafeteria, where she was met by Local 806 spokesman Ocana, who said to her, "Madam, we have sent for you because you have to sign the [Teamsters Local 806 ] card to assure your work." She refused to sign. At the end of her workday on July 12, 1974, she was instructed by Supervisor Presutti to report to the personnel office, where Personnel Manager Morales gave her a paycheck or checks through that day and instructed her to return on the following Monday to "receive the letter." When she did so, she was given a termination notice stating it was based upon "Poor work performance" (G.C. Exh. 171). Her credited uncon- tradicted testimony establishes that at no time during the term of her employment had her work in any way been criticized, and no line supervisor was produced to testify to the contrary. While her attendance record, as shown by her personnel folder, could in the abstract be subject to question (as to which, see fn. 198, supra) nevertheless, the fact is that it was not, and Respondent was willing to tolerate it. Upon the record as a whole, I am persuaded and fmd that Respondent's alleged reason for terminating this employee was pretextuous, its real reason being her determined activism on behalf of Distributive Workers District 65 and her refusal to join Teamsters Local 806. (18) Gladys Diaz Gladys (Carmen) Diaz entered Respondent's employ as a production worker at its Jersey City factory on February 11, 1971 , continuing in that capacity for 3-1/2 years until her summary discharge on Monday morning , August 19, 1974, upon return from vacation. She also had been an early petitioner for (G.C. Exh. 14), as well as card-signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65, and attended its meetings and wore its distinguishing button while at work. In January or February 1974, she refused to sign a Teamsters Local 806 card at the behest of its solicitor Joaquin Ocana. In March 1974, while at work, she was instructed by Supervisor Presutti's assistant to report to the plant cafeteria, where she was met by not only Ocana but Juan Vazquez, Eddie Sanabria, and Marta Toro - all Local 806 spokesmen. Although Ocana again warned her to "sign the [Local 806 ] card and if not [you] would be dismissed," she refused. She was away on account of illness from some time in April until early May; at some time between her return in May and July, she signed a Local 806 card in order "to be able to receive the benefits, like medical coverage and so forth, so I could get compensation for my expenses for my operation," but she received none. On Monday morning, August 19, 1974, when she returned from vacation and reported to work as usual, she found her timecard missing from the rack, and was informed by a supervisor that she was "laid off" and to report to the personnel office, where she was given a check for I day's overtime pay due her prior to her vacation, together with a termination notice. She was 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not paid for that or part of that day; and, after waiting for about 2 hours to see Personnel Manager Morales for an explanation, she left without speaking to him . Her husband later translated the termination notice to her; it states as the reason for her termination, "Poor work performance" (G.C. Exh. 73). However, as established by her credited uncon- tradicted testimony - no line supervisor was produced to dispute her testimony in any way - at no time during her 3-1/2 years of employment had there been any expression of dissatisfaction with her work . She also testified at the hearing that the day prior to her testimony (i.e., on Monday, September 30, 1974), she had been recalled to work and had arranged to report back on October 2, 1974, but that she did not know at what job or pay or for how long. Upon the entire record, I ford that Respondent's alleged reason for terminating this entirely satisfactory employee was pretextuous, the real reason being her continued activities on behalf of Distributive Workers District 65 and her initial refusals to join Teamsters Local 806. (19) Luz Fabiola Diaz Luz Fabiola Diaz entered Respondent's employ as a production worker in its Jersey City factory on March 24, 1972, continuing in that capacity until her summary termination 2 years and 2 months later, on May 3, 1974, because of "Raw material shortage, shipping and transpor- tation problem. We expect that this situation will be corrected soon" (G.C. Exh. 70), but she has never been recalled. She was an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65; became an elected member of its organizing committee at its second meeting in May 1973 and has remained such ; attended all of its numerous meetings ; and has been extremely active on its behalf, including addressing employees at its meetings. She has continued to refuse to join Teamsters Local 806. In November 1973 Juan Vazquez offered her a membership on the Local 806 committee if she joined that Union, but she refused, pointing out that she was a member of the District 65 committee and "certainly would not betray my co-workers." When Vazquez responded that membership in Local 806 was essential since the Company "was not ready to recognize [District] 65," Ms. Diaz replied that she "would certainly keep on fighting to the end for the [District] 65" and that Vazquez was acting on his own and would not have her support. Subsequently, on March 28, 1974, while she was working, she was directed by Supervi- sor Presutti - who was with Teamsters Local 806 Commit- teewoman Mary Arlington - to report to the plant cafeteria, where she was met by Local 806 spokesman Ocana, who asked her if she had signed a card for Local 806. She said she had not; when he asked her to do so, she refused. Although, according to the termination notifica- tion received by her from Respondent she was not discharged or terminated for any reason related to her work performance (supra), her work record has been satisfactory to Respondent - including a March 1973 reinstatement following a brief discharge or suspension for holding or eating a piece of orange handed to her by another employee while at work . No line supervisor was called to testify that her work was in any way unsatisfactory. As also indicated, however, although she was according to her termination notification only temporarily furloughed, she has never been recalled. Other proof, described below, establishes that subsequent to her layoff many new employees were hired. Upon the record as a whole, I find that the reason assigned by Respondent for her termination - attempted to be changed by Respondent at a late stage of the hearing to be "unsatisfactory work" - was pretextuous, the real reason being her activism on behalf of Distributive Workers District 65 and her refusal to join Teamsters Local 806. (20) Natalia Esquilin Natalia Equilin worked for Respondent for over 6 years, from August 8, 1968 , until her termination on August 23, 1974, allegedly for "poor work performance" (G.C. Exh. 104). Since she did not testify here , there is no proof of any activity by her on behalf of Distributive Workers District 65 beyond petition signing (G.C. Exh. 14) and card signing (G.C. Exh. 18), dues-paying (G.C. Exh. 15) membership. She also apparently executed a checkoff card for Teamsters Local 806 on April 29, 1974 (G.C. Exh. 104). Nor is there any testimony regarding the nature of her work perfor- mance during the term of her employment. Under the circumstances, there appears to me to be insufficient basis for a finding that - notwithstanding her long term of employment with Respondent - her termination was for a reason violative of the Act. It is accordingly found that it has not been established by substantial evidence that she was terminated in violation of the Act. (21) Arvada Flores Amada Flores entered Respondent's employ on Septem- ber 2, 1969, as a production worker in its Jersey City plant, continuing there in various capacities within that general work category for 4 years and 11 months until her summary termination without previous notification at the end of her workday on August 9, 1974, allegedly for "poor work performance" (G.C. Exh. 59). She also had been an early petitioner for (G.C. Exh . 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65 ; and she attended all of its numerous meetings and took an active part in discussing the instant proceeding with her fellow employees . Around March 1974, while she was at work; her name was called out and she was instructed to report to the plant cafeteria, where Teamsters Local 806 spokesman Ocana presented her with a Local 806 card and told her, "You have to sign a card for the [Local ] 806 to avoid problems later on." Nevertheless she refused to sign it. However , on June 26, after she received a plea for money from a member of her family in Ecuador, she signed a Local 806 card in order to "save my job," and transmitted the card to Respondent General Manager Feinberg. At the end of her workday on August 9, 1974, she was told by Supervisor Presutti, "Layoff, Arvada," and to return on the next workday (Monday) for her paycheck. When she returned on Mon- day, she attempted to see Personnel Manager Morales but was informed he was not in. She was at the same time handed a check for pay through the past Friday and a HARTZ MOUNTAIN CORP. 545 termination slip giving as the reason "poor work perfor- mance" (G.C. Exh. 59), although this had at no time been indicated to her and she had a good work record in her almost 5 years at the plant.199 When she thereupon sought out Supervisor Presutti for an explanation, he was unable to provide any but, displaying incredulity, moved his head from side to side, muttering, "Oh, Baby!" And her testimony confirms what is otherwise independently estab- lished, as shown below, that at and around the time she was terminated, employees junior to her were retained and that new employees were hired. No line supervisor testified to any work shortcoming on her part. Upon the entire record, I find that Respondent's assigned reason for terminating Amada Flores was pretextuous, its real reason being her concerted protected activities on behalf of and her contin- ued adherence to Distributive Workers District 65, and her initial refusals to join Teamsters Local 806. (22) Alejandrina Fontanez Alejandrina (Alexandria) Fontanez (Fontanes) entered Respondent's employ as a production worker at its Jersey City plant on February 25, 1969, continuing there in that capacity for 5 years and 2-1/2 months until her precipitate discharge without prior notification at the end of her workday on May 10, 1974. She also was an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Work- ers District 65; she also attended its meetings and wore its distinguishing button while at work in the plant. She also refused to affiliate with Teamsters Local 806. In early December 1973, she was approached by Local 806 spokes- men Vazquez and Ocana, who solicited her to sign a Local 806 card. She refused, stating that she had already signed a District 65 card. Ocana informed her that the Company had indicated it did not "want" District 65 for its employees and that District 65 "could not enter there"; and that if she refused to sign a Local 806 card she would lose her job. She nevertheless declined to sign a Local 806 card. Subsequent- ly, around March 1974, while working she was told by Marta Toro (a Local 806 spokesman) to go to the plant cafeteria. She said she could not do so since she was working. Marta Toro then spoke to Supervisor Presutti, who came over to Ms. Fontanez and instructed her to report to the cafeteria. There she was met by Teamsters Local 806 spokesman Ocana, who presented her with a Local 806 card to sign. She refused to sign it. Ocana then told her that if she did not sign it she would be dismissed from her job. She nevertheless continued to refuse to sign it and has never done so. Near the end of her workday on May 10, 1974, without prior intimation of any kind, she was instructed by Supervisor Presutti to report to Personnel Manager Morales, who informed her that "they were giving me layoff." She demanded to know the reason, since she had been working there for 5 years. General Manager Feinberg came in at this point, and Ms. Fontanez said, "You know I know some new employees have started to work; then how come I am the oldtimer and I am the one who is being laid off?" Morales replied that "he was very sorry because . . . what I was saying to him was true but that was a decision made by . . . Harrison.... He said he had looked into the books and had seen I had a good record. There he had no idea why.... " When she asked for "papers so I could collect unemployment," Morales told her "there are no such papers" but that "if you have any problems you can call me and I will give a recommendation for you." She has never been given any reason or explana- tion for her termination, although entries only in her personnel file state it was for "poor performance" (G.C. Exh. 159). As in the case of all but one of the other employees whose terminations are here in issue, at no time did Teamsters Local 806 protest or present a grievance to Respondent over the termination. The testimony of Alejan- drina Fontanez is uncontradicted that at no time during her 5 years of employment with Respondent was her work performance in any way criticized nor is her testimony disputed that, on the contrary, her work performance was praised by Supervisor Presutti. No line supervisor was called by Respondent to establish the contrary. Upon the entire record, I find that Respondent's alleged reason or reasons for terminating Alejandrina Fontanez were pretex- tuous, and that the real reason was to rid itself of a loyal Distributive Workers District 65 protagonist who had continued to refuse to join Teamsters Local 806. (23) Jacinta Fontanez Jacinta Fontanez entered Respondent's employ as a production worker at its Jersey City factory on February 11, 1971, continuing there it in that capacity for almost 3- 1/2 years until precipitately terminated without prior notification upon her return from vacation on Monday morning, July 8, 1974. Although her termination notice states the reason for her termination was "poor work performance" (G.C. Exh. 52), at no time during her 3-1/2 years on the job had her work performance in any respect been criticized nor drawn into question in any way. She also was an early card signer for Distributive Workers District 65 (G.C. Exh. 18), wore its distinguishing button in the plant, attended its meetings, and participated in group discussions regarding its supposed merits and its affairs. She also refused to affiliate with Teamsters Local 806. Around March or April 1974, on instructions of her supervisor, she reported to the plant cafeteria, where she was confronted by Local 806 protagonists Vazquez and Ocana, who "told me they had sent for me to see if I would cooperate with them and if I would sign the [Teamsters Local 8061 card. And I told him no. Then he said if I did not sign the card, I would be dismissed from my job.... [I said] that I will sign nothing because I had been told that there was no union, that I had signed for the [District] 65, and that I could not go on signing that card.. . . He said, `That's fine. You can go.' " When Jacinta Fontanez returned from her vacation on Monday morning, July 8, 1974, she was told by her supervisor to report to Personnel Manager Morales, who handed her a check or checks for pay due her (but not including July 8, although she had not been informed not to come in to work), together with a 199 She candidly avowed several seemingly trifling work "discrepancies" which had evoked supervisory displeasure, but none of which has been shown even to be reflected in any file or record. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination notice stating she was terminated for "poor work performance" (G.C. Exh. 52), although her work performance had never been criticized or questioned in any way; indeed, she had not even ever been absent or tardy. When she asked Morales the meaning of this he replied, "that he really did not know because those papers were sent from Harrison." Crediting the testimony of this impressive witness, uncontradicted by any line supervisor, I find that the reason assigned by Respondent for her termination was pretextuous, the real reason being her protected concerted activities on behalf of Distributive Workers District 65 and her refusal to join Teamsters Local 806. (24) Maria Gonzalez Maria J. Gonzalez (Gonzales) entered Respondent's employ as a production worker at its Jersey City factory on January 27, 1971, continuing there in that capacity until her termination without previous notification or intimation at the end of her workday on August 9, 1974 , over 3-1/2 years later, allegedly for "poor work performance," but in those 3-1/2 years she had received no criticism or adverse comment of any kind concerning her work or conduct. She was still another of the early petitioners for (G.C. Exh. 14), as well as card signers (G.C. Exh. 18) and dues-paying members (G.C. Exh. 15) of, Distributive Workers District 65; and she also wore its distinctive button at work and attended most of its many meetings. In March 1974, while working, she was told to go to the plant cafeteria , where she saw Teamsters Local 806 representatives seated at various tables. She was directed to the table where Vazquez and Ocana were seated; there, Ocana told her she was "in high esteem" and "should sign the card for the [Local ] 806." She declined to do so, stating that she had already signed a card for District 65. Before leaving on her vacation starting on July 22, however, she signed a Local 806 card presented to her by an emissary of Juan Vazquez with the message "so that [you ] would not be fired," and she did so because she has small children and did not want to risk losing her job. Subsequently, $ 10 was deducted from her pay for dues to Local 806, which, however, did nothing to protest or question her termination soon thereafter . On August 9, at the close of her workday, discovering that her timecard was not in the rack, she sought out her Supervisor Presutti, who told her, "layoff' and to return on the next working day (Monday) for her pay. In no way had he indicated, or did he indicate, that her work was less than satisfactory. To her knowledge, at the time of her termination many employees doing the same work as she, but junior to her, were not terminated. When she returned on Monday for her pay- check through the preceding Friday, after the guard had first denied her admission to the plant , she was also given a termination notice stating as the reason, "poor work performance" (G.C. Exh. 68) - translated for her by her son when she returned home. No line supervisor was produced to testify to any work discrepancy or shortcoming on the part of this employee , whose impressively delivered testimony concerning her work performance during her 3- 1/2 years of employment I credit. Upon the entire record, I find that the reason assigned by Respondent for her discharge was pretextuous, the real reason being her adherence to and protected concerted activities on behalf of Distributive Workers District 65 and her earlier refusals to affiliate with Teamsters Local 806. (25) Maria Lopez Maria Lopez worked for Respondent in its Jersey City factory from October 25 , 1971, for 2 years and 8 months until she was terminated on July 3, 1974, allegedly for "poor work performance" (G.C. Exh. 106). She did not testify here. Although she was an early member of District 65 (G.C. Exhs . 114 and 15), no activity beyond mere member- ship has been shown (she also apparently signed a card for Retail Clerks Local 888 ; G.C. Exh. 8); nor is there any showing as to the nature of her work performance while on the job. Under these circumstances, I am unable to determine whether her termination was for a reason violative of the Act, and I accordingly find that it has not been established by substantial evidence that her termina- tion was for a reason in violation of the Act. (26) Wilfredo Lorenzana Wilfredo Lorenzana (Lorenzano) worked as an order picker in Respondent's Jersey City plant for less than 5 months, from November 27, 1973, to April 19, 1974, when he was terminated, allegedly for "poor work performance" (G.C. Exh. 107), although Respondent's report to the New Jersey unemployment insurance authorities states "Lack of work . . . permanent." The circumstances of his employer- assisted enlistment into Teamsters Local 806 membership have already been described in a previous connection (supra). Subsequent to this, in mid-December 1973 (accord- ing to his testimony) or in January 1974 (according to his prehearing affidavit, Resp. Exh. 6), he signed a card for Distributive Workers District 65. In mid-January 1974, he demanded his Local 806 card back from Personnel Manag- er Morales, also stating to the latter that he had not authorized a continuing union dues deduction from his wages to that Union (Local 806). Morales informed him that was not possible because he could not work there without belonging to that Union (i.e., Local 806). Accord- ing to his testimony, Lorenzana the next day reported the matter to the Regional Office of the National Labor Relations Board. There is no indication of any protected concerted activity on Lorenzana's part other than his mere signing of a card for District 65 in December 1973 or January 1974; and no testimony regarding the quality of his work performance. Since his personnel file (G.C. Exh. 107) indicates he received two work warnings and further shows what appears to be an atypically poor attendance and punctuality record during his short 4-3/4-month tenure of employment, I am unable upon the basis of this record to say that his termination was not for the reason stated by Respondent in the personnel file entry, and I accordingly fmd that it has not been established by substantial evidence that his termination was for a reason violative of the Act. (27) Jose Maisonet Jose Maisonet worked in Respondent's Jersey City factory for about 5-1 /2 months, from November 13, 1973, to April 26, 1974, when he was terminated, allegedly for "poor performance" (G.C. Exh. 150) or for "poor produc- HARTZ MOUNTAIN CORP. tion," although Respondent's certificate to the New Jersey unemployment insurance authorities states "Lack of work ... permanent." As has already been described in another connection (supra), he signed a card for Teamsters Local 806 in January 1974 which was predated to November 27, 1973 by somebody other than him and he also signed a card for Distributive Workers District 65, according to his testimony, in February 1974. Also according to his testimo- ny, when he was terminated on April 26, 1974, he was told he was being "laid off" for a few weeks and would be among the first to be recalled. He has not been recalled to work. Upon the record as a whole, including slight indication of activity on behalf of District 65 other than mere membership therein and wearing its button,200 and the seemingly atypically long list of attendance defalcations disclosed by his personnel record considering his short term of employment, I cannot fairly say that the evidence presented preponderates in favor of a fording that his employment was not terminated for the reason advanced by Respondents in his personnel file. It is accordingly found that it has not been established by substantial credible evidence that he was terminated for a reason violative of the Act. (28) Lucia Malave Lucia Malave entered Respondent's employ on January 20, 1970, as a toy packer, remaining in her job in that capacity and also as a stocking filler and production worker until August 9, 1974, or a period of 4 years and 7-1/2 months, when she was precipitately terminated without notice at quitting time by Supervisor Presutti, who told her she was being laid off. When her husband picked up her paycheck on the next workday, it was accompanied by a termination notice stating she had been terminated for "poor work performance" (G.C. Exh. 56). Her testimony that her work performance had at no time been criticized, except for a minor matter testified to by her but not even reflected in her record, during her more than 4-1/2 years at the plant, is undisputed and borne out by her personnel record (G.C. Exh. 161). She had signed a District 65 card and paid dues in June 1973 (G.C. Exhs. 18 and 15) and had signed its petition in May (G.C. Exh. 14); she attended all of its meetings and openly took part in discussions concerning it in the plant. In March 1974 she was called to the plant cafeteria and told to sign a Teamsters Local 806 card or else "later on [you] would have problems with the company." She refused to do so. However, after her husband Pascual Malave had been discharged, allegedly for not signing a Local 806 card, she signed one, without dating it, and returned it to Ocana through her husband. There is a total absence of evidence to support Respondent's conclu- sory contention that "poor work performance" was the reason for her discharge. I ford that that "reason" was pretextuous and that the real reason for her discharge was her continued support for Distributive Workers District 65 and her initial refusal to join Teamsters Local 806. 200 He also testified that General Manager Feinberg told him, "If [you I want[ed] to keep [your ] job with the company [you] should remove the button " 201 Malave's personnel file also contains a July 25, 1974, letter - i.e, during the pendency of this hearing - from Local 806 counsel to 547 (29) Pascual Malave Pascual Malave, the husband of Lucia Malave, entered Respondent's employ on May 11, 1967, and continued there as a "floorboy" and as a machine operator and checker for over 7 years, until his precipitate termination at the end of the workday on May 31, 1974. He had signed a card for Distributive Workers District 65 around May or June 1973, attended substantially all of its many meetings, and openly discussed his interest in that Union around the plant. Around March 1974 he was directed during his working time to go to the plant cafeteria "to fill out the card for the [Local ] 806"; although he went there, and saw Local 806 Business Agent Gonzalez with Vazquez and Sanabria, he - as well as his wife, Lucia, who was also there - refused to sign. Although there had been no criticism of or fault found with his work during his more than 7 years at the plant, at the close of the workday on May 31, 1974, he was directed to go to the office of Personnel Manager Morales, where he was paid off through that day, and told by Morales that "[You] had an excellent work record in the company [and I do] not know why they [are] giving [you] layoff" and that "if [you ] would need a letter of recommen- dation, [I] would give it to [you]." He has at no time been given any explanation or reason, written or oral, for his discharge without notice after over 7 years of faithful service. On June 26, 1974, Malave returned to the plant and saw Gonzalez and Ocana outside the plant. Ocana told him to take a Local 806 card for his wife, Lucia, and have her sign it - with the date left blank - since she also was about to be fired and "would have the same problem that [you] have had," and also to sign a Local 806 card himself but to leave the date blank and he would get his job back. Malave did so. He is "absolutely positive" the date was June 26 because his nephew had bought a car the day before. He returned his wife Lucia's signed Local 806 card to Ocana, also with the date blank. His wife was, as shown above, discharged without notice after over 4-1/2 years of satisfactory service, following his discharge similarly with- out notice after over 7-1/2 years of satisfactory service. He was not rehired, nor was she. His personnel file (G.C. Exh. 153) contains an entry and an alleged termination notice - which he was never given - stating that he was terminated for "poor work performance." However, no work supervi- sor testified concerning his work performance and his personnel record is clear of even any suggestion of poor work performance. Notwithstanding this, his personnel file contains a copy of a form furnished by Respondent's personnel office to the New Jersey unemployment insur- ance office, dated June 18, 1974, stating that he was fired for "poor work performance." 201 I was much impressed with Malave's outstanding quality as a witness. No work supervisor testified to dispute his testimony, which I credit. And Respondent Vice President Kaye - who personally made the selection of employees to be terminated, allegedly on the basis of their personnel folders and discussions with supervisors - conceded at the hearing that not only was Respondent, demanding arbitration of Malave's discharge under the Local 806 collective agreement here in issue, with a copy to the New York state board of mediation. There is no indication here as to whether this was pursued. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there nothing in Malave's personnel folder that played a role in his termination, but he (Kaye) was also unable to recall any discussion whatsoever with anybody concerning Malave. As in the case of Malave's wife Lucia, there is not a scintilla of indication for his discharge under the circum- stances described, other than his participation in concerted protected activities for District 65 and his initial refusal to sign up with Local 806 . I find those were the true reasons for his discharge, not the fictitious and pretextuous ground now assigned. (30) Elisa Martinez Elisa Martinez entered Respondent's employ on April 6, 1972, continuing there as a production worker until July 19, 1974, when, according to notations in her personnel file (G.C. Exh. 108), she was terminated for "poor work performance." Although she signed the petition for District 65 on May 16 (G.C. Exh. 14) and signed a card for that Union on May 25, 1973 (G.C. Exh. 18), there is nothing to indicate any other activity on her part in that or any other Union, nor, since she failed to testify, is there anything to indicate the circumstances under which she was terminated. Her personnel file shows she sustained an industrial injury in the plant on May 1, 1974, and an arguably comparatively poor attendance record prior to that in 1974 as well as in 1973. Since upon the record as a whole and in the absence of any testimony on her part the conclusion that her termination was for engaging in protected concerted activities would be unwarranted, it is found that it has not been established by substantial credible evidence that her termination was for a reason violative of the Act. (31) Alejandrina Nieves Alejandrina Nieves entered Respondent's employ on October 25, 1971, continuing there in various work capaci- ties without criticism, with only a single "exception",202 until her termination on August 22, 1974, allegedly for "poor work performance" according to her termination slip (G.C. Exh. 79). Ms. Nieves was an activist on behalf of District 65 - she not only was an early adherent, petitioner (G.C. Exh. 14), joiner (G.C. Exh. 18), and dues payer (G.C. Exh. 15), but she also attended 15 to 18 or substantially all of its meetings, she openly wore its distinguishing button at work, and she openly proselyted other employees on its behalf in the plant cafeteria. In February 1974, while at work, she was directed to go to the plant cafeteria, where she was asked to sign a Teamsters Local 806 card. When she refused, she was told to write her name and clock number on a piece of paper. When $10 was deducted from her paycheck the following week, she asked her supervisor, Presutti, why, since she had not signed up with Local 806. However, nothing was done about it. When , the following month, another $10 was deducted from her pay, this time she visited Personnel Manager Morales and complained to him, asking him how could money be deducted from her 202 August 4, 1974 - 3 weeks before her termination - when she received a "warning slip" for going to Plant Manager Petrera's office "without authorization" (G.C. Exh. 78A). Although she signed receiving this, she does not read English. Ms. Nieves was one of eight employees receiving such warning slips for going to Petrera's office to request a fan in view of the intense heat in their area of the plant on that day. Respondent's issuance of pay since she had not signed for Local 806. Morales said he would refer the matter to "Harrison" (i.e., company headquarters, where Vice President Kaye was located) to "see if they could find a card of [yours ]." Again nothii happened. When the next month another $10 was deducted from her pay - for the third time, she returned to Morales and again complained, this time firmly. Morales' only answer was that he had "nothing to do with that" and he referred her to "the Committee of the Union." She then went to Vazquez (the Local 806 shop steward), who demanded "the three receipts" from her and said he would refer the matter to Local 806 Representative Gonzalez for "investigation." She again heard nothing about it, but the next month a fourth $10 was deducted from her pay. Upon her return from a week's sick leave in August, she was terminated without notice at the end of her first day back, her pay being accompanied by a termination slip (in English, which she - as most other employees - could not read) stating "poor work performance." She had worked there for almost 3 years, with no criticism of her work as such.20 The testimony of Ms. Nieves, an impressively credible witness, is undisputed by any work supervisor. No Local 806 card or dues-checkoff authorization has been produced here for Ms. Nieves. Crediting her testimony, I find that the alleged ground for her discharge was pretextu- ous, and that the real reason was her protected concerted activities on behalf of Distributive Workers District 65 and her refusal to sign a card for Teamsters Local 806. (32) Marta Ocasio Marta (Maria) M. Ocasio was employed in Respondent's Jersey City factory as a machine operator - also under Supervisor Presutti - from February 19 to April 19, 1974, when she was terminated. During her 2 months of employ- ment her work was at no time criticized; on the contrary, it was many times openly praised by her supervisor, Presutti, who does not here dispute this. Although Ms. Ocasio never signed a District 65 authorization card, she openly ex- pressed opinions favorable to that Union in the plant; I credit her testimony that, after she was hired in mid- February 1974, the only reason she did not sign a District 65 card was that "I was waiting to sign it for the elections ... between the [Local] 806 and the [District] 65.11204 On April 18, 1974, 1 day before her termination, she was instructed by her supervisor, Presutti, to go to the plant cafeteria, where Alex Ocana presented her with a Local 806 card to sign. She brusquely refused. The next day (April 19) she (with some other employees) was again told to go to the cafeteria. This time, Personnel Manager Morales informed her (and the others) that it was "a very regretful thing ... but [you are] being given layoff ... a temporary layoff ... the reason was a shortage of working material ... it might take two to three weeks and that as soon as it would be received, [you] would be called back." With her paycheck, she received a slip stating about the same thing these warning slips to these employees, including Ms. Nieves, under these circumstances, constituting the basis for the final segment of the complaint as amended at the hearing, is discussed infra, II, B, 4. 203 See fn . 202, supra. 2* It is not to be assumed that the factory workers here are savants of labor law. HARTZ MOUNTAIN CORP. 549 (G.C. Exh. 72). However, she has not been recalled (although a large number of new employees have been hired), and in its amended answer Respondent now alleges that she was "discharged." I fully credit the testimony of Ms. Ocasio, who demonstrated herself to be a witness of high quality, and whose testimony is not disputed by any work supervisor.205 Although she only worked for Respon- dent for 2 months and had not joined District 65 (she was an open and avowed supporter thereof), I am not satisfied upon the record as a whole - including the shifting "reason" assigned for her termination, the failure to recall her, and the unexplained failure to produce any work supervisor to counter her testimony - that the real reason for Ms. Ocasio's precipitate termination was her refusal on the day before that termination to sign a Teamsters Local 806 card after being directed by Supervisor Presutti (who also does not dispute this) to go to the plant cafeteria for that purpose. I so fmd. (33) Virginia Otero Virginia Otero entered Respondent's employ on April 17, 1967, at its Jersey City factory, and continued to work there in various production assignments until her precipitate termination over 7 years later, without notice about 15 minutes before quitting time on June 28, 1974. In her 7 years and 2 months of employment with Respondent, she had received no work criticism whatsoever, other than a lateness warning soon after her employment started. Ms. Otero was an early joiner of Distributive Workers Local 65, attended all of its many meetings, openly wore its button in the plant, and openly solicited on its behalf in the plant during lunch and other work break time. After she had refused to sign a Teamsters Local 806 card for Vazquez in November or December 1973, during worktime in March 1974 she was instructed, from a hand-carried list, to go to the plant cafeteria, where she was told she "had to sign a [Local 806] card because it will be such a pity if [you are] dismissed after so many years that [you have] been working there." She did not sign. On June 28, 1974, at or about 15 minutes before her workday was over, Supervisor Presutti told her to go to the personnel office, where Personnel Manager Morales handed her a paycheck or checks for her pay through that day, together with a termination slip. She asked Morales why she was being let go after 7 years of employment. Morales answered that he did not know, did not even suggest poor work or any other reason, but remarked that it "was a problem from Harrison." Her termination slip states "poor work performance" (G.C. Exh. 48). Crediting Ms. Otero's testimony, and considering Respondent's unexplained failure to produce as a witness any work supervisor of hers,206 and upon the record as a whole including this employee's personnel folder (G.C. Exh. 154), I fmd that Respondent's alleged reason for terminating Ms. Otero after over 7 years of faithful and efficient job performance, was false and pretextuous, and that the real reason for that discharge was her protected concerted District 65 activities and her failure to join Teamsters Local 806. (34) Cecilia Pacheco Cecilia Pacheco (Pachaco) entered Respondent's employ on September 28, 1970, continuing there in various produc- tion jobs for over 4 years until precipitately discharged without notice at the end of her workday on August 9, 1974. Ms. Pacheco was among the early and consistent advocates of Distributive Workers District 65 - including petition signing (G.C. Exh. 14), card signing (G.C. Exh. 18), and dues paying (G.C. Exh. 15), openly wearing its distinguish- ing button in the plant, attending all of its many meetings, and speaking for it among plant employees. Like other employees here in issue, she at first refused to sign a Teamsters Local 806 card, even when directed to go to the plant cafeteria for that purpose; in July 1974, however, amidst general talk at the plant that District 65 adherents were being discharged, she signed a Local 806 card.207 On August 9 (Friday) she was told by Supervisor Presutti, from a list in his hand, that she was 'laid off' and to return on Monday for her paycheck. When she returned on that Monday, August 12, she was given a paycheck through August 9, together with a termination slip citing "poor work performance" as the reason (G.C. Exh. 87). She was unable to read or understand it, but her husband explained it to her later. Her testimony that at no time during her 4 years on the job was her work in any way criticized in any way, in writing or orally, is undisputed by any work supervisor, is, borne out by her personnel record (G.C. Fxh. 163), and is credited. Upon the record as a whole, I am convinced in this instance also and accordingly fmd that the reason advanced by Respondent for its termination of Cecilia Pacheco was pretextuous, and that the real reason was her Distributive Workers District 65 protected concerted activi- ties and her initial refusal to join Teamsters Local 806. (35) Elsa Pacheco Elsa Pacheco, daughter-in-law of Cecilia Pacheco who was terminated on August 9, 1974, and whose case has just been discussed, was employed by Respondent as a produc- tion worker from February 24, 1970, for 4-1/2 years until her precipitate discharge without notice as of August 21, 205 For example, without explanation Respondent Supervisor Presutti - the work supervisor of many of the terminated employees, prominently mentioned by them, as has already been noted and will be further seen - was not produced to testify so as to controvert their testimony concerning the absence of any criticism of their work , or otherwise in any way to dispute their testimony. 206 Concerning Ms. Otero, Respondent Vice President Kaye - who allegedly personally decided which employees here were to be terminated - swore that "I looked at all of the files once [only] ... sometime in April" and never thereafter. It is noted, however, that Ms. Otero was terminated at the end ofJune. Kaye did not demonstrate a memory of this degree of acuity during his testimonial performance at the hearing . Kaye also testified that the decisive factor in the discharge of any employee was not the employee's personnel file, but what Petrera or Oest told him; without explanation, however, Respondent chose not to produce Petrera or Oest to testify, and Kaye swore he was unable to remember what either of them told him concerning any employee. 207 Like other employee witnesses, Ms. Pacheco testified that she did not even know at this time that her employer had entered into a contract with Local 806. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1974, allegedly for "poor work performance" (G.C. Exh. 123).208 Her testimony is undisputed that, except for an incident about 2 years ago when she was eating near her machine during breaktime, she had received no criticism of any kind concerning her work during her 4-1/2 years of employment with Respondent. She had joined Distributive Workers District 65 in May 1973 soon after it started its organizational efforts in the Jersey City plant (G.C. Exhs. 19 and 15), had attended all of its meetings, had actively discussed its affairs with fellow employees throughout the plant, and had openly worn its identifying button while at work; her affiliation and sympathies with District 65 were unconcealed and well known. On no less than three occasions in the plant she was pressed, but refused, to affiliate with Teamsters Local 806. In March 1974 a group of employees, of which she was one, was instructed by Respondent Foreman Presutti 208 to go to the plant cafete- ria, where Local 806 spokesman Eddie Sanabria informed them that they "had to sign the card [for Local 806 or you] would be soon dismissed and [you] would have no right to collect unemployment." She nevertheless refused to sign a card for Local 806. When she was again told to go to the cafeteria, about 2 weeks later, for the same purpose, this time she declined even to go. Around 3 weeks later she again refused to go to the cafeteria for the same indicated purpose. In July (1974), however, in a context of a discussion of layoffs, she finally signed a Local 806 card. There is no credible proof whatsoever, including no testimony by any line supervisor, that Elsa Pacheco's work performance was "poor" or in any other way unsatisfacto- ry. In the absence of such proof, General Counsel having also in this instance as well as in the others here involved made out a prima facie case, and considering this employ- ee's clearly expressed preferences for Distributive Workers District 65 coupled with her distaste for Teamsters Local 806, I find, within the context ofthe record as a whole, that Respondent's alleged reason for her summary discharge after a 4-1/2-year record of satisfactory work performance was pretextuous and that the real reason was her continued affiliation with and activities on behalf of Distributive Workers District 65, and her initial refusals to join Teamsters Local 806. (36) Alida Pagan Alida Pagan entered Respondent's employ in early January 1974 as a second-floor machine operator, continu- ing to work there until her termination without notice on April 20, 1974. Her testimony is undisputed that at no time in any way was there any criticism of her work . She signed a Distributive Workers District 65 Union card in March 1974, attended its meetings, and openly wore its distinctive button in the plant. Her son, Luis Ramos - also suddenly discharged, on April 26, 1974, within a week after his 208 Elsa Pacheco's termination of employment notice (G.C. Exh. 123), giving as "Reason for Termination.... Poor Work Performance," is dated August 22, 1974, I day after her discharge as of August 21, when she was absent. It is not claimed that this absence had anything to do with her discharge. 209 This, as well as other employees', testimony concerning Respondent Supervisor Presutti - who functioned under General Manager Feinberg's immediate subordinate, Production Manager Ernest Oest - is uncontrovert- ed since, for unexplained reasons, Respondent chose not to produce Presutti (or Oest) to testify mother, as shown below - also worked at the Jersey City plant. In March (1974), shortly before her discharge, Alida Pagan was told by Teamsters Local 806 spokesman Joaquin Ocana in the plant cafeteria to sign a Local 806 card which he (Ocana) had filled out for her. After she at first demurred because she is unable to read English and "I do not know what this is about," nevertheless "I would say he forced me to sign it . . . Alex . . . Joaquin Ocana." 210 When she later reported the incident to her son, Luis Ramos, he retrieved the card from Ocana and tore it up. Shortly thereafter, on April 30, 1974, she was taken to the office of Personnel Manager Morales, who handed her a paycheck for pay through that day and told her that "work was very slow. At no time has she received any written notice of termina- tion, nor has she ever been recalled to work although many new employees have been hired . Considering, within the frame of reference of the record as a whole , her openly demonstrated voluntary affiliation with and sympathies for Distributive Workers District 65, her described disaffilia- tion from her induced "membership" in Teamsters Local 806, her unblemished though brief work record, and Respondent's failure to recall her to work while at the same time hiring many new employees of her category, I find that the reason assigned for her termination was pretextuous, the true reason being her continued attachment to Distribu- tive Workers District 65 and her refusal to join Teamsters Local 806. (37) Daisy Pagan Hired on February 5, 1969 , Daisy Pagan continued in Respondent's employ in various work capacities under Supervisor Presutti, for over 5-1/2 years until her summary discharge without advance notice at the end of her workday on August 23,1974, when she was paid off through that day with a termination slip stating "poor work performance" (G.C. Exh. 125). Not only had she been an early petitioner on behalf of (G.C. Exh. 14) and joiner and dues-paying member of (G.C. Exhs. 18 and 15), Distributive Workers District 65, but she was one of its chief promoters and activists - she was a member of its organizing or "Leadership" committee with Concepcion Pastrana, regu- larly attended meetings, displayed its distinctive button at work, and continuously proselyted fellow employees to join that Union. She repeatedly refused to sign a card for Teamsters Local 806. Her work record during her 5-1/2- year tenure of employment appears to have been at least satisfactory overall,211 and Respondent has failed to come forward with any showing to the contrary through either any line supervisor familiar with her work or even through her personnel file. Under all of the circumstances and upon the record as a whole, considering the high degree of her activities on behalf of employer-disfavored Distributive Workers District 65 and her opposition to employer-fa- 210 After first denying recollection of whether he asked Ms. Pagan to sign a Local 806 card, and following much equivocation , Ocana conceded he did remember it but that he was allegedly unable to remember the circumstanc- es, including whether it occurred during working time. 211 Although she conceded receiving a number of "warnings" for failure to include her identifying number in boxes while she worked as a packer, her testimony is uncontradicted that the last such was around 2 years prior to her termination. HARTZ MOUNTAIN CORP. 551 vored Teamsters Local 806, and Respondent's unexplained failure to produce credible proof such as through a line supervisor that her work performance was really poor or unsatisfactory, I find that that reason was pretextuous and that the real reason for Respondent 's summary discharge of this 5-1/2-year employee was her activism on behalf of District 65 and her refusal to join Teamsters Local 806. (38) Enriqueta Pagan Enriqueta (Enricata) Pagan entered Respondent's em- ploy on April 27, 1967 (G.C. Exh. 170), as a packer in its Jersey City factory and continued there in various capaci- ties, including machine operator, for her final 4-1/2 - 5 years under Foreman Presutti, for a total of 7-1/4 years until her summary discharge without advance notice at the end of her workday on August 9, 1974. Her testimony is uncontradicted that, with the exception of one or two incidents - unreflected in her personnel file - the latest in early 1973, involving her going to the ladies' room while another employee was there, which was forbidden - no dissatisfaction has been expressed with her work perfor- mance. She was an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65, attended almost all of its many meetings , and openly discussed its affairs with fellow employees at the plant. At the end of March 1974, while at work - with some other females, who had signed cards for Teamsters Local 806 and who, although all junior to her, continued to be employed at the plant after she was terminated - she was instructed by Marta Toro, a steward for Local 806, to go to the plant cafeteria, where she saw at several tables the leaders of Local 806 activity, including Juan Vazquez and Joaquin Ocana, who asked her to sign a Local 806 card. When she refused, she was asked to write her name and timeclock number on a sheet of paper, and Ocana independently made a note of her name. At 4:30 p.m. quitting time on Friday,212 August 9, 1974, discovering her timecard was not in the timecard rack, she sought out Supervisor Presutti, who told her he had removed the card and that "You are being laid off. Come back Monday. You will get your check." When she returned on Monday (August 12) she was given a check for August 8 and 9 (Thursday and Friday) and a termination slip (G.C. Exh. 55) stating the reason for her discharge was "poor work performance." She is unable to read English and was told that Personnel Manager Morales was not in. While her personnel record (G.C. Exh. 170) indicates many absences due to illness, these were all seemingly excused, and this was not assigned by Respon- dent as the reason for her termination, nor does that record compare unfavorably with those of other employees junior to her who were not terminated by Respondent or who have been retained in its employ (e.g., G.C. Exh. 116, Dorothy Zimmerman; G.C. Exh. 117, Juan Vazquez; G.C. Exh. 118, Eddie Sanabria; G.C. Exh. 119, Joaquin Ocana or "Alex Beltran." See also, generally, fn. 198, supra). No 212 Friday is not the end of the workweek at Respondent's Jersey City plant. The workweek there runs from Thursday through Wednesday. 213 According to Ms Pelhccia, of the approximately 14 members of that committee, only I - Concepcion Pastrana, its chairman - still remained in Respondent's employ at the time of this hearing. credible proof, including no testimony of any line supervi- sor, has been adduced by Respondent to overcome General Counsel's prima facie case here, nor to show that Enriqueta Pagan's work performance was "poor" as stated in its notice of termination, and her credited uncontroverted testimony establishes the contrary. Within the referential framework of the record as a whole, I find that the reason assigned by Respondent for her discharge was pretextuous, and that the real reason was her protected concerted activities on behalf of Distributive Workers District 65 coupled with her failure to join Teamsters Local 806 under the circumstances described. (39) Gladys Pelliccia Gladys Pelliccia entered Respondent's employ on June 6, 1972, continuing there as a machine operator and as a packer until she was summarily terminated without previ- ous notice at the end of her workday on Friday, April 26, 1974. Except for an admonition soon after she started work, for stopping work after the whistle had sounded - she was unaware that the signal that work was over was a second whistle - her work performance has never in any way been criticized, according to her uncontroverted credited testi- mony. She was not only an early joiner of Distributive Workers District 65 (G.C. Exhs. 18 and 15), but has always been an active member of its organizing comntittee.213 When Emerson Peneherera - one of Juan Vazquez lieutenants in Teamsters Local 806 plant recruitment activities - asked her in late November or early December (1973) to sign up with Local 806, she refused and has continued to refuse to do so. Just before quitting time on April 26, 1974, a Friday - as already stated, the plant payroll workweek ends on Wednesday - Foreman Presutti instructed her to go to the plant cafeteria, where she was informed by Personnel Manager Morales that she was being "laid off" because "there was not much material." She asked Morales if it was in any way related to the Union. Morales' reply was, "This I cannot answer" and that "Possibly [you] would be [re]called." When she said she "knew that was something from the union ," Morales was silent. Although a certification furnished by Respondent to the New Jersey unemployment authorities states - consis- tent with what Personnel Manager Morales told Ms. Pelliccia - that the reason for her termination was "lack of work" (G.C. Exh. 151), notwithstanding this the termina- tion notification for her in her personnel folder states the reason was "poor work performance" - which was in no way ever stated or suggested to her, and which is not established by any credited testimony including the testi- mony of any line supervisor familiar with her work.214 She has never been recalled to work, although Respondent has hired new employees in her work areas. Giving the various factors described the weight they appear to deserve, within the frame of reference of the record as a whole, and considering Respondent's inconsistent reasons advanced for Ms. Pelliccia's "layoff" or "discharge" and its failure to 214 While Ms. Pelliccia's attendance record shows absences including illnesses, these were seemingly all excused and are on a comparative basis unremarkable. Moreover, these did not form the predicate for her layoff or discharge. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recall her while hiring new employees, I find that the reasons assigned by Respondent for her termination were pretextuous, and that the real reason was her activism on behalf of Distributive Workers District 65 and her failure to affiliate with Teamsters Local 806. (40) Eloisa Perez Until her summary discharge without preliminary notice, at the end of her workday on Thursday, August 15, 1974, Eloisa (Aloisa) Perez had worked for Respondent as a machine operator for almost 6 years, since her original hire on October 7, 1968. The record presented - with no testimony by any line supervisor familiar with her work - indicates that her work was essentially satisfactory.215 She had been an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65. In March 1974 Foreman Presutti instructed her to go to the plant cafeteria, where she was in effect given the choice of joining Teamsters Local 806 or losing her job. She refused to join Local 806, remarking that she could not be laid off after 6 years, but that in the event she were she would have to be given unemployment insurance - evoking the response that in that case she would have to "fight to get it." She was indeed subsequently told by Foreman Presutti, at or about 10 minutes before quitting time on Thursday, August 15 (1974), that she was receiving a "layoff," although the termination slip he handed her stated she was "terminated" for "poor work performance." Upon the entire record, I find that the reason assigned by Respondent for the termination of Eloisa Perez was pretextuous, the real reason being her continued loyal adherence to Distributive Work- ers District 65 and her refusal to join Teamsters Local 806. (41) Luis Ramos Luis Enrique Ramos worked for Respondent as an order picker from October 27, 1973, until his summary termina- tion without advance notification at the end of the workday on April 26, 1974, less than a week after the similar termination of his mother, Alida Pagan, whose case has already been considered (supra). Ramos' testimony is uncontroverted that at no time during his employment with Respondent had dissatisfaction of any kind been expressed over his work or conduct.216 He - as did his mother later - signed a collective-bargaining representational authori- zation card for Distributive Workers District 65 in or around December 1973. At or around the end of December he was urged by Supervisor Santiago to sign a Teamsters Local 806 card to assure his work continuance at the plant, but he did not do so. In April 1974, a few days before his termination, he was instructed on working time by his forelady to go to the plant cafeteria. He did so. There he observed Juan Vazquez, Joaquin Ocana, Eddie Sanabria, and "an American lady." Ocana informed him that he 215 While, to her credit, Ms. Perez candidly volunteered on direct examination that there had been some more recent (i.e., 1974) supervisory dissatisfaction with the quality of her production, its nature was in no way testified to by any line supervisor familiar with her work, nor did Respondent produce her personnel file to indicate they were even in any way reflected in her work record. In view of her long and otherwise apparently wholly satisfactory tenure in Respondent's plant, I am unable to regard these - (Ramos) had to sign a Local 806 card on pain of being "dismissed." Ramos refused to sign and returned to his work. A few days later, on April 26 (1974), just before quitting time, Supervisor Presutti directed him to go to the cafeteria, where Personnel Manager Morales informed him and a few others that they were being released "temporarily for . . . about two or three weeks" pending the Company's receipt of supplies ordered but not yet delivered, and that they would then be recalled. He was given a paycheck and a slip stating, "We regret that we have to give you lay off due to raw material shortage, shipping and transportation problem. We expect that this situation will be corrected soon." Notwithstanding this written confirmation of what he was told orally by Respondent's personnel manager, he has not been recalled. And, although Respondent' s assis- tant personnel manager on May 8 (1974) certified to the New Jersey unemployment insurance authorities that Ramos had been separated for "lack of work," Respon- dent's same official on June 25 (1974) certified to the New York City Department of Social Services that Ramos' termination was because of "poor work performance" (G.C. Exh. 167). Under these circumstances, considering Respondent's inconsistent assigned reasons for its termina- tion of Ramos, a loyal District 65 member and an employee with a good work record summarily terminated a few days after he refused to join Teamsters Local 806, with the assurance of recall upon receipt of an awaited merchandise delivery - an assurance totally unfulfilled - I find, upon the entire record, that the reasons assigned by Respondent for his termination were pretextuous, and that the true reason was his continuous loyalty to Distributive Workers District 65 and his refusal to join Teamsters Local 806. (42) Amalia Rivera Amalia Rivera entered Respondent's employ as a packer on May 11, 1972, continuing in the Jersey City plant in various capacities on the first and second floors until summarily terminated at the close of her workday on April 26, 1974. Her testimony is uncontroverted that at no time during her 2 years of employment has her work perfor- mance in any way been criticized.217 As in the case of the other employees, she had received periodic wage increases during the term of her employment. She was an early petitioner for (G.C. Exh. 14) and joiner of (G.C. Exh. 18) Distributive Workers District 65, attended its meetings, and openly discussed its affairs with other plant employees. Around March 1974, during worktime she was told by Local 806 Shop Steward Marta Toro in the presence of Ms. Rivera's supervisor, Robinson, and thereupon expressly authorized by the latter to report to the plant cafeteria, where she joined other employees who were met by Teamsters Local 806 representatives including Joaquin Ocana and Emerson Peneherera, who asked her to sign a card for Local 806. She refused. At the end of the day on whatever they were -as constituting the basis for her discharge. 216 While, to be sure, his personnel record (G.C. Exh. 167) is imperfect, it is comparatively unexceptional . See fn. 198, supra. 217 As with other employees in this plant, while her attendance record is seemingly quite spotty by absolute standards, placed alongside records of other employees who were not terminated it appears unexceptional. HARTZ MOUNTAIN CORP. 553 April 26 (1974), Supervisor Presutti instructed her to report to the cafeteria, where she saw fellow employee Gladys Pelliccia (supra), another employee, and Joaquin Ocana, together with General Manager Feinberg and Personnel Manager Morales. Morales handed her a paycheck through that day with a letter stating, "We regret that we have to give you lay off due to raw material shortage , shipping and transportation problem. We expect that this situation will be corrected soon. Thank you." Morales reiterated this orally when Ms . Rivera asked him why she was being laid off. However, notwithstanding this statement in both written and oral form, two termination notices (April 29 and May 3) in her personnel folder similarly confirming that she was being "laid off" for "lack of work" or "lack of material," a certification to the New Jersey unemployment insurance authorities that her separation was due to "lack of work," and the further notation in her personnel folder "4/26/74 Laid Off - Lack of Material" (G.C. Exh. 152), at no time has she been recalled to work, although new employees in her areas of competence have been hired. Under all of these circumstances and upon the record as a whole, I find that the reason assigned by Respondent for its layoff or termination of Amalia Rivera was pretextuous, the real reason being its desire to rid itself of a Distributive Workers District 65 loyal adherent who refused to become affiliated with Teamsters Local 806. (43) Lydia M. Rivera Lydia M. Rivera worked in Respondent's Jersey City factory in various capacities for 6- 1/2 years, from February 1968 until her summary discharge on August 16, 1974, by telegram while on vacation. Except for a single and seemingly trifling (and by no means unparalleled) incident relating to an unaffixed number on a box , which her uncontroverted testimony establishes did not involve her, there was no expression of employer dissatisfaction with her work during her 6-1/2 years of employment in the factory. She was also an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65, and attended its meetings ; she also at no time affiliated with Teamsters Local 806. Before going on vacation on July 29, 1974, she was asked by Supervisor Presutti, "Which Union do you belong to?" She replied that it was District 65. On August 16, 3 days before she was due back from her vacation, she received a telegram stating, "Effective August 16th you are terminated as employee of this company" (G.C. Exh. 84). When she returned on August 19, she was given a check and a termination notice stating she had been discharged for "poor work performance" (G.C. Exh. 85). She asked Personnel Manager Morales to explain the meaning of "poor work performance" after 6-1/2 years on the job with her record. Personnel Manager Morales answered that he had nothing to do with it, that it was the Harrison main office's doing, and that he was "very sorry, I [Morales] can't do anything about it . It doesn't come from me." When she asked if she should present the termination notice to the unemployment insurance authorities, Morales replied that she did not have to. Not only was the testimony of Lydia Rivera, a most impressive witness, uncontradicted, but she was not even cross-examined . Upon the record as a whole, I find that the reason assigned by Respondent for her termination was pretextuous, its real reason being to rid itself of yet another Distributive Workers District 65 loyal adherent who refused to become affiliated with Teamsters Local 806. (44) Mercedes Rivera Mercedes Rivera was employed in Respondent's Jersey City factory in various production capacities from April 27, 1967, for over 7 years until her summary discharge, without notice, 10 minutes before the close of her workday, at 4:20 p.m. on May 10, 1974. She was not only an early joiner (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of Distributive Workers District 65, but also a member of its organizational committee and one of its mainstay support- ers, advocates, and spokesmen of that Union's adherents and followers in Respondent's plant. Loyally dedicated to that Union to "the end," she was among its stalwart defenders at the November 16, 1973, meeting at the home of Concepcion Pastrana - described in another connection in an earlier portion of this Decision - at which (according to corroborated credited testimony of Ms. Rivera) Juan Vazquez announced that after meeting "with Mr. Feinberg and the bosses" they had "told him [Vazquez ] to look for another union, any other kind of union, but not the three eights [i.e., Retail Clerks Local 8881 and the [Distributive Workers District ] 65. Because they would never accept the three eights or the 65"; and Vazquez thereupon split off from the employees' committee and began actively prose- lyting to install Teamsters Local 806, with which Mercedes Rivera steadfastly refused to associate herself . Without previous notice or intimation, at 10 minutes before quitting time on May 10, 1974, Supervisor Presutti instructed Mercedes Rivera to report to Personnel Manager Morales' office, without telling her why. She did so. With only the two of them there, Morales handed her a final paycheck and informed her, in Spanish, that she was being "laid off." Since she had to catch the bus home, there was no time to ask questions, but she returned on the next workday (Monday) and asked Morales the reason for her "layoff." Morales answered that the decision was not his, but "from Harrison" (company headquarters); and he was merely carrying out orders received from there; he knew she had been employed in the plant for 7 years and was a good worker ; it was due to scarcity of work. When Ms. Rivera said that her seniority should be considered, since employ- ees employed there for only a few months had not been laid off, Morales fell silent. On both occasions (Monday and preceding Friday) the English expression "layoff" was used during running Spanish speech . At no time did Morales so much as suggest there had been any dissatisfaction with the work of Mercedes Rivera; on the contrary, he praised her as "a good worker." At no time did Morales indicate she was being discharged . At no time during her 7 years of employment had her work been criticized in any way. Her personnel folder (G.C. Exh. 155) is singularly excellent and clean by any standard. When she was thus "laid off," she asked Morales for a termination slip, but he declined to supply her one, stating he would notify the unemployment insurance authorities directly . Nevertheless, at no time has she been recalled although numerous new employees have 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been hired, and a termination slip appearing in her personnel folder as well as Respondent's personnel office's subsequent May 30, 1974, certification to the New Jersey unemployment insurance authorities assigns as the reason for her termination, "poor performance." No work supervi- sor was produced here to testify to any such thing, or, indeed, to anything adverse to Mercedes Rivera. Upon the record as a whole, I unqualifiedly reject Respondent's suggested reason or reasons for her termination as a pure hoax and fabrication, spuriously perpetrated out of whole cloth, and find that the true reason was her leadership and activism on behalf of Distributive Workers District 65 and her refusal to abandon that Union and the fellow workers she represented and to affiliate with Teamsters Local 806. (45) Rosa M. Rivera Rosa M. Rivera worked in Respondent's Jersey City plant in various production capacities for over 6 years, from July 22, 1968, until her summary discharge without previ- ous notice at the end of her workday on August 23, 1974. During her 6-year tenure she had received no work criticisms, written or oral, other than a 3-day suspension in 1972 involving an altercation in which she was - according to her uncontradicted testimony - threatened by another employee, and a warning she collected in February 1974 for taking a drink of water. She was another early joiner (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of Distributive Workers District 65. In the spring of 1974, while working, she was directed by Respondent Supervisor Presutti to report to the plant cafeteria, where Teamsters Local 806 Spokesman Emerson Peneherera and an uniden- tified female advised her not to permit herself to "be led by anybody," but to sign a Local 806 card. She refused to sign. Thereafter, at the close of work on August 23 (1974), discovering her timecard missing from the rack , she was without previous notice or intimation paid off through that day and handed a paper, which her husband at home later translated for her as a termination for poor work perfor- mance. Her credited testimony that at no time - with the foregoing possible "exceptions" - had her work perfor- mance been criticized, is uncontroverted. Within the context of the record as a whole, including her credited testimony and Respondent's unexplained failure to pro- duce any line supervisor familiar with her work to testify and establish that her "work performance" was in fact "poor," I find that the reason assigned by Respondent for its summary discharge of this 6-year employee with a good work record was pretextuous , the real reason being her continued adherence to Distributive Workers District 65 and her refusal to affiliate with Teamsters Local 806. (46) Damiana Ruiz Damiana Ruiz was employed by Respondent for about 7- 1/2 years, commencing January 23, 1967, as a machine operator, prior to her summary discharge without notice at the end of her workday on June 28, 1974. An early petitioner for District 65 (G.C. Exh. 14), she was also an early card signer (G.C. Exh. 18) and dues-paying member 218 It is reminiscent of the transfer - following participation in protected activity - of a small-statured worker, who had been performing satisfactori- ly for some time on a machine, to another machine with a handle too high for him to reach or manipulate , and which when operated tended to whisk him (G.C. Exh. 15) of that Union, and she attended its meetings and made her sympathies for District 65 well known among plant employees. When, in March or April 1974, she was directed during worktime to go to the plant cafeteria, and Teamsters Local 806 spokesman Ocana - with Juan Vazquez and Eddie Sanabria - there informed her (on company worktime) that she "had to sign a card for the Local 806, that if not, I would be dismissed," she refused. For no known or explained reason, on June 27 (1974) she was replaced on her machine - which she had been operating satisfactorily for many years - by another employee considerably junior to her at the plant, and assigned to another machine elsewhere, with which she was totally unfamiliar. On the new machine she was required to place three artificial, "sticky" fish replicas simultaneously or with extreme speed on a depressed "plate" over which a plastic "blister" was emplaced upon a card, on a fast moving conveyor belt mechanism involving a 10-person operation fabricating animal food or toys. With no previous work criticism during her 7-1/2 years of employment, within 1 day after she was transferred to this new operation - that is, on June 28 - she was haled to the office by Supervisor Presutti to explain why she could not manipu- late the three "fish" with a single movement or at the same time. Presutti left her there with General Manager Fein- berg, Personnel Manager Morales, and Teamsters Local 806 Chief Shop Steward Juan Vazquez. She suggested to Vazquez in Spanish that perhaps if some sort of spray were used on the "fish" it might be possible to grasp and release three of them simultaneously or with sufficient speed into the "plate" for "blistering" onto the card. This suggestion was adopted, enabling her from then on - approximately 3 p.m. - to handle three "fish" simultaneously. Nevertheless, at 4:30 she was told to report to Personnel Manager Morales' office, where, without conversation, she was handed a check and a termination slip stating she had been terminated for "poor work performance" (G.C. Exh. 43). She had herself never been required to place, nor had she placed, -nor had she ever observed any other person place, as many as three "fish" of this type on a card or "plate" simultaneously or within the time available on an assembly line operating at this speed. Indeed, although one of her supervisors (whom she named - and who was not produced by Respondent to dispute her) himself indicated it could not be done, she nevertheless succeeded within a short time in accomplishing this feat after the "fish" were sprayed as she had suggested, to eliminate their "sticki- ness." At the same time, other personnel on the assembly line, to which she was newly assigned to accomplish the aforedescribed task, were being required to place only two "fish" on the "plate," Ms. Ruiz was required to place three on the "plate." The entire situation, including her unex- plained transfer for no apparent reason, and the newly assigned feat which she was expected to perform, and her short-fire demise and dismissal after 7-1/2 years of satisfac- tory work, smacks strongly of a device to ease her out of her job. Giving an old hand an "impossible" job does not speak well for the bona fides of a resulting discharge.218 Under all of the described circumstances, crediting the testimony of off the ground, perhaps to the amusement of onlookers but at the cost of his job which his employer then took the position he could not efficiently perform - resulting in a discharge held illegal in Kut-Kwrck Corporation, 176 NLRB 635,648-651 (1969) (re Goodyear) HARTZ MOUNTAIN CORP. 555 Ms. Ruiz and, upon the record as a whole, I fmd that the reason assigned for Respondent 's discharge of this efficient employee of 7-1/2 years' standing was a concocted pretext, and that the real reason was her loyal adherence to Distributive Workers District 65 and her refusal to affiliate with Teamsters Local 806. (47) Maria del Carmen Salcedo Maria del Carmen Salcedo entered Respondent's employ in July 1969 and continued in production work at its Jersey City plant under Supervisor Presutti until she was precipi- tately discharged over 5 years later, at the end of her workday on August 9, 1974, without advance notification or indication of any kind. At no time during her 5 years of employment had there been any expression of dissatisfac- tion of any nature with her work performance or conduct. She was an early petitioner (G.C. Exh. 14) and card signer (G.C. Exh. 18) for Distributive Workers District 65, attended its meetings, and for a time wore its button in the plant. Around March 1974 she was told, during working time, to go to the plant cafeteria, where she (and others with her) were informed by Teamsters Local 806 spokesman Joaquin Ocana that there was a contract between Respon- dent and Teamsters Local 806 and that unless they signed a union card for Local 806 they would or could be fired. She refused to sign. When she went to punch her timecard before leaving the plant at the end of the workday on August 9, 1974, and discovered the timecard missing from the rack, she sought out Supervisor Presutti, who told her she was being given "layoff" - an expression apparently understood by Respondent's Spanish-speaking employees - and to return on Monday for her pay and papers. Returning on the following Monday, she was given a check and a paper stating that she had been terminated for "poor work performance." Crediting the testimony of this em- ployee of 5 years' standing with no adverse reflection on her work performance, and considering Respondent's unex- plained failure to produce any line supervisor to controvert her testimony, and in the frame of reference of the record as a whole, I find that the reason or reasons assigned by Respondent for her termination was or were pretextuous, the true reason being her continued adherence to Distribu- tive Workers District 65 and her refusal to join Teamsters Local 806. (48) Raul Salcedo Raul Salcedo entered Respondent's employ on July 24, 1969, remaining until his termination on August 16, 1974, for "poor work performance" (G.C. Exh. 109). He did not testify in this proceeding. Although the record indicates that he was among the petitioners for (G.C. Exh. 14), as well as early card signers (G.C. Exh. 18) and dues-paying members (G.C. Exh. 15) of, District 65, his personnel folder (G.C. Exh. 109) reflects an attendance and punctuality record somewhat comparable to that of other employees supplied in evidence here as a yardstick who were likewise terminated by Respondent (G.C. Exh. 116: Susana Val- verde, Ellis Rasberry, James J. Murray, Anibal Maranon, George Williams, John Wright, Lidia E. Gonzalez, Linda A. Monday) but for reasons not claimed to have been violative of the Act. While it is true that still other employees with perhaps arguably comparable or even perhaps worse attendance and punctuality records were not terminated, lacking testimonial explanations it is not feasible - other than through impermissible surmise and conjecture - to determine that the true reason for Salcedo's termination was not his work record as reflected in his personnel folder. His mere membership in District 65 would not, of course, insulate him from discharge. Under the circumstances, I fmd that it has not been established by substantial credible evidence that Respondent's termina- tion of Raul Salcedo on August 16, 1974, was because of his membership in or activity on behalf of Distributive Work- ers District 65 or for any other reason violative of the Act. (49) Maria L. Sanchez Maria L. Sanchez was employed by Respondent from January 9, 1970, until her discharge on April 26, 1974, allegedly for "poor performance" (G.C. Exh. 110), with an intervening termination and about a 3-1/2-month absence for pregnancy. She was not a witness here and there is no indication that she was a member of or active in any of the unions here involved. Her personnel folder (G.C. Exh. 110) discloses, among other things, a seemingly extremely poor attendance and punctuality record in 1973 and 1974 entirely comparable to if not worse than that of other employees terminated by Respondent for that reason as indicated in their personnel folders, as referred to in connection with terminated employee Raul Salcedo, supra. Upon the record presented, it is found that it has not been established that Respondent's termination of Maria L. Sanchez was because of protected concerted activity on her part or for any other reason violative of the Act. (50) Angel Santiago Angel Santiago worked at Respondent's Jersey City plant from September 25, 1967, for almost 7 years, with no adverse comment regarding his work performance or conduct, until his summary discharge on August 16, 1974 (G.C. Exh. 157), without previous notice, by telegram during his vacation at home. He, too , was an early joiner (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of Distributive Workers District 65, attended almost all of its numerous meetings, wore its button in the plant, and openly discussed its affairs with other plant employees. After first turning down a request or requests by Joaquin Ocana to sign up with Teamsters Local 806, toward the end of July 1974 Ocana again approached Santiago on that subject, this time with a filled-out card, and, after Ocana warned him that if he did not sign it he could be dismissed from his job, Santiago signed and returned it to Ocana. Nonetheless, on August 16, 1974, while at home on vacation, he received a telegram from Respondent stating, "Effective August 16, 1974 you are terminated as an 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee at The Harts Mountains [sic] Corporation" (G.C. Exh. 61). Upon his return to the plant a week later, he was given a termination notice (G.C. Exh. 62, also dated as of August 16) stating the reason for his termination was "poor work performance." At no time was any indication given to him of what this "poor work performance" was. While his personnel file (G.C. Exh. 157) indicates a perhaps larger than "usual" amount of absence because of illness, apparently these sickness absences were excused and his attendance otherwise seems comparatively unexceptional. Respondent produced no line supervisor familiar with his work to testify to any respect in which it was "poor" as conclusorily stated on his termination slip. Under all of the circumstances and upon the record as a whole, I have difficulty in believing that this employee of 7 years' standing was really discharged for the reason alleged by Respondent, who could easily have produced a line supervisor to testify to the poor quality of his work if indeed it was poor. It is accordingly found that the reason advanced by Respondent for the discharge of Angel Santiago was pretextuous, the real reason being his contin- ued Distributive Workers District 65 membership and activities and his earlier refusals to affiliate with Teamsters Local 806. (51) Maria Estelle Santiago Maria (Marie) Estelle Santiago entered Respondent's employ as a production worker at its Jersey City plant in March 1970, continuing there for about 4-1/2 years without any adverse comment - but, on the contrary, with praise from Supervisor Presutti - until her precipitate discharge at the end of her workday on August 9, 1974, without previous intimation. She was another early petitioner and card signer for Distributive Workers District 65 (G.C. Exhs. 14 and 18) and attended all of its many meetings. In or about January 1974 - according to her uncontroverted testimony - her supervisor, Jesus Santiago, informed her while at work that on orders of Respondent Vice President Kaye, employees "had to sign" Teamsters Local 806 cards by February or they would be dismissed. At or around the same time, also while she was at work, Local 806 spokes- man Eddie Sanabria, in the company of General Manager Feinberg, approached her with Local 806 cards in hand and asked her to sign one but she declined to do so. He left the card with her. When General Manager Feinberg subse- quently asked her whether she had signed it, she replied in the negative. In February or March (1974), also while working, she was ordered by Supervisor Presutti to report to the plant cafeteria, where among others she observed General Manager Feinberg at a table with Juan Vazquez (chief shop steward of Teamsters Local 806), his aide Ocana told her that she had been directed to go to the cafeteria in order to sign a Local 806 card and that if she failed to do so she would lose her job. She replied that she would "rather lose my job rather than sign the card" and returned to work. However, when she was informed by Local 806 spokesman Sanabria at the end of July or beginning of August (1974) that her name was on the "dismissal list" but that she could retain her job by signing a Local 806 card, she signed the card. Nevertheless, a week or so later, at the end of the workday on August 9, when she discovered her timecard missing from the rack, she went to Supervisor Presutti who tersely told her, "layoff" (not discharge, termination, or firing) and to return on Monday (August 12) for her paycheck. When she did so, she received with that check a termination notice (G.C. Exh. 82) assigning as the reason for that termination, "poor work performance." She had and has no idea whatsoever of what performance this could refer to. Again, Respondent failed to produce any line supervisor to establish or show any "poor work performance" on the part of this employee, whose credited uncontradicted testimony establishes that she had worked for Respondent for 4-1/2 years without criticism of any nature. Under the circumstances and the record as a whole, I find that the reason assigned by Respondent for her termination was pretextuous and that the real reason was her continued faithful adherence to Distributive Workers District 65 and her participation in protected concerted activities, as well as her initial refusals to affiliate with Teamsters Local 806 until her name was placed on the "dismissal list." (52) Maria Teresa Santiago Maria Teresa Santiago entered Respondent's employ at its Jersey City plant in January 1972, continuing there until summarily terminated without prior notification at the end of her workday on July 19, 1974. During her 2-1/2-year tenure, she had received no adverse comments concerning her work or behavior except when she was observed momentarily not working on one occasion around Febru- ary 1972, the male member of the eight-person machine operation of which she was a part having for some reason unknown and unrelated to her stopped the machine; and for taking more than the 5 minutes allowed for a visit to the ladies' room - when male Supervisor Presutti entered the ladies' room and she indicated it was no place for him, he issued a warning slip to her. With regard to her work, however, Supervisor Presutti had praised it, telling her she handled the more difficult machines better than other employees. She signed a union authorization card for Distributive Workers District 65 on December 8, 1973, attended its meetings, and regularly spoke favorably regarding it to employees in and around the plant during work breaks. After turning down solicitations from various Teamsters Local 806 representatives - Gonzalez, Vazquez, Ocana, and Sanabria - during working time, to sign up with Local 806, in March 1974 she was instructed by Supervisor Presutti to report to the plant cafeteria. There, in the company of Vazquez and Sanabria, she was told by Ocana that she was liked in the plant, and that also because of her brothers who worked there, one of whom had signed a card for Local 806, "people would feel so sad" if she did not do likewise since in that event she would be "losing [your] job" or "dismissed" by March 27 . She nevertheless refused to sign. Ocana then told her, "You will regret [it] because when it comes March 27th you will be dismissed." In or about April (1974), while she was in General Manager Feinberg's office about a paycheck, Feinberg asked her, "Maria, would you not sign for the union?" She replied, "No." At the end of her workday on Friday, July 19 (1974), Supervisor Presutti told her she was wanted in the person- nel office; there, Plant Manager Petrera told her (and some HARTZ MOUNTAIN CORP. other employees) that they were being "laid off or else just dismissed" and to return on Monday for their pay. Petrera gave no indication of any reason for this action. When she returned on Monday, she was given her pay through the preceding Friday with a termination slip (G.C. Exh. 67) stating she had been terminated for "poor work perfor- mance." At no time during her 2-1/2-year tenure had she been told her work was poor or anything like that; on the contrary, her work had - as her uncontradicted testimony establishes - been praised by Supervisor Presutti himself. And according to her testimony, at the time she was terminated there were perhaps as many as 50-70 other employees, with 20-25 junior to her, doing the same type of production work as she (i.e., machine operator assistant, with seemingly a wide variety of experience), with employ- ees junior to her not terminated . Again, Respondent produced no line supervisor familiar with the work of this employee to controvert her testimony, nor to show in any way that her work was unsatisfactory or poor as alleged. Under these circumstances and upon the record as a whole, I find that the reason assigned by Respondent for her termination was pretextuous, the real reason being her continued membership in and protected concerted activi- ties on behalf of Distributive Workers District 65 and her refusal to join Teamsters Local 806. (53) Awilda Soto Awilda Soto was employed by Respondent from May 11, 1972, until her termination on May 10, 1974, allegedly for "poor work performance" (G.C. Exh. 111). Except for the fact that she was an early petitioner for and card signing, dues-paying member of District 65 (G.C. Exhs. 14, 18, and 15), the record is for practical purposes silent on the subject of any union activity on her part 219 While her personnel folder (G.C. Exh. 111) appears to be essentially unremark- able, it does indicate some early departures from work and absences without calling in. Awilda Soto did not testify. In the absence of testimony on her part, I am unable to say that her discharge was because of participation by her in protected concerted activity; I cannot regard mere mem- bership in District 65, without more, as sufficient. Upon the record as a whole, I find that it has not been established by substantial credible evidence that Respondent's termina- tion of Awilda Soto on May 10, 1974, was because of her membership in or protected concerted activity on behalf of Distributive Workers District 65 or any other reason violative of the Act. (54) Ada Iris Vargas Ada Iris Vargas was employed at Respondent's Jersey City factory in various production capacities from Septem- ber 17, 1968, until her summary discharge on July 3, 1974, almost 6 years later.220 Her testimony is uncontradicted that during her long tenure of employment she has never been criticized verbally or in writing in relation to her work 219 Except for the testimony of Marta Teresa Santiago that she received her District 65 card from Awilda Soto during lunch in the plant cafeteria. But even as to this the circumstances are undisclosed. 220 She was terminated for "absences" in December 1969 but reinstated a month later. 557 quality or quantity.221 She, too, was an early petitioner for (G.C. Exh. 14), and joiner (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65. She, too, in March 1974 declined to sign a Teamsters Local 806 card, in the face of a warning to her from Sanabria while she was at work, that "[You] should sign the card because if [you] did not [you] would be put out." At the close of her workday on July 3 (1974), without previous notice or intimation, her foreman instructed her to report to the personnel office, where she and two fellow employees (Maria Lopez, supra, and Ana Ventura, infra) were in- formed by Personnel Manager Morales that they were being given "layoff," and she was paid off and given a termination notice (G.C. Exh. 45) stating the reason was "poor work performance." At no time, however, was there any indication, other than this statement on this slip, that her work was poor or unsatisfactory or that she was being terminated for any such reason. Again without explanation Respondent failed to produce any line supervisor familiar with her work to show that it was unsatisfactory or poor as stated on the termination slip, or that her termination was truly for that reason. Under these circumstances and considering the record as a whole, it is found that Respondent's alleged reason for its July 3, 1974, termina- tion of Ada Iris Vargas was pretextuous, at least one real and controlling reason being its desire to rid itself of a loyal continued member of and participant in protected concert- ed activities on behalf of Distributive Workers District 65 who refused to become affiliated with Teamsters Local 806. (55) Ana Ventura Ana Ventura first entered Respondent's employ as a production employee at its Jersey City factory in June 1968, remaining to March 1970, when she returned to her ailing husband in Santo Domingo until she reentered Respon- dent's employ on September 14, 1972, continuing until her summary termination on July 3, 1974. According to her credited uncontradicted testimony she received no criticism of any nature, written or oral, concerning her work during either period of her employment. She was an early petitioner for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15), of Distributive Workers District 65, she attended all of its numerous meetings, and she openly expressed her support for that Union among employees at the plant. She consis- tently refused to become affiliated with Teamsters Local 806. In March or April 1974, during working time she was told by Local 806 Steward Marta Toro to accompany her to the plant cafeteria. When Ana Ventura told Marta Toro that she needed permission from her supervisor, Marta Toro told her it was unnecessary since the "bosses" had authorized it, and in fact (as Ana Ventura observed) numerous other female employees had already accompa- nied Marta Toro there. In the cafeteria, Local 806 Spokes- man Ocana told Ana Ventura that he had sent for her to sign a card for Local 806, that this would be "the last 221 While her personnel record (G.C. Exh. 160) indicates a number of absences for illness, apparently these were all with leave or satisfactorily accounted for by medical certificates and excused, and comparatively they are seemingly unremarkable 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opportunity" to do so, and that those who did not sign "would be sometimes soon dismissed." She nevertheless persisted in her refusal to sign a card for Local 806. About a month later, she was again warned during working time that if she did not sign a Local 806 card she would be "dismissed soon." About 5 minutes before her usual 4:30 p.m. quitting time on July 3,1974, Ana Ventura was called to Personnel Manager Morales ' office, where she was paid off and given a paper (G.C. Exh. 47) notifying her she had been terminated for "poor work performance." She has never been told and has no idea ofwhat this means or refers to, since her work performance has at no time been criticized or questioned in any way. There is no indication in her personnel file (G.C. Exh. 158) of any work deficiency or shortcoming, nor did any line supervisor testify concern- ing such. Crediting her highly persuasive testimony and upon the record as a whole, I find that the reason assigned by Respondent for her termination was a sham and pretext, and that the true reason was her continued loyal adherence to Distributive Workers District 65 and her refusal to affiliate with Teamsters Local 806. (56) Rosa Villegas Entering Respondent's employ as a production worker at its Jersey City plant on August 6, 1970, Rosa Villegas (Rosa Elena Villegas, Rosa Villega Muscara) continued in that capacity until her summary discharge about 4 years later, on July 19, 1974, while she was on vacation. During her 4- year tenure, according to her candid testimony on direct examination, she received a few minor oral criticisms such as for "eating" while working or for neglecting to stamp her control number on packaged merchandise, the last of these about a year before her discharge ; but these are not even reflected in her personnel folder (G.C. Exh. 92). She was another early petitioner for (G.C. Exh. 14) as well as card signer (G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of, Distributive Workers District 65, and attended all of its many meetings. She also wore its large distinguishing button while at work until word circulated that its wearers would be dismissed. In the early part of 1974, while at work, she with other employees were sent by Supervisor Presut- ti 222 to the plant cafeteria, where she was presented with a Teamsters Local 806 card to sign. She declined to do so "until the momemt I am certain of where the negotiations stand ... then I will decide." When she was told it was a "good union" and she should sign the card, she persisted in her refusal to do so. Thereupon she was asked to furnish her timecard number, which she did. She has never signed a card for Local 806. Following this, during her last 2 weeks at the factory around the end of June or beginning of July (1974), she was assigned to a new machine with which she was unfamiliar. According to her credited uncontradicted testimony, no dissatisfaction was expressed regarding her work in connection with that machine. When she returned from her vacation on July 22, 1974, she was instructed by Supervisor Presutti to see Personnel Manager Morales, who handed her a paper (G.C. Exh. 91) stating she had been terminated as of July 19, 1974 while on vacation), for "poor work performance." Her personnel folder (G.C. Exh. 92) discloses no work performance criticisms and her atten,d^ a,nce record- seems comparatively unremarkable . No line supervisor was produced by Respondent to testify to any "poor work performance" on her part as conclusorily alleged on the termination slip, or to refute her credited cross-examined testimony to the contrary. Under these circumstances and upon the record as a whole, it is found that the reason assigned by Respondent for her termination was pretextuous, and that the real reason was her continued loyal adherence to and support of Distributive Workers District 65 and her refusal to affiliate with Teamsters Local 806. (57) Ana Zapata (DeKalb Street) Ana (Anna) Zapata of 273 DeKalb Street, Jersey City, entered Respondent's employ at its Jersey City factory on September 8, 1968, continuing there as a production worker for about 6 years until her summary discharge without prior notification at the close of her workday on August 9, 1974. Her testimony, highly persuasively delivered, that she received no criticism of any kind concerning her work or conduct during her 6 years on the job, is wholly uncontra- dicted. She waslone of thelfirst card,signers for, Distributive Workers District 65, her husband Modesto Zapata being on its organizing committee. Like other District 65 adherents whose cases have already been discussed, she, too, was later taken to the plant cafeteria by Teamsters Local 806 Shop Steward Marta Toro during working time to sign a Local 806 card at the behest of its spokesman Joaquin Ocana, who indicated to her it was necessary to "assure your [continued] work"; and she, too, refused to sign it. At quitting time on August 9, 1974, she observed her timecard was missing from the rack. When she sought out and gave her name to Supervisor Presutti, he consulted a list he held and tersely remarked, "layoff' (not discharged, fired, or terminated) and told her to return the next day, at which time she received a paycheck through the preceding day (August 9) with a paper she was unable to read - she cannot read English or Spanish - and later left at the unemployment insurance office. She has never been told why she was being laid off, and has never been recalled. No line supervisor was called to testify to show that her work was in any way unsatisfactory or to explain why she has not been recalled although new employees in her work capacity have been hired. Under the circumstances and crediting her testimony, upon the record as a whole it is found that her termination was because of her continued loyal affiliation with Distributive Workers District 65 and her refusal to join Teamsters Local 806. (58) Ana Zapata (Bright Street) Ana (Anna) Zapata of 159 Bright Street, Jersey City, entered Respondent's employ as a production work at its Jersey City factory on August 19, 1969 . She is the wife of Milton Zapata, brother of Modesto Zapata. (Modesto Zapata, a member of the Distributive Workers District 65 organizing committee, is the husband of Ana Zapata of 273 222 It is again reiterated that this, as well as all other, testimony concerning Supervisor Presutti stands uncontradicted in the record since without explanation he was not produced as a witness. HARTZ MOUNTAIN CORP. DeKalb Street, supra.) Her credited uncontradicted testi- mony establishes that, during her 5-year term of employ- ment there, until she was summarily terminated without previous notice, at quitting time on August 16, 1974, she received no adverse criticism of any nature concerning her work or conduct. As a member of Distributive Workers District 65 (which she joined in June or July 1973), while at work in February or March 1974 she was sent to the plant cafeteria by Teamsters Local 806 Shop Steward Marta Toro, acting on instructions of Supervisor Presutti. In the cafeteria, Local 806 spokesman Ocana told her that since "[Teamsters Local] 806 was already in and that the contract has been signed," she had better sign a card for Local 806 if she wanted to hold on to her job. She declined, stating she was "not sure whether the 806 was really in the company." Subsequently, however, in July (1974), when Local 806 Chief Shop Steward Juan Vazquez and his aide Eddie Sanabria commented that, if she and other employees signed Local 806 cards they could keep their jobs, she signed up. At the end of her workday on August 16 (1974), without previous notification or intimation of any kind, after 5 years of wholly satisfactory work performance, not finding her timecard in the rack, she sought out Supervisor Presutti, who, after asking her name, remarked "layoff" and handed her a paper (G.C. Exh. 66), which her husband later translated to her, stating that she had been terminated for "poor work performance." At no time had Presutti or any other supervisor criticized her work in any way. Without explanation - as in the cases of all of the foregoing employees - no line supervisor was produced to testify concerning this employee's work performance or to estab- lish or show in any way that it was in fact poor as alleged in the termination notice. Under the circumstances, crediting her testimony and upon the record as a whole, I ford that the reason advanced by Respondent for the discharge of Ana Zapata was pretextuous, its real reason being to weed out still another Distributive Workers District 65 sympa- thizer and adherent. c. Recapitulation of findings concerning 58 terminated employees Of the 58 above-named employees, 46 were found to have been pretextuously and unlawfully terminated in violation of the Act; 12 employees were not established to have been terminated in violation of the Act. Figure 6 [omitted from publication] shows the compara- tive composition of the foregoing 58 terminated employees in terms of Distributive Workers District 65 vis-a-vis Teamsters Local 806 affiliation. While it is true that Fig. 6 deals essentially with District 65 members - those being the only employees whose terminations are in issue here - and may therefore be challenged as a unilateral or noninterfaced comparison, nevertheless Respondent did not come forward at the hearing to show that the number or proportion of District 65 members terminated did not differ essentially from the number or proportion of terminated 223 Excluding M. Ocasio, who was an open advocate of District 65 but who had not (yet) signed a card for it, and who was also terminated. Of the 58 employees here terminated, only M. Ocasio and M. L. Sanchez were not established to be members of District 65. The fact that some District 65 559 employees (if any) belonging exclusively to Teamsters Local 806. Distributive Workers District 65 was the union affiliation of 56223 employees out of the 58 terminated, or 96.6 percent; Teamsters Local 806 was the union affiliation, prior to 12-1-73, 4 out of 58, or 6.9 percent, after 12-1-73, 12 out of 58, or 20.6 percent. Those having an affiliation also with District 65, 0 percent. Figure 7 [omitted from publication] shows the median seniority of the 46 unlawfully terminated production employees vis-a-vis the median seniority of all production employees in Respondent's Jersey City factory. The median seniority date of all Jersey City plant workers (excluding those still at work as of September 1, 1974) is computed to be November 6, 1973; the median seniority date as of April 1, 1974, is January 18, 1973; of District 65 members terminated, February 25, 1970. The approximate length of employment of all Jersey City plant employees terminated (as of September 1, 1974) is 5- 1/2 months; as of April 1, 1974, 1 year 2-1/2 months; of District 65 members terminated, 4 years 6 months. Figure 8 [omitted from publication ] shows the number of new hires from March through August 1974 in Respon- dent's Jersey City plant. (G.C. Exhs. 112A and B.) These were 51 in March, 25 in April, 2 in May, 25 in June, 48 in July, and 35 in August, totaling 186 new hires. While no figures have been supplied by the parties for the period since August 1974, Respondent Vice President Kaye conceded during cross-examination that there have contin- ued to be new hires among unit production employees at the Jersey City plant since August 1974. The personnel files of some or many of the production employees here supplied as examples of such (G.C. Exhs. 164 A - I) - all hired after August 27, 1974 - indicate seemingly little if any prior relevant work experience, and apparently even no previous experience (all Dept. 68: packaging and assembly, unskilled or semiskilled). The same may be said for the sample 1974 new hires in Dept. 69 (shipping; G.C. Exhs. 165 A - I), as well as for those in Dept. 79 (machine operators and set-up persons; G.C. Exhs. 166A - F). Departments 68 and 69 each comprise a manufacturing, assembly, "blistering" (i.e., emplacing a plastic bubble or "blister" over items such as pet foods or toys, on a card, in order to display them with visible effectiveness while thus contained), and perhaps packaging operations, with women almost exclusively in Dept. 68, described as a hand-assembly operation. In recapitulation of and in addition to the reasons already advanced for fording the indicated employee terminations to have been in violation of the Act, the following factors have played a role in that determination: (1) the testimony of numerous highly credible employee witnesses, presenting a consistent and essentially uncon- tradicted pattern; and (2) my reservations, already explicat- ed, as to the credibility, quality; and weight of the testimony of Respondent's witness Kaye; (3) the remark- ably high level (i.e., vice presidency of a very large, sprawling business enterprise) at which the action terminat- adherents were retained in Respondent 's employ is no defense to its dismissal of others; nor is it a defense that some who had also joined Local 806 were included among those terminated cf. N.LRB v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F.2d 272,276 (C.A. 5, 1952), cert. denied 344 U.S. 865. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing very low-level employees was taken; (4) the fact that, without explanation, no line supervisors were produced by the Employer to testify to dispute or refute the testimony of the terminated employees as to lack of criticism or fault found with their work; 224 (5) the combination of strong employer animus against Distributive Workers District 65 and strong employer bias in favor of Teamsters Local 806; (6) the fact that all of the employees here terminated were loyal adherents of Distributive Workers District 65, with none also a member of Teamsters Local 806 except for those who signed cards for the latter Union under circum- stances indicating a last-ditch attempt to save their jobs; (7) the known District 65 affiliation of the terminated employ- ees; 225 (8) the precipitate nature of the terminations and the manner in which they were effectuated, for what was in most cases long-term, satisfactory employees ; (9) the conflicting and inconsistent reasons advanced by Respon- dent for its termination of the very same employees; and even its change in position late in the hearing itself, from that taken in its amended answers ; 226 (10) the essential absence of former expression of dissatisfaction with the work performance of the terminated employees ; 227 (11) Respondent's own records and certifications to the New Jersey unemployment insurance authorities belie the rea- sons now advanced by it for many of the terminations; (12) the substantial number of replacements and new hires, with 224 It is clear that an employer cannot overcome or satisfy the require- ments of Sec. 8(a)(3) or (1) of the Act by merely producing a piece of paper with his comment "poor work performance" on it. Cf., e.g., N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 245-246 (C.A. 8, 1969), cert. denied 3% U.S. 823; Sealtest Foods Division of Kraftco Corporation, 194 NLRB 856, 865-866 (1972); Evans Packing Company, 190 NLRB 401, 402- 403 (1971), enfd. 463 F.2d 193 (C.A. 6, 1972); Venus Pen and Pencil Corporation, 144 NLRB 115 (1%3); Allure Shoe Corporation, 138 NLRB 395 (1%2) 225 Respondent pleads ignorance as to the identity of the District 65 supporters. Even if one were to indulge in the supposition - contrary to established facts herein - that Respondent was up to a point unaware of the identity of all of the District 65 supporters, at least from the date early in this hearing when it was furnished with copies of all of the signed membership cards of its employees in that Union, pursuant to my April 11, 1974, expediting order (ALi Exh. 1), it was made fully and specifically cognizant in detail as to their identity . And other credited proof, already described, shows that responsible members of Respondent's supervisory and managerial hierarchy were well aware of the District 65 organizational activities and employee participation therein in the plant . Thus, Respondent's assertion of ignorance of the District 65 affiliation of the terminated employees does not hold water. 226 Late in the course of the protracted hearing, Respondent without opposition amended its answer , which had (repeatedly all the way through its fourth amended answer of October 22, 1974) alleged that nine of the terminated employees here in issue had been `laid off' (as stated by Respondent in documents supplied by Respondent to these employees in connection with their terminations), had not really been "laid off' but "discharged." The reason advanced for this I1 -hour change of position was that Respondent's own records were allegedly in error and inconsistent with Respondent's real "intention." Further in this connection , Respondent's former payroll clerk, Joann Geiuffreda, subpenaed as General Counsel's rebuttal witness, credibly testified that her reports to the New Jersey unemployment insurance authorities were based on data received by her from the Jersey City factory time reports or separation forms or both ; that, for example, in the case of terminated employee Altamirano , whom she accurately - based on reports to her - reported to have been terminated for "lack of work" (G.C. Exh. 100), the termination form (id) stating "poor work performance" was not in the file when she reported "lack of work"; and that when, a week or two after the terminations, she received a new "tennination form" with a different termination reason assigned than was on the time report and she took this up with Kaye, she was told by Kaye, "Don't worry about it." She was, however, only one recall out of the 58 terminated employees here; 228 (13) the intraplant diversification and transferability of the production employees;229 (14) the pattern of terminations here demonstrated is consistent with an attempt by Re- spondent to enforce the "union security" provision of its unlawful "collective agreement" with Teamsters Local 806, and which would fall together with the agreement of which it is a part; (15) the terminated employees were invariably directed on work time to report to the plant cafeteria, where Teamsters Local 806 spokesmen told or warned them to sign Local 806 cards or face dismissal. Although some acquiesced, most did not. This pattern of activity was carried on with supervisory approval if not direct participa- tion, with use made of Respondent's paid time, facilities, and personnel; (16) with only a single exception, there is no indication that Teamsters Local 806 protested, "grieved," or in any manner sought to question the terminations here or to invoke the amehatory applicable provisions of its supposedly bona fide "collective agreement" with Respon- dent with regard thereto, even though it supposedly represented, and by law if a bona fide exclusive collective- bargaining representative was required to represent, the interest of all unit employees - whether supporters of Local 806 or not;230 (17) the "reasons" advanced by Respondent, and its contentions to justify its terminations of the employees in issue, just "fail[s] to stand insistent in her testimony that this had never occurred prior to the terminations here in issue commencing April 1974. Ms. Geiuffreda was herself subsequently discharged on the ground that true or not she had disclosed "confidential" information regarding salary increases, and that she would not be given an opportunity to disprove it but that she could report her own termination as a "reorganization of the department" for unemployment insurance purposes. 227 In this connection, it is noted that during cross-examination Respon- dent Vice President Kaye conceded that he at no time mentioned to the Board Agent investigating this case that one of the reasons for the termination of these employees was poor work performance. 228 As has many times been observed , employers are not given to replacing satisfactory experienced employees with the green and untried. See, e.g. Davidson Rubber Co., 305 F.2d 166, 169 (C.A. 1, 1962); N.L.R.B. v. Local 776, International Alliance of Theatrical and Stage Employees (Film Editors): (Cascade Pictures Co. of California), 303 F.2d 513, 519 (C.A. 9, 1962, cert. denied 371 U.S. 826. And the argument that new employees are cheaper and thus entail a monetary saving is less than convincing when advanced by an employer under the circumstances here shown, strongly motivated to rid itself of proponents and adherents of a union which the employer has made it plain by its actions ispersona non grata to it. 226 Testimony of the employee witnesses, as well as their histories at the plant, indicate a far greater degree of intraplant job diversification and motility than Respondent suggests ; and that the "departmental" numbers are perhaps largely for internal administrative/supervisory purposes. Insofar as new or unfamiliar machinery or equipment is concerned, to the extent that it is essential to demonstrate its use and allow employee efficiency thereon to peak, the same is true for experienced as for new employees, with the probability that the experienced employees will require less training and reach peak efficiency more rapidly. To the extent that Respondent suggests that introduction of newer machinery requires the discharge of employees experienced on the older or discontinued machinery , or that this is a more efficient manner of operating, that has not been demonstrated here - indeed, for a variety of reasons including the chronic job-shifting and work task transferability patterns shown among the workers here, the opposite could well be true. Respondent Vice President Kaye testified that the "department" numbers "are used for payroll purposes" only - "If you ask somebody where they worked they would say production department, not Department 68 for other number ]." 230 It is noted, for example, that although the contract entered into by Respondent with Teamsters Local 806 - under the circumstances described in II, A of this Decision - explicitly requires that "all ... lay-offs shall be based on ... seniority" (G.C. Exh. 3A) and for recall similarly, there is no indication - with the exception of only one employee (Pascual Malave - HARTZ MOUNTAIN CORP. 561 under scrutiny." N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A. 9, 1953). It is accordingly found that, within the context of the record as a whole, Respondent's terminations of the employment of the 46 employees hereinabove specified, because of the employees' participation in concerted activities, lawful and protected under the Act, on behalf of Distributive Workers District 65 , their failure and refusal to refrain from and discontinue the same, and their failure and refusal to affiliate with Teamsters Local 806 ; were in interference with, and in restraint and coercion of, employ- ees' rights under the Act. 4. Employee disciplinary warnings during hearing It is undisputed that on August 4, 1974, during the hearing, Respondent issued formal disciplinary warnings to eight of its Jersey City plant unit production employees, 231 and docked each of them for 15 minutes' pay. The disciplinary warnings, placed into the employees' personnel folders, state: WARNING This constitutes your [third] warning. It is issued for the following reason: () Excessive Absence ( ) Excessive Lateness (x) Out from Assigned Area (x) Other Details: For leaving machine and coming to John Petrera's office without authorization. You are receiving this warning for an infraction of one of the rules. An employee with three warnings is subject to suspension or termination. I advice [sic] you to improve your misbehavior and comply with company regulations. [Refused to sign] Warning Received /s/ L. V. Presutti, Authorized signature /s/E.M. (?), Rec'd Personnel Office The circumstances are as follows: 232 Three times on an extremely hot July day, some women production employees in Respondent's Jersey City factory, all working in the same intolerably hot area, indicated to Supervisor Hector Santiago that they needed a fan. Santiago seemingly did not heed their request. On the following morning (Friday, August 2, 1974), with the same or even greater factory heat, they again asked Santiago for a fan; this time he informed them there was none. Since the G.C. Exh. 153 dated July 25, 1974 , during this hearing) that this provisiop was ever invoked, much less sought to be enforced, by Teamsters; and no indication that it was - again with the exception of only one employee (Gladys Diaz - also during this hearing, I day before she testified as General Counsel's witness) recalled to work - ever observed by Respon- dent. 23i Viz, Nilda Lopez, Carmen Navarro, Alejandrina Nieves, Concepcion Pastrana, Eloisa Perez, Albertme Rodriguez, Mana Sanchez, and Mantza Tiburcio. 232 Based upon uncontradicted, credited testimony of General Counsel heat was unbearably intense, the group determined to go together to see Plant Manager Petrera to request a fan. Petrera indicated to them that he would take care of the matter and told them to return to work; and within 10 minutes three fans were supplied. The entire incident took no more than 15 minutes. A few days later, all eight women received a warning slip (as set forth above) for coming to see Petrera without permission, and each was docked 15 minutes' wages.233 According to the uncontradicted testi- mony of Ms. Pastrana, she had previously spoken to Petrera about a work-related problem without being "warned"; and the employees went to see Petrera as a small group because they had gotten nowhere with their immedi- ate supervisor (Santiago) and thought they might be taken seriously if they went as a group to see Petrera, another reason for their doing so being to avoid hazard of job retaliation if they did not go as a group. And, according to the uncontradicted testimony of Ms. Nieves, at no time while in Petrera's office was any indication given to them that they might receive a warning slip or have their wages docked for what they had done. While the foregoing account of the episode under consideration is uncontradicted, Respondent contends that the warnings and fines in question were proper since it was not essential that all eight affected employees visit Petrera as a group because they could have sent one or perhaps two emissaries. But it does not follow from the mere possibility that a visit by one or two might have sufficed, that a visit by the group was unlawful. Such a visit and request, under the circumstances described, is a classical example of the kind of concerted activity falling squarely within the Act's protection. Superheated factory workers may indeed, in exercise of their rights under the Act, complain to higher management about intolerable working conditions, without risk of retaliation, penalty, or hazard to their job security. N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 16-17 (1961) (plant too cold); N.LR.B. v. Southern Silk Mills, Inc., 209 F.2d 155 (C.A. 6, 1953) (plant too warm). Nor - as Respondent apparently further contends - is it essential, under the circumstances here shown, for employ- ees so acting in concert, to obtain the permission of their own lower ranking supervisor who has ignored or failed them in their request for relief, or to exhaust the technical chain of command, as a condition precedent to trying at a higher level (Time-o-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 101-102 (C.A. 7, 1959); Guerdon Industries, 199 NLRB 937, 940 (1972), and cases cited); nor, as Respondent also seemingly contends, for them to go through the "steward" witnesses Concepcion Pastrana (chairman of the Distributive Workers District 65 organizing committee, and according to her testimony the only member of that committee whose employment had not been terminated by Respondent) and Alejandrina Nieves (also a District 65 activist, whose employment was unlawfully terminated shortly after the issuance of the above warning notice, on August 22, 1974, under circumstances discussed in 11,11,3, supra). 233 In the case of at least Concepcion Pastrana , the warning slip states it is a "third warning" and that she is therefore "subject to suspension or ternination" (G.C. Exh. 89). 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or "Chief Steward" of the very union (Teamsters Local 806) whose lawful status they question and contest 234 Under these circumstances, it is clear that the issuance of disciplinary warnings to the eight employees in question was because they exercised their right to act collectively in relation to their working conditions, and was therefore in violation of the Act. I so fmd.235 Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. By recognizing, entering into, maintaining, and enforcing collective agreements (including union-security mandatory membership requirements) with a labor organi- zation which Respondent unlawfully aided, assisted, and supported, namely Teamsters Local 806, as the exclusive representative of Respondent's employees in a unit or units appropriate for collective bargaining, while said Teamsters Local 806 did not represent an uncoerced majority of said employees, and while substantial real questions concerning the representation of said employees existed, under the circumstances described and found in II,A, supra, the Respondent, The Hartz Mountain Corporation, has violat- ed and is continuing to violate Section 8(a)(2), (3), and (1) of the National Labor Relations Act, as amended. 3. By terminating the employment of 46 employees (set forth in the Order which follows herein), under the circumstances described and found in II,B,3, supra, and failing to reinstate, recall,236 or rehire them, Respondent has discriminated in regard to the hire, tenure, and terms or conditions of employment of its employees, and continues so to do, thereby discouraging membership in a labor organization (Distributive Workers District 65) and encour- aging membership in another labor organization (Team- sters Local 806), in violation of Section 8(aX3) of said Act; and has interfered with, restrained, and coerced employees, and continues so to do, in the exercise of their rights under Section 7, in violation of Section 8(ax 1) of the Act. 4. By issuing disciplinary warning notices to eight employees (identified in fn. 231, supra, and further set forth in the Order which follows herein), under the circumstances described and found in II,B,4, supra, Respondent has interfered with, restrained, and coerced employees, and continues so to do, in the exercise of their rights under Section 7, in violation of Section 8(axl) of the Act.237 5. The aforesaid unfair labor practices have affected, are affecting, and unless permanently restrained and enjoined will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. It has not been established by substantial credible evidence upon the record as a whole that Respondent's termination of the employment of Jose Peguero on or about 234 Indeed, Sec. 9(a) of the Act expressly preserves the right of employees, individually or as a group, "at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative," even under a union which they support. 235 While immaterial in this connection (Sec. 8(a)(1)), it is also noted that, of the eight employees so disciplined, no less than five were members of Distributive Workers 65, and that although one (A. Rodriguez) later signed a December 10, 1973, under the circumstances described and found in 11,B, 1, supra, was in violation of the Act. 7. It has not been established by substantial credible evidence upon the record as a whole that Respondent's termination of the employment of Rafael Bueno on or about December 27, 1973, under the circumstances de- scribed and found in II,B,2, supra, was in violation of the Act. 8. It has not been established by substantial credible evidence upon the record as a whole, under the circum- stances described and found in II,B,3, supra, that Respon- dent's termination of the employments of the following persons was in violation of the Act: Francisco Altamirano, Miriam Arango, Fulvia Benjumeda, Maria Cruz, Natalia Esquilin, Maria Lopez, Wilfredo Lorenzana, Jose Maiso- net, Elisa Martinez, Raul Salcedo, Maria L. Sanchez, and Awilda Soto. REMEDY Respondent, having been found to have recognized and entered into collective agreements which it is continuing to maintain with Teamsters Local 806 and enforce against its employees under the circumstances found above, should be required to cease, desist, and refrain from continued maintenance or enforcement thereof; under the circum- stances shown, to withdraw recognition from Teamsters Local 806 unless that labor organization is duly certified by the Board in a secret-ballot election of Respondent's employees held for that purpose in a collective-bargaining unit or units appropriate for that purpose; and to make its employees whole, with interest, for any sums withheld from their pay as and for initiation fees, dues, pension fund payments, or other fees or moneys paid over by Respon- dent to Teamsters Local 806 by reason of Respondent's maintenance and enforcement of the collective agreements herein found unlawful. The abrogation of said collective agreements shall be without prejudice to employees' wages or other economic conditions of employment now in existence ; and with regard to any hospitalization, medical, sickness, or similar casualty or other coverages or indemni- ties, reasonable provision shall be made, as set forth in the Order which follows, to provide employees with substitute coverages. Insofar as the unlawfully terminated employees are concerned, Respondent should be required to offer them reinstatement, with backpay and interest calculated in the manner explicated in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962); and as to the eight employees to whom Respondent unlawfully issued'disciplinary warnings and whose pay it docked, the warning notices shall be removed from their personnel folders and all company records and entries thereof expunged. All company records and entries shall also be corrected so as to show that none of the unlawfully terminated employees were terminated for card for Teamsters Local 806 as well, none of the eight was exclusively a member of Local 806. 236 I.e., with the sole exception of Gladys Diaz from the date of her recall. 237 It is unnecessary to reach the question of whether some or all of these disciplinary warnings were also in violation of Sec. 8(aX3), since the remedy would be the same. HARTZ MOUNTAIN CORP. unsatisfactory work or for any reason reflecting on their work performance or conduct. Respondent shall be re- quired upon request to make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to analysis of backpay and other amounts due under and the extent of Respondent's compliance with the terms of this Order. In view of all of the circumstances of this case, including the unusually protracted, complex, and difficult nature of these proceedings - all growing out of Respondent's precipitate, unlawful recognition of Team- sters Local 806, in contrast to its refusal to even meet with Distributive Workers District 65 to enable that Union to demonstrate its alleged representation credentials, in my opinion fairness requires the reimbursement of Distributive Workers District 65 for its organizing expenses and reasonable counsel fees, and I shall so recommend. Finally, a notice to employees, in both English and Spanish, shall be publicly posted and maintained in Respondent's Jersey City factory in the usual manner required in cases of this type. Upon the foregoing findings of fact, conclusions of law, and the entire record of this consolidated proceeding,238 and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER239 The Respondent, The Hartz Mountain Corporation, Jersey City, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Giving effect to a recognition agreement dated November 30, 1973, and to certain collective agreements entered into between The Hartz Mountain Corporation and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 806, or General Teamster Industrial Employees Local Union #806, affiliated, with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, dated December 1, 1973, or to any of its terms or provisions, and refrain from any renewal or extension thereof; without prejudice, however, to any wage scale, rate, increment, increase, vacation, or holiday or sick leave period, hospitalization, sickness, medical, dental or other insurance or indemnity coverage, or any other economic benefit or emolument granted thereunder, or accruing or to accrue to any employee or former employee of The Hartz Mountain Corporation thereunder or in consequence thereof. With regard to any such existing insurance or indemnity coverage maintained by or through said Team- sters Local 806, Respondent shall forthwith provide an equivalent substitute so that no such coverage shall be discontinued or lapse while in Respondent's employ. 238 Cf., e.g., Russell Motors, Inc.; Amalgamated Local Union 355, 198 NLRB 351 (1972), enfd. as modified 481 F.2d 996 (C.A. 2, 1973), cert. denied 414 U.S. 1062 (1973). No remedial order is made against Teamsters Local 806 since the consolidated complaint as amended contains no allegation of violation by the Union of Sec . 8(bX2) or other provision of the Act. 239 In the event no exceptions are filed as provided in Sec. 102.46 of the 563 (b) Giving effect to, or maintaining, or asserting the validity of any membership card or bargaining representa- tion authorizational card executed by any employee of the Jersey City, New Jersey, plant of The Hartz Mountain Corporation on or since November 1, 1973, for the purpose of recognizing said Teamsters Local 806 as the representa- tive of the signatory of such card. (c) Giving effect to any authorization executed by any employee of the Jersey City, New Jersey, plant of The Hartz Mountain Corporation on or since November 1, 1973, requiring or authorizing The Hartz Mountain Corporation to check off, deduct, withdraw, withhold, or otherwise not pay to any such employee, or to pay over to Teamsters Local 806 for initiation fees, dues, hospitalization, or other insurance or indemnity, pension or retirement, or any other obligation or incident of membership in Teamsters Local 806, any part of such employee's wages due; and return each such authorization to the signatory employee, with a letter or notation in English and Spanish stating only: "This card is no longer effective. It is returned to you by order of the National Labor Relations Board." (d) Directly or indirectly giving, contributing, or extend- ing any assistance, support, or preferential treatment to Teamsters Local 806 or to any labor organization, in violation of the Act. (e) Directing, authorizing, or permitting any of its officers, officials, supervisors, or agents to enlist or solicit, directly or indirectly, any of its employees to join any labor organization, or to withdraw or refrain from membership in any labor organization, in violation of said Act. (f) Threatening not to recognize, deal, or negotiate with Distributive Workers District 65 (or any other labor organization), in the event employees of The Hartz Moun- tain Corporation select said District 65 (or any other labor organization) as their bargaining representative in a unit appropriate for collective bargaining. (g) Encouraging or discouraging membership in any labor organization by discriminating in regard to hire or tenure of employment or any term or condition of employ- ment, in violation of the Act. (h) Terminating the employment of, discharging, laying off, suspending, disciplining, or reprimanding any employ- ee because of lawful membership in, activity on behalf of, or sympathy with any labor organization, or because of his or her lawful failure or refusal to join or affiliate with any labor organization, or because he or she exercises any right protected under said Act. (i) In any other manner interfering with, restraining, or coercing any employee in the exercise of the right to self- organization; to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of his 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act: 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. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Forthwith withdraw and withhold recognition from, Gladys Diaz or negotiate or deal with, said Teamsters Local 806 as the Luz Fabiola Diaz bargaining representative of any unit of employees at the Amada Flores Jersey City, New Jersey, plant of The Hartz Mountain Alejandrina Fontanez Corporation, unless and until said Teamsters Local 806 has Jacinta Fontanez been duly certified by the Board to be such representative Maria J. Gonzalez following a Board election . Lucia Malave (b) Reimburse each employee or former employee of the Pascual Malave Jersey City, New Jersey, plant of The Hartz Mountain Alejandrina Nieves Corporation who has paid or been charged, or who has had deducted from his or her wages, by checkoff or otherwise, under or in consequence of the aforesaid recognition of or collective agreements with Teamsters Local 806 or any checkoff authorization or otherwise, or any modification, renewal, or extension of any of the foregoing, any and all initiation fees, dues, and other charges, payments, exac- tions, and amounts paid by or on behalf of such employee, on or since November 1, 1973,240 plus interest. (c) Reimburse Distributive Workers District 65 for its expense of organization incurred in connection with the employees at the Jersey City, New Jersey, plant of The Hartz Mountain Corporation prior to December 1, 1973, and for its reasonable counsel fees and disbursements incurred in the consolidated proceeding resulting in this Order, the amounts thereof to be determined , if agreement cannot be reached thereon, by order on petition to the Board, i jurisdiction being expressly retained for that pur- (d) Offer the following persons immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights, privileges, and emoluments, expunge from their personnel folders and all other records and entries of Respondent, every indication that they were terminated, discharged, or laid off for any reason involving poor or unsatisfactory work performance or conduct, and make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, in the manner set forth in "The Remedy" portion of the Decision of which this Order forms a part: Rita Acevedo Virginia Otero Clara Aguilar Cecilia Pacheco Fernando Aguirre Elsa Pacheco Julia Aguirre Alida Pagan Maria Elena Arguello Daisy Pagan Irma Avellaneda Enriqueta Pagan Elesa Bello Gladys Pelliccia Damiana Cancel Eloisa (Aloisa) Perez Milagros Cancel Luis (Enrique) Ramos Luz C. (Celenia) Cardona Amalia Rivera Mariana Castro Lydia M. Rivera Dominga Cintron Mercedes Rivera ,Marie Diana Rosa M. Rivera 240 This provision is deemed particularly appropriate in view of the inclusion in the unlawful collective agreements between Respondent and Teamsters Local 806, of mandatory maintenance-of-membership and check- off requirements. Cf., e.g., Virginia Electric & Power Company v. N.LRB., 319 U.S. 533, 539-541 (1943); Russell Motors, Inc., supra, N.L.A.B. v. Raymond Buick, Inc, [Amalgamated Local Union 3551, 445 F.2d 644, 645 (C.A. 2, 1971); Bernhardt Bros Tugboat Service, Inc. v. NLR.B, 328 F.2d 757 (C.A. 7, 1964). Marta Ocasio Damiana Ruiz Maria del Carmen Salcedo Angel Santiago Maria Estelle Santiago Maria Teresa Santiago Ada Iris Vargas Ana Ventura Rosa Villegas Ana Zapata (DeKalb Street) Ana Zapata (Bright Street) (e) Expunge from the personnel files of the following persons, and from all other records and entries of Respon- dent, every disciplinary warning or notation issued to them in relation to their visit to Respondent's Jersey City, New Jersey, Plant Manager Petrera on or about July 2, 1974: Nilda Lopez Eloisa (Aloisa) Perez Carmen Navarro Albertine (Albertina) Rodriguez Alejandrina Nieves Maria Sanchez Concepcion Pastrana Maritza Tiburcio. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other records necessary to analyze the amount of refunds and other payments due under the terms of this Order. (g) Post at its factory in Jersey City, New Jersey, copies of the attached notice marked "Appendix," in Spanish as well. as in English.242 Copies of said notice, on forms provided by the Regional Director for Region 22 shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including its plant cafeteria in its Jersey City, New Jersey, plant and all places in said plant where notices to employees are customarily posted. Rea- sonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the consolidated amended complaint in this proceeding be and the same is hereby dismissed insofar as it relates to Respondent's termination of employment of the following employees: Jose Peguero Maria Lopez Rafael Bueno Wilfredo Lorenzana Francisco Altamirano Jose Maisonet Miriam Arango Elsia Martinez Fulvia Benjumeda Raul Salcedo Maria Cruz Maria L. Sanchez Natalia Esquilin Awilda Soto 241 Cf. Local57, International Ladies' Garment Workers' Union, AFL-CIO [Garwm Corp. et all v. N.LR.B., 374 F.2d 295, 304, fn. 22 (C.A.D.C., 1967), cert. denied 387 U.S. 942. 242 In the event that this 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."