Doral Building Services, Inc.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dora! Building Services, Inc. and Abel A. 'Palma, and Juan Hernandez. Cases 31-CA-9403 and" 31-CA-9420 14 December 1984 SUPPLEMENTAL DECISON AND , ORDER - BY CHAIRMAN DOTSON AND ,MEMBERS ZIMMERMAN AND DENNIS On 13 January 1981 the National Labor Rela- tions Board issued its Decision and Order sin this proceeding,' in which it adopted Administrative Law Judge David G. .Heilbrun's findings that the Respondent violated Section 8(a)(3) and (1) of-the Act by discharging employees Palma and Hernan- dez and Section 8(a)(1) by interrogating, threaten- ing, and promising benefits to several of its em- ployees. On 28 January 1982 the United States Court of Appeals for the Ninth- Circuit denied en-: forcement of the Board's Order and remanded the case to the Board for the limited purpose of -per- mitting the Respondent to cross-examine three wit- nesses regarding affidavits they submitted to the Board. 2 On 11 August 1982 the -Board remanded the case to the judge to reopen the hearing- to permit,the re-, quired cross-examination and to issue a . supplemen- tal decision following the reopened hearing. On 30 August 1983 the judge issued the attached supplemental decision. The Respondent filed excep- tions and a supporting brief. The Natiönal Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the original and Sup- plemental decisions and the record in light of the exceptions and brief and has decided to affirm the 254 NLRB 105 2 NLRB v Dora! Bldg Services, 666 F 2d 432 (9th Cir 1982) 3 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In the initial decision, the judge found that employee Donado's testi- mony corroborated employee Palma's claim that Palma had discussed unionization of the Respondent's employees with General Manager Gamboa at a party in early September 1979 The decision also suggests, however, that Donado testified only to speaking with Gamboa at the party about possible employment and that Donado "could not testify as to any details" of the conversation between Gamboa and Palma The record clearly shows and we find that Donado credibly testified that he heard Palma and Gamboa discuss unionizing at the party Contrary to the dissent, the judge in several instances did reject the Respondent's allega- tions of inconsistency in the employees' testimony and affidavits More- over, we agree with the judge that the inconsistencies that do exist are minor and do not diminish the employees' credibility as established in part by their demeanor Nor do the minor inconsistencies render credible the rejected testimony of the Respondent's witnesses judge's rulings, findings, 3 and conclusions4 and to adopt the supplemental decision's recommended • disposition. - ORDER Based on the judge's decision and supplemental decision and the entire record, the National Labor Relations Board reaffirms its Order issued 13 Janu- ary 1981 and orders that the Respondent, Doral Building Services, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the -action set forth in that Order. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I cannot adopt the judge's credibility findings in this case. Iii crediting the testimony of employees Palma and' Hernandez, the judge indicated that he gave "major weight" to demeanor because of the prob- lems which he considered inherent in the transla- tion, of testimony. The judge quoted extensively from law review articles analyzing the difficulties of translation, and he concluded that "the entire mechanism of interpreting a witness' answers is open to some question." The judge noted the nu- merous, inconsistencies in the employees' testimony, but he attributed those inconsistencies to complica- tions created by "the translation patterns of one language into another." Even accepting the premise that there are inher- ent difficulties in translation, I conclude that the judge's lengthy discussion of these difficulties misses the mark. What is most apparent from the testimony of Palma and Hernandez is not that they misinterpreted or failed to understand the, questions being asked, but that they were unable consistently to remember the significant events which tran- spired in this proceeding. Subtle differences of meaning surely arise during translation, but those differences have no relation to the question of whether a witness has the ability to remember a particular event. In my view, the judge's heavy 4 In the supplemental decision, the judge reaffirmed his conclusion that the Respondent interrogated employees in violation of Sec 8(a)(1) The onginal decision, however, did not clearly identify those unlawful inter- rogations The record discloses the following unlawful interrogations (1) several days before 20 September 1979 General Manager Gamboa asked employee Ramiro Aleman if he had signed a union card, (2) on or about 13 September 1979 Gamboa asked employee James "what we thought about the union", and (3) on 20 September 1979 President Alan Florea asked a group of assembled employees if they had signed union cards and if they knew those cards belonged to the Union We note that the inter- rogations occurred against a background of other unfair labor practices and that there is no evidence the interrogated employees had openly pro- claimed support for the Union See generally Rossmore House, 269 NLRB 1176 (1984) Member Zimmerman, who dissented in Rossmore House, does not rely on that case, although he agrees with his colleagues that these interrogations violate Sec 8(a)(1) 273 NLRB No. 69 DORAL BUILDING SERVICES 455 emphasis on the difficulties of translation is not dis- positive of the issues in this case. Apart from the issue of translation, I am not per- suaded by the judge's reliance on demeanor. The Board has recently emphasized that "the invocation of the demeanor factor is not a substitute for a complete review and analysis of all the record evi- dence." The judge set forth the employees' nu- merous 'inconsistencies, but instead of analyzing their testimony he simply stated that the inconsist- encies were of "insufficient significance" and that the ,Respondent's contentions were "most sterile." In addition, the judge labeled Palma's 'extensive memory lapses as "personal musings during an ex- traordinary experience not fully understood as to purpose." The judge has simply obfuscated the issues, and I see little to distinguish his conclusional statements from the failure of the judge in Jewel Bakery to analyze the "internal ambiguity" and "confusion" of the testimony of a credited wit- ness. 2 In view of the foregoing, I would reverse the judge's credibility resolutions. As the judge noted, those findings were crucial to the General Coun- sel's prima facie case, and consequently I would dismiss the 8(a)(3) and (1) allegations with respect to Palma and Hernandez. 1 Jewel Bal4ty, 268 NLRB 1326 (1984) 2 268 NLRB 1326 SUPPLEMENTAL DECISION DAVID G. HEILBRUN, Administrative Law Judge Fol- lowing hearing on an 8(a)(1) and (3) complaint in May 1980, the Board issued its Decision and Order (254 NLRB 105) on January 13, 1981, adopting conclusions that certain unfair labor practices had been committed by Respondent and expressly finding no basis to disturb cer- tain credibility findings._made in the decisional process. Thereafter on January 28, 1982, , the United States Court of Appeals for the Ninth Circuit rendered an opinion (666 F.2d 432), denying enforcement of the Board's Order and remanding the case with directions to reopen the record and permit Respondent a described measure of cross-examination. The Board accepted the court's remand after duly considering the matter and, on August 11, 1982, issued its Order reopening the record to permit cross-examination in reference to the affidavits of Abel Palma, Juan Hernandez, and Isaias Donado on the basis of official English language translations of preheanng Spanish language statements. Pursuant to this reopening and remand Order of the Board, the matter was set for further hearing on April 5, 1983, at Los Angeles, California. This transpired with each of the three named individuals being cross-exam- ined by Respondent respecting their original testimony in May 1980, based on official English translations of their investigatory affidavits as originally written in Spanish and in that form attested thereto Following this the matter was reopened on June 2, 1983, at which time Board Agent Frank Kazsimer, the person investigating the unfair labor practice charges on which the complaint issued, was examined by Respondent concerning his affi- davit-taking practices with foreign-speaking witnesses, and in particular reference to a witness response of Donado that notwithstanding the typical jurat to his own Spanish language statement he could not, in fact, read Spanish. On the entire record 'as now made, my observation of witnesses, and consideration of the General Counsel's oral summation made on June 2, 1983, as well as Re- spondent's postheanng brief, I make these further find- ings, conclusions, and recommendation I. FULFILLMENT OF COURT REMAND A Introduction In writing its opinion the Ninth Circuit noted that since "no one at the hearing understood Spanish" a proper cross-examination was rendered "impossible and unhelpful to a Judge charged with, making credibility de- terminations." It was this factor which led the court to require that "Official English translations of the original Spanish statements should be prepared" . and furnished in connection with reopening The reality of this proceeding, as would be expected in a modern polyethnic urban setting, is that language com- prehension of persons involved had adumbral character- istics This is exemplified by the situation of Ramiro Aleman, a witness for the General Counsel whose origi- nal testimony covered 46 pages of transcript Aleman's testimony was 'assessed in my original decision, and he was specifically named as a "credible" witness' insofar as merits of- the case were concerned. Aleman testified through an interpreter and initially negated any under- standing of English (Tr. 188), but later modified this to say that he understood "A little bit" (Tr. 206). This raises the obvious ,question of how this "little bit" of comprehension manifests in the thought processes of an individual as he functions on the witness stand being asked questions about events of the past, and is a matter in harmony with my observations and those of counsel. Respondent expressly sought to have the record reflect that Aleman "was responding to the question prior to it being translated" (Tr 167), while the General Counsel both expressly agreed to "making that representation" and further observed that Aleman "begins to answer some questions prior to the time the translater has com- pleted the interpretation" (Tr 191). I am on record as agreeing that Aleman "does seem to be anticipating some of these questions as though he has some command of the language [and] seems to understand the thrust of The pattern of Aleman's testimony was the same as Palma, Juan Her- nandez, and Donado, inasmuch as Respondent requested preheanng state- ments and was provided the Spanish version and unaficial English trans- lation (Tr 175-175) Following Aleman's testimony a return of this mate- rial was requested by the General Counsel ,(Tr 268) Nevertheless Re- spondent has not apparently included Aleman in its arguments to the Ninth Circuit, nor was his situation treated in the court's opinion 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some of [Mr. Kaplan's] questions, or part of them. It's one of these gray areas." (Tr. 167). And for this reason I asked the interpreter to instruct him "simply tb hold his answer until he has heard the question in Spanish" (Tr. 167). This highlights the problem of dual-language com- prehension at a given moment in time, separate and apart from the question of whether and to what extent an indi- vidual has increased (or decreased) such comprehension with the passage of time, and at a later point being ques- tioned, again through an interpreter, about claimed in- consistencies in his or her previously translated testimo- ny. A further matter of significance is that during investi- gation and pretrial of an unfair labor practice case a wit- ness (Palma being an example) is questioned at different points in time, for different purposes, and by different in- dividuals. Initially such interrogation is to ascertain whether sufficient evidence exists in support of the charge for issuance of complaint in the matter. Once this threshold point is passed, the Government is adyocating allegations of the charge and preparing its witnesses ac- cordingly. Thus Palma was twice interviewed by Kaz- simer and had his responses reduced to a version record- ed in his native language. However, he was subsequently spoken with by trial counsel about factual circumstances (Tr. 1042-1043), and he expressly recalled that this in- volved "different" questions. In this general context some observations are in order, both from the standpoint of common experience and as focused on in literature concerning this phase of jurisprudence. B. Bilingualism Roberto Tschudin authored an article : posing the ques- tion of whether a Federal court could impart the best kind of justice in Puerto Rico, a Spanish society. The answer, so termed by the author, "as I learned, is no." Essence of this article was a proposal for an intricate for- mula based on language fluency Of defendants and coun- sel insofar as the United States Distnct for the District of Puerto Rico was concerned, with proceedings that might be conducted in Spanish, English, or in both languages In developing this' idea the author pointed to a learned study which had identified "three kinds of bilingualism" relative to the Spanish language. The least fluent type is termed "incipient Bilingualism," and attaches to a popu- lace other than "upper strata of . . . society" or "Eng- lish-speakers, particularly those in the middle class." The resultant "large number" of persons to whom this sort of "pidgeon English" pertains are described as "incapable of forming complete sentences in English." In this con- text the author posits that "[u]se of interpreters delays proceedings, is rarely perfect, and interferes with effec- tive cross-examination." Tschudiri, The United States Dis- trict Court for the District of Puerto Rico: Can an English language court serve the interest of justice in a Spanish lan- guage society?„ 37 Revista Del_ Colegio de Abogados de Puerto Rico 41-86 (Feb. 1976). It has also been observed as part of fundamental "Problems of Interpreting and Translating" that "Inter- preting or translating ,a foreign language is a complex task. . Some nuances of language may escape all but expert linguistic interpreters." This article 2 also noted: In this country, numerous external and individual factors result in wide varations in the Spanish and English a person ultimately learns to speak._ Such _factors include the amount of education received in either language and the extent to which a family be- comes, acculturated into . American society. Social and financial problems beyond individual control can also affect the amount of education and accul- turation attained. Wholly distinct from linguistics are personal con- siderations such as pride and a desire to save face or family honor. These are frequently strong cultural aspects which can inhibit many from requesting an interpreter in court or from seeking other legal help. This presents a problem for those who must supervise interpreter personnel, since interpreters themselves may be too proud or too embarrassed to declare that they are unable to translate a given word or phrase It is much easier to bluff or to pass over the matter. After all, who will know? Inter- preters are usually the only bilingual: persons in the courtroom. Among the uneducated, especially in the South- west, a mixture of English and Spanish words has evolved which cannot be understood in any Span- ish-speaking country and' which can present a prob- lem for many interpreters. In a general sense this writer believed that (Attorneys Guide, supra at 472-473): Interpreting is not a mechanical substitution of words in one language with their verbatim equiva- lent in another. . . An extensive vocabulary and a sure grasp of the meaning of words is necessary to translate scientific, technical, or legal transactions. Less obvious to many is that a similar linguistic skill is necessary to translate slang, dialects and everday idiomatic expressions. Such linguistic elements exist in every language They pose a special problem for the courts because most courts are not prepared to evaluate the competency of interpreters with these elements in mind. These observations are but a prelude to a second trou- bling aspect insofar as ferreting out what a person has seen, heard, or generally experienced as a matter of mature adult awareness. The aspect is directly that of the link that is provided by interpreters in an administrative proceeding such as this, or for that matter in any general legal setting. C. Interpreters The fundamental quality of conveying the essence of what an individual has once heard is compounded when 2 Attorneys Guide to the Use of Court Interpreters, With an English and Spanish Glossary of Criminal Law Terms, 8 U Cal, Davis L Rev 471 at 476 (1975) DORAL BUILDING SERVICES 457 the experience was in one language and it is to be evalu- ated by its attempted translation into another. This was exactly the theme of a recent article in which the follow- ing passage appears: Of course it does not follow, once a non-English speaker is provided with the services of a compe- tent interpreter, that his chances in the courtroom situation are now as good as his English speaking counterpart. Nothing could be further from the truth. . . . The frailties of any evidence or argu- ments are so much more readily grasped when one is hearing them directly in one's own language. [Crouch, Interpreters, Translators and Legal Services Toward a Better Understanding, 55 Law Journal Institute 264 (1981)1 It also has been noted how it is "impossible" to equalize the position enjoyed by an English-speaking witness with a non-English-speaking one, because when the latter is "assisted by a competent interpreter [lan- guage], chameleon-like at its inception, may lose many of its fine distinctions when filtered through the additional medium of an interpreter." (The Right ..to an Interpreter, 25 Rutgers L. Rev. 145 (1970L1971).) This conundrum goes even deeper as reflected in this insightful quotation: Yet behind the questions of competency of the in- terpreter and the quality of the interpretation lies the question of what the [witness] heard and agreed to . . . The trial record often reveals almost noth- ing of what an interpreter has in fact communicated to the defendant or whether the defendant has un- derstood. [Safford, No Comprendo: The Non-English Speaking De- fendant and the Criminal Process, 68 J. Criminal Law & Criminology 15 (1977).] Relatedly, another authoritative publication has identified and evaluated, -"19 major dia- lectal forms of Spanish and numerous minor forms. . . . It is very important for the interpreter to know the context within which the translation is made. Words, of course, change meaning within given con- text." (Rainof, How to Best Use an Interpreter in Court, 55 Cal St. B. J. 196 (1980).) In summation the entire mechanism of interpreting a witness' answers is open to some questions, and this is compounded when it is further realized that the "offi- cial': English language translations of this proceeding have been completed by a person not necessarily sharing the same etymological, semantic, or idiomatic frame of reference as the guiding court interpreter.3 3 In the instant case a replacement interpreter was obtained during the ve6 course of cross-examining Palma at the original trial, when Illness prevented continuation by the one that had translated up to that point for Spanish-speaking witnesses (Tr 395) Aside from the fact that the notion of "so-called literal or stnct method rather than a paraphrasing of witnesses' answers" was structured for the replacement interpreter after off-the-record conferring with counsel (Tr 396-397), there is total uncer- tainty about whether the second interpreter had a parallel level of com- munication with Palma or later witnesses, as compared with the first In- terpreter This concern is exactly at the root of what was written in the Ramof article, supra, where the author followed his point with an exam- ple about an "interpreter [being] replaced in the afternoon session D. Methodology For these reasons I have given major weight to de- meanor characteristics of the several witnesses cross-ex- amined pursuant to the court's remand. This is not to infer that literal disparities, or unexplained aspects of tes- timony, as set forth in the record itself, are not fully con- sidered. It does mean, as harmonized in another writing,4 that the palpable effort at speaking truth has been fully assessed in the overall factfinding process. II. CONTENTIONS' The nature of this supplemental proceeding is such that Respondent's contentions are set forth in advance of those by the General Counsel. This is so because Re- spondent marshaled its arguments more comprehensively and the General Counsel's role is essentially a responsive one, plus that the original trial attorney is no longer available to the Government. A. Respondent's Argument Here it is asserted that the testimony of Palma and Juan Hernandez should not now be credited. As to these witnesses it is argued, respectively, that their testimony is "rife" and "riddled" with contradictions, inconsistencies, and omissions. In support of these assertions Respondent points out various aspects of their testimony as given on April 5, 1983. With respect to Palma, Respondent's postheanng brief 'on remand makes these detailed obser- vations (transcript references and footnotes omitted): At hearing, Palma testified that his cousin Donado was present when he had a conversation with Gamboa in September, 1979, during which Gamboa allegedly promised him certain benefits if he gave up his support- of the Union. However, after twice reading over his pre-trial afidavit he was unable to point to any reference to Donado, and had to admit to the omission Nevertheless, he ada- mantly claimed that he told the Board agent who took the affidavit that Donado was with him when he spoke to Gamboa. Palma did concede that the agent had him read the affidavit over before he signed it, and told him that he could make changes and additions to it. He attempted to explain his fail- ure to add Donado to the affidavit by saying that he must have forgotten to tell the agent that Donado had been omitted. In his affidavit, Palma stated that during the con- versation with Gamboa he understood that he was being offered certain benefits, "so that I would leave the Union, Gamboa did not say it with words but that was how I understood it." [Emphasis added.] And he confirmed this by his testimony at the reopened hearing. However, this is in direct conflict with Palma's testimony in the initial hear- ings that Gam boa said; "that in LA they were going to 4 Here the emphasis was noted as importance of "Atttentive[ness] to the [witness] manner of testifying and link it with the English transla- tion afterwards" (Comment, Trying Non-English Conversant Defendants: The Use of an Interpreter," 57 Or L R 549 at 552 (1978) ) 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get a building, and that he would give it to me so that I could make more money. But that I should stop going back and forth to the Union." [Emphasis added.] When asked to explain this conflict, Palma answered, "Maybe it's something that I forgot." Pressed as to -what he forgot, Palma said, ,"It's been so long ago So much time." Finally, Palma at- tempted to rationalize his different responses by claiming that he didn't actually understand the ques- tion asked of him in the prior hearings. • At hearing, Palma testified that he told Gamboa that he "could not back off from the union, because my co-workers had elected me to go pick up those cards." But this does not appear in his pre-trial affi- davit. Palma's only explanation for this omission was that it "could have been something that I forgot." In his affidavit, Palma averred that other than the conversation he had with Gamboa in early Septem- ber, 1979, "I was not interrogated, nor did I talk to the supervisors about the union" Yet he testified at both the initial and reopened hearings that he had not one, but three conversations with Gamboa about the Union. When this inconsistency was pointed out to him, Palma claimed that he recalled telling the Board agent who took the affidavii about all three conversations. But pressed on this point, he _ backed off and testified, "I don't recall very well if I told him." Palma's explanation for not telling the Board agent about all three of the supposed conver- sations was, once again, that he forgot. At hearing, Palma testified that he had two con- versations with his supervisor Ruben Hernandez about the Union. But these conversations are not re- flected in his pre-trial affidavit. Asked to explain this omission, Palma cryptically answered,_ "If I can recall, perhaps I thought that it wasn't important." Upon further examination, Palma responded, "I don't recall I am very confused." Finally, Palma fell back upon what had become his standard answer: "Forgot. Perhaps I forgot." At the initial hearing, Palma testified that he had two conversations with supervisor Oscar Sanabna about the Union. However, at the reopened hearing he was only able to recall one of these conversa- tions. And no such conversations were mentioned in his affidavit. Once again, Palma's only explanation for this omission was, "Perhaps, something that I forgot. I don't remember." In his pre-trial affidavit; Palma stated that on September 10, 1979, when he and Ruben Hernandez were found in an office looking at magazines during working time, "Gamboa only told me that he or- dered Ruben to do something with me Gam boa did not say anything about a warning . . . ." [Emphasis added.] And he confirmed this by his testimony at the reopened hearing But at the initial hearings, Palma testified that Gamboa told him that "he had given Ruben Hernandez an order so that he could give me a warning" [Emphasis added.] When asked to explain this contradiction, Palma's only answer was, "I can hardly recall well. I don't recall that I don't fecal]." During the initial hearings, Palma testified that on September 10 Rub-en Hernandez told him that he had been ordered by Gamboa to prepare written warning notices for both himself and Palma. How- ever, this is not mentioned in Palma's pre-trial affi- davit. Queried about this omission, Palma's only re- sponse was "I don't recall why I didn't mention it." According to Palma's affidavit, on September 17, 1979, Gamboa told him that he was fired. That same night, Gamboa also told Ruben Hernandez to prepare a warning notice for Palma. At the re- opened hearing, Palma testified that he was told that he was fired before Gamboa directed that a warning be written. But in the initial hearings, Palma had testified that he was fired after Gamboa told Hernandez to write the warning. Palma tried to explain away this inconsistency by saying that per- haps he hadn't been asked about the order of events • when he was originally called to testify. However, it was pointed out to him that he had been asked that very question. Again 'asked to explain the in- consistency in his testimony, Palma answered, "It could be, because up to this date I don't recall well." Pressed to explain further, Palma could only say, "I need words at this moment in order to ex- plain." At the reopened hearing, Palma testified that he refused to sign the warning that Ruben Hernandez prepared on September 17. However, he didn't tell Hernandez Why he wouldn't sign it But at the ini- tial hearings he testified that he told Hernandez that he wouldn't sign because "I did not see any reason for them to fire me" Questioned about this incon- sistency Palma stated, "I don't recall well. If was Mr. Hernandez. I don't recall." According to Palma, after he refused to sign the warning notice prepared by Hernandez, Gamboa di- rected that he be given a second warning notice. So he actually received two notices on September 17, both of which he refused to sign. Yet at the initial hearings he had testified that he was only given one warning notice on his final day of work When asked to explain why if he was given two warnings he only testified to one of them, Palma's response was, "I forgot I forgot." The comparable. observations with respect to Juan Hernandez are. In his pre-trial affidavit, J Hernandez stated that, "I was never given any warning about my work. Gamboa told- me once that I was a good worker . . ." at the reopened hearing, J. Hernan- dez confirmed that he was only complimented by GAmboa on one occasion. And yet at the initial 'hearings he testified that he was thus praised two or three times. Asked to explain this inconsistency, J. Hernandez first claimed that "In the statement, it doesn't exactly indicate that it was Just once" However, the official translator of the proceedings DORAL BUILDING SERVICES 459 - contradicted this, stating that the original Spanish language affidavit reflected that Gamboa made the statement attributed to him by J. Hernandez just once. Hearing this, J. Hernandez said, "when they asked me about that in my statement, I told them once. Now, when I gave testimony, I recalled that one time, and the other times." Of course, this doesn't explain his original answer at the reopened hearing that Gamboa only praised him once. When he gave his affidavit, J. Hernandez was unable to remember when he had been praised by Gamboa. But at the initial hearings he testified that this occurred a few days before his transfer. And he tendered no reason whatsoever for his spotty recol- lection. In his affidavit J. Hernandez quoted Florea as saying that, "If the union wins, you will lose your job." At hearing, he testified that Florea also said, "that they could get other buildings, in other places, and would not give us any jobs." But this is not 're- flected in the affidavits. When questioned about this omission, J. Hernandez first answered, "Because they didn't ask." Then he conceded that the Board agent who took his affidavit had asked him about what Florea had said And he sought to explain the omission from his affidavit by claiming that "at that moment I didn't remember." However, when -quer- ied about what had happened between the time he gave his affidavit and the time he originally testified which had helped him to remember additional "facts," J. Hernandez could only say, "I started re- membering more things." • In his pre-trial affidavit, J. Hernandez said that on his final day of work he sat down in a chair and fell asleep. When asked at the reopened hearing if he hadn't actually lain down on a sofa, J. Hernan- dez said, "No." Pushed on this matter, he 'conceded that he wasn't certain if it was a chair or' a sofa. But, he was sure that he wasn't laying' down. How- ever, at the initial hearings he testified that he "laid down in a sofa and I fell asleep." J. Hernandez tried to explain this inconsistency saying, "I didn't think there was much of a difference." In his affidavit, J. Hernandez stated that Gamboa said nothing to him when he found him asleep and awakened him. And , hç confirmed this at the re- opened hearing. But at the initial hearings, he testi- fied that Gamboa asked him what happened when he woke him up. J. Hernandez explained this incon- sistency by claiming that he simply didn't recall Gamboa saying anything when he gave his affida- vit. Yet, he offered no explanation at all for the change in his testimony from the initial to the re- opened hearings. B The General Counsel's Argument Here the assertion that original credibility findings should be adhered to is summarized under four principal arguments made in this regard. As orally delivered upon close of the hearing these were: First, although Respondent has pointed to a number of instances wherein Palma testified at the 1980 hearing herein to facts which did not appear in 'circumstance affidavits, the Board has held that such circumstance does not constitute a sufficient basis for impeachment. It is common for a Board agent to fail to ask questions while taking a statement which questions are later asked by a field attorney during trial prep- aration. And sometimes witnesses recall for the first time on the stand matters previously forgotten. See Civic Center Sports, 206 NLRB 428 at 431; Intl. Union of Electrical Workers, Local 601 (Westinghouse Electric Corporation), 180 NLRB 1062 at 1066. Secondly, although Respondent has pointed to a number of instances of discrepancies or inconsisten- cies between witness testimony and the presumably corresponding pre-trial affidavit, most of these in- stances involve minor variances, such as for exam- ple, whether Gamboa told Juan Hernandez that he was a good worker, once or two or three, times, and whether at the 'end of his shift on September 25th, 1979, Juan Hernandez fell asleep on a chair or a sofa. And where the discrepancy is of that type the Board has held it to be too minor to vitiate a wit- ness' general credibility. See Federal Copper & Alu- minum Co., 193 NLRB 819; Westinghouse Electric Corporation, supra. Thirdly, Respondent pointed to one major dis- crepancy between Palma's 1980 testimony and his 1979 pre-trial affidavits. In this connection, Palma testified tht Gamboa told him—I emphasize "told him"—quote, "In Los Angeles they were going to get a building and that he could give it to me so that I could make more money, that for me to stop going at the union in relation io the union." In his affidavit, Palma said that when he talked with Gamboa at his home in September 1979, he understood that Ganiboa was offering him benefits, such as a new building in Los Angeles, so that he would mit support the union. And Gamboa did not say it in so many words, but that's how Palma un- derstood it. However, in affidavit inconsistent with subse- quent testimony is not completely dispositive of the credibility issue, particularly where as here the affi- ant did not draft the statement and failed to give it close scrutiny before signing it. See Trailways, Inc., 237 NLRB 654. In this, connection, it need hardly be mentioned that the witnesses here were nowhere near as so- phisticated as the lawyer who was cross-examining theni. Moreover, major discrepancies may be resolved on the basis of a comparison of demeanor on the stand as between the witness who testified inconsist- ently with his affidavit and the witness who testified contrary to the testimonial version of the inconsist- .ent witness. See Mangurian's, Inc., 227 NLRB 113. Such comparison of demeanors may , well serve as the basis for concluding that the discrepancy or in- 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consistency was the result of a faulty memory rather than a deliberate effort to conceal the truth. Moreover, a witness may properly be generally believed notwithstanding that he is somewhat con- fused in his testimony on particular items. See Maxi- mum Precision Metal Products, 236 NLRB 1417. Fourth, although Palma, Juan Hernandez, and Donado were generally unable to explain why there were some inconsistencies between their 1980 testi- mony and their 1979 affidavits, such inability should not be held against them: Even sophisticated per- sons may be hard put to articulate their motivations, and the witnesses here were in particular difficulty be- cause of the differences in language' and the use of dif: ferent translators or -interpreters at every step in the Board's procedures. [Emphasis added.] III. ANALYSIS The perspective of this case must . remain firmly in mind for purposes of assessing what has been educed during the principal remand hearing. This'perspective in- cludes the fact that pure timing of discharges at issue was a factor in inferring unlawfulness to Respondent's actions, that Gamboa as a significant figure in the event- ful employment dynamics of September 1979 had, delib- erately but inexplicably, set out to "catch" at least Palma in an offense, and that Gamboa's own credibility was ex- tremely poor both as a matter of demeanor and as con- " tradicted by Respondent's own witness Miguel Murillo. A. Pa/ma's Testimony Regarding the omission from Palma's pretrial affidavit of any reference to Donado being at the Gamboa home in early September 1979, I find insufficient significance to this standing alone or as an aggregate matter with other details to which Respondent points. Trailways, Inc., 237 NLRB 654 (1978) This evaluation also applies to the matter of whether Palma had told , Gamboa how he would not back off from supporting the Union because his coworkers were counting on him to take this lead. It similarly applies to the matter of how many conversa- tions Palma had about the Union with both Ruben Her- nandez and Sanabria, the supervisor for another building. Finally, I also, apply the same evaluation to the point of whether on September 10, 1979, Ruben Hernandez had been ordered by Gamboa to prepare certain written warnings. Regarding the exact mode of how Gamboa communi- cated an enticement that if Palma forsook the Union he would obtain a more beneficial assignment to a new building to be maintained, Respondent has raised little of substance at Which to point Palma's prehearing affidavit (as officially translated) and his original testimony are merely a routine synopsis of the gist of what he credibly recalls being outlined to him by Gamboa during party at- mosphere The claimed "rationaliz[ation]" whereby Palma supposedly commented on his "differing re- sponses" of the time cannot be taken as more than an un- sophisticated attempt to respond about something which the individual only dimly comprehends. This specific area was one that I termed an "extremely fine distinc- tion" at the remand hearing, and I find nothing in the la- borious cross-examination of Palma on the point which casts doubt on his general credibility In regard to the number of Conversations had with Gamboa that were relevant to issues of this case, Re- spondent notes that Palma's prehearing affidavit states, in essence, that he had only one such conversation with Gamboa. However, the context of this statement is that it is part of a discretely marked paragraph with a time frame "beginning" in September 1979, whereas Palma ul- timately testified, as expectably so after pretrial witness preparation, that he recalled earlier conversations of 1 to 2 months prior to the September time period. Thus nei- ther in a literal or likely sense has Palma been shown to be inconsistent on the point. In regard to whether or not Palma had inconsistently first testified that- he was told of being fired after Gamboa told Ruben Hernandez to write a warning and then at the remand hearing testified that advice of being fired occurred before, I find this entire subject area to be only an illusory point that Respondent has constructed on an erroneous premise. Palma's original testimony was plainly that Gamboa told Ruben Hernandez to make a written notice "after" Gamboa told him he was fired - (Tr. 230), which conversely establishes that such advice was, as Palma reiterated on April 5, 1983, before the di- rective that he receive such a warning. Respondent's ref- erence to transcript page 393 on this point is insufficient, for the responses there to questions as posed are incon- clusive to establish any later inconsistency. -As to circumstances surrounding the warning notice given Palma on September 17, 1979, I find little signifi- cance to any discrepancy of recall insofar as whether he faced one or two notices that day, or whether he actual- ly uttered a refusal to sign one from Ruben Hernandez versus his testimony being taken only as a personal value judgment with respect to the distasteful termination from employment that had materialized. Thus, none of the points raised by Respondent are suf- ficient to shake the essential veracity of Palma's testimo- ny. Federal Copper & Aluminum Co., 193 NLRB 819 (1971). The overriding consideration is that of demeanor, for at all stages he impressed me as one vouching the truth and his frequent lapses into confessing forgetfulness during the searching, if not scathing, crosexamination is taken only as personal musings during an extraordinary experience not fully understood as to purpose, and com- plicated by the translation patterns of one language into another. On this basis I reaffirm my belief that Palma rendered credible testimony in regard to the essentially important issues on which an inference of unlawful dis- crimination was drawn. B. Juan Hernandez' Testimony The first point made by Respondent here is that the prehearing affidavit . refers to praise from Gamboa "once," while testimony referred to several such in- stances as subsequently recalled by the witness This is a variation of only the slightest moment affording no reason to doubt the essentials of other testimony. A simi- lar outlook obtains insofar as cross-examination at the DORAL BUILDING SERVICES 461 remand heanng produced a minor refinement in what Juan Hernandez remembered in expanding on remarks made by Florea (as interpreted by Gamboa) during an in- terrogation in mid-September 1979.! find nothing unusu- al about this witness testifying in fuller detail about such an episode, particularly because it was specifically al- leged as an 8(a)(1) violation in the complaint Predictably the General Counsel would attempt to enlarge on the supporting witness' version of the incident, and this in es- 'sence is all that Juan Hernandez has done in credibly having "remember[edj more things." ,The only other subject pointed to by Respondent here is that of circumstances when, on September 24, 1979, Juan Hernandez fell asleep on an article of furniture and was awakened by Gamboa. Considering the remoteness of these details to issues of the case, coupled with a natu- ral uncertainty when sleep or drowsiness has affected an experience, I discount any claimed significance to what Respondent argues as inconsistencies in this regard. Essentially Respondent has a most sterile basis to con- tend that basic credibility findings respecting Juan Her- nandez should be varied, and with a repetition of satis- factorily impressive demeanor on his part during the remand hearing I am not influenced to reach any changed outlook for this witness.6 C. The Record as a Whole Section 10(c) of the Act provides that the Board may properly find unfair labor practices to have been engaged in "upon the preponderance of the testimony taken." This associates to Section 10(e) and (0 in which such findings shall be conclusive "if supported by substantial evidence on the record considered as a whole." - On June 15, 1983, the United States Supreme Court issued its opinion in NLRB-v. Transportation Management Corp., 462 U.S. 393 (1983) This holding reversed the 5 Respondent did not assert in its brief that the testimony of Donado, as given at the remand hearing, contained contradictions, inconsistencies, or omissions as would warrant discrediting him in any material regard First Circuit Court of Appeals, resolved decisional con- flicts among the courts of appeals and relatedly approved the Board's 1980 decision in Wright Line, 251 NLRB 1083 (1980). To the extent that Respondent may not have had the benefit • of this recent opinion in briefing the instant matter, I observe that the reaffirmed credibility findings establish a prima facie case which it is the Gen- eral Counsel's burden to prove, and that in such a situa- tion it is proper to require an employer seeking to avoid such a conclusion that it meet or neutralize such a show- ing by "demonstrating by a preponderance of the evi- dence that the worker would have been fired even if he had not been involved with the Union." Transportation Management, supra. Respondent has not done so in this situation for the very reason that evidence as a whole shows hostility toward union activities among its em- ployees, and that it seized upon implausible reasons to effect the discharge at issue. Respondent has not, there- fore, met its burden of persuasion, and on the contrary its affirmative defense does not elevate from merely a pretext level. Since the protected conduct of Palma and Juan Hernandez was a substantial or motivating factor in these adverse actions, and Respondent has not shown they would have nevertheless resulted, both discharges remain violative of Section 8(a)(3) as originally found by the Board on the Wright Line doctrine as now settled by the Supreme Court's construction of the statute. Disposition Having reaffirmed my original credibility findings in this matter, I again reach the same conclusions of law as previously made and adopted by the Board, determining now that Respondent take the remedial action set forth in my original recommended Order.6 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses