La Famosa Foods, Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD La Famosa Foods, Inc. and Local 27, Paper Prod- ucts, Miscellaneous Drivers, Warehousemen and Helpers, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Eddie Nevarez and Bernardino Vina Cepeda. La Famosa Foods, Inc. and La Famosa Foods, Inc., Debtor in Possession and Eddie Nevarez and Bernardino Vina Cepeda. Cases 29-CA-11560, 29-CA-11713, 29-CA-11713-2, 29-CA- 11713-3, and 29-CA-11713-4 28 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 4 April 1986 Administrative Law Judge Robert T. Snyder issued the attached decision. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, La Famosa Foods, Inc., Staten Island, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. The General Counsel filed exceptions only to the judge's failure to find that the Respondent discharged, effective 13 July 1984, the four dis- criminatees involved in this case, thereby violating Sec. 8(a)(3) and (1) of the Act. The judge inadvertently stated, as noted by the General Counsel in his brief, that Respondent's president, John Agosta, threw Union Business Representative Robert Carrao out of his office on 8 August 1984. The record shows that Agosta threw Union Vice President Pat Crapanzano out of his office, not Carrao. Patricia M. Bartels, Esq., for the General Counsel. Norman D. Fiedler, Esq., of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge. These consolidated cases were heard by me on 10 through 13 and 18 through 20 June 1985 in Brooklyn, New York. The second consolidated amended complaint, which issued on 9 April 1985, alleges that La Famosa Foods, Inc. (La Famosa or Respondent) engaged in various acts 282 NLRB No. 52 violative of Section 8(a)(1) of the Act by threatening its employees with discharge if they did not abandon their strike, by offering and promising its employees increased wages and other benefits if they would abandon their strike and activity on behalf of Local 27, Paper Prod- ucts, Miscellaneous Drivers, Warehousemen and Helpers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 27 or the Union) and, after the conclusion of the strike, by offering and promising its employees reinstatement, wage in- creases, and other benefits if they would abandon their support of the Union. The complaint also alleges that La Famosa unlawfully discharged four named employees be- cause they engaged in union activities and, after subse- quently reinstating two 'of them, Respondent harassed and subjected them to more onerous terms and condi- tions of employment and, finally, unlawfully discharged them again in violation of Section 8(a)(3) and (1) of the Act. The last discharge of these two employees was also alleged to have violated Section 8(a)(4) and (1) of the Act because it was motivated by their having given testi- mony under the Act in support of charges filed by Local 27 in Case 29-CA-11560. By oral amendments, offered and granted over objection during the hearing, it is also alleged that the strike described above was converted by the unfair labor practices into an unfair labor practice strike, and that La Famosa unlawfully refused to rein- state the four employees on the Union's offer on their behalf to return to work at its conclusion. By answer filed on 3 June 1985, and orally amended at the hearing, Respondent denied the substantive allegations of the vio- lations contained in the complaint and as amended at the hearing. On the entire record, including my observation of the demeanor of the witnesses, and after careful consider- ation of the posthearing briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION, EMPLOYER, AND LABOR ORGANIZATION STATUS Respondent is a New York corporation with its princi- pal office and place of business located at 201 Arlington Avenue, Staten Island, County of Richmond, State of New York (the Staten Island plant), where it is, and has been at all times material, engaged in the wholesale sale and distribution of cheese, flour, and related products. During 1984, which period is representative of its annual operations generally, Respondent La Famosa, in the course and conduct of its business, purchased and caused to be transported and delivered to its Staten Island plant, foodstuffs and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its plant by interstate commerce directly from States of the United States other than the State of New York. - On 27 February 1985 Respondent La Famosa filed a bankruptcy petition under Chapter XI of the Bankruptcy Act bearing Docket No. 185-50276-21 in the United States Bankruptcy Court for the Eastern District of New LA FAMOSA FOODS 'York, which petition at the time of°1earing was pending in that court, and since that date has been continued in possession as a Debtor In Possession (Respondent Debtor) with full authority to continue operations and exercise all powers necessary to the administration of the business of Respondent La Famosa. By virtue of the foregoing events, Respondent Debtor is, and has been at all times material, a successor in bankruptcy to Respond- ent La Famosa. Respondent La Famosa and Respondent Debtor admit, and I find, that they are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent orally amended its answer to admit, and I find that Local 27 is a labor orga- nization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Labor Relations History of Fontana d'Oro Foods, Inc. and its Relationship to La Famosa Prior to establishment of Respondent, its president and chief operating officer, John Agosta, had been president, chief executive, and owner of 50 percent of the stock (his brother-in-law Angelo Guarnieri holding the other 50 percent) of Fontana d'Oro, Inc. (Fontana), which was engaged in the same business later engaged in by La Famosa, selling and distributing food products to pizza stores in the greater metropolitan New York City and surrounding areas. It operated from a principal place of business a few doors from the location at which La Famosa later began operations. Its complement of seven employees all later became employees of La Famosa at the time it began doing business, including Rocco Castel- lano, a supervisory employee and the son-in-law of John Agosta, and they continued in its employ into July 1984. About 3 January 1983 a fire in the premises on the floor directly above Fontana's resulted in heavy water damage and the permanent cessation of Fontana's busi- ness operations and, on 7 January 1983, Agosta's com- mencement of the same business a few doors away under the newly formed corporation La Famosa. Agosta owns 20 percent of Respondent's stock, his wife 40 percent, and his four daughters, including Rosary (Mrs. Rocco) Castellano, 10 percent each. Separate complaints were issued against Fontana in 1981 in Case 29-.CA-9095 charging it with a refusal to bargain with Teamsters Local 210 the recently certified bargaining representative of its drivers and helpers, by making unilateral changes in wage rates and, by its presi- dent, Agosta, and other agents and supervisors, soliciting employees to sign a petition to decertify Local 210 in violation of Section 8(a)(1) and (5) of the Act, and in Case 29-CA-9123 alleging that it refused to pay certain benefits to an employee in violation of Section 8(a)(1) and (3) of the Act. These two complaints were settled by a single infor- mal settlement agreement providing a remedy for each of the violations of the Act alleged, not containing a nonad- mission clause, approved 19 May 1982 by the Regional Director for Region 29. 317 -On- 7 September 1982 a complaint was issued in Case 29-CA-9846 alleging that Fontana had violated Section 8(a)(1) and (5) of the Act by refusing to bargain with Local 210 notwithstanding its agreement to do so in set- tlement of the prior cases. On 4 February 1983, in 266 NLRB No. 25 (unpublished), the Board issued a Deci- sion and Order finding that Fontana had violated the Act as alleged, granting a Motion for Summary Judgment filed by the General Counsel after Respondent Fontana had failed to file an answer to the complaint and to re- spond to a Notice to Show Cause issued by the Board in response to the General Counsel's motion. The Board's Order was enforced by the Court of Appeals for the Second Circuit on 7 June 1983. B. Union's Campaign and Subsequent Strike, Respondent's Reaction, Including Alleged 8(a)(1), (3), and (4) Violations On 2 July 1984 Local 27, a different local union from Local 210 but affiliated with the same International union, obtained signed authorization cards from seven of La Famosa's eight drivers and helpers. A ninth employ- ee, Tony Olivia, was then on vacation. On the same day, on receiving the agreement of the employees to seek union recognition from their employer, Union Represent- ative Robert Carrao spoke to Agosta in front of the en- trance to the Staten Island plant. Carrao informed Agosta that his employees would like representation from Local 27 and Carrao had to have a letter of recog- nition if they would recognize Local 27 as the sole col- lective-bargaining agent for the people. Agosta would not agree to sign such a letter or grant recognition. On being informed of the results of his meeting with Agosta, the employees determined to go, out on strike until La Famosa recognized Local 27 as their exclusive bargain- ing agent. The strike commenced 3 July 1984 and was participated in by all La Famosa's drivers and helpers with the exception of Olivia, who also stayed away from Respondent's premises until just before the strike ended. The striking employees carried picket signs and patrolled in front of the Staten Island plant, the signs read, "Chauffeurs Warehousemen and Helpers of La Famosa Foods, 201 Arlington Avenue, Staten Island, New York 10303 Are On' Strike, Local 27 I.B. of T. 27 Union Square West, N.Y. 10003 YU9-1771." On 11 July 1984 the Union filed a petition for certifi- cation of representative in Case 29-RC-6206 seeking a unit including all production and, maintenance employees including warehousemen, drivers, and, helpers employed by La Famosa. Also on 11 July 1984 Respondent sent mailgrams to the striking employees informing them that if they did not return to work on 13 July they would be terminated as of that day. Employees Jose Ruiz Gonza- lez (nicknamed Chefo), Eddie Nevarez, and Bernardino Vina Cepeda (nicknamed Manny) received copies and gave them to Carrao at the picket line, but Jose Reyes did not because he had moved and Respondent did not have his current address, although he saw the mailgram received by another striking employee. Less than an hour later Respondent dispatched another set of mail- grams to replace the first. These informed the strikers 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the previous mailgram was rescinded and should be disregarded, and that if they did not report for work on 13 July 1984, they would be permanently replaced as of the same day. The one employee who recalled receiving this second mailgram, although counsel stipulated that it was mailed to each of the eight strikers on 13 July, testi- fied he thought it was the same as the first one. Apparently in response to these mailgrams, and after receiving them, employee John Radwan, one of the driv- ers, abandoned the strike and later returned to work. Al- though Agosta testified that John Radwan later came back a week or so after sending the mailgrams, his name first appears on Respondent's payroll for the week ending 17 August after the strike ended. At approximately the same time, about 2 weeks after commencement of the strike, Stephen Cales, a helper, also abandoned the strike but he did not return to work. Gonzalez, Nevarez, Cepeda, and Reyes each testified in a highly, consistent and corrobative manner to conver- sations Respondent's supervisor Castellano and alleged agent Jose Santiago held with them in a group on the picket line, in front of one of their homes and, individ- ually, at each of their homes except that of Gonzalez. Respondent's vigorous cross-examination of each of them failed to shake the essential nature of their testimony in this regard. During the second day of hearing, Respondent's coun- sel acknowledged on the record that Rocco Castellano had certain authorities and exercised indicia of a supervi- sor within the meaning of the Act, not including the au- thority to hire and fire,' and orally amended its answer to admit the paragraph of the complaint that alleges his supervisory status. (Tr. 345.) This stipulation and admis- sion followed testimony by two employee witnesses who described Castellano's direction of their work, his being in charge along with Guarnieri of the warehouse in Agosta's absence, his assignment of work tasks in the warehouse and routes for delivery of the merchandise, and his offers and promises to striking employees on the picket line to return to work under certain conditions. Castellano's status as husband of one of Agosta's daugh- ters who owned 10 percent of Respondent's stock has been noted. In reliance on this concession, the General Counsel ex- amined two more employee witnesses, and examined and cross-examined President Agosta without adducing fur- ther evidence concerning Castellano's supervisory status. Then, at the conclusion of Castellano's direct examina- tion during presentation of Respondent's defense, Re- spondent's counsel moved to amend its answer to with- draw its earlier concession and to now deny paragraph 7(b) of the complaint in which Castellano's agency and supervisory status is asserted. That motion was denied on grounds 'of prejudice and because its grant would also excessively delay completion of the hearing. (Tr. 2374- 2375.) ' At the time, Respondent's counsel did not dispute the General Coun- sel's taking note of the fact that during the representation proceeding, to be discussed, infra, La Famosa stipulated that both Guarnien and Castel- lano were supervisors in that they had the power to hire and fire The General Counsel separately alleges that employee Jose Santiago, a salesman and driver, was an agent of Respondent acting on its behalf. Each of the four em- ployees who testified discussed Santiago's role from time to time in translating both Agosta's and Castellano's work instructions and directions to them. Another of the employees, driver Felix Guzman, also acted in this role. Agosta spoke a little Spanish. Castellano, who dealt much more frequently with the Spanish-speaking em- ployees, Gonzalez, Nevarez, Cepeda, and Reyes, whose understanding of English was very limited, did not speak Spanish. Gonzalez testified credibly that when the employees asked Agosta for an increase in wages they did so in Spanish through Santiago, who took their requests to Agosta and returned to them with Agosta's response, in- variably negative. Gonzalez also noted that the employ- ees who relied on his translations of supervisory direc- tions to them trusted Santiago in particular because of the confidence Agosta had placed in him based on his position as Agosta's oldest employee in terms of service, his promotion to the position as the firm's salesman, and his frequent and regular collections of money on behalf of the firm. A composite of the four employees' testimony shows that within a few days to a week after the strike started Castellano, accompanied by Santiago, approached them on the picket line. Castellano, speaking in English with Santiago repeating his words in Spanish, told the assem- bled group that the Respondent wanted them to return to work but without the Union, and if they did so they would receive an increase in pay of $20 to $25, what they had been asking for. The employees responded that they would not return unless it was with the Union. Cas- tellano again accompanied by Santiago approached the striking employees on one or two more occasions during the following few weeks, repeating his urging that his father-in-law wanted them back inside, but without the Union, and they would receive a raise and they would have to sign a paper, not otherwise described but pre- sumably renouncing the Union. On each occasion San- tiago repeated Castellano's words in Spanish and the em- ployees voiced their refusal to return without the Union. The strike and picketing continued and Respondent continued to operate with no appreciable decline in sales although experiencing some difficulty in, obtaining sup- plies from vendors who were now requiring cash pay- ments on COD deliveries. Respondent operated with Castellano, Guarnieri, and Santiago making the deliveries and with several striker replacements in addition to Radwan. On 31 July 1984 a preelection conference was held in Case 29-RC-6206 at which the parties executed an agreement providing that the only employees eligible to vote in the upcoming election were the eight drivers and helpers who had struck on 3 July 1984. Thus, Respond- ent had not "replaced" any of the strikers as it stated it would do, effective 13 July, in its second mailgram. The strike continued after entry of this agreement because, as explained by Carrao, the people were being solicited by management about returning back to work with an in- LA FAMOSA FOODS crease in wages if they would sign-some type ^ ^k^ter disregarding the Union. This was information he had re- ceived from the employees at the picket line after they had been solicited by Castellano. On 8 August 1984 an election was conducted among Respondent's employees in the representation proceed- ing. The Union won by a vote of five in favor, one op- posed. After the counting of the ballots Carrao and Union Vice President Pat Crapanzano meet with Re- spondent's president, Agosta. At the meeting the union representatives told Agosta they were discontinuing the strike and made an offer on behalf of the employees to return to work. They also requested that Agosta take the strikers back in their order of seniority. According to' Carrao, Agosta responded that because the strike business had fallen off quite a bit and as it picked up he would rehire the people back, to work. He then indicated that George Moncado, a helper, would be the first employee taken-back and that Stephen Cales, an- other helper, who had abandoned the strike, would also be reemployed. Carrao recalled that inasmuch as Moncado was the most senior helper, employees gathered at the plant fol- lowing the vote count agreed on, and did not dispute, his return to work ahead of the others. According to Agosta, he told the union delegates2 he would only take the people that he needed at that time and that he would call the others as needed. Agosta testi- fied under questioning by me that "Whoever was outside I took." (Tr. 2109.) He explained this to mean that he took back the people who were standing outside in front of the door. Agosta swore that the few people who were there were Tony Olivia, Rolando Folgar, and George Moncado. In fact, as Agosta had earlier explained under questioning by the General Counsel, on the occasion of the conclusion of the strike and the Union's offer on behalf of the employees to return to work on 8 August after the election had been held, he informed Crapanzano that he wanted and had work for George Moncado, John Radwan, Rolando Folgar, and Steven Cales. Among these named individuals, and including Tony Olivia, who Agosta later described as having been called back to work, only George Moncado had remained on strike and picketed for the full 5 weeks. As noted earlier, Radwan had abandoned the strike, thereafter had been in contact with Agosta, and showed up on Respondent's payroll for the week ending 17 August. Folgar was an employee who had been terminated the previous 30 April, apparently 'because of a drinking problem. His name first reappears as a regular employee for the week ending 7 September 1984. Olivia, on vacation earlier when the strike started, had come to the facility before the end of the strike, had never participated in it, and was returned to Respondent's payroll in the last week of the strike when he worked 49.5 hours. Agosta acknowl- edged that Olivia had an arrangement with him permit- ting Olivia to work a while and then leave his employ for weeks or longer at a time. In fact, after the week 3 Apparently, Agosta was responding by this time only to Crapanzano, because, as Agosta exclaimed on the record, "I threw him out," meaning Carrao, after having referred to Carrao as a criminal. 319 eadilig' 17 August ,1984, Olivia's name does not thereafter appear on Respondent's payroll until the week ending 7 September. Cales abandoned the strike and never re- turned to work. He did not respond to Agosta' s mail- gram to return to work on 13 August Yet, Agosta con- tinued to hold a place open for him, in preference to the strikers, except for Moncado, well after the conclusion of the strike.3 The alleged discriminatees, Gonzalez, Nevarez, Cepeda, and Reyes each testified that they had all been waiting outside of Respondent's plant for the conclusion of the meeting between the union agents and Agosta fol.- lowing the election, but that, as against Agosta's claim, neither Olivia nor Folgar was present during or immedi- ately following the conclusion of that meeting. When later pressed by the General Counsel, Agosta could not remember if Gonzalez and Reyes were present in front of the plant when he went outside to select employees for recall, and he believed Cepeda was not there and he did not see Nevarez. When Cales did not respond to a mailgram to report on 13 August, no one else was hired for the place re- served for Cales. Agosta explained that he and his son- in-law Castellano were used to doing the work as helper, so they did it themselves. Agosta added that business was going down, but that response did not explain the offer of a job as helper to Cales. In spite of Agosta's promise to recall the other em- ployees as needed, made on 8 August, he never recalled Gonzalez or Reyes, and did not recall Cepeda and Ne- varez to employment until more than 5 months later, in the latter part of January 1985, with the adverse conse- quences to these two employees to be described and dis- cussed, infra. Certain alleged events transpired following the ending of the strike that, if credited, go a long way in explaining Respondent's refusal and failure to reinstate any of the four alleged discriminatees after 8 August and to only offer different employment to two of them months, later. Sometime in late August or early September 1984, Ne- varez testified that Jose Santiago, who lived in the Bronx, drove to his house on East 12th Street in Manhat- tan, New York City, and approached Nevarez in front of his house. Santiago informed him that the owner of the Company wanted them back and he would give them money, he did not say the amount, but that he did not want the Union. According to Gonzalez, Reyes, and Cepeda, sometime in September, Santiago came by in his car to see Reyes at his home on Staten Island, about 20 minutes drive from Respondent's Staten island plant. At the time, Gon- zalez, Reyes, and Cepeda were sitting on Cepeda's car and chatting in front of Reyes' house. Santiago told them that the boss wanted them back but without the Union and the boss would raise their pay. The three employees rejected this overture, telling Santiago they would not 3 A New York State Unemployment Insurance Division form signed by Agosta or an agent in November 1984 shows Cales failed to report for work after having being informed by the State Division at Agosta's initia- tive that work was available for him. Cales application for unemployment benefits was opposed by La Famosa. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return without the Union, Cepeda, in particular, recalling that they told Santiago he should not bother them any- more. Cepeda also testified that during the same month, probably before the incident just described, Santiago had visited him at his home on Staten Island. In the presence of his ' wife, Santiago told him that the boss said if he would return, the boss would give him $250. This amount was a substantial increase over his prestrike weekly pay of $200 for a 40-hour week. Cepeda' replied that he wanted to see the boss, and the same day he vis- ited the plant alone. When he arrived he saw Castellano and Santiago. They did not invite him on to the prem- ises, but conversed outside in front. Castellano told him he would give Cepeda $250 because he was the person- nel chief. Cepeda said he wanted to talk to Agosta. Cas- tellano repeated that he was in charge of the personnel. He said he would give Cepeda the job but Cepeda would have to go to the Board and sign a paper re- nouncing the Union. During the interchange, Santiago translated for both participants. Cepeda would not agree to such terms and Castellano told him to leave. According to Nevarez, Santiago approached him again in either November or December 1984 around the corner from his Manhattan, New York City residence. At the time Santiago appeared, Nevarez was with his wife, but she quickly left. Santiago told him the owner wanted to see them come to an agreement or some kind of an ar- rangement. Nevarez said, "let's see what the rest of my coworkers think." Santiago also told Nevarez that he had told this to Felix Guzman. On 11 December Ne- varez, accompanied by Reyes and Cepeda, went to the workplace but Agosta was not there and Castellano told them to return on Friday. On Friday, 14 December, they returned, this time with Gonzalez. Because Nevarez knew a little more English than the rest he asked for Agosta. Castellano said the owner was in but that he did not want to see them. Castellano ex- plained that the Company was doing poorly and it was their fault because they went out on strike.4 Nevarez asked him, "if its so bad why do you have so many new employees." (In the week ending 14 December, Re- spondent's payroll discloses that in addition to Moncado, Folgar, Olivia, and Radwan, a Jacob Khalil was also em- ployed. Khalil's name first appeared on, the payroll for the week ending 21 September 1984. According to some of the Spanish-speaking employee witnesses, when they returned to the plant on occasion after the strike they saw new workers. In addition to Khalil, a Barry Blue and a Joseph Kerrigan appear on the payroll for certain weeks in November.)5 4 Two of the four employees, Reyes and Cepeda, recalled that Castel- lano made reference to operating without a union. 5 Nevarez testified that when he was later recalled to work in January 1985 he saw other new employees, who he recognized as working at the plant on 14 December 1984, including an individual named Price and an- other named Carmello. The fact that these names do not appear on Re- spondent's payroll is not determinative because Cepeda 's name does not appear for the days in late January he was reemployed . Furthermore, witnesses testified credibly that from time to time Agosta had offered to pay them some money in- lieu of a wage increase off the books Finally, Respondent's payroll and other records including timecards, trip sheets, Castellano replied that the new employees did not work every day (not true for Khalil). When Nevarez then asked, "Why don't you take us to do the work that they're doing," he said, "No, that they were going to stay the way they were." On December 6, 1984, Local 27 filed the first charge, followed later by charges and amended charges filed by Nevarez and Cepeda on which the consolidated and amended complaint was ultimately issued and which re- sulted -in the instant hearing. That initial charge in Case 29-CA-11560 alleges the unlawful discharge of the four alleged discriminatees, Nevarez, Gonzalez, Reyes, and Cepeda (identified as Bernadino Vina), among others, was about 13 July '1984, because the employees engaged in a strike. By covering letter dated 6 December from the Regional Director for Region 29, La Famosa was mailed a copy of the charge and asked to submit its posi- tion on the investigation. A copy of the charge was also served personally at the Company's Staten Island plant on 19 December. Then, on 18 January 1985, the first complaint in Case 29-CA-11560 was issued, alleging, inter alia, the strike from 2 July to 8 August 1984, the promises of reinstatement and wage increases and other benefits if the employees would abandon their union ac- tivity, the 11 July threat to discharge and 13 July dis- criminatory discharge of the four named employees, and a hearing was scheduled for 11 March 1985, but was sub- sequently postponed. An affidavit of service of the complaint and notice of hearing on La Famosa and the Charging Union shows that on a first mailing to La Famosa by certified mail the document was refused and returned to the Region on 25 January. On the same day that the complaint issued, 18 January 1985, Respondent sent mailgrams to Cepeda and Nevarez instructing them to report for work on 21 Janu- ary or be replaced if they failed to do so. On 21 January 1985 Cepeda reported for work. Al- though he, along with other employees, had punched a timecard in the past, and the present complement of em- ployees continued to do so, there was no card for him. Castellano later handed him route papers that included invoices for 15 stops in 4 boroughs of New York City; the other 2 drivers, Radwan and Khalil, had assignments of 7 to 8 stops each. Furthermore, Cepeda was told his helper would be Price, who spoke no Spanish, although three other helpers then working, Folgar, Moncado and Carmello, all spoke English and Spanish. This assignment was in stark contrast to the arrangement during Cepeda's previous tenure when Agosta had assigned Gonzalez, who is Spanish-speaking and knows some English, as Ce- peda's regular helper. Cepeda speaks and reads, no Eng- lish, and understands only a few words. Even Agosta ac- knowledged that Cepeda needed the help of another em- ployee on the truck who knew English.6, During Cepe- and invoices appear to have been altered substantially, or to have been incomplete. B Agosta explained that he offered to rehire Nevarez at the same time he made his 21 January offer to Cepeda because Cepeda "needs some- body else Eddie knows English and he could . help guide the man." (Tr 2091 and 2092.) LA FAMOSA FOODS 321 da's employment before the strike, Cepeda was responsi- ble for the cash receipts received from customers on route and for accounting for them the next morning to Agosta. For a considerable period of time Cepeda and Gonzalez were assigned to a steady delivery route cover- ing Brooklyn and Long Island. That morning on 21 January the temperature was -2 degrees Fahrenheit. When Cepeda first arrived he en- tered the premises through the heated office. The other employees were gathered there, some having coffee. Cas- tellano immediately sent Cepeda to the warehouse with the command "Manny to the warehouse please." That space is unheated, although it does contain a space heater not then operative because the warehouse was not yet in operation for the day. Even when operative it only pro- vides a high blast of hot air in a narrow circumference, likely to burn anyone directly in its path. Cepeda re- mained there for 20 minutes without any particular as- signment, while all other employees remained in the heated office. At 12 noon all employees were sent home because the severe cold had affected the operation of the delivery trucks. The following day, 22 January 1985, Cepeda again found no timecard to record his hours and he was again assigned the same non-Spanish-speaking helper although the same three bilingual helpers were all available. His route again included 15 stops, more than the other driv- ers. On this day, in a deviation from the past practice prior to the strike, Castellano instructed Cepeda that his helper, Price, would collect and retain the collections from customers overnight and, further, that Cepeda would have to leave the truck and key with Tony Olivia at Tony's house on his return from the deliveries. Cepeda was not given any reason for these changes. Prior to the strike, not only did Cepeda retain the pro- ceeds overnight but it was also customary for him to keep the truck overnight. On 22 January, Cepeda completed the route deliveries at 10 p.m, left the truck and keys with Olivia at his house in Staten Island, and walked back to the plant where he had kept his car. Although there was some dis- pute about the time it took Cepeda to walk from Olivia's house to the plant, it was acknowledged that the weather was wet and extremely unpleasant, the ground was icy from the extreme cold, and Cepeda ultimately estimated the distance to be at least 6/10s of a mile. The next morning again there was no timecard for Cepeda. Castellano again assigned Cepeda the same helper, Price, and the same number of stops, 15, this time located not only in Manhattan, the Bronx, and Brooklyn, but also including 6 in New Jersey. Again, the three Spanish-speaking helpers were working that day. Cepeda recalled having delivered to New Jersey only once before, with Gonzalez, to a stop in Bayonne and they had gotten lost. Gonzalez, on the witness stand, separate- ly corroborated this single trip to New Jersey with Cepeda. Neither Cepeda nor Price knew the locations in- volved, which included Perth Amboy and Bayonne, among others. Given these concerns, Cepeda looked for Carmello, who spoke English and Spanish, to explain to Castellano that he did not know the route he had been given and that he should be given Rolando Folgar or Georgie Moncado as his helper. If Castellano could not resolve this problem, he had to talk to John Agosta. Carmello told Castellano that Cepeda wanted a helper who spoke both English and Spanish, as Price did not know Spanish and did not know the routes. Castellano told Cepeda through Carmello that he would have to talk to Agosta. Castellano took Cepeda to the office. Cepeda heard Castellano tell Agosta in English about problems with Manny about the routes. Cepeda than spoke with Agosta in Spanish. Agosta asked what was going on. Cepeda said, "The only thing is that I was never sent before to that route to New Jersey, why do you send me now." Agosta replied, "How do you mean to come here, to the Labor Board, to testify, the same way you have to know the routes in English too."7 At this point, Cepeda begged Agosta to give him Georgie or Rolando as help- ers because they were assisting somebody that knew the routes and knew English and to give that assistance to him. Agosta told him no, he was in charge. Cepeda could no longer discuss the matter with him Agosta then told Cepeda that for today there was no work for him. He opened the door, and Cepeda left. The following day, 24 January, Cepeda reported for work and again did not find any timecard for himself. As he was looking for it, Agosta, who was nearby, asked Tony Olivia why was Cepeda looking there. As Cepeda attempted to address Agosta in Spanish, Agosta spoke to Tony who told Cepeda Agosta was not going to speak anymore in Spanish with him. Through Tony, Cepeda said he was reporting for work. Agosta, with Tony translating, told Cepeda he was "trying" him and added, "My friend, there is no more work for you. You didn't want to do the stop yesterday." Cepeda responded, "The one that [sic] didn't want was you. Because I wanted a helper. I begged you." Then Agosta opened the door, told Cepeda he should go home, and Cepeda left. About January 1985, shortly after Cepeda's firing, San- tiago, while at Reyes' home, told Reyes that he knew Manny would be fired, he knew that they were going to take them one by one, each of them, and fire them, and not the court nor the Union could back them up. Nevarez did not receive Respondent's mailgram offer- ing reinstatement on 21 January until 22 January On contacting La Famosa, he was told to report on 28 Janu- ary. Athough previously employed, Nevarez, who was hired in January 1983, had spent substantially all his time, after some early occasions of helping on the deliv- Although the Board interpreter was clearly experiencing some diffi- culty at this point in translating in coherent English prose Cepeda's an- swers given in Spanish to the General Counsel's questions phrased in English, it is readily apparent that what Cepeda was conveying was that at this interview and exchange on 23 January, Agosta was expressing the view that because Cepeda knew how to visit the Labor Board to testify in support of the Union's charge in Case 29-CA-11560 he also had to know the routes in English The element of sarcasm in Agosta's comment could not have been lost on Cepeda In Cepeda's own words, "I under- stand that he didn't like it because of [my coming here-to the Labor Board-to testify] " (Tr 781 ) Prior to this conversation Cepeda had vis- ited Region 29 twice for interviews and to provide affidavits in connec- tion with the charge in Case 29-CA-11560 on which the complaint had issued on 18 January 1985 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ery truck, as a warehouseman. In this capacity, and until the strike in early July 1984, he unloaded the trucks that delivered the merchandise from suppliers, loaded the trucks for deliveries, in both cases using a hi-lo machine, cleaned the warehouse, fixed broken boxes and contain- ers, maintained and organized inventory, and, with the assistance of warehouse helper Reyes, while the drivers and helpers were out making deliveries, picked the mer- chandise for the following day's stops. Gonzalez, who had preceded Nevarez as the employee with primary warehouse responsibilities, was the only other employee who had regularly operated the large hi-lo machine. The other, smaller machine which lifted and moved merchan- dise on pallets, was generally operated by Reyes. Ne- varez and Reyes, except when out making deliveries as helper, worked a regular 8 a.m. to 5 p.m. shift unlike the drivers and helpers who normally delivered until 8 p.m or later. Not only had Nevarez in the time before the strike, on ,paydays, and on a number of occasions told Agosta among others that he liked being in the warehouse be- cause he like to .organize, but he had heard from Jose Santiago that the boss of the Company liked the way he worked and how he had organized the warehouse. Ne- varez viewed this as a form of praise about his work. The multiple employee witnesses who addressed the matter uniformally agreed that , either Castellano or Angelo Guarnieri, Agosta's brother-in-law, directed the loading of the trucks each morning and instructed the helpers and drivers about what items should be placed on individual trucks. The merchandise included boxes containing large cans of tomatoes, 50- to 100-pound bags of flour, 57- or 58-pound boxes containing 8 to 10 whole cheeses, and pepperoni, pepper, and garlic in 3- to 5- pound bags. The bags of flour and boxes of cheese and tomatoes were, the heaviest items the employees loaded. Nevarez testified, as did Reyes, that prior to the strike, the heavy merchandise loading work was distributed fairly evenly among all the employees. On his return to the plant on 28 January 1985, Ne- varez did not find his timecard. He believed they did not have it ready. Jose Santiago came to him and told him to go out on the truck as a helper to Tony. As Nevarez then explained it, he said, "I thought when I return to work again, when they called me back that I would be given the same job that I had before." Santiago respond- ed, "That [is] what the owner of the Company hoped I would do, that when he gave me a different job-to see if t would refuse to do it." Then Santiago said, "Don't pay attention," and Nevarez said, "If I have to do it I'll do it, and I wasn't going to refuse or leave my job." Nevarez set to work loading the trucks along with Ro- lando Folgar,, Price,, and George Moncado. He was not assigned to his former job as warehouseman, he did not prepare orders for stops for the next day, and he was not permitted to operate the hi-lo. As Nevarez described the matter, he went to touch the machine once and Angelo told him, "no," that Angelo was the one in charge of it now. Angelo was now using the machine for, among other jobs, loading the trucks. In the loading process, Castellano assigned Nevarez to loading the heaviest items, the boxes of tomatoes and cheese and large bags of flour, while the other three helpers were given a much higher proportion of the other, lighter produce to load, which weighed consider- ably less in comparison. That day, 28 January, Nevarez served as Olivia's helper, traveling to customers in New Jersey and as far as Philadelphia, and not returning until 8 p.m., when Olivia let Nevarez off at the Staten Island ferry for his trip home to Manhattan. The following day, 29 January, Nevarez was again as- signed as helper on Olivia's truck. He also noticed, again, that he was given the heavier merchandise to carry and load onto the trucks, in comparison with the other help- ers. On the next day, 30 January, Nevarez" reported to the New York State Unemployment Compensation office to report that he had started working for his old firm. Later in the day, he received a telephone call from Christine Agosta, a daughter of John Agosta and an office clerical employee, who told him that he had to report to work to Tony Olivia's house at 3 a.m. the'next morning to go on a trip upstate to Albany, New York. According to Agosta, "nobody wants to go on the road," except Tony Olivia or John Radwan, sometimes. (Tr. 2144, 2316.) That night, Nevarez telephoned Olivia about the trip. Olivia told Nevarez that because they lived in different 'boroughs, Nevarez in Manhattan and Olivia in Staten Island, Olivia would'get another helper who lived near him. Nevarez also called Santiago. After discussing the extremely early departure hour and the danger to Ne- varez from traveling by ferry at that hour, Santiago ad- vised Nevarez that he had no obligation to go. The following morning, Thursday, 31 January, Ne- varez reported to the Staten Island plant at his regular worktime and did not find his timecard again. Castellano asked why he had not gone with Tony. Nevarez ex- plained that he had problems getting up so early. Castel- lano said all right. Next, Agosta came to him and said if the next, time he did not call earlier on a trip like that, that he would be fired. That day as well as the next, 1 February, Nevarez was again conscious of having been assigned to carry heavier loads, consistently, than the other workers. On these two days, Nevarez continued to go out on delivery runs as helper to a driver. On 31 Jan- uary he had been out until I1 p.m. on a truck with Jose Santiago. Friday, 1 February, was the regular payday for the week ending the prior workday. Nevarez calculated he had 3 days' pay coming to him because he had 'not worked 30 January. He was also concerned about receiv- ing pay for the 12 overtime hours he had worked on the 3 days. When Nevarez received his pay, apparently at the end of the workday, he asked Agosta if he had been paid the 12 hours he had worked extra on overtime. Agosta came over to him and said, "If you don't like what I have paid 'you can leave." He added that he was not going to pay Nevarez more because he did not have a contract with the Union.8 Nevarez responded he was 8 La Famosa's practice was to pay time and a half for overtime hours worked that only exceeded a 40-hour workweek. Nevarez' work hours for the 3 days that week had only totaled 36 hours. It is apparent that Continued LA FAMOSA FOODS not going to leave his job and he, knew where heenuld go if Agosta was not going to pay him the amount he was entitled to. At this point Agosta called Nevarez an "asshole," an extremely intemperate form of address that Agosta had never used with Nevarez -before. Nevarez, upset at the unexpected way in which Agosta had sud- denly become antagonistic personally and in stressing the Company's continued freedom from union relationship or obligations, and disturbed and distracted by the nasty language, turned and walked out of the plant, inadver- tantly taking both his paycheck and its net equivalent in cash with him. He had both in his possession because of a custom of employee endorsement and return of the paycheck and retention of the cash provided at the same time. Although Agosta shouted something after him, in Nevarez' distressed state and anxiousness to leave Ne- varez did not understand or heed whatever was said. After Nevarez reported to work on Monday, 4 Febru- ary, and got an assignment to load a truck, Castellano first asked Nevarez for his pay envelope or check and, when Nevarez said he did not have, it with him, told him "Don't be stupid." To Nevarez' reply, "No, you're stupid," Castellano started cursing Nevarez and using ob- scenities. This conduct was in complete contrast to the supervisor's generally civil behavior toward Nevarez in the past. Castellano told Nevarez, to leave. Nevarez asked, "Are you firing me?" At this point Agosta came in and asked what was happening. Nevarez accused Cas- tellano of firing him and Castellano denied it. Agosta then asked about the pay envelope or check'and Nevarez explained again he did not have it. Castellano continued to accuse Nevarez of being stupid. By this time Nevarez had become so upset with the ' nasty and vindictive per- sonal remarks, now being made by both his bosses, that he blurted out, "You are animals." At this Castellano and Agosta started to laugh in his face. Nevarez immediately left the plant in an unsuccessful attempt to contact Union Representative Carrao by telephone about his problem. Nevarez shortly returned to work. After a while Agosta approached him with a paper containing block printing in English and told Nevarez to sign it, Agosta did not read what he had written and Nevarez does not, read English. Nevarez testified he did not know what Agosta had written. Nevarez refused to sign it. Agosta then told him to leave. Nevarez asked if he was fired, and Agosta said yes. The paycheck that Nevarez had received, along with an equal amount of cash, totaled $125.91 on gross earn- ings for the week of $163.52. Nevarez retained and never cashed the check and, at a later point in the hearing, the check was handed over to Respondent's counsel on the record. Apparently, the very brief conversation between Ne- varez and Agosta was in Spanish. If so, it was halting and probably proceeded with gestures because of Agos- ta's very limited facility in the language. Recall that Agosta had refused to continue conversing with Cepeda in Spanish on the day of his second discharge, and that Nevarez was not aware of this practice, having worked a regular 40-hour workweek much of the time prior to the strike, and Agosta made no at- tempt to explain it. 323 -he ° failed 'to read of otherwise explain the writing to Ne- varez. It states, "Received check for 125.91 Salary from La Famosa Foods Inc. Eddie Nevarez."9 On 1 March 1985 Cepeda came to the plant to person- ally serve Agosta with copies of the charges Nevarez and he had filed in Cases 29-CA-11713 and 29-CA- 11713-2. This method followed Respondent's refusal to accept service of the complaint earlier issued in Case 29- CA-11560. When Agosta saw the papers, he threw them on the floor, stamped on them, called Cepeda a "mother fucking dirty pig," grabbed him by the arm and almost banged the arm against the door before slamming the door on Cepeda, While at the plant, Cepeda saw three drivers, Olivia, Radwan, and Khalil, as well as four help- ers, Moncado, Folgar, Carmello, and Price. C. Respondent's Version of the Critical Exchanges and Events and Credibility Resolutions Agosta's version of certain incidents, such as his re- sponse to the union representatives' offer on behalf of strikers to return to work at the conclusion of the strike after the election on 8 August 1984, has been described. See infra. Agosta took the witness stand and testified at length both as a witness called by the General Counsel under Rule 611(c) of the Federal Rules of Evidence and as a witness in Respondent's presentation of its case. He proved to be largely unreliable, self-contradictory, inter- nally inconsistent on substantial points, prone to unre- sponsive outbursts, and irrational. Early in his testimony, while undergoing examination by the General Counsel, Agosta testified that although he ultimately agreed on 31 July 1984 at a conference called on the Union's represen- tation petition to an eligibility list of the eight striking employees, he had initially sought inclusion of both Tony Olivia and Rolando Folgar. Concerning Folgar, it was Agosta's claim that during the strike he saw Ro- lando out on the picket line but not carrying a sign. After he was confronted with a pretrial affidavit he had given on the investigation of the case in which he had sworn that Folgar did not go out on strike and was away from work a couple of weeks prior to the strike, and did not come to work' or go on strike, Agosta then explained lamely that at the time he gave the statement he had probably neglected to say so but Folgar was there on strike for the first day. Regarding' Folgar, Agosta even took the position that an entry on La Famosa's payroll records for the week ending 4 May 1984, on a page con- taining only Folgar's name and a listing of 8.5 hours,, reading "Terminated 4-30-84" (G.C. Exh. 24) was not on the Company's records when they were produced pursuant to trial subpoena for examination by the Gener- al Counsel. A superficial comparison of this entry with entries on other company payroll' and related records, admittedly made by office clerical employee Emily Bont- kowski during 1984, shows a strong likeness with the dis- puted entry, and demonstrates the absurd lengths to 9 A duplicate carbon copy, which accompanies the original has the im- print of other words and a variety of smudge marks Much, if it was the very document which Nevarez was directed to sign, would have been somewhat confusing, particularly to someone who is illiterate 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which Agosta was prepared to go to avoid responsibility for his actions in this case . It is also notable that at no time did Agosta seek the inclusion of long-time driver and salesman Jose Santiago in the unit of employees eli- gible to vote in the election. The Company's payroll records show that Santiago, unlike the regular drivers and helpers, did not have an hourly rate of pay but in- stead received a weekly salary of $250. Agosta disputed that Castellano or he assigned the helpers to any particular truckdriver, and that the drivers among themselves selected their own helpers , as against the corroborative and credible testimony of Cepeda and Gonzalez, among other employees,'in particular Cepeda's description of the assignment of a non-Spanish-speaking helper to him on his return to La Famosa in January 1985, as well as Nevarez' testimony of his assignment as a helper on Olivia's truck on his return to employment the following week. Furthermore, Agosta also asserted, contrary to the consistent and reliable testimony of Ne- varez and Reyes, among other employees,, that the hi-lo machine was operated by whoever was near, including helpers, and was not assigned to any particular employee and that it was usually up to the helpers to determine whether they went out with a driver or stayed in the warehouse in the morning. Agosta's successive descriptions of his reasons for pre- paring and sending the two sets of mailgrams on 11 July 1984 illustrate to a rare degree the inconsistences in his testimony, which undermine any possibility of reliance on his credibility as a witness . Under questioning by me, Agosta testified that on 3 July (actually 2 July ) when the union representative approached him on behalf of the employees, seeking a recognition agreement, he attempt- ed, without success, to contact his lawyer, Fiedler, who was away and that it was not until 10 to 12 days after 3 July, on 14 or 15 July, that he was able to make contact with him. Thus, on 11 July when Agosta sent the mail- grams he had not yet been in contact with Fiedler. (Tr. 2349, LL. 22-24.) After sending the first mailgram, ter- minating the striking employees if they failed to report for work in 2 days, Agosta recalled that at the urging of his children, who did not want to have any problems with the Union, he reviewed his office files in the Fon- tana labor litigation and found language in a prior tele- gram using the terminology "permanent[ly] replaced" in- stead of discharged . This convinced him to send the second set of mailgrams informing the strikers they would be permanently ,replaced if they did not return by 13 July. His lawyer subsequently confirmed he did the right thing. Shortly following this testimony, Agosta was compelled to agree that he had sworn to a statement on 2 January 1985, in which he had described a completely different scenario for preparing the second set of mail- grams. In the statement, Agosta swore he had this mail- gram drafted based on, the information given to him by his lawyer. He wrote down what Fiedler told him to send, but he lost the note and had the mailgram of 11 July drafted as stated. Later that day, on advise from his lawyer, he quickly dispatched corrected mailgrams. This complete turnabout on a crucial aspect of the case-an alleged threat to 'discharge a whole complement of em- ployees for exercising their protected right to strike under the Act-renders Agosta's attempted justification for his full 11 July contact with them unbelievable and strengthens the conclusion that his motivation for dis- patching the initial mailgram was discriminatory. Agos- ta's true feelings of abhorence for his employees' strike activity and the impact it was having on his business op- eration was made clear in his first and uninhibited effort to coerce their return to the workplace , whether his at- torney or his search of old files later convinced him that his first efforts were imprudent or illegal. Another example of the ease with which Agosta nulli- fied and contradicted statements previously made by him on subject matter germane to this proceeding is present- ed on the impact of a fire to premises located directly above La Famosa's in the same building and resultant water damage to the Company's inventory and ability to operate in a solvent manner. Agosta testified that his in- ventory had been declining since the strike, earlier seem- ing to attribute this decline to a requirement imposed by his suppliers after the onset of the strike of payment in cash on deliveries. When asked on cross-examination to agree that the reason for the decline in inventory was due to the fire damage, Agosta replied in the negative. Yet, in connection with the bankruptcy proceeding in Federal court, Agosta filed an affidavit executed about 25 February 1985, in which he swore, inter alia, that "the debtor [La Famosa] suffered a fire at his premises which destroyed debtor's inventory and disrupted debt- or's operation." Furthermore, in the same affidavit Agosta describes the strike as lasting 8 weeks, whereas in truth it lasted 5 weeks. Also, Agosta admitted incorrect- ly understating to the Bankruptcy Court the cost of exe- cuting contracts for the lease of three delivery trucks by three times the actual amount, to wit, $400 as listed, as against actual lease figures totaling $1595 per month. It was Agosta's position, that Jose Santiago was not the interpreter for Spanish-speaking employees at La Famosa. However, Agosta was not asked whether he or Castellano used Santiago to pass along instructions or in- formation to these employees. Agosta also denied that Santiago had any authority to talk to the men on behalf of La Famosa before or' during the strike. Neither did Santiago report to him during the strike about discus- sions he had with the strikers, nor did he ever tell San- tiago to go to strikers' homes or to talk to the strikers. Castellano, who also testified for Respondent , admitted using Santiago only once as an interpreter with the strik- ing employees. This was the occasion when Cepeda drove up to the plant and spoke in Spanish. Castellano asked Santiago to tell him what Cepeda said, which was that if Castellano gave Cepeda $25 he would have noth- ing to do with the Union. Santiago was not called as a witness by Respondent, having last worked for Respondent in the payroll period ending 10 May 1985 , a scant month prior to the opening of the hearing. Respondent did not deny that it possessed Santiago's address and could have contacted him. I find incredible Castellano's denial of any reliance on Santiago or any one else as an interpreter (Tr. 2380), other than the one occasion, to pass along instructions or information to the Spanish-speaking employees, particu- LA FAMOSA FOODS larly when Castellano admittedly could not speak or :un- derstand the language (Tr. 2377-2378) and the four dis- chargees had little ability to communicate in English, even though Felix Guzman acted as an interpreter on oc- casion. I also reject the remarks Castellano attributes to Cepeda. Given the strong union solidarity of the Span- ish-speaking group of employees, manifested on each oc- casion they were approached alone or in a group to abandon the Union, and the continued and repeated un- successful attempts by Respondent to split the workers and break their resolve, I do not believe that Cepeda was ready to renounce the Union on the occasion described. If he was, why did not Castellano jump at the opportuni- ty presented to immediately hire Cepeda? This was prob- ably the occasion in September 1984, when, as Cepeda testified, Castellano insisted on a union renunciation at the Board which Cepeda promptly rejected. Castellano insisted, in contrast with Agosta, that Agosta spoke with the employees in Spanish, but limited such interchanges to an occasional conversation. Castel- lano also denied that he made offers of increased pay to the striking employees, that he offered or reported that his father-in-law, Agosta, offered to take them back without the Union, or that he ever asked strikers to sign a paper and thereby get an increase. Significantly, Castel- lano also denied that he spoke with the striking workers on the picket line or asked Santiago to speak with the strikers. Five witnesses, the four alleged discriminatees, and the Union's, agent Carrao testified to the contrary and I credit them over Castellano's denial. Although acknowledging that either Agosta or he go over and assign routes to the drivers, Castellano, after a leading question on the matter had been stricken, swore that the assignment of helpers is worked out between the drivers and the helpers themselves. (Tr. 2369.) This testi- mony flies in the face of the testimony already alluded to by all the dischargees, in'particular Cepeda and Nevarez, concerning the assignment of helpers after their recall to employment. Agosta's and Castellano's testimony that Cepeda on the day of his rehire, with the frigid cold weather, just walked in to the warehouse without being sent there is also not worthy of belief. Castellano's blatant exaggerations and inaccuracies on the witness stand lead inescapably to the conclusion, that just as with Agosta, his testimony on the whole is un- trustworthy and will not be credited when it conflicts with that of the dischargees. Agosta never directly addressed his failure to recall Gonzalez or Reyes, although he seems to claim that his business, which since February 1985 has been subject to a bankruptcy proceeding in which Respondent has con- tinued as debtor in possession, does not warrant the hire of additional employees. Concerning Cepeda and Ne- varez, it was Agosta's view that because Tony Olivia was going to leave (although he was still driving at the time of Nevarez' recall 10 days later) and Cepeda and Nevarez had been around looking for work and talked to his son-in-law, he decided to give them "a chance." (Tr. 2090.) Because Cepeda could not go around alone and needed somebody else, he also hired Nevarez. Signifi- cantly, on the day Cepeda and Nevarez were directed to 325 "return to work, Monday, 21 January 1985, Respondent's sales had declined precipitately, from $80,000 during the week ending 20 December 1984, to $11,000 for the week ending 18 January 1985. According to Agosta's own tes- timony, he was aware of sales figures for the prior week ending Thursday on the following, Sunday morning, the day before Cepeda reported, for work and the week before Nevarez did so. In spite of this drop off, Agosta nonetheless hired and kept both men in his employ until each was separated for reasons unrelated to Respondent's business fortunes. Economics thus played no role in their rehire or termination and could not be reasonably assert- ed as a defense to a recall of Gonzalez or Reyes, particu- larly in light of Respondent's hire of other new helper employees, Carmello and Price, as well as the ^ extended offer to Cales and rehire of and disregard of Folgar's drinking problem. It was Agosta's testimony that Cepeda was assigned only three stops on Wednesday, 23 January 1985, the morning Cepeda protested his assignment of a non-Span- ish-speaking helper and a route including, six stops in New Jersey in towns unfamiliar to either of them. Re- spondent's records do not support this assertion and, in any event, are in such a confused state that firm conclu- sions may not be made attributing stops to Cepeda, Olivia, or other drivers for that day. (G.C. Exh. 11.) What is clear is that Agosta does not address in his testi- mony Cepeda's concerns about the assignment, of a helper with whom he could not communicate and who was as unfamiliar as he was with the stops assigned. Agosta does "recollect" that Cepeda went to Jersey three or four times before the strike. He also disputes Ce- peda's testimony that he was directed to drop off the truck and keys to Olivia the prior day. By seeking to minimize the distance Cepeda had to walk late on a frigid night to get from Olivia's house to his car at the plant to drive home, however, Agosta has conceded that Cepeda did deliver the equipment to Olivia, but asserts that Cepeda did it on his own because he did not want to leave his car overnight in front of the locked plant gate and he could not place the truck inside the plant gate that was locked after 7 p.m. Agosta does not explain why he did not supply a key to the locked gate for em- ployees, like Cepeda, who returned to the plant after de- liveries much later at night, or why, as he did for Radwan, he did not offer or provide Cepeda with funds to place the truck in a locked yard near the plant. (Tr. 2153.) On his last day at the plant, 24 January, Agosta asserts he again assigned Cepeda only three stops, including two in Bayonne, New Jersey, to which Cepeda responded by saying he was refusing to work. This conduct resulted in his termination. I do not credit Agosta on this assign- ment, sequence of events, or conversation. It was the prior day, as Cepeda explained, that he was told, after Agosta refused to discuss Cepeda's concerns regarding his route and helper, there was no work for him. The next day, after telling Cepeda he was "trying him," Agosta discharged Cepeda. I fully credit Cepeda's ver- sion of the events. I found him to be dignified, calm, courteous, straightforward, and well able to retain his 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD composure even under the stress of a vigorous cross-ex- amination. Significantly, although asserting that before the strike he had a good relationship with all the work- ers, including Cepeda, Agosta was not asked by Re- spondent's counsel about any deterioration in that rela- tionship after the strike. (Tr. 2157-2158.) Respondent also introduced in defense of Cepeda's charge, two decisions rendered by administrative law judges of the unemployment insurance division of the New York State Department of Labor, the second of which, following a hearing at which for the first time a witness for Respondent testified, along with Cepeda, again, with the assistance of an interpreter, reversed the earlier determination and, granting the Employer's appli- cation to reopen the case, reversed and reinstated an ini- tial determination effective 24 January 1985, disqualify- ing the claimant, Cepeda, from receipt of benefits be- cause of loss of employment due to misconduct. It also reaffirmed an initial determination that Cepeda's certifi- cation that he did no work in the week ending 27 Janu- ary 1985 was a willful misrepresentation subjecting him to the forfeiture penalty imposed. Regarding Nevarez, although Castellano testified he had not been told he was not permitted to use the hi-lo machine, that response misses the point, not contested is that Nevarez was not assigned back to his prior regular work in the warehouse on his recall in January 1985. Agosta, as well as Castellano, also disputed that Ne- varez was ordered to load heavier merchandise. Yet, Agosta would also ask the Board to believe that at one time Nevarez declined a $10-a-week wage increase be- cause he only got to keep $7 of it and he wanted $20. Agosta also denied ever offering $15 to Nevarez off the book. I credit Gonzalez and Nevarez that each of them received a $15 raise "off the books." In Gonzalez' case it was as a result of a request for a raise, but Gonzalez became a helper moving from the warehouse and, on his protest, he did not receive the increase. (Tr. 77.) Nevarez also protested and was then paid the increase in his regu- lar salary with all deductions. (Tr. 309.) According to Agosta, on Nevarez' last Friday working for Respondent (established as 1 February 1985), he was given a check with the cash as was customary and took both of them and ran away. Agosta called him aside and told him you take one or the other. Nevarez said, "I'm taking both" and went away. When Agosta protested, Nevarez called Agosta names, an animal, a guinea "bas- tard," and other obscenities. When Agosta asked why, Nevarez replied because Agosta did not pay him over- time. Nevarez explained that after 8 hours he was sup- posed to pay him overtime. Agosta said, "I always paid you overtime after 40 hours and that's it." Nevarez said, "We'll see, I'm going to go to the Union." Agosta re- plied, "Go any place you want, this is my policy over here for years." The conversation had continued from the plant office on to the street in front in the presence of Agosta's daughters who worked in the office and other employees who were getting paid. None of these people allegedly present, a number under Respondent's control, were called as witnesses to corroborate Agosta's testimony. The next workday, Monday, 4 February, Agosta saw Nevarez early in the morning and asked him, "Why don't you punch your card." Nevarez said the heck with him and went into the warehouse. A second conversa- tion took place about 9 a.m. between them in the ware- house in front of everybody. Agosta asked Nevarez to give him his check back or sign a receipt to which a copy is attached. Nevarez said, "I'm not going to sign anything," and he left. Agosta understood Nevarez went to make a phone call and then returned about 10:15 a.m. Agosta told him he had to sign a receipt or give him his check back. Nevarez said he was not going to do any- thing. Nevar'ez asked if he was going to be fired. Agosta said, "I'm not going to fire you, the only thing is you will come back here when you give me a receipt or give my check back." Nevarez said, "You're firing me." Agosta denied it and told Nevarez he could come tomor- row if he just gave him the receipt or the check and he would be satisfied. According to Agosta, he never saw Nevarez again at the plant. Castellano testified that he was present in the ware- house when Agosta asked Nevarez if he would sign a piece of paper he was holding or gave him back the check. Nevarez refused to do both. They started arguing and Nevarez called Agosta an animal and then walked out of the warehouse. About 45 minutes later he re- turned. Agosta approached him again and told him he had to either sign the paper or return the check and Ne- varez said he was not signing anything. Nevarez then just left around 11:30 a.m. In Agosta's version, he fails to acknowledge that the conversation was taking place in Spanish or in a mixture of Spanish and English with a high probability of limited understanding on Nevarez' part. Agosta does not say he read the receipt to Nevarez or whether he assumed Ne- varez understood English. Yet it includes Agosta's expla- nation of his overtime payment policy. It is also apparent that Agosta has omitted completely any sense of his ex- treme antagonism and baiting evident in Nevarez' recital. Agosta's version is also inconsistent with Nevarez' re- served sensibilities, permitting him to utter the restrained expletive "animals" only when goaded beyond his break- ing point by his bosses incivility and viciousness. The profanity attributed to him by Agosta is completely out of character for Nevarez as I came to judge it on the witness stand. Agosta, finally, fails to take note of Ne- varez' repeated statement that he did not have the check with him, and thus could not on 4 February satisfy Agosta's demand for its return, even if Agosta provided Nevarez with that option-an option I conclude was not made or made clear to Nevarez when he was shown the writing. Castellano's version omits entirely any comments of an obscene and goading nature attributed to him by Ne- varez as well as the discussion about whether Nevarez was being fired, which both Nevarez and Agosta includ- ed. I credit Nevarez' version. Agosta, who goaded Ne- varez from the first question Nevarez asked about his pay, hardened even more in his attitude and behavior toward Nevarez, ultimately placing Nevarez in an intol- LA FAMOSA FOODS erable position, only after Nevarez-demonstrated his"con- tinued adherence to the Union by (1) stating he knew where he could go if he did not get his proper pay, the inference being unmistakable that this was to the Union as Agosta understood and even acknowledged it in his recital, and by (2) leaving to seek assistance in respond- ing to Agosta's demand for his signature, from a source which Agosta could easily infer was the Union. It should be emphasized that at no time in this series of events over less than 4 work hours covering two consecutive workdays has either Agosta or Castellano claimed that Nevarez was stealing or converting money that belonged to the firm for his own purposes. Finally, I conclude that Nevarez' reaction was distracted and emotionally reac- tive to a series of unlawful and provocative acts of har- assment to which he was subjected on his recall to em- ployment starting on 28 January, which were accurately foretold by Jose Santiago on that very first day of Ne- varez' return. Having now referred to a statement attributed to San- tiago, in his absence as a witness and on,,the basis of the high degree of credibility of I.he four employee witnesses for the General Counsel, , I am also prepared to and do credit all statements attributed to him by the four. Analysis Respondent committed violations of Section 8(a)(1) of the Act on the occasions when Supervisor Castellano ap- proached the Spanish-speaking strikers on the picket line during July 1984 and sought to induce them to return to 'work with a promise of a wage increase if they would renounce the Union in writing. At each- such meeting with the strikers Respondent used Santiago as its agent to translate its illegal offers into Spanish and the employ- ees' responses into English. Respondent's efforts to break the strikers' resolve was unsuccessful. While this illegal effort was underway, Agosta dispatched mailgrams to all the strikers threaten- ing them with discharge if they did not return to work within 2 days. In a prior section of this decision I dem- onstrated that Agosta never intended to withdraw that threat by his subsequent forwarding of a corrective mail- gram later the same day.1 ° Board law supports the con- clusion that the second mailgram, having failed to satisfy the standards for an effective repudiation of the first (the threat to terminate the employees contained in the first) constitutes a violation of Section 8(a)(1) of the Act. By merely rescinding the first mailgram and substituting "the appropriate message" that he would exercise his right to replace economic strikers, Agosta did not make sufficiently clear nor was he sufficiently specific in dis- avowing the illegal threat. Nor did Agosta provide any assurance to the striking employees in the second mail- gram that in the future Respondent would not interfere with the exercise of their Section 7 rights by such coer- cive conduct. Dayton Auto Electric, 278 NLRB 551 YO Apart from Agosta's contradictory narrative of the events that led him to "correct" the first mailgram, it became clear by 31 July, when Agosta agreed to every striker's inclusion in the voting unit and was sep- arately confirmed by Respondent's counsel (Tr. 131), that none of the strikers had been permanently replaced in accordance with the mailgram 327 -f986) Passalant Memorial Area Hospital, 237 NLRB 138 (1978). I am not prepared to conclude, as urged by the Gener- al Counsel, that by the presumed results said to flow from the first mailgram, Respondent thereby discharged the striking employees effective on the deadline for their return on 13 July 1984. As the record makes clear, Re- spondent did not follow the action stated in either mail- gram, as he agreed by 31 July to the inclusion of all strikers on a list of employees eligible to vote in the rep- resentation election. The General Counsel argues that this agreement was a tactical move, and that had the strikers responded to the mailgrams and returned, a con- dition for their reemployment would have been abandon- ment of the Union. Respondent's later conduct, when Cepeda and Nevarez were recalled, belies this claim. Both were recalled even though both had previously and consistently repudiated Respondent's efforts to woo them back with increased benefits provided they abandon the Union. That Respondent's plan of harassment succeeded in subsequently removing both of them from its employ does not support the General Counsel's speculative inter- pretation of events had the employees acted on Agosta's 1I July command. Agosta's conduct on 8 August does warrant, however, the conclusion that in rejecting the offers to return to work of the Spanish-speaking union adherents, he was motivated by their union loyalty and adherence through- out the strike, and their rejection of his efforts to force their renounciation of the Union as the price of their recall. A number of factors point toward this conclusion. The only employee who either did not abandon or notify Agosta he opposed the strike and who was recalled was George Moncado. Moncado apparently was not closely associated with the -exclusively Spanish-speaking, group of four and had not been approached on the picket line during the strike to abandon his union support and return to work. He was also the most senior helper employed by Respondent before the strike who consistently worked more overtime hours among those who had re- mained on strike and Agosta needed an experienced helper to get back into full operation. Furthermore, Agosta's selection for recall, with one exception, of em- ployees he knew had abandoned the strike (Radwan and Cales), refrained from supporting the strike (Olivia and Folgar), and had even been .fired for drinking sometime before the strike began (Folgar), when only the four Spanish-speaking employees, and not the ones selected, were waiting outside the plant for Agosta's acceptance of the Union's offer to their return to work , establishes that union considerations were paramount in Respond- ent's choice of employees to help achieve full operations after the end of the labor dispute. What makes Agosta's denial of unlawful motivation even more difficult to credit is that he adopted as his standard of selection for reinstatement the fact that there was a group of employ- ees waiting at the plant entrance for the opportunity to return to work. Those would be the ones selected for im- mediate rehire. Yet, all employees selected but one, Mon- cado, were not even outside the plant that afternoon, al- though Olivia had already been placed back on the pay- 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD roll on 3 August, at the beginning of the workweek ending on Thursday, 9 August. Furthermore, although Agosta gave lip service to the idea of recalling the old employees as business conditions permitted, he did no such thing, but rather hired new drivers (Khalil and others) and made an unsuccessful at- tempt to bring back Cales and, when that failed, finally hired new helpers who had not participated in the strike and therefore could not have been implicated in with- standing his pressure to denounce the Union (Price and Carmello, among others). That there were job openings for the four alleged discriminatees is proven by the ef- forts La Famosa continued to make to get them back to work but without their Union to represent 'them in col- lective bargaining as well as by Agosta's lack of concern for the drop in sales, which immediately preceded the recall of Cepeda and Nevarez. In September, when Cepeda was offered a $50-a-week pay raise by Santiago, and the same day visited the plant to see Agosta about the matter, it was Castellano who confirmed the offer, but only if Cepeda would disavow the Union at the Board. Similar offers were made to each of the other dischargees (Nevarez, Gonzalez, and Reyes), at the home of one or another of them by San- tiago, who traveled extensively to do so, and who held himself out as speaking for the owner in passing along the illegal proposals. Santiago's role as Respondent's agent in transmitting these offers and in speaking for Respondent in other re- spects, to be discussed infra, was placed in issue by the General Counsel's assertion and Respondent's denial of that status. As previously noted, Santiago was often used to relay instructions and assignments from Castellano or Agosta to the Spanish-speaking employees. The employees also trusted and had confidence in Santiago because of his senior status as salesman and his handling of accounts on behalf of the firm-even seeking him out to convey their requests for ' raises to the owner. Santiago also relayed the owner's approval of their work efforts, at least with respect to one of them, Nevarez. It was also Santiago with whom Olivia communicated during the strike to obtain information about its status. An agent with only apparent, rather than actual, au- thority may bind his principal. An employer may create such authority for an individual employee by his words and deeds "[W]hich, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him." Restatement 2d, Agency § 27 (1958). See also Jules V. Lane, D.D.S., 262 NLRB 118, 119 (1982); Idaho Falls Consolidated Hospitals v. NLRB, 731 F.2d 1384, 1387 (9th Cir. 1984); May Department Stores Y. NLRB, 707 F.2d 430, 433 (9th Cir. 1983). Section 2(13) of the Act specifically provides that "In determining whether any person is acting as an `agent' of another person so as to make such other person responsi- ble for his act, the question of whether the specific acts performed were actually authorized or subsequently rati- fied shall not be controlling." As cited in Bio-Medical Ap- plications of Puerto Rico, 269 NLRB 827, 828 (1984). In addition, the Board has held that the principal's denial that the putative agent was authorized to act on his/her behalf is not determinative of the agency issue. Id. at 828. The Ninth Circuit has held further that an agent's remarks that his comments reflected personal opinion are not conclusive on whether these remarks may be imput- ed to the principal. Idaho Falls, 731 F.2d at 1387. The Board has held, moreover, that failure of the principal to disassociate itself from the actions of the alleged agent may be a controlling factor in determining agency. Bio- Medical, 269 NLRB at 828. The Board has also noted the importance of considering whether the alleged unlawful acts of the alleged agent coincide with similar actions by the employer. Jules V. Lane, D.D.S., 262 NLRB at 119. The latter bears on the question of whether it is reasona- ble for employees to assume that an individual is acting as the employer's agent: On three occasions, the Board has relied on a bilingual employee's role as translator as a factor in determining agency. In Enterprise Aggregates Corp., 271 NLRB 978 (1984), the Board found an employee bookkeeper who, inter alia, "was able to communicate with employees ef- fectively because she spoke Spanish" to be an agent. In Ja-Wer Sportswear, 260 NLRB 1229, 1234 (1982), the Board affirmed an administrative law judge's conclusion that an employee who "regularly translated the remarks of [the employer] from English to Spanish for the em- ployees" was an agent. And in NAB Construction Corp., 258 NLRB 670, 674 (1981), the Board affirmed the judge's fording that employee Carlos Ortz, who was spe- cifically hired to solve the employer's problem of com- municating with Spanish-speaking employees, was an agent., In fording the employer liable for Ortz ' comments, the judge concluded: "I ford that respondent is responsi- ble for Ortz' comments regarding the union situation as it placed him in a position which identifies him with man- agement and the employees could have reasonably be- lieved that when making the comments under consider- ation he was speaking and acting for management." Id. at' 675. Reliance may, be placed here not only on the use of Santiago in transmitting management instructions, direc- tions, and positions to employees who because of a lan- guage barrier might not otherwise understand them, as well as his purporting to speak for management after the strike, but also on the fact that Santiago's activities in communicating with the employees after the conclusion of the strike coincided with and closely paralleled the conduct of Supervisor Castellano during the strike, and in at least one important instance, that involving the offer of $250 to Cepeda at his home, was immediately adopted and repeated by Castellano at the plant en- trance.", See Jules V Lane, D.D.S., cited, supra. Fur- ther, the fact that Santiago went out of his way to visit employees at their homes in other boroughs of New York City is further evidence that he was not acting on his own. i i In another instance, when Santiago informed Nevarez that the owner wanted to come to some kind of an agreement, Castellano at the plant told the men when they followed up this proposal to return the next day to see Agosta who was out but, significantly, did not reject their approach to discuss the matter. LA FAMOSA FOODS 329 All the circumstances presented justified the employ- ees' belief that when he visited them at their homes and offered jobs and benefits if they abandoned the Union, and when he passed comments to Reyes in January 1985 about Cepeda, and to Nevarez later the same month about Nevarez himself, and outlined an employer scheme to rehire them and then to force them to quit or fire them on pretexts that would pass muster in the courts, Santiago was speaking for Respondent. Accordingly, I conclude that Respondent clothed Santiago with appar- ent authority and that in speaking to the strikers and to the employees after the strike, he was acting as mange- ment's agent 'whose actions bound his principal. Although Respondent denied knowledge of Santiago's actions, the parallel conduct of Supervisor Castellano un- dermines that assertion. The small, intimate nature of the Respondent's operation also adds weight to the view that not only did it act so as to reasonably cause the employ- ees to believe that it consented to Santiago's activities and speech, but that Respondent, in fact, was aware of his conduct. See NLRB P. Birmingham Publishing Co., 7.62 F.2d 2, 8(5th, Cir. 1959).12 Neither did Agosta ever disavow Santiago's participation as translator of the coer- cive and illegal offers of benefit made'by La Famosa's supervisor during the strike or his activities in approach- ing the employees thereafter. His presence with Castel- lano in conveying the offers and his later conveyance of offers to Cepeda and others, which were confirmed by Castellano, manifested a level of authority that placed on Respondent a duty to disclaim his authority in any like continued role. See Cosmetic & Novelty Workers Local 300, 257 NLRB 1335, 1338 (1981). Compare Knogo Corp., 265, NLRB 935, 936 (1982). Agosta's animus towards the union involvement and activities of his employees has been well established on this record. Agosta claimed he threw Union Agent Carrao off his property as a "criminal," He accused the strikers of causing Respondent's bad business straits when they visited the plant on 14 December after San- tiago had pleaded ' to Nevarez that Agosta wanted them to come to an agreement. Agosta referred to his not having a union contract when he denied, harshly and 12 Birmingham Publishing is one of three cases cited by Respondent in its abbreviated brief in opposition to Santiago's agency status. It appears to support such status, placing reliance on the small size of Respondent's shop, the alleged agent's meeting with a company vice president and foreman about the matter, the alleged agent's free reign and his leader- ship role among employees, in concluding that there would not be much doubt about the Company's knowledge of his activities, thus that its fail- ure to deny his authority to promise salary raises and other benefits lent support to the inference that he was clothed with authority to speak for the Company in circulating a decertification petition Neither of the other two cases cited supports a contrary view. Cupples Co. Mfrs. Y. NLRB, 106 F.2d 100 (8th Cir. 1939), was decided prior to the 1947 amendments to the National Labor Relations' Act which, inter aba, added to the defi- nition of the term "employer" in Sec. 2(2) thereof, any person acting "as an agent of an employer' and added Sec. 2(13). See 12 Ann. Rep (1947), App G. The court's analysis of the role of a certain forelady Weitzel in allegedly acting as an agent of the employer in the formation of an em- ployee association is therefore suspect and not controlling. In any event, contrary to, Cupples Co. Mfrs. there is the evidence discussed that Santia- go's activity was not disavowed. In NLRB v. Cherokee Hosiery Mills, 196 F.2d 286 (5th Cir. 1952), the alleged agent was a friend of the respondent employer, Mayer, who acted entirely on his own initiative and without respondent's knowledge, contrary to the factual pattern found herein. without explanation, Nevarez' request for overtime pay. Agosta told Cepeda that because he knew how to go to the Board he could learn to perform on the routes using English, and also, a day or two later, that he was "trying" him. Finally, Agosta physically intimidated and cursed Cepeda, stamping on the papers, on the occasion when Cepeda served him with the final charges in this case. 13 Having concluded that after 8 August 1984, Santiago acted as Respondent's agent in transmitting unlawful promises to induce the employees' return to work if they renounced the Union, I also ^ conclude that each such transmission violated Section 8(a)(1) of the Act. Further, Castellano's promises of like nature made when the em- ployees followed up Santiago's promises and report of the owner's desire to resolve the dispute and went in person to the plant, are also violative of Section 8(a)(1) of the Act. At least one instance occurred in December 1984, a period of time not alleged in the complaint.' As this conduct was one in a series of continuing and related transactions, the issue and facts regarding which was fully litigated, I will also include it in the ultimate rec- ommended conclusions of law. Having concluded that Respondent was discriminatori- ly motivated by their union activity in denying recall to the four employees, Cepeda, Nevarez, Gonzalez, and Reyes, on 8 August, and also fording that Respondent has not overcome the General Counsel's prima facie showing in that regard, NLRB v. Transportation Manage- ment Corp., 462 U.S. 393, 398-401 (1983), I will recom- mend that Respondent be found to have violated Section 8(a)(3) and (1) of the Act for this conduct. Independent of the foregoing, by denying reinstate- ment to the strikers on and 'after 8 August 1984, on their unconditional offer to return, when the record establishes Respondent had jobs available for them, the four strikers thereby became discriminatees and Respondent's failure to reinstate them violated Section 8(a)(3) and (1) of the Act. See Weather Tec Corp., 238 NLRB 1535 (1978). Re- spondent's conduct after 8 August 1984, in continuing to deny the employees' reinstatement on their infrequent visits to the plant, because they continued to insist on union representation and because Agosta blamed their striking for the current state of his business, reinforces the conclusion reached here. There is also an independent basis for concluding that Respondent violated Section 8(a)(3) and (1) on 8 August. The economic strike, which commenced on 3 July 1984, was converted into an unfair labor practice by virtue of Respondent's promises of benefit and inducements to the pickets to abandon the Union and by its 11 July threat to discharge them if they failed to return to work on 13 July. These threats and inducements were discussed among the employees and with their union delegate Carrao, who was at the picket line, as were the coercive mailgrams, three or four of which were given to the union agent. These acts of intimidation became the sub- ject of unfair labor practice charges and led the Union 13 This conduct, which followed Cepeda and Nevarez' discharges by a month, may be appropriately considered as evidence of animus on both the 8(a)(3) and (4) allegations. Jenks Cartage Co., 219 NLRB 368 (1975). 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and employees to prolong and to continue the strike and picketing beyond the 31 July meeting at which an em- ployee eligibility list and agreement for an election was reached with the Company, and until the election results were announced on 8 August, just because, in the words of Carrao, the employees and Union could not trust an employer who had engaged in such coercive tactics. See NLRB v. Berger Transfer & Storage, 678 F.2d 679, 692 (7th Cir. 1982); NLRB v. Moore Business Forms, 574 F.2d 835, 840 (5th Cir. 1978); Winn-Dixie Altanta, 207 NLRB 290 (1973). Respondent opposed the motions, both granted, one made at the opening of the hearing to allege the strike's prolonging and conversion, and the other near the con- clusion of the hearing to allege the refusal to reinstate the four unfair labor strikers, except for the reinstatement of Cepeda and Nevarez in late January and February 1985, on their unconditional offer to return to work, as discriminatory acts. However, Respondent did not object on the ground that the latter amendment was time-barred under Section 10(b) of the Act (Tr. 2276), and thus has waived the right to raise that ground, which must be as- serted as an affirmative defense, K & E Bus Lines, 255 NLRB 1022 (1981). As the matters raised in the motions at hearing are clearly related to the issues raised in the second consolidated and amended complaint, which alle- gations are based on charges that were filed within the 10(b) period, Respondent's defense that the new matter substantially alters the charges alleged in the consolidat- ed and amended complaint is without merit, and the ruling made by me on the record (Tr. 2277-2278) is reaf- firmed, including that portion concluding that the mat- ters raised in the latter amendment were fully litigated at the hearing. NLRB v. Complas Industries, 714 F.2d 729 (7th Cir. 1983); Cobb Theatres, 260 NLRB 856 fn. 1 (1982); Glazier Wholesale Drug Co., 209 NLRB 1152, 1153 fn. 1 (1975). Because the subject matter had been fully litigated it was not prejudicial to Respondent to grant the motion to amend near the close of the hearing. See Acme Markets, 277 NLRB 1656 (1986). In their status as unfair labor practice strikers on their unconditional offers to return to work on 8 August 1984, the four employees were entitled to be hired ahead of any applicants for employment on or after 8 August who did not enjoy their status and to force the dismissal of any replacements hired after the conversion of the strike. NLRB v. Charles B. Bonanno Linen Service, 782 F.2d 7 (1st Cir. 1986); Seeberg Corp., 192 NLRB 290, 291 (1971). Thus, by denying them reinstatement on 8 August, and each time thereafter new drivers and helpers, were hired in their place, Respondent committed violations of Sec- tion 8(a)(3) and (1) of the Act. It remains to consider the legal implications of Re- spondent's conduct in harassing and then discharging Cepeda and Nevarez almost immediately following their recall in January, 1985. As already found, early in September 1984, Cepeda re- jected a return to work at a $50-a-week raise conditioned on his renouncing the Union in writing to be submitted to the Board. Later the same month, Respondent em- ployed a new driver, Jacob Khalil, who continued there- after on a regular, basis. It is evident that these events were related. Throughout the strike and poststrike period, until January 1985, Agosta attempted zealously but without success to induce Cepeda, among the others, and the only driver of the four discriminatees, to give up the Union as a price of returning to work. By December, when the Union's charge was filed in Case 29-CA- 11560, Agosta learned that the men had taken their com- plaints about his threats and promises to the Union and to the Board. Although Respondent refused to accept certified mail delivery of a copy of the resulting com- plaint in that case on 18 January 1985, there is good reason to believe that the Region 29 designation on the envelope or notice that the sender was the NLRB alert- ed Agosta to the result of the Board's investigation of the charge. By this time, Agosta was surely aware that his attempts to cause a rift between the employees and their Union would not succeed. He therefore implement- ed a scheme to recall at least two of the men without imposing any apparent illegal conditions on their return to work with the ultimate aim of getting rid of them again in such a way that he would be able to successive- ly overcome a claim that their termination was related to their union adherence. Santiago's comments to Reyes made just after Cepeda's firing that he knew, Cepeda would be fired, that "they" would recall and then fire each of them in turn in such a way as to make it impossi- ble for the Union to establish an unlawful act in court, shows the existence of such a plan. Santiago's later com- ment to Nevarez attributing to the "owner," Agosta, the illegal device of assigning to Nevarez a different job from the one he held in the past to see if he would refuse to do it, after Nevarez had been assigned as a helper and not to his prior job as warehouseman, also evidences the implementation of the scheme. - On Cepeda's return, he was immediately ordered to a frigid warehouse and was next overloaded with extra stops compared to his fellow drivers and the helper as- signed to assist him, contrary to past, practice, did not speak Spanish, in spite of the fact that the other three helpers available were all bilingual and Agosta knew Cepeda required the assistance of one of them. The next day, Respondent removed Cepeda's responsibility to col- lect and remit the money received from customers and denied him the option of driving the truck home at night, instead ordered him without explanation to drop off the truck and keys with the driver he was supposedly replacing, Olivia, and thereby forcing Cepeda to walk some distance in the frigid cold, below 10 degrees Faren- heit.^ These harassments and onerous conditions of em- ployment were continued the following day when, in re- sponse to Cepeda's inquiring about' assignment to a new route that neither he nor his, English-speaking helper were familiar and request for a Spanish-speaking helper were met by Agosta, with whom he was obliged to confer, with a provocation, acknowledging both his union concerns and exercise of rights under the Act of giving testimony in support of one of the consolidated cases, and finally by sending him home. Cepeda's dis- charge followed the next morning when, Agosta, first telling Cepeda he was "trying" him, next falsely accused Cepeda of not wanting to do the stops the prior day, and LA FAMOSA FOODS then let Cepeda go. All the foregoing circumstances war- rant the conclusion that Agosta, following up on his scheme, created a setting of harassment and onerous terms and conditions of employment that placed Cepeda in a position where he could not reasonably perform his job and then fired him for pleading to remove the imped- ments to his work performance.14 Agosta's extreme hos- tility to Cepeda's union activities and giving of testimony under the Act was later confirmed by the vehemence of his fury and obscene language when Cepeda served him personally with a copy of the amended charges he and Nevarez had filed in Cases 29-CA-11713 and 29-CA- 11713-2 on 1 March 1985. Nevarez' adverse treatment paralleled that of Cepeda on his return to work 4 days later. Nevarez was not as- signed his old job, nor was he allowed to operate the equipment, which had been his main responsibility in the warehouse. In his assignments as helper he was consist- ently given heavier workloads than his cohorts. When he questioned the employee, Santiago, who ordered him out on a truck as a delivery helper, he was told the owner was testing him to see if he would refuse the assignment. The implication was clear-Respondent was looking for a way to goad him and then to fire him without implicat- ing itself in charges of discrimination. Nevarez' deliveries the first day took him as far as Philadelphia. Two days later Nevarez was given an as- signment, generally disliked, to help on a delivery up- state leaving ' at 3 a.m., requiring his much earlier travel from another, borough of New York City by ferry. Even after receiving word from the driver that another helper for whom the assignment was less of a hardship would be substituted, and from Respondent' s agent Santiago that he had no obligation to go, he was still warned by Agosta the following day about the "late" change. When Nevarez questioned whether the 12 overtime hours he worked the 3 days that week appeared on his paycheck, Agosta first responded in an uncharacteristically testy and hostile manner, and then made the point he had no union contract requiring higher pay, without clarifying that he did not pay overtime rates for less than a 40-hour week. When Agosta then learned from Nevarez' re- sponse that he intended to pursue the matter further with his Union, Agosta cursed Nevarez with language unchar- acteristic of their past relationship. Agosta's series of provocations culminating in his ill treatment that day led as 1 am not persuaded to adopt a contrary conclusion after reviewing the unemployment compensation decisions received in evidence In the absence of any transcript of those proceedings , and in light of the hostih- ty and harassment to which he was subjected on the few days of his return to employment, and the high degree of reliability I have attached to his demeanor and testimony, I am not prepared to discredit Cepeda because he certified for benefits for the week ending 27 January 1985 that he did no work in employment. This apparently refers to an entry made on a form, whether translated into Spanish remains unclear. See Precision Plating, 243 NLRB 23Q (1979). I also conclude that the administrative law judge fmdmgs there that Cepeda "refused to make a delivery to New ,Jersey," and without having "a compelling reason" are both contrary to the findings I have made here based on the full record before me. Par- ticularly in the absence of hearing minutes, or any information about the nature of the hearing that was conducted or who testified in addition to Cepeda or what evidence was adduced, I will not give these decisions controlling weight in the instant proceedings See Magic Pan, Inc., 242 NLRB 840 (1979) 331 " Nevarez to leave the plant with both his check and cash. When pressed and harassed the next day by both the su- pervisor and owner to return the check, which Nevarez did not have with him, Nevarez sought unsuccessfully to contact the Union, and on his return to the plant was fired when he refused to sign a paper which Agosta did not explain and Nevarez could not read or understand. Just as with Cepeda, the pressure and more onerous working conditions placed on Nevarez forced him to behave in such a way that Agosta's scheme was realized and he was provided with the trumped up charge that he then seized on to rid himself of a union adherent who re- peatedly had refused to abandon the Union, although in- cited to do so.' 5 The second discharges of Cepeda and Nevarez violat- ed not only Section 8(a)(3) and (1) of the Act, but Sec- tion 8(a)(4) as well. When Agosta finally acted to remove Cepeda and Nevarez from his payroll for what he believed was the last time Agosta was motivated by both their union loyalty and their pursuit of charges of unfair labor practices they had each filed with the Board. Agosta acknowledged his concern about these charges in his refusal to accept mail service of the first complaint, his sarcastic comments about Cepeda's ability to visit the Region's offices and ' relief at not having to pay union contractual overtime rates to Nevarez, and finally his physical and verbal abuse of Cepeda for serving the last set of charges on him. These events, coupled with his strong antipathy to union organization of his business even after, the Union had clearly demonstrated majority representation in the election, successfully establish Re- spondent's dual unlawful motivation in January and Feb- ruary 1985, which Respondent's pretextual defenses can hardly hope to overcome. CONCLUSIONS OF LAW 1. By virtue of a bankruptcy petition filed by it in the United States Bankruptcy Court for the Eastern District of New York under Chapter XI of the Bankruptcy Act, Respondent La Famosa Foods, Inc. has continued in possession as a Debtor in Possession, with full authority to continue operations and exercise all powers necessary to the administration of its business ' and thus constitutes a successor in bankruptcy to Respondent La Famosa Foods, Inc. 2. The Respondents, La Famosa Foods, Inc., and La Famosa, Inc., Debtor in Possession, are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Local 27, Paper Products, Miscellaneous Drivers, Warehousemen and Helpers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of is Particularly apt with respect to both Cepeda and Nevarez is the fol- lowing language: "Because the animosity is inextricably intertwined with the unionization dispute, reinstatement is appropriate in this case. An em- ployer cannot provoke an employee through unfair labor practices and then terminate the employee for becoming understandably hostile NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th Cir 1965). If an employer could avoid a reinstatement remedy on this ground , a premium would be placed on grossly offensive employer conduct. Id " NLRB v. United Hy- draulic Services, 121 LRRM 2464 (4th Cir 1986), enfg 271 NLRB 107 (1984). 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America is a labor organization within the meaning of Section 2(5) of the Act. ' 4. The employees who went on strike about 3 July 1984 were engaged in a protected concerted activity within the meaning of Section 7 of the Act. 5. By offering and promising the strikers wage in- creases and other benefits if they would abandon their work stoppage and strike, and abandon their membership in, activity on behalf of, and support of the above-named Union, by threatening the strikers with discharge for en- gaging in an economic strike, and subsequent to the ter- mination of the strike on 8 August 1985, by offering and promising to its employees reinstatement, wage increases, and other benefits if they would abandon their member- ship in, activity on behalf of, and support for the Union, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By engaging in the conduct described above, Re- spondents prolonged the strike described above, and con- verted the economic strike into an unfair labor practice strike. 7. By failing to reinstate strikers Jose Ruiz Gonzalez, Bernardino Vina Cepeda, Eddie Nevarez, and Jose Reyes on their unconditional offer to return to work on 8 August 1984 when jobs were available and, alternative- ly, by refusing reinstatement to unfair labor practice strikers Jose Ruiz Gonzalez, Bernardino Vina Cepeda, Eddie Nevarez, and Jose Reyes on 8 August 1984, Re- spondents discriminated in regard to the strikers' hire and tenure of employment, thereby discouraging mem- bership in the Union and have thereby engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 8. By harassing and imposing more onerous terms and conditions of employment on employees Bernardino Vina Cepeda and Eddie Nevarez on their reinstatement to employment on 21 and 28 January 1986, respectively, and by discharging them on 24 January and 4 February 1986, respectively, Respondents discriminated in regard to their hire and tenure of employment, thereby discour- aging membership in the Union, and discriminated against them because they gave testimony under the Act in support of charges filed, inter alia, on their behalf by the Union in Case 29-CA-11560, and have thereby en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(4), (3), and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 10. Except as it is set forth above, Respondents have not otherwise violated the Act. THE REMEDY Having found that Respondents engaged in certain unfair labor practices in violation of Section 8(a)(4), (3), and (1) of the Act, I shall recommend that Respondents cease and desist and take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that Respondents denied rein- statement to the four strikers and discriminatees on their unconditional offer to return to work on 8 August 1984, although jobs were available and, alternatively, that the strike which began on 3 July 1984 was prolonged by Re- spondents' unfair labor practices, the four named strikers and discriminatees were entitled to- reinstatement when they unconditionally offered to return to work on 8 August, subject to the availability of their jobs.16 The record also establishes that on Respondents' offer of rein- statement to employees Cepeda and Nevarez on 18 Janu- ary 1985, Cepeda was reemployed on 21 and 22 January 1985 and Nevarez was reemployed from 28 January to 1 February 1985.17 These limited periods will be excluded from the period of time it is recommended that Respond- ents will be ordered to make these employees whole for any loss of earnings they may have suffered by reason of Respondents' earlier refusal to reinstate them and subse- quent discharge of them. I will therefore recommend that Respondents be ordered to offer the four discrimina- tees and unfair labor practices strikers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any re- placements in order to provide work for the strikers and discriminatees, and that it make them whole for any loss of earnings they may have suffered as a-result of the dis- crimination against them by paying them backpay com- puted on a quarterly basis as prescribed in F W. Wool- worth Co., 90 NLRB 289 (1950), with' interest as pre- scribed in Florida Steel Corp., 231 NLRB' 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). Back- pay will be computed from 8 August 1984, the date of their unconditional offer to return to work, or the date next thereafter when jobs were available, to the date of Respondents' offer of reinstatement, excluding the period 21 and 22 January 1985 for Bernardino Vina Cepeda and the period 28 January to 1 February 1985 for Eddie Ne- varez, less their net earnings during such period. I also conclude on the basis of the facts earlier set forth in this decision that Respondent La Famosa and Respondent La Famosa, Debtor in Possession, are alter egos of Fontana d'Oro Foods, Inc., see Crawford Door Sales Co., 226 NLRB 1144 (1976).18 As Fontana d'Oro 16 On Respondent president's own testimony he was prepared to offer jobs on 8 August to four employees, in addition to a single striker, Mon- cado, two of them drivers (Olivia and Radwan) and two of them helpers (Folgar and Cales), all of whom abandoned the strike or were known to have rejected or opposed the strike and the Union In addition, other new employees were hired in September (a driver, Khalil), November (helpers Blue and Kerrigan), and December or January (helpers Price and Carmello). Thus, jobs were available for a driver and two helpers almost munediately and for a third helper by November 1984. 17 On 23 January 1985 Cepeda was sent home without work and, early on 24 January 1985, he was discharged. Early on 4 February 1985, Ne- varez was discharged. 13 Just as in Crawford, La Famosa and Fontana d'Oro Foods, Inc have had "substantially identical" management, business purpose, operation, equipment, customers, and supervision, ' as well as ownership Even the work force, the drivers and helpers and warehouse employees, was sub- stantially identical The only limited exception, which does not detract from this conclusion, is that Agosta's brother-in-law, Angelo Guarnieri, is not an owner of 50 percent of the shares of La Famosa, havmg'been re- placed by Agosta's wife and daughters, but he continues as an employee close to Agosta and whom Agosta did not propose for inclusion in the list of employees eligible to vote in the election. The location is also not Continued LA FAMOSA FOODS 333 Foods, Inc. has been found to have-committed significant unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, in a proceeding in which the Board's Order was enforced by a circuit court of appeals, I con- clude that its alter egos, Respondents La Famosa and La Famosa as Debtor in Possession, have demonstrated a proclivity to violate the Act warranting the issuance of a broad order, Hickmott Foods, 242 NLRB 1357 (1979). I also find a broad cease-and-desist order is necessary be- cause of the character and scope of the unfair labor prac- tices found herein, demonstrating a general disregard for the employees' fundamental rights. See Soule Glass Co., 246 NLRB 792 (1979); and Hickmott Foods, supra. On these findings of fact and conclusions of law and on the entire record, 19 I issue the following recommend ed2o ORDER The Respondents, La Famosa Foods, Inc. and La Famosa Foods, Inc., Debtor in Possession, Staten Island, New York, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Offering and promising employees raises or other inducements to return to work and cease participating in a strike or other union or protected concerted activities or threaten them with discharge if they do not abandon their strike. (b) Discouraging membership in Local 27, Paper Prod- ucts, Miscellaneous Drivers, Warehousemen and Helpers, International Brotherhood- of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by refusing reinstatement to strikers for whom jobs are available and by refusing reinstate- ment to unfair labor practice strikers, on their uncondi- tional request. (c) Offering and promising employees reinstatement, raises, and other inducements to abandon their member- ship in, activity on behalf of, and support for the Union. (d) Discouraging membership in the Union or any other labor organization, and discriminating against em- ployees because they give testimony under the Act, by harassing, imposing more onerous terms and conditions of employment on, and discharging, or in any other manner discriminating against, its employees in regard to their hire or tenure of employment or any term or condi- tion of employment. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. identical, having moved a few doors down the same street because of the water damage to Fontana d'Oro's premises. Both have been closed cor- porations wholly owned by members of John Agosta's family, and he has exercised substantial control over both. 19 The General Counsel's motion ' to amend the transcript correcting certain errors to more accurately refleci actual language spoken is grant- ed and the record is corrected. 20 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 .2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Jose Ruiz Gonzalez, Bernardino Vina Cepeda, Eddie Nevarez, and Jose Reyes immediate and full' reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any person hired on or after 8 August 1984, and make them whole for any loss of earn- ings and other benefits they may have suffered as a result of the discrimination practiced against them in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Staten Island, New York place of busi- ness copies in English and Spanish of the attached notice marked "Appendix."21 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint in Case 29-CA-11560 is dismissed insofar as it alleges violations of the Act not specifically found. - 21 If 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 Nation- al 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT offer or promise our striking employees wages increases or other inducements to work and cease participating in a strike or other union or protected con- certed activities or threaten them with discharge if they do not abandon their strike. WE WILL NOT discourage membership in Local 27, Paper Products, Miscellaneous Drivers, Warehousemen and Helpers, International Brotherhood of Teamsters, 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by refusing reinstatement to strikers for whom jobs are available or by refusing re- instatement to unfair labor practice strikers, on their un- conditional request. WE WILL NOT offer and promise our employees rein- statement, raises, and other inducements to abandon their membership in, activity on behalf of, and support for the Union. WE WILL NOT discourage membership in the Union or any other labor organization, or discriminate against em- ployees because they give testimony under the Act, by harassing, imposing more onerous terms and conditions of employment on, discharging, or in any other manner discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Jose Ruiz Gonzalez, Bernardino Vina Cepeda, Eddie Nevarez, and Jose Reyes, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits they may have suffered by reasons of our discrimination against them, together with interest. LA FAMOSA FOODS, INC. AND LA FAMOSA FOODS, INC., DEBTOR IN POSSESSION