Champ Corp.

CHAMP CORP 803 Champ Corporation and International Union, United Automobile, Aerospace and Agricultural Imple ment Workers of Amenca-UAW, and Interne tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer ica-UAW, Local 509 Cases 21-CA-18696 21- CA-19007 21-CA-19423 and 21-CA-19424 November 25 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On February 4 1982 Administrative Law Judge Joan Wieder issued the attached decision The Re spondent filed exceptions and a supporting brief the General Counsel filed limited exceptions a sup porting brief, and an answering brief to the Re spondent s exceptions and the Charging Party filed cross exceptions and a brief in support of its cross exceptions and in opposition to the Respondent s exceptions 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 i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Nor do we find any merit to the Respondents contention that the judge was biased and prejudiced against it Specifically regarding the Respondent s allegation that the judge improperly foreclosed it from introducing evidence about the nature of the parties contract negotia Lions to show that economic considerations rather than unfair labor prac tices were responsible for prolonging the strike we note that the record shows clearly that the Respondent made an informed choice not to intro duce such evidence in order to avoid expanding the scope of the pro ceeding to include a surface bargaining issue Also with respect to the Respondent s contention that the judge improperly relied on hearsay evi dence in finding that the Respondent violated the Act by failing to rein state employee Marvin Cummings we find it unnecessary to address the Respondents contertion because even without the alleged hearsay tests mony the record contains no evidence that the Respondent ever satisfied its reinstatement obligation with respect to Cummings We correct the following inadvertent errors of the judge First the judge stated in her decision that employee Francisco Zamora testified that he could not recall a list of employees being mentioned during the negotiation session that took place about October 31 1979 The record however indicates that Zamora did in fact testify that such a list was mentioned during the meeting Second in describing the chronology of events surrounding the return to work of employee Jose Padilla it is clear from the record that the judge incorrectly identified the testimony of Foreman Daniel Knvoshia as being that of Manager Dick Rowe who did not testify during the hearing Third in describing certain occur rences of alleged strike misconduct involving employee Carlos Almaroz the judge incorrectly stated that purchasing agent Loren Peaslee rather than Almaroz was shopping with his wife and children when the alleged threat was made by Almaroz Fourth the judge stated that a criminal charge against employee Jose Villavicencio was dropped on a motion by the district attorney The record shows that the original charge was amended to another charge and that Villavicencio pleaded nolo conten decided to affirm the judge s rulings findings i and conclusions 2 as modified below 3 1 The Respondent contends that iti was denied due process by the judge s consideration of testi mony concerning a November 5 1979 union meet ing because the Union failed to comply with a Jan uary 28 1981 subpoena duces tecum requesting all writings related to the Union s October and No vember 1979 meetings The Respondent further contends that it was prejudiced by the General Counsels failure to seek enforcement of the sub poena In this connection the Respondent asserts that on the Union s failure to comply with the sub- poena the General Counsel under Section 102 31(d) of the Board s Rules and Regulations was required to seek enforcement of the subpoena The Respondent s arguments are misplaced As the judge found, the credited testimony estab lashes no grounds for finding a willful refusal to comply with the subpoena or a bad faith effort on the part of the Union in searching for the missing documents On the contrary, the evidence shows that the subpoenaed documents through no fault of the Union were unavailable Because it has been demonstrated that the subpoena was incapable of being enforced the Respondent has shown no prej udice arising from the General Counsels failure to seek its enforcement Further because the Union presented (1) credible testimony concerning its good faith albeit unsuccessful search for the notes taken in the union meeting at issue and (2) evi dence concerning circumstances under which it can reasonably be inferred that the notes could have been inadvertently destroyed or misplaced (i e the retirement or replacement of the two indi viduals responsible for taking or storing the notes) dere to the amended charge and was fined $70 50 The record however does not reveal the nature of the amended charge 2 The judge made several collateral unfair labor practice conclusions that were not alleged in the complaint and that were not litigated in the hearing Accordingly we do not adopt the judge s conclusions that the Respondent independently violated Sec 8(a)(3) and (1) of the Act by uni laterally changing job classifications and affording new hires superior em ployment opportunities by the more rigorous application of disciplinary measures against individuals engaged in protected concerted activity and by considering misconduct previously condoned in determining reinstate ment decisions No exceptions were filed to the judge s findings that the Respondent violated Sec 8(a)(5) and (1) by unilaterally granting paid holidays without providing the Union with prior notice and opportunity to bargain and by raising the issue of additional paid holidays prior to discussion of economic issues Further although the judge made a finding that the General Counsel abandoned an 8(a)(5) and ( 1) allegation that the Respondent bargained directly with employees by offering increased ben efits she erroneously entered an 8(a)(5) finding in her conclusions of law (No exceptions were filed to the judge s abandonment findings ) Finally we disavow the judges ambiguous dictum to the effect that once a matter is raised in negotiations the employer may institute the change 8 We have modified the judge s recommended Order and notice to pro vide the affirmative requirement that the Respondent remove from its records any references to the unlawful discharges and other discriminato ry conduct Sterling Sugars 261 NLRB 472 (1982) 291 NLRB No 119 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the judge did not err in declining to draw an ad verse inference from the Union s failure to produce the notes i e an inference that the notes would have contradicted the testimony of union witnesses concerning what transpired at the November 5 meeting Accordingly we find no ment to the Re spondent s contentions as to the documents cov ered by the subpoena duces tecum 2 We agree with the judge that the Respondent violated Section 8(a)(3) and (1) by the October 1979 termination of striking employees Steven Baugh Jose Naranjo, Henberto Valenzuela Joe Solis Ruben Gutierrez and Eduardo Ortiz As found by the judge, concerning each of these indi viduals the Respondent informed either the dis chargee himself or his union representative that his employment was effectively terminated Regarding Baugh and Naranjo the credited evidence reveals that on October 17 1979 General Manager Tom Simovich informed these individuals at a picket line that they were fired that they don t work here anymore and directed them to go home and threatened their arrest We agree with the judge that Simovich s comments would reasonably lead an employee to believe that he had been dis charged Trident Recycling Co 282 NLRB 1255 (1987) We note that Simovich s remarks were en tirely unequivocal in character were phrased as an immediate discharge, were accompanied by a di rection to leave the employment site with a con current threat of arrest and were uttered by a high management official so as to lend credence to the finality of the action taken Concerning Valenzuela Solis Gutierrez and Ortiz the credited evidence establishes that in late October 1979 the Respondents negotiator and labor consultant Edmund J Hoy presented a list of these employees to the Unions business repre sentative Ralph Gazzigli The list also included the name of employee Steven Baugh Hoy informed Gazzigli that these five individuals would never be rehired or reinstated under any conditions [or] circumstances by the Respondent because they were suspected to be involved in strike violence Several days later Hoy attempted to present the list to Gazzigh at a negotiation session in the pres ence of several employee members of the Union s negotiating committee including Steven Baugh On this occasion Hoy indicated at the outset that con tract issues were now secondary to the property damage and vandalism that the Respondent was ex penencing during the strike and that it did not want to continue negotiations in an atmosphere of violence Hoy then announced that he had a list of individuals that the Respondent would not take back under any conditions Hoy indicated un equivocally that regardless if we come to a con tract, to an agreement or whatever the strike ends we will not take these individuals back At the urging of Gazzigli and the intervention of a Federal mediator the list was not formally present ed on this occasion although the mediator in formed Gazzigli that the Respondent was ada mant about the matter Employee Baugh testified that he saw the names on the list at this meeting In agreement with the judge we find that the Respondent effectively terminated the employment of the individuals on this list Hoy s charactenza tion of the employment tenure of the employees on the list was clear and unambiguous they would never resume their employment under any con ditions We reject the notion that Hoy s remarks were simply a bargaining posture that would not necessarily lead employees on the list, or their union representative to believe that the employees actually had been terminated We note that Hoy expressly stated that regardless of the cessation of the strike or any contract agreement that might be reached, these individuals would not resume their employment thereby removing the employment status of these individuals as a negotiable matter and effectively implementing their discharges 4 4 We find merit in the General Counsels limited exception with re spect to the commencement date of employee Henberto Valenzuela s backpay As pointed out by the General Counsel the judge found that the Respondent on October 25 1979 violated Sec 8(a)(3) and (1) of the Act by discharging Valenzuela and four other employees However unlike the backpay date set for the other employees discriminated against on October 25 1979 the judge found that Valenzuela s backpay was to commence on April 17 1980 In light of this unexplained inconsistency and the record as a whole we are convinced that the judge inadvertently excluded Valenzuela from the group of employees whose backpay was to commence on October 25 1979 We have accordingly modified the Order so that Valenzuela s backpay commences as of October 25 1979 In adopting the judge s finding that the strike was converted to an unfair labor practice stoke on November 5 1979 when unit employees met to discuss the strike we note that the October 1979 termination of employees Baugh and Naranjo by Tom Simovich was presented to the membership for consideration as well as the list of employees tendered by Hoy to Gazzigli Respondent argues that its written request that all employees return to work by November 2 1979 somehow negates the effect of its discharge of Baugh and Naranjo We find that the form letter sent to employees is insufficient to cure the discharges specifically communicated to employ ees Baugh and Naranjo The fact that the Respondent sent a form letter does not alter the finding that the message communicated to Baugh and Naranjo by Tom Simovich was that they were no longer employed Ac cordingly we find that the termination of each of these six employees served to convert the strike to an unfair labor practice strike Member Cracraft would not find that the Respondents actions during strike settlement discussions and contract negotiations of twice tendering a list of employees whom the Respondent desired to have disqualified from reinstatement violated Sec 8(a)(3) and ( 1) However she agrees with her colleagues finding that the economic strike was converted to an unfair labor practice strike on November 5 1979 when employees voted to continue the strike based in part on the unlawful discharge of employ ees Baugh and Naranjo In determining the backpay commencement date for certain unfair labor practice sinkers included in the Union s unconditional offer to return to work dated April 17 1980 the judge incorrectly determined Continued CHAMP CORP 3 The complaint alleged that about June 10 1980 the Respondent discharged a group of 10 em ployees in violation of Section 8(a)(3) and (1) and that since that date the Respondent has failed and refused to reinstate these employees 5 At the hear ing the General Counsel expressly conceded that these employees were economic strikers who had been replaced by the Respondent before the strike was converted to an unfair labor practice strike on November 5 1979 Thus according to the General Counsels representation at the hearing these em ployees were replaced by economic strikers until their termination on June 10 1980 when the Re spondent remitted accrued vacation and profit sharing benefits to eligible employees in this cate gory At that point according to the General Counsel these employees occupied the status of discharged economic strikers i e as of June 10 1980 Notwithstanding the failure of the General Counsel to contest the status of this group of em ployees as replaced economic strikers prior to their discharges the judge found that these employees had not been permanently replaced prior to the conversion of the strike to an unfair labor practice strike and were entitled to reinstatement and back pay as of April 17 1980 the date of the uncondi tional offer to return to work In view of the scope of the complaint and the representations of the General Counsel we find that the judge erred in placing the burden on the Respondent concerning this category of employees to establish a basis for treating these employees as replaced economic strikers Rather we find in agreement with the judge s alternative analysis of this issue that re garding this group the unfair labor practice oc curred as alleged in the complaint on June 10 1980 6 when this group of employees was effective ly terminated for discriminatory reasons without any economic justification In the absence of a complaint allegation that the Respondent unlawful ly failed to reinstate these employees in April 1980 on the cessation of the strike and in light of the theory of the complaint as explained by the Gener al Counsel at the hearing we find that the Re spondent was not put on notice that any reinstate ment issues based on events prior to the June 10 A the date to be April 17 1980 rather than April 21 1980 the effective date of the unconditional offer as stated in the offer itself Therefore we have modified the backpay commencement dates for the employees whose dates were listed as April 17 1980 in the recommended Order to be April 21 1980 S This group is comprised of Antonio Andrade Javier Arroyo Alejan dro Arroyo David Coronado Rick Craft Enrique Figueroa Lorenzo Franco Micky Lambright Francisco Zamora and Martimano Rodn guez 8 Francisco Zamora a member of this group was discharged on March 7 1980 805 1980 terminations were to be litigated as to this group Accordingly we will leave to the compli ance stage consideration of the reinstatement and backpay rights of these employees in light of their unlawful termination in June 1980 4 The complaint also alleged that about May 30 1980 the Respondent limited the reinstatement rights of a group of four laid off employees to the duration of their employment tenure with the Re spondent in violation of Section 8(a)(3) and (1) 7 At the hearing the General Counsel expressly indi cated that the layoff status of these employees was not unlawful and not at issue and that the com plaint allegation was directed to the Respondent s limitation of reinstatement rights following their layoff In remedying this violation however the judge found that the Respondent was required to offer immediate reinstatement and backpay to these employees as of April 1980 when an unconditional offer to return to work was tendered and that backpay continued to accrue notwithstanding the layoff status of these employees Thus the judge found that the Respondent had failed entirely to es tablish an economic defense to support its actions toward this group By ordering immediate rein statement and backpay the judge essentially found that the layoff of these employees was impermissi ble This finding is in direct contrast to both the representations of the General Counsel at the hear ing and to the limited scope of the complaint which is directed solely to the placement of imper missible conditions on the employees reinstatement rights In these circumstances we find that the Re spondent was not put on notice that the lawfulness of the layoff status of these employees was to be litigated Although we agree with the judge that the Respondent violated Section 8(a)(3) and (1) by placing impermissible restrictions on the reinstate ment rights of these employees we find that the appropriate remedy is to order the Respondent to cease and desist from the placement of such restric tions We will leave to the compliance stage of these proceedings resolution of any issues concern mg whether the unfair labor practice-the limita tion of reinstatement rights-had a bearing on the actual reinstatement of these employees and if so whether there was any resulting loss of pay after May 30 1980 8 5 The judge found that the Respondent violated Section 8(a)(3) and (1) by failing to reinstate 11 7 The employees in this group are Gonzalo Andrade Manuel Goray Javier Lopez and Jose Reyes 8 We note that these four laid-off employees are additionally entitled to be made whole for the period April 21 to May 30 1980 when they were unreinstated unfair labor practice strikers who had unconditionally of fered to return to work 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD striking employees who allegedly engaged in strike misconduct The Respondent expressly challenges the judge s findings on the misconduct issues with respect to strikers Jose Villavicencio Carlos Al maroz Joe Solis and Ramon Rodriguez It is less clear whether it is raising such a challenge about the other seven because it presents no arguments in its brief with respect to the lawfulness of its de cision to deny them reinstatement on misconduct grounds 9 In any event for the following reasons we agree with the judge that the Respondent un lawfully failed to reinstate those 11 employees In order to establish a lawful basis for denying reinstatement to an employee for engaging in strike misconduct an employer must initially show that it entertained a good faith belief that the striker actu ally engaged in misconduct serious enough to war rant denying reinstatement If such a showing is made the burden then shifts to the General Coun sel to demonstrate that the alleged misconduct did not in fact occur If the employer fails to make the initial showing or if the General Counsel carries her burden of showing that the alleged misconduct did not in fact occur the General Counsel prevails If the employer makes the initial showing and the General Counsel does not carry her burden of showing no actual misconduct then the employer prevails and the denial of reinstatement will be found lawful General Telephone Co 251 NLRB 737 739 (1980) enfd mem 673 F 2d 551 (D C Cir 1982) See generally NLRB v Burnup & Sims 379 US 21 23 (1964) Even in cases in which a striker has actually en gaged in misconduct and the employer denies rein statement on the grounds of that misconduct an employer may still violate Section 8(a)(3) and (1) of the Act if that denial represents disparate treat ment of strikers as compared with nonstrikers or replacements i e if it is denying reinstatement to strikers for conduct that is substantially the same as conduct that it has tolerated on the part of employ ees who have refrained from striking Garrett Rail road Car v NLRB 683 F 2d 731 740 (3d Cir 9 These other seven employees are Alberto Cortez Ernesto Arroyo Cesar Moran Javier Oiague Jose Padilla Martiniano Rodriguez and Heriberto Valenzuela We find merit in the Respondents contention that backpay otherwise owing to employee Alberto Cortez was tolled by the Respondents valid attempt to communicate to Cortez an offer to return to work by telegram of November 12 1980 sent to Cortez last known address Bodolay Pack aging Machinery 271 NLRB 10 11 (1984) The tolling of backpay how ever does not relieve the Respondent of its reinstatement obligation toward Cortez Burnup & Sims 256 NLRB 965 966 (1981) We find no merit in the Respondents contention that any backpay owing to Cesar Moran ended when by letter of September 26 1980 Moran purportedly was offered reinstatement The record shows that on that date the Respondent notified Moran an unfair labor practice striker that he had been laid off and would be reinstated only when a job open ing occurred Because the letter did not constitute a proper offer of present reinstatement we find it insuffic ent to toll backpay 1982) (applying the principle but upholding the re fusal to reinstate because employer lacked knowl edge of nonstriker involvement in misconduct) Aztec Bus 289 NLRB 1021 (1988) Like the judge we apply the foregoing tests only to those grounds for denying reinstatement that the Respondent actually purported to rely on when it denied reinstatement to strikers after their uncondi tional offers to return Following the tender of those offers the Respondent through Manager Ed Simovich met individually on May 30 1980 with each employee accused of strike misconduct At this time the Respondent informed those employ ees that they were ineligible for reinstatement until certain pending criminal charges were resolved Based on repeated statements and correspondence to employees to this effect and on the failure ever to inform these employees that other matters were a basis for denial of reinstatement 10 the judge found and we agree that the only asserted basis for the denial of reinstatement was conduct that was the subject of those pending charges i i First concerning employees Villavicencio Al maroz Solis and Ramon Rodriguez the judge credited their testimony that they did not engage in the acts of misconduct that were the subject of criminal charges pending when the Respondent denied them reinstatement We find no basis to dis turb those findings 12 With respect to those four and the other seven- whose arrests were related to an alleged blocking of a thoroughfare-we uphold the judge s ultimate findings on the additional ground that these denials of reinstatement constituted disparate treatment when compared with the Respondents actions to wards nonstrikers and replacements Thus for ex ample the Respondent was aware that nonstriking o The judge expressly discredited Ed Simovich s assertions that the Respondent took into consideration other matters allegedly occurring during the strike that were not the subject of criminal charges and that he intended to investigate such complaints further i' Further we agree with the judge that the Respondent did not rely on any asserted misconduct occurring prior to October 30 1979 because on that date it offered to all striking employees including the employees alleged to have engaged in misconduct the opportunity to return to work 2 The judge credited Villavicencio s denial of accusations that he threw rocks or stones or engaged in other misconduct The judge also credited Almaroz denial that he threw rocks at vehicles or engaged in other misconduct Regarding Ramon Rodriguez the judge credited Ro- driguez denial that he kicked the side of a car or purposely beat on cars or threatened another individual Concerning Joe Solis the judge found that Solis did not make racial slurs or threaten another employee and noted that a criminal charge involving an alleged threat to blow up a ve hicle which Solis denied was dismissed The judge also found that the Respondent did not rely on Solis alleged threat to kill Tom Simovich in denying reinstatement as this was not the subject of a criminal charge and it preceded the October 30 1979 reinstatement offer to employees Moreover with regard to this alleged threat to Simovich as noted infra the Respondent expressed no concern when striking employees were threatened similarly by nonstriking employees CHAMP CORP 807 employee Freddie Vallejos had physically assaulted striker Ramon Rodriguez It was also aware that Vallejos had been arrested in connection with an other strike related incident in which he was ac cused of swinging an ax (Vallejos pleaded guilty to a lesser offense in connection with the latter in cident) The Respondent took no disciplinary action at all against Vallejos Further after the conclusion of the strike the Respondent failed to make any significant investi gation into repeated incidents of threats and vio lence against former strikers Padilla Valenzuela Elpidio Cortez Elizarraras, Vargas and Salvador Garcia that were brought to its attention Padilla filed a police report following an incident when he was punched in the stomach by nonstriker N Lopez who then threatened to kill Padilla Padilla was also assaulted by nonstnker Nieblas during this incident When the incident was brought to the at tention of management Manager Ed Simovich merely shrugged and informed Padilla he could not do anything Similarly, Ed Simovich took no action when informed by former striker Valenzuela that nonstriker Corona had threatened to kill him and did nothing following another incident when Valenzuela was surrounded and physically men aced by employees Notwithstanding its knowledge of these acts of misconduct directed against strikers by nonstrikers the Respondent took no action against the perpe trators In contrast the Respondent failed to rein state strikers accused of comparable or lesser mis conduct in a timely manner This discriminatory and disparate treatment establishes that the Re spondent lacked good faith and acted discrimina torily in denying reinstatement to the 11 employees at issue because of alleged strike misconduct Ac cordingly we adopt the judge s finding that the Respondent violated Section 8(a)(3) and (1) by fail ing to offer timely reinstatement to the 11 employ ees in this category 13 13 The judges decision issued prior to the Boards decision in Clear Pine Moldings 268 NLRB 1044 (1984) In that case the Board adopted the objective standard for assessing alleged strike misconduct of whether the misconduct is such that under the circumstances existing it may rea sonably tend to coerce or intimidate employees in the exercise of rights protected under the Act Further in Gem Urethane Corp 284 NLRB 1349 (1987) the Board reiterated the principle that if an employer estab lishes a honest belief that an employee seeking reinstatement has engaged in misconduct the General Counsel must come forward with evidence that either the employee did not engage in the alleged misconduct or that the conduct was not sufficiently serious to preclude reinstatement Thus [alt all times the burden of proving discrimination is that of the General Counsel Id at 1352 Here the Respondents denial of reinstatement based on alleged strike misconduct was not undertaken in good faith and on a nondiscriminatory basis Further as noted the evidence pursuant to the judge s credibility resolutions shows that some of the employees at issue did not engage in the disqualifying misconduct that purportedly formed the basis for the Respondents denial of reinstatement In this regard we find it unnecessary to consider and do not adopt the judge s arguendo discussion about employee Ramon Rodriguez and do not CONCLUSIONS OF LAW I The Respondent is an employer` engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Unions International Union United Automobile Aerospace and Agricultural Imple ment Workers of America-UAW (International Union or Union) and International Union United Automobile Aerospace and Agricultural Imple ment Workers of America-UAW Local 509 (Local Union) are labor organizations within the meaning of Section 2(5) of the Act 3 The following unit is appropriate for the pur poses of collective bargaining within the meaning of Section 9(a) of the Act ti l All production and maintenance employees in cluding shipping and receiving employees lead persons service employees inspectors and truck drivers employed by Respondent at its facilities located at 2439 North Rosemead Bou levard 2500 North Rosemead Boulevard and 2423 Troy Street South El Monte California r excluding all office clerical employees, profes sional employees guards, and supervisors as defined in the Act 4 At all times since December 14 1978 the Union has been the exclusive collective bargaining representative of the employees in the above de scribed unit within the meaning of Section 9(a) of the Act 5 The work stoppage which began on October 15, was prolonged by the Respondents unfair labor practices as of November 5 1980 6 By threatening to have striking employees fired and/or arrested while they were peacefully picketing the Respondent interfered with re strained and coerced employees in the exercise of their Section 7 rights and engaged in unfair labor practices in violation of Section 8(a)(1) of the Act 7 By offering on November 2 1979 Manuel Avalos and Ernesto Franco increased benefits if they abandoned the strike and returned to work in order to induce employees to withdraw their sup port for the Union and the strike the Respondent has interfered with its employees Section 7 rights and has violated Section 8(a)(1) of the Act 8 By threatening employees on the picket line with vehicular assault, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act i rely on all the cases cited by the judge including Coronet Casuals 207 NLRB 304 (1973) and the Board s decision in W C McQuaide Inc 220 NLRB 593 (1975) enf denied 552 F 2d 519 (1977) 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 9 By discharging Steven Baugh and Jose Nar anjo on October 17 1979 Baugh Joe Solis Eduardo Ortiz Heriberto Valenzuela and Ruben Gutierrez on October 25 1979 and Francisco Zamora on March 7 1980 because of their mem bership in or activities on behalf of the Union the Respondent violated Section 8(a)(3) and (1) of the Act 10 By unilaterally granting to its employees the benefit of additional paid holidays without notify mg or consulting with the Union in good faith the Respondent violated Section 8(a)(5) and (1) of the Act 11 By withdrawing recognition from the Union and thereafter failing and refusing to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the aforesaid unit until a decertification petition has been proc essed the Respondent has violated Section 8(a)(5) and (1) of the Act 12 By refusing to bargain collectively with the Union by refusing to furnish or unduly delaying the furnishing of certain information which is rele vant to the Union s performance of its represents tion responsibilities on behalf of unit employees the Respondent has violated Section 8(a)(5) and (1) of the Act 13 By failing and refusing since April 21 1980 to make timely offers of reinstatement to the fol lowing unfair labor practice strikers Steven J Baugh Jose G Naranjo John Gresko Henry Car rilo Filiberto Ruiz Tomas Vargas Manuel Cruz Nicholas Diaz Ernesto Franco Pedro Pena Salva dor Hernandez Erasmo Salazar Rene Gallardo Salvado Garcia Octaviano Arellano Javier Olague Ernesto Cortez Pedro Garcia Jesus Valdez, Salvador Ehzarraras Ernesto Lopez, Wal lace Kerr Alejandro Lopez Jose Pedroza Ray mond Wise Gonzalo Andrade Manuel Garay Javier Lopez and Jose Reyes because they en gaged in protected concerted activities the Re spondent violated Section 8(a)(3) and (1) of the Act 14 By failing and refusing since May 9 1980 to make timely offers of reinstatement to Vincente Inez Gonzales Banaga Raul Cortez Marvin Cum mings, Oscar Guerrero, Calvin Hassler, David Hassler Ronald Kerr and Manuel Avalos because they engaged in protected concerted activity, the Respondent violated Section 8(a)(3) and (1) of the Act 15 By limiting the duration of the reinstatement rights of Gonzalo Andrade Manuel Garay Javier Lopez and Jose Reyes to the length of their tenure with Respondent because they engaged in protect ed concerted activities the Respondent violated Section 8(a)(3) and (1) of the Act 16 By discharging about June 10 1980 Antonio Andrade Alejandro Arroyo Javier Arroyo David Coronado Ricky Craft Enrique Figueroa Lor enzo Franco Mickey Lambright Martmiano Ro driguez and Francisco Zamora and failing and re fusing to reinstate these employees because they engaged in protected concerted activities the Re spondent violated Section 8(a)(3) and (1) of the Act 17 By unlawfully requiring Jesus Valdez about August 6 1980 to execute an application and take a physical examination as a new employee as a condition to reinstatement and accept employment as a new employee the Respondent violated Sec tion 8(a)(3) and (1) of the Act 18 By failing to give Elpidio Cortez and Ar mando Escandon a reasonable amount of time to respond to the offer of recall the Respondent vio lated Section 8(a)(3) and (1) of the Act 19 By unlawfully failing and refusing to offer timely reinstatement to Carlos Almaroz Ernesto Arroyo Alberto Cortez Cesar Moran Javier Olague Jose Padilla Ramon Rodriguez Martin iano Rodriguez Joe Solis Heriberto Valenzuela Jose Villavicencio and other strikers named herein and by discharging on October 31 1980 Jose Vil lavicencio Carlos Almaroz and Ramon Rodriguez the Respondent has violated Section 8(a)(3) and (1) of the Act 20 By placing impermissible preconditions for reinstatement on the striking employees including the acceptance of new employee status the Re spondent violated Section 8(a)(3) and (1) of the Act 21 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in certain unfair labor practices we shall order it to cease and desist and take certain affirmative action designed to effectuate the policies of the Act In view of long duration of the strike, commenc mg on October 15 1979 and ending April 7 1980 the extremely long period since the end of the strike and the numerous unfair labor practices of Champ Corporation that prolonged the strike cer tam special remedies are necessary to restore inso far as practicable the status quo ante In all proba bility many of the strikers have since taken em ployment with other employers and many out of necessity moved to other locations They should be CHAMP CORP accorded full and equitable opportunity to consider present offers of reinstatement free of any fears of the recurrence of the unfair labor practices against them The Respondent therefore shall in addition to the usual posting prepare a Spanish translation of the official English language notice since the record reveals that a substantial number of the Re spondent s employees speak Spanish both English and Spanish versions shall be simultaneously posted an all plant bulletin boards 14 and copies of both versions mailed to each employee currently em ployed and to each employee named in Schedules I through V appended hereto All diligent efforts shall be employed by the Respondent to assure that such communication reaches the addressees includ ing the acceptance of assistance by the Union if of fered The Respondent shall provide the Regional Director for Region 21 with proof of such mailing Having found that the Respondent has engaged in certain unfair labor practices in violation of Sec tion 8(a)(5) and (1) of the Act it is ordered that the Respondent be required to provide the Internation al Union in writing with (1) A description of the job duties performed by all unit employees for the preceding 12 months and (2) the dates of layoff of all unit employees who had been laid off during the preceding 12 months In addition the Respond ent shall meet and participate in negotiation ses sions and cease refusing to do so based on the de certification petition found herein not to raise a valid question of the representative status of the International Union It is also ordered that the Re spondent ceases unilaterally changing the existing terms and conditions of employment by paying nonstriking employees for days its facilities are shut down without prior notification and bargaining with the International Union We shall also order reinstatement of the unfair labor practice strikers with the exceptions noted above and in the order and appended schedules on their unconditional offer to return to work and the dismissal of persons hired on or after Novem ber 5 1979 if that becomes necessary NLRB v W C McQuaide Inc 552 F 2d 519 520-529 (3d Cir 1977) Newport News Shipbuilding Co 236 NLRB 1637 (1978) enfd 602 F 2d 73 (4th Cir 1979) Reinstatement shall mean reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without preju dice to seniority and other rights and privileges previously enjoyed Backpay shall be computed for those employees found eligible for reinstatement by calculating for each of them a sum equal to their 14 Hasa Chemical 235 NLRB 903 (1978) 809 individual wages as of the date of their uncondi tional offer to return to work up to the date of the Respondent s offer of reinstatement less any net earnings during such period with interest thereon to be computed in the manner prescribed in New Horizons for the Retarded 115 It is also ordered that those employees found to have been discriminatorily discharged while en gaged in a lawful strike will be entitled to backpay from the date of discharge until the date offered re instatement Abilities & Goodwill Inc 241 NLRB 27 (1979) The Respondent will also be required to comply with the Order and to post appropriate notices ORDER The National Labor Relations Board orders that the Respondent Champ Corporation South El Monte California its officers agents successors and assigns shall 1 Cease and desist from (a) Threatening employees with replacement ter mination discharge or other reprisal for engaging in a protected strike or other concerted activities or coercing or soliciting employees to abandon such activities (b) Threatening to have striking employees ar rested (c) Threatening employees on the picket line with vehicular assault (d) Promising employees increased benefits if they abandon the strike and the Union and return to work (e) Discharging striking employees refusing to reinstate or offering to grant reemployment only as new employees because they have engaged in a protected strike or other concerted activities for their mutual aid or protection (f) Unilaterally implementing contract proposals affecting changes in wages and other terms and conditions of employment of employees represent ed by the Union (g) Withholding recognition from the Interna tional Union and thereafter failing and refusing to recognize the International Union as the exclusive collective bargaining representative of the employ ees in the described unit (h) Failing to give or unnecessarily delaying in giving the Union on request information relevant for the Union s representational duties as the exclu 15 283 NLRB 1173 (1987) Interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 US C § 6621 ) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sive bargaining representative of the employees in the described unit (i) Unduly delaying or discriminatorily failing and refusing to reinstate striking employees because they engaged in protected concerted activity (1) Limiting the duration of the reinstatement rights of employees because they engaged in pro tected concerted activities (k) In any other manner discouraging member ship in the Union or any other labor organization by discrimination with regard to hire or tenure of employment or any term or condition of employ ment (1) Refusing to bargain collectively with the International Union by unilaterally granting em ployees additional paid days off without notifying or consulting with the Union in good faith (m) Withdrawing recognition from the Interna tional Union and thereafter failing and refusing to bargain with the Union as the exclusive bargaining representative of the employees in the appropriate unit until a decertification petition had been proc essed (n) In any other manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Offer each of the unfair labor practice strikers that Respondent classified as permanently replaced who later were terminated as listed in the attached Schedule I immediate reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs and make whole such employees for any loss of earnings in the manner set forth in the remedy section of this decision (b) Offer Ronald Kerr and Marvin Cummings immediate reinstatement to their former jobs or if such jobs no longer exist to substantially equiva lent jobs and make whole all employees who did not personally appear on April 21 1980 for any loss of earnings, as detailed in the attached Sched ule II except where noted therein as having no such entitlement in the manner set forth in the remedy section of this decision (c) Offer each of the unfair labor practice stnk ers classified by Respondent as being on layoff, as listed in the attached Schedule III immediate rein statement to their former jobs or, if such jobs no longer exist to substantially equivalent jobs and make whole such employees for any loss of earn ings in the manner set forth in the remedy section of this decision in the event that it is determined at compliance that they were not reinstated because of the Respondents impermissible limitation of their recall rights (d) Make whole each of the unfair labor practice strikers as listed individually in the attached Schedule IV for any loss of earnings occasioned by Respondents failure to reinstate these employ ees in a timely fashion in the manner set forth in the remedy section of this decision (e) Offer Jose Villavicencio Carlos Almaroz Al berto Cortez Cesar Moran and Ramon Rodriguez immediate reinstatement to their former jobs or if such jobs no longer exist to substantially equiva lent jobs and make whole such employees as appear on the attached Schedule IV for any loss of earnings in the manner set forth in the remedy sec Lion of this decision (f) Offer employees found eligible for reinstate ment recall in a manner that affords them a reason able amount of time to respond (g) Furnish the Union a description of the job duties performed by all unit employees for the pre ceding 12 month period and the date of the layoff of all unit employees that have been laid off during the preceding 12 month period (h) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis charges will not be used against them in any way (i) Preserve and on request make available to the Board or its agents for examination and copy ing all payroll records social security payment records timecards personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (1) Post at its plant in South El Monte Califor nia copies of the attached notice marked Appen dix, 16 and simultaneously post a notice containing a Spanish language version of the original notice Copies of the notice on forms provided by the Re gional Director for Region 21 after being signed by the Respondents authorized representative 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 material (k) Mail a copy of the above described notices to each currently working employee and to each unfair labor practice striker listed in Schedules I ra 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 at 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 CHAMP CORP through V in the manner set forth in the remedy section of this decision (1) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply IT IS FURTHER ORDERED that the amended com plaint is dismissed insofar as it alleges unfair labor practices not specifically found 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 ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities i WE WILL NOT threaten you with replacement termination, discharge or other reprisal for engag ing in a protected strike or other concerted activi ties or coerce or solicit you to abandon such ac tivities , WE WILL NOT threaten to have striking employ ees arrested WE WILL NOT threaten you on the picket line with vehicular assault WE WILL NOT promise you increased benefits if you abandon the strike and the Union and return to work WE WILL NOT discharge you refuse to reinstate or offer to grant you reemployment only as a new employee because you have engaged in a protected strike or other concerted activities for your mutual aid or protection WE WILL NOT unilaterally implement contract proposals affecting changes in wages and other terms and conditions of employment of employees represented by the Union WE WILL NOT withhold recognition from the International Union United Automobile Aero space and Agricultural Implement Workers of America-UAW and International Union United Automobile Aerospace and Agricultural Imple ment Workers of America-UAW Local 509 and thereafter fail and refuse to recognize the Interna 811 tional Union as the exclusive collective bargaining representative of the employees in the described unit WE WILL NOT fail to give or unnecessarily delay in giving the Union on request information rele vant for the Union s representational duties as the exclusive bargaining representative of the employ ees in the described unit WE WILL NOT unduly delay or discriminatorily fail and refuse to reinstate you because you en gaged in protected concerted activity WE WILL NOT limit the duration of your rein statement rights because you engaged in protected concerted activities WE WILL NOT in any other manner discourage membership in the Union or any other labor orga nization by discrimination with regard to hire or tenure of employment or any term or condition of employment WE WILL NOT refuse to bargain collectively with the International Union by unilaterally granting employees additional paid days off without notify ing or consulting with the Union in good faith WE WILL NOT withdraw recognition from the International Union and thereafter fail and refuse to bargain with the Union as the exclusive bargaining representative of the employees in the appropriate unit until a decertification petition has been proc essed WE WILL NOT in any other manner interfere with restrain, or coerce you in the exercise of the rights guaranteed by Section 7 of the Act WE WILL offer each of you that we classified as permanently replaced who later were terminated as listed in the attached Schedule I immediate rein statement to your former jobs or if such jobs no longer exist to substantially equivalent jobs and make you whole for any loss of earnings plus in terest WE WILL offer Ronald Kerr and Marvin Cum mings immediate reinstatement to their former jobs or if such jobs no longer exist to substantially equivalent jobs and make whole all employees who did not personally appear on April 21 1980 for any loss of earnings as detailed in the attached Schedule II except where noted therein as having no such entitlement plus interest WE WILL offer each of you classified by us as being on layoff as listed in the attached Schedule III immediate reinstatement to your former jobs or if such jobs no longer exist to substantially equivalent jobs and make you whole for any loss of earnings plus interest in the event that it is de termined at compliance that you were not reinstat ed because of our impermissible limitation of your recall rights ' 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL make whole each of you as listed indi vidually in the attached Schedule IV for any loss of earnings occasioned by our failure to reinstate you in a timely fashion plus interest WE WILL offer Jose Villavicencio Carlos Al maroz Alberto Cortez Cesar Moran and Ramon Rodriguez immediate reinstatement to their former jobs or if such jobs no longer exist to substantially equivalent jobs and make them whole as appear on the attached Schedule IV for any loss of earn ings plus interest WE WILL notify each of them that we have re moved from our files any reference to their dis charge and that the discharge will not be used against them in any way WE WILL on request recognize and bargain with the International Union as the exclusive col lective bargaining representative of our employees in the following described appropriate unit with re spect to wages rates of pay hours of employment and other terms and conditions of employment and if an understanding is reached embody such under standing in a signed written agreement The appro priate unit includes All production and maintenance employees in cluding shipping and receiving employees lead persons service employees inspectors and truck drivers employed by Respondent at its facilities located at 2439 North Rosemead Bou levard 2500 North Rosemead Boulevard and 2423 Troy Street South El Monte California excluding all office clerical employees profes sional employees guards and supervisors as defined in the Act WE WILL offer those of you found eligible for reinstatement recall in a manner that affords you a reasonable amount of time to respond WE WILL furnish the Union a description of the job duties performed by all unit employees for the preceding 12 month period and the date of layoff of all unit employees that had been laid off during the preceding 12 month period SCHEDULE I Employees Permanently Replaced Who Were Terminated and Backpay Periods if any Antonio Andrade-June 10 1980 to present as further determined at compliance Alejandro Arroyo-June 10, 1980, to present as further determined at compliance Javier Arroyo-June 10 1980 to present as further determined at compliance David Coronado-June 10 1980 to present as further determined at compliance Ricky Craft-June 10 1980 to present as further determined at compliance Enrique Figueroa-June 10 1980 to present as further determined at compliance Lorenzo Franco-June 10 1980 to present as further determined at compliance Mickey Lambright-June 10 1980 to present as further determined at compliance Martiniano Rodriguez-June 10 1980 to present as further determined at compliance Francisco Zamora-March 7 1980 to present as further determined at compliance SCHEDULE II Employees Who Did Not Personally Appear on April 21 and Backpay Periods if any Vincente Inez Banaga-May 9 to July 18 1980 Raul Cortez-May 9 to July 10 1980 Oscar Guerrero-May 9 to July 10 1980 Calvin Hassler-May 9 to July 10 1980 David Hassler-May 9 to July 10 1980 Dexter Kerr-No entitlement to reinstate ment or backpay Ronald Kerr-May 9 to present entitled to reinstatement Randolph Montoya-No entitlement to rein statement or backpay Manuel Avalos-May 9 to July 11 1980 Marvin Cummings-May 9 to present enti tled to reinstatement SCHEDULE III Employees on Layoff and Backpay periods if any Gonzalo Andrade-April 21-May 30 1980 any additional entitlement to backpay is to be determined at compliance Manuel Garay-April 21-May 30 1980 any additional entitlement to backpay is to be de termined at compliance Javier Lopez-April 21-May 30 1980 any additional entitlement to backpay is to be de termined at compliance Jose Reyes-April 21-May 30 1980 any ad ditional entitlement to backpay is to be deter mined at compliance SCHEDULE IV Employees Whose Reinstatement was Delayed and Backpay periods if any John Gresko-April 21 to May 9 1980 Henry Carrillo-April 21 to May 9 1980 Filiberto Ruiz-April 21 to May 9, 1980 CHAMP CORP 813 Tomas Vargas-Apnl 21 to May 15 1980 Jose Naranjo-October 17 1979 to May 5 1980 Steven Baugh-October 17 1979, to May 16 1980 Manuel Cruz-Apnl 21 to May 19, 1980 Nicholas Diaz-Apnl 21 to May 19, 1980 Armando Escandon-April 21 to July 31 1980 Elpidio Cortez-Apnl 21 to June 17 1980 Ernesto Franco-April 21 to May 21 1980 Pedro Pena-Apnl 21 to May 22 1980 Salvador Fernandez-April 21 to May 22, 1980 Erasmo Salazar-April 21 to May 22 1980 Rene Gallardo-Apnl 21 to May 23 1980 Salvador Garcia-April 21 to May 23 1980 Octaviano Arellano-April 21 to May 23 1980 Ernesto Cortez-Apnl 21 to May 27 1980 Salvador Elizarraras-Apnl 21 to May 27 1980 Ernesto Lopez-April 21 to May 27 1980 Wallace Kerr-Apnl 21 to May 29, 1980 Pedro Garcia-April 21 to May 29, 1980 Alejandro Lopez-April 21 to May 29 1980 Pedro Lopez-To be determined during backpay proceedings Jose Pednoza-April 21 to May 30 1980 Raymond Wise-April 21 to May 30 1980 Jesus Valdez-April 21 to September 10 1980 SCHEDULE V Employees Charged and Backpay periods if any Ruben Gutierrez-From October 25 1979, to date of disqualifying behavior to be deter mined during the compliance phase of this proceeding ' Eduardo Ortiz-From October 25 1979, to date of disqualifying behavior to be deter mined during the compliance phase of this proceeding Joe Solis-October 25 1979 to present Jose Villavicencio-April 21 to present Carlos Almaroz-April 21 to present Alberto Cortez-April 21 to November 12, 1980 Ernesto Arroyo-Apnl 21 to January 31, 1981 Cesar Moran-April 21 to present Javier Olague-April 21 to October 30, 1980 Jose Padilla-Apnl 21 to September 29, 1980 Ramon Rodriguez-April 21 to present Martiniano Rodriguez-See Schedule I Henberto Valenzuela-October 25 1979 to October 9 1980 CHAMP CORPORATION Joel B Martinez Esq for the General Counsel Thomas S Kerrigan Esq (McLaughlin & Irvin) of Los Angeles California for the Respondent Henry R Fenton Esq (Levy & Goldman) of Los Ange les California for the Charging Party DECISION STATEMENT OF THE CASE JOAN WIEDER Administrative Law Judge This case was tried in Los Angeles California on December 1-3 1980 ' January 26-30 1981 February 2-6 and 25-27 1981 March 30 and 31 1981 and April 1 and 2 1981 A second consolidated amended complaint was issued on September 29 1980 2 based on charges3 filed by Interna tional Union United Automobile Aerospace and Agri cultural Implement Workers of America-UAW (the International or International Union) International Union United Automobile Aerospace and Agricultural Implement Workers of America-UAW Local 509 (the Local) and with the International collectively referred to as the Union The complaint alleged that Champ Cor poration (the Company or Respondent) violated Section 8(a)(1) (3) and (5) of the National Labor Relations Act The complaint alleges that subsequent to the com mencement of an economic strike by certain employees of Respondent on or about October 15 1979 the Com pany engaged in the following unfair labor practices 1 On or about October 24 25 and 26 November 23 and December 24 1979 Respondent without prior noti fication to or bargaining with the International Union changed the existing terms and conditions of employ ment of the employees in the described unit4 above by i Unless otherwise indicated all dates refer to 1980 2 The complaint was further amended at the trial 2 The original charges in Case 21-CA-18696 were filed on February 15 The first amended charge was filed on March 6 The original charge in Case 21 -CA-19007 was filed on May 2 which was amended on July 25 The sole charge in Case 21 -CA-19423 was filed on August 15 The original charge in Case 21-CA-19424 was filed on August 15 and the amended charge was filed on September 11 4 The unit was described in the complaint as follows All production and maintenance employees including shipping and receiving employees lead persons service employees inspectors and truck drivers employed by Respondent at its facilities located at 2439 North Rosemead Boulevard 2500 North Rosemead Boulevard and 2423 Troy Street South El Monte California excluding all office clerical employees professional employees guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act Respondent admitted in its answer to the second amended complaint that this description is accurate Respondent also admitted as alleged in the complaint that Continued 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shutting down its facilities and paying its nonstriking em ployees for the days that its facilities were shut down in violation of Section 8(a)(5) and (1) of the Act 2 On or about November 2 1979 Respondent through T Simovich at a picket line established in front of Respondents facility located at 2423 Troy Street South El Monte California bargained directly with em ployees in the unit described above in violation of Sec tion 8(a)(5) and (1) of the Act 3 On or about March 4 1980 Respondent through Hoy notified the International Union that it would not meet and participate in further negotiation sessions until such time as the Board completed processing a represen tation petition filed by Respondent in Case 21-RM- 2013 even though the petition did not raise a valid ques tion concerning representation at the time of filing and the Respondent had engaged in the unlawful acts and conduct described in paragraphs 1 and 2 above in viola tion of Section 8(a)(5) and (1) of the Act 4 Since on or about June 6 1980 the International Union by letter has requested Respondent to furnish the International Union iwith the following information a A description of the job duties performed by all unit employees for the preceding 12 month period b The dates of layoff of all unit employees that had been laid off during the preceding 12 months The information requested by the International Union described in paragraphs 4(a) and (b) above is necessary for and relevant to the International Union s perform ance of its function as the exclusive collective bargaining representative of the employees in the described unit Since on or about June 9 1980 Respondent has failed and refused to furnish the International Union the infor mation requested by it as described in paragraph 4(a) above and from on or about June 9 1980 to on or about September 8 1980 Respondent failed and refused to fur nish the International Union with the information re quested by it as described in paragraph 4(b) above in violation of Section 8(a)(5) and (1) of the Act 5 (a) On or about October 17 1979 Respondent dis charged employees Steven J Baugh and Jose G Nar anjo (b) Since on or about October 17 1979 Respondent has failed and refused and continues to fail and refuse to reinstate employees Baugh and Naranjo (c) Respondent discharged and has failed and refused and continues to fail and refuse to reinstate employees Baugh and Naranjo to their former positions of employ On December 14 1978 a majority of the employees of Respondent in the above described unit by a secret ballot election conducted under the supervision of the Regional Director for Region 21 of the National Labor Relations Board designated and selected the Interna tional Union as their representative for the purposes of collective bargaining with Respondent and on December 22 1978 the Region al Director for Region 21 certified the International Union as the ex clusive collective bargaining representative by virtue of Section 9(a) ofithe Act of all the employees of Respondent in said unit Since December 14 1978 the International Union has been the represents rive for the purposes of collective bargaining of a majority of the employees in the above described unit and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay wages hours of employment and other terms and conditions of employment ment because they engaged in union or other protected concerted activities for the purposes of collective bar gaining or other mutual aid or protection and that by these actions Respondent has violated Section 8(a)(1) and (3) of the Act 6 (a) On or about October 25 1979 Respondent dis charged employees Ruben Gutierrez Edward Ortiz Joe Solis and Heriberto Valenzuela (b) Since on or about October 25 1979 Respondent has failed and refused and continues to fail and refuse to reinstate the employees named in paragraph 6(a) above (c) Respondent discharged and has failed and refused and continues to fail and refuse to reinstate the employ ees named in paragraph 6(a) above to their former posi tions of employment because they engaged in union or other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection in violation of Section 8(a)(1) and (3) of the Act 7 The strike was prolonged by the unfair labor prac tices of Respondent described in paragraphs 5 and 6 above which accordingly converted the strike to an unfair labor practice strike (a) On or about March 7 1980 Respondent discharged employee Frank Zamora (b) Since on or about March 7 1980 Respondent has failed and refused and continues to fail and refuse to re instate employee Zamora (c) Respondent discharged and has failed and refused and continues to fail and refuse to reinstate employee Zamora to his former position of employment because he engaged in union or other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection in violation of Section 8(a)(1) and (3) of the Act 9 On or about April 18 1980 the employees who had engaged in the strike described above through the Union made an unconditional offer to return to their former positions of employment Respondent in its reply to the second amended complaint denies that the Union made such an offer ri 10 (a) Since on or about April 24 1980 Respondent has failed and refused and continues to fail and refuse to reinstate the employees listed below to their former po sitions of employment 1 ! Carlos Almaroz Manuel Avalos Vicente Banaga Raul Cortez Marvin Cummings Oscar Guerrero Calvin Hassler David Hassler Jose Padilla Martiniano Rodriguez Heriberto Valenzuela Dexter Kerr Donald 1Kerr Randolph Montoya Ernesto Arroyo Alberto Cortez Cesar Moran Javier Oligue Ramon Rodriguez Joe Solis Jose Villavicencio Jesus Valdez (b) Respondent has failed and refused and continues to fail and refuse to reinstate the employees listed in paragraph 10(a) above to their former positions of em ployment because they engaged-in union or other pro tected concerted activities for the purposes of collective CHAMP CORP 1 815 bargaining or other mutual aid or protection or because they had participated in the strike in violation of Section 8(a)(1) and (3) of the Act 11 (a) From on or about April 24 1980 until on or about the dates set forth opposite the respective names of the employees listed below Respondent failed and re fused to make offers of reinstatement to the employees May 7 1980 John Gresko Henry Carrillo Filiberto Ruiz May 13 1980 Tomas Vargas Jose Naranjo May 14 1980 Steven Baugh May 15 1980 Manuel Cruz Nicholas Diaz May 19 1980 Ernesto Franco May 20 1980 Pedro Pena Salvador Hernandez Erasmo Salazar May 21 1980 Rene Gallardo Salvador Garcia Octaviano Arellano May 23 1980 Ernesto Cortez Salvador Ellizarraras Ernesto Lopez May 27 1980 Wallace Kerr Pedro Garcia Alejandro Lopez May 28 1980 Pedro Lopez Jose Pedroza Raymond Wise (b) Respondent failed and refused to make offers of re instatement to the employees listed in paragraph 11(a) above until on or about the date set forth opposite their names because they engaged in union or other protected concerted activities for the purpose of collective bargain ing or other mutual aid or protection and because they had participated in the strike in violation of Section 8(a)(1) and (3) of the Act 12 (a) On or about May 30 1980 Respondent limited the reinstatement rights of the following employees by limiting the duration of their reinstatement rights to the same length of time as their tenure with Respondent An drade Gonzalo Manuel Garay Javier Lopez and Jose Reyes (b) Respondent limited the reinstatement rights of the employees listed in paragraph 12(a) above in the manner described there because they engaged in union or other protected concerted activities for the purposes of collec tive bargaining or other mutual aid or protection and be cause they had participated in the strike in violation of Section 8(a)(1) and (3) of the Act 13 (a) From on or about April 24 1980 to on or about June 19 1980 Respondent failed and refused to make an offer of reinstatement to employee Elpidio Cortez (b) Respondent failed and refused to make an offer of reinstatement to Cortez as described in paragraph 13(a) above because he engaged in union or other protected concerted activities for the purposes of collective bar gaining or other mutual aid or protection and because he participated in the strike in violation of Section 8(a)(1) and (3) of the Act 14 (a) Since on or about April 24 1980 Respondent has failed and refused and continues to fail and refuse to make an offer of reinstatement to employee Armando Escandon I (b) On or about June 19 1980 Respondent discharged employee Escandon (c) Respondent failed and refused to reinstate' employ ee Escandon discharged him and continues to fail and refuse to reinstate him to his former position of employ ment because he engaged in union or other protected concerted activities for the purposes of collective bar gaining or other mutual aid or protection and because he participated in the strike in violation of Section 8(a)(1) and (3) of the Act 15 (a) On or about June 10 1980 Respondent dis charged employees Antonio Andrade Alejandro Arroyo David Coronado Ricky Craft Enrique Fi gueroa Lorenzo Franco Mickey Lambright Jesus Valdez and Frank Zamora (b) Since on or about June 10 1980 Respondent has failed and refused and continues to fail and refuse to re instate the employees named in paragraph 15(a) above (c) Respondent discharged and has fail and refused and continues to fail and refuse to reinstate the employ ees named in paragraph 15(a) above to their former posi tions of employment because they engaged in union or other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection and because they participated in the strike and that such conduct was violative of Section 8(a)(1) and (3) of the Act 16 (a) On or about August 6 1980 Respondent re quired of employee Jesus Valdez as a condition to his right to reinstatement to his former job or position that he execute a work application form and take a physical examination as required of new employees (b) Respondent imposed conditions on employee Valdez in the manner described in paragraph 6(a) above because he engaged in union or other protected concert ed activities for the purposes of collective bargaining or other mutual aid or protection and because he participat ed in the strike in violation of Section 8(a)(1) and (3) of the Act 17 (a) On or about August 7 1980 Respondent re quired of employee Valdez as a condition to his right to reinstatement to his former job or position that he exe cute a form stating that he understood and agreed that he was returning to work as a new employee (b) Respondent imposed the condition on employee Valdez in the manner described in paragraph 17(a) above because he engaged in union or other protected concert ed activities for the purposes of collective bargaining or other mutual aid or protection and because he participat ed in the strike in violation of Section 8(a)(1) and (3) of the Act r s 18 Respondent acting through T Simovich in order to discourage its employees from engaging or participat ing in the strike and other protected concerted activities for the purpose of collective bargaining or other mutual 816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD aid or protection violated Section 8(a)(1) of the Act by the following (a) On or about October 17 1979 at its facility located at 2423 Troy Street threatened to have employees par ticipating in a picket line arrested (b) On or about November 2 1979 at its facility locat ed at 2423 Troy Street promised striking employees in creased benefits if the employees abandoned the strike and returned to work (c) On or about November 23 1979 at its facility lo cated at 2500 North Rosemead Boulevard threatened to have employees participating in the strike arrested (d) On or about December 15 1979 at its facility lo cated at 2423 Troy Street threatened employees with terminations for participating in the strike (e) On or about January 8 1980 at its facility located at 2500 North Rosemead Boulevard threatened employ ees with arrest for participating in the strike 19 On or about December 14 1979 Respondent through Larry Larson at its facility located at 2423 Troy Street threatened to run over employees on a picket line with a forklift in violation of Section 8(a)(1) of the Act Also involved in this allegation is the ques tion of whether Larson is a supervisor within the mean Ing of the Act The Respondent as indicated above admits certain al legations but denies that it committed any violations of the Act All parties were given full opportunity to participate to introduce relevant evidence to examine and cross ex amine witnesses to argue orally and to file briefs Briefs which were timely filed have been carefully considered On the entire record including especially my observa tion of the witnesses and their demeanor I make the fol lowing FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company a California corporation with its office and manufacturing facilities located in South El Monte California is engaged in the manufacture of forklift trucks Respondent annually purchases and receives goods and products valued in excess of $50 000 directly from customers located outside the State of California and therefore is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED It is admitted in the pleadings that the Unions have been at all times material labor organizations within the meaning of Section 2(5) of the Act III PRELIMINARY MATTERS Local 509 meetings during October and November 1979 regarding the strike at Champ Corporation The service of this subpoena was initially mentioned by Respondents counsel at the hearing on January 29 1981 Counsel for the Unions5 represented that he was just furnished at the hearing a copy of the subpoena and was trying to contact the proper union authorities and he further stated there s no reason for us not to furnish them [the requested material] Counsel for the General Counsel and the Charging Party the same day January 29 proffered as witnesses Ralph Gazzigli and Mary Garcia International business representatives for the Union Gazzigli had been assigned to negotiate the first contract with Respondent after the certification was granted and Mary Garcia was to assist him At the time of this proffer neither Gazzigh nor Garcia currently worked for the Union which is a factor considered in making credibility findings Garcia retired on October 18 1980 Gazzigli was seriously injured in an automobile accident on July 24 1980 and was subsequently placed on medical disability until January 1981 when his em ployment was terminated Therefore there is no basis to infer that their testimony was weighted in favor of their employer In fact based on demeanor clarity of recall and the candor they exhibited their testimony is credited The International Union in late October 1980 as signed Gazzigli s negotiating duties to Francis Burkhardt Gazzigli turned over his negotiating notes to Burkhardt and kept his personal notes relative to strike activity at his home Gazzigh believes that he took some notes at a November 5 union membership meeting since he usually took notes unless another individual was observed taking notes Mary Garcia stated she took some notes and gave them to Gazzigh These notes were not found Gazzigh further testified about the events that occurred at that meeting He stated that the Union did not have an Indi vidual assigned to take notes at membership meetings but he usually noted the date of the meeting the members of the Union s negotiating committee present and the gen eral topics of discussion Gazzigli further opined that any notes that he had taken during the period covered by the subpoena would have been at his office in a folder on the table behind his desk Gazzigh searched the material he had at home but could not find any material that was subject to the subpoena He also searched his former office to no avail On February 27 1981 Respondents counsel asserted that the January 26 1981 subpoena was its second at tempt to acquire the material that in December the Union refused service of a subpoena representing that Henry Fenton the Union s counsel was the custodian of records 6 A Motion to Strike Testimony On January 28 1981 Respondent served a subpoena duces tecum returnable February 3 1981 on the Local Union s office manager requesting any and all diaries notes memoranda correspondence transcripts records or other writings relating to the Union Auto Workers a There was some confusion exhibited on the record as to who is the Local Union s custodian of records 6 It is noted that Respondent apparently did not rely on this asserted representation because no effort was made to effect service on Fenton and service was effected on the Union at the Union s offices No testimo ny or other evidence probative of this assertion was introduced into evi dence CHAMP CORP By letter of March 4 1981 counsel for Respondent re quested the Regional attorney of Region 31 to com mence enforcement proceedings to effect union compl ance with the subpoena duces tecum pursuant to Sec tion 102 31 of the Rules and Regulations of the National Labor Relations Board This request was reiterated by a telegram of March 11 1981 and by letter dated April 13 1981 sent to Joel Martinez counsel for the General Counsel The General Counsel did not reply to these re quests Respondent had adequate time to request action from the Board but did not do so and no reason for this failure was advanced to the court Burkhardt pursuant to the subpoena duces tecum searched Gazzigli s office? and a storage room in the attic of the union hall Burkhardt also asked Thomas Whalen an auditor for the Union if he had any docu merits Whalen had some material that was given to Burkhardt and then to Respondent By telegram dated May 18 1981 Respondent request ed that the administrative law judge strike all the testi mony presented by the General Counsel and the Union concerning a union membership meeting held on Novem her 5 1979 unless General Counsel makes a timely motion to enforce the subpoena duces tecum 8 As previously found at hearing the evidence of record will not support a finding of willful refusal to comply with the subpoena or a bad faith effort in the searches Respondent further asserts that it was denied due process by the General Counsels failure to seek enforcement of the subpoena because it was denied an opportunity to adequately defend against the charge that events at the November 5 1979 meeting are probative of the conver lion of the strike from an economic strike to an unfair labor practice strike This contention is found to be with out ment based on the preceding finding and the fact that the Charging Party made available to Respondent over an extended period of time all witnesses who were connected with the event Accordingly it is concluded that the motion to strike testimony is denied B Petition to Revoke Subpoena On March 10 1981 Respondent had served on the Charging Party s office manager Carmen Garcia a sub poena dated March 9 that was addressed to Francis J Burkhardt requesting that he bring with him and produce on March 11 1981 the following Any and all diaries notes memoranda transcripts records or other writings describing or recording 7 This search encompassed going through the desk including desk drawers the two filing cabinets a briefcase a box used for storing papers a credenza and all loose papers Gazzigli s office was redecorated and the effects contained there were placed in a hallway for a period of time during the redecoration 8 It is noted that from the inception of the discussions regarding this subpoena Respondent was informed that enforcement of subpoenas is a matter lying solely within the discretion of the General Counsel or his agent See NLRB v Duval Jewelry Co 357 U S 1 (1958) regarding the hoard s authority to delegate its authority for subpoena enforcement put suant to Sec 11(2) of the Act and Sec 102 57(c) of the Board s Rules and Regulations 29 CFR ( 1958) See further NLRB v C E Strickland 229 F Supp 661 (D C Tenn 1962) See generally Wilmot v Doyle 403 F 2d 811 (9th Or 1968) and cases cited there 817 collective bargaining negotiation sessions between Champ Corporation and U A W Local 509 Burkhardt in testimony given on March 30 1981 as serted that he did not know of the subpoena The date of knowledge of service is construed here as the date of service for the purposes of determining timeliness of filing motions to revoke the subpoena See C E Strick land supra On the same day March 30 1981 counsel for the Charging Party made a timely motion to revoke the subpoena 9 Counsel for the General Counsel also moved to strike the subpoena based on the contention that the required material was irrelevant Furthermore even if the petition to revoke is assumed for argument s sake to be late and therefore not in strict conformance with all the Rules and Regulations Respondent was of forded more than adequate opportunity to correct the failing found in the subpoena and did not do so Accord ingly it is found to be not prejudiced by consideration of the petition to revoke because it was overly broad and requested irrelevant material See Howard Johnson Co 250 NLRB 1412 (1980) Subsequently on April 1 1981 counsel for the Charging Party filed a written motion to revoke the subpoena because at the time of service no witness fees were tendered and the subpoena is overly broad and requests irrelevant material The failure of Respondent to tender appropriate wit ness and mileage fees at the time of service renders the subpoena defective on its face See Rolligon Corp 254 NLRB 22 (1981) Furthermore the subpoena was overly broad because it did not limit the request to times and materials clearly pertinent to this proceeding and the re quested materials were not shown to be necessary to the successful handling of the case Jacobs Transfer 227 NLRB 1231 (1977) Finally it is concluded that failure to revoke the subpoena insofar as it may be found rele vant would do unwarranted injury to the process of col lective bargaining As was stated in Berbiggka Inc 233 NLRB 1476 1495 (1977) The basic reason for revocation of the subpoenas so far as here relevant was my view that requiring the Union to open its files to Respondent would be inconsistent with and subversive of the very essence of collective bargaining and the quasi fiduciary rela tionship between a union and its members If collec tive bargaining is to work the parties must be able to formulate their positions and devise their strate gies without fear of exposure This necessity is so self evident as apparently never to have been ques tioned The policy was recently adhered to by the Court of Appeals for the Ninth Circuit in Harvey s 9 Sec 11(1) of the Act contains the following provision respecting the revocation of subpoenas Within five days after the service of a subpoena on any person re quiring the production of any evidence in his possession or under his control such person may petition the Board to revoke and the Board shall revoke such subpoena if in its opinion the evidence whose production is required does not relate to any matter under in vestigation or any matter in question in such proceedings or if in its opinion such subpoena does not describe with sufficient particularity the evidence whose production is required 818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wagon Wheel Inc Y NLRB 93 LRRM 3068 3070 78 LC ¶ 11 268 (1976) an action under the Free dom of Information Act The court there said Statements of union representatives and agents of the employee for example should normally be protected from disclosure as a matter of law Otherwise the danger of their withholding rele vant information for fear of exposing crucial ma tenal regarding pending union negotiations would be manifest 22 The subpoenas in the present case clearly called for exposing crucial material regarding pending union negotiations 22 The same policy in part underlies the long accepted privilege of conciliators not to testify concerning contract negotiations See Tomlinson ofHigh Point Inc 74 NLRB 681 685 (1947) [T]he parties to conciliation conferences must feel free to talk without any fear that the conciliator may subsequently make disclosures as a witness in some other proceeding Although the subpoenaed material may have relevance to the question of whether the strike was converted to an unfair labor practice strike the General Counsel has the burden of proving the allegation Witnesses were called by the General Counsel for the purpose of meeting that burden who were ably cross examined by Respondent All notes or memoranda found by the Union in response to the January 28 1981 subpoena were appropriately turned over to Respondent In the absence of any reason able showing that the material sought in the March 10 and January 28 subpoenas contained any reasonably pro bative evidence establishing that the alleged unfair labor practices engaged in by Respondent played no decisive role in prolonging the strike that events other than the November 5 meeting were also instrumental in unduly prolonging the strike the statutory purpose of fostering collective bargaining cojoined with the overly broad nature of the subpoena and the fact that the March 10 subpoena is defective on its face leads me to grant the motion to revoke the March 10 subpoena issued on behalf of Respondent 10 insofar as it seeks production of evidence See Lewis Food Co v NLRB 357 US 10 (1958) IV THE ALLEGED UNFAIR LABOR PRACTICES A Background The Company manufactures a variety of rough terrain forklift trucks As here pertinent the following individ uals are part of Respondents managerial staff Mike Si movich i i president Tom P Simovich the general man ager and treasurer who has been training and turning over some of his responsibilities as chief operating man 10 See Berbigha Inc supra ' i M Simovich did not appear and testify There is no evidence re garding his role during the period of time involved in these proceedings nor is there any allegation that he participated or was in any manner in volved in the perpetration of the alleged unfair labor practices M Simo vich owns about 50 percent of the Company and his brother Tom owns the other 50 percent ager to his son Edwin Simovich 12 the manager of cor porate planning Tom R Simovich Jr 13 the chief engi neer Arvilla Shooter 14 the office manager Loren Peas lee the purchasing agent Richard Rowe production su perintendent and Phyllis Lund payroll clerk The Company s facilities were divided into three main locations referred to as those located at 2500 North Ro semead Boulevard which is the original production facil ity containing several buildings and many outdoor sheds and overhangings 2439 North Rosemead Boulevard 15 and Troy Street which is parallel to and west of Rose mead Boulevard and is the location of a service depart ment several warehouses and other storage areas These main locations were divided into approximately nine work areas Based on the evidence of record it appears that these departments or areas and their supervisors are as of October 1979 the assembly area at 2500 Rosemead under the supervision of Herbert Shertz the inspection area supervised by Peter Szalay mast assembly at 2500 Rosemead supervised by Robert Smith the machine shop at 2500 Rosemead supervised by Robert Peterson the paint department at 2500 Rosemead supervised by Steve Garcia the fabrication area at 2439 Rosemead 16 supervised by Art Van Haasen the assembly area at 2439 Rosemead supervised by Nick Ianello which included an area referred to as the burning bay the parts department supervised by Larry Larson and the service department supervised by Ken Crutcher Many of the various facilities were located in separate buildings many of which were divided by solid concrete block walls 5 to 6 feet high These walls also separate Respondents properties from the sidewalk These walls contain breaks for entrances which generally have slid ing chain link fences The 2500 Rosemead facility has three such entrances but only one is used The properties contain several parking areas Rosemead Boulevard is an eight lane thoroughfare divided by an island that con tains plantings both shrubs and trees According to Tom Simovich some of the shrubs are about 12 1/2 inches high and the trees could be 6 to 8 feet high Some por tions of the divider are absolutely clear of vegetation B Supervisory Status The evidence of record does not permit the drawing of clear lines of authority to determine which individual had primary managerial authority at Respondent Tom Simovich in a deposition given in December 1980 mdi cated that he had sole responsibility for the hiring and firing of personnel Ed Simovich indicated when he mi tially testified at this trial that his father still had primary responsibility for the operation of the Company includ 12 E Simovich commenced his employment as manager of corporate planning in March 1979 13 At times he was referred to as Tom Jr 14 Shooter did not appear and testify No reason was advanced for her absence is The main office was located at this address as well as another pro duction area 16 This area was further divided into a welding area and an assembly area CHAMP CORP ing hiring and finng According to T Simovich 17 since December 1980 pursuant to an understanding he had with E Simovich when he commenced his employment with the Company in 1979 as soon as he was capable he would receive full and sole responsibility over the hiring and firing of personnel Also according to T Simovich since December 1980 Ed has exercised much more au thonty E Simovich has hired everyone who has been employed by the Company after December 1980 18 Another area of contention is the supervisory status of Larry Larson Larson testified that he has been em ployed by Respondent for approximately 5 years and for the last 4 years he has been employed as parts manager Larson did not testify further regarding his employment with Respondent According to the uncontroverted testa mony of Steven James Baugh 19 Larson had authority to authorize leave taking would initial Baugh s timecard if he was late and had authority to fire employees Section 2(11) of the Act defines a supervisor as [A]ny individual having authority in the interest of the employer to hire transfer suspend lay off recall promote discharge assign reward or disci pline other employees or responsibly to direct them or to adjust their grievances or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment These enumerated supervisory powers are to be read in the disjunctive and the presence of only one of the fac tors is sufficient to support a finding of supervisory status NLRB v Harmon Industries 565 F 2d 1047 1049 (8th Cir 1977) Lithographers Local 252 v NLRB 4^3 F 2d 810 814 (8th Cir 1972) James H Matthews & Co v NLRB 354 F 2d 432 434 (8th Cir 1965) cert denied 384 U S 1002 (1966) Actual exercise of supervisory au thonty is not required for all or any definite part of the individual s time As this court has stated § 2(11) does not require the exercise of the power It is the ex istence of the power which determines the classifica tion James H Matthews & Co supra at 434 Accord Harmon Industries supra at 1049 17 E Stmovich never explicitly asserted during his subsequent testimo ny that this was a formal understanding of the nature described by his father or that his authority greatly increased since the end of the strike This lack of candor adversely impacts on E Simovich s credibility 18 This statement is clouded by other testimony on the same date April 1 1981 by T Stmovich as follows Well in general I would say that I have the -pretty much the last word with comments from Ed my brother and Mrs Shooter I don t do thing [sic] with a-from a stand point of a disctatorship (Emphasis added ) The use of the present tense have' in this quote indicates that T Simovich had as of April 1 1981 ultimate authority over all managerial decisions but acquiesced to most of his son Ed s decisions Accordingly it is concluded that both Tom and Ed Simovich had shared responsibility in determining who would be hired and fired which employees would be reinstated when such rein statements would be offered and the terms of the offers of reinstatement Thus the testimony of both father and son has pertinence regarding these matters 19 Baugh commenced his employment with the Company on June 1 1976 in the parts department as a parts man He went out on strike Octo ber 15 was active on the picket line and was a member of the union negotiating committee 819 Because Baugh s testimony that Larson has authority to fire as well as to authorize taking leave is not clearly and convincingly refuted it is found that Larson has su pervisory status as defined in Section 2(11) of the Act C Collective Bargaining History As previously indicated in December 1978 the Inter national was certified as the exclusive collective bargain ing representative for the unit described above in Case 21-RC-1578 In January 1979 Respondent retained Edmund J Hoy Jr a labor consultant to lead its negoti ating team which also included initially Shooter Van Hassen and possibly Ed Simovich Hoy retained his of filiation with the Company at the time he testified Shortly after the initial meeting to negotiate the first time collective bargaining agreement the company committee was reduced and was composed of only Hoy and Ed Si movich In addition to Gazzigli and Garcia 20 the company employees elected Frank Zamora Manuel Avalos and John Gresko as committee members and also elected two alternatives one as here pertinent was Steven Baugh The first negotiating session Gazzigli believes was held on March 7 1979 21 According to Hoy s uncontro verted testimony it was agreed that the noneconomic issues would be decided initially The Union gave the Company its initial proposal in March 1979 Sometime in 1980 the Union gave the Company an economic and noneconomic proposal which were tied together The Company then went over the union proposal item by item to ensure understanding and would at subsequent meetings make noneconomic proposals 22 On October 15 1979 a significant portion of Respondents work force23 commenced what was undisputedly at its incep tion an economic strike D Prestrike Activity According to Deputy Gary Edward Stead of the Los Angeles County Sheriff's Department on October 3 1979 he was instructed via a radio call to proceed to Champ Corporation to take a strike report Stead met first with a woman he believed was Tom Simovich s sec retary who indicated that they anticipated a stake and expected it to result in problems Then Stead met with Tom Simovich According to the report both the secre tary and Tom Simovich indicated that there had not been any violence or vandalism but that there had been numerous threats of violence against some employees and their families The report indicates that this was a generalized allegation and no individuals were named Stead was given a previously prepared list of employees with the home addresses who were characterized as the most likely to cause problems These employees are Frank Zamora Enrique Figueroa Lorenzo Franco Jose Naranjo Steven Baugh Joe Solis Jesus Moreno 20 Garcia apparently did not participate in any negotiations 21 Hoy recalled the first meeting occurred on March 5 6 or 7 22 Currently there are no negotiations occurring and the last negotia tion session was held in the fall of 1980 as Baugh estimated that about 80 to 90 percent of the work force went out on strike 820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Eduardo Ortiz and Henberto Valenzuela 24 Stead cannot recall if Tom Simovich told him why he thought the listed individuals were the most likely individuals to cause strike problems why he opined that he suspect ed approximately 25 employees would cause problems or why he expected the strike to commence on October 8 1979 25 During the 3 or 4 years before this October 3 meeting Stead had been an occasional visitor to Respondent s premises to take reports of vandalism petty theft or other law enforcement matters unrelated to the strike The vandalism reports he previously received included such items as occasional broken windows in buildings vehicles cars being damaged by rocks and activities of that nature According to Stead the area of South El Monte where Respondent is located is subject to a pat tern of vandalism because there are a large number of ju venile gangs present primarily the El Monte Flores gang Deputy Stead also testified that he studied gangs for the past 4 years and is presently assigned to the gang detail According to Stead the El Monte Flores gang is indigenous to South El Monte and is one of the largest gangs in that area with an estimated membership of be tween 400 and 450 individuals According to Victor Castonguay a mechanical assem bler who worked during the strike several days before the commencement of the strike the employees were in structed by Tom Simovich and his foremen to report all incidents to management and the police Castonguay fol lowed this directive as did many other employees Cas tonguay s testimony on this point is credited based on de meanor and lack of controversion E Events that Occurred During the Strike 1 General matters Deputy Stead also testified that he took 17 separate complaint reports during the strike including assault with a deadly weapon and several reports of vandalism in conjunction with this testimony Deputy Stead also stated that although gang members normally did not par ticipate in the picketing during the involved strike he has seen several incidents involving gang members at the strike asserting that he had personal knowledge of 8 to 10 gang members at the strike location becoming in volved in physical altercations He did not know if the gang members were employees of the Company or of one of the guard services employed by the Company or if they were strikers either one of which would account for their presence during the strike Deputy Stead based his belief that the gang members were affiliated with the Company or one of the guard services it employed because 24 Tom Simovich did not deny submitting the list which he asserts is not in his handwriting but he could not recall the circumstances sur rounding the preparation and submission of the list Based on demeanor and Stead s superior ability to recall events Stead s testimony is credited 25 Stead testified that he customarily would inquire while preparing a strike report if there were any individual who had or might engage in violence or threats of violence However he did not indicate such an in quiry was made in this case In fact his testimony indicates otherwise in asmuch as he stated that he believed the list had been prepared before his arrival not in response to an inquiry he initiated I believe I stopped several members of the El Monte Flores gang in and around the area of Champ Corp and they indicated to me that they were employed by Champ Corp but did not actu ally see them actively engaged in working for the company I pulled them over for traffic offenses and in talking with them asked what their place of em ployment was and several of them replied Champ Corp 26 Deputy Stead did not verify the gang members repre sentations that they were employed by Champ or a guard service working for Champ However other slier iffs officers informed him that they observed known gang members performing guard services at Respond ent s facilities No representative of the guard service at Respondents facilities No representative of the guard service appeared and testified and these assertions are otherwise unrefuted Another sheriffs deputy Raymond Terhorst was as signed by the Temple City substation to monitor all police reports generated by occurrences related to the strike and communicated several times with Tom Simo vich before commencement of the strike There is no in dication that these communications involved the strike The first conversation Terhorst recalls that related to the strike occurred shortly after the strike began and merely involved a statement of the sheriffs department position regarding the strike which was to remain strictly neu tral Terhorst does not believe that a week went by with out some discussion with Tom or Ed Simovich or Ar villa Shooter Ed Simovich and Arvilla Shooter would call and inquire as to incidents that occurred during the strike including the identity of all strikers arrested The identity of all strikers arrested or named as suspects was also requested by Respondent after the strike terminated and Terhorst provided the information According to Ed Simovich whenever there was an arrest of a striker in quiry was made of the sheriffs department regarding the details of the arrest At times Ed Simovich had reason to look up some arrest reports Accordingly it is found that Respondent had knowledge of the allegations con tained in arrest reports and complaints filed with the sheriff's department during the strike Furthermore Ed Simovich and Arvilla Shooter kept a diary which listed by date allegations of wrongdoing by employees which could have been attributable to or which were asserted to be directly ascribable to the strike and/or specific strikers 26 Deputy Stead later testified that he encountered gang members working for a guard service that was employed by Champ that he spoke with two or three gang members who indicated they were security guards for a firm hired by Champ Corporation during the strike Further more Deputy Stead took a report of a stabbing incident which appears to be the incident which occurred on October 19 discussed in detail hereinafter One of the pickets was stabbed apparently by one of three individuals in a vehicle who told Stead that they were members of the El Monte Flores gang CHAMP CORP 821 2 Some events occurring during the strike involving guards According to Baugh a day or two after the strike commenced while he was on the picket line late in the evening he noticed two guards hired by Respondent who were armed with pistols and billy clubs and one was carrying a shotgun As the guards were checking various gates Baugh who was wearing a picket sign at the time started across the street and approached the guards One of the guards chambered a round in the shotgun and pointed the gun at me and told me that if I came up on the sidewalk he was going to blow me away Baugh informed them that he did not have any weapons put his hands up and stood there until the guards left Baugh then telephoned the police The police came and arrested the two guards for carrying the shotgun without a permit There is no indication that the guards were disciplined for this infraction 3 Some occurrences during the strike involving primarily damage to property On October 15 according to Loren Peaslee he had occasion to be in the drill shop and someone pointed out to him that a belt had been j ammed into some drill press es There were numerous other incidents of damage to company and personal property during the strike Some of these incidents included two successful attempts to contaminate two new fuel tanks installed by Respond ent-one containing diesel fuel and the other gasoline A few days after the strike started the fuel tanks27 were contaminated with dirt and sugar substances Later in the strike a garden hose was placed in the tanks to displace all the fuel An aluminum storage container approxi mately 15 to 20 feet wide by 40 feet long used to store cardboard boxes was burned No arson report was placed in evidence The offices and other facilities at the plant sustained the following damage bullet holes through windows in upstairs offices a rock was thrown through a plate glass window in the front of the main office the ladies lunch room had a window shattered and windows were broken in the purchasing office Some instrument caused a hole in the door of the 60 X 60 building From the commencement of the strike padlocks and locks were plugged with solder or plastics and locks were broken Peaslee replaced 135 locks during the strike No locks had to be replaced before the strike A fence was pulled from the post in the parking lot at 2425 Rosemead about 3 or 4 days after the strike started The gate next to the damaged fence was pulled off the rails about a week after the strike started About a week and a half after the strike started metal screws that affixed metal sheets to a portion of fencing were removed and the metal sheets were thrown in the driveway During the first week of the strike Nick Ianello foreman or leadman of the chas sis assembly department also noted that tools were miss 27 The capacity of these tanks was the subject of various estimates by different witnesses According to Peaslee who was as purchasing agent the most knowledgeable the tanks were a 6000 and a 10 000 gallon tank ing from the burning bay items such as acetylene torch es grinders parts of drills and fire extinguishers lanello also observed broken glass in front of the 2439 Rose mead building by the fuel tanks which were contaminat ed and in the parking lot in front of the office Nails were placed in driveways Rocks were thrown at cars and over fences into parking lots Larry Larson stated that in late October he observed Carlos Almaroz throw a rock at Nick Ianello s car which struck the lower por tion of the passenger door Larson told Ed Simovich and Arvilla Shooter about the incident and appeared in court on the matter Tom Simovich also asserted Almaroz threw a rock at Ianello s car Almaroz denies the action According to Tom Simovich Almaroz was acquitted based on an improper identification Most or all of the Company s vehicles were damaged and much of the damage occurred in October 1979 A white freightliner had several flat tires the air hoses were cut and on or about March 10 the windshield of the vehicle was smashed with a rock An International Harvester vehicle had a windshield broken and several flat tires and a Chevrolet flatbed truck was similarly damaged A Chevy bobtail diesel truck had a broken window on the driver s side plus numerous flat tires A Chevrolet stable bed truck had several flat tires and the Company s two Chevrolet pickup trucks both sustained broken windshields During the first few weeks of the strike about 16 forklift trucks had flat tires With the exception of the Almaroz allegation the above described damage was never attributed to individ ual strikers and there was no soundly based ascription of particular damage to the strikers rather than to the his torical vandalism referred to by Deputy Stead as occur ring in South El Monte which he said was relatively fre quent due to the number of gangs extant in that city Ac cordingly this testimony is considered only as back ground and not probative of good cause failure to re instate a particular individual with the possible exception of Almaroz as previously mentioned These events as well as those subsequently discussed involving alleged in cidents that do not contain attributions to specific strik ers or the Union are necessarily detailed to permit full and fair analysis of Respondents defense that certain ac tions were taken due to the atmosphere of fear and in timidation extant during and after the strike Several employees and according to Ed Simovich some suppliers also complained of property damage which occurred at their homes and this testimony will be treated similarly to the treatment accorded the evi dence of damage at the Company s facilities No evi dence regarding complaints of property damage by sup pliers was placed in evidence and the unsupported alle gation is inadequate to warrant attribution of this averred damage to the strike or individual employees Also ac cording to Ed Simovich Arturo Nieblas28 complained that his pickup truck had windows shattered tires punc tured and sugar placed in the carburetor The lack of The water incident resulted in the loss of 4000 gallons of diesel fuel and 28 Nieblas worked with Nestor Lopez in the paint shop He did not 8000 gallons of gasoline appear and testify No reason was advanced for his absence 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD probative details renders the bare allegation valueless in assessing the activities of strikers for there is no basis to ascribe the genesis of the incidents to the strike and/or strikers Nestor Lopez29 asserts that on the first day of the strike when he crossed the picket line the picketers used profanity and told him that he could not come back the following day to work because they were fighting for something that they needed 30 The record is replete with evidence that picketers used language exceeding bil lingsgate Most individuals who remained working for Respondent denied using profanity however the testi mony of some of Respondents witnesses and some of the picketers that the employees at least replied in kind is credited based on demeanor inherent probabilities and consistency with the events 4 The events of October 16 The second day Nestor Lopez came to work October 16 he again experienced insulting profanity yelled at him as he was asked why he was coming to work that they had already told him the day before to stop coming to work and to take precautions if he continued coming to work Tom Simovich and Rudy Korste were alleged ly with him but did not corroborate the allegation that threats were made Whether this failure was due to Ian guage differences because much of the profanity and other insults were said in Spanish or for other reasons is not clear on the record N Lopez did not identify anyone as the source of the threat the morning of Octo ber 16 1979 31 After work on October 16 Ernesto Arroyo came to N Lopez house According to N Lopez E Arroyo inquired why he was going to work and in response Lopez said that he had a family and could not afford to cease working They then continued talking like normal people Lastly N Lopez claims he volunteered to cease working if he couldn t go back to work Arroyo assertedly replied that he had no objec tion to Lopez continued employment at Champ but did not know about the others he couldn t control what the others would do Arroyo then left It is then asserted that about half an hour after E Arroyo left another striker Manuel Avalos came to his house to tell him that he did not want him to go to work for his own good Avalos averredly stated that Lopez should give the employees three days and they would arrange everything The import of this statement was unexplained He said that he did not have to worry about Avalos Avalos also assertedly said that if Lopez continued working it could be big problems for him Also present were the wives of Avalos and N Lopez according to N Lopez N Lopez did not go to work the 29 Lopez is currently a leadman in the paint department and was used at times by Respondent as an interpreter at the Company 30 One individual David Coronado assertedly said to him it is better you see how they are treating you and Lopez replied Well if I can t come back to work then I won t come Similar comments were made respecting the second time Lopez crossed the picket line These com ments were not explained or the evidence explicated in a manner demon strative of the asserted threat and no threat is found Si According to N Lopez before the strike he was accused of being a finger pointer of the Company They had a bad opinion of him The they were not identified third day of the strike asserting that he was afraid He returned to work on October 19 1979 When it was sug gested that the presence of both Arroyo and Avalos could be explained by N Lopez activity of selling carne tas 32 N Lopez initially inferred that he had not engaged in this enterprise however later in his testimony he ad mitted that he sold carnitas made by a relative Based on demeanor the inherent improbability of making threats in front of Avalos wife and in the presence of the wife of the individual ostensibly threatened and the demon strated lack of candor and inconsistencies the testimony of N Lopez is not credited a3 5 Other events in October where damage was done to employees property or threats were made William Gustaf Koskela testified that one evening in October while departing Respondent s premises a picket er threw a rock at the vehicle he was riding in as a pas senger the rock struck the side window where he was sitting causing him to bump his head Koskela also stated that in October or November when he was in Nick Ianello s car as it was leaving the Company s prem ises he saw Ruben Gutierrez throw a rock at the car He did not see the object he did not see any object impact the car but he heard the impact Also in the car was Dusty Holland Shortly thereafter he saw Gutierrez handcuffed He never testified in court about the incident nor did Holland N lanello styled himself as a supervisor and was var iously referred to as a leadman or foreman According to lanello during the first month of the strike the pickets would obstruct the driveway as he was trying to enter or 32 A food similar to a taco made with pork 33 N Lopez also asserted that both before the commencement of the strike on October 16 and thereafter he and his wife received telephone calls threatening him and his family with grave consequences if he con tinued working Further on October 19 when he returned to work un identified picketers insulted and threatened him He then claims that he returned to work on the day of the candies which the parties agreed to interpret as Halloween The evening of Halloween as he was return mg home after taking his child tuck-or treating he was told that a pickup truck was surrounding his home When he returned to his home he found windows broken in his camper and the tires on the camper were flattened Later that night a rock broke a window in his house He looked out the window saw a car three individuals and rocks being thrown at neighbors houses He then asserts that he believes one of the culprits was a striker whom he could not name If the perpetrators were strikers the activity of throwing rocks at neighbors is unexplained The assertion that a stoker was involved was unwarranted considering N Lopez description of the event and his demeanor N Lopez then claimed he took his younger children and wife to Mexico where he owns proper ty and they remained in Mexico until January 1980 when he and evi dently his family returned to his California residence and he resumed work at Respondent He did not state how many children remained in California there ages or any other information which tends to diminish the credibility of his claim that the trip to Mexico was occasioned by fear due to threats by sinking employees Further there was no showing that the damage to his property on Halloween was related to the strike rather than rowdyism associated with Halloween juvenile gangs or any other cause equally likely There is no assertion of any threats made by sinkers or anyone else between October 19 and Halloween Also the exact nature of the previously asserted threa s was unexplained and cannot be attnb uted to any sinkers or the Union based on this record These general al legations where no individual is mentioned are solely included as part of the decision to permit full and fair analysis of one of Respondents de Tenses and to further demonstrate the inherent inconsistencies and unsub stantiated undetailed assertions of this witness testimony CHAMP CORP leave the Company s premises and when attempting to leave would obstruct his view of oncoming traffic The picketers would also curse at him direct obscene ges tures at him 34 and make threats such as we will get you He asserts ingress and egress would be delayed for 5 or 10 minutes Another picketer he identified as not liking him was Steven Baugh 35 who assertedly said we are going to get you We are going to get you guys to really know what it is to feel like working in a real scab shop Steven Baugh referred to himself as the hit man The significance of this appellation was not clear ly explained by this witness The use of nicknames was common at the Company The asserted threats were not alleged as a basis for failing to reinstate Baugh but the use of the self styled appellation of hit man according to T Simovich was a consideration in the decision not to offer him reinstatement 36 T Simovich considered Baugh a violent man basically because of the language he used I in the hit man He wanted it to be known that he was the leader of the violence and in con trol of the men When T Simovich was asked if he ever saw Baugh engage in any conduct or physical activ ity at the plant he responded very shrewd man did it all behind the scenes The basis for T Simovich s alle gation regarding Baugh s conduct therefore is clearly not personal observation and no other basis was ad vanced N Ianello said his car sustained about $200 to $300 worth of damage while it was parked at Respondent About a week after the strike commenced he heard a loud noise as the car was exiting the company property and he then observed a ding in the vehicles right door He then asserted the ding was in the right quar ter panel About a week later at the same exit he heard an object strike his right rear window This is the mci dent Koskela testified about The right drip rail of the car had a ding in it about one half inch in size The witness was shown his affidavit I don t know who kicked the door on the left quarter panel 37 During his testimony he disavowed the affidavit although admitting he signed it after reading the document Based on incon sistencies in testimony demeanor lack of candor and obvious bias the witness testimony is not credited Fur thermore even assuming that the testimony is credible Deputy Stead testified that before and not associated with the strike he went to the Company in response to complaints regarding unknown vandals damaging vehi Iles on company property by throwing rocks at them 84 lanello identified Jose Pinky Naranjo as the picketer who engaged in obscene gesturing but this activity was not asserted by Respondent as a basis for denial of reinstatement 16 lanello stated that before the strike he had trouble getting along with Baugh He accused Baugh of stealing parts and giving smart an swers It is noted that the witness acted in a hostile manner on cross examination and he was uncooperative during cross examination without just cause demonstrating lack of candor 36 Respondent formally on May 12 1980 informed Baugh he was to report to work on May 16 1980 97 Another inconsistency between lanello s testimony and the affidavit is that he testified that he did not tell counsel for the General Counsel about the ding in the vehicles drip rail but the affidavit states When I got home I looked at the car and found two dents in the right side quarter panel The right side the right door had a dent and the right drip rail had a dent 823 Therefore there is no basis to ascribe the asserted inci dents to picketers Larry Larson testified that he saw Carlos Almaroz throw a rock at Nick Ianello s car He stated he actually saw Carlos Almaroz with a rock in his hand He saw him move his arm and saw the rock hit the passenger side on the lower portion of the door Larson then stated that he also saw Almaroz throw a bottle which struck the car At the time Almaroz was with another picket and they were both throwing rocks They did not have picket signs at the time lanello was pulling out of the driveway when he saw Almaroz throw numerous rocks and throw a bottle Subsequently Larson stated he saw them throw two rocks and a bottle 38 The other picket was throwing rocks but he did not recall how many rocks When shown his affidavit he stated he did not recall seeing all the things that were included and when questioned about the fact that the throwing of a bottle which assertedly also struck the vehicle was not men tioned he stated that counsel for the General Counsel in structed him at the time the affidavit was prepared not to place that in the affidavit Larson admitted that the affi davit was written in his own hand Therefore it is con fusing why he did not recall many of the matters men tioned He also did not recall stating in the affidavit that he was at the parts department loading dock by himself about 75 yards distant and could see three pickets He had previously testified there were two pickets He would not say that his memory was clearer when he pre pared the affidavit than the day he was testifying The affidavit was dated May 27 1980 There was a subse quent affidavit evidently dated August 6 1980 Larson testified on February 3 and 4 1981 On further cross examination Larson then stated that the bottle struck the car on the lower portion of the pas senger door and he did not recall where the rock struck the car This i contrary to his prior testimony in which he stated that the rock struck the car on the lower pas senger door panel Larson admitted that when he testi feed at a trial involving charges filed against Almaroz be cause of the throwing of an object at lanello s car he did not tell the prosecutor that the bottle struck the car Larson then stated that he did not mention the bottle be cause he was told not to put the bottle in his deposition but the prosecutor did not tell him not to mention the bottle The deposition must be regarding the charges against Almaroz because there was no deposition prof fered in this case involving a prosecutor There is no ex planation about why the prosecutor assertedly said the same thing that counsel for the General Counsel stated Based on demeanor the apparent inconsistencies in testi mony and the apparent lack of candor it is concluded that Larson s testimony is not credible June Rose a billing and rental clerk for Respondent was threatened early in the strike The first Sunday after the strike commenced she was working at her residence having taken a billing Rolodex home and she received a call that afternoon A male caller told her that I had better get the Champ billing papers and Rolodex out of 38 Two rocks is much different from numerous 824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD my house or I would be threatened again or damage would be done to me She did not recognize the caller The following day she took the work back to the plant At 6 15 a in on January 4 1980 her car was parked at a carport at her abode and she noted glass fragments and paper all over the side and top of her car the front window was smashed She called A Shooter who in structed her to call the sheriff's department The authori ties stated that it looked like a pipe bomb was used on the windshield Later on in the year she found 11 nails in the left rear tire of her car Apparently no arrests were made regarding any of these incidents and there is no direct ascription of culpability to strikers or the Union Whether similar vandalism occurred in her neigh borhood was not addressed in this trial Therefore there is no basis for attributing the incidents other than the telephone threat to the strike at Champ Another apparent bomb incident involved Herbert Shertz currently production assembly foreman On Feb ruary 21 1980 while asleep at his home he was awak ened by an explosion He ran to the front door after asking his wife to call the sheriff and saw smoke rising above his vehicle Fire trucks were dispatched to his house and they found evidence that a pipe bomb was placed underneath the vehicle near or by the gas tank Before this bombing sometime during the night both rear tires of his vehicle were flattened they were pierced with a sharp object Other damage to his vehi cle was a ding on the right door occasioned by some one hitting the right side of his car as he entered the workplace One unspecified day his landlords car had a substance identified as paint remover poured on it while it was parked outside Shertz residence as As previously indicated Shertz also experienced pick eters slowing ingress and egress from the plant by slowly walking across the driveways in close order file The picketers would also yell at him using profanity usually in Spanish 40 The evidence clearly supports a finding that the picketers did engage in this activity The two picketers he knew by name who were active during the first week of the strike were Joe Solis and Frank Zamora 4 i He could not recall what was said by these individuals but claimed they were loud No one threat ened him during the strike As previously indicated because many of these inci dents do not contain sufficient evidence to permit ascrip tion of culpability to a particular individual or the Union they are presented only as factors relating to Respond ent s defense to some of the above specified charges and as There were two or three other incidents mentioned in the testimony regarding the pouring of substances identified as paint remover on several vehicles of management and employees of Respondent For example Ed Simovich testified that a substance which damaged his car finish was poured on this vehicle one evening while he was attending a negotiating session O Gerhart stated most of the cursing he heard was in English Ger hardt s testimony is not credited based on demeanor and the fact that most of the individuals identified as the most active picketers were Span ish speaking individuals who needed the services of a translater when they testified Gerhardt could not understand Spanish and the inapposite character of Gerhardt s testimony to that of Shertz and others such as Korste was unexplained further discrediting his evidence 4 Zamora had a good command of English Solis did not do not form the basis for finding the decision not to rein state a particular striker justified under applicable Board law Other employees who Ed Simovich asserts suffered bomb damage at their homes were Victor Castonguay Bob Peterson and Rudy Korste Korste a truckdriver not only reiterated the damage to the various vehicles discussed before but also detailed an occasion in Decem ber 1979 or January 1980 when he had one of Respond ent s trucks parked at his residence During the night he was awakened by a big noise like a crash When he later went to check the truck preparatory to going to work he found that part of the cab engine and under neath the cab were damaged all the hoses electrical wires and electrical hoses were damaged as was the fuel pump In March after the truck was repaired Korste after he loaded the truck at the plant left it for a few moments to get some tools located across the street and when he returned the windshield was shattered and a rock the size of a fist was laying in front of the truck He does not know where the rock came from Korste in ad dition to describing the previously detailed picket line activity of the strikers also stated that he saw Ramon Rodriguez frequently strike vehicles passing through the picket line with his open hand He saw other picketers hit or touch the trucks he drove but he could not identi fy them It is not alleged that the truck was damaged or that he was threatened by R Rodriguez or the others on these occasions Also Korste claims that some pickets made gestures at him and Eduardo Ortiz once chal lenged him to fight by approaching him with his hands closed in fists after calling him a profane name in Span ish The action was interpreted as a challenge no words explicitly challenging Korste to fight were attributed to Ortiz Ortiz though standing close to him did not touch Korste who is 5 feet 10 inches tall and weighs 180 pounds Ortiz appeared to be smaller than Korste There were no complaints made to the duly authorized authori ties relative to this incident Victor Paul Castonguay also worked during the strike as a mechanical assembler On November 28 1979 while sleeping he was awakened by an explosion After inves tigation he noticed that his pickup truck which was parked in front of his house was damaged the wind shield had a hole in it and other parts of the vehicle were damaged He did not call the police but was able to drive the truck and reported the incident to Tom and Ed Simovich As he was driving through the picket line the morning of November 28 1979 Castonguay asserts that he was stopped by the pickets and David Coronado just came up to him and spat in his face pointed at his pickup and laughed E Ortiz also once said where is your pickup'' and then laughed There were no com plaints filed or arrests resultant from these incidents Also at the beginning of the strike Castonguay assert ed that while his car was in the driveway of the plant Solis jumped up on the hood and pounded on it On Sunday the third day of the strike Solis approached him pushed him with his shoulder and elbowed him called him a profane name and told him not to go to work Castonguay was knocked off balance but did not CHAMP CORP fall down He proceeded to cross the boulevard with co workers who usually teed to cross in groups and Solis was in the middle of the group of nonstrikers About 10 seconds later Castonguay was hit on the back of his head or in the neck area with a bottle He was taken to the hospital by Ed Simovich where he was given heat treatments and a neck brace He wore the neck brace for 2 weeks Castonguay consistent with the instructions he received before the strike from Tom Simovich reported the incidents to Ed Simovich No charges were filed or arrests made regarding these incidents Before the strike Castonguay had an argument with Solis Solis accused Castonguay of stealing his fan Castonguay then modified his testimony and stated that Solis thought he stole the fan and was willing to go out and fight unless Caston guay came up with the fan Castonguay purchased a fan and gave it to Solis Castonguay claims that he never held a grudge as a result of this incident Robert Peterson currently a mechanical foreman stated that on November 17 1979 at 3 am he was awakened by an explosion He looked outside and saw what appeared to be a piece of crockery laying outside the house and smelled gunpowder or explosives He went back to bed The following morning he investigat ed and saw damage to the front of his van 42 and a hole 6 to 8 inches square blown through a gate where he keeps trash cans There was a piece of pipe driven into a block of wood He called the sheriff's department re ported the incident and in response to an inquiry if anyone threatened him said Ernesto Arroyo was the only person who had been around Arroyo had come to Peterson s house before the strike but pursuant to invita tion About 2 weeks after the strike commenced Peter son asserts that Arroyo came to his house and talked to Arroyo s wife Peterson claims that his wife said Arroyo told her that there was danger for Peterson that his home might be destroyed or bombed or something might happen to his property Peterson did not directly refute Arroyo s claim that he went to Peterson s home several times before and after the strike uninvited and that he was historically hospitably received Bob Peterson was his foreman and he would borrow tools and Arroyo had fixed Peterson s car Arroyo and his wife and the Peter sons dined together both at restaurants and at Arroyo s home Arroyo admitted being at Peterson s home about 2 days before the explosion but denied making any threats against Peterson or his property and denied requesting Peterson not to work during the strike Arroyo stated that he does not have any knowledge about who caused the explosion Arroyo was not charged with any crimes in connection with the explosion Peterson discussed the incident with Ed Simovich Peterson s wife did not testi fy and the hearsay character of Peterson s testimony greatly diminishes its credibility Further attribution of involvement is also unwarranted based on Arroyo s unre futed testimony that Peterson and his wife socialized with Arroyo and his wife and unannounced visits to the Peterson residence were normal before the strike A few days after the explosion Arroyo went to Peter son s home mentioning that the sheriffs department had 42 A pit in the windshield 825 interviewed him According to Arroyo Peterson showed him all the damage and Peterson was laughing as if noth ing happened and said that nothing could be done about it Peterson did not controvert this testimony by Arroyo Other damage suffered by employees and supervisors who continued working during the strike included flat tires damage to the paint on vehicles eggs thrown at buildings and nails in the streets Harry Martin Keown also had two gunshots fired at his house The incident happened the evening after he quit his employment Keown stated he quit because of harassment by Steven Baugh and Joe Solis who repeatedly said very profane things to him and Steven Baugh would during the first week of the strike repeatedly say to him Harry your house is burning Harry your house is burning Baugh would also say I am the hit man and when Tom Si movich was present Baugh would say Tom we love you All we want is a contract Keown started working for Respondent about 2 weeks after Baugh in 1976 and exhibited a longstanding dislike for Baugh stating that Baugh had a reputation as a big mouth The second day of the strike Keown observed Baugh and an individual named Ernie obstruct the entry of a United Postal Service (UPS) truck and ask the driver to honor the picket line The driver left Another truckdriv er for Airborne an air freight delivery service was also prevented from entering the plant that day Keown re turned to work before the cessation of the strike Baugh and Solis were not arrested as a result of these alleged incidents and there was no showing that any strikers or union officials were implicated in the gunshot incident Charles B Davis a current employee of Champ who commenced employment in March 1977 and continued working through the strike had his car damaged in the company parking lot in November 1979 The car had pockmarks dust below his window and he noted rocks laying beside the car On another occasion he observed a forklift that he tried to start was missing the battery He then investigated further and saw that a drive tire on an other forklift was flat and that there was part of an ice pick sticking out of one of the drive tires The ice pick had no handle Another forklift had a battery missing Approximately 2 months after the strike commenced Davis found a pockmark on the side of his house and on further inspection saw a ball bearing on the ground He on two other occasions had holes in front windows of his house and after investigation found ball bearings He called the police and made a report but there were no arrests and no individual was identified as the perpetra tor Also the day after the first incident Davis reported the matter to A Shooter Davis asserted that several of the strikers threatened him He alleged that before the strike Ruben Gutierrez told me how could I work and watch my kids at the same time During the strike Ortiz called him profane names and Joe Solis threatened him stating you are dead you fat son of a bitch Ortiz also assertedly said We 11 get you and paybacks are a bitch Davis in terpreted this last statement to mean they would find some way to get him The witness noted that the strikers during picketing tried to impede ingress and egress to the 826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plant almost all the time and that the same group of ap proximately 10 strikers were most active in this regard He recognized among this group of active strikers Joe Solis Ruben Gutierrez Heriberto Valenzuela Jesus Moreno E Ortiz A Cortez and Ernesto Franco He could not recall what Moreno said or when he said it He does not know whether Heriberto Valenzuela ever threatened him Other damage sustained to his property during the strike was to his mother in law s car On one occasion nails were placed at the end of his driveway in the gutter stuck in cardboard which penetrated his mother in law s tire and caused a flat Davis denied doing anything that might provoke the pickets and stated he did not remember ever giving a finger to the pickets After further examination he ad mitted that he had a sign placed in his truck to be visible as he passed through the picket line which had a picture of a hand giving a finger The sign also referred to the UAW Davis also denied ever saying anything to the strikers As previously indicated the credited testimony was that employees who continued working during the strike did at times make profane or otherwise inflamma tory statements to the picketers Davis after stating he did nothing to provoke the pickets and then admitting that he had the sign placed in his window modified his testimony and stated he usually did not say things to the strikers as he was driving through which indicates that he had on occasion said things to the strikers He then testified that he just could not recall saying anything to them Subsequently after further examination he admit ted he did say things back to them occasionally he re called saying to go to hell He could not recall using any obscenities when he talked back to them Davis was never admonished by management regarding the sign in his van or his making statements to striking employees Representatives of management were stationed at the gates when employees were entering and leaving sup porting an inference that Respondent knew of Davis sign and some of his comments while crossing the picket line There was no explanation why the Company coun tenanced his sign while taking umbrage at what Re spondent classified as obscene gestures by stnking em ployees The witness inconsistencies in his responses does impair his credibility It is noted that Davis does not speak Spanish It is further noted that Davis approxi mated that 10 people were the same ones that consistent ly caused trouble According to the testimony of Richard Gerhardt who is currently a leadman in the welding shop objects were also thrown at six strike replacements early in the strike The six replacements were commencing work for the first time when they had bottles and other objects thrown at them Gerhardt could not see who hurled the objects because the picketers were on the other side of a wall There were about 15 pickets at the time and there was a lot of cursing yelling and other loud noise The language used again exceeded that of billingsgate The picket line activity of slowing ingress and egress the shouting and cursing and the use of expletives caused Gerhardt to stop crossing the street after the strike com menced during and in the course of business because he would have to walk through two picket lines On recross Gerhardt stated the replacements had worked for 2 days and then he stated they came out of personnel went across the street and worked the whole day He does not know whether they worked across the street He only saw them at the facility for 2 days and then no more He could not describe the car the six em ployees were allegedly using and he did not see them the day before the incident or any day before the incident Accordingly it is unexplained how he could have stated that they worked for only 2 days or inferred the basis for their departure was the improper activities of some of the striking employees Gerhardt s obvious bias war rants discrediting this testimony Lorenzo Rincon stated that at the time the strike com menced he was a fitter Rincon s position has not changed with the Company since the strike he is cur rently a leadman fitter Rincon observed the conduct of the pickets throughout most of the stnke He described their activities as engaging in a lot of swearing and curs ing and engaging in profane gestures After the picketers used the expletives eventually some of the employees would return the comments some of the time also using expletives occasionally one of the employees would hurl back some curses During the first week of the strike there were 50 to 60 picketers in front of the plant At some point not identified on the record an injunction was obtained which greatly diminished the number of picketers at each gate During the beginning of the strike the picketers would frequently touch cars as they entered or left the different entrances to the plant He saw Carlos Almaroz once lunge at a car and hit the rear windshield with his fist He thought Almaroz was going to break his hand he hit the car so hard Rincon s testimony was substantiated by Art Van Haasen who does not speak Spanish He noted that the pickets would use dirty words and obscene gestures so as to obstruct traffic The pickets he recognized were Frank Zamora Joe Solis Nicholas Diaz Ramon Rodriguez Fi liberto Ruiz Alberto Cortez Tony Andrade Carlos Al maroz and E Ortiz Van Haasen heard nonstrikers shouting the same expletives back at the strikers Van Haasen also stated contrary to the testimony of Davis that he never heard any shouting in English He could repeat at the trial several Spanish obscenities due to the frequency they were overheard during the strike Loren Peaslee also testified about an incident early in the strike when he and Cindy Van Haasen43 went shop ping for groceries in a market approximately 2 to 3 miles from the plant as part of a normal practice of making sandwiches in the afternoon After making their pur chases Peaslee and Cindy Van Haasen were returning to the car when according to Peaslee as he was getting into the vehicle an individual who worked at Champ said he was going to bomb Peaslee s car Peaslee did not know his first name he had to ask and was told it was Carlos Subsequently Peaslee indicated that he did not know the name of the individual who said he was going 43 Cynthia Van Haasen has been employed by Respondent as a pur chasing secretary for more than 2 1/2 years and is the daughter of Art Van Hansen CHAMP CORP to bomb the car but Cindy Van Haasen was the one who identified the individual Peaslee reported the incident to Arvilla Shooter Cynthia Van Haasen testified that she knew Carlos at the time of the incident from contacts before the strike Carlos Almaroz was the individual identified as the stnk er making the threat Carlos was approximately 15 to 20 feet away from her and she did not know exactly what Carlos said but from what she recalled it was something about bombing Loren Peaslee s car She knew Carlos was talking to Peaslee because he was looking at Peaslee She did not recall what Carlos was wearing She did not recall if he had a moustache or a beard and stated she was looking away when she heard something She was not looking at the individual but heard a statement about a bombing She did not hear exactly what Carlos said She further testified Shat she discussed the matter with Peaslee the day the incident occurred recalled it was during the strike an opined it occurred perhaps 2 months after the strike started No police reports were filed regarding the matter and no arrests were made Carlos Almaroz denied threatening Peaslee He recalled the incident stating that he saw both Cindy Van Haasen and Peaslee at a supermarket during the strike but just said hello to Peaslee Peaslee assertedly just waved his hand Cindy Van Haasen stated she did not see Peaslee wave his hand which is understandable because she also testified that she was not looking at them at the time Be cause of the statement that she was not looking at Peas lee and Almaroz it is confusing that she testified that Al maroz was talking to Peaslee because he was looking at Peaslee Almaroz stated he was shopping for food with his family and had his wife and children with him Another employee who worked throughout the strike Alfredo Cisneros 44 also stated that he was threatened while crossing the picket line The threats were that we were going to be sorry That we were going to be sorry because they were going to come and bother us at our homes Accused of making those statements by Cisneros were Joe Solis and another individual called the dog As previously indicated there was extensive use of nick names by employees The dog was subsequently iden tified as Eduardo Ortiz Other employees accused by Cisneros of making threats were individuals called the fireman and the female pig or sow When the little fireman was used as translation the witness said that that was incorrect but the only identification was of an individual called the little fireman who was later identified as Armando Escandon Jose Naranjo who is known as Pinky was also identified as having the nickname the sow Cisneros further stated that the pickets used profanity toward individuals crossing through the line Whether the individuals named were accused of using profanity only or of using profanity and threatening employees was unclear on the record When the pickets yelled at him Cisneros admitted to yelling back but he denied every calling them bad names or using profanity Rene Gonzales an employee at Champ since May 1978 who continued working through the strike as a 44 Cisneros operates a dull in the forklift department 827 welder testified similarly to Cisneros and appeared to commute to and from the plant with Cisneros He identi feed tho e strikers using profanity at times in a threaten mg manner as Carlos Jose Villavicencio pig Thomas Ortiz Ramon and others whom he could not recall at the moment He identified Carlos as an individual who had on a green T shirt Carlos Almaroz assertedly wore a green T shirt with great frequency during the strike Another incident that was the subject of testimony during the first week of the strike involved Freddie Val lejos who said he was performing his duties as a receiv ing clerks helper driving a forklift when a rock was thrown over a fence and hit the vehicle he was driving No one was identified as the perpetrator Another rock throwing incident as previously indicated involved an employee by the name of Frank Day According to Frederick Bruce Gary who at the commencement of the strike was employed by a guard service 45 he saw Ruben Gutierrez throw a rock which struck the right side near the rear portion of an automobile driven by Frank Day Gary took Gutierrez into custody and held him for the sheriffs department On cross examination Gary was shown his affidavit which stated that he saw a picket throw a piece of con crete at an employees car and that the rock struck the car The affidavit also asserted that as he knew the picket who threw the rock was Leroy Zook or Frank Day Gary admitted having read the affidavit before sub scribing to it and stated that the affidavit was wrong as serting that maybe it was transcribed wrong Because the affidavit was signed subsequent to transcription the evidence indicates that Gary s testimony is not credible This conclusion is buttressed by further testimony on cross examination where Gary admitted he never met Ruben Gutierrez at the time he claims Gutierrez threw the rock He never saw him before in his life As a matter of fact he could not recall who but someone told him at the time that it was Ruben Gutierrez who threw the rock He believes he was informed of the identity of the perpetrator the day after it occurred Gary claims that the identification was made when he described the individual who threw the rock Based on demeanor later admission that he does not know the true name of the individual who threw the rock or an object at an em ployee s vehicle and the unbelievable explanations and disparities between initial testimony affidavit and subse quent testimony Gary s testimony is found not credible 6 The events of October 17 1979 On October 17 1979 according to Baugh he was picketing at 2424 Troy Street with Ricky Craft and Jose Naranjo who is also known as Pinky Tom Simovich came out of the gate just north of the pickets passed 45 Gary was subsequently hired by Respondent as a truckdnver at a higher salary than he commanded as a guard working for Swale Guard Service since 1974 Gary commenced his employment with Respondent on December 12 1979 His rate of pay when he commenced his work for Champ was $6 an hour as a materials handling coordinator truckdriver About 3 months after he started he got an increase to $6 25 an hour And at the time of his testimony in February 1981 his salary was $6 85 an hour 828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD them then turned and called Pinky saying Pinky you might as well go home You don t work here any more Baugh then said What about me Tom? Tom Simovich assertedly replied You re fired too You might as well go home As he returned through the gates he again turned around and said If you stay here I in going to have you arrested Baugh inquired why they were fired but T Simovich kept going He did not reply Baugh told T Simovich that he still loved him that we just want a contract According to Jose Naranjo on October 17 1979 while picketing with Steve Baugh and Ricky Craft Tom Simovich came out of the plant and said Hey you You Pinky You got something in there? No sir Orange juice He said Okay be cause you never be back Oh really? You mean I am fired? Yes Okay thank you Then Steve Baugh asked Hey Tom what about me? Tom said You too Then he went into the plant and stopped and then told us You better go home otherwise I am going to put you in jail He does not know how come he said that All they were doing was walking the picket line He does not know why he was fired 46 Tom Simovich denies having any conversations with either Baugh or Naranjo during the first week of the strike Based on demeanor clarity of recollection and substantiation Tom Simovich s denial is not credited 7 The events occurring on October 19 1979 According to Ed Simovich on October 19 1979 the Company called the employees primarily the strikers to be present on that date in order to hand out the pay checks for the previous week s work A white line was painted across the driveway at the 2500 Rosemead Bou levard entrance to the plant behind which the employees were to congregate to receive their checks The assem bly was called only for employees who were not work ing on October 19 Larry Rincon was assigned to assist Ed Simovich in dispensing the checks Rincon had a checklist containing the names of the individuals that were to receive checks their names would be called the individual would step forward and they were required to sign for their checks It appears that shortly after company officials started disbursing the checks a red car entered the plant through the same driveway The vehi cle contained three or four individuals They were on the company premises to pick up Cindy Van Haasen Art Van Haasen s daughter One of the occupants of the car the driver Joe Sanchez was identified without refutation 46 Ricky Craft s version is that on October 17 Tom Simovich came out and he was walking down the street and he stopped and he told Pinky (Jose Naranjo) he said Pinky you may as well go home you are no longer working for me you have no business here anymore And he was starting to leave and Steve said Well what about me Tom) And he said You re fired too Steve you have no business here you may as well go and he start ed to leave and he stopped and says As a matter of fact if you stay here one more hour Ill have you arrested After that Steve Baugh told him We still love you Tom and all we want is a contract as Cindy Van Haasen s boyfriend It is noted that Cindy Van Haasen testified she was not asked any questions re garding the incident occurring on this date Joe Sanchez was never called as a witness The reason for these fail ures to testify about the events of the day was not prof fered It also appears that as was particularly common during the early phases of the strike the pickets started whistling and yelling at the occupants of the vehicle Al though the vehicle could turn around and exit with the vehicles facing forward the vehicle backed up and stopped in the driveway The occupants in the vehicle and the individuals waiting for their paychecks engaged in name calling and shouting Joe Sanchez and the other occupants of the vehicle got out and an altercation com menced Larry Rincon attempted to get Joe Sanchez back into the car but he pulled away At some point based on the credited testimony one or more of the oc cupants of the vehicle yelled Flores here come the Flores or something to that effect Then one of the oc cupants of the vehicle got into an altercation with Pedro Lopez and Lopez was stabbed The wound was extreme ly severe According to the testimony of Steven James Baugh Ed Simovich and Dick Rowe then saw the police coming up and told the occupants of the red vehi cle get the hell out of here With that the occupants jumped into the car including Cindy Van Haasen and left the scene There is no indication that the Company questioned Cindy Van Haasen about the incident Ed Simovich denies being present It is unrefuted that Simovich was disbursing the checks immediately before the incident Pedro Lopez recalls seeing Ed Simovich immediately before being stabbed There would be no basis for Ed Simovich to commence handing out the checks and then all of a sudden disappear Based on de meanor and inherent inconsistencies and probabilities Si movich s denial is not credited The stabbing incident as well as the melee in general was investigated by Deputy Gary Edward Stead who stated that Cindy Van Haasen was picked up by her boy friend who he believes was in the Marines and approxi mately two or three other Mexican individuals He also stated that at least two of the occupants of the vehicle were members of the Flores and that the occupants of the car told him that they were members of the El Monte Flores which was the gang described previously According to Deputy Sheriff Terhorst Jose Ruiz San chez and Freddie de la Cruz Vallejos were arrested in connection with the incident The investigation by Ter horst indicated that they were not involved in the stab bing and he wrote on the arrest report the word exon erated next to each of these names and informed either Tom or Ed Simovich that those individuals had been ex onerated in the stabbing An individual by the name of Michael Hurado was ultimately charged with the crime Joe Sanchez has subsequently been hired by Respondent His participation in the fracas apparently was not a bar to his employment as a replacement for striking employ ees Also arrested on October 19 was Jose Padilla who was accused of committing a battery in violation of sec tion 242 of the Penal Code by Darren Keith Finney a CHAMP CORP security officer Finney did not appear and testify Pa dilla stated that after observing Pedro Lopez being hurt he had a Polaroid camera and took three pictures in cluding one of the license plate of the red vehicle Pa dilla who is diminutive in stature being approximately 5 feet 7 inches tall and weighing about 157 pounds stated that the guard came to him and grabbed away the photo graph of the license plate without Padilla s permission When the guard took the picture out of Padilla s hand Padilla inadvertently bumped him with his elbow and yelled at him as he was running off with the picture that he should give the picture back According to Padilla s uncontroverted testimony the security officer at a later date indicated to him that he was sorry that he filed the charge and wanted to dismiss it The security officer Pa dilla observed went over to the district attorney indicat ing he did not want to proceed that he wanted to have the matter dismissed which it was Also arrested that day was Ramon Rodriguez Rodri guez was arrested for engaging in a fight with Freddie Vallejos According to Rodriguez Vallejos jumped him twice during the same melee in which Pedro Lopez was stabbed Vallejos admitted that he had a grudge against Rodriguez because he asserts Rodriguez on the first day of the strike kicked the side of Vallejos car as it was proceeding through the picket line Vallejos admitted strongly feeling the insult of the kicking of his car and he would see Rodriguez everyday screaming invective and profanity at him Rodriguez stated that he and Valle jos during the first week of the strike shouted at one an other frequently when Vallejos passed through the picket line Vallejos also admitted that his ire did build up and that he did tell Rodriguez that because he kicked his car he was going to get him He meant this as a per sonal threat to Rodriguez He also admitted that at one point Rincon and Rowe pulled Vallejos off Rodriguez and wanted him to cool it and he managed to go back and hit Rodriguez again The charges against both Valle jos and Rodriguez were dropped at the police station on October 19 1979 Larry Rincon stated that the only time he saw Valle jos was when four individuals were on top of him hold ing him down that he did not see Freddie Vallejos fight ing with anybody and that he did not pull Vallejos off Ramon Rodriguez He did not know whether Vallejos was arrested that day but he knew that Vallejos was currently working for the Company Rincon s version is so disparate of Vallejos where Vallejos admitted his cul pability in the matter that Rincon s testimony cannot be credited Vallejos was arrested approximately 2 months after the October 19 incident The second arrest was for trying to hit somebody with an ax handle Vallejos explained the incident as occurring after some unknown individual or individuals flattened all the tires of his vehicle with an ice pick and threw brake fluid all over the car He went to work the following day in a friend s vehicle and as they were driving into Champ their entry was obstruct ed and Eduardo Ortiz inquired where his car was Ortiz denied inquiring about the car Vallejos admitting that he was already quite irate rolled down the window and spit at Ortiz He then stated that Pinky Naranjo ap 829 proached the vehicle carrying a stick and hit the top of the hood not to make a dent but to let them know he had a stick Then when he walked toward Vallejos side Vallejos spit on Naranjo Vallejos thought he was going to be jabbed with the stick and since he had a hatchet in the vehicle because he made firewood out of dunnage he picked up the hatchet but stated he did not swing the ax at the man He was charged with brandishing a weapon but the charge was dropped He was also charged with spitting at the picketers which was a mis demeanor He was found guilty of the misdemeanor and was placed on probation He was verbally told after both the Ramon Rodriguez incident and the spitting and ax in cident to keep control of his temper He was never placed on probation or otherwise disciplined by the Em ployer for these activities In fact Vallejos received a promotion 8 The events of October 23 1979 and the granting of additional days off According to Tom Simovich on October 23 1979 he had a conversation with Sam Munoz in the morning Munoz was the head of a guard service that was en gaged to protect the plant with guard dogs the second day of the strike 47 Munoz averredly stated that the guards heard discussions the preceding evening among the picketers that there was a contract on Tom Simo vich s life No names of picketers or guards were asser tedly mentioned by Munoz Tom Simovich asked if any specific names were ascertained but was told it was just a general conversation The same day avers Tom Simovich Joe Solis twice threatened him The first asserted threat occurred in the morning in the driveway at the 2500 side of Rosemead Boulevard Loren Peaslee was also present Solis threat ened to kill Tom Simovich Peaslee corroborated this testimony stating that almost daily he walked with Tom Simovich and around Christmas 1979 just before the Christmas holidays he heard a conversation in the drive way where Joe Solis stated he wanted to talk to Tom Si movich Tom Simovich and Joe Solis engaged in a con versation for a minute or two while Peaslee remained about 6 feet distant According to Peaslee he could only hear partially what was being stated in the conversation but at one point Solis stated in a voice louder than that used during the rest of the conversation I will kill you Tom Simovich then turned around walked toward Peaslee and walked into Peaslee s office Peaslee stated that at that juncture Tom Simovich was quite pale The second threat according to Tom Simovich oc curred in the afternoon in the presence of his son Ed During the day of October 23 individuals were coming in for job interviews In response to such activities Solis stated I in going to kill you for hiring these other people to take our jobs According to Ed Simovich he observed Joe Solis at approximately 4 p in around quit ting time on October 23 standing at the gate at 2439 Ro 47 Munoz was still retained by the Company as of the date Tom Simo vich testified April 1 1981 Munoz did not appear and testify No reason for his failure to testify was advanced by any party 830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD semead which is in front of the main office Although other pickets were present only Joe Solis was in close proximity to Tom and Ed Simovich Ed and Tom Simo vich were preparing to open the gate in preparation for the employees departure According to Ed as Tom opened the gate Solis and another individual they had never seen before and who has not been identified here came up and told Tom that if he hired any more people to replace him that he was going to kill Tom Simovich As Tom Simovich was leaving the plant that day after 5 p in being the last person out of the plant he passed by Carlos Almaroz who had a rock in his hand Tom Si movich was proceeding very slowly out the gate and when he was proceeding down the driveway preparato ry to entering Rosemead Boulevard the pickets started getting close to his vehicle and calling him all kinds of names When Carlos Almaroz got within 10 feet of the car he threw the rock which struck the station wagon on the top bounced off the roof rack and went over to the oncoming traffic Tom stated he then stopped mo mentarily to see if anything else was being thrown at him He then proceeded to a phone booth and called the sheriff's department reporting the incidents that tran spired that day The following morning he made a full report of the incidents A guard observed the rock throwing incident Solis was not arrested for the alleged threats and no charges were filed against him for these alleged threats Solis denies making these threats Al maroz was charged with a violation of the Criminal Code for throwing the rock at Tom Simovich s car and according to Carlos Almaroz he was also charged be cause Nick Ianello claimed that he threw rocks at Ianel lo s car on the same day Almaroz denies throwing the rocks at both lanello s and Tom Simovich s vehicles and the charges were dropped based on improper identifica tion When Tom Simovich arrived home the evening of Oc tober 23 he immediately telephoned his son Ed to relate the particulars of what transpired after Ed Simo vich left the plant Tom Simovich opined that the vio lence was increasing rather than subsiding According to Tom Simovich before October 23 he had attempted to get Ralph Gazzigli to stop the violence but to no avail He felt that his meetings with both the sheriffs depart ment and Gazzigli resulted in no cooperation and also opined that Mary Garcia did everything she could to raise the tempo of the violence and nothing to quell it 48 Tom Simovich informed Ed Simovich that he decided to close the plant down for several days Tom Simovich be lieves the plant was closed for 3 or 4 days and the em ployees were paid for those days as authorized by Tom Simovich He authorized the payment of all employees during the closure because he felt that the violence was 48 It is noted that Tom Simovich is the only individual who indicated that Mary Garcia did anything to encourage violence or improper behav for on the part of the picketers even though there were a number of mdi viduals including Ed Simovich assigned to observe the picketers par ticularly during the commencement of work when the employees entered the plant and during the employees departure from the plant at the end of the workday It is further noted that no specific conduct on the part of Mary Garcia was described by Tom Simovich and therefore this allega tion is found to have no probative value about Mary Garcia s activities or about Gazzigli s activities during the stoke indicative of the situation being out of control and he de sired a cooling off period to avoid bloodshed He was aware of the fact that Pedro Lopez had been stabbed he knew that a great deal of destruction had occurred the women working at the office were getting phone calls which frightened them he stated the wives of employees were panic stricken because their husbands were threat ened and the wives lives were threatened therefore he desired a cooling off period 49 Tom Simovich in addition to calling the sheriffs de partment regarding the violence called the district attor ney the attorney generals office senators and congress men explaining that the violence had occurred at his plant According to Tom Simovich every branch of the Government except the sheriff's department poo poohed the whole thing they instructed him to sign the contract Tom Simovich then testified Now I in the last word here And here I am going to assume a re sponsibility of having something I ve worked for for 30 years plus the time 10 years prior to that building the plant that I ve got and having people killed which I couldn t replace anything of and the extreme violence that was going on here He stated he could not con verse with Gazzigh who did not give a damn except wanting to destroy you There s no point in carrying on a conversation with the man When asked what he meant by destroy Tom Simovich stated You-well Ill tell you right now Anybody that-now I ve been schooled with Lockheed Air craft and I know what rights basically I have- which is very little-and I know what rights the union has Okay? I know that I can t tell a man he s fired I don t-I have no right to fire a man without due cause or due warning I know that when I fire a man that I must give him a written notice I must give him his check within the day and I must give him any benefit that he s got coming Now in my particular case I m running this plant I m not looking for any trouble And I don t want any trou ble I ve run this plant for 30 years I ve never had any trouble before I ve never had anybody destroy my plant I ve never had any employee to spit on a vehicle I ve never had an employee challenge another employee in my plant I ve never had an employee challenge 49 The damage detailed by Tom Simovich leading to his decision to close the plant after October 23 for several days included tires be rig slashed rotten eggs being thrown nails being placed in front of the plant damage to the homes and private vehicles of office and other personnel damage to vehicles and property owned by Respondent the activities of the picketers preventing ingress and egress by standing in front of vehi Iles and shouting at the drivers and other occupants threatening one food truckdriver that if he sold food on the plant s property his truck would experience some flat tires and would be smashed and other food trucks were not allowed to enter the property some of the employees who were continuing working during the strike wanted to challenge the strikers because of the bad language being shouted by the strikers the contamination of the gasoline tanks an individual being struck by a bottle a confrontation with Gazzigli which he felt that Gazzigli did not have any control over his people and his feeling that the duly constitut ed authorities were either uninterested or unable to give sufficient protec tion to permit continued operation of the plant CHAMP CORP 831 my people at their homes and destroy their equip ment and threaten their lives I ve had a harmonious plant We know one thing and if you don t know it now you never will The object of the union is to get a closed shop and dues paid If they don t get that-that s what they re after If they don t get that the only [thing] left is destroy to submission- til you submit That s a rule of thumb And I know that And as far as I am concerned I am trying to get along with people I don t care whether all my people belong to the union That s their prerogative I have no concern if they go to church on Sunday or if they don t go to church on Sunday what they conduct themselves and their family or how their children conduct themselves at school I in only interested in one thing That s harmony And if my people want to join the union and pay dues that s their prerogative If a man wants to walk a picket line all day long that s his prerogative I know that For me to tell a man that he can t walk a picket line is stupid For me to tell a man he s fired because he walks a picket line that s stupid You know that It s foolish to even ask me that question And I ve been subject to something that anybody in his common sense would never have been sub jected to trying to run a business as a law abiding businessman I have got hell And I am telling you I know Let me tell you this I know that when a man threatens me and has created violence in my Plant and threatened other employees to vote for a union-and have come to me and told me this-and I ve checked on his record and I see that he has a record of what Mr Solis has that I in concerned When a man tells me he is going to kill me that has had at least seven or eight charges-whether he is taken or not and you and I know the judicial system in our country stinks-now when a man has those charges that I know about and he threatens my life I in concerned You re damn well I in con cerned When Tom Simovich determined to close the plant for 3 days in October he did not notify the Union He stated he did not think it was any of their business Tom Simo vich also closed the plant down again in November 1979 for 4 days during the Thanksgiving holiday period which was contrary to normal practice and did pay the employees for an extra holiday that was not previously accorded them He does not think he notified the Union that the plant was going to be closed in November He stated he did not think it was any of their business Also during the Christmas and New Year s period the plant was closed down for 3 or 4 days and the employ ees were paid for a holiday not previously accorded them He did not notify the Union of the shutdown or that the employees were going to be paid for those days because they didn t cooperate with me When asked what the lack of cooperation constituted it was defined as the Union s failure to control the violence and Gaz zigh stating he did not condone it and walking away in dicating to Tom Simovich that he did not give a damn and just wanted to destroy the Company as previously discussed Ed Simovich confirmed his father s testimony that the plant was closed for 3 days in October as well as the Friday after Thanksgiving in November and December 25 which were not normal holidays and that the non striking employees were paid for those holidays Ed Si movich also confirmed that the Union was not notified of the company closings on those dates On November 19 1979 a notice to all nonstriking em ployees signed by Tom Simovich announced that in ad dition to the Thanksgiving holiday November 22 the plant would be closed Friday and Saturday November 23 and 24 for managements convenience and that the employees would be paid the 8 hours for Friday No vember 23 The notice also stated The existing labor dispute is now entering its sixth week At this time the management would like to express its thanks to the employees who have con tinued to work through this difficult period for their loyalty and support The management of Champ is well aware of the inconveniences that you have endured during the strike and is most appreci ative We are committed to doing all possible to ensure the welfare of our loyal employees Only through your continued diligence and perseverance will we overcome this obstacle and all prosper The notice concluded that all the employees could use a rest from the pressures of the strike indicated a need for improved production and expressed the hope that the rest afforded by the additional days off would permit the employees to return with a new vigor On December 17 1979 a similar letter or notice was distributed to all employees by Tom Simovich announcing that in addition to the plant being closed on December 25 that they will also have a plant shutdown on December 24 for the sake of managements convenience The announcement stated that the employees would be paid a straight 8 hours wages for both Monday December 24 and Tues day December 25 Ed Simovich explained his father s wording that convenience of management meant that the supervisors were extremely tired from the stresses of the strike and it was determined that they needed effec tive supervision to avoid safety problems Therefore they decided to give their employees an additional rest those holidays Ed Simovich also recalls on October 23 receiving a phone call from one of the guard services stating that there was going to be a gang war at the plant There was a police meeting about it sometime during the early phases of the strike Finally Ed Simo vich confirmed that when his father called him on Octo ber 23 he stated he was in fear for his life that he wanted Ed Simovich to call various people to notify the employees that they were not going to be open for the next several days and that he also checked on some places where they could purchase bullet proof vests and that they wanted the managers to wear such vests It was for these reasons that Tom Simovich stated to his 832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD son that he was going to shut the plant down to permit a cooling off period It is uncontroverted that these addi tional holidays were not heretofore granted to the em ployees and it was clearly admitted that the Union was not informed of the granting of these additional paid holidays The Company further admitted that ordinarily there were six paid holidays New Year s Day Memorial Day Fourth of July Labor Day Thanksgiving and Christ mas Other incidents relating to the decision to add additional paid vacation days for nonstriking employees According to Gazzigli dunng the December 12 negotiation session at the Saddleback Inn Ed Hoy in addition to discussing vandalism and property damage inquired if the Union would accept an additional holiday on December 24 Gazzigli stated in reply that he was not going to put the Union in a position of piecemealing the economic pro posals The Union wanted to look at the entire economic package and would not agree to a proposal of only one item related thereto Hoy then inquired if Gazzigli was rejecting it to which Gazzigli replied yes he could con sider it rejected According to Gazzigh Hoy also men tioned during this meeting that the Company had rein stated or rehired enough employees 110 that they did not feel they needed to take any strikers back to work 50 Gazzigli noticed that the plant was closed an addition al day for Thanksgiving and knew that the day after Thanksgiving was not a normal paid holiday He also noted that the employees subsequently got additional days after Christmas and New Year s The Company did not notify the Union of these additional holidays During the December 12 meeting he did not know that the holi days were paid for by the Company and were additional vacation days Gazzigli asserted that during a membership meeting of December 31 his view of the Company s actions changed when Mickey Lambright whose father still worked for the Respondent was informed by his father that the em ployees were paid for the added day given the nonstrik ing employees the day after Thanksgiving Mickey Lam bright obtained his father s check stub At the meeting they also discussed the fact that the plant had been closed for an additional day around Christmas Gazzigli informed the members at the December 31 union meet ing that he considered it an unfair labor practice for the Company to unilaterally grant additional holidays during the course of negotiations without negotiating the change with the Union the certified bargaining agent After explaining the position of the Union that additional holidays were considered unfair labor practice issues Gazzigli requested the membership to vote on whether they wanted to make that unfair labor practice question one of the strike issues The membership passed the motion making as a part of the strike issues the fact that the Company effectuated unilateral changes in working conditions by granting additional holidays with pay 10 As will be stated hereinafter Frank Zamora and Ricky Craft testi fled that this statement by Hoy regarding the 110 current employees was made by Hoy during a negotiating session on January 8 This discrepancy in testimony is found insufficient to affect credibility without prior negotiations with the Union The vote was again taken by a call of hands Gazzigh also stated that during the January 23 negoti ating session the granting of additional holidays was spe cifically discussed Gazzigli assertedly asked Hoy if the additional days after Thanksgiving and dunng the Christ mas and New Year s period were granted as paid vaca tions Hoy was averred to have said no that they were not that the plant was closed those days for production reasons only 51 Baugh corroborated Gazzigli s testimony regarding the December 12 negotiating session stating that the Compa ny had offered another holiday the day after Christmas as an additional holiday He stated Gazzigli replied that it could not be accepted without the entire economic proposal which they had not yet received so Hoy re plied that he was going to tell his people that the Union had rejected the offer and then Hoy left the room 52 Baugh also said that subsequent to December 12 there were discussions about additional holidays but he could not recall the exact dates He opined that the discussions would have occurred after Christmas Because Hoy ad mitted that during the December 12 negotiating session he asked if there were any objections to making Decem ber 24 a paid recognized holiday to which Gazzigli ob jected the testimony of Gazzigli is credited It is found that the question of the creation of additional paid holi days without negotiating with the Union became a strike issue pursuant to the vote of the members on December 31 1979 Other matters also discussed dunng the Decem ber meeting included the ongoing discussion about vio lence seniority for bargaining unit people dues checkoff and management rights Very few economic issues were discussed They had not reached that point in the negoti ations according to Hoy even though the Company did raise the issue of additional holidays Hoy did not testify specifically regarding the January negotiating sessions 9 The events of October 25 and related events of October 31 and November 5 1979 According to Ralph Gazzigli on or about October 25 1979 he received a telephone call from Hoy requesting that just the two of them meet and attempt to identify the major problems preventing them from consummating a contract The meeting was conducted at Hobo Joe s Restaurant which is approximately a mile away from Respondents plant It was held at approximately 4 30 p in According to Gazzigli Well I asked him what the-what the reason for the meeting was He [Hoy] said 5 It was also during the January 8 or 23 meetings that Ed Simovich s car had some effluent poured on it that ruined the paint on the car Gaz zigli stated that he felt rather badly about it expressed sympathy and asked if he could be of assistance to give Ed a ride or something to which Ed Simovich replied no that he was going to a gas station to have the car fixed or towed Hoy testified that it was dunng the December 12 meeting that Ed Simovich s car had a corrosive effluent poured on it The discrepancies in dates are deemed insufficient to affect credibility resolutions 2 Also according to Baugh during the same meeting that was attend ed by Gazzigli Zamora Manny Avalos and himself for the Union and Hoy and Ed Simovich for the Company they discussed property damage that the Company ascribed culpability for the damage to the Union and the Union disagreed with the ascription CHAMP CORP 833 that the employer had given him a list of five people and that-he stated very adamantly that these five people were-would never be rehired or reinstated under any conditions circumstances by Champ Corpo ration Hoy specifically stated that the list contained the names of people management-specifically Tom Simo vich-stated would not be rehired The five names listed were Steven Baugh Roberto Valenzuela Joe Solis Ruben Gutierrez and Eduardo Ortiz ss Gazzigli inquired of Hoy exactly why these five people were being singled out and Hoy responded that they were characterized as troublemakers that Steven Baugh was extremely vocal and loud making a lot of noise screaming and yelling that they were all consid ered troublemakers and that they might have been the perpetrators of the vandalism or property damage expert enced by the Company and some of its employees Gaz zigh requested specific statements of wrongdoing and whether there were any arrests or formal charges against them Hoy said no but as far as Tom Simovich was con cerned the listed individuals were troublemakers they had merely been dubbed troublemakers or agitators and Hoy had been instructed that they would not be hired or returned to work under any circumstances Gazzigli claims that he responded that there was no way that he could negotiate or agree to single out any person or persons as subject to having their jobs negoti ated away by the union representative He also stated that problems such as vandalism or property damage could be handled by the police and pursued through the courts not on the basis of negotiations He told Hoy that he should tell his employer-meaning Tom Simovich- that he could not negotiate on the basis of certain people not being reinstated Gazzigli did visit the picket line before the meeting of October 25 and he heard the pickets addressing obscene ties to individuals passing through the picket line Most of the obscenities were in Spanish some of which he knew but he does not speak Spanish well He also saw pickets engaging in obscene gestures some of which he did not understand He also noted on two occasions that he heard thumping sounds as cars would pass through the picket line and saw on several occasions Ed Simo vich and some guards sweeping nails out of the driveway before cars would leave in the afternoon He believes the Company swept the driveways every day During the meeting of October 25 at Hobo Joe s he recalled Hoy making a statement that the Company had suffered $80 000 in property damage mentioning truck tires being flattened a bomb being exploded on company property which damaged a door Also someone had their foot broken but the circumstances surrounding this injury were not described He does not recall if the Company was closed for several days Edmund Hoy remembered the meeting in a slightly different light from Gazzigh Hoy admitted it was his idea to have the meeting to discuss the problems that were keeping the Company and the Union apart Hoy identified the Company s chief concern as the inclusion as It is noted that Gazzigh referred to Roberto Valenzuela but Valen zuela s first name is Heriberto of management rights language in the agreement and characterized the Union s major concern as a dues checkoff provision Gazzigli was also assertedly very concerned about a union security clause Hoy also claimed that he and Gazzigli discussed the violence that was occurring since the commencement of the strike There was mention that the executives and some supervi sors were wearing bulletproof vests According to Hoy Gazzigli acknowledged that the extent of the violence was unfortunate and that he would do everything he could to have his people realize that the violence was not going to assist them in accomplishing their goal but stated that there were some people he could not commit nicate with or control and mentioned by name Steven Baugh and Joe Solis Hoy admitted discussing with Gazzigli the fact that the Company had concerns regarding particular employ ees who participated in the strike who were trying to thwart ingress and egress of vehicles pounding their fists on cars scaring female secretarial staff members using abusive language and mentioned by name Baugh Solis Ortiz and Gutierrez He could not recall some of the other names but he stated that he was given a list of indi viduals by Tom Simovich on a small piece of paper and that the list included about six names but all he could remember were Baugh Solis Ortiz and Guiterrez The list was given to him on the premises of the Company before the meeting at Hobo Joe s and the list was hand written Tom Simovich gave him the list but he had no idea where Tom got the list before it was handed to him When Tom Simovich handed him the list according to Hoy Tom stated it was a list of the names of people who were causing many problems on the picket line and that he would like Hoy to consider that these individuals were part of the negotiations for the strikers to return to work on two grounds (1) to see if Ralph Gazzigli could have these people act in a nonviolent and nonthreatening manner and (2) if there was to be a contract concluded at this time he would prefer that these people not come back to the Company There was then a discussion of how the strikers would be reinstated those replaced would be placed on a preferential hiring list and those strikers whose jobs were not filled by replacements could return to work on ratification of the new contract Tom Simovich also stated to Hoy that the people on the list had behaved in a violent manner to him and others and that was the explanation for their inclusion on the list but that he could not recall with specificity due to the passage of time what the allegations were involv ing those individuals Hoy subsequently modified his tes timony saying he could not recall whether Tom Simo vich at the time he gave Hoy the list stated with specs ficity why particular individuals were included on the list He also could not recall any mention of the individ uals on the list being arrested Hoy also stated that he showed the list to Gazzigli but he could not remember the specifics of the discussion about each individual or the mentioning of particular acts of violence such as pounding on vehicles or the use of profanity He did recall Gazzegh inquiring if Hoy s statement was the position of Tom Simovich or the 834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Company and was told it was the position of the Com pany and that Tom Simovich was the general manager Hoy could not recollect if Gazzigli stated he wanted all the strikers reinstated on consummation of the contract but Hoy considered the Company s position on the manner of reinstatement a typical subject of negotiation in those cases where there have been strikes with attend ant violence 54 Tom Simovich55 admitted that early in the strike he mentioned a few names of particular strikers to Ed Hoy that he thought Hoy should know about The names were mentioned because Tom Simovich felt the people particularly Gutierrez Solis and Baugh as well as ap proximately three others he could not recall continuous ly created a great deal of violence and were responsible for maintaining the tempo of the strike On cross ex animation his mind was a blank about the conversation he had with Hoy about certain violent strikers including Gutierrez Solis and Baugh He then stated the conver sation occurred near the end of the strike that there were actually two conversations at the end of the strike one telephonic and the other on a direct person to person basis In this later conversation Tom Simovich claimed he told Hoy that he was concerned about a number of people who in his opinion were very violent including Baugh Solis Gutierrez Ortiz and at least two others because if they were brought back to the plant there might be an uprising He would rather bring back what he considered good people He stated the only way he could make a profit was for him to maintain harmony among his employees and that reinstating the agitators could create confrontations which he did not want be sa Hoy later testified that he had the list in his hands during the meet ing but does not recall showing the list to Gazzigli He later stated that he did not know who actually wrote the list that it did contain five or six names but he had no idea why the names were on the list He did again assert that Tom Simovich gave him the list but did not say why the names were on the list This is somewhat different from his prior testimo ny that Tom Simovich stated that these individuals were violent and the Company would like to have an agreement that they would not be rein stated The prior testimony was more responsive directly to the questions and based on demeanor candor and inherent probabil ty the earlier tes timony is credited A further basis for not crediting the modifications in testimony is the affidavit of Hoy which was dated March 18 1980 and stated The two of us were alone Gazzigli told me that once a contract was consummated he said that he would want the sinking employees to be reinstated to their former jobs I told him that I would have a problem with those employees that had been on strike that had criminal charges against them at this time for causing damage to em ployee and company property and for carrying concealed weapons Gazzigli said that he understood this I told Gazzigli that those em ployees with criminal charges I had a problem with that we would have to talk reinstatement when they did not have criminal charges pending It was understood that if the criminal charges were cleared up against the employees there would be no problem with reinstat ing the employees If the company and union reached an agreement on reinstating the strikers I said that I had a list of the strikers that had charges against them that had been obtained from the sheriffs department Hoy stated that his affidavit was not accurate as a rendition of the facts but that it was an accurate rendition of the affidavit He denies stating to Gazzigli during the meeting that these employees had criminal charges against them It is noted that Hoy s statement in his affidavit is more closely aligned to Respondents actions than his testimony further dis crediting his testimony as The testimony of Tom Simovich is presented sequentially as given at trial to assist in making credibility resolutions cause he must pay through Social Security benefits and he did not want to see anyone getting hurt Tom Simo vich denied telling Hoy that he did not want the people back at the plant stating that he knew that he did not have that right but merely gave Hoy the information A couple of days later they had a face to face discussion at the office where he told Hoy that he considered the listed individuals or the named individuals violent and was concerned with their return to the plant because they could cause an uprising and that he wanted the UAW or the National Labor Relations Board responsi ble for any uprising because they were requesting that he bring those people back he did not want the respon sibility for the confrontation Tom Simovich then flatly denied giving Hoy a list of names Considering the de meanor the inherent inconsistencies in Tom Simovich s testimony the admission against interest of Hoy that such a list was in fact given to him and he did discuss it with Gazzigh and Gazzigh s testimony lead me to con elude that on October 25 such a list was presented to Gazzigli and the individuals named there were consid ered as potentially unreinstateable employees and that further the named employees being deemed unreinstatea ble were being in fact terminated by the Company Approximately a week after the October 25 meeting on or about October 31 1979 there was a negotiating session at a location designated as T J s Restaurant Present for the Union were Gazzigh Frank Zamora Steven Baugh and John Gresko Present for the Compa ny were Ed Simovich and Edmund Hoy Also present was Commissioner 0 Sullivan from the Federal Media tion Board According to Gazzigli Hoy announced that the Employers position had changed in that as far as the Company was concerned the questions of economics and contract language were secondary to the issues deriva tive from the strike such as property damage and vandal ism and that they did not want to continue negotiating in the current atmosphere of violence Gazzigli claims he responded that the UAW had taken many steps to in struct the strikers that vandalism property damage or similar activities would do nothing to enhance their ne gotiating position and would in fact be very detrimental to their chances of obtaining a contract It is noted that Hoy admitted that Gazzigli indicated that he would get an individual to assist him with the Spanish speaking strikers and that from that meeting on Mary Garcia was frequently present on the picket line as well as Gazzigli Mary Garcia is fluent in Spanish Gazzigli explained to the company negotiating team that the Union had gone to great lengths to talk to the strikers at meetings before the strike to make them aware of the fact that if they did create problems such as vandalism property damage or physical intimidation they would be subject to arrest and would be on their own without the backing of the Union At that point according to Gazzigli Hoy again wanted to present the list of names that had been dis cussed at the October 25 meeting which Gazzigli char acterized as listing individuals the Company would not take back under any circumstances Gazzigh asserts that Hoy said that whether they came to an agreement or whether the strike ended the Company would not take CHAMP CORP 835 the listed individuals back Hoy wanted to present the list to him across the table but Gazzigli cautioned Hoy that he felt such an act would change the entire mood of negotiations Gazzigli also asserts he told Hoy that the union negotiating committee would not and could not negotiate away an individual s job Gazzigh then suggest ed that Hoy keep the list and if the individuals named there had been the genesis of problems the Company should go to the authorities report the problems and have the duly constituted authorities resolve the difficul ties through the courts At that juncture the commissioner had the two parties separate for caucuses talking individually to the parties During the commissioners talk with the Union he mdi cated that the Company was still adamant about the ces sation of violence Gazzigli indicated he claims to the commissioner that he understood the Company s position but that regarding the list he felt it was a very bad move to put the list on the table that the list he had seen contained the name of one of the union bargaining committee members and that if the list was placed on the table it would totally disrupt the mood of the negoti ations According to Gazzigli the list was never formal ly presented or passed across the table Baugh corroborates Gazzigli s testimony stating that Hoy said he had a list of people who would under no circumstances work for Champ Corporation again and he wanted to present the list to Gazzigli but Gazzigli re fused Gazzigli according to Baugh stated that he was negotiating for all employees At that time Hoy asser tedly withdrew the list or said he was not going to present it at that time but laid it down on the table and Baugh noticed several names Joe Solis himself and Lorenzo Franco There were others but he could not recall them at the time of his testimony 56 Hoy stated that the October 31 negotiating session did contain exten sive discussions on the increasing violence but could not recall anything other than certain areas of violence and specific individuals that the Company felt were causing problems being discussed at that session Hoy s failure to remember other specific details is insufficient to refute the allegations of Gazzigli and Baugh which cojoined with the prior credibility findings require the conclusion that the list of names was a matter discussed during the October 31 negotiating session and that Baugh saw the list On November 5 the Union conducted a membership meeting about 11 a in at the Carpenters Hall in El Monte California which was held in order to pay strike benefits Present for the bargaining committee in addi tion to Gazzigli and Mary Garcia were Frank Zamora Steven Baugh and John Gresko Approximately 50 to 55 strikers were also present According to Gazzigli the purpose of the meeting was to report on the negotiations and it was their practice to have weekly meetings to inform the strikers of the negotiations to date and to de termine which problems were transpiring while at the 56 Francisco Zamora testified that he could not recall any list being mentioned at the meeting However Zamora s inability to recall many of the details of the meeting plus the fact that he was not named on the list renders his lack of corroboration inadequate to refute the testimony of Gazzigli and Baugh same time paying the strikers their strike benefits Also according to Gazzigli the strikers raised several ques tions during the meeting Some strikers heard or were told that they were fired or had to leave the picket line or that they might just as well leave the picket line be cause they would not be reinstated that they were never going to work at Champ again Also raised during the meeting was the fact that the Company had presented the negotiating committee with a list Steven Baugh said he saw the list and noted that his name was on the list which the Company wanted to present at the negotiating session held on October 31 Baugh also mentioned that he had been told by Tom Si movich that he was fired along with Jose (Pinky) Nar anjo and that Tom Simovich also told him he might as well go home that they were fired and they were not going to go back to work for him Joe Solis and Eduardo Ortiz also related that they were told that they might as well go home that their picketing was futile and they would never again work for Champ Corpora tion Gazzigli informed the members that he had taken a position during the negotiations that he was negotiating for everybody and they would not agree to single out in dividuals as not being returnable to work A motion was made from the floor that the membership support that position According to Gazzigh a vote was taken and passed unanimously The ballot was by formal showing of hands not a written ballot In addition to Gazzigli whose rendition is credited based on demeanor and clar ity of recollection Ricky Lynn Craft Francisco Zamora and Steven Baugh also testified similarly about what oc curred during the November 5 meeting Craft and Baugh specifically corroborated Gazzigli s rendition of the meeting stating that there was a vote by a show of hands addressed to the issue of whether everybody with held their services until all were returned to work Zamora also stated that at the November 5 meeting it was discussed that the Company would not accept sev era] strikers back under any condition It is noted that Respondent objected to Gazzigli s testi mony about the November 5 meeting because it was hearsay and it was not accepted for the truth of the matter asserted There was no such objection however to the testimony of Steven Baugh which also contained the facts asserted by Gazzigli Accordingly credibility resolutions will not be altered due to the objection According to Zamora at a January 8 negotiating ses sion Hoy mentioned the strike and the violence attendant there and stated that under no circumstances could sev eral strikers ever be returned back to work that the Company had 110 employees that they wanted to keep and unless there was a big layoff he could not see taking some of the strikers back According to Zamora also present during that January 8 negotiating session at the Saddleback Inn were Gazzigh Baugh John Gresko Ricky Craft and himself Present for the Company were Hoy and Ed Simovich Zamora could not recall if any of the strikers names were mentioned Gazzigli asserts the Company stated its position that the Employer had re placed the strikers and they really did not need a con tract that they did not need the strikers back that they 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were operating without them and that some had been permanently replaced or that all had been permanently replaced There were no strikers specifically mentioned during the meeting Ricky Craft attended the January 8 negotiating meet ing and confirms Zamora s version that the Company stated they had 110 employees that there were no job openings at that time and that they were not going to take anyone back After the meeting Craft asserts with out contradiction he went back to the picket line to tell the strikers what had occurred at the meeting Craft did not testify about the reaction of those employees 10 The events of October 29 1979 On October 29 1979 Carlos Almaroz was charged with throwing a rock at Nick Ianello s vehicle This alle gation has been discussed previously Almaroz did not recall that he allegedly threw the rock on October 29 at Nick Ianello s vehicle rather it is asserted that he was accused of throwing the rock on the same day he was accused of throwing the rock at Tom Simovich s car which was October 23 Larry Larson as well as the offs cial charges filed against him asserts that the rock was thrown on October 29 The disparity in dates is not out come determinative As previously indicated Larson stated he saw Carlos Almaroz throw a rock that hit the passenger door of Nick Ianello s car as the car was leav ing the company premises on October 29 at approximate ly 4 30 p in Larson claims he told Ed Simovich and Ar villa Shooter about the incident the following morning and had a conversation with Nick lanello who said he was going to file charges Larson did appear in court on the matter pursuant to a subpoena and the charges were dismissed for inadequate identification 11 The events of October 30 1979 On October 30 1979 Champ Corporation under the signature of Tom Simovich mailed a letter with a Span ish translation to the homes of all employees that were either on strike or on a leave of absence or in some other manner not at work on that date The letter states as fol lows We have been waiting patiently for you to return to your job and we shall continue to do so until Friday morning November 2 at 8 a in If you choose to keep your job drive in the gate where the guards are jsut south of the company s main office and go to the personnel office-you will be put to work immediately There is plenty of work and CHAMP will continue to operate! If you choose not to return to your job you may Lose Your Job Entirely! The company is not con tinuing the health and life insurance of persons not working-if you want to keep your health and life insurance protection for you and your family you may do so by calling (213) 444-9561 for instruc tions We do hope that you will give very careful con sideration to this opportunity and to your future and return to work now' 12 The events of November 2 1979 Manuel Oscar Avalos testified that on November 2 Tom Simovich walked over to him and Ernesto Franco57 while they were picketing He [Tom Simovich] asked me [Avalos] when are we coming back to work if we decide to go back to work we can do anytime we want me and Ernie and Tony Andrade and his helper and some other guys I cannot remember their names right now I tell him we cannot go inside because we are waiting to make a deal in the contract The idea is everyone go back to work The other way nobody has got a plan to go back He say if we decide to go back to work without union he can offer some benefits That is what he [Tom Simovich] say At the time Eddie Ortiz is walking in the street and he [Tom Simovich] say I like those guys I say to go back to work but this man [Eddie Ortiz] I don t like him to go back because he is a trouble maker Ernesto Franco testified similarly He stated that Tom Simovich came up to him and Avalos while they were picketing on the sidewalk and said He was going to choose the people who were coming back to work He said he was not going to sign the contract because after the strike when the people came back to work there was going to be a revolution and a massacre 58 He said he had given us benefits before we brought the union in and now that the union was representing us he did not want to give us benefits He had 32 years with the company doing what he wants and now the union would not tell him what to do and he did not want anything to do with the union Ss He said he was going to choose the employ ees only the good workers and not the troublemak ers He told us we can go back to work that we was good workers He said he was not going to sign the contract between employees and strikers and employees who don t come out to the strike can be a revolution and a massacre At that time was driving up a striker Fecundo 60 He [Ed Simovich] point and he said he was a troublemaker Tom Simovich denied having any conversations with Manuel Avalos and stated that Ernesto Franco does not speak English Based on the relaxed persuasive demeanor of Avalos and Franco the corroborative nature of their 57 Manuel Avalos testified in English Ernesto Franco needed the as sistance of a translator although he exhibited a fair grasp of English by responding to some questions without translation Therefore the question of understanding is not in issue 58 It is noted that this statement is consistent with statements made by Tom Simovich in the portions quoted before regarding the decision to close the plant in October November December and January 69 Again this is similar to previous statements made by Tom Simovich as related above 60 Fecundo was subsequently identified as Eduardo Ortiz CHAMP CORP testimony compared to the unconvincing demeanor of Tom Simovich the testimony of Avalos and Franco has been credited 13 The events of November 5 1979 On November 5 1979 Deputy Sheriff Gary Edward Stead had occasion to go to Champ Corporation and file a complaint report in response to an allegation of vandal ism that Eduardo Ortiz struck Bob Peterson s van as it was entering Respondents property Robert Peterson asserts that he was coming to work in his personal Dodge van accompanied by his son Keith Peterson and two Chinese fellows Hen Lai and an individual whose name he did not recall He entered the driveway and as he proceeded slowly through the drive way his vehicle was struck at the left top portion near the passengers side with a picket sign carried by Eduardo Ortiz Peterson said there were two or three other pickets present but he did not recognize them In his testimony Peterson asserts that the incident occurred in an alleyway 200 feet south of Champ property In an affidavit given by Peterson on May 27 1980 which he signed and to the best of his recollection was correct he stated that the incident where Ortiz allegedly hit his van which he believed occurred in January happened at the entrance to 2500 North Rosemead Other discrepan cies between the testimony and the affidavit is that in the affidavit he claimed there were six or seven pickets present whereas he testified that two or three other pick ets were present Another inconsistency is that he initial ly claimed that he reported the Ortiz incident to the sheriff's department but did not press charges because he considered the incident insignificant Subsequently in his testimony he stated that he did not call the police they were already on the property The police report stated that contrary to his testimony the victim [Peterson] wanted to arrest the suspect for the offense but he was afraid of retaliation by the other pickets Peterson testi feed that he had a poor memory Ortiz asserts that the incident occurred because as Peterson s vehicle entered the driveway at the main gate it came very close to him As he jumped back his sign moved forward and struck the van Ortiz claims that the cardboard portion struck the van not the wood portion Ortiz was not taken into custody because of this event Based on demeanor the numerous inconsistencies in Peterson s testimony as de tailed above and Peterson s admitted lack of clear recol lection his testimony is not credited 14 The events of November 9 1979 On November 9 1979 a blue and white Chevrolet which was entering the plant at the 2500 North Rose mead gate struck Alberto Cortez When it departed shortly thereafter it struck Zamora on the left side Nei ther individual was disabled because of the event Cortez says he was struck by a pickup truck in the main driveway at 2500 Rosemead at or about 7 30 a in He estimates that the vehicle was going about 10 to 15 miles per hour stopped and then hit the accelerator again The driver was an individual known as the eagle later identified as Victor Castonguay Two 837 guards were also present at the time the incident oc curred Ortiz was taken to the hospital by ambulance and apparently had only abrasions the X rays were negative There was no indication that Castonguay was arrested or otherwise disciplined According to Castonguay Ortiz came up and hit my pickup and fell down The guard just grabbed him and drug him out of the way Castonguay claims Ortiz was standing off to the right of the vehicle when he stopped in the driveway pursuant to directions given by one of the guards standing at the gate After the vehicle stopped Ortiz allegedly came up and hit it and then fell down under it He believes Ortiz hit the vehicle with his knee and faked an incident Castonguay could not see what Ortiz bumped with his knee because he could not see in front of the vehicle and he does not recall if Ortiz screamed as he fell Castonguay just awaited the guard s dragging Ortiz out of the way The guard then mo tioned him through One guard dragged Ortiz away while another gestured that Castonguay should proceed slowly through the line Present in addition to the guards were sheriff's deputies but he could not clearly ascertain who was present with all the commotion Sub sequently in his testimony Castonguay stated that the guard did motion the pickets to move out of the way of his vehicle that the pickets then moved out of his way Then he stated that the pickets did not move when they were told to clear a pathway for his vehicle Castonguay again altered his testimony by saying that the guard dust waited until there was an opening and then motioned him in through the line which was when they jumped in front then they would halt him again Castonguay did not exude candor in his testimony and the modifica bons and inconsistencies contained there impair his credi bility 15 The events of November 10 1979 Early in the morning on November 10 1979 Deputy Sheriff Daryl Goodwin was assigned by Sergeant McKeon during the morning briefing to watch the 2500 Rosemead location of Respondent because information had been received that there were going to be problems that morning McKeon directed Goodwin to go to that location and park directly across the street thereby posse bly avoiding any problems that might apse Goodwin was accompanied by Deputies Ballinger Gloyd and Barden They arrived at the assigned location about 7 10 a in in two marked cars The picketers across the street waived to them and Goodwin returned the greeting In addition to these two cars there was a car driven by Deputy Martin and a fourth vehicle occupied by Ser geant McKeon The cars were parked between 50 and 80 feet away from the picketers the distance was not clear ly stated by Goodwin The vehicles were parked across the street from the picketers Rosemead Boulevard has a center divider that contains small bushes as well as palm trees as high as 15 to 20 feet but Goodwin states that the majority of the shrubbery is 1 to 1 1/2 feet tall He stayed in his car during the entire period of observation which lasted from 7 10 to 7 40 a in He observed Valen zuela on five separate occasions block the path of vehi 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Iles attempting to ente- the driveway at 2500 Rosemead Boulevard On one occasion Valenzuela was seen to stand on the front bumper of a maroon Chrysler and bounce up and down on the bumper On another occa sion Valenzuela assertedly laid across the front hood of a passenger vehicle He observed four other individuals also obstructing entry onto the plant s premises Accordingly Goodwin decided at approximately 740 a in that he was going to arrest the five striking employees The five individuals arrested were Heriberto Valenzuela Ernesto Arroyo Eduardo Ortiz Ruben Gutierrez and Javier Olague The charge noted on the arrest report as completed by Daryl Goodwin was obstruction of a thoroughfare section 647(c) of the Penal Code of the State of California He does not know what has occurred regarding the disposi tion of the charges filed by him against these five mdi viduals on November 10 1979 Goodwin did not partici pate in any court proceedings to determine whether the persons were guilty of the alleged charges The five individuals arrested denied committing any wrongdoing noting that the deputies were watching them and they did in fact wave at the deputies Valen zuela asserts that not only was he guiltless of any viola tion of law but that immediately before his arrest he was struck by a car and thought the police were coming in response to that incident and tried to explain to the policeman but was not permitted to speak The car struck him on his left leg close to the knee with the bumper but he did not receive any medical care because he was not permitted to speak to the police After he was struck he approached the police he asserts to give them a report of what occurred but was informed he was arrested and was not permitted to speak thereafter Olague corroborates Valenzuela s testimony Olague esti mates that the police were approximately 300 yards dis tant at the time of their observation Goodwin did admit that they were sufficiently distant and their view suffi ciently obstructed that they could not get any license numbers of the cars entering at the 2500 Rosemead Bou levard gate Ortiz testified that he did not know why he was arrested but he thinks it was for obstructing the street Arroyo was also confused about why he was ar rested He felt he was arrested all of a sudden because they did not tell him or explain to him why he was being arrested but merely took him to the police station and locked him up He still does not know why he was ar rested but did go to court on December 3 1980 and was told that he was free to go that there were no charges against him Olague Ortiz Gutierrez and Valenzuela Arroyo asserts that he was not picketing at the time that he was merely putting on his picket sign Arroyo s testi mony is not extremely credible because he stated he did not do any picketing between 7 and 8 45 a m when he stated he was arrested Because that was the time that the employees came to work it does not appear logical that he would be standing by a lunch truck for 1 hour and 45 minutes Accordingly his testimony on thi,, point is not credited Gutierrez also denied any wrongdoing when he was picketing on November 10 before being arrested Gutier rez complained that frequently he was hit by a vehicle or an individual during picket duty tours He stated he was hit on two or three occasions while picketing The first occasion was while he was picketing during the nonstnk ing employees departure in the afternoon Someone was speaking to him in English and he turned to face the other direction when he was struck in the face with a hand or a fist The fist struck him on the left side ap proximately between the cheekbone and the jaw He does not know the individuals name He believes it is Scotto but knows the individual only by sight Gutierrez also asserts that the truckdnver Gary hit him in the hand with the truck and he pushed off the truck with his forearm The third time he asserts he was hit was when he was walking in the same location as he was when he was struck by the truck driven by Gary and he was hit by a worker whose name he does not know but whom he described as being tall and thin The worker wanted to depart the premises quickly and was in the station wagon which struck him on the right hip The police made a report because they saw it He was not so injured as to require medical treatment Shortly after the November incidents according to Hoy Company representatives and union representatives met at the Temple City sheriffs substation Present for the Company were Tom and Ed Simovich as well as Hoy and possibly Art Van Haasen Present for the Union were Ralph Gazzigli and Frank Zamora Present for the sheriffs department he believes were Sergeant Wil hams Terhorst and Captain Butler The police recount ed the violence that had occurred up to that date and in dicated they were having difficulty keeping the violence at a minimum and weighing the rights of the strikers They did agree on a new method of communicating with the sheriff's department which Hoy considered an im provement and they also worked out a means of moni toring the situation at the start and end of work A marked police vehicle would try to be present at the start and end of each workday to mitigate violence but there was no guarantee of continuing police protection According to the testimony of Valenzuela regarding the November 10 incident Gazzigli had instructed the strik ers that they were to picket in an orderly manner and were not allowed to engage in any physical violence None of the five employee strikers were found guilty and the charges were dismissed 16 The events of November 27 1979 On November 27 1979 Joe Solis assertedly threatened an applicant for employment with Respondent named Donald Coolbirth According to Ed Simovich both he and his father Tom were escorting Coolbirth to his van after an interview for employment The van was parked in a company lot The Company kept the gates locked during the workday so Ed Simovich opened the gate to permit Coolbirth to leave the premises After the gate was opened he was directing Coolbirth out of the drive way Tom Simovich was standing on the sidewalk to as certain if any traffic was coming According to Ed Simo vich as the van was about one quarter to one half of the way outside the gate Solis approached the van and said to Coolbirth Hey buddy if you come to work I in CHAMP CORP going to blow you up with a bomb Tom Simovich cor roborated his son s testimony Tom Simovich told his son that he was going to call the police or sheriff's de partment Solis according to Tom Simovich did not touch the van in any manner nor did any of the other pickets According to Solis he was picketing on November 27 in front of 2500 Rosemead along with 10 other strikers when about 4 p m Tom Simovich told the picketers to shut up and that if they did not get out of the way he was going to have the picketers arrested The picketers then started hollering that they wanted a contract at which point Tom Simovich assertedly pointed toward Solis and said he was going to have Solis arrested within half an hour Solis claims he replied go ahead and call the cops all I want is a contract Solis further asserts that approximately 10 minutes later Sergeant Williams drove up parked his car sat there for about 10 minutes waved at Solis and then left Subsequently Solis then went to the Troy Street portion of the facility when an individual identified as Jose ap proached him to tell him that the police were looking for him to arrest him Solis inquired what for and Jose stated he did not know Solis therefore went home and stated he called the police department from his residence and told them where he was if they wished to call him or talk to him He was requested to call the police back in half an hour which he did and was informed he was not wanted Solis then went to Colorado because his brother died When he returned from Colorado he was arrested on the evening of December 6 As Solis under stood it the police stated that Tom Simovich claimed he had threatened somebody with a bomb Solis informed the police that Tom Simovich was sick but the police said they had to take him in After he was booked and remained in jail for a week he was released Solis was arrested for terrorism and was held in jail on $50 000 bail Subsequently according to Ed Simovich the day before he was to appear in court he received a call from Deputy Rechschlaffen and was told that they could not locate Coolbirth The charges were dropped against Solis Solis denies making the threat He did say that he told the replacement to respect the p cket line that they were on strike Solis composed some documents in the preparation of his testimony which were introduced by Respondent The documents reflect that Solis wife received bomb threats which were reported to the police department Ed Simovich stated that also in November Solis told his father Tom Simovich Tell your dad we don t want a contract anymore All we want is for the company to go broke Ed Simovich also noted that there was an other incident in December approximately the middle of the month involving Solis It is asserted that early in the morning Solis stood in the street next to the cab of a tractor trailer that was present to pick up a forklift truck at Troy Street between the parts department and the service department Ed Simovich claims he heard Solis say something to the effect that if he [the truckdriver] picked up the forklift he was going to bomb his cab or truck Ed Simovich does not recall who the supplier was No charges were filed regarding this incident and 839 the failure to file charges was unexplained Another as serted incident involving Solis and Ed Simovich oc curred in February or March 1980 when Solis was stand mg near the gates of the parts department on Troy Street at approximately 5 p in Bruce Gary was also present As Ed Simovich was closing the gate Solis told him Don t bother locking the gate It wont do you any good We are going to tear the place apart s i Other re ports made to Ed Simovich regarding Solis include an allegation by Victor Castonguay in the middle of March 1980 that Solis had tried to run him off the road with his truck Roberto Corona reported to Ed Simovich that Joe Solis had tried to run him off the road on the San Ber nardino Freeway and did pull him over and threaten him Corona also asserted that Jose Villavicencio was riding with Solis There was no explanation about why no complaint was filed regarding this incident Another allegation concerning Solis is contained in the testimony of Robert Peterson currently mechanical fore man for Respondent who saw a vehicle he identified as Solis parked in a manner that it blocked access to an al leyway frequently used by Champ employees on their way to work There was only one incident during the strike where the vehicle blocked the alleyway 17 The events of November 28 or 29 1979 Ed Simovich avers that he saw Ramon Rodriguez engage in threatening conduct on two specific instances The first occurred around November 28 1979 at ap proximately 7 15 to 7 30 a in when the cars were enter ing the main gate at 2500 Rosemead before commencing work Rodriguez assertedly was picketing in front of the gate and slammed his fist down on the hood of a car driven by an employee named John Hong Ed Simovich claims that he could see a dent on the right side of the hood where the fist smashed there Rodriguez also asser tedly slapped the side of the car with his open hand Rodriguez admits hitting the car but stated it was not done on purpose but rather as an attempt to avoid being injured He stated that the white Catalina automobile being driven by Hong hit him and as he tried to regain his balance so he would not fall back he struck the car He testified that the car hit him on the side of his leg about calf level Rodriguez claims that he would not merely stand in the driveway because the employees would pass through the driveway at a very high rate of speed at times not waiting for the pickets to finish their walk across the driveway He stated that in order to regain his balance he placed both hands on the hood palms down which did make a noise as if he was stnk ing it He also stated he called the police but they would not come and later on he told the sergeant who took a report The injury he received did not require him to go to the hospital Apparently no arrests or convictions re sulted from these incidents November 28 was also the date that Victor Caston guay s vehicle was damaged by a bomb and David Coro P 61 Ed Simovich also recalled the incident before discussed where Loren Peaslee told Ed Simovich that Solis had threatened to kill Tom Simovich when Peaslee was present on or about October 23 J 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nado assertedly spit in his face as he was coming to work Castonguay was also the source of a report that Solis jumped up on his hood pounded on his vehicle but the date of the incident was not stated Castonguay reported the incident to Ed Simovich because he was in structed to notify the Company of any incidents 62 Cas tonguay further claimed that Solis tried to run him off the road on Rosemead Boulevard swerving into him There was no contact Castonguay was forced to pull all the way over to the right curb lane and stop Also ac cording to Ed Simovich he received a report from Ly Hen that some unidentified individuals yelled at him at a stop light and then threw a full can of fluid at him Hen called the police but there was no ascription to striking employees and Hen did not testify Another event that allegedly occurred in November was that Arturo Nieblas said that Jose Villavicencio threw a rock at his vehicle 63 Villavicencio denies any culpability in the occurrences stating he never threw any rocks never saw anyone throw rocks but admitted getting a letter from the police which contained the alle gation that he had thrown rocks at the vehicle He denies ever throwing any rocks or seeing anyone throw any rocks during the strike It is noted that November 29 1979 was the date the police were notified that the 40-foot shipping container had been destroyed by fire and about 50 percent of the contents corrugated cardboard were also destroyed by the fire Also in November the car of Charles Lee Davis was damaged while parked in the parking lot Some rocks were laying beside the car and there were pock marks just below the window of his car It was alleged by William Gustaf Koskela that sometime in November while driving to work with Nick Ianello Ruben Gutier rez threw a rock trying to hit the vehicle and the rock actually struck the vehicle This matter has been dis cussed before but certain events are included in this dis cussion of occurrences during November so that the events that assertedly occurred during the stake can be kept in perspective 18 The events of December 1 or 4 1979 Eduardo Ortiz stated that the second time he was ar rested was either December 1 or 4 when an individual he referred to as the Cuchillo 64 who was later identified as Roberto Corona came out of the plant and pointed to him Tom Simovich and a policeman who Ortiz regarded as a friend of Tom Simovich were present They then handcuffed him According to Sheriffs Deputy Terhorst Ortiz was charged with kicking Roberto Corona s vehi cle and thereby damaging it Ortiz did not know why he was being arrested on December 1 or 4 but he was 62 This answer was given only after being pressed on cross-examina tion He initially replied that he reported the incident to Ed Simovich be cause he did not want people pounding on his pickup The witness ap peared to lack a modicum of candor in his response 63 The Company claims that Villavicencio was in Solis vehicle at the time Solis assertedly ran Roberto Corona off the San Bernardino Free way and after causing Gorona to stop on the side of the freeway got out of their vehicle and threatened Corona Villavicencio denies knowing an employee named Roberto Corona 64 Translated as the knife handcuffed walked inside the company property taken to a car which was inside the company property and then transported to the Temple City station where he re mained for about 6 hours Neither Corona or Tom Simo vich testified about the matter According to Ortiz unre futed testimony Roberto Corona was nicknamed the knife because he was hired as a replacement employee during the strike and always carried a stiletto or large knife which he occasionally showed the picketers by lift ing his jacket when passing through the picket line 19 The events of December 14 1979 On or about December 14 1979 Baugh Ramon Ro driguez Eduardo Ortiz and Lorenzo Franco were pick eting at the 2424 Rosemead Boulevard location Larry Larson came out with a forklift with which he was car rying a frame to be loaded on a truck parked on the street According to Baugh as they were walking along the sidewalk Larson said Get out of my way or Ill run over you The picketers kept walking at their normal pace Baugh asserts when Larson accelerated the forklift and stepped on the brake like he was attempting to hit them Baugh asserts that the picketers jumped out of the way and Larson proceeded and placed the frame on the truck Larson then assertedly returned to get an other load which was a forklift canopy and as he was again coming out the same gate he dropped the canopy and two individuals were almost hit these picketers were very upset and wanted to make a police report The police department was contacted and they talked to an officer about the incident The record does not contain any evidence regarding a complaint being filed or charges being brought against Larson Therefore it is concluded that no such actions were taken by any of the involved parties Larson asserts that the incident occurred on or about December 15 1979 when he was attempting to load a Mitchell Brothers carrier with a forklift rail and canopy The Mitchell Brothers driver parked on the street and there were pickets present at the time Eduardo Ortiz and Jose Naranjo were the only two he could recall at the time of his testimony The four or five pickets present at the time he proceeded to load the rail yelled profanity at him The picketers also attempted to ob struct his path in the driveway but he continued to move forward with his forklift and the pickets moved out of his way as he approached with the forklift He stated that his maximum speed while driving the forklift was 1 to 2 miles an hour Larson denied rapidly accelerating the forklift at the time he was driving through the picket line and he denied threatening to hit the pickets with the forklift He did ask the pickets to move He opined that forklifts are incapable of rapid acceleration Larson in formed both Arvilla Shooter and Ed Simovich of the in cident Based on demeanor clarity of recollection Lar son s admission that he was proceeding without any plan to stop in the event that he endangered the pickets well being that to stop would cause the material being trans ported on the forklift to fall off and cause added danger as did occur and inherent inconsistencies in his testimo ny his testimony is not credited CHAMP CORP 20 The incidents of December 15 1979 On December 15 Joe Solis was picketing at the Troy Street entrance with approximately 10 other individuals including Frank Zamora Steve Baugh and Ricky Craft While picketing a truck drove up to take delivery of a forklift Baugh and Solis informed the driver that they were on strike and asked because the truckdriver was a union member why he did not respect the picket line According to Solis the truckdriver exhibited consterna tion about what course of action he should take and stated he was going to telephone his superior for quid ance The truckdriver left his vehicle went into the office came back and told Tom Simovich he was not going to take delivery of the forklift Solis asserts that Tom Simovich got very angry and said that all the pick eters present were fired that they would never have jobs again Simovich then assertedly pointed at Solis and told him Solis I guarantee you I in going to send you to jail for 5 years and 3 years at the least Baugh corrobo rated Solis testimony Tom Simovich did not expressly deny the allegation According to Tom Simovich Solis among others including Ortiz would tell individuals at tempting to pick up products that they best move on if they did not want their trucks destroyed but there was no indication that he actually heard them make such threats The truckdnvers or other representatives of these companies that were attempting to pick up Champ products did not testify and no explanation was ad vanced for their absence 21 Other incidents occurring in December As previously indicated Frederick Bruce Gary left his employment with the guard service and commenced working for Respondent on December 12 1979 Accord ing to Gary during December 1979 through January 1980 Eduardo Ortiz threatened him by stating that it would not be long before Ortiz would get Gary and make sure Gary would not be able to come back to work Gary also alleged that he was familiar with Steve Baugh s automobile and saw the automobile following him when he was leaving the plant to make a delivery one day He asserted that Steve Baugh followed him on two occasions Steve Baugh admitted following Gary but there was no indication that there were any overt threats by Baugh directed at Gary by these actions Fur ther Gary asserts that in January Ramon Rodriguez said that he was going to pin him down to the street and beat him up 65 Gary admitted that at the time of the incident he had never previously met Ramon Rodriguez or worked with him He was told that the individual was Ramon Rodriguez but could not remember when he was told this it could have been a week after the incident He was shown a picture of Rodriguez and was asked to identify the individual pictured It was the only picture shown him In his affidavit given May 27 1980 Gary stated that Ramon Castillo was the one who threatened him Gary testified that was a true statement When asked the name of the individual he stated that the pic 55 Gary was not sure whether the threat was made in December or January 841 ture he identified with Ed Simovich was Ramon Rodri guez Ed Simovich stated it was Ramon Rodriguez When asked why he identified the individual as Ramon Castillo he accused counsel for the General Counsel of making a mistake in the affidavit even though Gary ad mitted reading through the document when he signed it and he is now testifying that Ramon Rodriguez was the proper identification The demeanor of Gary did not exude trustworthiness The manner in which identifica tion was made including the uncertainty about name lends little or no credibility to Gary s testimony and it is so found Other events recorded by Deputy Sheriff Stead in De cember are as follows On December 11 1979 an em ployee named Shuey was stabbed in the parking lot at the 2439 address no arrests were made and no clear identification of the perpetrator received There was an unsubstantiated allegation that the assailant was a friend or relative of Ramon Rodriguez Also during the month of December Deputy Sheriff Terhorst drove to the Re spondent s premises in a van which contained a smoked glass window in order to monitor activities He was able to observe the picketers and noted two occasions when cars were stopped and had to wait approximately 5 to 10 seconds in order for the pickets to clear the driveway He observed Eduardo Ortiz bang on a fender and appear to shout at people inside the car The second day he again noted the pickets slowing ingress into the plant but he did not recall Ortiz being there the second morning There was no indication that Terhorst communicated this information to Respondent therefore it will not be relied on in reaching a decision here Rene Gonzales who commenced employment with the Company on May 8 1978 and continued working throughout the strike stated that in December he had an occasion to park his car three blocks from the Company because he caught a ride there with another man to ensure that his car did not sustain damage At one point he did notice that a tire on his vehicle was punctured sugar was placed in his gas tank and acid was applied to the paint Also in December on or about December 10 one of the guards asserted that he was challenged to a fight and actually engaged in fisticuffs with some uniden tified picket Richard Gerhardt the leadman in the welding shop stated that on December 15 he reported damage to his son in law s car There were nail holes in the sides of the tires but he never personally saw any nails or tacks in the driveways to the plant or on Rosemead Boulevard Also in December as previously discussed Charles Lee Davis reported that his home was damaged 22 The events of January 4 1980 Ed Simovich alleges that at quitting time on January 4 1980 he observed Armando Escandon kick and hit the driver s side of a car with his fist The car was driven by Carlos Lopez He also recalled Escandon taking a wad of money on two or three occasions unfold it in front of the window of a car as it was leaving the plant and run it through his fingers and show it to Ed Simovich Ed 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Simovich could not recall what Escandon said at that point 66 23 The events of January 8 1980 As previously discussed on January 8 1980 there was a negotiating session attended by Ed Simovich and Ed Hoy for the Employer and Gazzigli Zamora Gresko Baugh and Craft for the Union The strike was discussed and Hoy stated as the position for the Employer that the Company had replaced the strikers that they did not really need a contract that they did not need the strikers back and that they were operating with permanent re placements Specific strikers were not mentioned Also discussed was Hoy s request to submit language to the Union that would hold the Union liable for any property damage incurred during the course of the agreement Gazzigh stated that he did not think the Union would agree to such terms but they would consider such a sub mission and he would forward it to the Union s legal de partment for review Hoy did not have a written propos al to submit at that time but said the Company was very adamant that something had to be included in the manner of indemnification if there was ever going to be an agreement After the meeting Craft and Baugh went to the picket line to inform the strikers of what transpired during the negotiating session Both Baugh and Craft observed Tom Simovich threatening Solis with arrest and a jail sen tence According to Solis he was picketing in front of Respondents offices on Rosemead Boulevard when Tom Simovtch escorted two replacement employees through the picket line and after leaving company property in formed the replacements to come back later Solis and several of the other picketers were attempting to per suade the replacements to honor the picket line Solis had known one of the individuals from 2 years before the incident when they were working for Champ and placed a hand on his shoulder while they were talking Tom Simovich started hollering at them at that junc ture stating To get out of the way or he was going to have all of us arrested The picketers then assertedly started hollering stating they wanted a contract Tom Simovich then said according to Solis that the strikers did not have a union and that all the strikers will never come back to work again at Champ It is also claimed that at some juncture that is unclear in the testimony Tom Simovich told Solis that he was going to jail right then Solis inquired why that he did not do anything 66 After having his memory refreshed from a notebook that he kept dunng the stoke he averred that on January 16 Armando Escandon dared Roberto Corona to get out of a vehicle and fight Simovich claims that he observed the conflict on January 16 but had no recollection about when he entered the allegation into the diary Furthermore Roberto Corona did not testify in corroboration of this testimony and there was no further explanation regarding the genesis of the incident or whether it actually resulted in fisticuffs It is noted that Escandon when he testified needed the services of a translator although he did exhibit some compre hension of English Escandon testified he does not speak English but does understand a little English Ed Simovtch indicated in his testimony that he could not speak Spanish He did not explain how he understood what Escandon said to Coronado The lack of corroboration without explana tion and the unexplained understanding of the conversation cojoined with the other reasons warrant the finding that Ed Simovich s testimony is not credible Then he turned to the replacements and asked if he as saulted them or in any way injured them and the individ ual that he had known previously shook his head no Be cause Tom Simovich had told Arvilla Shooter to call the police the police arrived in two vehicles and Tom Simo vich pointed at Solis and told the policemen to take him in to make sure that they took him in Solis told the police that Tom Simovich was sick that he s crazy that Solis did not do anything to the replacements The po licemen then separated Stmovtch and Solis and talked to them individually Tom Simovich then left the area after stating to the police that they should make sure to take Solis in The police asked Solis for identification he complied and was never arrested in connection with this incident According to Craft who gave a very clear and con wincing rendition of the incident it was after Solis placed his hand on a replacements shoulder while trying to cajole him to honor the picket line that Tom Simovich yelled Okay you ve done it you ve assaulted the man He then yelled at someone inside Craft was not sure who to call the police Solis then turned to the striker replacement and inquired if they were just talk ing and the guy shook his head yes Approximately 20 minutes later two police cars came and the policemen talked to Solis and Tom Simovich and then informed all the pickets that they were just going to file a report The police also informed Tom Simovich that if the strike re placements wanted to file charges they were to go to the police station in the morning Tom Simovich and Joe Solis then got into a little argument wherein Tom Simo vich told Solis I know more about you than you your self and next week you re going to jail for five years three years minimum Solis got pretty angry at that juncture and used the language of Billingsgate in stating his point of view to Tom Simovich Baugh also heard Tom Simovich tell Solis he was going to go to jail for 5 years Baugh further asserts that Tom Simovich then turned around and said to him that if he stayed there he was going to be arrested too As previously indicated the testimony of Craft as corroborated by Baugh and Solis is credited 24 The events of January 16 and 17 1980 On January 16 or 17 Richard Gerhardt currently leadman in the welding shop reported to Ed Simovich that as he was driving out of the driveway at the plant Eduardo Ortiz spit on him through the window 67 Ger hardt testified that the incident occurred on November 30 1979 at 4 30 p in as he was riding with his son in law and another individual It is asserted by Gerhardt that as they were coming out of the driveway waiting for traffic to clear Ortiz who was standing about 2 feet away from the car shouted profanity at them and then spat at Gerhardt The spittle landed on Gerhardt s shoul der The traffic cleared at that point so Gerhardt s son in law pulled into traffic and they proceeded home The 67 As previously indicated Ed Simovich also reported that Armando Escandon dared Roberto Corona to get out of his vehicle and fight on January 16 CHAMP CORP 843 following day Gerhardt notified the guard and pressed charges against Ortiz He was instructed when the slier iff's deputies came that he Gerhardt had to place Ortiz under citizens arrest for assault which Gerhardt did After Gerhardt placed Ortiz under citizens arrest the sheriff handcuffed Ortiz searched him and placed him in the back of the car He told Ed Simovich about the Ortiz incident that Ortiz was arrested At the time Ger hardt testified the matter was still pending and there had been no disposition of the charges at the close of this proceeding According to Ortiz he was arrested twice on January 17 The first incident occurred at approximately 10 a in while he was picketing Ortiz asserts that on January 16 he saw Gerhardt in a large passenger car with three other individuals proceeding slowly down the driveway He noticed Gerhardt trying to collect saliva in his mouth and then start to draw the sides of his mouth together pursing his lips preparatory to spitting Ortiz claims to have seen Gerhardt previously attempt sometimes suc cessfully to spit at picketers While Gerhardt was pre paring to spit he was rolling the window down so Ortiz leaned forward in order to catch the spittle on his chest which he did Then he claims he stepped back and spit at Gerhardt in return The driver then stepped on the gas and kept going The incident was observed by a guard and a police officer According to Ortiz the guard turned to the police officer after Ortiz spit at Gerhardt and said did you see that The police officer indicated that there was nothing wrong and he was not arrested that day The following morning Gerhardt approached him accompanied by one police officer and arrested him Gerhardt stated that this was a citizens arrest Ortiz did not say anything No basis for the arrest was stated until after he was placed in a police car and the officer in quired why he spit in Gerhardt s face Ortiz replied that it was because Gerhardt tried to spit in Ortiz face 68 According to Art Van Haasen who was assigned to stand at the gates at the close of the day to assist the em ployees in making their egress from the plant he had stated that if employees opened windows some of the picketers would spit in their faces He never saw a picket spit in the face of any employee but he saw them try and in particular he saw Eduardo Ortiz try to spit in an employees face The car involved at that time was Arturo Nieblas car he believes or at least the employee involved was Arturo Nieblas He could not recall wheth er it was Nieblas car He did not see the Gerhardt mci dent Ortiz was taken to the Temple City Police Station and remained there until 2 or 3 p m 69 Before being released according to Ortiz the police inquired if he was going to return to the picket line and he responded in the affirmative The sheriffs deputies then informed him that it was okay for him to leave Ortiz was picked up at the police station by Mary Garcia and Frank Zamora who took him back to the picket line about 3 p in he told them that he felt that the police were going to arrest him again because of the questions they asked him before his release According to Deputy Sheriff Thomas Gordon at ap proximately 4 30 p in he was assigned to work a security detail at Respondents plant pursuant to a directive issued by Sgt Williams who stated that there had previously been an arrest at the plant that day and there was the potential for further problems occurring at the Company About three units had been assigned this security detail and they parked about 50 feet south of the main drive way on the east side of the street They exited their vehi Iles in order to view the picket line activity 70 After ob serving the activity for about half an hour to an hour they noted that as employees exited the plant the pickets engaged in a lot of yelling and were standing or jumping in front of cars as they started to move A lot of the yell ing was in Spanish but there were obscenities shouted in English He effected two arrests that day He arrested Eduardo Ortiz and Ramon Rodriguez for disturbing the peace Gordon asserts that Ortiz yelled expletives yelled get out of the car and yelled that he would kick a posterior Rodriguez assertedly made similar statements Further he claims he saw Ortiz stand in front of a yellow Pinto and while yelling obscenities pounded on the hood of the Pinto with both his hands with the palms open Con currently he asserts Rodriguez was standing in front of the same car pounding on the right front fender and hood with his left fist 71 Gordon stated that he cannot recall any representa tives of the Company being present at the time of these events They failed to get the name or identity of the driver of the yellow Pinto but were assured by a security guard that a company official would subsequently supply that information The arrest report indicated that Gordon was advised by Deputy Stead of possible trouble at the plant because one of the strikers had been arrested earlier that date but he does not believe he knew it was Ortiz who had been arrested nor does he recall being aware that it was a striker who was arrested According to Ortiz before being arrested the second time he saw a police car across the street approximately 200 to 300 feet away parked behind a palm tree Subse quently there was another police car parked in the alley near the 2500 Rosemead Boulevard entrance Suddenly the police cars came and Sergeant Williams was present 9e It is noted that Gerhardt stated Ortiz spit and it hit his shoulder 69 Two individuals that Ortiz saw spat on were Jose Naranjo and Carlos Almaroz He saw Vallejos spitting at Naranjo and an individual by the name of David spitting on Carlos Almaroz Based on this testimo ny it is possible that he did not see Gerhardt personally spitting at other people before the incident but because of the difficulties in translating the numerous incidents testified to the record is unclear if Ortiz specifi tally saw Gerhardt spitting on another individual before the incident of January 16 70 It should be noted that the testimony involving the prior security detail described above did not exit their vehicles for viewing the picket line 71 The officer asserts that Ortiz made a threat about further difficulties arising out of the arrest including blowing up a car However this threat was never included in the arrest report and no charges were brought re garding the threat There was no indication that the company officials were ever told of the alleged threat Accordingly this allegation will not be considered in reaching a decision here 844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gordon testified that Williams was not present Ortiz clearly remembers the presence of two police cars and that they arrested Ramon Rodriguez and himself Ramon asked why and the police told him to get in the car twisted his hand and pushed him into the vehicle They then called to Ortiz and stated that he too was under arrest He inquired why and discussed the matter with Williams Ortiz asserts that he knew Williams because at the commencement of the strike Williams instructed him that he did not want any problems and that to avoid problems he was not to touch a car or a person or else he would go to jail Ortiz again claiming that he antici pated being arrested for a second time that day kept his arms folded in order to comply with these prior instruc tions of not touching anybody or any vehicle to avoid getting into trouble He told Frank Zamora and Mary Garcia that while he picketed he was going to do it in a manner where his arms were crossed in front of him so that they would have to arrest him for doing nothing Ortiz claims that Tom Simovich was in the area at the time of the arrest telling the police to also pick up Mary Garcia and Frank Zamora Ortiz described Tom Simo vich as yelling like a cheerleader clapping his hands while they were being arrested 72 The arrest of Ramon Rodriguez was the second arrest of this picketer during the course of the strike 73 Rodri guez version of the January 17 incident is that he was taking his turn at picketing on that date with approxi mately 8 to 10 colleagues Also present were Tom Simo vich Tom Simovich Jr and two or three officers and security guards At one juncture in the picketing Tom Simovich accused him of hitting a car and then the police arrived and arrested him Tom Simovich told the police several times to pick him up stating that he had hit a car that he kicked a car Rodriguez denied even having the facility to kick a car because at the time he was wearing tennis shoes which would have precluded that type of activity 74 He also related an incident where two individuals were exiting the plant in a Chevrolet sta tion wagon and they stopped the vehicle Both occu pants of the vehicle had beer in their hands and stated 72 Ortiz further denied being accused of throwing rocks at any em ployees in January 1980 and denies ever throwing rocks at anybody Ortiz also denies ever kicking or striking an automobile driven by Rober to Corona whom he knew by the name of Cuchillo Ortiz denies knowing anyone by the name of Rudy Korste Further he denies ever following anyone home from the plant making obscene statements to Gary or threatening Gary but did admit using several expletives when he talked to Gary He denies ever seeing any nails in the street or in the driveways of the plant during the strike and denies ever throwing nails under a truck He recalls having a discussion in March 1980 with Deputy Terhorst where Terhorst inquired if he threw some nails under a truck and Terhorst indicated that there was a complaint that he threw some nails They then inspected Ortiz vehicle and did not find any nails in the trunk or elsewhere He was not arrested when they checked his vehicle for nails At the same time they were discussing the nails he was told that a windshield on a white Freightliner truck driven by an individual named Rudy was broken but he denies any relationship to that event or any culpability for it 73 As previously discussed he was arrested on October 19 1979 when he got into an altercation with Freddie Vallejos 74 While testifying about the January 17 incident he was asked about several other allegations and denied being in any fights other than the one alleged to have occurred on October 19 with Freddie Vallejos He did admit to having exchanged obscenities with various employees they wanted to fight him Rodriguez assertedly said he did not say anything to those individuals One individual got out of the car first the passenger who claimed he was a boxer He hit Rodriguez first once in the chest and the second time in the nose which started his nose bleeding The driver also got out of the vehicle but did not engage in any violence Rodriguez was then taken to the hospital and Mike Simovich75 came to the scene with police cars and the police did take a report He does not know the name of the individual who identified himself as the boxer but Rodriguez said that he had seen him working in the Company before the fight There is no showing that Respondent attempted to identify the al leged assailant or if it knew the identity to discipline the individual Rodriguez also denies kicking Freddie Valle jos car in 1979 He stated he did not even know which car belonged to Vallejos or the type of vehicle he drove He does know an employee by the name of John Hong and saw him working at Champ before the strike but denies ever striking Hong s vehicle with his fist while it was passing through the picket line As previously relat ed in the discussion of the November 28 incident he stated that Hong s vehicle almost hit him and he struck it in an attempt to avoid personal injury by placing his hands on the vehicle to help him jump back out of the path of the car Rodriguez uncontroverted testimony is that he went to court on the charges pending against him and was found not guilty He did get a ticket or citation that he did not know about until he went to court He paid a $70 fine The testimony of Joe Solis corroborates the statements of Ortiz and Rodriguez Solis asserts that on January 17 while picketing with approximately 15 other individuals including Frank Zamora Ray Garcia and Ernesto Arroyo Tom and Ed Simovich and Art Van Haasen were standing on company property as the workers were leaving Tom Simovich was instructing the departing employees to keep going Solis felt he was instructing them to run over the picketers Solis noticed the pres ence of three or four police cars At some point Tom Simovich started pointing at picketers stating take him take him Rodriguez and Ortiz were arrested Tom Si movich also pointed to Mary Garcia indicating he also wanted her arrested At that juncture Sergeant Williams told Tom Simovich to get back into the Company that he would take care of it Tom Simovich did not testify about the incident Art Van Haasen while stating that one of his duties during the strike was to stand at the north gate at 2500 Rosemead to assist employees leaving the plant did not testify about the January 17 arrests 25 The events of January 18 1980 Sheriff's Deputy Stead testified that on January 18 1980 he went to Respondents plant regarding reports of vandalism and the December 11 1979 incident where Jerry Shuey was stabbed Approximately a week before January 18 he conversed with a picket captain whom he 75 Rodriguez indicated that the individual who came out was Tom Si movich s brother and the only brother identified on the record was Mike Simovich CHAMP CORP 845 instructed regarding all lawful picketing He told the picket captain that the individuals picketing could not block the sidewalk or driveway that they had to keep moving at all times and could not loiter in the driveway or block vehicular and pedestrain traffic or otherwise interfere with people going to and coming from work On January 18 1980 Stead parked the police vehicle he was operating approximately 5 to 10 feet north of a driveway on Rosemead Boulevard He did not exit the vehicle but stated it was a clear day and he had an un obstructed view of the main driveway He observed a 1964 four door blue Chevrolet stopped at the driveway as if attempting to go in the driveway Stead asserts that three picketers stood on the sidewalk that the operator of the vehicle honked the horn once and that one of the picketers later identified as Banaga stood in the vehi cle s path motioning with his arms as if to direct the ve hicle to proceed through the driveway but did so while standing in the driveway blocking its path The vehicle did not have room to enter in his estimation He subse quently arrested that picket Banaga as well as two others Initially he stated Eduardo Ortiz was one of the pickets but after refreshing his memory stated that the other two pickets were Cesar Moran and Alberto Cortez Alberto Cortez Cesar Moran and Vicente Banaga all deny any wrongdoing on that date They all claim that they were picketing in a lawful manner and that they did not impede the flow of traffic into the plant Alberto Cortez stated that that was the only time he was arrested as does Moran 76 According to Cortez the only representative of the Company who witnessed the arrest was Art Van Haasen who inquired why the authorities were arresting the three pickets The charges were dismissed on December 4 1980 26 The events of January 23 1980 On January 23 there was a negotiating session The Company was represented by Ed Hoy and Ed Simovich Present for the Union were Gazziglt Zamora Baugh Gresko and Ricky Craft According to Gazziglt the ne gotiators specifically discussed the additional holidays that were granted up to that point including the day after Thanksgiving and the 2 additional days granted the employees during the Christmas-New Year s period Gazzigh inquired if the Employer paid the employees for those additional holidays and Hoy assertedly said no they had not that the plant was closed down those days for production reasons only 77 Craft also believes that Hoy raised the issue that the Company had filed a request for an in junction against the Union for having too many pickets at each gate and requested cooperation from the Union regarding this matter According to Craft the Union indicated they would give the Company all the cooperation they could Gazziglt then asserted that because he had doubts that the Company did not pay the employees for the addi 76 As previously discussed Banaga was also charged on October 21 assertedly for breaking the window of a Toyota 77 Ricky Lynn Craft corroborated Gazzigh s testimony that they dis cussed the additional holidays the Company stating it had not given ad ditional holidays tional holidays he sent a formal letter requesting the Company s payroll records for the period in question and further requested any memos that might have been posted discussing the holidays or the plant closure Gaz zigli sent the letter February 19 1980 Hoy replied to the letter on March 12 1980 stating Regarding your letter dated February 19 1980 requesting certain data from the Company it is our opinion that your requests are covered in full in the unfair labor practice charge you have filed with the Board and therefore I am sure that you will agree rather than duplicate the efforts of the company s limited staff we will be answering your requests I believe through the investigation of the charge by the Board If we can be of further assistance please do not hesitate to contact us Hoy and Ed Simovich did not specifically controvert Gazzigh s and Craft s representations of the events oc curring during the January 23 negotiating session 27 Other events in January 1980 The Respondent alleged a number of other strike relat ed incidents occurred during January but the specific dates were unknown For example Respondent alleges that in January Joe Solis spit on Bruce Gary s wind shield and called him a dirty name Also during Janu ary it is asserted that Freddie Vallejos had the tires of his vehicle punctured and brake fluid squirted on his car that Paul Escoto had four tires punctured on his vehicle at his home and had some paint remover sprayed all over the car that Jim Shertz on the same date had a car parked at the house he was renting and that someone punctured tires on his car and his landlords vehicle Also during January it was asserted Ortiz was accused by Perry Acosta of throwing something at Acosta and Jim Gray Perry Acosta assertedly filed a police report on January 9 The allegations did not result in Ortiz being charged with a crime Another event assertedly occurring in January 1980 was the subject of testimony of both Gary and Ortiz According to Gary one morning as he was pulling the truck he was driving up to the curb Ortiz shouted some thing at him After Gary finished parking the truck he went to the back of the vehicle to determine what Ortiz was talking about Ortiz shouted a couple of obscenities at Gary Gary and Ortiz then exchanged obscenities and Gary claims he turned around and went toward the cab of the truck but before reaching the cab Ortiz came up behind him and kicked him in his left thigh Gary then claims he started to chase Ortiz who was running across Rosemead Boulevard Gary also claims that when Ortiz reached the center divider that he fell because the area had been watered that morning and was muddy Gary denies having any weapon in his possession during the incident Gary also denies that he drove the truck close to Ortiz or Ortiz car Gary claims he never struck Ortiz or any other picketers with his truck He denies striking Ruben Gutierrez with his truck even though he was so accused by Gutierrez 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Ortiz he and Elpidio Cortez were parked in Ortiz car Elpidio left to attend to personal needs and as Ortiz was attempting to exit his car Gary passed by in a truck dnving unduly close to Ortiz He believes it was a company truck that Gary was dnving It was a flatbed truck loaded with axles The axles asser tedly stuck out beyond the sides of the truck and there fore if the truck was about 3 feet away the axles came within 6 inches of Ortiz According to Ortiz if he did not get out of the way Gary would have hit him with the axles After Gary passed by Ortiz claims he yelled Don t do it again Gary then stopped the truck and came down to where Ortiz was parked Gary according to Ortiz was holding a knife and he started chasing Ortiz Ortiz claims he ran into the middle of the cars trying to run across the street and as he was attempting to escape Gary he twisted his ankle He had to go to the Monterey Hospital Gary did not catch him because El pidio Cortez finished taking care of his personal needs heard the commotion of the car slamming on its brakes came out of the portable toilet and inquired what was occurring When Gary saw him he went back to his truck 78 Also during January Nestor Lopez alleged that Fran cisco Zamora said things to him that he found objection able some profanity was involved It was also dunng January that Peterson asserts Ortiz struck his vehicle with a picket sign and that sometime in January about the same time some fluid was thrown against his vehicle which took the paint off in three or four places the paint bubbled and blistered Also during January Carlos Lopez who was hired in December 1979 after the strike commenced was leaving work when he was delayed by pickets He got frightened because expletives were di rected at him so he accidentally hit the gas pedal He denies striking any of the picketers He did state that the strikers accidentally were touched by the edges of the vehicle when he inadvertently touched the accelerator but that the front of the car did not strike anyone He also stated he braked and then proceeded forward very slowly but the picketers started to hit and kick his car and told him to get out of the car The kicks damaged the car but he continued moving After several questions he did admit that the car did strike the pickets at one point but he claims that he was going approximately 3 miles an hour or less He also stated that he accelerated the car twice After the pickets started kicking the car on both sides he became extremely nervous so he accel erated again The pickets were shouting expletives at him at the same time they were kicking the vehicle The wit ness denies being warned by Art Van Haasen about the incident but after subsequent questions admitted that his foreman who was named Art did warn him about leav 78 According to Ortiz he did not break any bones he just required some heat treatment for his ankle Ortiz could not remember the date of the incident with Gary He knew it was after November and that it oc curred in 1980 but could not recall the month According to Ortiz the incident occurred about 3 p in not as Gary asserts about 10 am At though Elpidio Cortez appeared and testified at the trial he did not tests fy as to the Ortiz Gary incident There is no indication that Ortiz filed a complaint regarding the incident ing the premises at a rapid rate of speed and instructed him to keep calm the day after the incident Subsequently he testified that the first time he acceler ated he did not actually touch anyone with the car and stated he was not too nervous to observe whether his car struck any of the picketers He stated that the second time he accelerated he pushed some people out of the way but did so going very slowly He stated he pushed about five picketers He admitted that they seemed very angry after they were pushed The witness admitted being very angry feeling insulted and as if he wanted to fight someone However he denies ever challenging any of the pickets to a fight and he denies that the incident was anything but accidental Demeanor lack of candor inconsistencies in testimony a claim of confusion over the language even though he had the services of a trans lator all diminish his credibility However his adverse admission about the vehicle striking pickets will be cred ited According to Art Van Haasen the incident occurred on January 4 1980 about 4 45 p in Van Haasen de scribed the shouting as much louder than normal He saw Carlos Lopez trying to pass through the picket line and being obstructed by the picketers According to Van Haasen the picketers including two unidentified women were standing in front of the vehicle shouting come on hit me hit me Lopez for some reason put his car in gear or something and all the picketers jumped back thinking that they were going to be struck by the vehi cle Lopez according to Van Haasen stood on the brakes at that juncture and no one was struck The pick eters then started banging on the hood of his car and Lopez was attempting to get out when Larry Rincon came out calmed the picketers down and got them out of the way The guards also assisted According to Rincon on the day Lopez was leaving the plant Rincon was in the vehicle behind him edging out through the picket line which was blocking their egress Rincon said he was moving slowly and suddenly Lopez car jerked but did not move forward much The action appeared to irritate the picketers including a couple of gals Alberto Cortez assertedly was standing in front of the driveway and he started pounding on the car telling the driver to hit him and apparently by that action the rest of the picketers started surrounding kick ing and shaking the car They were also screaming ob scenities at Carlos Lopez Carlos Lopez then attempted to step out of his car and that is when Rincon got out of his vehicle and induced Lopez to return to his car Then they got Lopez through the pickets Based on Carlos Lopez credited admission that his car actually struck some pickets Van Haasen s and Rincon s testimony is not credited Carlos Lopez was not disciplined because of the incident Also on January 4 it is asserted by June Rose the bill ing and retail clerk as previously described that she suf fered damage to her vehicle at her apartment most of the windshield was either bombed or broken out Ru dolph Korste asserted that his truck was damaged while parked near his residence during December or January The damage to the truck has been previously described CHAMP CORP 847 28 The events of February 4 1980 and the decertification petition On February 4 1980 Respondent filed a decertifica tion petition in Case 21-RM-2013 79 On April 4 1980 the Acting Regional Director of Region 21 Michael J Fogerty dismissed the decertification petition in Case 21-RM-2013 pending final disposition of the matters under consideration in the instant proceeding 80 Charles Lee Davis 81 originated the idea of circulating a decertification petition According to Davis the idea originated from an incident before the strike where Frank Moore and Joe Solis as well as some other indi viduals stated they had a year to reach a contract and because the strike had lasted over the specified time Davis figured that he could petition for a vote to either terminate the strike or vote the Union out Davis further testified that he sought the assistance of his father in law who was currently retired but during his working life had been active in a union After his father in law tele phonically related the proper language to him Davis as serts that he circulated the petition during his breaktime 1 week in January and obtained signatures from all em ployees with one exception He then stated that Ed Si movich happened to be walking by after he had the completed petition and he gave the petition to Ed Simo vich Ed Simovich indicated that he would transmit the petition to their attorney Ed Simovich said he gave the petition to Hoy Davis then said that he chanced on Ed Simovich several weeks later during work and inquired how the petition was coming and was told that it appar ently had not done much good to which he commented damn it As previously indicated Davis was not a very credible witness He had to be cautioned to respond to questions fully and freely His demeanor did not exude candor and there were inconsistencies in his testimony For example he indicated that the reason he initiated the petition was to terminate the strike either by having the employees affirm the Union through a vote or by getting the Union out He later testified that he initiated inquiries about a decertification petition in September telephonically with his father in law before the strike He also stated that he was the individual solely responsible for circulating the petition yet admitted he did not speak Spanish and did not explain how he obtained signatures from witnesses 79 As noted by counsel for the General Counsel the file pertaining to the case in Case 21-RM-2013 that was introduced into evidence here in dicates that the petition was filed on January 4 but after close examina tion it was determined that the correct filing date was February 4 which is consistent with the testimony and found to be a fact 80 It is noted that one of the basis given for dismissal of the petition by the Acting Regional Director was Respondents refusal to negotiate with the Union pending disposition of the unfair labor practice allegations that such action was not supported by valid objective considerations and was taken in derogation of Respondents duty to bargain in good faith with the certified representative of the employees The Acting Regional Di rector s decision has not been successfully appealed However his find rags are not binding on the issue here under consideration and disposition of the issues in the instant proceeding will be based solely on the evi dence of record not the findings of the Acting Regional Director 81 Some of Davis testimony has been previously discussed in that sec tion describing damage to employees homes and vehicles and threats al legedly made by strikers against employees who continued working during the strike who could not read or understand English Another in consistency was Davis indicated that he initially wrote the petition and then subsequently admitted that the peti tion was not prepared in his own handwriting but was written by his wife who assisted in the matter 82 Because the petition was assertedly circulated in January and given to Ed Simovich a week or two later it is unex plained how 3 weeks after giving the matter to Ed Si movich Davis claimed there was information that the petition was not apparently any good because the Acting Regional Director did not render a decision until April It does not appear that Davis misstated the date he circulated the petition because it was dated January 15 83 Also later in his testimony Davis asserted that sev eral individuals assisted him in circulating the petition be cause he could not communicate well with the Spanish speaking employees The individuals that assisted him were not clearly identified Only one Spanish speaking individual was identified as assisting Davis at one of the many locations he circulated the petition When asked if there were a lot of replacements working at the time he circulated the petition he said he did not know which does not indicate candor inasmuch as he previously testi feed that he circulated the petitions during authorized breaktimes and saw almost everyone who worked at the plant dealt with them talked to them and should have had some idea of how many employees were new subse quent to the strike commencing Accordingly based on demeanor an uncooperative attitude including hostility toward the Union and counsel for the General Counsel lack of candor and the repeated inconsistencies in his testimony it is concluded that Davis is not a credible witness as previously found William Koskela testified that he signed the petition The petition states We the employees of Champ Cor poration 2500 Rosemead El Monte California do not want the UAW Union Local 509 to represent us When asked who gave him the document he stated that it 82 Another inconsistency noted by counsel for the General Counsel in his brief was that Davis initially stated he did not discuss the petition with anyone before circulating it and then on further questioning stated that he spoke with his father in law who resides in Illinois to ascertain the proper language to be used in the petition 83 Other inconsistencies in his testimony include In subsequent tests mony Davis indicated that he initially inquired of his father in law about the decertification petition in December not September He then stated that the language of the petition had to be carefully drafted according to his father in law who had been a shop steward for 3 or 4 years If the initial inquiry was in December the rendition of the events given by Davis in the latter part of his testimony also contained inconsistencies be cause he claims that he initiated an inquiry in December when his father in law gave him the language yet he admitted that his father in law stated that it would be necessary to carefully ascertain the correct Ian guage to ensure the legal adequacy of the document and that his father in law had done research into it before the conversation in December Accordingly his statement that the December conversation was both the beginning and conclusion of the inquiries made to his father in law does not appear credible Davis then stated that when his father in law dictat ed the language to him over the phone he wrote it down on a piece of notebook paper and it was the notebook paper that he took to work He then stated that he took quite a bit of time thinking about the matter after he got the language from his father in law because he did not think the strike would drag on that long he just waited As was previously dis cussed Davis did not take pieces of paper to work that he had written on but rather had the petitions prepared by his wife 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD did-came around and we all suggested it He could not recall who handed it to him and he could not recall when he signed it but he did state that he read it before signing it and he thought that he signed it during break time He did not know who drafted the document There were discussions among several workers that they should petition to not have the Union One of the individuals he talked to was Leroy Zook who assisted Davis in one lo cation in distributing the petition Koskela s suggestion that it was an idea among several people is in contradic tion to Davis adverse assertion that he alone was re sponsible initiating discussions with his father in law in Illinois in September not mentioning any discussions with any of his coworkers and drafting the petition or having the petition drafted at his residence discredits Koskela s testimony that several workers or the indica tion that many employees wanted to get rid of the union According to Gazzigli on February 4 the day the de certification petition was filed by Respondent there was another negotiating session held at the offices of the Fed eral Mediation and Conciliation Service in Santa Ana California Present for the Company were Ed Hoy and Ed Simovich and present for the Union were Gazzigli Frank Zamora Steve Baugh and Ricky Craft The com missioner offered his service to the negotiators and stated that the company spokesman Hoy wanted to meet with the Union because he felt there was a question of repre sentation Gazzigli replied that he did not feel there were any issues about representation He did not have any reason to believe that their representation was in ques tion Gazzigli suggested that Hoy be informed that he should enter the negotiating room and prepare to bar gain The commissioner left the room and had a conver sation with Hoy Hoy subsequently came in and there was a short bargaining session Hoy who testified after Gazzigli did not directly controvert Gazzigli s assertions about what occurred during the February negotiating session Hoy did admit that they did negotiate about sev eral matters including job mobility or job promotion for workers The Union had wanted to have more mobility or opportunity for promotion among the workers and proposed a procedure and the Company had a counter proposal According to Hoy the Company also changed its position on management rights There was a subsequent meeting on March 4 which was also held at the offices of the Federal Mediation and Conciliation Service in Santa Ana California According to Gazzigli at the March 4 meeting Hoy again stated there was a question of representation announced that an RM petition had been filed with the Board and that the Company did not want to consider negotiating any further and could not negotiate in good faith because there was in their mind a strong question about whether the UAW represented the employees Hoy also an nounced at that time that when the Board did determine the merits of the RM petition and it was dismissed he would be willing to meet with the union negotiating team within 24 hours of the dismissal Hoy then request ed that the meeting be closed Hoy initially testified that he attended a negotiating session on March 4 and did discuss the RM petition but he believes they did conduct some negotiations They had private meetings with the mediator However Hoy s affidavit dated March 18 1980 which was used to re fresh his recollection stated that he suggested negotia tions be postponed until the Board processed the RM pe tition and that they would meet within 72 hours after an election if an election was to be held The affidavit reads I informed the union that the company wanted to postpone the negotiations until such time as the NLRB finished processing the RM petition that had been filed by the company I said that should the NLRB dismiss the petition the company was will ing to meet with the union and resume negotiations within 72 hours of being notified by the NLRB that the petition would be dismissed Gazzigli said that the union was the certified representative of the employees still and he wanted to continue negotia tions At 11 05 am the conference ended having started at 10 42 a in Hoy admitted in his testimony that the affidavit was cor rect Based on Gazzigli s demonstrated superior recollec tion of the negotiating sessions and Hoy s reticence to candidly present the facts Gazzigh is found to be the more credible witness and Hoy not credible Additional ly Gazzigh s version was also corroborated in Zamora s testimony Zamora added to Gazzigli s testimony assert ing without controversion that after Hoy announced they would not negotiate until 72 hours or 3 days after disposition of the RM petition they left the room 29 The events of February 12 1980 Ronnie Korste84 asserted that after work on February 12 he went to a hamburger stand approximately one half block away from the plant with a coworker The co worker was Joe Pinzon who did not testify When he ar rived at the hamburger stand one of the pickets ap proached him swung and hit Korste in the jaw and then started running away Korste asserts that he chased the picket caught him and started to hit him when another picketer assisted the individual that swung at him Korste kicked the assistant and that ended the incident Korste filed a police report According to the uncontroverted testimony of Martiniano Rodriguez Korste asserted after being told by Ed Simovich that the individual who perpetrated the crime was Martiniano Rodriguez that Rodriguez was the culprit Korste admitted in his testi mony that Rodriguez was not the perpetrator of the crime that it was a false identification but did not ex plain that the improper identification was made with the assistance of Ed Simovich Also according to the uncon troverted testimony of Martiniano Rodriguez once he got to court pursuant to the subpoena served on him Korste admitted that Rodriguez was not the perpetrator of the assault that Ed Simovich placed several pictures on a table in front of Korste and Korste claimed it was Simovich who identified Martmiano Rodriguez as the as sailant After the court proceeding ended in either April 84 Korste was initially hired July 11 1979 in the assembly department and continued working through the strike CHAMP CORP 849 or May 1980 Martimano Rodriguez was given a letter from the county of Los Angeles office of the district at torney to the effect that the district attorney had re viewed all the evidence presented at the formal hearing recently and concluded This review fails to justify any criminal action consequently no further action will be undertaken Victim stated you were not the suspect Although you were subjected to an unfortunate experience the facts do not signify a criminal pros ecution and therefore no further action is contem plated 85 30 The events of February 27 1980 Francisco Zamora asserts that on February 27 1980 while picketing Tom Simovich left the office building and approached one of the pickets Filiberto Ruiz and Zamora It is claimed that Tom Simovich told Ruiz that he did not want Ruiz picture because he was considered a good guy but that I [Zamora] was a $50 photo graph and Tom Simovich aimed the camera that he was carrying at Zamora Zamora had just walked into a portable toilet and closed the door to prevent his picture being taken At that point Zamora then left the portable toilet and heard Mary Garcia tell Tom Simovich Hey Mr Tom how about Simovich Hey Mr Tom how about calling you what you called Carlos [Almaroz] yes terday'? Tom assertedly replied to Mary Garcia You know what you are and kept going to the other side of the street 31 The events of February 28 1980 According to Carlos Almaroz while he was picketing on Troy Street on February 28 1980 with two or three other individuals including Jose Villavicencio and Salva dor Garcia he saw a bottle flying through the air toward a working forklift driver He does not know the name of the forklift driver He observed the bottle hit the ground near the forklift driver The forklift driver jumped off the vehicle and started yelling at Salvador Garcia because he thought he was the perpetrator of the incident Garcia did not say anything According to Al maroz Garcia does not speak English and evidently the forklift driver was talking in English The forklift driver then entered a company building and a few minutes later Tom Simovich and Larry Larson accompanied the fork lift driver out to where the pickets were located The forklift driver was informing Tom Simovich that Salva dor Garcia threw the bottle and then Tom Simovich pointed at Almaroz and said I bet you this man is the one that did it The forklift driver assertedly said no he did not do it and again referred to Garcia Almaroz in quired why Simovich was blaming him and Simovich re plied I do not know but I have a feeling you are the es Ed Simovich asserted that Korste made a positive identification of Martimano Rodriguez from some pictures he had taken The Company attempted to take extensive pictures of many strike activities and there fore had in its possession pictures of many of the strikers Neither Korste nor Simovich talked to Martmiano Rodriguez before filing charges with the police As previously indicated Ed Simovich was found to not be a credible witness one who threw the bottle Almaroz stated he did not throw the bottle and Tom Simovich then cursed at him and inquired why he did not go back to Mexico and make two pesos a day Almaroz replied that he would go back to Mexico and make two pesos a day and that Tom Simovich could go back to his company and make how much he was making probably less than Almaroz was making in Mexico About 15 minutes later a police officer walked out of the building with Tom Simovich and began taking down license plate numbers and look ing around the area The police did not talk to Almaroz Almaroz told Tom Simovich he did not need his job that he could work at another place at another job and Tom Simovich assertedly replied Okay I want you to try and you will be lucky if you get one because I am going to give you a bad reputation to every job that you go Almaroz does not know who threw the bottle at the forklift driver He did see it flying through the air toward the forklift driver but no one was close to him when the bottle was thrown The forklift driver did not appear and testify 32 Other events occurring in February 1980 Alfredo Cisneros testified that one morning in Febru ary as he was coming to work with Rene Gonzales going through the main gate at 2500 Rosemead he saw an individual named Carlos (Almaroz) holding a beer bottle in his hand and as he came toward the car Cis neros was riding in Almaroz threw the bottle at them Cisneros alleges that the bottle struck the car on the right side on the front of the door and as the car stopped he got out of the car and asked Almaroz why he threw the bottle at them Almaroz allegedly had a piece of tube in his hands 3 to 4 feet in length made out of metal and after showing the tube he told Cisneros to come on but the witness determined he could not do anything and returned to the car and they departed That was the only incident where something was thrown at Cisneros It is noted that Cisneros was hired after the strike commenced He went to the Company to seek em ployment and spoke to Larry Rincon and Ed Simovich Before going to the interview he knew Rene Gonzales who was working for Respondent Cisneros had knowl edge that several employees had gone out on strike when he walked through the area Cisneros testified that he went to work the same day he filled out his application He did not have to take a physical before the commence ment of employment and he had not taken a physical as of the date of his testimony Cisneros operates a dull in the forklift department at the Company He commenced employment at $4 an hour and is cur rently earning $6 10 an hour During his employment interview he talked to Lary Rincon and Ed Simovich between 15 and 20 minutes and was informed about the nature of the job There is no indication that he took any test to demonstrate the skills he held to qualify him for the job After the interview Ed Simovich took him to his place of work where he was introduced to Bob Pe terson Ed according to Cisneros instructed Peterson that Cisneros was going to commence work and that Pe terson was to instruct him how to work It appears 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from Cisneros testimony that he is in the process of learning skills needed by Respondent He is practicing on different machines being taught by Bob Peterson and learning machine shop skills Rene Gonzales alleged that either in February or March 1980 Carlos Almaroz86 threw a bottle at the car as he was coming to work with Alfredo Cisneros in Gonzales car Cisneros got out of the car to argue with Almaroz but said nothing to him because Almaroz was holding a metal rod in his hand at the side of his body and assumed a posture that they considered threatening Therefore Cisneros got back into the car Gonzales did not see the bottle strike the car He saw it fall on the sidewalk He identified it as a beer bottle Subsequently Gonzales stated that he could not tell what kind of bottle it was He did not see it well he just noticed it was a bottle He noted a dent in the car when he went inside the plant on the side of the passenger door The bottle was not broken and he identified the object that Carlos was holding as unpainted iron Gonzales tes timony is not found to be greatly credible based on de ineanor the fact that he was shown to use unwarranted embellishment such as stating that the bottle was a beer bottle and then stating that he did not see it to ascertain what kind of bottle asserting that he never returned the bad words or profanity used by the strikers toward him as he drove through the picket line contrary to Cisneros who said that sometimes they would return the foul Ian guage and would laugh at the pickets when Cisneros said he would not laugh Gonzales stated that the picketers said the same things every day and after a while they found it amusing although at first he took the picketers seriously Cisneros according to Gonzales would say things to the picketers calling them names such as cra zies but denies that Cisneros ever used profanity There were no charges filed because of this incident The Corn pany never interviewed any striking employees regarding any of these incidents nor have they asserted any wrong doing related to this incident as a basis for denying rein statement February 21 was also the date that Herbert Shertz as serts that his vehicle was damaged by a pipe bomb as previously discussed According to Sheriff's Deputy Ter horst the bomb was described as consisting of a 1 3/4 inch by 5 inch galvanized pipe with a three quarters of an inch galvanized cap screwed to each end All that Terhorst could relate to Tom Simovich was that a pipe bomb was involved in the incident Terhorst also gave Ed Simovich the same information concerning the mci dent that he gave Tom Simovich Terhorst opined that a pipe bomb was used to create the explosion 33 The events of March 7 1980 Francisco Zamora testified that on March 7 1980 while he and Mary Garcia were standing at 2500 Rose mead observing the pickets they noticed Tom Simovich walking toward them carrying a cardboard box on his "The Carlos he identified was the Carlos in the green shirt which Respondent asserts was Carlos Almaroz He almost always wore a green shirt they claim Almaroz denies wearng a green shirt unusually often and stated other individuals also wore green shirts shoulder As Tom Simovich passed by Zamora asserts that he said Hi Mr Tom How is your back) It is then alleged that Tom Simovich stopped a couple of feet from Zamora and Garcia and said You will never work for me again you little son of a bitch Zamora claims he did not reply but that Mary Garcia told Tom Simo vich that he had a dirty or a filthy mouth and Tom Si movich responded that Mary Garcia had a filthy mouth called her a bitch and stated that you will never get a contract At that point Ed Simovich came toward them and asked his father to leave them alone stating Please sir leave them alone several times and then Tom and his son continued walking away Mary Garcia in her testimony recited a similar ver ston of the event claiming that Ed Simovich and Art Van Haasen were on the north side of the driveway while she and Frank Zamora were on the south side of the driveway at 2500 Rosemead when she observed Tom Simovich Sr coming out with a box on his shoulder and cross the driveway in between the cars that were going out the driveway As the cars passed them Frank Zamora said Hi Mr Tom How is your back? Tom replied Shut up you little son of bitch You will never work for me again Garcia then claims that she said That s not a very nice way for a man your age to talk Garcia states that Tom Simovich then turned around and said to her And you too you bitch you will never get a contract from me That was the end of the conversa tion for Ed Simovich came up and said Don t Tom or Don t sir something to that effect leave them alone and then Ed stayed with his father until his father crossed the street She described Zamora s inquiry as being friendly and she did not feel any personal ant mosity toward Tom Simovich She did not know the man however she did refer to him on March 7 as a dirty old man because of the way he talked She does not believe that during the conversation after Ed walked up or otherwise that one of Tom Simovich s rejoinders was accusing her of being the one with the dirty mind She also could not explain why he mentioned that they would never get a contract from me to her because she had never been involved in the contract negotiations Tom and Ed Simovich gave a different version of the incident Tom Simovich claimed that he was carrying a box of parts across the street when Mary Garcia ap proached him with her friend Francisco Peanuts Zamora and she said her usual nasty words Here comes that man with the dirty filthy mouth He then asserts that Mary Garcia started to read him off like she always does Tom Simovich claims that he then replied that she should certainly know because she had been practicing for a long time That was the extent of the conversation Tom Simovich and his son Ed stated that Ed never referred to Tom as Sir or Dad 87 Tom Simovich gave an affidavit before his testimony which states On March 7 1980 1 was walking across Rosemead Blvd from the 2439 to the 2500 street address and was carrying a small box about one foot square and I was walking with my son Ed Mary Garcia and Frank Zamora were standing near the middle gate there being three gates about two or three feet away from where we were walking Garcia said Here comes that dirty old Continued CHAMP CORP Tom Simovich indicated that his son Ed was accom panying him across the street Ed Simovich did not make a similar claim Although he corroborated in almost the same verbiage his father s version of the incident he merely stated that he was present during the conversa tion and as he heard the gist of the conversation he ap proached his father sort of grabbed him and said to keep going and they proceeded together across the street Based on demeanor candor and inherent consist ency the Zamora Garcia version of the conversation is credited because they stated that Ed and Tom did not proceed together initially as Tom had claimed but that Ed came up and took Tom away from the conversation as Ed testified Ed Srnovich was present during his fa ther s testimony and Zamora was present during Garcia s testimony but Garcia testified before Zamora Based on demeanor candor and the other factors discussed above the Garcia Zamora versions of the event are credited 34 The events of March 10 1980 Victor Paul Castonguay an employee hired by the Company on April 6 1977 who worked through the strike asserts that on March 10 as he was going home after work he saw Joe Solis vehicle which he identified as a 1952 Chevy pickup green with black fenderwalls on Rosemead Boulevard Solis averredly attempted three times to run him off the road by swerving his vehicle toward Castonguay s vehicle until it got to approximate ly 1 foot from Castonguay s vehicle Castonguay told Ed Simovich about the incident the following day Caston guay stated he habitually reported to Tom Simovich within 24 hours of any occurrence pursuant to instruc tions he received from Tom Simovich during a meeting a few days before the commencement of the strike Cas tonguay did not report the incident to the police Bobby Charles Smith the foreman of the mast depart ment at Respondent corroborated Castonguay s testimo ny stating that he was departing the plant right after Richard Castonguay and saw Castonguay s vehicle go onto Rosemead Boulevard make a U turn proceed south saw Solis proceeding south on Rosemead at a rapid speed blowing his horn and with a passenger hanging out the window waving arms and shaking his fists and when he got barely in front of Castonguay s pickup he started veering toward Castonguay s vehicle so that they came within inches of one another Smith stated he observed the event as he was waiting for traffic to clear so he could proceed out on Rosemead Boule yard and was about 30 yards away from the incident Smith stated that Solis vehicle was inches ahead of Cas tonguay s pickup truck and he believes that there would have been a collision if Castonguay had not changed lanes it was very close to being a collision According to Smith Castonguay s vehicle moved toward the curb man -Garcia said Here comes that old man with the dirty filthy mouth I told Garcia that she should recognize someone with a dirty mouth because all she had been doing was cussing employees out including myself On the way back from 2500 to 2439 street address Garcia and Zamora were where they had been Garcia called me some obscene names and I ignored he and kept walking Zamora did not say any thing 851 and Solis vehicle moved toward Castonguay s simulta neously and then Solis vehicle got into the same lane ahead of Castonguay s vehicle Castonguay stopped and Solis drove on Solis denies attempting to run Caston guay off the road 35 The events of March 29 1980 According to the uncontroverted testimony of Ricky Craft on the evening of March 29 at approximately 1 or 1 15 a in he was picketing with his brother in law Mickey Lambnght and coworker Steve Baugh The three strikers were sitting by a fire eating doughnuts and coffee when a van pulled up and approximately 13 people got out of the van holding clubs Also present was Sam Munoz who provided a guard service for Re spondent and three armed security guards 88 The 13 in dividuals were all dressed similarly and did not say a word They started after Mickey Lambright89 who ac cording to Craft was knocked to the ground and struck several times so that he had bruises all over his body and was hit on the head and injured sufficiently to require a few stitches in his head Ricky Craft was shot in the chest and the left wrist and was hospitalized for 8 days Craft did not recognize any of the 13 men No one was apprehended in the incident and there was no direct at tribution to replacement employees or any connection with Respondent demonstrated in the evidence F Reinstatement of Strikers 1 Termination of strike According to Gazzigli around the first week of April the Union discussed with the membership the possibility of terminating the strike The discussions were held be cause it was becoming increasingly evident that the strike and picket lines were ineffective and because the Union had filed a number of unfair labor practice charges against the Company which were pending Therefore it was determined that the better strategy at that juncture would be to make an unconditional offer to return to work and pursue the unfair labor practice charges This course of action was adopted and on April 17 Gazzigli sent the Company both a letter and telegram informing Respondent that the employees were going to return to work unconditionally on the morning of April 21 90 The Company never directly replied to the tele 88 Sam Munoz is the individual that told Tom Simovich that there was a contract out on his life on October 23 and he was assertedly present during the Ricky Craft incident Sam Munoz did not testify even though he was still servicing Respondent No reason was given for this failure to appear and testify 89 Lambright did not appear and testify 9° The telegram stated The employees of Champ Corporation currently on strike uncondi tionally offer to return to their former positions or to substantially equivalent positions if their former positions no longer exist The striking employees will be reporting to work at the start of the scheduled shift on Monday morning April 21 1980 Should you have any questiors or comments please contact the undersigned My office number is (213) 771-6800 S gned Ralph Gazzigli Internation al Representative sent April 17 1980 at 6 25 p in e s t The letter sent the same date states substantially the same as the tele gram Respondent does not contend the offer to return was not uncondi tional 852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gram or letter Ed Simovich believes the telegram was received the evening of April 17 According to Ed Simovich immediately after receiv ing the April 17 telegram he consulted with Hoy and they collaborated in the preparation of a statement that was to be handed to the employees on their reporting to work on April 21 The missive read Your union has not given us reasonable time to replace you to your job or an equivalent job We do not have sufficient health and sanitation facilities to acept any major number of employees For further instruction please contact your union On April 18 according to Hoy s uncontroverted testimony Hoy spoke to Fenton the attorney for the unions in this instant proceeding and informed him that reinstatement of the striking employees may take more than 1 week 2 The events of April 21 1980 At 7 a in over 50 striking employees were lined up to enter Respondents facilities The uncontroverted testi mony indicates that Ed Simovich met the employees of fering to return to work at the gate which was designat ed the main entrance to Respondents facilities and in formed them that they were to report to the personnel office which opened at 8 am When the employees ar rived at the personnel office Ed Simovich had them sign a roster and handed them the previously described mis sive Several employees also testified without contradic tion that they were told that morning by Ed Simovich that they did not have the timecards ready to permit their return 911 Approximately 51 employees signed the roster as having shown up for work that day On April 21 Hoy sent a mailgram to Gazztglt request ing that he furnish the names of the individuals who are currently on strike as stated in Gazztglt s mailgram of April 14 1980 and his cooperation in providing this in formation was requested to assure that those currently striking employees rights to reinstatement are not abridged On April 25 1980 Gazzigh sent a mailgram to Hoy which stated that the employees personally appeared at the normally scheduled shift on April 21 1980 and were informed by Ed Simovich to report to the personnel de partment at 8 a in The employees then signed the com pany roster at the request of Ed Simovich The mailgram noted that Steven Baugh and Thomas Vargas92 appeared at 9 a m at the Company s premises and were informed they were too late to sign the roster Ed Stmovtch in his testimony noted he had heard that Baugh had shown up later that day and had talked to Dick Rowe he believes On May 2 1980 Gazztglt responded to Hoy s request for the list of names of the individuals who were uncon ditionally offering to return to work stating that the Union asserted 54 strikers appeared and attempted to work at Champ Corporation on Monday April 21 and that 62 individuals whose names and addresses were fur niched as an attachment to the letter have offered and 91 See for example the testimony of Ricky Craft 92 The mailgram stated the names were Steven Vaugh and Thomas Bagas However there is no contention that the misspellings led to any confusion as to the individuals addressed in the mailgram are continuing to offer to return to work unconditional ly This list enclosed with Gazzigh s May 2 letter which the record indicates was received by May 5 1980 had six names with a designation not aware of sign in O/F/T The Company on May 5 by Ed Hoy wrote Gazzigli and asked what the O/F/T designation indicat ed The communication further stated that they agreed with the Union s position that 54 employees offered to unconditionally return to work by appearing on April 21 but they were confused because 64 names were enclosed on the list submitted in the May 2 letter Hoy s letter fur ther noted that four names alluded to employees being on medical disability They did not know of any disabil ity and requested further explanation The following explanation was given as to the O/F/T designation those are employees according to Gazzigh that were out of town and not available to appear on April 21 to sign the Company roster and the medical disability statement after an employee s name is that they are under a doctors care and were unable to report Hoy s letter of May 5 indicated that they were develop ing a reinstatement process and that the information sup plied on May 2 naming the employees unconditionally offering to return to work would assist in that process According to Ed Simovich between April 17 and May 5 the Company formalized a reinstatement program The program was designed to consider three major fac tors The first factor according to Ed Simovich was that in light of the violence that occurred during the strike reinstatement was to be effectuated in a manner that would optimize plant safety and avoid a not or an outbreak of violence at the plant Therefore a massive reinstatement was determined to be too dangerous The second major concern according to Ed Simovich was the ensuring of product safety because they experienced some sabotage to products before and during the strike They wanted to avoid any difficulties with quality con trol The Company did not want to increase its already large premium for product liability insurance Also the Company wanted to protect its reputation for fine work manship The third consideration the Company factored into its plan was that economic conditions had signifi cantly worsened by May 1981 lessening demand for em ployees Therefore according to Ed Simovich s unsub stantiated testimony he met with the foremen of the dif ferent areas to discuss the problem as well as with Hoy Tom Simovich and Arvilla Shooter 93 3 The reinstatement plan After the previously described consultations the Corn pany grouped the strikers into four major categories The categories were initially predicated on the 54 names the Company determined returned to work on April 21 In addition to the 51 individuals who signed the roster as being interested in coming to work they determined that Steve Baugh Thomas Vargas and Jesus Moreno also demonstrated sufficient interest to be grouped with the 93 Hoy and Tom Simovich did not substantiate to any substantial degree Ed Simovich s testimony in this regard and Arvilla Shooter did not testify CHAMP CORP 51 individuals who signed the roster The other 10 per sons comprised the first group which was designated as the strikers who did not show up to work on April 21 94 The Company decided to process the 54 employees who signed the register or otherwise were deemed as demon strating an interest on April 21 of returning to work and after those 54 employees were processed they would pursue the 10 additional employees The second group of employees that Ed Simovich ar ranged were those he deemed to be permanently re placed before November 4 1979 According to Ed Simo vich the individuals who fell into this category are An tonio Andrade Alejandro Arroyo Javier Arroyo David Coronado Ricky Craft Enrique Figueroa Lorenzo Franco Mickey Lambright Francisco Zamora and Mar timano Rodriguez 95 The third category he devised included four individ uals who were placed on layoff status These four indi viduals were Gonzalo Andrade Manuel Garay Javier Lopez and Jose Reyes The fourth category was those individuals against whom the district attorney had lodged criminal charges Although 14 individuals were named possibly 15 by the sheriff's department 13 indi viduals were placed on this list They are Carlos Al maroz Ernesto Arroyo Alberto Cortez Ruben Gutier rez Cesar Moran Javier Olague Eduardo Ortiz Jose Padilla Ramon Rodriguez Martiniano Rodriguez Joe Solis Heriberto Valenzuela and Jose Villavicencio Vin cente Banaga also had criminal charges against him but they decided he would not be included in that category The basis for this decision was not placed in evidence 4 The reinstatement of employees who did not appear on April 21 Without any explanation about what occurred between the development of the reinstatement plan and the first communication with the 10 individuals designated as not asserting an interest in returning to work on April 21 the Company first communicated with these individuals by letter dated June 27 The same letter contextually was sent to all 10 individuals The letter states Your union sent to us a mailgram on 4/17/80 stat ing that the current striking employees offered to return to work unconditionally Your name ap peared on the list supplied to us by the union on 5/9/80 that identified you as a striking employee As of today we have not heard from you in any manner Please notify us of your intentions Contact the office and ask for Ed Simovich Phone Signed Tom Simovich 96 94 These individuals were Manual Avalos Vincente Banaga Raul Cortez Marvin Cummings Oscar Guerrero Calvin Hassler David Hassler Dexter Kerr Ronald Kerr and Randolph Montoya es The list as originally compiled by Ed Simovich included the name Jesus Valdez but during his testimony he admitted Valdez inclusion in this category was a mistake and that he should have included Martiniano Rodriguez 99 Ed Simovich stated that he did not know why the Union indicated these individuals had a desire to return to work as of April 21 However as previously indicated the Union did send a letter to the Company on April 17 offering unconditionally a return to work on behalf of all em pldyees currently on strike and on May 2 sent Hoy a list of individuals 853 There was no indication about why the Company waited until June 27 to inquire of these employees regarding their intentions of returning to work One of the individuals included in this group by Ed Si movich and others was Marvin Cummings Cummings was initially hired by Champ Corporation on March 24 1975 as a general mechanic Cummings continued work mg solely as a general mechanic until about July 23 1979 when he was disabled and had to have an oper ation After the operation he continued to be disabled until January 15 1980 when the disability terminated The disability was related to a hip injury he sustained during World War II He stated he advised the Compa ny that he was no longer disabled specifically informing Phyllss Lund who was the individual he always called at Respondents facility He never supplied a written doc tors release to the Company regarding this particular disability The Company by letter of December 12 1980 inquired about his disability This was the first cor respondence and inquiry the Company made regarding his disability He discussed the matter with Arvilla Shooter he asserts personally delivering a release form which the Company made a copy of and placed in his file According to Cummings he went to the Company on April 21 1980 but failed to see anyone he could talk to early in the morning when he made his initial appear ance Because he had been summoned for jury duty with the superior court of the city and county of Los Angeles on that date he left the vicinity of Champ Corporation and reported for jury duty He served on jury duty for a little more than 2 weeks he believes Before going on jury duty Cummings asserts that he informed the Com pany that he was going to be unavailable on April 21 be cause of jury duty The conversation arose in response to a request from the unemployment office to contact the Company to ascertain if there was any work available that was unrelated to the labor dispute During that con versation he was informed that there were two openings in his department but they were still on strike He then told Phyllis Lund that he was going on jury duty April 21 When he completed jury duty he again telephoned the Company and spoke to Phyllis Lund and was in formed after stating he was available to work that noth ing was currently available Cummings did not get any other communications from the Company until the letter dated June 27 He received the June 27 letter in July be cause he moved on June 1 and the letter was mailed to his old address After receipt of the June 27 letter he went to Champ Corporation and talked to Phyllis Lund including these 10 persons stating Vincente Banaga was not aware of sign in procedure he was out of town that the same was true of Raul Cortez Calvin Hassler David Hassler Randolph Montoya and Jesus Moreno The list forwarded to Hoy also stated that the following individ uals were on medical disability Marvin Cummings Dexter Kerr Ronald Kerr and Pedro Lopez When Respondent indicated some confusion about the letters O/F/T Gazzigli informed the Company by mailgram dated May 9 1980 that the designation was for out of town and not available to appear on April 21 to sign the company roster Therefore Ed Simovich s statement that he did not know why these individuals were included on the Union s list is not credited This is particularly true where the O/F/T designation was preceded clearly by the statement Was not aware of sign in 854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD She arranged for him to talk to Ed Simovich on the tele phone in her office Ed Simovich told him at the present time they did not have anything they could offer him On October 22 1980 Cummings received a letter bearing the signature of Tom Simovich which stated that he had earned vacation from March 4 1979 through March 24 1980 and specified the amount a check for which was included as an attachment to the letter The letter closed with a statement as follows We would ap preciate your telephoning Mrs Arvilla Shooter regard ing your current status He telephoned Arvilla Shooter after receipt of this letter on or about the first of Novem ber He claims Arvilla Shooter informed him that some old customers were returning to the Company for serv ice and business appeared to be picking up and there might be a position for him soon that she would check to ascertain if he could come back to work Arvilla Shooter assertedly inquired if he wanted to leave his profit sharing intact or withdra N it He informed her he would like to leave it intact because he still considered himself an employee of the Company Also sometime in November Cummings went to the office and personally took a copy to Shooter of a release form he received from the veterans hospital regarding a disability he suf fered in August 1980 97 He was disabled from August 26 until he believes October 20 In March 1980 Cummings applied for unemployment benefits In November 1980 the employment agency sent him to the Pacific Personnel Services Agency for work referral He spoke to a woman named Pat he does not recall her last name 98 Pat informed Cummings that there was a job opening at Champ Corporation in his work classification After completing the paperwork Pat gave him she did not send him anywhere but suggested that he check with Shooter to ascertain if the job at Champ was still available She was surprised that he worked at Champ and that there was a job order for a mechanic After this meeting with Pat Cummings went to Champ Corporation to see Shooter No one else was present Cummings related to Shooter what occurred at the personnel office but she did not say whether the job was still available Shooter talked to Ed Simovich to see if there was an opening in the service department at the time and she related that Ed said there was nothing cur rently available and a job would not be available until the new year The conversation occurred around No vember 20 1980 On December 12 1980 in apparent corroboration of Cummings testimony he received the following letter over the signature of Arvilla Shooter We have received your physicians notice dated 10/29/80 giving you a full medical release to return to work without any restrictions Our records show 97 The August disability was due to an accident resulting in a severely broken nose which required reconstruction surgery 98 It is recognized that the testimony regarding the events at the em ployment agency are hearsay In recognition of the existence of records in the possession of Respondent indicating the truthfulness of the asser tions which were not introduced into evidence this testimony will be considered although its weight will be somewhat diminished that you left work during your scheduled work shift on October 12 1979 with an illness for which you later filed a State disability claim During the time period of your disability the company was unable to hold your work assignment open for your return due to existing service work requirements At present there are no available openings in the department where you worked and no other available work assignments for which you are qualified We are therefore placing you on layoff until that time when an opening for which you are qualified develops Please contact the per sonnel department if you have questions regarding your recall rights You may have unemployment rights and we en courage you to contact the California Employment Development Department on this matter There was no statement about who permanently replaced Cummings and to date he has not received an offer of reinstatement There was no explanation about why Re spondent switched Cummings classification Another striker in this category Manuel Oscar Avalos stated that the first time he was notified he could return to work at Champ was when he received a tele gram from the Company Avalos received the telegram sent by the Company on July 10 1980 which stated they accepted his unconditional offer to return to work and stated he was to return to work at 7 15 a m Monday July 14 99 Subsequent to the receipt of the telegrams Avalos went to the offices of Respondent talked to Ed Simo vich and discussed salary According to Ed Simovich Avalos indicated that he was not going to leave his other job and would not return to Champ The conversation occurred according to Ed Simovich on or about July 11 the Friday before the Monday he was informed to report to work Avalos admitted that he decided not to return as an employee of Respondent On July 17 1980 Respondent over the signature of Tom Simovich the general manager sent Avalos a letter stating that he vol untarily terminated his employment with Champ Corpo ration that the payroll department would be so notified and would be forwarding all moneys due and owing to him Vincente Inez Gonzales Banaga too to whom a tele gram was sent on July 16 requesting him to report to work on July 18 reported for work on the specified date No one from the Company mentioned the fact that he was arrested After talking to Ed Simovich Banaga was sent to talk to Dick Rowe pursuant to the plan es tablished by Simovich for the reinstatement of workers 99 The same telegram was also sent to Raul Cortez Oscar Guerrero and David Hassler iao As previously noted Banaga was arrested for obstructing a drive way and breaking a window in a Toyota Of these two arrests the charge of obstructing an intersection was dismissed and he was placed on probation for I year for the offense of breaking the window of the Toyota on October 21 1979 Also as previously indicated there was no explanation given by Respondent about why Banaga was treated differ ently from the other individuals who were arrested and charged with crimes during the strike CHAMP CORP Banaga worked for the Company for 1 week and 2 days When Banaga commenced employment on July 18 he experienced difficulties with his coworkers Banaga worked in the paint department and he considered Er nesto Lopez as the supervisor in charge of the painting area On the morning of July 18 his coworkers threw about four objects at him He was not struck by any of the objects During the afternoon no objects were thrown at him Tuesday morning two or three objects were thrown at him none struck him Again in the after noon nothing was thrown at him A similar pattern per sisted through the remainder of the week with several objects being thrown at him in the morning and none in the afternoon He was not struck by any of the objects The following week on Monday and Tuesday the same pattern prevailed He was not struck by any of the ob jects that were thrown at him The objects were pieces of metal which were wrapped in rags or tape The ob jects were approximately the size of a baseball Pursuant to instructions that he had received from Ed Simovich he informed Nestor Lopez of the problems he was experiencing The conversation occurred on Tues day July 19 the day after he returned to work Lopez acted as a translator for him with Ed Simovich Accord ing to Banaga Lopez was present at times when the ob jects were thrown at him Whenever one of the objects hit any metal or other structure or it bounced off and was noticeable according to Banaga Lopez would laugh Banaga observed Nestor Lopez laughing at the in cidents two or three times or on two of three occa sions 1 01 Banaga could not discern who was responsible for throwing the objects at him Banaga discussed the matter with Nestor Lopez Lopez indicated that there were going to have to be lay offs and that he did not want the individuals who were currently working for him and who worked for him during the strike to be thrown out of work Lopez indi cated to Banaga he wished to prevent the reinstatement of strikers and because the individuals who were then working for Champ were afraid they would lose their jobs if the strikers were reinstated they harassed the re turning strikers Banaga indicated to Lopez that he was frightened that he did not want anyone to hit or hurt him Lopez then informed Banaga that if he did not want any problems at Champ he should go home At that point in the conversation Banaga requested Lopez speak to Ed Simovich Lopez left the area and when he re turned he told Banaga You can go or you can leave and tomorrow don t come back This was the last day that Banaga worked at the Company 101 According to Banaga these incidents were not related to counsel for the General Counsel at the time that affidavits were taken in prepare tion for this proceeding The reason for this failure is unexplained The issue arose only during a conversation fairly close to the commencement of this trial when Banaga was speaking with Frank Zamora After the issue was raised Zamora and Banaga consulted with counsel for the Gen eral Counsel This omission from Banaga s affidavit does not discredit his testimony for there was no showing that any question of constructive dis charge was being investigated by the General Counsel at the time Banaga gave his affidavit It is also noted that counsel for the General Counsel specifically stated that the issue of constructive discharge was not includ ed in the matters raised by the General Counsels office in this proceed mg 855 Banaga did not speak directly to Ed Simovich after the Lopez conversation Earlier that day Ed Simovich went to tell Lopez that whenever Banaga had a problem Banaga was to report it to Lopez so that Lopez could go tell Ed Simovich about the problem According to Banaga Mr Ernesto Lopez told me to leave that he had already spoken with Edwardo Simovich But what I never really knew was if he truly really ever spoke with him or not The only thing I know is that he told me to leave and for me not to return the following day That was all Counsel for the General Counsel specifically stated at hearing that the evidence regarding harassment of re turning strikers was introduced into evidence solely on the issue of motive and was not to be considered disposi tive of any question of constructive discharge Based on this representation the issue regarding harassment of re turning strikers will not be considered with respect to any allegation of constructive discharge because Re spondent has relied on this representation The specificity of the representation by counsel for the General Counsel precludes me from finding that any issues regarding con structive discharge were fully and fairly tried This find ing that the issues relating to constructive discharge were not fully and fairly tried further precludes a finding on the meats as urged by counsel for the Charging Party that the striking employees who were harassed on their return were in fact constructively discharged Ed Simovich indicated that after Banaga worked 9 or 10 days he learned from his leadman Ernesto Lopez that Banaga had left the premises Banaga was terminat ed August 4 1980 and was notified of his termination on August 4 and August 13 1980 on the basis of failing to show up for work for 4 consecutive workdays without reporting or giving any excuses for his failure to report for work He was given an opportunity to respond to this inquiry failed to do so hence a letter of termination was sent to him Accordingly if any remedy is applica ble to Banaga such entitlement to remedy terminated on August 4 1980 Raul Cortez was sent an offer of reinstatement dated July 10 1980 Cortez did not report to the Company On July 17 1980 Tom Simovich signed a letter addressed to Raul Cortez which stated that You voluntarily termi nated your employment with Champ Corporation The payroll department will be so notified and they will be forwarding to you all monies due to you Cortez did not appear and testify No explanation was given for this failure Accordingly the uncontroverted evidence of Re spondent warrants a finding that Cortez terminated vol untanly his employment with the Respondent as of July 17 1980 Oscar Guerrero did report to the Company on July 14 1980 was reinstated and continues to work for the Company After Respondent sent to Calvin Hassler the letter of June 27 1980 requesting notification of intentions of those individuals who had not appeared on April 21 the Company sent him a mailgram accepting his uncondi tional offer to work and informing him he was to report at 7 15 a m July 14 1980 There was no response to the telegram Consequently on July 17 1980 the Company 856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sent to Calvin Hassler a letter stating that they consid ered him to have voluntarily terminated his employment with Champ Corporation According to Ed Simovich similar events obtained regarding David Hassler Based on this uncontroverted testimony both Calvin and David Hassler who failed to testify are found to have voluntarily terminated their employment with Respond ent as of July 17 1980 Dexter Kerr according to Ed Simovich last worked for the Company in June 1979 when he suffered a non work related injury a separated shoulder had an oper ation to correct the separation and was disabled Ed Si movich asserts that he was replaced by the Company in or around the middle of August 1979 by John Crunkle ton On June 27 1980 a letter was mailed to Kerr inquir ing if he was interested in returning to work The Re spondent received a letter from a John G Colias M D which informed him that Dexter Kerr may return to work on July 21 1980 without limitations Crunkleton left the employ of the Company on October 19 1979 and was replaced by Don Quick in January 1980 Quick is no longer employed by Respondent and was not re placed by anyone according to Ed Simovich Dexter Kerr did not appear and testify There is no showing by Respondent that it accepted the unconditional offer to return to work made on behalf of Dexter Kerr Howev er the General Counsel also failed to show that Kerr s absence was attributable to his participation in the strike and that he was properly included in the Union s offer to return to work Accordingly it is found that counsel for the General Counsel has failed to establish Dexter Kerr s entitlement to reinstatement and hence all allegations regarding Kerr in the complaint should be dismissed Ronald Kerr who also did not testify was sent the June 27 1980 letter inquiring if he was interested in re turning to work Ronald Kerr was then sent a telegram on July 10 1980 which stated that his unconditional offer to return to work was accepted and informing him he was to return to work to Dick Rowe in the produc tion office on Monday July 14 1980 Subsequently at an unspecified date Ronald Kerr telephoned and was in formed that he was being called back to Respondent to be put on layoff Respondent explained that Ernie Phil lips and Mark Hammerdinger were hired to work in the chassis department in place of Ronald Kerr because Her bert Shertz the foreman and Jose Albarran the lead man determined that Ronald Kerr did not have the nec essary skills for the position in that department These re placements were hired after July 1980 According to Ed Simovich they were going to hire individuals with very specific skills as opposed to Ronald Kerr who had per formed only general assembly work in that area of the corporation Phillips had been a mechanic for 13 years and was hired to perform brake assembly brake adjust ment brake installation and repair which was a job the corporation had had performed for a number of years by an employee who was retiring 102 Hammerdinger ac 102 Because there was an employee who was retiring being replaced by Phillips could Phillips reasonably be considered a replacement for Ronald Kerr is a question that was left unanswered by Respondent cording to Respondent had more mechanical experience and schooling than Ronald Kerr Hammerdinger could troubleshoot and perform jobs that were not repetitive in nature including tasks that required a measure of diag nostic skills Respondent had an employee in the assem bly department who was 70 years old and could not per form full time work anymore Hammerdinger was to per form those functions and also he went to diesel school to become a diesel mechanic Champ was putting in more diesel models 103 To date there was no indication that Ronald Kerr was ever offered reinstatement Randolph Montoya according to Ed Simovich did not participate in the strike to his knowledge He was on the payroll on October 28 1979 working for Champ 104 In mid November 1979 Ed Simovich asserts that he had a conversation with Montoya in the parts department Montoya assertedly had come to the premises to pick up his personal belongings In the presence of Larson as Montoya was leaving the department with a radio he stated that he was departing and not coming back Ed Simovich inquired if he was quitting and Montoya said he was leaving Montoya then talked to Larry Larson on his way out and then left Montoya did not come to the Company on April 21 1980 and on December 10 1979 before the termination of the strike Respondent wrote a letter to Montoya stating It is our understanding that you told Larry Larson the parts department manager 105 that you were not going to work here anymore as of 11-28- 79 The enclosed check represents your pro rated va cation from the first of Jan 1979 through your date of termination You had already been paid for your one week s vacation based on the year 1978 If there are any questions please call me This letter which contained a check in the sum of $153 66 was signed by Arvilla Shooter Montoya did not appear and testify There was no explanation for his ab sence Accordingly the uncontroverted testimony of Re spondent is credited and he is found to have voluntarily terminated his employment as of November 28 1979 5 Employees on layoff These employees Gonzalo Andrade Manuel Garay Javier Lopez and Jose Reyes along with all the other employees who had reported as being available for work on April 21 received a telegram on or about May 28 1980 stating We accept your unconditional offer to return to work and you are to report into Mr Ed Simo 101 Because the unnamed 70 year old employee who was working part time was at least partially replaced by Hammerdinger the question of whether Hammerdinger was hired to replace R Kerr is again not fully explicated on the record Therefore it is found that this assertion is a pre text to mask discriminatory motives 104 No company documents were proffered in support of this assertion 105 It is observed that Respondent in this letter before the termination of the strike and before the first of January when Respondent asserts it reorganized its personnel designated Larry Larson a manager This refer ence supports the finding above that Larson is in fact a supervisor as de fined in the Act and discredits Respondents claims that only after the reorganization did some of its employees accede to supervisory status CHAMP CORP 857 vich at the personnel office (2439 Rosemead) on Friday May 30 1980 at p in According to Ed Simovich the four individuals placed in this category were replaced by employees106 before April 17 and these replacement employees were laid off The layoffs occurred sometime in the beginning of May Because these striker replacements were laid off the strikers were placed on layoff status Consonant with this decision Ed Simovich gave these four strikers a letter on May 30 which stated You are being called back to the active payroll of the company and you are laid off for lack of work Had you been working here at this time you would still be laid off for lack of work You have not been replaced The company s policy regarding your right to recall from layoff is as follows 1 If you have worked twelve (12) continuous months or more for the company from your last date of hire your right to recall shall exist up to twelve (12) continuous months of layoff from date of layoff 2 If you have worked less than twelve (12) con tinuous months for the company from your last date of hire your recall rights will be equal to the number of continuous months actually worked Subsequently on November 19 1980 Arvilla Shooter sent a similar letter to the four individuals placed in this category which stated This letter is intended to clear up any misunder standing that may exist regarding your economic layoff from Champ Corporation At present there are no available job openings in the department where you worked and no other available work as signments for which you are qualified You have been placed on layoff as you were originally noti feed on May 30 1980 until that time when an open Ing for which you are qualified develops No limita tions have been placed on the time duration of your recall rights There was no indication that any of these four individ uals were ever recalled to work 6 Permanently replaced strikers As previously indicated Ed Simovich placed 10 strik ers in the category of being permanently replaced before November 4 1979 Originally he named Jesus Valdez as being within this category but on reflection realized that this placement was a mistake that Jesus Valdez was not permanently replaced on or before November 4 1979 Instead Martiniano Rodriguez had been replaced by November 4 1979 Ed Simovich defined this classification as encompass ing those strikers who were replaced by an individual who was hired as a permanent employee of Respondent toe It is asserted that Andrade was replaced by Frank Edwards Garay was replaced by Joe Pinzon Javier Lopez was replaced by Al Scoma and Jose Reyes was replaced by Martin Gonick before November 4 1979 The date of November 4 1979 was chosen pursuant to the advice Simovich re ceived from Hoy that the date had significance because of the allegations of counsel for the General Counsel The determination that a certain employee permanently replaced a striker was made by Ed Simovich who deter mined if the work the replacement employee was doing was the same as that previously done by the striker The determination he stated was based on a variety of rea sons sometimes involving working on the same machine or doing the same job as the striker The status within the four categories of the strikers was changed by adding some to the layoff list as seen in the discussion of the first category involving employees who did not appear at the Company on April 21 During the course of determining reinstatement strik ers were placed on layoff from another category if it was determined that the individuals who replaced them were laid off because of lack of work Ed Simovich asserts no striker was initially placed on layoff solely because of lack of work only because the individuals that replaced them were laid off 107 The determination of who was to be laid off was based solely on need what jobs the indi viduals were performing and which ones were needed to continue the operations of the plant consistent with orders for merchandise and other economic circum stances Ed Simovich avers that the employees who were des ignated as permanently replaced were put on a preferen tial hiring list when a job which they had performed before the strike became available and there was a need for an individual to perform that job permanently they would notify an employee within this group and offer them the opportunity to return to work 108 The Compa ny reserved the right to change the requirements needed for a position as it came open and did not feel necessari ly an obligation to offer a job to a former employee if they determined the employee did not have the skill to perform that job The Company reserved unto itself the right to fill jobs with individuals who had different quali fications than someone who had gone out on strike Ed Simovich testified that this modus operandi was consist ent with his statement in an affidavit given on September 8 1980 which asserted that the Company whenever an opening in the work occurred offered a job to the em ployee that was formerly doing that work or consider that employee to fill the vacancy before a stranger off the street would be considered for the job 109 101 It is asserted that the Company never laid off on the basis of se niority before or during the strike 08 This testimony was somewhat modified when Ed Simovich stated that this practice was followed as a general rule if it was determined that the stnker could do the work could do all that was required on the job then they would offer the position to that striker Therefore it is found that the Company did not have a clear well defined method of reinstat ing the employees in this as well as the other categories 109 No inconsistency is found based on the statement that they would consider the employee to fill the vacancy indicating that there was a po tential that they would evaluate that striker s abilities or other unnamed factors to determine if they wanted to maintain the same skill level before deciding if they wanted to modify the job description or the skills re quired of the individual filling the job 858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As previously indicated this classification of employ ees was also requested to report to Respondents prem ises on May 30 1980 When the individuals so classified did report they were given a letter signed by Tom Si movich general manager which stated All records classify you as an economic striker who has been perma nently replaced on or before November 3 1979 110 At present we have no other job openings for which you qualify You are therefore on layoff status and we will place your name on a preferential hiring list at your re quest which must be received by the company in writ ing no later than June 6 1980 Attached is a stamped and pre addressed envelope including a preferential hiring form marked to the attention of Ed Simovich to be used for mailing your request to the company The preferential hiring form was merely a statement that the signatories to the form wished to have their name placed on a preferential hiring list According to Ed Simovich no one returned the form stating they wished to be placed on the preferential hiring list Ed Simovich testi feed that in his opinion the replaced strikers did not have to sign and return the form to Champ Corporation in order to be placed on a preferential hiring list Also during the May 30 meeting it is the uncontro verted testimony of Francisco Zamora that he asked Ed Simovich if signing the form would result in the loss of his 11 years seniority Ed Simovich assertedly replied that he could not respond to the question at that time It is noted that the choice of November 3 1979 as the date used to determine if a striker had been permanently re placed coincides with the date selected by Respondent as the return date for the employees in its solicitation of their return in the letter of October 30 1979 As previ ously indicated the letter signed by Tom Simovich states We have been waiting patiently for you to return to your job and we shall continue to do so until Friday morning November 2 at 8 am They then promised that if strikers reported by Friday November 2 at 8 am you will be put to work immediately Witnesses for Respondent indicated they were going to honor that letter in the event that the individual strikers returned to work Accordingly Respondent through Ed Simovich testified that up to November 2 1979 the striking em ployees were not going to be considered as permanently replaced if they returned to work on that date Respondent without any request and apparently on its own initiative sent to these 10 assertedly replaced em ployees their accrued vacation pay Furthermore pursu ant to a recommendation by Hoy based on some conver sations he had with an employee of the Bank of Amer ica the Company notified the six employees who had vested interests in the Company s profit sharing plan that their accrued profit sharing benefits would also be sent to them As explained in the letter the basis for this action is As of this date we have not received your request to place your name on the company s preferential 110 Note that the date specified in the letter differs from the date Ed Simovich gave as the time he discerned that they were permanently re placed November 4 1979 hiring list We discussed this matter with you on May 30 1980 and gave you a preferential hiring form with a stamped and pre addressed envelope for mailing directly to the company We desire to know whether or not you desire to be included on the preferential hiring list so that we do not over look you should we need additional help in the future If you desire to be included on the preferen tial hiring list we must have your request within the next several days or so unless there is an ex tenuating circumstance beyond your reasonable control As previously indicated Ed Simovich in his testimo ny admitted that the submission of the form was not necessary to be placed on the preferential hiring list and that no employees returned the form Respondent failed to advance any reason for requesting submission of a signed form as a condition precedent to placing the ad dresses on the preferential hiring list Respondent on June 18 mailed a letter to the six em ployees it determined had vested interests in profit shar ing plan regarding the amount of money they had in their profit sharing plan These employees were Zamora J Arroyo Figueroa A Andrade Valdez and Corona do On or about June 26 Fenton wrote Hoy inquiring which employees received their profit sharing interests and why the profit sharing interests were disbursed Hoy responded to Fenton s letter on or about August 14 stat ing We have delayed our answer to your letter re questing names of employees who have received checks representing their vested interest in the Champ Corporation profit sharing plan because it takes many weeks for the trustee to process the checks and at the time of your letter very few checks had been issued As of this date the following individuals have re ceived their checks as a result of their termination of employment with the company They and any other employees terminating their employment from the company will not have any continued participa tion in the Champ Corporation profit sharing plan Manuel Avalos Martmiano Rodriguez Filiberto Ruiz Francisco Zamora Jesus Valdez Enrique Figueroa David Coronado Antonio Andrade Javier Arroyo Ernesto Cortez Erasuro [sic] Salazar Mr Steve Baugh has terminated his employment with the corporation but as of this date his check is in process through the trustee as is Mr [Vecente] Banag s The Champ Corporation makes the full contribu tion to the profit sharing plan No employees may make any contribution to the plan Subsequently Ed Simovich states that Hoy called and informed Respondent that the National Labor Relations CHAMP CORP Boards Office of the General Counsel considered the letters disbursing the profit sharing plan vested interests as letters of termination Therefore the Company sent letters dated September 5 which notified these six em ployees who had been issued their profit sharing benefits that there was some confusion about the matter and re quested that they return the checks Respondent denies that the letters could be construed as termination letters because they did not follow the form established by the corporation which requires that all termination letters in elude the basis for such action and encloses all moneys accrued i i i All employees sent these checks on Re spondent s initiative returned the moneys and they are still considered participants in the profit sharing plan with the exception of Coronado according to Francisco Zamora According to Ed Simovich Andrade was replaced by Rogilio Rivera Alejandro Arroyo was replaced by Ray Hoyle Javier Arroyo was replaced by Alfredo Cisneros David Coronado was replaced by Billy Abernathy Ricky Craft was replaced by David Herrera Figueroa was replaced by Juan Almos Lorenzo Franco was re placed by Perry Acosta Mickey Lambright was re placed by Mark Case Martintano Rodriguez was perma nently replaced by Gabriel Perez and Francisco Zamora was permanently replaced by Clarence Conaway 112 According to Jesus Valdez uncontroverted testimony the first communication he received from the Company after the May 30 1980 meeting was when he received a telephone call at his home from Ed Simovich on or about August 5 1980 Ed Simovich inquired if Valdez was currently working or if he was interested that there was an opening for him at Champ doing the same job he had done before the strike Valdez indicated that he wanted to work and Ed Simovich asked if he could be there the following day at 8 am Valdez responded in the affirmative On the following day August 6 Valdez went to the Company and talked to Ed Simovich and Phyllis Lund about 8 am Ed Simovich stated that he was going to start Valdez as a new employee inquired if he had received a letter stating that he had been re placed and also asked if he received his profit sharing check Valdez replied yes to these inquiries Ed Simo vich then stated that he wanted Valdez to execute some papers and wanted to read the rules of the Company For example he wanted him to complete a new employ ee application and to get a physical from the doctor 113 I 11 For the Company s profit sharing plan to vest Ed Simovich be lieves that the employees must work for the Company for 3 years 112 Regarding Jesus Valdez in addition to admitting that he was mad vertently placed on the permanently replaced strikers list Ed Stmovich stated that he was originally replaced by John Moya but he does not know when Moya was hired Before Moya s hiring an individual by the name of Arthur Barrego assumed Jesus Valdez job duties but was deemed incompetent and was replaced by Moya Moya was also assigned the task of leadman in addition to doing Valdez job Moya is currently not working for Champ he does not know the exact date Moya left Champ but it was shortly before Valdez was asked to return to work somewhere around July 15 1980 11 Ed Simovich testified that when they were hiring the permanent replacements for the strikers during the strike they required all employ ees to execute these documents and to get a physical examination How ever most of the employees hired during the strike that testified at trial did not receive a directive to get a physical and had not received a physi 859 Valdez inquired if he could take the documents home and return them the following day Ed Simovich indicat ed that he would permit Valdez to take that course of action When Valdez got home he did take a physical and showed the papers to Francisco Zamora Zamora prepared a document for Valdez signature stating I am signing company policy forms and regulations But I do not consider myself as a new employee Valdez execut ed the document When he returned to the Company on August 7 at 8 a in he gave Ed Simovich the documents including the form prepared by Zamora Ed Simovich leafed through the documents saw the declaration that he did not consider himself a new employee said that s what I was looking for and wrote a note He gave it to a telephone operator or receptionist to have it typed and handed it to Valdez to sign Valdez asked Ed Simovtch pursuant to Ed Simovich s suggestion if he could talk to Francisco Zamora on the telephone because the docu ment Ed had prepared stated that as a condition to em ployment he considered himself a new employee Valdez told Ed Simovich that he would return to work if he did not have to sign the paper He was not permitted to return to work on that basis Valdez then said he was sorry he would not work under those circumstances and left the premises He left all the documents with Ed Simovich On or about September 7 he received another tele phone call from Ed Simovich who stated the Company was going to take into consideration his seniority from the year 1975 which took into account a hiatus in em ployment since Valdez commenced his employment with Respondent in 1972 Valdez agreed to the computation of seniority from 1975 and asked if he had to sign any papers to which Ed Simovich replied in the negative Valdez went to work the following day September 10 He did not talk to anyone just punched in and com menced his reemployment He works in an area where he is by himself He did not experience any difficulties from Ernesto Lopez or Arturo Nieblas nor Freddie Val lejos Valdez substantially unrefuted testimony is cred ited Ed Simovich indicated that because Valdez slipped in the document that stated he did not want to be con sidered a new hire he felt Valdez could not be trusted Ed Simovich took the position that because Valdez was given a notice of termination on May 30 1980 as con firmed by a letter dated June 10 1980 and he received his backpay that he was considered a new hire on August 6 There was no explanation about why he even tually reinstated Valdez and felt him to be trustworthy in September cal Another discrepancy between the asserted method of hinng replace ments is that Ed Simovich stated that they generally tested the replace ments to ascertain if they met the requisite skill level to perform the job and the replacements who testified stated that after a short interview they were immediately hired without the medical examination and without a test of their skill levels In fact several of these replacement employees testified that they were currently being trained by Champ Corporation that they did not have the requisite skill level when hired and were not tested before being hired Based on demeanor inherent probabilities and the fact that several of these witnesses were current employees of the Company their testimony is not credited 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD With respect to Valdez Ed Simovich was shown his affidavit which stated that on May 30 Valdez and other economic strikers came in and were told they were eco nomic strikers and would be placed on a preferential hiring list Ed Simovich also gave them each a form to mail back if they wished to be considered for an open ing Ed Simovich then asserted on the same page of the affidavit that on June 10 a letter was sent to Valdez with reference to those who failed to send in the form stating that they wished to be placed on the preferential hiring list The affidavit asserts that the purpose of the June 10 1980 letter was to inform the employees of their prefer ential hiring rights that they had been replaced and therefore were eligible for unemployment compensation Then the affidavit goes on to state that Valdez was given his notice of termination on May 30 and a letter of June 10 1980 was to confirm the termination When ex amined about the affidavit Ed Simovich stated that it was an inconsistency that he was unhappy about it and that he had called counsel for the General Counsel stat ing that he wished to have someone take another affida vit because he considered portions of the affidavit were contradictory The affidavit was signed September 3 1980 On September 8 1980 he tried to clarify the mat ters he deemed to be inconsistent or contradictory He admitted that after the first affidavit was taken he reread portions of it that he felt were contradictory Because he admitted that he reread the affidavit after the Board agent departed it is found that he read it before affixing his signature to the September 3 affidavit and that his disavowal is not credible Martiniano Rodriguez 114 while not initially classified by Ed Simovich as falling into that category of individ uals who had pending criminal charges was sent the letter to report on May 30 as were all other strikers who signed the sheet presented by the Company to those indi viduals present on April 21 to report May 30 When Martiniano Rodriguez reported stating he was ready to return to work Ed Simovich said that it was not an offer to return to work and handed him a piece of paper re garding the criminal charges pending against him Rodri guez informed Ed Simovich that there were no charges against him Ed Simovich looked in a notebook that he kept and said the Company had charges filed against him Martiniano Rodriguez reiterated there were no charges pending Ed Simovich told him to go to the sheriff's office to get some document that indicates that the charges were no longer pending and thereafter that he would have a job Martiniano Rodriguez said that he did not have to show the Company any material or sig natures because as they were working through the Union he could not sign any papers independently He was given a paper that had no significance to him and he tore it up Ed Simovich spoke to him through an inter preter but his testimony indicates that he does not and 114 M Rodriguez was never arrested during the strike but he had criminal charges filed against him by Rudy Korste He was not consid ered by Respondent to fall into the classification to be discussed in detail hereinafter of those individuals having pending criminal charges at the time of the offer to return to work Rodriguez was subpoenaed went to court on the basis that Korste alleged that M Rodriguez hit him in the face They went to court in March or April 1980 did not have a clear understanding of all that transpired during the meeting For example Rodriguez testified that Ed Simovich did not know what he was talking about or what Ed Simovich was referring to because Ed Simovich indicated Martiniano Rodriguez had criminal charges filed against the Company while Rodriguez un derstood it was the Company that filed charges against him M Rodriguez contended he was not guilty of any thing and because the Company instituted the charges he inferred that he had no obligation to sustain any burden of proof In July 1980 Martiniano Rodriguez went to Champ Corporation and spoke to Phyllis Lund in English 115 According to Martiniano Rodriguez he went to the Company and spoke to Phyllis Lund to receive his profit sharing benefits similar to other employees that he heard were sent their benefits Phyllis Lund informed him she could not give him his benefits and he inquired how come they were sending benefits to other employ ees or some employees homes Phyllis Lund replied that she would give him his benefits if he signed a piece of paper that she handed him Martiniano Rodriguez in formed her that he did not want to lose his benefits from the Company or the Union Phyllis Lund assertedly told him that the only way she could return his profit sharing to him was if he signed the paper but he was not to worry because he was going to get his job back no matter what occurred Rodriguez claims based on that understanding he signed the paper she tendered him as a prerequisite to receiving his benefits He stated that he was forced to sign despite his reservations because he needed the money he had five children was without a job and had knowledge that there were other people re ceiving these benefits Martiniano Rodriguez admitted that Phyllis Lund told him that the only way the Com pany paid profit sharing was if someone quit or terminat ed their employment but because individuals had re ceived their benefits that had not been fired or otherwise terminated their employment and Lund assured him after he stated he did not want to lose his job that he was not to worry about that he said Okay He never told her that he would quit The document Martiniano Rodriguez signed on July 8 1980 states I Martiniano D Rodriguez hereby tender my resignation from Champ Corp as of this date Martiniano Rodriguez testified convincingly that he did not read the document before he signed it because he speaks little English and does not read English He did not ask Phyllis Lund to read the document to him be cause he was informed that the signing of the document was the only way for him to receive his benefits When asked if he knew he was quitting by signing the paper he said In a way but I did not know because she ex plained it to me but I signed it because she told me that the persons who had received the profit sharing had also signed this paper He stated that he thought the paper was a document that had to be signed to enable the Company to give them their benefits He understood Martiniano Rodriguez did not demonstrate a proficient command of English during his testimony at the trial CHAMP CORP 861 Phyllis Lund to say there was no way he would lose his job that no matter if the Company won or lost or the Union won or lost he would have his job back Martin iano Rodriguez had heard that Francisco Zamora Arroyo and he believed Enrique Figueroa received their benefits with quitting He inquired why they were getting their benefits and Phyllis Lund informed him that he too could receive them but he had to sign the paper On July 11 Martiniano Rodriguez was sent a letter signed by Arvilla Shooter stating that he had voluntarily terminated his employment with the Respondent and they were enclosing a check covering vacation pay due for the work performed from January 1 1979 to Decem ber 31 1979 Subsequent to the receipt of the letter he received a check for his profit sharing which he deposit ed He never talked to anyone at Champ about the letter he had his son explain the letter to him by translating it for him Martiniano Rodriguez never showed Champ Corporation the documents he received exculpating him from the alleged criminal charges Phyllis Lund asserts that Martiniano Rodriguez came into the office and requested his profit sharing stating he had many medical bills Lund said she inquired if the Union was not assisting him in paying those bills and he made no reply but just shrugged his shoulders He again repeated his request because of medical bills and she told him that he couldn t have the profit sharing until he left and he said well I have to leave Lund informed him she would have to get something in writing She typed up a termination notice handed it to him inquiring if he could read English and he said yes he could She handed him a pen and he signed it She went and made a photostatic copy for him he waited for the copy and then inquired when he would get his money and she said in 2 or 3 weeks During her conversation with Martin iano Rodriguez she did not consult or talk with anyone else from the Company She knew that some individuals in the Company had received profit sharing checks and that they were subsequently asked to return their money They all did but one She did not recall which one 116 She admitted that Martiniano Rodriguez never said he wanted to quit before her informing him that he had to terminate his employment with the Company before re ceiving his profit sharing contributions She does not know if Martiniano Rodriguez was informed that he could return his profit sharing money to his account There was no documentation indicating that Respondent had in fact offered Martiniano Rodriguez the opportune ty to return the profit sharing money to his account Ricky Craft testified that since May 30 1980 he had not received a call back to work from Champ At no time after May 30 he testified without refutation did he indicate to the Company that he wanted his profit shar ing benefits He did receive a vacation check and a letter saying that any profit sharing due him would be for warded He had none forthcoming Respondent asserts that no offer of reinstatement had been made because he was permanently replaced and there was no opening re quinng his job skills 116 This testimony corroborates Zamora s claim that Coronado did not return the check Tom Simovich stated that he had been informed Ricky Craft had been shot or injured during the strike and had an occasion to look at a police report regarding the inci dent 117 Tom Simovich stated that he knew Ricky Craft was discontented that he felt he did not rise in the Com pany as fast as he could have He stated that Ricky Craft in his opinion was the son in law of an individual who worked for the Company for many years but did not know anything about his trade Tom Simovich in an affidavit given in December identified Ricky Craft as one of the eight people in the Company that he consid ered very violent constantly harassing individuals and causing trouble 118 When again asked if Ricky Craft was considered to be violent and guilty of constantly harass ing individuals and causing trouble Tom Simovich re plied that Ricky Craft rode around with Steve Baugh and whenever Craft was present in the evening locks were being jammed with liquid solder and other maters al There was no direct attribution of any wrongdoing to Craft He was not sure whether Craft was on the bar gaining committee of the United Auto Workers but he believed he was If Tom Simovich s testimony was to be credited it would be at odds with his son s testimony in that Tom Simovich is asserting that Ricky Craft would not be reinstated He was considered a troublemaker guilty of harassment violent conduct and placing solder and other materials into various locks around the compa ny property Based in part on the disparity between Tom Simovich s testimony which is contrary to Respondent s representations and Ed Simovich s testimony inferring that Ricky Craft was not reinstated or offered reinstate ment because of his being deemed permanently replaced Based on demeanor and inherent probabilities both wit nesses are not credited Accordingly the basis for the failure to reinstate him are found to be mere pretext It is also noted that Mickey Lambright was placed in the same group of Steve Baugh and Ricky Craft and he also has not been offered reinstatement Mickey Lam bright did not appear and testify Steve Baugh who was also considered a troublemaker was inexplicably offered reinstatement on May 12 Francisco Zamora another member of the Union s ne gotiating team who was classified as being permanently replaced has not been offered reinstatement to date 119 117 Respondent tried to introduce evidence using extrinsic evidence to attack Craft s credibility The subject matter of the extrinsic evidence was not a subject of cross-examination even though counsel for Respond ent was not precluded from engaging in cross examination on the subject Because the proffered testimony is barred by Rule 608(b) of the Federal Rules of Evidence it is found not probative and is stricken I" The others identified as troublemakers in that affidavit were Solis Ortiz Figueroa Zamora Baugh Valenzuela and Almaroz i i s There was a question raised by Respondent whether Zamora was disabled sufficiently to preclude reinstatement in his former job That question was not the subject of any evidence demonstrative of how the injury precluded him from performing his job Therefore the evidence is found to be not probative of a lawful reason for failure to reinstate Zamora There was no medical documentation that his disability is of the nature and type that would preclude or impair his performance as an op erator of any machine that he would be required to operate while in the employ of Respodnent 862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Ed Simovich after consulting with Peter son the foreman under whom Zamora worked Zamora was deemed not to be a highly skilled employee he was described as not having a great degree of competence Therefore the replacement was found to be much more beneficial to the Companj According to Ed Simovich he has only seen Zamora work on the longbed engine lathe that was the sole skill he assertedly holds His re placement can work on both the turret and the small engine lathe operations in addition to the longbed engine lathe Tom Simovich testified that Francisco Zamora had the worst attendance record of any man working for him that he would have to hire labor attorneys or some one to fire him otherwise he would have fired him He made the statement despite the fact that he admitted that Zamora who was initially hired by Respondent in July 1968 quit for a short period of time less than a day to work for Safeway and was rehired by Champ after having worked at Safeway only one evening When Zamora told Tom Simovich that he wanted to try the Safeway job Tom Simovich assertedly said that there was no problem he could come back anytime Tom Si movich displayed hostility toward Zamora saying that he was the type of individual who smiled at your face but stabbed you in the back In describing the basis for failing to reinstate Zamora neither Tom or Ed Simovich mentioned Tom Simovich s statement to Zamora on March 7 that he would never work for Champ again That Respondent retained Zamora in its employ since 1968 and rehired him in 1979 after he quit for a very short period of time belies the contended dissatisfactory nature of the employees performance Furthermore the contention that Zamora had a very poor attendance record was not substantiated by any documentation from the records of Respondent This bare assertion without producing any records which are in the dominion and control of Respondent is demonstrative of failure to rein state based on unlawful motive rather than a belief that the individual was permanently replaced Tom Simovich also stated that Lorenzo Franco was a troublemaker refusing to do some work and defying the leadman Lorenzo Franco was employed by Respondent August 23 1977 'and was paid a midrange hourly salary indicating a fair skill level Tom Simovich further assert ed that Lorenzo Franco complained that smoke was bothering him in the area where he was working and therefore it was his excuse for constantly milling around the plant Instead of discharging the man Tom stated that he put him in an area where there was better venti lation and he could apply himself to a job without wan denng around It was asserted that Lorenzo Franco was doing about one third of the work of anybody else simi larly employed It is averred that Lorenzo Franco was reprimanded because he was deliberately slacking off on the job but the reprimand was not produced into evi dence When reprimanded Tom Simovich claims that Lorenzo Franco became very defiant There is no docu mentation regarding any of the assertions of Lorenzo Franco s alleged deficiencies as an employee The fact that he had remained in the employ of Respondent for a couple of years before the commencement of the strike without any documentation as to reprimand discipline or poor performance on the job is unexplained Because such documentation again would be solely within the do minion and control of Respondent the failure to produce such documentation warrants the making of an adverse inference Further the fact that Lorenzo Franco was not considered a superior employee does not of itself warrant the failure to reinstate this striker if there was a job opening The utilization of many reasons for not reinstat ing such a long term employee is very suggestive of im proper motive and such improper motive is found Respondent made no specific references to the abilities of Antonio Andrade Alejandro Arroyo Javier Arroyo David Coronado and Enrique Figueroa as employees 7 Employees with pending criminal charges According to Ed Simovich sometime between May 5 and 7 1980 he telephoned Deputy Terhorst to get a summary of all pending criminal charges He believes Terhorst gave him the names of strikers with pending criminal charges and the nature of the charges 120 The strikers that fell within this category were also requested to report to the Company at the personnel office on Friday May 30 1980 Ed Simovich asserts that he spoke to these 13 individuals separately informing them that they were not going to be called back to work on May 30 because they had criminal charges with the D A s office Ed Simovich asserts that he told each of these 13 individuals that it was their responsibility to clear up the criminal charges and then notify the Company On that day he gave them a letter which stated You currently have pending criminal charges with the District Attorneys office for STRIKE RE LATED CRIMINAL VIOLATIONS You are therefore ineligible for work reinstatement Should your arrest(s) be considered to be false your rein statement to work will be reconsidered at that time Signed Tom Stmovich General Manager Ed Simovich further asserted that these individuals after they cleared up the charges would have to bring a note fication or a piece of paper to the Company demonstrat ing that the charges were cleared up According to Joe Solis when he met with Ed Simo vich on May 30 one of the guards took him to a room where Ed Simovich was conducting the interviews and Ed Stmovich told him We can t hire you back to work at this company You cant have a criminal charge against you Solis asserts that he replied that the Com pany was the source of the criminal charges filed against him Simovich then stated We cant hire you back 120 As previously indicated those individuals that Ed Simovich deemed as falling within this category are Carlos Almaroz Ernesto Arroyo Alberto Cortez Ruben Gutierrez Cesar Moran Javier Olague Eduardo Ortiz Jose Padilla, Ramon Rodriguez Martiniano Rodriguez Joe Solis Henberto Valenzuela and Jose Villavicencio Also as previous ly indicated Vincente Banaga was placed in the same category however he did not appear on April 21 and for some unexplained reason was not treated in the same manner as the other individuals named by Terhorst pursuant to Ed Simovich s inquiry As noted by counsel for the General Counsel Banaga was given 1 year probation none of the other employ ees in this category was similarly convicted and sentenced CHAMP CORP After the charges are dropped maybe we 11 put you on the waiting list At that juncture Simovich gave him a piece of paper to sign indicating that he was present at the interview He was also given the previously de scribed letter Solis stated that there was no discussion of his physical or mental condition at the time just that Ed Simovich indicated that he could not help the fact that he and his father were responsible for the filing of charges against Solis and that if he cleared his name he would be put on a waiting list and if there were any openings the Company would call him Jose Villavicencio testified similarly to Solis Accord ing to Villavicencio when he came to the Company on May 30 he talked to Ed Simovich who had an interpret er present The interpreter was a guard Ed Simovich told him that if he wanted his job back he had to clean up his record Ed Simovich then gave him a piece of paper which indicated that he had no right to receive any benefits from unemployment that he had to look for a job on his own Ramon Rodriguez testified in a similar vein He stated that he got a telegram telling him to report to Respond ent on May 30 He went to an office where there was a guard present to assist him in translations from Spanish to English and English to Spanish According to Rodri guez Ed Simovich asked if he wanted his job back and Ramon Rodriguez replied in the affirmative At that point Ed Simovich told him to go to court that he had to go to the police station and bring Respondent proof stating that his record was clear that he had no criminal charges pending against him That was all that was said during the conversation then Ed Simovich gave him a piece of paper repeating these conditions for obtaining reemployment Carlos Almaroz also testified that when he went to the Company on May 30 and talked to Ed Simovich with a guard whose name he could not recall acting as inter preter he was given a letter by Ed stating that because he had pending criminal charges against him if he wanted to work he had to see the judge the district at torney or someone at the sheriff's department to clear up the charges [o]therwise he could not have his job On June 6 1980 over the signature of Tom Simovich Almaroz was sent the following letter This letter is to reconfirm our meeting with you on May 30 1980 to let you know that you are on indefinite suspension status and at this time are not eligible for work reinstatement We are looking deeply into your pending criminal charges which resulted from your arrest(s) for strike related vio lence Should your arrest(s) be determined to be false we will be in touch with you regarding your reinstatement to work We want to again remind you that you may have unemployment benefit rights and strongly urge you to contact the California Employment Development Department According to Ernesto Arroyo Larry Rincon and a secretary were present when he talked to Ed Simovich on May 30 Larry Rincon told him that his job was there 863 but he could not be returned to work because he had criminal charges pending against him He was then given a letter which repeated what Ed Simovich told him Arroyo received a letter very similar to that quoted above for Carlos Almaroz also dated June 6 1980 the only difference was the address 121 Jose Padilla also met with Ed Simovich in the presence of a security guard on May 30 and was told that because he had criminal charges pending that he had to first get those cleaned up Padilla replied that he had no charges pending against him that the security guard had dropped the charges Ed Simovich assertedly said good On Septem ber 26 he got a telegram dated September 24 instructing him to report to work on September 29 1980 at 7 15 am Respondent argues that Ed Simovich clearly instruct ed during the May 30 meeting all strikers who had criminal charges pending against them that they could not be reinstated until they cleared their own records and so informed the Company through the submission of probative documents Ed Simovich also testified that once the criminal charges were dismissed or otherwise disposed of it did not mean that the employees would automatically be reinstated he would also take into con sideration the complaints received and recorded during the course of the strike in the notebooks described before Ed Simovich admitted that he did not inform the employee strikers in this classification that consideration would be given to allegations of wrongdoing by replace meat workers or supervisors of activities allegedly oc curring during the strike The 13 strikers as Ed Simo vich admitted were never confronted with these allega tions or afforded an opportunity to reply or explain their conduct The Respondents claim that the strikers in this category were informed that they had the obligation to clear up their arrest records inform the Company and then and only then might be considered for employment is found to have been not clearly explained to the indi viduals during these meeting This finding is based on the following The guard that was in attendance did not tes tify about the explanations he gave the strikers 122 the letter given to the employees on May 30 admittedly by Ed Simovich stated that they are ineligible for work re instatement because of the pending criminal charges which the Company was looking deeply into and there was no indication that other matters would be taken into consideration The understanding of their obli gations as testified to by most of the strikers in this cate gory was reconfirmed by Respondents June 6 letter which stated that if the arrests were determined to be false they [Respondent] would be in touch with them re garding their reinstatement to work The wording of the June 6 letter further indicated that the Company was in vestigating the pending criminal charges that resulted 121 Also receiving such a letter was Cesar Moran who testified about the May 30 letter similarly to the employees discussed above Ruben Gu tierrez Ramos received the same letter on or about June 6 1980 and he also testified similarly to those quoted above about the meeting on May 30 with Ed Simovich 122 Ed Simovich could not speak Spanish therefore he does not know what the strikers were told during these meetings 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from their arrests which several of the strikers clearly took to mean that the Company was investigating the matter and that the strikers did not have the obligation to inform the Company about the disposition of the charges Furthermore neither the May 30 nor the June 6 letters indicate that the employees were requested to keep the Company apprised of what occurred during the processing of the charges pending against them Accord ingly the asserted basis for suspending these 13 individ uals to afford an opportunity to further investigate the allegations made against them with the shenff's depart ment as well as by employees within the firm is not cred ited In addition to the above reasons Ed Simovich was not exceedingly candid in his replies He was not candid with the employees that he interviewed because he ad mittedly did not inform them that he was taking into consideration allegations by coworkers therefore depnv ing them of any opportunity to address themselves to these considerations to try to show mitigation or wrong ful allegation contrary to the practice he established when replacement workers or other employees who did not go out on strike were accused of wrongdoing 123 An example of both the disparity in treatment and the failure to introduce evidence consistent with the allega tions involves Jose Padilla Padilla only asserted that the charges had been dropped There was no demonstration that he was required to show documentation for the alle gation yet he was offered reinstatement The day he re turned to work September 29 1980 he reported to Dick Rowe who left him at the machine shop at a desk where the foreman sat and told him to wait to pick up some supplies for him He was approached by three employees in white T shirts when an individual described as being a short fellow the nephew of Ernesto Lopez 124 asked what he was doing there and Padilla indicated that he was called back to work The nephew asked him if he 123 See for example the uncontroverted testimony that Joe Sanchez who was in the car at the time that the altercation resulting in the stab burg of Pedro Lopez occurred and the claim that there was a potential of gang involvement involved did not prevent the Company from hiring Joe Sanchez without any investigation by the Company into the matter Ed Simovich initially testified he was unaware of the fact that Sanchez was initially arrested in connection with the stabbing of Pedro Lopez Then he testified he was present when Sanchez was taken into custody or went along with the police However he stated that he was not aware that the taking into custody constituted an arrest This lack of candor and disparity of treatment between strikers and others is not an isolated inci dent Another example is that Ramon Rodriguez was considered to have committed such egregious acts as to warrant at least the delay of his rein statement but at the same time the individual who fought him twice Freddie Vallejos was not even disciplined Additionally Vallejos was at rested for swinging an ax during another incident not involving Ramon Rodriguez Vallejos was not disciplined or even questioned by Respond ent regarding these incidents even though Valleios was convicted of a misdemeanor and placed on probation Another area of disparity in the treatment of strikers compared to those individuals who did not go on strike is with reference to harassment of returning employees after the strike ended As will be discussed in more detail elsewhere in this deci sion a number of returning strikers suffered verbal and physical abuse and every time they made an allegation of wrongdoing on the part of an employee who had not been on strike Simovich questioned that employ ee to ascertain if they were guilty of wrongdoing The disparity of treat ment was not explained and such disparity is indicative of wrongful motive 124 He did not know the nephews name was hungry 125 and Padilla replied he was not hungry he came because he was called back to work The nephew of Ernesto Lopez then left and shortly thereafter returned with Ernesto Lopez and an individual identified as the brother of David Nieblas who has been identified on the record as Arturo Nieblas Ernesto Lopez asked him Hey you don t want to work? Padilla replied he wanted to work and he was told the foreman was wait ing for him by the drill press according to Lopez nephew When Padilla who was diminutive started walking toward the drill press Nieblas asked him what he was doing there and Ernesto Lopez said I don t want these son of a bitches in here According to Pa dilla Lopez then punched him in the stomach as did Nieblas and Lopez nephew Padilla said he fell down and Ernesto Lopez told him You get the hell out of here The next time you come I kill you Padilla then became nauseated as he was trying to leave vomited and was assisted by an individual who lives across the street from the Company Padilla phoned Frank Zamora to seek assistance When Padilla returned to the Company offices Gary asked what happened was told and asked him to talk to Tom or Ed Simovich Ed Simovich was not there at the moment Padilla went into the office and the switch board operator inquired what happened Padilla ex plained and Nick lanello was designated to take him to the hospital Padilla filed a police report but he does not know what happened afterward regarding the processing of the report After he made the police report Nick Ian ello picked him up at the hospital took him to the Com pany where he explained everything to Ed Simovich Ed Simovich was given the names of the individuals who beat him up and Padilla asserts he inquired why some thing was not done about it to tell his employees not beat other people up Padilla asserts that Ed Simovich shrugged his shoulders and he explained that he could not do anything about it Ed Simovich then asked if he wanted to return to work and he replied no he would have to see the doctor because he did not feel well He returned the apron given to him and he went to see his own doctor He has not returned to work since that incident al though he has called the Company twice The first time he called the Company was on September 31 and he talked to a women in personnel explaining he was off from work because of the incident and she explained she knew that they had sent him to the doctor He called the second time on August 5 and asked the individual who answered to tell them that Jose Padilla called because no one in an official capacity appeared to be present and he said they hung up on him On October 10 1980 he re ceived a letter dated October 10 1980 over the signa ture of Arvilla Shooter office manager which stated You have not reported to work for your shce duled work shift for the last five (5) days and net 125 It appears from the testimony of several of the witnesses that in quiring if an individual is hungry has a negative connotation among the residents of East Los Angeles and is taken as a prejorative or a negative inference regarding one s ability to earn a living CHAMP CORP ther have you notified the Personnel Office or su pervision that you are unable to work This is in violation of the Company Call In policy beyond the time period for which you are subject to immediate dismissal Thus you are hereby notified of your ter mination of employment with this company unless you can demonstrate there are extenuating circum stances beyond your reasonable control The payroll department will be notified of your termination and they will be forwarding to you any monies due to you Padilla stated that as of the date of his testimony in Janu ary 1981 he was still under a doctor s care due to the injuries sustained during the incident described above No medical evidence was placed into the record Based on demeanor clarity of recollection and the forthright candor with which Padilla testified his testimony is credited Ed Simovich testified that Dick Rowe had met Jose Padilla at the timeclock in confirmation of Padilla s testa mony and was going to get some gloves Rowe asserts in his testimony that he mentioned he was going to have a meeting with the employees Ed Simovich did not simi larly testify Rowe indicated the meeting was to explain that the returning strikers were not to be harassed Rowe went to get some gloves for Padilla and when he re turned 10 minutes later Padilla was gone On looking for Padilla he found him across the street at the main office claiming he was attacked by some employees He was taken to the doctor by Nick Ianello The foreman of the area Krivosha had not seen anything They talked to Ly Hen and Alfredo Cisneros who were working nearby where Padilla was to wait and they said they had not seen anything 126 Padilla according to Krivosha indicated that he had lost a son 6 to 8 months before his return to work in a knife fight and because of all the problems he did not want to experience any difficulty with the employees who did not go out on strike He had heard that there had been such trouble Krivosha told him that he would attempt to spend as much time as he possibly could near Padilla to make him feel better He described Padilla as being an older gentleman in his fifties Krivosha took the employees into a room with the exception of Norbert Rumenapp who works in the far corner to meet with him He told Padilla to stay at Krivosha s desk that there would be no one in the room but he and Rumen app and therefore he would be safe He told the 11 or 12 men about the Cortez incident 127 According to Krivo 126 Although Ianello was responsible for taking Padilla to the doctor he did not testify on the subject If the employees were at the meeting described by Rowe why Cisneros and Ly Hen were questioned is unex plained The inherent inconsistencies in the testimony given on behalf of Respondent require discrediting that testimony 27 Elpidio Cortez returned to work and stated that when left alone for 15 or 20 minutes he was harassed people called him names verbally threatened him but no one touched him physically He named Arturo Nieblas as a perpetrator Cortez left the Company s employ stating that he was afraid and would not work under those circumstances Cortez before leaving spoke to Ed Simovich several times According to Cortez the supervision at Champ indicated they would not do anything for him Also Cortez told Ed Simovich that Arturo Nieblas hit him in the arm with a fist So there was violence He stated that was all the vio 865 sha Padilla did not identify the perpetrators or alleged perpetrators Ed Simovich said that he talked to Ly Hen and Al fredo Cisneros who were working near Krivosha s desk and they had not seen anything Simovich s testimony is found to be disingenuous because Knvosha admitted that he had taken everybody except Rumenapp out of the room while Padilla was waiting for him to return with the gloves Simovich admitted that Padilla identified Nestor Lopez and two other people wearing white T shirts one a straw hat when Simovich went with Nick Ianello to pick Padilla up at the doctor s office This ad mission discredits Krivosha s testimony According to Si movich Padilla was released by the Dalton Medical Group the medical facility used by Respondent Simo vich stated that he looked to see where Padilla threw up could not find anything and indicated he really did not believe Padilla Ed Simovich also admitted that the following morning he got a message from Barbara Sorreno the receptionist that Jose Padilla called in and said his doctor had told him to stay off work for the rest of the week he would be returning on Monday October 6 He said that was the last they heard of Padilla indicating that Padilla at least made one phone call informing the Company that the injuries sustained caused him to be off work part of the time Padilla never brought any medical release or any statement from his doctor Simovich stated that he investigated the incident by talking to Alfredo Cisneros Ly Hen Victor Castonguay and Nestor Lopez who denied anything happened As previously indicated because Krivosha testified that nobody was in the area except Norbert Rumenapp and Ed Simovich did not talk to that individual the investi gation did not appear to be of the same nature and qual ity as those he engaged in when employees who worked through the strike alleged wrongdoing on the part of strikers The fact that he talked to Nestor Lopez who denied that he had any involvement in tht. incident is contrary to the manner in which he treated strikers who were not advised of any allegations by employees lodged against them regarding harassment They were not of forded a similar opportunity to deny their participation in harassment or other wrongdoings Although Nestor Lopez denied striking Jose Padilla or otherwise harassing him he did admit seeing Padilla and inquiring what he was doing there and telling him It was best for him to go to hell and that was all that I told him and then the boy and I kept walking and my little truck was there He said he never touched Padilla The admitted animus of Nestor Lopez and his demeanor lead me not to credit his testimony Simovich indicated that Padilla was offered reinstate ment not because the criminal charges were dropped but because he was advised by Hoy that counsel for the General Counsel required reinstatement of six employees in this classification 128 including Padilla This assertion lence he wanted that he was quitting The similarity of treatment lends further credence to Padilla s contentions 29 Those employees with pending criminal charges 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is not credited because Padilla indicated that the charges had been dropped and there was no showing that the wrongdoings he was alleged of otherwise perpetrating were of such a nature as to disqualify him from further employment with Respondent according to the measure used or claimed to have been used by Respondent Ini tially Ed Simovich stated that Hoy dictated a letter to be sent to these individuals offering them reinstatement pursuant to an agreement with the National Labor Rela tions Board Hoy then dictated the letters to Ed Simo vich The letters dated September 26 1980 were sent to Ernesto Arroyo Alberto Cortez Cesar Moran Javier Olague Ramon Rodriguez and Henberto Valenzuela and none was sent to Padilla who would have been the seventh striker in this category further placing into doubt Ed Simovich s testimony The letters signed by Tom Simovich stated We are changing your present status from indefi nite suspension to layoff due to lack of work When there is a job opening for which you are qualified we will reinstate you to work You may have un employment rights and we encourage you to con tact the California Employment Development De partment on this matter By this offer of reinstate ment we do not waive any of our rights or defenses we may have on any legal matters regarding your reinstatement Ed Simovich testified he took the letter down as dic tated in its entirety by Hoy and did not insert any of his own language He then testified after further examina tion that he inserted the last paragraph because he did not agree with the reinstatement of these employees Hoy testified that he advised Respondent to return all the strikers as quickly as possible with safety and pro duction requirements in mind and that for those strikers the Company did not have an immediate job opening they were to be given preferential employment rights He further stated that those strikers who had criminal charges were placed in a different category of reinstate ment There was no description of an agreement with counsel for the General Counsel regarding the 6 reem ployable strikers of the 13 employees placed in this cate gory or whether these conversations may have involved settlement talks which would render the testimony mad missible For these as well as the above stated reasons the lack of candor forthrightness full disclosure de meanor inherent inconsistency and lack of corrobora tion are all factors leading to the discrediting of Ed Si movich s testimony On October 31 1980 over the signature of Arvilla Shooter Respondent sent similar letters to Vlllavicencio Almaroz Ortiz and Ramon Rodriguez informing them they were terminated as follows The company has investigated the facts concern ing your suspension of employment because of strike related criminal violence and has reached a decision concerning your employment status with this company As of this date your suspension is being converted to termination of employment Your actions against employees of this company have been investigated by our agent of the National Labor Relations Board which has ruled that we are not compelled to return you to work The payroll department has been notified of your termination and will be forwarding to you any monies due to you Ed Simovich indicated that Hoy represented to him that counsel for the General Counsel informed him that it would be permissible for Respondent to discharge these four employees Neither Hoy nor counsel for the Gener al Counsel confirmed this representation and there were no legal documents or other indicia supporting this rep resentation Albeit there has been no determination by the National Labor Relations Board which is binding here and would permit the affirmation of the discharge without consideration of the action on the merits consist ent with the established precedents Accordingly the dis missal of all the strikers with pending criminal charges against them will be considered on their merits without being bound by any unsubstantiated and uncredited claim that a Board agent made the representations asserted here The records submitted into evidence indicate that the criminal charges against Valenzuela R Gutierrez Javier Olague and Ernesto Arroyo were dismissed on Decem ber 4 1980 As of January 23 1981 the docket for the municipal court of Rio Hondo Judicial District County of Los Angeles disclosed that the charges filed against Carlos Almaroz were dismissed on November 30 1979 Jose Villavicencio pleaded nolo contendere and was fined $70 50 on December 3 1980 The charges against Banaga Moran and Cortez were dismissed on Novem ber 4 1980 8 Other reinstatement events A review of the record indicates that the following striking employees received telegrams notifying them to return to work as follows On May 5 John Gresko was told to report to work on May 9 on May 7 Henry Car rillo and Filiberto Ruiz were told to report on May 9 on May 13 Tomas Vargas and Jose Naranjo were told to report on May 15 on May 12 Steve Baugh was told to report on May 16 on May 15 Manuel Cruz and Nicolas Diaz were told to report on May 19 on May 19 Ar mando Escandon Elpidio Cortez and Ernesto Franco were told to report on May 21 on May 20 Pedro Pena Salvador Fernandez and Erasmo Salazar were told to report on May 22 on May 21 Rene Gallardo Salvador Garcia and Octaviano Arellano were told to report on May 23 on May 23 Ernesto Cortez Salvador Elizar raras and Ernesto Lopez were told to report on May 27 on May 27 Wallace Kerr Pedro Garcia and Alejandro Lopez were told to report on May 29 and on May 28 Pedro Lopez 129 Jose Pedroza and Raymond Wise were told to report on May 30 129 Pedro Lopez as previously indicated suffered severe injuries as a result of a stabbing incident on October 19 and had not been released to work by May 30 When he did receive such release from his doctor he went to the Company in June they took a photocopy of his release and Continued CHAMP CORP Although Elpidio Cortez received the telegram direct mg him to report to work on May 21 1980 he asserts that he had his son who speaks English telephone Re spondent and inform them that he would be unable to report to work on May 21 because he had to go out of town and he had already picked up his tickets and could not postpone the journey Cortez testified that he re quested his son to inform the Company during this con versation that they had to pick up a car located in Idaho that had been previously confiscated by the U S Depart ment of Justice Immigration and Naturalization Service E Cortez also instructed his son to inform Ed Simovich that he could return to work that Monday He under stood from his son that Ed Simovich said he could not report to work the following Monday rather than the Wednesday designated in the telegram but that Cortez would have to call the Company on his return to ascer tarn if he would be accepted for reemployment 130 His son did not tell him that when he contacted the Compa ny on his return from Idaho he was to bring documenta tion verifying his assertion of the need to delay his re porting to work Cortez returned from Idaho around May 23 but did not report immediately to Respondent On May 27 Cortez went to Respondent in response to the telegram to report to work He talked to Tom Simo vich Jr in the presence of Salvador Elizarraras who had been on strike and was also returned to work and Tom Simovich Jr 131 who left with Cortez telegram came back approximately 5 minutes later and instructed him to wait there Subsequently Dick Rowe came to talk to him but was paged by Tom Jr and left after instructing Cortez to wait for Ed Simovich to come About 10 min utes later Ed Simovich came and inquired if he was coming to work When Cortez replied in the affirmative Ed Simovich inquired why he showed up for work be cause he did not communicate with the Company and had not reported on the scheduled date Cortez replied that his son had reported that he could not return on the date specified Ed Simovich stated that he was very sorry but Cortez could not work and Ed Simovich did not give him an opportunity to show the papers from the authorities that explained his absence By letter dated June 16 1980 over the signature of Arvilla Shooter Respondent sent Cortez the following letter You were given notice of suspension from work on May 27 1980 when you reported for work that told him he could not work in his present condition There was an mdi cation that perhaps he could do some light work that would not affect the injury he had sustained He was not offered any light work The fact that no light work was offered is pertinent to the subsequent discussion regarding Henberto Valenzuela who was struck in the head by an object after he was reinstated There was an inference by Respondent that per haps Valenzuela could do light work There was no showing however that such light work was available either for Lopez or Valenzuela and even assuming light work was available that such employment was ever offered to these employees The period of his entitlement to backpay is not clearly shown on the record and must be determined during the backpay hearing 190 Cortez did place in evidence copies of the tickets purchased from Greyhound Bus Lines for Twin Falls Idaho 191 Tom Simovich Jr did not appear and testify and therefore Cortez unrefuted testimony to this juncture is credited 867 day instead of May 21 You were instructed to return to work on May 21 in our reinstatement telegram of May 19 1980 We have been attempting to investigate the suspension but need your coopera tion Your home phone number was called by Mr Ed Simovich on June 3 and again on June 4 and a message was left for you to call the Champ person nel office so that we can investigate the circum stances surrounding your absenteeism If you do not call the personnel office by Thursday June 19 we will consider you not interested in returning to work and notify the payroll department that you have voluntarily terminated your employment with Champ Cortez forthrightly admitted that he did not call the Company as requested after receipt of this letter In re sponse to the failure to reply tot he letter another mis sive was sent by the Company to Elpidio Cortez on July 11 1980 stating that they had not heard from him and assumed that he voluntarily terminated his employment with Champ They enclosed a check for his vacation pay Counsel for the General Counsel and Respondent agreed and stipulated that no claim was being made on behalf of Cortez after July 11 1980 132 Eventually Elpidio Cortez was reinstated on August 4 He asserts that during the day his coworkers threw ob jects at him and that he was hit in the shoulder by Arturo Nieblas in the presence of a leadman He did not know the name of the leadman He informed the supervi sor he wanted to speak with Ed Simovich because of the problems he was experiencing particularly the throwing of metal and steel objects at him which had been wrapped in tape He did not see who threw the objects at him Initially he asserts the foreman went and said something to Arturo Nieblas which he could not over hear After speaking to Nieblas the foreman telephoned Ed Simovich who came to the area Cortez showed Ed Simovich the metal objects that were thrown at him as well as stones that were thrown at him and also in formed Ed Simovich that Arturo Nieblas had struck him in the arm and inquired what he was going to do about providing for his safety Cortez informed Ed Simovich that he could not continue working under those circum stances and wanted the Company to control their em ployees including stopping them from cursing at him He then saw Ed Simovich talk to Arturo Nieblas say something to him and Cortez decided that there was no remedy for the situation Simovich during the series of incidents said at one juncture that he couldn t do any thing because I was telling him to lay him off or for me 138 The Union would not join in the agreement asserting there was a continuing claim for backpay after July I1 to the present time Part of this claim is based on a charge that Respondent constructively discharged Cortez when he did eventually report for work on August 4 and terms nated working that day after being he asserts struck by Arturo Nieblas and called names in the language of Billingsgate This charge was dis missed by the Regional Director after investigation the dismissal was ap pealed and the dismissal was upheld Accordingly the Charging Party was informed that relitigation of the issue would not be permitted here However the evidence of harassment would be permitted to be adduced solely to demonstrate motive 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to look for some other job because I could not continue like this Simovich indicated that he could not do any thing about the situation that the workers who contin ued their employment and work activities during the strike or were hired during the strike were afraid of being discharged that it was up to Cortez to make a de cision about whether he wanted to continue under those circumstances After the second conversation with Ed Simovich Cortez decided to leave He left with Armando Escan don who started at the same time and quit at the same time because of the harassment Cortez stated during the second conversation with Ed Simovich he informed him that he could not work there anymore because Arturo Nieblas told him that he could go and complain 10 times that Nieblas was not going to stop his harassment that he was going to continue hitting Cortez Nieblas was de scribed without refutation as being a large strong young man much taller and stronger than Cortez When Cortez asked Ed Simovich if he could keep he and Nieblas apart Simvoich told him that he could not None of the objects thrown at him hit him but after he was struck in the arm by Nieblas he told Ed Simovich that his shoul der hurt and he would like a note to go to the doctor Ed Simovich replied that he could not give him assist ance He never heard Nieblas being cautioned about the incident He only saw Ed Simovich speaking to him Arturo Nieblas did not testify Ed Simovich asserts that Elpidio Cortez son did call the office and report that the car was stolen and they had to go to Idaho to pick it up Simovich further stated that he informed the son that his father was due to report to work on Wednesday May 21 and if he did not show up on that day he would have to provide some documentation to explain his absence The letter was then sent to Cortez on June 16 They tried to have a telephone conversation with individuals at Cortez house and left messages on both June 3 and 4 that he was to call in an effort to assist them in their investigation of his suspension He does not recall who answered the tele phone at Cortez home but he had Frank Devine who spoke Spanish leave the messages The first time he saw Cortez after the incident where they considered his fail ure to return the calls or reply to the letter as a volun tary termination was August 1980 They reinstated Cortez according to Ed Simovich based on Hoy s advice after Cortez was terminated because of a conver sation he had with counsel for the General Counsel As was the case mentioned before Hoy did not substantiate this claim and the asserted involvement of the Office of the General Counsel was again unexplained unsubstanti ated and therefore is not credited or otherwise found to be a binding determination Regarding the asserted harassment that occurred on August 4 Ed Simovich stated that the first incident he was involved in occurred midmorning after he received a telephone call from Dan Krivosha stating that Elpidio Cortez wanted to talk to him Simovich went to talk to Cortez who told him that objects were being thrown at him but he did not know who threw the objects Ed Si movich then asserts he talked to Don Westlein who worked next to Cortez Westlein stated he had not seen anything Cortez was instructed to tell Dan Krivosha Bob Peterson or Don Westlein if he experienced further difficulties He does not recall if he had any conversa tions with A Nieblas that day About noon the same day Elpidio Cortez came to his office and said that he was not going to work anymore that he was going to leave Simovich offered to go back with him and Armando Escandon who was also at the office Simovich did return to the work area with Elpi dio Cortez and talked to Don Krivosha and Don West lem which is when Cortez assertedly claimed Arturo Nieblas hit him in the arm Westlein stated that Nieblas had come over and the two of them were arguing in Spanish but he did not know what occurred no one had touched anybody Nieblas according to Ed Simovich said he did not hit Elpidio Cortez but that Cortez had a gun and was going to use it According to Ed Simovich because no one had seen anyone hit another individual he instructed everyone to go back to work and that is when Cortez said no he was leaving He went over to the new machine shop to say goodbye to Bob Peterson shook his hand and walked out Again it is noted that Ed Simovich when an allegation was made against an employee working in the shop during the strike he in vestigated that wrongdoing by consulting with the osten sible perpetrators During the strike similar allegations of wrongdoing made against strikers were not similarly investigated and even after the strike such allegations al though assertedly one of the basis for decisions to not re instate striking employees never were investigated by similarly consulting with the asserted perpetrators Similar to the case of Elpidio Cortez Armando Escan don was also sent a telegram on May 19 informing him that he was to report to work on May 21 On May 21 Escandon asked his niece to call Respondent and inform the Company that he was experiencing car problems and would be unable to report to work that day He stated the problem with the car was with the electrical system and he had the difficulty repaired by a neighbor who was a mechanic He paid the neighbor in cash and had no documentation that the repair was effectuated as claimed Escandon reported to work the following day and talked to Ed Simovich in the presence of an inter preter Ernesto Lopez He repeated he had difficulty with the electrical system in his car and was told that he would be suspended until the on going problem with the union was resolved they were going to investigate my case Ed Simovich through Ernesto Lopez also in quired if he had a receipt or some kind of proof that his automobile was in need of repair he replied no that he had a friend fix the vehicle at home and that he paid him $45 for the repair Escandon was then told he was sus pended Subsequently Escandon stated probably sometime in June he received a telephone call from an individual who identified himself as an interpreter who was speak ing on behalf of the owner The interpreter inquired why he had not come to work and he replied that he had dif ficulty with the electrical system in his car The inter preter then inquired if he was afraid to come to work and he responded no he was not afraid CHAMP CORP Ed Simovich stated that a child called and stated that Escandon had car problems that he was getting his car fixed and would report to work the following day Ed Simovich stated he inquired what the car problem was and the child stated that he did not know It is asserted that Ed Simovich then inquired if someone could give him a nde that he would send someone to bung him to work and the child said no that he was at the shop get ting his car fixed Escandon came to work the following day and was asked why he did not report the day before Escandon assertedly said he had problems with his car but did not state what kind of problems He did not have a receipt for the repairs or the purchase of parts Ed Sio vich then informed him that he would have to investi gate that Escandon was suspended pending the results of the investigation Escandon then left Respondent then according to Ed Simovich contacted Escandon around June 3 or 4 and again asked what kind of work was done on his car Escandon assertedly said he did not show up for work because he was afraid he heard strikers were having things thrown at them Escandon then averredly told the individual who called him that the real reason he did not report for work was that he experienced elec trical difficulties with his car but did not have any re ceipt for the work done Ed Simovich then said that he would get back to him Ed Simovich claims he discussed the matter with Ed Hoy and was advised that he could terminate him for lying so they wrote him a letter on June 19 stating that his son called the personnel office and reported that he had to take his car into the shop for repairs and that he had no transportation for work that the son was told that some documentation would be needed to justify the failure to report on the day the telegram instructed The letter further stated that when Escandon reported to work on May 22 and was asked to show proof that the car could not be driven to work on May 21 that he was unable to describe the nature of the work or state the name of the repair shop where the repairs were effected The letter mentioned that subsequent phone conversation of June 4 1980 resulted in Escandon giving conflicting stones stating on the one hand that he failed to report to work because he feared for his safety and on the other saying that the car problem prevented his reporting to work as scheduled The failure to provide any evidence that the car was inoperative and was repaired led them to conclude that his failure to return to work was be cause he did not offer unconditionally to return They thereby construed his failure to return on May 21 as a voluntary termination of employment The letter then states The reason for your termination is the conflicting explanation of your absence It appears that the real reason for your absence was a guarantee for your per sonal safety This is a condition we cannot guarantee even though we have taken many precautions to protect the safety of all our employees According to Ed Simovich again pursuant to a discus sion with Hoy which Hoy did not corroborate Escan don was sent a telegram in late July directing him to go to work on August 4 1980 Escandon reported as did Elpidio Cortez on August 4 Escandon reported to work in Ernesto Lopez paint department and after about 15 to 869 20 minutes at work the employees started to throw pieces of metal wrapped with masking tape at him Es candon could not see who threw the objects at him He was not struck by any object Escandon informed Er nesto Lopez that he was leaving because he could not countenance the physical danger He took his card punched out went to the office and gave the card to Ed Simovich He informed Ed that he was experiencing too many problems with the other employees and Ed re turned with him to the paint department talked with Er nesto Lopez telling him that Escandon wanted to quit because of the danger and Escandon said he did not want to quit he wanted to continue working but that Er nesto Lopez and Ed Simovich had to calm their people Escandon continued working and while con tinuing working evidently Ed Simovich and Ernesto Lopez had a conversation that Escandon overheard Ed Simovich inquired of Ernesto Lopez if it was true that things were being thrown at him and was told that it was true but that nothing hit Escandon Ed Simovich then left and the other employees resumed throwing pieces of metal wrapped in masking tape at him The only individual he saw throwing anything at him was an individual named David Around noon approximately six people surrounded him 133 They threatened to take him out by force cursed at him and made profane state ments about his family Escandon then decided to take his timecard and leave At that time he came across Elpi dio Cortez who was also leaving They both went to speak to Ed Simovich who brought in an interpreter whom Escandon did not know Ed Simovich inquired why they wanted to quit and then gave them a piece of paper to sign Escandon said he would not sign anything and left According to Escandon Ed Simovich never in quired of any of the employees about the incident other than Ernesto Lopez According to Ed Simovich when he checked to see how Escandon was doing it was not in response to any complaints by Escandon initially That he reported that things were being thrown near his work area but that he was not struck by any objects Escandon then indicated he was going to leave and Ed Simovich told him that if he left he could be subject to disciplinary action He then instructed Escandon that if he experienced any further problems to report them to Ernesto Lopez who would tell either Art Van Haasen or Ed Simovich and they would investigate and do whatever could be done to correct the situation Escandon agreed to that proposal and continued to work When Escandon came at noon time with Cortez he complained he had been threatened and he was leaving Simovich stated he offered to go back across the street to inquire what was occurring and Escandon said no he did not want to go back he was leaving Ed Simovich then inquired if he was quitting and Escandon answered in the affirmative He then gave Escandon a document to sign which stated he was quit ting Escandon said he would not sign it Ed Simovich did not say who acted as the interpreter or how he and as The individuals were named David a man nicknamed Horseface (later identified as Aurelio Muro) Roberto Arturo and two other people he did not know 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Escandon communicated Based on the previously stated reasons and the language difficulties that were unex plamed Ed Simvoich s testimony is not credited 134 On October 6 Respondent sent Henberto Valenzuela a telegram telling him to report to work on October 9 The instructions contained the caveat By this offer of reinstatement we do not waive any of our rights or de fenses we may have on any legal matters regarding your reinstatement Valenzuela did report to work on Octo ber 9 and was taken by rowe to the department overseen by Foreman Bobby Charles Smith According to Valenzuela when he returned to work he talked to Bob Smith who then went to use the men s room and while Valenzuela was waiting for Smith s return he was approached by six men one of whom Corona was previously identified as El Cuchillo 135 because he was armed with a knife Another of these in dividuals was nicknamed the groom or the boy friend identified as the brother of Larry Rincon There were three other individuals whose names he did not know The individual whom he identified as El Cu chillo threatened to kill him if he continued working for the Company At that time Smith came out of the men s room and went to his office Smith did not ask the group to disperse After the discussion Valenzuela went to Bob Smith to get his work assignment During this talk with Smith the individual he identified as El Cuchillo again threatened to kill him if he continued working at the Company pointing his finger at Valenzuela Valenzuela went to work and about 10 10 am an individual who was identified as the nephew of the pigkiller 136 said he came looking for him Valenzuela stated that he re ported the incidents to Bob Smith who told him I can t do nothing Valenzuela reported the incidents to the police The policeman indicated to Valenzuela that be cause he was not struck but merely threatened that they could do nothing Valenzuela understood the policeman to have instructed Ed Simovich to go back to Valenzue la s work station to help calm the situation When Valen zuela asked Ed Simovich to comply with the police offs cer s instructions Valenzuela asserts that Ed Simovich said he could not fix anything that he would accompany him but he could not remedy the situation After insist ing three times Valenzuela asserts Ed Simovich took him to the work station of Roberto Corona Valenzuela offered Corona his hand Corona said no way and then Valenzuela told Simovich that he was to observe the at titude and Simovich replied that he could not rectify or change matters Subsequently on the afternoon of Octo ber 6 Corona again confronted Valenzuela and chal lenged him to a fight but the matter was resolved be tween them amicably Then on October 14 around 7 30 a m as he was com mencing work he was surrounded by about 14 individ 134 Nestor Lopez denial is also not credited based on demeanor lack of clear recollection admitted hostility toward the sinkers the fact that there was uncontroverted evidence that objects were thrown within the shops and the apparent concerted lack of attempts to preclude employees from doing so even though it was admittedly known that particularly in the paint department several incidents of this nature had occurred iss In Spanish El Cuchillo is translated as the knife 198 The individual is otherwise unidentified uals He identified them by nickname primarily as fol lows Someone who takes care of pigs the nephew a man named Nieblas a man named Rene and others whose names he could not remember He identified the one who takes care of pigs as coming from the paint department the nephew as working in the machine de partment and Nieblas as a painter 137 The individual identified as the nephew threatened him that if he did not leave he knew what would happen to him At that time Bobby Smith walked by so Valenzuela told the people in English to get out of here this is my work sta tion and he did not want to be bothered Only then did Bobby Smith instruct the individuals surrounding him to go to their workplaces Later that day Valenzuela went to Ed Simovich s office and informed him what occurred and Ed Simo vich returned with him immediately but stated he could not do anything Valenzuela then called Zamora who telephoned the police He was told that a detective was being dispatched but he never saw the detective Valen zuela then met again with Ed Simovich as well as Tom Jr and Bob Smith explaining in detail what had oc curred and Ed Simovich again indicated he could not do anything inquiring of Valenzuela what he wanted of management Valenzuela indicated that Simovich ex pressed hesitancy in returning to the worksite to speak to the six people who had threatened him the preceding day He also stated Ed Simovich could instruct the em ployees that they should not bother him He went back to work and Ed Simovich said Bob Smith was going to take care of everything and that the Company wouid not let the coworkers bother him After he returned to work he was struck on the back with several pieces of metal rolled in tape Valenzuela in formed Bobby Smith who said he could not do anything Valenzuela asserts that he told both Smith and Ed Simo vich that he was being hit by objects steel plugs and steel nuts on October 29 but they said they could not do anything According to Valenzuela Ed Simovich told him that if the situation continued he would be moved to another department but he was never so moved The only person on October 29 who could have thrown the objects was an individual named Bill Plummer Ed Simo vich talked to Plummer and said that it could not have been Plummer but Plummer did state to Valenzuela that it was because of the picketing Valenzuela and the ing union that the Company did not give him (Plummer) anything On December 19 Valenzuela was struck on the back of the head with a steel object and was taken to the hospital On his return to work Plum mer saw him and told him that the next time he would break his ing brains Valenzuela was not able to resume work as a result of the injury Respondent sent him three mailgrams requesting documentation for the reasons for his absence from work 138 Valenzuela got from his doctor a letter on January 16 informing the Company that he was on a medical leave of absence from December 8 to January 2 1981 The letter had the 131 Arturo Nieblas worked at that time in the paint department 138 The mailgram were sent on December 17 and January 7 and 14 1981 CHAMP CORP incorrect last name but he stated he was in the process of obtaining another letter with the correct information There was no evidence probative of disingenuousness on Valenzuela s behalf regarding his disability and his de meanor while testifying after being struck in the head demonstrated that he was suffering from vertigo and presented a great contrast from his demeanor before the injury Ed Simovich corroborated Valenzuela s statement that he called the police the first or second day he was back at work and that he did report a number of problems Regarding the police officers Simovich stated that the officer and Valenzuela spoke in Spanish and then the of ficer told him that Valenzuela claims several people threatened him Ed Simovich stated he then asked the of ficer if they harmed him or touched him and he was told no The police officer then said he could not do anything because no crime had been committed Ed Simovich then volunteered to take Valenzuela back to work and Valenzuela gave him the name of one individual who had threatened him Roberto Corona He took Valen zuela to see Roberto Corona and asked if he had threat ened him and Corona denied ever threatening him Va lenzuela wanted to shake his hand but Corona would not shake his hand Valenzuela told Simovich to examine Corona s attitude and Simovich said he could not force people to like him all he could do was keep people out of his working area to permit him to do the job There is no indication that Ed Simovich or any other supervisor instructed Corona to stay away from Valenzuela Simo vich then recalled that in December a secretary called him and told him to come downstairs that Valenzuela wanted to talk to him Valenzuela showed him a bolt or a cylinder plug and told him as he was welding someone had thrown the object which struck him on the back of the head Simovich stated he did not see any blood after inspecting the asserted point of impact Valenzuela said he wanted to see a doctor he did not feel well Valen zuela also said he did not see who threw the object Va lenzuela went to see his own doctor and Simovich later got a slip from the doctor when Valenzuela returned to work on December 19 Valenzuela then requested to leave to see another doctor and showed Simovich a paper indicating he had an appointment When he re turned on October 19 Valenzuela also told Ed Simovich that Bill Plummer had threatened him that day Ed Si movich asked Plummer if he threatened Valenzuela and Plummer denied it Smith claimed to Ed Simovich that he did not see anything No warnings were evidently given to Plummer Smith admitted that by the second day of his return to work Valenzuela had complained abut objects being thrown at him Valenzuela did not say what was being thrown at him and Smith did not inquire He believes Valenzuela requested permission to go to the office which was granted He returned in about 45 minutes with Ed Simovich Ed Simovich indicated they were happy to have Valenzuela back that he had a job with Respondent as long as he wished but that the problem of individuals bothering or harassing him was difficult that they could not stay with him at all times to keep every body away from him 871 The following day Smith said he came in a little late in the morning and saw 10 or 12 individuals in the area of the mast department talking loudly to Valenzuela Smith stated he told them to disperse He told them he would not countenance that type of activity and they dispersed Smith did not apparently ascertain what was occurring who the individuals were what was being said or behave in a manner bespeaking concern for Valenzuela s well being He admitted that the individuals involved did not work in the mast department and further after first stating that they did not look like they were angry said that they were speaking in Spanish shaking their fists at Valenzuela repeating actions found objectionable by Re spondent when striking employees so behaved while they were on the picket line Eventually he did admit that they looked angry He admitted he did not ask for any names that he only told them to disperse and not to come back He did not report the incident to Ed Simo vich This demonstrated lack of candor lack of concern and inconsistent testimony cojoined with a disingenuous demeanor lead me to discredit Smith s testimony The next day or two Valenzuela again reported to Smith that individuals were throwing objects at him and he showed him a box full of nuts and bolts About an hour later they met with Ed Simovich who told Valen zuela that they would do everything they could to permit him to work in that area that he was more than welcome to work there but they could not keep every one away from him because of the common restrooms and the fact that people have to come and go to pick up and deliver parts and other items According to Smith he had no knowledge of other employees previously complaining about objects being thrown at them He stated he was concerned when Valenzuela reported ob jects were thrown at him but admitted he did not inquire what the objects thrown were or who were the perpetra tors Smith said he waits for the individual to volunteer the information 139 Smith was asked if he did not think it was part of his responsibility to investigate the situation and he replied he did look into it and saw no one in the area and in formed everyone that they were not supposed to throw things which was a standing rule in the department He stated about 2 years before these incidents a notice was posted informing the employees that they were not to throw objects in the department He said he was con cerned over the incidents but he could not be there 100 percent of the time Smith and Simovich s management actions to protect Valenzuela are contrasted against the manner in which they took great umbrage to any threats or ostensible threats made by strikers against replacement employees Another returning striker that experienced harassment on the day of his return was Salvador Elizarraras Ac cording to Elizarraras when he went to work on May 27 the first day he was told to report after being offered reinstatement a baseball and several metal objects were thrown at him A bottle full of water hit him in the left 139 This does not seem credible in light of Simovii h s representation that they would do everything they could to assure his safe working situ ation but could not be with him all the time 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shoulder he stated but he actually pointed to the collar bone area He did not see the employees who threw the metal objects but he did see Arturo Nieblas throw some thing at him that hit him on the back of the knee on the left leg He reported the incidents to Dick Rowe and Peterson assertedly smiled when firecrackers were thrown at him After being told about the incidents Rowe assertedly said there was nothing he could do about it and sent Elizarraras to the office Elizarraras then talked to Ed Simovich describing the difficulties he was experiencing with his coworkers and Ed Simovich assertedly inquired if he was willing to accept those conditions of employment for there was nothing he could do about it After Elizarraras talked to Simovich he went home informing Simovich that he wanted to work for Champ but until the conditions were more conducive he could not remain there Simovich said he was sorry but there was no work for him Based on demeanor clarity of recollection and the inherent consistency of the testimony as well as the consistency of his testimony with the testimony with other returning stnkers the version of the events given by Salvador Eli zarraras is credited It is also noted that Elizarraras in formed both Rowe and Simovich that one of the asserted perpetrators of throwing objects was Arturo Nieblas who threw an object that struck him Yet again there was no disciplining of Arturo Nieblas the repeated alle gations of wrongdoing by Arturo Nieblas evidently made no impression on any of Respondents representa tives Similarly Tommy Vargas reported to work May 15 Shortly after starting work on May 27 he had firecrack ers thrown at him and was hit by a piece of iron on the back The piece of iron was described as being about 3 inches long He did not see who threw the objects at him but reported the incident to his foreman Art Van Haasen He also reported the incidents to Ed Simovich Another incident was that some employees approached him and made profane statements to him After speaking to Ed Simovich about these incidents Simovich asserted ly replied that Vargas was to return to work Vargas then asked if Simovich would transfer him to another lo cation Ed Simovich replied no that the problem would only last a couple of weeks and then would be over Vargas then stated that his boss Tom Simovich arrived heard what Ed Simovich was telling him and then they laughed Vargas said he would think about going back to his place of work but he did not return he left the plant Neither Ed Simovich nor Art Van Haasen offered to return to his worksite with him He told Van Haasen and Ed Simovich that he was going to move his car but in stead of moving his car he went home he did not punch out He then discussed the incidents with Zamora inquir ing whether he should return to the plant Based on de meanor consistency with other incidents described by the other sequestered witnesses and the inherent consist ency and clarity of recollection lead me to credit Vargas version of the incidents Erasmo Salazar went back to work on May 22 in the paint department He described the foreman of that de partment as being Nestor Lopez who was present when objects were thrown at him Lopez assertedly told Sala zar that he was just to take care of himself Lopez did not speak to any of the employees about objects being thrown at Salazar The next day May 23 the employees continued throwing objects at him He did not see who threw the objects He talked to Ed Simovich on that day after being approached by a group of employees who told him that they did not want to see him working ami cably after what he had done while on the picket line He indicated that they threatened him and that they first told him that they were speaking to him with words and if he did not understand what they wanted they would behave in another manner He did not know the individ uals by name that there were approximately 8 to 10 em ployees in the group It was shortly after this incident that he talked to Ed Simovich Simovich had walked over and asked how he was Salazar indicated he was experiencing problems A group of people had gotten together and threatened him that he could not work under those circumstances and that was his last day of work Ed Simovich told him not to pay any attention to the individuals who threatened him that they were resentful because of what had oc curred during the picketing He did not tell Simovich ob jects had been thrown at him only that he had been bothered When he returned to work he said Ernesto Lopez saw what was happening and told Salazar on May 23 that he was to be careful to take care of himself Nei ther Nestor Lopez nor Ed Simovich offered to solve the problems Erasmo Salazar was experiencing Erasmo Sa lazar s testimony is credited based on demeanor inherent consistency and corroboration by other witnesses who experienced similar difficulties Salvador Garcia returned to work on May 23 and on the same day also experienced objects being thrown at him paper balls and metal objects One object was thrown at him by Arturo Nieblas which he described as a very large metal nut approximately 2 to 3 inches in di ameter which struck him on the left shoulder Nieblas admitted to him that he threw the object stating that he could hit him and beat him and do whatever he wanted and that there was nothing that Garcia could do about it After that incident Garcia talked to Ed Simovich and an individual he described only as an older man He de scribed how he was being harassed and pointed out some of the individuals who were harassing him One was Ro berto Corona 140 Garcia told Ed Simovich that Nieblas was the individual responsible for throwing the nut at him and that he did give the nut to the police when he went to file a charge with the police that afternoon Ed Simovich assertedly did not pay any attention to Garcia When Simvoich and the other individual identified as the older American left he was approached by between 10 and 15 employees Nestor Lopez was present but did not do anything At this point Nieblas was one of the pri mary employees making threats The individuals sur rounding him used profanity toward him cursing and threatening him stating that I was nothing that I was no one there that any time they felt like it they could do 140 It should be noted that Corona assertedly was an individual that threatened Valenzuela so it was not an isolated incident involving either Nieblas or Corona and one returning sinker CHAMP CORP and undo with me And if I wanted to work there I had to stand everything and they were going to treat me any way they felt like it The individuals identified as making those comments were Arturo Nieblas Rene Gonzales and others he could not name After this inci dent he asked Ernesto Lopez why he had not done any thing to protect him that he knew that Garcia was not the fighting type Ernesto Lopez who Garcia identi feed as a foreman told him that it was better that he leave so that he would not be hit At that point Garcia left the plant This evidence was not presented to show constructive discharge but to show animus by the Re spondent toward sinkers The similarity of the incidents the similarity in the actions of the Company demeanor and clarity of recollection lead me to credit Garcia s tes timony Similarly the testimony of Manuel Cruz that he expe nenced objects being thrown at him is credited for the same reasons Cruz reported to work on May 19 and almost immediately thereafter encountered difficulties people were throwing iron objects at him that struck him all over his body He saw one person throw an object and that was Arturo Nieblas He reported the matter to Bob Peterson and told Peterson that he could describe the individuals because he did not know Nieblas name Peterson said he could not do anything so Cruz punched out left work and went home When he arrived home he placed a call to Ed Simovich but Ed Simovich was not there Ed Simovich returned his call the same day and told him to come back to work Cruz described to Ed Simo vich the difficulties he was experiencing with the em ployees throwing objects at him Ed Simovich did not comment on the problem he just said for him to return to work Cruz assertedly responded that if Simovich did not stop the employees from throwing objects at him he would not return to work Ed Simovich then told him that if he did not return to work he was fired Cruz re ported for work on May 19 1980 pursuant to the in structions in the telegram punched his timecard at 7 15 a in and punched out at 7 45 a in On October 28 Respondent sent a telegram to Javier Olague instructing him to report to work on October 30 1980 This telegram also contained the statement By this offer of reinstatement we do not waive any of our rights or defenses we may have on any legal matters re garding your reinstatement Olague did report to work and told Dan Rowe and Dan Knvosha that he did not have his tools when Ed Simovich came to the shop and they said he did not have his tools he said it would take him about 2 weeks to get his tools together Olague ad mitted that he had another job and wanted to give them 2 weeks notice but did not so inform Respondent Olague did indicate that he had another job and did not know whether he wanted to quit but he did not have any tools that were needed to work at Champ Ed Simovich offered to finance the acquisition of the tools and have Olague pay back the Company in installments through deductions from his paycheck Olague did not accept the offer He asked if he could be loaned tools and Knvosha would not inquire if anyone would loan him tools The Company did arrange however to get the tools for him 873 by direct purchase and have payroll deduction if he wanted to return to work the next morning Olague ac cording to Ed Simovich said he did not decide whether he wanted to return he would let them know later He did not return or otherwise contact the Company and was sent the following letter on November 5 1980 You were instructed by mailgram to report back to work on October 30 1980 You told the produc tion superintendent Dick Rowe on October 30 that you needed a few days to gather your tools and would report for work on November 3 You told Ed Simovich by phone conversation on November 3 that you had not yet decided if you wanted to quit your present job and return to Champ You stated that if you did not report for work the morn ing of November 4 you would not be returning to Champ We must assume by your absence yesterday that you are voluntarily terminating your employ ment with Champ Corporation The payroll depart ment will be notified of your termination They will be forwarding to you any monies due to you Ed Simovich s version of the events regarding Olague is credited 141 Olague admitted that he had a conversa tion with Ed Simovich where Simovich offered to buy tools for him Olague also indicated that the 5 additional days were insufficient that he would need at least 2 weeks because he had to give notice to the company where he was working It also places into doubt his statement that he returned to work at the Company ready willing and able to go to work because he wanted to give 2 weeks notice He then admitted that he did not tell Ed Simovich that the reason he wanted an extension of time to get his tools was because he wanted to give 2 weeks notice to his then current employer This disingenuousness with the Employer in asking for a delay to return to work warrants crediting Respondent s rendition of the events which Olague substantially cor roborates 9 Request for information On June 6 1980 Fenton attorney for the Union in this instant proceeding wrote Respondent as follows You have already been asked for the names dates of hire rates of pay and classifications of all bar gaining unit employees in Mr Gazzigli s letter of May 12 1980 Additionally also provide for such employee the dates of any breaks in service the job duties performed and the department in which each such employee works and has previously worked and inclusive dates of such job duties and depart ment placements 141 The crediting of only portions of Ed Simovich s testimony is re quired under the circumstances of this case which does not require the adoption or rejection of his entire testimony Carolina Canners 213 NLRB 37 (1974) Nothing is more common than to believe some and not all of what a witness says Edwards Transportation Co 187 NLRB 3-4 (1970) enfd per curtain 437 F 2d 502 (5th Cir 1971) 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ed Stmovich admitted that in either May or June 1980 the Union sent Respondent a letter requesting a copy of employees job descriptions He also stated that before receipt of the letter he recalled the topic being men tioned in several negotiating sessions but believed that the issue had been exhausted According to Ed Simo vich the Union was informed during the negotiating ses sions that the Company did not have any job descnp tions or work area descriptions They had not formalized most of their job descriptions nor were there formalized departments The matter was handled in an informal manner It was through negotiations according to Ed Simo vich that the job descriptions and departments became formalized to a degree The union committee did pro pose job classifications and finally the agreed upon em ployee job classifications He stated that the Company never supplied the Union with a job description because the Company never had one He believes Hoy answered the inquiry Pursuant to a request from counsel for the General Counsel sometime after he gave his deposition in June and before the deposition of July 7 the Compa ny prepared a job description for all individual employ ees Ed Simovich prepared the description in response as previously stated to a request from counsel for the General Counsel by trying to figure out what each em ployee was doing before the strike At times he consult ed with foremen In sum it is Respondents position that no informa*ion about job duties was provided to the Union because none was existent at the time the request was made The material prepared to meet the request of counsel for the General Counsel was not considered an official record of the Company and was not to be accept ed as a working document for company purposes V ANALYSIS AND CONCLUSIONS A Alleged Violations of Section 8(a)(1) As indicated above it is found that on October 17 T Simovich threatened to have striking employees fired when all they were doing was walking the picket line 142 T Simovich on November 27 1979 threatened to have Solis arrested for assertedly threatening to blow up with a bomb the vehicle of a prospective re placement employee 143 On December 15 1979 the credited evidence is that T Simovich got very angry be cause the picketers successfully dissuaded a truckdriver from picking up a forklift truck for a customer told all picketers present that they were fired pointed at Solis and said Solis I guarantee you I in going to send you to jail On January 8 1980 T Simovich again without adequate justification threatened Solis with arrest for at tempting in a peaceable manner to dissuade a replace ment employee from crossing the picket line With the exception of the November incident there was no reason advanced for threatening to fire the pick eters or to have them arrested The making of these threats while they were peacefully picketing is a coer 142 See the testimony of Jose Naranjo Ricky Craft and Steve Baugh 143 As indicated above Solis was arrested for allegedly making the threat but the charges were dismissed cive threat in violation of Section 8(a)(1) of the Act See Cutting Inc 255 NLRB 534 (1981) On November 2 1979 T Simovich offered M Avalos and Ernesto Franco increased benefits if they abandoned the strike and returned to work Also although not al leged in the complaint as a violation T Simovich mdi cated that only certain striking employees would be rein stated 144 The offer of increased benefits to abandon their participation in protected activity is clearly a viola tion of Section 8(a)(1) of the Act See Pace Oldsmobile 256 NLRB 1001 (1981) This action was also alleged by direct bargaining with employees of the unit in violation of Section 8(a)(5) and (1) of the Act Because the Gener al Counsel seems to have abandoned this portion of the allegation and the remedy is the same it is unnecessary to consider whether Section 8(a)(5) was violated by this action Based on the credited testimony it is found that Larsen a supervisor did attempt to scare picketers by driving a loaded forklift through the picket line in a threatening manner where there was no showing that the employee strikers were unduly abusive 145 or acted in any other manner warranting or excusing Larsen s ac tions which are therefore found to be violative of Sec tion 8(a)(1) of the Act See Arcadia Foods 254 NLRB 1012 (1981) B Alleged Unlawful Discharges During the Strike As the administrative law judge stated in Laredo Coca Cola Bottling Co 258 NLRB 491 496 (1981) The Supreme Court has long recognized that ac tions taken against strikers are inherently destruc tive of Section 7 rights N L R B v Great Dane Trailers Inc 388 U S 26 (1967) In all cases involv ing either the discharge of or the refusal to reinstate strikers for having engaged in alleged acts of mis conduct the burden of proving discrimination is that of the General Counsel Rubin Bros Footwear Inc 99 NLRB 610 611 (1952) Accordingly the General Counsel must first establish that an individ ual was in fact a striker and that an employer took some action against him for conduct while said indi vidual engaged in the strike At that point the burden shifts to the respondent which must prove that it entertained an honest belief that the striking employees have engaged in misconduct Such con stitutes an adequate defense to a charge of discnmi nation in refusing to reinstate strikers except where the General Counsel affirmatively establishes that the employees did not in fact engage in such mis conduct or where the conduct in question was not so flagrant or egregious as to require subordination of the employees protected rights in order to vindi cate the broader interest of society as a whole 144 The failure to allege this statement as a violation of the Act under the circumstances of this case precludes deciding the issue on the merits for it cannot be found that the question was fully and fairly tried 145 As will be discussed in greater detail below there is a certain amount of animal exuberance deemed to be expected in picket line con duct CHAMP CORP Dallas General Drivers Warehousemen and Helpers Local Union No 745 affiliated with International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America v NLRB 389 F 2d 553 (D C Cir 1968) Gold Kist Inc 245 NLRB 1095 (1979) Birch Tree Number One Incorporated d/b/a Birch View Manor 243 NLRB 495 (1979) Co Con Inc 238 NLRB 283 (1978) Rubin Bros supra Once the General Counsel has established that the misconduct did not occur the burden shifts to the respondent to rebut the denials Gold Kist Inc supra The previously credited testimony leads to a finding that Tom Simovich discharged Baugh and Naranjo on October 17 1979 while they were lawfully picketing at or near Respondents place of business There was no al legation that Baugh and Naranjo were boisterous ob streperous or acted in any other manner that explained or warranted the decision to discharge these striking em ployees on October 17 Further there is no basis to find that Respondent has a reasonably based belief that these strikers acted in a manner which independent of unlaw ful animus would result in the decision to discharge these employees Accordingly it is found that these ter minations from employment were based on a discrimina tory motive in violation of Section 8(a)(3) and (1) of the Act 146 There was no showing that these employees were replaced before their discharge As previously noted Respondent offered to reinstate all striking em ployees if they returned to work on or before November 3 1979 Therefore there is no clear showing that any employees were deemed to be permanently replaced before November 3 1979 On October 25 and 31 as found above Respondent stated five or six employees147 would not be reinstated because they were considered troublemakers or agitators Baugh was accused of being extremely vocal Baugh Solis Ortiz and Gutierrez were accused of using abusive language There were no specific allegations regarding the other individuals listed by the Company as of Octo her 25 or 31 In general there was the previously de scribed extensive violence the shouting and cursing and the blocking of ingress and egress to the property Gaz zigli insisted that all strikers be reinstated on consumma tion of the contract This demand became known to the union membership on November 5 Counsel for the General Counsel asserts that Respond ent s advising Gazzigli that the Company would not rein state those individuals was advising him that they were being terminated without adequate justification is a viola tion of Section 8(a)(3) and (1) of the Act Respondent as serts the basis for the discharges is that these employees 148 The discharge of lawfully picketing strikers constitutes a puma facie showing of discriminatory motive Respondent has failed to rebut the showing with evidence that the decision would be the same absent the protected activity See Wright Line 251 NLRB 1083 (1980) and Limestone Apparel Corp 255 NLRB 722 (1981) 14' Baugh Valenzuela Solis Gutierrez and Ortiz were all that T Si mo%ich could recall The sixth employee s name was not recalled by any of the witnesses 875 picket line activities constituted misconduct of a nature sufficient to warrant discharge Misconduct sufficient to warrant discharge is not ex clusively open to self determination by employers par ticularly in strike situations in which the Board and courts recognize the strong emotions generated by union activity Twilight Haven 235 NLRB 1337 (1978) Meaningful protection in this situation must require that relatively minor incidents of misconduct such as name calling or somewhat ambiguous or veiled threats do not remove the Act s protection from the perpetrator or suf fice to legitimatize his discharge Corrtveau & Routhier Cement Block 171 NLRB 787 788 (1968) enf denied in circumstances presented 410 F 2d 341 (1st Cir 1969) That these employees were to be disciplined while Freddie Vallejos 148 A Nieblas N Lopez 149 and others were not disciplined for engaging or allegedly en gaging in criminal activity were unexplained distinctions in treatment between strikers and nonstrikers Also as found above employees who were not on strike engaged in profane and insulting verbiage as did the striking em ployees The more stringent application of plant policies to strikers when the only distinction apparent is whether the perpetrators were strikers establishes a pattern of discipline based on discriminatory motives in violation of Section 8(a)(3) and (1) of the Act See Upland Freight Lines 209 NLRB 165 (1974) enfd 527 F 2d 766 (9th Cir 1976) and Keller Mfg Co 237 NLRB 712 (1978) Re spondent has failed to explain this disparate treatment of not reinstating certain employees while retaining as em ployees without any disciplinary action individuals found to have engaged in similar activities Accordingly it is concluded that Respondent violated Section 8(a)(3) and (1) of the Act by disqualifying these five employees from reinstatement Steve Baugh saw the list and on No vember 5 at a union meeting notified the attending mem bership of the Company s position Similarly it is found that T Simovich told F Zamora that he would never work for Champ again This state ment as is the case of the other asserted firings discussed above despite the subsequent offer of October 30 of rein statement are found to be declarations which reasonably lead the employees to believe that they have been dis charged See Famous Supply Co 254 NLRB 768 (1981) which applies the test applied in Ridgeway Trucking Co 243 NLRB 1048 (1979) quoting from NLRB v Trumbull Asphalt Co 327 F 2d 841 843 (8th Cir 1964) as follows The fact of discharge does not depend on the use of formal words of firing It is sufficient if the words or action of the employer would logically lead a prudent person to believe his tenure has been terminated Statements to Baugh and Naranjo that they would never be back as previously found informing Gazzigli that six employees would not be reinstated and telling 148 Vallejos was arrested for the fight with Rodriguez and for the ax incident 148 These employees along with others threatened and assertedly physically struck returning strikers 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Zamora that he would never work for Respondent again are all words and actions that would logically lead a prudent person to believe his tenure has been terminat ed It is therefore found that the General Counsel has made a prima facie showing that these picketers protect ed conduct was the motivating factor in the Employers decision In sum it is concluded that these actions were discharges based on discriminatory motives and not ac tions based on good faith beliefs that the discharged strikers engaged in such egregious acts to warrant dis charge Hence these discharges are in violation of Sec tion 8(a)(3) and (1) of the Act Respondent is found to have exhibited union animus as early as October 3 1979 when according to the cred ited testimony of Deputy Stead T Simovich classified a group of employees that he characterized as potential troublemakers The source of the trouble Stead was told by T Simovich was the attempt by the Union to orga nize the employees of Champ Corporation According to the testimony of Deputy Terhorst he had numerous conversations with several supervisors at Champ Corporation and testified that T Simovich was unhappy with the strike He didn t want to see it happen In the same vein he also was not happy with having to have a union shop T Simovich told Ter horst whose testimony is credited 150 that he didn t want the union in Tom Simovich testified as previous ly quoted I ve had a harmonious plant We know one thing and if you don t know it now you never will The object of the Union is to get a closed shop and dues paid If they don t get that-that s what they re after If they don t get that the only [sic] left is destroy to submission-til you submit That s a rule of thumb And I know that T Simovich was understandably upset at the events that occurred during the strike and subsequently in his testi mony tried to ameliorate the impact of the above quoted testimony by asserting that he did not care if all my people belong to a union [or] if a man wants to walk a picket line all day long This attempt to disavow any animus toward the Union is not credited based on the lack of candor the credited testimony of Stead and Terhorst in which he admitted union animus and ether ent probabilities C Alleged Violations of Section 8(a)(5) and (1) of the Act 1 Alleged changes in terms and conditions of employment without negotiations As found above based on the uncontroverted evidence of record Respondent during the strike added October 24 25 and 26 1979 as paid days off and added paid holidays around Thanksgiving November 23 and 150 This finding is based on clarity of recall the impact of an adverse admission and corroboration in T Simovich s own testimony Christmas December 24 1979 The Respondent posted notices on November 19 and December 17 respectively to inform the employees that they would receive 8 hours wages for November 23 and December 24 if they worked the days before the new holidays The employ ees were not given the option to work and of these new days off Gazzigli inquired of Respondent by letter dated February 19 1980 addressed to Hoy if the nonstriking employees were paid for any additional holidays In a reply dated March 12 Hoy informed Gazzigli that the requested information was within the scope of the unfair labor practice charges filed by the Union with the Board and the information would be forwarded to the Board The complaint alleges that these actions violated Section 8(a)(5) and (1) of the Act because they constitute a uni lateral alteration of existent terms and conditions of em ployment without prior notification to or consultation with the Union Respondent asserts that the decision to close the plant for 3 days in October was an attempt to provide a cool ing off' period during a violent strike where the pnnci pal owner and operating officer was informed by a guard that there was a contract out to murder him the vio lence attendant to the strike appeared to be escalating and company efforts to have the Union calm the strikers were unsuccessful Therefore Respondent argues that the 3 day plant closure while paying employees for the 8 hours on each of those days was necessary to meet an emergency situation Respondent cited Painters Local 1175 v NLRB 419 F 2d 726 736 (D C Cir 1969) for the proposition that A struck employer clearly has the right to keep his business operating Hawaii Meat Co v NLRB 321 F 2d 397 400 (CA 9 1963) and often emergency situations justify emergency responses par ticularly in the midst of a strike The additional closures in November and December Respondent asserts were necessitated by the need to rest the leadmen and foremen of the Company who because of the strike were required to perform additional duties and work longer hours and they were extremely tired The decision was assertedly based on a determination that continued operation with these supervisory employ ees would be unsafe Respondents argument concludes that all plant closings were motivated by special circum stances This claim is somewhat controverted by the Company s November 19 1979 notice to all nonstriking employees which indicated that the additional November holiday with pay was in part an expression of thanks to employees who continued to work for the company The granting of the additional holidays around Thanks giving Day was never the subject of negotiations be tween the Company and the Union Although Respondent argues that the October No vember and December plant closures with pay for most of the employees who were not on strike were lawfully based due to emergency situations the evidence does not support the claim 151 T Simovich admitted that he did isi There is no assertion that an impasse was reached before Respond ent s implementing the added vacation days See Winn Dixie Stores 243 NLRB 972 (1979) CHAMP CORP not notify the Union he was going to close the plant for 3 days in October and for 4 days in November because he did not think it was any of their business This basis for the Company s actions is more credible because E Simovich in his affidavit did not mention the alleged threat on his father s life as a basis for the decision to close the plant and pay the employees for the days off Furthermore the granting of an additional holiday during Christmas was a subject of negotiations early in December before the Company granted the December holidays and the Union refused to agree to the proposal because the parties had not yet commenced bargaining about economic issues 152 Normally once a matter is raised in negotiation the employer may institute the change However here the offer to increase benefits during negotiations disputes the reason Respondent claims as the moving force behind its decision a desire to meet some transient or temporary emergency Rather the proposal during negotiations demonstrates a design to permanently alter vacation ben efits thus the Employer was obligated to notify and bar gain with the Union It only bargained about one holi day the additional day for Christmas Also the perma nent nature of the proposal particularly regarding the November and December holidays demonstrates that the action was not a temporary reaction to an emergency situation justifying or excusing its conduct Contrast Painters Local 1175 supra The Employer has a duty to bargain with the Union during a lawful strike To permit the Employer to refrain from informing the Union and negotiate about a benefit that is a mandatory subject of bargaining would com pletely undermine the Union s self help vehicle-the strike-and hence undermine the bargaining process The raising of an economic issue out of order and imple menting the benefit after the Union rejected the proposal under the circumstances of this case cannot be found to be good faith bargaining That this was Respondent s intent is demonstrated by its failure to respond to the Union s request for information regarding whether the employees were paid during these shutdowns Therefore implementation of additional holidays without notifying and bargaining with the Union is in contravention of the provisions of Section 8(a)(5) and (1) of the Act 153 Nor is Respondent relieved from its obligation to inform the Union and bargain about these additional benefits the additional holidays because of the asserted wrongdoing by the picketers Assuming arguendo that the Union or the picketers were guilty of all the allegations made by 1 2 No party asserts nor will the record support a claim that the deci lion to close the plant these additional days was economically motivated See NLRB v Katz 369 U S 736 748 (1962) and Puerto Rico Telephone Co v NLRB 359 F 2d 983 987 (1st Cir 1966) 153 Sec 8(d) of the Act defines the parties obligation to bargain as pertinent For the purposes of this section to bargain collectively is the per formance of the mutual obligation of the employer and the represent alive of the employees to meet at reasonable times and confer in good faith with respect to wages hours and other terms and condi tions of employment or the negotiation of an agreement on any question arising thereunder and the execution of a written contract incorporating any agreement reached if requested by either party but such obligation does not compel either party to agree to a pro posal or require the making of a concession 877 the Company the Respondent may not engage in unlaw ful conduct the failure to bargain with impunity Phelps Dodge Copper Products Corp 101 NLRB 360 367-368 (1952) That Respondent did meet and negotiate about the last holiday granted its employees with the Union in dicates a waiver of this defense Accordingly it is concluded that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally grant ing paid holidays to unit employees without notifying or consulting with the Union in good faith It is further found that by merely raising the issue of additional paid holidays before reaching discussion of economic issues contrary to the parties agreement regarding the order of bargaining indicates undermining of the bargaining proc ess rather than an attempt to establish meaningful notifi cations of consultations with the Union thereby violat ing Section 8(a)(5) and (1) of the Act See Autoprod Inc 223 NLRB 773 (1976) and Akron Novelty Mfg Co 224 NLRB 998 (1976) 2 Alleged refusal to bargain until processing of decertification petition It is uncontroverted that on or about March 4 1980 Hoy informed the International Union s representative that the Company would not meet and participate in fur ther negotiations until such time as the Board completed processing the previously described decertification peti tion filed with the Board Respondent asserts that it held a good faith doubt based on the decertification petition of the continuing majority status of the Union As found in NLRB v Grede Foundries 628 F 2d I (D C Cir 1980) [An e]mployer does not violate [Section 8(a)(5)] if its refusal to bargain is based on a good faith and reasonably grounded belief that incumbent union no longer enjoys support of majority of bargaining unit See e g NLRB v Alvin J Bart & Co 598 F 2d 1267 1271 (3d Cir 1979) NLRB v Top Mfg Co 594 F 2d 223 224 (9th Cir 1979) Industrial Workers AIW Local 289 v NLRB 476 F 2d 868 881 (D C Cir 1973) The court also stated The naked showing that a decertification petition has been filed with no indication of the number of signatories or other related matters is an insufficient basis in fact for refusing to bargain since it estab lishes no more than that the petition was supported by the requisite 30% showing of interest Industrial Workers supra at 881 -882 Accord Retired Persons Pharmacy v NLRB 519 F 2d 486 490-491 (2d Cir 1975) Rogers Mfg Co v NLRB 486 F 2d 644 647 (6th Cir 1973) cert denied 416 U S 937 (1974) Moreover an employer that has itself orchestrated the union ousting campaign cannot rely on the pendency of a decertification petition or the loss of majority status to justify its withdrawal of recognition of and refusal to bargain with the incumbent representative NLRB v Sky Wolf Sales 470 F 2d 830 (9th Cir 1972) NLRB v A W 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thompson Inc 449 F 2d 1333 1336-1337 (5th Cir 1971) See also Medo Photo Supply Corp v NLRB 321 U S 678 687 (1944) NLRB v Alterman Transport Lines 587 F 2d 212 228 (5th Cir 1979) See also Rogers Mfg Co supra at 647 in which it is stated the mere filing of a decertification petition is of itself insufficient justification for a refusal to bar gain with a union and Antonino s Restaurant 246 NLRB 833 (1979) As held in Mark Twain Marine Industries 254 NLRB 1095 1113- 1114 (1981) A respondent who withdraws recognition from an established union must do so on the basis of a rea sonably based doubt as to the continued majority status of that union and to be able to contend that it has the required good faith doubt two prerequisites are necessary First the asserted doubt must be based on objective considerations and second such doubt must be raised in a context free of unfair labor practices In the instant case the record is re plete with evidence of unfair labor practices which Respondent initiated and which had a direct bearing on the question of majority status Therefore Re spondent is precluded from asserting any good faith doubt as to the Union s majority status Coca Cola Bottling Works 186 NLRB 1050 (1970) 154 Guerdon Industries 218 NLRB 658 (1975) Assuming arguendo that Respondents withdrawal of recognition was based on objective considerations it was not accomplished in a context free of unfair labor prac tices For example the Company unilaterally announced and implemented increased benefits without prior notifi cation or negotiations discharged several employees be cause they were engaging in concerted protected activi ties promised other benefits and threatened picketers with arrest for participating in a strike all at times when Respondent had no reason to doubt the Union s majority representation status Accordingly it is concluded that Respondent was precluded on or about March 4 1980 from asserting it held a reasonably based doubt of the Union s majority status as a reason for refusing to bar gain and thereby violated Section 8(a)(5) and (1) of the Act by its withdrawal of recognition 3 Alleged failure to provide information The duty to bargain imposed on an employer by Sec tion 8(a)(5) of the Act includes the obligation to furnish to a union information necessary or relevant to the repre sentative functions of the union NLRB v Acme Industri al Co 385 U S 432 (1967) The Union s request for job descriptions of all bargaining unit employees and the dates that all such employees were laid off during the preceding 12 months are not contended to be irrelevant insufficiently important not needed or that compliance would be in derogation of commitments or privilege or confidentiality or compliance would present a danger of missuse See Columbus Products 259 NLRB 220 (1981) 15 Affirmed as to the instant issue modified as to the others 466 F 2d 380 (D C Cir 1972) The standard for determining the relevance of infor matron sought by a bargaining agent was stated in Wes tinghouse Electric Corp 239 NLRB 106 107 (1978) as follows It is well established that a labor organization obligated to represent employees in a bargaining unit with respect to their terms and conditions of employment is entitled to such information from the employer as may be relevant and reasonably necessary to the proper execution of that obliga tion 155 The right to such information exists not only for the purpose of negotiating a contract but also for the purpose of administering a collective bargaining agreement The employers obligation in either instance is predicated upon the need of the union for such information in order to provide intel ligent representation of the employees 156 The test of the union s need for such information is simply a showing of probability that the desired information was relevant and that it would be of no use to the union in carrying out its statutory duties and re sponsibilities 157 The union need not demonstrate that the information sought is certainly relevant or clearly dispositive of the basic negotiating or arbi tration issues between the parties The fact that the information is of probable or potential relevance is sufficient to give rise to an obligation on the part of an employer to provide it 158 The appropriate standard in determining the potential relevance of information sought in aid of the bargaining agent s responsibility is a liberal discovery type stand and 159 In the circumstances present in this proceeding the re quested information has clear relevance to the Union s legitimate representational duties to ascertain entitlement of members to reinstatement after a strike Respondent argues that it had no written description of the job duties of the employees at the time of the re quest This argument is deemed specious As the Board found in Safeway Stores 252 NLRB 1323 1324 (1980) In short respondents obligation is to provide the information it has available to compile it or to give the Union access to the records from which it can reasonably compile the information And if the pro duction of the information ordered involved sub stantial costs the parties may bargain over the allo cation of these costs Citing Westinghouse Electric supra and Food Employers Council 197 NLRB 651 (1972) Ed Simovich compiled a description of the job duties of the unit employees pursuant to a subpoena of counsel 55 Boeing Co 182 NLRB 421 (1970) NLRB v Whitin Machine Works 217 F 2d 593 (4th Cir 1954) cert denied 349 U S 905 (1955) 156 F W Woolworth Co 109 NLRB 196 197 (1954) enfd 352 U S 938 (1956) 161 NLRB v Acme Industrial Co supra at 437 1511 Brooklyn Union Gas Co 220 NLRB 189 (1975) 59 Acme Industrial Co supra CHAMP CORP for the General Counsel by consulting with various fore men and leadmen Accordingly it is found that the infor mation was available and merely had to be compiled This compilation was not shown to have been exceeding ly difficult or burdensome and in fact was first dis cussed during negotiations The failure to compile and provide the information is found to be a violation of Sec tion 8(a)(5) and (1) of the Act Regarding providing the dates and layoff of all unit employees for the 12 months preceding the requests Re spondent argues that a 3 month delay in providing the information was not unreasonable and therefore not vio lative of the Act Citing Alkahn Silk Label Co 193 NLRB 167 (1971) The Alkahn Silk case is found inappli cable because there it was determined that 13 days after the request Respondent attempted to comply and that the fault was not reticence to supply the information but ineptness of the union representatives in describing what was wanted in a timely manner In the instant proceed ing the request was clear no lack of understanding was claimed The Respondent proffered no explanation for the delay There is no claim that any of the requested in formation is confidential sensitive or otherwise privi leged from disclosure The striking employees if they had a right to rein statement should not be delayed 3 months without some exculpatory circumstance and thus it is concluded that the delay is unreasonable and is conduct violative of Sec tion 8(a)(5) and (1) of the Act See Crispo Cake Cone Co 190 NLRB 352 (1971) and K & K Transportation Corp 254 NLRB 722 (1981) 4 Whether the strike was converted to an unfair labor practice strike There is no question that the strike at its commence ment was an economic strike Counsel for the General Counsel asserts that on November 5 1979 the strike was converted to an unfair labor practice strike Respondent asserts that it did not commit any unfair labor practices therefore conversion cannot be found As found above on October 25 1979 Respondent no tified the Union that it as part of the bargaining process wished agreement by the Union that six striking employ ees would not be reinstated This negotiating demand was found to be a violation of the Act and to have an inherently destructive effect on employees Section 7 rights 160 During a subsequent negotiating session it was found that Steve Baugh learned of the bargaining demand On November 5 during a union meeting the matter was discussed and the membership voted that no striking employees would return to work until all em ployees including those listed by Respondent were rein stated by the Company Thus the record clearly estab lishes a causal nexus between Respondents unfair labor practice and the decision to not end the strike and return 160 The commission of this violation as well as the violations that pre ceded it would probably suffice to warrant finding conversion of the strike from an economic to an unfair labor practice strike Gulf Envelope Co 256 NLRB 320 (1981 ) However it is not asserted that conversion occurred prior to November 5 1979 and the issue of conversion of the strike prior to this date has not been fully and fairly tried based on Re spondent s reliance on the General Counsel s assertion 879 to work until all striking employees were reinstated It is therefore concluded that Respondents unfair labor prac tices unduly prolonged the strike thereby converting it to an unfair labor practice strike Furthermore Respond ent s other alleged acts including attempting to induce the employees to abandon the strike threats of termina tion threats of arrest the unlawful discharges refusal to bargain and the other unfair labor practices found here 161 established a pattern of conduct designed to both break the strike and to punish those who exercised their statutorily protected right to strike Accordingly I conclude that [by] the Respondents action the strike was converted from an economic to an unfair labor practice character Gulf Envelope Co 256 NLRB 320 326 (1981) citing Pittsburgh & New England Truck ing Co 238 NLRB 1706 (1978) W C McQuaide Inc 237 NLRB 177 (1978) Robbins Co 233 NLRB 549 (1977) It is further found that the strike was initially converted from an economic strike to one of an unfair labor practice character as of November 5 1979 5 The alleged failure to properly reinstate the striking employees The general rule regarding the reinstatement rights of striking employees is An employer has a duty to rein state all unfair labor practice strikers discharing if neces sary replacements hired during the strike NLRB v Remington Rand 130 F 2d 919 (2d Cir 1942) An em ployer has a duty to reinstate economic strikers only if they have not been replaced have not obtained other regular or substantially equivalent employment and the employer refusing reinstatement showed such failure was due to legitimate and substantial business justification NLRB v Mackay Radio & Telegraph Co 304 U S 333 (1938) NLRB v Fleetwood Trailer Co 389 US 375 (1967) However all economic and unfair labor practice strikers may lose their right to reinstatement by engaging in serious misconduct The Union s offer on behalf of the strikers is admittedly unconditional and sufficient to impose on Respondent the obligation to reinstate the em ployees consonant with applicable law Therefore the instant issue is whether any of the subject employees were economic or unfair labor practice strikers 6 The employees allegedly replaced prior to conversion of the strike November 5 Economic strikers continue to retain the right to fair treatment by the employer as do nonstrikers and re placements As the Supreme Court held in Fleetwood Trailer supra at 381 [T]he status of the striker as an employee continues until he has obtained other regular and substantial ly equivalent employment If and when a job for which the striker is qualified becomes available he is entitled to an offer of reinstatement The right can be defeated only if the employer can show le 161 For example the granting of additional holidays by Respondent specifically became a strike issue by vote of the membership on De cember 31 1979 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gitimate and substantial business justifications NLRB v Great Dane Trailers [388 U S at 34] As previously indicated Respondent argues that 10 strik ers fell into this category and they have been treated fairly and consistent with the principles of Laidlaw Corp 171 NLRB 1366 1369-1370 (1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920 (1970) which provides [E]conomic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements ( 1) remain em ployees and (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substan tially equivalent employment or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons Furthermore unless the employer who refuses to re instate strikers can show that his action was due to le gitimate and substantial business justifications [such as the hiring of permanent replacements during an econom is strike in order to continue operations] he is guilty of an unfair labor practice The burden of proving jus tification is on the employer Fleetwood Trailer supra at 378-379 Cf Cutting Inc 255 NLRB 534 (1981) Respondent has failed to sustain this burden of proving that Antonio Andrade Alejandro Arroyo Javier Arroyo David Coronado Ricky Craft Enrique Fi gueroa Lorenzo Franco Mickey Lambright Francisco Zamora and Martiniano Rodnguez162 had all been per manently replaced before November 4 1979 As previously found the Company clearly did not consider these employees permanently replaced if they returned to work by November 2 There is no showing that the replacements for all these employees were hired prior to November 2 This finding is supported by Ed Si movich s testimony that Respondent did not determine who was considered as permanently replaced until after the strike was over 163 Therefore it is concluded that Respondent failed to show that these strikers were per manently replaced by permanent employees before con version of the strike on November 5 to an unfair labor practice strike See Murray Products 228 NLRB 268 (1977) enfd 584 F 2d 934 (9th Cir 1978) The court in Murray Products stated at 938-939 182 Respondent discussed Rodriguez as belonging in both these catego nes in lieu of Jesus Valdez and the classification of employees charged with a crime In fairness to the Company s position the reinstatement rights of Martiniano Rodriguez will be considered in both sections 163 It is noted that the Board has long characterized letters sent to strikers similar in content to the one sent to the strikers on October 30 by Respondent as an unlawful strikebreaking technique Kerrigan Iron Works 108 NLRB 933 938 (1954) See also Ekco Products Co 117 NLRB 137 ( 1957) Pennsylvania Glass Sand Corp 172 NLRB 514 (1968) remanded sub nom Teamsters Local 992 v NLRB 427 F 2d 582 (D C Cir 1970) American Shuffleboard Co v NLRB 190 F 2d 898 (3d Cir 1951) NLRB Y Electric City Dyeing Co 178 F 2d 980 (3d Cir 1950) Be cause there is no reference in the complaint to this activity the issue is deemed not fully and fairly tried However the inconsistency in treat ment of these strikers prior and subsequent to November 3 is indicative of unlawful motive Employees who are not working because of a labor dispute continue to be employees of their employer unless they have obtained regular and substantially equivalent work elsewhere National Labor Relations Act § 2(3) as amended 29 U S C § 152(3) (1970) NLRB v Fleetwood Trailer Co 389 U S 375 378 88 S Ct 543 NLRB v Mackay Radio & Tel Co 304 U S 333 345 When the labor dispute is economic in nature however the employer is entitled to hire permanent replacements for strikers for the legitimate business purpose of continuing operations Mackay supra 304 U S at 345-46 see Plastilite Corp 153 NLRB 180 (1965) modified on other grounds and enforced 375 F 2d 343 (8th Cir 1967) Economic strikers who have been permanently replaced are entitled to rein statement only as vacancies occur thereafter in the employers work force the employer is not obliged to discharge the permanent replacements in order to make room for them Mackay supra 304 U S at 345-46 General Teamsters Local 162 v NLRB 568 F 2d 665 (9th Cir 1978) H & F Binch Co v NLRB 456 F 2d 357 363 (2d Cir 1972) Snow Y NLRB 308 F 2d 687 694 (9th Cir 1962) Laidlaw Corp 171 NLRB 1366 1369-70 (1968) enforced 414 F 2d 99 (7th Cir 1969) cert denied 397 US 920 (1970) If the strikers have not been perma nently replaced however the burden of proof to that effect resting with the employer NLRB v Great Dane Trailers Inc 388 U S 26 34-35 (1967) they are entitled to immediate reinstatement upon their unconditional application to return to work NLRB v International Van Lines 409 US 48 50 (1972) Mackay supra 304 US at 345-46 Without such proof a refusal to reinstate em ployees after a strike constitutes an unfair labor practice despite the absence of good faith or antiun ion animus since such a refusal discourage[s] em ployees from exercising their rights to organize and to strike guaranteed by §§ 7 and 13 of the Act ( 29 U S C §§ 157 and 163) Fleetwood supra 389 US at 378 None of the asserted permanent employees appeared and testified that they were hired as such before November 5 In fact Respondents admission that such a decision as to which employees were considered said permanent re placements would preclude a finding that definite re placements were made before November 5 Further most of the employees ostensibly permanently replaced according to the exhibits prepared by Respondent (G C Exhs 39-40) were said to be replaced prior to being sent the October 30 letter 164 The four employees hired on November 2 similarly were not clearly shown to have been hired as replacements for specific striking employ ees The wages paid the alleged replacement employees hired on November 2 were generally lower than hourly rates paid the striking employees For example Gabriel 164 For example the asserted replacements for Andrade Alejandro Arroyo Javier Arroyo David Coronado Ricky Craft and Lorenzo Franco were hired on October 22 17 16 and 22 respectively CHAMP CORP Perez was hired at a starting wage of $4 50 per hour and is said to have permanently replaced Martiniano Rodri guez who at the time the strike commenced was earning $6 75 per hour Similarly Francisco Zamora was earning $6 75 per hour prior to the strike and his alleged replace ment started at $4 per hour The disparity in wages was never explained Therefore Respondent failed to sustain its burden of substantiating with probative evidence its allegations that the employees named permanent replace ments were actually hired as such before November 5 See Great Dane Trailers supra Also substantiating this finding is Respondents admis sion that Valdez was replaced by Art Barrejo the day the strike commenced Then on November 28 1979 a new position was created for John Moya who performed Valdez work among other tasks Barrejo and Moya were still employed as of June 6 1980 The reason for having two individuals doing Valdez work is not ad vanced and the admission that a new position was cre ated for Moya contradicts the assertion that he func tioned as a replacement for Valdez Accordingly it is concluded that Respondent failed to substantiate its burden of establishing that these 10 strikers were perma nently replaced before November 5 1979 Where the motive is contradictory and unconvincing of the infer ence is that the real motive was unlawful Bendix Corp 131 NLRB 599 (1961) enfd 299 F 2d 308 (6th Cir 1962) cert denied 371 U S 827 (1962) Therefore they have reinstatement rights as unfair labor practice strikers However even assuming arguendo that these 10 strik ers were economic strikers it is concluded that the de layed reinstatement discussed infra in fact the complete failure to reinstate these employees was discriminatorily motivated in violation of Section 8(a)(3) and (1) of the Act As previously found Respondents actions were motivated by antiunion considerations Respondent avers that economic exigencies occasioned in part by general economic downturn as well as loss of business due to the strike was one of the reasons it did not reinstate these employees there were few if any job openings for the strikers in this category 165 As the Court held in Great Dane Trailers supra at 34 Once it has been proved that the employer engaged in discrimi natory conduct which could have adversely affected em ployee rights to some extent the burden is upon the em ployer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him Respondent failed to place into evidence any evi dence or other financial data In fact as is unfortunately true of most of its claims this defense is proffered only as a bare assertion The failure to produce documenta tion solely within his control supporting these claims requires the drawing of an adverse inference As the court held in Auto Workers (Gyrodyne Co) v NLRB 459 F 2d 1329 1336 (D C Cir 1972) Simply stated the rule provides that when a party has relevant evidence within his control which he fails to produce that failure gives rise to iea The economic argument also was made as a defense to the allega Lions of delayed reinstatement or failure to reinstate sinking employees 881 an inference that the evidence is unfavorable to him As Professor Wigmore has said The failure to bring before the tribunal some cir cumstance document or witness when either the party himself or his opponent claims that the facts would thereby be elucidated serves to indi cate as the most natural inference that the party fears to do so and this fear is some evidence that the circumstance or document or witness if brought would have exposed facts unfavorable to the party These inferences to be sure cannot fairly be made except upon certain conditions and they are also always open to explanation by circumstances which make some other hypothesis a more natural one than the party s fear of expo sure But the propriety of such inference in gen eral is not doubted [2 Wigmore Evidence § 285 (3 ed 1940) ] The failure to subpoena the evidence in no way dimin ishes the impact of the adverse inference rule See Auto Workers supra at 1336 [T]he omission by a party to produce relevant and important evidence of which he has knowledge and which is peculiarly within his control raises the presumption that if produced the evidence would be unfavorable to his cause There are other reasons for finding that this defense lacks merit Respondent admitted that it determined these employees status as permanently replaced strikers only after they offered unconditionally to return to work Furthermore Respondent through its actions in dicated that it did not intend to reinstate these employees in a manner consonant with the requirements of Laidlaw supra The Company subsequent to the unconditional offer to return to work continued hiring new employees As previously found the basis for these new hires is pre text and in derogation of the rights of both economic and unfair labor practice strikers See further Kevah Kanner Inc 256 NLRB 67 (1981) Also buttressing this finding as demonstrating Re spondent s intent to discriminate against these employees is its requirement that they sign a form stating they wished to be placed on the preferential hiring list Such a condition to reinstatement rights when the union offer was admittedly considered sufficient is discriminatory The requirement that the document be executed is an im permissible precondition for reinstatement and use of the documents is a further violation of Section 8(a)(1) of the Act See A & D Davenport Transportation 256 NLRB 463 (1981) and cases cited there Another example of impermissible preconditions for reemployment involved the threat of loss of seniority As previously found when Francisco Zamora asked Ed Si movich if signing the form on May 30 would result in a loss of seniority of 11 years Simovich told him that he could not respond at that time Respondent by implying to Zamora that he could lose his seniority rights had the effect of coercing Zamora for participating in protected cocnerted activities See NLRB v US Cold Storage 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Corp 203 F 2d 924 (5th Cir 1953) cert denied 346 U S 818 (1953) Laidlaw supra Fleetwood Trailer supra By so doing Respondent violated Section 8(a)(3) and (1) of the Act Similarly the uncontroverted evidence of record clearly shows that Jesus Valdez as a condition precedent to reinstatement was required to accept new employee status As stated in Transport Co of Texas 177 NLRB 180 185 (1969) 186 In the The Laidlaw Corporation 167 the Board made it clear that strikers are entitled to full reinstate ment to fill positions left by the departure of per ma nent replacements including the restoration of all seniority rights that they had at the time of the strike Stated in another way reinstated economic strikers who were once replaced but recalled when vacancies occur or other business conditions war rant it are not to be treated as newly hired employ ees but must be treated uniformly with non strikers with respect to whatever benefits accrue to the latter from the existence of the employment rela tionship 168 Respondent not only required Valdez to be reinstated as a new employee but it required him to submit to a physical examination a requirement assertedly to be met by all new employees but found above to have been abandoned when replacements were hired during the strike No legitimate and substantial or compelling busi ness justification was advanced by Respondent in expla nation of its actions The Company clearly placed the strikers in a subordinate class which is explained on the record solely because they exercised their statutory right to strike demonstrates coercion Therefore as found in Giddings & Lewis supra the Respondents conduct is in herently destructive of employee rights 169 That Re spondent subordinated the interests of strikers to other employees was clearly established by the pattern of dis parate treatment of returning employees compared to those employees who worked during the strike including replacement employees 170 As found in Transport Co supra at 187 Although Respondent has no seniority plan as such length of service is a consideration which is normal ly considered by employers in making determine tions about employee tenure The placing of striking employees in such a subordinate class is violative of Section 8(a)(3) and (1) of the Act Further indicative of unlawful motive are Respond ent s actions in paying without request the accrued vaca tion earnings of these 10 employees Also those re placed employees who qualified were sent their profit 166 See also Giddings & Lewis, Inc 255 NLRB 742 (1981) 167 Laidlaw supra 168 Great Dane Trailers supra lee See Laidlaw supra 170 For example the failure to investigate the allegations against sink ers by asking the strikers what occurred while tolerating violence by nonstrikers Another example of disparate treatment was the retention without discipline of Freddie Vallejos who was charged with crimes sharing contributions That these actions were demon strative of Respondents discriminatory intent is substan tiated by E Simovich in an affidavit given on September 3 1980 171 in which he stated that Valdez was given back pay Therefore the Employer was rehiring Valdez on August 6 1980 and that date considered a new date of hire for Valdez Buttressing this finding is Hoy s reply to Fenton s letter of inquiry regarding the Compa ny s return of employees vested interest in the Compa ny s profit sharing plan in which Respondent admitted they considered the named employees employment ter minated Martiniano Rodriguez is found to have not manifested an unequivocal resolve to not accept reinstatement The Board in first looking to the sufficiency of a so called voluntary quit began to develop its law in voter eligibil ity issues In those cases the Board held there was a pre sumption a striker remained an employee and to rebut the presumption the party challenging his vote must of firmativel3 show by objective evidence that he has aban doned his interest in his struck job Pacific Tile & Porce lain Co 137 NLRB 1358 1359 (1962) See also Roylyn Inc 178 NLRB 197 (1969) in which the Board held that signing a quit slip solely to obtain vacation pay was in sufficient to show job abandonment Subsequently the Board began to apply this rule of law to issues of reinstatement and backpay rights after a so called voluntary quit See e g Mississippi Steel Corp 169 NLRB 647 663 (1968) and Coca Cola Bottling Co 232 NLRB 794 811 (1977) In a recent case Harowe Servo Controls held 250 NLRB 958 964 ( 1980) the Board With 'espect to the resignations of various unfair labor practice strikers in order to accept other jobs during a strike the Board in S & M Manufacturing Company 14 stated that such action does not auto matically eliminate [the sinker] as a striking em ployee absent unequivocal evidence of intent to permanently sever [the striker s] employment rela tionship 15 In S & M Mfg the Board con cluded that the resignations were required by the strikers new employers before the strikers would be hired and in such circumstances the Board found that the mere submission of their resignations did not constitute an unequivocal abandonment of their status as strikers or of their right to further employ ment with the Respondent 16 And with respect to determining an economic strikers eligibility to vote in an election the Board has set out certain standards pertinent here [Empha sis added ] The Board has found a presumption of the striker s eligibility and has stated [t]o rebut the presumption the party challenging his vote must affirmatively show by objective evidence that he has abandoned his interest in his job The nature of the evidence which may rebut the presumption will be determined on a case by case basis However acceptance of other employ '71GC Exh 41 CHAMP CORP 883 ment even without informing the new employer that only temporary employment is sought will not of itself be evidence of abandonment of the struck job so as to render the economic striker in eligible to vote 17 Finally in Standard Materials Inc 18 the Board or dered reinstatement and backpay [emphasis added] over the claim that the discriminatees no longer wished reinstatement where the discriminatees had not indicated an unequivocal resolve not to accept reinstatement 19 14 165 NLRB 663 (1967) 1$ 165 NLRB at 663 see also Mastro Plastics Corporation 136 NLRB 1342 1329-59 (1962) Cornwell Company Inc 171 NLRB 342 348 (1968) 18 165 NLRB at 664 14 Pacific Tile and Porcelain Company 137 NLRB 1358 1359-60 (1962) 18 237 NLRB 1136 (1978) 19237 NLRB at 1136 see also W C McQuaide Inc 239 NLRB 671 (1978) The rule to be applied in the instant case is therefore Did Rodriguez evince an intent to permanently sever his employment relationship with Champ Corporation and was this proved by Champ with unequivocal evidence9 The facts of Mississippi Steel Corp supra are very close to the facts in the instant case There the employ ees submitted written resignations during the strike in order to receive their pension plan money They knew when they submitted their letters of resignation when the letter meant and the effect of same on their jobs The trial examiner opined that the strikers intended the letters to be for the purpose of obtaining their profit sharing money and not needlessly to abandon their job rights Id at 663 He then used a balancing test of the equities between the company and the employees and decided that the employer has a right to rely on the resignations Backpay was tolled from the date of the resignations but their reinstatement rights were not forfeited The administrative law judge in Coca Cola Bottling supra at 811 applied the balancing test of Mississippi Steel and found that where the employee did not intend to quit and the employer did not act in good faith the em ployer was liable for backpay In the instant case Rodriguez testified that he went to receive benefits that he thought other strikers were re ceiving He testified that he was told that even though he was signing a letter of resignation not to worry be cause he was going to get his job back no matter what occurred Phyllis Lund also testified that Rodriguez had not said anything about quitting prior to his request for money As in Mississippi Steel and even more strongly in this case the evidence clearly demonstrates that Rodri guez had no intent to permanently sever his employment relationship The fact that Rodriguez resigned after the termma tion of the strike under the circumstances here present does not toll backpay liability As noted above the Board in Standard Materials 237 NLRB 1136 (1978) or dered reinstatement and backpay for employees who had not shown an unequivocal resolve not to accept rein statement Here Rodriguez had not yet been offered re instatement As shown elsewhere the Company s reh ance on pending criminal charges was illegal The Com pany then illegally refused to reinstate Rodriguez prior to his attempt to get more money Rodriguez intent not to resign but to merely get addi tional funds after 10 months of unemployment his under standing that he was not cutting off the employment re lationship with Champ based on his understanding of what Phyllis Lund told him and the fact that other em ployees also received money from the pension plan bal anced against the Employers repeated unfair labor prac Lice violations during the reinstatement period its failure to properly offer reinstatement prior to Rodriguez re quest for the money the Employers awareness that others had received their profit sharing money and were reinstated which would tend to confuse an employee about what he was doing when signing the quit slip and the Employers knowledge of Rodriguez lack of com prehension of the English language the failure to use an interpreter are factors requiring a finding that Rodriguez did not clearly evince an intent to permanently sever his employment relationship with Respondent Therefore he is entitled to backpay See also Top Mfg Co 254 NLRB 976 (1981) Accordingly it is found that M Rodriguez retains his right to an offer of reinstatement and Re spondent s failure to make such an offer is violative of Section 8(a)(3) and (1) of the Act Even if it was found that the Company correctly treat ed these employees as economic strikers Respondent s serious and repeated unfair labor practices regarding the group of employees would require an order of full rein statement with backpay as the most appropriate remedy for the misconduct described here See Drug Package Co 241 NLRB 330 (1979) In sum it is concluded that the 10 allegedly perma nently replaced strikers were not shown by clear and convincing evidence or even reasonable inference to have been permanently replaced before November 5 1979 Accordingly they are found to be unfair labor practice strikers As unfair labor practice strikers they have the right to reinstatement even if replacement em ployees must be terminated No replacement employees were terminated to make room for unfair labor practice strikers whether placed in this category or otherwise With the exception of Jesus Valdez who was admittedly improperly included in this category none of the mdi viduals assertedly permanently replaced was offered rein statement Even though after their uncontroverted offer to return to work was made Respondent continued em ploying new hires Respondents bare assertion that these new hires had greater skills and hence Respondent was justified in its actions is not credited for the reasons stated above Furthermore this defense does not obtain where unfair labor practice strikers rights were in volved However even assuming arguendo that these employ ees were economic strikers it strains credibility that not one of these 10 employees had the requisite skills after April 21 1980 to warrant offering them reinstatement in lieu of a new hire Respondents alteration of job descrip 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions and/or skill levels as requisites to employment were not shown to be justified In fact the record supports a finding that the Company terminated these 10 employees For example Respondent sent a letter to the 6 employ ees who had not sent in a written request to be put on the preferential hiring list which included their vested in terests in the profit sharing plan indicating that it termi nated the 10 employees who had been permanently re placed Four factors show that Respondent terminated all 10 employees First all were sent the second letter demanding a written request within the next several days Second the 6 who were sent their profit sharing interests were the only ones of the 10 who had vested interests Third all were sent the accrued vacation pay without the employees requesting these benefits and without any explanation by Respondent for this action Finally Respondent in a letter to the Union from Hoy referred to the employees as terminated As noted supra it is sufficient if the words or actions of Respondent would logically lead a prudent person to believe his tenure had been terminated to constitute a discharge Re spondent s argument that it did not follow its pro forma rules is insufficient in light of Respondents words and actions Respondents eventual recision of these termina tions on September 5 1980 in no way mitigates the fact that it did terminate all the so called economic strikers By doing so Respondent violated Section 8(a)(3) and (1) of the Act Tom Simovich as detailed above gave vaned reasons for the failure to reinstate F Zamora and Mickey Lambright Also relevant in determining motiva tion is the Employers use of a multiplicity of alleged reasons and the belated explanation for its action are fa miliar signposts to discriminatory intent See La Z Boy Tennessee 233 NLRB 1255 (1977) NLRB v Superior Sales 366 F 2d 299 (8th Cir 1966) Consequently this defense is found to be another pretext The Respondent failed to sustain its burden of proving that its refusal to reinstate these employees was for sub stantive and legitimate business reasons In fact the record clearly supports a finding that Respondents fail ure to reinstate these employees was discnminatortly mo tivated Respondents capricious reservation of the right to change job classifications and/or to fill jobs with em ployees possessing different skills including the new hires is found to be inherently destructive of employees rights as provided in Section 7 of the Act and is found to be violative of Section 8(a)(3) and (1) of the Act Therefore even if these employees were found to be economic strikers they were discriminatorily denied re instatement in violation of Section 8(a)(3) and (1) of the Act 7 Employees who did not appear at the Company on April 21 1980 It is uncontroverted that the Union s telegram and letter of April 17172 was an uncontroverted application 12 The Union was fully authorized to make its offer See e g Com fort Inc 152 NLRB 1074 1079 fn 6 (1965) enfd 365 F 2d 867 877 (8th Cir 1966) and Colonial Haven Nursing Home 218 NLRB 1007 (1975) on behalf of the employees of Champ Corporation cur rently on strike to return to their former positions or substantially equivalent positions if their former post tions no longer exist The application continued The striking employees will be reporting at the start of the scheduled shift on Monday April 21 1980 These mis sives signed by Gazziglt further stated that if Respond ent had any questions they should contact him Respondent properly argues that those individuals who did not appear on April 21 were governed by the find ings in Mississippi Steel Corp 169 NLRB 647 662-663 (1968) in which the administrative law judges following conclusions were affirmed by the Board The Union s letter of August 6 supra clearly noti fled Respondent that the strike was terminated and that the bulk of the strikers immediately available would return to work unconditionally on August 8 as they were instructed So far as it went such blanket unconditioinal application for reinstatement on behalf of the strikers was fully authorized and le gally sufficient 82 However there is no basis for finding as contended without explication by the General Counsel that the Union s letter was a proper blanket application for all strikers without further need for their individual appearance or ap plication for work 83 particularly as the Union ex plicitly advised Respondent that the strikers would personally report to the plant Accordingly it is found that the strikers who reported or applied for their former or substantially equivalent jobs during the period of the strike or on and after August 8 and who were refused such reinstatement within 5 days of their application were discriminated against in violation of Section 8(a)(3) 82 Lasko Metal Products Inc 148 NLRB 976 994 enfd 363 F 2d 529 (C A 6) 83 Cf Brown and Root Inc 99 NLRB 1031 1038 et seq enfd as modified 203 F 2d 139 (C A 8) Elmira Machine & Speciality Works Inc 148 NLRB 1695 1696 It is noted that the Brown & Root Inc decision cited in the Mississippi Steel case based its conclusion that the offer of reinstatement did not include all strikers because the unmistakable language of the offer specifically ex cluded some employees and demands employment in the alternative for those of them who present them selves One employers letter of acceptance of the same date revealing its own interpretation of the context of the offer plainly shows its agreement only to take back such strikers upon their application for re employment The facts of the case lead the Board to conclude the parties agreed that the strikers were to make individual applica tions for reinstatement Ibid at 1040 The other case cited in Mississippi Steel Elmira Machine 148 NLRB 1695 1696 (1964) concluded that the Union requested unconditional reinstatement for specific named individ uals The decision in the Mississippi Steel Corp case un fortunately does not contain a clear and full recitation of the union s letter CHAMP CORP The failure in this case of some employees to appear on April 21 did raise a valid question by Respondent about the status of those employees based on the Union s representation that the striking employees without noted exceptions would appear on April 21 As previously indicated on April 21 Respondent sent a mailgram to Gazzigh requesting the names of the indi viduals included in the Union s classification of April 17 of employees currently on strike The Union replied on April 25 1980 as follows THE STRIKING EMPLOYEES PERSONALLY APPEARED AT THE NORMAL SCHEDULED SHIFT ON APRIL 21 1980 AND AT THAT TIME WERE INFORMED TO REPORT TO THE PERSONNEL DEPARTMENT AT SAM BY MR ED SIMOVICH EACH EMPLOYEE PERSONALLY SIGNED A COMPANY ROSTER AT SUCH TIME AND PLACE AS DESIGNATED BY MR SIMOVICH IN ADDI TION STEVEN BAUGH AND THOMAS VARGAS AP PEARED AT 9 AM AND WERE INFORMED THAT THEY WERE TOO LATE TO SIGN THE ROSTER In response to further inquiry by Respondent the Union by letter dated May 2 stated that 54 strikers at tempted to return to work on April 21 and appended a list of 64 individuals that it asserted were included in its application for reinstatement On May 5 Respondent again wrote the Union 1173 On May 9 a copy of a milgram was sent by the Union to Respondent which stated THIS TELEGRAM IS IN RESPONSE TO YOUR LETTER DATED MAY 5 1980 AND RECEIVED BY THE UNION MAY 5 1980 THE UNION S POSITION IS AND I REPEAT ALL 64 EMPLOYEES NAMED ON THE LIST SUPPLIED TO YOU BY THE UNION OFFERED AND CONTINUE TO OFFER TO RETURN TO WORK UNCON DITIONALLY THE LETTERS O/F/T DESIGNATE THAT EMPLOYEE WAS OUT OF TOWN AND WAS NOT AVAILABLE ON APRIL 21 TO SIGN THE COMPANY ROSTER IT WAS ON MEDICAL DISABILITY APPEAR 8 The letter stated Thank you very much for your response to our mailgram of April 30 1980 As I am sure you can imagine the administration mechan ics and implementation of the reinstatement of over fifty people is a most complex and arduous one The list of names that you have sup plied will assist us greatly We do not want to overlook one person s rights to return to work unconditionally We are pleased that you have finally cooperated in furnishing us the names of the persons who you referred to in your communications as current strikers offering to return to work unconditionally We will now be able to finalize the reinstatement process forthwith utilizing the list of names that you have furnished as a check against those persons who have signed the Company s roster Perhaps you may clear up some confusion we seem to have as a result of your communications You state that the Union s position is that fifty four (54) offered to return to work unconditionally with which we agree However you have furnished sixty four (64) names to us today stating in your letter Please find enclosed a list of names and addresses of the employees that have offered and contin ue to offer to return to work unconditionally Of the sixty four (64) names furnished us you have the letters O/F/T along side six names and an additional four names and an additional four names alluding to their being on medical disability We certainly need your help and assistance in tying this matter down and shall appreciate your assistance Meanwhile we will con tinue with the reinstatement process of the fifty four persons 885 AFTER THE EMPLOYEES NAME THAT EMPLOYEE IS UNDER A DOCTORS CARE AND WERE UNABLE TO REPORT I SUGGEST YOU CONTACT THOSE EMPLOYEES AND OFFER REINSTATEMENT AT SUCH TIME AS THE DOCTOR RELEASES THEM FOR WORK [SIC] Based on these facts it is found that Respondent was confused regarding the individuals included in the offer However such confusion cannot be claimed beyond May 9 It is also concluded that Respondents denial that Baugh and Vargas were properly included in the Union s offer of April 21 is specious The Company refused to permit them to sign the roster because they were 1 hour late which explains their initial exclusion from the cate gory deemed to have properly appeared However Re spondent did not include Baugh and Vargas in this cate gory of employees not appearing on April 21 On May 9 Respondent knew the offer encompassed all the employ ees named in this category That Respondent accepted the representations of the Union regarding this class of employees is clearly demonstrated by Respondents offer to various members of this classification such as Avalos of reinstatement without any further clarification of the Unions offer See W C McQuaide Inc 220 NLRB 593 609 (1975) enfd 552 F 2d 519 (3d Cir 1977) Ac cordingly it is concluded that a clear unconditional offer to return to work was made on behalf of those eight employees in this category on May 9 and that Re spondent demonstrated through its failure to make fur ther inquiries of the Union regarding these individuals as well as through its subsequent actions that it accepted the offer 174 Cf Comfort Inc 152 NLRB 1074 1079 fn 6 (1965) enfd 365 F 2d 867 877 (8th Cir 1966) Further if Respondent had any further questions it was obligated to seek clarification As the Board stated in Home Insulation Service 255 NLRB 311 312 (1981) Where any such ambiguity remains unclanfied due to Respondents decision to ignore the offers and not seek clarification Respondent may not be heard to complain if such uncertainty is resolved against its interest Haddon House Food Products Inc and Flavor Delight Inc 242 NLRB 1057 fn 6 (1979) Once the Union clarified its collective unconditional application for the reinstatement of the 64 named striking employees the Employer is not permitted as discussed above to delay reinstatement by insisting that a striker individually affirm the request for reinstatement the Union s collective application is sufficient See e g Newspaper Production Co v NLRB 503 F 2d 821 829 (1st Cir 1974) National Business Forms 189 NLRB 964 (1971) enfd 547 F 2d 737 (6th Cir 1973) Mississippi Steel Corp supra cited by Respondent is distinguishable on its particular facts for in this case there was a clarifi cation as to who was encompassed in the offer even though several persons did not appear on April 21 and 74 As previously found the General Counsel failed to show that D Kerr and R Montoya were sinking employees and therefore they are not entitled to reinstatement 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent clearly through its actions accepted the offer as clarified The retention of these employees in a separate catego ry or classification by the Company was not shown to be justified The Employer was obligated as found above to timely respond to the Union s application by making bona fide offers to reinstate the strikers Newspaper Pro duction Co supra at 829 Rogers Mfg Co it NLRB 486 F 2d 644 647 (6th Cir 1973) Coca Cola Bottling Works 186 NLRB 1050 1051 (1970) Marlene Industries Corp 255 NLRB 1446 (1981) The offer must be specific un equivocal and unconditional See Standard Aggregate Corp 213 NLRB 154 (1974) and cases cited there It is the antithesis of this requirement for the Employer to re quire separate treatment of these eight employees in con firmation of the Union s request for their reinstatement The placing of them in a special category and maintain ing that category after May 9 1980 is a violation of Sec tion 8(a)(3) and (1) of the Act Respondent has not claimed that any of these employ ees engaged in such egregious acts as to justify its failure to timely reinstate them or otherwise remove them from the protections of the Act Further as found above the Company s economic defense was unsupported and failed to justify untimely reinstatement offers Further Re spondent argues that it was justified in delaying reinstate ment of all of its unfair labor practice strikers due to its fear of violence which could result from immediate mas sive reinstatement With the exceptions stated above the Employer has the obligation to reinstate unfair labor practice strikers immediately after their unconditional offer to return to work After the strike was converted to an unfair labor practice strike the concerted protected activity is treated for remedial purposes as an unfair labor practice strike Marlene Industries supra at 1463 fn 59 and cases cited there 175 Therefore as noted above such striking employees are entitled to reinstate ment on their unconditional application to return to their former positions even if replacement employees must be discharged to permit the return of the striking employ ees Respondent hired approximately 80 replacements after the strike commenced As of June 6 1980 only aobut three replacement employees were discharged After April 21 about 59 were still working As of June 6 about two were on disability Also as of June 6 about 25 re turning strikers were offered reinstatement Therefore it appears that Respondent had more jobs filled by replace ments on June 6 than there were striking employees wanting reinstatement Not only do these figures dispel the reason Respodnent s picture of a significant economic downturn of such proportions as to require the elimina tion of many of the strikers jobs but affirms the finding above that the failure to reinstate in a timely manner was based on pretext motivated by antiunion animus This finding is buttressed by Respondents failure to show changes in its operation which it instituted that did in fact or should have resulted in the elemination of strik ers jobs Respondents obligation to reinstate unfair labor prac tice strikers begins immediately after their unconditional offer to return to work In order to allow an orderly process backpay is ordinarily awarded beginning 5 days after the unconditional offer Drug Package Co 228 NLRB 108 (1977) However strikers who offer to return to work as a group are entitled to backpay from the date of the offer where the employers refusal to reinstate is discriminatorily motivated Hargis Mine Supply 225 NLRB 660 (1976) Further Respondents backpay re sponsibility continues until it makes a bona fide and un conditional offer of reinstatement Burn up & Sims Inc 256 NLRB 965 (1981) Marlene Industries supra Console dated Freightwavs 253 NLRB 988 (1981) Any offer to be unconditional must give the employee reasonable time to respond Marlene Industries supra Murray Prod ucts 228 NLRB 268 (1977) NLRB v W C McQuaide Inc 552 F 2d 519 (3d Cir 1977) Highland Plastics 256 NLRB 146 (1981) There is no per se rule requiring a minimum period of prior notification in an offer of reinstatement the appro priate period is to be determined from the totality of the circumstances including the employers acts of discrimi nation and their effect on the employees any false or misleading statements to the employees regarding their employment status and the discriminatee s interim em ployment Murray Products supra Hirsch v Trim Lean Meat Products 479 F Supp 1359 (D Del 1979) As more fully described infra the reinstatement plan by Respondent was an insufficient answer to the employ ees unconditional offer to return to work and as such did not constitute a bona fide offer of reinstatement Respondent argues that it delayed reinstatement of the strikers because it feared that due to the emotions aroused during the strike there was likely to be violence However an employer cannot justify its refusal to timely reinstate unfair labor practice strikers by claiming hostili ty among the employees and a fear of violence when the hostility which did exist was the creation of the Re spondent in substantial part Pacific Powder Co 84 NLRB 280 (1949) Cf Cross Co 143 NLRB 1005 1008- 1013 In this case Respondent hired an individual alleg edly belonging to the Escondido Flores various non striking employees and supervisors176 engaged in mis conduct without reprisals from the Employer Also the plant managers threatened to and then did unlawfully discharge employees engaged in a lawful strike T Simo vich and other managers clearly exhibited antiunion animus This pattern of conduct by Respondent is found to be a substantial factor in developing the level of hos tility between strikers and nonstrikers Finally Respond ent introduced no evidence to show that prior to the actual reinstatement there was any indication that the presence of the strikers would create a safety hazard save from the actions of nonstriking employees who might have been discharged to make room for the re 6 Larson attacked sinkers with vehicles and Vallelos attacked Rodri guez spit on Naranjo and was arrested for swinging an ax at picketers Vallelos was placed on probation R Rodriguez was hit by a nonstriking 75 The same remedies obtain if the strike has the dual objectives of an employee and that employee was not sought by the Company for disci economic and unfair labor practice strike plinary purposes CHAMP CORP turn.ng strikers if as the Company claims there were positions insufficient to permit reinstatement of all stnk ers Therefore Respondent cannot now assert a defense of fear of violence in the plant Similarly Respondent offered no evidence that it was unable to exercise its responsibility to oversee quality control such that it would result in the increase of its in surance This argument is a sham and is not credited This bare assertion characteristic of other bare asser tions such as the defense of economic impairment and other unsubstantiated conclusionary denials are in large part the defenses presented by the Company particularly Ed Simovich Although at times no more detailed evi dence is possible such bare denials are not generally en titled to much weight This finding is particularly true where as here Ed Simoich s other testimony is not en tirely reliable and Respondent had solely within its grasp the opportunity to demonstrate its claims through communications with its insurer customers or other en titles See Hargms Mine Supply supra at 663 Cf Team sters Local 633 v NLRB 509 F 2d 490 (D C Cir 1974) Shattuck Denn Mining Corp v NLRB 362 F 2d 466 470 (9th Cir 1966) NLRB v Shoenberg Farms 297 F 2d 280 284 (10th Cir 1961) Respondents business justification was similarly with out justification in the record see infra regarding the so called laid off employees and is also discredited Because these reasons have been discredited the only reason that is credible is that the Respondent intended to delay the reinstatement of the strikers because they engaged in protected concerted activity Such conduct is violative of Section 8(a)(3) and (1) of the Act The operation of the reinstatement plan demonstrates the total disregard for these employees rghts For exam ple Respondent admitted that before allowing the rein statement of a worker it would first decide whether the job to which the striker was entitled should be changed and new skills required This unilateral attempt to change the job classifications without substantial buss ness justification is discriminatory destructive of em ployee rights and is a violation of Section 8(a)(3) and (1) of the Act Similarly Respondent admitted that it would only hire those persons it felt were most qualified for the job in eluding new hires As the administrative law judge said in Lincoln Hills Nursing Home 257 NLRB 1145 1159 (1981) I conceive of no more glaring example of dis crimination so foreseeably causing employee re sponse in contravention of Section 7 rights as to ob viate the need for any other proof of intent then to afford new hires employment opportunities superior to those of strikers awaiting recall Such disparate treatment is unlawful It patently discourages union activity The Radio Officers Union v NLRB 347 U S 17 (1954) NL R B v Erie Resistor Corp et al 373 U S 221 (1963) Respondent did in fact hire at least two new employees when strikers had not yet been reinstated By doing so Respondent violated Section 8(a)(1) and (3) of the Act 887 By drawing up the reinstatement plan in such a way as to delay strikers reinstatements for discriminatory rea sons Respondent violated Section 8(a)(1) and (3) of the Act Because Respodnent s plan and its failure to rein state the striking employees was discriminatorily mote vated its backpay liability begins on April 17 1980 the date of the employees offer to return as a group Hargis Mine Supply supra Marvin Cummings was alleged by Respondent to have been permanently replaced and then laid off Cummings did not notify the Company of his unavailability before April 21 because of jury duty Respondent offers no evi dence as to whom he was replaced by nor has Respond ent showed substantial business reasons for its failure to reinstate him In fact his uncontroverted testimony is that an unemployment office told him in March that Re spondent had no opening in his job classification which further substantiates the finding that the failure to rein state these employees was discriminatorily motivated Cummings therefore must be classified as an unfair labor practice striker and Respondents failure to rein state him is a violation of Section 8(a)(3) and (1) of the Act Because Cummings at the end of the strike was fully capable of returning to work Respondent has not tolled its backpay obligation Manuel Avalos was given a bona fide offer of rein statement on July 10 1980 There is no contention that in these circumstances the 4 day time period was an in sufficient time to allow Avalos to consider the offer Therefore Respondent has tolled its backpay obligation with respect to Avalos on July 11 the day Avalos quit Because Avalos voluntarily quit Respondent has no fur ther obligation of reinstatement Vincente Banaga by Respondents telegram of July 16 was offered reinstatement Respondents offer was not an unconditional one as it allowed only 2 days for Banaga to begin work However because Banaga did in fact begin work on July 18 that date should be found to be when Respondent made its unconditional offer of re instatement Raul Cortez and Calvin Hassler were offered uncondi tional reinstatement on July 10 1980 thus tolling Re spondent s obligation for backpay Because both employ ees never responded again they are deemed to have vol untanly quit and no reinstatement is warranted The same finding obtains to David Hassler Oscar Guerrero was offered reinstatement on July 10 There is no con tention that this offer was not bona fide Therefore Re spondent s obligation for backpay ended July 10 for Guerrero Ronald Kerr as an unfair labor practice striker was entitled to reinstatement Respondent made an offer of reinstatement on July 10 but the offer was subsequently retracted and Kerr was placed on layoff status Kerr was replaced with new hires which Respondent alleged had greater skills and has not yet been offered reinstatement As noted supra the preference of new hires over strikers is inherently destructive of employees rights Further Respondents attempt to redefine the job so as to make the striking employee ineligible for the job is also inher 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ently destructive of the striker's rights, and in violation of Section 8(a)(3) and (1) of the Act. 8. Recall of employees on layoff Respondent argues that it properly limited the rein- statement rights of Gonzalo Andrade, Manuel Garay, Javier Lopez, and Jose Noyes by limiting the duration of their reinstatement rights on or about May 30, 1980, when they were offered reinstatement and placed on layoff status. Respondent cites no cases to support its po- sition. Counsel for the General Counsel argues that be- cause Respondent did not proffer any business justifica- tion for limiting the strikers' recall rights, it violated Sec- tion 8(a)(1) and (3) of the Act, citing Penn Corp., 239 NLRB 45 (1978). In the Penn Corp. case, which involved economic strikers, it was found that by unilaterally pre- scribing limits on strikers' recall rights, Respondent vio- lated the Act. The record fails to show, as Respondent notes in its brief, what the Respondent's layoff and reinstatement policy was before the strike. As the Supreme Court points out in Fleetwood Trucks, supra, 389 U.S. at 378, the burden of proving justification is on the employer. The record does show, as exemplified by the testimo- ny of Castonguay, that certain alleged replacements were relatively unskilled and had to be trained, many months after the offer to return to work of April 21, to meet the Company's needs. Also some laid-off replacement em- ployees were reinstated before the unreinstated strikers were recalled. Thus, it is shown that replacement em- ployees were not subject to the same limits on their recall rights. This recall policy is found to be a grant of superseniority to replacement employees. As the Board held in Giddings & Lewis, 255 NLRB 742, 743 (1981), enf. denied 675 F.2d 926 (7th Cir. 1982): Similarly, in Erie Resistor,3 the Court concluded that the Board was entitled to view an employer's grant of superseniority to strike replacements and to strikers who abandoned the strike as conduct so de- structive of employee rights that it carried its "own indicia of intent" and was "barred by the Act unless saved from illegality by an overriding business pur- pose justifying the invasion of union rights."4 3 N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221. 4 Id. at 231. As noted above, the Company has failed to substanti- ate their claims of economic exigencies, changes in prod- uct lines, alterations in guidelines or other factors which would save its actions from "illegality" regarding eco- nomic strikers, no less unfair labor practice strikers. As previously determined, Respondent's actions were discriminatorily motivated and it is further determined that the limiting of recall rights with lawful justification is inherently destructive of striking employees' rights in violation of Section 8(a)(3) and (1) of the Act. The sub- sequent removal of this recall right was insufficient miti- gation, particularly in light of the fact that none of these employees was recalled. 9. Reinstatement of employees who had been charged with crimes during the strike In NLRB v. Great Dane Trailers, supra, the Supreme Court recognized that discharges of or refusals to rein- state strikers were actions inherently destructive of em- ployee rights encompassed by Section 7 of the Act. This finding, however, does not obviate the burden of proof of the General Counsel to establish that such actions were discriminatorily motivated . See Laredo Coca-Cola Bottling Co., l" which further provides regarding eco- nomic strikers: Accordingly, the General Counsel must first estab- lish that an individual was, in fact , a striker and that an employer took some action against him for con- duct while said individual engaged in the strike. At that point, the burden shifts to the respondent which must prove that it entertained and honest belief that the striking employees have engaged in misconduct. Such constitutes an adequate defense to a charge of discrimination in refusing to reinstate strikers except where the General Counsel affirma- tively establishes that the employees did not, in fact, engage in such misconduct or where the conduct in question was not "so flagrant or egregious as to re- quire subordination of the employees' protected rights in order to vindicate the broader interest of society as a whole." Dallas General Drivers, Ware- housemen and Helpers, Local Union No. 745, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America [Farmers Co-Oper- ative Gin Association] v. N.L.R.B., 389 F.2d 553 (D.C. Cir. 1968); Gold Kist, Inc., 245 NLRB 1095 (1979); Birch Tree Number One, Incorporated, d/b/a Birch View Manor, 243 NLRB 495 (1979); Co-Con, Inc., 238 NLRB 283 (1978); Rubin Bros, supra.178 Once the General Counsel has established that the misconduct did not occur, the burden shifts to the respondent to rebut the denials. Gold Kist, Inc., supra In such rebuttal, Respondent need not prove it had an honest belief of wrongdoing by conclusive evidence or that there was a certainty of guilt , 17 9 but also to be con- sidered is the existence of independent evidence of un- lawful animus; whether the reports, on which the Em- ployer acted, were reliable and credible, not without foundation and promptly reported; and whether the wit- nesses themselves were worthy of belief. Laredo Coca- Cola Bottling Co., supra at 13, citing Birch View Manor, supra; Giddings & Lewis, Inc., 240 NLRB 441 (1971); As- sociated Grocers of New England, 227 NLRB 1200 (1976), enfd. in part 563 F.2d 1333 (1st Cir. 1977). When, as found here, the strikers are unfair labor prac- tice strikers, an employer's erroneous belief belief, how- ever sincere, that a striker has misconducted himself does not constitute a defense to refusing to reinstate him. Rutter-Rex, 158 NLRB 1414 at 1418, 1448-1449. Addi- 177 258 NLRB 491 , 496 (1981). 178 Rabin Bros. Footwear, 99 NLRB 610 (1952). 179 Farmers Co-Operative Gin Assn., supra at 911. CHAMP CORP tionally Rutter Rex at 1418 indicates that disqualifying misconduct by an unfair labor practice striker must be shown by a preponderance of the evidence However see Farmers Co Operative Gin Assn 161 NLRB 887 (1966) enfd and affd sub nom Dallas General Teamsters Local 745 v NLRB 389 F 2d 553 (D C Cir 1968) Coro net Casuals 207 NLRB 304 (1973) Mosher Steel Co 226 NLRB 1163 1164 1166-1167 (1976) modified 568 F 2d 436 (5th Cir 1978) It is Respondents position that police reports person ally observed activities and reports from employees who worked during the strike form adequate basis for the Company s good faith belief that the employees in this category engaged in conduct so flagrant or egregious as to require subordination of those employees potential rights in order to protect the broader interest of society as a whole Teamsters supra The General Counsel argues that the only assertion prior to the hearing re garding recall of those strikers involved consideration of criminal charges and no other reason for delaying or re fusing recall was ever asserted prior to the commence merit of the hearing that the motive was not these em ployees individual picket line conduct but discriminatory motive Citing W C McQuaide supra Colonial Press 207 NLRB 673 (1973) enf denied in part 509 F 2d 850 (8th Cir 1975) cert denied 423 U S 833 (1975) Another factor to be considered not mentioned by the parties is Respondents conduct As stated in Harowe Servo Controls 250 NLRB 958 1111 (1980) Accordingly in determining whether to rein state the dischargees on the alleged ground of alleged strike misconduct the severity of the em ployer s unfair labor practices which prolonged the strike must be balanced against whatever mis conduct by each dischargee may have occurred in the course of the strike 180 90 Furthermore even assuming that the Employers refusal to rein state the discharges did not of itself constitute an unfair labor practice the Board must nonetheless determine whether to afford them reinstate ment with backpay as a remedy for Respondents unfair labor practices that caused and prolonged the strike Auto Workers Local 833 (Kohler Co) v NLRB 300 F 2d 699 701-705 (D C Cir 1962) cert denied 370 U S 911 (1962) decision on remand 148 NLRB 1434 1453-1454 (1964) enfd 345 F 2d 748 (D C Cir 1965) ert denied 382 U S 836 (1965) NLRB v Puerto Rico Rayon Mills 293 F 2d 941 947 (1st Cir 1961) Golay & Co v NLRB 371 F 2d 259 261-263 (7th Cir 1966) Farmers Co Operative Gin supra 389 F 2d at 555 NLRB v Wallick & Schwalm Co 198 F 2d 477 485 (3d Cir 1952) NLRB v KARD TV 277 F 2d 579 585 (10th Cir 1960) cert denied 364 US 871 (1952) The Board has power under § 1(c) to order reinstatement if the discharges were not cause and if such an order would effectuate the policies of the Act and a determination that an employee is not engaged in a § 7 activity does not necessarily mean that if he is discharged for his participation in the unprotected action the discharge is for cause That depends on the sur rounding circumstances What is cause in one situation may not be in an other NLRB v Thayer Co 213 F 2d 748 753 (1st Cir 1954) cert denied 348 U S 883 Hennepin Broadcasting Associates 225 NLRB 486 499-500 (1976) enfd 96 LRRM 2585 (8th Cir 1977) cert denied 434 U S 823 (1977) A recent Fifth Circuit decision indicates that this balanc ing test is inapplicable to threats and violence directed not against man agement but against fellow employees who did not themselves engage in provocative misconduct Mosher Steel Co v NLRB 568 F 2d 436 (5th Cir 1978) Neither the Board nor other courts however have thus con fined it See e g Elmira Machine & Specialty Works 148 NLRB 1695 1698-1699 ( 1964) Coronet Casuals 207 NLRB 304 308 (1973) Thayer 889 On first examination of the record it would appear that Respondent could have reasonably believed that some of the strikers engaged in conduct sufficiently egre gious as to remove the protections of the Act or to render them unsuitable for further employment The record is replete with violence profane vituperation and threats However several factors dispel this first impres sion The first factor as mentioned by the General Coun sel is that Respondent in all written materials including the letter of May 30 1980 and various subsequent affida vits referred solely to strike related pending criminal charges as the basis for the Company s failure to rein state those striking employees Also considered is the fact that of these employees-Solis Padilla and M Ro driguez-did not have any pending criminal charges on this date The credited testimony as discussed above supports this finding as does the unusual delay in analyz ing all the other allegations against those individuals As noted above where the motive is contradictory and un convincing the inference is that the real motive was un lawful Bendix Corp supra Also the use of a multiplici ty of alleged reasons and the belated explanation for its actions are familiar signposts of discriminatory intent La Z Boy Tennessee 233 NLRB 1255 (1977) The second factor is the disparate treatment accorded the striking employees compared to nonstriking employ ees As found hereinabove when nonstriking employees used profanity made threats i 81 made gross gestures 182 and assaulted strikers 183 The more rigorous application of rules against individ uals engaged in protected concerted activity is demon strative of unlawful motive As found here Respondent s actions were motivated by antiunion animus therefore the more rigid application of disciplinary measures to strikers for misconduct is a violation of Section 8(a)(3) and (1) of the Act See Upland Freight Lines 209 NLRB 165 (1974) enfd 527 F 2d 766 (9th Cir 1976) and Keller Mfg Co 237 NLRB 712 (1978) A third factor to be considered is whether the General Counsel has sustained its burden of proving condonation To facilitate appreciation of the burdens of proof the philosophy underlying condonation as presented in supra 757 Kohler 300 F 2d at 703 explained the basis for this rule as fol lows First the employers antecedent unfair labor practices may have been so blatant that they provoked employees to resort to unprotect ed action Second reinstatement is the only sanction which prevents an employer from benefiting from his unfair labor practices through discharges which may weaken or destroy a union But sanc tions other than discharge-criminal prosecutions civil suits union unfair labor practice proceedings and the possibility of discharge- are available to prevent or remedy certain employee misconduct Hence automatic denial of reinstatement prevents the Board from protecting the rights of employees but may not be essential to the protection of legitimate interests of employers and the public 181 For example Freddie Vallejos swinging an ax at pickets another unidentified employee got out of a vehicle and punched a picket and the threats made by employees to returning strikers i82 The sign in the vehicle depicting the commonly accepted gesture which features the middle finger of the hand 83 Rodriguez was assaulted twice by Freddie Vallejos Joe Sanchez was hired although he was in the vehicle that contained the assailant who knifed Pedro Lopez and not investigating thoroughly the alleged assaults on Padilla and others after they returned to work 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union Trust Drill Co 124 NLRB 1143 1155-1156 (1959) is as follows The Supreme Court has ruled that where a strike is characterized by unprotected activity or even by illegal employee action the employees take the risk of termination of their employment (NL R B v Fansteel Metallurgical Corporation 306 U S 240 255) and the employer is at liberty to treat them as having severed their relations with the Compa ny NL R B v Sands Manufacturing Company 306 U S 332 344 By the same token the employer is equally at liberty to disregard or waive the wrong and to retain the offenders in his employ It has never been suggested that the Act requires an em ployer to discharge an employee guilty of wrongful conduct or that the Act itself terminates the rela tionship The wrongful conduct merely permits the employer to take affirmative action to that end Ac cordingly the courts and the Board have uniformly ruled that the only right accruing to an employer from unprotected strike conduct is the privilege or liberty to terminate the employment of the strikers because of their misconduct Stewart Die Casting Corporation v NLRB 114 F 2d 849 856 (C A 7) cert denied 312 US 680 N L R B v Aladdin In dustries Inc 125 F 2d 377 382 (C A 7) cert denied 316 U S 706 Hazel Atlas Glass Company v NLRB 127 F2d 109 118 (CA 4) NLRB v Reed & Prince Manufacturing Company 118 F 2d 874 886 (C A 1) cert denied 313 U S 595 NLRB v Alabama Marble Co (CA 5) 185 F 2d 1022 Though condonation may not lightly be pre sumed from mere silence or equivocal statements [if it] clearly appears from some positive act by an employer indicating forgiveness and an intention of treating the guilty employees as if their miscon duct had not occurred then condonation has been established N L R B v Marshall Car Wheel and Foundry Co 218 F 2d 409 (C A 5) The record in this case demonstrates clearly that Re spondent forgave and established the intent of treating at least some of the guilty employees or threatening them as if some or all their misconduct had not occurred The letter of October 30 offered unconditional reinstatement if the striking employees returned by November 2 The Company made no exceptions to the offer The Compa ny was well informed regarding all arrests and other al legations of misconduct usually within a day or two of the asserted event Therefore all alleged misconduct oc curring before October 30 is found to have been con doned by Respondent Further when these employees unconditionally of feted to return to work they were told verbally and by letter on May 30 that they were considered ineligible for reinstatement solely because of the pending criminal charges for strike related incidents Subsequently on June 6 Respondent confirmed that they were suspended to permit the Company to look deeply into your pend ing criminal charges which resulted from your arrest(s) for strike related violence Should your arrests be deter mined to be false we will be in touch with you regard ing your reinstatement to work Also Ed Simovich ad matted that these 13 employees were never informed that the Company would consider any factors other than the incidents leading to their arrests in the reinstatement As found in Colonial Press 207 NLRB 673 674 (1973) It is true however that we make an exception to this guarantee [of reinstatement] with respect to em ployees who commit acts during their employment or for that matter during the strike itself which are sufficiently beyond the pale of acceptable employee conduct to warrant the employers refusal to reem ploy them But we have long engrafted on this ex ception the qualification that his refusal to reemploy such persons must demonstrably be founded upon a genuine concern about the employees miscon duct Thus when the employer by his statements or conduct evidences a lack of genuine concern about such misconduct by forgiving it or by offer ing reemployment despite the prior misconduct we will not permit him subsequently to reassert the condoned conduct as a basis for refusing reemploy ment For once he has indicated that the miscon duct on which he relied for severing the employ ment relationship is no longer his true reason for denying reemployment to those who have protested his unlawful acts there can remain only the dis criminatory reason for denying such reemploy ment-i e retaliation against such persons for having struck or picketed in protest against the em ployer s unlawful interference with employee rights In this case Respondent never indicated prior to the commencement of the hearing that misconduct other than that leading to arrest and conviction was a basis for its refusal to reemploy those 13 strikers The failure to mention other alleged misconduct until more than a year after the offer to return to work compared with the credited testimony that the basis for not hiring these strikers on May 30 was because they had criminal charges against them the fact that Solis was told that he might be placed on a waiting list after the charges were dropped and Padilla was offered reinstatement merely by mentioning that the charges against him had been dropped and no striking employees other than those 13 were ever investigated or considered ineligible for com mitting egregious acts 184 it is found that Respondent ex plicitly condoned all alleged activity that did not result in arrest and/or the filing of criminal charges Accord ingly the contention that picket line misconduct that did not result in criminal charges was considered in reinstat ing employees in this category is found to be a violation 184 For example Respondent knew that Baugh followed Gary yet of fered him reinstatement Further as previously discussed Respondent did not take any actions against nonstriking employees who engaged in mis conduct but were not arrested In fact Respondent did not discipline any nonstriking employees for misconduct whether such misconduct led to cnminal charges or not CHAMP CORP of Section 8(a)(3) and (1) of the Act because these activi ties were condoned Even if condonation were not found the lack of cop sistent application of any clear standard regarding the employees conduct and the inconsistency in Ed Simo vich s testimony including affidavits warrants the con clusion that use of allegations of misconduct against only this classification of strikers was a pretext to mask dis cnminatory motives D The Individual Employees 1 Gutierrez and Ortiz Counsel for the General Counsel stated that Ruben Gutierrez and Eduardo Ortiz are not entitled to rein statement because of their picket line activities they disqualified themselves from reinstatement 185 There fore only the rights to reinstatement of the remaining 11 employees in this category are in issue The admission by the General Counsel that these strikers conduct is dis qualifying is found to be probative of the propriety of Respondents refusal to reinstate these employees How ever because Gutierrez and Ortiz were discharged before the end of the strike and counsel for the General Counsel failed to adduce any evidence specifically detail ing the activities deemed disqualifying the resolution of whether any backpay liability obtained will be deferred to the compliance phase of this proceeding 2 Jose Villavicencio Villavicencio was arrested November 9 1979 for throwing rocks at a passing vehicle a violation of the California Vehicle Code Section 23110(a) As noted supra the charge was dropped on December 3 1980 on a motion by the district attorney The charge stems from an incident in which Arturo Nieblas filed a complaint al leging he threw rocks or stones He was not arrested Villavicencio testified that he did not throw rocks at anybody Because Arturo Nieblas was not called to testi fy and because the charge was dropped there is no basis in the record with which to contradict his denial Re spondent also contends that Villavicencio was in the car Solis was driving when Castonguay was allegedly forced off the road As previously noted Castonguay did not credibly testify regarding the alleged attacks against him Further Respondent did not consider the fact that Sanchez was riding in the same car as the indi vidual who stabbed Pedro Lopez as disqualifying factor hence its assertion that a similar association by Villavi cencio with Solis is disqualifying is again indicative of animus due to the extremely disparate approach taken by Respondent in its treatment of striking and nonstriking employees The Solis incident Castonguay testified occurred on March 10 1980 when Solis and a passenger swerved three times into his path nearly hitting him forcing him to stop to avoid hitting a parked car Foreman Bobby Smith however testified that Solis was attempting a right hand turn and would not have hit Castonguay 185 Tr 1681-1682 891 even if Castonguay had not stopped If this incident actu ally happened as Castonguay alleges the fact that Villa vicencio was present without more does not support an inference that Villavicencio actually participated in the conduct of Solis Because during the entire strike there is no other report that Villavicencio was engaged in any other misconduct of any kind Respondent has no credi ble basis to terminate him and to deny him reinstatement By refusing to reinstate him and by terminating him Re spondent violated Section 8(a)(3) and (1) of the Act 3 Carlos Almaroz Almaroz testified that he was arrested only once during the strike for throwing rocks at a vehicle and he was not charged with any violations of the penal code On November 19 1979 he was charged with violations of the vehicle code The vehicle was Nick Ianello s and the incident was witnessed by Larson As previously found Almaroz denial is credited The criminal charges were dismissed November 30 1979 Therefore contrary to Respondents assertions Almaroz had no charges pending against him at the end of the strike Respondent alleges that there were six specific inci dents of misconduct on the part of Almaroz any one of which would warrant denial of reinstatement Each of these alleged incidents has been discussed earlier and except for the rock throwing which Larry Larson testi feed to all the other incidents were not the subjects of criminal charges Because Larson s testimony has been discredited there is no credible evidence of culpability Tom Simovich s testimony regarding another alleged rock throwing incident was similarly discredited The as serted threat of Almaroz to bomb Loren Peaslee s car was also so unlikely to have happened based on the credibility of the witnesses and the fact that Peaslee was shopping with his wife and children That Almaroz was assertedly in the car that Solis allegedly used to drive Corona off the road without corroborating testimony is also not credible There is no evidence to show that Al maroz was an active participant aid or abettor to Solis if he did engage in such conduct NLRB v Fansteel Met allurgical Corp 306 US 240 (1939) See also W J Ruscoe Co v NLRB 406 F 2d 725 (6th Cir 1969) Oneita Knitting Mills v NLRB 375 F 2d 385 (4th Cir 1967) Finally Respondent claims that Almaroz struck the car of Rene Gonzales and then threatened Alfredo Cisneros As discussed supra this allegation was discred ited because of the lack of credibility of both Gonzales and Cisneros Respondent claims it first put Almaroz on suspension because of the pending charges against him when in fact there were none Then Respondent asserts only after in vestigation did it decide to terminate Almaroz However the reasons advanced by the Respondent for denial of re instatement are insufficient When an employer claims that it denied reinstatement to an employee for strike misconduct it must show for an economic strike a good faith belief that the striker was engaged in the conduct for which discharge was jus tified and for an unfair labor practice strike that dis qualification was justified by a preponderance of the evi 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dence Rubin Bros Footwear 99 NLRB 610 (1952) NLRB v Burnup & Sims Inc 379 U S 21 (1964) In the context of this strike where charges and countercharges were exchanged almost daily the Employer must show a valid basis for its actions at the time of the termination Here Almaroz was discharged on October 31 1980 There is no evidence whatsoever in the record which shows what factors Respondent actually used and whose testimony the Company actually relied on in sending the termination notices The assertions by Respondent of Al maroz misconduct do not affirmatively show Respond ent s belief that the misconduct actually happened and that Almaroz was the perpetrator Therefore because the noncharged misconduct was condoned the alleged incidents were not shown to have occurred Respondent has not met its burden of proof and because Respondent engaged in serious misconduct the termination and denial of reinstatement of Carlos Almaroz are violations of Section 8(a)(1) and (3) of the Act 4 Joe Solis Solis was arrested during the strike several times once for threatening to bomb the vehicle of a strike replace ment This charge was dismissed 186 It is noted that sev eral of the allegations made by the Company against Solis are serious and if Respondent demonstrated by the preponderance of the evidence that such conduct was the basis for its actions its failure to reinstate Solis and his subsequent termination would have been warranted Many of the allegations however were unsupported by probative evidence For example the allegation of making racial slurs against Hung Lam and Ly Hen was not supported by testimony by Lam or Hen The assert ed threat against Corona was similarly not supported by Corona s testimony 187 Therefore even if Respondent had not limited itself to strike misconduct resulting in criminal charges it has not shown by the preponderance of the evidence that Solis engaged in such egregious con duct as to require subordination of his Section 7 rights Therefore it is concluded that the failure to reinstate Solis and his subsequent discharge violated Section 8(a)(3) and (1) of the Act as alleged 5 Ramon Rodriguez Similarly to Almaroz there is no evidence in the record that Rodriguez had outstanding charges against 86 Solis also assertedly threatened to kill Tom Simovich if he hired any more replacements This alleged threat was not the subject of a criminal complaint and Solis was not shown to be considered disqualified from further employment by Respondent because it apparently offered Solis reinstatement in its October 30 letter There was no evidence that any striking employees were excluded from the offer Further it is noted that with the threat to bomb a vehicle Respondent alleges Solis fled to Colorado The record shows without controversion that Solis went to Colorado to attend the funeral of his brother then returned to California There was no evidence of flight Further other allegations occurring before October 30 are not considered here not only for the reasons al ready stated but because many of these allegations were unsupported by probative persuasive evidence and Respondent s admitted limiting its considerations to strike misconduct which led to criminal charges 181 As found above Castonguay s allegation that Solis tried to run him off the road was not credited even though corroborated by Smith Solis did make a right turn but there was no showing of malice or misconduct him at the end of the strike He was arrested twice during the strike It is unclear whether he was charged both times once or not at all According to Rodriguez he was arrested for the October 19 fight with Fred Val lejos but he was not charged with any crime The second time he was arrested was because Tom Simovich alleged that Rodriguez had kicked the side of a car Ro driguez testified that not only did he not do it but that he had sneakers on at the time This testimony was cor roborated by Ortiz and Solis There is no evidence that he was charged with any crime in relation to this mci dent Respondent alleges that in addition to the above acts of misconduct Rodriguez engaged in several other acts of misconduct On November 28 1979 he assertedly beat on John Hong s automobile hood and dented it Ro driguez testified that not only did he not purposely beat on the hood but was in fact attempting to get out of the way of the car which had already struck him in the leg The incident was testified to by Ed Simovich whose tes timony has previously been discredited As previously detailed several picketers had been brushed or struck by vehicles moving through the picket line The operators of those vehicles were never cautioned or disciplined Based on the credibility resolutions made before Rodn guez version is credited Similarly Ed Simovich s ac count that Rodriguez pounded on the side of Cafenno Moreno s automobile in December 1979 and on the side of the company trucks throughout the strike is also dis credited As previously discussed Bruce Gary s allega tion that Rodriguez threatened him was also not cred ited Further Respondent has not shown that it knew of this event prior to its decision to not reinstate and to ter minate Rodriguez Assuming arguendo that Rodriguez was guilty of strik ing vehicles with his hands as they passed through the picket line this conduct is not disqualifying As noted in W C McQuaide Inc 220 NLRB 593 593-594 (1975) A striking employee who engages in serious acts of misconduct may lose the protection of the Act and subject himself to discharge But as has long been reocognized by Board and court decisions undue strictures on the exercise of Sections 7 and 13 rights could be imposed if every act of impropriety corn mitted by a striking employee is deemed sufficient to place that employee outside the protection of the Act In a situation such as that the Board has therefore evaluated the character of the improper acts committed by striking employees and has drawn certain distinctions Thus the Board has dif ferentiated between those cases in which employees have arguably exceeded the bounds of lawful con duct during a strike in a moment of animal exuber ance from those cases in which the misconduct is so flagrant or egregious as to require subordination of the employees protected rights in order to vindi cate the broader interests of society as a whole That Respondent obtained a temporary restraining order sometime in late January 1980 to reduce the number of pickets present at the gates does not render CHAMP CORP the misconduct or the obstruction of a thoroughfare so egregious as to warrant subordination of the employees interests as the Board observed in W C McQuaide that striker conduct in contempt of an injunction against un lawful picket line activity does not relate to the issue of whether the conduct was sufficiently egre gious in character to strip an individual of the protection of the Act Id at 594 To like effect is NLRB v Cam bria Clay Products 215 F 2d 48 54 (6th Cir 1954) It is not the fact that there was a violation of the injunction that determines whether they [the strik ers] should or should not be reinstated but the type of conduct they engaged in and the manner and nature and seriousness of their violation of the order Additionally an employers honest but mistaken belief that a striker engaged in flagrant or egregious miscon duct does not legitimatize a discharge prompted by that belief Ohio Power Co 215 NLRB 862 (1974) Cambria Clay Products Co 106 NLRB 267 270-271 (1953) Accord NLRB v Cambria Clay Products 215 F 2d 48 53 Cf Iowa Beef Processors 255 NLRB 1328 (1981) Again Respondent has not shown that it had a good faith belief that Rodriguez actually engaged in the al leged misconduct The temporary restraining order ap parently was issued after Rodriguez was charged Even so the alleged conduct hitting a few cars as they went by in light of Respondents severe unfair labor practices are not so egregious as to make Rodriguez unsuitable for continued employment Golden Day Schools v NLRB 644 F 2d 834 (9th Cir 1981) Therefore the termination and continued denial of reinstatement of Ramon Rodn guez are violations of Section 8(a)(1) and (3) of the Act Ernesto Arroyo Alberto Cortez Cesar Moran Javier Olague Henberto Valenzuela Padilla and M Rodriguez were arrested for blocking a thoroughfare As Respond ent notes in its brief Hoy advised Ed Simovich that blocking of a thoroughfare may not justify denial of rein statement Therefore these individuals were offered rein statement It is noted that no other alleged acts of mis conduct were considered in the Company s decision to reinstate these employees Further buttressing the con clusion that only misconduct which resulted in criminal charges was considered by Respondent in its reinstate ment decisions Also as found before blocking a thor oughfare under the circumstances of this case is not suf ficiently egregious to warrant removal of the protection of the Act for these employees Both Padilla and M Ro dnguez were shown to have been cleared of all charges and the failure to timely reinstate these strikers was vio lative of Section 8(a)(3) and (1) of the Act As noted above the Employers belief that these parties honestly engaged in the crimes as charged was not shown to be honestly held However even assuming such a showing as previously noted discharge or failure to reinstate prompted by such a belief does not legitimatize the Com pany s actions Ohio Power Co supra Cambria Clay Products Co supra The Company must rebut the Gener al Counsels case with evidence that the unlawful con duct did occur Burn up & Sims supra 893 E The Striking Employees Right to Reinstatement Assuming no Condonation Even if it were found that Respondent had not con doned any strike misconduct it would still have to show by a preponderance of the evidence that the strikers misconduct was disqualifying and it has failed to do so Respondent however failed to show that it had a good faith belief that these strikers had engaged in serious mis conduct as to warrant their discharges that the failure to reinstate and/or the discharges were for just cause and not for discriminatory reasons As previously indicated the reasons advanced by Respondent were pretexts Even if such pretexts are not found as the Board stated in Wright Line 251 NLRB 1083 1089 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) The General Counsel must make a prima facie showing sufficient to support the inference that pro tected conduct was a motivating factor in the em ployer s decision Once this is established the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct In NLRB v Fresno Townehouse 647 F 2d 905 (9th Cir 1981) the court noted that Congress intended that em ployers be required to show an employee was discharged for cause as the employer has the best access to proof of motivation Throughout the above recital of facts in this case there are innumerable instances where the Respondent treated nonstriking employees differently than striking employees for engaging in the same or similar acts of misconduct For example Respondent alleges various in cidents that warrant Ramon Rodriguez dismissal Yet the most serious acts of violence that Rodriguez was in volved in was as a victim when he was attacked by Val lejos and bloodied Another example is the treatment ac corded to Vincente Banaga where he was offered rein statement where others who had charges pending and some of these had never even been charged at all were made to suffer a suspension Even more strange is the relatively quick offering of reinstatement to Steven Baugh who was considered by both Tom and Ed Simo vich throughout the strike as particularly violent and of fensive Respondents lack of investigation of other strik ers who may have engaged in serious misconduct its complete disregard of every single act of misconduct by nonstriking employees demonstrates its disparate treat ment of strikers who assertedly engaged in misconduct and more than amply suffices to show a prima facie case of illegal motivation Finally Respondents termination letters fail to explicate the reasons for this action con trary to what the Company claims is established proce dure and is further evidence of a discriminatory motive Respondent has not produced any evidence that it ac tually investigated and reviewed the records of each em ployee nor did it clearly show by what process these de cisions were made Respondents evidence that these em ployees would have been terminated despite their pro tected conduct of engaging in an unfair labor practice 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strike is also negated by Respondents actual practice of condoning nonstnker violence In sum with the excep tion of Guiterrez and Ortiz it is concluded that Re spondent has failed to show by a preponderance of the evidence that Solis Villavicencio Almaroz Cortez Arroyo Moran Olague Padilla R Rodriguez M Ro driguez and H Valenzuela did engage in disqualifying conduct Rutter Rex supra Further even if the strike was found to be an economic strike Respondent has not shown it held a good faith belief that these 11 employees were guilty of the charged misconduct because 3 of these employees already had the charges dismissed when the Company which kept in close contact with the slier iff's office asserted that the charges were the basis for its failure to reinstate and/or discharge employees in this classification The General Counsel has sustained its burden of proving that the Respodnent s actions toward these strikers were discriminatorily motivated Respond ent through its chief operating officer Tom Simovich displayed animus Other indicia of unlawful motive in elude disparate treatment of striking employees reasons found to be mere pretext uncontroverted contradictory reasons much delayed explanations condonation the Company clouded its real intention to reinstatement the strikers with false reasons 188 The Company s willing ness to believe allegations by nonstriking employees without fulling investigating them contrary to its estab lashed practice when nonstriking employees were simi larly accused of wrongdoing'89 warrants the inference that the allegations of wrongdoing were an excuse rather than the reason for the delayed reinstatement and/or dis charge The failure of the Company to explain to any of these employees that alleged misconduct other than that resulting in criminal charges indicates that this was not the real reason for the decision A J Krajewski Mfg Co v NLRB 413 F 2d 673 676 fn 2 (1st Cir 1969) NLRB v Lowell Sun Publishing Co 320 F 2d 835 840 (1st Cir 1963) This conclusion is strengthened by the fact that none of the alleged misdeeds which were not the subject of criminal charges were mentioned in the discharge let ters NLRB v Waco Insulation 567 F 2d 596 601 (4th Cir 1977) 190 188 For example Tom Simovich claimed that one of the reasons Solis was not reinstated was due to the fact that he was a lazy employee who retained his job by lodging frequent charges against the Company with the Federal or State Equal Employment Opportunity Commission This basis for the Company s actions was never presented in any other expla nations for the decision to discharge Solis The advocacy of shifting grounds for an employees discharge is indicative of discriminatory moti vation See NLRB v Schill Steel Products 340 F 2d 568 573 (5th Cir 1965) 189 See Winchester Spinning Corp v NLRB 402 F 2d 299 304 (4th Cir 1968) 190 Even assuming arguendo that there was a proper reasons for the discharge of one or two of the sinkers this is not a defense where as here the discharge was actually made for an improper purpose John Klann Moving & Trucking Co v NLRB 411 F 2d 261 263 (6th Cir 1969) Borek Motor Sales v NLRB 425 F 2d 677 680 (7th Cir 1970) Be larus v NLRB 568 F 2d 545 548 (7th Cir 1978) Therefore Respondent has not shown that it legally terminated these 11 strikers for strike mis conduct and their terminations and denials of reinstatement are violations of Sec 8(a)(3) and (1) of the Act On the foregoing findings of fact and the entire record I make the following CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Unions International Union United Automo bile Aerospace and Agricultural Implement Workers of America-UAW (International Union or Union) and International Union United Automobile Aerospace and Agricultural Implement Workers of Amenca-UAW Local 509 (Local Union) are labor organizations within the meaning of Section 2(5) of the Act 3 The unit as described here is appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 4 At all times since December 14 1978 the Union has been the exclusive collective bargaining representative of the employees in the above described unit within the meaning of Section 9(a) of the Act 5 The work stoppage which began on October 15 was delayed by the Respondents unfair labor practices as of November 5 1980 6 By threatening to have striking employees fired and/or arrested while they were peacefully picketing Respondent interfered with restrained and coerced em ployees in the exercise of their Section 7 rights and en gaged in unfair labor practices in violation of Section 8(a)(1) of the Act 7 By offering on November 2 1979 Manuel Avalos and Ernesto Franco increased benefits if they abandoned the strike and returned to work in order to induce em ployees to withdraw their support for the Union and the strike Respondent has interfered with its employees Section 7 rights and has violated Section 8(a)(1) of the Act and bargained directly with employees in the de scribed unit in violation of Section 8(a)(5) and (1) of the Act 8 By threatening employees on the picket line with vehicular assault Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act 9 By discharging Steven Baugh and Jose Naranjo on October 17 1979 Baugh Joe Solis Eduardo Ortiz and Ruben Gutierrez on October 25 1979 and Francisco Zamora on March 7 1980 because of their membership in or activities on behalf of the Union Respondent vio lated Section 8(a)(3) and (1) of the Act 10 By unilaterally granting to its employees the bene fit of additional paid holidays without notifying or con suiting with the Union in good faith Respondent violat ed Section 8(a)(5) and (1) of the Act 11 By withdrawing recognition from the Union and thereafter failing and refusing to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the aforesaid unit until a decertifica tion petition has been processed Respondent has violated Section 8(a)(5) and (1) of the Act 12 By refusing to bargain collectively with the Union by refusing to furnish or unduly delaying the furnishing of certain information which is relevant to the Union s CHAMP CORP 895 performance of its representation responsibilities on behalf of unit employees Respondent has violated Sec tion 8(a)(5) and (1) of the Act 13 By failing and refusing since April 21 1980 to make timely offers of reinstatement to the following unfair labor practice strikers Steven J Baugh Jose G Naranjo John Gresko Henry Carrillo Filiberto Ruiz Tomas Vargas Jose Naranjo Manuel Cruz Nicholas Dias Ernesto Franco Pedro Pena Salvador Hernandez Erasmo Salazar Rene Gallardo Marvin Cummings Sal vador Garcia Octaviano Arellano Javier Olague Er nesto Cortez Pedro Garcia Jesus Valdez Salvador Eli zarraras Ernesto Lopez Wallace Kerr Alejandro Lopez Jose Pedroza and Raymond Wise Because they engaged in protected concerted activities Respondent violated Section 8(a)(3) and (1) of the Act 14 By failing and refusing since May 9 to make timely offers of reinstatement to Vincente Inez Gonzales Banaga Raul Cortez Oscar Guerrero Calvin Hassler David Hassler Ronald Kerr and Manuel Avalos be cause they engaged in protected concerted activity Re spondent violated Section 8(a)(3) and (1) of the Act 15 By limiting the duration of the reinstatement rights of Andrade Gonzalo Manuel Garay Javier Lopez and Jose Reyes to the length of their tenure with Respondent because they engaged in protected concerted activities Respondent violated Section 8(a)(3) and (1) of the Act 16 By discharging on or about June 10 1980 Antonio Andrade Alejandro Arroyo David Coronado Ricky Craft Enrique Figueroa Lorenzo Franco Mickey Lam bright Jesus Valdez and Frank Zambora and failing and refusing to reinstate these employees because they engaged in protected concerted activities Respondent violated Section 8(a)(3) and (1) of the Act 17 By unlawfully requiring Jesus Valdez on or about August 6 1980 to execute an application and take a physical examination as a new employee as a condition to reinstatement and accept employment as a new em ployee Respondent violated Section 8(a)(3) and (1) of the Act 18 By placing on a list as permanently replaced strik ers terminating and failing to reinstatement Martmiano Rodriguez Francisco Zamora David Coronado Anto nio Andrade Alejandro Arroyo Javier Arroyo Ricky Craft Enrique Figueroa Lorenzo Franco and Mickey Lambright because they engaged in protected concerted activities Respondent violated Section 8(a)(3) and (1) of the Act 19 By failing to give Elpidio Cortez and Armando Es candon a reasonable amount of time to respond to the offer of recall Respondent violated Section 8(a)(3) and (1) of the Act 20 By unlawfully failing and refusing to offer timely reinstatement to Carlos Almaroz Ernesto Arroyo Al berto Cortez Cesar Moran Javier Olague Jose Padilla Ramon Rodriguez Martiniano Rodriguez Joe Solis Heriberto Valenzuela Jose Villavicencio and other strikers named here and by discharging on October 31 1980 Jose Villavicencio Carlos Almaroz and Ramon Rodriguez Respondent has violated Section 8(a)(3) and (1) of the Act 21 By placing impermissible preconditions for rein statement on the striking employees including the accept ance of new employee status Respondent violated Sec tion 8(a)(3) and (1) of the Act 22 By unilaterally changing job classifications and of fording new hires superior employment opportunities without substantial business justification as a means to delay or deny reinstatement Respondent violated Sec tion 8(a)(3) and (1) of the Act 23 By the more rigorous application of disciplinary measures against individuals engaged in protected con certed activity because they engaged in such activity Respondent violated Section 8(a)(3) and (1) of the Act 24 By considering misconduct previously condoned in determining that some striking employees would not be reinstated Respondent violated Section 8(a)(3) and (1) of the Act 25 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act THE REMEDY It having been found that Champ Corporation has vio lated the Act it will be recommended that the Respond ent cease and desist therefrom and take certain affirma tive action designed to effectuate the policies of the Act The appropriate remedy in this proceeding is a broad cease and desist order which is responsibly warranted based on the findings showing Respondents propensity to generally violate the Act 191 Because of the long duration of the strike commenc ing on October 15 1979 and ending April 7 1980 the extremely long period since the end of the strike and the numerous persistent and flagrant unfair labor practices of Champ Corporation which prolonged the strike certain special remedies are necessary to restore insofar as prac ticable the status quo ante In all probability many of the strikers have since taken employment with other em ployers and may of necessity moved to other locations They should be accorded full and equitable opportunity to consider present offers of reinstatement free of any fears of the recurrence of the unfair labor practices against them Respondent therefore shall in addition to the usual postings prepare a Spanish translation of the official English language notice because the record reveals that a substantial number of Respodnent s employees speak Spanish English and Spanish versions shall be simulta neously posted on all plant bulletin boards192 and copies of both versions mailed to each employee currently em ployed and to each employee named in schedules I through V (omitted from publication) All diligent efforts shall be employed by the Respondent to assure that such communication reaches the addresses including the ac ceptance of assistance by the Union if offered Respond ent shall provide the Regional Director for Region 21 with proof of such mailing 191 Hickmott Foods 242 NLRB 1357 (1979) NLRB v Express Publish ing Co 312 U S 426 (1941) NLRB v Entwistle Mfg Co 120 F 2d 532 (4th Cir 1941) 191 Hasa Chemical 235 NLRB 903 (1978) 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act it is recommended that Respondent be re quired to provide the International Union in writing with (1) A description of the job duties performed by all unit employees for the preceding 12 months and (2) the dates of layoff of all unit employees who had been laid off during the preceding 12 months In addition Re spondent shall meet and participate in negotiation ses sions and cease refusing to do so based on the decertifi cation petition found here not to raise a valid question of the representative status of the International Union It is also recommended that Respondent be ordered to cease unilaterally changing the existing terms and conditions of employment by paying nonstriking employees for days its facilities are shut down without prior notification and bargaining with the International Union Finally it is recommended that the Union cease and desist from uni laterally bargaining with its employees I shall also recommend reinstatement of the unfair labor practice strikers with the exceptions noted above and in the order and appended schedules on their un conditional offer to return to work and the dismissal of persons hired on or after November 5 1979 if that be comes necessary NLRB v W C McQuaide Co 552 F 2d 519 520-529 (3d Cir 1977) Newport News Ship 602 F 2d 73 (4th Cir 1979) Reinstatement shall mean re instatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to seniority and other rights and privileges Be cause no striking employees were offered reinstatement within 5 days after the date each unconditionally offered to return to work the dates backpay commences are the dates of the unconditional offer to return to work Hudson Chemical Co 258 NLRB 152 (1981) Backpay shall therefore be computed for those employees found eligible for reinstatement by calculating for each of them a sum equal to their individual wages as of the date of their unconditioinal offer to return to work up to the date of Respondents offer of reinstatement less any net earnings during such period with interest to be comput ed in the manner prescribed in Florida Steel Corp 231 NLRB 651 (1977) 193 It is also recommended that those employees found to have been discriminatonly discharged while engaged in a lawful strike will be entitled to backpay from the date of discharge until the date he or she is offered reinstate ment Abilities & Goodwill 241 NLRB 27 (1979) Respondent will also be required to comply with the Order and to post appropriate notices [Recommended Order omitted from publication ] building & Dry Dock Co 236 NLRB 1637 (1978) enfd 193 See generally Isis Plumbing Co 138 NLRB 716 (1962)