Clougherty Packing Co.

CLOUGHERTY PACKING CO 1139 Clougherty Packing Company and Estanislao Perez and Pedro Estopinian and United Food and Commercial Workers International Union, Local 770, AFL-CIO, CLC Cases 21-CA- 24464, 21-CA-24591, and 21-CA-24650-2 February 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On July 20, 1988, Administrative Law Judge Mi chael D Stevenson issued the attached decision The Respondent and the General Counsel filed ex ceptions and supporting briefs, and the Respondent filed an answering brief to the General Counsel'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 decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order 2 The Respondent is alleged to have unlawfully discharged certain striking employees With respect to employees Gama and Velasquez, the Respond- ent claims that it had established its honest belief that these employees had engaged in misconduct sufficient to justify their dismissal Even if we assume, however, that the Respondent did establish its honest belief with respect to these employees, we agree with the judge that the General Counsel carried her burden and established that neither Gama nor Velasquez had engaged in the alleged misconduct In this regard, the judge credited both Gama's and Velasquez' denial of involvement in the alleged misconduct and, contrary to the Re- spondent s assertion, these credibility resolutions, as was the case with all the judge's credibility resolu- tions, were based, at least in part, on the judge's observation of the witnesses' demeanor 3 i The Respondent and the General Counsel have excepted to some of the judge s credibility findings 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 2 We have attached a new notice to employees to more fully conform to the judge s recommended Order 3 The Respondent also contends that the wage s crediting of Gama s and Velasquez denial of involvement in the alleged misconduct is msuffi cient to carry the General Counsels burden of showing that these em ployees had not engaged in the alleged misconduct citing Certainteed Corp 282 NLRB 1101 (1987) and US Gypsum 284 NLRB 4 (1987) for this proposition In both those cases however the judges discredited the employees denials of involvement in the alleged misconduct Conse quently we do not find either of those cases controlling The judge ac The Respondent justified its dismissal of another striker, Estopinian, as based on its honest belief that Estopinian had thrown rocks at both Construction Foreman John Clougherty's car and at an unidenti fled car The judge relied solely on the misconduct against Clougherty in concluding that Estopinian s dismissal did not violate the Act 4 He found it un- necessary to decide whether Estopinian's discharge could have been based on the Respondent's honest belief that he had thrown rocks at the unidentified car The record shows that Estopinian threw the rock at the unidentified car while in the presence of other picketers We find that the Respondent's honest belief that Estopinian threw a rock at the unidentified car in the presence of other (albeit striking) employees also justifies Estopinian's dis missal This is so because, inter alia, Estopinian's action reasonably tended to coerce those striking employees, in whose presence he threw the rock, from returning to work before the end of the strike See Clear Pine Mouldings, 268 NLRB 1044, 1048 (1984), enfd mem 765 F 2d 148 (9th Cir 1985), cert denied 474 U S 1105 (1986) In concluding that the Respondent had estab lished an honest belief that employee Estopinian had engaged in misconduct, the judge found that both Clougherty and Gary Ainsworth, a hog buyer and accountant who also witnessed the second Inci dent, had identified Estopinian by looking at em- ployee identification badges In this regard, Clougherty testified that both he and Ainsworth identified Estopinian by looking at the identifica tion badges, but Ainsworth did not mention identi- fying Estopinian in this manner The record shows, however, that Ainsworth recognized Estopinian as "Pedro" (Estopinian's first name) from offal" (the department where Estopinian worked) and that he identified him as the employee who threw the rock at the unidentified car Thus, notwithstanding the lack of clarity in the record as to whether Ains worth identified Estopinian by looking at the iden tification badges, Ainsworth's testimony corrobo- rates Clougherty's identification of Estopinian as the rock thrower As the judge found and we agree that the Respondent's actions were based on its good-faith belief that Estopinian had engaged in misconduct and as the General Counsel failed to establish that he did not, we shall adopt the judge's recommendation to dismiss the complaint as to Es- corded no weight at all to the contention that Gama was involved in making a bomb No exceptions were taken to this aspect of the judge s decision 4 We interpret the judge s conclusion that the Respondent had an honest belief that Estopinian had engaged in the alleged misconduct as an implicit crediting of Director of Industrial Relations William Regan s tes timony that in discharging Estopinian he relied on eyewitness reports he had received through the security force 292 NLRB No 122 1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD topinian See Rubin Bros Footwear, 99 NLRB 610 (1952), enf denied 203 F 2d 486 (5th Cir 1953), Furr's Cafeterias, 251 NLRB 879 (1980), enfd mem 656 F 2d 698 (5th Cir 1981) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Clougherty Packing Company, Vernon, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except the attached notice is substituted for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 tines 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 WE WILL NOT discharge, refuse to reinstate, or otherwise discriminate against any of you for en gaging in a strike or other concerted activity pro- tected by Section 7 of the Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Pedro Gama and Luis Navarro Velasquez immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub stantially equivalent positions, without prejudice to their seniority or any other rights or privileges dis charging if necessary any replacements for these employees and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings, plus interest WE WILL remove from our 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 CLOUGHERTY PACKING COMPANY Peter Tovar and Samuel D Reyes Esqs for the General Counsel Thomas P Burke and Christopher A Burrows Esqs (Pettit & Martin), of Los Angeles, California, for the Re spondent Michael Four Esq (Schwartz Steinsapir Dohrmann & Sommers) and Andrea Zinder of Los Angeles, Califor nia for the Charging Party DECISION STATEMENT OF THE CASE MICHAEL D STEVENSON , Administrative Law Judge This case was tried before me at Los Angeles California, on February 23 24 and 25, 1988 1 pursuant to a fourth amended consolidated complaint issued by the Regional Director for Region 21 of the National Labor Relations Board on December 4, 1987, and which is based on charges filed by Estanislao Perez (Case 21-CA-24464), Pedro Estopinian (Case 21-CA-24591), United Food and Commercial Workers International Union , Local 274, AFL-CIO, CLC (Case 21-CA-24650- 2 original and first amended) and United Food and Commercial Workers International Union, Local 770, AFL-CIO CLC (Case 21-CA-24650-2 second amended) (Charging Parties Local 274 or 770 or the Union) on February 5 1986 (Case 21 -CA-24464) April 4 1986 (Case 21 -CA-24591) April 25 May 14 and November 21 1986 (Case 21-CA- 24650-2) The complaint alleges that Clougherty Packing Company (Respondent) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Rela tions Act (the Act) Issue 2 Whether Respondent discharged certain employees who had participated in a strike and engaged in union or other protected concerted activities for the purposes of collective bargaining or for other mutual aid or protec tion 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 have been carefully considered were filed on behalf of the General Counsel and Respondent On the entire record of the case, and from my obser vation of the witnesses and their demeanor I make the following All dates refer to 1985 unless otherwise indicated s Prior to hearing the parties reached agreement with respect to sever al issues Accordingly after the Regional Director approved a request to withdraw the related charges the parties entered into an informal non Board settlement The remaining issues were litigated and will be decided here CLOUGHERTY PACKING CO 1141 FINDINGS OF FACT I RESPONDENT S BUSINESS Respondent admits that it is a California corporation engaged in the business of processing meat products and having a facility located in Vernon, California It further admits that during the past year in the course and con duct of its business it has sold and shipped goods and products valued in excess of $50 000 directly to custom ers located outside the State of California Accordingly it admits and I find that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Respondent admits and I find that United Food and Commercial Workers International Union Local 274 AFL-CIO CLC and United Food and Commercial Workers International Union, Local 770, AFL-CIO, CLC are labor organizations within the meaning of Sec tion 2(5) of the Act and as of July 1, 1986 Local 274 merged with Local 770 III THE ALLEGED UNFAIR LABOR PRACTICE A The Facts Respondents business occupies most of one square block A plot of this area is reproduced in Appendix 1 to this decision [omitted from publication] (R Exh 4) For now, it suffices to say that the business is bordered on the west by Soto Street on the north by Bandini Street, and on the south by Vernon Street A main gate is locat ed off Soto Street roughly midway between Bandini and Vernon A second gate is located off Vernon about a block east of Soto On or about October 1 approximately 1000 produc tion employees went on strike Prior to the strike one or more union meetings were held and most of the strikers attended Union officials advised them on various sub sects of interest including comfortable dress and proper behavior while on picket duty Written instructions in English and in Spanish were also distributed (G C Exh 13) Notwithstanding these efforts, some violent behavior did occur As a result the Company was required to board up windows of offices fronting on Soto Street In addition, on October 4 Respondent filed in state court a petition for temporary restraining order (which was granted by the state judge on the same day) and for a preliminary injunction On October 31 after reviewing the numerous affidavits submitted with Respondents pe tition the state judge granted Respondents request for a preliminary injunction, without opposition by the Union The court ordered that pickets be limited to a maximum of five persons per gate and that strikers refrain from en gaging in or threatening physical violence to any non striker their families, or to any other person seeking in gress or egress to Respondents facilities (R Exh 5 ) There is no evidence that Respondent complained to the court that any person including the five alleged discri minatees in this case, violated the court s order On the contrary, the evidence shows that for the most part pick ets obeyed the court order during the 10 weeks the strike lasted Compliance was especially pronounced in limiting the number of pickets to that provided by the court order As a deterrent to violent behavior by pickets during the strike, Respondent instituted certain security meas ures in and around the premises First Respondents se curity guards, dressed in blue uniforms were placed on extended shifts Albert Bragg, chief of Respondents se curity force for 21 years, worked from 5 a in to 5 p in As a witness for Respondent, Bragg described his staff ing arrangement To his normal force of 10 guards, Bragg added several additional temporary guards from a private security company Both gates were manned by at least one security guard 24 hours per day In addition some guards were assigned to roving patrol of the com pany perimeter Special attention was directed to parking lots near Soto and Vernon Streets where pickets general ly parked their cars and frequently congregated These lots were adjacent to a restaurant and liquor store The security guards were connected to each other and to Bragg by portable radio carried by each guard When incidents occurred, they usually happened when work shifts began and ended The morning shifts began between 6 and 7 a in and ended between 2 30 and 3 15 p in when afternoon shift employees reported for work During the strike, the Company maintained about 50 per cent of normal production by using nonstriking employ ees returning strikers, and replacement employees To reduce congestion and confusion during shift changes Bragg directed that employees reporting for work use the Vernon Street gate and those leaving work use the Soto Street gate Bragg and his subordinates attempted to direct traffic for the entering and exiting employees as well as to maintain order on the picket lines In addition, frequently there were groups of strikers on either sides of the gates who would contribute verbally to the daily tumult at shift change Besides the security guards, Respondent installed video cameras focused on the two gates described above These cameras recorded daily on video tape relevant events One or more Respondent employees monitored strike activities on small television screens set up in a converted office There is no evidence that these tapes played any significant role in the instant case One of Respondents employees who monitored the television screens and generally acted as a clearinghouse for strike incident reports was Christy Glennon a wit ness for Respondent An erstwhile engineer in Respond ent s employ for 2 1/2 years Glennon was given his new assignment for the duration of the strike Specifically he was directed to receive oral and written reports from employees, security guards, or others with respect to strike incidents When he received oral reports of injury or property damage he was instructed to obtain as much information as possible with respect to all details He was also directed to expend his best efforts to identify the malefactor To assist in performing his duties Glennon kept a logbook containing strike incident reports (R Exh 7) On cross examination, it was noted that Glen non s logbook contained numerous notations legends, 1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD signs marks or other material placed there by unknown persons For this reason, and because Glennon could not recall much that was important, the overall value of the logbook and of Glennon s testimony was not great The reports and logbook compiled by Glennon were reviewed on an ongoing basis by William Regan Re spondent s director of industrial relations and a 15 year employee 3 When the strike was over Regan reviewed all the evidence with respect to various strikers and de cided the charges against 12 employees were serious enough and that the evidence was sufficient to warrant discharge Notices were sent to the affected employees reflecting this decision and will be noted below in the discussion of the specific alleged discriminatees At hearing the alleged discriminatees and in some cases their accusers required the assistance of a person interpreting English to Spanish and vice versa to present their testimony I note that on January 26, 1987 (Tr 244), the Union and Respondent reached a new agreement B Analysis and Conclusions 1 The applicable legal standards a The severity of the alleged conduct In Clear Pine Mouldings 268 NLRB 1044 1046 (1984) enfd 765 F 2d 148 (9th Cir 1985), the Board plurality and concurring opinions adopted as the general standard for striker misconduct serious enough to permit the em ployer to refuse reinstatement or to terminate4 that em ployee for conduct that under the circumstances exist ing may reasonably tend to coerce or intimidate em ployees in the exercise of rights protected under the Act, quoting NLRB v W C McQuaide Inc, 552 F 2d 519 527 (3d Cir 1977) There can be little question that throwing rocks or other projectiles at moving vehicles as is alleged against four of the discriminatees or visiting a nonstrikers home late at night under circumstances reasonably tending to show an intent to damage his property and/or commit physical injury as is alleged against one of the discriminatees are acts on which an employer may rely to terminate 5 I find therefore that the primary issue in this case concerns the sufficiency of the proof against the alleged discriminatees consistent with the Board s legal standards recited below b Burden of proof and other legal standards in strike misconduct cases "Section 7 of the Act gives employees the right to peacefully strike, picket , and engage in other concerted acavities for the purpose of collective bargaining or a On January 18 1986 Regan suffered a serious injury while riding a three wheel motorcycle The injury rendered him a quadriplegic During his lengthy testimony which he gave while seated in a wheelchair Regan did not appear to have impaired memory attributable to the acct dent Therefore I evaluated his testimony like that of every other wit ness 4In evaluating alleged picket line misconduct the Board applies the same standards for both an alleged discriminatory discharge and a refus al to reinstate case Tube Craft 287 NLRB 491 (1987) 6 See GSM Inc 284 NLRB 174 (1987) GEM Urethane Corp 284 NLRB 1349 (1987) Western Pacific Construction 272 NLRB 1393 (1984) other mutual aid or protection Clear Pine Mouldings supra, 268 NLRB at 1045 However striking employees may disqualify themselves from reinstatement by engag mg in serious misconduct Matlock Truck Body Corp, 248 NLRB 461, 472 (1980) As in all cases involving either the discharge of or the refusal to reinstate strikers for having engaged in such alleged acts of misconduct while picketing, the burden of proving discrimination is that of the General Counsel Rubin Bros Footwear 99 NLRB 610, 611 (1952) Once the General Counsel has established that strikers were terminated or denied rein statement for conduct related to the strike the burden of going forward shifts to the Respondent to demonstrate an honest belief that the strikers had engaged in strike misconduct Rubin Bros supra, 99 NLRB at 611 If the Respondent meets its honest belief responsibility the burden of going forward shifts back to the General Counsel to prove that the strikers did not in fact engage in the alleged misconduct Axelson Inc, 285 NLRB 862 (1987) Respondents honest belief burden does not extend to proving that a striker did in fact engage in the miscon duct To the extent that there is a lack of evidence after an honest belief has been established the decision should be for the employer, because the General Counsel has the burden of proof to show the strikers innocence Ax elson Inc supra An honest belief requires some speci ficity in the record linking particular employees to par ticular allegations of misconduct General Telephone Co, 251 NLRB 737 739 (1980) As to the sources of information on which an employ er may base its honest belief, the Board has permitted the use of reports by security guards and other written re ports Newport News Shipbuilding & Dry Dock 265 NLRB 716 718 (1982) General Telephone Co supra, 251 NLRB at 739, Giddings & Lewis Inc 240 NLRB 441 447-48 (1979) Furthermore hearsay reports by supervi sors or coemployees have also been permitted 2 The five alleged discriminatees a Pedro Gama Gama was employed by Respondent since 1978 in the smoked meats department and he joined the strike from the beginning On January 20, 1986 a notice was sent to him charging him with picket line misconduct, as of October 22 (G C Exh 3) Gama did not recall if he was at the picket line on that date Union sign in sheets for pickets were not available for Gama nor for the other al leged discriminatees Respondent's evidence to support its honest belief in the October 22 charge of picketline misconduct was sum marized by Regan Q Let me direct your attention to employee Pedro Gama On what basis and what documents did you rely on to make the decision to terminate him? A On a document provided by the Glendale City Police Q And what document was that? CLOUGHERTY PACKING CO A That was a deposition of-or I m not sure that it was a deposition but an employee named Larry Smith was arrested for making a bomb in relation ship to threatening the plant Q And it was a written report that you relied on from the Glendale City Police? A Along with talking to one of the detectives as signed to the case yes Q Do you know the name of that detective? A I can t remember it offhand Q Was he a detective of the Glendale City Police? A I believe he was, yes Q Did you rely on anything else in deciding to terminate Pedro Gama9 A Well, yes, there was-there was verification throughout the strike that one of the vans used in some of the strike violence, the van belonged to Pedro Gama Q Yes, sir I in asking you what verification you relied on, what was it that you relied on? A The primary document I relied on was the one by the Glendale Police Department Q Did you rely on any of the logs kept by Christy Glennon in determining to terminate Mr Gama9 A Yes I did Q Other than the police report from the Glen dale City Police Department the conversation you had with the Glendale city detective and Christy Glennon s log was there anything else that you relied on in determining to terminate Pedro Gama? A No [Tr 228-229 ] In addition to the above a night foreman named James Udell was called as a Respondent witness Udell who worked during the strike described an incident that oc curred on October 11, late at night at his home While unloading groceries from his vehicle he observed a van drive slowly past his home and stop one or two houses down the street While the driver remained in the vehi cle two men dressed in dark clothing emerged The two men appeared to be carrying rocks or some kind of shiney objects as they approached Udell s home in a fur tive manner Udell retreated to obtain a stick from his car but when his car light went on the two men ob served Udell and the larger Hispanic man allegedly said in English There he is Lets get out of here They then returned quickly to the van and sped away For a short distance, Udell followed them in his vehicle and allegedly observed the van s license number On return to his home he called the Downey California police to report the incident and the license number He also re ported the matter to Respondents night security supervi sor, Joe Galluzzo a witness at the hearing The follow ing day Udell also reported the incident to Christy Glen non At hearing Udell no longer had the paper on which he had recorded the license number and could not recall it He described both men as Hispanic one as big and stockey, and the other as medium size Udell also de scribed the van as orangish rustish color with a little 1143 porthole on the side, and two little windows on the side panel in the rear At the conclusion of Udell s direct examination the following colloquy occurred JUDGE STEVENSON Well maybe its late in the day for me too, but is this going to be tied up? MR BURKE Yes JUDGE STEVENSON I mean it isn t tied up as of this moment MR BURKE This Witness does not remember off the top of his head the license number JUDGE STEVENSON Okay I know there was tes timony about somebody s van, so I have that but as we leave it here is [sic] we need someone else to MR BURKE There s another witness to follow up JUDGE STEVENSON All right MR BURKE Its not that late in the day [Tr 4621 On cross examination, Udell first reported that he had learned from Glennon after Udell reported to him on the incident that a California Department of Motor Vehicle (DMV) report traced the van to Gama (Tr 479) Later in response to my question about a DMV report Udell said that Glennon had never given him any information relative to the license number Rather Udell just heard like rumors go or whatever and somehow I heard that it was Pedro-it belonged to Pedro Gama (Tr 483) (On the basis, of this clarification I struck from the record Udell s earlier testimony at 479 ) In his testimony Galluzzo gave no testimony regard ing Gama However, Glennon did He testified with re spect to the license number given to him by Udell JUDGE STEVENSON When you described the in formation from Mr Udell and a certain license number I don t believe that you testified unless I didn t hear it about checking the owner of the li cense plate Did you go to the DMV of the State of California THE WITNESS No I did not no JUDGE STEVENSON Did somebody do that for the Company9 THE WITNESS Yes, I believe so JUDGE STEVENSON Who was that? THE WITNESS I do not recall [Tr 564 ] In his logbook (R Exh 7 p 1) there is recorded the no tation 73 Chevy Pedro Gama 6515 Templeton Hunt Park ' and in the left hand margin, 2B5P 894 But none of this was in Glennon s writing and Glennon was unable to identify it There is also recorded a narrative in Glennon s writing (R Exh 7, 1) 10/17/85 5 50 a in James Udell #770 At 12 30 pm, 10/17/85 2 tall well built Mexicans (and possibly a 3rd-driver) parked 3 doors away from victim s house and stealthily proceeded into driveway The vandals were wearing white gloves 1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and carrying something like a tire iron His wife was in the shower at the time James heard the car door closing and went outside A car chase ensued with the vandals driving a rusty/orange color Chevy van *(Lic No 2G86561)* The victim sus pects that one of the guys was Claude Gonzalez (#662 Hog Pusher) 73 Chevy Pedro Gama 6515 Templeton Hunt Park There is a line running from the license number 2686561 to Gama s name The entire report is dated October 17 1985 which is the date that Glennon says he took the original report, and 5 days after the date that Udell says he gave his report to Glennon The date of the incident is also wrong I note that in his testimony Gama admitted ownership of a van with license No 2G86561 He also denied being at Udell s home at the time in question He also testified that he did not let anyone else drive his van He further testified that he never was questioned nor arrested by police In rebuttal Gama added that Respondent had a record of his license plate number since he purchased the vehicle in 1983, so he would be able to obtain a parking permit to park on Respondents property I begin my analysis with a second colloquy be tween myself and Respondents attorney following up my remarks of the prior day quoted above JUDGE STEVENSON Before the witness is ex cused, Mr Burrows you were present when I in quired of Mr Burke after Mr Udell s testimony-I think I prefaced it by saying Maybe it s late in the afternoon but - MR BURROWS I remember that yes JUDGE STEVENSON I said, Where is the connec tion of the evidence? and he said that would be forthcoming MR BURROWS We believe we ve established that connection JUDGE STEVENSON Well would you-I don t want you to give any closing argument at this point but I further asked Mr Glennon if I had missed something in his testimony when it was my turn to ask questions, and I said something to the effect did he call the DMV to establish the owner ship of that license plate and he said he didn t and- MR BURROWS That s correct Your Honor JUDGE STEVENSON Now just point me in a di rection Where have you connected up Mr Udell to Mr Gama or to anyone else in this case? MR BURROWS Your Honor, in all frankness I think I in in kind of a compromising position be cause part of the connection has to do with testimo ny that came from Mr Gama yesterday and I be lieve if I-we d like to reserve the right to point that out in detail in our brief I don t want to be coy with Your Honor but- JUDGE STEVENSON No, I think you have that right Will you at least concede that as of right now there is no evidence at least that I am aware of to tie up a certain license plate which Mr Udell said he obtained after stopping and starting three differ ent times, to this individuals Is that right, or is that even compromising your position further9 MR BURROWS It does, and I suppose I can go so far as to say that the manner in which testimony about the license plate was elicited from all wit nesses both today and yesterday is the way in which the connection is It s a subtle point but it s a very important one for us JUDGE STEVENSON All right I don t think I have any right to press you at this time I basically want to know if I in missing some direct evidence, and I think I in not Really what I have to do is wait and see your circumstantial evidence and how you present it and how it relates to your theory so I'll wait for the proper time [Tr 587-589 ] Having been admonished by Respondent to wait for its brief, I now turn to pages 15-17 of the brief for Re spondent s theory as to Gama The brief refers first to Regan s testimony that Gama was involved with a fellow employee named Smith in making a bomb This evi dence is so deficient I accord it no weight at all Nei ther the alleged report nor the alleged author was pro duced at hearing I find no specificity in the record to link this matter to Gama As to the Udell incident I find similar deficiencies Assuming without finding that Udell provided the li cense number in the logbook to Glennon there is no showing how Respondent traced the license number to Gama to establish its honest belief that Gama was at Udell s home on the night in question At hearing Gama matched the license plate of his van to that contained in Glennon s journal But this comes too late to establish Respondents honest belief as of the date of termination Cf Western Pacific Construction 272 NLRB supra at 1393 Moreover there is no credible information at any time that Gama was at Udell s home only that Gama s van may have been Respondent also notes that at hearing Udell identified Gama as being one of the two men who came to his home on the night in question In a very questionable trial tactic this identification was elicited by the General Counsel on cross examination of Udell (Tr 464) Never theless I find the identification is of little or no value There is no evidence that Udell told either Galluzzo or Glennon that he could identify either or both of the men in question As will be noted below in a discussion of Es topinian Respondent had photographs available broken down by departments which could have been shown to Udell at the time Indeed the only name in Glennon s report in Glennon s handwriting and apparently fur niched by Udell was someone named Claude Gonzales whoever that is All of this is not to ignore the fact that there is no showing how Udell could have seen either or both of the men given the dark area near his house I further note that because no party moved to sequester witnesses it would have been a simple matter for Udell CLOUGHERTY PACKING CO to know Gama not from his house but from an earlier part of the hearing In sum I find Respondent lacked an honest belief as to Gama because there is no specificity in the record link mg Gama to particular allegations of misconduct In the alternative I find that if Respondent had an honest belief, then General Counsel has met her burden to prove that Gama did not in fact engage in the alleged misconduct In this respect, I find Gama s testimony that he was not at Udell s home on the night in question credible, when weighed against the opposing evidence I note the plausible explanation for Gama s license number to be in Glennon s report-Respondent already had it in its files I note the failure of Galluzzo to corroborate Udell s testimony with respect to allegedly having made a prompt report to him dust after the incident occurred Finally, I note the many discrepancies in the evidence (1) as between the time and place alleged in the termina tion letter and the evidence adduced at hearing (2) as between the date of Glennon s report and Udell s testi mony that he reported the incident on October 12 and (3) the failure to explain the name of Claude Gonzales or to account for the unidentified writing in Glennon s log For the above stated reasons, I find that Respondent violated Section 8(a)(1) and (3) of the Act in terminating Gama b Luis Navarro Velasquez Navarro was an employee of Respondent since August 1978 A participant in the strike, Navarro, was denied re instatement in early December On January 20 1986 Na varro was sent a termination notice for Picket Line Misconduct alleged to have occurred on November 12 (G C Exh 8) Regan testified that his decision to terms nate Navarro was based on reports of security guards and eye witness reports from employees that the vio lence occurred against (Tr 233-234) Turning to Glen non s log I note the following entry (R Exh 7 p 7) 11/12/85 5 50 p in Felix Antonio X 8 Reyes (New Applicant) 255-6747 201 N 50 Ave, LA CA 90048 He had dropped off Juan Escobar (Night Clean up) and exiting Soto gate N/O when a rock was thrown by Luis Navarro (# 1614 Sausages) at passenger s window Veh white Datsun B210 (BOU NYJ) Culprit was arrested-later released 85 11520 I note a later entry on the same page apparently refer ring to a different matter is dated November 8, 1985 Glennon could not explain the discrepancy of the later date coming first All agree that on November 12 Navarro along with several others was present at and near the picket line on Soto Street An unidentified person driving a white Toyota with an unidentified passenger inside had dust 1145 dropped off a third man, also unidentified li As the driver exited the Soto gate to the right i e going north, a person in a group of five men walking south on Soto toward Galluzzo threw a rock and broke the passenger window of the car The group of men were standing on the sidewalk several feet down from the gate Galluzzo could not identify the perpetrator However, the driver stopped his car, got out, pointed at someone, and said, That guy just broke my window The driver did not say a name, but Galluzzo knew who the guy was just the way he identified him I don t remem ber if he said a hat or the clothes he was wearing (Tr 570) The driver got back into his car and pulled back into Respondents yard and Galluzzo called the police The police arrived in a few minutes but Galluzzo is not sure if the driver talked to him Through all of this the pas senger said nothing In his testimony, Navarro admitted that he had been the one accused of throwing the rock by the driver However he denied then as he did at hearing that he had been the culprit All agree that the police arrested Navarro a few minutes later near the restaurant at the corner of Soto and Vernon The next day, Galluzzo prepared a written report which he left on Glennon s desk when the latter was not present This report cannot now be located In arguing that it had an honest belief that Navarro had thrown the rock Respondent appears to base its case in large measure on the fact of Navarro s arrest (Br 20 ) In light of the presumption of innocence I find no infer ence from the arrest that can be drawn to support Re spondent s case Respondent also appears to rely on a criminal penalty assessed and paid because of this misconduct (Br 20) Navarro entered a plea of nolo contendere on charges arising out of the incident This plea cannot be used as an admission elsewhere See Tseung Chu v Car nell 247 F 2d 929, 938 (9th Cir 1957) cert denied 355 U S 892 (1957) If the document proving the plea is not admissible then any testimony whether or not stricken from the record is also lacking in probative value I find that Respondent did not have an honest belief because there is no specificity in the record linking Na varro to particular allegations of misconduct In the alternative I find that if Respondent had an honest belief the General Counsel has met her burden to prove that Navarro did not in fact engage in the alleged misconduct Because neither the driver the passenger nor the arresting officer testified, and because Galluzzo was not able to provide probative evidence I credit Na varro s testimony that he did not throw a rock and break the window at the time and place in question For the above stated reason, I find Respondent violat ed Section 8(a)(1) and (3) of the Act in terminating Na varro 6 There is no explanation in the record for Glennon s purported identi fication of the driver and passenger Galluzzo could not recall their names and there is no showing he ever knew them (Ti 575) Therefore so far as I am concerned they remain unidentified 1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD c Jose Melgoza Melgoza began working for Respondent on February 7, 1970 On the day the strike started, Melgoza went on disability The disability supposedly ended on or about the day the strike ended During the strike Melgoza was receiving disability payments from the State of Califor nia For unexplained reasons Melgoza was later required to repay the State for his disability payments and is now in the course of doing so The doctor who treated him is now in prison, although it is not clear whether he is serving time for matters relating to Melgoza s disability In any event during the strike Melgoza went to the Company once or twice a week to participate in the picketing In early December Melgoza went to the Company in order to see the nurse about his disability The nurse referred him to Regan who told him he was fired for breaking the window of a nonstrikers car When Melgoza asked to be confronted by his accuser, Regan said that was not necessary Later, on January 20, 1986, Melgoza was sent a termination letter for Picket Line Misconduct occurring on November 4 (G C Exh 2) The evidence against Melgoza consisted of an eyewitness report a security guard report and Regan s own observations This incident happened between 3 and 3 30 p in at a time when traffic was congested due to changing work shifts Groups of strikers stood down the street on either side of the Soto gate and across Soto Street from the gate Although Regan did not see Melgoza engage in any misconduct (Tr 232), he did see him picketing short ly before the incident and after the incident when the nonstriking employee drove his car back to the Compa ny, Melgoza was no longer there In addition Regan re called the driver of the car telling him just after the inci dent that Jose Melgoza had broken his window The driver of the damaged car was Juan Chang a 20 year employee of Respondent Chang had gone on strike with the others and remained out for 2 weeks He then returned to his work as a machine operator Chang testi feed that as he left work on the day in question he saw Melgoza standing with two black men on Soto Street about 50 yards from the gate As he drove about 25-30 miles per hour north on Soto Street Chang saw Melgoza throw a rock and break the passenger side window of his car At this time, Chang backed up his car into the yard and reported his experience to Al Bragg chief of securi ty After the incident Melgoza walked rapidly toward Bandini, while the two black men remained in place Chang testified that he knew Melgoza from work for several years Melgoza admitted knowing Chang for 8- 10 years because they used to eat lunch together Mel goza knew that Chang worked in the department where they cut bacon while Melgoza worked where they cook the bacon Also, their work lockers were in the same room In all material respects Chang was corroborated by Al Bragg, who also testified for Respondent He observed Melgoza throw the rock that broke the window Bragg was even able to supply the names of the two black men with whom Melgoza was standing, Larry Davis and a man named Maurice The former still works for the Company in the offal department The latter used to work for the Company in the same department but now works for the post office Neither was called as a wit ness Bragg was a very large mature person who testified that of the 1000 strikers he knew about 500 by name For about 7-8 years before the incident, Bragg had been friends with Melgoza, even to the extent of telling him in a friendly way shortly into the strike not to cause trouble I found Bragg as a witness and this aspect of his testimony very credible Bragg was present when Chang made a verbal report to Glennon who incorporated the report into his log book (R Exh 7 p 4) 11/4/85 16 12 14 30 Juan Chang (smoked slab bacon #1666) NOV 4 3 00 P M Jose Melgoza broke right 6 X passenger window on Juan Chang car (sliced Bacon #1824) Logs Soto-near main gate Vehicle light blue 73 Amer Motors Gremlen Lic No 844HEA Claims $11000 Once again on cross examination Glennon was unable to identify much of the writing and many of the marks re lating to Melgoza (Tr 543-548) I again assign little weight to Glennon and his logbook In evaluating the evidence, I assume without finding that Melgoza participated in a protected concerted work stoppage It is unnecessary to reconcile his apparent dis ability status with his presence on the picket line to de termine whether he was participating in protected activi ty or whether he was a mere volunteer (Cf Freeman Decorating Co 288 NLRB 1235 fn 2 (1988)) The Com pany s termination of Melgoza for picket line misconduct is not necessarily determinative of this issue The evidence against Melgoza provided by Chang and Bragg is compelling However the evidence to show that Respondent relied on Chang and Bragg in order to terminate Melgoza is considerably less persuasive Chang could not recall if he reported the incident to Glennon (Tr 281-282) However, he did recall attempting to report the matter the following day to Company Official Anthony Clougherty Although Chang did give him the details Clougherty did not make a written report be cause he said he already had the written report (Tr 282) In addition, I credit Regan s testimony that Chang told him his car window was broken by Jose Melgoza (Tr 351) Although Bragg knew that Chang talked to Regan he could not confirm the content of the conver 7 In rebuttal Melgoza testified that he always picketed with the same men approximately 20 and there were no blacks in his team Apart from the fact that picket teams were limited to five by court order and apart from the fact that the evidence shows he was talking to Davis and Maurice not picketing with them no member of his team was called as a witness His denial of involvement remained uncorroborated CLOUGHERTY PACKING CO sation Chang did not recall talking to Regan on the day of the incident Having considered these discrepancies, I nevertheless find sufficient evidence to establish an honest belief by Respondent that Melgoza had engaged in strike miscon duct I further find that the General Counsel has not pre sented sufficient evidence to prove that Melgoza did not commit the act in question Melgoza was on the picket line on the day and time in question His denial, without corroboration, cannot be credited in light of Respond ent s evidence Accordingly, I will recommend to the Board that this allegation be dismissed d Samuel Rodriguez Rodriguez was hired by Respondent in October 1979 He participated in the strike from the beginning On Jan uary 20, 1986, he was sent a Notice of Termination for Picket Line Misconduct, alleged to have occurred on November 6 (G C Exh 5) As a basis for his decision to terminate, Regan relied on eyewitness and a security guard report Respondent witness Julio Vasquez testified that he had worked for Respondent for 8 years as a machine opera tor For 3 days, he was on strike, but then returned to work On November 6, Vasquez was leaving work be tween 4 and 5 p in and left the Soto gate driving north A passenger named Garcia was with him Vasquez testa feed that at the time of the incident Rodriguez was about 15 yards from the Soto gate standing with three other Latino males At the time Rodriguez threw the rock he was about 10 feet from Vasquez and the only one wear ing a large Mexican style sombrero Vasquez did not know Rodriguez by name but knew him from before the strike, when in addition to working for Respondent Ro driguez used to sell seafood to employees as a side buss ness The rock dented the passenger door of Vasquez vehicle a GM Blazer After the incident Vasquez backed up into the compa ny premises There Vasquez reported the incident to Bragg to Glennon and to the police who were called by Bragg Bragg's experience with Rodriguez began earlier that afternoon when he observed a bulge under Rodriguez jacket, which Bragg thought might be a gun He called police who then patted down Rodriguez Bragg saw them remove a slingshot from under Rodriguez jacket, which the police gave to Bragg Although there is no evidence that Rodriguez used the slingshot his posses sion of it constitutes part of the charges against him In lieu of the slingshot itself, a photograph of this object was admitted into evidence (R Exh 6) Later that day Bragg gave the slingshot to Regan Also later in the afternoon Bragg observed Rodriguez who was then only 2-3 feet from the gate throw a rock at Vasquez vehicle After Vasquez backed up into the lot Bragg called the police Bragg watched Rodriguez walk south on Soto and cross over to the west side of the street, continuing to walk past the liquor store into the parking lot Bragg noted he was wearing his wide brim sombrero the entire time By the time the police ar rived, Bragg was able to tell them exactly wher Rodri guez had gone because a security guard had Rodriguez 1147 under observation and reported by radio to Bragg who in turn told the police where to go Two police officers transported Vasquez and Jesus Garcia, Vasquez passenger, to the parking lot where Rodriquez was found drinking a soda Vasquez immedi ately identified him from a group of three men Al though only 10-15 minutes had elapsed since the inci dent, Rodriguez had somehow exchanged his sombrero for a baseball cap, which he was wearing when he was arrested 8 Respondent also called Garcia as a witness and he gen erally corroborated the testimony of Vasquez as to the incident Respondents employee only since July Garcia recalled specifically the sombrero hat worn by Rodri guez when the rock was thrown and the baseball cap at the time of Rodriguez arrest Furthermore although Garcia had not been in the hearing room before his testi mony, he was able without difficulty to identify Rodri guez in a crowd of several Latino males as the rock thrower Rodriguez denied throwing the rock that damaged Vasquez vehicle but he admitted he was present at the time of the incident Rodriguez also heard Vasquez tell Bragg that he had thrown the rock but he loudly pro claimed his innocence as he left the area because his picket assignment had ended Rodriguez went to his ve hicle in the parking lot near Vernon and Soto where he was found by the police drinking a soda Regarding the sombrero Rodriquez admitted to wear ing the hat near the picket line when the incident oc curred and further admitted that no one else had a hat like it Regarding the switch to a baseball cap, Rodriquez testified that he exchanged the sombrero for the baseball cap as a favor to an unidentified picket who was just be ginning his shift as Rodriquez was finishing his Alleged ly the new picket needed more protection from the sun than the baseball cap could give I note that Rodriquez never denied possessing the slingshot 9 In evaluating the credibility of Rodriquez I assign little or no weight to his testimony His explanation re garding the hat switch is preposterous I find that Rodri quez was attempting to evade detection by police and impede identification by Vasquez and Garcia all to no avail On the other hand I find the testimony of Vas quez, Garcia, and Brag convincing and credible In Glennon s logbook a brief paragraph records the incident in question (R Exh 7 p 5) 11/6 Julio Vasquez Unit 694 Sammey Rodriquez #1716 3rd shift park X 15-22-48 wearing Cowboy hat & slingshot taken to 8 Like Navarro Rodriguez entered a plea of nolo contendere in court to criminal charges arising out of this incident I have given it no consid eration in evaluating the charges against Rodriguez 8 Curiously the General Counsel elected repeated denials regarding possession of a slingshot from Melgoza who was never seen with nor charged with possessing a slingshot (Tr 21 ) 1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD *15 23 00 jail for damaging his 1982 GMC van IGKKO09 On cross examination, the General Counsel pointed out the usual deficiencies Unidentified person wrote the name Julio Vasquez and made an X to the left of Ro driquez name In addition Glennon could not tell what information may have been added after he first talked to Vasquez Notwithstanding these disturbing unanswered questions I find a sufficient showing that Respondent had an honest belief that Rodriquez threw the rock and possessed the slingshot 10 I also find that the General Counsel had not presented sufficient evidence to prove the misconduct did not occur For the above stated reasons I will recommend to the Board that this allegation be dismissed e Pedro Estopinian Estopinian began working for Respondent in 1979 and joined the strike from the beginning Initially Estopinian walked picket 7 days a week, usually between 7 a m to 12 noon However, on or about November 29 Estopin tan became disabled due to a prostrate problem After the strike ended, Estopinian sent to the Company a doc tor s note regarding his disability (G C Exh 11) A few weeks later on December 28 Estopinian went to the Company and talked to an official named Anthony Clougherty While Estopinian was there, Regan entered the room and told Anthony Clougherty that Jim Clough erty had seen Estopinian throwing rocks at cars A few minutes later Anthony Clougherty went to get Estopin ian s foreman Joe Perez Perez told Estopinian appar ently in Spanish, that Estopinian was on the list of per sons who had committed acts of violence and therefore he would not be returning to work Estopinian then left complaining that he had committed no such act and vowing to complain to the Union On January 20, 1986, Estopinian was sent and subsequently received a termina tion notice for picket line misconduct alleged to have occurred on November 4 (G C Exh 10 ) According to Regan he relied on one or two eyewit ness reports in deciding to terminate Estopinian In fact there were two eyewitnesses and they testified as Re spondent witnesses John Clougherty is a construction foreman who has worked for Respondent since 1974 11 On November 4 Clougherty was driving to work west on Vernon be tween 5 30 and 6 a m About 50 feet west of the Vernon gate, as Clougherty s car slowed to about 15 miles per hour, a man threw a rock at Clougherty s vehicle with such force that the rock thrower momentarily lost his 'Olt is unnecessary to evaluate the two acts independently Even if possession by a sinker of a slingshot under clothing on or near a picket line during a strike is insufficient by itself to terminate an employee throwing a rock at a moving vehicle is sufficient Regarding the sling shot I note it created a bulge under clothing creating a reasonable appre hension by an experienced supervisor of security guards that Rodriquez was carrying a gun This occurred in the context of a strike with repeat ed acts of misconduct severe enough to warrant an uncontested prelim[ nary injunction and to require Respondent to board up its office windows fronting on Soto Street "The witness is a cousin of Respondents president Joseph Clough erty balance and fell out of the group towards the street so Clougherty could see him The area was well lit by a street light and nearby parking lot lights Clougherty recognized the rock thrower as an employee, but did not know his name Clougherty s car suffered a dent on the passenger side about 2 inches below the window After Clougherty parked his vehicle he saw Gary Ainsworth a hog buyer and cost accountant for Re spondent getting ready to begin his day s work Clough erty knew that Ainsworth had worked as a security guard for Respondent for several years prior to his present position Clougherty told Ainsworth that his ve hicle had been hit by a rock and requested Ainsworth to accompany him to approach the group of strikers near the Vernon gate to see if the person was throwing more rocks Ainsworth agreed and the two men walked along a chain link fence to within 10-15 feet of the strikers a group numbering between 4-6 As they observed the group the same man who had thrown a rock at Clough erty s car threw another rock at and hit a car driven by an unidentified person apparently not an employee of Respondent s As will be further explained below both men subse quently identified the rock thrower as Estopinian They knew him to have worked in Respondents offal depart ment and they also observed Estopinian wearing the same green hat that he always wore to work Made of straw material, the hat was small brimmed bent down in front with the sides up After Clougherty and Ainsworth witnessed Estopinian throwing the rock at the unidentified car Clougherty told Ainsworth that was the same man who had thrown the rock at his car Clougherty could not recall any re sponse Both men then left the area About 7 a in that same morning Clougherty contacted Glennon to report what had happened About noon that day Glennon showed both men independently of each other approxi mately four or five ID badges measuring 2 by 3 1/2 inches and containing photographs and physical descrip tions of employees of the offal department Both men identified Estopinian as the rock thrower Glennon then took Clougherty s report down in writing Ainsworth was employed at Respondent for 15 years As noted above he generally corroborated the testimony of Clougherty, providing a few additional details For example he described how Estopinian stepped east from the group of strikers in order to throw the stone at a car traveling about 20 to 25 miles per hour west on Vernon Glennon s journal reflects a paragraph relating to the incident (R Exh 7 p 3) 11/4/85 X 5 5 30 am Johnny Clougherty A picket threw a stone at his black El Camiro #pick up when passing [ indecipherable] Co W/B at 5 45a m The stone hit the frame at base of passengers window The culprit was later identified CLOUGHERTY PACKING CO as Pedro Estopinian (#865) who works in Offal Johnny and Garry Ainsworth also observed him throw a rock at another car (small light colored car) On cross examination, the General Counsel established that a number of marks, names, and interdelineations were made by unknown persons (Tr 540-543 ) Estopinian testified that he could not recall if he was on the picket line on the day in question However, his normal picket time was 7 a in to 12 noon and at differ ent times, he picketed both gates He also admitted occa sionally wearing a hat while picketing, but not wearing the same one all the time He owned three or four differ ent hats with different styles As to the hat described by Clougherty, Estopinian denied on rebuttal wearing such a hat or even owning one Estopinian admitted that he knew Clougherty, but not Ainsworth Estopinian denied throwing a rock at Clougherty s car I find that Respondent entertained an honest belief that Estopinian committed misconduct while on the picket line Whether the General Counsel met her burden to prove that Estopinian did not in fact commit the misconduct I find the evidence presents a close case Estopinian was 51 years old at the time of the incident and struck me at hearing as a mature individual, not given to impetuous conduct If the evidence consisted only of Clougherty I would have no difficulty in finding for the General Counsel Even with Ainsworth, I had some difficulty in visualizing the scene because the backs of the strikers would have been toward Clougherty and Ainsworth as they stood behind the fence However as the rock thrower returned to the group both men had a clear though brief opportunity to observe him under adequate light Then their independent identification from the badges the same day coupled with a total lack of cor roborating evidence for Estopinian s denial compels me to find for Respondent In finding for Respondent I need not decide whether strikers can be fired for throwing rocks at cars driven by strangers to the labor dispute Instead I find that the General Counsel failed to prove that Estopinian did not commit misconduct against Clougherty In light of the above, I will recommend to the Board that his allegation be dismissed CONCLUSIONS OF LAW 1 The Respondent Clougherty Packing Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Unions United Food and Commercial Workers International Union Local 274, AFL-CIO CLC, and United Food and Commercial Workers International Union, Local 770 AFL-CIO, CLC are labor organiza tions within the meaning of Section 2(5) of the Act 3 By discharging and refusing to reinstate strikers Pedro Gama and Luis Navarro Velasquez the Respond ent has violated Section 8(a)(1) and (3) of the Act 1149 4 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 5 Other than specifically found, Respondent commit ted no other unfair labor practices REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act I shall recommend that Respondent be or dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act Having found that the Respondent unlawfully dis charged and failed to reinstate Pedro Gama and Luis Na varro Velasquez, I shall recommend that the Respondent be ordered to offer each of these employees immediate reinstatement to their former jobs or if such jobs no longer exist to substantially equivalent jobs, without loss of seniority or any other rights or privileges, discharging if necessary any replacements hired, and make each of these employees whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of discharge to the date of proper offer of reinstatement less any net interim earnings as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed12 ORDER The Respondent Clougherty Packing Company, Vernon California its officers agents successors, and assigns shall 1 Cease and desist from (a) Discharging or failing to reinstate any employee for engaging in a strike or any other concerted activity protected by Section 7 of the Act (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Pedro Gama and Luis Navarro Velasquez immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the deci sion (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this 12 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD has been done and that the discharges will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay roll records, social security payment records , timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in Vernon California , copies of the attached notice marked Appendix 13 Copies of the 13 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Boa d shall read Posted Pursuant to a Judgment of notice, on forms provided by the Regional Director for Region 21 after being signed by the Respondents au thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply the United States Court of Appeals Enforcing an Order of the National Labor Relations Board