Columbia Textile Services, Inc

1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Columbia Textile Services, Inc and Dyers Local 1733, a/w Amalgamated Clothing and Textile Workers Union, AFL-CIO' and Cesar Diaz Cases 22-CA-13089, 22-CA-13617, 22-RC- 9136, and 22-CA-13310 May 15, 1989 DECISION, ORDER, AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 20, 1986, Administrative Law Judge Howard Edelman issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a brief in reply 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 decided to affirm the judge' s rulings, findings,2 and ' The name of the Charging Party Union appears as set forth in the complaint 2 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 In agreeing with the judge s finding that the Respondent knew of An tonio Pardo s support for the Union we do not rely on the judge s find ing that there is a logical presumption that if Antonio Pardo s son was a union supporter that the father was probably a supporter too Rather we rely on the fact that Antonio Pardo was an active union supporter who distributed union literature at the shop In light of the judge s finding that the Respondent had designated spies specifically to determine who sup ported the Union and that Antonio Pardo s discharge fit into the dis cninmatory pattern set in motion by the Respondent we find that an in ference that the Respondent was aware of Antonio Pardo s support for the Union is warranted We correct certain errors made by the judge The Respondent com menced its operations in September 1983 not 1984 the Union began orga nizmg the Respondents employees in December 1983 not 1984 and Victor Castro a dyehouse employee was hired by Peter Costarelli in July 1984 not July 1985 We also correct the spelling of the names of the following cases that are cited in the judge s decision Jacobo Martz & Sons Inc 264 NLRB 30 (1982) Stroehmann Bros Co 252 NLRB 988 (1980) enfd 659 F 2d 1071 (3d Cir 1981) (unpublished order) and St Vincent s Hospital 223 NLRB 638 (1976) Additionally the correct spell ing of the last names of two of the Respondents labor spies are Gil and Burgos The judge erroneously reported the citation to the Board s decision in Wright Line 251 NLRB 1083 (1980) 8 We agree with the judges conclusion that the Respondents Decem her 23 1983 interrogation of employee Cesar Diaz who was not an open and active union supporter violated Sec 8(a)(1) of the Act One day after the Respondent had received a letter announcing the organizing campaign and had decided on a plan to defeat the Union by discharging its supporters Diaz was interrogated as to his union support by the Re spondent s top management official Sessa in the presence of two other employees Shortly after the interrogation Diaz was informed by his su pervisor that his prounion stance angered Sessa Therefore we conclude that under the totality of the circumstances the interrogation of Diaz rea sonably tended to restrain coerce or interfere with rights guaranteed by the Act Rossmore House 269 NLRB 1176 (1984) enfd sub nom Hotel & Restaurant Employees Local 11 v NLRB 760 F 2d 1006 (9th Cir 1985) conclusions3 only to the extent consistent with this Decision, Order, and Direction 4 1 The judge, rejecting the Respondent's 10(b) defense, found under Ducane Heating Corp, 273 NLRB 1389 (1985), enfd 785 F 2d 304 (4th Cir 1986), that there was fraudulent concealment by the Respondent that justified the refiling outside the 10(b) period of previously withdrawn charge allegations concerning the discharges of Rafael Yi and Antonio Pardo The judge further found that late-filed allegations concerning the discharge of Manuel Chavez and 8(a)(1) violations by Jose Velez were not time-barred because of the fraudu lent concealment by the Respondent and also be In adopting the judge s conclusion that the challenge to Joseph Nick les ballot should be sustained we do not rely on his finding that Nickles is a professional employee Rather we find that Nickles job duties work area compensation work schedule licensed status and lack of interac tion and interchange with other employees indicate that he does not share a community of interest with the unit employees sufficient to war rant his inclusion in the unit 4 In adopting the judge s conclusion that the challenge to a ballot con taming a hole punched in the center of the square designating Local 1733 should be overruled Chairman Stephens and Member Cracraft agree with the judge s finding that the voter clearly expressed an intent to vote for Local 1733 The Board s longstanding policy has been to give effect to voter intent whenever possible Hydra Conduit Corp 260 NLRB 1352 (1982) Thus in Horton Automatics 286 NLRB 1413 ( 1987) the Board counted an irregularly marked ballot where that ballot despite the irreg ulanty clearly expressed the employee s intent to vote against the union The challenged ballot here contains an irregularity in that the voter ex pressed his intent by punching a hole in the ballot rather than by making a pencil or ink mark on the ballot However as that marking was made in the square designating Local 1733 the Board finds that the ballot de spite the irregularity clearly expressed the voter s intent to vote for the Union and therefore will count the ballot Member Johansen disagrees with his colleagues adoption of the judge s finding that the challenge to a ballot with a hole punched in the center of the square designating Local 1733 should be overruled Apply ing the Board s analysis in Kaufman s Bakery 264 NLRB 225 (1982) the judge found that in view of the marking in the center of the box and the absence of any other mark or irregularity elsewhere on the ballot the voter clearly expressed an intent to vote for the Petitioner Contrary to his colleagues Member Johansen finds merit in the Respondents excep tions to this finding In overruling the challenges in Kaufman s Bakery the Board majority held In keeping with the Board s long established policy of attempting to give effect to voter intent whenever possible we will hereafter regard a mark in only one box despite some irregularity as pre sumptively a clear indication of the intent of the voter When a ballot reveals a clear X almost entirely contained within either the Yes box or the No box and no irregular markings appear outside the marked box there can be little doubt but that the voter intends his vote to be counted in favor of or against respectively the desig nated labor organization [264 NLRB at 225 ] Unlike the written marks in Kaufman s Bakery however the hole made by the voter in this case does not in Member Johansen s view re flect substantial compliance with the ballot instructions Rather the hole which is arguably not even in the center of the square is highly irregular and does not indicate voter intent with any reasonable certainty (See also Member Johansen s dissent with former Member Babson in Horton Automatics above at 1414 in which they found that the ambiguity of the markings- NON or NOW across both the yes si and no no boxes of the ballot- made it impossible to determine the clear intent of the voter and therefore the ballot had to be considered void) Accord ingly as the hole is not a mark within the meaning of Kaufman s Bakery Member Johansen concludes that Kay/man s presumption of voter intent does not apply and therefore that the challenge to the ballot should be sustained 293 NLRB No 127 COLUMBIA TEXTILE SERVICES 1035 cause they were "closely related" to outstanding complaint allegations pursuant to NLRB v Dinion Coil Co, 201 F 2d 484, 491 (2d Cir 1952) We agree with the judge's findings that the above alle gations are not time-barred, but we do so only for the reasons set forth below The relevant facts, as more fully set forth by the judge, are as follows Yi was discharged on Febru ary 11, 1984, Pardo was discharged on February 20, 1984, and the last date of employment for Chavez was February 25, 1984 On March 2, 1984, the Union filed a timely charge in Case 22-CA- 13089 alleging certain 8(a)(1) violations, as well as the discriminatory discharges from January 3 to February 20, 1984, of nine named employees, in- cluding Yi and Pardo, but not including Chavez 5 The General Counsel issued a complaint on April 30, 1984, alleging, inter alia, that Yi and Pardo were denied overtime and that Yi, Pardo, and Chavez were transferred to a newly created third shift 6 The only employee alleged in the complaint to be discriminatorily discharged, however, was Elisardo Pardo That same day, the charge allega- tions concerning the discharges of Antonio Pardo and Yi were withdrawn On September 6 and 14, 1984, more than 6 months after the discharges occurred, the Union amended the charge in Case 22-CA-13089 to allege the discriminatory discharge of additional employees including Yi and Chavez The second amended complaint,7 issued on December 21, 1984, alleges in pertinent part that Yi and Chavez were discriminatonly discharged, that Jose Velez was an agent of the Respondent, and that on various occa- sions between December 1983 and February 1984, Velez interrogated employees to ascertain their union membership and sympathies and threatened the employees with plant closure if the Union 5 Specifically the initial charge alleges Since on or about December 14 1983 the above named Employer through its officers agents and representatives has interfered with restrained and coerced and is interfering with restraining and coerc mg employees of Columbia Textile Services by threatening to close the plant if Amalgamated Clothing and Textile Workers Union AFL-CIO were selected as collective bargaining representative of its employees On or about January 3 1984 the above named Employer through its officers agents and representatives discharged Luis Felix and Cesar Diaz on or about January 19 1984 it discharged Elisardo Pardo on or about February 3 1984 it discharged Rafael Yi on or about February 11 1984 it discharged Pablo Rivera Valentin on or about February 16 1984 it discharged Roberto Almonte Rafael Diaz and Luis Martinez and on or about February 20 1984 it dis charged Antonio Pardo all employees of Columbia Textile Services because of their membership and activities on behalf of Amalgamat ed Clothing and Textile Workers Union of America a labor orgam zation The complaint further alleges that the Respondent acting through John Sessa asked an employee to ascertain and divulge the identity of the employee who brought in the Union ° The first amended complaint issued on August 17 1984 alleges the unlawful discharge of Cesar Diaz (Case 22-CA-13310) became their collective-bargaining representative The complaint was later amended on February 11, 1985, during the hearing, to allege the unlawful dis- charge of Pardo 8 As indicated, the judge relied on NLRB v Dinion Coil, above, for the rules regarding the req- uisite relationship between the timeliness and sub- ject matter of a proposed complaint amendment 9 Under Dinion Coil, the issue here is whether the untimely complaint allegations concerning the dis- charges of Yi, Pardo, and Chavez are "closely re- lated" to the allegations of the original timely filed charge and therefore not time-barred In its recent decision in Redd-I Inc, 290 NLRB 1115 (1988), the Board held that it would apply the traditional "closely related" test to determine whether an otherwise untimely allegation is factual- ly and legally related to the allegations of a timely charge, without regard to whether another charge encompassing the untimely allegation had been withdrawn or dismissed Id at 1116 See also Heaven, 290 NLRB 1223, 1224 (1988) Discussing its application of the "closely related" test, the Board in Redd-I stated First, we shall look at whether the otherwise untimely allegations are of the same class as the violations alleged in the pending timely charge This means that the allegations must all involve the same legal theory and usually the same section of the Act (e g , 8(a)(3) re- prisals against union activity) Second, we shall look at whether the otherwise untimely allegations arise from the same factual situation or sequence of events as the allegations in the pending timely charge This means that the al- legations must involve similar conduct, usually during the same time period with a similar object (e g , terminations during the same few months directed at stopping the same union or- ganizing campaign) Finally, we may look at whether a respondent would raise the same or similar defenses to both allegations, and thus whether a reasonable respondent would have preserved similar evidence and prepared a 8 The complaint had also been amended on January 14 1985 to allege the unlawful discharge of Sergio Aponte the November 1984 unlawful discharge of five dyehouse employees and the unlawful solicitation of authorization cards for Local 560 International Brotherhood of Team stern Chauffeurs Warehousemen and Helpers of America AFL-CIO 8 The Dinion Coil rules are as follows (1) A complaint as distinguished from a charge need not be filed and served within the six months and may therefore be amended after the six months (2) If a charge was filed and served within six months after the violations alleged in the charge the complaint (or amended complaint) although filed after the six months may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge and (b) occurred within six months before the violations named in the charge [201 F 2d at 491 ] 1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD similar case in defending against the otherwise untimely allegations as it would in defending against the allegations in the timely pending charge [290 NLRB 1118 ] In Redd-I and in Heaven, the Board was unable to determine from the record whether the untimely allegations were closely related to the allegations of a timely filed charge 10 The Board therefore re manded those proceedings to allow litigation on the merits and on the "closely related" issue 11 On the other hand, the Board in Davis Electrical Constructors, 291 NLRB 115 (1988), agreed with the judge's finding, based on the evidence present ed at the hearing, that the untimely allegation con- cerning employee Rickard's March 1981 layoff was closely related to the allegations of a timely charge concerning another employee's March 1981 layoff, and was therefore not time-barred In this regard, the Board found that both layoff allegations arose from the same or a similar factual situation or se- quence of events based on evidence that the layoffs occurred on the same day, at the same construction site, during the same reduction in force, and under the approval of the overall supervisor who had or- dered the reduction Further, the Board in Davis held that in determining whether allegations are closely related it "would certainly not rely on a re- spondent's proffered reasons where, as here, a judge has already rejected them as pretextual after hearing all the evidence " Davis, at fn 9 12 In the instant case, the General Counsel amended the complaint outside the 10(b) period to allege the unlawful discharges of Yi, Pardo, and Chavez Therefore, pursuant to Redd-I, above, it is neces- sary to determine whether the late filed allegation concerning Chavez as well as the previously with- drawn allegations concerning Yi and Pardo are "closely related" to the timely filed charge against the Respondent The discharges of Yi, Pardo, and Chavez all oc- curred within 6 months before the filing of the timely charge on March 2, 1984, alleging various 10 In Redd I the General Counsel had excepted to the judges refusal to add to the complaint a previously withdrawn allegation outside the 10(b) period in denying the motion to amend the judge refused to accept evidence pertaining to the untimely allegation In Heaven the Re gional Director referred to the Board the respondents Motion for Partial Summary Judgment alleging that previously dismissed charges had been improperly reinstated i i The specific question presented in Redd I was whether the untimely complaint allegation concerning employee Kelley s discharge was closely related to the other discharge and layoff allegations in the timely charge In remanding the Board noted that there was no evidence concerning inter alia the circumstances surrounding Kelley s discharge the respond ent s knowledge of Kelley s union activities or any asserted justification for Kelley s discharge 12 The Board also found that the allegation concerning Rickard s March 1981 layoff was closely related to previous unlawful conduct against Rickard which was alleged in a timely charge in a consolidated case 8(a)(1) violations as well as unlawful discharges Applying the guidelines set forth in Redd-I, above, to the "closely related" issue here, it is clear that the untimely complaint allegations concerning the discharges of Yi, Pardo, and Chavez, as well as the discharge allegations in the timely charge, are all based on the theory of the Respondent's discrimi- natory treatment of prounion employees and in- volve Section 8(a)(3) of the Act 13 Second, as in Davis Electrical Constructors, above, the untimely allegations in this case have been liti gated on their merits and, therefore, there is record evidence concerning the factual circumstances sur- rounding the discharges of Yi, Pardo, and Chavez Regarding each instance of alleged discriminatory conduct in this case, the judge relied on the cred- ited testimony of former Dyehouse Supervisor Costarelli to establish the Respondent's unlawful motivation In this regard, Costarelli testified that Sessa, the Respondent's top management official, used employees as "labor spies" to identify proun- ion employees and formulated a plan to discharge prounion employees in order to defeat the Union According to Costarelli, pursuant to the plan em- ployees would be denied overtime and/or assigned to a newly created midnight shift to force them to quit, if they did not do so, they would be dis- charged on a pretextual basis Based on this testi- mony, the judge found that the formation of the third shift was discriminatorily motivated Examining the circumstances of the untimely dis- charge allegations here, including Costarelli's testi mony about the plan, we find that the discharges of Yi, Pardo, and Chavez occurred during the same period as the discharges alleged in the timely charge Further, the Respondent's conduct toward these three discriminatees-like its conduct toward the other discriminatees named in the timely charge whose causes of action survived and about which there is relevant information-is consistent with Costarelli's testimony regarding the Respond- ent's three tiered plan to eliminate prounion em ployees Thus, there is evidence that Sessa either knew or believed that Yi, Pardo, and Chavez were 13 The Board has applied the closely related test to both proposed charge amendments Kelly Goodwin Hardwood Co 269 NLRB 33 (1984) and proposed complaint amendments R J Causey Construction Co 241 NLRB 1096 (1979) Although our analysis focuses on the relationship be tween the untimely complaint allegations and the allegations in the timely charge the closely related test would also apply to the September 1984 charge amendments alleging the discriminatory discharges of Yi and Chavez We find that the September 1984 charge amendments relate back to the original timely charge because the matters alleged in the amended charges are similar to and arise out of the same course of conduct as those alleged in the timely filed charge Amended charges containing such allegations if filed outside the 6 month 10(b) period are deemed for 10(b) purposes to relate back to the original charge Kelly Goodwin Hardwood Co id at 36-37 COLUMBIA TEXTILE SERVICES 1037 union supporters Subsequent to the Respondent's attaining this knowledge, Yi and Pardo were discri minatorily denied overtime, transferred to the third shift, and finally discharged Chavez was also un lawfully denied overtime and was later transferred to the third shift, which the judge found constitut ed a constructive discharge Under these circumstances, and relying particu- larly on the Respondent's plan to defeat the Union, we find that all the discharge allegations involved similar conduct during the same time period with a similar object, as required under Redd-I, above Regarding the final element of the Redd-I analy- sis, we note that the Respondent presented differ ent reasons for selecting each employee to be dis- charged, and contended that Chavez was trans- ferred to the third shift because of his experience In view of the judge's rejection of the Respond- ent's proffered reasons as pretextual, however, we do not rely on these reasons in deciding whether the allegations in this case are closely related See Davis Electrical Constructors, above, at fn 9 Accordingly, we find that the complaint allega- tions concerning the discharges of Yi, Pardo, and Chavez are closely related to the allegations in the timely charge and, therefore, are not time-barred 14 Finally, regarding the 8(a)(1) interrogations and threats by the Respondent's agent, Velez, we agree with the judge's finding that these allegations are not time barred because we find that these late 14 In view of our finding that these allegations are closely related to a timely charge we find it unnecessary to rely on the judge s fraudulent concealment analysis Although Chairman Stephens does not dispute that the complaint alle gations concerning the discharges of Yi Pardo and Chavez are closely related to the allegations in the timely charge in accord with the views expressed in his dissenting opinion in Redd I above he would neverthe less find the complaint allegations regarding the discharges of Yi and Pardo to be barred by Sec 10(b) of the Act In his opinion even though the closely related doctrine would permit consideration of the dis charges of these two employees the sequence of charge filings and with drawals here is such that the Respondent would not reasonably have be lieved at the expiration of the 10(b) period that it might have to litigate allegations pertaining to Yi and Pardo s discharges The first unfair labor practice charge filed on March 2 1984 timely alleged that Yi and Pardo were discrimmatonly discharged The General Counsel issued a complaint on April 30 1984 which alleged that Yi and Pardo were unlawfully denied overtime but did not allege that they were unlawfully discharged That same day the charge allegations con cerning the discharges of Yi and Pardo were withdrawn Thus when the 10(b) period had run on the Yi and Pardo discharges the Respondent knew that the Regional Director had considered and rejected claims that the Respondent had unlawfully discharged Yi and Pardo and it would not reasonably have contemplated litigating those matters With regard to the discharge of Chavez the original complaint alleged that Chavez was unlawfully transferred to a newly created third shift but did not allege that Chavez was unlawfully discharged On September 6 1984 after the 10(b) period had run the charge was amended to include his discharge and on December 21 1984 a second amended complaint issued alleging in pertinent part that Chavez was discriminatorily dis charged Under these circumstances as there was no dismissal or with drawal of a charge relating to the alleged unlawful discharge of Chavez the concerns addressed in the Chairman s Redd I dissent are not relevant here filed allegations are closely related to the allega- tions in the timely charge of March 2, 1984 In this regard, the charge alleges threats of plant closure by the Respondent's "officers, agents, and repre- sentatives," as well as alleged discriminatory acts to which the alleged threats and interrogations are factually and legally related 2 The judge found that Denise Collora and Frances DePraspo are office clerical employees, and therefore concluded that the Union's chal- lenges to their ballots in Case 22-RC-9136 should be sustained In reaching this conclusion , the judge found that Collora and DePraspo have separate work locations in an enclosed office, are commonly supervised by the office clerical supervisor, exer- cise inherent clerical functions, have minimal con- tact with the production area and production em ployees, and have a separate eating area The Re spondent excepts to the judge's finding that they are office clericals In particular, the Respondent takes issue with the judge's conclusion that Collora and DePraspo have only minimal contact with the production employees We find merit in the Re- spondent's exception 15 In Hamilton Halter Co, 270 NLRB 331 (1984), the Board found that employees who shared char acteristics of both office and plant clericals, but whose tasks were related to the production proc ess, were more closely akin to plant clericals Thus, the Board noted that although the employees worked in an enclosed office space, their primary responsibility was the transcription of sales orders to facilitate production In addition, the clericals performed other duties typical of plant workers they maintained inventories, ordered supplies, col lected timecards, occasionally unloaded trucks, and were involved in product design and labeling In the instant case, the record indicates that, like the employees in Hamilton Halter, above, Collora and DePraspo perform duties that are functionally integrated with the production process Further, contrary to the judge, we find that each employee has more than minimal contact with production employees Collora testified that she works part of the time in the office and part of the time "out back " Six to ten times per day she walks to the finishing room to get samples and labels, which she assembles for distribution to customers She also types dye orders that come in with the samples In addition, a major portion of Collora's duties consist of typing bills of lading and providing the employees in the packing 15 In agreement with the judge s decision Member Cracraft would find employees Collora and DePraspo to be office clericals and therefore excluded from the unit 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD department with instructions as to what will go in each carton and how much each should weigh Similarly, DePraspo's testimony indicates that her duties are related to the production function, that she works closely with other employees in the plant, and that she does not spend the entire day in the office DePraspo is primarily an order proces sor she prepares the initial order, checks with pro- duction to determine if it is too late for customers to change their orders , and checks with the finish- ing department when customers inquire as to the status of their orders DePraspo also receives and makes entries on the freight bills Further , although she referred to the office clerical supervisor as her supervisor, DePraspo also stated that Joseph Naz zaro, the plant superintendent, is her boss and that her job-related questions are directed to Nazzaro, the dyers, and others in the plant Based on these factors, we find that Collora and DePraspo are plant clericals and are therefore in- cluded in the bargaining unit of production and maintenance employees Accordingly, we shall direct that their ballots be opened and counted 3 The General Counsel also excepts to the judge's failure to include in the notice the names of the employees to be reinstated and made whole for lost earnings The judge simply referred in his rec- ommended Order and notice to the employees set forth in paragraphs 11 and 13 of his Conclusions of Law We find ment in the General Counsel's ex- ception, and shall modify the Order and issue a new notice to conform to the Board's customary practice of naming the discriminatees 4 The General Counsel contends that the judge erred by failing to order the opening and counting of the overruled challenged ballots The General Counsel also maintains that the judge erred by fail- ing to provide that if the Union does not obtain a majority, then the election should be set aside on the basis of the Respondent's unfair labor practices We find meet in the General Counsel 's exceptions The Union is the only party that filed objections to the election Further, the conduct encompassed by the objections was directed solely against the Union, and not against the other labor organization that participated in the election Accordingly, we shall direct the Regional Director to open and count the ballots, and to issue a Certification of Representative should the Union receive a majority of the valid votes cast If the Union does not re- ceive a majority of the valid votes cast, the Re gional Director shall set aside the election and con duct a second election AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 13 "13 By discriminatorily discharging Cesar Diaz, Elisardo Pardo, Rafael Yi, Antonio Pardo , Manuel Chavez, Ramon Tavares , Rafael Tavares, Francis- co Mauro, Victor Castro, and Juan Valero, the Re- spondent violated Section 8(a)(1) and (3) of the Act " AMENDED REMEDY Substitute the following for the fourth paragraph of the judge's remedy "Backpay for the above employees shall be com- puted in accordance with the formula approved in F W Woolworth Co, 90 NLRB 289 (1950) Inter- est on and after January 1, 1987 , shall be computed at the "short term Federal rate" for the underpay ment of taxes as set out in the 1986 amendment to 26 U S C § 6621 in accordance with New Horizons for the Retarded, 283 NLRB 1173 ( 1987) Interest on amounts accrued prior to January 1 , 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed as set forth in Florida Steel Corp , 231 NLRB 651 (1977) " ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Columbia Textile Services, Inc, Pater- son, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 2(a) "(a) Offer to Cesar Diaz, Elisardo Pardo, Rafael Yi, Antonio Pardo, Manuel Chavez, Ramon Ta- vares, Rafael Tavares, Francisco Mauro, Victor Castro, and Juan Valero full and immediate rein- statement to their former positions or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed " 2 Substitute the following for paragraph 2(b) "(b) Make whole Antonio Pardo, Manuel Chavez, Rafael Diaz, Rafael Yi, Elisardo Pardo, Sergio Aponte, Cesar Diaz, Ramon Tavares, Rafael Tavares, Francisco Mauro, Victor Castro , and Juan Valero for any loss of earnings they may have suf- fered by reason of the discrimination against them in the manner set forth in the remedy section of the judge's decision, as amended " 3 Substitute the attached notice for that of the administrative law judge COLUMBIA TEXTILE SERVICES DIRECTION It is directed that the Regional Director for Region 22 shall, within 10 days from the date of this decision, open and count the ballots cast by Denise Collora, Frances DePraspo, Jose Rodri- guez, Rafael Yi, and Elisardo Pardo in Case 22- RC-9136, and count the "irregularly " marked ballot as a valid "Yes" vote for Dyers Local 1733 a/w Amalgamated Clothing and Textile Workers Union, AFL-CIO Thereafter, the Regional Direc tor shall prepare and serve on the parties a revised tally of ballots If the revised tally reveals that Local 1733 has received a majority of the valid ballots cast, the Regional Director shall issue a Certification of Representative However, if the re- vised tally shows that Local 1733 has not received a majority of the valid ballots cast , the Regional Director shall set aside the election results and con duct a second election 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 WE WILL NOT interrogate our employees con- cerning their membership in or activities on behalf of Dyers Local 1733, a/w Amalgamated Clothing and Textile Workers Union, AFL-CIO or any other labor organization WE WILL NOT threaten our employees to close the shop if Local 1733 or any other labor organiza- tion is selected as the collective-bargaining repre- sentative of our employees WE WILL NOT threaten to discontinue overtime normally worked if Local 1733 or any other labor organization is selected as the collective-bargaining representative of our employees WE WILL NOT promise our employees improved benefits in their working conditions to coerce them from selecting Local 1733 or any other labor orga- nization as their collective-bargaining representa- tive WE WILL NOT grant our employees raises and bonuses to coerce them from selecting Local 1733 or any other labor organization as their collective bargaining representative WE WILL NOT engage in surveillance of our em ployees' activities on behalf of Local 1733 or any other labor organization 1039 WE WILL NOT coercively force and require our employees to join Local 560, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO or any other labor organization WE WILL NOT reduce the normal overtime of our employees because of their membership in or activities on behalf of Local 1733 or any other labor organization WE WILL NOT change the work shift of our em ployees because of their membership in or activities on behalf of Local 1733 or any other labor ofgani- zation WE WILL NOT discharge and thereafter refuse to reinstate our employees because of their member ship in or activities on behalf of Local 1733 or any other labor organization 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 to Cesar Diaz, Elisardo Pardo, Rafael Yi, Antonio Pardo, Manuel Chavez, Ramon Tavares, Rafael Tavares, Francisco Mauro, Victor Castro, and Juan Valero full and immediate rein- statement to their former positions or, if such jobs no longer exist, to substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings they may have suffered by reason of their discriminatory discharge , with interest WE WILL make whole Antonio Pardo , Manuel Chavez, Rafael Diaz, Rafael Yi, Elisardo Pardo, and Sergio Aponte for any loss of earnings they may have suffered by reason of their discriminato ry reduction of overtime , with interest COLUMBIA TEXTILE SERVICES, INC William F Grant and Thomas R Gibbons Esqs, for the General Counsel David F Jasinski Esq (Grotta Glassman & Hoffman), for the Respondent Paul A Montalbano Esq (Schneider Cohen & Solomon) for Local 560, International Brotherhood of Team sters DECISION STATEMENT OF THE CASE HOWARD EDELMAN , Administrative Law Judge This case was tried before me on January 14, 16, 17-18 Feb ruary 11 -13, 15, 19 21-22 and 26, and March 1 1985, in Newark, New Jersey On March 2 , 1984 a charge Case 22-CA- 13089 was filed by Dyers Local 1733 a/w Amalgamated Clothing 1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Textile Workers Union , AFL-CIO (Local 1733 or the Union) alleging that Columbia Textile Services, Inc (Respondent), violated Section 8(a)(1) and (3) On April 30 1984 the Regional Director for Region 22 issued a complaint against Respondent alleging that it violated Section 8(a)(1) and (3) of the Act by various threats promises of benefit interrogation , the elimination of overtime transfers of employees to different workshifts and a discriminatory discharge On June 26 1984 this complaint was consolidated with objections and chal lenges, which resulted from the underlying representa tion case (Case 22-RC-9136) On June 21, 1984, Cesar Diaz, an employee, filed a charge, Case 22-CA- 13310 alleging that he was dis charged in violation of Section 8(a)(3) On August 17, 1984, an amended complaint issued On September 6, 1984 Local 1733 amended its charge in Case 22-CA- 13089 to allege the unlawful discharge of Manuel Chavez It was again amended on September 14, 1984 to allege the unlawful discharge of Rafael Yi and others On December 21 1984 a second amended com plaint issued , adding, inter alia, an agency allegation con cerning Jose Velez and Modesto Burgas and expanding the existing 8(a)(3) allegations concerning Chavez and Yi to include their discharges On January 2, 1985, the Union filed a charge, Case 22-CA- 13617, alleging the unlawful discharge of Sergio Aponte On January 14, 1985 at the commencement of the trial the complaint was amended to include, inter alia, the discharge of Sergio Aponte and an 8(a)(1) allegation concerning the unlawful solicitation of Local 560 , International Brother hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 560) authorization cards, and the November 1984 unlawful discharge of five other em ployees Briefs were filed by counsel for the General Counsel and by counsel for Respondent On my consideration of the entire record the briefs and my observation of the demeanor of witnesses I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW Respondent is a New Jersey corporation engaged in the textile business Its operation consists essentially of dying and the wholesale sale and distribution of textiles It is admitted that Respondent meets the Board s nonre tail standard and is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act It is further admitted that the Union is a labor orgam zation within the meaning of Section 2(5) of the Act Respondent s Operation Respondent operates a single facility in Paterson, New Jersey It commenced this operation in September 1984 It took over the operation of a corporation called Chris topher Dying and Finishing which declared bankruptcy and closed in June 1983 Many of the employees of Christopher including some of Christopher s high level management, came over to Respondent upon commence ment of its operations in September 1983 The credible evidence establishes that Christopher was run, if not owned, by John Sessa Although there is no evidence to establish that Sessa owned either in full or in part Respondent, it is clear beyond any doubt that he ran Respondents operation He was the boss and his word was law According to Respondents books, Sessa re ceived no regular salary He did receive a total of $7000 for his services to Respondent in 1984 It is not clear who owned Respondent, but it is clear that the owner ship did not run the operation This was done through Sessa and other high level supervisors, who were under the direction of Sessa Respondent denied that Sessa ran the operation or that Sessa was employed by Respondent in a supervisory ca pacity However, Respondent admitted Sessa was an agent of Respondent within the meaning of Section 2(13) of the Act Peter Costarelli, Respondents head dyer and its high est paid supervisor at a salary of $750 per week credibly testified' that Sessa was in total charge of the operation and that Sessa personally hired most of the supervisors and production employees and fired employees when necessary Costarelli testified that it was Sessa who made the major operational decisions and assigned supervisors and rank and file employees to carry them out During the investigation of this unfair labor practice case, it was Sessa who represented Respondent Similar ly, in the instant representation proceeding it was Sessa who represented Respondent Accordingly, I find that Sessa was the top manage ment official, with the responsibility of running the entire production operation, and a supervisor within the mean ing of Section 2(11) of the Act Under Sessa were Peter Costarelli the dye house su pervisor, and Joseph Nazzaro who was in charge of the grey room where the undyed goods were processed and the finishing department Nazzaro like Costarelli, re ceived a salary of $750 per week Under Costarelli and Nazzaro were various shift su pervisors 2 The production force consisted of approximately 80 employees working in two and sometimes three shifts From Respondent's inception until the Union com menced its organization campaign in December 1984 Respondents production employees were not represent ed by any labor organization The employees of Christo I Costarelli s credibility is assailed by Respondent I find Costarelli to be a totally credible witness I was very impressed by his demeanor His answers to all questions put to him on both direct and cross examination were forthright and detailed notwithstanding his tendency at times to ramble Most importantly his testimony which consisted in a large part of very damaging admissions against Respondent was consistently cor roborated by other credible witnesses and by Respondents business records I make this credibility resolution notwithstanding certain signifi cant contradictions in his investigatory Board affidavit He testified that these inconsistencies reflected Respondent s coverup of its unlawful union activities He also testified that his untruthful statements in his affidavit were the result of prompting by Sessa However since the investigation he had voluntarily left Respondent s employ and now wanted to come clean and tell the truth I am absolutely convinced that he was telling the truth when he testified before me His testimony was unshakable not withstanding intense cross examination by Respondents counsel 8 The status of some of these supervisors is in dispute and will be dis cussed below COLUMBIA TEXTILE SERVICES 1041 pher, many of whom were retained by Respondent, were represented by Local 560 which had a collective bar gaining agreement with Christopher The Union Campaign and Respondents Response During the month of December 1984 the Union met with interested employees and obtained a number of signed authorization cards and considerable support among Respondent's production employees Respondents first knowledge of the Unions activities came on December 22, 1983, when the Union sent Re spondent a letter notifying them of this organizing cam paign The letter set forth the names of a five member organizing committee which included Elisardo Pardo, an employee alleged to have been discharged in violation of Section 8(a)(3) Costarelli credibly testified without contradiction that, following the receipt of this letter he met on a daily basis with Sessa, who decided on a campaign to keep out the Union which included the use of employee spies to find out who was active in the Union, and to convey threats and promises of benefit to employees It was also decided that strong union supporters would be dis charged Costarelli pointed out to Sessa that you had to have some excuse to fire an employee and it was decided that they would cut the overtime of employees they wanted to lean on or get rid of because of their union activities , in order to reduce their income so that they would either renounce their union support or quit If this was unsuccessful , they would initiate a third or midnight shift and assign union advocates to this shift as a means of coercion or to force them to quit If that was unsuc cessful they would then seize upon some reason like lateness or a job mistake and discharge the employee os tensibly for that reason As set forth above, I credit Costarelli s testimony As a high level supervisor his testimony constitutes an admis sion against Respondent which is entitled to considerable weight Mannington Electric, 200 NLRB 970, 972 (1972) Moreover, Sessa, who was admittedly available failed to testify at any time during the course of the trial Under these circumstances an inference is drawn that had he testified, his testimony would have corroborated that of Costarelli and would have been adverse to Respondent Interstate Circuit v United States, 206 U S 208 (1934) American Chain Link Fence Co 255 NLRB 692, 693 fn 4 (1981) Costarelli credibly testified that the first step taken by Sessa was to enlist certain employees as spies to find out who the union supporters were Sessa enlisted Jose Velez, Luis Gonzales, Modesto Burgas, Joaquim Gon zales and Felix Gill as Respondents spies Costarelli fur ther testified that to insure their loyalty Sessa gave them each a $50 bonus and raises ranging from 50 cents to a dollar an hour Costarelli s testimony is corroborated by Respondents payroll records The above employees except for Gill, testified they individually without any knowledge of other employee requests, requested such raises Gill admitted he received his raise so he would vote no in the Board conducted representation elec tion Supervisor Joseph Nazzaro testified that the em ployees were given raises because they requested them In view of the admissions of Costarelli the testimony of Gill, corroborated by Respondents payroll records, con trasted by the incredible and unbelievable testimony of Nazzaro and the employees who received such raises, that they each just happened to request and receive such raises shortly after the Union began its campaign I find that these employees were enlisted by Sessa and paid off by Respondent to act as labor spies to infiltrate among the employees and let Respondent know who were the union supporters so that Respondent would be able to take appropriate action I find that by recruiting these employees to spy on the union activities of Respondents employees , Respondent engaged in surveillance in violation of Section 8(a)(1) Excelsior Laundry Co, 186 NLRB 914 915 (1970) May wood Inc 251 NLRB 979, 982-983 (1980) United Oil Mfg Co, 254 NLRB 1320 (1981) I also find that by the payment of bonuses and grant ing of raises to these employees for their spy activities, Respondent unlawfully granted benefits in violation of Section 8(a)(1) Pine Valley Meats, 255 NLRB 402 409 (1981) I also find that by their mutual fabrication as to the reason for the raises, the credibility of Nazzaro and the above employees is seriously diminished Shortly after the Union's December 22 letter and after the Union had filed a petition for an election , Sessa as sembled the second shift employees and spoke to them The meeting was devoted to speaking about the Union s campaign During the course of this meeting Sessa told the employees that if the Union won the election he would close the plant I find such threat to be a clear violation of Section 8(a)(1) At the conclusion of the meeting Sessa passed Rafael Payamps an employee listed on the Union s December 22 letter as a member of the organizing committee He asked Payamps if he was in favor of the Union and Payamps responded that he was Sessa then told him if the Union won the election he would close the shop Sessa repeated this threat to Payamps several times thereafter 3 In Rossmore House, 269 NLRB 1176 (1984), the Board restated the test for evaluating whether interrogations violate the Act as follows Whether under all circum stances the interrogation reasonably tends to restrain coerce or interfere with rights guaranteed by the Act Supra at 1181 In Rossmore House the Board found that interrogations of an open and active union adherent were not coercive and not a violation of the Act where the employers inquiries were limited to that individual employees involvement with and sentiments for the union, and the interrogations were not accompanied by threats or promises In this case , although Payamps was an open and active union supporter, the interrogation was followed by a threat to close the shop Moreover, throughout the course of this campaign Sessa embarked on a systematic series of unfair labor practices described above and below which included other interrogations, threats promises , and granting of benefits, and discrimi 3 As set forth above Sessa did not testify although he was available 1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD natory denial of overtime shift changes and discharges Therefore, I conclude that under all these circumstances this and other interrogations, described below, would tend to coerce and restrain employees in connection with their union activities Accordingly, I find Sessa s interro gation of Payamps to be violative of Section 8(a)(1) Needless to say I find his threat to close the shop also violative of Section 8(a)(1) Some time in the latter part of December, after Re spondent had paid Velez to be a labor spy Cesar Diaz, a production employee, credibly testified that he saw Velez in the office where the timecards were located Velez was making a written list of names from the time cards Diaz asked him why he was doing this Velez re plied he was making a list of employees who wanted the Union for John Sessa He then told Diaz that if the Union came in Sessa would close the plant Velez denied making such list He also denied the con versation with Diaz He denied he ever spoke to any em ployee or management official including Costarelli or Sessa, or that they ever spoke to him about the Union I credit the testimony of Diaz I was favorably im pressed with his demeanor He testified in a direct and forthright manner and answered all questions put to him on both direct and cross examination in a candid manner and in detail I do not credit Velez testimony except that which would constitute an admission against Respondent His demeanor was most unimpressive He was so intent on denying any conversations with employees concerning the Union or any conversations with John Sessa Costar ells or other management officials, that he often an swered questions put to him by Respondents counsel the General Counsel, and myself in the negative before the question was fully put to him He was continuously admonished to permit counsel to complete their ques tions before answering Additionally, he was extremely evasive vague and hostile during cross examination To credit his testimony that he never spoke to any employee or management official concerning the Union, I would have to discredit virtually every General Counsel wit ness including Costarelli, who were mutually corrobora tive in their testimony that Velez did speak to the em ployees both individually and in groups, make a list of employees who were prounion and report the results of such unlawful interrogation and surveillance to Costarelli and Sessa Velez is, to put it very charitably not a truth ful witness and entirely unworthy of belief I have already found that Velez Luis Gonzales Mo desto Burgas Joaquim Gonzales and Felix Gil were paid by Respondent in order to interrogate employees and otherwise spy on their activities to determine which employees were union supporters and to report their findings to Respondent, Sessa in particular Under these circumstances alone I find that Velez was an agent of Respondent Jacobo Marti & Sons Inc, 264 NLRB 30, 33 fn 1, (1982) Moreover as will be discussed below Velez held a meeting of employees in Sessa s presence where he made various unlawful statements Further, throughout the entire record it is clear that the employ ees recognized that Velez was, in particular, Sessa s right hand man, his special agent among the employees, to find out and report back who was active and to dissuade by threats or promises, employees from supporting the Union Accordingly I conclude that Velez admission to Diaz that he was making a list for Sessa, as to which employ ees were supporting the Union and reporting back con stitutes unlawful surveillance in violation of Section 8(a)(1) and his statement concerning Sessa closing the plant is an unlawful threat in violation of Section 8(a)(1) Some time around the end of December 1983 or the beginning of January 1984 Costarelli met with Sessa and suggested that they bring in Local 560 who had repre sented the production employees at Christopher and deal with them rather than the Union Sessa agreed and contacted Local 560 He made arrangements for them to come to the plant to sign up employees Ed Nicolicchta, a watchman employed by Respondent, testified that on or about January 13, before the representatives of Local 560 arrived, Sessa told him they were expected and when they arrived he should bring them to the dye house to Costarelli Costarelli credibly testified that on January 13 several Local 560 representatives came to the dye house He then called a number of employees in groups of two or three at a time, and told them in the presence of the Local 560 agents to sign Local 560 authorization cards When one or two expressed some reluctance at signing, Costarelli told them that if they did not sign they would be fired Local 560 obtained 21 signed cards on January 13 4 Among the card signers was Joseph Nazzaro who testified he was the plant manager at the time Counsel for Respondent contends that Costarelli was singularly responsible for bringing in Local 560 and it was unauthorized by Respondent This contention is utter and complete nonsense The credible and unrebut ted testimony of Costarelli and Nicolicchia establishes that it was Sessa who contacted Local 560 and made ar rangements for Local 560 to come to the plant More over one of the card signers was Nazzaro who was al legedly Respondent's plant manager at the time Further, Respondent without express renouncement was respon sible for Costarelli s actions Costarelli was after all a su pervisor of the highest level responsible only to Sessa I therefore conclude that Respondent by its represent atives Sessa, Costarelli and Nazzaro called in agents of Local 560 and in the presence of such agents coerced employees into signing Local 560 authorization cards in order to discourage and prevent organization of its em ployees by the Union Such conduct is clearly violative of Section 8(a)(1) Sanford Home for Adults, 253 NLRB 1132, 1138 (1981) Stroehmann Bros Co, 252 NLRB 988 994(1980)5 Several days before the election held on February 9 the employees on the second shift were all assembled by Leadman Jose Rodriguez Employees Rafael Yi and Manuel Chavez both credibly testified that Velez spoke to the assembled employees Sessa was standing nearby in sight of the employees Velez told the assembled em 4 G C Exhs 3-23 5 Such conduct would also be violative of Sec 8 (a)(2) However it was not alleged in the complaint COLUMBIA TEXTILE SERVICES ployees in Spanish that if Local 560 won the election Re spondent would provide the employees with the same benefits provided in the contract between Christopher Respondents predecessor, and Local 560, but if the Union won the election Respondent would close the shop When he finished speaking to the employees, he spoke to Sessa Shortly afterward Velez returned and told Yi and other employees that Sessa was angry that the men were for the Union and he might close the plant As set forth above Velez denied holding any meetings or conversations with employees about the Union How ever, I have found Velez to be an untruthful witness and discredit him As set forth above, Sessa, although avail able did not testify I credit the corroborative testimony of Yi and Chavez and conclude that Velez, acting as an agent for Respond ent and in the presence of Sessa, promised employees benefits if they selected Local 560 over the Union and threatened the employees with plant closure if they voted for the Union By such statements I conclude Re spondent violated Section 8(a)(1) by unlawfully promis ing benefits and by threatening to close the shop Discriminatory Conduct Rafael Diaz was set forth in the Union s December 22 letter as a member of the organizing committee Some time between December 22 and 31, Sessa came over to where Diaz was working Through an interpreter he asked Diaz if he wanted a union Diaz replied yes and Sessa then asked why Diaz responded because of medi cal benefits he believed the Union would be able to pro vide The following day Joe Bednarz, a supervisor,6 came over to Diaz and told him that from now on he would have no more overtime Diaz asked why and Bednarz re plied that it was Sessa s orders Respondent s records es tablish that prior to December 31 Diaz regularly was as signed overtime Following December 31 he was as signed no overtime Respondents witnesses offered no reason for the discontinuance of Diaz overtime On December 31 Diaz was working the first or morn ing shift Shortly afterward he was transferred to the afternoon shift Shortly after this shift change, and some time prior to the election held on February 9 1984 Bed narz told Diaz that he was being transferred to the newly created midnight shift The following day Diaz spoke to Sessa and complained about the shift change Sessa told him this was where he needed him and if he did not like it he could leave Diaz worked the shift as assigned Respondent witnesses testified essentially that the third shift was created to increase production The General Counsel has alleged the discontinuance of Diaz overtime and his transfer to the third shift were discriminatory The General Counsel alleges similar dis criminatory conduct as to other employees as well as 6 Bednarz voted in the Board election His vote was challenged by the Union who alleged him to be a supervisor within the meaning of the Act As set forth below I find Bednarz to be a supervisor within the meaning of Sec 2(11) of the Act 1043 various discriminatory discharges all described below The General Counsel has the burden of proving that the employees union activities were a motivating factor in such alleged discrimination Once such motivating factor is established the burden of proof shifts to Respondent to establish the same action would have taken place in the absence of the employees' protected activities NLRB v Transportation Management Corp, 462 U S 393 (1983) Wright Line, 251 NLRB 1083 (1980) enfd 662 F 2d 899 (lst Cir 1981) cert denied 455 U S 989 (1982) The General Counsel has established an overwhelming prima facie case concerning the discriminatory conduct alleged as to Diaz Diaz activity as a leading union sup porter and Respondents knowledge of such activity is established conclusively through the Union s December 22 letter where Diaz is set forth as a member of the or ganizing committee Respondents intense union animus is established by its unlawful 8(a)(1) conduct described above and unlawful 8(a)(3) conduct described below The unlawful motivation for the discrimination alleged is conclusively established by the credible and unrebutted testimony of Costarelli a high level Respondent supervi sor, who admitted that Sessa planned to coerce and at tempt to force union adherents to cease their union activ ity or quit by cutting out their overtime and creating a third shift, and transferring union adherents to such shift The discrimination alleged concerning Diaz follows Re spondent s plan exactly Respondent offered no explana tion as to why Diaz overtime was cut Its explanation as to why the third shift was created is discredited in view of Costarelli s admissions Accordingly, I find the denial of overtime to Diaz and his transfer to the third shift were discriminatorily moti vated and in violation of Section 8(a)(1) and (3) I further find that the formation of the third shift and assignment of any employee to it was discriminatorily motivated Additionally, for the reasons set forth concerning the un lawful interrogation of Payamps I find that Sessa s inter rogation of Diaz, described above, was violative of Sec tion 8(a)(1) The Discharge of Cesar Diaz Diaz began his employ with Respondent on November 28 1983 as a production employee His name was not on the Union s December 22 letter as a member of the orga nizing committee He was not an open active union sup porter On or about December 23 after receipt of the Union's letter, Diaz credibly testified he was approached by Sessa who asked him if he wanted the Union in the shop Diaz responded affirmatively Sessa then asked why and Diaz said because he had a family A day or so later John Kirschner, Diaz supervisor, 7 told him Sessa was angry with him because he wanted the Union A day or so later Kirschner credibly testified that he overheard Sessa and Costarelli talking and they agreed Diaz was one of those employees for the Union and 7 I find John Kirschner to be a supervisor within the meaning of Sec 2(11) of the Act His status will be discussed below in the section relat ing to challenges 1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they would have to get rid of him Costarelli admitted this conversation took place Diaz was assigned to operate the number 15 dye box On or about December 29 a quantity of material passing through this dye box was damaged Costarelli was in formed of the damaged goods and telephoned Kirschner He asked Kirschner who the operator was Kirschner said it was Diaz Costarelli said we ve got him we can get rid of him you ve got to fire him, get rid of him Kirschner asked why and Costarelli said because he de stroyed the lot with caustic soda Kirschner protested stating that he was not sure the lot was destroyed in this manner Later tests confirmed Kirschner s opinion Kirschner nevertheless discharged Diaz under Costarel It s orders Costarelli credibly admitted at trial that Sessa told him to get rid of Diaz but he told Sessa he had to have a reason first Costarelli further admitted the real reason for discharging Diaz was his support for the Union Counsel for Respondent during the trial took the post tion that Diaz was discharged because of a poor absence record, frequent lateness, and the damaged goods, de scribed above, which finalized his discharge Howev er in his brief he contends that Costarelli told Kirschner to discharge the operator of dye box 15 without inquir ing or without knowledge as to who the operator was, and that this was the sole reason for Diaz discharge As Respondent counsel sets forth in his brief 8 Costarelli merely authorized the termination of the nameless opera tor responsible for the dye box These contentions are totally inconsistent 180 degrees apart The evidence establishing a discriminatory discharge is so conclusive it really requires no Wright Line analysis However, the evidence establishes that Diaz was a union supporter That Sessa was aware of his union support and that he and Costarelli were looking for a way to get rid of him They found it when a lot Diaz was working on was damaged When Costarelli learned the operator was Diaz, he exclaimed we ve got him' notwith standing Kirschner s position that there was no reason at this point to attribute the damage to Diaz negligence or poor work Moreover at trial Costarelli admitted the sole reason for Diaz discharge was his support for the Union Based on the Respondents animus Costarelli s admis sions and Respondents inconsistent defense I conclude that Respondent discharged Diaz in violation of Section 8(a)(1) and (3) of the Act Since Diaz was not an open active union supporter when Sessa interrogated him as to his union support on December 23, I find that such interrogation is violative of Section 8(a)(1) Rossmore House, supra The Discharge of Elisardo Pardo Pardo was one of if not the most active, union sup porter He was designated as a member of the Union s organizing committee He was vocal in his support for the Union throughout the plant, and he distributed cards and campaigned for the Union during lunchtime In view 8 R Br p 18 LL 12-13 of Respondents team of labor spies described above, I find Respondent was aware of Pardo s union activities Costarellt testified that Pardo was known to be a strong vocal advocate for the Union He further admit ted that as a result of such advocacy, Sessa would tell him on an almost daily basis that they had to get rid of him Pardo regularly worked overtime about 2 days a week Respondents records establish this Some time during the last week in December 1983, Pardo credibly testified that Sessa asked him why he only worked 2 days overtime per week Pardo said he went to school the other nights and that Supervisor Bednarz had said it was okay Sessa told him he (Sessa) was the boss Later that day Bednarz told Pardo there would be no more overtime for him Antonio Pardo his father Rafael Diaz and Sergio Aponte Indeed, Pardo s testimony is cor roborated by Respondents records which show that these employees received no overtime after December 31, although other employees continued to work over time Respondent offered no explanation for the discon tinuance of such overtime other than the conclusory statement that no employee was prevented from working overtime As set forth above, Costarelli has admitted that he and Sessa in an attempt to force union adherents to cease their activities or to force the employees to quit, em barked upon a plan whereby Respondent denied employ ees overtime and/or transferred them to the third shift The evidence is conclusive that Respondent had knowl edge of Pardo s activity and was out to get rid of him ' The denial of overtime fits into Respondents precon ceived plan to get rid of union adherents Moreover, other employees continued to work overtime while Pardo and other discriminatees were denied overtime Respondent offered no legitimate explanation as to why Pardo s overtime was discontinued Accordingly I find the denial of overtime after December 31 to be discri minatonly motivated and in violation of Section 8(a)(3) Pardo credibly testified9 that sometime during January 1984 prior to his discharge on January 19 Sessa and Costarelli came over to Pardo s machine and Sessa told Costarelli that this is the 1733 [Union] man that is caus ing all the problems around here Sessa then told him he already had the Teamsters Union in the shop This testimony is corroborated by the 21 Local 560 cards that had been signed by Respondents employees A few days later Jose Velez, Respondents agent, spoke with Pardo and employee Rafael Diaz Velez asked Pardo why he was bringing in the Union He then told both employees that if Local 560 came in Respond ent would give them raises paid holidays and a vaca tion This testimony was corroborated by the equally credible testimony of Diaz Velez denied any conversa 9 I find Pardo to be a credible witness I was very impressed with his demeanor He answered questions put to him during both direct and cross examination in a forthright manner and in detail Moreover as will be set forth below portions of his testimony were corroborated by other credible witnesses while other portions of his testimony were corroborat ed by Respondents business records i e his testimony regarding the denial of overtime COLUMBIA TEXTILE SERVICES tions with employees concerning the Union but, as set forth above, I find Velez to be an untruthful witness en tirely unworthy of belief Accordingly, as I have found Velez to be an agent of Respondent, I find his promise of benefits to be violative of Section 8(a)(1) Employee Ed Nicolicchia credibly testified that on January 19 he overheard Sessa tell Velez as they passed Pardo that son of a bitch has got to go He then walked over to Pardo Pardo credibly testified that Sessa came over to him and told him not to campaign for the Union in the plant Pardo told him he could campaign during lunchtime Sessa then put his shoulder down and rammed into Pardo Employees then separated them and Sessa cursed Pardo and Pardo cursed back Respondents labor spies Velez, Modesto Burgas, and Luis Gonzales, testified that it was Pardo who rammed Sessa As set forth above, I have discredited Velez For those reasons I discredit his testimony as to this incident I also discredit Burgas and Gonzales I was unim pressed with the demeanor of both Burgas and Gonzales Both witnesses were especially vague and evasive on cross examination regarding the above incident Gonzales testified he just happened to enter the area, saw the par ties talking but could not hear what was said, and then he just allegedly saw Pardo push Sessa He admits he did not hear what might have provoked such action by Pardo I find this testimony unbelievable Burgas testified that he was present and heard Sessa tell Pardo not to or ganize during working hours Pardo said he would orga nize when he wanted Sessa then threw up his arms and said he could not believe what he was hearing Then Pardo pushed him Based upon this testimony, there is no logical reason why Pardo would push Sessa Additionally, Velez, Burgas, and Gonzales were paid by Respondent to act as labor spies and as such would be expected, as part of their payoff to testify favorably for Respondent Further, Gonzales and Burgas testimo ny as to how they got their raises like that of Velez is so unbelievable it is almost laughable In view of Sessa's intense animus toward Pardo and his intention to get rid of him, Pardo s testimony is logi cal It strikes me as highly probable that Sessa, partly en raged at Pardo's insistence upon his right to pursue his union activities , and partly to provoke Pardo so that he would have an excuse to get rid of him pursuant to his often expressed intention was likely to act in the manner described by Pardo Respondent offered no credible evi dence as to why Pardo would push Sessa Certainly, Burgas testimony regarding the incident provides no logical reason why Pardo would push Sessa and Velez and Gonzales admittedly did not hear what preceded the alleged pushing incident Pardo testified that after Sessa left he returned to work A short time later Nazzaro came over to him and told him he was terminated As he was leaving Burgas who was present told him Sessa wanted to talk to him Pardo left without talking to Sessa Nazzaro testified that Sessa told him in the plant office that Pardo had just taken a swing at him and he asked Nazzaro to bring Pardo into the office because he wanted to talk to him Nazzaro testified that with Burgas 1045 accompanying him he went to Pardo s work station and told him Sessa wanted to speak to him in the office Pardo refused to accompany Nazzaro to Sessa s office and cursed him Nazzaro s testimony is corroborated by Burgas I credit the testimony of Pardo I find Nazzaro to be an untruthful witness whose tests mony in significant parts consists of a stung of lies In this connection I found his testimony as to how Velez, and others, Respondents spy team came to receive their raises untruthful I find his testimony as to how he hap pened to sign a Local 560 card also untruthful In this regard Nazzaro testified that Costarelli, a supervisor, asked Nazzaro, the alleged plant manager, to sign a Local 560 card He then testified that he signed it but thought it was kind of odd, me being a superintendent [he evidently demoted himself, but perhaps in this case he was telling the truth about his position] to sign an au thorization card He designated his position on the card to be a foreman, which is inconsistent with his present contention that he was plant manager at that time Throughout his testimony he displayed a marked lack of knowledge of the plant operation and the duties and functions of leadmen and supervisors He was unable to explain why various challenged supervisors10 were lead men and not supervisors, although they seemed to pos sess the same authority as admitted supervisors, received the same salary, and received the same medical and other fringe benefits that were different from hourly paid em ployees He had the same difficulty explaining how Velez and his group of spies were leadmen, employed in the same capacity as the supervisors alleged by Respond ent to be leadmen although they did not perform the same work functions were hourly paid employees, and received different medical and fringe benefits from the salaried employees Further, although Nazzaro testified he was the plant manager in charge of all supervisory and production employees, he later testified he had no authority over Costarelli who was evidently supervised by Sessa Additionally but most significantly Nazzaro testified that Pardo was discharged solely for his insubordination to him notwithstanding that he later admitted that prior to the trial he was aware that Sessa had given an investi gatory statement in which Sessa admitted the sole reason for Pardo s discharge was Pardo s taking a swing at Sessa I could go on and on with other reasons for discredit ing the testimony of Nazzaro but such discussion would be as long as this decision Needless to say I was unimpressed with Nazzaro s de meanor His testimony was generally evasive vague, and lacking in detail Applying a Wright Line analysis to the Pardo dis charge the credible evidence, described in detail above, establishes knowledge animus including Sessa s repeated intention to get rid of Pardo for his union activities and a discriminatory denial of overtime Such evidence estab lishes an overwhelming prima facie case Respondent s 10 The challenged ballots will be discussed below 1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contradictory defenses that Pardo was discharged for taking a swing at Sessa or being insubordinate to Naz zaro have both been discredited Accordingly, I con clude that Pardo's discharge was discnminatonly moti vated and violative of Section 8(a)(1) and (3) The Discharge of Rafael Yi Yi began work for Respondent in October 1983 in the finishing department He worked the second shift Yi was an active union supporter Some time during mid January 1984 Yi distributed union campaign litera ture to employees in the plant during his shift The litera ture listed his name as a member of the Union s organiz ing committee He was not listed as a member of the or ganizing committee in the Union's December 22 letter On the day Yi distributed this literature or a day or so later, Yi credibly testified that Sessa was walking through the plant and asked him if he wanted the Union Yi answered affirmatively Sessa asked him who had given him his job, he or the Union He then told Yi that from now on he would not be working any more over time Respondents records confirm that Yi worked no overtime after January 21 For the reasons set forth above, in my discussion con cerning the unlawful interrogation of Payamps by Sessa, I find Sessa's questioning of Yi to be unlawful interroga tion in violation of Section 8(a)(1) I also find Sessa s statement to Yi that he would work no more overtime an unlawful threat in violation of Section 8(a)(1) Further, in view of this threat Respondents preconceived plan to discriminate against union supporters in this manner, and Respondent's failure to offer any explanation for the dis continuance of overtime I find such discontinuance to be violative of Section 8(a)(1) and (3) On or about the third week of January, Yi s supervi sor, Kurt DeLong told him that he was being trans ferred to the third shift Respondents records establish that he worked the third shift for several days The shift was thereafter discontinued and he returned to the second shift As set forth above in connection with Re spondent s discrimination concerning Rafael Diaz I found the creation of the third shift and assignment of employees to such shift was discriminatorily motivated In connection with Yi, he was an active union supporter Respondent was aware of such support Respondent s animus is established by its unlawful interrogation threats, and discriminatory discontinuance of overtime Based on this evidence and on my finding regarding the discriminatory motivation for establishing the third shift, I conclude that Yi s assignment to such shift is violative of Section 8(a)(1) and (3) On or about the end of January 1984, Yi credibly testi fled he was assigned to clean the heat setting machine by Supervisor Bednarz at the end of his (Yi s) shift and that he did so working overtime the first and second days fol lowing this assignment Bednarz was the supervisor of the shift immediately following Yi s shift 11 I I As set forth above I conclude Bednarz was a supervisor within the meaning of Sec 2(11) of the Act His supervisory status is discussed in the section of this decision relating to challenged ballots below Yi credibly testified that on the third day following the initial assignment another employee was cleaning the heat setting machine Bednarz informed him it was his responsibility to clean the heatsetter, but agreed to let Yi get away with it this time since another employee was cleaning it The following day Yi credibly testified he was told he was being terminated for not cleaning up the heatsetter as assigned Bednarz denied he made this assignment Kurt DeLong, Yi s supervisor, testified it was he who assigned Yi to clean the heatsetter and that Yi failed to do so the first and second days following such assignment DeLong then testified he warned Yi that it was his re sponsibility to clean the heatsetter DeLong testified that when Yi failed to clean the heatsetter the third consecu tive day he discussed the situation with Nazzaro and it was decided to terminate Yi Costarelli contradicts DeLong s and Bednarz testimo ny He credibly testified that it was Bednarz responsibil ity to have the heatsetter cleaned This testimony is cor roborated by the credible testimony of Sergio Aponte, who credibly testified that Bednarz would arrive one half hour early and assign him the job of cleaning the heatsetter after Yi was terminated I credit the testimony of Yi and Aponte I was gener ally impressed with their demeanor Moreover, their tes timony is in significant part corroborated by the credible testimony of Costarelli Additionally, I was not im pressed with the demeanor of Bednarz who impressed me as evasive on cross examination I was particularly unimpressed with the demeanor of DeLong who was ex tremely evasive on cross examination Costarelli also credibly testified that immediately fol lowing the termination of Yi John Sessa told him that they had gotten rid of an employee presumably Yi be cause he was a union supporter The credible evidence establishes conclusively that the discharge of Yi was discriminatorily motivated The evi dence discussed above established Yi s union activities, Respondents knowledge of such activities its animus, its discrimination against Yi by refusing to permit him to work overtime and his assignment to the third shift Costarelli s admission that Yi was discharged for his union activities is consistent with Respondents plan to terminate union supporters if they were unable to force them to leave after discnmmatonly discontinuing their overtime and transferring them to the third shift Re spondent s defense that Yi was discharged because he re portedly refused to perform the work assignment of cleaning the heat setting machine was discredited Ac cordingly, I conclude the termination of Yi was discri minatonly motivated in violation of Section 8(a)(1) and (3) The Discharge of Manuel Chavez Chavez was employed by Respondent from its incep tion as a production employee As set forth above, during the first week in February, shortly before the election, Velez spoke to the assembled employees in the presence of Sessa During this speech he promised the employees increased benefits and threat COLUMBIA TEXTILE SERVICES ened to close the shop as discussed above Following his speech he spoke with Yi, a known strong union support er, and Chavez Chavez at this time told Velez that if Respondent was making promises he should have Re spondent put it in writing Velez then spoke with Sessa who had observed this conversation and reported the employees' reaction to his speech, including, no doubt, his conversation with Yi and Chavez It is probable, and I find, that based on his comments to Velez, Sessa con cluded Chavez was a union supporter About 1 week after the election, Chavez credibly testi fled that DeLong informed him Sessa had ordered that he no longer be assigned overtime Respondent's records establish that beginning on February 18, Chavez' over time was significantly reduced Respondent offered no reason for such reduction In view of Respondent's pre conceived plan to rid itself of union supporters and based on Respondents knowledge of Chavez activities, his association with Yi, and the failure to explain why Chavez overtime was reduced, I conclude such reduc tion was discnminatonly motivated in violation of Sec tion 8(a)(1) and (3) On or about February 24, Chavez credibly testified that DeLong told him Sessa was transferring him to the third shift Chavez told him he could not work the third shift because of personal family responsibilities Costarelli credibly testified that following Chavez' no tification of his transfer to the third shift, Chavez spoke to him and told him he was unable to work the third shift Costarelli told Chavez there was nothing he could do about the transfer As Costarelli credibly testified John Sessa and I We would discuss how can we get rid of these guys and that was when I said you cant get rid of them without a reason And that would be a reason, if they went on the third shift and refused to work on the third shift The General Counsel contends that Chavez was con structively discharged There are two elements that the General Counsel must establish to prove a constructive discharge (1) the burden imposed on the employee must cause and be intended to cause a change in working con ditions so difficult or unpleasant as to force the employee to resign, and (2) it must be shown that those burdens were imposed because of the employees union activities Crystal Princeton Refinery Co 222 NLRB 1068 1069 (1976) The burdens are established conclusively by the testi mony of Costarellf described above Moreover, I specifi cally concluded that the purpose of the third shift was to assign union supporters to this shift in an attempt to force them to quit The evidence established that such discriminatory transfers were repeatedly made in connec tion with other union supporters described above and below, and when they stuck it out , they were summarily discharged based on other pretexts I find no merit in Respondent counsel's contention that Chavez was not an active union supporter While this may be true, the evidence discussed above established that Sessa believed him to be a union supporter In this connection there was his association with Yi a strong 1047 union supporter, and his demand of Velez that Respond ent s promises of increased benefit be put in writing Moreover Respondent subjected him to the same dis crimination that other known union supporters were sub jected Accordingly, I conclude that Respondent con structively discharged Chavez in violation of Section 8(a)(1) and (3) The Discharge of Antonio Pardo Antonio Pardo began working in Respondent's facility in 1968 when it was owned by another company He worked at this facility continuously through a succession of companies including Respondent Antonio was a prounion supporter He distributed union literature in the shop His son, Elisardo Pardo, was the Unions key organizer As set forth above, he was discnminatonly deprived of overtime on December 31, and thereafter discriminatorily discharged Respondents records establish that Antonio Pardo s overtime was discontinued on the same date his son's overtime was discontinued and the overtime of other union supporters Respondent failed to supply a reason for this discontinuance Based on Costarelli s admissions, described above, Respondent's knowledge of Elisardo Pardo s union activities, its probable knowledge of Anto nio's activities and support acquired through its labor spy network, a logical presumption that if the son, Elisardo, was a key union supporter, the father, Antonio was probably a union supporter too Respondent's union animus, its similar conduct directed at other union sup porters, and its failure to offer an explanation for the dis continuance of overtime, I conclude such denial of over time was discriminatory and in violation of Section 8(a)(1) and (3) Antonio Pardo credibly testified that some time around mid February 1985 his supervisor Bednarz, told him "Mr John [Sessa] ordered him transferred to the third shift 12 He never worked the third shift When he reported to work the shift several days later, discussed below he was terminated For the same reasons described above relating to other union supporters who were assigned to work the third shift I find that assignment to such shift is violative of Section 8(a)(1) and (3) Pardo credibly testified he was unable to work the third shift as assigned because of a leg injury which re quired medical attention Pardo received a note from his doctor indicating he would be unable to work for a period of 3 days, and gave it to employee Joaquim Perez to give to his supervisor, DeLong Perez credibly tests fled he gave this doctor s note to Supervisor DeLong DeLong denied receiving this note I credit the testimo ny of Pardo that he obtained a doctor s note, and the tes timony of Perez that he gave it to DeLong As set forth above, I do not credit DeLong On or about February 20 Pardo reported for work on the third shift but observed his timecard was not in the rack DeLong told him he had been laid off 12 As set forth above I conclude Bednarz is a supervisor 1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The evidence established that other employees who had received doctors notes explaining medical disabil sties were permitted to return to work when such disabil ity concluded For the same reasons I conclude the discontinuance of Pardo s overtime and his transfer to the third shift were discriminatory I conclude his discharge was discrimina tory In making such conclusion I have discredited Re spondent s defense that it did not receive a doctor s note and had therefore assumed Pardo had abandoned his job and they had replaced him Moreover, his discharge fits the discriminatory pattern set in motion by Sessa and Costarelli directed against union supporters The Discharge of Sergio Aponte Aponte was employed by Respondent as a production employee He was one of the employees who was listed on the Union s December 22 letter as a member of the organizing committee Therefore, Respondents knowl edge of Aponte s activities is clear Respondents records establish that following the re ceipt of the above union letter Aponte s overtime was reduced to some extent It was not discontinued Shortly after the Union distributed campaign literature Aponte was transferred to the third shift Respondent offered no explanation different from its explanations described above as to other union supporters for such actions For the same reasons set forth above, I find the reduction of overtime and shift transfer to be discriminatorily moti vated and in violation of Section 8(a)(1) and (3) On or about September 11 some 7 months after the union election had been conducted Aponte testified he became incapacitated and unable to work A doctor s note he obtained indicates he was incapacitated by diabe tes The note, which was apparently signed indicated he would be absent until October 24 Aponte testified he gave the note to his son Carlos who told him he gave the note to the watchman presumably Nicolicchia who later told Carlos he had given it to the office Although Nicolicchia was called as a witness by the General Counsel he was not questioned whether he was given this note by Aponte s son and who, if anyone he gave it to in the office Respondent denies receipt of such note DeLong credibly testified that during Aponte s absence he was advised by a coworker that Aponte left for Santa Domingo a few days after the onset of his alleged illness Aponte admitted he spent virtually all the time between September 12 and October 22 in Santa Domingo but claims such visit was necessary because he was notified that his mother, who resides in Santa Domingo was serf ously ill DeLong credibly testified that based on this in formation and the lack of communication with Aponte he hired a replacement When Aponte reported to work on October 22 he was told he had been replaced In view of the compound hearsay testimony concern ing the delivery of the doctor s note to Respondent, cou pled with Respondents denial of receipt of such notice I conclude that the General Counsel failed to establish re ceipt of such doctor s note by Respondent officials I fur ther conclude that based on the failure of Aponte to communicate to Respondent a legitimate reason for his extended absence, and based on Respondents informa tion that he had left the country, the 8 month hiatus be tween the election and Aponte s replacement Respond ent s action in hiring a replacement was not discrimina torily motivated 13 Accordingly I conclude Respondent did not violate Section 8(a)(1) and (3) when it replaced Sergio Aponte The Discharge of the Dye House Employees Ramon Tavares Rafael Tavares Francisco Mauro, Victor Castro, and Juan Valera were all hired by Re spondent after the February election They worked in the dye house on the second shift Castro a longtime member of the Union at other com parties was hired by Costarelli in July 1985 Castro testa feed that during his hiring interview Costarelli warned him to be careful about talking about the Union in the shop Costarelli indicated there were all kinds of employ ees in the shop and that if Sessa believed he was a union supporter he could be fired Castro and the above four other employees were union supporters At times they spoke to other second shift em ployees about the Union and expressed their union sup port During the Thanksgiving period (the Wednesday before Thanksgiving through Sunday), the shop was painted When the five dye house employees reported for work that Sunday, November 25, they saw union signs painted on the walls of the dye house Employee Joaquim Perez credibly testified that on November 26 or 27 after the appearance of these union signs Supervisor Ismailovski told him Respondent was going to have people watch the employees because of these signs That Wednesday, November 27 labor spies Velez and Jose Senscion spent the entire shift watching the production employees On Sunday November 25 the day the employees re turned from the Thanksgiving holiday Respondent Su pervisor Feinstein the dyer on the second shift, testified he observed Ramon Tavares pour a 5 gallon pail of some chemical over the number 1 dye box Castro and Rafael Tavares were present at this machine Feinstein testified that although this was not normal procedure he did not question the employees about it Feinstein testified that later he felt some of the material that had passed through dye box 1 and felt it was slimy a condition which could indicate damaged goods Nevertheless Feinstein did not speak to Tavares or the other employees about it He testified he did report the incident to Nazzaro the fol lowing day Nazzaro testified that following an inspection of all the lots dyed on the various dye boxes that night he discov ered 10,000 to 15,000 yards of damaged goods colored royal blue and red The five dye house employees credibly testified with out contradiction that on Sunday, November 5 the night 1' There was no evidence submitted that Respondent thereafter discn minatorily failed to recall Aponte In this connection Respondent does not recall such laid off employees but rather permits them to apply for work and if openings are available will reconsider their rehire There is no evidence that Aponte made such application COLUMBIA TEXTILE SERVICES the goods were allegedly destroyed, they operated dye boxes dying the following colors Rafael Tavares Yellow Lime Ramon Tavares Pink Victor Castro Lilac Turquoise Francisco Maura Yellow Black Juan Valera White Their testimony is corroborated by the credible testa mony of employee Domingo Gonzales who testified it was he who dyed the blue goods Moreover he testified that Respondent had been having problems with fabric dyed this color since before Thanksgiving The truthfulness of the dye house employees testimo ny is further reinforced by the failure of Respondent to produce its records which list the color dyed and the dye box handling that color The failure by Respondent to produce such records raises the inference that the records would not support Respondents witnesses' tests mony Town & Country LP Gas Service Co, 255 NLRB 1149 1151 (1981) On November 30, Nazzaro discharged the above five employees The reason for the discharge was the alleged destruction of goods Costarelli credibly testified that on November 30 he discussed the discharges with Ismai lovski During the discussion Costarelli asked why they fired those people a reference to the above five employ ees discharged Ismailovski replied, I had no control over that That was done through John Sessa They had to get fired-he wanted them out because he believed [emphasis supplied] they were talking about 1733 [the Union] Ismailovski denied this statement For the rea sons set forth above I find Costarelli to be a credible witness I credit his testimony over Ismailovski's denial The evidence established Respondents continued ani mosity toward the Union In this respect, Costarelli warned Castro in July to be careful about talking about the Uunion and that if Sessa believed he was a union supporter he could be fired Thus in July 6 months after the union election, Sessa was still out to fire union sup porters or employees he believed to be union supporters The evidence establishes that the five discharged em ployees were active, and given Respondents labor spy network, the union signs painted in the dye house it was probably aware of these employees support However whether the employees were actually active and whether Respondent had actual knowledge of such support is not material What is material is whether Respondent believed such employees were active union supporters and dis charged them based on this belief NLRB v Clinton Packing Co 468 F 2d 953 (1972), Lizdale Knitting Mills, 211 NLRB 966 (1974) Respondents belief that the five employees were active union supporters is established by Costarelli s testimony concerning his conversation with Ismailovski, where it was admitted that Sessa ordered the five employees discharged because he believed they were talking up the Union This conversation also con clusively establishes Respondents sole motivation for their discharge Respondents defense that the employees were dis charged for suspected sabotage is refuted by the evi 1049 dence which established that they were not operating the dye boxes responsible for the alleged damaged goods Accordingly I conclude that Respondent discharged the above five employees because of their actual or sus pected activities on behalf of the Union in violation of Section 8(a)(1) and (3) of the Act Objections and Challenges On February 9 1984, an election was held in a unit consisting of all production and maintenance employees excluding all office clerical employees, professional em ployees guards, and supervisors as defined in the Act Following the election the tally of ballots established Approximate number of eligible voters-80 Void Ballots-90 Votes cast for Dyers Local 1733-9 Votes cast for Local 560 Teamsters-31 Votes cast against participating labor organiza tions-11 Valid votes counted-63 Challenged ballots-13 Valid votes counted plus challenged ballots -76 Challenges are sufficient in number to affect the results of the election Local 1733 challenged the ballots of Carolyn Trippler, Denise Collora, Mildred Garcia and Frances DePraspo, on the grounds that they were office clericals the ballots of Costarelli Joseph Bednarz, Henry Feinstein Ray mond Mignone, and Jose Rodriguez, on the grounds that they are supervisors within the meaning of the Act and the ballot of Joseph Nickles on the ground that he is a professional within the meaning of the Act The ballot of Rafael Yi was challenged by Respondent, on the ground that he was not employed by Respondent as of January 14 1984, the payroll eligibility date The ballot of Eli sardo Pardo was challenged by the Board agent on the ground that his name was not on the eligibility list sub mitted by Respondent In addition, Local 1733 filed timely objections to the conduct of the election which are substantially similar to the unfair labor practices alleged On June 26 1984, the Regional Director consolidated the objections and challenges with the unfair labor prac tices alleged here The Office Clerical Challengesi4 The credible evidence establishes that both Collora and DePraspo work almost exclusively in Respondent s office area They are both supervised by Carolyn Trippler, the office clerical supervisor, and eat their lunch in the office Collora spends substantial time oper ating a calculator and typewriter She prepares orders and shipping instructions and bills of lading Her duties are almost exclusively clerical in nature Her contact with the production area and production employees is 14 During the course of the hearing Respondent stipulated that Tnppler was the office clerical supervisor within the meaning of the Act and that Mildred Garcia was an office clerical employee excluded from the unit 1050 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD minimal and limited to rare occasions when she may have to check on the items in an order or shipping in- structions. DePraspo spends substantial time operating an adding machine and writing up and recording orders. She also maintains records of incoming freight. Like Collora she has only similar minimal contact with the production area and production employees. In view of their separate work locations in the office, their common supervision by Trippler, the office clerical supervisor, their inherent clerical functions, their minimal contact with the production area and production em- ployees, and their separate eating location, I conclude they are office clerical employees and thus excluded from the unit. Case, Inc., 237 NLRB 798, 806 (1978); Capitol Temptrol Corp., 243 NLRB 575, 583 (1979). I therefore conclude that the challenges to the ballots of Trippler, Garcia, DePraspo, and Collora should be sustained. Employees Challenged as Supervisors Joseph Bednarz was "in charge" of the first-shift fin- ishing operation . The credible evidence establishes that he had authority to hire and fire employees , although there is no evidence that he actually did so. He did assign work and gave employees permission to come in late or leave early. When the timeclock was broken, Bednarz initialed employee timecards . He does not oper- ate out of an office but does have a workdesk by the production machines. Nazzaro admitted that Bednarz had the same authority as Kurt DeLong, an admitted supervisor, except he denied Bednarz could hire or fire. However, Bednarz is a salaried employee, receiving the same salary as DeLong, $650 per week . The production employees are all hourly paid employees . I conclude that Bednarz is a supervisor within the meaning of the Act. Miami Springs Properties, 245 NLRB 278, 284 fns . 9-13 (1979); Paramount Trends, Inc., 222 NLRB 141 (1976); Colorflo Decorator Products, 228 NLRB 408 (1977). Henry Feinstein was the dyer on the second shift. The credible evidence establishes he had authority to hire and fire employees, assign work, and authorize employees to leave early. He was a salaried employee earning $650 per week, the same salary as DeLong, an admitted supervi- sor. In addition, he, like DeLong , Costarelli, and Naz- zaro, received superior medical coverage from a differ- ent medical plan than those medical benefits received by the hourly paid employees . I find Feinstein to be a super- visor within the meaning of the Act. Miami Springs; Co- lorflo Decorator, Paramount Trends, supra. Raymond Mignone replaced John Kirschner as the dye house operator on the first shift , 7 p.m. to 4 a.m. His duties included setting up the dye formulas, the lot as- signments of workers on the various lots that he set up, and overseeing the employees . According to credible tes- timony, in carrying out these functions he could assign work, and hire and fire employees . Mignone was also a salaried employee earning $650 per week and received the same superior health benefits as other admitted super- visors. I find Mignone to be a supervisor within the meaning of the Act. Miami Springs; Colorflo Decorator; Paramount Trends, supra. Jose Rodriguez was employed by Respondent as a "la- borer." He was hourly paid and punched a timeclock. He did not spend much of his workday operating ma- chines. He was supervised by DeLong, who credibly tes- tified that his primary duty was to oversee through his instructions that the quantity and quality of production required by him was produced. Any problems in this connection were reported by him back to DeLong. I do not find such duties to constitute the 45authority of re- sponsible assignment of work within the meaning of the Act. There is no credible evidence that he possessed other supervisory indicia. Accordingly, I conclude there is insufficient evidence to establish that Rodriguez was a supervisor within the meaning of the Act. Based on the above, I conclude that the challenges to Bednarz, Feinstein, and Mignone be sustained and the challenges to Rodriguez be overruled and that his ballot be opened and counted. Employee Challenged as Professional Joseph Nickles was employed by Respondent as a boiler operator. Nickles was a salaried employee who at- tended college.for 3 years, where he acquired consider- able engineering credit. He thereafter obtained a State of New Jersey license to operate boilers up to 1200 horse power. He works exclusively in the boiler room with an- other boiler operator maintaining Respondent's boiler plant. He has virtually no contact with the production employees and is supervised directly by Joe Nazzaro, the plant manager. In view of his salary, his engineering skills, and his lack of contact with production employees, I conclude that he is a professional employee. St. Vicent's Hospital, 223 NLRB 638 (1976). Accordingly, I conclude that the challenge to his ballot should be sustained. Void Ballot Challenge The parties challenged a ballot with a hole punched in the center of the square designating Local 1733.15 There were no other markings on the ballot. The Board held in Kaufman's Bakery, 264 NLRB 225 (1982): In keeping with the Board's long-established policy of attempting to give effect to voter intent when- ever possible, we will hereafter regard a mark in only one box, despite some irregularity, as presump- tively a clear indication of the intent of the voter. I conclude that, in view of the marking in the center of the Local 1733 box and the absence of any other mark or irregularity in any other box or on any other part of the ballot, the voter clearly expressed an intent to vote for Local 1733. I conclude that the ballot should be counted as a vote for Local 1733. The Challenges to Rafael Yi and Elisardo Pardo In view of my conclusion above that Yi and Pardo were unlawfully discharged by Respondent, I conclude 15 Board Exh. 1. COLUMBIA TEXTILE SERVICES 1051 that the challenges to their ballots be overruled and their ballots be counted Respondents 10(b) Defense Respondent contends that the amendments to the com plaint alleging the discriminatory discharges of Rafael Yi and Antonio Pardo were based on charges that were withdrawn by Local 1733 and thereafter refiled outside of the 10(b) period, and therefore time barred Respond ent further contends that the initial charges concerning the discriminatory discharge of Manuel Chavez and cer tarn 8(a)(1) conduct were filed outside the 10(b) period and therefore similarly time barred There are three unfair labor practice charges The first, Case 22-CA-13089, was filed by Local 1733 on March 2, 1984, alleging numerous violations of Section 8(a)(1) and (3), including the discharges of Antonio Pardo and Rafael Yi The complaint which issued there upon alleged a violation of Section 8(a)(3) by the dis criminatory discharge of Elisardo Pardo the unlawful elimination of overtime of Elisardo Pardo, Antonio Pardo, Rafael Diaz, and Rafael Yi, and the unlawful shift transfers of Antonio Pardo, Rafael Diaz, Rafael Yi and Manuel Chavez The charge allegations concerning the discharges of Antonio Pardo and Rafael Yi were with drawn On June 21, Cesar Diaz filed Case 22-CA-13310, al leging his unlawful discharge on December 30 A com plaint based on this charge thereafter issued On September 6 and 14, the charge in Case 22-CA- 13089 was amended to include the alleged discharges of Antonio Pardo and Rafael Yi On December 21, 1984, a second amended complaint issued alleging these dis charges and agency allegations concerning Modesto Burgas and Jose Velez, and certain 8(a)(1) allegations al legedly committed by Velez acting as Respondent s agent All of these allegations took place more than 6 months from the dates of the amended charges Similar ly, on January 14, the first day of trial, the complaint was again amended to include the alleged unlawful solic station of Local 560 cards by Respondent This allegation took place more than 6 months from the date of the amendment Whether such amendments are permitted has been the subject of recent litigation Ducane Heating Corp, 273 NLRB 1389 (1985) Winer Motors Inc, 265 NLRB 1457 (1982) These cases hold that charges withdrawn or dis missed cannot be reinstated beyond the 10(b) period except when there has been a fraudulent concealment by a respondent When there is a fraudulent concealment, the limitations period begins to run when the charging party knows or should have known of the concealed facts Ducane Heating supra at 1391 In this case there was a critical fraudulent concealment by Respondent According to the credited testimony of Costarelli, he, pursuant to the instructions of Sessa, a principle of Respondent, gave false testimony during the Board s investigation of the initial charge There is no doubt that at least in significant part as a result of such testimony there was insufficient evidence to establish the alleged discriminatory discharges of Antonio Pardo and Yi, and so they were withdrawn Similarly as a result of such false testimony, there was no knowledge as to the discriminatory nature of Chavez discharge, Velez and Burgas status as Respondents labor spies, or the addi tional 8(a)(1) activities described above When Costarelli decided to tell the truth, as evidenced by his testimony, the discriminatory nature of the discharges, the labor spy status of Velez and Burgas and the additional 8(a)(1) ac tivity became clear Moreover, in the entire case, all the allegations were significantly strengthened if not conclu sively proved by Costarelli s testimony The fraudulent concealment by Respondent in this case was monumen tal Accordingly, I reject Respondent counsel's conten tion that the above allegations concerning Antonio Pardo and Yi were time barred and could not be reinstated under the rationale of Ducane and Winer, supra Regard ing those new allegations concerning Chavez and the ad ditional 8(a)(1) activity, I conclude they could have been filed under the fraudulent concealment exception to Ducane Winer and others, supra, or on the theory that they were closely related to the outstanding complaint allegations NLRB v Dinion Coil Co, 201 F 2d 484 491 (2d Cir 1952) CONCLUSIONS OF LAW 1 Respondent is and has been at all times material an employer engaged in commerce within the meaning of the Act 2 Local 1733 is a labor organization within the mean ing of Section 2(5) of the Act 3 Local 560 is a labor organization within the mean ing of Section 2(5) of the Act 4 By interrogating its employees concerning their membership in or activities on behalf of Local 1733 Re spondent has violated Section 8(a)(1) of the Act 5 By threatening to close its plant if Local 1733 was selected by the employees as their collective bargaining representative, Respondent has violated Section 8(a)(1) of the Act 6 By threatening to discontinue overtime normally worked by employees if Local 1733 was selected by the employees as their collective bargaining representative Respondent has violated Section 8(a)(1) of the Act 7 By promising its employees improved benefits in their working conditions to coerce them from selecting Local 1733 as their collective bargaining representative, Respondent has violated Section 8(a)(1) of the Act 8 By granting employees raises and bonuses in order to coerce them from selecting Local 1733 as their collec tive bargaining representative, Respondent has violated Section 8(a)(1) of the Act 9 By engaging in surveillance of its employees' activi ties on behalf of Local 1733, Respondent has violated Section 8(a)(1) of the Act 10 By coercively forcing and requiring its employees to join Local 560 Respondent has violated Section 8(a)(1) of the Act 11 By discriminatorily reducing the overtime of em ployees Antonio Pardo, Manuel Chavez, Rafael Diaz Rafael Yi Elisardo Pardo and Sergio Aponte, Respond ent has violated Section 8(a)(1) and (3) of the Act 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 By discrimmatonly changing the workshift of em ployees Rafael Yi, Rafael Diaz Sergio Aponte, and An tonio Pardo Respondent has violated Section 8(a)(1) and (3) of the Act 13 By discriminatorily discharging Cesar Diaz Eli sardo Pardo, Rafael Yi, Manuel Chavez Ramon Tavares Rafael Tavares Francisco Mauro, Victor Castro, and Juan Valero, Respondent violated Section 8(a)(1) and (3) of the Act THE REMEDY Having found that Respondent has engaged in various unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act Because I have found that Respondent discriminatorily discharged and thereafter refused to reinstate those em ployees set forth in paragraph 13, I shall recommend that Respondent make whole those employees for any loss of earnings they may have suffered by reason of the discrimination against them from the date of their termi nation until the dates of their reinstatement or offers of reinstatement Additionally, I shall recommend that Respondent make whole the employees set forth above in paragraph 11 for their discriminatorily reduced overtime Backpay for the above employees shall be computed in accordance with the formula approved in F W Wool worth Co 90 NLRB 289 (1950) plus interest as set forth in Florida Steel Corp, 231 NLRB 651 (1977) I shall also recommend that Respondent expunge from its records any reference to their unlawful discharges to provide written notice of such expunction to those em ployees and to inform them that Respondents unlawful conduct will not be used as a basis for further personnel actions concerning them Sterling Sugars 261 NLRB 472 (1982) On these findings of fact and conclusions of law and on the entire record I issue the following recommend edis ORDER The Respondent Columbia Textile Services Inc Pa terson, New Jersey its officers, agents successors and assigns shall 1 Cease and desist from (a) Interrogating its employees concerning their mem bership in or activities on behalf of Dyers Local 1733, Amalgamated Clothing and Textile Workers Union, AFL-CIO (Local 1733) or any other labor organization (b) Threatening to close the shop if Local 1733 or any other labor organization is selected as the collective bar gaining representative of its employees (c) Threatening to discontinue overtime normally worked if Local 1733 or any other labor organization is selected as the collective bargaining representative of its employees (d) Promising its employees improved benefits in their working conditions to coerce them from selecting Local 1733 or any other labor organization as their collective bargaining representative (e) Granting its employees raises and bonuses to coerce them from selecting Local 1733 or any other labor organization as their collective bargaining repre sentative (1) Engaging in surveillance of its employees activities on behalf of Local 1733 or any other labor organization (g) Coercively forcing and requiring its employees to join Local 560 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization (h) Reducing the normal overtime of its employees be cause of their membership or activities on behalf of Local 1733 or any other labor organization (i) Changing the workshift of its employees because of their membership or activities on behalf of Local 1733 or any other labor organization (1) Discharging and thereafter refusing to reinstate its employees because of their membership in or activities on behalf of Local 1733 or any other labor organization (k) In any like or related manner interfering with, re straining, or coercing its employees in the exercise of their right to self organization, to form, join or assist labor organizations to bargain collectively through rep resentatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re fram from any or all such activities 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer to the employees set forth in paragraph 13 of the conclusions of law full and immediate reinstatement to their former or substantially equivalent positions of employment without prejudice to their seniority or to other rights and privileges previously enjoyed (b) Make the employees, set forth above in paragraphs 11 and 13 of the conclusions of law whole for any loss of earnings they may have suffered by reason of the dis crimination against them in the manner set forth in the remedy section of the decision (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 place of business in Paterson New Jersey copies of the attached notice marked Appen dix 17 Copies of the notice on forms provided by the 16 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 " If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board COLUMBIA TEXTILE SERVICES 1053 Regional Director for Region 22 after being signed by Respondent to ensure that the notices are not altered de the Respondents authorized representative shall be faced or covered by any other material posted by the Respondent immediately upon receipt and (e) Notify the Regional Director in writing within 20 maintained for 60 consecutive days in conspicuous places days from the date of this Order what steps the Re including all places where notices to employees are cus spondent has taken to comply tomarily posted Reasonable steps shall be taken by the