Peerless Importers, Inc.

PEERLESS IMPORTERS 755 Peerless Importers, Inc. and Wine, Liquor and Dis- tillery Workers, Local 1. Case 29-CA-13313 and conclusions4 and to adopt the recommended Order. June 7, 1989 BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS DECISION AND ORDER On August 30 and September 27, 1988, Adminis- trative Law Judge Joel P. Biblowitz issued the at- tached decision. The Respondent filed exceptions and a support- ing brief. The Charging Party filed limited excep- tions, a supporting brief, and a brief in support of the judge's decision. Both parties filed responses to the other party's exceptions. The General Counsel filed a letter in lieu of a brief, which supports the judge's decision and also contends that the Re- spondent violated Section 8(a)(3) and (1) of the Act. The discriminatee, John Schumacher, resub- mitted the posthearing brief filed with the judge. The, Charging Party also filed a motion to reopen the record. The Respondent filed a response to the Charging Party's motion and also filed a motion to stay the proceeding, or in the alternative to reopen the record. The Charging Party filed a response to the Respondent's motion. The General Counsel op- posed both motions to reopen the record. The Charging Party responded with an explanation of its request and a discussion of the Respondent's re- quest.1 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,2 findings,3 i The Charging Party's motion requests that we reopen the record to include alleged newly discovered police documents concerning the No- vember 10, 1987 incident and two still photographs taken from a video- tape, which is already part of the record The Charging Party claims that the police documents were made available during discovery in a civil suit brought by John Schumacher against the Respondent The Respondent asserts in its motion that the instant proceeding should be stayed pending resolution of the civil suit or, in the alternative, that the record be re- opened and the entire police file and the deposition transcripts of Detec- tives David Carbone and Joseph Heffernan be added and the two photo- graphs be excluded The Charging Party does not object to the introduc- tion of the entire police file We agree with the General Counsel that adding the police file to the record would not change the outcome of the case We also note that because the still photographs are already part of the videotape, which is included in the record, it is unnecessary to in- clude them separately Finally, we note that the Respondent had suffi- cient opportunity to secure the testimony of the two detectives and failed to do so in a timely manner (see fn 3, infra) Accordingly, we deny the parties' motions 2 The Respondent has requested oral argument This request is denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties We also deny the Charging Party's re- quest for attorney fees 3 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Peerless Im- porters, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 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 - The judge discredited Lawrence Butler's testimony in part because of a conflict between his testimony and a statement attributed to him in the complaint filed by the Respondent in state court against the Charging Party and two other unions, concerning the number of people involved during the November 10 incident, and because of an apparent conflict in Butler's testimony concerning his alleged identification of Schumacher on November 10 In adopting the judge's discrediting of Butler, we rely solely on the first reason A review of the record indicates that the judge may have misunderstood Butler's testimony concerning his attempt to identify Schumacher when he viewed two videotapes before the hearing According to the judge, Butler testified that Schumacher wore a dark coat over a checkered coat as he approached the truck on November 10 Although Butler's testimony on this issue is not entirely clear, it appears that Butler was simply attempting to identify Schumacher on videotape rather than trying to describe what Schumacher wore on the November 10 In any event, because we adopt the judge's other reason for discredit- ing Butler, and his reasons for crediting Schumacher's denial that he was involved in the November 10 incident, we find it unnecessary to deter- mine whether the judge correctly or incorrectly interpreted Butler's testi- mony in question In adopting the judge's findings that Schumacher was coerced into executing the agreement and release, we find that the Respondent's ac- tions toward Schumacher, i e , discharging him and then subjecting him to the police procedures and possible incarceration on November 17, when his wife was in the hospital and his own physical condition was poor, were coercive See, e g, Big Sky Sheet Metal Co, 266 NLRB 21 (1983) Under these circumstances, we find it unnecessary to pass on the question whether Schumacher could, in the absence of coercion, have waived his right to file charges with the Board 4 We reject the Respondent's contention that the judge erred in ad- journing the hearing before receiving the testimony of the two detectives who dealt with Schumacher at the police station The Respondent argued at the hearing and argues in its exceptions that the testimony of the two detectives is critical because it would demonstrate that Butler identified Schumacher to one of the detectives before November 17 and that nei- ther of the detectives told Schumacher that he could be detained for 2 to 5 days The Respondent also stated at the hearing that subpoenas were issued for the detectives on two occasions and that the detectives were not present because they were busy and also that the counsel for the General Counsel ended his case earlier than expected and the Respondent was caught off guard The judge rejected the Respondent's claims because he found that the detectives' testimony would be either cumulative or collateral, and also because the timeframe within which the General Counsel brought his case presentation to a close, and which the Respondent is complaining about, amounts to a difference of approximately 2 hours We agree with the judge's decision to adjourn the hearing A review of the record shows that the Respondent had sufficient notice of when the hearing would end and sufficient opportunity to contact the two detectives to ar- range for their presence at the hearing when the Respondent was to present its case We also note that although the Respondent claimed that it subpoenaed the two detectives during the first part of the hearing in May 1988, it failed to produce these subpoenas at the hearing when re- quested to do so by the judge 294 NLRB No. 59 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Craig Diamond, Esq., for the General Counsel Allen B. Roberts, Esq. and Richard Meyerson, Esq. (Rob- erts & Finger), for the Respondent. Victor Feingold, Esq., for the Charging Party. J. Warren Mangan, Esq. (O 'Connor & Mangan, PC.), for John Schumacher and witness J. Kenneth O'Connor, Esq. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on seven hearing days between May 3 and June 3, 1988. The complaint and notice of hearing, which issued on January 22, 1988, and was based on an unfair labor practice charge filed by Wine, Liquor and Distillery Workers, Local 1 (the Union), on December 7, 1987,1 alleges that Peerless Importers, Inc. (Respondent) violated Section 8(a)(1) and (3) of the Act by'discharging John Schumacher because of his activity on behalf of the Union. While admitting that it dis- charged Schumacher effective November 10, Respond- ent defends that he was lawfully terminated as a result of illegal strike misconduct and, further, that subsequent to his discharge, Respondent, the Union, and Schumacher executed an agreement and release "which resolved the allegations underlying this Complaint." On the entire record, including my observation of the witnesses herein, and the beefs received, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND AND CHRONOLOGY Respondent is a wholesale distributor of wines and liq- uors to restaurants and stores . It is housed in a large fa- cility on Bridgewater Street in Brooklyn, New York (the facility), and employs warehouse employees and clerical employees, who are represented by the Union, salesmen, who are represented by Wine, Liquor and Distillery Workers, Local 2 (Local 2), and drivers and helpers, who are represented by Local 816, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Local 816). These unions have represented Respondent's employees for a considerable length of time. Schumacher has been a member of the Union since 1958. Respondent's collec- tive-bargaining agreements with the Unions expired on October 31; both before and after this date it engaged in separate bargaining with each of these Unions, together with two other employers-Charmer Industries, Inc. (Charmer), and Star Industries, Inc. (Star) When no new ' Unless indicated otherwise , all dates referred to are in 1987 agreement was reached with any of the Unions by Octo- ber 31 (a Saturday) the Unions began a strike and picket- ing at the facility commencing November 1 or 2. New agreements with the Unions were not reached until Friday, November 13; after the agreements were ratified by the Union's membership the employees returned to work on Monday, November 1 or 2. The two principal dates herein are November 10 and 17 November 10 was the first day during the strike that Respondent used re- placement drivers to cross the picket line and make de- liveries. On that morning, a few minutes after departing the facility, replacement driver Lawrence Butler was, al- legedly, threatened and had his invoices forcefully taken away from him. Because of this, he was unable to make any deliveries and, upon returning to the facility, identi- fied Schumacher as the perpetrator On November 17, Schumacher appeared at a police precinct pursuant to a criminal complaint regarding this incident. After being fingerprinted and photographed, he signed an agreement and release in which he, inter alia, resigned his employ- ment with Respondent in exchange for which the charges were dropped and he was released. III THE FACTS A. Schumacher 's Union Activities and the Picketing Schumacher began working for Respondent in 1957 as an order clerk; he later became a helper and subsequent- ly a warehouseman, the position he held until November 1. He has been a member of the Union since 1958; in about 1980 he was elected shop steward and a member of the Union's executive board, positions he retained to the present time. As shop steward, he was the employ- ees' representative at the lowest level in attempting to re- solve grievances In addition, he was responsible for seeing that the contract was enforced. Since about 1982, Frank Maccia has been Respondent's director of oper- ations. Schumacher had a difficult time with Maccia re- garding learning about new employees so that he could give them applications to join the Union after 30 days of employment. Whenever he complained to Maccia about this difficulty, Maccia told him that he did not want the employee going into the Union until he saw how he worked out, and that he would fire the employee prior to his 60th day of employment (when their temporary status ended) if Schumacher insisted on putting him in the Union. On about August 1, Frank Minichello, vice president of the Union, instructed Schumacher to call into the union office the names of all new employees em- ployed by Respondent so that the Union could be certain that they were receiving the benefits specified in the con- tract and that the proper contributions were transmitted to the Union. Between that time and October 31 Schu- macher called in employees' names on a regular basis; since Respondent refused to provide him with the names of new hires he "used to go hunting around the ware- house finding new employees." When Maccia com- plained to him about it, Schumacher told him that he was doing as Minichello had instructed him. Another "constant grievance" that Schumacher had to attend to was management performing bargaining unit work, al- PEERLESS IMPORTERS though he never participated in any grievances on this subject. , Picket lines were set up at the facility, jointly, by the Unions; Schumacher was appointed picket captain for the Union and, in that regard, arranged the picketing schedule for the warehouse employees. Sometime during the first week of the strike, John Magliocco, an officer and owner of Respondent, after driving in to the facility, told Schumacher that Respondent was going to ship out of the facility and that he was welcome to return to work if he wished. A few days later Schumacher and, apparently, the other employees each received a tele- gram from Respondent reiterating this intention. On No- vember 9 this intention became more immediate to the tickets when they observed two vans, which they had not previously seen, driving into the facility; they as- sumed that these vans contained replacement drivers B. Events of November 10 The events of November 10 are crucial herein. It began as a day like any other day (at least since Novem- ber 2); Schumacher (who has never driven a car) was picked up by his friend and fellow employee, Michael Caffrey, a member of Local 816, and they arrived at the facility about 6 a.m About 6 a m. a large number of pickets appeared. About that time, Minichello and Union President George Orlando told him that they wanted to make an announcement to the pickets about handbilling Respondent's customers. The pickets separated by union and Orlando informed the union members present to ap- proach Respondent's cutomers and ask if they would assist the Union, and to give them a handbill. Handbills were distributed to some of the pickets and they were told that when, and if, Respondent's trucks drove out of the facility's gates to make deliveries, they should "mix and match" as much as possible with pickets belonging to other unions and follow Respondent's trucks and handbill the customer receiving the delivery. Schu- macher testified that about 8:30 a in. he saw what he be- lieved to be the replacements enter the facility (with a resulting barrage of eggs and curss) and saw trucks moving in and out of the loading bays About 9 a.m. the trucks began driving up to, and lining up at, the gate, to- gether with police cars and cars of Pinkerton Security. Anticipating that the trucks would soon be leaving the facility to make deliveries, Schumacher announced to those nearby to be ready to get in their cars to follow the trucks and, whenever possible, to mix and match with members of other unions Schumacher then told Caffrey to get to his car and when the last trucks left he would meet him there and they would pick one of Re- spondent's trucks to follow and handbill the customers the truck was delivering to; Schumacher testified that he said this to Caffrey about 20 minutes before the trucks pulled out. At about 9:20 a.m. the trucks (together with Pinkerton cars and being lead by two police cars) drove out of the gate in single file and onto the street. After about seven or eight trucks left in this manner, two trucks remained in the yard, Schumacher told a fellow employee and union member, John Del Riccio, who was with him at the time, to wait with him to see if those two trucks leave. About 10 minutes later they did leave 757 and the gates were closed. Schumacher then walked with Del Riccio to find Caffrey; he did not see Caffrey, nor did he see Caffrey's car where it was parked when they arrived that morning. Instead he met Ruth Gates, the Union's shop steward for the clerical employees. He asked her if she had seen Caffrey and she said that she did not know who he was. He spoke to her for a minute or two when a car pulled up to them. Frank Hallenback, an employee of Respondent and a member of Local 816, said that one of Respondent's trucks had an accident with a car driven by a picket, Charlie Armenia.2 Schu- macher and Del Riccio then continued looking for Caf- frey, but could not locate him. They did see employee (and Local 816 member) Salvatore Mattarelliano in his car. Schumacher told him that he was supposed to meet Caffrey, but they could not find him and he asked him if he wanted to team up with them to follow trucks and Mattarelliano agreed, and they got into his car. Caffrey testified that shortly before the trucks left the facility, he told Schumacher that he was going to get his car and that he would pick him up. He walked to his car with the idea of being in his car prior to their leaving so that he could move quickly and prevent getting stuck in traffic; instead a police officer blocked his car and would not let him move it until all Respondent's trucks had passed-about 15 minutes At that time he drove to where he was supposed to pick up Schumacher, but he could not find him- "I really had no direction. I didn't know what to do." He drove around the area for about 10 minutes looking for one of Respondent's trucks to follow; finding none, he returned to the facility. Mattar- elliano testified that he arrived at the facility about 3 p in. that day and parked his car very close to the main gate As the first trucks were leaving the facility, he, Schumacher, and Del Riccio decided to leave together and they walked a short distance to his car. Hallenback told them of the accident involving Armenia and one of Respondent's trucks and they began driving in the area to attempt to follow one of Respondent's trucks and to see what occurred with Armenia. Schumacher and Mattarelliano testified that after leav- ing the area of the facility they saw some of Respond- ent's trucks prior to getting onto the Brooklyn Queens Expressway; the trucks were double file and caused traf- fic to back up After entering the expressway they lost the trucks in traffic and exited the expressway at Queens Boulevard, believing that was a likely route for Respond- ent's trucks to follow. Finding none of Respondent's trucks they returned to the facility about 45 minutes later, having made no stops (other than for traffic) along the way. Mattarelliano dropped Schumacher and Del Riccio at the facility and returned home. Schumacher testified that he never threatened, or took invoices from, any of Respondent's drivers on that day.3 2 Corrado Armenia, an employee of Respondent, followed one of Re- spondent's trucks as it left the facility that morning About 2 minutes later one of Respondent's trucks struck his car and continued driving Armenia had to follow him in order to stop him s There is extensive testimony from Schumacher and Caffrey regarding their activities after meeting at the facility that morning about 10 15 a in Briefly, after meeting at the premises they were informed by a Charmer Continued 75$ DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's version of the invoice incident is sup- plied by the testimony of replacement driver Lawrence Butler.4 He testified that prior to leaving the 'facility he was given a clipboard containing four or five invoices, each listing the customer and his address, as well as the items to be delivered and a sheet of paper containing di- rections to the customer's location, this was because nei- ther he nor the guard who accompanied him knew the area He left the premises between 9.20 and 9.30 a.m. Within 3 or 4 minutes he realized that he was lost and he stopped under the Brooklyn Queens Expressway to look over the directions; as soon as he stopped his guard got out of the truck to buy a cup of coffee at a diner across the street from where the truck was parked In the next minute, the -incident underlying this case occurred. Be- cause Butler's testimony and credibility is crucial herein, his direct testimony and testimony under cross-examina- tion will be discussed separately. He testified that he stopped, the truck in order to read the directions5 at the ti pVof ,the clipboard; his guard immediately got out of thet truck 'to get coffee. While looking at the directions, he ."glanced out" and saw behind his truck the tail end of'a white car with a blue Monte Carlo parked behind it.6"He looked up and saw a man coming from the front of'tlie truck; the man was cursing him and grabbed the driii&'s'door handle attempting to pull the door open. Butler attempted to lock the door, but the lock did not work. He then pulled at the door the other way but the assailant opened the door because "he was more power- fu'l''ihdn me using one hand." After pulling the door open he said: "Do you know they've got a strike going on?" He asked Butler where he was going and Butler said that he did not know. He said: "Let me see your invoices" and' as Butler attempted to move them away he snatched them out of his hand, saying: "Why are you trying to take my job?" During this period about five or six other people were standing by the truck; one of these men (whom he could not identify) said that they could not touch him while he was in the truck, but if they saw him off. duty they would "hurt me bad " At the hearing (and after returning to the facility, he identified Schumacher's picture, as described, infra) he identified Schumacher as employee about 10 30 a in that one of Respondent 's trucks was making a delivery at a nearby warehouse Schumacher, Caffrey, Del Riccio, and fellow employee Charlie Sackstem got into Caffrey's car, and followed this truck until midafternoon During this period, when the truck stopped, Schumacher gave a handbill to the customer, together with an explanation of the situation and a request for assistance As the evidence establishes that the taking of the invoices and the threats to the replace- ment driver occurred about 9 25 or 9 30 a in , Schumacher's whereabouts after 10 30 a in are irrelevant to this matter and this extensive testimony will therefore not be discussed 4 Russell Tonnesen, the president of a private investigations company, also testified for Respondent Basically, he testified that on November 10 eight trucks left the facility beginning about 9 21 a m They moved con- tinuously and the process took about 5 minutes S In an affidavit, dated November 10, accompanying an Order to Show Cause on motion for temporary and/or preliminary injunction, filed on behalf of Respondent (the complaint), Butler stated, inter alia "I drove a few blocks when the truck was blocked by two cars Five men jumped out of those cars One of them forced my truck door open " Schumacher is not named in this affidavit 6 Mattarelliano testified that he drives a silver 1975 Pontiac Catalina Caffrey drives a blue 1976 Chevrolet Bel Air, Schumacher does not drive the individual who took the invoices; he could not iden- tify any of the other individual who were present during the incident. Schumacher=then went across,the street to a green car and drove away. The others got into a car and left. The guard returned to, the truck and they returned to the facility. Under cross-examination, Butler testified that during the incident he and Schumacher were "face to face, I was looking at his face [through a closed window]" and he "can still picture what he was wearing at the time, he had a big checker square white into his coat"-a grey and white square jacket. The witness testifying for Re- spondent just prior to Butler, Tonneson, identified a vid- eotape he made that morning showing the, trucks leaving, with glimpses of the pickets; that tape ' shows Schu- macher wearing a black jacket while on the picket line. Robert Keehner, another picket with grayish-white hair and a strong resemblance to Schumacher, is wearing a black and white (or gray and white) squares jacket on the picket line; his testimony will be discussed, infra. After being shown this tape (which he testified he had been shown earlier, along with another videotape, by counsel for Respondent), Butler testified that "the checks on that other jacket were smaller." Subsequently, under questioning by Schumacher's attorney, Butler testified that when Schumacher was getting out of the car (prior to approaching him) he (Butler) could see Schumacher buttoning up his coat: on top was the green or black jacket he was wearing on the videotape; beneath it was the checkered jacket. Butler testified that he could not be mistaken in his identification of Schumacher: "when he came to me, we were only like a foot and a half from each other, so I got a good look at his face " On returning to the facility Butler reported this inci- dent to his supervisor and described the individual who took the invoices as in his late forties to mid-fifties, grey- blonde hair, mustache, and stocky build.' His supervisor gave him two big stacks of cards to look over, contain- ing more than 50 pictures of employees. Butler looked at these pictures by himself (although his supervisor re- mained in the room) and identified Schumacher's picture as the individual who took the invoices; he saw some "other faces that look familiar but I wasn't too sure " He had no clear recollection of whether he was shown these pictures before or after preparing the affidavit, referred to, supra, but he believes that he prepared the affidavit first. After he signed the affidavit he was asked detailed questions about the incident. There are two other versions of this incident testified to by Keehner and Frank Gasparino, both picketing em- ployees of Respondent. Keehner testified that he arrived at the picket line about 6 a.m. the day in question; after the trucks left he drove (by himself) to a nearby bar to have a few beers. The bar is about a half block from the diner referred to, supra. On his way he saw one of Re- spondent's trucks parked under the expressway. He parked his car at the bar and walked to the truck. He said to the driver something like, "do you know what Both Schumacher and Keehner have gray-whitish hair and mustache and are in this age category Schumacher has a stockier build than Keehner PEERLESS IMPORTERS the hell you're doing" and the driver, whom he de- scribed as black, thin, and "seemed to be tall the way he sat in the seat," said that he did not, that he was lost "And with that he held out his clipboard. I took the clip- board and I looked at it." Keehner then said . "I'm not here to help you, you're taking my god damned job" and called him a scab. The driver then grabbed the clipboard out of his hand and rolled the window up quickly. That was the extent of the incident. On November 19 Keehner called Schumacher and told him of this incident; Schu- macher told Minichello about the call. Gasparino (who looks nothing like Schumacher) testi- fied that on the morning in question he walked to work and arrived at the picket line about 7 a.m.; after the trucks left the facility he walked (by himself) to the diner to have breakfast. When he got there he saw one of Re- spondent's trucks parked across from the diner, under the expressway The driver of the truck was a tall black man, alone in the truck. When he approached the truck, the driver told him that he was lost and asked him for directions, as,he handed him the clipboard with invoices and directions on top. Gasparino said: "Do you know who I am? I 'work for the company and you're taking my job" and began cursing at him. The driver said that he did not want any trouble and asked Gasparino to give him back the invoices; Gasparino walked away with the invoices on the clipboard and had breakfast in the diner. While there, he saw on the four invoices that the truck had four scheduled stops and 537 pieces to deliver. After leaving the diner he threw the invoices into a garbage pail. C. Events of November 13 The parties had a court appearance scheduled in Brooklyn on November 13 pursuant to the complaint re- ferred to, supra, which was served on the three unions on about November 11; all three Unions and some of their officers are named defendants.8 On the prior day, Victor Feingold, the union attorney, told Schumacher and Gates to be at the court the following morning. On arriving at court the unions were served with a verified amended complaint (the amended complaint). This amended complaint refers to the incident as follows: 31. Mr. Butler had driven only a few block [sic] from the Peerless facility when the truck was blocked by two cars. Five men jumped out of those cars. One of them forced the truck door open. 32. The men complained that Mr. Butler was taking their jobs away and threatened him with words to the effect. "You must not like to live if we catch you walking on the street on your own time, you'll be hurt " 33. At the time, Mr. Butler was holding the papers (the list of his customer stops, the customers' addresses and telephone numbers, and a map). One of the men, John Schumacher, a member of Local One, grabbed the papers out of his hand, and then B The law firm of O'Connor & Mangan represented Local 816 (their regular client , apparently) in this proceeding as well as the ongoing nego- tiations 759 the five men hurriedly got back into their car and sped away Schumacher testified that on that day, while waiting in the courthouse, he walked past Paul Margiotta, manager of Respondent, who was standing with three black men whom he did not know. As he walked past them, Mar- giotta put his hand. on one of the men and said "That's him." About a half hour later Vincent D'Acunto, an offi- cer of Local 2, approached him with the amended com- plaint in his hand, and said, "Hey John, you hit the hit parade." Schumacher asked him what he was talking about and D'Acunto said that his name was in the amended complaint, Schumacher asked if he was kidding and D'Acunto showed him the allegations in the amend- ed complaint. Schumacher asked what it was about and D'Acunto said that it had to do with taking invoices D'Acunto testified that on the morning of November 13, while at the court, he was standing alongside of Mar- giotta, with two black men (whom D'Acunto believed to be "professional strike breaking people") standing along- side Margiotta. At one point Schumacher and another gentleman walked past them and, when they did, Mar- giotta said to one of the black men next to him: "That's the guy,"-pointing to Schumacher Sometime later that morning he was served with the amended complaint; it was only after reading the allegations in it-"more or less a light bulb went off in my head, and I said no wonder he pointed to him." After reading the amended complaint he told Schumacher. "Well, you're on the hit list" Schumacher said- "Me-where?" and D'Acunto showed him the paragraph of the amended complaint where he was named. Schumacher asked: "What are they putting my name in there for?" Minichello testified that on that day the unions were served with the amend- ed complaint; the allegations referring to Schumacher were the first he heard that Schumacher was involved in such an incident. He heard more about it later, that evening, as will be discussed, infra Butler testified that at the direction of Respondent he appeared at the court in Brooklyn on November 13; while there, when he saw Schumacher, he told the attor- ney for Respondent- "That's the one." Nobody said to him when Schumacher walked by "that's the one" or words to the effect. Negotiations between Respondent and the Unions took place on the evening of November 13; the Union asked Schumacher to attend the session so Caffrey drove him to the site where the negotiations took place. When he first arrived he learned from Anthony Morales, the Local 816 shop steward and Kenneth O'Connor, the at- torney for Local 816, that they had arrived at an agree- ment with Respondent; a part of that agreement provid- ed for arbitration of the cases of the Local 816 members who were discharged during the strike. While waiting for the conclusion of the Local 816 negotiations Mint- chello and Orlando were called into a meeting with Nino Magliocco, an officer and owner of Respondent, Re- spondent's attorney, Allen Roberts, and Respondent's house counsel Anthony Marsloe. Magliocco told them 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he was firing9 Schumacher for stealing Respondent's property, but that he would be willing to arbitrate the matter. Marsloe then suggested that they use George Sa- batella, of the New York State Mediation Board (who was mediator at the time) as the arbitrator in the matter and the Union agreed. Minichello and Orlando then told Schumacher that Magliocco had told them that he was to be fired for stealing Respondent's property, Schu- macher expressed his innocence of the charge and Orlan- do told him not to worry, they had agreed to arbitrate the matter and they had agreed upon Sabatella as the ar- bitrator 10 By letter dated November 16, Respondent wrote Schumacher. "This will confirm that your em- ployment with Peerless Importers, Inc. terminated effec- tive November 10, 1987." D. Events of November 16 and 17 About 10 p.m. on November 16 two policemen came to Schumacher's home and told him that he would have to answer some allegations regarding the strike at the fa- cility; they gave him the names of Sergeant Detective Heffernan and Detective Carbone and their phone num- bers. He immediately called the precinct and was told that they could not tell him what the allegations were- he would have to see the detectives the following morn- ing. He told his wife to go to bed because she was going to the hospital the following morning for surgery. i i Schumacher then called Orlando and (after apologizing for calling at the late hour) told him of what just oc- curred; Orlando said that he would call the Union's at- torney Feingold and that either he or Feingold would call him back. A few minutes later Orlando called back and said that he felt that Schumacher should have an at- torney with him; he mentioned Ken O'Connor and one other name. Schumacher said that he had met O'Connor and asked if Orlando could arrange it. Orlando said that he would do so and that O'Connor would call him the following morning. Schumacher took his wife to the hospital the following morning about 6:30 a.m.; he stayed with her until about e An affidavit of Minichello states thst Maghocco told him that Schu- macher was going to be arrested Minichello testified, however, that his best recollection is that Maghocco said Schumacher would be fired I find the letter is more likely since they immediately discussed , and agreed upon , arbitration of the discharge snd Schumacher testified that Mini- chello subsequently told him that he was going to be fired 10 By letter dated November 16, to Sabatella, the Union requested the date, time, and place of heanng regarding Schumacher's discharge By letter dated November 17, Sabatella informed the parties that the hearing would be expedited and they would soon hear from him with a hearing date "in the new future " Subsequent thereto, Respondent filed a motion to stay this arbitration on the ground that Schumacher executed an agree- ment and release to Respondent on November 17 To date, there has been no arbitration of the matter and Schumacher has not returned to Respondent's employ I i Schumacher's wife had been having hemorrhoid problems for a number of years, in about October the problems intensified At that time, a doctor recommended laser surgery, which she initially refused The problem got worse in November and at an appointment with the doctor on November 13, the doctor said that it had ulcerated and would need immediate surgery She went to the hospital for "pre-op" on Sunday, No- vember 15, and returned home that day with an appointment for surgery on November 17, the first day that the hospital had an available bed She was put on a liquid diet and was instructed to take two or three enemas daily 10 a.m., at which time he left, arriving home about 10:30 a.m. Shortly after returning home he received a call from O'Connor who said that he had spoken to the Union about his situation and that he would pick him up at I p.m. and take him to the station house. Prior to that O'Connor received a call from Vera Catalli, secretary- treasurer of the Union, saying that he would be receiving a call from Feingold or Schumacher, who was in need of a criminal attorney She said that he had been recom- mended by Feingold and that there was some urgency to the matter. Since he was not in his office he asked for, and received, Schumacher's telephone number and called him. Schumacher said that he had a problem and had to appear at the 90th precinct and needed a lawyer to be with him; he gave O'Connor Heffernan and Carbone's name and telephone numbers. O'Connor told him that he would pick him up at his home at 1 o'clock and called Carbone and told him that he would be coming to the precinct with Schumacher early that afternoon. After O'Connor picked him up, Schumacher told him that he had just dropped his wife at the hospital and asked what was going to happen. O'Connor said that] lie' would have to see what the allegations were. Schumacher told him that the only thing he could think of was the stealing in- voice allegation he was shown in the amended complaint and that he had not done it O'Connor then "questioned him with respect to his pedigree"-any previous arrests or convictions, marital status etc. Schumacher told him that he had never been arrested and was, married with four children, the youngest a teenager. Schumacher asked what would happen at the precinct; O'Connor said that he would be questioned by the detectives and he would give his side of the story. He had the right "to take the Fifth," but he would not recommend it in this situation. Schumacher asked O'Connor what his repre- sentation would cost. O'Connor said that he did not know, he would see what happened 12 O'Connor and Schumacher arrived at the 90th pre- cinct about 1:30 p.m.; they were brought in to Heffer- nan's office and he told them that the complaint13 in- volved the theft of invoices from a replacement driver of Respondent and the threat of bodily harm to the driver. 12 O'Connor and his law firm represent Local 816, he has never repre- sented the Union, although he knows their officers and their attorney He was introduced to Schumacher at the courthouse on November 13 while they were waiting for the proceedings to begin He has no agreement with the Union to pay for his legal services in representing Schumacher, in fact he has no formal agreement with Schumacher regarding a fee for his service-"under all the circumstances, I would never send him a bill for what happened on the 17th " On the agreement and release executed on that evening (signed by Schumacher and a representative of Respond- ent) O'Connor signed as the representative of the Union He testified that he did not realize that he was signing on behalf of the Union and did not notice it until later "I may have noticed at the time, and felt it was, well, it's not consequential, because the whole document is between Schu- macher and Peerless, but I have no recollection I just assumed I was just signing as a witness I' There is an unanswered question of who, if anyone, filed the com- plaint Butler testified that he did not file a complaint against Schumacher and counsel for Respondent alleged that he did not have a copy of the complaint In addition, a subpoena by counsel for the Charging Party of the New York City Police Department failed to produce the complaint What is clear, as stated, infra, is that later that day Butler had to sign to withdraw the complaint PEERLESS IMPORTERS O'Connor attempted to have the police "slow down" the proceeding in the hope that the matter would be settled, as the new contract was agreed to a few days earlier; this attempt was unsuccessful. Schumacher was asked if he would answer questions about the incident, and O'Connor said that he would. He was asked questions about the incident which Schumacher answered, denying any involvement; this lasted for about 15 minutes, Hef- fernan then proposed a lineup; if the complainant could not identify Schumacher he would be released. O'Con- nor agreed that was a possible solution to the difficulty. Schumacher asked O'Connor "How long is this going to take?" O'Connor testified: I then explained to him that the line-up would take a couple of hours but that if it was successful, he would be able to go home, and that might well be the end of the case. I indicated to him that if the complainant identified him in the line-up , then he'd be arrested, and he would spend that night in jail, and probably the next night; that it was my experi- ence with Central Booking in Brooklyn that he'd be there for a minimum of two nights. He was obviously disturbed by that and indicated to me he didn't like that concept or that idea at all 14 O'Connor then told Schumacher that he would have to go to Central Booking and, subsequent to that, possibly before a judge. That if he was identified and arrested he would be in jail for one or two nights, and "my experi- ence with Central Booking in Kings [Brooklyn] is that two nights is not unusual." Schumacher said that he could not spend that much time in jail with his wife in the hospital. About that time Carbone told Schumacher that they would have to take his picture; he stood up against the wall while he was photographed from the front and the side Carbone also fingerprinted him. Schu- macher then said to O'Connor: "My wife's in the hospi- tal, I got medical problems.15 This is all bullshit. You've got to get me . . . out of here. What do I have to do to get out of here?" O'Connor then told Schumacher that he would call the Union to see if the matter could be set- tled and withdrawn. He spoke to Minichello and told him of the situation at the precinct and it "looked like a potential arrest here" and that Schumacher was very upset, and wanted to get out of jail. He asked Minichello to have someone from the Union call Respondent to see if the situation could be straightened out. He called Nino Magliocco and asked if he would drop the charges, Mag- 14 Respondent's brief (at 11) states that O'Connor liked the idea of a lineup and recommended it to Schumacher, who "rejected it, however, and O'Connor, although he tried, could not convince Schumacher to change his mind " This contention is not supported by the record evi- dence Schumacher's displeasure, as expressed to O'Connor, was not about the lineup , but with spending a night or two in jail should he be identified by the complainant The fact that the police were proceeding with the lineup by attempting to locate men who resemble Schumacher, establishes that Schumacher did not "reject" the idea 15 In about 1984 he had an operation that removed all but a small part of his large intestine and connected his small intestine to his large intes- tine For the following 5 months he used a colostomy As a result, he has to defecate almost immediately after eating In addition , at the time, he was taking pills daily for high blood pressure and gout 761 liocco said: "The only way John Schumacher could get out of jail, or I will drop the charges [is] if he quits his job. I don't want John Schumacher working for me." Minichello then called O'Connor at the precinct and told him that Magliocco said that they would drop the charges if Schumacher resigned his employment with Respondent. He also told O'Connor that the Union does not recommend that he "throw away 30 years and resign." O'Connor then told Schumacher of Respond- ent's offer ("you've got to resign. If you resign, they'll withdraw the charges") and Minichello's recommenda- tion, he also told him that he felt "under the circum- stances, he would be foolish to resign." Schumacher said: "Fuck them. If they don't want me, I'll sign it." O'Con- nor told him that he was being foolish throwing away 30 years of seniority. Schumacher told him: "Kenny, I can't stay here." O'Connor then called Minichello and told him of Schumacher's decision; Minichello called Nino Mag- liocco and told him that Schumacher was willing to resign pursuant to his offer, Magliocco told him to call Respondent's counsel, Roberts, and tell him the same thing. He did this and Roberts said that he would handle it. Minichello then called O'Connor and told him to speak to Roberts. He called Roberts and told him that Schumacher was willing to accept the deal of resigning in exchange for the criminal charges against him being dropped. Roberts told him that he was "faxing" to Re- spondent a general release for Schumacher to sign. O'Connor informed Carbone and Heffernan that the par- ties had reached an agreement to have the charges with- drawn and they said that they would attempt to acceler- ate the usual procedure. About 5 p.m, Schumacher was transferred to Central Booking together with another prisoner, Carbone, and two other policemen, the other prisoner was handcuffed. When he got to Central Book- ing he sat with prisoners who were chained to a bench, he had his picture taken again, with a number, and his pockets were emptied. After this, he was returned to his cell. About 7 p.m. Carbone took him from the cell, tell- ing him that Respondent's representatives were there. Marsloe, Butler, and one other individual were there on behalf of Respondent, Butler spoke to an assistant district attorney and signed a statement (as complainant ) stating that he no longer wished to press charges. The assistant district attorney and police officer also signed the state- ment, which stated that the charges were dismissed. O'Connor was given copies of the agreement and re- leased 16 ("I had expected to see a Blumberg form, but I, 's Under this agreement and release , Respondent paid Schumacher $1 It begins by stating that it shall not be construed as an admission by Re- spondent of any liability or wrongdoing Schumacher, by this document released Respondent from any possible claim or action, including "viola- tion of any local, state or federal law " Schumacher also agreed to release Respondent from all claims, not only on his behalf, "but also those which may have been or may be made by any other person or organization on his behalf" He also agreed to withdraw, with prejudice, the pending ar- bitration on his behalf and never to seek or accept employment with Re- spondent Without going into any more detail (Schumacher's obligations take up four pages of this agreement ), Respondent's only obligation under the agreement (other than paying him $1) is that if a prospective employ- er of Schumacher requests an employment reference from Respondent, Respondent "shall respond by stating the dates of Schumacher's employ- ment and his job classification " 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I saw this rather extensive agreement and release") and read it. When Schumacher came downstairs, O'Connor told him that he had received a copy of the withdrawal of the charges and "This is what you have to sign." Schumacher asked him if he had read it and he said that he had. Schumacher signed it without reading it and O'Connor then signed it as well (on the line stating, "Wine, Liquor & Distillery Workers Union, Local 1"). O'Connor gave the signed agreements to Marsloe and he and Schumacher left the building about 7:30 p.m. Be- cause visiting hours at the hospital were over at 8 p.m., he went directly home and called the hospital instead. Respondent's employees returned to work on Monday, November 16; on the following morning the Union's as- sistant steward, Ralph Serega, told Gasparino that Schu- macher had been fired or arrested (Gasparino was not sure which) for stealing Respondent's invoices the prior week. Gasparino told Serega that he felt bad because he was the one who took the invoices. Gasparino then told Sal Geneva, Respondent's warehouse foreman, that it was he who took the invoices, not Schumacher, and that he wanted him to tell that to Magliocco; Geneva said that he would tell him. He testified hat he then called Schumacher either that morning or that evening (Schu- macher testified that he received this call from Gaspar- ino at 9 p.m. that day when he returned from Central Booking) and told him that he was the one who took the invoices. Schumacher said that he would call Minichello the following morning and asked Gasparino to do the same. Gasparino called Minichello the next morning and told him that it was he, not Schumacher, who took the invoices the prior week. Minichello then called Marsloe and told him of what Gasparino said; Marsloe told him that he had to speak to Roberts. He told Roberts of the conversation and Roberts said he had to speak to Mag- liocco. He called Magliocco and told him that he had re- ceived a call from one of his employees saying that he, not Schumacher, took the invoices the prior week; "Mr. Magliocco, you're burying the wrong guy." Magliocco said, "Johnny Schu cannot work for me. He resigned and he can't come back to work for me." Magliocco also told him that the individual did not fit the description as he had black hair (as Gasparmo does) while the one who took the invoices had white hair. Schumacher's dis- charge was never rescinded as a result of this call and Gasparino's employment with Respondent was never af- fected as well. Schumacher sent the following letter, dated November 20, to Respondent: Due to the circumstances that I was confronted with on November 17, 1987, and the coercive effect thereof on me, both physically and mentally, I was caused by the representatives of Peerless Importers, Inc. ("Peerless") to execute both an Agreement and Release ("Release") as well as a letter to Wine, Liquor & Distillery Workers Union Local One ("Local One"), dated November 17,1987 ("Letter"), withdrawing all grievances and claims against Peer- less. I was incapable, at the time that I signed both the Release and Letter, of using good reasoning and judgement . After I had the opportunity to evaluate the facts, I realized that I have been extorted by a climate of intimidation and fear, created by Peerless, to surrender valuable property rights . I notified Local One of my desire to rescind both the Release and Letter and to Support Local One's dispute against Peerless resulting from the termination of my employment by Peerless. This document expresses my desire to rescind the Release and Letter. A copy of this letter has been provided to Local One. Analysis There can be no question of the legal principles to be applied herein. In NLRB v. Burnup & Sims, 379 U.S. 21 at 23 (1964), the Supreme Court stated (citations omit- ted): Over and again the Board has ruled that § 8(a)(1) is violated if an employee is discharged for miscon- duct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred. In sum, § 8(a)(1) is vio- lated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. - The law has not changed since it was set forth by the Board in Rubin Bros. Footwear, 99 NLRB 610, 611 (1952): We are now of the opinion that the honest belief of an employer that striking employees have engaged in misconduct provides an adequate defense to a charge of discrimination in refusing to reinstate such employees, unless it affirmatively appears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established, the Gener- al Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct. The employer then, of course, may rebut the General Counsel's case with evidence that the unlawful conduct actually did occur. At all times, the burden of proving discrimination is that of the General Counsel. See also Desert Inn Country Club, 275 NLRB 790 (1985). In General Telephone Co. of Michigan, 251 NLRB 737, 739 (1980), the Board stated that an employer's burden of establishing an honest belief requires more than his mere assertion that he had an honest belief: "Rather, it requires some specificity in the record, linking particular employees to particular allegations of misconduct." In doing so, an employer "may premise its belief of striker misconduct on reports from guards and other written re- ports" which specifically identify the wrongdoers. Lou- isiana-Pacific Corp., 282 NLRB 1303 (1987). Schumacher was clearly engaged in protected concert- ed activities on November 10; he had been the Union's shop steward for 7 years, he was participating in the PEERLESS IMPORTERS strike against Respondent and was the Union's picket captain. Respondent's alleged "honest belief' that Schu- macher was engaged in unprotected activity was based solely on the testimony of Butler, who testified that when he returned to the facility on November 10, short- ly after the incident, he was given a large number of pic- tures of Respondent's employees and, without prompting from anybody, chose Schumacher's picture. I find that this testimony establishes that, at that time, Respondent did have an honest belief that Schumacher was the wrongdoer. Under Rubin Bros., supra, the General Coun- sel must then come forward with evidence that Schu- macher was not the wrongdoer; I find that he has done so. I found Schumacher to be a very credible witness who testified openly and honestly about all the events; his only problem was his inability to answer a question briefly. I therefore find credible his denial that he was in- volved in the incident I was also very impressed with Mattarelliano whom I found to be an extremely honest and believable witness As both testified that they were driving on the Brooklyn Queens Expressway and Queens Boulevard, without stopping, during the period that the incident occurred, I find that Schumacher was not in- volved in the incident with Butler. Counsel for Respond- ent, in his brief, correctly points to discrepancies in the testimony of Schumacher and Mattarelliano and Schu- macher and Caffrey in order to undermine their credibil- ity. However, such discrepancies are to be expected when witnesses are testifying 6 months after the events transpired, and the event (whether all the trucks left to- gether, the exact route they drove after leaving the facil- ity, and what time Caffrey returned to the facility) may not have appeared that important at the time. In addi- tion, I had plenty of time to observe Schumacher as he was on the witness stand for 3 days, principally during cross-examination; these observations convince me that if he has a vice it is compulsive talking, not a propensity toward violence. Finally, as set forth, supra, Schumacher suffers from a number of debilitating medical problems; I cannot imagine him engaging in a push-pulling contest of the truck door with a driver many years his junior, nor can I imagine him winning that contest. An additional reason for this finding is that, although I initially found Butler's testimony fairly credible and reasonable, it went downhill after he was shown the videotape of the picket line on November 10 Initially he testified that he could identify Schumacher because he was facing him close up through the window on the driver's door of the truck, and that Schumacher was wearing a checkered jacket After being shown the videotape which showed Schu- macher wearing a solid black jacket (and Keehner wear- ing a checkered jacket) Butler testified, for the first time, that when Schumacher was getting out of the car prior to coming to the truck, he could see him buttoning up his coat with a green or black jacket on top and the checkered coat beneath, I find this highly unlikely. Also impairing his credibility was the conflict between his tes- timony about the incident and his description of the inci- dent in the complaint where he stated: "I drove a few blocks when the truck was blocked by two cars. Five men jumping out of those cars " His testimony never re- ferred to his being blocked by two cars or five men 763 jumping out of the cars. For all these reasons, I find that Schumacher was not the wrongdoer in the incident in- volving Butler. This is not to say, however, that I found all the testimony by General Counsel's witnesses regard- ing this incident to be credible and the testimony of Butler incredible. In fact, I have some difficulty reconcil- ing the testimony of Keehner and Gasparino. In order to credit both of them. I would have to believe that after Keehner cursed Butler and attempted to take the clip- board and invoices from him, j ust a few minutes later (as Keehner was driving and Gasparino was walking Keehner probably arrived first) Butler handed that clip- board and invoices to Gasparino while asking him for di- rections It seems that Butler would have learned his lesson after the earlier incident with Keehner. Even though these two versions are less than totally plausible, I find the credible testimony establishes that Schumacher was not the wrongdoer Respondent next defends that the agreement and re- lease executed by Schumacher on November 10 "re- solved the allegations underlying this Complaint." There are two underlying issues in this regard: can an individ- ual execute an agreement providing that neither he, nor anyone on his behalf, can file a claim or lawsuit (or unfair labor practice charge) against an employer (or union); i.e, can you waive a right to proceed before the Board, and, second, if so, should the agreement and re- lease be found to be valid? Although I could find no case right on point, the Board in Ingram Mfg. Co., 5 NLRB 908 at 912 (1983), held that [A]n agreement by which a labor organization binds itself to refrain from filing charges under the Act on behalf of employees is contrary to the policy of the Act and therefore of no effect whatsoever upon the power so to initiate Board proceedings In J. I. Case Co. v. NLRB, 321 U.S. 332 (1944), the Su- preme Court stated at 337: "The Board asserts a public right vested in it as a public body charged in the public interest with the duty of preventing unfair labor practices." Wherev- er private contracts conflict with its functions, they obviously must yield or the Act would be reduced to a futility. [Citation omitted.] In Machinists Lodge 743 v. United Aircraft Corp., 337 F.2d 5, 8 (2d Cir. 1964), the court stated: "the right to resort to the Board for relief against unfair labor practices cannot be foreclosed by private contract." On the basis of these cases, I find that Schumacher could not waive his (or the Union's) right to file an unfair labor practice charge with the Board This was a difficult time for Schumacher, he first learned of the criminal charges the prior evening shortly before mid- night That morning, prior to going to the precincts, he took his wife to the hospital where she was to be operat- ed on that day. Schumacher had never previously been arrested and was told by O'Connor that he could possi- bly spend 2 days in jail before being released. Finally, his medical condition made the prospect of overnight incar- ceration even more frightening. In Atlantic Marine, 211 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB 230, 232 (1974), the Board gave short shrift to a release signed by two employees under economic duress. In that case the administrative law judge stated: "It was Respondent that put him in a position of having to do something extreme and desparate financially, and it cannot now enjoy a benefit from the weakness it forced upon its old employee." In a similar situation, the Board stated in Big Sky Sheet Metal Co., 266 NLRB 21 (1983): [I]n the instant case, Respondent's actions toward Mineer can only be seen as coercive. Respondent unlawfully discharged him, left him without income, and then drafted a self serving document in which Mineer waived all rights against Respondent in order to get the only funds available to him. As the Board found in Atlantic Marine, Respondent cannot be allowed to profit from its unlawful con- duct. Additionally, the Board in Kelly-Springfield Tire Co., 6 NLRB 325 (1938), refused to recognize an employee's "assent, under economic duress, to an offer of a job not substantially equivalent." Finally, the Board stated in In- dependent Stove Co., 287 NLRB 740 (1987), that one of the factors it will consider in determining whether to give effect to a settlement, is whether the agreement was entered into voluntarily by the parties, without fraud or coercion. There can be no doubt that Schumacher was coerced into executing the agreement and release. His wife was in the hospital being operated on; he had medi- cal difficulties with two nights' imprisonment possibly awaiting him, and an unattended child at home. The Union and O'Connor recommended that he not accept Respondent's offer; he did not follow their advice and signed the agreement and release in order to avoid an overnight incarceration for a crime that he did not commit. An indication of the level of coercion herein and how desparate Schumacher was to do anything in order to be released can be deemed from the agreement and release. O'Connor and Schumacher expected to re- ceive a simple release or resignation letter; instead, they received a five-page document with an attached letter for him to sign, without an opportunity to negotiate. The choice: sign or probably spend a night or two in jail. All Respondent was obligated to do under the agreement and release was to give Schumacher $1 and respond to a request for references from a prospective employer of Schumacher by stating the dates of Schumacher's em- ployment and his job classification. Schumacher's obliga- tions consume four pages of the agreement and release. I therefore find that even if Schumacher could waive the right to file charges before the Board, the agreement and release he executed on November 10 will not be recog- nized because of the level of coercion present at the time he executed it. I therefore find that by discharging Schu- macher on November 16, due to its mistaken belief that he had stolen its invoices on November 10, Respondant violated Section 8(a)(1) of the Act.17 11 Because I find that Respondent violated Sec 8(a)(1) by firing Schu- macher because they mistakenly believed that he had stolen the invoices on November 10 (1 e, a Burnup & Sims and Rubin Bros violation) I find it unnecessary to determine whether Schumacher's aggressive attitude as CONCLUSIONS OF LAW 1. The Respondent , Peerless Importers, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by discharging Schumacher on November 16, effective No- vember 10. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices it will be rec- ommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act, to wit, that Respondent offer Schu- macher immediate reinstatement to his former position or, if that position no longer exists, to 'a' substantially equivalent position, without prejudice to-his seniority or other rights and privileges, and expunge from its files any reference to his termination. It is also recommended that Respondent be ordered to make Schumacher whole for any loss of earnings he sustained by reason of his dis- charge. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950); New Hori- zons for the Retarded, 283 NLRB 1173 (1987). See gener- ally Isis Plumbing Co., 138 NLRB 716 (1962). The back- pay period shall begin November 16, the date the other employees returned to work. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed18 ORDER The Respondent, Peerless Importers, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging its employees in retaliation for their protected activities. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Schumacher immediate reinstatement to his former position of employment or, if that position is no longer available, to a substantially similar position with- out prejudice to his seniority or other rights and make him whole for the loss he suffered as a result of the dis- a shop steward for the Union contributed to the discharge, as this would add nothing to the violation 18 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 PEERLESS IMPORTERS crimination in the manner set forth above in the remedy section (b) Expunge from its files reference to the termination of Schumacher and notify him in writing that this has been done, and that the evidence of this unlawful activi- ty will not be used as a basis for future actions against him. (c) Preserve and, on request, make available to the Board or its agents for examination or copying, all records or documents necessary to analyze and deter- mine the amount of backpay owed to Schumacher. (d) Post at its Brooklyn, New York facility copies of the attached notice marked "Appendix."19 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. r, 19 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 765 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT discharge our employees in retaliation for their protected concerted activities on behalf of Wine, Liquor and Distillery Workers, Local 1 or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make whole John Schumacher, with inter- est, for any loss of earnings he may have suffered as a result of our discrimination against him, and we will offer him full and immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. WE WILL expunge from our files any reference to the termination of Schumacher, and we will notify him, in writing, that this has been done and the evidence of this unlawful action will not be used as a basis for future per- sonnel action against him. PEERLESS IMPORTERS, INC