Sdc Investment, Inc.

SDC INVESTMENT 779 SDC Investment, Inc. and Butchers' Union Local 498, United Food and Commercial Workers International Union, AFL-CIO. Case 20-CA- 22689 September 24, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 30, 1990, Administrative Law Judge Jerrold H Shapiro issued the attached decision The Respondent filed exceptions and a supporting brief, and the Union filed a response to the Re- spondent'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 record in light of the exceptions, brief, and re- sponse and has decided to affirm the judge's rul- ings, findings,' and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, SDC Invest- ment, Inc, Dixon, California, its officers, agents, successors, and assigns shall take the action set forth in the Order 1 There are no exceptions to the Judge's conclusion that the Respond- ent violated the Act Rather, the Respondent's exceptions concern state- ments by the judge regarding the testimony of the Respondent's plant manager, Les Oesterreich, that Oesterreich took notes concerning the al- leged unfair labor practice conduct of June 14, 1989, and that he re- viewed those notes prior to the hearing In his discussion of Oesterreich's credibility, the judge found that, contrary to Oesterreich's testimony, the notes he produced at the hearing were not his notes and were not re- viewed by him pnor to the hearing In his discussion in the remedy sec- tion of his decision the judge reiterated the above findings and further concluded that Oesterreich fabricated the notes dunng a short recess in the hearing and gave willfully false testimony concerning the notes The Respondent excepts solely to these conclusions We find It unnecessary to pass on the Judge's statements that Oester- retch fabricated the notes and willfully testified falsely, and we disavow the Judge's statement, in fn 14 of Ins decision, that It is not uncommon for witnesses to give willfully false testimony in unfair labor practice case hearings We also note that, even if we were to grant the Respondent's exceptions, it would not affect our adoption of the judge's unfair labor practice findings, because the judge's discrediting of Oesterreich's testi- mony was also based on grounds unrelated to the matter of Oesterreich's notes Lucille L Rosen, for the General Counsel Charles E Sykes, Esq (Bruckner & Sykes), for the Re- spondent David A Rosenfeld (Van Bourg, Weinberg, Roger & Ro- senfeld), for the Charging Party DECISION STATEMENT OF THE CASE JERROLD H SHAPIRO, Administrative Law Judge This proceeding in which a hearing was held February 7, 1990, is based on an unfair labor practice charge filed against SDC Investment, Inc (the Respondent) on June 19, 1989, by Butchers' Union Local 498 (the Union),' and on a complaint issued on July 31, 1989, on behalf of the General Counsel of the National Labor Relations Board (Board) by the Regional Director for Region 20, alleging that Respondent was engaging in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act (the Act) The complaint, as amended at the hearing, alleges that Respondent violated Section 8(a)(1) of the Act on or about June 14, 1989, when the manager of its Dixon, California facihty "told employees that they were dis- charged because they had engaged in protected concert- ed activity," and also alleges that Respondent violated Section 8(a)(1) on or about June 14, 1989, by discharging 16 named employees employed at its Dixon, California facility because the employees on June 14, 1989, had en- gaged in protected concerted activity In its answer to the complaint, as amended at the heanng, Respondent admits that the 16 alleged discnmmatees engaged in con- certed activity on June 14, 1989, as alleged in the com- plaint, but denies they were discharged, as alleged in the complaint 2 On the entire record, from my observation of the de- meanor of the witnesses, and having considered the postheanng briefs of the parties, I make the following FINDINGS OF FACT I THE ALLEGED UNFAIR LABOR PRACTICES A The Evidence 1 Background Respondent is a corporation which, at its plant in Dixon, California, is m the business of slaughtering and processing lambs The person responsible for the day-to- day operation of the plant is Les Oesterreich, the plant's general manager During the time material, the plant's personnel manager was Jim Estrada and the plant super- intendent was Mack Gardner Neither Estrada nor Gard- ner was employed by Respondent at the time of the hearing in this case, Estrada left to work for another em- ployer and Gardner retired because of a health problem The Dixon plant employed approximately 150 employ- ees, who are not represented by a labor organization They are employed in four different departments The kill floor, where the lambs are butchered, is the depart- ment involved in this proceeding During the time mate- rial, approximately 45 employees worked on the kill floor, and one of their immediate supervisors was Leo 1 The charge was served on June 21, 1989 2 In its answer, Respondent admits it meets one of the Board's applica- ble discretionary jurisdictional standards and is an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act 299 NLRB No 126 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Martinez, who was still employed by the Respondent in that capacity at the time of the hearing in this case In its answer to the complaint, Respondent admitted that Oesterreich, Estrada, and Martinez were supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meamng of Section 2(13) of the Act The native language of most of the kill floor employ- ees is Spanish and many of them have only a limited un- derstanding of English The record also shows that Per- sonnel Manager Estrada and Supervisor Martinez were bilingual and were able to communicate with the em- ployees in both English and in Spanish, whereas General Manager Oesterreich was unable to communicate with the employees in Spanish The employees employed on the lull floor begin work at approximately 6 a m and generally work an 8-hour day which ends at approximately 2 30 p m They have a 15-minute paid break period in the morning, which starts at 9 a m, and a one-half-hour unpaid lunchbreak period later during the morning, which starts between 11 and 11 15 a m, and then a 15-minute paid break period in the early afternoon 2 The events of June 14, 1989 On June 14, 1989, 3 shortly before 10 a m, a pump which supplies steam for the plant broke down and be- cause of this Respondent had to cease production on the kill floor until the pump was repaired, which took a little more than an hour Superintendent Gardner and Supervi- sor Martinez, shortly before 10 a m, told the employees employed on the kill floor that due to a breakdown in equipment, no work could be done until the equipment had been repaired, and instructed the employees that in the interim they should take an early lunchbreak In re- sponse, the employees refused to take an early lunch- break and remained on the kill floor Gardner promptly summoned General Manager Oesterreich, who repeated what Gardner and Martinez had told the employees, that due to an equipment breakdown, production had to cease until the equipment was repaired and that the employees should take an early lunchbreak In response, the em- ployees informed Oesterreich, just as they had informed both Gardner and Martinez, that they would not take an early lunchbrealc while waiting for the equipment to be repaired They continued to stand around in groups on the kill floor waiting for the equipment to be repaired Oesterreich at this point admittedly became "frustrated" over the employees' refusal to obey lus instruction that they take an early lunchbreak, and directed Superintend- ent Gardner to punch all of the employees out for their lunchbreak, which Gardner did at 10 08 am In addition, at this point in time, Oesterreich, according to the coun- sel for the General Counsel, told the kill floor employees that they had the choice of taking an early lunchbreak or of going home and not coming back to work, whereas Respondent contends Oesterreich gave the employees the choice of taking an early lunchbreak or going home, but did not state to the employees that if they went home they could not come back to work 3 Unless otherwise specified, an dates refer to 1989 It is undisputed that after Oesterreich spoke to the em- ployees on June 14 and told them what their options were, that the great majority of them took an early lunchbreak and then returned to work later that morning after the repairs had been made, but that 16 of the em- ployees chose to leave the plant, rather than take an early lunchbreak, and did not return to work that day The names of the 16 are as follows (Tr 214-215, C P Exh 11) Francisco Bravo Guillermo Montoya Jose Escobar Daniel Moreno Jose Loarco Guadalupe Aguilera Manuel Mamas Ricardo Jmunez Juan Sandoval Jose Martin Ramirez Allejandro Villanueva Antonio Flores Manuel Ortiz Abraham Chavez Ruben Moreno Vicente Cruz These employees are the 16 named in the amended com- plaint as having been discharged "on or about June 14" by Respondent On June 14, after leaving the plant, several of the al- leged discnmmatees went to an office of the State Labor Commission and complained about Respondent's con- duct However, they were dissatisfied with the response they received from the representative of the State Labor Commission whom they spoke to, so they went to the Union It was the Union that filed the charge in the in- stant case on their behalf As indicated supra, the essential question for decision, with respect to the events of June 14, is whether in at- tempting to persuade the employees to take an early lunchbreak while waiting for the equipment to be re- paired, Oesterreich gave them the right choice of taking an early lunchbreak or going home and not coming back to work, as counsel for the General Counsel contends, or, as counsel for Respondent contends, gave them the choice of taking an early lunchbreak or going home I find, for the reasons below, Oesterreich told the employ- ees that they had the choice of talung an early lunch- break or going home and not coming back to work General Counsel's witnesses, employees Abraham Chavez and Ricardo Jimmez testified that on June 14 Oesterreich told the kill floor employees that those em- ployees who did not follow his instruction to take an early lunchbreak should go home and not come back to work This testimony was corroborated by the testimony of employee David Ramirez Duenas, he testified that as the employees left the kill floor on their way to the em- ployees' brealcroom Oesterreich told them that those em- ployees who went home instead of taking an early lunch- break should not come back to work 4 Oesterreich spe- cifically denied telling the employees that if they went home they could not come back to work He testified that what he said was "They had two choices They could go back to work or they could go home" 4 I note that Ramirez was a disinterested witness Inasmuch as he is not one of the alleged discnmmatees, having been one of the employees who complied with Oesterreich's instruction to take an early lunchbreak SDC INVESTMENT 781 I credit the testimony of Chavez, Junmez, and Duenas, rather than Oesterreich's, for the reasons below 5 (1) The testimonial demeanor of Chavez, Jimmez, and Duenas was good, whereas the testimonial demeanor of Oesterreich was poor Moreover, Oesterreich's credibil- ity and reliability as a witness was placed in serious doubt by reason of his testimony concerning the notes he supposedly relied on to refresh his recollection prior to testifying about the events of June 14 During cross-ex- amination by counsel for the Charging Party, °ester- reich testified that before taking the witness stand and testifying about the events of June 14 he had recently re- freshed his memory by reviewing his contemporaneous notes of the events of that day, which he testified con- sisted of two or three typed pages of matenal He further testified, however, that he did not have these notes in his possession and that they were at the plant In view of this, the hearing was recessed briefly to allow him to return to the plant and get the notes for the Charging Party's attorney to examine Upon his return, Oesterreich produced a single sheet of paper that was titled "June 14th walkout" and contained in its entirety four sen- tences "1 Around 10 a in I told the killfloor we were calling an early lunch because of a breakdown 2 I told the lullfloor to go to lunch or go home 3 Some of the lullfloor left the plant after I talked to them 4 16 em- ployees did not return to work" Oesterreich did not ex- plain why he previously testified that his notes, which he had only recently reviewed, consisted of two or three typed pages of material, whereas the notes which he sub- sequently produced consisted of one typed page, com- prised of the above-descnbed four sentences Absent an explanation and considering Oesterreich's poor testimom- al demeanor, I find that these were not Oesterreich's notes nor were they the notes that he reviewed prior to testifying in this proceeding (2) Respondent's failure to call Supervisor Martinez to corroborate Oesterreich's testimony warrants the infer- ence that Martinez' testimony would have been adverse to Respondent and would have supported the testimony of the General Counsel's witnesses ° International Auto- mated Machines, 285 NLRB 1122 (1987), Paramount Poultry, 294 NLRB 867, 868 (1989) (3) Oesterreich's testimony that he did not tell the kill floor employees that if they left the plant, rather than follow his instruction to take an early lunchbreak, they could not come back to work, is inconsistent with Per- sonnel Manager Estrada's record of what Oesterreich 5 I considered that the prehearmg affidavit of employee Jimmez, sub- mitted to the Board's Regional Director during the investigation of this case, failed to Include that portion of Jimmez' testimony concerning the words used by Oesterreich when he spoke to the employees on June 14 Although the affidavit deals with the subject of the events of June 14, it omits any mention of Oesterreich speaking to the employees Nonethe- less, in view of Jimmez' testimonial demeanor, which was good, and the fact that his testimony was corroborated by the testimony of employees Chavez and Duenas, and was further corroborated by the notes of Per- sonnel Manager Estrada, infra, I have credited Jimmez' testimony, de- spite its omission from his affidavit 6 Supervisor Martinez, an admitted statutory supervisor and agent of Respondent, was employed by Respondent as of the date of the hearing in this case He was present when Oesterreich spoke to the employees on the kill floor on June 14 and, with Personnel Manager Estrada, translated Oesterremh's remarks to the employees who did not understand English stated to the employees on June 14 As described in detail infra, in his notes of what occurred on June 14, Estrada states that Oesterreich told the employees that if they left the plant, rather than follow his instruction to take an early lunchbreak, they would be considered by Respondent as having voluntarily tennmated their em- ployment 7 Thus E,strada's account of what Oesterretch told the employees is inconsistent with Oesterreich's tes- timony and is consistent with the testimony of the Gen- eral Counsel's employee witnesses that Oesterreich told the employees that if they left the plant rather than follow his instruction to take an early lunchbreak, that they could not come back to work More specifically, in his notes, Estrada stated that at 10 08 am, after instruct- ing Superintendent Gardner to punch the employees out for their lunchbreak, Oesterreich then made the follow- ing statement to the employees whey were now on lunch break and that those em- ployees who wished to take lunch and return to work when repairs were finished should do so, those employees who did not wish to follow the directive should leave the plant BUT if those employees left the plant property they would be considered a voluntary quit of employment Estrada's notes then go on to state that when Oesterreich. followed the employees down into the breakroom he told them that "those employees [who] wanted to leave may do so but that if any person left the company prem- ises he or she would be considered a voluntary termina- tion of employment, "and that later on June 14, after production resumed, Estrada, himself, personally told those employees who were still in the breakroom, that "if they did not return to work they would be consid- ered a voluntary termination of employment," and still later that day Estrada, Oesterreich, and Gardner had a telephone conversation with Respondent's principal offi- cer, Dennis Breen, and during this conversation, "it was determined that those employees who did not return to work would be considered a voluntary determination [sic] of employment Hiring replacements would begin immediately" 3 The events of June 15, 1989 On June 15, at 6 am, the 16 employees who walked off the job on June 14, rather than take an early lunch- break, came to the plant as a group for the purpose of returning to work They were met at the entrance of the plant by Personnel Manager Estrada and Supervisor Martinez, who refused to permit them to enter the plant Martinez and Estrada explained to the employees that the reason they could not enter the plant to work was 7 Estrada was with Oesterreich when Oesterroch spoke to the lull floor employees on June 14 and, with Supervisor Martinez, translated Oesterreich's remarks to those employees who did not understand Eng- lish However, Estrada did not testify in this proceeding His notes were authenticated by Oesterroch and received into evidence without objec- tion Since Oesterrech testified that he first read Estrada's notes on June 19, it is apparent that the notes were made by Estrada either virtually contemporaneously with or soon after the events of June 14, when what occurred on that date was still fresh in his mind 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they had been "fired" They also informed the employ- ees that they would be allowed to enter the plant in small groups for the purpose of returning the equipment they had in their possession, which was the Company's property, and that they should return to the plant that afternoon, at which time they would be given checks for their accrued pay and vacation benefits The above description of the events of June 15 is based on a composite of the testimony of General Coun- sel's witnesses Ricardo Jimmez and Abraham Chavez I considered that although Jimmez testified Martinez told the employees they could not enter the plant he failed to testify that either Martinez or Estrada also told the em- ployees that the reason for this refusal was that they had been "fired" or used words to that effect However, Chavez testified that Martinez and Estrada each told the employees that the reason they could not enter the plant to go back to work was that they had been "fired" When Chavez gave this testimony, his testimonial de- meanor was good, he impressed me as a credible and re- liable witness Moreover, his testimony in this respect is corroborated by Respondent's Exhibit 2 This exhibit shows that on June 16 Antonio Flores, one of the 16 em- ployees who unsuccessfully tried to return to work on June 15, filed a claim for unemployment insurance bene- fits with the State of California and wrote on the claim form that the reason he was no longer employed by Re- spondent was that on June 15 when Flores and the other employees presented themselves for work at the Re- spondent's plant "they fired me" Also relevant in deter- mining whether, as Chavez testified, Martinez and Es- trada told the employees that they were fired, is the fact that Supervisor Martmez, who is still employed by Re- spondent and is admittedly a statutory supervisor and an agent of Respondent, was not called by Respondent to dispute Chavez' testimony I am of the opinion that Re- spondent's failure to have Martinez testify about the events of June 15 warrants the inference that his testimo- ny would have- been adverse to Respondent and would have supported Chavez' testimony 8 International Auto- mated Machines, supra, Paramount Poultry, supra at 868 It is for all of the above reasons, in their totality, that I have credited Chavez' testimony that Martmez and Es- trada on June 15 told the employees that the reason they were not being allowed to enter the plant to return to work was that they had been "fired," even though Chavez' testimony m this respect was not corroborated by Junmez' testimony and even though Chavez' prehear- mg affidavit made no mention of this statement It is undisputed that, as I have found supra, on June 15 the 16 kill floor employees who had left work on June 14 were required to return to Respondent all the equip- ment in their possession which was the property of Re- spondent and received in exchange their paychecks and another check for the vacation pay they had accrued General Manager Oesterreich testified he was the one that decided to issue the checks to the employees and he 8 I have not drawn an adverse inference from Respondent's failure to have Personnel Manager Estrada testify about these events Unlike Marti- nez, Estrada was no longer employed by the Respondent as of the date of the hearing, having left Respondent's employ and gone to work for another employer decided to do this on June 15 at approximately 8 a m as the result of a conversation he had at that time with Per- sonnel Manager Estrada During this conversation, ac- cording to Oesterreich, Estrada gave him the following information the 16 employees who had left work early the day before had come to the plant gate that morning and asked to return to work, Estrada had told the return- ing employees that the Company had cut production back for the week and had made other arrangements and did not need them for work that day, and told them they should go home, and, the employees responded by telling Estrada that if they were going to go home that they wanted their checks Oesterreich further testified that based on the information that the returning employees had asked Estrada for their checks and the fact that by law Respondent was required to give them their pay- checks if they wanted them, he decided to give the em- ployees their checks When asked why at that time he decided to also give the employees their checks for ac- crued vacation benefits, as well as for accrued pay, Oes- terreich testified he did this because he thought the em- ployees "had quit their employment" But, when remind- ed that he had just testified Estrada had specifically told him that the employees had returned to the plant to go back to work, Oesterreich changed his testimony, he now testified that as the results of his conversation with Estrada he did not still believe, as he had previously be- lieved on June 14, that the employees had quit their jobs, but testified that after talking with Estrada he did not really know whether or not the employees had quit and further testified he was "confused at that point" I reject Oesterreich's above-described testimony, m its entirety, for the reasons below Oesterreich's testimony that on June 15 Estrada told him that Estrada had informed the employees that day the reason they could not return to work was due to a cutback in production and told him that upon hearing this the employees asked Estrada for their checks, is con- trary to the uncontradicted testimony of employees Chavez and Jimmez concerning what occurred when the employees came to the plant on June 15 But more sig- nificant, Oesterreich's testimony is inconsistent with Es- trada's record of the events of June 14-15 As described in detail supra, in his notes which describe what took place on June 14, Estrada stated that on June 14 both Oesterreich and himself notified the employees that if any of them left work, instead of following Oesterreich's mstruction to take an early lunchbreak, they would be considered by Respondent as having voluntarily termi- nated their employment with Respondent, and later that day, after 16 employees had ignored Oesterreich's warn- ing and walked off of the job, that Respondent's manage- ment, including Oesterreich, decided that these 16 em- ployees would be considered as havmg voluntarily termi- nated their employment with Respondent because they had walked off of the job, and also decided that Re- spondent would commence replacmg them immediately The next day, June 15, according to Estrada's notes of what occurred that day, all 16 of the employees who had walked off of the job the previous day came to the plant's front gate at the start of the workday and, SDC INVESTMENT 783 Abraham Chavez asked if they [the 16 employ- ees who had left] could have their jobs again and return to work this day Jim [Estrada] replied that [Respondent] was considering their actions as a vol- untary termination of employment and no, they could not return to work for this company Jim [Estrada] then explained that the Company was going to require the return of all equipment and that this afternoon (June 15) they would receive all wages, vacation pay, and holiday pay due them At 2 30 p m the former employees returned and picked up their final checks As described in detail above, contrary to Oesterreich's testimony describing what Estrada told him had oc- curred on June 15 at the plant's gate when the employ- ees returned to work, Estrada's record of that event shows that Estrada told the employees that the reason they could not return to work was not due to a cutback in production, but was because Respondent had decided that their actions taken the previous day constituted a voluntary termination of employment Considering Oes- terreich's poor testimonial demeanor and considering the above-described contents of Estrada's notes of what oc- curred on June 14-15, which contradict Oesterreich's testimony, I reject Oesterreich's entire testimony con- cerning his June 15 conversation with Estrada and also discredit his testimony concerning his supposed "con- fused" state of mind concerning the employees' employ- ment status In view of Estrada's notes, which reveal that on June 14 management decided to treat the 16 em- ployees as having voluntarily terminated their employ- ment and to replace them, and in view of the fact that when these employees on June 15 attempted to return to work they were informed that they had been "fired" and were required to return to the Company all the compa- ny-owned equipment they had in their possession and, in exchange, receive checks covering all wages and vaca- tion pay that Respondent owed them, it is abundantly clear that Oesterreich, on June 15, was not confused about the employment status of the 16 employees, he re- garded them as former employees whose employment on June 14 had been terminated by Respondent because of their conduct on June 14 9 I also considered Oesterreich's testimony that it was not because the employment of the 16 alleged discnmma- tees had been terminated which caused Respondent to refuse to allow them to go to work on June 15 and the week which followed, but that Respondent refused to employ them during this period because when they walked out of the plant on June 14 their absence from work left Oesterreich so short-handed on the kill floor that he was forced to contact the suppliers who shipped him lambs and Instruct them to divert the lambs sched- ° That Respondent's personnel department was not "confused" about the employment status of the 16 employees involved in this case is dem- onstrated by the fact that with respect to employee Antonio Flores, one of the 16, on June 21, 1989, the Respondent's payroll clerk notified the "Family-Support" department of the local District Attorney's office that Respondent was enclosing a check for $74 to be applied to Flores' July 1989 family support payment, and further advised the District Attorney that "Flores is no longer in our employment as of June 13, 1989, and that will be the last check you will be receiving from (Respondent]" uled to arrive at the Dixon facility for the period of June 15-22 to one of Respondent's other plants, inasmuch as Oesterreich had no idea when the 16 employees who had left work would return to work, and with their absence he was too short-handed to handle the scheduled pro- duction In presenting the above-described testimony, all of which was uncorroborated, Oesterreich's testimonial demeanor was poor It is for this reason, and for the rea- sons set forth above, which led me to reject his testimo- ny concerning his June 15 conversation with Personnel Manager Estrada that I also reject his aforesaid testimo- ny Respondent's employees are covered by a health insur- ance program which is financed solely by Respondent's contributions on their behalf On direct examination, Oesterreich testified that Respondent continued the health insurance coverage for the 16 employees after June 14, even during the period they did not work However, when cross-examined, his further testimony on this subject revealed he was not competent to testify about whether or not Respondent continued to make health insurance premium payments on behalf of those employees after June 14, dunng the period they did not work for Respondent Since Respondent failed to produce the business records which would show wheth- er or not such premium payments were made after June 14 for these employees during the period they were not working for Respondent, I am of the view that it is not unreasonable to infer that such records would demon- strate that the payments were not made during the em- ployees' period of nonemployment 4 The events postdating June 16, 1989 On June 14-15, General Manager Oesterreich had sev- eral telephone conversations with Respondent's principal official, Dennis Breen, about the above-described events which occurred at the Dixon plant on those dates On June 16 he was instructed by Breen to meet with the 16 alleged discnmmatees Breen provided Oesterreich with an announcement to read to the employees at the meet- ing and with answers to anticipated questions by the em- ployees The announcement read as follows I wanted to get together with all of you to dis- cuss last week's problems As I told you last week, if you are going to work here, you will have to follow instructions If those instructions require you to go to lunch early, you are going to have to do it If you won't follow in- structions, we don't need you The next time anyone engages in a sitdown, walkout, or refusal to work he is going to be perma- nently replaced immediately We cannot and will not tolerate a sitdown where employees refuse to follow instructions As I said, if it ever happens again, everyone will be immediately and permanently replaced Each of you are all still considered employees of the company and will be recalled to work as we need you We will be sending letters to you when we need you to return to work, so be sure that the 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD company has your correct address and telephone number The answers to anticipated employee questions were as follows (a) Are we still employed by the company? Answer yes (b) Why can't we return to work now? Answer you will be recalled to work as needed We have had to reduce production (c) Why are our wages below competitors? Answer (you have wage rate comparison and wage part of Swift San Angelo contract) Your wages are the highest in the industry (show wage rate compar- ison) (d) I thought we were fired? Answer you are still [sic] employee of the company and will be re- called to work as needed On June 16 Personnel Manager Estrada wrote each of the 16 alleged discnnunatees that, "you are instructed to report to the plant, on Tuesday, June 20, 1989 at 1 p m When you arrive at the plant you should report to me" On June 20 all but perhaps one of the 16 alleged do- cnmmatees came to the plant, as instructed, and met as a group with Oesterreich and Estrada in a conference room Oesterreich, with Estrada translating into Spanish, read the above-described prepared speech to the employ- ees Then, in response to employees' mquines about their employment status, Oesterreich told them that they had not been fired However, when some of the employees, after having been advised by Oesterreich that they would not be recalled to work immediately, but only on an as-needed basis, asked that Respondent agree to have them receive unemployment compensation benefits, Oes- terreich, as employee Jumnez credibly testified, respond- ed by stating, "he could not give us unemployment be- cause we had quit the jobs, we had left" Also one of the employees, in response to Oesterreich's statement that in- dividual employees would be recalled on an as-needed basis, stated that all of the employees wanted to come back to work or none of them would return to work Oesterreich answered by repeating his prior statement, that they would be called back individually on an as- needed basis Thirteen of the alleged discnnunatees were reinstated by Respondent to their former positions of employment on the following dates June 26—Manuel Mancias, Guil- lermo Montoya, Jose Martin Ramirez, July 3—Francisco Bravo, Juan Sandoval, July 10—Jose Escobar, Ruben Moreno, Daniel Moreno, Ricardo Jimmez, July 17—Jose Loarco, Allejandro Villanueva, August 7—Guadalupe Agudera, and August 21—Antonio Flores The remain- ing three alleged discnmmatees received offers from Re- spondent to return to their former positions, and refused those offers on these dates Abraham Chavez, August 18, Manuel Ortiz, August 21, and Vicente Cruz, August 30 B Discussion 1 Respondent's 10(b) defense The charge in this case, filed by the Umon on June 19, alleges that Respondent "on or around June 14, 1989 coerced, intimidated, threatened to terminate, [and] terminated employees because of their concerted Union activities," m violation of Section 8(a)(1) and (3) of the Act The complaint, which issued July 31, alleges, in pertinent part, that "on or about June 14" Respondent discharged 20 employees, including but not limited to 10 named employees, because of their concerted activity On February 7, 1990, at the commencement of the hear- ing in this case, counsel for the General Counsel amend- ed this allegation by striking the names of two of the dis- crumnatees and by adding eight more named discrunma- tees Counsel for the Respondent objected to the amend- ment on the ground that the allegations of the amended complaint were time-barred under Section 10(b) of the Act I granted the amendment to the complaint, but re- served ruling on Respondent's 10(b) defense Respondent's contention that the amendment to the complaint is time-barred by the limitations provision of Section 10(b) of the Act lacks merit because the allega- tions of the amended complaint are "closely related" to the original charge See generally Roslyn Gardens Ten- ants Corp, 294 NLRB 506 (1989), and Davis Electrical Constructors, 291 NLRB 115 (1988) The allegations con- cerning the eight additional discnnunatees added to the complaint, by virtue of the amendment, are of the same class as the violations alleged in the pending timely charge, they involve the same legal theory and the same section of the Act Furthermore, the allegations concern- ing the eight additional alleged discnmmatees arise from the identical factual situation and the identical sequence of events as the allegations in the pending timely charge, and Respondent's defense to these new allegations is identical to its defense to the previous discharge allega- tions contained in the complaint Thus, I conclude that the allegations of the amended complaint are not barred under Section 10(b) of the Act 2 General Manager Oesterreich's threat to discharge employees if they continued to engage as protected concerted activity The complaint alleges that "on or about June 14 Oesterreich told employees that they were discharged because they had engaged as protected concerted activi- ty," and further alleges that Respondent violated Section 8(a)(1) of the Act by engaging in this conduct The evi- dence pertinent to these allegations has been previously set forth and evaluated The portion of that evidence, which I have credited, supra, may be summarized brief- ly, as follows As I have found, supra, when the employees employed on Respondent's kill floor were instructed by their super- visors to take an early lunchbreak on June 14, they ob- jected and, acting together, refused to obey this instruc- tion The supervisors summoned General Manager Oes- terreich to the scene He instructed Plant Superintendent Gardner to punch out all the employees for an early SDC INVESTMENT 785 lunchbreak and told the kill floor employees that those employees who did not follow his instruction to take an early lunchbreak should go home and not come back to work, and then, as the employees left the kill floor, Oes- terreich informed them that those employees who chose to go home instead of taking an early lunchbreak should not come back to work In its answer to the complaint, as amended during the hearing, Respondent admitted that the above-described conduct of the kill floor employees—their concerted re- fusal to take an early lunchbreak on June 14—was "con- certed activity" Subsequently, at the start of the hearing in this proceeding, Respondent's counsel conceded that this activity was not only "concerted" but that it was "protected, concerted activities under the Act" (Tr 22- 24) In view of this concession, which was relied on by counsel for the General Counsel, Respondent is preclud- ed from contending, and does not contend, that the em- ployees' concerted activity herein was not protected under the Act In any event, the record shows that the employees' concerted refusal to take an early lunchbreak on June 14 was the type of concerted activity protected by Section 7 of the Act Accordingly, the remaining question is whether Oesterreich's statement to the em- ployees that if they did not obey his instruction to take an early lunchbreak they should go home and not come back to work, and whether his further statement that those employees who went home instead of taking an early lunchbreak should not come back to work were statements calculated to lead the employees to reason- ably believe that Oesterreich was tellmg them that their employment with Respondent would be terminated if they continued to engage in their protected concerted activity of refusing to take an early lunchbreak I am of the opinion that the plain and straightforward meaning of Oesterreich's words—go home and not come back to work—was calculated to reasonably lead the em- ployees to believe he was stating they would be dis- charged by Respondent if they continued to engage in their protected concerted activity of refusing to take an early lunchbreak I therefore find that by threatening its employees with discharge on June 14 if they engaged in protected concerted activity, Respondent violated Sec- tion 8(a)(1) of the Act 10 3 Respondent's discharge of the 16 employees who ignored Oesterreich's warning and continued to engage in protected concerted activity As I have found, supra, when the employees employed on Respondent's kill floor engaged in a concerted refusal to take an early lunchbreak on June 14, this conduct con- 101 considered that the complaint alleges Oesterreich "told employees that they were discharged because they had engaged in protected con- certed activity," whereas I have found he told them they would be dis- charged if they continued to engage in their protected concerted activity However, there has been no prejudice to Respondent because the viola- tion I have found here was fairly comprehended in the language of the complaint, thus Respondent was afforded an opportunity to defend Itself against the violation found See Tex Tan Welhausen Co v NLRB, 419 F 2d 1265, 1269-1270 (5th Cu 1969), wherein Board findings which were based on matters "not specifically alleged," were nevertheless held valid because they were "fairly comprehended in the language of the com- plaint" sututed protected concerted activity within the meaning of Section 7 of the Act As described in detail supra, Re- spondent's supervisors were well aware of the concerted nature of the employees' June 14 refusal to take an early lunchbreak and, as I have found supra, Respondent's general manager, Oesterreich, responded to this concert- ed activity by issuing to the employees the following ul- timatum take an early lunchbreak, as directed by super- vision, or go home and not come back to work The ma- jority of the employees, in compliance with this ultima- tum, stayed and took an early lunchbreak, but 16 of the employees, the alleged chscninmatees, continued to pro- test the early lunchbreak by leaving the plant and going home The complaint in this case, as amended, alleges that "on or about June 14," Respondent discharged those 16 employees because of their concerted activity There is no dispute by the parties to this proceeding that the 16 alleged discnmmatees were engaged in pro- tected concerted activity within the meaning of Section 7 of the Act, when they concertedly refused to take an early lunchbrealc on June 14 Nor is there a dispute that Respondent had knowledge of the concerted nature of their activity or if they were discharged that they were discharged because of their protected concerted activity and that the discharge violated the Act Rather the sole disputed issue is whether Respondent discharged the em- ployees The test of whether or not an employee has been dis- charged depends upon the reasonable inference that the employee could draw from the language used by the em- ployer" NLRB v Hale Mfg Co, 570 F 2d 705, 708 (8th Cir 1978), Pennypower Shopping News v NLRB, 726 F 2d 626 (10th Cir 1984), Ridgeway Trucking Co. 243 NLRB 1048, 1048 (1979) "The fact of discharge of course does not depend on the use of formal words of firing It is suf- ficient if the words or action of the employer, would logically lead a prudent person to believe his [or her] tenure had been terminated" NLRB v Trumbull Asphalt Co, 327 F 2d 841, 843 (8th Cir 1964), quoting from Putnam v Lower, 236 F 2d 561, 566 (9th Cir 1956) And, if the employer's words or conduct "created a climate of ambiguity and confusion" which could reasonably cause the employees "to believe that they had been discharged or, at the very least, that their employment status was questionable because of their [protected] concerted activ- ity," the burden of the results of that ambiguity must fall on the employer Brunswick Hospital Center, 265 NLRB 803, 810 (1982) Or, as the Board has stated more suc- cinctly "Having created the ambiguity, and having failed to clarify it, the burden of the results of that ambi- guity must fall on Respondent" Pennypower Shopping News, 253 NLRB 85, 85 (1980), enfd on this point 726 F 2d 626 (10th Cu 1984) Applying these principles to the instant case, I am persuaded that the record estab- lishes that on June 14 the alleged discnnunatees were discharged As I have found, supra, Oesterreich's June 14 ultima- tum to the employees to either take an early lunchbreak, as directed by supervision, or go home and not come back to work, was calculated to cause the employees to reasonably believe that if they did not abandon their pro- 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tected concerted activity and take an early lunchbreak they would be discharged That Oesterreich meant what he said and that his ultimatum was not merely a scare tactic designed to coerce the employees mto taking an early lunchbreak, was convincingly demonstrated to the employees on the followmg day when they tned to return to work On June 15, when the 16 alleged discn- mmatees returned to the plant to go to work, they were mformed by Supervisor Martinez and Personnel Manag- er Estrada, as I have found supra, that they could not go to work because they had been "fired" and were also in- formed by Martinez and Estrada that later that day they would be given checks for their accrued wages and va- cation benefits, after they had given back to Respondent certain equipment which was Respondent's property Such conduct is consistent with the way in which em- ployers usually notify employees that their employment has been involuntarily terminated, and could only serve to remforce the employees' belief that on June 14 they had been discharged because of their protected concert- ed activity Accordingly, on the basis of the foregomg, I fmd that on June 14 Respondent discharged the 16 al- leged discnminatees For the above reasons, I find that the 16 named al- leged discnminatees were discharged on June 14 because of their protected concerted activity of refusing to take an early lunchbreak Accordingly, I find that Respondent unlawfully discharged these 16 employees in violation of Section 8(a)(1) of the Act CONCLUSIONS OF LAW 1 Respondent is an employer engaged m commerce within the meaning of Section 2(6) and (7) of the Act 2 By threatening to terminate the employment of em- ployees if they continued to engage in concerted activity encompassed by Section 7 of the Act, and by terminating the employment of 16 employees, the 16 discrimmatees named in the amended complaint, because they contin- ued to engage in concerted activity, Respondent has mterfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act 3 The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) by This conclusion is supported by the wntten record of the events of June 14 maintained by Personnel Manager Estrada As descnbed in detail supra, Estrada wrote that after the 16 alleged chscnminatees had left the plant on June 14 and gone home, Respondent's management discussed their conduct and decided to treat them as having voluntarily terminated their employment, and decided to begin to lure replacements for them immediately I recognize the employees had no knowledge of this man- agement decision, thus they could not have relied on it in forming their belief that on June 14 their employment had been terminated when they left the plant and went home However, I find that this conduct by man- agement is further evidence that Oesterreich's June 14 statement to the employees, that they take an early lunchbreak or go home and not come back to work, was meant by him to be a discharge ultimatum and that It was m fact Implemented on June 14, when the employees went home discharging 16 employees for engaging m protected con- certed activity, I shall recommend an order to remedy this unfair labor practice which, among other things, re- quires Respondent to make each of the 16 discnmmatees whole for any loss of earnings they may have suffered because of their June 14, 1989 unlawful discharge See Abilities & Goodwill, 241 NLRB 27 (1979) In view of the fact, as set forth in detail supra, that 13 of the discnmma- tees were remstated to their former positions on various days in June, July, and August 1989 and that, on various days in August 1989, the remaining 3 discnmmatees re- jected offers of reinstatement to their former positions, I have not recommended that Respondent offer the discn- mmatees reinstatement and shall recommend that the 13 discnmmatees, who were reinstated, receive backpay from June 14, 1989, until the date of their reinstatement, and shall recommend that the 3 discninmatees who re- jected offers of reinstatement receive backpay from June 14, 1989, until the date they rejected the offer of rein- statement 12 Backpay shall be computed with mterest thereon in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987) See generally his Plumbing Go, 138 NLRB 716 (1962) The final matter before me for consideration is the Charging Party's request that "the Administrative Law Judge should issue a specific fmdmg that Charging Party [Exhibit] 18 was forged and fabricated and recommend- mg that the Board consider appropriate action against the Respondent and its counsel for this patent fabnca- ton " Presumably, in making this request, the Charging Party is suggesting that by fabricating Charging Party's Exhibit 18, Oesterreich, together with Respondent's counsel, violated Section 12 of the Act, which reads as follows Any person who shall willfully resist, prevent, impede, or interfere with any Member of the Board or any of its agents or agencies in the performance of duties pursuant to this Act shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year, or both Charging Partys's request that the Board refer this matter to the proper authority with a recommendation for criminal prosecution I decline to recommend that the Board follow this course of action Charging Party's Exhibit 18, as I have found supra, are the notes Oesterreich testified he read, shortly before tes- tifying before as, to refresh his memory of the events of June 14, and which he further testified are his contempo- raneous notes of the events of June 14 I rejected his tes- timony, for reasons set forth supra, and found that Charging Party's Exhibit 18 was not the notes °ester- reich used to refresh his memory nor was it the record of his notes of the events of June 14 Rather, I conclud- 12 There are indications in the record that Respondent may contend that in the normal course of business some of the discnmmatees would have been laid off from work for various periods of time during the back- pay period Because this matter was not litigated in this proceeding, I be- lieve that such an Issue is more appropriately left for resolution in the compliance stage of this proceeding SDC INVESTMENT 787 ed, supra, that Charging Party's Exhibit 18 had been fab- ricated by Oesterreich when, during a recess in the hear- ing of this case, he went back to the plant to get his notes for the purpose of allowing Charging Party's coun- sel to examine them during Oesterreich's cross-examina- tion However, there is not the slightest hint that Re- spondent's counsel was a party to Oesterreich's fabrica- tion or the false testimony which accompanied it 13 And, with respect to Oesterreich's misconduct—his fabrication of Charging Party's Exhibit 18 and his accompanying willfully false testimony—I am of the view that this is not the type of misconduct encompassed by Section 12 of the Act 14 It is for all the above reasons that I have not, as requested by the Charging Party, recommended that the Board consider taking appropriate action against either Oesterreich or Respondent's counsel, pursuant to Section 12 of the Act, because of Oesterreich's fabrica- tion of Charging Party's Exhibit 18 and his willfully false testimony accompanying the fabrication On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, SDC Investment, Inc, Dixon, Cali- fornia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or threatening to discharge employees for engaging in concerted protected activities (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make the employees named below whole for any loss of earnings or employment benefits which they may have suffered by virtue of their unlawful discharge on June 14, 1989, by paying them an amount equal to what they would have earned from the date of their discharge to the date that they were reinstated or refused an offer of reinstatement Such backpay is to be computed in the manner set forth in the remedy section of this decision Francisco Bravo Guillermo Montoya Jose Escobar Daniel Moreno Jose Loarco Guadalupe Aguilera Manuel Mamas Ricardo Jimmez Juan Sandoval Jose Martin Ranurez Allejandro Villanueva Antonio Flores la Respondent's counsel conducted himself in a professional and ethical manner throughout this entire proceeding 14 It is not uncommon for witnesses called by both the General Coun- sel and respondents' counsel to willfully give false testimony before ad- ministrative law judges in Board-conducted unfair labor practice hear- ings, yet the Board does not construe this type of misconduct as consti- tuting the type of interference with the Board or its administrative law judges, in the performance of their duties, so as to warrant the Board taking action under Sec 12 of the Act 14 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 Manuel Ortiz Abraham Chavez Ruben Moreno Vicente Cruz (b) Remove from Respondent's files any reference to the discharges of the above-named employees and notify them in writing in English and in Spanish that this has been done and that evidence of these discharges will not be used as a basis for future discipline against them (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in Dixon, California, copies in English and Spanish of the attached notice marked "Ap- pendix "" Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by 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 Respondent has taken to comply If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT discharge or threaten to discharge our employees for engaging in protected concerted activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act WE WILL make the employees named below whole for any loss of earnings or employment benefits which they may have suffered by virtue of their unlawful discharge on June 14, 1989, by paying them an amount equal to what they would have earned from the date of their dis- charge to the date that they were reinstated or refused an offer of reinstatement, with interest Francisco Bravo Giullermo Montoya Jose Escobar Daniel Moreno Jose Loarco Guadalupe Aguilera Manuel Manmas Ricardo Jimmez 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Juan Sandoval Jose Martin Ramirez them in wntmg in English and in Spanish that this has Allejandro Villanueva Antonio Flores been done and that evidence of these discharges will not Manuel Ortiz Abraham Chavez be used as a basis for future discipline against them Ruben Moreno Vicente Cruz WE WILL remove from our files any reference to the SDC INVESTMENT, INC discharges of the above-named employees and notify