Russ Togs, Inc.

RUSS TOGS, INC. Russ Togs, Inc. and Hector Ortega. Cases 29-CA- 6589 and 29-CA-6672 December 15, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 3, 1980, Administrative Law Judge Robert M. Schwarzbart issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a cross-exception and a brief in support of its cross-exception and in response to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law i Respondent and the Charging Party have excepted to certain credi- bility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judg's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Stand- ard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge concluded that Respondent violated Sec. 8(aX3) and (I) of the Act by laying off and refusing to recall Hector Ortega and Wing Shung Lam principally for their activities in encourag- ing employees to file grievances concerning wage rates. We agree that the violations occurred but analyze the case based on our recent decision in Wright-Line A Division of Wright-Line. Inc, 251 NLRB No 150 (1980) We find that the General Counsel made a prima facie showing that the protected activities of Ortega and Lam were a motivating factor in Re- spondent's decision to lay them off permanently The record reveals that Respondent's supervisor, Morris Sadicario, summoned Ortega to his office 2 days after Ortega began to advise other employees of their wage rights under the collective-bargaining agreement on or about February 15. 1978 At that time, Sadicario coercively interrogated Ortega concern- ing these discussions with the other employees, threatened Ortega with discharge, and transferred him to a position that involved more arduous duties. The harassment by Respondent extended to Lam as well; he was also coercively interrogated and transferred, and both men were subject- ed to extremely close supervision. In addition, on March 21, 1978, Sadi- cario, in response to Lam's inquiry as to why he had not been recalled, stated that Lam should have come to him with his wage claims rather than going around speaking to everyone else Respondent's other 8(aXI) activities, particularly Sadicario's surveillance of the employees who were going to the union hall to file grievances, are further evidence of its animus toward the protected grievance activity, This evidence submitted by the General Counsel effectively shifted the burden to Respondent to show that it would have laid off Ortega and Lam even in the absence of their clearly protected activity. Respondent contends that it disclharged Lam and Ortega because they urged other employees to engage in a slowdown, and presented witnesses who testified that this activity was re- ported to Respondent as early as February 2, 1978. Respondent received other reports throughout February and early March, but did not begin its pattern of harassment of Ortega and Lam until it learned that the two men were urging employees to file wage grievances, and did not lay them off until March 9, 1978, after it raised employees' wages to the level agreed upon in the contract. Not only does the factor of timing under- mine Respondent's defense, but also Respondent gave shifting reasons for 253 NLRB No. 99 Judge and to adopt his recommended Order, as modified herein.3 In adopting the Administrative Law Judge's con- clusion that Respondent violated Section 8(a)(3) and (1) of the Act by laying off and refusing to recall Hector Ortega and Wing Shung Lam, we agree that we should not defer to the arbitration award concerning these layoffs because it does not meet the requirements of the Board's decision in Spielberg Manufacturing Company.4 The record reveals that Lam and Ortega filed grievances stating that they were not being paid the wage rate as set forth in the collective-bargain- ing agreement, and urged other employees to take the same action. In this context, they also urged employees to engage in a slowdown. The griev- ances were not filed through the shop steward, Miguel Lopez, 5 but were presented to the union president, Henry Prastien, at the union hall. Re- spondent received reports on Lam's and Ortega's grievance activities and urging of a slowdown from several sources, including Lopez. Once it learned of their grievance activity, Respondent immediate- ly embarked on a pattern of harassment of Lam and Ortega. 6 Shortly after some employees' wages were raised to the contract level, Respondent laid off Lam and Ortega; the two men were told they were being laid off because there was not enough work. Super- visor Morris Sadicario admitted that Lam and Ortega were laid off in the hope that they would the layoffs. Ortega and Lam were initially told by Sadicario that they were being laid off because there was not enough work. After Lam dis- covered that other employees were working overtime while he and Ortega had not been recalled, Respondent claimed that Lam and Ortega were not being recalled because they had intimidated a worker Finally, at the arbitration hearing, Respondent took the position that the layoffs were motivated by Lam's and Ortega's speeches urging a slowdown In view of the foregoing, we conclude that Respondent has failed to meet its burden of showing that the same action would have taken place in the absence of Lam's and Ortega's protected activity, and therefore affirm the Administrative Law Judge's conclusion that the layoffs violated Sec. 8(a)(X3) and (1). 3 We shall modify the Administrative Law Judge's reinstatement order to conform to Board language by deleting the words "if available," and shall modify the notice accordingly. 4 112 NLRB 1080 (1955) 5 Lopez did not possess a copy of the collective-bargaining agreement, and did not know the correct wage rate There was evidence that Lopez had been shop steward for over 20 years and had not filed one grievance in the 10-year period preceding the incidents outlined herein The Ad- ministrative Law Judge found that Lopez was a supervisor within the meaning of the Act, and that a conflict of interest existed between his supervisory responsibilities and his duties as shop steward, as shown by his reporting of Lam's and Ortega's activities to management. The Ad- ministrative Law Judge concluded, and we agree, that Respondent's deal- ing with Lopez as shop steward violated Sec 8(a)2) of the Act. a This harassment took the form of coercive interrogation, threats of discharge, transfer of Ortega and Lam to positions requiring more ardu- ous duties, extremely close supervision of Ortega and Lam, surveillance. and the coercive searching of an employee The Administrative Law Judge found, and we agree, that Respondent's actions as described above violated Sec. 8(a)(1) of the Act 767 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not attempt to return to work. Lam made several attempts to return until Prastien informed him that Respondent would not recall either him or Ortega because they had intimidated a worker. Both men grieved their discharges. The grievances proceeded to arbitration. Two weeks before the date set for the hearing, Lam called Abraham Schlesinger, the attorney for the Union, and attempted to make an appointment with him to discuss the case. Schlesinger refused to meet with Lam at that time, and told Lam, "I represent the Union, not you." When Lam and Ortega finally met with Schlesinger 2 days before the hearing, they told Schlesinger they had several witnesses to call in their behalf. Schlesinger took the position that these witnesses would not be necessary. He told Lam and Ortega that the hearing was for the sole purpose of allowing Respondent to put on its case, and that the hearing would be adjourned as soon as Respondent had finished doing so. At the hearing, Respondent presented several witnesses who stated that Lam and Ortega had urged a slow- down. Lam and Ortega were the only witnesses in their own behalf. Lam again urged Schlesinger to present witnesses for his case, and Schlesinger again refused. The arbitrator found that Lam and Ortega were discharged for cause in that they had urged other employees to engage in a slowdown. Respondent submitted this award as an affirmative defense to the allegation in the complaint that it violated Sec- tion 8(a)(3) and (1) by discharging Lam and Ortega, and urged that the Board defer to this award. As stated above, we will not defer because we find that the arbitration proceedings were not fair and regular. The Union's role as representative of the employees was called into question even before Lam and Ortega were laid off. When the two men discovered that employees were not being paid the contract wage and urged the employees to grieve the underpayment, it was their own shop steward who reported their activities to Respondent with- out even discussing the matter with them. Steward Lopez also informed management that Lam and Ortega were telling employees to slow down in protest. After Lam and Ortega were discharged they were told by the Union that that their dis- charges would be taken to arbitration with a union attorney representing them. When Lam attempted to contact Union Attorney Schlesinger to discuss the case, Lam was told that the representation was for the Union, and not the dischargees. Inherent in Schlesinger's remark is the recognition of the fact that the interests of the Union and the dischargees diverged. The accuracy of this assessment cannot be seriously doubted in a case where, as here, Re- spondent contends that the report of Union Ste- ward Lopez to management concerning the activi- ties of Lam and Ortega contributed to the action taken against them. The Board has held that it will not defer to the arbitration process when the Union's interests are adverse to those of the employees, 7 and it has re- fused to defer to existing arbitration awards where such a situation exists.8 This case clearly falls within that category. We are not willing to exam- ine the union attorney's strategy in conducting the hearing and therefore do not in any measure base our finding that the proceedings were unfair on his decision not to call witnesses for Lam and Ortega. Rather, we find from the totality of the circum- stances, particularly Lopez' conduct before the dis- charges and Schlesinger's statement of position to Lam, that the Union's interests were clearly in sub- stantial conflict with those of Lam and Ortega, and the proceedings were therefore not fair and regu- lar. In addition, the arbitrator's award was repug- nant to the Act because it permitted the discharges to stand even though, as the arbitrator believed, Respondent urged or admitted that they were caused by activity protected by the Act; i.e., Lam's and Ortega's filing of grievances. That, contrary to what the arbitrator stated, Respondent may not have urged this reason to the arbitrator as a de- fense (wisely, if that is the case) does not change the arbitrator's preception that this was in fact a reason for the discharges, nor his decision that Re- spondent could make the discharges with impunity, nor the repugnance of such a decision to the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Russ Togs, Inc., Queens, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Wing Shung Lam and Hector Ortega immediate and full reinstatment to their former po- sitions or, if those positions no longer exist, to sub- stantially equivalent positions, with the wage rate they enjoyed at the time they were terminated, ' Kansas Mea Packers. a Division of Arisro Foods, Inc., 198 NLRB 543 (1972). ' The Mason and Dixon Lines. Inc., 237 NLRB 6, 12-13 (1978); 7:I.ME-DC. Inc., 203 NLRB 1141, 1149 (1973), enfd. 504 F2d 294 (5th Cir 1974). 76X RUSS TOGS, INC. plus any increase, and without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any losses they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER PENELLO, dissenting in part: I regret that I must take a separate position in this case. Inasmuch as I am in complete agreement with my colleagues as to the findings of violations of Section 8(a)(l), (2), and (3) of the Act, as well as the conclusion that we should not defer to the arbi- tration award, it is unfortunate that we cannot agree upon the rationale for that refusal to defer. I find that I am compelled to set the record straight as to the proper basis for this refusal. To this end, I must dissent. In 1955, in Spielberg Manufacturing Company,9 the Board adopted a a doctrine of deferral to arbi- tration awards as long as three requirements are met: The proceedings are fair and regular, all par- ties agree to be bound, and the arbitration decision is not clearly repugnant to the Act. My colleagues here weaken this policy of deferring to private mechanisms for resolution of disputes by going beyond the requirements set forth in Spielberg. I agree with my colleagues that this arbitration did not meet our standards for deferral under Spiel- berg on the ground that the proceedings were not fair and regular. We need go no further in our ex- amination of the award. My colleagues, however, insist upon doing so, and I cannot agree with their conclusion that the award was repugnant to the Act. A close review of the transcript of the arbitra- tion proceeding and the award itself reveals that the arbitrator initially erred in characterizing Re- spondent's position in the arbitration proceeding. In his award, the arbitrator set out four contentions of Respondent: () Lam and Ortega were discharged because they encouraged fellow workers to slow down the pace at which they were working and to abstain from working overtime; (2) Lam and Ortega abused and intimidated employees who did not agree with their views; (3) the conduct of Lam and Ortega violated the "no-strike" clause of the collective-bargaining agreement; and (4) Lam and Ortega harassed Respondent by encouraging fellow employees to file grievances. The arbitrator was mistaken as to the fourth contention; at no time during the proceedings did Respondent refer to the dischargees' grievance activity as a reason for the 9 112 NLRB 1080, 1082 (1955) discipline. Rather, it was Lam and Ortega who argued that their protected activity was the reason for the discharges. The arbitrator went on to examine the testimony at the arbitration proceeding and concluded that Lam and Ortega were actually discharged for en- couraging fellow workers to engage in a slowdown by using threats and intimidation, and that this ac- tivity constituted just cause for discharge. He found that the "no-strike" clause of the contract was not breached by Lam and Ortega as they were not parties to the contract. As to the grievance activity, the arbitrator stated: "[R]eferral of employees by Lam and Ortega to the Union for the purposes of filing grievances is not a reason for discipline. In order to maintain a healthy labor relations atmosphere, workers must be free to solicit aid and advice from their Union and to encourage others to do like- wise." The Administrative Law Judge found that the arbitrator "completely disregarded the Respond- ent's contention at [the] proceeding that Lam and Ortega were terminated, in part, for having encour- aged 'fellow employees to file grievances with the Union,' activity protected under the Act." The Ad- ministrative Law Judge also stated that the arbitra- tor found that a reason for the discipline of Lam and Ortega was their protected activity and then disregarded this finding in his conclusion that Lam and Ortega were discharged for cause. The Admin- istrative Law Judge thus concluded that the award was repugnant to the policies of the Act.1 0 I cannot agree with the Administrative Law Judge's findings. Even though the arbitrator was mistaken about Respondent's position in the arbitra- tion proceedings, a fact which the Administrative Law Judge failed to discern, the arbitrator clearly found that the protected activity was not a reason for the discharges. After stating that the discipline was in fact motivated by the slowdown activity, he went on to state that referral of employees to the Union is not a reason for discipline. Yet my colleagues agree with the Administrative Law Judge that this award is repugnant to the Act. They do not rely on the error of the Administra- tive Law Judge, who mistakenly stated that the ar- bitrator "found" that protected activity was a reason for the discharges. As noted above, the arbi- trator did not make such a finding. Rather, my col- 'l The Adminstrative Law Judge also concluded that the arbitration award failed to meet the requirements of Suburban Motor Freight. Inc, 242 NLRH 22 (980) For the reasons set forth in my dissent in that case, I would not refuse to defer to an arbitration award, in an alleged discrim- inatory discharge or discipline case, solely because the unfair labor prac- tice issue was not raised in the arbitration proceeding 769 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leagues state that the award is repugnant because the arbitrator "believed" that Respondent asserted the grievance activity as a reason for the dis- charges, but permitted the discharges to stand. Had the arbitrator indeed found that the dis- charges were motivated by the protected grievance activity and nonetheless concluded that the dis- charges were for cause, I would not hesitate to join my colleagues in characterizing the award as "clearly repugnant to the Act," as enunciated in Spielberg. However, where, as here, the arbitrator mistakenly described one of Respondent's positions and went on to state that employee misconduct rather than protected activity caused the dis- charges, my colleagues do injustice to the Spielberg doctrine by finding the award repugnant. In this case, we have found that the Union's in- terests conflicted with those of the dischargees, and thus the entire arbitration proceeding did not con- form to the Spielberg "fair and regular" standard. Having so concluded, an examination of the merits of the arbitrator's decision is a needless and waste- ful exercise in which I am compelled to participate because of the majority's gratuitous statement that the award is repugnant to the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT interfere with the administra- tion of Snow Suits, Ski Wear, Leggings, In- fants and Novelty Sportswear Union, Local 105, International Ladies' Garment Workers' Union, AFL-CIO, by recognizing or dealing with any person as shop steward or other agent of the Union while that person is our su- pervisor. WE WILL NOT coercively interrogate you about your activities on behalf of the above- named Union, or any other labor organization. WE WILL NOT threaten you with discharge or layoff because of your union and protected concerted activities, including any efforts you may make to enforce the collective-bargaining agreement we have with the above-named Union. WE WILL NOT conduct surveillance of your union activities. WE WILL NOT subject you to physical searches because of your union activities. WE WILL NOT transfer you to other work stations and to harder duties because of your union and protected concerted activities. WE WILL NOT subject you to unusually close supervision because of your union and protected concerted activities. WE WILL NOT discharge, permanently lay off, or otherwise discriminate against you be- cause of your union and protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL offer Wing Shung Lam and Hector Ortega immediate and full reinstate- ment to their former positions or, if those posi- tions no longer exist, to substantially equiva- lent positions, without loss of seniority or any other rights and privileges previously enjoyed, and WE WILL make them whole, plus interest, for any losses they may have suffered as a result of our discrimination against them. Russ TOGS, INC. DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: These cases were heard in Brooklyn, New York, on April 30, May 1, 2, and 3, and June 11 and 12, 1979. The charges were filed by Hector Ortega, an Individu- al. l The complaints,2 consolidated for hearing by an order dated March 23, 1979, allege that the Respondent violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent in its answers denies the commission of unfair labor practices. The Issues 1. Whether the Respondent violated Section 8(1) and (3) of the Act by laying off and refusing to recall its em- ployees Wing Shung Lam and Hector Ortega because they tried to enforce the wage provisions of the collec- tive-bargaining agreement between the Respondent and Snow Suits, Ski Wear, Leggings, Infants and Novelty Sportswear Union, Local 105, International Ladies' Gar- ment Workers' Union, AFL-CIO, herein called the Union, 3 and led other employees to do the same, or I The respective charges in Cases 29-CA-6589 and 29-CA-6672 were filed on August 3 and September 18, 1978. 2 The complaints in Cases 29-CA-6589 and 29-CA-6672 issued on March 2, 1979, and October 31, 1978, respectively, in inverse order to the dates of the charges. 3 The Respondent subscribes to the collective-bargaining agreement through its membership in Infants' and Children's Coats Association, Inc.. Continued 770 RUSS TOGS, INC. whether Lam and Ortega lost their jobs because they harassed other employees and encouraged them to engage in a work slowdown prohibited under the "no- strike" provision of the contract. 2. Whether the Respondent violated Section 8(a)(l) of the Act by taking the following actions against its em- ployees for engaging in protected concerted activities in enforcement of the wage provisions of the contract: (a) Coercively interrogating employees. (b) Threatening employees with discharge, layoff, and other reprisals. (c) Subjecting employees to surveillance and close supervision. (d) Transferring employees to different job loca- tions within the plant. 3. Whether the Respondent assisted the Union in viola- tion of Section 8(aX2) and (1) of the Act by dealing with Miguel (Mike) Lopez, an alleged supervisor, as sole shop steward under circumstances which conflicted with the interests of employees, or whether Lopez was not a su- pervisor within the meaning of Section 2(11) of the Act. 4. Whether the employment loss by Lam and Ortega should be deferred to arbitration pursuant to the Board's policy enunciated in Spielberg Manufacturing Company. 4 All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, filed by all parties herein, have been carefully consid- ered. Upon the entire record in the case s and my observa- tion of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation, at all times material herein has maintained its principal office and place of business in Long Island City, Queens, New York, where it is, and has been at all times material herein, engaged in the cutting, sale, and distribution of clothing and related products. During the year preceding issuance of the complaints herein, a representative period, the Respondent, in the course and conduct of its business, purchased and caused to be transported and delivered to its Long Island City plant fabrics and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its plant in interstate commerce directly from States of the United States other than the State of New York. Upon the foregoing conceded facts, I find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. and Manufacturers of Snowsuits, Novelty Wear, and Infant's Coats, Inc. an employer association. 4 112 NLRB 1080 (1955). a Certain errors in the transcript are hereby noted and corrected. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent, engaged in the production of cloth- ing at its Long Island City, New York, plant, through membership in Infant's and Children's Coats Association, Inc., and Manufacturers of Snowsuits, Novelty Wear, and Infant's Coats, Inc., jointly an employer association, has recognized the Union as bargaining representative for certain of its employees.6 The collective-bargaining agreements current at the time relevant herein, effective from June 1, 1976, to May 31, 1979, provided for union security and a grievance procedure culminating in bind- ing arbitration before an impartial chairman designated in the contract. The agreement also contained a "no-strike, no-lockout" provision. The Respondent's traffic and security manager is Morris Sadicario, who, in his role as security manager, supervises four guards. Sadicario's responsibilities in traf- ficking include general supervision of the shipping area. The Union's shop steward at this plant during the events herein was Miguel (Mike) Lopez, whose status will be discussed below. B. The Supervisory Status of Miguel (Mike) Lopez- Facts and Conclusion The General Counsel and The Union assert that Lopez is a supervisor within the meaning of the Act and that the Respondent, among other things, violated Section 8(a)(2) and (1) of the Act by dealing with him as the Union's shop steward in the plant in ways which con- flicted with the employees' interest. The Respondent denies that Lopez is a supervisor and asserts that he merely was a shipping clerk and its most experienced employee in that area. Sadicario identified certain supervisors who serve under him in overseeing various departments or sections within the plant-Aurelio Gonzales and Moe Fletcher on the first floor and Jay Berman and Jack Rampersaiz on the balcony. While the different sections under each of these supervisors specialized in diverse types of gar- ments, personnel assigned to these sections all worked as order pickers.8 A fifth supervisor, Bruno Campanella, had responsibility for the dock area, where trucks were 6 The bargaining unit as agreed by the parties includes: All operators, sample hands, machine pressers, ironers, finishers. shipping clerks, floor workers, markers, graders and cutters em- ployed by the Respondent at its Long Island City, New York, plant. In addition to the Union herein, the International Ladies' Garment Workers' Union and its Local 10 are also signatories to the contract. a Order pickers fill various orders by selecting from inventory garment items, according to specified size, color, and style, in the appropriate quantities. The selected items generally are hung on garment cart racks and forwarded for packing and shipment 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loaded.9 Each of these individuals supervised up to 10 employees at different times as assigned by Sadicario. Sa- dicario, in addition, also personally supervised from 5 to 35 packers. Lopez has been employed by the Respondent since 1953 and was shop steward from about 1956 until May 1979, when, after the start of the hearing in this matter, he was forced to resign as steward by Union President Henry Prastien. Wing Shung Lam, one of the alleged discriminatees herein, testified that he initially worked as a marker °0 under Lopez. Lam related that when first hired, in mid- June 1977, Traffic Manager Sadicario brought him to Lopez in the shipping area on the first floor of the Re- spondent's three-story plant, and told Lam that he would be working for Lopez, which Lam continued to do for the next 2 months until he received a different job classi- fication and immediate supervisor. On Lam's first day with the Respondent, at Lopez' di- rection, he worked until 1:30 p.m., well past the noon lunch break, and, later, when Lopez took him for lunch to an outside cafeteria, Lam was not required to punch out as was the lunchtime custom. On that occasion, Lopez told Lam that he was the foreman and, if Lam worked for him, Lopez would take care of him. Lam related that he was one of seven markers who re- ported to Lopez. Lopez alone assigned his daily tasks and instructed Lam as to when and how to unload boxes, " and, on one occasion, told Lam to fill in tempo- rarily as a packer in the packing section which then was shorthanded. In the mornings, Lopez usually worked with Lam in loading and unloading trucks. In the afternoons, howev- er, while Lam and the others worked and processed packages on the line, Lopez sat idly at his desk in the shipping area. If things were busy, however, Lopez would continue to load and unload into the afternoon. According to Lam, while some of the markers worked on small tables, only Lopez had his own desk which held a telephone and Lopez' personal items. Lopez also used the desk to store union books, which he sold to the new members. In assigning duties, Lopez told Lam and each of the seven markers employed in that section where to work each day and whether to unload boxes and place them on skids or to remove the boxes from the skids and load them on trucks. He also designated which employees should mark the packages. Each morning, Lam would go to Lopez for assignment. Although Sadicario, to whom Lopez reported, was responsible for the shipping area, to Lam's knowledge he never directly assigned work there. On one occasion, Lopez gave Lam the key " Apart from being identified by title, Campanella was not again re- ferred to by the Respondent and the record contains no evidence that he exercised authority over Lopez. This also is true of Shipping Supervisor Elliott Cohen, who will be referred to in a different connection. io Markers in the Respondent's shipping department receive packaged outbound goods, and weigh and add postage as necessary. They then send the packages to the trucks, which they also help load and unload. Markers also work on bills of lading and invoices. Ad Procedurally, in unloading, box numbers on packages delivered to the Respondent's plant are read aloud and checked off against invoices to ensure accuracy. to the Respondent's van, directing him to drive a compa- ny official to a given destination, and, in two other in- stances, Lam was sent by Lopez to assist another em- ployee in making deliveries. Lam's account of Lopez' duties are to some extent corroborated by Hector Ortega, the other alleged discri- minatee. Ortega, who never had reported to Lopez, was employed principally as an order picker on the balcony above Lopez' work area. Ortega testified that, from the front of the balcony where he mostly worked, he overlooked Lopez' station and could see him at work. As Ortega was about a city block away from Lopez' area, he could not hear Lopez' voice unless raised, but he could see Lopez point and otherwise gesture to employees as though giving them instructions. On rare occasions, Ortega would see Lopez move a box. 12 Lopez' personnel envelo-file 13 notes Lopez' position as "Ship Super Packer" as of a time pre- ceding May 1967. These records also reveal that in March 1978, the period principally considered herein, Lopez earned approximately 25 percent more per week than the next most highly paid employee. Although not reflected in his pay history, Lopez testified that he had received wage increases when other union personnel did not. Lopez and Traffic Manager Sadicario both denied that Lopez was a supervisor. Lopez testified that he was a shipping clerk and that he reported directly to Sadicario, and denied that Sadicario ever had introduced him to Lam or to any other employee as a supervisor. Since 1953, when Lopez began to work for the Respondent, he has filled every position in the shipping department and has continued to perform drivers' tasks around that de- partment as required, except that he no longer did pack- ing. Lopez began each day by loading and unloading the same truck from the same concern, stacking the cartons. This usually took all morning and occasionally continued after lunch. Lopez asserted that he was the only employ- ee regularly assigned to load and unload trucks, except that Sadicario assigned different employees to work with him. 14 Two such employees, Jose Javier Lopez and Cesar Bueno, appeared as witnesses for the Respondent. Jose Lopez corroborated Mike Lopez' denials of supervi- sory status, relating that he, too, reported to Sadicario with respect to all matters, rather than to Mike Lopez. A third employee, Louis Enrique Padilla, testified that while employed by the Respondent as a marker or stock clerk from October 1977 to early August 1978, when he resigned his employment, he reported to Sadicario rather than to Lopez. Padilla related that he did different jobs 12 Early in their respective periods of employment with the Respond- ent, other employees had informed Lam and Ortega that Lopez was the shop steward. Each had obtained union membership books from Lopez and had paid him their dues. Ortega testified that he had stopped paying his dues to Lopez when, in late 1977, about I week after complaining to Lopez about his pay scale, he was laid off. After recall, Ortega paid his dues directly to the Union. "' Personnel envelo-files are personnel file jackets where employee wage histories are recorded 4 Initially, Lopez testified that the only employees who assisted him in loading and unloading trucks were volunteers. 772 RUSS TOGS, INC. on different days and could not himself decide which job he was to perform on any given day as his assignments were constantly changing. Accordingly, Sadicario told him what jobs to do each day and Lopez assigned his work when Sadicario was absent. Padilla initially testi- fied with respect to overtime that he himself could see if overtime work was required. Sadicario would assign his overtime if there was any to be done and he was vague as to whether overtime work was mandatory, 5 which, in fact, it was not. Lam's initial job with the Respondent was to assist Lopez in loading and unloading trucks, but after about 2 months he told Lopez that his back hurt and that he would have to seek lighter work. Lopez reported this to Sadicario without recommendation and it was Sadicario who decided to reassign Lam as an order picker. As Sa- dicario recalled the incident, Lam could not express him- self in English at the time well enough to explain his problem and Lopez was present to help him communi- cate his request for less heavy work. In the afternoons, Mike Lopez would assist other ship- ping department employees, as needed, deciding on his own where he could be most useful. If necessary, he would return to loading and unloading any late arriving trucks as this was his primary assignment. He and the other shipping clerks, including Bueno and Jose Lopez, also used the desk in the shipping area to do necessary paperwork, including preparation of bills of lading and invoices. Lopez denied that he kept any personal items in the desk draws, as charged by Lam, except that he did keep union books and materials stacked on top in con- nection with his duties as steward. Other shipping clerks, however, did keep belongings inside the desk. Lopez was hourly rated as were other shipping depart- ment personnel and, although Lam and Ortega testified that they had not seen him do so, he punched a time- clock and received overtime pay. Contrary to Lam, Lopez denied that, on Lam's first day, he had excused Lam from punching out at lunchtime, or that he had ever sent Lam for coffee. Lopez testified that he never has had nor exercised au- thority to hire or fire anyone. He has not given employ- ees oral warnings, initialed timecards, given employees permission to leave early, granted or denied leaves of ab- sence, excused employee lateness, or transferred or changed the work hours of employees in the shipping de- partment. All the foregoing were done by Sadicario. Sa- dicario also decided who would be laid off and recalled. Lopez denied playing any role in making job assign- ments, affording promotions, or in making effective rec- ommendations concerning employees in their work. According to Lopez, Sadicario determines the jobs to be performed by new shipping department employees, and their training depends upon where they are assigned. New packers are trained by more experienced packers. I' On cross-examination, Padilla first testified that he worked every day of the week until 515 p.m. because of required overtime However. during March and April of 1978. he did not work overtime because there was not much. He then related that he did not work overtime every day and that he could not remember when he orked overtime Ultimately, Padilla testified that he could not remember anything :e Lopez related that the matter of timecards had come up but once when he had refused Lam's request to sign his card Lopez, too, has trained new employees, but so have all other shipping clerks, including Bueno and Jose Lopez. Mike Lopez does not attend supervisory meetings. I do not credit the Respondent's witnesses, specifically Mike Lopez, Padilla, Cesar Bueno. and Jose Lopez, where they denied Mike Lopez' authority, as they were evasive and evidenced selective memories. Mike Lopez and Jose Lopez initially could not recall having met with the Respondent's attorney to discuss their testimony before being called as witnesses. Jose Lopez, additional- ly, could not remember that he testified at the arbitration proceeding in April 1978 concerning the refusal to recall Lam and Ortega while Padilla's ultimate statement was that he "could not remember anything." What these wit- nesses could recall appeared to be tailored. 17 From the credited evidence, I find that Mike Lopez was a supervisor within the meaning of Section 2(11) of the Act in March 1978 when the events herein took place. While there was a measure of repetition in the nature of the work done in his area, employees did work at different jobs and Lopez decided where each employ- ee would work during the day. As Lam testified, Lopez assigned and transferred employees to different jobs. The Respondent, in abbreviating its personnel records, noted Lopez to be a supervisor and compensated him at a rate 25 percent above the next highest paid employee. The Respondent's witness, Padilla, testified that, when Sadi- cario was away from the plant, he would receive his as- signments from Lopez. Moreover, Sadicario rarely came to the marking area.t ' Although Lopez did not have au- thority to hire, fire, discipline, promote, or layoff em- ployees, he did direct them in more than routine fashion and the employees in his area would have been without supervision for substantial periods of time if Lopez were not found to be a supervisor. 19 Also, noting his freedom of movement, of job selection, and the other above facts, the Respondent has placed Lopez in a position where employees could reasonably believe that he spoke on behalf of management. Having concluded that Lopez is a supervisor, the matter of whether the Respondent violated Section 8(a)(2) and (1) of the Act by its manner of dealing with him as shop steward will be considered later in the con- text of the factual findings to be made herein. L7 Ortega. on the other hand, appearing for the other side, overstated his case in testifying that he only rarely saw Mike Lopez pick up a box. as both Lopez and Lam agreed that Lopez loaded and unloaded freight and otherwise worked .with packages for at least the first half of each day. While Ortega's testimony on this point is not credited. it is second- ary as he never worked with Mike Lopez and had limited opportunities to observe Lopez at work is In reaching the conclusion herein, it also is noted that Sadicario, with responsibility for assigning work and staff to 5 supervisors for the order pickers, and with personal supervision over about 30 packers and 4 guards, could have had but little time to oversee the work in Lopez' area. "' Jack Sthlaual,. Jr., dh/a Aurora and ast Denver Trash Disposal, 218 NLRH i, 10 (1975); Stephens Produce Co., Inc. and Temple Stephens Com- pan., 214 NlRB 131. 133 (1974) 773 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Events Leading to the Layoffs of Wing Sung Lam and Hector Ortega-Facts On Monday, February 13, 1978, Hector Ortega com- plained to Wing Shung Lam2 0 that he was only earning $112 a week, when he believed that under the union con- tract he should have been making $127. When Ortega, for comparison, asked what Lam was receiving per week, Lam replied that he was earning $119. Ortega de- clared that he was being discriminatorily underpaid. He and Lam agreed that Ortega should go to the union office for clarification, which Ortega did that evening after work. Although Ortega did not succeed in obtain- ing a copy of the collective-bargaining agreement that evening, he did take with him two booklets which showed that shipping clerk/order pickers were scheduled to earn $127.75 per week. 21 Although the work shift did not began until 8 a.m., starting at or about 7:30 a.m., a number of employees regularly congregated in an area of the first floor of the plant. On the morning of February 14, before work began, Ortega brought his union booklets to that area and showed them to Lam and about 10 to 15 employees gathered there. Ortega told the workers that the booklets showed that for that month they were supposed to be earning $127.75 per week rather than the $119 that many were getting and announced that he was going to the Union that evening to tell its officials that the employees were supposed to be increased to the rates shown in the booklets. Other employees agreed to accompany Ortega to the union hall that day at 3:45 p.m., the end of the work shift. Accordingly, when work ended that day, Lam, Ortega, and a group of employees went to the Union's offices where they awaited the arrival of the Union's president, Henry Prastien. As requested, Prastien did give the employees a copy of the contract and Lam filed grievances that he was being paid less than the con- tract rate and, also, that he had not received pay for cer- tain holidays. The next morning, February 15, again before work, Ortega read from the contract to a group of about 20 to 30 assembled employees, telling them that the contract clearly indicated that shipping clerks should be earning $127.75 a week. Ortega's remarks were translated to those employees who did not speak English. The em- ployee reaction was strong. Some stated that they had been underpaid for years. Many wanted to go to the Union. That morning, about an hour after work began, Ortega was paged on the plant public announcement system, and told by his foreman to see Traffic Manager Sadicario and Shipping Manager Elliott Cohen. 22 Ortega testified that, when he entered Sadicario's office, Sadicario asked what kind of trouble was he 20 In February 1978, Lam and Ortega were both employed as order pickers on the balcony. As noted, Lam had begun his employment with the Respondent in mid-June 1977 helping Mike Lopez load and unload trucks until being reassigned as an order picker approximately 2 months later. Ortega had worked as an order picker since mid-1976 when he began to work for the Respondent, 21 Under the collective-bargaining agreement order pickers are includ- ed in the definition of shipping clerks. 22 At the hearing, the parties stipulated that Cohen was a supervisor under Sec. 2(11) of the Act. trying to start for the Company. Ortega replied that he was not trying to start any trouble. All he wanted was what he was supposed to be earning and to receive whatever the contract said he was supposed to be making. Sadicario asked if Ortega thought he was being paid enough. When Ortega replied that he did not, he was told that, if he did not like what he was making, then from that minute on he was going to be a packer. Ortega stated that Sadicario could not just change his job because he had said he was being underpaid. Sadi- cario retorted that, if Ortega did not like it, he should get out. Ortega declared that he was not going to get out unless Sadicario fired him or laid him off. Sadicario an- nounced that Ortega was not going to work there any- more. When Ortega stated that he wanted to speak to the union representative, Sadicario called in Mike Lopez. Ortega sat at Lopez' desk in the shipping area while Lopez telephoned Union President Prastien. Sadicario stood nearby. When Lopez reached Prastien, he handed the receiver to Ortega. Ortega told Prastien that the Company wanted to change him to a packer and that they did not want him to work for the Company any- more. Prastien told Ortega to do whatever the Company told him to do. Ortega responded that he had never been a packer before. Prastien then asked to speak to Sadi- cario. Ortega heard Sadicario tell Prastien that Ortega was trying to start trouble and that he did not want him working there. After the conversation, Sadicario told Ortega to follow him. En route to the third floor, Sadicario asked Ortega why he had not come to him when he learned that he was supposed to be making $127.75. Ortega explained that the last time he had gone to speak to someone about his wages he had been laid off,23 which was why he had raised the matter with the Union at this time. Sadicario asked why Ortega had to tell everybody and had not just told Sadicario who would have fixed the problem. Sadi- cario told Ortega to look after himself and that he did not have to look after anybody else. Ortega answered that it was not just him that the Company was underpay- ing, but the other employees as well, and they were Or- tega's friends. Sadicario then reassigned Ortega to work on the third floor. Ortega testified, without contradiction, that his duties on the third floor, although still involving order picking, were more onerous than his prior assignment on the balcony. His former duties had required that he select inventoried garments hanging on racks as specified in the customer's orders, and rehang them on racks on garment carts. After each cart was filled, it was taken to the line and left there. On the third floor, however, Ortega was required to pick orders pursuant to the speci- fied colors and styles and place the selected items in boxes which were then lifted onto carts. When each cart was full, he was required to take it to the first floor. He then would return to the third floor to resume this cycle. Not only had it been easier to rehang the garments onto the cart racks than to place them in boxes, but on the third floor, instead of merely moving the cart a short dis- 23 As noted, Ortega contended that he had been laid off in late 1977, approximately I week after protesting his wage rate to Mike Lopez. 774 RUSS TOGS. INC. tance and leaving it as before, he was required to push the cart across to the other side of the hallway, and take it down to the first floor by elevator before returning to his floor to begin again. He was paid the same rate for both jobs. Lam testified that, at or around 2 p.m. on February 15, he was at work on the balcony when Sadicario arrived and told Foreman Jay Berman that a lot of people were going to the Union. He heard Berman reply that it sounded like everyone was going. Sadicario left, but, at or about 3:45 p.m. that day, he again returned to the bal- cony and told Berman that the employees had to work until 5:15 p.m. Berman then approached Lam and told him that he was to stay that day until 5:15. Lam refused. That afternoon, at or around 3:45, when the shift ended, Lam, Ortega, and about 30 employees lined up at the timeclock to punch out before going to the union hall. As they waited their turn at the timeclock, the em- ployees saw Sadicario near the timeclock holding paper and pencil, and writing as the employees punched out. None of the employees could see what he was writing.2 4 Samuel Rodriguez, 2 5 an order picker, testified that on that occasion he heard Sadicario repeatedly tell the em- ployees as they punched their cards that they could stay to work, there was an hour of overtime, and the Compa- ny had the work, and, in case of layoff, the employees who were going to the Union that day would be the first to be laid off. According to Rodriguez, Sadicario stated this repeatedly to the employees on the line. That afternoon, Lam, Ortega, Rodriguez, and approxi- mately 40 employees, mostly packers and order pickers, went to the union hall and met with the Union's presi- dent and controller and one other representative. The employees pressed their demand that the Union process a grievance to get the correct amount of pay. Lam testified that on Friday, February 17, as his shift began, his foreman, Jay Berman, reassigned him from the balcony to work on the first floor in a garment sorting section, the first time he had ever been asked to work there. At or about 4 p.m. that day, Lam was reassigned to work under Foreman Aurelio Gonzales, also on the first floor. 2 6 After lunch that day, Ortega, too, was told by Sadicario to report to Gonzales. While in Gonzales' section, Lam and Ortega worked as order pickers. On Monday and Tuesday, February 20 and 21, Lam, Ortega, and Samuel Rodriguez, who also was picking orders in Gonzales' section, became aware that, for the first time, they were being closely watched by Arnold Dietrich, a checker. Dietrich stayed with Lam, Ortega, and Rodriguez, checking their work very carefully, and even following them to the bathroom. When Lam asked Dietrich why he was doing this, Dietrich replied that the boss had told him to do so. When, on the next day, Lam asked Gonzales why the Company was keeping its eye on him in that way Gonzales replied that he did not 4 Employees who testified to seeing Sadicario making notes as the employees left on February 15 included Ortega, Lam, Jose De La Cruiz, and Jofie Alcantara. Ortega testified he only had seen Sadlcario do this in the past when layoffs were taking place. 2s Rodriguez made several after work visits to the union hall, accom- panying Lam, Ortega, and other employees. :8 Lam previously had worked under Gonzales. know. When Lam asked if he were doing okay, Gon- zales told him that he was a good order picker and that he should just do what he was supposed to do and do it right. On the night of February 20, Ortega and some other workers brought the following document to the Union, typed by Lam: We ask: 1. R.T. should give us backpayment of the wages underpaid according to the contract. 2. R.T. should from now on pay us wages at least according to the contract. 3. R.T. should pay back all the holiday pay that R.T owes us according to the contract. 4. no [sic] discrimination against non-English speaking workers or workers of any nationality in wages and in promotion.2 7 On February 20, when Dietrich began his close obser- vation, he told Lam that some mistakes had been found in his work. Lam previously had not been told of such errors. After Lam and Ortega were moved to the first floor, in addition to receiving closer supervision from Dietrich and Gonzales, other company officials also watched them work. These included Sadicario, Berman, and other foremen. On March 2, Sadicario, who had not directly supervised Lam before, came to his work area three times to check Lam's work and that afternoon Sadicario stayed with Lam and Ortega from about 1 p.m. until quitting time. Sadicario stayed particularly close to Lam and was either behind him or next to him. Berman, too, watched Lam and Ortega for part of the day while Die- trich continued his surveillance. When Ortega asked why Dietrich was watching him so closely, he was told that it was none of his business. Ortega testified that earlier employee Danny Lopez 2 8 was paged on the public announcement system. Thereaf- ter, Danny Lopez came to Ortega's section and told him that Sadicario had called him in and asked him to watch Ortega, to see whom he spoke to and what he was talk- ing about, and to report this information to Sadicario. Danny Lopez rejected Ortega's urging that he cooperate with Sadicario in this. 2 9 On March 2, at 3:45 p.m., Lam, Ortega, and about some 30 workers punched out preparatory to going again to the Union on the matter of the pay differential. While waiting their turn at the timeclock, the employees saw Sadicario and Supervisor Elliott Cohen stop Jose De La Cruz 30 and search under De La Cruz' coat, undoing the buttons. They also looked into the bundle De La Cruz 27 The above document was signed by a number of employees before being delivered to the Union. However, the signatures were missing from the copy placed in evidence. 2 Danny Lopez, the nephew of Supervisor/Shop Stewart Mike Lopez was employed by the Respondent from October 1977 until his laoff in May 1979 He and Ortega had had a friendly relationship, taking lunch together from time to time 22 Danny lopet denied the above. l)e .a Cruz is employed by the Respondelit as a packer tie had accompanied Lam, Ortega, and other employees to the union hall in Feb- ruary and was about to make his second isit to the Union on March 2. 775 DECISIONS OF NATIONAL LABOR RELATIONS BOARD used to carry his lunch. They did not reply when De La Cruz asked why they were searching him.31 Ortega testified that, on or about March 7, he tried to speak with Lopez, who was then at his shipping area desk, but was told by Lopez not to talk to him because he was working. Ortega returned at lunchtime, while Lopez was eating, and asked to speak to him when he finished. Sadicario came up and told Ortega not to bother Lopez because he was working. Ortega replied that Lopez was not working but was having his lunch and it also was Ortega's lunchtime. He told Sadicario that he wanted to speak to Lopez as his union repre- sentative and that he had the right to do so. Lopez then began to eat very slowly and the bell rang. Ortega re- turned to his work station. Later that day, Union President Prastien came to the plant and asked Ortega to meet with him at Lopez' desk. When Ortege arrived, Sadicario, also present, stated that he did not want Ortega there because Ortega kept on telling employees not to work and to slow down and that Ortega persistently had written notes on cards which he sent down the line, making trouble for other people. Sadicario produced a piece of cardboard with Spanish writing on it and accused Ortega of writing what was on the card to scare the workers. Ortega re- plied that Sadicario had gotten angry at him because he claimed his rights and asserted that he was there because the union representative had called him. He was talking to the union representative and not Sadicario at the time and asked if Sadicario would please let him talk. Accord- ing to Ortega, Sadicario began to scream accusations. Ortega replied that he never had seen the note Sadicario was holding and that the accusations all were lies. Sadi- cario repeated that Ortega had written the paper. Ortega continued to deny this, even to Prastien. Sadicario testified that effective February 27, 1978, about 18 order pickers received pay increases in varying amounts to bring their weekly earnings up to $127.75.32 No wage increments were then scheduled under the col- lective-bargaining agreement. Ortega and Lam were among those who received raises. Sadicario did not know why these raises had been given, explaining that he does not handle wage administration and the matter was not discussed with him. Ortega related that in the beginning of March Mike Lopez had announced to an assemblage of employees the Company's agreement to pay them $127.75 per week. Lam testified that on March 8, shortly after certain employees had received the announced pay increases, he asked some other employees, during a lunch break, how much they were being paid. These workers replied that they still had not received increases. Lam told them that the order pickers all had been raised to $127. When the employees asked how come they had not received their increases, Lam told them to take it easy until the union 3' Neither De t.a Cruz nor any other packer had been searched before or since March 2. and there is no contention that )e l.a Cruz had been involved in dishonest activity 2J The number of employees is generally supported by the Respond- ent's records. representative arrived the next day, when they should talk to him.3 3 Later during that March 8 lunch break, Lam was ap- proached by Sadicario on the plant floor. When Sadi- cario observed that Lam spoke Spanish, Lam replied that he had just learned a few words. Sadicario asked what Lam had said to the workers. Lam replied that he had just told them how much they should be earning and what he was making. When Sadicario stated that the em- ployees did not need Lam as they made more than he, Lam asked what Sadicario was talking about, and named an employee who had worked for the Respondent for 13 years and earned less than he. Sadicario repeated that these employees made much more than Lam. At that time, the bell rang ending the lunch break and the con- versation. Lam related that, earlier in March, he had approached Lopez' desk just as Sadicario was there telling Ortega that he had been intimidating a worker.34 Lam interject- ed, asking Sadicario how he could say that Ortega had intimidated the workers. The person who had intimidat- ed the workers was Sadicario because he had seen him stop Ortega from talking to Lopez the other day, and had heard him tell Ortega that he should not go any- where but to stay in one place. This was intimidation. Lam also told Sadicario that they had the right to talk to the people. When Sadicario replied that they could not talk to the people in the plant, Lam declared that he had a right to talk to the employees during break time; it was his time. Sadicario retorted that he could not as it was company time paid for by the Respondent. Lam repeated that breaktime was the employees' time. Prastien inter- jected that employees should have the right to talk to other employees. When Sadicario charged that Lam had asked the packers to slow down, Lam denied this and told Sadicario that he was a liar and should keep quiet. Another supervisor told Prastien that the employees should return to work; they could not hold a meeting there. On March 9, at the end of the workday, Lam, Ortega, and about 10 other employees were laid off. Earlier, on March 2, most of the packers had been laid off. On learning of his layoff, Lam testified that he asked Sadicario for the reason and agreed to leave when reas- sured that there was no work. Ortega, too, received his green layoff slip on March 9. He waited outside to see who else had been laid off and then went to the union office to report that he had been laid off. Ortega never went back to the plant after that day.3 5 Lam made his first attempt to return to work on March 20. First, he asked Prastien when he would return, and was told that he was not going to be able to go back because he had been encouraging employees to :a In response to the Company's accusation that he and Ortega had urged a slo,:dowtt, Lam emphasized that in telling these workers to "take it easy" his meaning was that they should not get upset but wait to speak to the union represenltativr He denimed urging that they slow down in their olrk. :'4 Prastienl Lopcz. and some employees also were present at the time. O ()n Monday March (, through Wednesday. March 8, the 3 days im- nlcdalel preceding their March 9 layoff, Lam and Ortega each had worked a total of 3 hours overtime-an hour each day. 776 RUSS TOGS, INC slow down. However, Prastien qualified this by stating that the Company did not want to call him and Ortega back yet. Prastien promised to find out the next day. Lam then telephoned Sadicario, announcing that he had heard that three people were being recalled. Lam asked if he were one of them. When Sadicario said no, Lam asked when he would be called back. Sadicario re- plied that he did not know but would discuss the matter with Prastien. The next morning, Lam entered the plant but Sadi- cario stopped him near the timeclock. Lam declared that he was ready to work and asked if he could go in. When Sadicario said no, Lam asked why not; he had heard the day before that all order pickers were working over- time.36 Sadicario replied that there was no work that Lam could do. Lam asked what he meant; he was an order picker and knew every kind of order. He asked what kind of order there was that he did not know how to pick. Sadicario repeated that there was no work that Lam could do. Although Lam persisted, Sadicario did not let him in. Lam remained at the plant waiting for the union hall to open so that he could call there. While waiting, Lam again spoke to Sadicario telling him that he knew there was work and that he was not being recalled because of a lack of work. He told Sadicario that, if he were a man, he would state the real reason. Sadicario responded that, on the first day Lam found out he was supposed to earn more money, he should have come to him. He asked why Lam had gone around speaking to everyone else. Lam answered that he was a union member and had a right to tell the people what had happened to him and to others. Besides, Lam also had spoken to Mike Lopez. Sa- dicario told Lam that it was not the same. Lam should have come to him. Sadicario told Lam that he was too smart for him. Lam knew English, he knew Spanish, and he knew Chinese. He should belong to the United Na- tions. Lam said that he was an order picker, he just hap- pened to get the newspapers. Also, he did not speak Spanish that well. Sadicario then asked why Lam wanted this job; he could get a much better job. If Lam really wanted, Sadicaro could recommend him for a job with better pay. Lam answered that the Company needed an order picker and he did not trust Sadicario. Sadicario stated that he did not need an order picker but offered Lam a better job with better pay. When Lam asked what the job was, Sadicario gave him a referral note telling Lam, when he followed through, to tell the management there that Sadicario recommended him. 37 Later that morning, Lam went down to the union hall where Prastien told him that the Company had not made a recall decision. However, when Lam agair, called that afternoon, Prastien told him that the Company did not want him and Ortega to go back because they had in- timidated a worker. 3 8 a6 Under the contract. overtime work cannot he assigned while em- ployees are on layoff 7' Sadicario confirmed am's tcslimols that he had offered to recon - mend him for a position with another employer. as Prastien also informed Ortega that lie had been unable to hale him and Lam recalled and that the Company did not want them back D. The Respondent's Reasons for Refusing To Recall Lam and Ortega Sadicario testified that he made the decision to lay off Ortega and Lam on March 9 as they had been harassing employees and telling them to slow down and refuse overtime in order to bring the Company to its knees.39 Sadicario never has fired any of the Respondent's em- ployees. His practice has been to lay off undesirable em- ployees and hope that they do not come back. Sadicario also denied having told Lam and Ortega that they were being laid off because of their complaints about wage rates or for having grieved the same with the Union. In fact, Sadicario denied knowing of any such grievances. Sadicario related that, in the first week of February 1978, Getulio Alvaro, an employee, had asked to meet with him in the early morning in a part of the plant where they could not be seen because he was afraid. 40 There, Alvaro told Sadicario that there were two revo- lutionaries in the plant who were telling employees to slow down and to not work overtime. They were saying that the Respondent was capitalistic.4' Sadicario replied that he would call Prastien and, if Alvaro would so tes- tify, the Respondent would fire them. Alvaro refused stating that he definitely was afraid of them, that he had a family with children, and that Sadicario himself defi- nitely should be afraid.4 2 Sadicario explained that no action was taken as Alvaro would not stand behind his story. Thereafter, Sadicario was told by the plant doorman, Elias Matsas, that Ortega had been speaking very loudly during a lunch break, telling employees to slow down and to not work overtime. Ortega told the employees that, if they did, they would only be making the Compa- ny bigger and bigger. On or about February 10, following the above inci- dents, Sadicario called a meeting of his supervisors and told them about Lam and Ortega. He asked if these men were reporting to work on tinme, if they were doing their jobs right, or if they were slowing down. Jay Berman, one of the supervisors, reported that Ortega and Liam very seldom were by their work stations at 8 a.m. and. although they were supposed to take their morning break at 10, they would leave before then. They also would take their lunch breaks before the scheduled 12:15 p.m. time, and report back late from their morning and lunch breaks. Sadicario reasoned that Ortega and Lam must be slowing down the employees on the further ground that, as they were inside the plant by 7:30 each morning, he could not understand why they otherwise would not be working at 8 a.m. On a number of occasions, Sadicario found Ortega conducting meetings of employees in the plant area. Sa- dicario, on these instances, told Ortega to let the men go 1 rThe Respondent does not contend that Lamn and Ortega were termi- nated because of poor work performance or that an actual slouwdown had )occ urred Il Sadcarl) i I'tl ed that Alvaro held a black bell in karate. ' It wsas the seltC lI Sladlcarios testimon) in this regard that the Iv.o r-sioltllnallie refeilrld rt) bh Als aro were Lam and Ortega : Ai the time of the hearing. Alsar, was no lonlger employed by the Respondent He did Irot testify in this proceeding 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back to work. Cartons in the sweater section had been rearranged so that employees could sit on them. Their use in this way had ruined the cartons and cost the Com- pany money. However, when an employee got up to leave the meeting, Ortega, in Spanish,43 would call the man an "ass kisser." He also referred to Sadicario as "a dirty, stupid old man." 4 4 Sadicario, in early March, had come upon Lam as he was telling four Spanish-speaking employees, inside the plant during a lunch break, that he could not understand why they were working so hard and that they should slow down; they were not being paid enough. Sadicario approached and told Lam that he thought he did not know how to speak Spanish. Lam replied that he had just learned. On March 8, employee Louis Padilla, in the presence of other employees, Jose Lopez, Danny Lopez, and Cesar Bueno, informed Sadicario that Lam and Ortega had told him to slow down and had asked why he was being such an animal working so hard. The other em- ployees nodded in agreement. 4 5 Padilla testified that, on the morning of March 7, he was approached inside the plant by Lam and Ortega, who told him not to work hard, to take it easy, and to slow down. They stated that the employees were being underpaid and asked him to go to the Union at 3:45 that afternoon. When Padilla did not reply, he was told that, if he did not go, he would get himself in trouble. 46 On the afternoon of the next day, March 8, Padilla was told by Ortega, in a different part of the plant, to not work hard, to take it easy, and to let (Mike) Lopez do all the work. Ortega called Padilla a hog because he was working too hard. Padilla, in March, also heard Ortega tell shipping clerk Cesar Bueno to slow down and not to make money for the Company. Padilla told Mike Lopez and Sadicario of the above- described conversations with Ortega and Lam. 47 Jose Lopez testified that on March 7, at lunchtime in the Company's cafeteria, Ortega had asked him whether he was going to the Union and, in effect, whether he was a person. Lopez did not reply. On March 7 or 8, Jose Lopez,4 8 having returned early from lunch, was the only one working while Ortega was speaking nearby to a group of employees in the shipping department. Supervisor/Shop Steward Mike Lopez also was in the area. Jose Lopez related that he had heard Ortega tell the group that there were people who were helping the Company but that "we should be working slowly." 43 Sadicario understood Spanish. 4 Lam and Ortega denied that they spoke to employees during work- time, doing so only during recess for lunch and other breaks. 4' Sadicario testified lthat Padilla first privately told him of being urged to slow down by l.am and Ortega. Sadicario then had gone to the mark- ing section where Padilla and the others worked. There, Padilla repeated his account to him in the presence of the other employees. 46 Padilla did not go to the Union that afternoon. 47 Padilla, employed by the Respondent as a marker, left the Respond- ent's employ voluntarily in early August 1978. 48 Lopez, employed by the Respondent at the time of the hearing, had been with the Company for about 4 years as a marker and shipping clerk. Danny Lopez 4 9 testified that, in late February or early March, he overheard Ortega, Lam, and two or three other employees in conversation as he was passing through their area inside the plant. Ortega told the other employees that they should slow down in their work be- cause they were not being paid enough. Lam agreed and told them that the Respondent was not paying them the proper rate. Danny Lopez also recalled a lunchtime incident on or about February 20 where Ortega, with Lam by his side, spoke to a group of 15 to 20 employees while standing on an elevated surface in the sweater department. Ortega told the employees that, as the Company was not paying them the right wages, they should go to the Union, speak to the union representative, and not work as hard. Ortega told the group that the Company employed noth- ing but fascistic and capitalistic people, was capitalistic itself, and was not paying the right wages. Other em- ployees applauded and agreed to go to the Union. Lopez did not stay through the whole incident. Danny Lopez related that on four or five occasions during the approximately 18 days after February 13, when Ortega first began to speak to employees about wages, he told his uncle, Mike Lopez, what he had seen and heard Ortega and Lam say and do. These instances occurred while Danny was driving his uncle home, which he did each night while employed by the Re- spondent. Danny also described to Mike Lopez the inci- dent he had witnessed in the sweater department on the evening after it had occurred. 5 0 Mike Lopez, in turn, re- called having been told by Danny Lopez sometime in February that Lam and Ortega were complaining about their wages. Mike Lopez, however, did not discuss this with Ortega and Lam, or file a grievance on their behalf, but reported their activities directly to Sadicario. Lopez, as shop steward, had not filed a grievance on behalf of any of the employees in at least 10 years, did not have a copy of the collective-bargaining agreement, and, ac- cordingly, did not know at the time whether the unit em- ployees were being paid at the scheduled rate. Cesar Bueno 5 1 further corroborated Sadicario as to the activities of Lam and Ortega. Bueno testified that on March 7, during the lunch break in the cafeteria, Lam had asked him if he could go to the Union that night. When Bueno replied that he had a doctor's appointment, Lam told him that, if he could not go, he was an animal. Bueno related that on the next day, March 8, Lam told him that he should not work overtime and that he should not kill himself. In this period, Bueno also overheard 41' Danny Lopez, previously identified as the nephew of Mike Lopez, was employed by the Respondent as a mail clerk from October 1977 until May 1979. 50 Although Danny Lopez conceded that at the earlier arbitration pro- ceeding he had testified that he heard Ortega and Lain tell employees not to) 'work so hard because the firm was not paying enough for people to go out and kill themselves, and did not, in so many words, say that the employees had been told to "slow down," his recollection at the hearing in this matter was that Ortega and Lam actually had urged the workers to slow down 5 Bueno, employed by the Respondent for approximately 6 years as a marker in the shipping department, was still working for the Respondent at the time of the hearing. 778 RUSS TOGS, INC. Ortega telling several employees that all who worked for the Company were capitalists. Denials by Ortega and Lam that they ever had told employees to slow down or take it easy, in turn, were corroborated by Jose De La Cruz. Sadicario agreed that Lam and Ortega were being watched more closely. Sadicario related that he had or- dered Foreman Aurelio Gonzales to have someone ob- serve Ortega and Lam at work because he wanted to learn if they really were slowing down and, also, as he had received complaints about mistakes in shipped orders. Accordingly, Gonzales had assigned checker Arnold Dietrich to watch orders prepared by Lam and Ortega. Dietrich found mistakes and reported that the two men were writing notes to each other. Sadicario related Dietrich's report that, while checking the work of Lam and Ortega, Ortega repeatedly harassed him, calling him a fascist and different breeds of dog. At one point, Ortega told Dietrich that he should go to the dock where there was a bomb so that he could get blown up. Sadicario conceded that on or about February 21 he, too, personally watched Lam and Ortega. Both men were moved to the first floor on February 17 because they were under close supervision, facilitated in that Aurelio Gonzales, the first floor supervisor, spoke Span- ish. With respect to the incidents alleged at the timeclock, Sadicario testified that, in his role as security chief, he generally was at the timeclock when employees left work to see that nothing was taken improperly. He also made it a point to be at the timeclock when employees were supposed to be working overtime as he designated who was and was not to work overtime. Sadicario recalled being at the timeclock late on Feb- ruary 15 because he had learned from Aurelio Gonzales at 3:30 p.m. that day that no one was working, but that a large group ot employees were waiting in line to punch out. Sadicario told the employees at the timeclock that the bell had not yet rung and asked why they were all standing around. He also told them that there was plenty of overtime and that, if they wanted to work, they could. Lam and Ortega would not harass them; they could work and there would be no problem. Sadicario denied having written anything at the time- clock while employees were leaving work, but admitted that on two occasions when employees went to the Union after work, February 15 and March 2, he counted the employees who had left, explaining that there was much work to be done and it was necessary to deploy the remaining workers. However, Sadicario denied using paper and pencil in his computations. He merely had counted the timecards in the appropriate rack after the employees were gone. Sadicario also denied Samuel Rodriguez' testimony that he had told employees as they waited to punch out that those who were going to the Union would be the first to be laid off should layoffs occur, or that he had told Lam or Ortega that they were being laid off because of their complaints about their wage rates or for having filed related grievances with the Union. Accordingly, Sadicario decided to lay off Ortega and Lam on March 9, 1978, because they had been trying to harm the Company by telling employees to slow down and to not work overtime and had been harassing em- ployees. March 9 was chosen because, at that time, work was slow and they could then be let go without hardship to the Company. E. Credibili/v Resolutions In concluding, contrary to the General Counsel and the Charging Party, that Lam and Ortega did tell em- ployees to slow down in their work in protest of under- payment, reliance is placed on the testimony of Sadicario and Danny Lopez, and the testimony of the Respond- ent's other witnesses in this area is credited only in that they were corroborated by these two men. I deem Louis Enrique Padilla, Cesar Bueno, and Jose Javier Lopez, by themselves, too unreliable to be independently convinc- ing. s 2 Sadicario is credited that he had been advised that Lam and Ortega told and he had heard Lam and Ortega tell employees to slow down as he did not attempt to de- scribe his activities solely in terms helpful to the Re- spondent's position. Sadicario admitted having kept Lam and Ortega under close supervision by his own efforts and through those of others whom he had caused to be assigned for that purpose. He conceded having been at the timeclock on February 15, offering overtime work to employees to dissuade them from punching out and going to the union office that afternoon, and that, in his own way, he had counted the number of employees who had left work at 3:45 p.m. then and on March 2. He did not attempt to deny that he knew that employees were going to go to the Union after work. Sadicario also cor- roborated Mike Lopez' testimony that he had reported to Sadicario what Danny Lopez had told him about Lam and Ortega urging employees to slow down. At the same time, Mike Lopez thus corroborated the testimony of Danny Lopez in this regard.5 3 Also, it is inconsistent with their activities, as put for- ward by the General Counsel, that Lam and Ortega would use the term "take it easy" to counsel patience among other employees, as argued. Rather, the General Counsel otherwise argues that Lam and Ortega consist- ently were trying to goad employees into taking action. 52 Padilla could not recall when or in what amounts he had received wage increases, was Inconsistent as to the amount of overtime he worked, vague as to how he knew to work overtime, and finally testified that he could not remember anything. Jose Lopez while testifying as to the exact dates of his conversations with L.am and Oretga, could not recall anything else, including that he had been a witness at the above-referred to April 1978 arbitration proceeding Bueno's statement i his brief testi- mony that he had not discussed 'either (of his relevatt incidents involving l.am and Ortega with Sadicario was contradicted by Sadicario. who nlamed Bueno as one of his information sources that I.am and Ortega were urging a slowdown a" In crediting the testimony of Danny Lopez concerning slowdowni contrary to the Charging Party, I do not place great signilicance on the fact that at the earlier arbitration proceeding Danny Lopez had testified that Ortega and l.am told the employees "not to work so hard" in pro- test at underpayment and had not used he term "sloddown" as at the present hearing Danny Lopez' current recollectlion is hat Lam and Ortega actually had told employees to slow down Any claimed distinc- tion or inlcolsistency from the foregoing is more enantic than real 779 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, in the context of the factual pattern of this case, I do credit the testimony of Lam and Ortega con- cerning their various conversations with Sadicario, as de- scribed above. Employees were being paid below the contract rate. While, as the Respondent asserts, an arbi- trable issue may have existed in certain job classifica- tions, this dispute did not extend to order pickers. They were being underpaid and that situation was corrected on February 27, 1978, when, principally in response to pressures created by Lam and Ortega, the Respondent granted special pay increases in varying amounts to bring these employees to the scheduled hourly rate of $127.75. When, on the morning of February 15, Ortega was summoned to Sadicario's office, he had been reading the contractual rates openly inside the plant to groups of em- ployees, and had been urging them to accompany him to the Union for about 2 days. He had conducted his last such session just about an hour before being called to the office. From the timing of this incident in relation to Ortega's activities in attempting to enforce the contract and, sub- sequently, to his transfer and the close supervision to which he and Lam were subjected, I credit Ortega's ac- count that, during that interview, Sadicario had accused him of starting trouble for the Company and had told him that, if he did not like what he was earning, he im- mediately would be reassigned as a packer. When Ortega balked at accepting this assignment, not having done such work before, Sadicario attempted to fire him and was dissuaded from doing so only by the intervention of Prastien, the union president. Sadicario thereupon trans- ferred Ortega to more onerous order picking duty on the third floor.5 4 Ortega remained there for the next 2 days, until February 15, when he again was transferred, as was Lam, to work together under the close supervision of Foreman Aurelio Gonzales, checker Arnold Dietrich, and, ultimately, Sadicario himself. Sadicario admitted that Ortega and Lam had been subjected to unusually close observation in that period and had been transferred to Gonzales' section to facilitate the same as Gonzales spoke Spanish. Contrary to Sadicario, I do not believe alleged job errors by Lam and Ortega to be a reason for this conduct.55 Lam's testimony is uncontradicted that, on the after- noon of February 15, he heard Sadicario tell Supervisor Berman that a lot of people were going to the Union, and also, returning at 3:45 p.m., tell Berman that the em- ployees had to work until 5:15 p.m. Lam refused Ber- man's request that he work overtime that day. As he and other employees waited their turn to punch out before going to the Union, they saw Sadicario by the timeclock making notes. Sadicario admitted that he was there urging employees to remain at overtime and that Lam b4 Even while Sadicario, il the process of transferring Ortega, %oas ac- companying him to the third floor, he asked Ortega why he had aised the wage discrepancy issue with the Union at that time instead of comilng directly to him, as Sadicario would have "fixed the problem" at least as to Ortega. Ill conlnection with this close supervision. I credit Ortega's teslill)- ny, denied by L)anny Lopez, that the latter had informed Ortega that he had refused Sadicario's request to spy on Ortega's activities Sch a re- quest by Sadicario would have been in keeping with the Respoldent's conduct towards Ortega and Lam. and Ortega would not harass them, corroborating knowl- edge of the union activities of these two men. Chronolo- gically, all the foregoing occurred during the same week that Lam and Ortega obtained a copy of the union con- tract and began to speak to employees about correcting their rates of pay. 56 In this context, I also accept the tes- timony of Samuel Rodriguez that on February 15, as the employees were waiting to punch out, Sadicario also threatened that, in the event of layoff, those who that day went to the Union would be the first to be laid off. Such a statement would have been consistent with the rest of Sadicario's conduct at that time. Sadicario did not deny the accounts by the General Counsel's witnesses that on March 2, while a number of employees again were waiting to punch out to go to the Union, he and Supervisor Elliott Cohen stopped and physically searched employee Jose De La Cruz, opening his coat and going through his lunch package. This inci- dent followed a decision made that morning by a group of about 20 employees to go to the union office after work to learn why some of them had not received the raises recently afforded to certain employees. There was no contention that De La Cruz had been or was engaged in any dishonesty, and this was the only time an employ- ee was searched. I also credit the descriptions by Lam of his conversa- tions with Sadicario on March 8, when Sadicario, com- menting on Lam's ability to speak additional languages, attempted to discourage him from telling employees that thay should be earning more money and Lain's account of his efforts of March 20 and 21 to obtain recall after his March 9 layoff. This includes Sadicario's explanation that Lam was not being recalled as Lam should have come to him with his wage claims rather than going around speaking to everyone else. These conclusions are buttressed by the showing that Lam and Ortega were subjected to extraordinarily close supervision although neither had been warned for past job errors, that, for all alleged faults, Lam had been given a letter of recommen- dation by Sadicario for employment elsewhere, and that neither Lam nor Ortega was included in the initial lay- offs of March 2. F. Discussion and Concluding Findings 1. Acts of interference, coercion, and restraint From the credited evidence, it is concluded that the Respondent violated Section 8(a)(1) of the Act by the conduct described below undertaken in response to its employees' protected activities in seeking to enforce the wage provisions of the collective-bargaining agreement: (a) Sadicario's coercive interrogation of Ortega on the morning of February 15, when, on Ortega's arrival in his office, he asked Ortega what kind of trouble he was trying to make for the Company. (b) Sadicario's later interrogation of Ortega on Febru- ary 15, while transferring him to work on the third floor, s' While Sadicario admitted that, t11 Fcbruary 15 and March 2, he counted the number of employees who had left woirk by totaling Ihe ti- mecards ill the rack, I find that he also made notes on February 15 a the emplyCes were leaving work 780 RUSS TOGS, INC. as to why Ortega had not come to him, rather than the other employees when he learned that he was supposed to be making more money. This finding includes Sadicar- io's statement that he would have fixed the problem for Ortega. (c) Sadicario's threat to discharge Ortega during their February 15 interview by telling him that, if he did not like the position of packer to which he was then being assigned, he should "get out" and by Sadicario's further effort that day to fire Ortega until Prastien's intercession. (d) Sadicario's statement to employees waiting to punch out on February 15 that, should there be layoffs, those who went to the Union that day instead of work- ing overtime would be the first to be laid off. (e) Sadicario's taking notes by the timeclock as em- ployees were punching out to go to the union office on February 15, and again positioning himself there with Cohen on March 2, constituted coercive and unlawful surveillance of their union activities. (f) The searching of De La Cruz by Sadicario and Cohen on March 2 before other union-bound employees also then leaving the plant was a coercive surveillance of De La Cruz' union activities and had a restraining effect on the union activities of other employees present at the time. (g) Sadicario's work transfer of Ortega to the third floor on February 15 after twice interrogating him and threatening discharge, and the February 17 transfer of Ortega and Lam to the first floor. (h) The very close supervision of Lam and Ortega on the first floor by Dietrich, Gonzales, and Sadicario. (i) Sadicario's interrogation of Lam on March 21, in response to Lam's inquiry as to why he had not been re- called from layoff, as to why Lam had not come to Sadi- cario rather than other employees when he learned he was supposed to be earning more money. 6) Sadicario's March 8 interrogation of Lam as to what he had said to certain Spanish-speaking employees with whom he had seen Lam talking to during a lunch break. 2. The permanent layoff of Lam and Ortega In N.L.R.B. v. Ayer Lar Sanatarium,5 7 the court of ap- peals noted that: [T]he cases are legion that the existence of a jus- tifiable ground for discharge will not prevent such discharge from being an unfair labor practice if par- tially motivated by the employee's protected activi- ty; business reason cannot be used as a pretext for discriminatory firing.... The test is whether the business reason or the protected union activity is the moving cause behind the discharge.... In other words, would this employee have been dis- charged bulfior his union activity? In agreement with the Respondent, I have found above that, at various times during February and March 1978, Lam and Ortega did urge employees to slow down on the job to protest being paid below the rate specified in the contract. Lam and Ortega also repeatedly urged rs 436 F 2d 45, 50 (9th Cir. 1970) employees to accompany them in groups to the union office after work on various occasions in a continuing effort to correct this underpayment. In so doing. they were assertive and, as charged, did call other employees unflattering names when they refused to participate. It has been found above that, within 2 days after be- ginning to openly advise employees of their pay rights, Ortega was summoned to the office by Sadicario, coer- cively interrogated, threatened with discharge, and un- lawfully transferred to perform more arduous duties. Ortega and Lam were subjected to further coercive in- terrogation and both were transferred and subjected to days of the closest observation by an array of supervisors and an agent appointed to the task, including Sadicario himself. The Respondent's pattern of harassment extended to other employees who were discouraged from accompa- nying Ortega and Lam to the Union after work. On Feb- ruary 15 and again on March 2, Sadicario stationed him- self at the timeclock and conducted surveillance of em- ployees punching out to go to the Union. On the former date, he made notes as employees punched out, offered overtime work, and threatened those who were leaving with possible layoff. Employees were told that Lam and Ortega would not harass them.58 On March 2, again at the timeclock as other union-bound employees were waiting to punch out, Sadicario and Cohen physically searched De La Cruz. The March 9 layoff of Lam and Ortega occurred ap- proximately 10 days after the employees were raised to the pay rate provided in the contract, a culmination of their efforts, and during a week when each had worked 3 hours of overtime. The Respondent first had learned that Lam and Ortega were urging a slowdown on or about February 2 when Getulio Alvaro reported this to Sadicario. On or about February 10, from accounts received from supervisors at a meeting called to consider Lam and Ortega, Sadicario concluded that the two men must be slowing down. This was further confirmed on February 20 when Mike Lopez reported Danny Lopez' account of ILam's and Ortega's inciting a slowdown. In early March, Sadicario personal- ly heard Lam tell four Spanish-speaking employees to slow down. Yet, when Lam and Ortega were finally laid off, it was with other employees as part of an economic cutback, the only reason given at the time. Lam and Ortega had not been included in the initial March 2 layoff and Lam later was given a letter of recommenda- tion by Sadicario for employment with a different specif- ic employer. From the above, it appears that, although Sadicario claimed notice since around February 2 and at least since February 10 that Lam and Ortega had been urging em- ployees to slow down, it was not until February 15, after they had started to rally employees to protest their im- Sadicarto's kno ledge of and irritation with the activities( of am alnd Ortega are illustrated hy his testimony at the arbitration proceeding that th, ,ere alwrc ays telling the people to quit ork at 345 and orga- niZc rnld get togclher and go down to the U nion They kept on doing Ithlt ie,\,? ilgle tirn " (Resp I h 2, pp 74 75 ) Sadicario noted that this had disrupted the Respondent t o.e rtime requiremenls 781 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proper pay scale, that Sadicario began to move against them and to pressure other employees who might have been influenced. It was only shortly after the wage situa- tion was corrected at cost to the Respondent that Lam and Ortega finally were laid off, backgrounded by the 8(a)(l) violations found above. For the foregoing reasons, I conclude that Lam and Ortega were permanently laid off in violation of Section 8(a)(3) and (1) of the Act because they had filed griev- ances with and had otherwise protested to the Union that the Respondent was paying employees less than the contracted wage rate and were encouraging other em- ployees to do the same.59 The substantial delay in sepa- rating Lam and Ortega in the face of continuing evi- dence that they were urging employees to slow down re- inforces the conclusion that when they finally lost their jobs it principally was for the reasons found herein. 6 ° 3. The status of Mike Lopez as shop steward and supervisor The General Counsel and the Union argue that the Respondent unlawfully assisted the Union in its manner of dealing with Mike Lopez as the Union's sole shop ste- ward. Administrative Law Judge Kaplan in his Board-ap- proved Decision in Narrangansett Restaurant Corp.,6 concluded: While I find that in the circumstances of this case the statements and conduct of [the] shop steward are chargeable to Respondent Narragansett, it is on the basis of an actual conflict of interest and not merely on the basis of supervisory status. In the area of employer liability for its supervisors' partici- pation in union affairs the Board has long rejected a per se approach.2 7 Rather, the Board determines lia- bility on a case-by-case basis, noting the nature of supervisor[y] participation, i.e., whether the individ- ual is a member of a union negotiating committee, and whether a high- or low-level supervisor is so in- volved. 2 8 27 See Nassau and Suffolk Contractors Association. Inc., et al., 118 NLRB 174 (1951). 28 See, e.g., Schwank Incorporated (managerial and high-level supervisors), 229 NLRB 640, 641 (1977); Allied Chemical Corp. (a foreman who was at the same time the vice president of' the union), 175 NI.RB 974 (1969); Beach Electric Co. (low-level and in- termittent supervisors), 174 NLRB 210 (1969). In the present matter, Lopez, as found above, is a low- level supervisor. As shop steward, Lopez could accept and process applications for union membership, he stored and distributed union books, and he collected fees and dues. Although unexercised in many years as shop ste- ward, he also had the authority to process grievances. However, when on or about February 20 Danny Lopez reported to him that Lam and Ortega were telling employees to slow down to protest underpayment, Mike 56 Perrenoud, Inc., 236 NLRB 804 (1978); Robert Martin Construction Co., Inc., 214 NLRB 429 1(1974). 60 Cornelius America. Inc., 194 NI RB 909, 912, 915 (1972). ^ 243 NLRB 125. 131 (1979). Lopez did not check with or file grievances on behalf of Lam and Ortega, or otherwise seek to bring compensa- tion in line with the contract. Rather, he immediately re- ported their efforts at a protest slowdown to Sadicario, and Mike Lopez is one of the information sources cited by Sadicario that Lam and Ortega were trying to cause a slowdown. Lopez' report to Sadicario, in total disregard of the interests of underpaid unit employees, establishes a clear conflict between Lopez' responsibilities as shop ste- ward and those he held as a supervisor. This is particu- larly valid in the context of Lopez' general performance as steward in that he did not know what unit employees were earning, had not seen the contract, and had not filed an employee grievance in at least 10 years, if ever. Although Ortega testified that he earlier had lost con- fidence in Lopez when he was laid off in December 1977, 1 week after having complained to Lopez that he had not received a wage increase provided in the con- tract, and that he thereafter paid his dues directly to the Union, the Respondent's employees, including Lam and Ortega, had been subject to various prior economic lay- offs from which they had been recalled. The December 1977 layoff was not alleged in the complaint and it also involved other employees. Ortega was thereafter re- called, and quite possibly could have been laid off at that time in any event. I therefore do not rely on that assert- ed coincidence of timing in arriving at the conclusion hereby reached that Lopez' duties as shop steward con- flicted with his supervisory responsibilities, and that the Respondent violated Section 8(a)(2) and (1) of the Act by permitting him as supervisor to serve concurrently as shop steward prior to his ouster by the Union from that position. 6 2 4. The applicability of deferral to arbitration In April 1978, the month after Lam and Ortega were laid off and refused recall, their status was submitted to arbitration before the impartial chairman designated in the contract. The arbitrator concluded that the actions taken with respect to Lam and Ortega were justified. The Respondent argues here that, as Lam, Ortega, and the Union had agreed to be bound, deferral to the award is appropriate under Spielberg Manufacturing Company.63 In Spielberg, the Board held that it would honor a pri- vate arbitration award disposing of a controversy before the Board if "the proceedings appear to have been fair and regular, all parties agreed to be bound, and the deci- sion of the [arbitrator] is not clearly repugnant to the purposes and policies of the Act." 6 4 A further showing must be made that the arbitrator considered and resolved the underlying unfair labor practice issue.65 ,2 Also see lTT Artic Services. Inc., 238 NLRB 116 (1978). s3 112 NlRB 1080 (1955) H4 112 NILRB at 1082; Pioneer Finishing Corporation, 247 NLRB No. 182 (1980) H' See Suburban Motor Freight. Inc., 247 NLRB No. 2 (1980), where the Board overruled Electronic Reproduction Service Corporation: Madison Square Offset Company. Inc., and Xerographic Reproduction Center, Inc., 213 NLRB 758 (1974), which, absent "unusual circumstances" had per- mitted deferral inder Spielberg to arbitration awards dealing with cases of discharge or discipline even where no indication existed that the arbitra- 782 RUSS TOGS. INC. In the instant case, both Lam and Ortega testified without contradiction that both before and during the hearing the Union's attorney who represented them at the arbitration proceeding had refused to call or consider as witnesses individuals whom they had advised him would have testified favorably for them.66 Rather, when the two men persisted, during preparation, that their wit- nesses be called, the attorney reassured them that they were going to the arbitration hearing just to see what the Company presented. If there were a need for additional witnesses, they would be called. However, at the hear- ing, the union attorney again declined to call the wit- nesses identified to him. In finding that the Respondent's refusals to recall Lam and Ortega were justifiable "de facto discharges," the ar- bitrator noted: "Finally, the Employer maintains that Lam and Ortega are, in effect, harassing the Company by encouraging fellow employees to file grievances with the Union." In his discussion, the arbitrator also found that "Lam and Ortega were active in grieving the wage rate then being paid and in encouraging others to follow their example."6 7 Nonetheless, the arbitrator, in spite of the Respondent's position that they had been terminated, in part, for encouraging other employees to file griev- ances with the Union, a protected activity, concluded that they were validly discharged solely for inducing or soliciting others to engage in a work slowdown. In hese circumstances, I conclude that deferral to the arbitration award would not be appropriate. While the parties had agreed to be bound, I do not find that the proceeding was fair and regular in that Lam and Ortega were impeded in the presentation of their case by the union attorney's refusal to consider and call witnesses they had requested. This must be viewed in context with the above finding that the Respondent had unlawfully as- sisted the Union by permitting Mike Lopez as supervisor to concurrently serve as shop steward and the Respond- ent's contention that Lopez' report to Sadicario about their activities had contributed to the action taken against them. Accordingly, the interests of the Union and those of Lam and Ortega herein did not coincide. In reaching his conclusion of justifiable discharge, the arbitrator also completely disregarded the Respondent's contention at that proceeding that Lam and Ortega were terminated, in part, for having encouraged "fellow em- ployees to file grievances with the Union," activity pro- tected under the Act. At the end of his award, the arbi- trator merely noted, as a second "peripheral" point, that "referral of employees by Lam and Ortega to the Union for the purpose of filing grievances is not a reason for discipline . . . workers must be free to solicit aid and advice from their Union and to encourage others to do likewise," but afforded this no significance. For the arbi- trator to have found, as asserted by the Respondent, that a reason for the discipline of Lam and Ortega had been their protected activities and then to disregard the same tor had considered, or had been presented with, the unfair labor practice issue involved. aa For example, one employee of the Respondent who testified in the present matter that Lam and Ortega had not urged a slowdown was Jose De La Cruz. a; See G C. Exh. I(). "Opinion and Award," pp. 2 and 3. is to deny consideration of the unfair labor practice issue, contrary to Suburban Motor Freight, supra. As the activi- ties of Lam and Ortega in pursuing their rights and those of other employees under the contract constitute both union and protected concerted activity, I find that the award is repugnant to the policies of the Act, 6 8 and that deferral is not warranted for that reason as well. IV. 'HI EFFECT OF HEL UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the business op- erations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. V. IHI REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. As I have found that the Respondent unlawfully laid off, with intent to discharge, Wing Shung Lam and Hector Ortega and refuses to recall them, I shall recom- mend that Respondent be ordered to offer them immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and that the Respondent make each of them whole for any loss of earnings they may have suffered as a result of the discrimination against them from March 9, 1978, when they were permanently laid off, until the date Lam and Ortega are offered reinstatement. Backpay shall be computed with interest as prescribed in F: W. Woolworth Company,69 and Florida Steel Corporation.70 The Respondent also should cease and desist from in any like or related manner interfering with, restraining, or coercing with employees in the exercise of the rights guaranteed them in Section 7 of the Act. CONCI.USIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 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. The Respondent interfered with the administration of the Union in violation of Section 8(a)(2) of the Act by recognizing and dealing with Miguel (Mike) Lopez as a shop steward and agent of the Union in such a manner as to conflict with the interests of bargaining unit employ- ees while Lopez was a company supervisor. ~ The Union Fork and Hoe Company, 241 NLRB 907 (19791 ( 90 NLRB 289 (1950). 70 231 NLRB 651 (1977) See, generally, rt5i Plumbing d Heating Co., 138 NLRB 716 (1962) 783 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Respondent violated Section 8(a)(3) of the Act by laying off and refusing to recall Hector Ortega and Wing Shung Lam because they engaged in union and protected concerted activities in enforcement of the wage provisions of the collective-bargaining agreement between the Respondent and Union. 5. The Respondent has violated Section 8(a)(1) of the Act by the aforesaid and by the following additional conduct in connection with its employees' union and protected concerted activities in enforcement of the wage provisions of the collective-bargaining agreement: (a) Coercively interrogating employees as to their union activities. (b) Threatening employees with layoff and discharge. (c) Conducting surveillance of the union activities of its employees. (d) Coercively searching an employee because he was going to the Union's office in the presence of other union-bound employees. (e) Transferring employees to other work stations and to more arduous duties. (f) Subjecting employees to unusually close supervi- sion. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Russ Togs, Inc., Queens, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees with respect to their union and protected concerted activities. (b) Threatening employees with layoff and discharge because of their union and protected concerted activity. (c) Conducting surveillance of its employees' union and protected concerted activities. (d) Coercively searching employees because of their union activities. (e) Transferring employees to other work stations and to more arduous duties because of their union and pro- tected concerted activities. 71 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (f) Subjecting employees to unusually close supervision because of their union and protected concerted activities. (g) Discharging, permanently laying off, or otherwise discriminating against employees because of their union and protected concerted activities. (h) Interfering with the administration of Snow Suits, Ski Wear, Leggings, Infants and Novelty Sportswear Union, Local 105, International Ladies' Garment Work- ers' Union, AFL-CIO, by recognizing and dealing with any person as shop steward or other agent of that Union while that person is its supervisor. (i) 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) Offer Wing Shung Lam and Hector Ortega imme- diate and full reinstatement to their former positions, if available, or, if those positions no longer exist, to sub- stantially equivalent positions with the wage rate they enjoyed at the time they were terminated, plus any in- creases, and without prejudice to their seniority and other rights and privileges, and make them whole for all losses suffered by them as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve, and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Long Island City, Queens, New York, copies of the attached notice marked "Appen- dix." 72 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent 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. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 72 In the event that 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 National L.abor Relations Board" shall read "Posted Pursu- aalt to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 784